The Present Limits and Future Potential of European Social Constitutionalism

Abstract

Introduction: Broadening the Conversation Within Anglo-American constitutionalist thought, 1 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. 2 The development of socioeconomic rights review in states of the Global South such as South Africa, Colombia, India and Brazil challenges 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 Hirschl has argued, comparative scholarship needs to be careful about restricting its focus to a few favoured national case studies. 3 There exists an alternative strand of social constitutionalism in continental Europe, which is barely mentioned in much of the academic literature  Professor of Constitutional and Human Rights Law, UCL; former member of the European Committee on Social Rights 2006-2016. All views expressed here are personal to the author. 1 The term 'Anglo-American constitutionalism' is used here to refer to the manner in which legal and political actors in North America, the UK, and Australasia discuss, debate, and describe the purpose and functioning of their constitutional systems. These jurisdictions share a common legal and political tradition, and their constitutional traditions have similar intellectual roots. 2 This is not to suggest that Anglo-American constitutional thought and practice adopts a uniform approach in this regard: see by way of contrast how a number of US state constitutions protect a range of social rights (see J. King, 'Two ironies about American exceptionalism over social rights' (2014) 12(3) Int J Const 572-602), and the manner in which UK administrative and human rights law extends a degree of indirect protection to such rights (C.O'Cinneide, 'Legal accountability and social justice', in P. Leyland and N. Bamforth (eds.) Accountability in Public Law (Oxford: OUP, 2013), 389-409). But, in general, Anglo-American constitutionalism adheres to the skeptical stance vis-à-vis the legal protection of social rights as set out above: