Normative constitutionalism and social rights guarantees in the constitutional state

Abstract

In modern times, the artificial separation of the general concept of human rights into court-enforceable classic liberal (civil and political) rights and aspirational and programmatic social and economic guarantees excluded from the possibility of (constitutional) judicial protection. Therefore, it is reasonable to claim that social rights are also an expression of normative constitutionalism. Especially if their importance for creation of material prerequisites for realization of individual's dignity and autonomy, as the purpose and goal of the modern constitutional state, is taken into account. At the same time, their connection with budgetary matter, as the prerogative of the bodies of representative democracy, must not be a valid reason for renouncing the possibility of their (constitutional) judicial enforceability, since this would raise the regulation of legal rank (budget) above the value structure of the fundamental document (constitution) that establishes the right to minimum means for leading a dignified life and autonomous development of the human person. Having this in mind, it is still necessary to define the limit to which the constitutional court can go in their protection, without trying to replace the legislator. At the theoretical level, it is impossible to draw a “rigid” line of demarcation between the role of the (constitutional) judiciary and the legislator in the realization of constitutional social guarantees. Therefore, the most suitable solution is to learn from the comparative practice of the Colombian Constitutional Court, whose activist and aggressive approach to the protection of social rights at certain times flirted with the politicization of the Constitutional Court. For this reason, the boundary line of (constitutional) judicial protection of social rights should be sought in the institutional limitations of the constitutional courts, rather than in the attempt to construct artificial limitations of interpreted social rights and principles.