Social Rights & The Social Question- SA and Brazil

Question 1

How does Hannah Arendt see the political?

Answer 1

She sees the political as a denial of the social and thinks that everything that belongs to social and economic considerations should be left outside of the political reality. Arendt thinks that politics is the classic moment when action is not instrumentalized (ie for a purpose) and so is free action. (wtf?)

Question 2

Decision in Grootbloom.

Answer 2

• Weak review / reasonableness
• The court didn’t recognise an individual right on the claimant’s part, or any way of holding the government accountable to their duty.
• Court refused to define content and scope of social rights but insisted gov come up with programme which must help the poorest
• five years after, Grootboom died (age 37) without shelter.
• Decision has been praised as it views social rights as collective rights.

Question 3

What’s the issue with the progressive realisation of rights?

Answer 3

The issue with progressive is state can keep arguing that it is working towards it- this isn’t the same as a direct legal obligation to deliver a particular social right.

Question 4

Can absolute rights be conceived in terms of progressive realisation?

Answer 4

No, they’re either achieved or they’re not. You don’t slowly reduce torture, the duty not to torture is still being violated even if there’s only been one instance.

Question 5

Why were social rights constitutionalised in South Africa?

Answer 5

• Wealth in South Africa was distributed along racial lines
• fear a change in government meant that certain commitments would be abandoned, so enshrining them in the constitution helped to protect them.

Question 6

Which parts of the SA constitution codify social rights?

Answer 6

s26 (housing) and s27 (healthcare, food, water and social security)

Question 7

How are human rights limited in Europe?

Answer 7

Using proportionality, which weighs up the right against the state’s interest in infringing the right.

Question 8

Why does Arendt criticise Brown vs Topeka Board of Education?

Answer 8

• Arendt says that the government shouldn’t dictate to white parents & limiting segregation to private schools would make the right dependent on economic status.
• Doesn’t mention right of black parents to choose
• Thought desegregation was social, not political or constitutional & that black parents were trying to climb socially.

Question 9

Arendt on Marx

Answer 9

Arendt thought that Marx’s genius and theoretical error was framing the social question (ie poverty) in political terms- he understood poverty as a suppression of freedom. Arendt sees freedom as something that resides in the world, rather than something that is performed in the will.

Question 10

Which of Marx’s works address Arendt’s criticism of him?

Answer 10

In Marx’s “On the Jewish Question”, he addresses Arendt’s main criticism. he argues that “political” emancipation, or freedom, falls short of “human” emancipation by subjecting social labour to private property and stripping man of his status as a social being. Marx saw property as the rights of selfish man, separated from his community.

Question 11

TAC CASE

Answer 11

Minister for Health v TAC (SA)

• Reasonableness is still tempered at THOSE MOST VULNERABLE or THOSE POOREST and how they are affected. Allowing access to those in the poorest areas would have made the policy reasonable, court ordered the government to come up with a different plan to open up access to this drug.
• Impossible to give everyone access, even to a core service, immediately. All that is possible is that the state act reasonably to provide access to social and economic right on a progressive basis.
• Not transformative but realistic approach, and does not abide to economic considerations.

Question 12

Do reasonableness model of adjudicating social rights address poverty or substantial equality?

Answer 12

The reasonableness model, initially developed in Grootboom has led to a deferential approach that fails to provide an effective enforcement of social rights for individuals and groups living in poverty

Question 13

Why has the judicialisation of the right to health care caused controversy in Brazil?

Answer 13

• Supreme court interpreted healthcare as an individual right.
• Brazil benefits those who can afford to litigate, high concentration of “rights to medicines” actions in the richest areas of Brazil. The ten states with the highest HDI have generated 93.3% of cases, while the other seventeen have generated only 6.7%.
• these cases serve to entrench privilege and damage equality.

Question 14

What are Ferraz’s main contentions about the judicialisation of social rights?

Answer 14

Ferraz’s main contentions are (1) that courts misinterpret social rights in an absolutist and individualistic manner (2) this interpretation favours litigants (likely to have resources) over the rest of the population (3) Litigation is likely to result in reallocation thats favourable to the litigating minorities (4) Enhancing access to courts wouldn’t solve the problem.

Question 15

What does the constitutionalisation of social rights lead to ?

Answer 15

It leads to the judicialisation of rights. There’s a debate over how far the judicialisation should go, on a scale from procedural (weak- how the decision was made) review to substantive (strong- reasonableness/proportionality) review,
Ferraz thinks Grootbloom and TAC show courts can consider whether government decision was within the range of plausible meaning of the constitutional norm without dictating what should be done.

Question 16

Justiciability debate?

Answer 16

There’s a debate over how far judicialisation should go, on a scale from procedural (weak- how the decision was made) review to substantive (strong- reasonableness/proportionality) review.
Ferraz thinks SA cases Soobramoney, Grootbloom and TAC show courts can consider whether government decision was within the range of plausible meaning of the constitutional norm without dictating what should be done.

Question 17

Why does Ferraz think arguments about the legitimacy of constitutionalisation are moot?

Answer 17

Ferraz thinks that arguments about the legitimacy of constitutionalisation are moot unless we have established that it can work in practice and achieve good outcomes.

Question 18

Petition 1246 (Corediro, Duchenne Dystrophy)

Answer 18

Gov wouldn’t cover treatment cost of many times GDP. Court ordered them to provide and in doing so, the court put to rest idea of constitutional “programmatic”, “non-justiciable” norms, dismissed any concerns re scarcity as irrelevant and ordered the state to provide expensive treatment abroad.
Brazil’s right to health depends on allocating limited resources and competing health needs.

Question 19

Celso de Mello

Answer 19

Brazilian constitution sees right to health as akin to the right to life and so it cannot be limited by “a financial and secondary interest of the state”

Question 20

Will access to justice with regards to health improve for the poor in Brazil?

Answer 20

No there’s no real appetite for change. Judges in Brazil, as the highest paid public servants, have few incentives to change the division of resources- raising taxes to fund social rights would be unlikely to find support in the judiciary. Even if the poor in Brazil had effective access to courts and decided to litigate en masse to demand minimum social rights, there’s a lack of political will and no consensus on egalitarian measures. Ferraz ends by saying that the desire to eliminate poverty and inequality relies on political will to change the inegalitarian ethos that supports tax and spending policies.

Question 21

Arendt on Robespierre.

Answer 21

Arendt believes that the Declaration of the Rights of Man abandons freedom to the “powerful conspiracy of necessity and poverty”, Arendt disagreed with Robespierre’s stance that only what is left beyond whats necessary to maintain life can be owned as private property since it subjected welfare to necessity.

Question 22

What is freedom for Arendt?

Answer 22

Freedom is an action who’s purpose is contained in itself, so the point of acting freely, for Arendt, is acting freely. You act in a free way when no outside cause determines your action, and you don’t instrumentalize your action.

Question 23

How does Arendt see the autonomy of politics?

Answer 23

Arendt has a theory which describes the autonomy of politics. A philosophical basis of her approach is that there is a stark difference between freedom and necessity, between freedom and needs. This is the key building block of Arendt’s theory. If your needs aren’t met, you act out of necessity rather than freedom. Hegel takes the stance that freedom is derived out of necessity. Arendt thinks that real freedom is antithetical and incompatible with necessity. Arendt thinks if you are starving then you cannot act freely.

Question 24

What is plurality for Arendt?

Answer 24

Plurality is right is about singular individuals appearing in the public sphere and therefore acting in this way in concert, as a moment of freedom. This form of action should not be determined by external factors. Plurality, the distinction between MAN and MEN, is, for Arendt, the entry point of the political; man only becomes political when man is men. Arendt supports a genuine politics of plurality and equality, unburdened by links to the social.

Question 25

Should we use political means to end poverty?

Answer 25

Arendt saw attempts to use political means to end poverty as futile and dangerous.
Christidoudlos is sceptical if the price for Arendt’s politicial engagement is the abandonment of social justicse. He sees the political sphere as devoid of meaning or purpose once it has been stripped of the social. For him, it is the overlaps between spheres that give life meaning, i;e politicsl pursuit of economic objectives possible in the name of social goals.Drawing boundaries between the social and political are a disaster for people who find their opportunities in life scarificed to the false necessities of market.

Question 26

Christodoulos on Arendt

Answer 26

Christidoudlos is sceptical if the price for Arendt’s political engagement is the abandonment of social justice. He sees the political sphere as devoid of meaning or purpose once it has been stripped of the social. For him, it is the overlaps between spheres that give life meaning, i;e political pursuit of economic objectives possible in the name of social goals. Drawing boundaries between the social and political are a disaster for people who find their opportunities in life sacrificed to the false necessities of market.

Question 27

How are social rights in South Africa qualified?

Answer 27

The rights are qualified by the provision
that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of these rights.

Question 28

Soobramooney v Minister for Health

Answer 28

• First case of new SA Constitutional Court
• ## Constitutional court found that social and economic rights were to be defined in light of available resources.

Question 29

Does constitutionalising social rights promote social justice- Neoliberals vs Social Democrats?

Answer 29

Neoliberals have argued against constitutionalisation and think the goods given by social rights (ie housing, healthcare) should be provided by the market. Social democrats oppose this free-market ideology and believe that constitutionalising social rights will produce social justice.

Question 30

Difference between rights enforcement in Brazil and South Africa ?

Answer 30

In South Africa, courts don’t make distributive judgements but pass them back to parliament (weak review), in Brazil all judges (not just supreme court) can order rights are provided on the spot (strong review)