SOCIAL RIGHTS, RULE OF LAW AND INEQUALITY: REFLECTIONS ON THE JUDICIALIZATION OF POSITIVE RIGHTS

The ancient tension between democracy and judicial power is apparently accentuated when it comes to providing effectiveness to social rights. This article discusses the main critics that have been made against the increase of the judicial role in enforcing positive rights. Firstly, it is presented a review of the main topics regarding the social rights dogmatic knowledge. Afterwards, the study aims to organize and discuss the critics that have been made about the increase of the judicial role in enforcing those rights, while continuing to recognize them as a relevant reference in the construction of an appropriate interpretative model. The main hypothesis is that the objections to judicial intervention in matters involving to public policies prioritize the failures and inconsistencies of adjudication while assuming an idealistic view about the efficiency, rationality and equity in distribution of public services. Considering that the distribution of scarce resources is still influenced by clientelism and patrimonialism, judicial decisions may have a catalyst effect which corresponds to a natural updating of the old checks and balances concept.