SOCIAL RIGHTS IN EUROPE IN AN AGE OF AUSTERITY

Stefano Civitarese Matteucci, Simon Halliday

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351791427
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This collection of essays examines the promise and limits of social rights in Europe in a time of austerity. Presenting in the first instance five national case studies, representing the biggest European economies (UK, France, Germany, Italy and Spain), it offers an account of recent reforms to social welfare and the attempts to resist them through litigation. The case studies are then used as a foundation for theory-building about social rights. This second group of chapters develops theory along two complementary lines: first, they explore the dynamics between social rights, public law, poverty and welfare in times of economic crisis; second, they consider the particular significance of the European context for articulations of, and struggles over, social rights. Employing a range and depth of expertise across Europe, the book constitutes a timely and highly significant contribution to socio-legal scholarship about the character and resilience of social rights in our national and regional constitutional settings.

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Part I
Introduction

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Chapter 1
Social rights, the Welfare State and European austerity

Stefano Civitarese Matteucci and Simon Halliday*

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I. Introduction

Social rights have become a major focus for public law scholars in recent years. Such attention is important, albeit, perhaps, a little belated. Following the inclusion of social rights in the Universal Declaration of Human Rights (UDHR) in 1948, the world witnessed a significant rise in their inclusion in domestic constitutions.¹ But it was not really until the jurisprudence of the new Constitutional Court of South Africa at the turn of the century that the widespread interest of constitutional lawyers in social rights was achieved. Since then, however, there has been an exponential rise in this scholarship.²

Much of this work has focused on the developing world and emerging democracies,³ inspired by the thought that social rights in domestic legal form may prove to be transformational. Perhaps, it is thought, social rights can offer a voice to the poor in the face of neglect.⁴ Maybe, it is hoped, they will catalyse the reform of welfare policies that sustain gross material inequalities.⁵ Thus case studies have emerged from a wide array of countries,⁶ including: Angola,⁷ Argentina,⁸ Bolivia,⁹ Brazil,¹⁰ Colombia,¹¹ India,¹² Indonesia,¹³ Malawi,¹⁴ Nigeria¹⁵ and, most of all, South Africa.¹⁶

From this initial focus on the developing world, however, an interest in the role of social rights in the constitutions of developed nations too has now emerged,¹⁷ not least because the global economic crisis of 2008 impacted on a broad range of economies, directly threatening a roll back of social welfare provision.¹⁸ Might social rights, then, in addition to carrying hopes of transformation in the global south, prove ‘fit for purpose’¹⁹ in offering protection for existing provision in the global north?

It is in this latter vein that this collection of essays was conceived. The core of the book comprises case studies of five ‘old’ European states: France, Germany, Italy, Spain and the UK. Each study examines welfare policy reform in the ‘age of austerity’,²⁰ as it has been called, focusing particularly on the period around the global financial crisis of 2008. The studies then explore and assess the attempts to use public law rights to counter these austerity reforms. Additional contributors reflect on the case studies from a range of perspectives in order to develop theory and to deepen our understanding of social rights.

Our focus on ‘old’ Europe, then, offers something of a contrast to the original thrust of the social rights literature and an interesting comparator for social rights research. The selection of the case studies additionally produces an element of variation within Europe. It does so in three main respects: legal traditions in relation to social rights, social welfare traditions and the impact of the great financial crisis on the national economies. As regards legal traditions, our five main case studies are spread across what have been described as three ‘models’ of constitutional incorporation of social rights within Europe:²¹ the ‘liberal’ (the UK), the ‘southern European’ (Italy and Spain) and the ‘moderate’ (Germany and France). As regards Welfare State regimes, our five countries fall into three of the four Welfare State regimes²² of developed nations that are commonly depicted in the social policy literature: the liberal (the UK), the corporatist (France and Germany) and the southern European (Italy and Spain). Finally, as regards the impact of the global financial crisis on national economies, our five case study countries, as Adler and Terum’s chapter in this volume (Chapter 7) demonstrates, have had different experiences. The challenges experienced by Spain and Italy, not least by way of the prerequisites of international financial assistance, may be contrasted with the comparatively less burdensome experiences of France, the UK and, most of all, Germany.

In this introductory chapter, we offer an overview of the main themes and concerns of the social rights literature to date. Having done so, we then point to what we believe are gaps and vulnerabilities in the existing research agenda, especially in relation to industrialised nations such as our European case studies. In particular, we argue that the study of social rights will benefit from an approach that contextualises them within the wider study of public law’s relation to welfare. Equally, we argue that it is important to acknowledge that constitutional social rights are just one aspect of the wider Welfare State and, accordingly, should be understood and explored against that background. A focus on the Welfare State permits one to contrast the relatively recent attention towards social rights from constitutional law scholars with an older socio-legal tradition of empirically examining the front-line operations of the Welfare State. Our suggestion is that the study of social rights needs both. We conclude our introduction with a summary of the chapters that follow in the remainder of this volume.

II. Legal research on social rights

Constitutional law research on social rights has quickly become rich and eclectic, often drawing on comparative enquiry. Nonetheless, despite its variety, the literature, we suggest, ultimately revolves around five basic research questions, albeit ones that connect to one another and overlap:

• How do social rights come to be included in constitutional settlements?

• What does the concept of a social right entail?

• How do courts adjudicate social rights?

• How should courts adjudicate social rights?

• How effective are social rights?

A. Social rights and constitutional settlements

This research theme focuses on the reception of social rights into constitutions (and sometimes their failure to be received),²³ asking why and how they have attained their status as fundamental rights. Although such work is, by definition, historical, the specificity of the historical enquiry varies. Some have adopted a case study approach, focusing on one or two countries.²⁴ Others have taken a broader sweep, focusing on regions rather than countries.²⁵ More ambitiously, a general theory has been proffered about the rise, on a global scale, of domestic constitutionalism, including social rights. Law and Versteeg have posited that such constitutionalism is somewhat parasitic on the growth of human rights instruments in the international arena.²⁶

As we can see, Law and Versteeg approached the question at a macro level. However, the more focused, micro-level research (in relative terms) has perhaps been more illuminating, touching on issues of motivation and ambition, revealing the social and political realities of constitutional settlements. We can observe that while for some constitutional actors, the inclusion of social rights may represent a transformational political agenda, for others it may reflect ambitions that are far more conservative – much more profane than the notion of fundamental rights as ‘values for a godless age’.²⁷ The articulation of social rights is often the result of constitutional bargaining between parties who approach the task with competing visions of the good society and how to achieve it. Social rights, then, may carry hopes of preventing something deemed more radically progressive: a buffer, for example, against socialism, as was the case in Ireland in the early 20^th century,²⁸ and in Germany in the late 19^th century, as Lembke’s case study (Chapter 3) in this volume reminds us. Equally, they may be a kind of trade for the purpose of preserving property rights protection, an ‘insurance swap’ as Dixon and Ginsburg²⁹ have framed it. As we shall see below, this complicates, to some extent, the question of the effectiveness of social rights.

B. The concept of a social right

The starting point for this second research theme is the historical observation that social rights have come to prominence at a later stage of modernity than civil and political rights.³⁰ The theoretical enquiry, as Ferraro’s chapter in this volume reminds us, is about whether a distinction between so-called ‘first’ and ‘second’ generation rights is meaningful at a conceptual level, too. Given the normative status of civil and political rights in common understandings of the good society, the claim that social rights are conceptually indistinct from civil and political rights, or that they complement one another,³¹ would be a powerful one.

The view that there is no real conceptual difference between civil/political rights and social rights has now become a kind of orthodoxy in the legal social rights literature (although not, as Ferraro stresses, within the wider debates of political philosophy). Suggestions that civil and political rights require governments to refrain from action, whereas social rights require them to undertake action – a contrast between negative and positive obligations – have been countered by the observation that the enjoyment of civil and political rights is secured by a...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of contributors
• Acknowledgements
• Table of cases
• Part I Introduction
• Part II European case studies
• Part III Theoretical discussions
• Index