Bias and Exclusion in Human Rights History

Sam Moyn  –

moyn post

I am so grateful to the blog, and the respondents who wrote in to it, for the attention Not Enough has gotten here. In my brief rejoinder, I will focus on the criticisms for the sake of ongoing discussion — most of which reveal the biases and exclusions in the book’s coverage, when it comes to the past or the present. And I want to cop to those, clearly, totally, and upfront.

Okay — actually, there are some provisos.

Bias and Exclusion in General

Julieta Lemaitre frames the case for bias and exclusion most generally but, in my opinion, least responsibly. Of course, everyone has a view from somewhere — including Lemaitre herself, who has spent as much time in and around American law schools as I have. But the important question is how inevitably local perspective affects coverage and ideology.

Unfortunately, Lemaitre’s response to this important question describes the book so misleadingly as to leave it unrecognizable. At the very least, therefore, her remarks provide an occasion to make some basic points about the book that seem like a non-negotiable basis for proceeding if the goal of future scholarship is to interrogate bias and exclusion in human rights history more usefully.

The book inevitably reflects some American assumptions, but it is certainly not legitimate to claim that it is about America from its revolution to the present or defiantly excludes the rest of the world in substance, as Lemaitre says. Like The Last Utopia before it, in fact, Not Enough is most of all about the French Revolution and the abandonment of its legacy in recent history. (There is, by the way, no comparison between the global ramifications of the French Revolution and any other – including the Mexican, on which I know of no research documenting major influence of its 1917 constitution in the history of economic and social rights beyond its region.)

There is, it is true, one sole chapter in Not Enough mostly about the United States — but in this case its goal is to ponder the country’s divergence from normative welfare state development, with fateful consequences for the world’s future, and my argument there is most of all concerned with rebutting nationalist scholars such as Cass Sunstein who have failed to effectively provincialize U.S. history in the middle of the twentieth century.

But, most troublingly given her brash suggestion that I leave the world out of account, Lemaitre doesn’t even mention that the “centerpiece” of Not Enough (as Karuna Mantena says in her post) is the egalitarian revolt of the global south culminating in the New International Economic Order (NIEO) proposals and responses to them. As we will see, other respondents have some problems in what I do with the NIEO — but exclusion of the global south from the book is not credibly one of them.

Finally, the last chapter of the book provides a global survey of the relation of human rights to neoliberalism. Now, I am more acutely aware than anyone, obviously, of that chapter’s limitations and shortcomings, which are indeed profound. But it is only fair to note that it barely mentions the United States – except to cover the effects of the continuing biases of its elites, notably when it comes to global human rights funding – even as the chapter includes many discussions of Latin American affairs specifically.

Ironically, in this regard, Lemaitre doesn’t register, even in touting her important activities and experiences as a Colombian judge, that her very own country may figure more than any other in Latin America both in my presentation of historic alternatives to neoliberal human rights (reporting her colleague Jorge González Jacome’s important work) as well as in my generally skeptical account of the judicialization of economic and social rights in recent history (reporting David Landau’s fantastic work, principally reflecting on Colombian affairs).

For all these reasons, condescension about bias and exclusion in Not Enough as a general matter is not a useful starting point for further debate. I would have loved to hear from Lemaitre about how Colombia figures in the story of contemporary Latin American inequality – as the second most unequal country in the world’s most unequal region – and how much optimism we can sustain about attempts amongst advocates or judges like her to stem the tide. She and I would probably differ there, but at least the engagement would have been about the book and the issues it raises.

Characterizing the NIEO

Very different and highly plausible are the various modes of skepticism of the other respondents — and, to begin with, the historical reservations of my colleagues Karuna Mantena and Joanne Meyerowitz when it comes to the NIEO and the exciting period of the 1970s when it came.

Meyerowitz is on point in claiming that the signature of the period was its unpredictability, which therefore demands fairness towards the range of global northern projects, whether ambitious visions of fulfilling basic needs around the world or the idealism of Willy Brandt and other northern socialists. I only differ on details here, since I do a bit of a survey of alternative renditions of basic needs myself and engage the Brandt report, albeit less nostalgically. I would probably get less enthusiastic about northern possibilities – leaving aside the fatal tardiness of the Brandt report – simply because most look in retrospect like alternatives to NIEO demands, just as American state policy so clearly was. But surely they did hold some promise before the fall.

Mantena’s excellent post, for its part, worries that I misrepresent the NIEO by casting it as a project of the scalar expansion of the welfare state form, especially insofar as I scant the movement’s dependency economics — and, I would add, commodities strategy, for Mantena further suggests that more attention to why the NIEO failed is pertinent to those who hope to revive its calls for egalitarian self-determination. As Mantena herself notes, Adom Getachew’s brilliant forthcoming study that climaxes in the NIEO is a much better place to look for those interested in these crucial matters, since my main goal is to provide a contrast with the ethics of neoliberalism (and human rights) that were going to sweep into the void in our age of the abandonment of egalitarian idealism. This does not mean, as Peter Rosenblum alleges, that I am somehow in the thrall of the NIEO, let alone a “Third Worldist,” as another reviewer claimed. I merely sought to extricate the plausible egalitarian principle from the wreckage of the NIEO’s diagnosis and cure, which is not to say it came in an optimal package. Furthermore, I cite lots of examples of participants such as Julius Nyerere, and outside observers too, explicitly invoking the welfare state with its class compromises driven by trade unions as an imaginative model for the NIEO’s bid for a global welfare structure – much to the consternation of various Marxist critics at the time who were old hands by that point at denouncing welfare governance as a bourgeois sham.

Collusion and Complicity?

Zak Manfredi’s characteristically insightful contribution proposes, in this Marxian spirit, that an account of “collusion” (it is apparently a real thing in historical argument, as opposed to American law!) between human rights and neoliberal economics needs to be given more credence than I am willing. I don’t want to rule out such a possibility, not least since Jessica Whyte has a no doubt amazing book forthcoming trying to make it more plausible than it seems to me right now. But, for one thing, I do consider and dismiss a more substantive argument concerning the ethic of autonomy or egoism or the centrality of property familiar from “On the Jewish Question” – if it was applicable to human rights in the nineteenth century, it simply does not seem adequate to the late twentieth and twenty-first. More important, as I see it, most contemporary Marxist critiques of human rights do in fact offer one or another version of what symposiast Paul O’Connell has elsewhere called “the displacement thesis” that works in a (weakly) causal way. (The first taste of Whyte’s approach, out lately, seems to do so.) No doubt, however, there are going to be better ways to put the relationship between human rights and neoliberalism than the ecological one I develop. They are likely to work, as some of the newer accounts of neoliberalism do, by investigating whether one can speak of a neoliberal subject that, beyond abstract claims concerning rights individualism, helpfully illuminates the ascendancy of our current moral lexicon at a time of neoliberal economic governance. But it is too soon to guess further what they will look like.

At a more experiential register, Peter Rosenblum also offers some hard-hitting thoughts about human rights movements, especially in the critical periods of the 1980 and 1990s, flirting with a more collusive understanding of their relationship to neoliberal victory. I should say, to begin with, that I very much like Rosenblum’s mock outraged presentation of divergence between my two books on human rights history, because he offers a lot of eye-opening insight about how I spent the last decade even as he magnifies a shift in my thinking too much. Actually, for those who care, I don’t think the books are that different. One was about the surprising origins of international human rights in the 1970s, emphasizing discontinuity. But it didn’t claim everything is discontinuous. Some phenomena are simply not “sudden things.” The new book is about the continuity of egalitarianism through the 1970s, and the way that rights were long in its orbit until neoliberalism came. These arguments are perfectly compatible, even complementary. It is true that I now give more credit to the global south in “unlocking human rights law,” in part because I did not do a good enough job in this regard in earlier work — but mainly in order to show that “social rights” were marginal and unambitious as a global southern agenda item relative to its grand plan of global equalization.

But much more important are Rosenblum’s fascinating reflections on the limitations of (first-world) human rights activism in relation to more structurally-oriented movements. Brief as they are, Rosenblum’s reminiscences on this score are of tremendous importance and deserve a full telling, either by Rosenblum himself or some future historian. I just don’t see why they don’t fit with my much spottier reconstruction – or, to put it another way, why they amount to the allegation that human rights played any kind of serious causal role in the coming or consolidation of neoliberalism. “Sitting out the battle” is not a causal factor in outcomes unless one assumes first that soldiering in a given war is obligatory. Where I think Rosenblum is on exceptionally firm ground, by contrast, is in his suggestion that I should have attended, not so much to a (sometimes grudging) reorientation to the neglected norms of economic and social rights, but instead to the colonization by partisans of other campaigns of a human rights movement that had not served their cause. The critical variable, Rosenblum seems to be saying, is personnel rather than principle — even if the former had a massive impact on the latter. If this is a huge part of the story – and I agree with Rosenblum that it is – then the stress would have to fall not merely on why the human rights movement stood in need of reorientation, but on why actors originally outside it chose the risky proposition of moving inside it for the sake of their cause. Rosenblum is right that future research needs to dwell on this pivotal matter. Whether it would show human rights became more or less open to charges of “complicity” with neoliberalism as a result is interesting to think about.

Bias and Exclusion in the Present — and Future — of Human Rights

Paul O’Connell, pursuing his interesting project of saving human rights for Marxist politics, directs much of the fire in his post to a somewhat more detailed version of the claim that Not Enough is selective in the sorts of “human rights” it covers in its account of the recent period. Again, I am sure this allegation is true. But I doubt I treat the human rights movement monolithically. While I certainly have given Human Rights Watch some prominence in an op-ed directed towards Americans and in debates concerning how rich northern NGOs and their funders should proceed, it barely figures in my aforementioned chapter on human rights and neoliberalism, compared to a rather large range of forms of human rights politics. And two can play at the game of breaking down monoliths: Via Campesina, to take O’Connell’s privileged example, is itself not a bloc, and its northern members have a different relation than its southern ones to human rights and economic inequality alike.

O’Connell, while disclaiming causal implication of human rights movements in the neoliberal syndrome when they are promising, also says I do not assign it properly to “capitalism.” While neither he nor I has the space to effectively defend our contrary positions on this point, I would simply make two observations. One is intellectual: perhaps Karl Marx’s central mistake, in spite of its widespread revival in our day, was his belief in take-it-or-leave-it “systems” of production, exchange, and distribution, when both political history and legal theory since suggest that what we are really dealing with are makeshift and ramshackle assemblages with radically different outcomes for participants. If so, then it is not a shortcoming to focus on the malleability of rights precisely because study of political economy is about the malleability (for good and evil) of institutions. But the second point is strategic: I do not think we need to agree on the cause of accelerating inequality to think about how human rights have figured in and relate to it in so many national contexts.

For such reasons, I find most engaging Amy Kapczynski’s focus not on the past or present diversity of “human rights politics” (a concept that would need boundaries like any other) as on their emergent and future possibilities beyond the forms I have tried to historicize. No doubt, for clarity’s sake and out of ignorance I have underestimated these emergent forms, as the bulk of my book’s critics emotionally insist. Kapczynski’s argument is most persuasive, by contrast, in focusing more on what it would take to convert such emergent possibilities into full-fledged and powerful realities. (One confusion I have about overclaiming for the present, aside from the compelling fact that egalitarian concern remains marginal to all forms of human rights politics everywhere in the world, is that inequality continues to skyrocket in most places – suggesting that, precisely to the extent one credits existing movements with egalitarian purposes, one is likewise blaming them for abject failure.) In short, I definitely want to live in a world that Kapczynski envisions of egalitarian and structurally-oriented human rights movements. It is a small thing, but I simply want to reserve my own right to assess later whether they differ so profoundly, ideologically, and mobilizationally, from what we have known, that they will turn out to deserve another label.

For example, socialism.

Bias and exclusion, in short, are very serious historiographical charges, and while I plead guilty immediately, I also think it is critical to specify the worries to move productively into the next phase of assessing our morality and practice. And in the end, for all the faults of Not Enough, it may make most sense to indict the world itself for bias and exclusion — and to fix it for the sake of the future.

Thanks again!

Samuel Moyn is a Professor of Law and History at Yale University.

Visit our Not Enough Symposium page to read all the posts in this series.

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