Social Rights Trapped in Enduring Misconceptions of the Social State

Abstract

This paper focuses on the highly controversial constitutional debate on social rights design and the social state. With a comparative constitutional law approach, I identify seven misunderstandings and stereotypes of the social state worth being unravelled: social state is a synonym for welfare state; social rights are socialist; social rights are less important than liberty rights; social rights are costly and liberty rights are free; social retrogression is constitutionally forbidden; there are no social rights in times of crisis; social rights enforcement relies on activist courts. I will then conclude that social rights are not exclusive of a specific political spectrum. As social rights’ DNA lies in the triad of dignity, liberty and equality, their effective enforcement can (and should) be addressed by all democratic ideologies and political thoughts, regardless of their axiological and epistemological differences.

Keywords: social rights, dignity, liberty, equality, social state, social retrogression, positive/negative rights, costly rights and rights for free, indivisibility, judicial activism