Amy Kapczynski —
What might a new human rights movement look like after Occupy, Brexit, Piketty, and Trump? Sam Moyn’s new book brings us deftly to the edge of this question, and it’s here that I want to jump in. Not Enough offers important insights into some of the failures of the existing movement, at least in its mainstream form. Drawing on these, as well as my own experience with the access to medicines movement – a movement that has invoked human rights but never defined itself through that idiom – I’ll offer a few thoughts on the shape of a human rights yet to come.
One central aim of Moyn’s new book is to demarcate two kinds of left political thought – one organized around distribution and another organized around sufficiency. Do we demand equality? Or do we demand enough? The key failure of the human rights movement, he argues, is that it has settled for the latter, and a particularly stingy version at that. As market fundamentalism advanced, human rights spun out a minimalist utopia. Socioeconomic rights took shape as demands to a “core minimum.” The movement demanded a “just enough” that in its very nature could never be enough, nor just.
As Paul O’Connell noted last week, Moyn’s is really only a history of part of the human rights movement. It has never been clear exactly how to define “the movement,” and many local groups make radical and even revolutionary claims under the sign of human rights. Moyn’s framing is not, however, without justification: he trains his attention on the institutions and documents that many people treat as the “core” or most consequential aspect of the movement. Implicitly, this reproduces a status hierarchy that I’ll argue in a minute must be undone if human rights is to be remade. But it also allows Moyn to show why we need a new human rights. The mainstream human rights movement came to prominence by embracing a certain kind of minimalist anti-politics, and trading off the best for the good.
This mainstream paradigm is inadequate to the challenges we face today. Moyn is right: We need a new human rights, one that does more than seek to “avert disaster and abjection.” This new version should embrace the politics of “material equality.” It must also demand deeper political accountabilities, inventing structures to facilitate a “welfare world” rather than accepting the pastiche of participation offered by international institutions to date.
What might a human rights movement look like that was more adequate to the challenges of our time? All of this, I think, and a few things more.
First, a renewed human rights should take political economy seriously and commit itself first and foremost to the building of political power. The mainstream human rights movement relied heavily on shaming and elite elaboration of norms and has rarely treated organizing among those it claimed to serve as a primary goal. But rights presuppose a claim of political wrong, and a structure of accountability to which one can make demands and that might deliver a response. The same might be said of material equality: it cannot be realized outside a structure that ‘We the People’ can govern and hold accountable.
As Moyn suggests, a renewed human rights must give new focus to labor rights. But it cannot stop there. It must help build infrastructures for organizing and power-building of new kinds, especially if it is to reach casualized workers, the precariously employed, and those (mostly women) laboring in the shadows of the family.
Second, we need a human rights whose “center” is at the ends of the network, where people are using human rights promiscuously as they build power locally. Structures of political accountability are still overwhelmingly local, so the most important locus for power-building will also be local. A more promising human rights would marginalize Geneva, using its human rights institutions to influence other international actors, and to build connections, strategies, and power that can be ported back to the local level. This is how HIV/AIDS activists have used human rights for many years. Advocates first built solidarity among people living with HIV and allies in cities and towns around the world, developing primarily local agendas: fighting punitive drug and sex laws, and addressing health systems failures, for example. But these local realities are today pervasively shaped by transnational power. So, AIDS activists have moved between local and transnational institutions to confront that power. Often, they have targeted institutions that purport to have little to do with human rights, such as the WTO. But activists also sought recognition of a right to access to medicines within formal human rights bodies, for example, to help isolate the WTO and take advantage of the way human rights circuits help move arguments around the world. A new human rights should take its inspiration from this, and from how human rights claims and processes are used to support power-building work going on around the world in justice movements for indigenous groups, labor, farmers, and so on.
Third, a renewed human rights should align itself explicitly against neoliberalism and take on its structural predicates. In a forthcoming article in Humanity, I take up the question, raised by Moyn, as well as others like Susan Marks, and Naomi Klein, of the relation between human rights and neoliberalism. Is today’s human rights complicit with neoliberalism? Or has it merely accompanied neoliberalism, “nipping at its heels,” as Moyn urges? We can learn something about this by considering the example of the “right to medicines” as it has been recognized in many countries of the world, and particularly in Brazil and Colombia. In both countries, tens of thousands of people each year “judicialize,” seeking court orders for specific medicines prescribed by their doctors – and almost always receiving them. A strong critique of these cases has emerged, arguing that because the poor have little access to courts, and because the enormous cost of these cases drives resources away from structural public health priorities, this victory is in fact a deep failure. Individualized remedies for socioeconomic rights, critics argue, cannot help produce true health justice.
But neither these courts nor their critics have grasped the background political economy that conditions the problem. Evidence shows that a few high-cost medicines drive the vast amount of spending on judicialization. But high medicines prices are overwhelmingly caused not by high costs of manufacturing, but by monopoly rights. The political economy of medicines is embedded not only in local laws, but also in international treaties that mandate exclusive rights – patents – for lifesaving goods. These treaties do not fully constrain local legislatures, but the combination of procedural barriers, vague exceptions, and the background threats that countries like the US deploy have made legislatures very reluctant to use their treaty rights to use affordable generic medicines.
So, activists have argued, courts should make legislatures use these rights – or at a minimum, acting more “dialogically,” suggest that they use them, and affirm that they can. In these arguments, I contend, we can see a vision of an anti-neoliberal human rights – one that has had a few successes, albeit limited ones, so far. Building a human rights that sees and reveals rather than denies connections between rights and markets, and that helps reconfigure the background political economy, will not be easy. But if we bring the margins to the center, we can begin to see how it might be done.
Taking political economy seriously also means not naïvely dismissing human rights as a venue for struggle. As legal realists like Hale knew long ago, law inevitably takes sides in political economy questions. Human rights law is no exception. The existing right to medicines has embodied a soft kind of neoliberalism, layering enforceable socioeconomic rights atop a system of market fundamentalism. This is part of what ought to be criticized about the right to medicines in our neoliberal age: it has proceeded with no conception of what relation to markets and social provisioning a truly just and equitable healthcare system requires.
A final lesson here: It will also be difficult to move away from market fundamentalism without recourse to rights, if only because rights are the best legal handhold we have in many places to demand a different relation between politics and the market. Market fundamentalists will also continue to make their own demands upon the law. It is only because activists have done battle that mainstream human rights does not, for example, embrace a “human right to intellectual property.” As Moyn himself recognized, “never did the language of human rights revert to the narrow protection of contract and property, as in the nineteenth century when Karl Marx denounced the effort.” (175) But this is the result of struggle – sometimes at the center, but often driven by the margins – that has beaten back such claims, always contingently so.
To build a human rights that, as Moyn puts it “connives with others who break into open rebellion” against our radically unequal age, we must reconceive of it as a project of power-building that centrally challenges market fundamentalism. Fortunately, if we change our view of where the human rights movement is, we can find important examples of this work already underway.
Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School.
Visit our Not Enough Symposium page to read all the posts in this series.