Social Justice in European Constitutional Courts | Jasna Omejec

The South African Constitutional Court has developed a distinctive approach to adjudicating economic and social rights under its 1996 Constitution, rejecting the minimum core obligation approach adopted by the UN Committee on Economic, Social and Cultural Rights and instead emphasizing the reasonableness of state measures in achieving progressive realization. This approach has been criticized for maintaining socioeconomic rights in a 'second-class' status compared to civil and political rights, as it requires applicants to prove that government programs are unreasonable—a difficult burden given limited state resources and capacity. The Court has also been reluctant to recognize constitutional damages for socioeconomic rights violations, further limiting remedies for affected communities. However, some scholars argue that the Court should develop more concrete standards for what constitutes adequate housing, healthcare, and other socioeconomic rights, drawing on comparative experiences like Colombia's tutela system, to ensure these rights are not merely 'paper promises' but meaningful entitlements that can be enforced against the state.

This lecture examines how constitutions can protect economic, social, and cultural rights, comparing Ireland's approach where such rights are referenced in Article 45 but declared non-justiciable (except for specific education provisions), with South Africa's approach where socioeconomic rights are fully justiciable and courts apply a reasonableness standard to assess whether the government is taking adequate measures for progressive realization; the analysis reveals that while Ireland's courts have developed mechanisms like damages and declarations to enforce certain rights, they face significant limitations in granting mandatory orders due to separation of powers concerns, whereas South Africa's courts focus on evaluating governmental action rather than individual entitlements, requiring proof of unreasonableness before issuing remedies.

The South African Bill of Rights contains rights supplementary to those in the European Convention, including a strong equality clause with affirmative action provisions, labor rights (trade unions, collective bargaining, right to strike), environmental rights, and cultural, religious, and linguistic rights. The Constitution protects economic and social rights including housing, healthcare, food, water, and social security through dual obligations: negative obligations prohibiting arbitrary interference and positive obligations requiring progressive realization through reasonable legislative measures within available resources. Case law demonstrates courts applying reasonableness tests to balance individual needs against systemic resource constraints, intervening only when government action threatens to entrench inequality or fails to meet minimum core standards for rights protection.

Social and economic rights have historically been subordinated to civil and political rights in international law, receiving weaker wording ('progressively realized subject to available resources') and lacking individual complaint mechanisms, but courts across different jurisdictions—including the European Court of Human Rights, South Africa, India, and Canada—have increasingly recognized these rights as justiciable, demonstrating that socioeconomic rights can be effectively enforced through judicial intervention when given proper legal standing.

The judicialization of economic and social rights was long anticipated and stated as a clear agenda in General Comment 3. South African case law became exciting and taught by law professors worldwide, creating a cottage industry around judicial agency. However, the verdict has been more depressing than hoped. In Grootboom, the applicant didn't get the house she had a right under the South African Constitution. In Latin America, claiming social rights in court usually presupposes liberty and anti-retrogression norms, meaning those who claim economic and social rights tend to be well-off pensioners arguing pensions should remain sacrosanct when governments want to shift priorities, while the worst off have generally not been helped. There is a reason why when social rights were consecrated in the 1940s, there was no move to judicial agency until our time when judges were treated as romantic agents of redemption—which is historically surprising.

The debate over judicial activism versus restraint is not a new phenomenon but has evolved over approximately 150 years, with libertarian legal thinkers arguing that courts should actively protect individual rights against government overreach rather than deferring to legislative majorities; this approach gained momentum through academic work, legal activism, and organizations like the Federalist Society, which helped shift the Supreme Court toward a more libertarian interpretation of the Constitution, particularly regarding economic rights and federalism.

This section covers the distinction between judicial restraint and judicial activism. Judicial activism is the philosophy that justifies that justices should use their position to promote desirable social outcomes from their rulings. Courts defined as activist courts have a large docket and handle landmark judgments. The Warren Court is perhaps one of the most activist courts in modern political history, handling down many landmark judgments including an end to segregation in schools, rights to legal counsel, right to marital privacy, and protection of legal rights. The term 'judicial activism' originated with historian and theorist Arthur Schlesinger in 1947. Following Reagan's election, conservative goals shifted from defense to offense, requiring overturning precedents and established doctrines. Figures like Richard Epstein, Randy Barnett, and Michael Carvin made explicit calls for judicial activism and were influential in the acceptance of a new originalism. The Federalist Society was central to the development of a fully matured conservative doctrine that could challenge legal liberalism and provide a conservative understanding of law.

There is an ongoing debate in Indian constitutional discourse about whether to follow judicial activism or judicial restraint. Proponents of judicial activism argue it is necessary when other branches fail to protect citizens' rights. Proponents of judicial restraint argue that courts should stay within their constitutional limits and not perform functions assigned to other branches. This debate is particularly relevant in the context of current political and social issues in India.

Judicial restraint is the principle that courts should not decide cases not before them and should limit their rulings to the specific issues presented. Judicial activism involves courts reaching beyond the case at hand to make broader policy decisions. The Mississippi case presented only whether a 15-week limitation was constitutional, but the Court reached out to decide Roe and Casey, which was characterized as judicial activism.

Judicial restraint is the belief that the Supreme Court should rely on precedent and advocates less court involvement in legislation. Judicial activism is the belief that the Supreme Court can correct injustices where legislation has not, such as Brown v. Board of Education desegregating schools.

This video presents Marco Antonio Simonelli's 2024 Springer publication analyzing the relationship between the European Court of Human Rights (ECtHR) and constitutional courts across the Council of Europe, based on empirical research examining approximately 3,000 judgments from 25 different constitutional jurisdictions; the study reveals that since the landmark Ruiz Matos v Spain judgment in 1993, the ECtHR has been rationalizing constitutional justice by establishing European-wide standards, with constitutional courts granting individual access mechanisms facing more intense scrutiny under Article 6 ECHR, while those excluding individual access (like Italy, Belgium, and Romania) remain relatively immune to Strasbourg oversight, and the ECtHR maintains an authoritative posture as primus inter pares rather than recognizing a subsidiary role to constitutional courts.

The European Social Charter, despite being traditionally considered non-justiciable, has gained increasing judicial enforcement at the national level through domestic courts applying its provisions, particularly following the 2008 financial crisis; this judicial application varies across jurisdictions based on domestic legal structures, constitutional frameworks, and the direct effect doctrine, with lower courts generally being more receptive than higher courts, thereby providing an important mechanism for protecting economic and social rights even where they are merely enshrined as principles in constitutions.

If the EU accedes to the European Convention on Human Rights, the relationship between the Court of Justice and the Strasbourg Court will become normal between contracting states. The Court of Justice will interpret fundamental rights in interaction with national constitutional courts, leaving room for national courts to take cognizance of Strasbourg case law. The Strasbourg system remains subsidiary to national systems, and the Court of Justice would have priority in interpreting EU law compatibility with the Charter.

In European law, the EU Charter applies to EU acts and offers the same or higher protection than the ECHR, while national constitutions may offer more protection than both but cannot contradict EU law; the ECHR does not apply to EU acts, and national constitutions must not frustrate EU functioning, as demonstrated by the Melonie case where Spain's constitutional protection against conviction in absentia was overridden to comply with EU extradition requirements.

EU accession to the ECHR further disrupts the Court's uniform judicial construction by introducing a new legal basis. However, this does not expand protected rights since the Court already applied ECHR as an important international treaty. The ECHR rights constitute a minimum protection threshold when applying the Charter. The main consequence is that EU accession introduces a final judicial recourse before the European Court of Human Rights, meaning the Court of Justice will no longer be the ultimate guarantor of fundamental rights. The Court has recognized that the Charter enjoys primacy over national constitutions, as stated in the Meloni judgment regarding the Spanish Constitution, establishing that the Charter takes precedence over national constitutional provisions when conflicts arise.