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Dr. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
ACADEMIC SESSION:
2018 – 2019

JURISPRUDENCE
Human Rights and Remedial Equilibration: Equilibrating
Socio-economic Rights
Margaux J. Hall, David C. Weiss

SUBMITTED TO:- SUBMITTED BY:-

Dr. Manwendra Kumar Tiwari Vasudev Singh
ASSOCIATE PROFESSOR (LAW) Enroll.no- 166
Semester-5th
B.A.LLB. (HONS.)
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ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to Dr. Manwendra Kumar Tiwari who gave
me the golden opportunity to do this wonderful project on the topic- ‘Article Review of Human
Rights and Remedial Equilibration: Equilibrating Socio-economic Rights ’, who also helped me
in doing a lot of research, I am really thankful to him.

Secondly, I would also like to thank my seniors and friends who helped me a lot in finishing this
project within the limited time.

Thank you,

Vasudev Singh.
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DECLARATION

I hereby declare that the project entitled ‘Article Review of Human Rights and Remedial
Equilibration: Equilibrating Socio-economic Rights ’ submitted for the "semester evaluation
project" is my original work and the project has not formed the basis for the award of any degree,
associate ship, fellowship or any other similar titles.

Signature of the Student:

Place:

Date:
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CONTENTS

Introduction ................................................................................................................................................... 5
Rights essentialism, Remedial deterrence, and Remedial equilibration ...................................................... 6
Theories of Socio-Economic Rights ............................................................................................................... 8
Theories of socio-economic remedies .......................................................................................................... 9
Rights- Remedies Equilibration ................................................................................................................... 11
Implications of a more harmonious view of rights and remedies .............................................................. 12
Conclusion ................................................................................................................................................... 13
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Introduction
This is an analysis of the article, “Human Rights and Remedial Equilibration: Equilibrating
Socio-economic Rights” written by Margaux J. Hall and David C. Weiss. It is divided into five
sections. This article throughout its length talks about the concept of equilibrating the socio-
economic rights, the different theories of these rights, theories of remedies and the rights-
remedies equilibration embodied in the human rights jurisprudence of the United States of
America. It also takes into account the cases of South Africa to elucidate the concept remedial
deterrence, finding a socially and economically justifiable fine balance between rights and
remedies, the authors chose as they have done their research field work in South Africa.

Before we start analyzing this article firstly we need to understand what are socio-economic
rights? These rights include the human right to work, the right to an adequate standard of living,
including food, clothing, and housing, the right to physical and mental health, the right to social
security, the right to a healthy environment, and the right to education. 1

Economic, social and cultural rights are part of the body of human rights law that developed in
the aftermath of World War II. Human rights law includes all economic and social rights, as well
as civil and political rights like the right to free speech and the right to a fair trial2 These rights
are deeply intertwined: for example, the right to speak freely means little without a basic
education, the right to vote means little if you are suffering from starvation.

Secondly, we need to understand the meaning of term remedial equilibration? This term is used
to convey the idea that the constitutional rights and remedies go hand in glove, i.e., the rights and
remedies are interdependent on each other and they cannot be separated from each other. This
concept runs contrary to the theory of “rights essentialism” enshrined in the US constitutional
law, in “rights essentialism” the normative task of “essentializing” is reserved for the judiciary,
which is uniquely equipped to intuit the true meaning of constitutional values like due process,
liberty, or equality and if they found it constitutes a right then will get on the step to provide

1
International Covenant on Economic, Social and Cultural Rights

2
http://www.cesr.org/what-are-economic-social-and-cultural-rights, last accessed- 14.10.2018
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remedy. Prof. Daryl levinson criticized “rights essentialism” as the model which considers the
rights and remedies as to different entities which have no link.

Rights essentialism, Remedial deterrence, and Remedial equilibration

The author discussed elaborately the concept of rights essentialism, remedial deterrence, and
remedial equilibration, laying the groundwork for later claims that these concepts are sorely
lacking in human rights and particularly socio-economic rights. The author focused greatly on
making these elements clear to the reader so that the reader can easily understand later their
representation in the human rights law jurisprudence. Initially, author discussed regarding the
basic elements of these concepts by giving references to the relevant cases of South Africa, USA
and the other countries. The author also gave views of mainly Prof. Levinson regarding the
meaning of the “rights essentialism,”, for instance, Prof. Levinson argues that “the core
assumptions of rights essentialism seem strange when stated expressly and contextually.”3

The term “rights essentialism” lays down the model under which the judges first identify a pure
right with intrinsic value. The gravity of the identified right by the judiciary is then adjudicated
on the basis of its source of derivation, such as if a right is enshrined in the law of the land then it
will be considered as a constitutional right and the judges will give identify the right. In rights
essentialism the power has been given to the judiciary because it is expected to work
independently and it will not identify any right as a human right which is not backed by
appropriate sources or it will not think otherwise in identifying a right as human right if it is
backed by appropriate sources. Prof. Levinson criticized this notion by putting forward the
argument that the division of labour in identifying rights and in their enforcement cannot be done
in such a simple way because these tasks of identification and implementation are very
overlapping in their nature. Also, he had advanced another argument which states that the
concept of rights and remedies are in an developing phase, the concept of this division of labor is
not keeping up with the time.

After establishing the concept of “rights essentialism” the authors brings up the concept of
“remedial deterrence” before the readers. “Remedial deterrence” in simplest words would be
described as when the cost of a remedy deters the court from realizing a right. In some situations

3
Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 859 (1999)
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it becomes unpragmatic for the courts to provide the hefty remedy for the violation of the right
so in those situations they come up with narrow interpretations of the rights to avoid these
unfeasible costs. The authors also specifically points out that in remedial deterrence the rights
and remedies are not considered as two different entities rather when courts find them unable to
compensate for the violated right even after the providing the remedy, then the alter the right
itself. Further, the authors points out that the domestically and internationally it is tried to keep
courts away from the political, economic, and social pressures but inevitably they confront the
pragmatic limitation which binds their hands in providing the remedy.

In this article, authors seems to be largely inspired by the thoughts of the Prof. Levinson
regarding the remedial equilibration. “Remedial equilibration” is used to convey the idea that
the constitutional rights and remedies go hand in glove, i.e., the rights and remedies are
interdependent on each other and they cannot be separated from each other. This concept runs
contrary to the theory of “rights essentialism” enshrined in the US constitutional law. Prof.
Levinson founds out the “remedial deterrence” as the most obvious form of the remedial
equilibration because it is a two way road in which rights and remedies both can be altered
accordingly if the judges find the violation of any right. Further, the authors elucidates a
exercise known as “remedial incorporation,” a remedy may also affect a right when the right
itself incorporates a remedy, as in the case of an equitable remedy like an injunction4. Here, the
authors gave the example of South Africa Constitutional Court, where the court has made clear
in its judgments that it can issue supervisory injunctions as it possesses remedial authority..
Henceforth, the authors moves on to point out the importance of the remedial equilibration. They
puts forward that this doctrine offers an alternate, more holistic view of human rights
jurisprudence in which rights and remedies operate in a symbiotic relationship. Later on, the
authors start comparing the remedies in human rights law with private laws but deriving the
inspiration is a flawed idea in my humble opinion because the conditions and stakes are
altogether different in both the laws.

In this article, the authors have a selective bias towards the concept of “remedial equilibration”
as they not given any criticism of it and they have offered only criticism of “rights essentialism”

4
Id
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Theories of Socio-Economic Rights

After explaining the doctrine of “rights essentialism”, “remedial deterrence”, and “rights
equilibration” and their role in adjudicating socio-economic rights in human rights law, authors
moves the direction of the discussion towards the theories of socio-economic rights. For the
purpose of this discussion the author firstly provides the context and background to “minimum
core” and “reasonableness” and then explain their significance and deficiencies.

The authors start by explaining the genesis to the minimum core theory. The minimum core
theory draws its structure from the German basic law which protects the essential content of a
constitutional right from potential limitation. The advanced model of this theory came from the
United Nations Committee on Economic and Social Rights(UNCESR) in the early 1990s.
UNCESR defined the minimum core as the minimum core obligation to ensure the satisfaction at
the very least, minimum essential levels of each of the rights is incumbent upon every State
party5. Further, the authors criticize the minimum core as it is of the rights essentialist view and
establishes strict accountability for the actions of the government, otherwise which is seen as
absent, but the scope is limited as it doesn’t take into its ambit the daunting task of resolving
hurdles, limitations.

Then the authors move towards the theoretical progeny of the minimum core theory, it this they
made an observation that the judges tries to seek out the minimum elements of a right by virtue
of their relationship to a constitutional right. This theory was proposed for the recognition of
rights in a liberal but it had lead to basic rights like right to life, dignity or shelter getting the
center place while the other second generation right being on the periphery and they are being
derived from these central rights. The authors used the example of Indian Supreme Court in
Union for Civil Liberties v. Union of India, in which the court no where expressly used the word
“ minimum core” but the court used the language which gives the same sense as that of the
minimum core, in this case the court didn’t recognized the peripheral right of right to food
directly instead they have derived it from the centrally placed rights. The authors criticized that
the approach to create the objective definition of socio-economic rights is instead complicating
the situation because these subjective rights cannot be adjudicated mathematically. Ultimately,

5
UNCESR, General Comment No. 3, article- 2, U.N. Doc. E/l991/23 (Dec. 14, 1990)
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authors opine that this “minimum core” principle is narrowing the range of rights instead of
broadening them.

After discussing the “minimum core” principle, the authors move on to the “reasonable
theories”. To elucidate this the authors used the example of South African case named Mazibuko
v. City of Johannesburg, the court rejected the minimum core argument of the plaintiff in
ensuring minimum liters of water for every person to live a life with dignity, instead some right
are subject to the “progressive realization”, i.e., these rights are punching above the minimum
baseline and it will be difficult for the nation to realize them because of the economical
constraints and they will be fulfilled with the time. Further, the authors opine that both the
“minimum core” and “ reasonableness” have their constraints, “reasonableness” gives the easy
way out the governments as it absolves them from the responsibility instead it blames the
economical and social aspects of the nation for the non-realization of the right..

Theories of socio-economic remedies

In this secti0n, the auth0rs discussed primarily the tw0 types 0f s0ci0-ec0n0mic remedies, which
are namely as weak f0rm review and the str0ng f0rm review. This Article 0ffered an alternative
c0ncepti0n 0f rights and remedies. In 0rder t0 lay the gr0undw0rk t0 d0 s0, this Secti0n
highlighted the0ries surr0unding the purp0se 0f remedies. It then assessed the traditi0nal “rights
essentialist” characterizati0n 0f remedies that accepts and expects disc0rd between pure rights
and tainted remedies. An alternative c0ncepti0n was pr0p0sed that seeks t0 “equilibrate” rights
and remedies by rec0gnizing that rights are defined in acc0rdance with desired and expected
remedial 0utc0mes.

“Weak f0rm” review is defined as the system in which c0urts can evaluate legislati0n t0
determine its c0nstituti0nality, h0wever, the legislature has r00m t0 reenact and ultimately
displace judicial interpretati0ns 0f the c0nstituti0n, thereby depriving c0urts 0f having the
ultimate “say” 0n the definiti0n 0f rights. T0 elab0rate this further, auth0rs cited the example 0f
S0uth Africa C0nstituti0nal C0urt rights enf0rcement where it all0cates significant discreti0n t0
the legislature t0 enf0rce s0ci0-ec0n0mic rights based 0n the significant budgetary implicati0ns
0f such enf0rcement decisi0ns. They als0 p0inted 0ut that the weak f0rm review all0ws f0r
m0re flexible remedial rules that evaluate c0ntextual elements, accepting less than c0mplete
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remedies in light 0f 0ther s0cial g0als. The auth0rs als0 discussed the criticism 0f S0uth African
C0nstituti0nal C0urt f0r empl0ying weak f0rm review that the c0urt is 0pting a narr0w view 0f
its r0le and hesitating t0 use the p0wer pr0vided t0 it t0 interpret the rights in a wise spirit. The
weak f0rm review ad0pts an “interest balancing” appr0ach which d0es n0t aim t0 harm0nize
rights and remedies. It pr0ceeds by taking the essence 0f a c0nstituti0nal right as a given, which
is then tempered by practical c0nsiderati0ns. In this manner, “interest balancing” pr0vides 0nly a
shall0w interpretati0n 0f the nuanced interplay between rights and remedies. This appr0ach
0versimplifies, it f0cuses entirely 0n the remedial pr0gram that f0ll0ws fr0m the existence 0f a
particular, pure right, with0ut c0nsidering h0w remedies alter that very right. Als0, they have
discussed ab0ut the R0salind Nix0n’s “c0nstituti0nal dial0gue” appr0ach which supp0rts weak
f0rm and it l00ks 0n b0th the rights and remedies but it fails t0 pr0vide a res0nance between
rights and remedies.

Then the auth0rs, m0ves 0n t0 the str0ng f0rm review which was defined as the c0urt's
c0nstituti0nal interpretati0ns are auth0ritative and binding 0n 0ther g0vernmental branches, at
least in the sh0rt- and medium-term. C0urts may 0rder that the g0vernment enact specific
changes t0 a pr0gram 0r p0licy, 0r at times issue a structural injuncti0n t0 ensure c0mpliance
with their c0nstituti0nal interpretati0n6. The C0nstituti0nal C0urt 0f S0uth Africa ad0pted the
str0ng f0rm review in the Treatment Acti0n Campaign, where the c0urt had vi0lated the right t0
health u/s-27 0f the C0nstituti0n in spite 0f having the ample res0urces, in this case the c0urt had
the final ask and 0rdered the g0vernment t0 end the scarcity 0f drug supply. Then further, the
auth0rs p0ints 0ut the limits 0f the str0ng f0rm review that might n0t be much viable in the
circumstances where there are instituti0nal restraints. They 0pined that str0ng f0rm is m0re
successful in achieving the “rights equilibrati0n” than the weak f0rm review but the maj0r
c0nstraint is that the str0ng f0rm review is a 0ne way r0ad, as it firstly finds 0ut the vi0lati0n 0f
right then pr0vides the remedy f0r the vi0lati0n. This 0ne way r0ad lacks a harm0ny between the
rights and remedies which is the ultimate aim 0f “rights equilibrati0n”.

6
Brian Ray, Policentrism, Political Mobilization, and the Promise of Socioeconomic Rights, 45 STAN. J. INT'L L. 151,
152 (2009)
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Rights- Remedies Equilibration

In this secti0n, the auth0rs tries t0 elucidate the n0ti0n that rights and remedies sh0uld be seen
t0gether as tw0 interdependent c0ncepts. Generally, the appr0ach in US c0nstituti0nal law and
internati0nal human rights law is t0 treat b0th 0f them as the tw0 separate entities, the auth0rs
tries t0 pr0vide an alternate appr0ach t0 this established practice.

The auth0rs cites the examples 0f rights-remedies harm0nizati0n in 0ther areas 0f law such as
the C0ntract law. Later 0n, emphasizes that these private law examples pr0vide a helpful
d0ctrinal lens thr0ugh which t0 view the disc0nnect between rights and remedies in s0ci0-
ec0n0mic rights jurisprudence. But bef0re putting int0 acti0n what Levins0n pr0p0ses—an
“equilibrati0n” 0f rights and remedies, it is imp0rtant t0 expl0re the fundamental premises
underlying rights and remedies. After that the auth0rs discusses the the0ries regarding the
functi0n 0f the remedies. They put f0rth the views 0f Gerwitz that “the functi0n 0f a remedy is
t0 ‘realize’ a legal n0rm, t0 make it a ‘living truth.” 7Gewirtz likens remedies t0 “the hard stuff
0f recalcitrant reality” that, alth0ugh as imp0rtant t0 jurisprudence as idealized rights, are
relegated t0 a far less glam0r0us existence.

Later 0n, the auth0rs c0mes 0n t0 the the0ry 0f rights equilibrati0n, they pr0vide the three
appr0aches which the rights equilibrati0n can be achieved effectively namely- Remedial
deterrence, Rights inc0rp0rating remedies, and Remedies impacting the values 0f rights but
maj0rly emphasized 0n the Remedial deterrence. Firstly, Remedial deterrence is uniquely useful
in s0ci0-ec0n0mic rights jurisprudence, helping t0 explain the lack 0f a clear bifurcati0n
between the allegedly c0ntradict0ry “interest balancing” and “rights maximizing” appr0aches.
C0urts may face barriers t0 instituting a particular remedy, such as practical infeasibility in light
0f financial c0nstraints. “Interest balancing” c0urts regularly engage in balancing, and the
remedial effectiveness f0r victims bec0mes just 0ne 0f the fact0rs relevant t0 the balancing
pr0cess. Even “rights maximizing” c0urts may c0nfr0nt unav0idable limits 0n achieving a
perfect remedy, and hence may have t0 balance a range 0f fact0rs in 0rder t0 achieve the cl0sest-
t0-perfect remedy f0r the victim. in many instances 0f s0ci0-ec0n0mic rights litigati0n—a class-
based lawsuit is br0ught, the individual litigants themselves may have irrec0ncilable c0nflicts.
The0retically, a fully effective remedy w0uld require that each member 0f the class 0f victims

7
Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585, 591-92 (1983).
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receive a c0mplete remedy. H0wever, 0ng0ing pr0blems 0f ev0lving membership 0f a class, and
different c0ntextual and hist0rical experiences with respect t0 the right (am0ng 0ther
c0nsiderati0ns) may implicate and prevent a full remedy. This may als0 mean that s0me pers0ns
wh0 suffer a rights vi0lati0n may never receive a remedy at all, as the remedial pr0gram.
Remedial imperfecti0n is, 0f c0urse, unav0idable. C0urts must resp0nd t0 this reality by making
ch0ices ab0ut h0w t0 distribute imperfecti0ns in remedial alternatives. In practice, c0urts
resp0nd thr0ugh a balancing pr0cess as they determine which g0als require assessing the relative
value and harm ass0ciated with the l0t 0f legally relevant interests and g0als t0 achieve
c0mpr0mise. Lastly, rights are shaped by remedial c0ncerns in s0 far as the m0netary value 0f a
right is 0ftentimes n0 m0re than what a c0urt w0uld pr0vide sh0uld the right be vi0lated. This
third c0nsiderati0n is perhaps the m0st 0bvi0us. In d0mestic jurisprudence, this w0uld mean that
c0urts w0uld limit their remedies f0r inadequate pris0n c0nditi0ns t0 0nly fixing th0se pr0blems
that are c0nstituti0nally insufficient.

Implications of a more harmonious view of rights and remedies

In this section, the authors talk about the major implications of adopting the “remedial
equilibration” doctrine. They covered mainly three major concerns, namely- rejecting rights
essentialism, rethinking institutional boundaries, and affirming judicial candor and transparency.
Hitherto, they have put forward their ideas, how right and remedies are connected in US law, and
how it ought to be done. Now, they are addressing the points of concerns which may arise in the
implementation of “remedial equilibration”.

Firstly, they address the implication of rejecting the doctrine of “rights essentialism”. The
authors on this point believe that the all rights cannot be determined by employing the litmus test
to determine whether they poses the essential elements to qualify as an right or not, rather the
judges face hurdles in such essentialist practice. Further, according to the authors the claim of the
essentialist that the right gets corrupted and diminished when translated into remedies is not
correct because rights are a dynamic concept and to provide a pragmatic remedy to the violation
it is essential to identify the changing character of the rights.

Secondly, they come on to address the judicial transparency, in “right equilibration” the rights-
remedies are interrelated and it raises question about the model which courts should adhere while
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dealing in such cases. They put forward the argument that courts were not always transparent in
making boundaries between rights and the remedies. Authors cite the Gerwirtz opinion that the
approach of “right equilibration” will make the difference between rights and remedy as the
judges will feel uneasy in advertising that they are delivering less than the right.

Conclusion
The authors initially elucidated the theories of socio-economic rights theories and remedies.
Then, the authors analyzed the merits and demerits of the existing approach and came to the
conclusion that rights and remedies are interdependent and cannot be viewed singularly,
although the approaches and the implications of the approaches for the achievement of the rights-
remedies equilibration can be debated. Throughout the article, the author has showed slight
inclination in favour of remedial deterrence approach to achieve rights-remedies equilibration as
the only . In his views this approach will pave a way for the betterment of socio-economic rights.
In the middle of the article, the author discusses about the genesis of remedial theories. At last,
the author comes to the impact of more harmonious views of rights and remedies on socio-
economic rights theories. This Article, therefore, rejects simplistic categorization of judicial
approaches as either “rights maximizing,” or else “interest balancing” and necessarily rights-
compromising. A satisfying and effectual approach to adjudicating “human rights” and “human
remedies” necessitates a unified and equilibrated analysis of the two. A more unified and
“equilibrated” approach yields a view of socio-economic rights and remedies that holds
enormous potential to foster creative and virtuous cycles of growth and measurable results in
“progressively realizing” socio-economic rights.