Academic journal article Public Administration Quarterly

Justice as "Fairness" Reified: Lessons from the South African Constitutional Court

Academic journal article Public Administration Quarterly

Justice as "Fairness" Reified: Lessons from the South African Constitutional Court

Article excerpt

INTRODUCTION

John Rawls' perspectives on the social contract have been central in the development of discourse on moral theory as related to societal development. His notion of justice as fairness, first articulated in a 1958 article in the Philosophical Review, and later articulated in his 1971 Theory of Justice, posited a model based on two principles: (1) each person participating in a society has an equal right to liberty and (2) inequities are arbitrary unless they work out "for everyone's advantage" or are attached to positions that are open to all (Rawls, 1958, p. 165). The model developed by Rawls ultimately helped shape various notions of the right over the good that could later be compared to the development of social processes.

Twenty years following the publication of The Theory of Justice, political transitions in South Africa, from its apartheid to its post-apartheid system of governance, provided a context for applying Rawls' framework for analyzing the reframing of a social contract. Specifically, the central tenants of post-apartheid South Africa had articulated in its constitution basic rights that were similar to principles articulated by John Rawls in many of his writings.

One of the institutions involved in weighing norms in the post-apartheid era is the South African Constitutional Court, an entity that for two decades has now been focused on examining critical constitutional questions that call for the establishment of a society "based on democratic values, social justice, and fundamental human rights" (South African Constitution, 1996). In the time since its creation, the court has been presented cases that have forced it to confront many of the notions of inclusion, equality, and guarantees of various socioeconomic rights that are articulated in the Constitution.

This article examines the application of notions articulated by Rawls, and the positions of norms within South African society in the post-apartheid era. It uses several decisions of the South African Constitutional Court to explore the realization of constitutionally articulated goals aimed at developing a society where various human and socio-economic rights are guaranteed. It also explores potential lessons that the court provides for the interrogation of notions of justice as part of a broader conversation that might engage other nations in a reflective discourse on equity and fairness. Ultimately, I suggest that the South African Constitutional Court provides an institutional context for examining how some of the notions of justice that Rawls proposes might be applicable for a broader discourse around just institutions, particularly when framed from a constitutional foundation.

I begin with an overview of some of Rawls's arguments as he considers notions of justice as fairness. I explore three components of the model that Rawls posited. First, is Rawls' concerns around the dominance of utilitarianism and his goals of proposing an alternate approach, based on Kantian notions, that consider the choices rational actors are able to make in the decisions to engage in morally sound actions. Second, is the importance of Rawls' concept of the original position for comprehending the initial point of negotiations around any social contract that is based on notions of fairness and a just society. The third component is one of reflective equilibrium, which helps provide a context for consideration of deliberations that individuals involved in interpreting, and applying a social contract that can be considered through a framework that considers the right in relation to the good.

I continue with an examination of the South African Constitutional Court's development and an analysis of several of the court's landmark cases, which ultimately helped to frame some of the perspectives related to how the court would deal with critical issues related to social justice and notions of rights. Four cases in particular are examined. …

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