Democratic experimentalism in comparative constitutional social rights remedies

Abstract

Arguments in favor of democratic experimentalism in the adjudication of social rights focus on its ability to foster democratic engagement through deliberation and learning about party preferences in litigation, while also decentering the court and permitting the representation of a broader range of stakeholders and interests in the judicial process. However, experimentalist processes can be normatively weak, reinforce deliberative inequalities between parties, and can expose the limits to localized solutions. The academic literature on experimentalism in social rights cases has focused on discrete, but related strands of the adjudicative process, focusing on forms of dialogic remedies, catalytic remedial practices, and empowered participatory jurisprudence. In this article, I locate recent adjudicative practice by the judiciaries in India and South Africa within the democratic experimentalist framework. Part I of the article lays out the general theoretical framework to understand democratic experimentalist practices which helps us spot what is - and is not - judicial practice that adheres to such a framework, while also laying out the strengths and weaknesses of such approaches. I claim that a democratic experimentalist framework is an analytic, rather than a descriptive category of judicial approaches. Part II offers a novel framework to understand democratic experimentalist approaches to the adjudicative enterprise by suggesting that they are best understood as: a) ways of arriving at a remedy in social rights litigation (experimentalist remedial design), b) ways of following up, monitoring, and evaluating compliance with the judgments and orders of a court (experimentalist remedial oversight). Parts III and IV use the framework developed in Part II to describe two cases each from South Africa and India, which used, with varying degrees of success, democratic experimentalist approaches to adjudication. I conclude by reading the tealeaves and sketching the prospects for such an approach in future cases in these two courts, as well as courts around the world – when adjudicating social rights.   Keywords: Democratic experimentalism – Socioeconomic rights – Judicial review –Separation of powers – Comparative constitutional studies