Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia

Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia

Language: English

Pages: 422

ISBN: 1107459400

Format: PDF / Kindle (mobi) / ePub

The Indian Supreme Court, the South African Constitutional Court, and the Colombian Constitutional Court have been among the most important and creative courts in the Global South. In Asia, Africa, and Latin America, these courts are widely seen as activist tribunals that have contributed (or attempted to contribute) to the structural transformation of the public and private spheres of their countries. The cases issued by these three courts are gradually creating what can be called a constitutionalism of the Global South. This book addresses in a direct and detailed way the jurisprudence of these three Courts on three key topics: access to justice, cultural diversity, and socioeconomic rights. This volume is a valuable contribution to the discussion about the contours and structure of contemporary constitutionalism. It makes explicit that this discussion has interlocutors both in the Global South and Global North while showing the common discourse between them and the important differences on how they interpret and solve key constitutional problems.

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“the importance argument.”34 The legitimacy concerns would not really arise unless the interests that are being protected by such guarantees are of great importance in and of themselves. Fabre argues that “[t]urning a moral right into a constitutional right means that the interest protected by the moral right is important enough to legally disable citizens and members of the legislature from enacting laws which violate these moral rights, that is from changing people’s legal situation by

extent of government obligations in this regard? Is there certainty as to what people are entitled to claim in India? In this 55 Kesavananda Bharati v. State of Kerala, 4 SCC 225 (Fundamental Rights case) at 879 (1973). 56 S. Muralidhar, supra note 16, 106. 57 Francis Coralie Mullin v. The Administrator, 1 SCC 608 at 608–19 (1981). 58 Olga Tellis v. Bombay Municipal Corporation, 3 SCC 545 at 572 (1985). 59 ShantiStar Builders v. Narayan K Totame, 1 SCC 520 at 527 (1990). 62 CONSTITUTIONALISM

Onati International Institute for the Sociology of Law, Fordham Law School, University of Texas School of Law, Georgia State University College of Law, and Universidad Nacional de Colombia. His recent publications include La funcion ´ social de la propiedad (2013); Democracia, derecho y econom´ıa de mercado (2010); and Teor´ıa del derecho y transplantes jur´ıdicos (2009). He is the recipient of a Fulbright Fellowship and several awards for distinctions in teaching. Constitutionalism of the

also focuses on high court judgments. I have already analyzed the case law (foundational and general cases) from 1950 to 2005 in health, education, and food and will therefore focus on the post-2005 period.25 The first two sections discuss the path to justiciability of socioeconomic rights, particularly those of health and education. Although the focus is on the apex court, I also discuss the jurisprudence in the high court in order to highlight the patterns produced in the higher judiciary. The

ruling said that from a “juridical point of view, it makes sense to say that Directive Principles do form part of the Constitution Law of India and they are in no way subordinate to Fundamental Rights,” but the implementation of these principles occurs when the state enacts a law. On the other hand, Justice Bhagwati said in Minerva Mills that Directive Principles created obligations or duties binding on the state and that the state would be bound by a constitutional mandate to carry them out

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