Zdeněk Červínek
Author’s affiliation: Faculty of Law, Palacký University Olomouc

To Balance, or Not to Balance Social Rights? On the Question of Whether the Rationality Test Can Be Considered as a Variation of the Proportionality Method

Jurisprudence 3/2019 Section: Articles Page: 15–27

Keywords: rationality test, Czech Constitutional Court, proportionality analysis, judicial self-restraint/deference, social rights

Abstract: Proportionality represents the basic methodological approach of the Czech Constitutional Court (hereinafter the “Court”) towards constitutional rights adjudication. However, its strictness led the Court to deconstruct its structure in cases of social policy. Thus, the Court developed the so called rationality test to review the constitutionality of social rights limiting statutes. This test is far from being undisputed and its application abounds by inconsistency and controversy. The main goal of this paper is to assess whether the rationality test can be perceived as a variation of the proportionality analysis. Firstly, the paper discusses the theoretical aspects of the matter, primarily the paradigmatic structure of constitutional review. Secondly, the nature of social rights in the Charter is assessed. Thirdly, the empirical analysis is based on the case study of the Czech Constitutional Court. On this basis, the paper concludes assessing whether there are any differences between these two standards of reasonableness review.