Social Rights in Portugal: Their Constitutionalization and Sociopolitical Implications

Social Rights in Portugal: Their Constitutionalization and Sociopolitical Implications

Our project is concerned with the way social and economic rights have become a part of the Portuguese democratic-constitutional regime, how (and the extent to which) they have become the object of political and social struggle, and how (and the extent to which) that struggle has transformed those rights as they are interpreted and applied in policy and jurisprudence.

Across the world democracies, some kind of constitutional structure that a majority cannot change has almost unexceptionally been adopted. The embedded constitutional rules vary, however, and there is great controversy as to which disabling constitutional rules, that is, rules that restrict the powers of the representatives officials, amongst which social and economic rights, are essential to constructing democracy and which impose undue limitation on its normal workings. For instance, is it essential to democracy that people are guaranteed a decent level of health care or education? Portugal, where the principle of equality and the constitutional rights that operationalize it have a comparatively very prominent role, is no exception.

Our objective is to provide an analytical and historical map of the political, social and ideological conflicts around those rights, their interpretation and application in the Portuguese case, focusing on two particular social and economic rights guaranteed in the Portuguese Constitution: health and education. Our analysis will be made from two different but profoundly interrelated angles. The first is the angle of "constitutional choice", i.e. "games over rules" (Knight 1992). Through an in-depth analysis of the 1975-76 constitution-making period, we will test several hypotheses regarding the mechanisms and outcomes of constitutional choice. More specifically, we will confront different explanations - ideology, electoral gains, strategic deception, and cultural diffusion -for the preferences advanced by the different political actors involved in those processes, as well as for the specific outcome of the constituent processes. The second angle employed will be that of "constitutional operation", i.e. "games within rules". As soon as constitutional rules were put into place, a social and political struggle - sometimes public and open, sometimes more muted - unfolded over the interpretation of those rules, involving not only political actors located at the institutional level (government, parliament, presidency, the party system), but also interest groups, collective actors and the courts, and ultimately on how those struggles conditioned public policy and fed back into processes of constitutional revision. Focusing on the rights to health and education will allow us to make an in-depth analysis of two case studies where collective actors, parties and interests had varying degrees of success in the strategic use of a "constitutional rights" discourse to condition policy-making or maintain privileges. The first case refers to what later became known as "luta contra as propinas", a student protest against the introduction of fees in higher education during the 1990s. The second refers to the constitutional right to health and, particularly, the gratuity of the Portuguese National Health Service and the introduction of "taxas moderadoras".

Our aim, in both cases, is to determine the extent to which the "constitutionalization" of particular social and economic rights really made a difference. One possible answer to this question is that such rights lack the binding nature of other "negative" rights, should be seen as merely "programmatic" in nature and their realization is contingent upon the policy preferences, electoral goals and political power enjoyed by governments. In other words, social rights can be conceived as non-justiciable (i.e. not susceptible to judicial or quasi-judicial determination). Other answer, however, is that the framing of certain policy preferences as "rights" increases the public costs of their perceived "violation" on the part of governments provides a repertoire for political discourse and action (i.e. judicial litigation) that facilitates the collective action of actors affected by specific policies, giving, as a result, rise to a different structure of rewards and punishments for politicians that strongly conditions the development of public policy. Our working hypothesis is that social and economic rights in constitutions have policy consequences, i.e. they will increase government provision of social and economic benefits. This connection should be conceived as a process of political struggle between interest groups and the government, the former trying to guarantee the maintenance or increase of their benefits, the latter responding to those claims in light of their analysis of the costs and benefits of opposing the demanded claims.

Estatuto: 
Proponent entity
Financed: 
Yes
Keywords: 

Direitos Sociais, Escolha Institucional

Our project is concerned with the way social and economic rights have become a part of the Portuguese democratic-constitutional regime, how (and the extent to which) they have become the object of political and social struggle, and how (and the extent to which) that struggle has transformed those rights as they are interpreted and applied in policy and jurisprudence.

Across the world democracies, some kind of constitutional structure that a majority cannot change has almost unexceptionally been adopted. The embedded constitutional rules vary, however, and there is great controversy as to which disabling constitutional rules, that is, rules that restrict the powers of the representatives officials, amongst which social and economic rights, are essential to constructing democracy and which impose undue limitation on its normal workings. For instance, is it essential to democracy that people are guaranteed a decent level of health care or education? Portugal, where the principle of equality and the constitutional rights that operationalize it have a comparatively very prominent role, is no exception.

Our objective is to provide an analytical and historical map of the political, social and ideological conflicts around those rights, their interpretation and application in the Portuguese case, focusing on two particular social and economic rights guaranteed in the Portuguese Constitution: health and education. Our analysis will be made from two different but profoundly interrelated angles. The first is the angle of "constitutional choice", i.e. "games over rules" (Knight 1992). Through an in-depth analysis of the 1975-76 constitution-making period, we will test several hypotheses regarding the mechanisms and outcomes of constitutional choice. More specifically, we will confront different explanations - ideology, electoral gains, strategic deception, and cultural diffusion -for the preferences advanced by the different political actors involved in those processes, as well as for the specific outcome of the constituent processes. The second angle employed will be that of "constitutional operation", i.e. "games within rules". As soon as constitutional rules were put into place, a social and political struggle - sometimes public and open, sometimes more muted - unfolded over the interpretation of those rules, involving not only political actors located at the institutional level (government, parliament, presidency, the party system), but also interest groups, collective actors and the courts, and ultimately on how those struggles conditioned public policy and fed back into processes of constitutional revision. Focusing on the rights to health and education will allow us to make an in-depth analysis of two case studies where collective actors, parties and interests had varying degrees of success in the strategic use of a "constitutional rights" discourse to condition policy-making or maintain privileges. The first case refers to what later became known as "luta contra as propinas", a student protest against the introduction of fees in higher education during the 1990s. The second refers to the constitutional right to health and, particularly, the gratuity of the Portuguese National Health Service and the introduction of "taxas moderadoras".

Our aim, in both cases, is to determine the extent to which the "constitutionalization" of particular social and economic rights really made a difference. One possible answer to this question is that such rights lack the binding nature of other "negative" rights, should be seen as merely "programmatic" in nature and their realization is contingent upon the policy preferences, electoral goals and political power enjoyed by governments. In other words, social rights can be conceived as non-justiciable (i.e. not susceptible to judicial or quasi-judicial determination). Other answer, however, is that the framing of certain policy preferences as "rights" increases the public costs of their perceived "violation" on the part of governments provides a repertoire for political discourse and action (i.e. judicial litigation) that facilitates the collective action of actors affected by specific policies, giving, as a result, rise to a different structure of rewards and punishments for politicians that strongly conditions the development of public policy. Our working hypothesis is that social and economic rights in constitutions have policy consequences, i.e. they will increase government provision of social and economic benefits. This connection should be conceived as a process of political struggle between interest groups and the government, the former trying to guarantee the maintenance or increase of their benefits, the latter responding to those claims in light of their analysis of the costs and benefits of opposing the demanded claims.

Objectivos: 
The principal investigator's objectives are associated with his previous theoretical work on deliberative democracy, the political public sphere, and republican political thought. This research project will thus give Filipe Carreira da Silva the chance of applying to the Portuguese social and political reality some of the analytical tools he has been developing for the past few years. In particular, he sees in this collaborative work an excellent opportunity to establish the extent to which a) the study of the institutional creation process of social and economic rights in Portugal and b) the analysis of the political struggles over these rights during the 1980s-1990s are but different dimensions of one and the same process. The study of the exercise of citizenship, a theme that has been in the centre of his agenda for some time now, thus evolves in a particularly important direction - the analysis of the social rights component of that conception of citizenship.
State of the art: 
Our research on the origins, development, interpretation and contestation of social and economic rights in Portugal is framed under two general strands of theoretical and empirical research. On the one hand, our analysis will draw upon a vast ?constitutional pre-commitment? literature (Elster, 2000; Elster and Slagstad, 1988; Alexander 1998; Whytock, 2004), as well as upon previous work on social and economic rights as citizenship rights (Hunt, 1996, Eide, 2001). This literature provides us with a number of hypotheses trying to account for why, in what circumstances, and under what conditions constitutions are likely to be drafted in order to contain provisions obligating future majorities to adopt (or preventing them from adopting) particular policies. On the other hand, we will draw upon studies on institutional origins and change, particularly those affiliated with the so-called ?historical institutionalism? (Steinmo et al., 1992; Pierson, 2000; Lindner &amp; Rittberger, 2003). One of the core contributions of both these approaches is not only their concern with avoiding functional accounts of the origins of institutions ? according to which the effects of institutions were supposed to explain the presence of those institutions ? but also a concern with understanding the dynamic relation between the creation of norms and their consequences. In this regard, our contention is that, following Knight (1992), the separation between institutional creation (?games over rules?) and operation (?games within rules?) is inevitably blurred as soon as one realizes that the game over outcomes is supplemented by further battles over rules and their interpretation. In particular, we argue that the evolution of institutions should be studied as a ?moving picture? rather than a ?photograph?. <br /><br />In this sense, we propose to analytically separate the institutional creation and institutional operation phases and demonstrate that it is in exploring their linkage that we find a key to understand subsequent institutional developments, i.e. the degree to which institutions are stable or contested. At the level of institutional creation, several dimensions need to be analyzed. Approaches that have treated institutional design from a rational choice perspective tend to give greater emphasis to the pursuit of distributional benefits on the part of the political actors involves. From this point of view, the different preferences about institutional and policy outcomes of the actors involved in the constitution-making process, their present balance of power and their level of uncertainty both about the consequences of constitutional rules and about the future balance of power are likely to affect the shape of the rules that end up being chosen in the institutional choice phase (Geddes 1995).
Mónica Brito Vieira
Bárbara Direito
Coordenador 
Start Date: 
01/08/2007
End Date: 
01/08/2010
Duração: 
36 meses
Closed