The Limits of Constitutional Justice

Especially in recent decades, in many jurisdictions there has been a shift away from a classical liberal conception of the constitution to a conception of the constitution as geared towards the alleviation of social and economic disadvantage. This development is the result of three interlocking trends: the growth of positive obligations; the embrace of substantive equality; and the proliferation of socio-economic rights. The article explores these developments from a liberal constitutionalist perspective, sourced in the work of John Rawls. With reference to A Theory of Justice, the article argues that liberal constitutionalism is not wedded to the classical liberal conception of the constitution and so is not inconsistent with these trends. However, in light of Political Liberalism, the article contends that the liberal understanding of the constitution as a social contract limits these developments by seeking the hypothetical consent of reasonable individuals. This results in an understanding of socio-economic rights as generating a social minimum, as opposed to more expansive forms of distributive justice; and an understanding of substantive equality as circumscribed by the need to maintain the hypothetical consent of reasonable individuals adversely affected by measures such as positive action. These arguments are illustrated with reference to decisions of the South African Constitutional Court.