Adjudicating Social and Economic Rights: Can Democratic Experimentalism Help?

Abstract

Social and economic rights (SER) adjudication is an ever more common feature of rights-protecting democracies. Yet democratic concerns continue to be expressed: the threat of a judicialized politics, a politicized judiciary, co-opted claimants, distorted markets, and other (real and imagined) challenges. These concerns are raised within jurisdictions that have not yet entrenched SER and those in which SER are explicitly justiciable. Scholars seeking to address, or at least quiet, such concerns often explore the real-world examples of SER justiciability in South Africa, India, Colombia, Brazil, Argentina and other jurisdictions discussed in this book. Another approach is to examine new ways of theorizing the models of democratic representation and separation-of-powers implicit in these criticisms and to test these new models against comparative experience. This chapter examines the promise of the approach of “democratic experimentalism”. We begin by cataloguing the typical critiques of SER adjudication and then describe how democratic experimentalism, read sympathetically, responds to each. Next we apply these responses to the Mazibuko right-to-water case in South Africa and imagine an alternative approach to that case. Our thought experiment is meant to bring the pros and cons of democratic experimentalist thinking into sharp relief. We suggest that, while the theoretical and practical program of democratic experimentalism retains the potential for securing more democratic participation in SER adjudication, it might nevertheless entail significant costs for under-resourced, unorganized and politically-weak claimants. This conclusion raises the question whether any new procedural or remedial formats for SER adjudication can help to realize such rights without a fundamental rethinking of the material preconditions of democracy itself.