Social rights: Legal-dogmatic interpretation by the constitutional review bodies

Abstract

Social rights, unlike personal and political rights, express claims not to individual freedom but to social protection — the provision of social benefits, services and payments ensured through the redistributive policy of the state — and therefore cannot be regarded as natural and inalienable; one can claim them only to the extent established by law. Social rights are designed to ensure the actual enjoyment of personal and political rights. They are morally grounded and derive from the four basic claims underlying personal rights — to liberty, to human dignity, to equality and to security — each of which receives its own material guarantees. Social rights have a very specific justiciability, which basically boils down to the possibility of challenging in the constitutional review bodies the provisions of legislation that do not comply with the principles and requirements expressed in them. In exercising constitutional review, constitutional courts usually rely not only on social rights proper, but also on personal and political rights, as well as the general legal principles of equality, legal certainty, proportionality, and tend to grant the legislator a wide margin of appreciation. Even when constitutional review bodies recognize certain provisions of social legislation as unconstitutional, they do not, as a rule, declare them invalid, since otherwise the enjoyment of social rights would not be possible at all. The constitutional courts usually only order the legislator to eliminate the identified violations, leaving it to the legislator to choose how to do so. Thus, the content of social rights is rather uncertain, it is quite “mobile”, “situational” and is in constant evolution due to a multitude of political, economic, demographic, socio-cultural factors. Therefore, legal-dogmatic categorization of the content of social rights is hardly possible both at the doctrinal level and in the practice of constitutional review bodies. With regard to social rights, we can only talk about the formation of general approaches to justifying of certain claims, appropriate ways, forms and limits of their ensuring.

Keywords:

human rights, social rights, constitutional court, constitutional review, justiciability