Legal Theory of Economic Power: Implications for Social and Economic Development


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Implications for Social and Economic Development

I presume that the judicial enforcement of socio-economic rights would not amount to the constitutional imperative to improve quality of life and to free the potential of every citizen if the circumstances of the poor are not taken into consideration during litigation. If the assertion is true that the courts have rejected a jurisprudence of exasperation, it means that the courts have portrayed themselves virtually out of touch with the lived realities of the poor.

It is unreasonable that the Court failed to take the desperate circumstances of the litigants into consideration or to acknowledge the fact that they simply could not afford to pay for extra quantities of water. Approaching the case from the angle of exasperation, on the one hand, would probably have enabled the Court to undertake an empirical scrutiny of the deplorable socio-economic circumstances of the litigants.

According to this logic it would have been appropriate for the Court to hold the City a bit more accountable - probably to apply a measure of exasperation, considering that the Phiri residents were acutely poor and could not afford to pay for additional consumption of water.

The Constitutional Court has also established that the enforcement of socio-economic rights is context-specific. The context in the Mazibuko case offered an opportunity for the Court to combine the jurisprudence of accountability with that of exasperation, but it failed to do so.

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It was possible for the Court to accomplish this without having to defer to the state to determine the content of the right to sufficient water. I now turn to examine what this entails. The socio-economic rights enshrined in the South African Constitution impose obligations on the state to take reasonable legislative and other measures within its available resources to ensure their progressive realisation. It demands concurrent action.

If the state has simply taken legislative measures, it is the duty of the courts to test the reasonableness of the laws in relation to the purpose of the socio-economic rights in question. If the state cannot establish evidence of other measures, it falls within the interpretative duty and the broad remedial powers of the courts as custodians of the Constitution to determine what constitutes other measures.


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Interpreting this obligation in accordance with section 39 2 would require the courts to apply the rules of the common law where legislation remains silent about the rights in question. The enforcement of socio-economic rights is problematised by an inability to define their content. It requires considering the circumstances of the poor, which in turn means interpreting the rights provisions in a manner that addresses those circumstances.

The obligation imposed on the state to take other measures requires the courts, when adjudicating socio-economic rights, to consider the lived experiences of the poor. This duty may require the courts to compel the state, where perhaps it has taken only legislative measures, to also take other measures to address the dismal conditions of impoverished communities, which more often than not constitute the basis for litigation. Steinberg has argued that defining the content of socio-economic rights is typically a policy-making procedure and, thus, allowing the judiciary to perform that function stifles the constitutional conversation.

The role of the courts in the transformation process may thus entail compelling the state to explicitly define the content of each of the entrenched socio-economic rights upon which the courts may then be able to base their adjudication. The obligation to take other measures may also form the basis on which civil society organisations could formulate amicus curiae arguments in determining the content of socio-economic rights. The realisation of socio-economic rights through political strategies generally translates into the material things guaranteed by the rights.

I argue that, when the violation of a right is challenged in court, the result of positive adjudication should equally amount to entitlement to the same material things promised by the right in question. This may sound contrary to the principle of progressive realisation but, in effect, a positive judgment in my view implies that the adjudicated right has matured for immediate realisation.

The effective implementation of court orders therefore becomes imperative to ensure that adjudicated rights translate into material entitlements. By immediate realisation I mean, at least, taking the first steps to guarantee that the entitlement can then progressively be expected.

Interpreting the obligation to take other measures as a matter of giving content to socio-economic rights may therefore imply mandating the state to take such action that would respond to or result in entitlement to the tangible things that realisation of the rights would amount to.

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It means that, when the state defaults in this obligation, the courts are tasked to interrogate why other measures would not be taken and if not satisfied with the justification, to compel the state to take such other measures as mandated by the Constitution. This constitutes a pragmatic adjudication tool at the disposal of the courts to hold the state accountable for its socio-economic rights obligations.

Coomans argues that, when the core elements of a right are at stake in a case, a higher degree of justification should be required from the government to justify non-implementation, in which case it also becomes legitimate for a court to apply a more profound measure of scrutiny. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The state is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programmes implemented by the executive The programme must also be reasonably implemented.

Adjudicating on the basis of the obligation to take other measures may entail looking at the desperate circumstances of the poor. This may not overrule the possibility of the courts resorting from time to time to a jurisprudence of exasperation, if that is what it requires to remedy a situation.

This may significantly influence the formulation of policy or the allocation of budgets, but certainly does not allow the judiciary to take over the political function. It also does not grant the courts the escape route to defer on matters which it has a discretion to adjudicate upon. I illustrate these arguments in the analysis that follows. Modderklip then launched action requesting the Pretoria High Court to compel the state to enforce the order.

The orders required the state to pay compensation to Modderklip for the entire duration of the unlawful occupation, while the squatters were granted entitlement to remain on the land until an alternative arrangement for their resettlement was made by the state. The fact that poverty and homelessness still plague many South Africans is a painful reminder of the chasm that still needs to be bridged before the constitutional ideal to establish a society based on social justice and improved quality of life for all citizens is fully achieved.

The manner in which the Court approached this case mattered immensely in determining the outcome. If the Court had relied on accountability alone, probably by requiring the state to justify the reasonableness of measures taken, it might have had to return to the same decision it took in the Grootboom case. Five years after the Grootboom case, the state found itself in the Modderklip case unable to respond to the urgent housing needs of desperate squatters who had virtually nowhere else to go.

Firstly, overcrowded Daveyton could no longer contain them. Secondly, they were forcefully and arbitrarily evicted from state-owned land. Thirdly, they were convicted on criminal charges for trespassing and given a legal warning upon release not to return to the farm.

These notwithstanding, the squatters defied the odds and returned to continue their unlawful occupation of the Modderklip farm from which they were haunted with eviction. If the Court had relied on the jurisprudence of accountability, the state would obviously have been able to justify its action with a housing policy that it intended to pursue progressively but which, under the circumstances, could not adequately remedy the desperation of the squatters.

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The state overlooked the constitutional obligation to take other measures, but it turned out to be the most reasonable action as the Court was later to decide. This played an instrumental part in determining the vigour of scrutiny of the facts of the case. As a consequence of the type of jurisprudence the Court applied, which I argue amounted consciously or unconsciously to exasperation, the Modderklip case produced a far more transformative outcome than in the Mazibuko case, which the Court adjudicated on the basis of accountability.

In line with my earlier argument, the judgment resulted in direct entitlement to the material things promised by the section 26 right to have access to adequate housing. The Chief Albert Luthuli Extension 6 Township, constructed some 3,5 kilometres from the Modderklip site for relocation of the Gabon community, is reported to be a direct outcome of the judgment. The judgment created a significant precedent that has considerably advanced the right of access to housing. The decision in the Grootboom case required the state to have a reasonable housing policy that responds to the needs of the most desperate in society and that such a policy must provide at least temporary shelter for those with no access to land.

It appears that the courts needed another exceptional case to take the next logical step in securing the right to housing for people facing eviction. This step was to be taken in the Modderklip case. Envisaged transformation for South Africa, Richardson claims, will not be achieved by continuous nostalgia about a history and a socio-economic inheritance that remains scarred by the consequences of apartheid. I have shown how, through political intransigence, the state has in some instances not complied adequately with its socio-economic rights obligations, which has allowed the courts the latitude to require the state to justify its actions or in-action.

Consequently, Wilson notes that aspirations of that kind of a judiciary that will radically interpret the Constitution and moderate the law in a manner that gives the poor a greater armoury of rights to socio-economic resources has not inspired much hope.

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Interrogating the obligation to take other measures provides the opportunity for the courts to conceptualise a socio-economic rights jurisprudence that allows for more transformative outcomes. This commitment requires the courts not only to endeavour to showcase some institutional integrity in respect of the doctrine of separation of powers, but essentially to adopt a more compelling jurisprudence in holding the state to greater responsiveness to the plight of the poor.

I have shown how the application of the jurisprudence of accountability has had but minimal effect in terms of social transformation, while the application of the jurisprudence of exasperation has proven to produce more transformative outcomes. I argued that to avoid a jurisprudence of exasperation in favour of a jurisprudence of accountability is not only strategically miscalculated, but practically illogical and also detrimental to the enforcement of socio-economic rights. Courts are sometimes better placed to protect the socio-economic interests of the poor than the coercive arrogant majority who wield excessive political influence over government.

Sec 7 Constitution of the Republic of South Africa, Preamble to the Constitution. The game is about reciprocity and trust, because Player A must decide how much of the endowment to give to Player B in the hope of receiving at least the same amount in return.

Sen’s Capability Approach | Internet Encyclopedia of Philosophy

In the original experiment Berg et al. This finding confounds the prediction offered by standard economic assumptions. In human relationships, deception is often considered a violation of trust, while in standard economics, dishonesty can be seen as a natural by-product of actors with self-interested motives.

However, the BE perspective does not consider humans to be more honest; rather, it takes a more social-psychological perspective by showing that dishonesty is not just about tradeoffs between external incentives such as material gain and costs such as punishments. Dishonesty is the product of situations as well as both internal and external reward mechanisms, which often involves self-deception—the reframing of dishonest acts e. People typically value honesty, tend to have strong beliefs in their morality and want to maintain this aspect of their self-concept Mazar et al.

When moral reminders are used, however, this self-deception can be reduced, as demonstrated in laboratory experiments conducted by Mazar and colleagues. Behavioral research on individual decision making in social contexts often relies on experimental games. Along with behavioral decision theory, behavioral game theory is the second major theoretical area found in behavioral economics. Typically, these games endow participants with rewards e.

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This occurs over the course of one or more rounds of playing.

Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development Legal Theory of Economic Power: Implications for Social and Economic Development
Legal Theory of Economic Power: Implications for Social and Economic Development

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