Abstract
Social rights, such as the right to live with dignity, are included in universal treaties. Nevertheless, many constitutional documents and jurisdictions do not recognize social rights or tend to limit their scope.
The paper discusses this phenomenon in relation to two distinct approaches to constitutionalism—economic negative constitutionalism and positive social constitutionalism. The former tends not to recognize social rights as constitutional rights, while the latter posits that the state is under an obligation to actively recognize their constitutional status and provide wide protection for them. Economic negative constitutionalism could also be characterized as recognizing only a limited scope of social rights and advancing economic liberal freedoms.
This paper focuses on Israel’s jurisprudence as a case study of the interplay between constitutionalism and social rights. The introduction of two Basic Laws regarding human rights and the constitutional revolution in Israel in the 1990s was followed by the development of economic negative constitutionalism, which has since been reflected in cases regarding welfare policies, reforms, and legislation that have impacted social rights. The paper focuses on cases of constitutionalism in the Israeli Supreme Court related to the right to live with dignity and explores the adoption of this narrow constitutionalism. The decision to prioritize the right to live with dignity stems from its significance as a fundamental social right, which plays a critical role in addressing social inequality.
Based on the pathologies of the current jurisprudence in Israel, the paper concludes by advancing the application of the positive social constitutionalism model.
Recommended Citation
Litor, Lilach
(2025)
"Conceptualising Economic Negative Constitutionalism: A Case Study of the Israeli Supreme Court,"
Journal of Law and Public Policy: Vol. 9:
Iss.
2, Article 2.
Available at:
https://repository.nls.ac.in/jlpp/vol9/iss2/2