Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights

Abstract

There is little agreement among legal thinkers about whether and how courts can competently and legitimately enforce constitutional social and economic rights (SERs). The principal concern is that judicial enforcement would require courts to design and manage costly social welfare programs, tasks for which judges lack the requisite democratic mandate and institutional expertise. However, courts have been increasingly willing to enforce SERs in recent years while remaining mindful of limits on their institutional capacity to do so. This article classifies and critiques the dominant ways that such courts-primarily in Canada, the United States, and South Africa-enforce SERs. It concludes that the prevailing approaches are weakest where governments have done the least to fulfill their constitutional SER obligations. Further, this article identifies emerging approaches that require structured accountability in government efforts toward SER realization. It suggests that these approaches, understood within the context of new governance or "experimentalist" theory, better provide for the effective, coherent, and competent enforcement of SERs in the face of government recalcitrance than do the prevailing tools. The paper concludes with a case study assessing the usefulness of experimentalist SER enforcement with reference to a possible right to health under the Canadian Constitution.

Keywords: Civil rights, Political persecution, Constitutions, Social & economic rights, Basic needs, Public welfare, Social services, Charities, Social problems