ABSTRACT
This chapter resolves the apparently irreconcilable dichotomy, and shows that it is possible—and necessary— for both starting points to be respected, and that a discussion about the relation between the law—especially constitutional law and public policies would only become productive from the moment at which the need for such a resolution is taken seriously. In a classical liberal model, in which judges might be considered the ‘mouth of the law’, it is impossible to imagine that the judiciary might intervene, correct, and sometimes even define public policies. The government has priority in the implementation of public policies which carry out social and economic rights, but it is the duty of the judges to control it, complement it and correct it whenever necessary. For instance, by distributing medical treatment individually (that is, without considering government policies), judges may be harming other public policies in the area of health (or other areas), even if they manage to ‘solve’ some isolated cases.
