Brian Ray, the Joseph Hostetler-Baker & Hostetler Professor at Cleveland State University’s Cleveland-Marshall College of Law, is writing a book that examines the South African Constitutional Court’s social rights decisions.
“Social rights require governments to provide for basic needs like food, water, housing and health care,” Ray said. “The South African Court has issued several pathbreaking decisions enforcing these rights in creative ways.”
He recently spent seven months in South Africa as a Fulbright Scholar, working with lawyers and social-rights advocates to see how these rights operate in practice.
Social rights are often called positive rights because fulfilling them requires the government to create programs and spend money.
“This poses a conundrum for democracy,” Ray said. “The open-ended commitment these rights create seems to provide broad license for courts to second-guess almost every aspect of democratic decision-making.”
Take the right to adequate housing in Section 26 of South Africa’s constitution, for example. “What happens if, after I’m evicted and become homeless, I sue my city, arguing that it has to provide me with temporary housing?” Ray said. “The city says that all its shelters are full and its budget is spent. Can the court ask about the entire housing budget? What about the money spent on parks or a stadium? Or even tax rates? There’s no obvious end to the court’s inquiry.”
One promising solution the South African Court has developed is to require that the government “meaningfully engage” with poor communities, according to Ray.
“These questions have broader implications for debates in the U.S. and other countries over the relationship between constitutions and democracy, and whether constitutional rights can really change societies,” he said.
For more on Ray’s work, check out the CSU Office of Research’s Featured Researcher video series.