1,721,060 research outputs found
La distinction entre contrôle concret et contrôle abstrait en Afrique du Sud
No full textBilchitz David. La distinction entre contrôle concret et contrôle abstrait en Afrique du Sud. In: Annuaire international de justice constitutionnelle, 29-2013, 2014. Pluralisme des garanties et des juges et droits fondamentaux - Les droits culturels. pp. 11-16
Recommended from our members
Corporate Obligations and a Business and Human Rights Treaty: a Constitutional Law Model?
No full textRecommended from our members
Putting Flesh on the Bone: What Should a Business and Human Rights Treaty Look Like?
No full textRecommended from our members
Does history make a difference? The role of history in the interpretation of socio-economic rights in South Africa
No full textThis chapter investigates the role historical context plays in the interpretation of socio-economic rights in South Africa. It begins by arguing that historical justice can provide both an independent justification for those rights as well as an important context in which to construct the content of these rights and their path to implementation. The chapter then focuses on the right to housing and then engages in a qualitative analysis of four seminal cases. The chapter finds that the South African Constitutional Court often expressly references South Africa’s history of injustice. Its reasoning relating to history appears clearly to have influenced the approach it adopts towards interpreting the obligations that flow from these rights as well as the remedies it orders. The analysis highlights that, following from South Africa’s negotiated transition, there is a clear preference expressed by the Court for individuals and institutions to resolve the problems between them through a process of continuing negotiation. There are also obligations placed on both the state and private parties to address the legacies of the past in an approach that appears aimed very much at restoring relationships that had been ruptured between people in the society. Addressing historical wrongs—as a form of transitional justice—thus has concrete implications in the present for the approach adopted towards socio-economic rights and thus the form of distributive justice enacted in South African society
Recommended from our members
The Evolution of the Separation of Powers in the Global South and the Global North
No full textRecommended from our members
Towards a defensible relationship between the content of socioeconomic rights and the separation of powers: conflation or separation?
Get PDFOne of the most controversial topics in the debates surrounding socio-economic rights concerns the appropriate role of judges in adjudicating upon disputes surrounding them. One response has been to modify the content of socio-economic rights in order to give effect to a modest conception of the judicial role in their adjudication. This chapter examines what the appropriate relationship should be between institutional concerns relating to the separation of powers and a determination of the content of fundamental rights. First, the paper illustrates the manner in which separation of powers considerations have influenced the ‘reasonableness’ approach to the adjudication of socio-economic rights that has been adopted in the jurisprudence of the South African Constitutional Court. Secondly, it is argued that the conflation of these two sets of concerns is unjustifiable both conceptually – where two incommensurable sets of issues are not adequately distinguished – and, normatively, in terms of the weakening of the entitlements that invariably results. Having argued against such a conflation, it is contended lastly that there is indeed a relationship between the two sets of issues. Centrally important to the argument will be the claim that we must distinguish reasoning relating to fundamental rights from reasoning relating to the obligations which flow from such rights. Institutional and agent-centred considerations are inappropriate when constructing the substance of a constitutional entitlement; they may legitimately enter into the picture when the concrete obligations flowing from such a right are under consideration. The primacy of fundamental rights entails that an understanding of their content is necessary in order to evaluate any reasons for the attenuation of the obligations flowing from them and the ‘separation of powers’ questions that may arise in this context. A substantive understanding of fundamental rights thus provides one key set of normative considerations that conditions the application of the separation of powers doctrine rather than the other way round
Recommended from our members
A chasm between ‘is’ and ‘ought’? A critique of the normative foundations of the SRSG’s Framework and the Guiding Principles
No full textRecommended from our members
Developing a conceptual framework for Global South comparisons: Colombian and South African contributions
No full textThis introductory chapter develops the conceptual framework of the book which focuses on three ideas and the relationship between them: transitional justice, distributive justice, and transformative constitutionalism. It seeks to highlight the relevance and importance of these concepts to comparisons of Global South societies and then explain why this framework is particularly apposite to comparing Colombia and South Africa. This is followed by a discussion of the book’s approach to addressing the challenges of conducting Global South comparisons, which naturally leads to an explanation and justification for the specific methodology adopted in the book. That methodology involves the identification of specific themes on which authors write chapters about Colombia or South Africa and then a joint reflection on what emerges from considering the comparison between them. Finally, this chapter outlines the different segments of the book and the themes around which the chapters are organised, and provides a brief outline of the key arguments made by the authors
Recommended from our members
The difference history makes: comparative reflections on socio-economic rights and historical consciousness in South Africa and Colombia
No full textWhat explains the differences in the approach of the two apex courts of South Africa and Colombia in relation to past injustice in their decisions on the right to housing? In Bilchitz’s chapter, in South Africa, there is an explicit engagement with historical injustice in the jurisprudence on the right to housing which has a real impact on how the Court constructs the content of the rights and the remedies granted. Correa Henao demonstrates that in Colombia, the Constitutional Court focuses on the present vulnerability of litigants in crafting legal doctrine and remedies with limited engagement as to how the current circumstances arose from past injustice. This chapter analyses possible reasons for these differences—these include the different histories of the two countries, a different set of goals they seek to attain, a divergent approach to the value of historical consciousness in transitional societies, and different conceptions of the role of judges in the two societies
Recommended from our members
The human rights obligations of business: a critical framework for the future
No full text- …
