Van-e helyük a gazdasági és szociális jogoknak az alkotmányban?

Abstract

In his writing on economic and social rights, Herman Schwartz attempts to ask the question of do these righes belong in a constitution. The author divided the comperting arguments into practical and philosophical. According to the former ones, the main point is whether economic and social rights are judicially enforceable, the latter ones focus on whether placing economic and social nghts in a constitution 1s consistent in principle with the establishment of a free democratic, market-oriented civil society. In the author’s view, the presence of these rights in a constitution does not mean necessarily thar they can be judicially enforceable. On one hand, there is political enforceability, which judges who claim to espouse judicial restraint routinely invoke. Purting rights into a constitution, according to Schwartz, even if not judicially enforceable, is not an idle gesture. As the second type of the arguments concern, it is hard to believe, emphasizes the author, that the current move toward a free-market economy will be affected in any way by the inclusion of positive rights in the constitution. Regardless of whether the programs implementing such rights are put in place by a statute adopted by a politically created majority or by some governmental action fulfilling a constitutional duty, the governmental interference with the market economy is the same. The fact that the interference results from an entrenched constitutional mandate rather than from the enactment of a possible transient majority does not affect the fact and degree of interference.