Aggressive Weak Form Remedies
5 Constitutional Court Review (South Africa) 244 (2014)
21 Pages Posted: 22 Sep 2013 Last revised: 6 Feb 2015
Date Written: September 1, 2013
This response to Brian Ray’s lead article, Evictions, Avoidance, and the Aspirational Impulse, is forthcoming in the Constitutional Court Review of South Africa. Ray argues that some of the recent jurisprudence of the South African Court shows how the Court’s remedies for socioeconomic rights violations can be ratcheted up in realistic ways without simply collapsing into judicial supremacy. I generalize Ray’s point by arguing that what is called “weak-form” or “dialogic” review leaves much more room for judicial aggressiveness than is generally assumed, and need not call for an across-the-board judicial weakness or deference. In the socioeconomic rights context, the democratic legitimacy and technical capacity arguments in favor of weak-form review require that political actors and not courts design the details of policy. Aggressive judicial action aimed at incentivizing political actors to take action on dormant constitutional norms – instead of setting policy directly by judicial fiat – is broadly consistent with the goals of the model. Drawing off of comparative evidence from Colombia, I also point out two models by which courts can use ratcheted-up forms of review to incentivize political action, without having their work collapse into strong-form review. In the first model, courts set malleable default rules in a policy area in order to spur political action, while in the second, courts monitor short-term and medium-term compliance with a set of discrete policy goals in order to cajole bureaucracies into carrying out constitutional mandates. While political contexts constrain the possibilities for judicial action, cross-country work is valuable in suggesting pathways by which “weak-form” courts like the South African Constitutional Court can increase the bite of their enforcement strategies in significant ways without a fundamental change in judicial role.
Keywords: socioeconomic rights, remedies, weak-form enforcement, Colombia, South Africa, Grootboom, Brian Ray
JEL Classification: K41
Suggested Citation: Suggested Citation