Rewriting Human Rights

Several years ago, The New York Times published an Op-Ed by Pharrell Williams, the singer-songwriter whose mega-hit “Happy” topped the charts in 2014 and whose accompanying music video has now been watched by more than a billion people. “Happiness,” Williams announced, “is a human right. It’s neither a luxury nor a triviality. It’s given to you at birth, but you must recognize its existence. It’s as important as the breath of air in your lungs.”¹ Readers of the Times could rejoice: their unalienable right to the pursuit of happiness was now a right to happiness itself.

The history of human rights has often been told as a series of such upgrades. One kind—call it horizontal—involves enlarging the circle of who counts as fully human, from white male property owners to all white males, and subsequently to religious minorities, racial minorities, women, the disabled, and sexual minorities. Another upgrade—call it vertical—involves expanding the catalog of rights themselves. This story usually begins with the right to private property and the classic civil and political freedoms of speech, assembly, worship, and voting, before embracing “second-generation” social and economic rights to employment, education, housing, and health care, followed by “third-generation” group rights to collective self-determination, access to natural resources, cultural heritage, peace, and clean air and water. New upgrades in both dimensions continue to emerge: animal rights and children’s rights, the right to health (not just health care), identity, and now, happiness.

Human rights have been fruitful and they have multiplied. But today the family tree is showing signs of rot. Well before the arrival of an American president who treats them with contempt, human rights had come under suspicion as the latest version of the West’s civilizing mission, as window dressing for military aggression, or simply as ineffective instruments of political change. Even in cases of the most egregious violations, international human rights courts often take a decade or more to render justice to a relatively small number of defendants. Of those indicted for crimes against humanity during the Yugoslav wars in the 1990s, more than a dozen, including former Serbian president Slobodan Milošević, died before the conclusion of their trials. The extrajudicial technique of “naming and shaming”—publicly calling out perpetrators of human rights violations—also shows symptoms of decay, insofar as it requires its targets to be susceptible to culturally specific forms of shame, or as Julien Benda once put it, to be barbares honteux de leur barbarie. As the dominant moral language of our time, moreover, human rights appear to be impotent, or at best mute, when it comes to the dominant moral challenge of our time: surging economic inequality both within and among countries.

No one has done more than Samuel Moyn to unsettle the story of human rights as a triumphal march of upgrades from Magna Carta to the Universal Declaration of Human Rights (UDHR). His book The Last Utopia: Human Rights in History (2010) administered electroshock therapy to a field imprisoned by its own Whiggishness. Genuinely universal human rights, Moyn argued, required a rupture with eighteenth-century conceptions of rights as grounded in citizenship within specific nation-states. Only the waning of other utopian schemes during the cold war—among them socialism and world government—made possible the migration of moral idealism to the cause of human rights. Far from marking the culmination of a centuries-old tradition, Moyn insisted, the UDHR, which billed itself following World War II as “a common standard of achievement for all peoples and all nations,” was a stillborn document suffocated by the East–West rivalry. Not until the 1970s did human rights achieve their status as an international mode of moral judgment that could be used to shape the behavior of governments.

One needn’t accept Moyn’s insistence on rupture over continuity as the leitmotif of human rights history in order to appreciate his elegant dismantling of their self-proclaimed self-evidence. Indeed, as he subsequently noted, he had pressed the discontinuity argument “as far as I possibly could…perhaps too far.”² Nonetheless, by restoring a sense of contingency to the entire story and by exposing roads not taken, Moyn made it possible to see human rights as one among a variety of options within the history of moral reasoning. Rather than hovering above politics, human rights reflected the politics of their time: the age of individualism and globalization.

Moyn has now done something highly unusual in the annals of scholarship: revisiting the terrain explored in The Last Utopia—a work that earned him international acclaim—from an entirely new perspective. No less remarkable, his latest “rewrite” of human rights history concludes that far from being utopian, human rights as currently conceived are in fact “not enough.” Not enough to prevent grotesque extremes of poverty and wealth; not enough to take us beyond the “hollowed-out solidarity” of contemporary society; not enough to address the ravages of neoliberal market fundamentalism. Historically, human rights have provided a crucial vocabulary for setting limits on the power of states, whether that power resides in the hands of monarchs, dictators, or democratic majorities. But they have scarcely attempted to do the same with regard to the power of corporations, banks, or the market itself, with the notable exception of curbing discrimination. Not Enough asks us to rethink what human rights might accomplish if they were deployed not simply to set limits on state power, but to harness that power for the purpose of fostering economic equality.

Such a move, Moyn shows, would actually return the human rights project to some of its earliest and largely forgotten ambitions. Social and economic rights, it turns out, were neither chronologically nor conceptually the offspring of civil and political rights. The Jacobins of revolutionary France articulated the first version of a national welfare state whose goal would be to create “not merely a floor of protection against the worst outcomes by affording basic provision, but a ceiling on wealth and a constraint on material hierarchy.” In its subsequent history, the welfare state demonstrated an extraordinary political flexibility, embraced by regimes as diverse as Bismarck’s Germany, Stalin’s Soviet Union, Hitler’s Third Reich, and Roosevelt’s New Deal America. Whether driven by visions of social justice or racial solidarity, or simply in order to neutralize restless workers and peasants, welfare states constituted, in Moyn’s words, “the sole political enterprises that, to date, have ever secured a modicum of distributional equality.”

All that is now largely behind us. The advanced capitalist states began scaling back their welfare systems in the 1970s; the collapse of communism in the Soviet bloc greatly accelerated that process around the world, validating market fundamentalism by default. Most countries today are uninterested in fostering economic equality. They offer instead some version of a social safety net to meet the basic needs of their poorest citizens even as the richest get exponentially richer. The same holds true for the world’s wealthiest countries vis-à-vis the global South: not even the most generous international aid programs strive for economic parity among the world’s states.

Having made the case in his earlier work that the 1970s were the breakthrough period for human rights, Moyn now poses two questions.³ First: Was it an accident that that breakthrough coincided with the advent of the neoliberal order? For critics on the left, the twin ascension of human rights and neoliberalism confirms Marx’s view of human rights as the ideological handmaiden (or, to be fully Marxist about it, the “superstructure”) of capitalism. Moyn’s answer is more nuanced: while acknowledging their shared preference for individualism, he finds little evidence that human rights aided or abetted the rise of neoliberalism. Acting more as bystanders than perpetrators, human rights advocates failed to adequately push back against the new economic order, settling for the conversion of basic needs into basic rights—“sufficiency”—a strategy aimed at humanizing rather than resisting market fundamentalism. This leads to the second question: Why did human rights advocates settle for a defense of a weak welfare state that (in keeping with neoliberalism) offers merely a safety net for the poor, rather than make the case for a strong welfare state that insists on distributive equality? Why did they not embrace, as Moyn does, the idea that “political freedom demand[s] more state, not less, and constraint of economic freedom rather than its protection”?

Not Enough devotes most of its pages to answering the second question. It does so by tracing important developments in what Moyn calls “global justice discourse,” opening up for inspection “the ethical principle[s] embedded in political action and the social imaginary.” “Philosophy,” he contends, “is indispensable, because it provides a proxy for understanding wider developments.” The book’s main figures are well-known philosophers and social thinkers such as Gunnar Myrdal, John Rawls, Peter Singer, and Amartya Sen, along with less familiar figures such as the political scientist Charles Merriam, who served on Roosevelt’s National Resources Planning Board, and the political theorist Charles Beitz, who pushed the field of international relations beyond its usual purview of power and diplomacy to embrace issues of distributive justice. The result is a subtle and wide-ranging study of ideas whose governing tension is not between freedom and equality (the central fault line of cold war political economy) but between sufficiency and equality.

Moyn makes no pretense of impartiality on this score. Not Enough, he tells us, was “written out of dissatisfaction with mere sufficiency” and is “committed to a more ambitious equality.” Thinkers who move beyond meeting basic needs to argue for equality in the distribution of the good things in life, and who make the case not just for national welfare states but for a “welfare world,” earn Moyn’s approval. Those who don’t disappoint him.

What’s strange about this approach is that Moyn doesn’t make clear what equality actually means. He seems to recognize that absolute equality in the distribution of the good things in life would be impossible to achieve, much less sustain (and not merely because we don’t all agree on what those things are), yet he doesn’t explore ways of thinking about how much equality is enough. Nor, for that matter, does he explain why economic equality is desirable in the first place, or why it is preferable to meeting basic needs. In an age that celebrates diversity, one might wonder why diversity of wealth, within certain limits and assuming basic needs are met, should count as a problem. If one argues that converting basic needs into human rights harms the more ambitious cause of equality, doesn’t that amount to making the perfect into the enemy of the good? Like the Whiggish version of human rights he did so much to dismantle, Moyn takes the ethical superiority of economic equality as self-evident.

Conceived as intellectual history, Not Enough keeps its distance from a host of practical issues. Again and again, in country after country, it laments the unraveling of the welfare state. But rather than search for causes, Moyn relies on passive verbs (e.g., “the material equality they had engineered was undone”) and on the all-purpose bête noire “neoliberalism,” which the historian Daniel Rodgers recently dubbed “the linguistic omnivore of our times.”⁴ Whether or not one buys the argument that welfare states must die in order for a welfare world to be born, the general decline of national welfare policies hardly inspires confidence that an exponentially more altruistic program of global redistribution of wealth can emerge—let alone last. Most readers of The New York Review live in a country that not only rejects distributive equality at the federal level, but generally resists even something as basic as mandating equal per capita spending on public schools in adjacent districts, among people who live just a few miles from one another. How is such a country going to support—via democratic consensus or other means—distributive equality with people on the other side of the planet?

Notwithstanding Moyn’s subtle parsing of the philosophical debates surrounding equality, in this case philosophy and intellectual history turn out to be insufficient proxies for understanding governmental policies and their effects. Not Enough operates at a high altitude, too high to register in any detail the impact of twentieth-century welfare states on people’s lives, including experiments with living wages, universal basic income, and microcredit. It shies away from discussing specific strategies or institutions that would promote equality, whether at the local, national, or global level. For these, David Kinley’s Necessary Evil: How to Fix Finance by Saving Human Rights promises a more practical approach—or so its title implies.

Any assessment of how the world’s wealth might be redistributed has to begin with a basic fact: the majority of that wealth is currently held in the form of financial assets (stocks, bonds, mutual funds, derivatives, bank deposits, etc.). As anyone who experienced the Great Recession of 2007–2009 knows, the capacity of individuals as well as states to pay for education, housing, and health care—the foundation of any system of social and economic rights—depends substantially on the financial sector. Should the promotion of these and other human rights become one of the legally enforceable fiduciary responsibilities of financial institutions? Is such an arrangement even possible?

As Kinley notes, establishing cause and effect, let alone responsibility, within the dense, constantly humming web of global financial transactions is rarely a simple matter. It is one thing to identify an oil company that produced an environmental disaster depriving thousands of coastal residents of their livelihood, or a clothing retailer whose profits derive from factories with substandard working conditions. It is quite another to pinpoint who or what precisely caused a billion-dollar pension fund to lose half its value, or countries like Zambia and the Philippines to end up with annual loan repayments to First World banks that exceed the amount they spend on health, education, and social welfare. The integration of human rights standards into the financial sector has thus been shallow at best. Kinley quotes a damning 2015 assessment of the World Bank by Philip Alston, the United Nations’ special rapporteur on extreme poverty and human rights (and, like Moyn and Kinley, a law school professor): “The existing approach taken by the Bank to human rights is incoherent, counterproductive and unsustainable. For most purposes, the World Bank is a human rights–free zone.”

Whereas Moyn urges human rights advocates “to extricate themselves from their neoliberal companionship,” Kinley proposes the opposite, casting himself as a couples therapist determined to help financiers and human rights activists build a healthy, mutually respectful relationship. “The two desperately need each other,” he proclaims. “Like Elizabeth Bennet and Mr Darcy, their destinies are tied, whether they like it or not.” Unable to let go of this analogy, Kinley proceeds to sprinkle his chapters with titles such as “Strange Bedfellows,” “Flirting with Risk,” “Private Matters,” “Public Affairs,” “Cheating,” and, finally, “Counseling and Reconciliation.” To be fair, the book’s introduction does concede that “the transmutation of deep scholarship into wide readership is never easy and can result in something more mutant than trans.” Someone at Oxford University Press should have rescued Kinley (not to mention Austen) from this particular literary device, perhaps using some of the time that was clearly not devoted to copy editing a text littered with clunky sentences, missing words, and other slips.

How does Kinley imagine the relationship between finance and human rights advocates working? If one could build an argument out of breezy platitudes, Necessary Evil would be a skyscraper. “Hands and minds from both sides,” he informs us, “must be extended across the gap, if mutual benefits are to be truly attained.” It is also crucial to grasp that “when Wall Street cheats Main Street the consequences are always gravest for those who can least handle them.” But don’t worry, because in the end, “what works best for the promotion of people’s human rights, operates in the best interests of finance.” By now, Elizabeth is glancing at her watch, and Mr. Darcy is trying to recall how much the copay for this session is going to be.

Kinley does not discount the necessity of state regulation of the financial industries, although he is maddeningly vague about its mechanisms. “Ultimately,” he believes,

it is in persuading finance to promote these virtues [of responsible economic stewardship] from within its own ranks that the real battle will be won or lost…. [A]ppeals to “empathy” can push financiers down the road toward caring more about the impact of their actions on others.

One can already hear Moyn’s lapidary verdict on the notion of human rights as the gentle civilizer of Mammon: Nowhere near enough.

Human rights are not able, and were never designed, to address all our moral problems. We shouldn’t necessarily expect the same mechanism to be responsible both for articulating critical constraints on state behavior and for providing the source of deep human solidarity. As Moyn acknowledges in his conclusion, it makes little sense to “indict a hammer [because] it is useless for turning a screw.” The modern world requires the division of labor, and the human rights tool kit—courts, public naming and shaming, NGOs—works better for certain tasks than others. Appeals to human rights were only of minor importance in the construction of welfare states, in no small part because the distribution of society’s resources—at least in a democracy—demands recurring negotiation and compromise, not to mention periodic adjustments driven by the inescapable waxing and waning of those resources. It is precisely the question of how much equality is enough—the question that Moyn’s book leaves unanswered—that cannot be resolved by the categorical imperatives that are, and should remain, the hallmark of human rights.

Human rights articulate absolute but minimalist claims. They assume a human dignity that we all possess simply by virtue of being human, but they do not give guidance about how to live a good life—or, for that matter, a happy one. Even the most emphatic defense of freedom of speech, freedom of association, or freedom of religion is silent regarding the content of that speech, association, or religion, or whether it is wise or necessary to exercise one’s rights in a particular way or in a particular setting. The right to vote similarly tells us nothing about how to vote. That same minimalist absolutism would seem to lend itself better to the goal of sufficiency—turning basic needs into basic rights—than to the agenda of forging equality.

The US State Department’s Commission on Unalienable Rights, launched in July by Secretary of State Mike Pompeo “to ground our discussion of human rights in America’s founding principles,” is unlikely to discuss the merits of sufficiency versus equality, or indeed to promote any version of economic rights beyond the right to private property. Pompeo himself seems confused about whether human rights are an American export product or something arrived at by international consensus. The scholar he appointed to chair the commission, his (and Moyn’s) former Harvard Law School professor Mary Ann Glendon, has in the past favored the latter viewpoint, criticizing what she regards as the excessively individualistic duty-free American approach to rights. But she shares with Pompeo a strong aversion to the post-UDHR “proliferation of rights claims,” including those to same-sex marriage and abortion. Given the Trump administration’s record, in word and deed, it is difficult to imagine any programmatic statement on human rights carrying moral weight. For his part, Pompeo has already indicated that the commission “won’t opine on policy.”