LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Reconciling corrective and distributive forms of justice 125
runs from rights to remedies, yet these cases show that it is the
reverse. 114
Criticism is, however, directed to the fact that the functions of
idealisation and actualisation are in some cases performed by the
same person, the judge. ‘Even though the meaning-giving process may
require a unity of functions, the risk is always present that the
performance of one function may interfere with the other.’ 115 It is
submitted that, although judges may use their shrewdness to devise
strategies that achieve structural reforms, for instance, their
independence is likely to be lost in this process. The need to work
through these strategies will force the judge to compromise on some
of his or her principles and lead to the sacrifice of some interests. 116
Some scholars therefore believe that rights and remedies represent
the ideal and the actualised, yet judges are not in a position to
perform both functions. 117 On the basis of this it is contended that the
courts lack the legitimacy to make policy decisions that may be
necessary in the process of actualisation. 118
The distinction between rights and remedies has also been
supported by the submissions that describe the intellectual fabric of
constitutional law. This intellectual fabric is believed to draw a
distinction between statements which describe an ideal that is
embodied in the Constitution, and a statement which attempts to
translate such an ideal into a workable standard for the decision of
concrete issues. The defining statement has been described as a
‘concept’ and the application statement a ‘conception’:
The distinction between a conception and its parent concept can explain
and justify some norms of apparent ‘slippage’ between a constitutional
norm and its enforcement. Thus, for example, it is possible for persons
to agree as to the abstract meaning — the concept — of a norm, yet
disagree markedly over the conception which ought to be adopted to
114 Levison (n 111 above) 27. This approach, which sees rights and remedies as being
inseparable, has been described as a ‘monistic view’. See Berryman (n 53 above)
9. Other scholars who believe in the relationship between rights and remedies
include H Lawson Remedies of English law (1980). Lawson’s point of departure is
that the phrase ubi jus remedium (‘where there is a right there is a remedy’) can
be followed in realistic terms by ubi remedium ibi jus (‘where there is a remedy
there is a right’) (1). He goes on to contend that the rights that are recognised by
the law have crystallised around the remedies - ‘a remediless right is not
regarded by lawyers as a right’ (1-2). Again, here Lawson differs from scholars in
his school of thought when he distils his discussion to the relationship, not of
rights and remedies, but of wrongs and remedies. It is not very clear why Lawson
prefers the term wrong to right.
115 Fiss (n 99 above) 53. He submits also that actualisation of a structural variety
creates a network of relationships and outlook which threatens the independence
of the judge and the integrity of the judicial process as a whole.
116 Fiss (n 99 above) 53-54.
117 It is, however, demonstrated in ch six sec 6.6.3 that judges could still perform
this function and maintain their impartiality and independence.
118 See Sager: 1978, at 1213.