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A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review


Katharine Young


Boston College Law School

November 4, 2010

International Journal of Constitutional Law (ICON), 2010

Abstract:     
The tensions that are often thought to lie between democracy and constitutionalism are especially pronounced with respect to the entrenchment of economic and social rights. Within current understandings of judicial review, courts appear to lack the competency, and the legitimacy, for economic and social rights adjudication. In this article, I draw on the South African Constitutional Court’s experience with justiciable economic and social rights, to present a typology of judicial review, which incorporates deferential, conversational, experimentalist, managerial and peremptory stances. I suggest that these five stances are part of a general judicial role conception which I term catalytic, because it opens up the relationship between courts and the elected branches, and lowers the political energy that is required in order to achieve a rights-protective outcome. Not only is this role conception able to account for a more accurate portrayal of economic and social rights adjudication, I also argue that it is normatively desirable under defined conditions. Finally, I contrast this role conception with others to show that a court’s role in economic and social rights adjudication is dependent upon its perception of itself as an institution of governance, as well as the institutional rules that support that perception.

Number of Pages in PDF File: 48

Keywords: economic and social rights, justiciability, constitutionalism and democracy, judicial review, courts and dialogue, new governance, South African Constitutional Court, comparative constitutional law

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Date posted: November 4, 2010  

Suggested Citation

Young, Katharine, A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review (November 4, 2010). International Journal of Constitutional Law (ICON), 2010. Available at SSRN: http://ssrn.com/abstract=1702807

Contact Information

Katharine Young (Contact Author)
Boston College Law School ( email )
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