Realising rights here and now

Abstract

A focus on utopia risks obscuring complexities in the process of realising human rights in time through institutions of governance. This article recounts judicial rituals by which judges delay the coming into effect of their conclusion that a law violates human rights. Here the more ‘radical’ approach involves insisting on rights’ enforcement now. The article also addresses a controversy around the moment when a right began to produce legal effects that bind governments. This issue raises questions about how evolving understandings of rights fit into theories of the Constitution and judicial power. Last, the article analyses these examples’ displacement of rights from past and present to future. Where a utopian lens may imply a static condition, this article's cases underscore the processes of governance and of working out an inter-institutional division of labour. They invite attention not only to ends, but also to means.

Keywords:

• human rights
• utopia
• remedies
• South Africa
• Canada