Socio-economic rights, political action, judicial conceptions of democracy and transformation : South Africa and Nigeria
universalism of legal subjects, but in Africa that would apply only in the urban environment; the political parties of liberal democracy do not make sense in societies where associational life is rudimentary and interest groups remain essentially primary groups. 6 There is therefore need to fashion an alternative model of democracy to fit the cultural context and contextual political arrangements of Africans in Africa. It is as a result of this that several African scholars/political theorists have already put forward their views of what the appropriate 1 This position is also supported by Dahl. See R A Dahl On democracy (1998) 9 – 10. 2 C Ake ‘The unique case of African Democracy’ (1993) 69 (2) International Affairs 239 at 243 (Emphasis supplied). 3 A An-Naim ‘Religion, the state and constitutionalism in Islamic and comparative perspectives’ (2008-2009) 57 Drake Law Review 829. 4 Y Mokgoro and S Woolman ‘Where dignity ends and ubuntu begins: An amplification of, as well as an identification of a tension in, Drucilla Cornell’s thoughts’ in S Woolman & D Bilchitz (eds) Is this seat taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution (2012) 241 at 242 – 243. 5 To borrow An-Naim phrase. See A An-Naim ‘The legal protection of human rights in Africa: How to do more with less’ in A Sarat and T R Kearns (eds) Human rights: Concepts, contests and contingencies (2001) 89 at 102 – 103. 6 C Ake ‘The unique case of African Democracy’ (1993) 69 (2) International Affairs 239 at 243.
CONSTITUTIONAL INTERPRETATION AND SOCIAL CHANGE: YOU CAN'T ALWAYS GET WHAT YOU WANT (NOR WHAT YOU NEED)
The author argues that the Canadian Charter of Rights and Freedoms is unlikely
to provide an efficacious means for bringing about progressive social change. He notes that the various rights and freedoms articulated in the Charter can be logically interpreted to require a variety of progressive programs, but argues that it is unlikely the courts will give them such content. The reasons for this have to do with the structure of rights discourse, the inaccessibility of the courts to most potential litigants,
and the attitudes and beliefs of judges. According to the author, lawyers and scholars who see a progressive potential in the Charter tend to downplay these factors.
Lochner's Legacy
The received wisdom is that Lochner was wrong because it involved “judicial activism”: an illegitimate intrusion by the courts into a realm properly reserved to the political branches of government. This view has spawned an enormous literature and takes various forms. The basic understanding has been endorsed by the Court in many cases taking the lesson of the Lochner period to be the need for judicial deference to legislative enactments. 
The principal purpose of this essay, descriptive in character, is to understand Lochner from a different point of view. For the Lochner Court, neutrality, understood in a particular way, was a constitutional requirement. The key concepts here are threefold: government inaction, the existing distribution of wealth and entitlements, and the baseline set by the common law. Governmental intervention was constitutionally troublesome, whereas inaction was not; and both neutrality and inaction were defined as respect for the behavior of private actors pursuant to the common law, in light of the existing distribution of wealth and entitlements. Whether there was a departure from the requirement of neutrality, in short, depended on whether the government had altered the common law distribution of entitlements. Market ordering under the common law was understood to be a part of nature rather than a legal construct, and it formed the baseline from which to measure the constitutionally critical lines that distinguished action from inaction and neutrality from impermissible partisanship. This understanding of the Lochner period is faithful to what the Court said when it both engaged in and abandoned Lochner-like reasoning, and it points to an important element in the Lochner Court's approach, one that has little to do with an aggressive judicial role in general.