A judicial activism model for Global South constitutional states

Abstract

Rights enforcement is the central purpose of the Constitutional State. In countries of the Global South, this goal faces major challenges, including economic inequality, institutional weakness, violence, lack of social cohesion, and deficits in political representation. In response, constitutional courts must fulfill two mandates: to enforce “prohibition” against laws or policies that disproportionately restrict rights, and to adopt an “activist” judicial approach when laws or policies fail to guarantee rights in a justified manner. This article argues that, by applying jurisprudence guided by judicial activism —as conceptualized through Koselleck's “layers of meaning”— constitutional courts can bridge the gap between social reality and fundamental rights mandates, providing guidelines for a stable and legitimate model of judicial philosophy in Global South constitutional states.