ARTICLE

Creating dialogue about socioeconomic

rights: Strong-form versus weak-form
judicial review revisited
Rosalind Dixon*

The decision of the South African Constitutional Court in South Africa v. Grootboom
is one of the most important examples of the judicial enforcement of socioeconomic
rights known to comparative constitutional lawyers. South African scholars generally
agree that the approach taken by the South African Court in Grootboom was overly
cautious but disagree as to how much stronger the Court’s approach could have been
without overtaxing judicial competence and legitimacy. This article seeks to provide
theoretical guidance in answering that question—by developing a theory of “constitutional
dialogue.” Like other theories of cooperative constitutionalism, this theory suggests that
judicial review will need to be weakened, compared to traditional models, before it can be
counted fully legitimate—in general, and in the context of the enforcement of the positive
dimension of socioeconomic rights in particular. At the same time, it suggests that, in
enforcing rights, courts have a much greater capacity, even a responsibility, to play an
active role in countering “blind spots” and “burdens of inertia” in the political process
than is envisaged in other theories. In the enforcement of socioeconomic rights, courts
should not discount the value of a strong approach to the definition of states’ obligations,
or the use of strong remedies; rather, they should weigh the benefits of weakened rights
versus remedies according to the circumstances of a particular country and case.

Introduction
Among cases involving the judicial enforcement of socioeconomic rights, the
decision of the South African Constitutional Court in Government of the Republic
of South Africa v. Grootboom1 is, perhaps, the one best known to comparative

* SJD candidate, Harvard Law School. The author would like to thank Philip Alston, Karen Barrett, Norman
Dorsen, Nicole Fritz, Richard Goldstone, Ryan Goodman, Richard Holden, Jayne Huckerby, Kirsty McLean,
Frank Michelman, Marius Pieterse, Gillian Sinnott, Mark Tushnet, Grégoire Webber, Murray Wesson, and
Katie Young for their extremely helpful comments on earlier versions of this paper. Thanks are also due more
generally to the participants at the Law and Society Conference on Comparative Constitutionalism in Durban,
South Africa (December 2005), and the Human Rights Fellows at the Harvard Human Rights Program, for
helpful comments and suggestions, and to the Center for International Development at Harvard University, for
generous support for this research. All errors, of course, remain the author’s. Email: rdixon@law.harvard.edu
1
Government of the Republic of South Africa v. Grootboom [hereinafter Grootboom] 2000 (11)
BCLR 1169 (CC) (S. Afr.).

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392 I•CON July 2007 Vol. 5: 391

constitutional lawyers. At the time of the decision, many scholars praised the
Court’s decision for its pragmatism and sensitivity to democracy. The decision
was seen to provide important evidence as to the possibility of judicial enforce-
ment of socioeconomic or second-generation rights2 in a way that was both
appropriately transformative and yet sensitive to concerns about judicial com-
petence and responsiveness in this area.3 In the years following Grootboom,
however, it has become apparent that the Court’s decision in fact did little to
change the status quo in South Africa with regard to a right to basic shelter.4
Constitutional scholars now agree generally that the Court’s intervention
was—to an important degree—too limited or “weak,” in the sense of Mark
Tushnet’s taxonomy of weak-form judicial review.5 However, there has been
vigorous ongoing debate as to how much stronger the Court’s approach could
have been, given potential limits on judicial competence and legitimacy.6 In
particular, opinions vary on whether the Court could legitimately have adopted
a broader, more concrete definition of the nature of individual socioeconomic
rights under the South African Constitution (strong rights); pursued a more
time-sensitive and coercive form of relief (strong remedies), or adopted both
strong rights and strong remedies.7

2
Second-generation or socioeconomic rights are generally those associated with the rights pro-
tected by the International Covenant on Economic, Social and Cultural Rights (ICESCR), and first-
generation rights with those protected by the International Covenant on Civil and Political Rights
(ICCPR). The distinction is, of course, somewhat artificial: cf. Terence Daintith, The Constitutional
Protection of Economic Rights, 2 INT’L J. CONST. L. (I•CON) 56, 57–64 (2004); Nicholas Haysom,
Constitutionalism, Majoritarian Democracy and Socioeconomic Rights, 8 S. AFR. J. HUM. RTS. 451, 457
(1992). However, it remains helpful as a form of shorthand in referring to various rights, if not as
a conceptual organizing device.
3
Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa, 11 CONST. FORUM 123 (2000).
4
See, e.g., Dennis Davis, Socioeconomic Rights in South Africa: The Record of the Constitutional Court
after Ten Years, 5 ESR REV. 3, 5 (2004); Karrisha Pillay, Implementing Grootboom: Supervision
Needed, 3 ESR REV. 13 (2002).
5
For the concept of judicial “weakness” in this context, see Mark Tushnet, New Forms of Judicial
Review and the Persistence of Rights- and Democracy-Based Worries, 38 WAKE FOREST L. REV. 813, 821,
835 (2003) [hereinafter New Forms of Review]; Mark Tushnet, Social Welfare Rights and the Forms
of Judicial Review, 82 TEX. L. REV. 1895 (2004) [hereinafter Social Welfare Rights]. For criticism of
the Court’s approach as too weak, see, for example, David Bilchitz, Giving Socioeconomic Rights
Teeth: The Minimum Core and Its Importance, 119 S. AFR. L. J. 484 (2002) [hereinafter Giving SER
Teeth]; David Bilchitz, Towards a Reasonable Approach to the Minimum Core: Laying the Foundations
for Future Socioeconomic Rights Jurisprudence, 19 SAJHR 1 (2003) [hereinafter Future SER Jurispru-
dence]; Davis, supra note 4; Theunis Roux, Understanding Grootboom—A Response to Cass R. Sun-
stein, 12 CONST. FORUM 41 (2002). But see Mark S. Kende, The South African Constitutional Court’s
Construction of Socioeconomic Rights: A Response to Critics, 19 CONN. J. INT’L L. 617, 624 (2004).
6
Marius Pieterse, Coming to Terms With Judicial Enforcement of Socioeconomic Rights, 20 S. AFR. J.
HUM. RTS. 383 (2004).
7
See, e.g., Bilchitz, Giving SER Teeth and Future SER Jurisprudence, supra note 5; Davis, supra note 4;
Roux, supra note 5

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Dixon | Creating dialogue about socioeconomic rights 393

The purpose of this article is to provide an answer to these questions by

examining, first, why it was desirable for the Constitutional Court of South
Africa to be involved in a case like Grootboom, and, second, why there might
be concerns about the limits of judicial competence or legitimacy in this
context. In doing so, the article argues for a commitment to constitutional
“dialogue” as the most desirable model of cooperation between courts and
legislatures in the enforcement of socioeconomic rights. In common with
other theories of cooperative constitutionalism, dialogue theory envisages
limits to both judicial competence and responsiveness in the process of consti-
tutional rights adjudication, which means that courts should stop short of the
pure strong-form approach to judicial enforcement of socioeconomic rights
advocated by some scholars in South Africa.8 However, in a dialogue model,
courts also have a much greater capacity and responsibility to counter legisla-
tive blockages to the realization of constitutional rights than is advocated by
other models.
In general, dialogue theory argues for an intermediate approach to the
judicial enforcement of constitutional rights, which allows courts both to
define rights in relatively broad terms and to adopt strong remedies, pro-
vided they defer to legislative sequels that evidence clear and considered dis-
agreement with their rulings. However, in the specific context of a case
where the positive dimension to socioeconomic rights is concerned, dialogue
theory favors a weaker approach, requiring courts to adopt either weak
rights or weak remedies, depending on the circumstances of the particular
country and case. In Grootboom in particular, it favors a weak rights
solution.
The idea of a dialogue between courts and legislatures regarding constitu-
tional norms has received extensive academic attention over the last decade
in the United States and Canada.9 It has also gained broader attention, in recent
years, in the context of new Commonwealth bills of rights.10 However, it
has not generally been applied directly to socioeconomic rights.11 Furthermore,
the language of dialogue is often used to describe very different theories of
cooperative constitutionalism, each embracing a different understanding of

8
See, e.g., Bilchitz, Giving SER Teeth, and Future SER Jurisprudence, supra note 5.
9
For a comprehensive summary of this literature, see Kent Roach, Dialogic Judicial Review and its
Critics, 23 S.C.L.R. (2d) 49 (2004).
10
See Stephen Gardbaum, The New Commonwealth Constitutionalism, 49 AM. J. COMP. L. 707, 710
(2001). See also Roach, id.
11
For exceptions to this general rule, see Craig Scott, Social Rights: Toward A Principled, Pragmatic
Judicial Role, 4 ECON. & SOC. RTS. REV. (1999); Murray Wesson, Grootboom and Beyond: Reassessing
the Socioeconomic Jurisprudence of the South African Constitutional Court, 20 S. AFR. J. HUM. RTS. 285,
295 (2004).
394 I•CON July 2007 Vol. 5: 391

the appropriate scope of the judicial and legislative roles.12 One aim of this arti-
cle, therefore, is to provide a more exact account of dialogue, focusing on the
potential for a constitutional judiciary to enhance the overall inclusiveness
and responsiveness of a constitutional democracy, chiefly by neutralizing spe-
cific obstacles in the political process.
The article is divided into six sections. Section 2 sets out the background to
Grootboom and its application by the Court in subsequent jurisprudence. This
is the starting point for a discussion of the appropriate role of courts in the
interpretation and enforcement of constitutional guarantees of socioeco-
nomic rights and, specifically, the rights of access to housing and to food,
water, social assistance, and health care in sections 26 and 27 of the South
African Constitution. Section 3 considers why judicial enforcement might be
desirable in this context and suggests that in a dialogic understanding, as
compared with other ways of understanding cooperative constitutionalism,
the argument for judicial review derives from courts’ ability to help counter
failures of inclusiveness and responsiveness in the political process—termed
herein as “blind spots” and “burdens of inertia.” Section 4, in turn, highlights
the comparable risk of reverse burdens of inertia that can arise when courts
assume too strong a role in enforcing constitutional rights. It suggests that
this risk implies the need both for formal procedures of legislative override and
for more informal commitments to judicial restraint in the interpretation and
enforcement of a constitutional bill of rights. Section 5 examines the options
for judicial self-restraint available to courts under an existing bill of rights—or
the choice courts face among intermediate and weak approaches to the defini-
tion and enforcement of constitutional rights guarantees. It proposes that in
cases involving the negative dimension of socioeconomic rights, an interme-
diate approach will be sufficient to prevent significant reverse burdens of iner-
tia, whereas in a case such as Grootboom, involving the positive dimension to
socio-economic rights, some further weakening of the judicial role will be
required, through the adoption of either a weak rights or weak remedies
approach. While acknowledging the difficult, context-specific nature of this
tradeoff, section 5 concludes that an approach based on weak rights rather
than weak remedies is best suited to the present South African context.
Finally, section 6 takes up concerns about the endorsement of weak rights
raised by those who would use an international human rights understanding
of the core content of socioeconomic rights guarantees to encourage better
rights realization in South Africa. This section argues that these concerns are
largely misplaced, given the compatibility between a weak rights approach
and reliance on a truly international rather than normative-conceptual
approach to the minimum core.

12
See Christine Bateup, The Dialogic Promise: Assessing the Normative Potential of Theories of Consti-
tutional Dialogue, 71 BROOK. L. REV. 1109 (2006).
Dixon | Creating dialogue about socioeconomic rights 395

2. Grootboom, Minister of Health v. Treatment Action

Campaign, and the approach of the South African
Constitutional Court
The sequence of events leading to the Grootboom decision began in November
1998, when Irene Grootboom and nine hundred others left their informal set-
tlements in the Wallacedene area, near Cape Town, because of the increas-
ingly intolerable living conditions there and moved to an area of private land,
earmarked for low-cost housing, known as New Rust. A month later, the
owner of New Rust applied for, and was granted, an ejection order against
Grootboom and her neighbors. This order was enforced in May 1999 by the
Oostenberg municipality; in the course of the eviction, the makeshift housing
and possessions of Grootboom and many other plaintiffs were destroyed. As a
result, they returned to Wallacedene without any kind of housing and began
living on the Wallacedene sports field under plastic sheeting. As winter
approached, this became increasingly untenable, and representatives of
Grootboom wrote to the Cape municipality demanding temporary accommo-
dation for those who were homeless at Wallacedene. This request was made in
accordance with the government’s obligation in South Africa to take “reason-
able measures progressively to realize” the right of access to housing, pursuant
to section 26(2) of the Constitution13 and its obligation to ensure that children
have access to basic shelter,14 pursuant to section 28(1)(c). When no satisfac-
tory reply was received from the municipality, proceedings were launched in
the Cape High Court by Grootboom against both local and provincial authori-
ties, on behalf of herself and the nine hundred others.15
In the High Court, Judge Dennis Davis rejected the plaintiffs’ section 26 argu-
ment on the ground that section 26(2) did not confer an individually enforceable
minimum core entitlement even to temporary shelter.16 However, Davis held
that section 28(1)(c) did impose such an obligation where parents were unable to
provide a child with basic shelter, and that this implied an obligation to provide,
at a bare minimum, “tents, portable latrines and a regular supply of water (albeit
transported).”17 Davis granted declaratory relief to this effect. He also ordered the
respondents to report to the High Court within three months on implementation
of the order, and, pending final resolution of the proceedings, to provide tempo-
rary accommodation to the children and to one parent of each child.18

13
S. AFR. CONST. 1996, §26(2).
14
S. AFR. CONST. 1996, §29(1)(c).
15
Grootboom, supra note 1.
16
See discussion in 2000 (11) BCLR 1169 (CC) at para. 14 (S. Afr.).
17
See discussion in 2000 (11) BCLR 1169 (CC) at paras. 25-26 (S. Afr.).
18
See discussion in 2000 (11) BCLR 1169 (CC) at paras. 28–33 (S. Afr.). This represented an
extension of the interim relief previously granted by Josman AJ.
396 I•CON July 2007 Vol. 5: 391

On appeal, the Constitutional Court upheld Davis’s finding that section

26(2) did not confer a minimum core right to basic shelter on any individual,
although it held that similar reasoning applied in the context of section
28(1)(c).19 The Court ruled that the notion of the minimum core, which devel-
oped in the context of the International Covenant on Economic, Social and
Cultural Rights (ICESCR)—requiring states immediately provide certain “min-
imum essential levels” of each of the rights protected by the Covenant—should
be rejected.20 The Court suggested that, were it to adopt such an approach,
substantial difficulties would be encountered in determining whether or not
the core should be defined generally or with reference to the needs of specific
groups. Again, similar difficulties would arise in articulating the content of the
minimum core in light of the diversity of citizens’ needs.21 Nevertheless, when
applying a test of reasonableness, the Court held that the state was in breach of
section 26(2), having failed to include in its housing plan “reasonable meas-
ures … to provide for relief for people who have no access to land, no roof over
their heads, and who are living in intolerable conditions or crisis situations.”22
It found that a reasonable housing plan would have addressed short-, medium-,
and long-term needs and that a plan excluding a significant segment of society
could not be judged reasonable under section 26(2).23 It then granted
declaratory relief in favor of Grootboom and the other constitutional plaintiffs
but declined to make permanent the interim injunction issued by the High
Court,24 or to indicate what would constitute a reasonable time frame for
implementing such measures.25 As Mark Tushnet has suggested, the Court’s
decision was thus weak (or limited) both in a substantive and a remedial sense:
that is, along the axes of breadth, coerciveness, and remedial timing.26 This is
to be compared with the much stronger form of review employed by Judge

19
See discussion in 2000 (11) BCLR 1169 (CC) at paras. 83–84 (S. Afr.).
20
Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3:
The Nature of States Parties Obligations, 5th Session (1990), at para. 10 [hereinafter CESCR,
General Comment No. 3], available at http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+
General+comment+3.En?OpenDocument (last visited Feb. 16, 2006).
21
Grootboom, supra note 1, at paras. 32–33.
22
Id. at para. 99.
23
Id. at paras. 43–44.
24
Id. at para. 99. The Court did provide injunctive relief to enforce the terms of an out-of-court
agreement between the plaintiffs and the respondent municipality. See discussion in Elisabeth
Wickeri, Grootboom’s Legacy: Securing the Right to Access to Adequate Housing in South Africa 22
(Center for Human Rights and Global Justice, Working Paper No. 5, 2004), available at http://
www.nyuhr.org/docs/wp/Wickeri%20Grootboom’s%20Legacy.pdf (last visited Feb. 16, 2006).
25
Grootboom, supra note 1, at para. 99 (S. Afr.).
26
Cf. Tushnet, supra note 5.
Dixon | Creating dialogue about socioeconomic rights 397

Davis, who was willing to specify a broader notion of the state’s obligations
under section 28(1)(c) and to impose injunctive as well as declaratory relief,
with a clear deadline for compliance.
Two years after Grootboom, in Minister of Health v. Treatment Action Campaign
(TAC),27 the Constitutional Court again had to decide how best to interpret and
enforce the positive dimension of the socioeconomic rights guarantees con-
tained in sections 26(2) and 27(2) of the Constitution. This time, the claim was
that the failure to provide access outside of certain designated test sites to an
antiretroviral medication (nevirapine), which had been shown to decrease
substantially the risk of mother-to-child transmission (MTCT) of HIV, was a
breach of the right to access health care services protected by section 27(1) of
the Constitution.
In the High Court, Judge Botha approached the question in terms of the
Grootboom framework, namely, by asking whether the refusal to provide access
outside the pilot sites could be considered reasonable.28 He found that it was
not reasonable, given that there was clear residual capacity in many public
hospitals for the provision of nevirapine, and that the government had not
advanced a compelling reason for denying those hospitals the flexibility to do
so in appropriate cases.29 Judge Botha was also prepared to issue a stronger
remedy than the Constitutional Court in Grootboom and to grant both declara-
tory and mandatory injunctive relief requiring the national minister of health
and provincial members of the Executive Council for Health to make nevirap-
ine available to pregnant women and infants treated in the public health sys-
tem, wherever it was medically indicated and appropriate testing and
counseling could be provided. He thus ordered the respondents to develop a
comprehensive national plan aimed at preventing MTCT of HIV and ordered
the respondents to report to the court within three months on steps they had
taken to develop and implement that plan.30
On appeal, the Constitutional Court endorsed Judge Botha’s reasonable-
ness-based approach on the grounds that sections 26 and 27 were related and
must be read together31 and that the Constitution contemplates a “restrained
and focused role for courts” in socioeconomic rights enforcement.32 Also, like

27
Minister of Health and Others v. Treatment Action Campaign and Others, 2002 (10) BCLR 1033
(CC) (S. Afr.).
28
Id.
29
Treatment Action Campaign v. Minister of Health & Others [hereinafter TAC], 2002 (4) BCLR
356 (A) at paras. 75–76 (S. Afr.).
30
Id. at paras. 85–87.
31
Minister of Health and Others v. Treatment Action Campaign and Others, supra note 27, at
para. 32.
32
Id. at para. 38.
398 I•CON July 2007 Vol. 5: 391

Botha, the Constitutional Court held that the government’s arguments were
insufficient to support a finding that the failure to provide the treatment was
reasonable.33 Identifying HIV/AIDS as the single greatest threat to public
health in South Africa,34 the Court also went on to grant a stronger remedy
than it had in Grootboom, affirming the government’s obligation to remove
restrictions on the provision of nevirapine in situations where the capacity
already existed to administer the drug and it was medically indicated.35 The
Court declined, however, to adopt the second aspect of Botha’s remedy, prefer-
ring to prescribe a purely declaratory remedy, without a deadline, with regard
to the government’s general obligation to develop and implement a plan for the
full rollout of nevirapine.36
Thus, the Court largely followed the approach it had taken in Grootboom,
first, in endorsing a narrow, reasonableness-based approach to defining the
right of access to health care services in section 27(2) over a broader minimum
core approach and, second, in preferring declaratory relief over broad forms of
injunctive, time-specific relief. In subsequent cases, the Court has also evinced
this preference for weak rights and weak remedies in the enforcement of rights
of access of this kind.37

3. Why should courts enforce socioeconomic rights?

In evaluating the Court’s approach in Grootboom or TAC, it is useful to begin by
asking, in the first place, why the Constitutional Court should be involved in
interpreting and enforcing provisions such as sections 26 and 27.
Some scholars might suggest an originalist response to this question—
namely, that the framers of the South African Constitution clearly envisaged
such a role for the Court in the drafting of sections 26 and 27.38 However, there
seems to have been little agreement or clear understanding on the part of the
drafters in this context—regarding either the division of interpretive and
enforcement authority among the courts, legislature, and executive, under

33
Id. at para. 77.
34
Id. at para. 93.
35
Id. at para. 113.
36
One important factor to note here is that the government had taken steps to change its policy
between the time of the initial hearing, and the hearing of the matter in the Constitutional Court.
37
See Khosa v. Minister of Social Development, 2004 (6) BCLR 569 (CC) (S. Afr.). It should be
noted that in Khosa, the only case involving §§26(2) and 27(2) to come before the Court since TAC,
the Court ultimately elected to consider the challenge primarily in terms of §9(3) rather than
§26(2).
38
See Marius Pieterse, Eating Socioeconomic Rights: The Usefulness of Rights-Talk in Alleviating Social
Hardship Revisited, Paper presented at Conference on Comparative Constitutionalism, Durban,
South Africa, (Dec. 10–13, 2005).
Dixon | Creating dialogue about socioeconomic rights 399

sections 26 and 27, or the content to be ascribed to these provisions in particu-

lar concrete cases.39 Thus, even if one accepts an originalist starting point,
there remains a need for some account of the role of the South African courts
that is grounded in constitutional theory as well as history.40
For cooperative constitutionalists, any theoretical account in this context
must begin by acknowledging serious indeterminacy in provisions such as sec-
tions 26 and 27 and, thus, accept that the content of and priority to be given to
rights-based claims made under these sections are bound to be the subject of
disagreement among South Africans.41 For example, regarding the right to
housing, some South Africans obviously favor an approach that gives priority
to market-driven solutions over the provision of public housing,42 while others
feel that governments have a central role to play.43 In other words, some take
the right of access to housing as imposing an obligation on governments to
create the conditions necessary for meaningful access to the private housing
market, whereas others believe that it imposes an obligation on government to
provide public housing directly. Similarly, some South Africans believe that
access to antiretrovirals should be seen as a categorical right of all South
Africans living with HIV, regardless of their capacity to pay or the degree to
which they are likely to benefit,44 whereas others think that access to this treat-
ment falls outside the right to public health care, given the likely costs of pro-
viding such access.45
South Africans are also likely to disagree about the priority to be given
to particular socioeconomic rights claims, depending on how they view the
relationship between these rights and various first-generation rights. Some
South Africans, for example, clearly regard claims based on those rights that

39
Kende, supra note 5, at 623.
40
On the limits to strictly originalist or contractualist understandings of constitutional provisions
at a deeper level, see, for example, Frank I. Michelman, Constitutional Authorship, Solomonic Solu-
tions, and the Unoriginalist Mode of Constitutional Interpretation, 62 ACTA JURIDICA 208 (1998).
41
For the centrality of this understanding in all theories of cooperative constitutionalism, or
weak(ened) judicial review, see Mark Tushnet, Strong Rights, Weak Courts, paper presented at
Harvard Law School Public Law Workshop, April 2005, at 49, 92.
42
See, e.g., Belated Recognition for Housing Ministry’s Fiat, FINANCIAL MAIL (South Africa), Nov. 20,
1998, at 14; Housing Minister Needs Clear and Creative Mind, FINANCIAL MAIL (South Africa), Mar. 7,
2003, at 14.
43
See, e.g., Suthentira Govender, New Homes for Old, SUNDAY TIMES (South Africa), Dec. 8, 2002,
at 4.
44
See, e.g., Claire Keeton, Activists Who Stare at Death, SUNDAY TIMES (South Africa), Oct. 12, 2003,
at 6; Lee-Ann Alfreds & Celean Jacobson, Long Walk to Save South African Lives, SUNDAY TIMES (South
Africa), Aug. 10, 2003, at 4.
45
See, e.g., David Bullard, State’s AIDS Stance Means it Wants a Lean and Mean Workforce, SUNDAY
TIMES (South Africa), Mar. 31, 2002, at 6.
400 I•CON July 2007 Vol. 5: 391

are necessary to ensure survival, or protect the individual’s right to life, as the
most pressing ones under sections 26(2) and 27(2).46 However, it would be
equally plausible to emphasize the relationship between those sections and
other first-generation rights guarantees in the Constitution, such as the right
to dignity contained in section 10. The latter could also be understood as guar-
anteeing either a certain physical or material baseline, necessary for a person’s
life to count as fully human,47 or as a relationship between persons based on
respect for and recognition of human subjectivity (dignity in the Kantian
sense).48 Another first-generation right to which sections 26 and 27 may be
related is the right to equality contained in section 9(2) of the Constitution.49
Further, a focus on any of these rights may produce significant disagreement
among South Africans about what counts as having priority as core versus
non-core entitlements under sections 26(2) and 27(2).
Disagreement about the scope of core entitlements will not necessarily occur
in every case. Even among those who prioritize different first-generation
rights, an “overlapping consensus”50 would likely emerge, in a case such as
Grootboom,regarding the scope of a minimum core right to temporary access to
land and to basic building materials or tent-like shelter. Basic shelter is essen-
tial to both human survival and a baseline of human existence; it is similarly
essential to notions of dignity, which require the state to respond to inherently
reasonable demands for state assistance, and to notions of equality, which
require the state to improve the condition of the worst-off in society. However,
there is likely to be much more significant disagreement among South Africans
in cases involving more permanent forms of housing, because concerns about
both dignity in the Kantian sense and substantive equality would tend to favor
a more restrictive notion of the state’s core priorities, at least until basic shelter
had been provided to all South Africans.
Similarly, there are likely to be divergent notions in South Africa about what
constitutes the core of the right of access to health care services. How that core

46
Bilchitz, Giving SER Teeth, and Future SER Jurisprudence, supra note 5, at 11–12.
47
For the link between socioeconomic rights and this conception of dignity, see, for example, San-
dra Liebenberg, The Right to Social Assistance: The Implications of Grootboom for Policy Reform in
South Africa, 17 S. AFR. J. HUM. RTS. 232, 240–241 (2001); Frank I. Michelman, The Supreme Court,
1968 Term, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7,
8–9 (1969); Danwood Nzikenge Chirwa, The Right to Health in International Law: Its Implications for
Obligations of State and Non-State Actors in Ensuring Access to Essential Medicine, 19 S. AFR. J. HUM.
RTS. 541 (2003).
48
See Chirwa, supra note 47, at 544; Sandra Liebenberg, The Value of Human Dignity in Interpreting
Socioeconomic Rights, 21 S. AFR. J. HUM. RTS. 1, 12 (2005).
49
See Pierre de Vos, Grootboom, the Right of Access to Housing and Substantive Equality as Contextual
Fairness, 17 S. AFR. J. HUM. RTS. 258, 265 (2001). See also Khosa v. Minister of Social Development,
supra note 37.
50
See JOHN RAWLS, POLITICAL LIBERALISM 131–172 (Columbia Univ. Press 1993).
Dixon | Creating dialogue about socioeconomic rights 401

is defined will depend on whether South Africans give priority to the right to life
(that is, the need to respond to urgent and concrete threats to life); to urgent
demands for palliative care and treatment for debilitating and painful disease
(dignity as a baseline); to demands that count as inherently reasonable from a
cost-benefit point of view, thus entailing the refusal of that which might tend to
demean citizens’ sense of self-worth (dignity in the Kantian sense);51 or to the
need to respond to claims made on behalf of the poorest and most neglected
South Africans from a health care point of view (equality). In a case such as
TAC, for example, a focus on dignity in the Kantian sense might well favor treat-
ing access to nevirapine as within the minimum core right of access to health
care services, whereas focusing on dignity as a baseline would reject giving pri-
ority to such access, at least over and above access to life-improving antiretro-
virals for those already suffering from full-blown AIDS. Conversely, in the
context of the current debates in South Africa about broader access to antiret-
rovirals, a focus on dignity in the baseline sense, or on rights to life and equality,
might favor treating such access as within the scope of the state’s minimum
core obligations, whereas a focus on dignity in the Kantian sense would imply
that such a right of general access was far more contingent, varying according
to the costs to the state associated with the treatment’s provision.
It is quite possible, as an abstract theoretical matter, that there are answers
to these questions that are both morally and constitutionally “right.”52
However, as free and equal citizens, with extremely different life experiences
and perspectives, it is also both likely and reasonable that South Africans should
reach a variety of different answers to these questions.53 There is, thus, little
chance of resolving these questions by reference either to collective South
African understandings of the concrete content of sections 26 and 27, or
agreed objective standards of constitutional or social morality in South Africa.
Rather, rights-based controversies must be resolved in South Africa by more
squarely democratic deliberative processes that attempt to give effect to consti-
tutional understandings in the broader “constitutional culture.”54 And, as

51
Cf. Liebenberg, supra note 48, at 22; Craig Scott & Phillip Alston, Adjudicating Constitutional
Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise,
16 S. AFR. J. HUM. RTS. 206, 251–252 (2000).
52
JEREMY WALDRON, LAW AND DISAGREEMENT 165–187 (Oxford Univ. Press 1999).
53
Cf. RAWLS, supra note 50, at 56–58.
54
For an exploration of the concept of constitutional culture, see Robert Post, Foreword—The
Supreme Court 2002 Term: Fashioning the Legal Constitution: Culture, Courts and Law, 117 HARV. L.
REV. 4, 107 (2003). On the importance of processes of deliberation and justification in the context
of commitments to constitutional democracy, see David Dyzenhaus, The Legitimacy of Legality, 46
U. TORONTO L.J. 129 (1996); Frank I. Michelman, Foreword—The Supreme Court 1985 Term: Traces
of Self-Government, 100 HARV. L. REV. 4, 34 (1986). For the relevance of this understanding to
South Africa in particular, see Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of
Rights, 10 S. AFR. J. HUM. RTS. 31 (1994).
402 I•CON July 2007 Vol. 5: 391

Jeremy Waldron has argued, this, in turn, implies that there will be little basis
for truly “countermajoritarian” judicial enforcement of rights guarantees,55
since such enforcement would clearly fail to respect principles of equality
among citizens in processes of democratic constitutional deliberation.56
This does not mean, however, that courts should have little or no role in the
interpretation and enforcement of socioeconomic rights guarantees such as
we find in sections 26 and 27. In cooperative constitutional understandings,
majoritarian political processes are often subject to serious blockages, such
that very strong judicial deference to the legislature (super-weak judicial
review)—or pure legislative supremacy—will tend to produce results that fall
far short of a fully inclusive and responsive constitutional ideal.57 In a dialogic
understanding, the legislative process will be subject to a series of blockages
arising from both the potential for blind spots and burdens of inertia in the
process of lawmaking and implementation.
Blind spots can arise in the legislative process for several reasons. First, legis-
latures may fail to recognize that a law could be applied in a way that infringes
rights; this failure could come about because of time pressures on legislative
deliberations or because of other limitations on legislative foresight (blind spots
of application).58 Second, legislators may fail to anticipate the impact of laws on
rights because they do not appreciate, adequately, the perspective of rights
claimants with very different life experiences and viewpoints (blind spots of per-
spective).59 And, third, legislators who are focused on a particular legislative
objective, and who have limited legal experience, may be ill-equipped to per-
ceive ways in which a rights-based claim might more fully be accommodated,
without undue cost to the relevant legislative objective (blind spots of
accommodation).
Legislative processes may also be subject to burdens of inertia in achieving
rights-based protection because legislation is a time-consuming process and

55
See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS
(Bobbs-Merrill 1962).
56
WALDRON, supra note 52.
57
Cf. e.g., Grootboom, in Soobramoney v. Minister of Health, KwaZulu-Natal, 1997 (12) BCLR
1696 (CC) (S. Afr.). For a criticism of the Court’s super-weak approach in this case, see Scott &
Alston, supra note 51. Among defenders of legislative supremacy, Jeremy Waldron, in particular,
acknowledges the possibility of such failures, but suggests that they are “non-core” rather than
“core” arguments against legislative supremacy. See Jeremy Waldron, The Core Case Against Judi-
cial Review, 115 YALE L.J. 1346 (2006).
58
See Guido Calabresi, Foreword—The Supreme Court 1990 Term: Antidiscrimination and Constitu-
tional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 104 (1991);
Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 LAW &
CONTEMP. PROBS. 7, 34 (2000).
59
See Martha Minow, Foreword—The Supreme Court 1986 Term: Justice Engendered, 101 HARV.
L. REV. 10 (1987).
Dixon | Creating dialogue about socioeconomic rights 403

must operate within the capacity constraints of a given legislative session.60 In

these circumstances, a legislature may fail to address rights-based claims sim-
ply because competing legislative priorities appear electorally more pressing or
salient (priority-driven burdens of inertia). Alternatively, inertia may come
about because an issue divides a political party in such a that the benefits of
pursuing a more responsive legislative outcome are outweighed by the costs
involved for party integrity (coalition-driven inertia).61 Finally, where the real-
ization of a rights-based claim requires sustained and complex forms of admin-
istrative action, delay and inertia in the process of legislative oversight may
combine with inertia within the executive or administrative branch to produce
compound burdens of inertia.
On the facts of Grootboom and TAC, for example, one could argue that the
South African parliament was subject to clear blind spots of perspective—in
responding to the rights-based claims of (a) South Africans who were com-
pletely displaced and homeless (as opposed simply to living, as many do, in
substandard informal housing) and (b) women who were poor, pregnant, HIV-
positive, and living in rural areas outside the designated pilot sites (and thus
had no means of obtaining access to antiretrovirals). Further, one could argue
that national and provincial political processes were also subject to serious
inertia in these contexts prior to the Constitutional Court’s intervention. The
South African government had pledged to build one million homes by 1999 as
part of its plan for the progressive realization of the right of access to housing;
however, by 1997 it had built only 250,000 homes,62 and by 1999, only
700,000.63 Likewise, the government had first investigated the possibility of
providing access to antiretrovirals in 1998, but it had not adopted even a lim-
ited pilot program for pregnant women until 2001–2002.64
Such omissions and delays—that are not driven by resource constraints
or supported by principled forms of justification—will clearly have profound

60
See William N. Eskridge Jr. & Philip P. Frickey, Foreword—The Supreme Court 1993 Term: Law as
Equilibrium, 108 HARV. L. REV. 27, 88–91 (1994).
61
See Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. AM.
POL. DEV. 35, 40 (1993).
62
Marcia Klein, Development—SA Government Builds on Housing Promise, BUSINESS TIMES (South
Africa), July 6, 1997, at 3.
63
Sven Lunsche, ANC Good Deeds Come to Grief at Local Level, BUSINESS TIMES (South Africa), May 30,
1999, at 10.
64
Minister of Health and Others v. Treatment Action Campaign and Others, supra note 27, at para. 1.
For the potential link between this delay and coalition-driven burdens of inertia, see Alfreds &
Jacobson, Long Walk to Save South African Lives, supra note 44, at 4; Claire Bisseker, Aids, Medicine,
Drugs, State President, FINANCIAL MAIL (South Africa), Sept. 22, 2000, at 35 (detailing substantial
divisions within the ruling party in South Africa—the African National Congress (ANC)—over the
likely benefits of the distribution of antiretrovirals).
404 I•CON July 2007 Vol. 5: 391

significance for the legitimacy of the system of constitutional ordering.65 This

will be particularly the case in South Africa, where there is a clear textual com-
mitment in the Constitution to ensuring that limitations on rights to freedom,
dignity, and equality, including limitations on the progressive realization of
access to housing, social security, and health care, must be “reasonable and
justifiable.”66 In South Africa, these kinds of blockages will also undermine the
ongoing transformation of the constitutional order—from a system based on
radical inequality and arbitrary forms of state coercion, to a system that
upholds the freedom, dignity, and equality of all South Africans.67
Nevertheless, in some theories of cooperative constitutionalism, courts are
not seen as having any special responsibility for countering blind spots or bur-
dens of inertia. In a departmentalist account, for example, the court’s role is
viewed simply in terms of the resolution of specific constitutional controversies
between an individual and the state, and not in terms of a broader function of
persuasion.68 From that perspective, if blind spots or inertia are to be con-
fronted, it must be through a popular process of mobilization, rather than rep-
resentative dialogue.69 Similarly, in a “conversational” model, of the kind now
often associated with the United Kingdom’s Human Rights Act of 1998,70 while
courts potentially play an important role in countering legislative blind spots,
they are not expected to counter legislative inertia. Robert Bennett has sug-
gested that in a conversational understanding, the role of courts is simply “to
deliberate and not to decide … [i]t is conversation rather than the substance of
decisions that is key to the conversational perspective, the inertia of the system
in passing legislation is of no particular moment.”71
In a dialogic understanding, however, legislative blind spots and burdens of
inertia are of such profound significance to the legitimacy of the constitutional

65
On the relationship between socioeconomic rights guarantees and commitments to legitimate
democratic ordering, see, for example, Frank I. Michelman, Welfare Rights in a Constitutional
Democracy, 3 WASH. U.L.Q. 659 (1979); and Sunstein, supra note 3, at 124.
66
S. AFR. CONST. 1996, §36.
67
On the transformative nature of the 1993 and 1996 Constitutions, see Karl Klare, Legal Culture
and Transformative Constitutionalism, 14 S. AFR. J. HUM. RTS. 146 (1998). See also CASS R. SUNSTEIN,
DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 67–69 (Oxford Univ. Press 2001).
68
Contra BICKEL, supra note 55.
69
For a definition of departmentalism, see, for example, Michael Stokes Paulsen, The Most Danger-
ous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994); Mark Tushnet, Alter-
native Forms of Judicial Review, 101 MICH. L. REV. 2782 (2003); Keith E. Whittington, Extrajudicial
Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. REV. 773, 783 (2002).
70
See FRANCESCA KLUG, VALUES FOR A GODLESS AGE: THE STORY OF THE UK’S NEW BILL OF RIGHTS (Penguin
Books 2000). Conversational theories have also been advocated in the U.S. See Robert W. Bennett,
Counter-conversationalism and the Sense of Difficulty, 95 NW. U. L. REV. 845 (2001); and, in Canada,
Tsvi Kahana, Understanding the Notwithstanding Mechanism, 52 U. TORONTO L. J. 221 (2002).
71
Bennett, supra note 70, at 891.
Dixon | Creating dialogue about socioeconomic rights 405

system as a whole that there is an urgent need to identify ways in which other
social and governmental institutions, including courts, can mitigate these block-
ages. Further, both the coercive and conversational aspect of the judicial process
will contribute to courts’ capacity to perform a role of this kind.72
A dialogic understanding suggests, for example, that the concrete, ex post
nature of constitutional courts’ jurisdiction in South Africa, together with the
coercive nature of courts’ remedial powers, will mean that courts there are
extremely well-placed to counter blind spots of application.73 Meanwhile, the
visibility that attaches to court proceedings and decisions will mean that courts
can also play an important role in helping rights claimants not otherwise rep-
resented in the legislature make their voices heard, individually and collectively,
thus helping to counter blind spots of perspective.74 Similarly, it suggests that the
combination of various coercive remedial powers (such as powers of invalida-
tion, reading down, “reading-in,” or injunctive relief)75 and the publicity and
authority that attach to court decisions, will give courts the capacity to coun-
ter legislative inertia, both directly and indirectly,76 so long as they are willing
to engage in sufficiently “deep” or normatively appealing forms of reasoning
about individual rights and constitutionalism.77

72
For the idea of coercive, or “factical,” and communicative power, see JÜRGEN HABERMAS, BETWEEN
FACTS AND NORMS (William Rehg trans., MIT Press 1996). Further, by “constitutional court,” I sim-
ply mean a court with constitutional jurisdiction, rather than a specialized court of the kind com-
mon in civil law systems; cf. Michel Rosenfeld, Constitutional Adjudication in Europe and the United
States: Paradoxes and Contrasts, 2 INT’L J. CONST. L. (I•CON) 633 (2004). Specialized constitutional
courts of the latter kind often lack the power to resolve concrete individual disputes and thus have
a more limited potential role in promoting dialogue.
73
For the concrete nature of this jurisdiction, and the scope of courts’ remedial powers, see S. AFR.
CONST. 1996, §§167–169, 172. Cf. William N. Eskridge & John Ferejohn, Super-Statutes, 50 DUKE
L.J. 1215, 1275 (2001); Scott, supra note 11.
74
Cf. Minow, supra note 59, at 93–95; Wesson, supra note 11, at 295.
75
Various courts in the Commonwealth have adopted interpretive techniques of “reading in” and
“reading down,” which allow them to either to add to the words used by the legislature or to give
them a narrower construction than their ordinary meaning. In the South African context, see
S. AFR. CONST. 1996, §172.
76
Cf., e.g., Roach, supra note 9, at 54. While the link between judicial and media attention has been
demonstrated most definitively in the U.S. context (see, e.g., Roy B. Flemming et al., Attention to
Issues in a System of Separated Powers: The Macrodynamics of American Policy Agendas, 61 J. POL. 76,
84 (1999)) there is evidence in South Africa of a similar linkage. A search of two leading South
African news publications that mentioned antiretroviral access in South Africa, showed that the
number of news publications more than quadrupled in the year following the date on which the
TAC decision was handed down (December 14, 2001), compared with the previous twelve months
(i.e., to 17 from 4) (LEXIS).
77
Contrast, in this context, the prescriptions of other cooperative constitutional theories such as
democratic minimalism. See, e.g., CASS R. SUNSTEIN, ONE CASE AT A TIME 16–19, 24–27 (Harvard Univ.
Press 1999). See infra note 103.
406 I•CON July 2007 Vol. 5: 391

Moreover, in contrast to other theories of cooperative constitutionalism,

dialogue theory asserts that once courts are engaged in judicial review in some
way, they will have a direct responsibility to use both their communicative and
coercive powers to the fullest extent possible, to help counter blind spots and
burdens of inertia. First, in contrast to conversational theories, a dialogic the-
ory suggests that, where courts fail to counter either legislative blind spots or
inertia, they will be directly implicated in the process of illegitimate state coer-
cion, rather than remaining mere bystanders to legislative failures of inclusion
or responsiveness. This is because of the inherently coercive (rather than
merely communicative) nature of judicial decision making; it is a consequence
of any system in which judicial decisions are treated as decisive regarding the
claims of particular parties before a court.78 Second, in contrast to theories of
departmentalism, dialogue theory suggests that where courts fail to respond to
legislative blockages, they will actively contribute to strengthening those
blockages by making it more difficult for individuals and social movements in
the broader constitutional culture to contest the legitimacy of the status quo.79
Third, in contrast to otherwise closely related theories, such as democratic
minimalism,80 dialogue theory suggests that if courts decline to deal directly
with blockages but, instead, remand a question to the legislature, they will
unnecessarily displace other legislative priorities, in a way that only increases
the potential for further legislative inertia.81

4. Why not have pure strong forms of judicial

enforcement?
Given the blind spots and inertia affecting the realization of socioeconomic
rights and the potential—indeed, the responsibility—of South African courts
to help counter these executive and legislative failures, one might ask why, in
a case such as Grootboom, courts should not have the broad, prescriptive role
in the interpretation and enforcement of these rights proposed by supporters
of pure strong-form review. From a dialogic perspective, however, the answer

78
Robert Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986). It may be that such coer-
cion is more indirect where positive rights are concerned, but judicial intervention in this context
will often be a matter of life and death, or, at least, of substantial consequence to the ability of citi-
zens to live a decent life, free from severe forms of state or market violence, which inevitably have
judicial coercion (via enforcement of property laws) in the background.
79
From a dialogic perspective, this objection applies also to theories of judicial restraint. See
BICKEL, supra note 55, at 69; LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND
JUDICIAL REVIEW 102–103 (Oxford Univ. Press 2004). Compare also DUNCAN KENNEDY, A CRITIQUE OF
ADJUDICATION [FIN DE SIÈCLE] 236–264 (Harvard Univ. Press 1997); and ROBERTO MANGABEIRA UNGER,
DEMOCRACY REALIZED: THE PROGRESSIVE ALTERNATIVE (Verso 1998).
80
See CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 4–8 (Harvard Univ. Press 1993).
81
In a dialogic understanding, legislative action in a modern, representative democracy is no more
our action than it is that of the courts. See Michelman, supra note 54.
Dixon | Creating dialogue about socioeconomic rights 407

to this question will be straightforward: because courts, like legislatures,

will be prone to failures of responsiveness in the process of constitutional
rights-enforcement.
As with the other theories of cooperative constitutionalism considered here,
dialogue theory does not assume that courts should intervene in the political
process only in the event of clear error or patent unreasonableness or irration-
ality on the part of the legislature or the executive.82 Rather, it assumes
that courts are entitled to intervene either coercively or communicatively
(or, potentially, in both ways), where there are arguable failures of foresight,
perspective, accommodation, or responsiveness. From a dialogic perspective,
in particular, such intervention will be aimed at introducing new ideas, per-
spectives, or even equilibriums into the political process, all with a view to
encouraging the legislature and the broader constitutional culture to recon-
sider its allegiance to the previous status quo.83 It will thus be inevitable that,
at least in some cases, courts will uphold rights-based claims that do not find
broad support within the culture.
In a dialogue model, this possibility will not be particularly troubling from
the standpoint of democracy, because judicial rulings can always be narrowed
or limited in effect by subsequent legislative action.84 However, if court deci-
sions are treated as having broad and final effect (or pure strong-form status),
the relationship between judicial review and democracy will tend to become
far less certain—because the process of judicial intervention will have the
potential to cause reverse burdens of inertia as well as to counter legislative
inertia.85
Because section 74(1) of the South African Constitution contains a far more
flexible amendment procedure than article V of the United States Constitution,
judicial intervention will certainly be less likely to cause reverse burdens of
inertia in South Africa than in the U.S.86 However, even a relatively flexible

82
Contra James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7
HARV. L. REV. 129 (1893).
83
See, e.g., Christoper L. Eisgruber, Is the Supreme Court an Education Institution?, 67 N.YU. L. REV.
961 (1992); Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L. J. 1860,
1903 (1987); Max du Plessis, Between Apology and Utopia—The Constitutional Court and Public
Opinion, 18 S. AFR. J. HUM. RTS. 1, 28–29, 34 (2002).
84
See Roach, supra note 9, at 53, 56.
85
See, e.g., James Allan, The Author Doth Protest Too Much, Methinks: A Review of K. Roach,
‘The Supreme Court on Trial: Judicial Activism or Democratic Dialogue’, 20 N.Z.U.L.R. 519, 531
(2003).
86
Art. V imposes a state ratification requirement, which has no equivalent under §74(1) of the S.
AFR. CONST. 1996. In addition, the effect of a two-thirds majority requirement is clearly more de-
manding in the United States than in South Africa, given the nature of partisan competition in the
two systems.
408 I•CON July 2007 Vol. 5: 391

formal power of amendment may not be sufficient to prevent the danger of

reverse inertia, given the potential costs associated with its use. First, the
opportunity cost to a legislative majority associated with the use of this
power (given the political resources that must be diverted toward marshalling
the internal or bipartisan support needed to pass an amendment) will be much
higher than the cost involved in passing ordinary legislation. This increases
the level of disagreement required to motivate the legislature to intervene to
correct reverse burdens of inertia.87 Second, reliance on the formal amend-
ment power may incur unintended consequences for the enjoyment of consti-
tutional rights. This is because it will be difficult for the legislature to create
narrow or specific carve-outs from constitutional rights guarantees, consider-
ing the general and parsimonious terms in which those rights are typically
expressed.
From a dialogic perspective, some further internal weakening of judicial
review will thus almost always be required, over and above the external checks
described above, before one can be confident that the process of judicial review
will enhance, rather than undermine, overall commitments to democratic
responsiveness.

5. How should judicial review be weakened?

5.1. “Intermediate” approaches to socioeconomic rights as negative
rights
As a general matter, a dialogic understanding suggests a modest degree of
weakening in this context, allowing courts to adopt both a relatively broad
approach to the definition of rights, and strong remedies—provided that they
defer to legislative sequels that reveal clear and considered disagreement with
their prior reasoning, or commit themselves, when appropriate, to judicial nar-
row statement ex post (an intermediate approach to judicial enforcement).88
While such an approach will inevitably create a somewhat greater risk of
reverse burdens of inertia than what is produced by weaker forms of judicial
review, there is good evidence from at least one common law jurisdiction

87
See Tushnet, New Forms of Judicial Review, supra note 5, at 834.
88
Some scholars, such as Luc Tremblay, suggest that such an approach will not legitimately
be open to courts, because the judicial deference it implies will not be compatible with notions of
judicial responsibility and independence. Cf. Luc Tremblay, The Legitimacy of Judicial Review: The
Limits of Dialogue Between Courts and Legislatures, 3 INT’L J.CONST. L. (I•CON) 617, 634–638 (2005).
In the understanding of dialogue advanced here, however, such deference will be entirely consist-
ent with maintaining an independent judiciary and with the quasi-autonomous nature of judge-
made constitutional law. This is because dialogue implies that a court should defer only to those
legislative judgments it regards as sufficiently deliberative and representative of the broader con-
stitutional culture. On the necessity of judicial deference in any truly dialogic conception of judicial
review, see Jeremy Waldron, Some Models of Dialogue Between Judges and Legislators, 23 SUP. CT. L.
REV. 7, 46 (2004).
Dixon | Creating dialogue about socioeconomic rights 409

(Canada), that this risk will be tolerably small, given a consistent judicial com-
mitment to judicial narrow statement ex post.89
In writing about first-generation rights, dialogue scholars have thus gener-
ally argued in favor of an intermediate approach to judicial enforcement as
striking the best possible balance between concerns about failures of respon-
siveness in the legislative and judicial processes.90 There is also no reason why
an intermediate approach should not apply to claims involving the negative
dimension of second-generation rights claims to the same degree that it does to
most first-generation rights claims.91 In both contexts, courts will be relatively
well placed to make informed judgments about the likely effects of, and support
for, recognizing rights-based claims. Further, even relatively broad statements
by courts in relation to the scope or priority to be given to such rights may
be informally overridden by the legislature, provided courts are willing to adopt
an appropriately deferential approach to legislative sequels that display respect-
ful forms of disagreement with their prior reasoning.
In cases concerning the negative dimension of the right of access to housing
in South Africa, such as Jaftha v. Schoeman,92 and City of Johannesburg v. Rand
Properties Ltd,93 dialogue theory would thus support the South African courts’
use of relatively broad and deep forms of reasoning in defining the various dig-
nity, privacy, and equality-based interests at stake.94 In both cases, the courts
had long experience, from the adjudication of common law tenancy and mort-
gage disputes, in balancing the relevant constitutional interests at stake.95

89
See Rosalind Dixon, Designing Constitutional Dialogue: Bills of Rights and the New Commonwealth
Constitutionalism (forthcoming 2008). See also Peter W. Hogg & Allison A. Bushell, The Charter
Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn’t Such a Bad Thing After
All), 35 OSGOODE HALL L.J. 75 (1997); Christopher P. Manfredi & James B. Kelly, Six Degrees of
Dialogue: A Response to Hogg and Bushell, 37 OSGOODE HALL L.J. 513 (1999); KENT ROACH, THE SUPREME
COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (Irwin Law 2001).
90
See Roach, supra note 9, at 53, 56.
91
The distinction between the negative and positive dimension to these rights connotes the distinc-
tion between the state’s duty to refrain from interference with individual’s existing enjoyment of
certain interests and the state’s duty to take positive action to ensure the enjoyment of those inter-
ests: cf., e.g., Frank I. Michelman, The Constitution, Social Rights and Reason: A Tribute to Etienne
Mureinik, 14 S. AFR. J. HUM. RTS. 499, 503–505 (1998); De Vos, supra note 49, at 273–274. The
distinction is one of degree only, of course, as the enjoyment of negative rights ultimately depends
on background forms of government action, such as the establishment and enforcement of a sys-
tem of private property law. See SUNSTEIN, supra note 80, at 4–8.
92
Jaftha v. Schoeman & Others; Van Rooyen v. Stoltz & Others, 2005 (1) BCLR 78 (CC) (S. Afr.).
93
Unreported, Case No. 04/10330; 04/10331, Mar. 3, 2006.
94
Jaftha v. Schoeman & Others; and Van Rooyen v. Stoltz & Others, 2005 (1) BCLR 78 (CC) at paras.
27–28 (S. Afr.); City of Johannesburg v. Rand Properties Ltd. (Unreported, Case No. 04/10330;
04/10331, Mar. 3, 2006) at paras. 49, 51.
95
S. AFR. CONST. 1996, §169 (on the breadth of the jurisdiction of South African High Courts in this
context).
410 I•CON July 2007 Vol. 5: 391

Also, the courts’ judgments did not preclude the possibility that the South
African Parliament or the Johannesburg Municipal Council might subse-
quently devise a scheme for the execution of judgments against immovable
property or the eviction of informal occupants based on a narrow interpreta-
tion of the courts’ reasoning; at the same time, the courts’ judgments still
required officials, in the interim, to respect the broader limits suggested by the
courts’ reasoning regarding the execution of such judgments or the process of
eviction.
In a case such as Grootboom, however, where the positive dimension of
socioeconomic rights is concerned, a dialogic understanding suggests that
courts should take a more cautious approach in defining the scope or relative
priority of a rights-based claim ex ante, if they are to avoid causing reverse
burdens of inertia. Constitutional courts seem more prone to error in this con-
text when assessing the constitutional culture’s likely support for rights-based
claims. This is chiefly because courts generally have a less secure basis for
prediction and more limited access to relevant information with respect to
positive socioeconomic rights claims, than with regard to first-generation
rights claims or claims involving negative socioeconomic rights.96 Also, as a
practical matter, broad judicial pronouncements on the scope of positive soci-
oeconomic rights will tend to be harder to reverse if the executive acts to
implement a court decision in an appropriately prompt and conscientious
way. The exercise of such rights will ordinarily involve allocation of substan-
tial state resources that cannot easily be withdrawn once programs are in
place.97
In Grootboom itself, for example, the Constitutional Court had little, if
any, information by which to assess (a) the number of homeless persons liv-
ing in South Africa or the costs associated with providing emergency hous-
ing for them, or (b) the extent to which those living in harsh informal
housing conditions might elect to be homeless if the Court were to recognize
an individually enforceable right to basic emergency housing for all South
Africans. Nor was the Court in a position to gauge the likely impact of such
a right on the enjoyment of other rights in sections 26 and 27, or on the
rights of the child and rights to education contained in sections 28 and 29

96
Cf. Tushnet, Social Welfare Rights, supra note 5; Mark S. Kende, The South African Constitutional
Court’s Embrace of Socioeconomic Rights: A Comparative Perspective, 6 CHAP. L. REV. 137, 152–155
(2003).
97
In contrast, where the positive dimension of first-generation rights claims is concerned, most
judicial decisions are likely to take effect on a case-by-case basis and thus be more readily revers-
ible by the legislature. See, e.g., the implementation of Gideon v. Wainwright, 372 U.S. 335
(1963) (upholding Sixth Amendment right to counsel for indigent defendants in noncapital
cases), as discussed in Stacey L. Reed, A Look Back at Gideon v. Wainwright After Forty Years: An
Examination of the Illusory Sixth Amendment Right to Assistance of Counsel, 52 DRAKE L. REV. 47
(2003).
Dixon | Creating dialogue about socioeconomic rights 411

of the Constitution. At the time, none of the judges had the sort of directly
relevant direct experience that might have allowed them to make informed
decisions as to the likely implications of recognizing an individually enforce-
able right to basic shelter.98 Further, had the parties to Grootboom, such as
the Cape municipality, taken seriously an order requiring them to provide,
immediately, basic housing to homeless South Africans living in the munic-
ipality, they would have been required to make fairly substantial outlays. It
might well have depleted the overall housing budget available for more
medium-term housing goals.

5.2. Socioeconomic rights as positive rights: Weak rights v. weak remedies

Courts could, however, adopt an approach to the enforcement of socioeco-
nomic rights that was stronger than that adopted by the South African
Constitutional Court in Grootboom, but weaker than an intermediate
approach. This could entail a preference either for weak rights or for weak
remedies.
In some theories of cooperative constitutionalism, the choice between these
axes of weakness will be very clear, since the role of the court is typically seen
in either coercive or communicative terms. In a conversationalist theory of
judicial review, for example, the role of courts is simply to deliberate, not to
decide, so that weak remedies, because they entail less sacrifice of judicial effi-
cacy, will almost always be preferred over weak rights.99 On the other hand, in
a democratic minimalist understanding, a key part of the court’s role is to
resolve concrete controversies without resort to the kind of broad or deep judi-
cial reasoning that can destabilize a constitutional order,100 so that weak rights
will almost always be preferred to weak remedies. Similarly, in a departmentalist
understanding, the courts’ role is simply to decide the particular concrete
controversy; judicial opinions are not afforded any presumptive respect in the
broader political process and, thus, nothing is lost when courts adopt a
weak rights, as opposed to weak remedies, approach.101 Additionally, in more
moderate departmentalist understandings, weak remedies will help to ensure
that executive officials are free to disagree with a court order without being

98
Yacoob J., who wrote the opinion of the Court in Grootboom, did have some experience in relation
to housing matters. See http://www.constitutionalcourt.org.za/site/judges/justicezakYacoob/
index1.html (last visited Feb. 16, 2007). However, this experience was of a limited kind and did
not involve access to the kind of budgetary information that would have been most helpful to the
judge in this context.
99
See Bennett, supra note 70, at 891.
100
SUNSTEIN, supra note 80, at 11–14.
101
For the difference between dialogue and departmentalism in this context, see supra note 69 and
accompanying text.
412 I•CON July 2007 Vol. 5: 391

liable (nominally) for contempt of court, making this preferable to a weak

rights approach on two counts.102
In a dialogic understanding, however, both the coercive and commu-
nicative aspects of courts’ decisions are important to constitutional self-
government and, thus, something is always lost when judicial intervention
is weakened at either a substantive or remedial level. If courts adopt a weak
rights approach, they necessarily forego the chance to engage in deep forms of
reasoning, or to make explicit normative appeals to the broader culture, be-
cause, as Sunstein notes, normative depth inevitably carries with it a certain
breadth.103 In doing so, they thus limit their ability to use communicative
rather than coercive tools, to help counter blind spots of perspective and
priority-driven burdens of inertia.104
Conversely, however, if courts adopt a weak remedies approach, they sub-
stantially undermine their capacity to counter legislative inertia, particularly
in its coalition-driven and compound forms. Without a time-sensitive dimen-
sion, a court order will give legislators and executive officials with competing
political priorities little reason to give precedence to a particular issue unless
the court’s decision serves to mobilize a broad coalition of political actors to put
pressure on the legislature or executive to act. Absent such mobilization, the
factors that cause burdens of inertia to form in the first place (competing politi-
cal priorities, partisan incentives to divert attention from the issue, or com-
pound inefficiencies) are likely to continue to impede meaningful change, even
where there is a good faith commitment on the part of the executive to imple-
ment court decisions. Similarly, where a court order lacks any coercive dimen-
sion, it will have little direct impact on administrative inertia. In cases such
as TAC, where constitutional proceedings are brought by an organized
social movement with considerable ability to litigate, constitutional plaintiffs
may themselves have the capacity to monitor executive compliance and
bring further proceedings in the event of non-compliance with a court order
(ongoing inertia).105 However, in many cases, this will not be the situation,
either because the burden imposed by the grant of purely declaratory relief
will exceed a social movement’s capacity for monitoring and enforcement,106

102
Cf. Tushnet, supra note 69, at 2782 (noting that moderate departmentalist accounts require the
executive to comply with court decisions to which it is strictly a party).
103
SUNSTEIN, supra note 77, at 16–19.
104
Cf. section 3 supra.
105
See Mark Heywood, Contempt or Compliance? The TAC Case After the Constitutional Court
Judgment, 4 ESR REV. 7 (2003). See also Sandra Liebenberg, Needs, Rights and Transformation:
Adjudicating Social Rights, 17 STELL. L. REV. 5, 31 (2006); Tushnet, Social Welfare Rights, supra
note 5, at 1914–1915.
106
Heywood, supra note 105, at 10.
Dixon | Creating dialogue about socioeconomic rights 413

or because no appropriate plaintiff is party to the proceedings (as in

Grootboom).107 In such cases, the imposition of some form of coercive or injunc-
tive relief (or, in South African parlance, the grant of a “structural edict”), that
at least requires parties to report back to a court on compliance, will generally
be essential in order to ensure an effective judicial response to inertia.108
From a dialogic perspective, there is thus a clear trade-off to be made between
a weak rights/strong remedies (weak-strong) and strong rights/weak remedies
(strong-weak) approach in terms of the efficacy of judicial review when it
comes to countering blind spots of perspective and priority-driven inertia, ver-
sus coalition-driven and compound inertia.

5.3. Socioeconomic rights as positive rights: the South African context

As Wojciech Sadurski reminds us, a trade-off of this type must always be made,
not in the abstract, but with sensitivity to the circumstances of a particular
constitutional democracy and case.109 Different constitutional systems will
have different institutional features that may alleviate, or worsen, particular
legislative failures. For example, some systems have active parliamentary
human rights committees that can play a role in mitigating legislative blind
spots;110 in others, powerful human rights commissions play a role in counter-
ing legislative inertia. Similarly, the international or transnational human
rights mechanisms may offer a direct counter to legislative blind spots and
inertia in some domestic systems (through binding forms of individual dispute
resolution, for example),111 whereas in others, international pressure may
increase the danger of legislative inertia or non-responsiveness in the realiza-
tion of socioeconomic rights.112

107
The proceedings in Grootboom were brought by local legal representatives obtained by
Grootboom and her co-plaintiffs; although the South African Legal Resources Centre intervened in
support of her appeal before the Constitutional Court, it has not been involved in the ongoing
monitoring or enforcement of the Grootboom judgment. See Natasha Kim & Aaron Sawchuk,
Searching for a New Rest under a Big Tree: A Case Study in the Grootboom Case and its Aftermath
(unpublished paper, May 2005, copy on file with author).
108
Cf. order of SACC in August & Anor v. Electoral Commission & Others, 1999 (4) BCLR 363 (CC)
(S. Afr.).
109
Wojciech Sadurski, Judicial Review and the Protection of Constitutional Rights, 22 OX. J. LEG. STUD.
275 (2002).
110
Janet Hiebert, Parliament and the Human Rights Act: Can the JCHR Help Facilitate A Culture of
Rights?, 4 INT’L J.CONST. L. (I•CON) 1 (2006).
111
Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational
Adjudication, 112 YALE L. J. 273 (1997).
112
Kim Lane Scheppele, A Realpolitik Defense of Social Rights, 72 TEX. L. REV. 1921 (2004).
414 I•CON July 2007 Vol. 5: 391

In South Africa specifically, there are at least two reasons to think that, at
present, a weak-strong rather than strong-weak approach to judicial enforce-
ment is called for. First, experience thus far suggests that a weak rights approach
has not prevented courts from engaging in the sort of communicative inter-
vention that can counter blind spots of perspective in the political process. In
Grootboom and TAC, the Constitutional Court gave clear voice to the vulnera-
bility and urgent need of the claimants without engaging in deep normative
reasoning that might implicitly have suggested that every South African had
an inalienable right to immediate access to emergency shelter or antiretrovi-
rals at state expense.113
Second, there is evidence to suggest that in South Africa, over the last dec-
ade, coalition-driven and compound inertia have tended to be far more signifi-
cant than priority-driven inertia in explaining the failure to realize the positive
dimension of socioeconomic rights.114 The basic commitment of the South
African community to ensuring the progressive realization of rights to housing,
health care, food and water, and social assistance was clearly expressed in the
drafting of the Constitution. For the most part, the commitment also clearly
remains strong in South African constitutional culture, despite disagreement
as to the best way to realize these rights.115 On the other hand, disagreement
within the ruling majority party (the African National Congress, or ANC) has
delayed the adoption of effective national policies aimed at the realization of
these rights, particularly the right to health;116 implementation of these poli-
cies has also been subject to serious compound inertia.
This latter pattern of delay has been particularly evident where the right to
housing is concerned, since inertia was apparent even before the Constitutional
Court’s decision in Grootboom and has arguably increased in recent years, as
national, provincial, and local governments have developed new housing
plans, aimed at fulfilling the obligations announced in Grootboom. For exam-
ple, the Cape municipality (one of the respondents in Grootboom) announced in
2001 a plan to provide formal public housing to the thousands of people living
in informal settlements along the road that connects the center of Cape Town
with the airport, but it made no progress in implementing the plan for
more than four years.117 In Gauteng, the local and provincial governments

113
Government of the Republic of South Africa v. Grootboom, 2000 (11) BCLR 1169 (CC) at para. 44
(S. Afr.); Minister of Health and Others v. Treatment Action Campaign and Others, 2002 (10) BCLR
1033 (CC) at para. 70 (S. Afr.).
114
Cf. Geoff Budlender, Socioeconomic Rights in the New Millennium: The Challenges of Implementation
in SA, 1 ESR REV. (1999).
115
See Davis, supra note 4.
116
See supra note 64.
117
Ilse Fredericks, The Promise No-One Keeps, SUNDAY TIMES (South Africa), May 6, 2004, at 12.
For more recent progress in this area, see Sasha Planting, Housing: A Boost to Transform Informal
Settlements, FINANCIAL MAIL (South Africa), Feb. 25, 2005, at 32.
Dixon | Creating dialogue about socioeconomic rights 415

announced a plan in 2001 to provide water, sewerage, and electricity within

two years to all of the residents living in the area of Diepsloot, an informal
settlement just north of Johannesburg,118 but by July 2004, little progress
had been made in providing water, sewerage, or electricity.119 Similar forms
of compound inertia are also apparent regarding the right of access to health
care services, especially in the context of the national government’s 2003
plan to extend the rollout of antiretrovirals to all South Africans living with
HIV/AIDS.120
There is thus reason to think that, for the time being, the loss to democratic
responsiveness in South Africa will be less where courts take a weak-strong
rather than strong-weak stance, vis-à-vis the enforcement of provisions such
as sections 26(2) and 27(2) of the Constitution.

6. Weak-strong review and international human rights law

Admittedly, some scholars believe that a weak rights approach in South Africa
will entail a further important loss by diminishing the potential for interna-
tional human rights–based understandings to prompt more concrete and
immediate steps toward the progressive realization of socioeconomic rights.121
They argue that the clear textual parallels between sections 26(2) and 27(2)
of the Constitution and articles 2, 11 and 12 of the ICESCR create a unique
opening for courts in South Africa to encourage legislators to provide the min-
imum core socioeconomic rights identified by the United Nations Committee
on Economic, Social, and Cultural Rights,122 without raising concerns about
the legitimacy of judicial enforcement of these rights. With that in mind, they
suggest that in South Africa, the Constitutional Court was mistaken in adopt-
ing a weak rights rather than intermediate approach to the enforcement of
socioeconomic rights as positive rights.
It is extremely important, however, to distinguish in this context between
the Court (a) relying on a truly cosmopolitan, or international, understand-
ing of the minimum core, which is based on the fact that the practice of
states parties to the ICESCR suggests an overlapping consensus as to the
minimum core content of the rights in the Covenant, and (b) borrowing the
conceptual apparatus of the minimum core as an independent basis for

118
See Dominic Mahlangu, A Place Where Promises Come to Die, SUNDAY TIMES (South Africa), July
11, 2004, at 13.
119
Id.
120
Heywood, supra note 105.
121
See, e.g., Bilchitz, Giving SER Teeth and Future SER Jurisprudence, supra note 5; Roux, supra
note 5.
122
CESCR, General Comment No 3, supra note 20, at para. 10.
416 I•CON July 2007 Vol. 5: 391

interpreting sections 26 and 27 of the South African Constitution at the

domestic level.123
From a dialogic point of view, there is no difficulty with the first approach,
since the Constitutional Court can give at least presumptive respect to the min-
imum core rights, identified by the CESCR committee without committing itself
to the scope or priority given to particular rights-based claims under sections
26(2) and 27(2). The international minimum core derives, not from an abstract
assignment of moral priority to specific rights-based claims but, rather, from a
survey of state practices conducted by the committee over a period of many
years.124 Further, the international minimum core has no directly enforceable
status, either as a matter of domestic or international law, in South Africa.125
As the Constitutional Court itself observed in Grootboom, it can thus give some
weight to the international minimum core as a concept, in determining
whether, in fact, South Africa has complied with its obligations under sections
26(2) and 27(2), without committing itself to following the CESCR commit-
tee’s approach in any specific case.126 In contrast, if the Constitutional Court
were to borrow the idea of the minimum core and transform it into a fully
domesticated approach to the interpretation of sections 26(2) and 27(2), it
would then be required to provide a general normative or conceptual account
of the minimum core obligation in light of South African understandings and
circumstances. It would also be required, presumptively, to enforce that obli-
gation in every case.
For some scholars, this will pose little difficulty, because there will be little
room for reasonable disagreement among South Africans as to the content of
the minimum core of most socioeconomic rights127 or the intersection between
sections 26(2) and 27(2) and the right to life in section 11 of the Constitution.
For dialogue scholars, however, there is more extensive scope for disagreement
because, as they would have it, in most cases, South Africans could reasonably

123
On this conception of constitutional borrowing, see, for example. COMPARATIVE CONSTITUTIONALISM:
CASES AND MATERIALS 8 (Norman Dorsen et al. eds., Thomson/West 2003); Mark Tushnet, The Pos-
sibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1228–1235 (1999).
124
CESCR, General Comment No 3, supra note 20, at para. 10, and discussion in CORE OBLIGATIONS:
BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS (Audrey Chapman & Russell Sage
eds., Intersentia 2002).
125
In the domestic context, this is because §39 of the S. AFR. CONST. 1996 requires the Constitu-
tional Court to “consider,” rather than directly give effect to, international law. (In any case, as a
non-authoritative interpretation of the ICESCR, the concept of the minimum core is not entitled to
absolute deference even under international law.)
126
Cf. Grootboom, 2000 (11) BCLR 1169 (CC) at paras. 83–84 (S. Afr.). Cf. also Jaftha v. Schoeman
and Others, 2005 (1) BCLR 78 (CC) at paras. 24–25 (S. Afr.).
127
Recall, that for some, the minimum core should simply be defined by reference to the requisites
for survival in South Africa, See, e.g., Bilchitz, Giving SER Teeth and Future SER Jurisprudence, supra
note 5.
Dixon | Creating dialogue about socioeconomic rights 417

affirm a variety of perspectives on the ranking of socioeconomic rights claims,

depending on whether they gave priority to the relationship between these
rights and first-generation rights, such as the rights to life, dignity or equality.
If the Court were to define the minimum core in a way that gave clear priority
to any one of these different intersectional approaches, it would be embarking
on a process of rights definition that ignored the scope of existing disagree-
ments among South Africans while purporting to foreclose future dialogue
with the broader culture on this subject.
Over time, through actual dialogue, South Africans may come to agree on a
set of housing or health care requirements on which to ground individually
enforceable rights for all South Africans, regardless of their capacity to pay or
the state’s budgetary constraints.128 It may be that, through a process of exten-
sive representative and community dialogue, universal access to certain basic
amenities for informal housing or, for that matter, to antiretrovirals will come
to be recognized by the broader South African constitutional culture as part of
the settled content of the rights of access to housing or health care under sec-
tions 26(2) and 27(2). In these circumstances, a dialogic approach would cer-
tainly not prevent a court from identifying these claims as ones that, like the
international minimum core, are entitled to a heightened degree of respect
under sections 26(2) and 27(2). Like the process that has underpinned the def-
inition of an international minimum core, however, this iterative process of
rights definition would be entirely distinct from an approach whereby the
Constitutional Court unilaterally and abstractly defined the scope of a mini-
mum core, including the levels of risk, benefit, and cost necessary for a person
to claim a minimum core right in accessing specific goods.

7. Conclusion
In arguing for a weak-strong approach to the enforcement of socioeconomic
rights in a case such as Grootboom, this article has sought to contribute to the
ongoing debate in South Africa as to how judicial enforcement of socioeco-
nomic rights might legitimately be strengthened in the future without under-
mining commitments to overall democratic responsiveness. In this context,
one of the key advantages of a dialogue model is that it does not require the
Constitutional Court to abandon its insistence on a weak approach to inter-
preting the substantive scope of sections 26(2) and 27(2); rather, the model is
fully consistent with the approach that the Court in TAC suggested might be
appropriate in future cases, and which had been adopted at a lower court level
in Grootboom and TAC.
However, a broader aim of this article has been to use the South African
debate to stimulate discussion of the advantages of dialogue theory over other

128
I am indebted to Marius Pieterse for pressing me on this point.
418 I•CON July 2007 Vol. 5: 391

theories of cooperative constitutionalism when it comes to interpreting

and enforcing socioeconomic rights guarantees more generally. In its basic
starting point, dialogue theory has much in common with other theories of
cooperative constitutionalism, such as departmentalism, constitutional con-
versationalism, and democratic minimalism. All four theories endorse an
approach to judicial review that is substantially weaker than the archetypal
model of strong-form judicial review associated with judicial review in the
United States129—generally, and in the specific context of socioeconomic rights
enforcement. However, dialogue theory is distinguished from the other theo-
ries by treating the courts as having a much greater capacity and responsibility
to confront political failures in the realization of socioeconomic rights. In con-
trast with the others, it points also to the need for a more flexible approach to
judicial enforcement of socioeconomic rights guarantees, if countries such as
South Africa are ultimately to realize their commitments to a system of inclu-
sive and responsive constitutional ordering.

129
The difficulties associated with amending the U.S. Constitution (cf. supra note 86), combined
with the U.S. Supreme Court’s insistence on a strong degree of judicial finality and exclusivity (see,
e.g., Cooper v. Aaron, 358 U.S. 1 (1958); City of Boerne v. Flores, 521 U.S. 507 (1997)), are gener-
ally viewed as giving the decisions of the U.S. Supreme Court an extremely strong degree of formal,
if not necessarily practical, finality.