In a common formulation, the rule of law posits a relation between the individual and the state in which the former is a bearer of rights held against the latter, enforced by an independent judiciary. This story – with the protected rights varyingly termed ‘ancient’, ‘fundamental’, ‘inalienable’ or ‘human’ – is well known and need not be reproduced here. However, there is a flipside to the story: the rule of law's mantle has not generally extended to – and has frequently been represented as antithetical to – a sizeable subset of the ‘fundamental rights’ enumerated in international human rights instruments – the covenants on, respectively, ‘civil and political’ and ‘economic, social and cultural’ rights. Thus, whereas the rule of law is frequently articulated as a ‘guarantor’ of human rights as such, in practice these articulations do not easily extend beyond that subgroup of rights termed ‘civil and political’.

Silence on ‘social and economic rights’ pervades contemporary project literature, even though, as we shall see in Part II, economic governance is a primary subject and target of this literature. As such, the silence may appear to be a mere oversight or, at worst reflective of an institutional (as opposed to a conceptual) bias. Yet far from being peripheral to the historical reception of the rule of law ideal, state efforts to protect and promote welfare have in fact played a central role in determining the normative reach of the term.