Grootboom and the seduction of the negative / positive duties dichotomy

• Published date: 01 January 2011
• DOI: 10.10520/EJC153217
• Date: 01 January 2011
• Author: Sandra Liebenberg
• Pages: 37-59

Grootboom and the seduction of the

negative/positive duties dichotomy

Sandra Liebenberg

*

1Introduction

A prevailing dichotomy of liberal rights theory is the distinction between the

negative and positive duties imposed by human rights norms. A strong duty of

accountability is imposed when the State is perceived to interfere with people’s

enjoyment of human rights, whether through the conduct of officials or legislative,

executive or administrative action. Non-existent or much weaker accountability is

imposed when State responsibility is attributed to omissions.

1

This dichotomy has a powerful hold on the human rights imaginary. It is

replicated particularly in socio-economic rights scholarship, advocacy, litigation and

adjudication (including, at times, my own work). A key manifestation of the dichotomy

is expressed in the popular threefold, or sometimes fourfold, typology that originated

in the work of Henry Shue.

2

According to this typology, socio-economic rights impose

duties on the State ‘to respect, protect, promote and fulfil’ those rights.

3

Shue

*

BA LLB, LLM, LLD, HF Oppenheimer Professor in Human Rights Law, Stellenbosch University,

Faculty of Law. My gratitude goes to Sibusiso Radebe for his research assistance as well as the

participants in the Grootboom Retrospective conference hosted by UNISA, and Paul O’Connell for

helpful comments on a previous draft of this paper. This paper is based upon research supported

by the National Research Foundation (NRF). Any opinion, findings and conclusions or recommen-

dations expressed in this paper are those of the author and therefore the NRF does not accept any

liability in regard thereto.

1

In the context of US jurisprudence, one of the classic illustrations of the dominant model of ‘negative

constitutionalism’ is DeShaney v Winnebago County Department of Social Services 489 US 189

(1989). For a critique of this model, see Barber ‘Fallacies of negative constitutionalism’ (2007) 75

Fordham LR 651-668.

2

Shue Basic rights: Subsistence, affluence, and US foreign policy (1980) 1-248.

3

The UN Committee on Economic, Social and Cultural Rights relies extensively on variants of this

typology in its General Comments on various provisions in the International Covenant on Economic,

Social and Cultural Rights (1966). See, eg: General Comment no 12 (1999) ‘The right to adequate

food’ (art 11 of the Covenant) UN doc E/2000/22 para 15; General Comment no 14 (2000) ‘The right

to the highest attainable standard of health’ (art 12 of the Covenant) paras 46-52; General Comment

no 15 (2002) ‘The right to water (arts 11 and 12 of the Covenant) UN doc E/C 12/2002/1 paras 20-

(2011) 26 SAPL38

intended his analysis to illustrate that the effective realisation of all human rights

imposes a combination of negative and positive obligations, and that one cannot

associate particular categories of rights with a single correlative duty.

4

This typology has been very helpful in breaking down categorical distinctions

between the nature of civil and political rights on the one hand, and economic,

social and cultural rights, on the other. Showing that socio-economic rights also

impose negative duties of forbearance and that, conversely, civil and political

rights impose positive duties of protection and fulfilment was a strategy to garner

legal legitimacy for claims which were, for a long time, marginalised from

mainstream human rights discourse and practise.

5

Thus, it helped to illustrate that

all rights impose a combination of negative and positive duties, and that socio-

economic rights are similar in structure to civil and political rights, differing only in

the extent of the positive duties required for their effective realisation.

6

In this paper I argue that the application of the negative/positive duties to

socio-economic rights claims is not without pitfalls. The danger lies particularly in

the application of a rigid and static model of the typology to privilege negative

duties in the judicial enforcement of socio-economic rights, and to reinforce the

aversions in classic liberal legal culture to the enforcement of positive duties.

7

Within this tradition, it is claimed that the judicial enforcement of negative

duties is relatively unproblematic in that the obligation is clearly defined. It

requires that the State refrain from interfering in the existing enjoyment of rights.

Moreover such duties of restraint are of universal application to all duty bearers,

requiring both public and private actors to refrain from interference with existing

access to the relevant rights. Finally, these duties can be enforced through clear

and immediate judicial remedies that restrain interference.

29; General Comment no 19 (2007) ‘The right to social security’ (art 9 of the Covenant) UN doc E/C

12/GC/19 paras 43-51. The African Commission on Human and Peoples’ Rights has also made use

of this typology in its decisions on communications relating to the economic and social rights in the

African Charter on Human and Peoples’ Rights (1981). See The Social and Economic Rights Action

Centre (SRAC and the Centre for Economic and Social Rights v Nigeria Communication no 155/96

(2001) AHRLR 51 (ACHPR 2001) paras 44-48. See generally Koch ‘Dichotomies, trichotomies or

waves of duties?’ 2005 5 Human Rights LR 81-103 at 87.

4

Shue (n 2) 51. See the analysis by Fredman Human rights transformed: Positive rights and positive

duties (2008) 69-70; McLean Constitutional deference, courts and socio-economic rights in South

Africa (2009) 97-101.

5

See the discussion in Liebenberg Socio-economic rights: Adjudication under a transformative

constitution (2010) 82-87.

6

In the First Certification judgment, the Constitutional Court expressly acknowledged the positive duties

and resource implications of civil and political rights: Ex parte Chairperson of the Constitutional

Assembly: In re Certification of the Constitution of the Republic of South Africa para 76.

7

Analyses of the ‘justiciable elements’ of economic and social rights often emphasise negative duties

of restraint, and adopt a relatively minimalistic approach to the types of positive duties which are

amenable to judicial enforcement. See, eg, Coomans ‘Clarifying the core elements of the right to

education’ in Coomans and Van Hoof (eds) The right to complain about economic, social and

cultural rights (1995) 11-26, 19-22.