Document Type

Article

Publication Date

2008

Abstract

This article seeks to explore the effectiveness of constitutional protection and court adjudication of social welfare rights as tools to address and remedy social injustice and economic inequality. The focus of this examination will be on South Africa and its post-apartheid Constitution that enumerates rights and protections intended to remedy the economic injustices of the country's past. This article argues that the model of adjudicating social rights in South Africa is exportable to other countries, while clarifying the reasonable expectations and potential contributions of such adjudication toward the achievement of socio-economic justice. Part I addresses two questions: first, why look to constitutional social welfare rights as a new solution when they have long existed?; second, why look to South Africa for guidance? Part II examines South Africa's relevant post-apartheid jurisprudence, focusing on the novel concept of "differentiated incorporation, " the exportable process by which South Africa defended its adjudication against claims of the non-justiciability of socio-economic rights. Finally, Part III addresses the question of whether South African social rights provisions have served their goals.