Political Courts and Democratic Politics

Samuel Moyn —

The nomination of Brett Kavanaugh to the Supreme Court is on the knife’s edge. The stakes are higher than for the confirmation of any American judge in our lifetimes. For MN SUPREME COURT WIKIthat reason alone, it is probably not a good time to stage a general debate whether and in what sense law is something more than politics by other means. But I would conduct it by separating out the sort of high stakes judicial appointments and decisionmaking that has attracted everyone’s interest in the past few weeks.

Low stakes judicial decisionmaking is inevitably political too, obviously. Generations of critical work has established that low stakes judicial process is shot through with politics, and generally helps reproduce illicit structures, especially through criminal and private law. But if that debate will always deserve to continue, one can legitimately conclude that high stakes judicial decisionmaking is different. That it is politics by other means is much more straightforward and undeniable, and the primary question is how progressives should think about it.

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Bias and Exclusion in Human Rights History

Sam Moyn  –

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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.

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Human Rights and Political Economy

Did the Human Rights movement fail?   In his new book, Not Enough: Human Rights in an Unequal World, Samuel Moyn responds in the affirmative. He argues that the international human rights movement narrowed its agenda to address the sufficiency of minimal provision, leaving the movement impotent in the face of rising global inequality and attacks on social citizenship at the level of the nation-state. Without indicting the movement for the rise of neoliberalism, he nevertheless highlights the historical coincidence of international human rights and “the very economic phenomena that have led to the rise of radical populism and nationalism today.” 

The question of how we got here, and which legal tools might beat back the current crisis in international human rights, animates our first LPE Blog discussion series. Encouraged by many requests from readers, we’re working to develop a more transnational conversation on the blog, as well as more sustained debates and discussions of key issues.  The series kicks off today with an introductory piece by Sam Moyn, and will be followed by responses to Not Enough from historians, political theorists, legal scholars, and human rights activists. Let us know – in the comments, on Twitter – what you think!

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Samuel Moyn –

I decided to take another stab at writing a new history of human rights ideals and movements, because a few critics persuaded me that I had left the all-important context of political economy out in my first try.

Now that Not Enough: Human Rights in an Unequal World is out, it is worth explaining how I proceeded — not to forestall new rounds of criticism, but to help make sure the rise of human rights law in our time is part of the broader venture in law and political economy that colleagues and friends have launched on this fantastic blog.

The deepest question the broader venture of this blog raises — like the narrow venture my book pursues — is how best to think of law in relation to political economy. How precisely does law help organize the social world, and as what kind of causal driver or constitutive feature in comparison with others? The question matters not merely for the sake of better understanding but also, for those who care, to locate plausible levers of change. And law, of course, is just one example of something to theorize in relation to political economy. At stake in my own attempt is a history of ideals and movements, too, but they all require a theory explaining their place in the making and unmaking of social orders.

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