THE LIMITS OF

CONSTITUTIONAL
JUSTICE

Dr Murray Wesson
‘But a constitution is not intended to embody a
particular economic theory, whether of paternalism
and the organic relation of the citizen to the State or
of laissez faire. It is made for people of
fundamentally differing views…’

Lochner v New York 198 US 45 (1906) 198 (Holmes

J)
John Rawls, A Theory of Justice
1. Each person is to have an equal right to the most
extensive total system of equal basic liberties
compatible with a similar system of liberty for all.
2. Social and economic inequalities are to be
arranged so that they are both (a) to the greatest
benefit of the least advantaged … and (b) attached
to offices and positions open to all under
conditions of fair equality of opportunity.
Rawls on Constitutional Design
 The first principle (the basic liberties) is suitable
for constitutionalisation but the second principle
(the difference principle and fair equality of
opportunity) should be pursued through ordinary
law-making processes.
 In Political Liberalism, Rawls concedes that a
social minimum – providing for the basic needs of
citizens – is also a ‘constitutional essential.’
Erosion of the Rawlsian
Distinction
 The Growth of Positive Obligations.
 The Embrace of Substantive Equality.
 The Proliferation of Social Rights.
 Procedural innovations to facilitate representation
of disadvantaged individuals and groups.
The Growth of Positive
Obligations
 ‘Genuine, effective freedom of peaceful assembly
cannot … be reduced to a mere duty on the part of
the State not to interfere’ (Plattform ‘Artze fur Das
Leben’ v Austria (1991) 13 EHRR 204 para 32).
 ‘Time and again these have been shown to be false
dichotomies’ (R v Secretary of State for the Home
Department, ex parte Limbuela [2005] 1 AC 396
para 92).
The Growth of Positive
Obligations
‘The state must respect, protect, promote and fulfil
the rights in the Bill of Rights’ (section 7(2) of the
1996 South African Constitution).
The Embrace of Substantive Equality

 Formal equality: Everyone should be treated

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

‘Nothing in this article … shall prevent the State

from making any special provision for the
advancement of any socially and educationally
backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes’ (section 15(4) of
the 1949 Indian Constitution).
The Embrace of Substantive Equality

‘…the State shall take legislative and other measures

… designed to redress any disadvantage suffered by
individuals or groups because of past discrimination’
(Section 27(6) of the 2010 Constitution of Kenya).
The Proliferation of Social Rights
 Social rights establish rights to goods such as
housing, healthcare, social security, food and
water, although this obligation is often made
subject to progressive realisation and available
resources.
 Social rights were recognised in the 1937
Constitution of Ireland and the 1949 Constitution
of India, but in the form of non-justiciable
principles.
The Proliferation of Social Rights
 The 1996 Constitution of South Africa includes
justiciable social rights.
 Every Latin American constitution now includes
the rights to education, healthcare, social security
and food, as does the 2012 Constitution of Egypt.
 Courts in the United Kingdom and Germany have
interpreted some civil and political rights so as to
include social rights guarantees.
Constitutional Law and Reasonable
Disagreement
 Rawls supposes that in the well-ordered society
reasonable citizens will agree on the principles of
justice.
 However, most democratic societies feature deep
and reasonable disagreement about the principles
of justice, including the state’s obligations in
respect of social and economic inequality.
Constitutional Law and Reasonable
Disagreement
 Constitutions differ from ordinary law given that
they constrain ordinary law-making processes.
 For democratic reasons, and reasons of legitimacy,
constitutions should attract a broad cross-spectrum
of support.
 To what extent can constitutions – and by
extension courts – address issues of social justice in
circumstances where the nature of the socially just
society is reasonably contested?
A Right to a Social Minimum or a
Right to Social Democracy?
 ‘Everyone has the right to have access to healthcare
services’ (section 27(1) of the 1996 South African
Constitution).
 ‘Every person has the right to the highest attainable
standard of health’ (section 43(1)(a) of the 2010
Kenyan Constitution).
Judicial Enforcement of Positive
Obligations
 ‘A reasonableness challenge requires government to
explain the choices it has made ... In this way, the
social and economic rights entrenched in our
Constitution may contribute the deepening of
democracy. They enable citizens to hold government
accountable not only through the ballot box but also, in
a different way, through litigation’ (Mazibuko v City of
Johannesburg (2010) 4 SA 1(CC) para 71).
 Accountability implies a secondary or supervisory role
for the judiciary.
Conclusion
 Constitutional justice is not co-extensive with
justice, at least where justice is reasonably
contested.
 However, constitutions and courts can assist in
securing a basic level of welfare provision, and also
deepen accountability in respect of the state’s
human rights obligations, especially in respect of
vulnerable individuals and groups.