Extending the Shadow of the Law: Using Hybrid Mechanisms to Develop Constitutional Norms in Socioeconomic Rights Cases

Abstract:     
This article addresses the debate over the relative limits of adjudication and alternative dispute resolution and challenges the general perception that alternative dispute resolution processes are inappropriate to resolving constitutional issues. The article uses a recent South African Constitutional Court case in which the Court interpreted the right to housing in the South African Constitution to require that municipalities develop processes for negotiating - or, in the Court’s language “engaging” - with citizens affected by redevelopment plans as a vehicle for analyzing this debate. I locate the Court’s novel remedy within the broader debate over adjudication and ADR and offer suggestions for developing engagement into a hybrid enforcement mechanism that incorporates the flexibility of ADR methods with the norm-creation capacity of traditional adjudication.

Keywords: social rights, socioeconomic rights, alternative dispute resolution, comparative constitutional law, South Africa

Accepted Paper Series