One distinctive feature of constitutions developed in the twentieth-century is the almost uniform inclusion of socioeconomic rights provisions—rights to basic human needs such as food, water, shelter, health care and education. Despite their relative ubiquity, however, judicial enforcement of these rights remains relatively controversial in theory and problematic in practice.
While concerns over judicial review arguably are heightened in the socioeconomic rights context, the arguments over enforcement of these rights largely mirror the debate over judicial enforcement of constitutional rights more generally. In particular, both debates focus on the undemocratic nature of judicial review and consequently are concerned with defining (and confining) the judicial role in ways that maximize its legitimacy.
Defenses of judicial review are connected to those of adjudication more generally and often locate their legitimacy in a set of procedural characteristics, including judicial independence, structured participation and reasoned decisions that promote objective results and serve the public interest. Lon Fuller in his famous essay The Forms and Limits of Adjudication defines “the distinguishing characteristic of adjudication” as “the fact that it confers on affected parties a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favor.” In a related vein, Owen Fiss argues that judicial review is rooted in a “conception of the judicial function [that] sees the judge as trying to give meaning to our constitutional values” and a “process through which that meaning is revealed or elaborated.”
The more flexible, person-centered processes associated with alternative dispute resolution or “ADR” are often contrasted with adjudication. Both critics and proponents of alternative dispute resolution often assume that, unlike adjudication, these processes are inherently limited to solving particular disputes and thus are unable to establish precedents applicable beyond a single dispute. This severely limits the capacity of ADR to generate public values and perform the norm-creation function usually associated with adjudication generally and constitutional adjudication in particular.
This Working Paper challenges the general perception that alternative dispute resolution processes cannot develop public-law norms. A recent trend in ADR literature has sought to define a public norm-creation role for ADR in part by connecting these processes to other alternative legal and political problem-solving methods. Thus, Carrie Menkel-Meadow has argued that there are strong connections between deliberative democracy theory and the ADR movement including a shared appreciation for “constitutional experimentalism . . . in which there are feedback mechanisms for sharing and coordinating local outcomes with the broader polity.” Similarly, Susan Sturm and Howard Gadlin have argued that ADR processes are capable of generating public-law norms “when relevant institutional actors develop values or remedies through an accountable process of principled or participatory decision making, and then adapt those values and remedies to broader groups or situations.” Focusing on a recent South African Constitutional Court case in which the Court interpreted the right to housing in the South African Constitution to require that municipalities develop processes for negotiating—or, in the Court’s language “engaging”—with citizens affected by redevelopment plans that may involve eviction, this paper considers how these claims about the norm-creation potential of ADR processes could be developed in the context of constitutional adjudication of socioeconomic rights.
The heightened legitimacy and separation-of-powers concerns associated with socioeconomic rights means that they have been a rich source of examples for examining how alternative enforcement approaches. The South African Constitutional Court is one of the most active courts in this area, and its decisions are cited as models both by other jurisdictions and in the academic literature.
The Court’s most recent housing-rights decision, Occupiers of 51 Olivia Road v City of Johannesburg, portends a potentially important development in its approach to enforcement. The Court adopted the term “engagement” to describe a unique remedy it developed—in essence, a permanent negotiation/mediation requirement in housing-rights cases that may involve eviction. Properly implemented, the engagement remedy can be developed into a hybrid dispute resolution model that integrates ADR processes with formal adjudication in a manner that enhances the legitimacy of the resolution and creates the possibility for the extra-judicial interpretation and enforcement of socioeconomic rights. This hybrid process is particularly well-suited to enforcing socioeconomic rights because it is at once both more democratic than formal adjudication and also more flexible and responsive to the practical concerns that socioeconomic rights raise.
Part 2
Part II of this Article outlines two classic but competing accounts of the procedural justifications for adjudication and related assessments of the limitations of ADR processes by Fuller and Fiss.
Part 3
Part III analyzes two related articles by Sturm and Gadlin that develop this argument. Sturm first identifies four key characteristics that Fuller’s and Fiss’ accounts share and argues that these characteristics can be advanced through the use of mediation in the remedial phase of public-law litigation. Sturm and Gadlin in a more recent article propose an ADR model that promotes those same values and therefore can be used to develop public norms outside of adjudication.
Part 4
Part IV summarizes the debate over socioeconomic rights generally and the specific debate over the South African Constitutional Court’s enforcement approach and identifies important ways in which the arguments there track the debate over the relative roles and legitimacy of adjudication and ADR. It then describes the Constitutional Court’s most recent decision and argues that the engagement remedy the Court adopted can be developed into a hybrid process that incorporates aspects of both adjudication and mediation/negotiation in a way that retains the flexibility and responsiveness Fuller prizes in ADR while still protecting the legitimacy norms both Fuller and Fiss associate with adjudication.
