The difference history makes: comparative reflections on socio-economic rights and historical consciousness in South Africa and Colombia

Bilchitz, D. ORCID: https://orcid.org/0000-0001-6195-675X and Correa Henao, M. I. (2023) The difference history makes: comparative reflections on socio-economic rights and historical consciousness in South Africa and Colombia. In: Bilchitz, D. ORCID: https://orcid.org/0000-0001-6195-675X and Cachalia, R. (eds.) Transitional Justice, Distributive Justice, and Transformative Constitutionalism: Comparing Colombia and South Africa. Oxford University Press, pp. 244-255. ISBN 9780192887627 doi: 10.1093/oso/9780192887627.003.0013

Abstract/Summary

What explains the differences in the approach of the two apex courts of South Africa and Colombia in relation to past injustice in their decisions on the right to housing? In Bilchitz’s chapter, in South Africa, there is an explicit engagement with historical injustice in the jurisprudence on the right to housing which has a real impact on how the Court constructs the content of the rights and the remedies granted. Correa Henao demonstrates that in Colombia, the Constitutional Court focuses on the present vulnerability of litigants in crafting legal doctrine and remedies with limited engagement as to how the current circumstances arose from past injustice. This chapter analyses possible reasons for these differences—these include the different histories of the two countries, a different set of goals they seek to attain, a divergent approach to the value of historical consciousness in transitional societies, and different conceptions of the role of judges in the two societies.