The Constitutionalisation of the Economy in France, Germany and Belgium: Enshrining the Market Order, Rationalising the Social State

In legal literature, a specific theory prevails on the issue of the economic order accepted or imposed by supreme norms: the economic neutrality of national constitutions. The constitutional orders of European states would be mostly open to various options of economic policy, be they more interventionist or more liberal, depending on the choices made by the elected lawmakers. This thesis of ‘economic neutrality’ is attractive: it is straightforward and consistent with the position of judicial self-restraint put forward by the constitutional courts themselves.
Nevertheless, it remains superficial – at least for the German, French and Belgian legal orders. Even leaving aside the (albeit decisive) influence of EU law, the interpretation given to both economic liberties and social rights most often reveals a neoliberal mindset. Enshrined by constitutional courts through classical economic liberties, the market order is used by these same supreme courts as a ‘factual constraint’ that justifies the ongoing rationalisation of the social state.