El debate en torno a los derechos sociales en el constitucionalismo postcomunista

Abstract

The end of communism take back changes in the social, economical and political order in the region knowed as Eastern Europe. Thus, in the Law field one of the issues that bring in one the biggest controversies in constitutional theory is the debate around the role of economic and social rights in the postcommunist constitutionalism. There are three well defined positions. The first one, who has as its maximum defender in Sunstein, it is against the constitutionalization of social rights because there is an incompatibility between social rights and market, considering the former as antichange elements. The second one, defended by Schwart among others, will be in favor of the constitutionalization of social rights because it will have an integrative and beneficial effect in these fragmented societies as there are in Eastern Europe. Finally, there would be a mid-way solution among them or the “Spanish way”, in which Osiatynski is situated, which have no doubts on the presence of social rights in the constitution but it will posed the question about which kind of constitutional protection they will have.