Social Rights Constitutionalism: An Antagonistic Endorsement

DOIhttp://doi.org/10.1111/jols.12017
AuthorEmilios Christodoulidis
Date01 March 2017
Published date01 March 2017
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 1, MARCH 2017
ISSN: 0263-323X, pp. 123±49
Social Rights Constitutionalism: An Antagonistic
Endorsement
Emilios Christodoulidis*
The article discusses how we might understand solidarity as the
organizing concept behind the institutionalization of social rights. I
argue that writing solidarity into social rights constitutionalism carries
productive tension into constitutional thinking because it disturbs the
smooth passage from civil to political and finally to social rights.
Marshall's influential argument that social rights are continuous to
civil and political rights has become both the grounding assumption in
constitutional theory and at the same time the most obvious lie in the
constitutional practice of advanced capitalist democracies, clearly
belied in EU constitutional practice under austerity. I explore the
various attempts to accommodate the continuity of civil, political, and
social rights in the face of the contradictory articulation of social
democracy and capitalism before undertaking something of a defence
of the antinomic significance of social rights constitutionalism, and
probing what mileage might be left in `exploiting' the contradiction
between capitalist interests and social rights.
There is in capitalism a debt, and the creditor is the proletariat.
J.-F. Lyotard
1
123
*School of Law, University of Glasgow, 5±9 The Square, Glasgow G12
8QQ, Scotland
Emilios.Christodoulidis@glasgow.ac.uk
With thanks to Fernando Atria, Marija Bartl, Ruth Dukes, Marco Goldoni, Stephanie
Jones, Markos Karavias, Martin Krygier, Pablo Marshall, George Pavlakos, Johan van der
Walt, and Scott Veitch.
1 The original formulation by Lyotard, in the `unpublished introduction to an
unfinished book on the movement of March 22' runs like this: `By calling it labor
force Marx is perhaps only forcing bourgeois political economy to recognise that
there is, in capitalism too, a debt, and that the creditor is the proletariat.' (J.-F.
Lyotard, Political Writings, trans. B. Readings (1993) 64. I have removed the
brackets, and the caveats, and pared it down.)
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
I. PROLEGOMENA TO ANY FUTURE SOCIAL RIGHTS
CONSTITUTIONALISM
1. Social rights in the era of austerity
Lyotard's implicit reference to Marx in the above quote links politics to debt
in a counter-intuitive reversal of the debtor/creditor relationship. It is a
reversal that will be explored as an instance of the antinomic in the last part
of this article. We begin our discussion with a reference to debt and will
close with it, tracing in its suffocating embrace of politics, perhaps
something of an opportunity. But we begin with a prior question. We ask:
what does it mean to raise today ± under conditions of austerity ± the
question of social rights constitutionalism? The usual answer is that it means
little. Under the dominant rationalization, social rights are increasingly less
affordable compensations for the social costs of the integration of markets on
a global scale. Social rights are the more obvious casualties, however
`regrettable', of the seemingly inexorable process of globalization, a result of
the economic freedom afforded to capital to circumvent the national systems
of social protection by relocating to cheaper sites ± whether it be the reality,
or merely the threat, of relocation. Systems of social and labour protection
have thereby been thrown into the vicious circle of competitive alignment,
with the devaluation of labour as the principal adjustment factor. The effects
of the `race to the bottom' on social rights have been devastating. The social
constitution entrusted with the redress of the worse effects of market
integration can only be mobilized at the extreme end of the released social
devastation, as the last refuge for guaranteeing the needs of biological
existence, and remains otherwise toothless in regard of the majority of the
effects of globalization.
Austerity comes to compound the devastation. For those economies that
austerity has locked into the vicious circle of shrinkage, the spectre of
sovereign debt has come to displace social constitutionalism as such. The
transition of the southern European states from `tax states' to `debt states' ±
states, that is, that cover the larger part of their expenditure through
borrowing rather than taxation and have to service that accumulating debt
with an ever increasing share of their revenue
2
± introduces a faultline that
cuts across the constitutional landscape and that only widens under the
momentum of its own operation. The loss of budgetary sovereignty shrinks
the political capacity of the state; state functions are transferred to markets;
and the constitutive coincidence between addressors and addressees of law
making is broken. The problem now is that with states beholden to markets
through sovereign debt, the earlier notion that states can also serve as
addressees of social rights claims ± typically as demands to shelter certain
124
2 For a fuller analysis, see W. Streeck, Buying Time (2014).
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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