Engaging with Social Rights: Procedure, Participation and Democracy in South Africa's Second Wave(Comparative Constitutional Law and Policy)

With a new and comprehensive account of the South African Constitutional Court's social rights decisions, Brian Ray argues that the Court's procedural enforcement approach has had significant but underappreciated effects on law and policy, and challenges the view that a stronger substantive standard of review is necessary to realize these rights. Drawing connections between the Court's widely acclaimed early decisions and the more recent second-wave cases, Ray explains that the Court has responded to the democratic legitimacy and institutional competence concerns that consistently constrain it by developing doctrines and remedial techniques that enable activists, civil society and local communities to press directly for rights-protective policies through structured, court-managed engagement processes. Engaging with Social Rights shows how those tools could be developed to make state institutions responsive to the needs of poor communities by giving those communities and their advocates consistent access to policy-making and planning processes.

Table of Contents:
1. Introduction; Part I. Justiciability and the First Wave: 2. The justiciability debate and the new constitution; 3. The first wave cases; 4. A 'curious divergence'; Part II. Procedure and the Second Wave: 5. The second-wave cases; 6. Evictions and education; 7. Patterns and possibilities in the second wave; Part III. Procedure's Potential: 8. The eviction model; 9. Democratic engagement; 10. Conclusion: real rights.

About the Author :
Brian Ray is Professor of Law at Cleveland-Marshall College of Law, Cleveland State University. He has published widely on social rights and judicial review, and his work has appeared in leading journals including the Stanford Journal of International Law, the South African Journal of Human Rights and the Constitutional Court Review.

Review :
'Brian Ray's book is a remarkably insightful and powerfully analytical contribution to the evolving scholarship on social (socio-economic) rights adjudication. Using the lens of the South African Constitutional Court - internationally renowned as a pioneer court on social rights - Engaging with Social Rights focuses on the Court's more recent decisions, comparing and contrasting these with the better-known earlier decisions … charting how the Court has used procedural approaches and remedies to navigate the kinds of separation of powers concerns … that typically preoccupy courts in crafting their social rights adjudication doctrine and practice. Highlighting the potential of the Court's procedural focus - especially the meaningful engagement remedy - in opening up space for democratic participation in the context of acknowledged failures of electoral politics, [this book] provides a convincing and comprehensive account of the promise and pitfalls of social rights adjudication in South Africa.' Jackie Dugard, University of the Witwatersrand Law School 'Drawing upon his thorough knowledge of both South African case law and important social scientific analyses of the relation between courts and social change, Brian Ray offers valuable insights into how the South African Constitutional Court has developed a new mechanism for judicial encouragement of policies that advance social and economic rights. By connecting the doctrine of 'meaningful engagement' with broader accounts of courts and democratic politics, Ray makes an important contribution to comparative constitutional law as well as to the study of South African constitutional law.' Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School 'The South African Constitutional Court has received international acclaim for enforcing socio-economic rights provisions in their Constitution. Brian Ray's impressive, well-written, and learned book examines those cases and various views (criticisms and defenses) as well as the Court's most recent 'second wave' of such cases. He proposes novel and sophisticated theories on how the Court should handle competing concerns such as separation of powers, the incredible poverty the nation faces, and various political considerations. This book is essential reading for all those who wish to keep up with the latest developments in the socio-economic rights area.' Mark Kende, Director, Drake University Constitutional Law Center