What Comes After Not Enough?

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.

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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.

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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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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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Economic Human Rights, Not Tough Policy Tradeoffs

Martha McCluskey —

According to conventional law and economics wisdom, problems of economic inequality are best solved with targeted redistributive spending, not universal human economic rights. A political economy perspective suggests the opposite: that legal rights are crucial for economic justice.

Orthodox law and economics tellsus: all rights have a cost.  Law allocates economic gain, but cannot generate it, in this view.  From this premise, any new economic rights aimed at supporting those who are disadvantaged must come at the expense of some other economic gain.  For example, a universal right to affordable health care would simply mask an inevitable tradeoff in public and private spending:  fewer resources for education or jobs.  In addition, in this logic, an economic entitlement to receive basic human support will replace market discipline with incentives for waste, reducing economic resources overall.

What orthodox law and economics doesn’t tell us:  all costs have a right.  That is, any costs associated with new economic rights arise not from essential economics, but instead from contingent legal and political arrangements. Particular legal and political regimes produce, organize and limit access to human needs like education or health care. Law itself shapes the economic forces that appear to be disrupted when law re-allocates rights to advance general human needs.

On the question of health care, for example, a complex system of legal rights and institutions already protects economic gain for some at the expense of health and economic security for others.  Legal systems distributing risks and rewards in health care include patent rights, insurance regulation, corporate governance rules, antitrust law, criminal law, and tax policy. Moreover, these legal rights are not firmly settled or self-evident, but instead are continually questioned and modified, especially in response to lobbying, litigation, and advocacy by industry interests.  New rights to egalitarian economic support can similarly re-arrange economic gain and loss as a legitimate and beneficial function of democracy.

Further, we should not presume human economic rights amount to zero sum transfers or costly economic distortions.  That conventional law and economics thinking rests on the myth of an essential market order that transcends law and politics, thereby closing off analysis of how re-structuring the market could generate far better economic conditions.  But a more complete law and political economy view recognizes that entitlements do not come at the expense of naturally productive market activity; instead, entitlements generate and govern market production. New legal rights can give people new power to resist existing market constraints, and that transformative power can lead the economy to new levels of prosperity and stability. Continue reading

Tax policy is human rights policy

Zak Manfredi – 

“[T]ax policy is…human rights policy.”

– Philip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights

On the eve of December 1, 2017—as members of the United States Senate prepared for a late night of political contestation—Senator Bernie Sanders made the Republican tax bill a human rights issue. Senator Sanders drew attention to UN Special Rapporteur Philip Alston’s then-ongoing investigation into how “extreme poverty” implicates human rights in the United States. Alston later met with Senator Sanders, and, after concluding his visit, castigated the Republican tax legislation for its potential to exacerbate already historic levels of economic inequality and extreme poverty. In the wake of the finalization of the tax lawone of the greatest tax transfers of wealth to the rich in modern times—numerous activists also decried the human rights implications of radical economic disparities. Alston’s trip to the United States might nevertheless have seemed controversial to other observers precisely because it treated extreme economic inequality and poverty as human rights concerns. As a formal matter, the United States has never ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), and even its assent to the International Covenant on Civil and Political Rights (ICCPR) consisted of many formal reservations that render the treaty almost entirely non-justiciable in US courts. More generally, as Alston’s preliminary report noted, legal institutions in the US have been notoriously reluctant to apply the language of “rights” to address social and economic justice claims.

6720.jpgFor contemporary scholars and activists invested in challenging extreme inequality and concentrations of corporate power, however, human rights may prove controversial for a different reason: the long-shadow of the left critique of rights. Since at least Karl Marx’s critique of the French Declaration of the Rights of Man and Citizen, many left thinkers have been suspicious of the conceptual foundation and practical implications of human rights.  For Marx, the Rights of Man helped underwrite a regime of private property law that stifled “genuine human emancipation,” while simultaneously absolving the state from addressing social and economic domination in the sphere of “civil society.” On this account, just as the state recognizes the formal equality of all persons, it simultaneously abdicates responsibility for private forms of discrimination and social domination—rights to hold private property offer no comfort to those without means to acquire food, shelter, or housing. More generally, leftists have long observed that a narrow focus on formal equality obscures and ratifies substantive inequalities. Indeed, many subsequent critics—including notably early writings of the Critical Legal Studies Movement—contend that the promulgation of legal rights can exacerbate conditions of oppression. Contemporary scholars note how rights claims are invoked to prevent the redistributive taxation of privately held capital, to protect the rights of corporate entities to “speak” as in Citizen’s United, and to weaken the power of labor unions with “right to work” laws.

Today, thinkers have updated these critiques to consider how human rights law can function as a form of “neoliberal governance”—these critics stress that complying with human rights norms often requires states to make certain “reforms” that align with political and economic agendas that favor “free market” principles. As Naomi Klein observes, the neoliberal economic programs championed by Reagan and Thatcher spread across the globe during the 1970s and 80s at precisely the same time when international human rights NGOs also flourished. Jessica Whyte’s astute analysis argues that even the social and economic human rights frameworks of the twentieth century were designed to be “flexible” enough to allow for the implementation of new forms of neoliberal economic governance. While I cannot do full justice to these critiques in the space here, it is important to note that they ultimately rest on a set of concerns about the kind of normative vision of the “human” that human rights laws underwrite. Anthropologist Talal Asad, for one, suggested that “the historical convergence of human rights and neoliberalism may not be purely accidental,” since human rights notions of “self-ownership” and “self-preservation” align with neoliberal economics’ understanding of human beings as pieces of “human capital” always striving towards greater self-augmentation. Consider, for instance, whether a theory of human rights imagines human being as, in Marx’s critique, “egoistic individuals” preoccupied with holding and consuming private property, or in contemporary terms, as entrepreneurial creatures always seeking to maximize their individual capital and credit-worthiness; when such a theory of human rights is implemented in practice, critics worry that the legal protections it offers will focus primarily on creation of “free markets” and justify policies that intensify social and economic stratification. Perhaps more distressingly, left critics of human rights also worry that particular rights regimes encourage and produce different self-conception among rights holders—if a human right to private property or wealth accumulation is enshrined in law, it helps establish a framework for how people evaluate their own, and each others, life projects. Continue reading