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).
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