Responsive judicial remedies

Dados Bibliográficos

ID6426103
AutoresRosalind Dixon (0000-0002-6613-8032, UNSW Sydney), Po Jen Yap (University of Hong Kong, autor correspondente)
Ano2025
Volume14
Fascículo2
Páginas323-348
Data de publicação2025-01-17
Peer ReviewedSim
Open AccessSim
TipoARTICLE
PeriódicoGlobal Constitutionalism (JOURNAL)
Identificadores do periódicoISSN: 2045-3817 • E-ISSN: 2045-3825
EditoraCambridge University Press (CUP) (PUBLISHER)
DOI10.1017/s2045381724000200
OpenAlexW4406540012
IdiomaEN
Referências citadas48

Judicial remedies are the critical means by which courts worldwide enforce and implement constitutional rights. Yet constitutional remedies were largely overlooked by early political process theorists, such as John Hart Ely. Contemporary comparative political process theory (CPPT) or comparative representation-reinforcing theory (CRRT) pays much greater attention to remedial questions, including the use of a range of ‘weak’ judicial remedies. These CPPT/CRRT scholars have highlighted the risks as well as advantages associated with the use of such remedies, but they have not reached any consensus on how to strike this balance and optimise their use. The article therefore draws on one specific recent version of CPPT/CRRT, namely the theory of ‘responsive judicial review’, to propose one way to strike this balance, namely: In cases impacting the ‘democratic minimum core’, courts should generally prefer strong remedies, with delayed relief only applied for prudential reasons; for other cases, courts should deploy more dialogic remedies, but generally these delayed or suspended remedies should be accompanied by a judicial statement of pre-defined strong remedies that take effect automatically in the event of legislative inaction. In this way, this article suggests that courts can give weak remedies ‘bite’, and hence promote actual legislative debate and dialogue, rather than incentivise legislative inaction after their rulings

Political science · Criminal Law and Evidence · Judicial and Constitutional Studies · Legal principles and applications · Psychology