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<p>This paper develops a theoretical framework explaining how courts can use different remedial strategies in order to adjudicate economic, social and cultural (ESC) rights while respecting the limitations faced by judges in making decisions regarding social justice. These limitations are conceptualized on the basis of the legal process school of thought of Hart and Sachs. Jurisprudence from the Global South is used to identify five remedial strategies or pathways that allow judges to apply social rights within the identified constraints: (a) redress, (b) voice, (c) unblocking, (d) burden shifting, and (e) agenda upgrading. The paper then explains the added value that each of these strategies produces, allowing judges to interact in a principled manner with the legal process concerning ESC rights, without overstepping the boundaries of the judicial role.</p>

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Theorizing the Adjudication of Economic, Social and Cultural Rights: A Legal Process Perspective on Jurisprudence from the Global South

  • 期刊论文

  • 出版模式：

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  • 发表日期：

    2026年7月29日

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  • Shuyuan Zhang,
  • Gustavo Arosemena

摘要

This paper develops a theoretical framework explaining how courts can use different remedial strategies in order to adjudicate economic, social and cultural (ESC) rights while respecting the limitations faced by judges in making decisions regarding social justice. These limitations are conceptualized on the basis of the legal process school of thought of Hart and Sachs. Jurisprudence from the Global South is used to identify five remedial strategies or pathways that allow judges to apply social rights within the identified constraints: (a) redress, (b) voice, (c) unblocking, (d) burden shifting, and (e) agenda upgrading. The paper then explains the added value that each of these strategies produces, allowing judges to interact in a principled manner with the legal process concerning ESC rights, without overstepping the boundaries of the judicial role.