Between Usurpation and Abdication? The Right to Health in the Courts of Brazil and South Africa

Abstract

In this paper I argue that the dilemma between usurpation and abdication that courts inevitably face when they are called upon to adjudicate constitutionalised social and economic rights is indeed a real and intractable one. I try to substantiate my conclusion with a comparative analysis of the social rights jurisprudence of the South African and Brazilian courts (particularly in the field of the right to health) which currently stand on opposite sides of the 'justiciability spectrum'. Whereas the South African reasonableness approach is seen as too deferential and abdicative of the judiciary’s role in protecting rights, the Brazilian individually enforceable rights approach is deemed too intrusive and usurpative of the prerogative of elected representatives to define how the limited resources of the state should be allocated among unlimited social needs. I argue, also, that the emerging cooperative constitutionalism theories, which try to apply the institutional dialogue theories of judicial review to social rights adjudication, do not solve the dilemma. They are currently largely procedural, and therefore liable to the same charges of abdication levelled at the reasonableness approach of the South African Constitutional Court. But if they try to become more substantive, they will certainly attract the accusations of usurpation currently levelled at more assertive courts such as the Brazilian STF. I conclude, then, that the dilemma might be unsolvable until either a more stable consensus on what social and economic rights entail emerges or the expectation that rights necessarily imply strong judicial remedies gradually wanes.