Reader says:

David Bilchitz has written a thought-provoking book about an important moral and legal issue: whether constitutions should enforce basic socio-economic rights to health care, food, and housing. He should be commended for raising the profile of this issue. But like many recycled dissertations, his book is very uneven. Some sections are well-argued, but others feel rushed. The legal and philosophical sections almost feel like different books. The lengthy analysis of South African law may be of little interest to non-lawyers or non-South Africans. Worst of all, Bilchitz is constantly looking over his shoulder and situating his argument within the current philosophical literature, like a nervous grad showing that he keeps up with the journals. Ordinary readers don’t care about this tedious scholarly convention. He should just make his case!

Bilchitz argues that sentient beings have lives of value when their experiences are pleasant and their goals fulfilled. It follows that everyone has a reason to want basic goods such as food and housing, as the preconditions for pleasure and goal-fulfillment. This seems sensible enough. The problem, as Bilchitz concedes, is that X’s need for basic goods doesn’t straightforwardly give X a claim to socioeconomic rights enforceable against Y. (Why should Y even care?) Bilchitz “resolves” this problem with a sketchy argument to the effect that any legal system not giving equal weight to the basic interests of all people commits a “category mistake,” and is invalid. This last step is crucial to his case for socio-economic rights, but it is laid out in a few rushed, unpersuasive pages. Big mistake.

Others follow. Having argued that the law must enforce a “minimum core” of basic goods, Bilchitz acknowledges that this right might only be a conditional right if government resources are inadequate. This seems to take back the whole point of the argument. He also makes a tortured claim that the South African Constitution can be interpreted as mandating a “minimum core” approach to socio-economic rights, even though the text pretty plainly rejects it (as has the Constitutional Court).

Finally, Bilchitz’ writing can only be described as belabored. This paragraph (not too atypical) appears on page 231:

“A consideration of the underlying justification of socio-economic rights can, however, help to defuse the force of this objection. The philosophical theory I have proposed recognizes that a society is obliged to realize two fundamental interests that beings have which represent the general necessary conditions for living lives of value. Resource allocation in the society should thus be tied to this aim that, at this general level, need not identify differing rights. However, in order to put this theory into practice, it is necessary to specify what such general conditions consist in. Particular fundamental rights represent the specification of these general necessary conditions. Any holistic consideration of resource allocation must thus involve a consideration of the particular needs and interests that have to be realized. Fundamental rights, and the minimum core in particular, specify those determinate interests which must be given priority in the distribution of resources. The specification of these interests need not, however, imply that their realization is not interconnected.”

Anyone unwilling to wade through 261 pages of this stuff should give “Poverty and Fundamental Rights” a pass. I persevered (and I’m glad I did), but I considered giving up at points. The book also costs a fortune. Too bad. (Luckily, my kids bought me a used copy for Father’s Day.)

Rating: 3 / 5