The right-remedy gap in economic and social rights adjudication: Holism versus separability

Abstract

If the right-remedy gap is an inevitable feature of constitutional law, it is all the more so for constitutional economic and social rights. Yet such rights – to have access, for example, to health care, education, social security, housing, food, water, sanitation, or other good or service or opportunity deemed fundamental to human freedom and dignity – are not uniform in the remedial gaps that occur. This article introduces the orientations of holism and separability to demarcate the distinctive challenges of rights adjudication across different policy domains. A holistic understanding of economic and social rights points to the institutional challenges faced by courts in reviewing socio-economic laws and policies in general. A separable analysis of discrete economic and social rights helps to clarify the remedial constraints of each. These effects are demonstrated by the remedies ordered by courts with respect to identified infringements of South Africa’s constitutional rights to housing, health care, social security, and education.

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