The constitutional quandary of social rights: Questions in times of the Polish illiberal turn

Abstract

Abstract Scholars have intensely debated the justiciability of constitutional social rights, an essential aspect of transformative constitutionalism in Central and Eastern Europe. This article examines the reasons for displacing social rights in the Polish constitutional discourse and the obstacles in the way of these rights’ gaining normative substance. Polish society came out of socialist authoritarian rule with a strong attachment to social welfare but quickly embraced the neo-liberal economy. However, this attachment was recently recalled by the electoral successes of the social welfare platform of illiberal forces, which prompts questions about the place of social welfare in the constitutional settlement. The article relies on an inquiry into the constitution-making process and the practice of constitutional review during the global financial crisis. It argues that the displacement of social rights has been contingent upon the specific political and intellectual climate of stimulating a free-market economy and crisis-driven austerity, despite minority voices for alternative solutions. It was also due to structural weaknesses of constitutional review, operating in a challenging institutional and political context. This case study raises broader questions about whether and how constitutionalism can gain popular support in times of populist challenges by addressing persisting societal problems.