Affirming social rights: balancing in the constitutional courts of Germany, Italy and Portugal

This thesis reviews the acrobatic trajectories of social rights theory, expanding on two core assumptions: (i) the common law jurisdictions’ fetishism, largely along the lines of transformative and/or post-colonial constitutionalism, is liable to miss the historical trajectories underlying the question sociale and to favour a haves-versus-have-nots type of narrative that under-represents the integrative premises of social constitutionalism; and (ii) to this day, the best account of the intricacies and ramifications of social rights theory shall be found in Jeff King’s Judging Social Rights. Drawing from the vicious under-representation of the continental European experience with the theoretical complexities inherent in the judicial cognisance of socio-economic rights, I revisit constitutional theory by reference to the specific issue of the interpretative positioning of constitutional courts vis-à-vis the state action problem. To this end, I rely on a tripartite comparative inquiry into the constitutional orders of Italy, Germany and Portugal to test judicial incrementalism as a descriptively and normatively accurate heuristic for social rights adjudication for the considered case studies. In Chapter Three, I finally proceed to contrast judicial incrementalism’s reticence on the intensity of the judicial engagement with constitutional values and principles with the judicial treatment of the question sociale before the constitutional courts of Italy, Germany and Portugal. The inquiry exhibits two distinct models, that I conceptualise as fundamental rights essentialism and dignitarian existentialism and which, in turn, correspond to different gradations of the judicial rejection of the value-neutrality of the state and to universalist leniencies in the reconciliation of liberal and social constitutionalism.