Explaining the Constitutionalisation of Social Rights: Portuguese Hypotheses and a Crossnational Test

Abstract

The most enduring originality of the Portuguese Constitution promulgated in 1976 was the extent to which it recognized and entrenched social welfare rights. The constitutionalisation of these rights has been mostly discussed in terms of its consequences, both in normative and (less often) empirical terms. In this paper, we shift attention to the causes of such constitutionalisation. We argue that the extreme lengths to which constitution-makers went in entrenching social rights in Portugal results from a combination of factors: the nature of the Portuguese regime change in 1974-76 and its consequences in the balance of powers between political and societal actors; the legal traditions and values prevalent in Portuguese society; the legacy of Social Catholicism; and the prevalent Zeitgeist. In the first part of the paper, we analyze the Portuguese case from these different points of view. In the second part of the paper, we test the resulting hypotheses, resorting to a data set on the constitutionalisation of social rights in the current constitutions of the world.

Keywords: social rights, constitutionalism, institutional design