The New Managerialism: Courts, Positive Duties, and Economic and Social Rights

Abstract

An inseparable component of liberal constitutionalism is the respect accorded to so-called negative rights, which rest on duties of government restraint. But just as governments must have their hands tied, in this model, they must also work to secure rights, by actively and effectively planning, regulating, budgeting, and monitoring. These positive duties are particularly pronounced for so-called positive rights, which guarantee access to goods, services and opportunities such as social security, education, health care, land, food, water, sanitation, or to a clean environment. Of course, it is clear that so-called negative rights require both duties of commission and restraint; just as so-called positive rights call for the same. Nonetheless, the positive duties that attach to economic and social rights put particular pressure on courts, the executive, the legislature and civil society. Indeed, courts have become central in enforcing the negative and positive duties that arise from justiciable complaints about matters such as medical treatment denials, electricity and water shutoffs, evictions, schools and education outcomes, pollution levels, and food distribution schemes. The widespread adoption of economic and social rights in a majority of the world’s constitutions, combined with a pronounced shortfall in the realization of such rights, herald a new managerialism in constitutional government.

This chapter, under review for the edited collection, Constitutionalism and a Right to Effective Government, takes one prominent jurisdiction, South Africa, and examines how its courts have enforced constitutional rights to access health care, housing, electricity, water and sanitation, particularly in the last decade. It describes both interpretive and institutional trends. As a matter of interpretation, courts invoke the textual guarantees of effective, co-operative, federal government and public administration, alert to the capacity needs of municipalities, alongside express economic and social rights. As an institutional matter, courts are increasingly favoring a managerial dynamic, co-originating in South Africa’s case with the behaviour of the executive. Courts increasingly respond to ineffective government by personalizing responsibility, including through costs, joining state actors in private litigation, and supervising and controlling state assets. This chapter also shows how conventional alternatives to managerialism, such as dialogic or experimental review, have become more responsive to management deficiencies. This includes the dialogical suspension of orders, or when courts call on broader institutional actors, and or on existing duties on the state to budget and plan. It also occurs during experimental dispute resolution, when courts supervise a “meaningful engagement” between the parties, or other alternatives. Updating my earlier typology of judicial review, which argued that courts frequently acted as catalysts in provoking governmental or civil society responses, this chapter emphasizes a more urgent, managerial response.