rights are located at the other end of the spectrum. They argue not that courts should do more if
they want to be relevant, but rather than they should do things differently if they want to remain
within the boundaries of their mandate. These responses emphasize that the apparent contradiction
between a greater role of courts or other independent monitoring bodies in enforcing such rights, on
the one hand, and democratic self‐determination on the other hand, is by no means necessary:
rather, it is linked to a certain mode of institutionalization of judicial decision‐making, that can be
changed.
Indeed, Landau's challenge may also be seen as a call to invest new ways of delivering justice. One
route that may be followed in this regard is by trusting courts with the duty of perfecting the political
process. This first path is illustrated by the ‘cooperative model’ of the relations between different
branches of government, in which judges and other authorities interact in ways that favor a
‘constitutional dialogue’ as to how human rights should be implemented (Scott and Nedelsky (1992)),
or in which courts grant remedies that require other branches of government to come up with their
own solution to the problem that has been identified through the judicial process (Scott and Alston
(2000)). As noted by Sandra Liebenberg: "The courts can place a burden on the executive and the
legislature to justify the reasonableness of their policy choices in the light of the constitutional
commitment to economic and social rights. Should they fail to discharge this burden of justification, a
court may issue a declaratory order to this effect. This can set the parameters for a constitutionally
acceptable decision while still preserving sufficient ‘space’ for the exercise of a choice of means by
the legislature" (Liebenberg (2001): 60). When courts intervene to protect economic and social rights
through such means, it cannot be said that they exercise a power that is removed from other
branches of government: what we are seeing in not a zero‐sum game, but one in which the political
branches are strengthened by such judicial intervention.
Other arguments may be put forward to emphasize the complementarity between the role of courts
and that of parliaments or the Executive. The realization of certain economic and social rights, in
particular the right to education, has a key role to play in the good functioning of a democratic
process based on deliberation. Moreover, by identifying violations of economic and social rights,
courts bring to the attention of the political branches of government issues that they might
otherwise have ignored, encouraging a public debate on these issues and requiring that the choices
made are justified in the light of such consequences as may have been highlighted through litigation.
The specific contribution of courts is to ensure not only that macro level injustices are being
addressed, but also that in the design and implementation of public policies that seek to remedy
societal problems, attention is paid to the poorest and most marginalized groups within society. The
voices of these groups often may be more easily heard through the judicial process, as material
deprivation is often combined with political disempowerment. The role of courts may therefore
consist in making these groups visible, and thus in ensuring that their specific needs are not
neglected in the design and implementation of public policies: as noted by the South African
Constitutional Court in an evictions case in the Province of Eastern Cape, while the judiciary "cannot
of itself correct all the systemic unfairness to be found in our society", "it can at least soften and
minimise the degree of injustice and inequity which the eviction of the weaker parties in conditions
of inequality of necessity entails" (Constitutional Court of South Africa (2005): para. 38).
For all these reasons, far from being undermined, the exercise of democratic self‐determination may
in fact be reinforced and supported by the intervention of courts, ensuring that democratic
deliberative processes will work better. But there is moreover another way to mitigate the apparent
tension between judicial intervention to preserve economic and social rights and the requirement of
democracy. The tools at the disposal of courts to discharge their traditional function of designing
remedies are not fixed once and for all: they may be transformed in the name of the quality of
democratic deliberation itself. This second path is illustrated by a range of decisions in which,
moving beyond the simple violation / non‐violation dichotomy, courts adjudicating economic and
12
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction