Gerstenberg, OH (2012) Negative/Positive Constitutionalism, 'Fair Balance,' and the Problem of Justiciability. International Journal of Constitutional Law. ISSN 1474-2640 (In Press)
Full text available as:Abstract
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 |
|---|---|
| Academic Units: | The University of Leeds > Faculty of Education, Social Sciences and Law (Leeds) > School of Law (Leeds) |
| Depositing User: | Symplectic Publications |
| Date Deposited: | 06 Feb 2012 12:00 |
| Last Modified: | 08 Feb 2013 17:36 |
| Published Version: | http://icon.oxfordjournals.org/ |
| Status: | In Press |
| Publisher: | Oxford University Press |
| URI: | http://eprints.whiterose.ac.uk/id/eprint/43694 |
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