Dialogic remedies

Abstract

Abstract Remedies have in the past and should in the future occupy a central place in constitutional theory. It is a sign of its maturity that dialogic theories of judicial review have produced new remedies such as suspended declarations of invalidity and declarations of incompatibility. Dialogic remedies, like dialogic theories in general, are vulnerable to critiques from judicial constitutionalists that they weaken the role of courts. This article responds by outlining a two-track approach to remedies inspired in part by Alexander Bickel. In the first track, successful litigants should generally receive some tangible remedy from a court, but in the second track, courts should generally defer to the superior ability of legislatures and the executive to select among a range of systemic remedies to produce better compliance with rights in the future. Such an approach follows the aspirations of dialogic theories in drawing on the distinctive and complementary strengths of judicial and political constitutionalism. The two-track approach is applied to remedial decisions involving both laws and executive actions. Examples include a Canadian decision that employed a suspended declaration of invalidity but also allowed judicial exemptions from an assisted suicide offense and South African cases that prevent evictions and provide remedies for individual students while ordering engagement to achieve systemic housing and educational remedies.