Adviser to the Constitutional Review Chamber Supreme Court of Estonia
How to Handle a Double-edged Sword Safely: Protection of the Elements of the Principle of the Social State in the Constitutional Jurisprudence of the Supreme Court of Estonia
Most traditionally, it has been held that guaranteeing a modicum of social protection to those in need would be the exclusive task of the legislator within the political process1. According to this approach, social entitlements were deemed not to belong to a constitution 2 ; and even if some social rights did, in fact, appear in a constitutional text, they would have been considered mere directive principles3.
In contemporary constitutional democracies, however, the tide has turned. Social rights are taken increasingly seriously as legal rights capable of being invoked before domestic 4 or international courts5.
Once social-rights-related claims have entered the realm of judicial decision-making, the courts concerned must make up their minds as to how to handle such claims safely, as implementation of social rights routinely gives rise to a number of complex issues that may lead to questioning the legitimacy of judicial intervention or demonstrate the incompetence of the courts. The most cautious courts could combine various judicial techniques in order to achieve a balance between their obligation to protect fundamental rights of individuals and that of reasonably preserving the balance of powers.
My aim is to present the experience of the Supreme Court of Estonia in dealing with social-rights-related cases, complemented with some comparative remarks about other jurisdictions that have dealt with social rights cases, mainly South Africa and Germany . In this article, I analyse how the interpretations (that is, techniques of interpretation) and the standards of review that can be found in the case law of the Supreme Court of Estonia and other constitutional courts relate to the elements of the principle of the social state that underlies the concept of fundamental social rights. In doing this, I hope to demonstrate that the nature of the principle of the social state is twofold: it is both a guiding interpretative principle and a substantive structural principle of constitutional law, including a set of intertwined systemic elements. In addition, as a reply to a recent opinion that solving social rights cases depends on the way in which a particular decision-maker views the relationship between social rights and various civil and political rights 6 , I will show that the way courts handle social-rights-related cases depends on their understanding of the social state principle as a general principle of constitutional law in the particular historical, social, and economic context in which the court finds itself.
For the sake of clarity, the article is divided into four parts. Firstly, I will describe in broad terms how the principle of the social state has been understood in the theory so far and how it appears on the constitutional level. In doing so, I will present my understanding of the elements of the social state principle. The second, third, and fourth part of this article will be devoted to analysis of the judicial dynamics in cases addressing the various elements of the principle of the social state.
The essence of the principle of the social state is that the state - or, more broadly, the public power as a whole - has to take care of its people. The questions that immediately follow are why, how, and to what extent. In addition a question arises as to who is responsible for its implementation.
Answers to the 'why' question can mostly be grouped into dignity-, justice-, and solidarity-based arguments, if one presumes that the justice-grounded arguments encompass equality.
Thus, for example, Günther Dürig has emphasised that human dignity would be violated if a human being were to be forced to exist economically in living conditions that would degrade him to the level of an object7. This is an argument in true Kantian spirit. I would also like to refer to the writings of Sandra Liebenberg 8 , who thinks, combining her own thoughts with the capabilities approach of Martha Nussbaum, that human dignity requires that there be at least certain basic material conditions in place, enabling people to develop and exercise their capabilities9. More specifically, she adds, respect should be shown for human potential and agency by creating an environment of basic liberties and material support that enables them to flourish10. Similarly, a number of eminent German constitutional lawyers 11 emphasise that the aim of application of the social state principle is to create social and economic conditions in which individuals can exercise their fundamental rights12.
In my opinion, the last two dignity-based arguments for the protection of the social state principle resemble each other significantly, differing at most in their details. Most importantly, they highlight the necessity to respect the private autonomy of the recipient of state assistance. This means that the individual's perception of a good life and life plans should not be interfered with. In addition, creating the social and economic prerequisites for enjoyment of fundamental rights advances also the public autonomy of the individual to participate meaningfully in the life of the society and therefore indirectly also the principle of democracy. The minimalist approach of Günther Dürig seems to require only fulfilment of basic economic needs and would thus not take into account other necessities (capabilities) that human beings in want might have.
The social aspect of human dignity is elucidated by Peter Häberle, according to whom the concept of human dignity includes an element of mutual respect and concern that he calls solidarity13. Uwe Volkmann goes even further and argues that human dignity entails a mutual obligation to guarantee - partially individually, partially collectively - care for the well-being of others14.
If the public authorities are supposed to care for individuals, they have to do it justly15.
The difference principle, the Rawlsian second principle of justice, requires that "social and economic inequalities are to be arranged so that they are both: a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and b) attached to offices and positions open to all under conditions of fair equality of opportunity"16. He also contends that "fair, as opposed to formal[,] equality of opportunity requires that the government, in addition to maintaining the usual kinds of overhead social capital, tries to ensure equal chances of education, and culture through subsidised or public schooling, tries to ensure equality of opportunity in economic activities by policing the conduct of firms, and preventing monopolies, and generally guarantees a social minimum income"17. It must be noted that this conception of justice goes further than the traditional Aristotelian understanding of justice in that it allows affirmative action to remedy social injustices. On the other hand, Rawls seems to be very cautious in his approach, as government only has to try to achieve the substantive requirements he proposes. This weakens his difference principle considerably.
The argument of justice, proposed by Hans F. Zacher, is much firmer. Thus, in a social state, the principle of social justice is to be incorporated into the legal order as a fundamental value, in order to promote substantial, material equality18. On the other hand, it is not clear whether implementation of this notion of justice requires assistance by the state or is satisfied with just distribution of state assistance, if it should be decided for any reason that the state has to provide it.
In this regard, the collective responsibility to correct market outcomes in terms of (social) justice, by conferring on all citizens a right to those resources that may not be secured for each person in a fair and predictable manner by the market, underlined by Raymond Plant 19 , is a much more dynamic conception of justice. Even if it is hard to determine in individual cases what kinds of resources a fair market would have provided to the persons concerned, this argument brings to the foreground that the principle of the social state functions always as a corrective mechanism to the invisible hand of the market economy.
The most down-to-earth equality-based theory is the social citizenship theory of T. H. Marshall. In his opinion, there is a kind of basic human equality associated with full membership of a community - i.e., citizenship - that is not inconsistent with the inequalities that distinguish the various economic levels in a society20. Thus his theory is not supposed to include a transformative notion of justice. This understanding seems to be in conflict with his description of social citizenship, which is supposed to contain "the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in the society"21.
It appears that some commentators from outside Continental Europe prefer to refer to the principle of the social state as social democratic...