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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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Introduction

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Constitutionalisation of socio-economic rights is perhaps one of the most debat- able issues within modern constitutional scholarship. The discussions on jus- ticiability and the enforcement of socio-economic constitutional rights are pres- ent not only at national levels but also on the international scene with respect to international and regional treaties (International Covenant on Economic, Social and Cultural Rights, European Charter of Social Rights), and most recently at the European Union level (Charter of Fundamental Rights). Essentially, opin- ions vary as to whether social rights should be attributed with the more concrete nature of individual (subjective) rights, or left as prerogative of each state to shape its social policies. Yet, the revived interest in socio-economic rights did not go beyond the well known arguments for and against their constitutional justiciability. Commonly, the juxtaposition of socio-economic rights with civil and political rights has been repeatedly underlined. In this light, socio-economic rights are called “sec- ond generation rights” and are presented as weak rights whose materialisation undermines other constitutional rights. According to constitutional doctrine the difference between social and political rights lies in their substance, but also in the fact that civil and political rights were recognised before social and eco- nomic rights were given constitutional grounds. Prior recognition assumes pre- cedence and indicates that the initial rights are more legitimate. The different nature of both categories of rights is also affirmed. This controversy in turn is reflected in the legal argument concerning the opposition of different legal tech- niques, being on the...

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