Adjudicating Social Rights: Minimum Core, Proportionality, Reasonableness Flashcards
Should we adjudicate economic and social rights? (Michelman)
Michelman says its remit of executive not judiciary. BUT Judge can’t substitute opinion for legislator’s, (with democratic mandate to make decisions) & must follow set procedure.
Should we adjudicate economic and social rights? (Fabre)
Fabre argues constitutionalising rights means the interest is important enough to legally disable citizens& legislature from enacting laws which violate these moral rights.
Should we adjudicate economic and social rights? (Tushnet)
Tushnet says courts already adjudicate ESR in their everyday application of private law
also thought courts using weak review would gain confidence and strengthen.
weak / strong review
Young suggests “weak” (doesn’t think weak/strong distinction helpful) review, as SA constitutional court
5 types of judicial review?
young
- Deferential review where courts defer to legislative/executive branches and only override legislation or policy in exceptional circumstances- may not always sufficiently protect rights
- Conversational review relies on dialogue, all three branches share interpretive role.
- Experimentalist review- dialogue isn’t limited to branches of gov. Courts try to correct power balances
- Managerial review- heightened review and detailed remedies, with ongoing supervision by the court.
- Peremptory review- legislation or policies are scrutinised then if necessary either overturned or words are read in to cure deficiencies.
Steps of proportionality analysis
Steps of proportionality analysis
- Is the measure based on legitimate aim- uncontroversial test of legality
- Suitability - ends vs means
- mustn’t be a less invasive way
- Public interest- Was individual’s right balanced against rights of society as a whole?
Two aspects of proportionality
(1) defensive aspect- uses proportionality to defend rights against limitations- this is the classic use of proportionality (2) creative aspect- proportionality is used as a tool to form content of a right which involves balancing various interests.
Contiades and Fotiadou argue (2) upgrades ESR to a shared narrative with civil and political rights.
Narrowing the review of proportionality
Narrowing the review of proportionality by not examining all the steps confines review to the examination of appropriateness.
For proportionality
- flexibility doesn’t hinder enforceability
- Allows judge to enforce rights w.out going beyond mandate
- imposes guidelines for justifying limiting rights
Against proportionality
- Seems weak, no rule-like protection
2. Pushes law-makers to give reasons, imposing constraints on legislature
WHAT IS REASONABLENESS
- Grootboom, its first ever case, was where the SACC began to develop its reasonableness-based approach
- reasonableness is a weak form of scrutiny focusing on procedure instead of substance.
- Grootboom states that the court considering reasonableness won’t enquire whether better measures could have been taken or money could be better spent. Grootboom links the obligation to attain the goal quickly and effectively with the availability of resources, but allows the legislator a wide discretion.
Grootbloom’s Reasonableness criteria
(1) Rationality/suitability of measures. Issue is that unless the aim is clearly defined, gov can argue a long-term aim to justify not satisfying immediate needs (2) Equality dimension, issue is everyones benefits can be reduced without breaching equality (3)Urgency- does it prioritise those in desperate need?- issue is how do we define urgency. Rationale behind reasonableness approach is that it requires gov to justify its actions.
Grootboom states that the court considering reasonableness won’t enquire whether better measures could have been taken or money could be better spent. Grootboom links the obligation to attain the goal quickly and effectively with the availability of resources, but allows the legislator a wide discretion.
factors affecting “reasonableness”
(a) allocates responsibilities/tasks to different spheres of gov (b)ensures sufficient money & manpower for project (c)is capable of achieving right (d) is reasonable in conception and implementation (e) is balanced and flexible (f) attended to crises (g) responds to needs of those in more urgent/desperate need (h) doesn’t exclude significant section of population (i) balances short/med/long-term needs (j) doesn’t require ideal program prior to implementing one that assists individuals (k) doesn’t discriminate unfairly.
Social minimum
“a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every state party.”-
- The bundle of resources a person needs to lead a minimally decent life in their society.
For social min
- Minimum core has threshold individuals mustn’t fall below without v strong justification, makes courts and gov prioritise those most in need, Strict test for a state claiming its unable to meet obligations due to lack of available resources: - every effort to use all resources at its disposition.
- courts are thought to be unsuited to determining distributive justice but can ensure basic needs related too a “decent life” are protected
- genuine democracies require social minimum as people only focus on politics when basic needs are satisfied
- Social minimums allow leaving power imbalance (ie relationship/ job) as community will afford them a min standard of living.
- Rawls’ A Theory of Justice- “veil of ignorance” of our position in society, what principles would we accept?
- Dworkin introduces the idea of a HYPOTHETICAL INSURANCE MARKET- where we insure against limited marketable talent/disability. The average person would likely want a level of insurance that’s enough to ensure a reasonable standard of living.
