Abstract

LANDAU, DAVID. Socioeconomic Rights in Latin America: Closing the Gap between Aspiration and Reality. Rev. Derecho Estado [online]. 2023, n.57, pp.7-40.  Epub Dec 01, 2023. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n57.02.

Latin America is the region where constitutional socioeconomic rights have been taken most seriously. There is a high level of convergence around the idea that socioeconomic rights belong in constitutions. Moreover, there is a growing regional consensus that socioeconomic rights are fully justiciable. The empirical record of judicial enforcement, on the other hand, shows more variance and is less transformative than this consensus would suggest. Courts most commonly follow models of enforcement that place relatively low levels of strain on conceptions of judicial role but are also less likely to have transformative effects. For example, many courts seem to prefer to give petitioners an individual remedy rather than issuing a structural or collective remedy. Even in countries where courts have issued an aggressive program to enforce socioeconomic rights, such as Colombia, critics have argued that courts have not achieved enough. After surveying the gap between constitutionalization and on-the-ground enforcement, this essay considers solutions. I conclude that the best response is holistic: it would seek to redesign other institutions, such as ombudspersons and political parties, so that these institutions are more responsive to socioeconomic rights, while maintaining an important role for courts in catalyzing and coordinating attention to socioeconomic issues.

Keywords : Socioecomomic rights; right to health; judicial role; transformative constitutionalism; Latin American constitutionalism; Colombian Constitutional Court; Brazilian Supreme Federal Tribunal.

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