The counter-majoritarian difficulty in a neoliberal world: Socio-economic rights and deference in post-2008 austerity cases

Abstract

Abstract:In the aftermath of the 2008 financial crisis courts and rights took a backseat to demands of markets and international financial institutions for austerity. Deference and judicial restraint were prevalent in austerity litigation across various European jurisdictions. This article argues that the traditional view of deference to political branches on socio-economic rights should be revised in our political-economic context. Drawing on the work of German sociologist Wolfgang Streeck on representation failures of democratic institutions in our neoliberal era, the article argues that law’s abnegation in this sphere has the effect of securing and legitimising neoliberal hegemony and serves the interests of owners of financial capital. Deference in order to avoid judicial overreach does not entail deference to democracy as legislatures have come to view financial markets as their constituency alongside the general citizenry. As public finances have become marketised, deference to legislatures amounts to deference to markets. Judicial minimalism creates not more democracy but a specific set of winners and losers. In light of severe representation failures where legislatures become tools of market justice we might, subject to various caveats, view a more active judicial role as democracy-enhancing and as a potential counterweight in favour of social justice.