Liberal Communitarian ­Interpretation of Social and Equality Rights: a Balanced Approach?

Author:Katrin Saaremäel-Stoilov
Position:Magister iuris, LL.M., Councillor to the Constitucional Review Chamber, Supreme Court

1. Introduction - 2. Social and equality rights, the principle of the welfare state, and liberal communitarianism - 3. National constitutional jurisprudence - 4. The international level - the UN Committee on Economic, Social and Cultural Rights - 5. The Estonian approach: The way forward? - 6. Another possible direction of convergence: The Five Pensioners Case of the Inter-American Court of Human ... (see full summary)


Katrin Saaremäel-Stoilov

Magister iuris, LL.M., Councillor to the Constitucional Review Chamber, Supreme Court

Liberal Communitarian Interpretation of Social and Equality Rights: a Balanced Approach?

1. Introduction

While it is commonplace for economic, social and cultural rights and equality rights to be the expression of the principle of the welfare state at the national level, not much scholarly interest has been devoted to their interplay and mutual influence. Looked through the prism of constitutional jurisprudence, however, understanding the influence of the principle of the welfare state on the interpretation of the rights might be helpful in explaining some peculiarities of the perception of these rights by individual constitutional tribunals. Furthermore, this part of constitutional jurisprudence can be linked to communitarianism, a theory that, according to Professor Raul Narits 1 and Professor Winfried Brugger, has gained popularity as a theory of interpretation of constitutions2. Whereas Professor Brugger confines his argument to the German Basic Law, Professor Narits notes a broader tendency in this regard3.

I will argue that constitutional tribunals tend to proceed from a liberal communitarian premise in interpreting fundamental social rights enshrined in their respective constitutions. This is why social and equality rights are construed narrowly and balanced with the collective interest. This tendency is more visible in the sphere of social rights jurisprudence, including cases pertaining to the equal enjoyment of social rights, because the communitarian understanding is easily compatible with the principle of the welfare state that underlies the concept of fundamental social rights, based on mutual dependency in achieving the goals of security and well-being for any member of the society.

This approach differs from the atomic and one-dimensional approach adopted by the UN Committee on Economic, Social and Cultural Rights, which does not involve balancing. Whereas the only justification a state could put forward for not progressively guaranteeing social rights fully to its subjects is lack of resources, the principle of equal treatment (non-discrimination) must be realised immediately in full. Thus in the case of the right to enjoy social rights without discrimination, the right is to trump 4 all other considerations of national governments.

What follows is a seeming incompatibility of the national and international social rights approaches, as the traditional communitarian understanding of the principle of the welfare state informs the national constitutional social rights jurisprudence and the same is mostly lacking in the case law of the international tribunals adjudicating cases of social rights5. Some national and international tribunals have tried to overcome this incompatibility. This tendency is illustrated by two cases: the Five Pensioners case 6 of the Inter-American Court of Human Rights and the Social Care Act case 7 of the Constitutional Review Chamber of the Supreme Court of Estonia. I will try to analyse the advantages and disadvantages of both of these cases. Due to space limitations, I will omit the European level and shall therefore not deal with the social rights jurisprudence of the European Court of Justice and the European Committee of Social Rights here.

In this article, I will first explore the relationship of social and equality rights, the principle of the welfare state, and liberal communitarianism. I will then continue by presenting and comparing some national and international approaches to social and equality rights. Finally, I will analyse the two irregular cases mentioned above, the Five Pensioners case and the Social Care Act case.

2. Social and equality rights, the principle of the welfare state, and liberal communitarianism

The principle of the welfare state constitutes one of the principal sources of legitimisation of a secularised nation-state8. Although there is no agreement on the exact content of the principle 9 , its constitutive elements (or sub-principles) are clearly identifiable: (protection of) social rights and principles of equality (universality) and solidarity10.

According to a modern understanding, the principle of the welfare state is most closely related to the principles of human dignity and democracy. As a result, the principle of the welfare state is deemed to serve as a safeguard for the society that its members would be empowered to participate in the society and its common affairs in a dignified manner11. This explains also the emergence of the fourth sub-principle of the principle of the welfare state: the principle of autonomy. According to this principle, the (civil and political) rights of an individual should not be limited due to receipt of state assistance. All of the sub-principles are closely intertwined and permeated by the aim to achieve greater collective well-being by means of co-operation. Whereas social rights embody an entitlement to a modicum of protection against certain social risks (unemployment, want, old age, handicap, sickness) and the principle of equality is supposed to guarantee that no-one would be left out of the scope of protection of these rights without a valid reason, the principle of solidarity presents the other side of the coin: fulfilment of the social rights can occur only if and insofar as members of the given society are willing to contribute to achievement of this goal by means of paying taxes or participating in compulsory insurance schemes on an ongoing basis. Anchoring social and equality rights in a constitution means that the promise of social protection may not be withdrawn at will and that, when the state fails to fulfil its obligations, members of the society in question can seek enforcement of these rights by the courts. On the other hand, social and fiscal policies have to respect the autonomy of the individual and may not result in deprivation of any rights in exchange for provision of some social protection.

In any event, it becomes clear that in the framework of the principle of the welfare state, social rights can be regarded primarily as a tool for achieving collective well-being carrying a concomitant thin 12 and instrumental 13 layer of individual protection with them. Moreover, this thin layer of individual protection can be achieved only by means of an extensive collective effort of building and financing compulsory mutual insurance schemes.

The crucial question in determining the influence of the principle of the welfare state on the interpretation of social rights and the concomitant right to non-discrimination in enjoyment of these rights in concrete cases is thus how to resolve the inherent tension between the interests of the individual and the collectivity (the community, the state).

Christian Wolff, one of the first scholars to address this question, suggested that collective interests should always be given precedence over individual ones14. In a modern society, this 18 th -century approach can hardly be considered acceptable. Modern liberals such as Ronald Dworkin believe that individual rights should always trump collective goals15. It seems difficult to reinterpret a right that is in its essence directed towards achievement of collective good into an individualistic right that does not take into account the collective aims16. Thus, it seems only logical to proceed from the conclusion of the liberal communitarians that individual rights should be balanced against collective goals17. This balancing may, however, not reach the point of depriving the right of any meaning so as to let the collective interest prevail.

The starting point of communitarians is that an individual is part of a community and can maximise human fulfilment through self-determination in the community18. The core thesis of liberal communitarianism is that "a human being's environment consists of several spheres of responsibility, or forms of association, reaching from the single individual and its near horizon (e.g., partner and family) to the far horizon of all human beings"19. Each of these communities has its own understanding of justice and its own standards for distributing advantages and disadvantages20. Some communitarians, like Michael Sandel, find rights "too individualistic, for they focus on their bearers without considering them in a wider social context, and allow them to impose demands on others at the expense of richer, less confrontational relationships"21. Proceeding from a communitarian premise then, the rights and duties of an individual should be determined in accordance with his membership in a given community. According to Sandel, social rights presuppose a strong sense of responsibility towards the needy by other people22. In his opinion, protection of social rights can be achieved only if the members of society feel that they are participating in a society in which all of the members are worthwhile23. Thus, social and equality rights of an individual must be read in a way that would not harm other members of the same community; on a constitutional level, this would mean balancing interests of the individual against the needs of the...

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