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Negative/Positive Constitutionalism, 'Fair Balance,' and the Problem of Justiciability

Gerstenberg, OH (2012) Negative/Positive Constitutionalism, 'Fair Balance,' and the Problem of Justiciability. International Journal of Constitutional Law, 10 (4). 904 - 925. ISSN 1474-2640


A core objection to the constitutionalization of socio-economic rights focuses on justiciability: courts, it is said, are poorly situated to enforce highly abstract, open-textured socio-economic commitments in the context of particular controversies. The aim of this article is to examine—against the specifically European background—the proposition that experimentalist forms of judicial review can go a long way in allaying justiciability-related concerns about the contextualization of social rights and can serve as a creative device for securing an important role for courts even in domains where they work under obvious institutional constraints. Drawing on the example of the emergence of a new understanding of a principle—of equal treatment irrespective of age in the context of private work- and employment-relations—this paper suggests that “strong,” that is, principled, judicial judgment and experimentalist forms of judicial review go hand in hand. Experimentalism thus opens up a conceptual space for the gradual constitutionalization of socioeconomic rights.

Item Type: Article
Institution: The University of Leeds
Depositing User: Symplectic Publications
Date Deposited: 06 Feb 2012 12:00
Last Modified: 12 Nov 2015 10:29
Published Version: http://dx.doi.org/10.1093/icon/mor085
Status: Published
Publisher: Oxford University Press
Identification Number: 10.1093/icon/mor085
URI: http://eprints.whiterose.ac.uk/id/eprint/43694

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