economic and social rights, which are less developed, jurisprudentially, than their civil and political counterparts, highlighting a “paucity of normative resources on which the Court can draw in the interpretation of socio-economic rights or a clear purposive understanding of a transformative role of the Court in relation to socio-economic inequality”.88 Under proportionality analysis, the rights-granting clause is construed generously in favor of the claimant, who bears the onus of proving an infringement has occurred. Once made out, the onus of justification then shifts to the state. This general principle of construction accords readily with the observation of “rights-inflation” that is associated with proportionality more generally. In theory, a generous construction would lead to a broad acceptance of rights to access housing, health care, food, water, or education. One proponent of proportionality has suggested “the highest reasonable satisfaction” of the right in question could serve as the prima facie right.89 In contrast, under the present operation of reasonableness review, the interpretation of the right’s content is collapsed in an incremental, and context-driven inquiry. The Constitutional Court has interpreted the constitutional text as setting out no standalone 88 Dugard & Wilson, supra note 43, 229 (comparing this with “several centuries of history and a rich array of jurisprudence across a host of jurisdictions”; YOUNG, supra note 7 (discussing the “generational” idea between the different categories of rights). 89 Carlos Bernal, The Constitutional Adjudication of Positive Social and Economic Rights by Means of the Proportionality Analysis, in ESSAYS IN HONOUR OF ROBERT ALEXY (Martin Borowski, Stanley Paulson and Jan R. Sieckmann, eds., forthcoming) (proposing a standard of “highest reasonable level of satisfaction” to give content to the right.); Cf. MÖLLER, supra note 12 (discussing the steps involved in finding a right to feed pigeons). 20

Select target paragraph3