JUDICIAL DEFERENCE AND DEMOCRACY IN SOCIO-ECONOMIC RIGHTS CASES IN SOUTH AFRICA

Abstract

In this paper I present a problematisation of deference as a judicial strategy to account for institutional problems with judicial review in socio-economic rights cases. On the assumption that deference operates as an obstacle to effective judicial enforcement of socio-economic rights, I describe certain internal inconsistencies in its conception and use. In particular I point out that the democratic justification often offered for deference - that courts as unaccountable institutions defer to the democratically accountable branches out of concern for democracy - both reflects an impoverished conception of democracy and actively counteracts a more substantive conception of democracy, by confirming and legitimising political discourse that seeks to exclude broad participation in development-related decision making. I describe an alternative approach to take account of institutional problems in socio-economic rights-related judicial review that better accords with and affirms a broader vision of democracy. This approach would have courts both retain rather than relinquish judicial involvement in the resolution of issues that present them with institutional difficulties and actively involve in the resolution of such issues also social actors other than the state. I conclude by presenting a variety of possible judicial techniques through which this approach can be operationalised.

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