Professional Documents
Culture Documents
1. Introduction
Positive rights require the state to take action, rather than refrain from unjustified
interference. Positive rights require the state to actually do something. They have
been the object of growing interest in quite a number of jurisdictions in the last two
decades. They have received a considerable amount of attention from comparative
constitutional scholarship attempting to come to terms with the special character of
positive rights, as opposed to negative rights.1
It is widely accepted that any attempt to limit the positive dimension of rights to
certain types or categories of rights is futile. Rather, all rights can impose negative
* Professor of Public Law, EU Law, Public International Law, and Jurisprudence, University of Hamburg,
Germany. Email: matthias.klatt@jura.uni-hamburg.de.
1
Katharine Galloway Young, Constituting Economic and Social Rights (2012); Sandra Fredman, Human Rights
Transformed: Positive Rights and Positive Duties (2008); Sandra Liebenberg, Socio-Economic Rights: Adjudication
Under a Transformative Constitution (2010); Exploring Social Rights (Daphne Barak-Erez & Aeyal M. Gross
eds., 2007); Matthias Klatt & Moritz Meister, The Constitutional Structure of Proportionality 85–108
(2012); Debating Social Rights (Conor Gearty & Virginia Mantouvalou eds., 2010); Social Rights Jurisprudence
(Malcolm Langford ed., 2008). On the growing importance of positive rights in the jurisprudence of the
European Court of Human Rights, see Alastair R. Mowbray, The Development of Positive Obligations Under the
European Convention on Human Rights by the European Court of Human Rights 229 (2004).
as well as positive obligations on the authorities.2 Thus, the status positivus in the
sense intended by the German scholar Georg Jellinek3 has potentially a very wide
applicability. The positive dimension of rights is mostly debated with regard to socio-
economic or social rights such as the rights to education, health, housing, or water.
However, the positive dimension is by no means limited to social rights. All classical
liberal rights of the first generation of rights may have a positive dimension, while
social and socioeconomic rights also protect a status negativus.4 It follows that liberal
rights cannot be distinguished from socioeconomic rights using the positive–negative
2
Fredman, supra note 1, at 65, 69; Madhav Khosla, Making Social Rights Conditional: Lessons from India, 8
Int’l J. Const. L. 739, 741 (2010); Murray Wesson, Disagreement and the Constitutionalisation of Social
Rights, 12 Hum. Rts L. Rev. 221, 225 (2012); Henry Shue, Basic Rights: Subsistence, Affluence, and U.S.
Foreign Policy 155 (2d ed. 1996); Mowbray, supra note 1, at 224.
3
Georg Jellinek, System der subjektiven öffentlichen Rechte 86 (2d ed. 1905); Georg Jellinek, Allgemeine
Staatslehre 418 (3d ed. 1921).
4
“At the very minimum, socio-economic rights can be negatively protected from improper invasion.” Ex
Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic
of South Africa SA ¶ 78 (Const. Ct. S. Afr., Sept. 6, 1996), available at http://www.saflii.org/za/cases/
ZACC/1996/26.html, last accessed on April 21, 2015.
5
Cf. Wesson, supra note 2, at 225.
6
On the first three groups of problems, see Robert Alexy, On Constitutional Rights to Protection, 3 Legisprudence
1, 3 (2009); Matthias Klatt, Positive Obligations under the European Convention on Human Rights, Heidelberg
J. Int’l L. 681, 693 (2011).
7
Young, supra note 1, chs. 1 and 2.
8
Fredman, supra note 1, at 9–30.
9
Supremo Tribunal Federal, Ag. Reg. no Ag.AI n. 238.328-0/RS, segunda turma, Rel. Min. Marco Aurélio,
Nov. 16, 1999 (Braz.); Supremo Tribunal Federal, Ag. Reg. no. RE 271.286–8 AgR/RS, segunda turma,
Rel. Min. Celso de Mello, Sept. 12, 2000 (Braz.).
356 I•CON 13 (2015), 354–382
the inclusion of social rights in a future Bill of Rights is contested for democratic
reasons, and the United States.10
The second group of problems regards the content of positive rights. Even when
the justification problem is answered in the affirmative, there may be disagreement
about the exact extent of the positive obligations of the state and about the means
that ought to be employed.11 The precise scope of protection has to be defined vis-
à-vis colliding interests like the financial resources available to the state and the
rights of others. Any protective action entails costs, which can be measured either
10
On the debate in the UK, see Sandra Fredman, New Horizons: Incorporating Socio-Economic Rights in a
British Bill of Rights, Pub. L. 297 (2010); Conor Gearty, Against Judicial Enforcement, in Debating Social
Rights 1 (Conor Gearty & Virginia Mantouvalou eds., 2010); Wesson, supra note 2, at 222–3; Fredman,
supra note 1, at 94–5. For the United States, referring to the disagreement between social democrats
and conservative libertarians, see Richard Bellamy, Political Constitutionalism: A Republican Defence of
the Constitutionality of Democracy 25 (2007). Cf. DeShaney v. Winnebago County Department of Social
Services, 498 U.S. 189, 195, per Rehnquist J (S. Ct. Feb. 22, 1989).
11
Wesson, supra note 2, at 227.
12
Alexy, supra note 6, at 3.
13
On this dependency, see Alexy, On Constitutional Rights to Protection, at 3–4; Klatt, supra note 6, at 693.
14
Klatt & Meister, supra note 1, at 85–108; Klatt, supra note 6, at 704–18; Alexy, supra note 6, at 10–7.
15
For details, see Klatt & Meister, supra note 1, at 94–108.
16
Cf. Wesson, supra note 2, at 222, 224, 228.
Positive rights: Who decides? 357
positive rights. I will assume that positive rights are legally binding norms which grant
subjective rights of a prima facie character.17
The article is divided into four sections. In Section 2, I describe the competence
problem in more detail. In Section 3, I develop the core idea of judicial review in bal-
ance which rests on a theory of distinguishing between different degrees of deference.
I reconstruct the problem of judicial review as a conflict of competences. In Section
4, I spell out how balancing competences works. Finally, in Section 5, I will illustrate
my theory by discussing recent case law of the German Federal Constitutional Court
17
This is position 2 in Alexy’s categorization, see A Theory of Constitutional Rights 334–7 (Robert Alexy ed.,
2002).
18
This misunderstanding is held by, e.g., Wesson, supra note 2, at 246.
19
Sandra Fredman, From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’ Rights to Vote,
Pub. L. 292, 292 (2013).
20
Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006).
358 I•CON 13 (2015), 354–382
scholars, in the context of the justiciability of positive rights, raise issues that count
against any judicial review in human rights law generally. Nevertheless, the dilemma
is particularly vital for positive rights. In this article, I will address the competence
problem only as far as positive rights are concerned, because my main aim is to dis-
prove the argument that the recognition of positive rights would lead to a shift of
power in the constitutional state. The findings of the present study are, however, also
relevant to the problem of judicial review in general.
The competence problem is arguably the most controversial aspect of positive rights juris-
21
Cf. Fredman, supra note 1, at 92.
22
João Biehl et al., Between the Court and the Clinic: Lawsuits for Medicines and the Right to Health in Brazil, 14
Health & Hum. Rts 36, 40, 46 (2012). For success rate data, see also Octavio L.M. Ferraz, Right to Health
Litigation in Brazil: An Overview of the Research (May 15, 2009), 24–5, available at http://papers.ssrn.com/
abstract=1426011, last accessed on April 21, 2015.
23
João Biehl et al., Judicialisation of the Right to Health in Brazil, 373 Lancet 2182 (2009); Biehl et al., supra
note 22, at 37. For a critical account of this development, see Octavio L.M. Ferraz, The Right to Health in
the Courts of Brazil: Worsening Health Inequities?, 11 Health & Hum. Rts 33 (2009).
24
Young, supra note 1, at 133–5.
25
On the US, see Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, Wash. U. L.Q.
695 (1979); Frank Cross, The Error of Positive Rights, 48 UCLA L. Rev. 857 (2001); Lon L. Fuller, The
Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978). For the discussion in Brazil, see Biehl et al.,
supra note 22, at 47.
26
Cf. Fuller, supra note 25, at 393–405; Owen M. Fiss, The Forms of Justice, 93 Harv. L. Rev. 1, 39–44
(1979); Jeff A. King, The Pervasiveness of Polycentricity, Pub. L. 101 (2008).
27
Young, supra note 1, at 135.
28
Cf. Wesson, supra note 2, at 228.
Positive rights: Who decides? 359
29
This famous critique against positive rights is maintained by Ernst-Wolfgang Böckenförde, Grundrechte als
Grundsatznormen: Zur gegenwärtigen Lage der Grundrechtsdogmatik, in Staat, Verfassung, Demokratie: Studien
zur Verfassungstheorie und zum Verfassungsrecht 159, 190 (Ernst-Wolfgang Böckenförde ed., 1991).
30
Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).
31
Böckenförde, supra note 29, at 198, 194.
32
BVerfGE 39, 1, ¶ 222, dissenting vote.
33
See Constitution, 1937, art. 45 (Ir.). Cf. Mark Tushnet, Social Welfare Rights and the Forms of Judicial Review,
82 Tex. L. Rev. 1895, 1898, 1918 (2004).
34
Supremo Tribunal Federal, Ag. 238.328/RS; RE 271.288 AgR/RS (Braz.). Cf. Gilmar F. Mendes, The Judiciary
and the Right to Health, Talk given at Princeton University (Mar. 25, 2010), available at http://www.gil-
marmendes.org.br/index.php?option=com_phocadownload&view=category&download=182:discurso-
do-ministro-gilmar-mendes-na-universidade-de-princeton-eua-&id=39:todos&Itemid=78, last accessed
on April 21, 2015. Wojciech Sadurski, Rights-Based Constitutional Review in Central and Eastern Europe, in
Sceptical Essays on Human Rights 315 (Tom Campbell, Adam Tomkins & Keith D. Ewing eds., 2010); Wojciech
Sadurski, Judicial Review and the Protection of Constitutional Rights, 22 Oxford J. Legal Stud. 275, 298 (2002).
But see David Landau, Political Institutions and Judicial Role in Comparative Constitutional Law, 51 Harv. Int’l L.J.
319, 367 (2010) on changes in the Hungarian Constitutional Court towards a more deferential approach.
35
For South Africa, see Anashri Pillay, Toward Effective Social and Economic Rights Adjudication: The Role of
Meaningful Engagement, 10 Int’l J. Const. L. 732 (2012); Wesson, supra note 2; Rosalind Dixon, Creating
Dialogue about Socioeconomic Rights: Strong-form versus Weak-form Judicial Review Revisited, 5 Int’l J. Const. L. 391
(2007); Fredman, supra note 1; Young, supra note 1, at 174–91. For Canada, see the notwithstanding clause in
Constitution Act 1982, Pt. I, § 33 (allowing for ex-post legislative override) and the possibility of issuing a sus-
pended declaration of invalidity. On the latter, cf. Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright,
Charter Dialogue Revisited: Or “Much Ado about Metaphors” 45 Osgoode Hall L.J. 1, 14–8 (2007).
360 I•CON 13 (2015), 354–382
This threefold picture matches well a useful typology of judicial review recently
provided by Young.36 According to her triadic typology, the conception of the role
of courts reviewing positive rights follows a detached, an engaged, or a supremacist
understanding. A detached court will employ a deferential approach, giving “credence
to the democratic authority and epistemic superiority of . . . the legislative and execu-
tive branches.”37 The detached court will leave the enforcement of positive rights to a
large extent to the elected branches. An engaged court, in contrast, is prepared to get
the stakeholders in a given case actively involved in working out a solution. This reflex-
36
Young, supra note 1, at 142–166, 193–196.
37
Id. at 143, 206–212.
38
Id. at 150–153, 200–206.
39
Olivia Road, 3 S.A. 208 (Const. Ct. S. Afr., Feb. 19, 2008).
40
Landau, supra note 34, at 321. Excellent analysis by Katharine G. Young & Julieta Lemaitre, The
Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa, 26
Harv. Hum. Rts J. 179 (2013). See also Rodrigo U. Yepes, The Enforcement of Social Rights by the Colombian
Constitutional Court: Cases and Debates, in Courts and Social Transformation in New Democracies: An
Institutional Voice for the Poor? 127 (Roberto Gargarella, Pilar Domingo, & Theunis Roux eds., 2006);
Rodrigo M. Nunes, Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and
the Right to Health, 52 Latin Am. Pol. & Soc’y 67 (2010).
41
Cf. Alec Stone Sweet & Jud Mathews, Proportionality, Balancing and Global Constitutionalism, 47 Colum.
J. Transnat’l L 72 (2008); David Law, Generic Constitutional Law, 89 Minn. L. Rev. 652 (2005); Klatt &
Meister, supra note 1, at 1.
Positive rights: Who decides? 361
flexible way, and they also change it over time. Therefore, the fixed categorization car-
ries the risk of misdiagnosis. Irrespective of the institutional setting, every court has a
whole range of options at its theoretical disposal. The decisive question, then, is how
to rationally justify the choice of a particular review approach. It is submitted that,
instead of deciding between those three models in the abstract and strictly sticking to
that decision, a flexible model of judicial review that would allow for a whole range of
options, depending on circumstances of the concrete case, is preferable.
42
Frank I. Michelman, Socioeconomic Rights in Constitutional Law: Explaining America Away, 6 Int’l J. Const.
L. 663, 683 (2008); Young, supra note 1, at 133–4.
43
Young, supra note 1, at 134. Cf. Hirschl, supra note 30.
44
Jeremy Waldron, A Right-Based Critique of Constitutional Rights, 13 Oxford J. Legal Stud. 18, 42 (1993).
45
Young, supra note 1, at 134.
46
Cf. Fredman, supra note 1, at 115; Khosla, supra note 2, at 757: “only declaratory relief.”
47
David Dyzenhaus, The Politics of Deference: Judicial Review and Democracy, in The Province of Administrative
Law 279, 305 (Michael Taggart ed., 1997). For the idea of strengthening accountability with the help
of courts, see also Dennis M. Davis, Adjudicating the Socioeconomic Rights in the South African Constitution:
Towards “Deference lite”?, 22 S. Afr. J. Hum. Rts 301, 319 (2006). For the problem of too much or too little
control, see also Wesson, supra note 2, at 245.
48
Cf. Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries,
38 Wake Forest L. Rev. 813, 824 (2003).
362 I•CON 13 (2015), 354–382
We are left with the task, then, of finding the correct balance between the two poles
of usurpation and abdication, bringing about the correct intensity of control. For this
task distinguishing between three different degrees of deference is helpful.
49
A similar scheme of different degrees of scrutiny is used in the US with respect to the equal protection
clause, see Randall R. Kelso, Standards of Review Under the Equal Protection Clause and Related Constitutional
Doctrines Protecting Individual Rights: The “Base Plus Six” Model and Modern Supreme Court Practice, 4 J.
Const. L. 225 (2002).
50
“Importantly, these types do not sit along a plane of ‘strength’ and ‘weakness’ of judicial review . . . .”
Young, supra note 1, at 142.
51
Id. at 155. For respective descriptions of the other sub-types, see “engaged scrutiny of government action”
(id. at 147), “vigorous assessment” (id. at 150), and “rigorous scrutiny” (id. at 162).
52
James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129,
144 (1893). See also Dandridge v. Williams U.S. 397, 485 (S. Ct. Apr. 6, 1970).
53
Soobramoney v. Minister of Health (Kwazulu-Natal), S.A. 765, ¶¶ 30, 58 (Const. Ct. S. Afr., Nov. 27,
1997). Cf. Davis, supra note 47, at 318. Highly deferential is also Mazibuko v. City of Johannesburg, S.A.
1 (Const. Ct. S. Afr., Oct. 8, 2009).
54
BVerfGE 77, 170, ¶ 101 (Ger.).
55
BVerfGE 88, 203, ¶ 166 (Ger.). See also Young, supra note 1, at 150–5.
Positive rights: Who decides? 363
56
BVerfGE 39, 1, ¶ 207 (Ger.). Unsurprisingly, this decision was severely criticized for judicial usurpation by
the dissenting judges, see id., ¶ 222.
57
Kim L. Scheppele, Democracy by Judiciary: Or, Why Courts can be More Democratic than Parliaments, in
Rethinking the Rule of Law After Communism 25, 44 (Adam Waldemar Czarnota, Martin Krygier, &
Wojciech Sadurski eds., 2005).
58
Liebenberg, supra note 1, at 329.
59
Khosa v. Minister of Social Development, S.A. 505 (Const. Ct. S. Afr., March 4, 2004). See also Olivia
Road, 3 S.A. 208 (Const. Ct. S. Afr., Feb. 19, 2008).
60
For the proposal of a general establishment of weak review by means of dialogue, see Dixon, supra note
35, at 393.
61
Cf. Wesson, supra note 2, at 224.
62
This is true for judicial review in general, but I limit my discussion to judicial review of positive rights
here, cf. supra Section 2.1.
63
Alf Ross, Directives and Norms 130 (1968).
364 I•CON 13 (2015), 354–382
and formal principles.64 Competences are formal principles. They establish who is
in charge of making material decisions and depict the authoritative dimension in a
legal system.65
As principles, competences are optimization requirements. In that regard, there is
no difference between formal and material principles. Both require that something be
realized to the greatest extent possible, given the factual and legal possibilities.66 The
legal possibilities, which matter here, are defined by competing principles.67
This principles-theoretical account closely matches the problem of judicial review.
64
A Theory of Constitutional Rights, supra note 17, at 58, 82, 192, 313, 416. For recent developments see
Robert Alexy, Comments and Responses, in Institutionalized Reason: The Jurisprudence of Robert Alexy 329,
330–1 (Matthias Klatt ed., 2012); Jorge A. Portocarrero Quispe, Zu Begriff und Struktur der formellen
Prinzipien, in Prinzipientheorie und Theorie der Abwägung 200 (Matthias Klatt ed., 2013); Martin Borowski,
Formelle Prinzipien und Gewichtsformel, in Prinzipientheorie und Theorie der Abwägung, 151.
65
Klatt & Meister, supra note 1, at 135–46.
66
Cf. A Theory of Constitutional Rights, supra note 17, 47.
67
Klatt & Meister, supra note 1, at 10.
68
Cf. Robert Alexy, On Balancing and Subsumption, 16 Ratio Juris 433 (2003).
69
For this aim, cf. Mendes, supra note 34, at 7. For the idea of striking a balance between judicial vigilance and
deference, see Marius Pieterse, Coming to Terms with Judicial Enforcement of Socio-Economic Rights, 20 S. Afr.
J. Hum. Rts 383, 411, 417 (2004); I.T. Winkler and C. Mahler, Interpreting the Right to a Dignified Minimum
Existence: A New Era in German Socio-Economic Rights Jurisprudence?, 13 Hum. Rts L. Rev. 388, 395 (2013).
Positive rights: Who decides? 365
judiciary’s role in enforcing positive rights, which provides a certain intensity of control
of the other branches but will still allow the latter to exercise substantial discretion.70
The aim of a balancing model of judicial review is to protect positive rights in a way that
reduces the “risk of wrongful interference with democratic self-governance.”71
The main function of balancing competences is to overcome the either–or approach
of granting either the judiciary or the legislature ultimate authority, or strict, case-
independent priority. The “relative institutional competence” of courts is a matter of
combining the relative weights of the judiciary and the legislature.72 This combination
70
Cf. Wesson, supra note 2, at 228.
71
Cf. Tushnet, supra note 48, at 814.
72
Cf. A v. Secretary of State for the Home Department (2004) UKHL 56, ¶ 29, available at http://www.bailii.
org/uk/cases/UKHL/2004/56.html, last accessed on April 21, 2015.
73
Dixon, supra note 35, at 393, 413. See also Pieterse, supra note 69, at 417.
74
Sadurski, Judicial Review and the Protection of Constitutional Rights, supra note 34, at 280.
75
Id. at 298.
76
Tushnet, supra note 48, at 814.
77
On the claim to correctness, see Robert Alexy, Law and Correctness, in Current Legal Problems 205 (M.D.A
Freeman ed., 1998); Matthias Klatt, Robert Alexy’s Philosophy of Law as System, in Institutionalized Reason,
supra note 64, 1, at 5–6, 12–13, 15–16.
78
Joseph Raz, Authority, Law, and Morality, 68 Monist 295, 295 (1985). See also John Gardner, How Law
Claims, What Law Claims, in Institutionalized Reason, supra note 64, 29, at 30, 38–41.
79
Alexy, supra note 77, at 208; Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism 78
(2002); Klatt, supra note 77, at 15.
366 I•CON 13 (2015), 354–382
authority to control the other branches in a given case. An inquiry into these reasons
depends on insights into the structure of balancing.
80
A Theory of Constitutional Rights, supra note 17, 102. On the second law of balancing, relating to epi
stemic reliability, see Klatt & Meister, supra note 1, at 11, 80–83.
81
Cf. id. at 10.
82
Klatt & Meister, supra note 1, at 12–13, 34–36; Robert Alexy, The Weight Formula, in Studies in the
Philosophy of Law. Frontiers of the Economic Analysis of Law 9, 15 (Jerzy Stelmach, Bartosz Brozek &
Wojciech Zaluski eds., 2007).
83
The situation of a stalemate, occurring in the scenarios light/light, moderate/moderate, and serious/
serious, will not be considered further here. See Klatt & Meister, supra note 1, at 58.
84
On the difference between internal and external justification, see id. at 54; Matthias Klatt & Johannes
Schmidt, Epistemic Discretion in Constitutional Law, 10 Int’l J. Const. L. 69, 74 (2012); Robert Alexy, A
Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification 211 (1989).
Positive rights: Who decides? 367
85
For a similar point, cf. Wesson, supra note 2, at 230, 246.
86
It matters whether a deficiency exists in the “political processes which can ordinarily be expected to bring
about repeal of undesirable legislation,” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4
(1938).
87
Olivia Road, 3 S.A. 208, ¶¶ 17–18 (Const. Ct. S. Afr., Feb. 19, 2008).
88
Id., ¶¶ 25–28.
89
Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes and others, S.A. 454, ¶¶ 378–379
(Const. Ct. S. Afr., June 10, 2009). For details, see Pillay, supra note 35, at 742–745.
90
Cf. id. at 744.
91
Mazibuko v. City of Johannesburg, S.A. 1, ¶ 71 (Const. Ct. S. Afr., Oct. 8, 2009).
368 I•CON 13 (2015), 354–382
Furthermore, in order to assess the quality of the primary decision, one could con-
sider any specific expertise of the primary decision-maker. Such expertise presump-
tively strengthens this quality and, hence, the weight of the competence to decide.
This factor is familiar from US federalism.92 It is frequently acknowledged in the litera-
ture.93 Conversely, the court’s competence to control such an expertise-based decision
is weakened, as was acknowledged by the South African Constitutional Court:
[C]ourts are not institutionally equipped to make the wide-ranging factual and political
Lastly, the quality and effectiveness of the particular legal system as a whole may
also influence the assessment of the quality of the primary decision. The better the
performance of the legal system in general is, the more weight is to be assigned
to the primary decision-maker. Clear procedural rules and consistency of politi-
cal aim-setting, for example, can be indicative here. Conversely, if the legal sys-
tem displays extensive legislative or administrative dysfunction, the weight of the
court’s competence to control is strengthened. An example of the latter situation
was the situation in Colombia following the adoption of the Constitution in 1991.95
The Constitutional Court employed a very strict judicial review, significantly trans-
forming the structure of health financing in the country. According to a former
Constitutional Court judge, the reason for this rather active approach of the Court
was that “we had such a bad Congress that we had no choice but to try and do
something.”96
The second factor that influences the relative concrete weight of the legislative
and judicative competences is the epistemic reliability of the argumentative premises
used for a decision. The greater the epistemic unreliability of the premises is, the more
weight is to be assigned to the competence of the institution that has special authority
to either resolve this unreliability or decide in spite of it.97
92
Louise E. Teitz, Taking Multiple Bites of the Apple: A Proposal to Resolve Conflicts of Jurisdiction and Multiple
Proceedings, 26 Int’l L. 21, 57 § 3e (1992): “substantive law likely to be applicable and the relative famil-
iarity of the affected court with that law.”
93
Aileen Kavanagh, Deference of Defiance? The Limits of the Judicial Role in Constitutional Adjudicating, in
Expounding the Constitution: Essays in Constitutional Theory 184, 184 (Grant Huscroft ed., 2008); Jeff
A. King, Institutional Approaches to Judicial Restraint, 28 Oxford J. Legal Stud. 409, 433 et seq. (2008);
Wesson, supra note 2, at 239.
94
Minster of Health v. Treatment Action Campaign, S.A. 721, ¶¶ 37–38 (Const. Ct. S. Afr., July 5, 2002).
See also Vincent Panikurlangara v. Union of India, S.C.C. 165, 173 (S. Ct. India. March 3 1987), arguing
that the competence of the court has only light-weight when complex or technical matters are at stake.
Cf. Khosla, supra note 2, at 752.
95
Cf. Young, supra note 1, at 196–200.
96
Quoted in Landau, supra note 34, at 348.
97
Alexander Fritzsche, Discretion, Scope of Judicial Review and Institutional Balance in European Law, 47 Comm.
Mkt L. Rev 361, 372–5 (2010).
Positive rights: Who decides? 369
Epistemic unreliability can occur at the level of both normative and empirical prem-
ises of a decision. The German Federal Constitutional Court, for example, has decided
that the weight of the legislature’s competence is strengthened by empirical unreli-
ability, since it is first and foremost their task to decide in situations of uncertainty:
When the legislature is under a constitutional obligation to employ effective and sufficient
means for the protection of a legal interest, it enjoys discretion of evaluation and political
choice. The scope of this discretion is dependent upon a variety of different factors, including
In the European Union, a lack of scientific consensus strengthens the national com-
petence to decide, vis-à-vis the the Court of Justice of the European Union’s (CJEU)
competence to control.100
A special weight of the competence of the legislature is also accepted in situations
of normative-epistemic uncertainty, which arise with respect to politically contested
questions:
The more purely political . . . a question is, the more appropriate it will be for political resolution
and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore,
will be the potential role of the court. It is the function of political and not judicial bodies to
resolve political questions. Conversely, the greater the legal content of any issue, the greater
the potential role of the court, because under our constitution and subject to the sovereign
power of Parliament it is the function of the courts and not of political bodies to resolve legal
questions.101
It matters for this line of thought whether or not there is consensus on the normative
premises of the decision. The greater consensus there is on normative questions, the
less weight is to be assigned to legislative discretion, and the higher the importance of
exercising control by a court. Conversely, if a normative question is highly contested,
this will heighten the weight of the competence of the legislature, since it is the primary
forum of debate in a democracy. This aspect is very much considered in the UK legal
system, where the judges stressed that “matters of social or economic policy, where
98
BVerfGE 88, 203, ¶ 188 (Ger.) (emphasis added). See also City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 443 (1985).
99
A v. Secretary of State for the Home Department (2004) UKHL 56, ¶ 29 (emphasis added).
100
Commission v. Denmark, 2003, E.C.R. I-9693, ¶ 43. Cf. Paul P. Craig, EU Administrative Law 706 (2006);
Janneke Gerards, Pluralism, Deference and the Margin of Appreciation Doctrine, 17 Eur. L.J. 80, 96–7 (2011).
101
A v. Secretary of State for the Home Department (2004) UKHL 56, ¶ 29.
370 I•CON 13 (2015), 354–382
opinions may reasonably differ in a democratic society and where choices on behalf
of the country as a whole are properly left to government and to the legislature.”102
On the other hand, the preeminence of the legislature to decide in situations of
unreliability must not be used to simply hide behind the mere assumption of unreli-
ability. As a consequence, courts have at least the duty to control whether there is
unreliability at all and whether the decision was made on rational grounds and fol-
lowing due procedure.103 This was apparent, for example, in the South African case in
which the government denied a patient the HIV medicament nevirapine due to con-
102
Id. ¶ 108. See also Donoghue v. Poplar Housing & Regeneration Community Association Ltd & Anor
EWCA Civ 595, ¶ 69.
103
Commission v. Denmark, 2003, E.C.R. I-9693, ¶¶ 45–47; Gerards, supra note 100, at 96–97.
104
Minster of Health v. Treatment Action Campaign S.A. 721, ¶¶ 57–67 (Const. Ct. S. Afr., July 5, 2002). Cf.
Fredman, supra note 1, at 118. See also BVerfGE 45, 187, ¶ 175 (Ger.).
105
Kavanagh, supra note 93, at 184; King, supra note 93, at 428–429. Rejecting democratic legitimacy as
a factor, however, Jeffrey Jowell, Judicial Deference: Servility, Civility or Institutional Capacity?, Pub. L. 592
(2003).
106
Cf. Julian Rivers, Constitutional Rights and Statutory Limitations, in Institutionalized Reason, supra note
64, 248, at 254; Alan D.P. Brady, Proportionality and Deference under the UK Human Rights Act: An
Institutionally Sensitive Approach 107–13 (2012).
107
International Transport Roth GmbH v. Secretary of State for the Home Department, 2003 Q.B. 728, 765
(CA). Cf. Julian Rivers, Proportionality and Variable Intensity of Review, 65 Cam. L.J. 174, 204 (2006).
108
Dixon, supra note 35, at 394, 402.
109
Jeremy Waldron, Law and Disagreement 165–187 (1999).
Positive rights: Who decides? 371
This is perfectly in accordance with the view of the European Court of Human Rights,
which has held that:
The scope of the margin of appreciation enjoyed by the national authorities will depend
[…] on the nature of the right involved. . . . The importance of such a right to the individual
must be taken into account in determining the scope of the margin of appreciation allowed to the
Government.114
Rivers has described this aspect in the following rule: “The more serious a limitation
of rights is, the more intense should be the review engaged in by the court.”115
110
Fredman, supra note 1, at 103–13.
111
Id. at 103. See also Ely’s theory of representation-reinforcing function of judicial review, John Hart Ely,
Democracy and Distrust: A Theory of Judicial Review 103 (1980).
112
Cf. Anthony Paul Lester & David Pannick, Human Rights Law and Practice 97 (2d ed. 2004); Eoin Carolan,
The New Separation of Powers: A Theory for the Modern State 106–137 (2009); George Pavlakos & Joost
Pauwelyn, Principled Monism and the Normative Conception of Coercion Under International Law, in Beyond
the Established Legal Orders: Policy Interconnections between the EU and the Rest of the World 317, 323
(Malcolm David Evans & Panos Koutrakos eds., 2011).
113
BVerfGE 88, 203, ¶ 188 (Ger.) (emphasis added). See also BVerfGE 45, ¶ 175 (Ger.). See also Skinner
v. Eklahome, 316 U.S. 535, 541 (1942); United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4
(1938).
114
Gillow v. The United Kingdom (1986) 11 EHRR 335, ¶ 55 (emphasis added). Cf. Eva Brems, The Margin of
Appreciation Doctrine in the Case-Law of the European Court of Human Rights, 56 Heidelberg J. Iint’l L. 240,
264 (1996).
115
Rivers, supra note 106, at 252. See also Alexy, supra note 64, at 346; Robert Alexy, Thirteen Replies, in Law,
Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy 333, 333, 346 (George Pavlakos ed.,
2007); Gerards, supra note 100, at 91–92, 100–101.
372 I•CON 13 (2015), 354–382
This factor is present, for example, in the jurisdiction of the Columbian Constitutional
Court which employs stricter scrutiny of judicial review when the “normative import
ance” of the right at stake is high.116 The same applies when the appellant is in a
position of “manifest vulnerability,” or where the right at stake is closely related to
fundamental rights such as life, integrity, or dignity.117
Lastly, according to the House of Lords, a stricter scrutiny of judicial review is in
place in particular in cases where the protection of minorities against the democratic
majority is at stake:
116
Young, supra note 1, at 197, referring to Nunes, supra note 40.
117
Magdalena Sepúlveda, Columbia: The Constitutional Court’s Role in Addressing Social Injustice, in Social
Rights Jurisprudence: Emerging Trends in International and Comparative Law 144, 144, 150, 152 (Malcolm
Langford ed., 2008). See also Wesson, supra note 2, at 242–3.
118
A v. Secretary of State for the Home Department (2004) UKHL 56, ¶ 108 (emphasis added).
119
Cf. Wesson, supra note 2, at 247–52.
120
Ronald Dworkin, Political Judges and the Rule of Law, in A Matter of Principle 9 (Ronald Dworkin ed.,
2001).
121
Cf. International Transport Roth GmbH v. Secretary of the State for the Home Department [2003] Q.B.
728, 766, per Laws L.J.: “[G]reater deference will be due to the democratic powers where the subject-mat-
ter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly
within the constitutional responsibility of the courts.”
Positive rights: Who decides? 373
It is of the utmost importance for the approach of the present article that none of
the five factors considered above is decisive on its own. Rather, all of them have to be
considered in order to properly determine the weight of the conflicting competences.
Since a careful and well-developed balancing procedure is required, the model pro-
posed here does not provide a short-cut for solving the justiciability problem. Instead,
it demonstrates the complexity of the argument needed in order to employ judicial
review in a balanced way. Courts should put far more energy into explicitly justify-
ing the intensity of review chosen by them in a given case. They are quite used to
122
Tushnet, supra note 48, at 824.
123
An example of an abstract view is Young’s analysis which focuses on the role of courts within a given
constitutional order, see Young, supra note 1, at 133–166, 192–219.
124
Klatt & Meister, supra note 1, at 26–42.
374 I•CON 13 (2015), 354–382
This law was formulated for material principles, but it is applicable to formal princi-
ples as well. This mechanism also brings a certain amount of stability into the system
of judicial review. Over time, there develops a complex canon of precedents, which
allows for some persistency and predictability of the intensity of control employed by
the courts while avoiding the inelasticity of an ordering based purely on rules. That
way, the aspects of legal certainty and predictability and of doing justice to the merits
of each individual case are combined in the best possible way.
125
Young, supra note 1, at 197; Nunes, supra note 40; Sadurski, Rights-Based Constitutional Review, supra note
34.
126
Mendes, supra note 34, at 7 (emphasis added).
127
A Theory of Constitutional Rights, supra note 17, 54.
128
Waldron, supra note 20, at 1353.
Positive rights: Who decides? 375
Hence, it should not be balanced against conflicting reasons, such as the outcome or
the epistemic reliability of judicial review.129 Democratic legitimacy, Waldron argues,
is a second-order reason, excluding first-order reasons altogether.130
The balancing model of judicial review defended in this article could be vulnerable
to this objection. To counter this objection, it is not sufficient to state that in this model
epistemic considerations and democratic legitimacy are not being balanced directly
against each other, since both notions merely function as factors for determining
the concrete weights of the colliding competences and only the latter are being bal-
129
Waldron, supra note 109, at 249.
130
Cf. David Enoch, Taking Disagreement Seriously, On Jeremy Waldron’s Law and Disagreement, 39 Isr. L. Rev.
22, 25 (2006).
131
Cf. Alexy, supra note 84, at 250.
132
Enoch, supra note 130, at 26 n.11.
133
Aileen Kavanagh, Participation and Judicial Review: A Reply to Jeremy Waldron, 22 L. & Phil. 451, 460–5
(2003).
376 I•CON 13 (2015), 354–382
severe violations of fundamental rights, should this fact really not count at all towards
justifying judicial review?134
A possible way out for a proponent of the exclusionary-reasons argument would
be simply to identify the requirements of fundamental rights with what the majority
in parliament think they require, but this is a dangerous route. Another possible way
out would be to argue that certain reasons strengthen the weight of the legislature’s
competence or weaken the weight of the court’s competence. This, however, would
amount to switching to the first alternative, and in the first alternative there is no dif-
134
Cf. Enoch, supra note 130, at 26.
135
There is actually a more complex route for countering the exclusionary reasons argument. This route
uses the abstract weights of competences, in addition to the concrete weights. For reasons of space I will
not elaborate this route in detail here.
136
Waldron, supra note 20, at 1359–1369, 1401–1406.
137
BVerfGE 132, 134, July 18, 2012 (Ger.), available at http://www.bundesverfassungsgericht.de/entscheid-
ungen/ls20120718_1bvl001010en.html (English trans.), last accessed on April 21, 2015. The number-
ing of the paragraphs in the English version of the judgment does not exactly match the numbering in the
German version.
138
BVerfGE 125, 175, Feb. 9, 2010 (Ger.), available at http://www.bundesverfassungsgericht.de/entscheid-
ungen/ls20100209_1bvl000109en.html (English trans.), last accessed on April 21, 2015. The number-
ing of the paragraphs in the English version of the judgment does not exactly match the numbering in
the German version.
Positive rights: Who decides? 377
Both these decisions represent paradigmatic examples of the FCC’s flexible approach
towards its own competence to control legislative acts. The FCC established a differen-
tiated degree of deference, regarding the quantification of the basic level of subsist
ence amounts, on the one hand, and the methods and procedure of calculation, on
the other.
As for the exact quantification, the FCC demonstrated a great degree of deference.
It employed a light intensity of control only which it labeled as “review of evident fail-
ure.”139 This intensity of control is further characterized by the Court as “restrained”140
I would like to stress that this difference in the intensity of review can be justified
by the principles I have defended above. First of all, the differentiation between the
two levels of the intensity of the review demonstrates that the conflict between the
competences of the legislature and the constitutional court can be solved differently
under different normative and factual circumstances. In this case, as regards the result
of the legislative deliberation, the FCC assigned a greater weight to the legislature’s
competence, which produces only a light intensity of review. In contrast, as regards
the methods and procedures, the FCC assigned a greater weight to its own competence,
bringing about a clearly distinct, moderate intensity of review.
Second, considering the factors outlined above, the greater weight of the legisla-
ture’s competence as regards the result of a parliamentary decision can be justified by
pointing to the epistemic unreliability of the exact quantification of the subsistence
amounts. Specifying these amounts requires gathering and processing expert knowl-
edge and empirical data on the costs of living in particular circumstances and at a
particular time. The controlling court lacks this expertise, while the democratically
elected parliament has the required bureaucracy at its disposal. The legislature is, in
situations of unreliability, primarily in charge of minimizing the unreliability and of
making a decision in spite of any persisting uncertainties. All this is clearly stated in
the decision of the FCC:
[T]he scope of this claim in terms of the types of needs and of the means necessary therefor
cannot be directly derived from the constitution . . . . It depends on society’s views of what is
139
BVerfGE 132, 134, ¶ 80 (Ger.).
140
Id. ¶ 79.
141
BVerfGE 125, 175, ¶ 141 (English trans.).
142
Id. (emphasis added).
143
Id. ¶ 143.
378 I•CON 13 (2015), 354–382
necessary for an existence that is in line with human dignity, and on the concrete circum-
stances of the person in need of assistance, as well as on the respective economic and technical
circumstances, and is to be specifically determined by the legislature in accordance with them
. . . .144
Furthermore, the FCC drew attention to the valuations that have to be made when set-
tling the subsistence amounts: “The valuations which are necessary here are a matter
for the parliamentary legislature.”145
Valuations imply that in this case there exist normative-epistemic uncertainties,
144
Id. ¶ 138. See also BVerfGE 132, 134 ¶ 66 (English trans.).
145
BVerfGE 125, 175, ¶ 138 (English trans.). See also BVerfGE 132, 134 ¶ 67 (English trans.)
146
BVerfGE 132, 134, ¶ 69 (English trans.).
147
On the discretion in selecting means as a special type of the margin of appreciation, occurring in the case
of positive rights only, see Klatt, supra note 6, at 715–7.
148
BVerfGE 125, 175, ¶ 136 (English trans.). See also BVerfGE 132, 134, ¶ 65 (English trans.).
Positive rights: Who decides? 379
can also explain that the competence of the legislature to decide upon the subsistence
amounts narrows down if the physical existence is at stake, rather than the wider
aspects of social life:
This margin . . . differs in its scope: It is narrower insofar as the legislature lends concrete form to
what is needed to ensure a person’s physical existence, and broader when it comes to the nature
and scope of the possibility to participate in social life.149
Since the importance of the right to a dignified subsistence minimum is higher when
In contrast, in the case of the Asylum Seekers Benefit, the FCC stated that there
was a need for a transitional rule by the Court “because of the existential signifi-
cance of basic benefits.”152 When the Court issues a transitional rule, the interference
with the legislature’s competence is more serious, as compared to declaring a stat-
ute unconstitutional but not void, while providing the legislature with a time frame
within which it is required to change the law. But this difference in the legal conse-
quences can be justified with the factor of material principles, since in the Asylum
Seekers Benefit case the importance of the material principles was even higher, given
that they had immediate “existential significance.” This high importance in this case
outweighed the factors of democratic legitimacy and epistemic unreliability back-
ing the competence of the legislature, thus allowing the Court to interfere with that
competence more seriously.
149
BVerfGE 125, 175, ¶ 138 (English trans.) (emphasis added).
150
BVerfGE 132, 134, ¶¶ 83–90 (English trans.).
151
BVerfGE 125, 175, ¶ 212 (English trans.). Cf. Young, supra note 1, at 186.
152
BVerfGE 132, 134, ¶ 101 (English trans.).
380 I•CON 13 (2015), 354–382
So far I have discussed the intensity of control exercised by the Constitutional Court
in respect to the quantification of the subsistence amount. The following analysis
focuses on the process and methods the legislature uses in determining these amounts.
Here, the FCC applies a higher intensity of review. This higher intensity is apparent in
the detailed standards the FCC sets for the legislature’s process. For example, the FCC
demands that the parliamentary determination of the subsistence minimum must be
determined “consistently in a proper procedure that is transparent in terms of its con-
tent, and based on real and actual needs, thus measured realistically.”153 The legisla-
153
Id. ¶ 69.
154
BVerfGE 125, 175, ¶ 138 (English trans.).
155
Id. ¶ 140.
156
Id. ¶ 144.
157
BVerfGE 132, 134, ¶¶ 90–96 (English trans.).
158
BVerfGE 125, 175, ¶ 140 (English trans.). See also BVerfGE 132, 134, ¶ 72(English trans.).
159
BVerfGE 125, 175, ¶ 138 (English trans.).
160
Id. ¶ 142 “significance of the fundamental right.”
Positive rights: Who decides? 381
Lastly, I would like to stress that the two different intensities of review are not totally
separate. Rather, they depend upon each other. Accepting a margin of appreciation of
the legislature as regards the exact quantification in a way depends upon the Court exer-
cising a stricter review as to the methods and process. This connection can be explained
by means of the factor of the quality of the primary decision. This factor can strengthen
the competence of the legislature as regards the result only if indeed the quality of its
decision is high. This quality, in turn, is dependent upon following rational process and
methods. This connection is presumably meant when the FCC stated that:
It follows from the above that the Constitutional Court’s competence to control carries
a greater weight than the legislature’s competence to decide as far as the process and
methods of determining the amounts of the subsistence minimum are concerned. In
contrast, as far as the quantification of these amounts are concerned, the preference
relation between the colliding competences is the other way round, justifying a light
intensity of judicial review only.
In sum, I have demonstrated that the flexible use of the intensity of review used by
the FCC when controlling the legislature’s determination of the subsistence amounts
can be justified by the factors determining the weights of the colliding competences.
6. Conclusions
The problem of justiciability is one of the main objections to recognizing positive rights.
This article has argued that this objection confuses the justification problem and the
competence problem. The competence problem is not a matter of either-or, but a matter
of degree. Following the taxonomy of judicial review developed by Young, this article
has explicated the idea of judicial review in balance. This idea distinguishes three dif-
ferent degrees of deference, and aims at determining the correct intensity of judicial
review between the two extremes of excessive and insufficient control. The problem of
judicial review can be reconstructed as a conflict of competences that has to be solved
by means of balancing. The exercise of balancing competences has been explained with
the help of a theory of formal principles. Various factors are used in order to determine
the weight of the conflicting principles. These include the quality of the primary deci-
sion, the epistemic reliability of premises used, the democratic legitimacy, the material
principles at stake, and the specific function fulfilled by the relevant competences.
According to the view defended here, the correct intensity of judicial review is not
to be determined in the abstract. On the contrary, courts should always have a whole
range of intensities of review at their disposal, as was demonstrated by the analysis
of a German Federal Constitutional Court case. Courts are obliged to determine and
justify the correct intensity on the triadic scale of light, moderate, and serious review
with regard to the circumstances of the concrete case. This case-centered model of
judicial review is not vulnerable to the objection from too much flexibility, since some
elements of stability guarantee the predictability of the preference relation between
the colliding competences. These are the abstract weights of the competences and the
mechanism following the law of collision.
In order for the process of balancing competences to take place in the open, we need
to know the terminology and the premises courts have to justify when they exercise
a certain intensity of judicial review. The justification of a claim to a certain legal