Abstracts

14 progressive realization, but rather charge an inefficacy in delivering elements of the greater right (e.g., the right to textbooks as a sub-right to education). The result is a court-created doctrine of incrementalism: the achievement of the whole through its parts. Case Law Evidence for the Incrementalistic Principle 2 What it means to progressively realize a right is a matter of court interpretation. Each right to housing, health care, and education includes the concept of “access to the right” as a central feature. Individuals possess “the right to have access to” housing and health care, for instance. Or, in the case of higher education, the government must make the right “progressively available and accessible” (Constitution of the Republic of South Africa, Ch. 2, § 26, 27, 29). The idea of access implies that full realization would necessarily entail achieving the metric of accessibility to all citizens. The Constitutional Court majority interpreted the phrase this way in their Grootboom decision: “The goal of the Constitution is that the basic needs of all in our society be effectively met and the requirement of progressive realisation means that the state must take steps to achieve this goal.” Note the justices’ inclusion of the word “all.” They contended that the requirement of progressive realization is in place to fulfill the basic needs of the whole population. Accordingly, the Grootboom decision read that, “housing must be made more accessible not only to a larger number of people but to a wider range of people as time progresses” (p. 35). Through this decision making, the court explained to whom increased access applies. It denoted that the rights should be expanded to, at least primarily, those who have never received their benefits. The court determined that increasing access not only means that greater populations living in wealthier cities and provinces receive 2 Special thanks to Attorney Paul Hoffman, who, upon our meeting in Cape Town, introduced me to many of the cases cited within this article. The recommendations provided by him, along with others whom I had the honor of meeting, served as the foundational documents for the development of my ideas. the entitlements but also that new populations are introduced to the benefits. In isolation, progressive realization is not married to the idea of increasing access. When paired with the Constitutional Court’s reasonable measures test, the phrase behaves differently than it would manifest if read within the context of the constitution and international law alone. Legal scholar Mark S. Kende notes that the pragmatic reality of socioeconomic rights in a constitution is limited by resource constraints, which is addressed in the South African constitution by the phrase “within available resources.” The inclusion of these rights in the constitution “does not mean that every individual is entitled to assistance on demand.” For that reason, the court developed the reasonable measures test (Kende, 2009, p. 248). What the courts deem reasonable is fundamental to how the rights manifest. Socioeconomic rights case law reveals that the applicational practice of progressive realization results in decision making that expands the scope of the right rather than expanding access to the right . Both in applying the reasonable measures test and through other jurisprudential reasoning, the courts have led the slow march toward the realization of socioeconomic rights. An analysis of landmark cases reveals that the test has resulted in an expansion of the meaning of the rights’ components, thereby producing a pattern of incrementalism. As a contextual background, the Constitutional Court is the highest court in South Africa; it is the interpreter of the supreme law of the land, and its decisions are binding on all lower courts and bodies of government. The SupremeCourt of Appeal is thehighest appellate court, just below the Constitutional Court in its authority. Its decisions are binding to all but the Constitutional Court itself. There also are nine High Courts that operate as the chief provincial-level bodies. This section includes a mapping of relevant case law that is organized by a relationship in content rather than a relationship in time. Although the precedent- building chronology of cases is important, my reasoning for this organizational pattern is to reveal how the scope of the rights is expanded