Capitalism, Inequality, and Human Rights

Paul O’Connell —

moyn postSamuel Moyn’s new book begins, with an echo of Christopher Hill, by noting that history has to be revised and rewritten to meet the demands of the present. From this, Moyn sets out to provide us with a historical account of the relationship between human rights and inequality, in order to shed some light on the major crises and challenges facing the world today (Trump, staggering inequality and more). On this he delivers admirably: Not Enough is a sweeping, erudite account of the place of human rights in debates about equality from the pioneering days of the Jacobin state in revolutionary France, through the mid-twentieth century welfare state, and the grand decolonial visions of the New International Economic Order (NIEO).

While it is impossible to do justice to the breadth and nuance of the work in this brief post, the crux of Moyn’s argument is that when modern notions of human rights, with a particular focus on social rights (or depending on where you are from, socio-economic rights), came centre stage, it was as a poor second prize following the decline and failure of grander narratives of material equality and social justice. For Moyn, human rights emerge and prosper in tandem with the entrenchment of neoliberalism on a global scale, and while the latter has produced dramatic social transformations and spiralling inequality, human rights have remained “powerless companions” to effect any meaningful change in this period. One consequence of this analysis, captured in Moyn’s recent Op-Ed in the New York Times, is that the human rights movement runs the real risk of falling victim to rising populism and dissatisfaction with the status quo, because it has “made itself at home in a plutocratic world”.

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Inequality and Political Economy in Constitutional Doctrine

Kate Andrias –

Recently on this blog, Sabeel Rahman and Ganesh Sitaraman detailed the growing interest among public law scholars in questions of power, inequality, and political economy.  One feature of the emerging scholarship, they correctly note, is that it directs its attention not primarily to courts, but to legislators and social movements; it focuses not primarily on questions of judicial review but on problems of institutional design and constitutional structure.

There is good reason for the non-juridical focus, as I and others have previously argued.  Courts have rarely been leaders of progressive change, especially in the absence of well-organized social movements.  On economic issues in particular, courts have tended to be regressive.  Against this background and given the Court’s current makeup, relying on litigation as the primary method for opposing economic inequality would be a fool’s errand. Moreover, for public law scholars committed to building a more democratic and egalitarian political economy, there are normative reasons to focus beyond courts.  Courts, after all, are not fundamentally democratic or egalitarian institutions.  There is an irony in relying on elite, nondemocratic institutions to achieve a more egalitarian distribution of power and resources.

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