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7 - The Participatory Democratic Turn in South Africa’s Social Rights Jurisprudence

from Part III - Adjudication and Rights

Published online by Cambridge University Press:  04 April 2019

Katharine G. Young
Affiliation:
Boston College, Massachusetts
Amartya Sen
Affiliation:
Harvard University, Massachusetts
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Summary

This chapter examines courts as economic and social rights. It claims that this classification makes vivid the challenges and the fragility of judicial systems in democratic orders. Egalitarian social and political movements of the twentieth century changed the persons to whom courts had to provide fair treatment and expanded the kind and nature of rights claims to be advanced. The result has been soaring demands for services, bringing to the fore questions about levels of funding for both the justice apparatus and its users. Courts thus provide an example of a successful universal entitlement under stress. Second, rights-to and rights-in courts are not only in service of users but also are statist; governments depend on courts to implement their norms, to develop and to protect their economies and to prove their capacity to provide “peace and security.” Third, the risks of the unraveling of “the governmental” put courts and an array of other rights in jeopardy. Deregulatory and privatization efforts in courts is part of the movement against the egalitarian redistributive aspirations that the moniker “economic and social rights” encodes.
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Publisher: Cambridge University Press
Print publication year: 2019

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