constitutionalism

1. THE LIMITS OF
CONSTITUTIONAL
JUSTICE
Dr Murray Wesson

2. ‘But a constitution is not intended to embody a
particular economic theory, whether of
paternalism and the organic relation of the
citizen to the State or of laissez faire. It is made
for people of fundamentally differing views…’
Lochner v New York 198 US 45 (1906) 198
(Holmes J)

3. John Rawls, A Theory of Justice
1. Each person is to have an equal right to the
most extensive total system of equal basic
liberties compatible with a similar system of
liberty for all.
2. Social and economic inequalities are to be
arranged so that they are both (a) to the
greatest benefit of the least advantaged …
and (b) attached to offices and positions open
to all under conditions of fair equality of
opportunity.

4. Rawls on Constitutional Design
 The first principle (the basic liberties) is
suitable for constitutionalisation but the second
principle (the difference principle and fair
equality of opportunity) should be pursued
through ordinary law-making processes.
 In Political Liberalism, Rawls concedes that a
social minimum – providing for the basic
needs of citizens – is also a ‘constitutional
essential.’

5. Erosion of the Rawlsian
Distinction
 The Growth of Positive Obligations.
 The Embrace of Substantive Equality.
 The Proliferation of Social Rights.
 Procedural innovations to facilitate
representation of disadvantaged individuals
and groups.

6. The Growth of Positive
Obligations
 ‘Genuine, effective freedom of peaceful
assembly cannot … be reduced to a mere duty
on the part of the State not to interfere’
(Plattform ‘Artze fur Das Leben’ v Austria
(1991) 13 EHRR 204 para 32).
 ‘Time and again these have been shown to be
false dichotomies’ (R v Secretary of State for
the Home Department, ex parte Limbuela
[2005] 1 AC 396 para 92).

7. The Growth of Positive
Obligations
‘The state must respect, protect, promote and
fulfil the rights in the Bill of Rights’ (section 7(2)
of the 1996 South African Constitution).

8. The Embrace of Substantive
Equality
 Formal equality: Everyone should be treated
equally, regardless of their membership of
particular groups.
 Substantive equality: Measures may be taken
to promote the position of disadvantaged
individuals and groups.

9. The Embrace of Substantive
Equality
‘Nothing in this article … shall prevent the State
from making any special provision for the
advancement of any socially and educationally
backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes’
(section 15(4) of the 1949 Indian Constitution).

10. The Embrace of Substantive
Equality
‘…the State shall take legislative and other
measures … designed to redress any
disadvantage suffered by individuals or groups
because of past discrimination’ (Section 27(6) of
the 2010 Constitution of Kenya).

11. The Proliferation of Social
Rights
 Social rights establish rights to goods such as
housing, healthcare, social security, food and
water, although this obligation is often made
subject to progressive realisation and available
resources.
 Social rights were recognised in the 1937
Constitution of Ireland and the 1949
Constitution of India, but in the form of non-
justiciable principles.

12. The Proliferation of Social
Rights
 The 1996 Constitution of South Africa includes
justiciable social rights.
 Every Latin American constitution now
includes the rights to education, healthcare,
social security and food, as does the 2012
Constitution of Egypt.
 Courts in the United Kingdom and Germany
have interpreted some civil and political rights
so as to include social rights guarantees.

13. Constitutional Law and
Reasonable Disagreement
 Rawls supposes that in the well-ordered
society reasonable citizens will agree on the
principles of justice.
 However, most democratic societies feature
deep and reasonable disagreement about the
principles of justice, including the state’s
obligations in respect of social and economic
inequality.

14. Constitutional Law and
Reasonable Disagreement
 Constitutions differ from ordinary law given
that they constrain ordinary law-making
processes.
 For democratic reasons, and reasons of
legitimacy, constitutions should attract a broad
cross-spectrum of support.
 To what extent can constitutions – and by
extension courts – address issues of social
justice in circumstances where the nature of
the socially just society is reasonably
contested?

15. A Right to a Social Minimum or a
Right to Social Democracy?
 ‘Everyone has the right to have access to
healthcare services’ (section 27(1) of the 1996
South African Constitution).
 ‘Every person has the right to the highest
attainable standard of health’ (section 43(1)(a)
of the 2010 Kenyan Constitution).

16. Judicial Enforcement of Positive
Obligations
 ‘A reasonableness challenge requires government
to explain the choices it has made ... In this way,
the social and economic rights entrenched in our
Constitution may contribute the deepening of
democracy. They enable citizens to hold
government accountable not only through the
ballot box but also, in a different way, through
litigation’ (Mazibuko v City of Johannesburg
(2010) 4 SA 1(CC) para 71).
 Accountability implies a secondary or supervisory
role for the judiciary.

17. Conclusion
 Constitutional justice is not co-extensive with
justice, at least where justice is reasonably
contested.
 However, constitutions and courts can assist in
securing a basic level of welfare provision, and
also deepen accountability in respect of the
state’s human rights obligations, especially in
respect of vulnerable individuals and groups.