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.
Social Democracy and the Limits of Rights Constitutionalism
Can rights constitutionalism operate as a social democratic restraint on private power? How should we assess this? Following renewed interest in social democratic legal theory, some propose developing more egalitarian forms of rights constitutionalism as a counterweight to overweening private power in the global economy. Such strategies follow a normative methodology, associated with liberal accounts of legality which emphasize the autonomy of law as an external means of social change. This can be contrasted with traditional social democratic accounts of law as an artifact produced through and in political struggle. This shift of focus to normative argument is at the expense of contextual diagnosis, which remains valuable in questioning whether constitutional strategies can restrain private power in the name of substantive equality. Rights constitutionalism, reflecting its classical liberal roots, continues to protect private power in important ways.; Two strategies, based in innovations in North American and European constitutionalism respectively, have been proposed to overcome this default. First, the Application to State Institutions (ASI) model seeks to extend the reach of constitutional application to include private actors, and; second the Application to Law (LAW) model seeks to extend the scope of rights by requiring all law to conform to constitutional guarantees, including equality. A sociologically grounded analysis of the comparative jurisprudence shows these models retain key elements of the classical liberal framework, such as the state-civil society distinction, and which have in practice militated against any significant democratization of private power.
The issue of state action/horizontal effect in comparative constitutional law
This article examines the horizontal effect of constitutional norms (or the “state action” problem) in several constitutional systems. It argues that the difficulty of the issue varies depending on two features of such systems, their structures and their ideological commitments. Systems with generalized and centralized constitutional courts will find the issue of horizontal effect easier than systems with specialized constitutional courts, and particularly systems with strongly federal arrangements. Systems with greater commitments to social democratic norms will find the issue easier than systems with weaker social democratic commitments. The article also examines ways of resolving the state action problem, either through substantive constitutional doctrine or through weak forms of judicial review as illustrated by the Grootboom decision of South Africa’s Constitutional Court. Liberal constitutions identify human rights that ought not be violated. But by whom? An important strand in liberalism focuses on creating political structures that simultaneously empower and limit governments. Put crudely, this strand leads constitutionalists to pay primary attention to the threats to human rights that government poses. Another strand takes the human rights themselves as a focus. It notes that corporations and nongovernmental actors can threaten human rights, too. Governments and corporations can discriminate on the basis of race; governments and corporations can fire employees for speech with which the employer disagrees. The two strands come together when one observes that the people or corporations exercising “private” power are actually exercising power conferred on them by laws creating and regulating market behavior. Thus, government is always somehow implicated in private decisions. What, though, are the constitutional implications of that observation? That is, is the way in which the government is implicated in decisions by private employers to discriminate and the like sufficient to place some duties on either