Optimisation through innovation: judicial exercise of discretionary remedial power to enforce the state's positive human rights duties

Thesis

This thesis bridges remedial theory and practice to explore how the judicial exercise of discretionary remedial power can be optimised to enforce the state’s positive human rights duties. Recognising both the difficulty and the importance of remedying breaches of the state’s positive duties, this thesis advances a constructive project that illuminates not just the risks but also the potential rewards of discretionary remedial power.

Part I develops a theoretical account of the optimal exercise of discretionary remedial power that is attentive to both the challenges and the responsive nature of the judicial task in remedying breaches of the state’s positive duties. I argue for a principled exercise of discretionary remedial power that involves the contextualised prioritisation and optimisation of four remedial principles: (1) Effective Relief, (2) Systemic Compliance, (3) Institutional Responsiveness, and (4) Institutional Complementarity. Remedial decision-making should not only assign a conditional order of preference to the remedial principles when they are in tension, but also optimise all four principles as far as possible in any particular case.

Part II uses a case study method to illuminate how this imperative of optimisation can be achieved through remedial innovation. Using the evaluative framework developed in Part I of the thesis, I trace the trajectory of remedial development in two case studies: the litigation on education financing run by the Campaign for Fiscal Equity in New York State, and the education litigation on school infrastructure, furniture and teachers run by the Legal Resources Centre in South Africa. In drawing out the potential of the featured remedial innovations for addressing the distinctive remedial challenges posed by positive duties, my thesis demonstrates how the exercise of discretionary remedial power can be optimised through innovation.

Authors: Taylor, HM

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: judicial discretion; remedies; positive duties; constitutional remedies; human rights; right to education; courts
• Subjects: Human rights; Constitutional law; Comparative law