THEORIES finaal Q5 2/8/05 9:15 Page 1 View metadata, citation and similar papers at core.ac.uk Theories of brought to you by CORE provided by Stellenbosch University SUNScholar Repository he bulk of the contributions in Theories of Social and Economic Justice originated in a research project initiated by the Stellenbosch Institute for T Advanced Study (STIAS) in 2002. STIAS hosted a workshop in July 2004 in which researchers from Law, Economics,Theology and Sociology participated, and some of the contributions at the workshop were subsequently reworked into chapters for this book. In addition, colleagues, both in South Africa and abroad, who had not participated in the workshop but whose recently published Justice Social and Economic work on social and economic justice fitted in with the project extremely well, gave permission to re-publish their articles in the book. The book is based on the idea that the attainment of greater social and economic justice, specifically in the South African context, is strongly influenced by the implications and the coherence of various theories of social and Theories of economic justice. Furthermore, it is argued that the promotion and protection of social and economic justice need to be approached from different theoretical Social and Economic perspectives when considering different practical circumstances, contexts and dilemmas. One theoretical size simply does not fit all, as far as social and Justice economic justice is concerned.The range of theoretical approaches represented in this book – legal, economic, theological and sociological – is testimony to the truly cross- and multi-disciplinary nature of the contributions. Apart from leading South African scholars in Law, Economics, Theology and Edited by Sociology, four contributions from American academics are included: Professors Gregory Alexander (Cornell Law School),William Forbath (University of Texas), AJ van der Walt Lucy Williams (Northeastern University), and Ross Zucker (Lander College). AJ van der Walt is professor in the Faculty of Law at Stellenbosch University Walt der AJ van and author of Constitutional Property Clauses: A Comparative Analysis (1999) and Constitutional Property Law (2005). He is also a co-editor, with H Botha and J van der Walt, of Rights and Democracy in a Transformative Constitution (2004, AFRICAN SUN MeDIA). heories of T and Economic Social Justice A Research Project of the Stellenbosch Institute for Advanced Study The Stellenbosch Institute for Advanced Study (STIAS) is a high-level research institution dedicated to keep Africa at the forefront of inter- national scientific developments. It facilitates innovative and inter- disciplinary research on issues that are of special relevance to the continent. It does so by inviting leading researchers from all over the world to work in close interaction with their counterparts from Africa. By including younger researchers in its projects, it contributes to the development of a next generation of scholars. Website: http://academic.sun.ac.za/stias/ Theories of Social and Economic Justice edited by AJ VAN DER WALT Professor, Faculty of Law, Stellenbosch University SUN PRESS is a division of AFRICAN SUN MeDIA, Stellenbosch University’s publishing division. SUN PRESS publishes academic, professional and reference works in electronic and print format. This publi- cation may be downloaded or ordered directly from www.sun-e-shop.co.za. Copyright permissions William Forbath ‘A not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present‘ first appeared in (2004) 39 Tulsa Law Review 597-638. © W Forbath and Tulsa Law Review. Reprinted here (with minor editorial changes) with the kind permission of W Forbath and Tulsa Law Review. Sandra Liebenberg ‘The Value of Human Dignity in Interpreting Socio-Economic Rights‘ first appeared in (2005) 21 South African Journal on Human Rights 1-31. © S Liebenberg and Juta & Co, publishers of SAJHR. Reprinted here (with minor editorial changes) with the kind permission of S Liebenberg, I Currie (editor of SAJHR) and Juta & Co. Charles Ngwena ‘The Historical Development of the Modern South African Health-Care System: From Privilege to Egalitarianism‘ first appeared in (2004) 37 De Jure 290-312. © C Ngwena. Reprinted here (with minor authorial and editorial changes) with the kind permission of C Ngwena and De Jure, the editor of De Jure and Lexis-Nexis Butterworths. Theunis Roux ‘Pro-Poor Court, Anti-Poor Outcomes: Explaining the Performance of the South African Land Claims Court‘ first appeared in (2004) 20 South African Journal on Human Rights 511-543. © T Roux and Juta & Co, publishers of SAJHR. Reprinted here (with minor editorial changes) with the kind permission of T Roux, I Currie (editor of SAJHR) and Juta & Co. Lucy Williams ‘Beyond Labour Law’s Parochialism: A Re-Envisioning of the Discourse of Distribution’ first appeared in J Conaghan, RM Fischl & K Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) Oxford University Press 93-114. © L Williams and Oxford University Press. Reprinted here (with minor editorial changes) with the kind permission of L Williams, J Conaghan, RM Fischl and K Klare and Oxford University Press. Published by SUN PRESS, a division of AFRICAN SUN MeDIA, Victoria Street, Stellenbosch 7600, South Africa www.africansunmedia.co.za All rights reserved. No part of this book may be reproduced or transmitted in any form or by any electronic, photographic or mechanical means, including photocopying and recording on record, tape or laser disk, on microfilm, via the Internet, by e-mail, or by any other information storage and retrieval system, without prior writ- ten permission by the publisher. First edition 2005 ISBN 1-919980-82-2 Cover design by Laura Oliver Typesetting by Felini Studio Set in 10 on 12.5 pt Sabon Printed and bound by US Printers, Ryneveld street, Stellenbosch 7600 Contents PREFACE 1 GREGORY S ALEXANDER 6 Socio-Economic Rights in American Perspective: The Tradition of Anti-Paternalism in American Constitutional Thought DANIE BRAND 17 The ‘Politics of Need Interpretation’ and the Adjudication of Socio-Economic Rights Claims in South Africa STAN A DU PLESSIS 37 New Tools for the Constitutional Bench FANIE DU TOIT 56 Social Justice and Theological Method WILLIAM FORBATH 72 A not so Simple Justice: Frank Michelman on Social Rights, 1969 – Present DERIK GELDERBLOM 108 The Just Community: Emile Durkheim on Liberalism and Society NICO N KOOPMAN 128 Theology and the Fulfilment of Social and Economic Rights: Some Theoretical Considerations SANDRA LIEBENBERG 141 The Value of Human Dignity in Interpreting Socio-Economic Rights ELSABE LOOTS 168 The Fiscal Implications of Social and Economic Justice: An Overview of the Changing Theoretical Framework CHARLES NGWENA 179 The Historical Development of the Modern South African Health-Care System: From Privilege to Egalitarianism THEUNIS ROUX 199 Pro-Poor Court, Anti-Poor Outcomes: Explaining the Performance of the South African Land Claims Court DIRKIE J SMIT 225 On Social and Economic Justice in South Africa Today: A Theological Perspective on Theoretical Paradigms LUCY A WILLIAMS 239 Beyond Labour Law’s Parochialism: A Re-Envisioning of the Discourse of Redistribution ROSS ZUCKER 256 Opening the Door to More Equality BIBLIOGRAPHY 291 CASES 309 LEGISLATION AND POLICY DOCUMENTS 312 INDEX 314 Preface The bulk of the contributions that make up this book originated in a research project initiated by the Stellenbosch Institute for Advanced Study (STIAS) in 2002. The Director of the Institute, Bernard Lategan, asked me whether I would be interested in running a research project with STIAS; I proposed a project on Theories of Social and Economic Justice, which was accepted; and the result was that STIAS hosted a workshop in July 2004 in which researchers from Law, Economics, Theology and Sociology participated. One distinguished participant was a STIAS Research Fellow at the time, Gregory S Alexander (Cornell Law School).1 The contributions at the workshop were of such a standard and the debate so interesting that everybody agreed that it would be useful to publish some of the papers resulting from the presentations. Participants were therefore invited to submit papers for publication. Johan van der Walt (University of Johannesburg) and Dr Tessa Marcus (National Research Foundation), both of whom attended the workshop, helped me decide which of the presentations were suitable for publication and made suggestions on possible amendments and revisions. The end result was a group of very interesting papers dealing with various theories of social and eco- nomic justice. However, because of the fairly rigorous review process the selected contributions were just not quite substantial enough for a full-scale publication and I had to either supplement the selected papers or abandon the publication project. One or two of the participants published extended versions of their workshop presentations or related work in peer-reviewed journals and agreed to these articles being re-published here.2 To flesh out the intended publication I also approached a number of colleagues, both in South Africa and abroad, who had not participat- ed in the workshop but whose recently published work on social and economic justice fitted in with the project extremely well, and I asked them for permission to re-publish their articles and essays together with the ones selected from the workshop. They all graciously agreed, and the result