Beyond minimalism and usurpation: designing judicial review to control the mis-enforcement of socioeconomic rights Designing judicial review to control the mis-enforcement of socioeconomic rights

Abstract

Resumo This work critically evaluates the judicial enforcement of socioeconomic rights and its associate discourses. Drawing on the findings of an empirical research study on the health care-related litigation in Brazil, I argue that none of the two main arguments that drive this constitutional law debate —judicial minimalism and judicial usurpation— offer a complete account as to what I call the mis-enforcement of rights: a scenario with a deficit of inequality resulting from non-justified distributive and aggregate effects due to the judicial protection of a target group. I present evidence that two overlooked structural factors are actually in the roots of the mis-enforcement: the right-based legal reasoning and the litigation system focused on individualized lawsuits. Thus, in order to reorient the debate, I propose a design approach, according to which judicial enforcement of socioeconomic rights in dysfunctional democracies is legitimate as long as it focuses on (i) improving social change through a distribution of goods that guarantee basic needs to disadvantaged groups, under the counter-majoritarian principle, and on (ii) providing the institutions with incentives to effectively take political issues back to the democratic process. Achieving this purpose requires the adjudicatory practice (i) to regard issues more likely to arise in socioeconomic rights-related litigation —such as needs and recipients; (ii) to address background rules that interfere in the dynamics of enforcement— such as the distributive and aggregate effects; and (iii) to observe a procedure that promotes democratic values, such as political engagement, institutional accountability, representativeness, and openness.