Constraint, Flexibility, and Human Rights

Samuel Moyn
10 July 2018

This article is Samuel Moyn’s response to the roundtable exchange on his new book, Not Enough (Harvard University Press, 2018).

 

In our interesting moment, Not Enough offers nothing like a definitive statement of how to connect human rights with distributive ideals and political economy. Instead, it is supposed to be a framework for current debate; and both alternative perspectives and empirical research will overthrow it sooner rather than later. I am deeply grateful to the commentators for their exceptionally interesting engagements. Julia Dehm, Stephen Hopgood, Justine Lacroix, and James Sparrow have raised a number of interesting challenges that point beyond the book’s limited horizon. Since nearly all of these challenges are plausible, I will focus on the other ones. Here goes.

 

All four commentaries provide a reminder of the central point of my work on human rights all along: to show that they do not have a natural and necessary form. I am as opposed to liberals who believe that human rights unfailingly fit into a system of broader fairness as I am to Karl Marx who—in “On the Jewish Question” at least—consigned them to oblivion on grounds of their inflexibility and unsalvageability as ideals of justice. It does not follow that human rights are infinitely elastic but, as Dehm observes, the interesting debates to have are about what bigger forces have impacted rights claiming and rights mobilization (and will continue to do so).

 

Otherwise so different from Marx, Justine Lacroix would like contemporary rights politics to be less flexible in their implications than they are. Lacroix never really confronts the fact that the age of human rights—which she thinks is now over—coincides increasingly with class inequality.

 

Lacroix explains that “conceptually,” a commitment to sufficiency necessarily translates into a commitment into egalitarianism. I believe there are circumstances in which Lacroix’s optimistic scenario that sufficiency and equality interrelate holds true—and in Not Enough I demonstrate that it was a plausible to think it was playing out in the past, as T.H. Marshall’s class work in the 1940s shows. But I also think that human rights in general and social rights in particular have since then become untethered, both conceptually and institutionally, from egalitarian justice.

 

Lacroix is, of course, right (as I note myself) that the more generous basic entitlements become, the more redistributive in consequence mechanisms for their fulfillment may turn out. But there are two provisos. It remains an embarrassment that nothing “conceptually” in human rights politics to date is directly egalitarian, perhaps with the exception of the “highest attainable standard” in the singular right to health (and then only in theory). Second, and more importantly, systems of social protection do not necessarily work and in fact have rarely worked in egalitarian ways. Far more frequently, they have involved collective insurance against risk rather than asking the rich to take responsibility for the risk. As Baron W.G. Runciman once worried in response to Marshall, it is perfectly plausible and indeed soberingly common that social rights can help generate more social inequality, not less. Not only is there not an automatic link between sufficiency and equality, but most contemporary evidence suggests a disjuncture between the two. If Lacroix’s response is that the wrong version of sufficiency has been enthroned in our day (though I hardly confuse subsistence and sufficiency), one is forced to observe that what makes it “wrong” is that it is imagined and institutionalized without an egalitarian politics. In any case, whether sufficiency (including social rights) are egalitarian in theory or practice really does depend.

 

Lacroix chides me for abstraction but—as Marx might have worried—herself wants to vindicate a connection between human rights and equal outcomes on a rather abstract plane. The only professional historian in the mix, James Sparrow is of course on firm ground in indicting the abstraction of my account according to our common disciplinary standards. True, my framework seeking out ethical commitments to sufficiency and equality (or both) in the past is intended to be a clarifying help, but it undoubtedly distorts as much as it enlightens. The only defense has to be that it provides a good amount of enlightenment, as well as a chance to engage with other disciplines (as in this forum) in a fashion that the professional scruples of historians rarely allow them to do.

 

I concur with Sparrow both that the institutions of the welfare state in its various forms and locales utterly matter, as a massive literature has explored. And when it comes to the United States, Sparrow’s own classic Warfare State demonstrates the importance of military buildup as a form of—or substitute for—welfare, which to the extent it surged in the middle of the twentieth century primarily benefited white males. I would not want to read militarization out the picture of the rise of welfare states (especially the American one), any more than I would their conservative origins, gendered and racial exclusions, or only somewhat moderated inequalities. In agreement with Sparrow’s fair call for appreciating the roles of war and security as constituent features of many historical welfare states (not least the American one), I can only respond that my goal was to make sure not to reduce such states to their flaws. After all, the ethical principle of fair shares that welfare states incarnated—to some extent or other and for a selective set of beneficiaries—shows that Not Enough or any other egalitarian book can go beyond recording aspiration to prove achievement in the past for the sake of imagining a much better future attempt at institutionalizing fairness. For all their outrageous exclusions and unholy origins, at least welfare states included somebody in a materially egalitarian project. This then poses the burning question of whether we can produce our own circumstances for such a project without depending on militarization as well as the many other malign features of class moderation of the past.

 

I am less certain that I am guilty, as Sparrow later suggests in his brilliant and subtle engagement with the book, of downplaying the necessarily democratic character of any ethically plausible egalitarian politics. He is, of course, persuasive both about the need for that emphasis, and that it is not the main topic of my book. But it is present from the first, when I start the first chapter with social democratic historian R.R. Palmer wondering about whether the Jacobins were democrats or dictators, when I show that the construction of social rights in the middle of the twentieth century turned centrally on whether welfare states could transcend their “totalitarian” associations, and when I state clearly in conclusion that nobody wants egalitarian social justice at the price of individual and collective freedom. That China has saved hundreds of millions from “extreme poverty” (admittedly in the guise of placing most of them in the barely improved next category up of poverty) is a point of great importance, notwithstanding the bitter critique of advocates of democracy and human rights level at the regime.

 

Clearly, Sparrow is right that even more material equality (which the Chinese definitely have not provided lately in their great age of poverty remediation) could never provide excuses for despotism. Distributive fairness without democratic control is itself “not enough.” But the reverse is also true, and advances in democracy by no means lead to advances in distribution. Alexis de Tocqueville (guru of this blog) did not hesitate to acknowledge that democracy would not automatically confer class equality alongside the moral equality he saw as the defining feature of modern politics. “On searching to the bottom,” he wrote, “aristocracy [could] naturally spring out of the bosom of democracy.” For that reason, “the friends of democracy should keep their eyes anxiously fixed” on the possibility of democracy in name and aristocracy in fact.

 

The main objection to Not Enough’s claim that human rights have surged in the age of the victory of the rich has prompted so far, voiced by Julia Dehm in her excellent contribution here as well by in Lacroix’s response in more theoretical from, is that the book indicts the selectivity of our embrace of human rights while engaging in lots of selectivity itself. Other versions of human rights exist now, this objection goes, and even more variety could explode in the future, both in conceptually defining norms and in mobilizing to advance them.

 

Again, I have no trouble with the conceptual form of this objection since, as Dehm notes, the whole point of my book (in contrast to Marx’s youthful essay) is to demonstrate the unanticipated flexibility of human rights, such that they could serve alternative distributional politics than those that prevail today. No more than I have trouble agreeing that sufficiency could serve equality do I have trouble concurring that human rights could prosper in another economic ecology than the world has suffered lately. The trouble with excessive enthusiasm about this possibility is that the record is unencouraging. Marx was at least correct to insist that whether such new forms of rights emerge, and redefine the very meaning of activism, will ultimately depend on what broader system of production, exchange, and distribution emerges as its host.

 

Since the book is first and foremost a history, I stress why the past seems unencouraging—to avoid any easy overestimate of flexible potential or reality of human rights (conceptually or mobilizationally) until new external factors are introduced in the future. It is a popular slander, to begin with, to suggest that my historical case rests on the fortunes of Amnesty International and Human Rights Watch, however graphically illustrative of my claims about the negligence of distribution and especially egalitarian distribution in our age that those two groups have been. For my book covers a huge profusion of forms of human rights activism and law, notably in the last chapter where I deal—however inadequately—with all parts of the globe as well as intergovernmental and governmental policy alongside the evolution of non-governmental mobilization. The same goes for my lengthy treatment of the judicialization of social rights or the victory of neoliberal feminism and the ascendancy of campaigns for status equality as material equality exploded.

 

Not least, I incorporate Dehm’s own emerging fantastic research on United Nations attempts to reframe human rights in the age of the New International Economic Order during the 1970s. She and I probably only differ in how important we think the United Nations was then and is now. As I see it, even for progressive forces with distributively radical visions of human rights in the period that I address in a pivotal section (121-6), it was obvious that the United Nations had proved a deeply inadequate custodian of these principles. For global southern progressives as for distributively mute northern activists, human rights had gone to the United Nations to die, and had to be saved from the organization if they were going to be returned to plausibility. The fact that at the same time as most advocates of the NIEO scanted rights talk, human rights observers elsewhere in the United Nations engaged with distribution (as Dehm shows) is important—but how important?

 

Similar remarks apply to the widespread meme in response to my book that historical or contemporary human rights activism is already teeming with commitments to distributional equality. You don’t have to center your account on Human Rights Watch to be skeptical of this claim, which appeals to a late-breaking fact to the extent there is evidence for it at all. Not that there is no evidence in the annals of egalitarian rights movements, but sometimes exceptions prove the rule. Honestly, I would not want to burden recent or current human rights activism with an egalitarian agenda (whatever the press releases may say), because it would only go to show how badly it has done as inequality has increased in most national settings since 2008 and continues to do so.

 

It is a tempting debater’s trick to introduce Dehm and Lacroix to Stephen Hopgood and let them cancel each other out. I probably should not indulge in it, however good it feels to come off as a moderate in a debate in which extremists seem to make equal and opposite claims. Where Lacroix insists human rights are necessarily part of a script for justice, and Dehm emphasizes alternative forms and future possibilities, Hopgood reanimates Marx’s thesis of inflexibility and unsalvageability. And he is mostly persuasive that the emotional support thrown to human rights may allow enthusiasm to crest, but it normally turns out to far less disruptive than one hopes, like waves crashing indefinitely upon a rocky shore.

 

In his own work, whose arguments he repeats here, Hopgood has made a powerful case that human rights are fundamentally neoliberal, due to their funding base (even in the age of a new global southern activism) and above all their professional sociology. Enjoyably overstated as his claims are, however, they could not even if true back up Marx’s attempted proof of the inflexibility of rights politics, because there is simply too much to show that the reverse is true. Though Hopgood acknowledges my attempt in the new book to give full play to the history of economic and social rights, including their starring role in contemporary activism, it is simply unclear what he has to say about them. Is economic and social rights activism also neoliberal? Does it serve the interests of rich funders as straightforwardly as the historic emphasis on civil liberties has done? Where I do agree with Hopgood is in thinking how doubtful it is that human rights activism in anything close to its current form could become egalitarian in its intent and especially in its outcomes. But that hardly means that, as flexible principles, human rights should not survive our current neoliberal straits in the midst of a new politics of fair distribution.

 

I close by engaging with Lacroix’s fair point that we are no longer in the age of rights, but in an age of backlash against them, and that accelerating populism means the time is wrong to complain about the limits of cosmopolitan norms. But I would rather draw the lesson that such norms, like human advocacy across borders, depend on conditions they cannot guarantee. If we have learned anything, it is that unless human rights are linked to a broader distributive project, and a politics that will win the affection of electoral majorities sooner or later, they will face limits no critic will need to point out. The passing of the age of rights (if that is what is going on, for it does not seem that many elites have wavered much in regards to standard views I have challenged) is thus the perfect time to remember that, when the circumstances present themselves, there is no politics of rights that can survive for long if it is not part of a project of fair shares—no such thing as a society that is open for long unless it is equal too.

 

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