A Powerless Companion: Human Rights in the Age of Neoliberalism' by Samuel Moyn in (2014) 77(4) Law and Contemporary Problems 147 comments
It is increasingly common to claim that international human rights law is a neoliberal phenomenon. And certainly the common timing is right: the human rights revolution and the victory of market fundamentalism have been simultaneous. In an important new essay, Marxist international lawyer Susan Marks compares Naomi Klein's The Shock Doctrine with my own recent history of international human rights, which emphasizes the 1970s as the moment of breakthrough for their ascent. Both histories, Marks observes, ascribe the newfound visibility of human rights to their promise to transcend formerly attractive political options east and west that seemed inadequate or even dangerous. "For her too," Marks acknowledges of Klein's treatment, "the human rights movement as we know it today took shape during the 1970s. And for her too, a defining characteristic of the new movement was its non-political creed." But for Marks, Klein succeeds by unveiling the neoliberal circumstances of human rights that have permanently defined their trajectory:
[S]he considers that a rather important aspect of the context for the movement's emergence is one Moyn omits to mention: the rise in that period of the neo-liberal version of 'private' capitalism, with its now familiar policy prescription of privatisation, deregulation and state retreat from social provision. To its influential enthusiasts then and now, that is the last utopia. .. . From Klein's perspective, then, the history of human rights cannot be told in isolation from developments in the history of capitalism."
(At this point Marks notes that Milton Friedman won the Nobel prize for economics in 1976, the year before Amnesty International was given the Nobel Peace Prize.)
Friedrich Hayek, the guru of neoliberalism, was as impressed a witness of the human rights revolution of the 1970s as anyone else. But it is interesting that, although occasionally an advocate of the constitutionalization of basic liberties like freedom of speech and press, he was in fact an acerbic critic of that revolution. In an interview, he described the spike in talk around human rights associated with Jimmy Carter's election to the American presidency as a strange fad, which (like all fashions) risked excess:
I'm not sure whether it's an invention of the present administration or whether it's of an older date, but I suppose if you told an eighteen year old that human rights is a new discovery he wouldn't believe it. He would have thought the United States for 200 years has been committed to human rights, which of course would be absurd. The United States discovered human rights two years ago or five years ago. Suddenly it's the main object and leads to a degree of interference with the policy of other countries which, even if I sympathized with the general aim, I don't think it's in the least justified.... But it's a dominating belief in the United States now.
All the same, since that moment of modish popularity, the staying power of human rights has led to many more positive visions of the essential harmony-if not identity-of economic liberalism and international human rights. The Marxist left, indeed, is hardly the only source of claims concerning the synergetic relationship between the advancement of market freedoms and human rights. If anything, it is much more common to promote neoliberalism as an agent of the advancement of human rights rather than to link them as malign accomplices.
Perhaps most notably, Ernst-Ulrich Petersmann argues that, although human rights law may exact some costs to efficiency, the general relationship between economic liberty and human rights is productive and strong, so much so that promoting the former and latter are not very different enterprises. He writes:
[E]njoyment of human rights require[s] the use of dispersed information and economic resources that can be supplied most efficiently, and most democratically, through the division of labour among free citizens and through liberal trade promoting economic welfare, the freedom of choice and the free flow of scarce goods, services, and information across frontiers in response to supply and demand by citizens.
There is, accordingly, little daylight between economic liberalization and the promotion of international human rights. And though Petersmann's optimism about near identity has certainly drawn their fire, mainstream international human rights lawyers generally envision a large zone of compatibility between their norms and standard market arrangements; they merely insist that the values of international human rights need to be kept separate so as to provide critical purchase on "globalization" if and when it goes wrong.' In the mainstream vision, international human rights can offer a toolbox of legal and other standards to guide, tame, and "civilize" an era of transnational market liberalization that has generally improved the human condition.
This article argues that it is far too soon - analytically in the one case and historically in the other - to sign on to either the Marxist or mainstream position about the relationship between human rights and neoliberalism. To the first position, much more analytical clarity is required to prove more than a simple case of conjuncture between the two phenomena that are sometimes too easily conflated. To the second, the record so far suggests that human rights seem fit to provide little, if any, help in remedying (let alone overturning) the development in the history of capitalism that its critics range under the heading "neoliberalism." In largest part that is because, although the record of capitalism in our time is highly mixed when it comes to the achievement and violation of basic human rights, its most serious victim is equality (of resources and opportunities alike) both in national and global settings-a value that the Universal Declaration of Human Rights of 1948 and the international human rights movements following in its wake do not even set out to defend." Since globalizing neoliberalism and international human rights emerged at the same moment and developed in parallel, there are undoubtedly connections to be found. But the interactions between human rights and neoliberalism are more subtle than Marxists so far claim. Indeed, the crucial connection is a missed connection: precisely because the human rights revolution has at its most ambitious dedicated itself to establishing a normative and actual floor for protection, it has failed to respond to-or even allowed for recognizing- neoliberalism's obliteration of the ceiling on inequality.
"Neoliberalism," especially in leftist discourse, often does massive work in diverse settings of argument, coming close through its overuse to functioning as a call for explanation rather than the real thing. And with its moral charge, it is sometimes deployed like holy water, sprinkled liberally for safety's sake to ward off evil. Although its rise as an item of discourse and apotropaic talisman reflects understandable anger, it is also symptomatic of explanatory confusion. Nonetheless, as David Singh Grewal and Jedediah Purdy indicate in their introduction to this issue, citing an inadequate shorthand for the complex of individualist thought, market solutions, and state retrenchment both domestically and internationally is better than omitting these topics altogether, as American legal scholarship has so far done to its detriment.
But looking beyond America, the prominence of neoliberalism as a category in scholarship about human rights means that the exact nature of the linkage of the two requires as much attention as the omission of the former from thinking about the latter. "Human rights, as with power and money, became a means to an end of globalizing neoliberal democracy," Stephen Hopgood remarks in his much noticed recent study, in a commonplace observation." And yet, so far, Marxists such as Wendy Brown, Susan Marks, and others have offered indeterminate and unsubstantiated claims that do not suffice to plausibly elevate the chronological coincidence of human rights and neoliberalism into a factually plausible syndrome. For there is a long way from historical "coincidence" or companionship - which there certainly has been between neoliberalism and the human rights phenomenon-to actual causality and complicity. "We would do well to take the measure of whether and how the centrality of human rights discourse might render ... other political possibilities more faint," Brown has argued in a classic indictment at the center of the recent commentary. Even this displacement theory, about which Brown explicitly invites further reflection rather than offering a strong conclusion, is weak compared to the much stronger accusation of complicity that Brown and others simultaneously offer."
Though it seems likely that some displacement of other schemes of justice has indeed occurred thanks to the rise of human rights, I do not think a much stronger claim is likely to work. To say that human rights were coincident with or part of the context of neoliberal victory is not only not to say more-it is also not to say much. In particular, it is not to say that neoliberalism has required human rights to make its way in the world-or vice versa. Picayune an agenda as it might seem to specify how weakly related the ascent of human rights appears to the market fundamentalism of our time, I suggest that the finding of only a tenuous relationship between the two has substantial ramifications for judging human rights and their spectacular rise in the last few decades - and thus for assessing the mainstream position.
Excusing human rights from causally abetting the free market victory of the neoliberal age is, after all, no defense of their prominence today. It is certainly worth considering the possibility that human rights provide some sort of moral leverage against neoliberal developments. However, even if the value of the normative guidance that human rights provide is undoubted, the trouble is that it amounts to little more than a set of mostly rhetorical admonitions. Worse, by focusing on a minimum floor of human protection, human rights norms prove inadequate in facing the reality that neoliberalism has damaged equality locally and globally much more than it has basic human rights outcomes (which, in some cases, it may indeed have advanced). It is hardly less distressing, but, so far, much more justifiable to conclude that human rights have not made enough of a difference in the short timeframe and global space they share with their neoliberal frere ennemi. They have been condemned to watch but have been powerless to deter. Added to the fact that human rights at least as canonically established have nothing to say about the principal value of equality that neoliberalism threatens, it seems hard to conclude that they are a useful resource in response.
If my perspective in between Marxism and the mainstream is adequate, it also follows that there is not much critical or political value in opposing human rights out of understandable outrage at neoliberalism. Instead, the economic transformations of the current era force a heavy burden on those concerned to formulate or to find a more serious analytical account of economic transformations and to offer more robust political resistance than they have marshaled so far. And since human rights idioms, approaches, and movements are unlikely to offer either - and, indeed, do not strive to do so when it comes to inequality - they should stick to their minimalist tasks outside the socioeconomic domain, in part to avoid drawing fire for abetting the stronger companion of their historical epoch.
This article is structured to reach these conclusions by examining a range of Marxist positions on the relationship between neoliberalism and human rights, beginning with Karl Marx's own theory of rights, both because of its intrinsic importance of and its frequent application to current debates. After concluding that this theory offers only initial starting points for analyzing international human rights and the neoliberal era of capitalism alike, the article's next part turns to the late-twentieth-century history of the companionship of the two, tracking their contemporaneous inceptions to examine their harmony and dissonance. The final part of the article stresses that human rights offer a minimum of protection where the real significance of neoliberalism has been to obliterate the previous limitation of inequality. Although human rights idioms, regimes, and movements have valuably formulated one approach to that floor, they have so far done little or nothing to build it, even as they have surged discursively across the same era as the ceiling on hierarchy has been simply blown away.
'Human Rights and History' by Stefan-Ludwig Hoffmann in (2016) 232(1) Past & Present 279–310 comments
Historians are the embalmers of our political and moral convictions. As soon as historiography begins to take an interest in an issue, we can be certain that it no longer possesses a self-evident presence in our society. Some questions and problems only become objects of history after society has become historically conscious of them. The history of workers boomed in the 1970s, for example, when industrial labour was in the process of disappearing, just as memory and its sites became a mode of inquiry for historians in the 1980s precisely at the moment when lived memory of ‘the age of extremes’ (Eric Hobsbawm) was disappearing together with its last generation.
The issue of human rights has by no means come so far, even if a certain historicizing sobriety has now set in among activists. On the contrary, as I have argued elsewhere, human rights are still something like the doxa of our times: those ideas and sentiments that are tacitly presumed to be self-evident truths and not in need of any justification. Who is opposed to human rights today? And who of those born before the late twentieth century would like to be reminded that earlier he or she had had little use for the concept of human rights? At least in the Euro-Atlantic world today the resonance of human rights is so universal and unassailable that in principle the only thing still debated is how they can best be realized on a global scale. We feel distressed and melancholic about the continued violation of human rights in our time but do not wish to abandon the concept altogether.
And yet it is remarkable that historians have begun to concern themselves with human rights only recently — essentially only since the late 1990s. Still, in the major historical syntheses of the past two decades, for instance in the interpretations of the twentieth century by Eric Hobsbawm and Tony Judt or of the nineteenth century by Jürgen Osterhammel and Chris Bayly, or of the rise and fall of empires by Jane Burbank and Fred Cooper, human rights have appeared only at the margins, if at all. Most historians of genocide, refugees, nationalism, slavery or humanitarianism (including Pamela Ballinger, since 2011 the first professor of the history of human rights in the United States) do not consider themselves to be part of the new field of human rights history. This is about to change, so much can be said already. In recent years we have apparently arrived at a new present, an era of ‘global governance’, ‘cosmopolitan ethics’, ‘transnational law’ and ‘humanitarian interventions’, for which we seek anchoring points in history, but which begins at the same time to historicize itself. As times change, so does the past.
The new historiography of human rights can be divided into these two tendencies: one that searches for stabilizing points for the present and finds them in the longue durée evolution of human rights (deep history) and one that seeks to demonstrate in revisionist fashion the instability of such universalist narratives and thereby the historicity, that is, the transience, of our political and moral convictions (recent history). Conveniently, these two tendencies are grouped around two path-breaking books: Lynn Hunt’s Inventing Human Rights and, as a counterpoint, Samuel Moyn’s Last Utopia.
Put briefly, Lynn Hunt argues that in the eighteenth century human rights gained in currency because they were based on new experiences and cultural practices, a new emotional regime, the core of which was ‘imagined empathy’. From this new emotional regime, which is evident, for example, in sentimental, epistolary novels as well as in the moral campaign for the abolition of torture beginning in the 1760s, a new legal regime emerged during the French Revolution that in turn followed its own cascading logic: once human rights had acquired self-evidence, they could no longer be removed from the world, and unfolded their revolutionary potential during the nineteenth and twentieth centuries. Reading epistolary novels or accounts of torture had physical effects that translated into ‘brain changes’ and ‘came back out’ as new concepts of individual human rights. Hunt acknowledges the paradoxes of human rights as politics, that rights claims emerged in tandem with revolutionary violence, but insists that their self-evidence ultimately transcends these historical mutations: ‘You know the meaning of human rights because you feel distressed when they are violated’.
Samuel Moyn, in contrast, objects in Last Utopia that we can speak of human rights in their current form, as individual rights granted to every person even beyond the nation state, only since the late 1970s — since Jimmy Carter and disco, as one unhappy reviewer summarized. Prior to this, human rights were tied to the nation state and were thus essentially citizenship rights. As the title suggests, human rights became, according to Moyn, the last utopia, especially for activists in the recently established human rights non-governmental organizations such as Amnesty International, following the failure of other global emancipation ideologies such as socialism and anti-colonialism. With this brilliant polemic, Moyn provides an interpretative framework for a series of more recent studies and ongoing research projects of a new generation of historians investigating the ‘breakthrough’ of human rights to a global morality in the 1970s.
This essay is intended as a historiographical intervention in this debate and develops three interconnected arguments that seek to determine the place of human rights in the crises and conflicts of the recent past. First of all, I shall push the historiographical revisionism of Moyn and others even further and argue that we can first speak of individual human rights as a basic concept ( Grundbegriff ), that is, a contested, irreplaceable and consequential concept of global politics, only in the 1990s, after the end of the Cold War. In the 1970s and 1980s ‘human rights’ coexisted and overlapped with other moral and political idioms like ‘solidarity’ and included competing notions of rights, which were in many ways still indebted to the legacies of socialism and anti-colonialism, as in, for example, the transnational movement against apartheid. It was only after the end of the Cold War that ‘human rights’ emerged as an explanatory framework for understanding what had just happened. Human rights idealism, I shall argue, is not the cause but the consequence of the epochal ruptures of the late twentieth century.
However, this does not mean, secondly, that ‘human rights’ have no deeper history; here I agree with Hunt and others. On the contrary, in many respects the human rights idealism of the 1990s appears as a strange return of the enlightened liberalism of the late eighteenth and the nineteenth century and its critics (of Immanuel Kant and Carl Schmitt, the two sources of inspiration and antipodes of the political and moral discourse of the 1990s), as does the enthusiasm for cosmopolitanism, civil society, free trade, humanitarian interventions and moral justifications of war within the new world (dis)order. I shall suggest, therefore, that we should bring the long nineteenth century back into human rights history, especially the histories of social and economic rights, women’s rights, humanitarianism and international law, to assess more precisely what is new about the human rights idealism of the late twentieth century. Conversely, I shall discuss which previous notions of international human rights were replaced or bypassed in the 1990s, especially collective rights claims that were of particular importance for the so-called Third World UN from the 1950s to the early 1990s. The unrecognized irony is that human rights have become not less but more Eurocentric in recent years.
Human rights are not a new (and certainly not the last) utopia. Rather, the question is whether the human rights idealism of the Euro-Atlantic world at the end of the twentieth century can be seen as utopian at all. It is other motifs that appear to be new: the self-evidence of individual human rights, which stand above the rights of states; the evocation of present and past suffering as a mobilizing source; and, finally, the global claims connected to human rights as well as the media presentism of their failed realization, that is, the ubiquity of crises and the state of emergency as a matter of course. The ‘endtimes of human rights’ (Steven Hopgood) are the global here and now, not a utopian ‘elsewhere’. From this follows, thirdly, my concluding suggestion that the rise of human rights as the crisis semantics of a new fin de siècle can be understood in part as a result of the fracturing of the modern time regime, that is, the ways in which past, present and future are reflected in our experience of time. Not the future (or an idealized past) serves as the vanishing point, but rather the present, which appropriates past and future to validate the immediate. The new historiography of human rights also belongs, I think, in this context. It invents for our times a history of human rights conceived as individual and pre-state rights which are read into the past and future as if without alternatives.
