Saturday, November 29, 2008

Saturday Evening Review

This week's article is by Marius Pieterse, an Associate Professor of Law at the University of Witswatersrand, Johannesburg, South Africa, published in the South Africa Journal of Human Rights.

Images_4 Entitled Indirect Horizontal Application of the Right to Have Access to Health Care Services, the article provides a compelling argument about the relationship between health care and constitutional rights, a subject that has been preoccupying me since the "conversation" I moderated as announced on the ConLawProf blog here.  Professor Pieterse's argument, however, is not simply that health should be a constitutional right; the South African Constitution in section 27(1) explicitly provides the right of everyone to have access to health care services.  Instead, Pieterse is taking the next step in a constitutional law scheme that not only guarantees socio-economic rights such as "health care" but also eschews the state action doctrine, so that private parties are also responsible for ensuring "rights."  Yet despite the progressiveness of the SA Constitution, it is subject to judicial interpretation and "reality" - - - in this schema, "common law" doctrines such as medical malpractice have constitutional implications.

As Pieterse argues in his conclusion:

I believe that there is significant unexplored potential for the actualisation of socio-economic rights through their indirect horizontal application. This is so, first, because of the fairly extensive body of common law principles applicable to the doctor-patient relationship and other ‘special relationships’ from which socio-economic obligations may flow. These rules often present a detailed and context-sensitive legal  framework for the elaboration and enforcement of private socio- economic obligations and allow for the granting of effective remedies to individuals whose interests have been adversely affected by other private entities’ non-compliance with these obligations. In many instances, the current state of common law already gives effect to constitutional socio-economic guarantees in this respect, or requires only minimal developments or shifts in application in order for it to do so. Secondly, South African courts are likely to be more comfortable with the evaluative and remedial paradigms associated with common law development than with the direct application of socio-economic rights. This is because South African legal culture, like legal cultures in most liberal democracies, tends to be skeptical of direct judicial involvement in socio-economic matters but accepts the judicial development of common law rules, in accordance with prevailing societal morality, as uncontroversial. Common law therefore not only offers a wide array of potential remedies that may amount to adequate reparation for  infringements of socio-economic rights, but also provides the ideal  environment for an exploration of their horizontal dimensions.

.... the legal consequences of justiciable  socio-economic rights may extend beyond the effects of asserting concrete, positive claims against states in public law litigation. Since meaningful access to socio-economic amenities is often dependent on the assertion of and compliance with socio-economic claims within private relationships, the actualisation of justiciable socio-economic rights also requires the transformation of those aspects of private law that regulate such relationships. Moreover, since it cannot be denied that the effects of poverty and associated socio-economic deprivation transcend the public and private spheres, it is essential that the legal tools occupied with the alleviation thereof do the same.


The article appears at 23 South Africa Journal of Human Rights 157 (2007) and is available on the SAJHR website for issue 23:1 here.  Definitely worth reading as we think about a "right" to health care in the US.


Comparative Constitutionalism, Family, Scholarship, Theory | Permalink

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