David Bilchitz – författare

This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote? Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health care. This book seeks to provide a sustained argument for placing renewed emphasis upon socio-economic rights in the fight against desperate poverty. It utilizes a combination of political philosophy, constitutional law, and public policy in its focus on the right to food, to housing, and to health care. Part I involves the development of a philosophical theory of rights that provides a common normative foundation for both civil and political rights and socio-economic rights. This theory involves developing an understanding of value that recognizes individuals have fundamental interests of differing levels of urgency. It also involves drawing an important distinction between conditional rights that flow purely from a normative focus on the equal importance of individuals and unconditional rights that involve competing normative and pragmatic considerations. A general theory of judicial review is also put forward that provides a justification for judicial involvement in the enforcement of socio-economic rights. Part II then considers the implications of this general philosophical theory for the interpretation and enforcement of socio-economic rights in law. The focus of this more applied discussion is upon South Africa, where entrenched, directly justiciable socio-economic rights are expressly protected in the constitution. The current approach of the South African Constitutional Court to their interpretation and enforcement is considered and criticized primarily for failing to provide sufficient content to such rights. A modified version of the minimum core approach to socio-economic rights is proposed as an alternative way which is supported by the philosophical theory developed in the first part of the book. This approach requires priority to be given to the worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests of individuals. It also requires concrete steps to be taken towards realising a higher level of provision that guarantees individuals the necessary conditions for realising a wide range of purposes. This is also shown to have important policy implications both for developing and developed countries that can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.

Emerging from national pasts marred by violence, conflict, and injustice, South African and Colombian societies have sought to establish futures founded on equality, democracy, and constitutionalism. Transitional Justice, Distributive Justice, and Transformative Constitutionalism: Comparing Colombia and South Africa offers the first dedicated scholarly comparison of the two countries in relation to the intersecting ideas of transitional justice, distributive justice, and transformative constitutionalism. Featuring contributions by Colombian and South African authors, this volume richly examines each country from a range of thematic perspectives as the basis for deep reflection and comparison between them.Transitional Justice, Distributive Justice, and Transformative Constitutionalism brings together three interconnected concepts: the need for redress of past historical wrongs, the imperative to ensure fairness in the distribution of resources, and the commitment to law-governed social change mediated through a constitution. Part one explores innovative approaches to transitional justice that go beyond law, such as novel philosophical approaches to reconciliation, the use of art to address past wrongs, and the role of museums in memorialising the past. Part two considers one of the central components of transformative constitutionalism: socio-economic rights. It addresses the role of history in the interpretation of socio-economic rights and the procedural mechanisms that enable access to these rights. Part three looks at the development of legal structures designed to achieve both transitional and distributive justice in the areas of indigenous people's rights, procedural law, and international law.A timely work of innovative methodology and rare engagement between two constitutional democracies in the Global South, this title will be of interest to academics working in the fields of transitional justice, distributive justice, and transformative constitutionalism in Colombia and South Africa.

Emerging from national pasts marred by violence, conflict, and injustice, South African and Colombian societies have sought to establish futures founded on equality, democracy, and constitutionalism. Transitional Justice, Distributive Justice, and Transformative Constitutionalism: Comparing Colombia and South Africa offers the first dedicated scholarly comparison of the two countries in relation to the intersecting ideas of transitional justice, distributive justice, and transformative constitutionalism. Featuring contributions by Colombian and South African authors, this volume richly examines each country from a range of thematic perspectives as the basis for deep reflection and comparison between them.Transitional Justice, Distributive Justice, and Transformative Constitutionalism brings together three interconnected concepts: the need for redress of past historical wrongs, the imperative to ensure fairness in the distribution of resources, and the commitment to law-governed social change mediated through a constitution. Part one explores innovative approaches to transitional justice that go beyond law, such as novel philosophical approaches to reconciliation, the use of art to address past wrongs, and the role of museums in memorialising the past. Part two considers one of the central components of transformative constitutionalism: socio-economic rights. It addresses the role of history in the interpretation of socio-economic rights and the procedural mechanisms that enable access to these rights. Part three looks at the development of legal structures designed to achieve both transitional and distributive justice in the areas of indigenous people''s rights, procedural law, and international law.A timely work of innovative methodology and rare engagement between two constitutional democracies in the Global South, this title will be of interest to academics working in the fields of transitional justice, distributive justice, and transformative constitutionalism in Colombia and South Africa.

Emerging from national pasts marred by violence, conflict, and injustice, South African and Colombian societies have sought to establish futures founded on equality, democracy, and constitutionalism. Transitional Justice, Distributive Justice, and Transformative Constitutionalism: Comparing Colombia and South Africa offers the first dedicated scholarly comparison of the two countries in relation to the intersecting ideas of transitional justice, distributive justice, and transformative constitutionalism. Featuring contributions by Colombian and South African authors, this volume richly examines each country from a range of thematic perspectives as the basis for deep reflection and comparison between them.Transitional Justice, Distributive Justice, and Transformative Constitutionalism brings together three interconnected concepts: the need for redress of past historical wrongs, the imperative to ensure fairness in the distribution of resources, and the commitment to law-governed social change mediated through a constitution. Part one explores innovative approaches to transitional justice that go beyond law, such as novel philosophical approaches to reconciliation, the use of art to address past wrongs, and the role of museums in memorialising the past. Part two considers one of the central components of transformative constitutionalism: socio-economic rights. It addresses the role of history in the interpretation of socio-economic rights and the procedural mechanisms that enable access to these rights. Part three looks at the development of legal structures designed to achieve both transitional and distributive justice in the areas of indigenous people''s rights, procedural law, and international law.A timely work of innovative methodology and rare engagement between two constitutional democracies in the Global South, this title will be of interest to academics working in the fields of transitional justice, distributive justice, and transformative constitutionalism in Colombia and South Africa.

This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote?Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health-care. This book seeks to provide a sustained argument for placing renewed emphasis upon socio-economic rights in the fight against desperate poverty. It utilizes a combination of political philosophy, constitutional law, and public policy in its focus on the right to food, to housing, and to health-care. Part I involves the development of a philosophical theory of rights that provides a common normative foundation for both civil and political rights and socio-economic rights. This theory involves developing an understanding of value that recognizes individuals have fundamental interests of differing levels of urgency. It also involves drawing an important distinction between conditional rights that flow purely from a normative focus on the equal importance of individuals and unconditional rights that involve competing normative and pragmatic considerations. A general theory of judicial review is also put forward that provides a justification for judicial involvement in the enforcement of socio-economic rights. Part II then considers the implications of this general philosophical theory for the interpretation and enforcement of socio-economic rights in law. The focus of this more applied discussion is upon South Africa, where entrenched, directly justiciable socio-economic rights are expressly protected in the Constitution. The 'reasonableness' interpretive approach adopted by South Africa's Constitutional Court is critiqued and a modified version of the 'minimum' core approach proposed as the leading alternative. The latter approach requires priority to be given to the worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests of individuals. It also requires concrete steps to be taken towards realizing a higher level of provision that guarantees individuals the necessary conditions for realizing a wide range of purposes. This approach is also shown to have important policy implications both for developing and developed countries and can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.

This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote? Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health care. This book seeks to provide a sustained argument for placing renewed emphasis upon socio-economic rights in the fight against desperate poverty. It utilizes a combination of political philosophy, constitutional law, and public policy in its focus on the right to food, to housing, and to health care. Part I involves the development of a philosophical theory of rights that provides a common normative foundation for both civil and political rights and socio-economic rights. This theory involves developing an understanding of value that recognizes individuals have fundamental interests of differing levels of urgency. It also involves drawing an important distinction between conditional rights that flow purely from a normative focus on the equal importance of individuals and unconditional rights that involve competing normative and pragmatic considerations. A general theory of judicial review is also put forward that provides a justification for judicial involvement in the enforcement of socio-economic rights. Part II then considers the implications of this general philosophical theory for the interpretation and enforcement of socio-economic rights in law. The focus of this more applied discussion is upon South Africa, where entrenched, directly justiciable socio-economic rights are expressly protected in the constitution. The current approach of the South African Constitutional Court to their interpretation and enforcement is considered and criticized primarily for failing to provide sufficient content to such rights. A modified version of the minimum core approach to socio-economic rights is proposed as an alternative way which is supported by the philosophical theory developed in the first part of the book. This approach requires priority to be given to the worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests of individuals. It also requires concrete steps to be taken towards realising a higher level of provision that guarantees individuals the necessary conditions for realising a wide range of purposes. This is also shown to have important policy implications both for developing and developed countries that can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.

In recent years, the UN Human Rights Council has approved the 'Respect, Protect, and Remedy' Framework and endorsed the Guiding Principles on Business and Human Rights. These developments have been welcomed widely, but do they adequately address the challenges concerning the human rights obligations of business? This volume of essays engages critically with these important developments. The chapters revolve around four key issues: the process and methodology adopted in arriving at these documents; the source and justification of corporate human rights obligations; the nature and extent of such obligations; and the implementation and enforcement thereof. In addition to highlighting several critical deficits in these documents, the contributing authors also outline a vision for the twenty-first century in which companies have obligations to society that go beyond the responsibility to respect human rights.

The calls for an international treaty to elaborate the human rights obligations of transnational corporations and other business enterprises have been rapidly growing, due to the failures of existing regulatory initiatives in holding powerful business actors accountable for human rights abuses. In response, Building a Treaty on Business and Human Rights explores the context and content of such a treaty. Bringing together leading academics from around the world, this book engages with several key areas: the need for the treaty and its scope; the nature and extent of corporate obligations; the role of state obligations; and how to strengthen remedies for victims of human rights violations by business. It also includes draft provisions for a proposed treaty to advance the debate in this contentious area and inform future treaty negotiations. This book will appeal to those interested in the fields of corporate social responsibility, and business and human rights.

In recent years, the UN Human Rights Council has approved the 'Respect, Protect, and Remedy' Framework and endorsed the Guiding Principles on Business and Human Rights. These developments have been welcomed widely, but do they adequately address the challenges concerning the human rights obligations of business? This volume of essays engages critically with these important developments. The chapters revolve around four key issues: the process and methodology adopted in arriving at these documents; the source and justification of corporate human rights obligations; the nature and extent of such obligations; and the implementation and enforcement thereof. In addition to highlighting several critical deficits in these documents, the contributing authors also outline a vision for the twenty-first century in which companies have obligations to society that go beyond the responsibility to respect human rights.

The calls for an international treaty to elaborate the human rights obligations of transnational corporations and other business enterprises have been rapidly growing, due to the failures of existing regulatory initiatives in holding powerful business actors accountable for human rights abuses. In response, Building a Treaty on Business and Human Rights explores the context and content of such a treaty. Bringing together leading academics from around the world, this book engages with several key areas: the need for the treaty and its scope; the nature and extent of corporate obligations; the role of state obligations; and how to strengthen remedies for victims of human rights violations by business. It also includes draft provisions for a proposed treaty to advance the debate in this contentious area and inform future treaty negotiations. This book will appeal to those interested in the fields of corporate social responsibility, and business and human rights.

The calls for an international treaty to elaborate the human rights obligations of transnational corporations and other business enterprises have been rapidly growing, due to the failures of existing regulatory initiatives in holding powerful business actors accountable for human rights abuses. In response, Building a Treaty on Business and Human Rights explores the context and content of such a treaty. Bringing together leading academics from around the world, this book engages with several key areas: the need for the treaty and its scope; the nature and extent of corporate obligations; the role of state obligations; and how to strengthen remedies for victims of human rights violations by business. It also includes draft provisions for a proposed treaty to advance the debate in this contentious area and inform future treaty negotiations. This book will appeal to those interested in the fields of corporate social responsibility, and business and human rights.

Corporations can significantly affect the fundamental rights of individuals. This book investigates how to determine the substantive content of their obligations that emanate from these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent 'multi-factoral approach' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.

Corporations can significantly affect the fundamental rights of individuals. This book investigates how to determine the substantive content of their obligations that emanate from these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent 'multi-factoral approach' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.

Corporations can significantly affect the fundamental rights of individuals. This book investigates how to determine the substantive content of their obligations that emanate from these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent ''multi-factoral approach'' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations'' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.

Corporations can significantly affect the fundamental rights of individuals. This book investigates how to determine the substantive content of their obligations that emanate from these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent ''multi-factoral approach'' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations'' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.

The calls for an international treaty to elaborate the human rights obligations of transnational corporations and other business enterprises have been rapidly growing, due to the failures of existing regulatory initiatives in holding powerful business actors accountable for human rights abuses. In response, Building a Treaty on Business and Human Rights explores the context and content of such a treaty. Bringing together leading academics from around the world, this book engages with several key areas: the need for the treaty and its scope; the nature and extent of corporate obligations; the role of state obligations; and how to strengthen remedies for victims of human rights violations by business. It also includes draft provisions for a proposed treaty to advance the debate in this contentious area and inform future treaty negotiations. This book will appeal to those interested in the fields of corporate social responsibility, and business and human rights.

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? New constitutions often include newer forms of rights - such as socio-economic and environmental rights - and are written with an explicitly transformative purpose. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. By engaging widespread comparative experiences from Malawi, to Colombia, Mexico to South Africa, Hungary to the United States of America, this examination of the doctrine of the separation of powers takes into account important recent changes in constitutional design and practice, including the wide-spread inclusion of socio-economic rights, the creation of independent bodies outside the traditional structure, the growth of executive power, and the crisis of legislative legitimacy. It also considers the extent to which this re-framing should be confined to the emerging democracies of the global south or whether it can be applied more widely across all constitutional systems. This comprehensive study will be of interest to academics conducting research in comparative constitutional law, students of comparative constitutional law, and constitutional and political theorists as well as constitutional judges and designers.Contributors include: D. Bilchitz, D. Bonilla, V. Jackson, R.E. Kapindu, D. Landau, F. Mohamed, J.M. Serna de la Garza, R. Uitz

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? New constitutions often include newer forms of rights - such as socio-economic and environmental rights - and are written with an explicitly transformative purpose. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis.

By engaging widespread comparative experiences from Malawi, to Colombia, Mexico to South Africa, Hungary to the United States of America, this examination of the doctrine of the separation of powers takes into account important recent changes in constitutional design and practice, including the wide-spread inclusion of socio-economic rights, the creation of independent bodies outside the traditional structure, the growth of executive power, and the crisis of legislative legitimacy. It also considers the extent to which this re-framing should be confined to the emerging democracies of the global south or whether it can be applied more widely across all constitutional systems.

This comprehensive study will be of interest to academics conducting research in comparative constitutional law, students of comparative constitutional law, and constitutional and political theorists as well as constitutional judges and designers.

Contributors include: D. Bilchitz, D. Bonilla, V. Jackson, R.E. Kapindu, D. Landau, F. Mohamed, J.M. Serna de la Garza, R. Uitz

El Tribunal Supremo indio, El Tribunal Constitucional sudafricano y la Corte Constitucional colombiana son tres de los tribunales más importantes y creativos del Sur Global. Este libro explora de manera detallada la jurisprudencia de estos tres tribunales sobre: derechos sociales y económicos, diversidad cultural y acceso a la justicia. Temas relacionados directamente con la pobreza y la desigualdad, la violencia política, las minorías culturales y la consolidación del Estado de derecho. Este libro es una contribución valiosa a la discusión sobre los límites y estructura del constitucionalismo contemporáneo.

El Tribunal Supremo indio, El Tribunal Constitucional sudafricano y la Corte Constitucional colombiana son tres de los tribunales más importantes y creativos del Sur Global. Este libro explora de manera detallada la jurisprudencia de estos tres tribunales sobre: derechos sociales y económicos, diversidad cultural y acceso a la justicia. Temas relacionados directamente con la pobreza y la desigualdad, la violencia política, las minorías culturales y la consolidación del Estado de derecho. Este libro es una contribución valiosa a la discusión sobre los límites y estructura del constitucionalismo contemporáneo.

La economía política1 del conocimiento jurídico determina cuáles son los productos jurídicos que deben crearse, su valor, los canales para su intercambio y las formas en que deben ser usados.2 Esta economía política está constituida por dos dispositivos que se entrecruzan tanto práctica como analíticamente. Por un lado, tenemos el conjunto de normas que regulan la conducta de los operadores jurídicos; la superestructura de esta economía política.3 Este conjunto de reglas y principios articula los mandatos que deben guiar a los operadores del derecho que están interesados en crear conocimiento jurídico, importarlo o exportarlo, utilizarlo o lograr su reconocimiento. Por el otro lado, están las prácticas y las relaciones de poder dentro de las cuales efectivamente se crea, intercambia, legitima y pone en operación el conocimiento jurídico, la estructura de esta economía política.La relación entre estos dos componentes de la economía política es de doble vía. Están imbricados y se condicionan mutuamente. El dispositivo normativo y simbólico no es simplemente una consecuencia de las relaciones de poder que determinan las prácticas en este campo social. La estructura no es una representación del armazón conceptual que la describe, critica e intenta gobernar. El dispositivo práctico y el conceptual están constantemente interactuando y modificándose mutuamente. Los continuos entrecruzamientos, encuentros y conflictos que caracterizan su existencia determinan sus contornos y formas básicas.