168 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 33: 113 core contains the incomme nsurable values whic h always trump other considerations except in catastrophic instances; the peripher y remains susceptible to limitation by considerations of economic or social policy.315 While this intransigence is arguab ly the concept’s most significant contribution—enabling rights advocates to put aside th e costs and benefits of economic analysis and its focus on efficiency in order to ensure minimal material protections—it is, according to many of its critics, its weakest attribute. For these opponents, the only chance of success for taking economic and social rights seriously comes about not by introduc ing the false barrier of incommensurability, but by em phasizing the cost consid erations that go into all rights.316 In this view, rights do not lose their strength if they include social and economic considerations in their ve ry definition, but become manageable tools for balancing dif ferent, and oftentimes differently weighted, considerations.317 Whether a core formulation meets the halfway point between outright trumping and an informed balancing by abandoning the incommensurability of the full right while retaining a minimalist commitment depends upon our ability to establish a defi nite minimal content. An d as I have argued, the Essence Approach is not ab le to establish this be cause of its inability to accommodate disagreement. This theoretical conundrum is reflect ed in practice. For example, the interim South African Constitution, li ke the German Basic Law, which indirectly gave rise to t he concept, commanded that a limitation not “negate the essential content of the right in question.” 318 After uncertainty reigned on how to apply this provision, 319 the certified constitution dispensed with its “essential content” caveat. Like many other courts around the world, the South African Constitutional Court has adopted the formula of balancing and proportionality to justify limitations.320 This occurs not at the level of the right itself, but rather at the level of balancing, which admits utilitarian considerations. The revision of this cl ause has not pr evented commentators from suggesting a relationship between the minimum core concept and the COLUM. L. REV. 2121, 2148-50 (1990) (presenting a hierarchy behind incommensurability and pointing to criticisms). 315. Frederick Schauer, Commensurability and its Co nstitutional Consequences, 45 HASTINGS L.J. 785, 792 (1994) (noting that those who view indi vidual rights as absolu tist claims against the interests of the majority appear to rely on an incommensurability of values). 316. HOLMES & SUNSTEIN, supra note 273, at 99. For a criticism, see Jonathan M. Barnett, Rights, Costs, and the Incommensurability Problem, 86 VA. L. REV. 1303, 1323-27 (2000). 317. For a trans lation of co nstitutional rights no rms into “op timization requirements,” see ALEXY, supra note 118, at 47-48. 318. S. AFR. (Interim) CONST. 1993 s. 33. 319. These challenges were recogn ized by the South African Constitutional Court in th e context of the right to life. S v Makwanyane 1995 (3) SA 391 (CC) at 446 (S. Afr.) (“It seems to have entered constitutional law through the provis ions of the Germ an Constitution . . . . The diffi culty of interpretation arises from the uncertainty as to what the ‘essential content’ of a right is, and how it is to be determined.”). The Constitutional Court noted tha t the core f ormulation was also inc luded in the Namibian and Hungarian constitutions. Id. 320. For the leading exam ination, see id. at 436, which sets out a test under the lim itations clause (s. 33) of the Interim Constitution, which is said to apply with equal force to S. AFR. CONST. 1996 s. 36. See IAIN CURRIE & JOHAN DE WAAL, THE BILL OF RIGHTS HANDBOOK 177, 178-85 (5th ed., 2005).