Chapter

The Catalytic Court

Katharine G. Young

in Constituting Economic and Social Rights

Published in print August 2012 | ISBN: 9780199641932
Published online September 2012 | e-ISBN: 9780191746086 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199641932.003.0006

Series: Oxford Constitutional Theory

The Catalytic Court

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This chapter introduces the concept of a judicial “role conception”. A role conception assists the court in maintaining democratic legitimacy, adherence to opinions and execution of orders. The nature of these demands is contingent on the constitutional polity in which a court finds itself. The Chapter argues that the South African Constitutional Court enjoys a catalytic role conception, which explains the variety of stances towards judicial review that it adopts when adjudicating economic and social rights. The choice of a particular stance is responsive to whether government intransigence, incompetence or inattentiveness has caused the rights-infringement in question. This explanation is offered as one superior to the distinction between negative and positive obligations, the maturity of the jurisprudence, or whether the right is quantifiable or costly. A catalytic court seeks to lower the political energy that is required by other legal actors to secure economic and social rights

Keywords: role conception; catalytic court; negative and positive obligations; maturing jurisprudence; rights-quantification; budgetary considerations; intransigence; incompetence; inattentiveness; south african constitutional court

Chapter.  10853 words.  Illustrated.

Subjects: Constitutional and Administrative Law

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