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Socio-Economic Constitutional Rights in Democratisation Processes

An Account of the Constitutional Dialogue Theory


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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PART I THE NATURE OF CONSTITUTIONAL SOCIAL AND ECONOMIC RIGHTS Chapter 1 Characteristics of Socio-Economic Rights 1.1 Approaching Socio-Economic Rights The recognition of social and economic rights understood as an injunction to take care of those in need and those who cannot look after themselves, originates from the major religious traditions. Other sources draw from philosophical and political theories, political programmes developed mainly in the period of the 19th century industrialisation processes, and constitutional precedents, such as the Mexican Constitution of 1917, the following Soviet Constitutions in the Soviet Union and its satellite countries, and also the 1919 Constitution of the Weimar Republic (which introduced the Wohlfahrtsstaat concept).2 When dis- cussing the nature of social and economic rights, the focus on explanation of their content tends to be on provisions provided for in the international human rights treaties, starting with the Universal Declaration of Human Rights (UDHR),3 which contains dominant normative features of fundamental rights, followed by the International Covenant on Economic, Social and Cultural Rights (ICESCR).4 The definition of socio-economic rights does not, however, stand alone. They are often placed in juxtaposition with civil and political rights, which in turn are revealed in the International Covenant on Civil and Political 2 Henry J. Steiner, Philip Alston, International Human Rights in Context. Law, Politics, Morals, Oxford University Press, 2000, p.242-245. 3 Universal Declaration of Human Rights, adopted and proclaimed 10 December 1948, G.A. Res.217 A (III). 4 International Covenant on Economic, Social and Cultural Rights, adopted 16...

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