Member of the Venice Commission Professor, University of Helsinki, Finland
Rights, Democracy and Local Self-governance: Social Rights in the Constitution of Finland
Economic, social, and cultural rights, enshrined in a state's constitution, pose difficult problems as to their legal significance and their compatibility with such basic principles of the constitutional state - the democratic Rechtsstaat - as democracy, the separation of powers, and local self-governance. These rights, often termed second-generation constitutional rights, can easily be interpreted as symptoms of an excessive constitutionalisation of the legal order and of a development toward the so-called judicial state. Such a development involves - in a rather paradoxical way - the risk of both a politicisation of adjudication and a juridification of politics: a politicisation of adjudication in the sense that courts take a position on issues of a political nature that should be left to the domain of political decision-making in the Parliament and the government and a juridification of politics in the sense that legislative activities are increasingly seen as a specification and implementation of decisions already made at the constitutional level. If the municipalities are entrusted with the organisation of, for instance, social and health services - as is the case in the Nordic countries - the problems raised by the second-generation basic rights also touch on the relationship between the judiciary and local self-government. I shall try to analyse these general problems through the example provided by the Finnish Constitution. However, I shall start with a brief discussion at the level of constitutional theory and philosophy.
At this level it can be demonstrated that constitutional economic, social, and cultural rights do not stand in any necessary contradiction with the principles of democracy and popular sovereignty and that the realisation of these principles, in fact, requires such rights. The so-called argument from democracy can be raised in relation to constitutional rights in general. The argument proceeds as follows. Provisions on constitutional rights exclude certain decisions on the common life of society from democratic political processes. They restrict the possibilities of the Parliament and the government to regulate and steer societal development according to the demands of the situation and the political aims of the political majority. In addition, there occurs a transfer of power from the Parliament and the government to the judiciary, which is not subject to democratic control and which lacks democratic legitimacy; it is the judiciary that ultimately monitors the observance of constitutional basic-rights provisions. Thus, constitutional rights may also accelerate development toward a judiciary state.
However, it can be argued that democracy and constitutional rights presuppose each other and make each other possible in the first place. This holds for all the various groups of basic rights - that is, for both the rights to liberty that protect private and public autonomy and the economic, social, and cultural rights safeguarding the factual, material conditions for the exercise of the former rights.
There should be no objection to the claim that democracy is not possible without...