Social rights in the age of proportionality: Global economic crisis and constitutional litigation

Abstract

Insisting on defining a minimum core content as a prerequisite for the justiciability of social rights is an updated aspiration, which risks the very enforceability of these rights amidst global economic crisis, at the very hour when they are needed the most. Proportionality not only creates the context for litigation, enhancing the justiciability of social rights, but also renders their content concrete by promoting a dialogue between the judge and the lawmaker which enhances their content and upgrades them to a shared narrative with civil and political rights, that of the proportionality idiolect. This paper aims to explore the application of proportionality from the aspect of social rights and also to explore social rights in the light of proportionality review, demonstrating the way in which proportionality allows the construction of the content of social rights on the basis of balancing conflicting interests, primarily by setting a series of ground rules for the lawmaker. © The Author 2012. Oxford University Press and New York University School of Law. All rights reserved.