Preface

• Author: Rodolfo Gutiérrez Silva
• Profession: PhD (Candidate) in Law, University of Hamburg, Germany
• Pages: 13-15

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Preface

W

ithout any doubt, we have made some progress in the protection of the

right to adequate health worldwide. However, new risks embedded in the

globalisation process are generating complex changes in the model of health that

has traditionally characterised dierent countries. ese changes are clearly aecting

the welfare of millions of people and triggering, what the economic historian Karl

Polanyi might call, a triple reaction in a system led by judges who are looking to

make a contribution to solving structural problems that are generating, in dierent

contexts, a massive and systematic violation of human rights. e objective of this

judicial activism is to generate a new balance in the system through the adoption of

jurisprudential innovations. However, such judicial intervention is unfortunately not

yet able to generate a strong impact on people´s lives. is book provides evidence

of the need for greater intervention by judges in politics in order to ensure the neces-

sary checks and balances whilst protecting constitutional values such as equality and

liberty. Judges have traditionally been criticised because of their lack of legitimacy,

however, if judges do not interfere in politics, the principles of the constitution might

not be fullled.

Generally speaking, there are two debates in relation to the issue of Justiciability: the

debate about the “challenges faced by the Justiciability […]” or Reactionary Justiciabil-

ity and the debate about the “challenges raised by the Justiciability” or Transformative

Justiciability. Reactionary Justiciability implies the assumption that the recognition of

the Human Right to Health by Courts, although possibly aecting principles such as

the Separation of Powers, Democracy, Legitimacy and Financial Sustainability —in

the case of the provision of expensive medicines or universal accessibility—, is justi-

ed because if judges do not interfere — in politics—, the right to health would be

massively violated. is debate has been led by many NGOs, the International Com-

mission of Jurists and many academics worldwide. Without any doubt, on a national

level, many countries have recognised the right to health in their constitutions. In a

similar vein, on a regional level, the right to health has also been recently recognised