Jump to ContentJump to Main Navigation
Show Summary Details
More options …

ICL Journal

Vienna Journal on International Constitutional Law

Editor-in-Chief: Bezemek, Christoph / Eberhard, Harald / Fuchs, Claudia

Online
ISSN
1995-5855
See all formats and pricing
More options …
Volume 12, Issue 4

Issues

Commandeering the Institutions: The Legitimacy of Structural Judicial Remedies in Comparative Perspective

Guillermo Otálora Lozano
Published Online: 2019-03-08 | DOI: https://doi.org/10.1515/icl-2018-0021

Abstract

In some countries, courts protect constitutional rights by ordering broad institutional reforms and overseeing those reforms. These broad orders are known as structural remedies, and they are currently part of the judicial practice of the United States, India, and Colombia. Structural remedies pose a problem of democratic legitimacy in that courts substitute for legislatures or administrators. This paper argues that structural remedies are democratically legitimate as long as they are used as a last resort and are aimed at addressing a specific institutional pathology within the legislature or the bureaucracy. Drawing from the experience of the United States, India, and Colombia, the paper distinguishes counter-legislative from counter-bureaucratic remedies in order to show that the democratic concerns raised may vary depending on the affected institution. The paper argues that structural remedies are legitimate if they are capable of correcting a pathology in the legislative or administrative process. With respect to legislatures, structural remedies should aim at improving the representative or the deliberative quality of legislative decisions. In the case of bureaucracies, they should aim at improving the subordination of agencies to the political process, their responsiveness to citizens’ concerns, and the expertise with which their tasks are carried out.

Keywords: structural remedies; remedies; social rights; counter-majoritarian difficulty

About the article

Published Online: 2019-03-08

Published in Print: 2019-03-26


Citation Information: ICL Journal, Volume 12, Issue 4, Pages 387–429, ISSN (Online) 1995-5855, ISSN (Print) 2306-3734, DOI: https://doi.org/10.1515/icl-2018-0021.

Export Citation

© 2018 Walter de Gruyter GmbH, Berlin/Boston.Get Permission

Comments (0)

Please log in or register to comment.
Log in