Negative/positive constitutionalism, “fair balance,” and the problem of justiciability

Gerstenberg, Oliver
October 2012
International Journal of Constitutional Law;Oct2012, Vol. 10 Issue 4, p904
Academic Journal
A core objection to the constitutionalization of socioeconomic rights focuses on justiciability: courts, it is said, are poorly situated to enforce highly abstract, open-textured socioeconomic commitments in the context of particular controversies. The aim of this article is to examine—against the specifically European background—the proposition that experimentalist forms of judicial review can go a long way in allaying justiciability-related concerns about the contextualization of social rights and can serve as a creative device for securing an important role for courts even in domains where they work under obvious institutional constraints. Drawing on the example of the emergence of a new understanding of a principle—of equal treatment irrespective of age in the context of private work- and employment-relations—this paper suggests that “strong,” that is, principled, judicial judgment and experimentalist forms of judicial review go hand in hand. Experimentalism thus opens up a conceptual space for the gradual constitutionalization of socioeconomic rights.


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