Positive Rights – who decides?

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Klatt, Matthias
Positive rights, Who decides? Judicial review in balance
International Journal of Constitutional Law 13 (2015), S. 354-382

Positive rights which require the state to take action are often criticized because they give rise to the justiciability problem. Courts, rather than democratic legislatures, decide upon the scope and content of the rights. This article argues that this democratic objection against positive rights is misguided. Judicial review and deference admit of degrees. Hence, it is possible to arrive at a balanced account of judicial review which avoids the problems of both too much and of too little control. The conflict between the competences of the legislature and the courts can be solved by means of a balancing exercise, the details of which are spelled out here. The model of judicial review in balance is further explained using a case analysis which concerns the right to a dignified subsistence minimum. The article provides a sensitive and flexible solution to the problem of how courts should enforce social and socio-economic rights.