In most Western liberal democracies, the provisions of a country’s constitution provide protection for a wide range of fundamental human rights. However, this protection tends to be focused on civil and political rights; that is, freedoms from state interference. It is far less common for liberal democratic constitutions to provide protection for economic and social rights (which are also known as socio-economic rights or new generation rights) – that is, rights which are entitlements to be provided with economic and social services by the State, and which require the State to take positive action. Economic and social matters have traditionally been left to the discretion of the political organs of state, and are usually not the subject of enforceable constitutional provisions. The remedy for those who are left without basic services lies in the political route rather than in the courts.
By and large, the Irish Constitution of 1937 adheres to this broad approach, subject to one notable exception: Article 42 and obliges the State to provide for free primary education, and to make provision for children whose parents either do not or cannot care for them. These provisions have generated significant controversy regarding what exactly the courts are entitled to do to ensure that the State lives up to its constitutional obligations. The courts, unaccustomed to (and uncomfortable with) this role have exercised a restrained and cautious approach when asked by litigants to order the Government to allocate resources to specific purposes. To an extent, this caution has been echoed by the South African Constitutional Court, notwithstanding the fact that the new South African Constitution of 1996 broke with tradition by including a wide range of enforceable economic and social rights, including the rights to food, water, healthcare and housing. The purpose of this paper is to compare and contrast the Irish and South African approaches to the enforcement of constitutionally protected economic and social rights.