David Landau Responds to Mark Tushnet

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium of late January. It was originally posted on March 9, but we repost it today to avoid confusion with other journal symposia.]

I would like to thank Mark Tushnet for his thoughtful reply to my article. As he notes, it is a deeply positive development that we have moved from talking about whether constitutions should include social rights to how they should do so. The debate about means is a particularly difficult theoretical and empirical problem, one that is likely to be one of the central debates in the field of comparative constitutional law for a long time. And the question of the effect of social rights on the poor ought to be perhaps the central question in evaluating these various means.

In this light, we ought to consider the question of whether all four of the remedial methods I discuss can be improved upon. There seems to be little debate on the question of whether individual enforcement of social rights and enforcement of these rights via “negative injunction” are useful poverty reduction tools. Neither seems effective as currently constructed, but it is important to think about whether either device could be improved. For example, the individual enforcement model might be creatively engineered to have more of a system-wide effect, perhaps via a liberal use of contempt-like sanctions. Similarly, some of the recent South African jurisprudence may have demonstrated that even the “negative injunction” or status-quo-protecting model can benefit the poor in important ways, if cleverly deployed. The South African courts have refused to evict residents (thus freezing the status quo) in order to push the government to upgrade existing settlements rather than razing them and undertaking wholesale renewal. And in one case, a court refused to allow private property owners to evict impoverished squatters but allowed those private property owners to seek damages against the state – this may be an effective way to incentivize the bureaucracy to solve the problem.

The main disagreement between Professor Tushnet and my piece is on the other two types of remedies; in other words, on the question of softer, dialogue-based remedies versus harder, structural injunctions. Professor Tushnet tends to favor the former and I tend to favor the latter. I admit that this is a difficult choice, especially since courts are constrained by various features of their political environments – very hard remedies might well be infeasible in a one-party state like South Africa, for example. And as I note in the paper, structural injunctions are sometimes effective, but have considerable capacity costs on courts and often do not achieve much. So the choice of remedies seems to me to be one between highly imperfect options. Also, I see the issue of hardness or softness in system-wide remedies as basically lying on a continuum – these are differences in degree rather than in kind. That is, as Professor Tushnet points out, both structural injunctions and softer remedies like Grootboom are dialogical in nature, but there are important differences in whether the court or the legislature leads the dialogue.

Professor Tushnet notes that structural remedies (such as Brown v. Board of Education) tend to start as softer remedies and to harden through time as the court tries to ratchet up pressure on recalcitrant political actors. He sees the “soft” stage as important for achieving buy-in by political actors – it gives these actors a chance to design social programs that advance constitutional goals while also serving their own political interests. I agree that this is important – as Tushnet notes, the displaced persons litigation in Colombia achieved some of its goals because the administration was able to create a bureaucracy, Accion Social, which served its electoral interests as well as aiding displaced groups. And in general, the most effective and durable social programs in Latin America – which involve the giving of money directly from the executive to impoverished citizens – succeed because of the same logic. Thus, as Tushnet points out, a fully command-and-control model where the court would develop every major detail of social policy in an area would not be effective.

But I think that in practice, the dangers of judges using remedies that are “too soft” are greater than the dangers of them using remedies that are “too hard.” Self-conceptions of judicial role in most of the developing world discourage remedial creativity and obvious judicial assertiveness. So, rather than being worried about a world in which judges fail to give enough space in their structural remedies for political actors, I am more worried about a world in which judges get stuck issuing a series of very soft remedies that do not achieve much. The course of South African jurisprudence might demonstrate the point – the Constitutional Court (perhaps because of political context; perhaps because of judicial self-conceptions) has moved only very slowly towards more assertive remedies than Grootboom. Its various forms of “engagement” may improve on the model, but only slowly and incrementally. Some accomplishments have been achieved via this route, but I think the aversion of both the South African Court and other courts towards more structural remedies has had detrimental effects on the development of policy.

This disagreement, though, is really overshadowed by two issues on which I think Professor Tushnet and I agree, and which are crucial for future development of the field. First, we need to know a lot more about how to prod bureaucracies into changing their social policies for the better in different kinds of political contexts. The way forward is not in issuing remedies for individual plaintiffs, but in figuring out ways in which courts can achieve more systematic change. And this is a daunting task, because the bureaucracies under study often lack capacity, and the interest groups being protected by the court generally have little political power. My skepticism about softer remedies rests on the idea that in dysfunctional political systems, a court sending an invitation to the political branches for open dialogue may well be met with radio silence, and that considerably more prodding may be necessary to achieve progress. But I recognize that this is an issue that needs more study, and where the answer is likely to vary by political context.

The second, related point is that the issue of remedial creativity needs to be put at the forefront of the debate, not only among scholars but also among judges. The exciting thing is that this appears to be happening in some places, as the jurisprudence of innovative courts on social questions begins to diffuse throughout their respective regions. As two examples, the Kenyan courts appear to be heavily influenced by the South African model built up around Grootboom – their jurisprudence reflects attempts to try and make the softer remedial approach more effective at achieving change. And legal actors in Argentina have been influenced by Colombia in trying to use more structural, system-wide remedies in recent cases. This diffusion and experimentation with different kinds of remedial models is probably our best hope for finding methods of social rights enforcement that actually help the poor.