Constitutional Rights without the Notion of OptimizationLimiting Judicial Activism in the Realm of Social and Economic Rights

Abstract

Abstract This chapter argues that apex courts should not take the place of the legislative or the executive branch. It takes a critical stance towards the notion of optimization that legal principles entail. Optimization results in judicial activism that, in turn, shifts the power from politics to courts. The chapter then looks at some decisions by the German Federal Constitutional Court considered 'activist decisions' in the realm of socio-economic rights, and compares their follow-up with the Colombian experience. It suggests that judges must play a rather modest role and limit themselves to a case-by-case rationale even if social rights are systematically under-enforced. The chapter also calls the courts' attention to be aware of the financial restrictions of their countries. Finally, it asks courts to create incentives for the legislatures and executive branch to commit with social and economic rights, and insists that follow-up measures should not be taken by apex courts, but rather by the political branches.