The Constitutionalization of Social Rights in Italy, Germany, and Portugal: Legislative Discretion, Minimal Guarantees, and Distributive Integration

Abstract

In an international social rights debate disproportionately focused on English-speaking countries, redundant emphasis has been placed on justiciability. While constitutionalization does challenge stable relations between powers, especially in the post-colonial and developing world, solid insights for a workable interpretative method can be derived from continental Europe, where the difficulties typically associated with justiciability have long been settled. The constitutions of Italy, Germany, and Portugal take socioeconomic democracy seriously, tempering socialist claims and refuting libertarian stances, and have managed to spur a legitimate judicial increment of substantive equality. Through a threefold comparison, this paper describes the peculiarities of these fundamental texts across the spectrum of possible constitutional design choices, and draws from comparative constitutional caselaw to highlight a cross-national convergence on a set of interpretative standards. These blend together a strong safeguard of legislative discretion with justiciable minimal guarantees, and a value-assertive orientation of balancing coextensive with the integrationist function of constitutionalized social and economic rights.

A. Introduction

Nestled between past derisions and future prominence, social rights continue to represent a key focus in comparative constitutional theory. As many failures of the neoliberal state become evident, the future success of constitutionalism will heavily depend on the political framing of healthcare, dwelling adequacy, and environmental sustainability in the Anthropocene. ¹ Many of the challenges arisen from the 2008 financial crisis have resurfaced amid the Covid-19 pandemic and the growing awareness of ecological issues, strengthening an already existing critique of a heavily privatized, financialized, and polluted world. Whether and how constitutionalized socioeconomic rights can represent suitable strategies to address extant disparities remains highly disputed, though, at the very minimum, a consensus exists on the inherently progressive and politically contingent nature of these entitlements.

To this day, the international discourse – surfaced towards the end of the past millennium – has disproportionately focused on the enforceability of socioeconomic rights in the sphere of English-speaking countries, paying little attention to other national frameworks. Much of the debate has revolved around South Africa ² and other postcolonial settings arising from past deprivation and legalized inequality. Indeed, new democracies tend to be presented with a distressing dilemma of waiting for reliable welfare institutions to consolidate or fast-track socioeconomic inclusion through rights revolutions, ³ with the latter option usually entailing a stronger reliance on the judiciary vis-à-vis substantive equality goals. ⁴ In continental Europe, the discourse on socioeconomic rights has much older roots, and while existential questions on justiciability have long lost traction, constitutional scholarship has focused on the interpretative standards that govern the judicial review of social and economic legislation. ⁵ The constitutional courts of Italy, Portugal, and Germany all share a complex approach to the adjudication of social rights as a composite interaction between legislative discretion, minimal guarantees, and balancing, whereby fundamental principles guide hermeneutics toward further political, economic, and social integration.

There remain various convincing reasons why social rights belong in a constitution, the most important being the overcoming of liberal constitutionalism – and an atomized view of the individual – through a stronger textual adherence to the sociological unfolding of rights and liberties. ⁶ Moreover, the hurdles associated with justiciability can be softened by rebutting an inflexible “abdication or usurpation” ⁷ dilemma and redirecting their focus on constructing agreeable trade-offs between political unaccountability and democratic legitimacy concerns. ⁸ Many national constitutions, especially recent ones, are vocal about promoting socioeconomic equality, and there is no reason why such stances should be deprived of a normative bearing. Within a wider institutional apparatus, adjudication can incrementally contribute to distributive fairness by rejecting an inflexible adherence to the separation of powers as unrealistic and by cautiously sustaining legislative and policy efforts to align with enshrined social and economic constitutional goals.

Against the backdrop of the enduring centrality of social rights in modern comparative constitutionalism, this paper describes the case of the Italian Constitution, relatively unknown to the English-speaking forum, ⁹ by comparison with the experiences of Germany and Portugal, which are instructive on both the variety of constitutional design vis-à-vis socioeconomic democracy as well as on the hermeneutical convergence on common principles. Drawing from an established typology in comparative constitutional studies, I treat these examples as “prototypical cases” showing a considerable generalization potential due to characteristics that are (i) sufficiently broad in the range of the available theoretical models of social rights constitutionalization; and (ii) fundamentally akin to the possible characteristics that may be found outside the class of analyzed case studies. ¹⁰ The Italian Constitution is treated separately from the fundamental texts of Portugal and Germany, whose analysis is instead joined together, because of its peculiar design (that is, the differentiated recognition of social rights across a wide spectrum of immediately enforceable and more programmatic obligations) and underlying ideological fabric (constitutional solidarity as a momentous political compromise between catholic and socialist wings), which represents a middle ground between the pronounced liberal focus of the Grundgesetz and the strong material connotation of the 1976 version of the Portuguese Constitution. By contrast, the joint treatment of the Portuguese and German constitutions departs from their original textual and ideological idiosyncrasy to highlight the subsequent convergence on common hermeneutical standards for the social state principle. This initially unforeseeable scenario reinforces the generalization potential of the theoretical takeaway of the comparison. The primary aim of this paper is thus to bridge the two dimensions of the global social rights debate that have thus far remained largely separate, namely the English-speaking scholarly focus on social rights as a transformative means for socioeconomic equality and continental Europe’s more pragmatic discussions on how historically and politically charged principles – e.g., solidarity or the Sozialstaat – should inform the judicial review of economic and social legislation in consonance with the societal function of constitutionalized socioeconomic rights.

B. The Italian Welfare State as the Institutionalization of Constitutional Solidarity and Social Rights

Adopted in the aftermath of World War II, the Italian Constitution showcases a profound awareness of the limits of sheer political citizenship when decoupled from active social inclusion. This transpires throughout the text, from the opening “fundamental” principles (Articles 1-12), the many substantive limits constraining classical liberties (for example, the social function of property or “health, the environment, safety, liberty, and human dignity” as counterweights to free economic initiative) and, obviously, from the express recognition of rights of a socioeconomic nature (for example, health under Article 32 or social security under Article 38). However, few textual peculiarities make the Italian Constitution a comparatively anomalous case.

Article 2 has long been considered the social state’s bedrock. It recognizes an open catalog of fundamental rights (diritti inviolabili) in exchange for corresponding constitutional duties (doveri inderogabili), which every individual has to bear as the flip side of political citizenship. By strongly protecting the individual in their free personal development through social relations (principio personalista), ¹¹ the framers sought to overcome liberal constitutionalism and its narrow vision of human beings being seen as purely rational agents, imagining, instead, persons as imperfect beings characterized by an intimate existential tension coextensive with their shared need for relationality and self-expression. ¹² Thus, a serious commitment to democracy could not simply guarantee pluralism (principio pluralista), but also needed to acknowledge mutual interdependency within the community, whereby one’s freedom can only find legitimacy by recognizing the freedom of others. Accordingly, rights are conferred as long as duties towards others are correspondingly accepted ¹³ and their relation is governed by the principle of political, economic, and social solidarity (principio di solidarietà) ¹⁴ – the “cornerstone” of the democratic order ¹⁵ – as the textualization of constitutional rights’ relativism. The mutual recognition of rights in exchange for duties is usually referred to as “horizontal solidarity.” ¹⁶ The Constitution thrives with examples such as the requirement for professional freedom to “contribute to the material or spiritual progress of society” (Article 4), the connotation of the right to health as a “fundamental individual right and an interest of the community” (Article 32), and the recognition of everyone’s duty “to contribute to public expenditure in accordance with it their capability” (Article 53). ¹⁷ In the context of healthcare, for instance, the protection of self-determination will not prevent the state from legitimately prescribing mandatory vaccinations even when these imply a specific health risk, ¹⁸ insofar as political determinations remain within the realm of scientific reasonableness, meaning that the potential harm to the single individual shall be outweighed by the expected benefit for society as a whole (especially for vulnerable groups). ¹⁹

The framers knew that mutual recognition would not suffice and envisaged an institutional complex (“vertical or paternal solidarity,” proceeding from the state to citizens), meant to give teeth to social and economic duties and to guarantee everyone’s shared need for relationality in equal terms, making sure that factual and distributive asymmetries did not foreclose equal participation in the community. ²⁰ Constitutional solidarity, in this sense, joins forces with the principle of substantive equality in Article 3 (enshrining the Republic’s positive commitment to “removing obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country”) as the guarantee of a complex of agencies, rights, and regulations – that is, the welfare state – functional to ensuring everyone’s subsistence and equal opportunities for material, spiritual and cultural development. The State is not expected to force people into artificial equality, but rather to homogeneously ensure social minimums and gradually augment personal opportunities for material, spiritual, cultural, and civil growth. This institutionalized form of solidarity transpires either from provisions (i) outlining clear-cut obligations and thus justiciable socioeconomic rights (for instance, the right to free medical care for the indigent under Article 32, Article 34 on compulsory and free basic education or Article 38 on social assistance to people unable to work); (ii) introducing vaguer social objectives (for example, Article 47.2 on the protection of savings as a means to access housing); ²¹ or (iii) providing for instruments or methods functional to ensuring welfare services (for example, the tax leverage imposed in Article 53).

In sum, the main peculiarity of the Italian constitutional social architecture coincides with a collectivist justification of social rights as inevitable complements to the protection of individual self-reliance and well-being ²² but goes a step further in linking the need for institutional mechanisms for socioeconomic equality to a more realist idea of relational autonomy. ²³ This somewhat precursory feminist justification of social rights is devoid of any moral connotation and is rather entirely centered on the relational nature of human beings,  in a way that bridges the classical Catholic emphasis on personal interdependence with emerging empirical arguments (especially those of cognitive psychology) against the atomized nature of the person, that feminism has acquired in critiquing liberal individualism. ²⁴ These views are all channeled in the Constitution through the principle of constitutional solidarity.

C. The German and Portuguese Social States: Constitutional Asymmetries and Hermeneutical Convergences

The Italian case provides an example of a centrist constitutionalization of social rights because of the compromise between socialists and Christian democrats that sustained the final formulation of Article 2 and the envisaged differentiation between a set of normatively defined and per se enforceable provisions and vaguer standards entailing greater latitude for the legislature. The constitutions of Germany and Portugal present, instead, more radical outlooks.

Mitigating the textual absence of constitutional social rights, ²⁵ Article 20 of the Basic Law describes Germany as a “democratic and social federal state” and outlines the so-called Sozialstaatprinzip. Drawing from Otto von Bismarck’s social policy and Weimar constitutionalism, this principle gives the state a permanent equalization role to reconcile individual freedoms with the sociality of living ²⁶ and, despite the little attention it received in the discussions of the Parliamentary Council, has emerged as one of the cornerstones of German constitutionalism, due to the Federal Constitutional Court’s extensive reliance on it. ²⁷ By contrast, the post-revolutionary Portuguese Constitution of 1976 (approved only three months after the entry into force of the International Covenant on Economic, Social and Cultural Rights) recognizes a broad catalog of socioeconomic rights, materially conceived by the framers (under the oversight of the Conselho da Revolução) as socialist conquests of workers against the bourgeoisie. ²⁸ From the 1980s, however, constitutional revisions would gradually open the socialist state to liberal worldviews, facilitating the establishment of a market economy in alignment with the Maastricht Treaty and reshaping the welfare state through the inclusion of a German-inspired principle of democracia económica, social e cultural in Articles 2, 9, 80 and 81 of the Constitution.

Overall, the designs of the welfare state in the German and Portuguese constitutions could not be more distant from each other. The Sozialstaatprinzip sees in itself a range of different ideological traditions and has generally been described as providing a counterweight to the strong liberal thrust (which Hans Michael Heinig has described as “anti-libertarian and anti-Marxist” ²⁹ ) running through the Basic Law. ³⁰ As a fundamental constitutional principle, the social state is meant to balance the inevitable distortions ensuing from the pronounced emphasis on individual freedom when they are detrimental to the community’s overall welfare and peace. Under the Portuguese Constitution’s original auspices, the state has to take responsibility for hardcore and socialist socioeconomic equalization, whose immediate necessity was considered a logical premise for individual freedom by the framers. ³¹ In some ways, these diametrically opposed constitutional architectures would, over time, come to mean similar things; such interpretative convergence goes a long way toward reinforcing an understanding of constitutional social rights as the balanced mitigation of liberal and socialist claims, combining the assurance of minimal guarantees and a limited integrative judicial check on the exercise of political discretion.

The Federal Constitutional Court has long conceptualized the Basic Law as an objective and hierarchical order of values (objektive Wertordnung), towered by its commitments to human dignity and the social state, in the sense that the framers would have combined a number of principles to establish “a state which is ideologically neutral but not value-neutral.” ³² This conceptualization was weaponized to react to the country’s authoritarian past and approach social change progressively. ³³ Basic rights would comprise non-interference injunctions as well as axiological determinations imposing positive obligations and would thus channel a social democratic connotation of the rule of law (beyond a mere set of individual rights and restrictions on state power), including the state’s duty to ensure a just social order (gerechte Sozialordnung). ³⁴ Reading the “supreme constitutional principle” of human dignity ³⁵ and the principle of equality together with the equalization goals associated with the Sozialstaatprinzip, the Court has reviewed social and economic legislation against a variety of standards, including the negative externalities caused by a disproportionately individualistic exercise of classical liberties and fundamental rights (for instance, property rights and professional freedom) as well as the need for the state to ensure that everyone had a minimally dignified existence through welfare services, expanding horizontally fundamental rights to include social and economic aspects. ³⁶ The most renowned testament to the latter stance is the Hartz IV case, where the Federal Constitutional Court censored the criteria for calculating unemployment benefits because conducive to quantitative determinations that were insufficient to guarantee a minimally dignified existence. ³⁷

By contrast, the Portuguese Constitutional Court has eased the transition from an original commitment to a Marxist state, the so-called decisão socialista, ³⁸ to the subsequent liberal opening of the system from the 1980s – a change urged internally and externally (Portugal entered the European Economic Community in 1986). Even though the revisions did not touch the substance of social rights provisions, ³⁹ the Court would gradually refocus its interpretation on a liberal construction of the newly entrenched principle of democracia económica, social, e cultural (under Articles 9, 80 and 81) by continuous reference to German scholarship as an open mandate for the legislature to reconcile individual rights and freedoms with collective welfare. ⁴⁰ In its basic form, the social principle would (i) prohibit overtly anti-social policies, (ii) govern the organization of state duties and tasks in the area of socioeconomic equality and minimal subsistence, and (iii) safeguard legitimate expectations vis-à-vis already established welfare services. ⁴¹ Over time, the Court would safeguard and expand, whenever possible, the discretion enjoyed by the legislature in the pursuit of the democracia económica, social e cultural, vetting welfare policies in a self-restrained way and striking down legislation only in marginal hypotheses of abnormal constitutional violations, avoiding direct reliance on the socioeconomic rights enumerated in the Constitution and, mostly, justifying its interventions by reference to fundamental principles of equality, proportionality and legal certainty (for instance, in the notorious jurisprudença da crise). With the sole exception of gross legislative omissions (inconstitucionalidade por omissão), ⁴² the entrenched social and economic rights have been mostly demoted to programmatic specifications of the social principle and social minimums guarantees.

D. Constitutional Social Rights amid Rights Revolutions, Legislative Discretion, and Distributive Integration

There is an inherent fascination with how socioeconomic rights issues reflect the political and social challenges that constitutional states face worldwide, because of their tight connection with the distribution of resources and active inclusion within any given polity. This is one of the reasons why the international debate has mostly focused on post-colonial countries rising from systemic injustice and deprivation in the past, contexts where social rights have frequently been associated with transformative potential. ⁴³

With all due respect being paid to the contextual variability of social rights issues and judicial review, surely supportive of the progress that certain progressive or activist courts have managed to attain under dire circumstances, the convergence in Italy, Germany, and Portugal on a set of hermeneutical standards well reflects, at least from a European perspective, the fundamental features of a workable interpretative method for social rights adjudication. Three shared macroscopic features emerge from the comparison, which jointly composes a cautious and incrementalist approach to reviewing socioeconomic rights claims. ⁴⁴

I. Non-Reviewability of Discretional Legislative Determinations Leading to Presumptive Judicial Deference

The first standard coincides with the strong judicial shielding of discretional choices in the design of social legislation. Courts tend to interpret the social state as a binding goal, usually paraphrased as the commitment to making sure that the protection of fundamental rights builds into a durable social equilibrium without, per se, entailing bonds on the specific paths that shall be followed to that end. For instance, the Federal Constitutional Court of Germany interprets the Sozialstaatprinzip as requiring the state to prompt a just social order, leaving open any option to achieve this goal, ⁴⁵ as “only the legislator can accomplish what is essential for the realization” of it. ⁴⁶ This setting has been followed in almost identical terms by the Portuguese Constitutional Court, which reads the democracia económica, social, e cultural in the context of the objectives envisioned under Articles 9, 80, and 81 as entailing a wide margin of legislative discretion (liberdade de conformação legislativa) in policy design. ⁴⁷ For instance, in Decision 330/89, the Court accepted the admissibility of minor charges for certain public health services, arguing that the mandate to establish “a universal and general national health service which […] shall tend to be free of charge” (Article 64) did not prevent the Parliament from balancing the envisaged gratuity with the need to rationalize the use of limited financial resources, insofar as those charges did not pose substantive impediments to the access to services themselves. ⁴⁸ Similarly, the Constitutional Court of Italy has defended the non-reviewability of political determinations (insindacabilità della discrezionalità del legislatore), usually by reference to Article 28 of the law on the establishment of the Court (Law No. 87 of 1953, stating that “any political evaluation and any review of the use of discretion by the Parliament shall be excluded from the constitutionality control of the Court”), alternating inadmissibility pronouncements with decisions where the claim is accepted and then dismissed alongside an explanatory view on the limits of legislative discretion. The legislature’s margin of discretion would extend to “the specific ways and criteria, also quantitative, that shall regulate the matter,” but must comply with the socioeconomic directives expressed in the Constitution; for instance, the proportionality between the quantity/quality of the work undertaken and the treatment in the case of pension treatments under Article 36. ⁴⁹ In a similar vein, the Court interpreted the gratuity of compulsory education in Article 33 as binding the legislator only to the establishment of a schooling system, without on its own extending to textbooks and other ancillary services (for example, public transport), which remain subject to legislative discretional choices. ⁵⁰

Clearly, constitutional design does have an impact on the width of legislative latitude. To this end, the objectives and instruments outlined by the more assertive constitutions of Italy and Portugal provide useful guidance on parliaments’ undertaking, while the German Basic Law does not. Apart from specific requirements, within wider or narrower margins of discretion, the exercise of legislative discretion vis-à-vis socioeconomic equality is not, in principle, reviewable by courts, and judges tend to presumptively defer to political determinations.

II. Minimal Guarantees against Political Determinations: Legislative Omissions, Minimal Welfare Guarantees, and Arbitrariness

Beyond the aprioristic safeguard of legislative discretion, courts enforce minimal counter-limits against political determinations. First, under normatively detailed texts, the constitutional courts of Italy and Portugal have consistently censored gross legislative omissions vis-à-vis provisions casting clear-cut and immediately justiciable obligations on the state, especially in the areas of healthcare and education. In 1984, the Portuguese Constitutional Court struck down a law decree dismantling a major part of the national health system established only three years earlier, reading Article 64 as a “proper constitutional imposition” that left no choice to the legislatures but to establish “a national health service that shall be universal and general.” For the judges, the partial revocation of the public health service resulted in an unconstitutionality by omission. ⁵¹ In the following years and decades, the Court then resorted to this interpretative technique on many other occasions, including the landmark Decision 474/02, where the limitation of unemployment benefits to privately employed individuals, to the exclusion of public employees, was found to contradict the clear wording of Article 63 on the right to social assistance for individuals in situations of involuntary unemployment. ⁵² In a similar vein, the Constitutional Court of Italy had long censored legislative omissions (as per the so-called teoria delle rime obbligate) even when compliance required additional expenditures. ⁵³ In Decision 467 of 2002, for instance, the judges found an unjustifiable legislative omission in the lack of extension of schooling benefits to disabled kids under the age of three while, in Decision 152 of 2020, the limitation of the prospective increase in disability pensions for people older than sixty was voided because openly defying the requirement that “[e]very citizen unable to work and without the necessary means of subsistence is entitled to welfare support” under Article 38. Regarding maternity protection under Article 6(4), the Federal Constitutional Court of Germany has stressed the required existence of legal guarantees, holding that, in any case, “pregnant women and mothers cannot remain without effective labor law protection against dismissal after childbirth.” ⁵⁴ Allegedly, the assessment of public interests may impact the specifics of the treatment assured to maternity but can never curtail the very existence of protective laws. ⁵⁵

Second, courts enforce to a varying degree an essential content of social rights (translating into the guarantee of minimal welfare services or benefits) as a relative quantitative threshold intimately linked with commitments to human dignity and equality, very different from the so-called minimum core approach which defends instead judicial intervention in the determination of absolute standards. ⁵⁶ Courts follow two alternative interpretative tracks, which can be paraphrased as dignitarian existentialism and fundamental rights essentialism. The first approach expands on the close ties between material needs, personal autonomy, and human dignity – which, in Portugal and Germany, ranks as the supreme constitutional value – and the social state principle to defend the constitutional guarantee of a subsistence minimum through welfare services. The idea of an existential minimum would, therefore, allow courts to review the quantitative adequacy of welfare services and benefits from the standpoint of their capacity (as in monetary capacity) to ensure a minimally dignified life, in the sense that the legislature would retain the monopoly over the quantification of benefits while courts would eventually censor their insufficiency when factually decoupled from living costs. Notoriously, the approach has been championed by the German Constitutional Court, ⁵⁷ which has guaranteed the Existenzminimum in various legal areas, clearing, for instance, taxation on personal income that is necessary for a person’s ⁵⁸ and their family’s subsistence, ⁵⁹ identifying deductible expenses, ⁶⁰ and providing quantitative criteria for social assistance and unemployment benefits. ⁶¹

The Constitutional Court of Portugal has also prioritized the dignitarian existentialism track, though under a very different constitutional text. ⁶² Picking up steam from the constitutional revisions, from 1991 the Court has transplanted the right to an existential minimum (direito a um mínimo de sobrevivência condigna) from Germany, ⁶³ estimating, for instance, the assurance of a minimally dignified existence over the creditor’s right to retrieve its money when an income or pension is lower than the nationally guaranteed minimum salary. ⁶⁴ The extended reliance on the supreme principles of human dignity and the social state has thus contributed to the overall rethinking of the constitutional system away from its socialist premises, watering down the prescriptiveness of the social rights provisions ⁶⁵ and centering the Court’s review of social and economic legislation on a vaguer yet historically less contentious endorsement of minimal subsistence guarantees. In Decision 509/02, the Court rebutted the argument that the exclusion of individuals in the 18–24 age bracket from unemployment benefits (rendimento social de inserção) violated the essential content of the right to social security (under Article 63) and struck it down because of its adverse and discriminatory effects on the possibility to live with dignity. Later cases (such as Decisions 88/04 and 67/07) and the crisis jurisprudence would confirm the Court’s ossified unwillingness to rely on the essential content of fundamental social rights and its predilection for dignitarian existentialism. ⁶⁶

The caselaw of the Constitutional Court of Italy signals an opposite interpretative taste for fundamental rights essentialism, especially in the aftermath of the 2001 revision of Article 117 on state-regions relations, whose letter m) attributes to the exclusive competence of the state the quantitative determination of essential welfare services (determinazione dei livelli essenziali delle prestazioni). Long before its clarificatory stances in Decision 282 of 2002, ⁶⁷ the Court relied upon the essential content of constitutional social rights to ensure, inter alia, minimal health, ⁶⁸ education, ⁶⁹ social assistance, ⁷⁰ pensions, ⁷¹ and housing ⁷² services. Human dignity considerations are still central in the case law and some oscillation between the poles of fundamental rights essentialism and dignitarian existentialism exists. However, unlike its Portuguese and German counterparts, the Italian Court has not subscribed to a hierarchical ordering of constitutional values where human dignity would take priority, sticking instead to the understanding that all fundamental rights are subject to proportionality analysis and balancing. ⁷³ Here lies the specificity of fundamental rights essentialism, as a more positivist and relativist view of constitutional rights and values, paired with a strong assertion of the essential content of social rights as a negative “counter limit to legislative discretion […] created by the Court as a more incisive standard than sheer reasonableness review.” ⁷⁴

Third, courts will also strike down social and economic legislation when this transcends the legitimate boundaries of reasonableness into sheer arbitrariness. Though the judicial reliance on this essentially contested concept varies to a relevant degree, arbitrariness is usually found in the presence of severe departures from the text of the constitution, irrational disconnections between the legislative goals and the means designated to that end, ⁷⁵ or when regressive measures are insufficiently motivated or discriminatorily applied. Social regression remains theoretically feasible within reasonable designs and against various negative standards, such as the reproduction of legislative omissions (proibção de recriação de omissoes incostitucionais) ⁷⁶ or full-on anti-social policies. ⁷⁷ Moreover, excessively expansive social measures may also slide into arbitrariness when they harm concurrent constitutional principles or values, such as the need for balanced public finances. ⁷⁸

III. Balancing as Judicial Oversight of Politically Integrative Distributions of Social Benefits and Burdens

The last domain of interpretative convergence coincides with the fundamental orientation towards distributive integration that the reliance on fundamental principles performs in the judicial balancing socioeconomic rights and goals vis-à-vis civil and political rights, when the proportionality of welfare legislation is reviewed. The idea of the integrative function of fundamental texts is a recurring theme in comparative constitutionalism and, in general terms, points to the capacity of constitutions to further a communal spirit and strengthen inclusiveness and participation within a given polity. ⁷⁹ From this angle, social rights adjudication is a particularly useful indicator of the tendencies towards more substantive or formalist styles of legal reasoning, that in turn corresponds to the fundamental distinction between a context-sensitive judicial role and old positivist myths of absolute coherence and legal certainty. Balancing within proportionality analysis usually offers an opportunity for judges to contribute to the legislative alignment with constitutional goals and principles, ⁸⁰ though consistency is a notorious challenge for legal interpretation here. ⁸¹

In this context, the heavy interpretative reliance on thick and versatile interpretative principles such as solidarity, proportional equality, and the Sozialstaatprinzip (in connection with the protection duties inferred from basic rights provisions) corresponds to an assertive approach to the judicial review of legislative distributions of burdens and benefits, in the sense of a cautious orientation towards more equality and political integration. In the crisis jurisprudence, for instance, the reliance on proportional equality enabled the Constitutional Court of Portugal to ensure that the costs and sacrifices required by the debt crisis were fairly distributed across the population. In the decisions affecting the state budgets for 2012 and 2013, the judges struck down austerity measures that disproportionately burdened public employees without asking for corresponding sacrifices from other categories of workers, estimating distributive fairness (and the prohibition of discrimination) over the anticipated cost savings. In Decision 187/13, the Court clarified that “the combined and continuous effects of the sacrifices imposed upon public sector workers, which has no equivalent for the general population with income obtained from other sources, corresponds to a difference of treatment that no longer finds justification in the objective of reducing the public deficit.” ⁸² In sum, the Court engaged in a typical exercise of counter-majoritarianism by contrasting asymmetrically regressive measures and by facilitating a fairer distribution of socioeconomic burdens and benefits (princípio da justa repartição dos encargos públicos). ⁸³

The pandemic case law is also particularly instructive on this point. In Decision 128 of 2021, the Constitutional Court of Italy upheld the government’s renewal of the eviction moratorium (blocco degli sfratti), holding that constitutional solidarity justified reinforced protection during the sanitary emergency of the fundamental right to housing “to the benefit of more vulnerable individuals,” given the harsh consequences of evictions compared to the relatively harmless postponement of the homeowners’ right to retrieve their credits. ⁸⁴ Besides this theoretical justification, the Court struck down the renewal as unreasonable because it prorogated criteria originally meant for the first phase of the pandemic and was no longer justified by epidemiological evidence. The reference to constitutional solidarity was also at the core of the Court’s positive assessment of vaccination mandates for health workers in Decision 14 of 2023. The Court agreed that during a sanitary emergency, the precautionary principle can justify “the recourse to therapies […] that ensure more benefits than risks, given that the risk of adverse events for a single person […] is by far lower than the damage brought to society as a whole, if that medication is not to be utilized,” as the right to sanitary self-determination entails “the person’s duty not to endanger or harm with their behavior someone’s else health […] as a matter of the horizontal solidarity that binds together every member of the community.” The Federal Constitutional Court of Germany reached a similar conclusion one year earlier, expanding on the state’s duties to protect health, life, and professional freedom under Articles 2(2) and 12 of the Basic Law (because “affected persons are de facto confronted with a choice between giving up their occupation or consenting to impairments of their physical integrity”). The Court concluded that the right to self-determination, conceptualized as the requisite lack of adverse consequences stemming from one’s decision, had to stand back in the face of the state’s obligation to “take precautionary measures against health impairments” including “the protection of vulnerable groups from any risk to health and life following from infection” as a matter of the value determination inherent in Article 2. ⁸⁵

A similar rationale also underpinned the Climate Decision in 2021, where the Federal Constitutional Court reviewed Germany’s carbon dioxide emission reduction goals (towards 2030) against a range of duties to protect vis-à-vis the risks posed by climate change (including health, life, and personal freedom under Article 2, property and the protection of future generations under Article 20a.) ⁸⁶ The Court estimated that the unambitious goals established by the disputed federal legislation (Bundes-Klimaschutzgesetzes) in the implementation of the Paris Agreement cast a disproportionate burden on the freedom of future generations because these are likely to suffer more severely from the adverse consequences of an insufficient ecological transition, and will be forced to sustain heavy costs to reconstruct environmental equilibria. Expanding on the intertemporal dimension of fundamental rights protection, the Court drew from the protection of health, life, freedom, and future generations the state’s duty to protect against the greenhouse gas emissions-related reduction burdens, viewed as future limitations on fundamental rights. This hermeneutical solution allowed the Court to affirm the need to mitigate and fairly distribute ecological efforts and freedom opportunities across generations. A similar distributive attentiveness was key to the 2019 Decision on the Mietpreisbremse, a federal rent control scheme, where express reliance on human dignity and the social state structured the Court’s pondering of the need to promote housing affordability and counter gentrification against the freedom to economically exploit property by homeowners. The Court concluded that the risk of socially stratified cities, where dwellers would be geographically distributed according to their market power, was weighty enough to justify rent caps in particularly strained housing markets. ⁸⁷

E. Conclusion

The justiciability of social rights has engendered an intense debate over the past two decades – reinforced by increased centrality in contemporary constitution-making experiences, especially in the developing world and in post-colonial countries – as the chosen tools to address complex and rooted social divides. South Africa has set a prominent example and provided a historical opportunity for global discussions on the desirable features of constitutional design and interpretation vis-à-vis socioeconomic inequality. The outcomes of this debate are crucial for the future of the welfare state and adjacent discussions on environmental constitutionalism, environmental rights, and sustainable development.

Generally speaking, it is now well established that courts worldwide enforce socioeconomic rights, albeit in different terms. These variations are occasioned by a range of legal, historical, social, and institutional factors; for instance, the level of consolidation of the welfare state contributes to the context of constitutional adjudication. The cross-examination of the experiences of the constitutional courts of Italy, Germany, and Portugal with these rights has highlighted a common convergence on a set of interpretative standards under very different fundamental texts. In these countries, the judicial review of social rights tends to coincide with a threefold composition of presumptive judicial deference, minimal guarantees against unreasonable and arbitrary political determinations (including constitutional omissions, the Existenzminimum, and fundamental rights essentialism), and a mild inclination in balancing towards interpretative outcomes that are favorable to more and better integration within the polity, corresponding to a ban on disproportionate distributions of social benefits and burdens, especially during crises. By relying on these hermeneutical canons, courts have consolidated a democratically uncontentious adjudication of social rights that minimally strains its relation with the political process and is coherent with the very premises of constitutionalized socioeconomic rights as banners for more and better equality and integration.