Judicialized Health, the Spirit of Constitutionalism, and Politics of Labor in South Africa

A Kellogg Work-in-Progress Seminar with Visiting Fellow Kaushik Sunder Rajan.

This paper considers certain aspects of the judicialization of health in South Africa. The “judicialization of health,” as conceptually developed by Joao Biehl and Adriana Petryna, speaks to ways in which demands concerning health have been made through the law, especially in global Southern contexts. The paper shows how judicial interventions in such cases are animated by creative interpretations of foundational constitutional principles, and thus speak to universalizing imaginaries of human rights that are intimately connected to postcolonial imaginaries of post-apartheid democracy. At the same time, they are forced to respond to the specific histories and presents of carceral and extractive regimes of neoliberal governance. In what ways do these political claims articulate with, enable or constrain the South African constitutional imagination of health as a human right? Can a biomedicalized and constitutionally mediated class action envisage new modalities of collective struggle?