The Court’s Dilemma in Social Rights’ Enforcement

TY - CHAP

T1 - The Court’s Dilemma in Social Rights’ Enforcement

AU - Ferraz, Octávio Luiz Motta

N1 - Publisher Copyright: © The various contributors 2021.

PY - 2021/1/1

Y1 - 2021/1/1

N2 - This chapter presents a critical approach towards the role that many courts are assuming in the protection of socio-economical rights in the Latin American context. It argues that the proper role of courts must necessarily vary according to the formulation of the social right in question. As a general rule, the more absolute and specifically formulated the right - or its corresponding obligation - the higher the institutional competence (legitimacy and competency) of courts will tend to be, and vice versa. When obligations are stated in vague fashion, such as the right to housing, health, and education in Colombia, Brazil, and South Africa, the room left for interpreting contending definitions is not only ample, but it often involves the intractable question of social policy design that must be studied by the executive and legislative branches. The chapter then contends that courts should play, at most, a complementary role. It invites courts to take more creative approaches in the enforcement of socio-economic rights.

AB - This chapter presents a critical approach towards the role that many courts are assuming in the protection of socio-economical rights in the Latin American context. It argues that the proper role of courts must necessarily vary according to the formulation of the social right in question. As a general rule, the more absolute and specifically formulated the right - or its corresponding obligation - the higher the institutional competence (legitimacy and competency) of courts will tend to be, and vice versa. When obligations are stated in vague fashion, such as the right to housing, health, and education in Colombia, Brazil, and South Africa, the room left for interpreting contending definitions is not only ample, but it often involves the intractable question of social policy design that must be studied by the executive and legislative branches. The chapter then contends that courts should play, at most, a complementary role. It invites courts to take more creative approaches in the enforcement of socio-economic rights.

KW - Courts

KW - Institutional competence

KW - Latin america

KW - Obligations

KW - Social policy design

KW - Socio-economical rights

UR - https://www.scopus.com/pages/publications/85131495031

U2 - 10.1093/oso/9780192896759.003.0011

DO - 10.1093/oso/9780192896759.003.0011

M3 - Chapter

AN - SCOPUS:85131495031

SP - 202

EP - 236

BT - Constitutionalism

PB - Oxford University Press

ER -