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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 III PROTECTION AND PROMOTION OF SOCIAL AND ECONOMIC RIGHTS. EXCLUSSIVENESS VERSUS INCLUSSIVENESS OF DIFFERENT STATE ACTORS Chapter 6 Inter-Institutional Constitutional Dialogue in Socio-Economic Cases Contrary to prevailing views, the contents of fundamental rights are not defined solely by constitutional courts. It is true that the aspect of constitutional justicia- bility renders significant powers to constitutional courts in this respect. But the very principle of democracy the separation of powers principle establishes a rule of the balance of powers among constitutional organs. It is therefore the three branches- the legislative, the executive and the judiciary- that are responsible for giving an effect to constitutional provisions, those concerning socio-economic rights included. The difficulty in deciding who decides, however remains unre- solved, largely due to the fact that the constitutions do not precisely specify the ultimate power of any of the institutions to give the final interpretation of the constitution. It is often the case that constitutional courts are considered to give the final opinions on the compatibility of laws of a lower rank (like statutes, acts of law) with the constitution. Thus, in a way, the courts judge the performance of the legislature and/or the executive. Yet, it is still up to the legislator to re- verse, modify or void the court’ decisions which invalidates legislation, and therefore, achieve their social or economic policy ends. Consequently, the dual nature of the judicial role in adjudicating on consti- tutional cases proves the complexity of the question under consideration. One common belief is...

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