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Socio-Economic Constitutional Rights in Democratisation Processes

An Account of the Constitutional Dialogue Theory

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Anna Jaron

Is constitutional jurisprudence on socio-economic rights a threat to democracies? How powerful are constitutional courts in this field? Is it possible to restrain judicial activism in socio-economic adjudication? Through reference to constitutional dialogue theory, this book shows constitutional adjudication in socio-economic matters through the lenses of constitutional pluralism and intra-institutional deliberation. The experiences of nascent Central-Eastern European democracies which have undergone democratic changes in early 90ies of the 20th century are particularly interesting as a case study. The example of Polish, Czech and Slovak constitutional acquis are used to encourage the mechanisms that legitimize the role of constitutional courts in the field of socio-economic adjudication.

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Abstract

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This book is primarily concerned with examining changes in the conceptual understandings of socio-economic rights in the constitutions of countries that have undergone processes of democratisation. In particular, it focuses on the processes of constitution-building, but most importantly on questions such as justiciability of social and economic constitutional rights and their materialisa- tion in the effective socio-economic policies of democratic states. Through the examination of theories of constitutional interpretation of these rights in Poland, the Czech Republic and Slovakia, this book explores further the argument for a constitutional intra-institutional dialogue. In this sense, the inter- pretation of socio-economic constitutional rights is not simply taken from the constitution and made into legislation. Instead, the interpretation is to be seen as a dynamic process between state institutions. It is claimed that only within this process can the constitutionalisation of socio-economic rights take place. In other words the parameters are being set for the ultimate aim of the constitu- tional formulation of these rights, which is to ascribe them with the attributes of legal rights. The aim of this book is to discuss the foundations of the continuous process of the realisation and enforcement of socio-economic rights with respect to the cross-penetration of constitutions and ordinary legislations, judicial and non- judicial mechanisms, constitutional judiciary, other constitutional organs, and governmental and administrative institutions, all of which shape the general per- formance of the countries in the creation and exercise of social and economic policies. Consequently, the claim of the Constitutional Courts’ activism in socio-...

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