NEW HORIZONS OF THE JUSTICIABILITY OF SOCIAL RIGHTS AGAINST THE LEGISLATOR. INDIRECT COACTION

Abstract

The article aims to present legal theoretical arguments in favour of the judicial protection of social rights (the s.c. justiciability) in cases of legislative ‘omissiones totales’ and spending cuts. The first step consists of showing the historicalconceptual reasons as to why legislative violations of these social rights can be only partially controlled by judges. The second step will deal with the most common arguments against the justiciability of social rights and, in particular, on a certain conception of separation of powers, according to which judges’ subjecting to scrutiny social rights would take on legislative powers. Through a deep critique of this conception it will be offered an alternative account of the duties that constitutions impose on legislatures in the field of social rights: accordingly, it will be possible to suggest concrete judicial remedies for the protection of social rights without transforming judges in political organs of collective decisions (legislative-like).