ABSTRACT
Can law and policy intertwine properly, bringing together the executive, legislature and judiciary (in democratic forms of government), as well as other state and non-state actors, in order to utilize both policy and law as instruments for social change?
This contribution supports literature that suggests that there is an advantage to adopting a transformative approach to constitutionalism in order to address poverty in the developing world context. Such an approach must be accompanied by multi-stakeholder commitment to the achievement of social justice, including focussed support from the judiciary, non-judicial state institutions and the private sector. It is argued that developing world countries with constitutions that lack justiciable socio-economic rights have a more difficult task in this regard, and that legal and policy alignment in these jurisdictions may require more activist forms of judicial intervention.
The challenge remains for courts, and other quasi-judicial actors and state bodies tasked with contributing to human rights realization, to assist those most in need while maintaining the fine separations of power with government, effectively navigating a careful balancing exercise. The quagmire of law and policy integration and appropriate forms of judicial legal interpretation play out most starkly in ‘urgent’ cases that result in severe policy and budgetary implications. The focus must be broadened beyond the courts’ development of constitutional rights to include a transformative mindset, one in which the meaningful change envisaged by a constitution or legal system is given effect to by each branch of government complying with the letter and spirit of its constitutional commitments and obligations, adopting an integrated and aligned approach and supported by international and regional co-operation. This in itself will contribute to law and policy alignment, cultivate a better inter-relationship between the different arms of government and result in enhanced social cohesion.
