Title Engaging with social rights : procedure, participation and democracy in South Africa's second wave / Brian Ray

Published Cambridge : Cambridge University Press, 2016

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Description 1 online resource (xi, 381 pages) Series Comparative constitutional law and policy Comparative constitutional law and policy. Contents Cover; Half title; Series; Title; Copyright; Contents; Acknowledgments; 1 Introduction; A Arguments and methods; 1 Arguments; 2 Methods; B Outline; PART I Justiciability and the first wave; 2 The justiciability debate and the 1996 Constitution; A Objections to social rights; 1 Democratic legitimacy; 2 Institutional competence; 3 The "myth" of rights; B Alternative forms of judicial review; 1 Weak rights and remedies; 2 Democratic experimentalist review; C Social rights and alternative forms of judicial review; 1 Theory; 2 Practice; D Justiciability and the 1996 Constitution 1 Entrenching social rights2 Politics and justiciability; 3 Text and structure; E Conclusion; 3 The first-wave cases; A The First Certification judgment; B Soobramoney; C Grootboom; D Treatment Action Campaign; E Khosa; F Port Elizabeth, Jaftha, and Modderklip; 1 Port Elizabeth; 2 Jaftha; 3 Modderklip; G Conclusion; 4 A "curious divergence"; A Weak-form dialogue; B Proceduralization; C Assessing the divergence; 1 Weak-form review without dialogue; 2 Proceduralization without deference; 3 Proceduralization and politics; D Conclusion; PART II Procedure and the second wave 5 The second-wave casesA Evictions and meaningful engagement; 1 Olivia Road; 2 Joe Slovo; 3 Abahlali; B Basic services and proceduralization's triumph; 1 Joseph; 2 Mazibuko; 3 Nokotyana; C Conclusion; 6 The eviction cases; A Rise of managerial judging; 1 Blue Moonlight; 2 Maphango; 3 Blue Moonlight's companion decisions; a PPC Quarries; b Golden Thread; B Extending the managerial approach; 1 Broadening the definition of "eviction"; 2 Anti-land invasions and the third-generation eviction cases; 3 Managerial judging and other rights; C Conclusion; 7 Patterns and possibilities in the second wave A Patterns in the second-wave cases1 Avoiding substance; 2 Creative procedure; 3 Managing individual cases; B Patterns and politics; C Revisiting the "curious divergence"; 1 Administrative-law review; 2 Weak-form review; 3 A stronger interpretive role; D Experimentalist and catalytic courts; 1 Democratic experimentalism; 2 Catalytic courts; E Conclusion; PART III Procedure's potential; 8 The eviction model; A Grootboom's transformation; B The eviction model; 1 Incremental substantive development; 2 Procedural authority and engagement; C Extending the eviction model 1 Joseph and basic-service disconnections2 Mazibuko and legitimate expectations; D Limits of the eviction model; 1 Substantive limits; 2 Procedural limits; E Conclusion; 9 Democratic engagement; A Social rights and participatory democracy; 1 The participatory democracy decisions; 2 Meaningful engagement and participatory democracy; B Social rights, participation legislation, and democratic engagement; 1 Community-participation legislation and policy; 2 Community participation in practice; 3 Local protests and invented spaces; C Participation, experimentalism, and legalized accountability Summary With a new and comprehensive account of the South African Constitutional Court's social rights decisions, Brian Ray argues that the Court's procedural enforcement approach has had significant but underappreciated effects on law and policy and challenges the view that a stronger substantive standard of review is necessary to realize these rights. Drawing connections between the Court's widely acclaimed early decisions and the more recent second-wave cases, Ray explains that the Court has responded to the democratic legitimacy and institutional competence concerns that consistently constrain it by developing doctrines and remedial techniques that enable activists, civil society and local communities to press directly for rights-protective policies through structured, court-managed engagement processes. Engaging with Social Rights shows how those tools could be developed to make state institutions responsive to the needs of poor communities by giving those communities and their advocates consistent access to policy-making and planning processes Bibliography Includes bibliographical references and index Notes English Electronic resource, viewed: December 7, 2022 Subject Constitutional law -- South Africa Social rights -- South Africa POLITICAL SCIENCE -- Political Freedom & Security -- Civil Rights. POLITICAL SCIENCE -- Political Freedom & Security -- Human Rights. Social conditions Constitutional law Social rights SUBJECT aSouth Africa -- Social conditions Subject South Africa Form Electronic book ISBN 9781139333702 1139333704 9781316543139 1316543137 9781316540558 1316540553 9781316540985 1316540987

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