European Social Constitutionalism

Abstract

Within mainstream Anglo-American constitutionalist thought, social rights are generally assumed to fall outside of the appropriate scope of constitutional regulation: their content and status are viewed as matters best left to be determined by the free flow of political contestation, rather than being governed by the written provisions of the constitutional text and/or judicial interpretation of fundamental rights guarantees. The development of socioeconomic rights review in states such as South Africa, Colombia, India and Brazil has challenged this assumption. As a result, the apparent dichotomy between the ‘old’ Anglo-American orthodoxy and the ‘new’ social constitutionalism emerging in the Global South has come to dominate much of the comparative constitutional literature on social rights. However, as Ran Hirschl has argued, comparative scholarship needs to be careful about restricting its focus to a few favoured national case studies. There exists an alternative strand of social constitutionalism in continental Europe, which is barely mentioned in much of the academic literature on this topic. This ‘European’ strand of social constitutionalism differs in significant ways from the approaches to social rights protection being developed in the Global South. In some ways, it is weaker and more diffuse - at least when it comes to judicial enforcement of social rights. However, it has the potential to acquire greater legal substance. Furthermore, it possesses a latent political/symbolic dimension which still retains a degree of potency. Part I of this paper outlines the development of social constitutionalism in Europe, at both the level of nation states and at the transnational level of the EU and the Council of Europe. Part II then explores how constitutional protection of social rights in Europe remains limited and uncertain in scope, despite the formal commitment of European states to the ‘social state’ principle. Part III analyses how the post-2008 austerity crisis has sharply exposed the normative inchoateness of European social constitutionalism, notwithstanding the gradual expansion in certain jurisdictions of judicial protection of social rights. Part IV examines how this crisis also opens up opportunities for legal protection of social rights to acquire more ‘bite’, with the concept of the ‘social minimum’ perhaps playing more of a role in this regard than in other legal systems. However, the argument is also made that the ultimate value of European social constitutionalism may be symbolic and political in nature, and lies in how it undercuts attempts to foreclose on the aspiration of creating a genuinely ‘social Europe’.