Justificación del rol de las cortes haciendo justiciables los derechos económicos, sociales y culturales, en particular, el derecho a la protección de la salud

Abstract

There are basically two objections against courts making economic, social and cultural rights justiciable. According to the objection of incapacity, judges are not institutionally equipped to recognize complex and polycentric issues embedded in economic and social rights. Therefore, they would be incapable of making those rights justiciable. According to the objection of illegitimacy, economic and social rights are realized through public policies fostered throughout the Executive Branch. Consequently, judiciary control over economic, social and cultural rights would lead to breaking the separation of powers. That is illegitimate. Both objections have been analyzed and discussed in the Anglo-American literature and the conclusion is that none of them represent an insurmountable obstacle to regard economic, social and cultural rights recognizable and judged by courts. Otherwise, there are powerful reasons for promoting this labour.