INTRODUCTION

Courts are often viewed as operating in the field of the legal, as opposed to the political or the economic. Yet we know, of course, that such distinctions are ultimately difficult to maintain. Markets and economic power are products of, and shaped by, law. The question of the role of courts in political economy is an unavoidable one, since the issue at hand is not whether to exert public power through the law to impact the economy but, rather, how to do so (Klare 1989: 17– 18). This chapter explores that question in the context of the possibility of challenging the dominant neoliberal model through socio-economic rights adjudication, looking to build on experience following the 2008 financial crisis. In the aftermath of the crisis, international financial institutions and other market actors often demanded that states implement austerity measures, and courts rarely struck such measures down as human rights violations.

In many cases socio-economic rights were interpreted as conforming to neoliberal rationality, as courts accepted trade-offs to serve financial market considerations. This interpretation was linked to the traditional view that courts should defer to other branches of the state on social and economic issues. This chapter argues that this view should be revised in our political-economic context.

As public finances have become marketized, deference to legislatures amounts to deference to markets. In the light of severe representation failures when legislatures become tools of market justice, we might, subject to various caveats, view a more active judicial role as a potential counterweight in favour of social justice. Drawing on post-2008 case law, the chapter sketches the mechanisms by which judicial enforcement of socio-economic rights could challenge neoliberalism, namely by immunizing certain social goods from market logic2 or disrupting policy-making processes that are overly responsive to markets.

The chapter begins by clarifying the understanding of neoliberalism. Although the term has many applications, the focus here is on two key tenets. First, there is the encasement of the economy, meaning the distancing of economic policy-making from democratic control; and, second, there is economization, meaning the expansion of market logic to ever more aspects of social life.