You are on page 1of 29

© The Author 2015. Oxford University Press and New York University School of Law.

All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

Positive rights: Who decides?


Judicial review in balance
Matthias Klatt*

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


Positive rights which require the state to take action are often criticized because they give
rise to the justiciability problem. Courts, rather than democratic legislatures, decide upon
the scope and content of the rights. This article argues that this democratic objection against
positive rights is misguided. Judicial review and deference admit of degrees. Hence, it is pos-
sible to arrive at a balanced account of judicial review which avoids the problems of both too
much and of too little control. The conflict between the competences of the legislature and
the courts can be solved by means of a balancing exercise, the details of which are spelled
out here. The model of judicial review in balance is further explained using a case analysis
which concerns the right to a dignified subsistence minimum. The article provides a sensitive
and flexible solution to the problem of how courts should enforce social and socio-economic
rights.

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).

I•CON (2015), Vol. 13 No. 2, 354–382 doi:10.1093/icon/mov019


Positive rights: Who decides? 355

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


dichotomy.5 This is the reason why this article employs the term “positive right” in
a way embracing the positive dimension of rights, no matter which generation the
right stems from.
Positive rights give rise to a number of severe problems that can be categorized
under the four headings of justification, content, structure, and competence. 6
The justification problem concerns political questions, such as whether and to
what extent positive rights should be included in a catalogue of rights.7 This is
equivalent to establishing that positive functions of the state are a question of
rights, rather than politics or morals.8 Furthermore, the justification problem
concerns legal interpretive questions, regarding whether a particular constitu-
tion contains positive rights. The justification problem was virulent, for ex­ample,
in the early days of the Brazilian Constitution of 1988, when it was unclear
for more than a decade whether the socioeconomic norms of the Constitution
established positive rights or mere programmatic norms. The Supremo Tribunal
Federal ended that debate with a series of major decisions regarding the right
to health. 9 Other legal systems resist the idea of settling positive rights qua
constitutional entitlements rather than by resorting to a political resolution.
Examples of the latter, rather skeptical, position are the United Kingdom, where


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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


in money, or freedom, or both.12 Any solution to the problems of justification and
content depends on a clear understanding of the structure of positive rights, which
represents the third group of problems.13 Recent scholarship has achieved some
progress in the understanding of this structure, in particular with respect to the
relation between positive rights and the proportionality test.14 Following the logi-
cal difference between a disjunctive and a conjunctive structure, the proportional-
ity test displays important differences when applied to positive rather than negative
rights.15
The fourth and final problem is the issue of competence or justiciability. This prob-
lem concerns the proper role of courts in making positive rights effective, a role that
has to be clarified with respect to the competence of the legislature.16 Often, the two
levels of material questions and of the competence to decide upon them are mixed up.
This can be seen, for example, in the well-known democratic objection against posi-
tive rights. This objection confuses the justification problem and the competence prob-
lem. It is submitted that a clear distinction should be made between a material and a
formal level.
This article focuses on the problem of competence, but the findings of this article
affect solutions to the other problems as well. For example, the democratic objection
that is frequently taken as a reason to answer the justification problem outright in the
negative, can in fact be incorporated into a solution of the competence problem, as
will be demonstrated below. Consequently, the democratic objection does not count
against the justification of positive rights. In order to allow a clear focus on the com-
petence problem, I will without further argument set off from a particular concept of

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


(FCC) dealing with the positive right to a dignified subsistence minimum. This art­
icle seeks to provide theoretical guidance in answering the competence objection by
developing a model of judicial review in balance. My most important point is that, in
contrast to employing either a weak or a strong review, courts should adopt a flexible
approach that would allow for the whole range of intensities of review. The choice
of a particular intensity of review is dependent on the circumstances of the case at
hand, which in turn can be evaluated using a number of factors.
In what follows, I  will argue against the widespread misunderstanding that pro-
portionality was tantamount to strict judicial review whereas reasonableness review
was equivalent to a more deferential approach.18 According to the position defended
here, proportionality and reasonableness are merely different sets of questions to ask
which do not predetermine the scrutiny with which the answers given to them by the
primary decision-maker are controlled by courts. Rather, the degree of scrutiny has to
be established separately.

2.  The competence problem


2.1.  The justiciability of positive rights
The competence problem does not only occur with positive rights. Rather, it represents
the basic “dilemma of human rights adjudication.”19 On the one hand, allowing the
judiciary to make final decisions regarding the interpretation of human rights inevita-
bly entails allowing them to make contested value judgments. This runs counter to the
democratic ideal that, if not all decisions, then at least all important decisions should be made
by the people, rather than by unelected and unaccountable judges.20 On the other hand,
unlimited decision-making by elected representatives may interfere with human rights, so
there is a need for imposing limits upon the elected branches. Human rights are these limits,
but without a judiciary exercising control upon these limits they are not effective.
This dilemma is present in human rights adjudication regardless of whether posi-
tive or negative rights are at stake. The debate is partly blurred by the fact that some

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-

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


prudence.21 Its relevance can hardly be overestimated, for both practical and theoretical rea-
sons. As for the practical relevance, recent years have seen a significant increase in positive
rights adjudication in a number of jurisdictions. The most striking example is Brazil where
empirical studies have demonstrated remarkable increase rates in the number of health-
related lawsuits, regarding the free provision of medicines and treatment. The increase rates
range from 505 to 1412 percent in the years 2006 to 2009, as compared to 2002, while at
the same time the success rate of claimants was also well beyond 80 percent.22 This explosion
is commonly referred to as the “judicialization of the right to health.”23
As for the theoretical significance, the competence problem is a central objection against
the recognition of enforceable positive rights.24 These concerns are prevalent especially in
the US literature, but they are also raised in legal systems that recognize positive rights.25
There are two variants of this objection, drawing to the limits of judicial expertise and legiti-
macy, respectively. The expertise variant argues that courts are generally poorly equipped
to deal with complex issues of a high political impact.26 Unlike the legislature, courts are
not supported by large bureaucracies that build and process information in a large variety
of topics and disciplines. They only have limited expertise in ethical and political theory.27
The legitimacy variant of the competence objection denies judges any meaningful
role in the enforcement of social rights, since they are neither elected nor account-
able.28 According to this view, granting courts the competence to review legislative
acts on the ground of interference with positive rights destroyed the balance of pow-
ers. The real power in the state was shifted away from the political process and the

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

democratically elected representatives towards the courts. This resulted in transform-


ing the parliamentary legislative state into a “constitutional adjudicative state”29 or a
“juristocracy.”30 This transformation, so the argument continues, can only be avoided
by denying courts any competence to review positive rights.31 This criticism was para-
digmatically laid down in the dissenting vote to the FCC’s first abortion decision:
The Constitutional Court’s competence to annul Parliament’s decisions requires a sparing use
in order to avoid a shifting of the weights between the constitutional branches. The idea of judi-

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


cial self-restraint . . . is particularly relevant when constitutional review imposes standards for
the positive arrangement of the social order upon the democratically legitimated legislature,
rather than securing defense against infringements by the state authorities. In case of positive
rights the Constitutional Court must not succumb to the temptation of fulfilling the function
of the legislature . . . .32

2.2.  The taxonomy of judicial review


The answers given to the competence problem in different constitutional systems are
quite diverse. The spectrum ranges from simply denying the judiciary any meaning-
ful role in the enforcement of positive rights to allowing a strong judicial review. An
example of the former approach is the Irish constitution which incorporates positive
“principles of social policy” but explicitly excludes them from justiciability.33 The latter
approach was adopted in Brazilian case law on the right to health and in the post-
authoritarian constitutions following the fall of Communism in Central and Eastern
Europe.34 Between those two poles, there are intermediate approaches, of which the
South African reasonableness review and the dialogic interaction between courts and
the legislature in Canada may be cited as examples.35

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-

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


ive coordination employing methods from new public governance goes hand in hand
with a heightened assessment of governmental action.38 The “meaningful engage-
ment” approach developed by the South African Constitutional Court represents an
example.39 Lastly, the supremacist court is prepared to make detailed substantive deci-
sions on its own and to employ an even more rigorous scrutiny of governmental policy
or legislation. This approach is adopted, for example, by the Colombian Constitutional
Court which has been described as “perhaps the most activist court in the world.”40
Intriguing as Young’s typology certainly is, it leaves one decisive question open:
How does one determine which of the three approaches is to be applied in a specific
constitutional system? What normative criteria are available to the courts themselves
to decide whether they should employ one standard of review or another? A descrip-
tive account of different role models of courts is a useful starting point, but does not
in itself allow for normative guidance. Young’s typology should thus be supplemented
by a theory on how to determine which of the three approaches—detached, engaged,
supremacist—is to be applied in a given case. The main aim of this article is to present
such a theory.
This point has an implication for the grander project of global constitutionalism
to develop a common grammar for legal analysis.41 What is needed is an overarching
theory that would enable us to critically reconstruct the normative quality across the
whole variety of court practices in different legal systems. We are able to see that we
are in need of such a theory when we realize that the assignment of particular courts
to one of Young’s categories will often be contested, since, in most cases, the same
court may issue diverging decisions. Courts often handle their role conception in a

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.

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


3.  Judicial review in balance
3.1.  Too much and too little control
Young’s three approaches to the role of courts have to be understood against the back-
ground of two problems that any court must face: the problem of judicial usurpation
and the problem of judicial abdication.42 Judicial usurpation “occurs when the judi-
ciary interprets and applies rights in such a manner that it assumes control of the
political system . . . crowding out . . . the democratically elected branches.”43 Waldron
has formulated the classical criticism of such judicial activism.44
Judicial abdication, in contrast, occurs when courts refrain from protecting posi-
tive rights properly.45 For example, the reasonableness review of the South African
Constitutional Court has been criticized as being overly deferent and offering too little
protection of positive rights.46
Judicial usurpation results in too much control, whereas abdication results in too
little control. In the former situation, rights are protected at a too-high cost to the
principle of democracy, whereas in the latter situation the court is reduced to the func-
tion of a mere bystander to legislative or executive failures. As a result, the democratic
principle is protected at a too-high cost to the enforcement of the positive right. The
courts then are unable to ensure that state authorities give adequate reasons for their
decision—a role that is, however, necessary to the legitimacy of any public power.47
The two situations of usurpation and abdication do not represent a strict antago-
nism. Rather, they are a matter of degree. Both represent the two ends of the spec-
trum48 of different forms of judicial review.

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.

3.2.  Distinguishing degrees of deference


In order to describe the different intensities of control employed by courts more accu-
rately, I  would like to introduce a triadic scale which distinguishes three different

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


degrees of deference.49 It is submitted that these three different degrees of deference
exactly match Young’s threefold typology of the detached, engaged, and suprema-
cist courts. Young, however, explicitly denies that her typology goes hand in hand
with the weak-to-strong scale of review.50 I  do not agree with her on that point.
Notably, when Young describes the different types in more detail, everything suggests
that indeed the typology sits along a scale of intensities of review. For example, the
sub-type of managerial review is introduced as suggesting “a heightened review of
government.”51
A light intensity of control, equivalent to a high degree of deference, occurs when
the court looks only for obvious mistakes made by the primary decision-maker. The
US Supreme Court, for example, reviews social legislation only for clear legislative
mistakes, which have to be “so clear that it is not open to rational question.”52 The
South African Constitutional Court, in the early stages of its jurisprudence, employed
a light intensity of review.53 The German Federal Constitutional Court employs light
control with its “control for evident mistakes” in legislative decisions which interfere
with positive rights.54
A moderate, or intermediate, intensity of control, leading to a moderate degree of
deference, can be witnessed in the German Federal Constitutional Court’s second
abortion decision. The Court deferred to the legislature the task of determining the
means and the scope of the protection of the unborn life in detail. However, the Court
will review whether the protection provided for was appropriate and effective, and
whether it was based on a thorough and careful investigation of the facts and on jus-
tifiable assessments.55

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

Lastly, a serious intensity of control, synonymous with a small degree of deference,


had been employed by the German Federal Constitutional Court in its first abortion
decision, in 1975. The Court had then stressed its role to enforce the right to life even
against the democratic majority, purported political necessities or a predominant view
in society.56 A serious review was also employed in the early years of the Hungarian
Constitutional Court, provoking the comment that “the Constitutional Court was for
all intents and purposes running the country.”57 The “hard look”58 employed by the
South African Constitutional Court in Khosa v. Minister of Social Development59 may

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


also be mentioned here.
A main point of the present article is that the choice between these three degrees
of deference is not to be made in the abstract, once and for all, within a given legal
system. Rather, the correct intensity of control must be chosen in each particular
case, depending on the factual and normative circumstances. The flexible model
stands in clear opposition to other accounts that try to establish a certain standard
of review and deference generally.60 Only the flexible model can ensure that the
correct balance between the extremes of too much and too less control is achieved
in all cases.
It might be objected that the predictability of a certain standard of review matters
for the rule of law, which is certainly true.61 The core question, then, is how we can
have flexibility in the degrees of deference while at the same time maintaining the pre-
dictability of deference. The answer lies in reconstructing judicial review as a conflict
between competences, which can be solved by means of a balancing procedure.

3.3.  A conflict between competences


The institutional problem of judicial review can be reconstructed as a conflict of com-
petences.62 The conflict lies between the legislature’s competence to decide on positive
rights’ matters, on the one hand, and the constitutional court’s competence to control
these decisions, on the other. A competence is a legally established ability to change
the normative situation by means of an institutional act.63
I would like to submit that competences are a specific kind of norms, namely
principles, as opposed to rules. Principles theory distinguishes between material

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.

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


Modern constitutions aim to protect the competence of the democratically elected
legislature, but they also strive to protect rights by means of a control-competence
exercised by courts. Both competences are constitutional principles and, hence, must
be realized to the greatest extent possible. The question is, therefore, not whether the
judiciary should determine the extent of the state’s positive obligations or, alterna-
tively, whether this is the task of the legislature. The problem of judicial review is not
a matter of either-or, but a matter of degree.
If it is correct that the institutional problem of judicial review is a conflict of formal
principles, rather than of rules, then the solution of that problem is not to be found
by means of interpreting competence norms. Rather, a balancing procedure has to be
employed.68

4.  Balancing competences


In this section I will explain how competences can be balanced. I will first outline the
idea of balancing competences. Second, I will transpose Alexy’s law of balancing from
the realm of material principles to formal principles. Third, I will discuss a list of fac-
tors used for determining the concrete weight of the legislature’s and the judiciary’s
competence. Fourth and fifth, I will consider two possible objections to my theory.

4.1.  The idea of balancing competences


Balancing colliding competences allows for combining the constitutional obligation to
turn positive rights into concrete reality while at the same time respecting the author-
ity of the legislative and executive branches.69 It allows for an understanding of the

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


is to be achieved with regard to the circumstances of the concrete case, rather than by
means of a purely abstract balancing exercise. The correct intensity of judicial review
will always be sensitive to the circumstances not only of the particular legal system,
but also of the particular case.73 As Sadurski reminds us, “such calculus cannot be
made in abstraction.”74 Accommodating the balance between judicial and legislative
or executive competences “is much more contingent on a number of context-sensitive
circumstances than has usually been accepted in public and theoretical discourse.”75
Tushnet has, however, argued against such sensitivity to the case at issue. According
to him, in a flexible model, “judicial review may degenerate into a return to parlia-
mentary supremacy or escalate into strong-form review.”76 In sharp contrast to this
argument, the present article holds that the mechanisms described by Tushnet, while
true in substance, represent the greatest advantage, rather than any drawback, of a
balancing model of judicial review. It secures the flexibility necessary to achieve a cor-
rect intensity of judicial review in each case.
Adjudicating positive rights cases is not only about determining the correct bal-
ance between the conflicting material principles, such as the protection of the right
and financial stability of the national budget. It is just as much about establishing the
correct balance between conflicting formal principles. I would like to submit that the
claim to correctness, raised by any judicial decision, embraces both material correct-
ness, which requires a balance between substantial interests, and formal correctness,
which requires a balance between the competences at stake.77 The claim to formal cor-
rectness can also be described in Raz’s terms as “law’s claim to authority.”78
The claim to correctness entails a claim to justifiability.79 Hence, we have to deter-
mine what kind of reasons have to be given by the courts in order to justify their

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.

4.2.  The law of balancing


The structure of balancing follows quite clearly from the (first) law of balancing,
which reads: “The greater the degree of non-satisfaction of, or detriment to, one prin-
ciple, the greater must be the importance of satisfying the other.”80 Originally, this

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


law of balancing was meant by Alexy to cover the balancing of material principles. It
is submitted, however, that this law is also applicable to the balancing of formal prin-
ciples, i.e., competences. The balancing of competences, then, can be broken down
into three steps.81 The first step consists in establishing the degree of non-satisfaction
of the first competence. In the second step, the importance of satisfying the compet-
ing competence is established. Finally, in the third step, it is established whether the
importance of satisfying the latter competence justifies the non-satisfaction of the
former.
As in the case of balancing material principles, a triadic scale may be employed
to determine the concrete weight of a competence. This scale comprises the light,
moderate, and serious stages.82 So the weight of a constitutional court’s compe-
tence to control the legislature could, in a given case, be light, moderate, or serious,
depending on the circumstances. Conversely, the legislature’s competence to decide
upon the protection of positive rights could also be light, moderate, or serious.
Depending on the values assigned to the conflicting competences, the third step
of balancing will then establish a preference for either of the two competences.83
The law of balancing determines the internal structure of balancing compe-
tences. Any decision pertaining to a conflict of competences that follows this
internal structure is internally justified.84 Much depends, however, on justifying
the evaluation of the weights of the competences by means of the triadic scale.
This so-called external justification must be done with regard to the specific cir-
cumstances of a concrete case. It depends on arguments external to the balancing
itself and concerning the concrete weight of an interference with a competence.
In order to shed more light on the external justification, the next section will dis-
cuss a variety of factors that can be employed to determine the concrete weight of
a competence.

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

4.3.  Determining the weight of competences


The concrete weight of both the legislature’s competence to decide and the consti-
tutional court’s competence to control can be determined by means of a variety of
factors. The following list of five factors is not meant to be exclusive. It may well be
supplemented with further factors. The discussion here, however, shall suffice to dem-
onstrate how the process of external justification can work. The essence of my argu-
ment is to structure the intensity of judicial review by using factors that are indicative

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


of the types of circumstances in which courts should employ a light, moderate, or
serious intensity of control of legislative welfare decisions.85
The first factor that influences the weight of the competence of the primary deci-
sion-maker is the quality of the decision. The better the quality of the primary decision,
the more weight is to be assigned to the competence of the decision maker, and the
more serious is any interference with that competence by means of judicial review.86
The quality of the primary decision can be assessed, for example, by evaluating the
arguments given for its justification. The more extensive and convincing those argu-
ments are, the better is the quality of the decision. This factor is present, for example,
in the jurisdiction of the South African Constitutional Court concerning the right to
adequate housing, as protected in § 26 of the South African Constitution. In a case
where the state sought an eviction order that could deprive people of their homes,
the Court took into account whether the authorities had engaged with those people
in order to arrive at a mutual understanding.87 The concept of “meaningful engage-
ment,” imposing a duty on the state to consult with people affected by its policy
decisions, is accordingly quite relevant for the quality of the primary decision. If
that duty has been fulfilled, then the weight of the competence of the authorities
to decide is so high that the Court will refrain from exercising close scrutiny.88 In
contrast, in a different case where the quality of that engagement was insufficient,
the lack of meaningful engagement and “major failures in communication” on the
side of the state authorities led the Court to conduct a stricter review, i.e., to evalu-
ate the weight of its competence to control more seriously.89 This adjudication is
actually underpinned by a scale running from mere engagement and reasonable
engagement to meaningful engagement.90 It is submitted that, along this scale, the
quality of the primary decision may rise and decline. Further, the process followed
by the state authorities and the quality of information gathered matter for the qual-
ity of the decision.91

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


en­quiries necessary for determining what the minimum-core standards . . . should be, nor for
deciding how public revenues should most effectively be spent. . . . Courts are ill-suited to adju-
dicate upon issues where court orders could have multiple social and economic consequences
for the community. The Constitution contemplates rather a restrained and focused role for the
courts . . . .94

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


. . . the possibilities to form a sufficiently reliable opinion, especially on future developments like
the consequences of a legal norm . . . .98

This is particularly true in situations of empirical-epistemic unreliability where prog-


noses of future development have to be made, as is acknowledged by the UK House
of Lords:
. . . I would accept that great weight should be given to the judgment of the Home Secretary,
his colleagues and Parliament on this question, because they were called on to exercise a pre-
eminently political judgment. It involved making a factual prediction of what various people
around the world might or might not do . . . . Any prediction about the future behaviour of human
beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily
problematical.99

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-

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


cerns over its safety. Here, the Court required that the government proved that these
concerns were in evidence and not just simply invented.104
Democratic legitimacy of a decision figures as a third factor in determining the con-
crete weight of a competence.105 The greater the democratic legitimacy of a com-
petence, the more important this competence is. Democratic legitimacy admits of
degrees.106 In the UK, the democratic legitimacy of parliament is used to pay “greater
deference to an Act of Parliament than to a decision of the executive or subordinate
measure.”107
Democratic legitimacy, however, does not always count purely in favor of the com-
petence of the legislature, as opposed to the constitutional court. As has been demon-
strated by Dixon and Fredman, courts may well fulfill a function that is democratically
sustainable. Judicial review may “help counter failures of inclusiveness and respon-
siveness in the political process,” which Dixon labels “blind spots” and “burdens of
inertia.”108 To the extent that a court fulfills that function, the factor of democratic
legitimacy strengthens its competence to control. The legislature’s competence to
decide, conversely, is backed by the factor of democratic legitimacy only on condition
that the legislative process does not suffer from blind spots and burdens of inertia.
We can see, again, very clearly that the balance of competences is dependent upon
the concrete circumstances, in this case, on the performance of the majoritarian leg-
islative process. Furthermore, it becomes apparent from this argument that the demo-
cratic objection, raised against judicial review,109 is also a matter of degree, and its
persuasive power depends on circumstances.

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

In order to determine more precisely when the competence of courts is supported


by democratic legitimacy we may employ the “three key values” of democracy high-
lighted by Fredman, namely accountability, participation, and equality.110 The balanc-
ing model defended here in fact matches quite closely her statement that “[t]he role of
the courts is therefore legitimate to the extent that they can fulfil an auxiliary role in
each of these respects.”111
A further factor is the significance of the material principles at stake. The more
intensely a legislative decision interferes with a material principle, for example, a

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


human right or a collective good, the less important is the legislature’s competence
to decide autonomously, and the more important is the court’s competence to control
that decision.112 The intensity of interference with the competence of the legislature
by judicial review corresponds directly with the intensity of interference with a mate-
rial principle by a legislative decision. If material principles are not affected at all, the
importance of the legislative competence is very high and the importance of the com-
petence of judicial review is quite low. This factor has been accepted by the German
Federal Constitutional Court:
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
. . . the importance of the legal interests at stake.113

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:

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


Put another way, the margin of the discretionary judgment that the courts will accord to the
executive and to Parliament where this right is in issue is narrower than will be appropriate in
other contexts. . . . We are dealing with actions taken on behalf of society as a whole which
affect the rights and freedoms of the individual. This is where the courts may legitimately intervene.
. . . It is an essential safeguard, if individual rights and freedoms are to be protected in a demo-
cratic society which respects the principle that minorities, however unpopular, have the same
rights as the majority.118

On this perspective, it is necessary to determine what is at stake for human rights in


order to decide upon the concrete weights of the conflicting competences. For this task,
the aspects formulated by Wesson may be of some help. It is submitted that Wesson’s
three aspects (a disadvantaged position of the claimant in society, the urgency of the
claimant’s needs, and the intersection between the positive right and other rights) can
be interpreted as signaling a higher material relevance of a decision, and thus raising
the importance of the court’s competence to control.119 In these situations, then, a
stricter intensity of judicial review would presumptively be justified.
The last factor that shall be considered here is the specific function fulfilled by the
relevant competence in a system of appropriate division of labor between courts and
legislatures. The non-satisfaction of, or detriment to, a competence is the more serious
the more the specific function of that authority is affected. For example, the specific
function of courts to hear cases and to provide a process in which people have the
opportunity to challenge decisions and to have their rights claims seriously consid-
ered, may strengthen the court’s competence to control in a particular case.120 In a
different case, on the other hand, the weight of the legislative competence may be
strengthened if, for example, the decision deals with the matter of the defense of the
realm.121

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


justifying their decisions as far as the balancing of material principles is concerned.
Most judgments, however, lack a transparent and elaborated argument as to the exact
importance the court assigns to its own competence of control.

4.4.  Flexibility reconsidered


I have defended a case-sensitive approach to the conflict of competences, which
takes into account the circumstances of concrete cases. It might be objected that this
approach results in too much flexibility. This could endanger the rule of law, in the
realm of competences and formal law, since the predictability of whose competence
will prevail—the reviewing court’s or the legislature’s—is low. Tushnet has made pre-
cisely this point when arguing against what he calls weak-form judicial review which,
according to him, “may be unstable in practice.”122
However, a balancing model of competences is capable of countering this objection
by means of two separate elements. Both elements demonstrate how a certain amount
of stability is possible in a flexible balancing model of judicial review. First, a constitu-
tional system is not limited to order competences on a case-by-case basis only. Rather,
it can consider the relation between competences on a more abstract level as well.123
This can be achieved by taking into account the abstract weight of the competences,
in addition to their concrete weight. The abstract weight of a formal principle is the
weight this formal principle has in relation to other formal principles, but irrespective
of concrete cases. We know from the balancing of material principles how this works
in detail and which effects the inclusion of abstract weights may have.124 It is submit-
ted that these mechanisms can be transferred to the balancing of competences as well.
The abstract weight of competences is perfectly suited to representing more abstract
differences between various constitutional systems, as far as judicial review is con-
cerned. For example, a system that assigns generally more weight to the competence
of the legislature, rather than that of the constitutional court, as in the case of the
United Kingdom, could give a greater abstract weight to that competence. Conversely,
a system that is dependent on a greater importance of judicial control—i.e., when the
constitutional order is in a transitional situation highly dependent on the active role
of the judiciary—may allocate a greater abstract weight to the court’s competence

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

of control. The Columbian constitutional order and post-authoritarian constitutions


drafted after the fall of communism in Central and Eastern Europe may be cited as
examples of the latter situation.125 This is not to say that there are always differences
between the abstract weight of the branches. In the case of the Brazilian constitu-
tional system, for example, Justice Mendes has argued that “the democratic lawmaker
and the constitutional jurisdiction play equally relevant roles.”126
The main difference, however, between this balancing account and a more strict, inflex-
ible ordering between competences is that the assignment of a higher abstract weight to

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


one or the other of the conflicting competences does not determine the outcome of the bal-
ancing procedure straight away. Rather, the latter will still depend on the concrete weights
as well, which follow from the circumstances of the particular case. Thus, the differen-
tiation between the abstract weights of the competences brings about a prima facie order-
ing of the competences only. This prima facie force may still be overridden if the concrete
weights carry sufficient weight in a particular case. Still, abstract differences between vari-
ous systems of judicial review can be mapped in this way. The abstract weight may make it
possible for a competence to enter the balancing of competences with a winning margin.
What matters here is that this winning margin brings about a greater stability into the
model, thus diminishing the sensitivity of the balancing model to the case at issue.
Another means of countering the objection of excessive flexibility stems from
Alexy’s law of competing principles, which runs:
The circumstances under which one principle takes precedence over another constitute
the conditions of a rule which has the same legal consequences as the principle taking
precedence.127

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.

4.5.  Excluded reasons


A further possible objection to the balancing model of judicial review focuses on
the notion of excluded reasons. Waldron argues that judicial review is illegitimate
since it was democratically illegitimate. It privileges “majority voting among a small
number of unelected and unaccountable judges, it disenfranchises ordinary citizens
and brushes aside cherished principles of representation and political equality.”128
Waldron sees democratic legitimacy as a protected reason or exclusionary reason.

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-

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


anced. For the objection could maintain that some indirect balancing effect between
an excluded reason and democratic legitimacy was in place.
However, the objection is implausible for three reasons. First, it violates the pos-
tulate of general rational discourse that all relevant aspects must be considered.131
Waldron’s argument cuts off all other competence aspects from democratic legiti-
macy. He would have to demonstrate that the excluded reasons do not count towards
the weight of the conflicting principles, i.e., that they are not relevant. This places a
very high burden of argument. Can we really say that, for example, the quality of the
legislature’s decision does not have impact upon its competence to decide freely on the
matter?
Second, there is no need to protect the competence of the legislature by means of
excluded reasons. For there are only two possibilities: Either the competence of the
legislature has a greater weight than the reasons counting in favor of judicial review,
in a particular case, or the other way round. In the first alternative, the competence
of the legislature will be given the appropriate weight in the balancing procedure, and
hence will prevail. I would like to add that it is quite possible, within a balancing model
and in a particular legal system, that the competence of the legislature is “so strong
that only rarely do other considerations outweigh it.”132
In the second alternative, the competence of the court, by definition, possesses a
greater concrete weight than the competence of the legislature. Following the exclu-
sionary reasons argument in this alternative would mean that the competence of the
legislature must nevertheless prevail. This seems to me a very high burden of argu-
ment. How could one argue that the legislature’s competence should prevail irre­
spective of the fact that the competence of the court has a greater concrete weight
in a specific case? This consideration highlights the fact that Waldron’s argument is
compelled to say that the legislature should always prevail, irrespective of any con-
crete circumstances of specific cases.133 In essence, he argues for an unconditional
preference relation between the colliding competences. This is, in my view, a solution
on too general a level. Suppose that judicial review was the only way to prevent very

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-

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


ference between a balancing model and Waldron’s account, since the balancing model
also gives preference to the legislature in that alternative.
I conclude that any reason that could justify a preference of the legislature’s com-
petence can indeed be accounted for with its adequate weight in the balancing model.
Following an exclusionary reasons account, however, would imply detaching the
preference of the legislature’s competence from its justifying reasons (and indeed any
counter-reasons), and if legal argumentation is to remain a rational enterprise, this
detachment approach is not entirely compelling.135
Third, Waldron himself has given up his excluded reasons position. For, in a later
article, he accepts that his argument is not absolute or unconditional and that there
may be some cases in which democratic legitimacy may be balanced against other
considerations.136 I will not discuss those conditions and cases here. For the purposes
of this article, it suffices to say that to make the preference of democratic legitimacy
dependent upon circumstances is equivalent to adopting a balancing model, rather
than a model of excluded reasons.

5.  Case analysis


The remaining part of this article will describe how the theory defended here works
out when applied to particular cases. I  will turn my attention to the German Federal
Constitutional’s Court (FCC) jurisdiction on the right to a dignified subsistence minimum.
In particular, I refer to the two most recent decisions on the questions whether the cash
benefits paid according to the Asylum Seekers Benefits Acts137 and paid according to the
so-called Hartz IV138 legislation to secure the recipient’s subsistence were constitutional.

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


and “reserved.”141 Hence, the “material review as regards the result is restricted to
whether the benefits are evidently insufficient.”142 In contrast, the Court is prepared to
apply a stricter review regarding the procedures and methods the legislature employs
when determining the exact level of subsistence amounts. It reviews
. . . whether . . . the legislature has selected a calculation procedure that is fundamentally suited
to an assessment of the subsistence minimum, whether . . . it has completely and correctly
ascertained the necessary facts and, finally, whether it kept within the bounds of what is justifi-
able in all calculations steps with a comprehensible set of figures within this selected procedure
and its structural principles.143

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,

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


which, according to the factor of epistemic unreliability, strengthen the competence
of the legislature, rather than the court’s.
At the same time, the factor of material principles does not sufficiently strengthen
the weight of the court’s control competence, because if only the exact quantifica-
tion of the subsistence is at issue, at least some protection of the material right is
offered anyway. Much depends on the concrete circumstances. The lower the sub-
sistence amount settled by the legislature, the more does the factor of material prin-
ciples strengthen the competence of the controlling court. Lastly, as far as the factor
of the quality of the primary decision is concerned, this factor by definition cannot
strengthen the court’s competence as far as the result, rather than the process, of the
legislative decision on subsistence minimum is concerned.
If these considerations, taken together, justify assigning a greater weight to the
competence of the legislature than to the constitutional court’s control competence,
as far as the exact quantification of the subsistence minimum is concerned, it follows
that the light intensity of control, applied by means of a “review of evident failure,”
is indeed justified.
It is worth noting, however, that this review of evident failure is not tantamount to
a complete absence of review, as some critics might well argue. The FCC stresses, for
example, that the legislature has discretion as to the selection of the concrete means
applied in order to secure the subsistence minimum: “Whether it guarantees the mini-
mum existence through benefits in cash, kind or services, is in principle subject to the
legislature’s discretion.”146
However, and this is what matters here, the legislature’s means-selecting discre-
tion147 has limits, which are controlled by the Constitutional Court. The discretion
does not allow for regulating the subsistence minimum in non-statutory law only.
Rather, the legislature must secure a subsistence minimum by means of a “parlia-
mentary statute which contains a concrete benefit claim on the part of the citizen
towards the competence benefit institution.”148 This limit of the means-selecting dis-
cretion can be explained by means of the importance of the material principles at
stake, which is stated clearly in the judgment. The factor of the material principles

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


the physical existence of the rights-holder is concerned, rather than her participation
in social life, the factor of material principles plays out differently on the weight of the
legislature’s competence to decide in both respects, thus bringing about a difference
in the scope of the margin. In other words, the Constitutional Court’s competence to
control is of higher importance when the physical existence is affected.
That even a light intensity of the review for evident mistakes can be decisive for the
outcome of the case can be demonstrated with the help of the second FCC decision
on the cash benefits paid according to the Asylum Seekers Benefits Acts. In this case,
the FCC identified an evident mistake, and accordingly the benefits were held to be
unconstitutional. The cash benefits were “evidently insufficient,” since they had not
been changed since 1993, “despite considerable price increases.”150 Furthermore, as
compared to the benefits paid according to the general social welfare law, the benefits
paid to asylum seekers displayed a considerable gap of 35 percent. As a consequence,
the FCC ordered a transitional rule, rather than allowing the unconstitutional provi-
sions to remain in effect until the legislature corrected the mistake. The latter solution
had been applied in the first decision:
Because of the legislature’s discretion regarding its scope for action, the Federal Constitutional
Court is not empowered to determine a specific amount of benefit on its own on the basis of its
own assessments and evaluations. The unconstitutional provisions hence remain applicable
until new provisions are adopted by the legislature.151

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-

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


ture is obliged to “cover social reality in a manner that is appropriate to the present
day and realistic.”154 In order to meet this obligation, the legislature must constantly
review and refine the amount of the subsistence minimum.155 It must also “disclose
the methods and calculations used . . . in the legislative process.”156 In the Asylum
Seekers Benefits case, the FCC exercised a very detailed and comprehensive control in
this respect.157 All this demonstrates that the intensity of review is higher as far as the
process and methods are concerned.
This higher intensity of review can also be justified with the help of the factors.
The FCC explicitly justifies the standards set by the Court for the process of determin-
ing the amounts by referring to the weight of the material principles at stake. The
legislature must constantly revise the amounts “because” the material right to a dig-
nified subsistence minimum can only be satisfied at the moment when the person’s
elementary need arises.158 The Court also bases its argument on the principle of the
social welfare state contained in article 20.1 of the Basic Law.159 It is furthermore the
abstract weight of the material principle at stake that matters for the higher weight of
the FCC’s control competence.160
My point here is that the higher intensity of review is justified by the importance of
the material principles. At the same time, the factor of democratic legitimacy, which
strengthened the legislature’s competence as regards the exact quantification, does
not strengthen this competence as regards the process and methods. This is true
because the principle of democracy does not demand to give the legislature a compe-
tence to base its decisions on unsound empirical source or incoherent methods.
Furthermore, the factor of epistemic unreliability, while justifying a margin of
appreciation of the legislature with respect to determining the result, does not justify
the same margin as to the methods and process. Quite the contrary: because there
exists epistemic unreliability as to the exact amount required for guaranteeing a digni-
fied subsistence minimum, the procedural and methodological requirements imposed
upon the legislature by the Court are indeed quite advisable.

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:

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


[T]he protection of the fundamental right therefore also covers the procedure to ascertain the
subsistence minimum because a review of results can only be carried out to a restricted degree
by the standard of this fundamental right.161

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

Id. (emphasis added).


161
382 I•CON 13 (2015), 354–382

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

Downloaded from http://icon.oxfordjournals.org/ at Bibliothekssystem Universitaet Hamburg on August 6, 2015


authority rests upon balancing competences. It rests upon a game of giving reasons
and asking for reasons, and presupposes engaging in rational discourse. This discourse
must not be constricted to the material side of positive rights. It must also address the
formal side of justiciability and control competences. It is precisely to this task that the
theory developed in this article means to contribute. It should also be noted that, while
the discussion of the competence problem was limited to positive rights here, the find-
ings of this article are relevant to the problem of judicial review in general.