Most traditionally, it has been held that guaranteeing a modicum of social protection to those in need would be the exclusive task of the legislator within the political process. *1 According to this approach, social entitlements were deemed not to belong to a constitution *2 ; and even if some social rights did, in fact, appear in a constitutional text, they would have been considered mere directive principles. *3
In contemporary constitutional democracies, however, the tide has turned. Social rights are taken increasingly seriously as legal rights capable of being invoked before domestic *4 or international courts. *5
Once social-rights-related claims have entered the realm of judicial decision-making, the courts concerned must make up their minds as to how to handle such claims safely, as implementation of social rights routinely gives rise to a number of complex issues that may lead to questioning the legitimacy of judicial intervention or demonstrate the incompetence of the courts. The most cautious courts could combine various judicial techniques in order to achieve a balance between their obligation to protect fundamental rights of individuals and that of reasonably preserving the balance of powers.
My aim is to present the experience of the Supreme Court of Estonia in dealing with social-rights-related cases, complemented with some comparative remarks about other jurisdictions that have dealt with social rights cases, mainly South Africa and Germany . In this article, I analyse how the interpretations (that is, techniques of interpretation) and the standards of review that can be found in the case law of the Supreme Court of Estonia and other constitutional courts relate to the elements of the principle of the social state that underlies the concept of fundamental social rights. In doing this, I hope to demonstrate that the nature of the principle of the social state is twofold: it is both a guiding interpretative principle and a substantive structural principle of constitutional law, including a set of intertwined systemic elements. In addition, as a reply to a recent opinion that solving social rights cases depends on the way in which a particular decision-maker views the relationship between social rights and various civil and political rights *6 , I will show that the way courts handle social-rights-related cases depends on their understanding of the social state principle as a general principle of constitutional law in the particular historical, social, and economic context in which the court finds itself.
For the sake of clarity, the article is divided into four parts. Firstly, I will describe in broad terms how the principle of the social state has been understood in the theory so far and how it appears on the constitutional level. In doing so, I will present my understanding of the elements of the social state principle. The second, third, and fourth part of this article will be devoted to analysis of the judicial dynamics in cases addressing the various elements of the principle of the social state.
The essence of the principle of the social state is that the state — or, more broadly, the public power as a whole — has to take care of its people. The questions that immediately follow are why, how, and to what extent. In addition a question arises as to who is responsible for its implementation.
Answers to the ‘why’ question can mostly be grouped into dignity-, justice-, and solidarity-based arguments, if one presumes that the justice-grounded arguments encompass equality.
Thus, for example, Günther Dürig has emphasised that human dignity would be violated if a human being were to be forced to exist economically in living conditions that would degrade him to the level of an object. *7 This is an argument in true Kantian spirit. I would also like to refer to the writings of Sandra Liebenberg *8 , who thinks, combining her own thoughts with the capabilities approach of Martha Nussbaum, that human dignity requires that there be at least certain basic material conditions in place, enabling people to develop and exercise their capabilities. *9 More specifically, she adds, respect should be shown for human potential and agency by creating an environment of basic liberties and material support that enables them to flourish. *10 Similarly, a number of eminent German constitutional lawyers *11 emphasise that the aim of application of the social state principle is to create social and economic conditions in which individuals can exercise their fundamental rights. *12
In my opinion, the last two dignity-based arguments for the protection of the social state principle resemble each other significantly, differing at most in their details. Most importantly, they highlight the necessity to respect the private autonomy of the recipient of state assistance. This means that the individual’s perception of a good life and life plans should not be interfered with. In addition, creating the social and economic prerequisites for enjoyment of fundamental rights advances also the public autonomy of the individual to participate meaningfully in the life of the society and therefore indirectly also the principle of democracy. The minimalist approach of Günther Dürig seems to require only fulfilment of basic economic needs and would thus not take into account other necessities (capabilities) that human beings in want might have.
The social aspect of human dignity is elucidated by Peter Häberle, according to whom the concept of human dignity includes an element of mutual respect and concern that he calls solidarity. *13 Uwe Volkmann goes even further and argues that human dignity entails a mutual obligation to guarantee — partially individually, partially collectively — care for the well-being of others. *14
If the public authorities are supposed to care for individuals, they have to do it justly. *15
The difference principle, the Rawlsian second principle of justice, requires that “social and economic inequalities are to be arranged so that they are both: a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and b) attached to offices and positions open to all under conditions of fair equality of opportunity”. *16 He also contends that “fair, as opposed to formal[,] equality of opportunity requires that the government, in addition to maintaining the usual kinds of overhead social capital, tries to ensure equal chances of education, and culture through subsidised or public schooling, tries to ensure equality of opportunity in economic activities by policing the conduct of firms, and preventing monopolies, and generally guarantees a social minimum income”. *17 It must be noted that this conception of justice goes further than the traditional Aristotelian understanding of justice in that it allows affirmative action to remedy social injustices. On the other hand, Rawls seems to be very cautious in his approach, as government only has to try to achieve the substantive requirements he proposes. This weakens his difference principle considerably.
The argument of justice, proposed by Hans F. Zacher, is much firmer. Thus, in a social state, the principle of social justice is to be incorporated into the legal order as a fundamental value, in order to promote substantial, material equality. *18 On the other hand, it is not clear whether implementation of this notion of justice requires assistance by the state or is satisfied with just distribution of state assistance, if it should be decided for any reason that the state has to provide it.
In this regard, the collective responsibility to correct market outcomes in terms of (social) justice, by conferring on all citizens a right to those resources that may not be secured for each person in a fair and predictable manner by the market, underlined by Raymond Plant *19 , is a much more dynamic conception of justice. Even if it is hard to determine in individual cases what kinds of resources a fair market would have provided to the persons concerned, this argument brings to the foreground that the principle of the social state functions always as a corrective mechanism to the invisible hand of the market economy.
The most down-to-earth equality-based theory is the social citizenship theory of T. H. Marshall. In his opinion, there is a kind of basic human equality associated with full membership of a community — i.e., citizenship — that is not inconsistent with the inequalities that distinguish the various economic levels in a society. *20 Thus his theory is not supposed to include a transformative notion of justice. This understanding seems to be in conflict with his description of social citizenship, which is supposed to contain “the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in the society”. *21
It appears that some commentators from outside Continental Europe prefer to refer to the principle of the social state as social democratic constitutionalism motivated fully by support for social democracy. *22 Despite this, Gavin W. Anderson captures the essence of the principle well, in describing it as follows:
First, social democracy sees the state as not only having a legitimate role, but, as the historical record would appear to bear out, the best hope for achieving progressive social change. Second, social democracy does not valorise civil society for its own sake, but rather sees it as a potential source of oppression, and so contemplates checking social and economic inequalities where necessary. Third, social democracy sees reducing material inequality as a necessary precondition of political freedom, and so values those rights, such as second and third generation rights, which focus “less on governability than on citizen empowerment and social justice”. *23
Solidarity, also known as fraternity, presupposes a sort of social cohesion or commonness between equal members of a group, based on some common features, beliefs, etc., that is then the main reason why members of such a group should help each other if the need arises. *24 In fact, the proper content and role of solidarity are a subject of lively debate between liberals and communitarians; whereas the liberals emphasise the autonomy of individuals to pursue their own plans for a good life, as well as freedom of choice, the communitarians underscore the dependence on community and traditions. *25 Volkmann concludes that perhaps a more liberal notion of solidarity should be preferred, where mutual recognition of individuals that is based on the right to equal respect, the co-operation of all members of society in building just institutions, and a resulting equal concern for each other would not exclude redistribution of goods in favour of the disadvantaged and would include an extensive neutrality with regard to diverging visions of what constitutes a good life. *26 Alternatively, one could perhaps consider another compromise, the liberal communitarian approach. *27
The social state is just the means best situated to mediate and facilitate this process of social inclusion, by formalising mutual dependency and creating access to resources that enable all members of society to participate in the society’s life without any distinctions. *28 Some early conceptions of solidarity have maintained that the aim of solidarity is to create more just and equal societies. *29 Contemporary conceptions of the principle of solidarity go further than that and stipulate that it aims to create equal opportunities for individuals and to enable them to make use of their freedom within the society. *30
In my opinion, there are two ways in which the preceding theories can be perceived. Firstly, it is possible to argue that a contemporary and normative conception of solidarity is capable of encompassing the justice, equality, and dignity concerns presented above. Then, essentially, the principle of the social state would be based on a broad notion of solidarity. Alternatively, one could stipulate that any kind of social state should be directed toward promotion of human dignity and social justice based on and enhancing the solidarity in a given society. In an attempt to simplify the sub-principles of the principle of the social state, we would necessarily have to take into account the implications for constitutionalism in general of omitting some of the aspects thereof. Thus, for example, if we leave human dignity (including the respect for autonomy and fundamental rights of an individual) out of our equation, we might end up in a situation where the only aim of the social state would be promotion of social justice as a common good without taking into account the individual necessities and capabilities of the persons in need. This would resemble the pre-Second-World-War understanding of solidarity, advanced by Léon Duguit, wherein the intervention of a social state would be deemed justified for achievement of greater justice and equality as a common good, for improving the society and creating greater cohesion, not for the gain of its individual members. *31 In contemporary constitutionalism, based on rule of law *32 , such an approach would not be acceptable. In addition, it has been demonstrated that the reasons that the state should take care of its people are not mutually exclusive. Rather, by complementing each other, they create a clearer idea of the state’s obligations and can be used dynamically to elucidate different aspects of the whole. This is why the option of a social state directed towards promotion of human dignity and social justice through solidarity in any given society should be preferred.
The solidarity and equality concerns answer to a great extent the ‘how’ question posed at the beginning of the article. The principle of the social state is highly abstract, and the goals to be achieved — the protection of human dignity and achievement of greater social justice — are demanding and dependent on the available resources and on the historical and cultural context. This is why it can only be said that the principle of the social state should be guaranteed on the basis of some redistribution of resources that would enable the state to cover the costs necessary for providing adequate social assistance, required by dignity and social justice. At the same time, the dignity of those whose economic rights are limited for the sake of protecting the dignity of the least advantaged must be guaranteed too. This is why any limitations must not go further than necessary for achieving the desired goal and must correspond to the principle of equal treatment.
The extent question is partly answered by the answer to the ‘why’ question, as dignity, justice, and solidarity require different degrees of protection of individuals but are, on the other hand, still very abstract and flexible terms. A number of historical *33 , cultural, political, social *34 , economic, and institutional concerns enter the forum when the extent of justified state intervention is discussed. But this should not result in a ‘proceed as you like’ kind of empty standard. *35 Rather, a somewhat relaxed but still adequate standard of protection, perhaps best termed as at least ‘reasonable care’, should be required under the principle of the social state.
The ‘who’ question is mostly answered with a democratic bias in favour of the legislature *36 , but, as has been mentioned above *37 , protection of the principle of the social state is not considered to belong to the exclusive domain of the legislator anymore. *38 In contemporary constitutional democracies, the courts have an increasing role to play, too, having to keep in mind the principle of separation and balance of powers. Besides the horizontal separation of powers, the response to the ‘who’ question can be influenced by the vertical one, as, in some contexts, the primary responsibility to provide social assistance may lie with the local governments *39 , the states *40 , or provinces, or it may be linked to obligations on supranational *41 or international level. *42
On the constitutional level, the permissibility of judicial implementation of the principle of the social state is expressed by insertion of catalogues of social rights and equal protection clauses into the constitutional texts that are regarded to produce subjective and justiciable rights for individuals. Textually, the social state principle can be expressed either in a separate clause *43 or through the establishment of fundamental social rights and the prohibition of unequal treatment on the basis of social or economic status. As all of the duties referred to inevitably incur expenses, they relate directly to the redistributive function of the state, which is expressed in the constitutions through the competence of the state to levy taxes in the broader sense. The principles (values) of human dignity and justice *44 are also closely intertwined with the principle of the social state.
As the constitutional provisions are just a basis for judicial interpretation, which is the main focus of my interest, I will not stop short here but instead will describe briefly what kind of influence the principle of the social state could exert on judicial application of its elements.
As has been demonstrated above, the principle of the social state is a complex phenomenon. Any increase in the level of protection of one social right could mean that the economic rights of the taxpayers or the economic freedom of entrepreneurs would have to be limited more intensely, or that the protection of other economic, social, or cultural rights might be weakened thereby. Judges try to strike a reasonable balance between the interests of the community and its vulnerable individuals, as well as between the priority of claims to protection of different vulnerable groups. In addition, they must tackle complicated questions of how to determine desert and social necessity whereby they may end up at the boundaries of their competence or risk extensive public criticism. Therefore, figuratively speaking, elements of the principle of the social state are like a double-edged sword that might cut in unwanted directions and even hurt the sword-bearer at the same time. In order to protect themselves, the courts have equipped themselves with significant armour. This armour includes a set of judicial techniques.
Courts elaborate on the admissibility criteria rather carefully, as they are mindful of their limited role in the protection of the elements of the social state principle. The factors listed above as influencing the manner of implementation of the principle create significant tension and bring about a significant degree of deferentialism in the jurisprudence of constitutional courts concerning elements of the social state. In judgments, it can be expressed as judicial self-restraint or leaving of a wide margin of appreciation to the legislator. In addition, the resource restraint may be specifically mentioned in the reasoning of judicial decisions. *45 Due to the complexity and indeterminacy surrounding the extent question, constitutional courts tend to apply a relaxed review standard in deciding cases involving some elements of the social state principle, which, depending on the legal tradition, could be called a reasonableness test, rational and relevant reason test, intermediate scrutiny, or relaxed proportionality test. In addition, the scope of protection of various elements of the principle of the social state is frequently interpreted in a manner that uses the highest values of the legal order — justice, equality, and dignity *46 — to legitimise the judicial intervention and its result beyond any reasonable doubt. Solidarity, as a more dubious argument, appears in the argumentation of the courts less frequently.
I will continue with analysis of the constitutional jurisprudence of the Supreme Court of Estonia, also making some comparative remarks about the jurisprudence of the Federal Constitutional Court of Germany and the Constitutional Court of South Africa in similar cases. In doing that, I try to identify how these courts have tackled the difficulties surrounding the principle of the social state and its elements.
In January 2004, the Constitutional Review Chamber of the Supreme Court of Estonia was faced with a case involving the right to housing subsistence benefits, the first constitutional review case before it involving arguments of protection of the right to social assistance by the state and the principle of the social state. *47 A university student had been denied subsistence benefits by local authorities because he was residing in a student dormitory and the Social Welfare Act had not foreseen a possibility of paying subsistence benefits to persons living in dormitories. Any other kind of accommodation, including a leased or owned apartment, corresponding to the requirements prescribed by the Social Welfare Act would have been acceptable. At about the same time as the court received a referral from the first-instance administrative court to review the constitutionality of the pertinent norm of the Social Welfare Act, the Legal Chancellor submitted a similar application to the court. These two cases were joined. The Supreme Court began its analysis with explanation of what the social state principle entails. Accordingly, “the concept of the social state principle and protection of social rights contains an idea of state assistance and care to all those who are not capable of coping independently and sufficiently. Human dignity of those persons would be degraded if they were deprived of the assistance they need for satisfaction of their primary needs.” *48
As the chamber refers simultaneously to both the principle of the social state and the principle of human dignity, and explains the meaning of those principles jointly, one could erroneously conclude that the social state principle lacks any independent meaning and coincides fully in meaning with the principle of human dignity.
I am convinced that this is not the case. Instead, the court has tried to identify the necessary level of state assistance by using dignity, one of the core elements of the principle of the social state, as a yardstick. The question that remains, however, is whether the level of protection described in this judgment is to be the general standard, applicable in all subsequent social rights cases, or whether the court has focused fully on the influence of the social state principle on subsistence benefits, which constitute — by definition — at least the minimum necessary for survival. *49
Taking into account the principle of continuity of the constitutions of the Republic of Estonia *50 , the reference to human dignity is not very surprising. *51 The 1920 and 1937 constitutions of the Republic of Estonia , and even the 1919 Interim Constitution, have all included a social justice clause, aimed at ensuring a dignified life for the peoples of Estonia . *52 What seems to have gone missing from the interpretation of the Supreme Court as compared to the texts of the two previous constitutions is the justice element. *53 This kind of dignity-based approach is not very typical for Eastern European countries, save for in the practice of the Hungarian Constitutional Court *54 , but it makes sense if one takes a look at the social state jurisprudence of the German Federal Constitutional Court, from which both the Hungarian Constitutional Court and the Supreme Court of Estonia have drawn inspiration. After initial rejection of it *55 , the German Federal Constitutional Court accepted that a right to minimum social subsistence can be derived from respect for human dignity. *56 It must be noted, however, that the German Federal Constitutional Court does not rely solely on human dignity in its social state jurisprudence and that it bases its decisions extensively on the notion of social justice. *57 Thus, the Supreme Court of Estonia seems to have followed only a suitable and minimalist part of the jurisprudence of the Federal Constitutional Court . Why?
It seems that the experience of having been part of a totalitarian Soviet regime, where social security was provided as a trade-off for deprivation of liberty and property, has pushed the pendulum towards the other extreme in Estonia . Thus, liberty and property are considered to be more important than social solidarity. Moreover, it is feared that anything having something to do with social justice or the social state could, in fact, lead back to socialism. *58 This attitudinal change is visible even in the Preamble of the 1992 Constitution, where the values of justice, law, and liberty have been rearranged to liberty, justice, and law. *59 It must also be taken into account that, during the drafting process of the first social justice provisions, the prevailing ethos among the drafters was that, first of all, it is the duty of the individual and his family to take care of him and that the state would intervene only if they fail to do so. *60 The spirit of the Constitution of Estonia today is very similar. *61 These considerations may explain the very cautious interpretation of the principle of the social state by the Supreme Court of Estonia. *62
Another question that arises when one reads the decision of the Supreme Court of Estonia in the Social Welfare Act case is whether only the core of the fundamental social rights can be considered justiciable. In this decision, the Supreme Court explains that, in order to delimit different branches of public power and to preserve the balance between them, the court may intervene in social rights cases only if this is necessary for the prevention of violation of human dignity — it is not for the court to replace the legislator or the executive and to make or second-guess choices of social and budgetary policy. Accordingly, the court may deal with subsistence benefits cases only when the assistance provided by the state remains below the required minimum level. With this stance the court is consciously avoiding any activism.
The position of the court might be regarded as problematic, as it has been argued that the catalogue of fundamental rights enshrined in the Constitution of the Republic of Estonia is a very well balanced and minimalist one. *63 The drafters have fleshed out the core of certain social rights that could potentially be fully justiciable. If the Supreme Court were to decide to render only the core of such social rights provisions justiciable, only ‘the core of the core’ of social rights would be enforceable, and the resulting level of protection of these rights could be remarkably low. Whereas the priority of judicial protection of the core of social rights has been emphasised by several scholars *64 , they have not gone so far as to suggest that only the core of those rights should be judicially enforceable. *65 Perhaps it is because these scholars have based their argumentation on the South African experience, wherein the Constitutional Court explained in the Grootboom *66 and TAC *67 cases that the government has to take into account both the immediate necessity and the aspirational aspects *68 of social rights. Taavi Annus and Ants Nõmper have argued that, in the Estonian constitutional context, different layers of social rights require the use of differing judicial techniques, and that the courts should be most careful in dealing with resource-dependent aspects of social rights. *69 Even if one might imagine that the position of the court, as voiced in the SocialWelfareAct case, is just a starting point, concerning exclusively the fulfilment aspect *70 of this particular social right and not applicable in any further cases concerning the respect and protection aspects of social rights before it, it still fails to address several practical issues.
Firstly, it cannot be clear for applicants — until sufficient case law has emerged — what kind of interference with fundamental social rights constitutes at the same time a violation of the principle of human dignity and a situation in which they would be entitled to recourse to the courts for the protection of their fundamental social rights.
Secondly, it remains unclear in this case how to guarantee satisfaction of the requirement of the UN Covenant on Economic, Social and Cultural Rights that the level of protection of social rights be gradually raised, taking into account the economic possibilities of the state concerned. *71 When the justiciability of fundamental social rights is restricted in a manner described above, there is no domestic mechanism to compel the legislator and the executive to take steps in that direction if they fail to act on their own initiative. The same problem arises with regard to guaranteeing compliance with the ban on regressive measures that is established in the Covenant.
It can be argued that, within the system of balance of powers emanating from the court’s reasoning, the powers of the state are separated but the balance has been struck between them in a manner that clearly favours the legislator and the executive.
The Supreme Court has so far not rendered any other judgments on the merits in genuine social rights cases, although it had a theoretical possibility of doing so in the case of Johannes Toom *72 and in the rent restrictions case *73 initiated by the President of the Republic.
The test that the Supreme Court would apply in cases concerning possible restriction of social rights remains unclear, because all of the cases concerning social rights, including the groundbreaking SocialWelfareAct case, have so far been adjudicated on the basis of the ‘equality in lawmaking’ principle *74 , derived from § 12 of the Constitution. Moreover, the Supreme Court has considered it essential to point out that fundamental social rights and the general right to equality are more closely connected to each other than other fundamental rights are to the right to equality. *75
The principle of equality in lawmaking *76 requires, pursuant to the Supreme Court’s jurisprudence *77 , that laws treat all persons who are in a similar situation similarly. Departure from this principle is permissible if there is a reasonable and appropriate justification for this. *78
Bearing in mind that the Supreme Court applies the full proportionality test *79 when considering freedom rights in combination with equality rights, it can be argued that in the cases concerning social rights the Supreme Court intentionally leaves the legislator a much wider margin of appreciation than that provided in freedom rights cases. *80
Yet it seems that, when solving concrete cases, the Supreme Court has encountered situations where applying a stricter test *81 would have been necessary for achievement of the desired result. For example, in the Parental Benefit Act case *82 the Supreme Court pointed out that the application of the contested norm of the Parental Benefit Act had led to an unjust result *83 : a mother remaining at home with a child and receiving her salary for past work periods with a significant delay that was caused through the fault of her employer would be deprived of parental benefits. That is why the court found that the argument of complexity of administration invoked by the state did not outweigh the infringement of the general right to equality, where weighing refers to the principle of proportionality. The need to weigh the different interests at stake was also mentioned by the court in the early-retirement pension case. Thus, it remains to be seen whether the Supreme Court will consider it possible to apply a more stringent test in future social and equality rights cases.
Unlike many other constitutions, the 1992 Constitution of the Republic of Estonia contains a specific ban of discrimination based on a person’s economic or social status. *84 Still, the Supreme Court of Estonia has so far refrained from applying this ban and refers in solving cases that would qualify as economic or social status discrimination cases instead to the general right to equality in combination with some social rights. Perhaps the court has followed this approach in an attempt to avoid the application of a strict proportionality test *85 in such cases.
Another aspect that deserves attention is whether and how the court has based its decisions on particular social and economic context arguments. So far, the court has abstained from any explicit analysis of social and economic data, with the exception of the early-retirement pension case. In that case, the court performed a rather thorough analysis of social and economic data when assessing the social and budgetary impact of the legislative change required for equal treatment of different groups of pensioners. *86 This does not mean, however, that the court would normally not take into account the social and economic effects of its decisions, or its inability to predict these. Similarly to the historical and cultural background issues, these kinds of considerations can sometimes be read between the lines.
The Supreme Court of Estonia has dealt with social-state-related cases extremely carefully, mindful of all the dangers that could emanate from such claims, and it has used most of the judicial tools at its disposal to protect itself from the double-edged sword. This has led to a moderate level of judicial protection of social rights and leaves most of the questions for the legislator to solve. The level of protection of the principle of the social state by the Supreme Court of Estonia is comparable to that offered by the German and South African constitutional courts, as both use a relaxed standard of review in social-rights-related cases. Compared to the practice in jurisdictions that have not declared social rights justiciable, however, the constitutional jurisprudence of the Supreme Court of Estonia is progressive.
Although the judicial restraint exercised by the Supreme Court of Estonia in social-rights-related cases can be ascribed in part to a particular historical and social context, it is guided by the nature of the social state principle, as an interpretative principle. A particular feature of the Estonian social state jurisprudence is that it hardly ever mentions solidarity. Equally the (social) justice element can also be found relatively rarely in the cases of the Supreme Court of Estonia that address the principle of the social state.
As there is an ambiguity in the jurisprudence of the Supreme Court of Estonia as to what extent the social state principle and fundamental social rights are independently justiciable, the case law on the elements of the social state has so far been concentrated around the principle of equal treatment. The general right to equality and the principle of equality in lawmaking, arising from the former, do not enable the resolution of all types of social rights disputes. Thus, for example, if the state fails to establish a system for the protection of certain types of social rights, the question of observance of the principle of equal treatment cannot be invoked, as in such a case all persons concerned are equally unprotected. That is why the Supreme Court will have to decide in the future whether (and, if at all, how strictly) to apply the proportionality test to social rights cases, or whether to proceed from the more lenient ‘reasonable and appropriate justification’ test instead.