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2011

Law Faculty Articles and Essays

Human Rights Law

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Proceduralisation's Triumph And Engagement's Promise In Socio-Economic Rights Litigation, Brian E. Ray Jan 2011

Proceduralisation's Triumph And Engagement's Promise In Socio-Economic Rights Litigation, Brian E. Ray

Law Faculty Articles and Essays

Three of the Constitutional Court's socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfill their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend - an aspect reflected in the Court's emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly developed …