Lately I’ve been hoping that the sense of impending doom I feel at the lengthening list of things-that-are-worse-than-they-used-to-be might be at least somewhat mitigated if I could only identify the way(s) in which that list could be boiled down to one – okay, maybe two or even three – big thing(s). Neoliberalism lurks as a strong contender, hence a search for articles I like – lots – that trace this approach, whether at the macro, mezzo, or micro level. There are many such articles, but what I’ve chosen to highlight here is from Vol. 77 of Law and Contemporary Problems, a special edition on law and neoliberalism. Guest Editors Jedediah Purdy and David Singh Grewal explain, with charming delicacy, in their introductory essay, “….the term ‘neoliberalism’ may be unfamiliar to some American legal audiences…[but] it is a common part of the scholarly lexicons of many disciplines and is widely used elsewhere in the world, notably in Latin America and Europe.” (Assuming they are right, here is an attempt at Neoliberalism in a Nutshell: In contrast to the more social-liberal approaches many Western governments followed just after World War II, neoliberalism emphasises the withdrawal of the state in favour of laissez-faire, market based organization, with characteristic policies aimed at privatization, deregulation, and elimination of social benefits regimes). Purdy and Grewal go on, step by step, to build the case for legal scholars in the US to pay some attention to neoliberalism as a phenomenon and a zone of scholarship.
The piece I’m talking about here is Samuel Moyn’s A Powerless Companion: Human Rights in the Age of Neoliberalism (it occurs to me that the title might not help you understand why I thought this would assist my sense of impending doom). In this piece, Moyn considers three themes – global capitalism, the human rights paradigm, and rising economic inequality. He describes the simultaneous burgeoning of the first two in the 1970’s, and the relatively more recent availability of empirical data that document the third – all noted by numerous other scholars – before arguing that the “crucial connection” between human rights and neoliberalism “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.” (P. 151.) He positions his insights as in between Marxist and mainstream, concluding in part that there is no point berating human rights for this failure to engage – rather, human rights should be encouraged to keep out of this zone, lest it be seen as a collaborator. (Id.)
The article is divided into four parts. The first asks, essentially, “What would Marx say?,” positioning Marx’s (shifting) recognition of the comfortable fit between human rights and exploitation as fixed within the state, even if some later iterations might have allowed for recognition of phenomena now established but then barely imagined. The second part traces the concurrent rise of neoliberalism and international human rights regimes. Recognizing the shared “negative conditions” and “ideological building blocks,” Moyn asks if there’s anything beyond these basic similarities. In doing so he creates a research agenda, calling for more (detailed, specific) work on “how exactly to frame the relationship of the human rights explosion with neoliberal victory” (P. 159). He also suggests a conclusion based on what we know now, one which holds the “…prestige and prominence of international human rights to be symptomatic of a loss of structural accounts of social relations without their being causally responsible or morally culpable for it.” (Id.)
In part three, Moyn moves to consider the actual impact of human rights, building the case for his mildly but clearly stated skepticism about both the power of human rights and any causal connection between human rights and neoliberalism by looking at judicially enforced social rights and the relatively newer engagements of human rights in both international trade law and corporate social responsibility. Part four concludes by repeating that conclusions about the complicity of human rights are premature – but their inadequacy in the face of global market fundamentalism is certain. We must look elsewhere for a “threatening enemy,” a peerless champion to supplement (not replace) our powerless companion.
I liked this article for a variety of reasons. Here are just three. First, I teach students who are, for the most part, true believers in human rights. They came of age in the human rights era and most of them seem to see these rights as natural parts of the legal landscape, and definitively good and just (not to mention something inherently in the province of law and lawyers). This article is a careful incision into that thinking, calibrated to engender critical doubt while at the same time offering the language and politics of the neoliberal critique. I look forward to offering it to my students. Second, Moyn has some deftly compact turns of phrase in this very readable article: “In an era in which human rights norms and movements are frequently overloaded with expectation, the best conclusion is that a Band-Aid is not an adequate response to a charnelhouse (even if Band-Aids have their uses).” Finally, I liked this article as a gateway drug. Socioeconomic inequality, in various forms and measures, is the defining feature of these times. I cannot imagine there is a scholar of law who can afford to ignore neoliberalism, the empirical measure of its programs, or its critics. For people not already deeply engaged with this kind of scholarship, Moyn is a great place to start.