Judicial interpretation of social rights: The rights to education, health, and housing in Brazil and South Africa

Rosevear, Evan (2021) Judicial interpretation of social rights: The rights to education, health, and housing in Brazil and South Africa. University of Toronto, Doctoral Thesis, 346pp.

Abstract

This work examines how legal education, the organization of the legal profession, and the structure of the judiciary shape and reproduce jurisdiction-specific judicial logics of appropriateness—judicial cultures—in Brazil and South Africa and the impact of the jurisdiction-specific judicial cultures on the interpretation of constitutionalized social rights. I argue that variation in the pre-existing judicial culture of the two countries is key to explaining their different interpretations of the rights to education, health, and housing entrenched in both of their constitutions. My findings suggest that social rights jurisprudence tends toward one of two ideal types. Countries with a diffuse system of judicial review, a large and relative inexperienced judiciary, and an approach to legal reasoning emphasizing theoretical consistency with a limited role for stare decisis will tend to develop an individualized social rights jurisprudence that focuses on remedying specific harms suffered by individuals. In contrast, countries with a more centralized system of judicial review, characterized by a small number of experienced judges operating in a system which has a strong adherence to stare decisis, will develop a more policy-oriented social rights jurisprudence that emphasizes the importance of addressing structural problems faced by groups or classes of people.

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