Dynamic Regulatory Constitutionalism: Taking Legislation Seriously in the Enforcement of Economic and Social Rights

Abstract

Since the global acknowledgement that economic and social rights can be entrenched alongside civil and political rights in domestic constitutions, four dominant models for the judicial enforcement of these rights have emerged: structural injunctions, the minimum core approach, the administrative law approach, and the ‘dialogic’ or ‘conversational’ models. This paper argues that each of these approaches fails to pay sufficient attention to the role of legislation in communicating a legal community’s fundamental normative commitments to the officials responsible for implementing economic and social rights. In situations where ‘social legislation’ has been enacted to structure official efforts to realize economic and social rights, this inattention to normativity caries a risk that officials will comply formally with statutory rules without a consideration of whether their conduct promotes the normative objectives of the legislation. In turn, courts will be required to intervene more frequently to uphold rights where official conduct is incongruent with the normative commitments of social legislation. This paper proposes that courts should uphold ‘normative congruence’ by ensuring that official conduct under social legislation is congruent not only with the formal terms of that legislation but also with the normative commitments it expresses. Courts should engage with officials to ascertain whether official conduct is based on an understanding of how normative commitments inflect the statutory rules that govern their conduct, and lead officials towards an understanding of this connection where it is lacking. Judicial engagement with officials in upholding normative congruence is a form of ‘dynamic regulatory constitutionalism’ that orients officials to the normative content of social legislation. The judicial enforcement of economic and social rights, whichever of the existing models a court employs, should proceed only on the foundation of this normatively rich dynamic regulatory constitutionalism.

Keywords: Recalcitrant Administrative Branch, Economic and Social Rights, Rule of Law, Administrative Law, Constitutional Law, Public Law Theory, Judicial Review