Positive Rights – Who Decides? Judicial Review in Balance

International Journal of Constitutional Law 13, (2015), 354-382.

38 Pages Posted: 23 Mar 2017 Last revised: 11 Jun 2017

See all articles by Matthias Klatt

Matthias Klatt

Graz Jurisprudence; University of Graz - Faculty of Law

Date Written: 2015

Abstract

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.

Suggested Citation

Klatt, Matthias, Positive Rights – Who Decides? Judicial Review in Balance (2015). International Journal of Constitutional Law 13, (2015), 354-382., Available at SSRN: https://ssrn.com/abstract=2939191

Matthias Klatt (Contact Author)

Graz Jurisprudence ( email )

Universitaetsstrasse 15
Graz, 8010
Austria

HOME PAGE: http://www.graz-jurisprudence.at

University of Graz - Faculty of Law ( email )

Universitätspl. 3
Graz, Styria 8010
Austria

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