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 Periodical article |
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| Title: | Rights, the public and the South African constitution: civil society and the performance of rights |
| Author: | Malan, Naudé |
| Year: | 2008 |
| Periodical: | Anthropology Southern Africa |
| Volume: | 31 |
| Issue: | 1-2 |
| Pages: | 58-69 |
| Language: | English |
| Geographic term: | South Africa |
| Subjects: | social and economic rights social security constitutions civil society philosophy of law |
| Abstract: | The concept of rights holds considerable dominion over the discourses of the State and the public. This situation has left us unable to comprehend, police and support forms of 'non-State public action' as relevant to rights. This article discusses the relevance of rights for non-State public action by civil society, and develops a framework within which the right to have access to social security may be made justiciable for civil society actors. The article proposes a performative model of rights that places a duty on the State to respect social action that upholds rights. It interprets the South African Constitution to clarify this model of rights by drawing on the legal tradition of 'transformative constitutionalism' (Karl E. Klare, 1998), the notion of a constitutional dialogue, and an interpretation of, amongst others, the horizontal application of rights, the justiciability of socioeconomic rights, the 'rules of standing' in the South African Constitution (s 38) and the phrase 'access to ...'. This allows for the incorporation of autochthonous action, development and welfare in the construction of the meaning of rights. The article concludes with a discussion of the normative requirements such a project would imply, and the questions that need to be addressed by social and legal scholarship in this conception of rights. Bibliogr., notes, ref., sum. [Journal abstract] |
