Acta Universitatis Danubius. Juridica, Vol 12, No 2 (2016)

Legal Norms and the Capabilities Approach (CA): Reinterpreting Children’s Right to Access to Basic Education

Mashele Rapatsa, Gaedupe Makgato, Tshepo Mashile


This article discusses access to basic education as a constitutionally entrenched legal norm. It presents an exposition of inherent interdependence between rights-based approaches to child development and theoretical underpinnings founded in the Capabilities Approach (CA). The article is considerate of the fact that every progressive developmental state needs literate and educated citizenry to achieve sustainable economic and human development, and thus secure social stability and human well-being. It relies on the Constitution, 1996’s foundational values and theoretical connotations founded in Sen and Nussbaum’s Capabilities Approaches. Nussbaum is the focal point because her account of the CA is linked with fundamental ideals of constitutional law and rights-based approaches to development. It proposes a pattern of combining and using frameworks of rights and capabilities to move beyond promises made through legal instruments. It is asserted that access to equitable and quality basic education is yet to be achieved in South Africa. It remains a distant dream owing to narrow interpretations and dual system of private-public education, under which quality education is commodified and only accessible to the wealthy few. Thus, to improve access to quality basic education, we ought to understand that laws are normative standards that need to be complimented by strong moral and ethical commitments in order to be responsive to children’s and society’s social developmental needs.



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