THE IMPACT OF THE COURTS ON SOCIAL RIGHTS AND PUBLIC POLICIES: a study around Sentence T-025 of the Colombian Constitutional Court

Abstract

The judiciary has played an important role in enforcing social rights and public policies. Controversies are raised, however, about the democratic legitimacy and the technical capacity of the courts to deal with the subject. This scientific article aims to analyze, therefore, the implications of this judicialization, adding a comparative perspective to the debate. In particular, Sentence T-25 of the Colombian Constitutional Court (CCC) and the experiences of the Federal Supreme Court (STF) of Brazil on the matter are analysed. Also mentioned are the “PUCL” case of the Court of India, and the “Grootboom” case of the South African Constitutional Court. It is clarified that the study developed is of a qualitative nature, involving bibliographical and documentary research and case studies. It could be concluded that the STF has been positioning itself for the possibility of judicialization of certain fundamental rights and public policies; that the demands and decisions are still, for the most part, individual, which has not been achieving the same results as the CCC; but which has been advancing in the discussion about the use of the theory “Unconstitutional State of Things” and structural and dialogical processes, with strong monitoring of the execution of decisions. The innovative contribution of this scientific article lies, in addition to the comparative perspective on the judicialization of rights and social public policies, in the concern to follow the positions of the STF and to think about its future perspectives of action, with emphasis on the tools that can make the Judiciary an important vector of transformations of reality in contrast to the failures and inertia of the executive and legislative powers.