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  • 9 - The Unconstitutional State of Affairs Doctrine

  • from Part IV - The Role of Courts in Building State Capacity and Promoting Effective Self-Government While Protecting Rights
  • Edited by Vicki C. Jackson, Harvard Law School, Massachusetts, Yasmin Dawood, University of Toronto
  • Book:
    Constitutionalism and a Right to Effective Government?
    Published online:
    20 October 2022
    Print publication:
    27 October 2022, pp 107-123

  • Summary

    Constitutional adjudication routinely works against the backdrop of the assumption of a functioning government. Courts dispose of individual cases by declaring a specific violation and issuing a specific remedy. They do not go beyond the individual case because, by design, the political branches – legislatures and executive branches – are supposed to protect, respect, and ensure basic rights in most cases that do not reach the courts.

    However, this is not the case with massive and structural violations of rights. In peaceful times, massive violations of rights are usually not a product of malfeasance or bad faith; they are the result of precarious institutional capacity and dysfunctional policies, political processes, or systems of government. In other words, they are the consequence of specific instances of a lack of effective governance.