Legitimacy & Litigation: The Right to Health Care

Much ink has been spilt by scholars over how courts should adjudicate socioeconomic rights, frequently by scholars in countries that do not expressly include such rights in their constitution. Pedro Felipe de Oliveira Santos describes well the formalist approach that drives many jurists and scholars to argue for minimalism on the part of courts adjudicating socioeconomic rights. The separation of power(s) argument is that courts are not democratically elected–governments are–and so the latter should be responsible for the complex trade-offs involved in allocating public funds to social programs.