Social Rights, Constitutionalism, and the German Social State Principle

• Autor(a) principal: King,Jeff
• Data de Publicação: 2014
• Tipo de documento: Artigo
• Idioma: eng
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://scielo.pt/scielo.php?script=sci_arttext&pid=S2183-184X2014000300003
• topic: Social Rights; Constitutionalism; Sozialstaatprinzip; German Social State Principle

In this article I focus on the constitutional role of the German social state principle and the questions it generates for foreign jurists. Although the German Basic Law contains no set of social rights, the social state principle has invigorated readings of the basic rights constitutional provisions in a manner that invites comparison with, and raises the same competence questions, as the adjudication of social rights. On the other hand, the principle focuses on a general state duty to take responsibility for the 'social ‘social question', and take an active role in the society. Although the German Constitutional Court has found that the Basic Law is neutral as in what regards economic policy, the commitment to the social state principle does not appear neutral or apolitical under in the Anglo-American sense. There are two ways in which the social state principle seems to have had an important impact. Firstly, the German Constitutional Court has developed the principle as a basis for interpreting the Constitution, using it occasionally “in conjunction with” other basic rights provisions to provide affirmative entitlements. Secondly, there is a clear link between the social state principle and the major achievements of the legal protection of social rights in Germany: the Social Code. Finally, I underline the important role of the social state principle in a nation that takes seriously both the welfare state and the rule of law (Rechtstaat), and raise some questions concerning its relevance from the point of view of constitutional comparative law.