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

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.