2008]
The Minimum Core of Economic and Social Rights
133
democracies.107 The “last resort” righ ts of democratic par ticipation (which is
“preservative of all rights,”108 whereas life is “f oundational to all rights”) are
important in guiding the definition of economic and social rights. This
demands consideration of a competing interpretation of the normative essence
of the minimum core, whic h engages more explicitly with the values behind
the rights.
B.
A Value-Based Core: Dignity, Equality, and Freedom
A value-based core goes further than the “basic needs” inquiry by
emphasizing not what is strictly required for life, but rather what it means to
be human. There is, of course, a c
onnection between these teleological
theories and those related to life, especially the most expansive conceptions of
life, which seek to imbue human life
with a s pecial meaning and gi ve
substance to the right to live as a human being. 109 Nonetheless, I distinguish
the value-based core by its more pointed emphasis on human dignity, equality,
or freedom. This Section focuses on how human dignity, a value that arguably
represents the reigning ideology
of both human rights and liberal
constitutionalism, substantiates the minimum core.110
The value of dignity evokes the indivi dual’s claim to be treated with
respect and t o have one’ s intrinsic worth recogni zed and has origins in
Christian natural law, Kan tian philosophy, and more existential theories of
personal autonomy and self-determination. 111 Dignitarian interpretations of
rights inform much of the canon of in
ternational human rights, from the
Universal Declaration of Human Rights onwards, 112 including post-World
107. AMARTYA SEN, DEVELOPMENT AS FREEDOM 152-53 (1999) (criticizing the conception of
development that proceeds without attention to civil and political rights). Neither, might we add, does
genocide. PETER UVIN, AIDING VIOLENCE: THE DEVELOPMENT ENTERPRISE IN RWANDA (1998)
(criticizing the development community’s positive assessment of Rwanda’s development, on the basis of
traditional indicators, leading up to the genocide of 1994).
108. See Frank Michelman, Welfare Rights in a Constitu tional Democracy, 3 W ASH. U. L.Q.
659, 677 (1979) (providing a needs-based theory of m inimum welfare, determinable by social, political,
economic, and cultural context). For a current application to South Africa, see André van der Walt, A
South African Reading of Frank Michelman’s Theory of Social Justice, in RIGHTS AND DEMOCRACY IN A
TRANSFORMATIVE CONSTITUTION 163, 167-96 (Henk Botha, André van der W alt & Johan van der W alt
eds., 2003) (contrasting Michelman’s “needs-based theory” with “traditional rights-based theory” and
the emphasis on the values of either property, procedural fairness, or equality).
109. E.g., S v Makwanyane 1995 (3) SA 391 (CC) at 506 (S. Afr.) (“[I]t is not life as m ere
organic matter that the [Interim] Constitution cherishes, but the right to human life: the right to live as a
human being, to be part of a broader community, to sh are in the experience of humanity . . . . The right
to life is m ore than ex istence—it is a right to be treated as a hum an being with dignity . . . .”). For
making the sam e connection from the opposite angle, in affir ming access to social secu rity for noncitizens, see Khosa v Minister of So cial Development 2004 (6) SA 505 (CC) at 530 (S. Afr.) (“[T]he
basic necessities of life [m ust be] access ible to all if it is to be a so ciety in which hum an dignity,
freedom and equality are foundational.”).
110. LOUIS HENKIN, THE AGE OF RIGHTS 6-10 (1990).
111. E.g., EDWARD J. EBERLE, DIGNITY AND LIBERTY: CONSTITUTIONAL VISIONS IN GERMANY
AND THE UNITED STATES (2002); Oscar Schachter, Editorial Comment, Human Dignity as a Normative
Concept, 77 AM. J. INT’L L. 848 (1983).
112. Universal Declaration of Human Rights, supra note 19, pm bl.; cf. American Declaration
of the Rights and Duties of Man, OAS Res XXX, In ternational Conference of Am erican States, 9th
Conf., OAS Doc. OEA/Ser.L./V/1.4 Rev. (April 1948) (beginning with : “The Am erican peoples have
acknowledged the dignity of the individual . . . .” ; followed by preamble, beginning: “All men are born
free and equal, in dignity and in rights . . .”); African Charter on Human and Peoples’ Rights, art. 5, June
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