Social rights are controversial in theory, but many constitutions feature long lists of social rights anyway. But how can poor states ever hope to realize these rights? This article examines the practical bargaining over social rights that occurs when countries go broke and international financial institutions step in to direct internal fiscal affairs. Constitutional Courts can give their own governments leverage in bargaining with the IMF by making strong decisions defending social rights just at those moments. Because of the IMF's commitment to the rule of law, it is hard for the IMF to insist as part of the conditionality of its loans that governments overtly disobey rulings of their countries' high courts. Looking at Hungary (where the Constitutional Court made such a decision and the government used it to negotiate better terms with the IMF) and Russia (where the Constitutional Court made such a decision and the Russian government ignored it), the article addresses when this tactic might work and how strong court decisions can help governments protect their own populations in times of economic disaster.
Scheppele, Kim Lane, "A Realpolitik Defense of Social Rights" (2004). Faculty Scholarship. 51.