Possibilities of Constitutional Adjudication in Social Rights Matters

Abstract

Irrespective of the advantages or negative consequences of social rights, and unrelated to the textual recognition of such rights in a given constitution public opinion and a great number of scholars and politicians take such rights for granted. Most constitutional and supreme courts in welfare states have to operate (and in certain cases are willing to operate) as if these rights were part of constitutional reality. In this paper I take this point of departure as part of constitutional reality. This is, however, an open reality, i.e. even with strong textual recognition in more recent constitutions, it is to a great extent a matter of constitutional policy, a matter of judicial choice how these references will be used. The following remarks intend to review some of the applicable judicial strategies arguing that strong substantive recognition of such rights is justifiable only in very exceptional circumstances.

Keywords

• social rights
• constitutional law
• constitutional adjudication
• justifiable rights