The South African Constitutional Court and Socio-Economic Rights as 'Insurance Swaps'

• DOI: 10.2139/ssrn.2296609
• Publication Date: 2013-08-14T15:00:19Z
• Authors: Rosalind Dixon; Tom Ginsburg
• Keywords: Constitutional court

The political origins of various civil and rights have been clearly theorized by Tom Ginsburg others in work on the "insurance-based" function judicial review new democracies. To date, however, there has relatively little socioeconomic or second generation rights, such as to housing health-care. essay attempts fill this gap, expanding existing insurance-based theories account for potential insurance swap-based left-wing parties constitutional negotiations, when making concessions scope a property clause. Such an account, suggests, fits closely with actual drafting ss. 25-29 1996 South African Constitution, thus also implications interpretation provisions Constitutional Court. From originalist perspective, at least, it suggests that cases involving conflict between other courts should attempt balance two sets context-sensitive way possible, cases, preserve approach, reasoning narrowly, avoiding broad statements favor either highly deferential expansive approach definition rights. This accords surprisingly well, Court decided 2010 Term Musjid, Abhali, Gudwana, well many earlier cases.