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基本説明
New in paperback. Hardcover was published in 2007. Why is it that violation of socio-economic rights are treated with less urgency than violations of civil and political rights?
Full Description
This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote?
Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health-care. This book seeks to provide a sustained argument for placing renewed emphasis upon socio-economic rights in the fight against desperate poverty. It utilizes a combination of political philosophy, constitutional law, and public policy in its focus on the right to food, to housing, and to health-care.
Part I involves the development of a philosophical theory of rights that provides a common normative foundation for both civil and political rights and socio-economic rights. This theory involves developing an understanding of value that recognizes individuals have fundamental interests of differing levels of urgency. It also involves drawing an important distinction between conditional rights that flow purely from a normative focus on the equal importance of individuals and unconditional rights that involve competing normative and pragmatic considerations. A general theory of judicial review is also put forward that provides a justification for judicial involvement in the enforcement of socio-economic rights.
Part II then considers the implications of this general philosophical theory for the interpretation and enforcement of socio-economic rights in law. The focus of this more applied discussion is upon South Africa, where entrenched, directly justiciable socio-economic rights are expressly protected in the Constitution. The 'reasonableness' interpretive approach adopted by South Africa's Constitutional Court is critiqued and a modified version of the 'minimum' core approach proposed as the leading alternative. The latter approach requires priority to be given to the worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests of individuals. It also requires concrete steps to be taken towards realizing a higher level of provision that guarantees individuals the necessary conditions for realizing a wide range of purposes. This approach is also shown to have important policy implications both for developing and developed countries and can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.
Contents
Preface ; Foreword ; Introduction ; 1. Towards a Thin Theory of the Good ; Introduction ; Value and Point of View ; Nussbaum and the Notion of a Human Life ; Rawls and the Concept of the Person ; Drawing Fact and Value Together: Experience and Purpose ; In Defence of the Proposed Theory of Value ; Judgments of Priority ; Conclusion ; 2. The Justification of Fundamental Rights ; Introduction ; The Presuppositions of Agency and Fundamental Rights ; Nagel's Strategy: Impersonal and Personal Reasons ; Political Communities and the Justification of Fundamental Rights ; Objections ; Conclusion ; 3. Determining Our Unconditional Obligations ; Introduction ; Unanswered Questions About the Content of Rights ; Conditional and Unconditional Rights ; Translating Conditional Rights into Unconditional Rights ; The Assignment of Duties ; The Overall Decision Framework ; Conclusion ; 4. Justifying the Judicial Review of Fundamental Rights ; Introduction ; Theories of Judicial Review ; Disagreement, Rights, and Judicial Review ; A Thin Rights-Based Theory of Judicial Review ; Reaching Optimal Decisions Concerning Fundamental Rights: The Judiciary or the Legislature? ; Socio-Economic Rights and Judicial Review ; Conclusion ; 5. Judicial Review in Practice: The Reasonableness Approach and its Shortcomings ; Introduction ; Constitutional Interpretation in South Africa ; Grootboom: Reasonableness and the Minimum Core ; Treatment Action Campaign: Reducing Rights to Reasonableness ; An Alternative Reading of the Jurisprudence? ; Khosa: Reasonableness and the Confusion of Scope and Content ; Conclusion ; 6. Political Philosophy in Action: Developing the Minimum Core Approach to Socio-Economic Rights ; Introduction ; Linking Political Philosophy and Legal Doctrine ; The Case for a Minimum Core Approach ; Objections to the Minimum Core Approach ; The Notion of Priority and the Minimum Core ; Resources, Impossibility, and Rights ; The Availability of Resources ; Conclusion ; Conclusion: Implications for Policy in South Africa and Beyond ; The Right to Food in the United States, India, and South Africa ; The Right to Adequate Housing in the United Kingdom, India, and South Africa ; Conclusion ; Bibliography ; Index
