Proportionality Analysis in the Adjudication of Positive Constitutional Economic and Social Rights.

This article outlines a model of proportionality analysis for the adjudication of positive constitutional economic and social rights. This model is the key for answering three questions: (i) First, to what extent constitutional courts hold the power to determine the substantive content of positive constitutional economic and social rights when the right- holders claim that their addressees have violated those rights by failing to comply with what they require? (ii) Second, how constitutional courts should ground the determination of that substantive content? (iii) Third, how constitutional courts should choose appropriate remedies when they have established a violation of one of those rights? Three distinctions are the basis of the above-mentioned proportionality model, namely, the differences: (i) between empirical and normative aspects of the adjudication of positive constitutional economic and social rights; (ii) between the level and mode of fulfillment of those rights; and (iii) between the competence of political authorities and courts to determine the appropriate level and mode of satisfaction. Using some elements of Wittgenstein methodology of family resemblance, this article adjusts the structure of proportionality analysis, which courts apply to adjudicate freedoms, and incorporates elements drawn from those three distinctions. The outcome is an analysis suitable for the specificities of the adjudication of positive economic and social rights. [ABSTRACT FROM AUTHOR]