DELEGITIMATION BY CONSTITION? LIBERAL DEMOCRATIC EXPERIMENTALISM AND THE QUESTION OF SOCIO-ECONOMIC RIGHTS

This response to Frank Michelman’s exploration of a weak form of judicial review in the case of socioeconomic rights (See Michelman “Legitimacy, the Social Turn, and Constitutional Review: What Political Liberalism Suggests,” CritQ 3/2015, 183-205) takes its cue from the Laval and Viking series of judgements passed by the Court of Justice of the European Union (CJEU) in 2007 and 2008. The essay describes these judgements as a veritable Lochnerisation of EU law. This Lochnerisation of EU law that became evident in CJEU’s Laval and Viking jurisprudence, continues the argument, casts serious doubts over the wisdom of allowing judiciaries to decide the fate of SER protections. This response to Michelman accordingly attaches much importance to his cautionary footnote regarding the expectations one might have from the judicialisation of SER protections in today’s “neoliberal climates” and basically accepts with resignation that it is not the task of judges to develop the utopian potential that constitutional rights may seem to promise. It argues in this regard for a negative version of the liberal political project that Michelman explores. Instead of a legitimation of SER with reference to substantive constitutional values (with its attendant risks of Lochnerisation), judiciaries should be constrained to de-legitimations (constitutional proscriptions) of actual parliamentary and executive actions that fall foul of constitutional norms with reference to criteria of self-evidence (in cases of gross non-compliance) or compelling empirical evidence presented in court (in cases of less evident non-compliance). These criteria of self-evidence and empirical cogency, continues the argument, used to be well represented in classical (three-prong) proportionality tests, but have fallen by the way side in the exuberant balancing procedures to which many judiciaries have fallen prey in the wake of the horizontal effect revolution of the 20th century. Laval and Viking, concludes the argument, are the results of this development.