Are social rights compatible with the rule of law?: a realist inquiry

The motivating puzzle is: why do the many programs promoting the rule of law abroad so rarely address social and economic rights? The approach is to critically examine a view that has been historically central to the reception of the rule of law as a term of art and has critically shaped its contemporary usage--according to which social rights are incompatible with the rule of law. The paper revisits the early twentieth century American legal realists, whose critiques largely set the terms that came to dominate notions of the rule of law. The paper traces some later debates that recycled the realist themes and polarized their terms, and concludes that an insistence on the rule of law is only rhetorically, rather than substantively, hostile to social rights. Nevertheless, the fact that social rights fall outside the ordinary penumbra of a rule of law vocabulary exerts a powerful presumptive force over the interventions carried out in its name.