The Morals of the Market and the Moral of the Story — Paul O’Connell

[This is the second in a series of posts comprising a symposium on Jessica Whyte’s recently published book, The Morals of the Market: Human Rights and the Rise of Neoliberalism (2019). For the first post, authored by Eva Nanopoulos, see here.]

Jessica Whyte concludes her excellent new book, The Morals of the Market [1], by arguing that there is little reason to believe that the human rights “enterprise” will pose any serious threat to the myriad predations that characterize the global neoliberal order. [2] Instead, Whyte argues that confronting the grave challenges of the present–inequality, growing xenophobia and authoritarianism, increasing state repression, and more–requires the “reinvigoration of contestation over political ends”. [3]

Going further, Whyte argues that the fundamental break with neoliberalism that is required today also requires us to break with “the morals of the market”. [4] The morals of the market are, for Whyte, human rights in their dominant, hegemonic, neoliberal rendering. Whyte’s call to break with human rights as a necessary step to breaking with neoliberalism emerges at the end of her thorough inquiry into the relationship between the two.

As Whyte puts it, the central objective of the book is to explore “the historical and conceptual relations between human rights and neoliberalism”, and “to explain why these two revivals and reinventions of liberalism took place at the same time, and why their trajectories have been so intertwined ever since”. [5] Ultimately, Whyte sets out to tell the “story of how neoliberal thinkers made human rights the morals of the market”. [6]

On this score Whyte succeeds admirably: through a thorough, well-written, and cogent account of the work of the Mont Pèlerin Society (MPS) and how its leading lights articulated a specifically moral account of the virtues of “free” markets to embed and defend their civilizational ideals.

Whyte deftly weaves together an account of how the ideas developed by Hayek, Mises, Rappard, Röpke, and others from the 1940s onwards, came to play a role in subsequent debates about the nature of human rights (Chapter 1), which rights merited formal protection (Chapter 2), the process of decolonization (Chapter 3), and the role of human rights, mediated through mainstream NGOs, in both Pinochet’s Chile (Chapter 4) and the campaign to undermine the New International Economic Order (NIEO) advocated by the Non-Aligned Movement in the 1970s and 1980s (Chapter 5).

The similarities and overlaps Whyte draws out between some of the ideas articulated by the founding fathers of neoliberalism in the 1940s, and the arguments and practices of groups, governments, and scholars engaged in the processes of neoliberalization from the mid-1970s onwards, are striking. She also deftly demonstrates the ways in which neoliberal ideas intertwined with racist, gendered, and even religious ideologies to articulate a world-view that valourized and legitimized a market society.

For all of the many strengths of the book, there are some shortcomings in the argument it advances, and its implications for how we think about human rights and their role in the contemporary global order. Two key points that certainly merit further consideration relate to (i) the actual impact of the ideas of the neoliberal thought collective on the subsequent development of human rights in the twentieth and twenty-first centuries, and (ii) how we should think about the place of human rights in contemporary capitalism, and for movements committed to fundamental social change.

On the first point, Whyte’s cogently presented narrative about the genealogy of modern human rights is not entirely convincing. Some of the trends that Whyte highlights, such as the push to conceptualize politics as violent/conflictual (bad) and law or human rights as rational/freedom-enhancing (good), are not at all unique to neoliberalism, representing a much more general trend in liberal legalism (and classical liberal thought). Indeed, this is a trend that Franz Neumann once excoriated the liberals of the Weimar era for entertaining. [7] Similarly, neoliberal opposition to the protection of socio-economic rights is a position with deeper roots in liberal conceptions of possessive individualism and liberal-constitutionalist theories of the separation of powers, dating back to Hobbes and Montesquieu at least. Neither of these, then, appear to be developments that could be laid squarely, or even primarily, at the feet of neoliberal conceptions of human rights and the thinkers who formulated them.

Likewise, Whyte’s fascinating discussion of the work of the short-lived NGO Liberté sans Frontiéres (LSF) sheds light on a hitherto neglected historical episode, but it seems a stretch to say that LSF “helped long-cherished right-wing themes cross over to the political left, and re-signified state-led redistribution as a totalitarian threat to liberty and human rights”. [8] The impact of the ideas articulated by LSF is asserted rather than demonstrated here, and it is not at all clear that these ideas had much influence beyond those who were already convinced, though Whyte notes that it would be wrong to compare the role of a minor NGO with the power of the G7, World Bank, and other institutions and organizations that were the real gravediggers of the NIEO. [9]

All of this points to the potential danger in Whyte’s account of attributing too much power or influence to the ideas of the early neoliberals. Whyte’s narrative paints a more or less straight line from the world-view articulated by the MPS to contemporary understandings and practices of human rights. To her credit, Whyte acknowledges that her account is concerned, first and foremost, with the “hegemonic” view of human rights, and she notes that there are, of course, other, subaltern accounts available. [10]

The problem with this, however, is that it seems to understand “hegemonic” as simply the expressed views of elites, rather than understanding hegemony itself as always being a contested and conflictual process. As Raymond Williams puts it, the “reality of any hegemony … is that, while by definition it is always dominant, it is never either total or exclusive. At any time, forms of alternative or directly oppositional politics and culture exist as significant elements in the society.” [11]

Whyte does a fantastic job demonstrating the dominant views of the MPS and their fellow travellers (what David Harvey calls the “utopian rhetoric” of the neoliberals). But there are also, and always have been, counter-arguments articulated by trade unions, social movements, national liberation struggles, and newly independent states. As Issa Shivji notes, human rights “mirror the struggles and concerns of the dominant social groups in society at a particular time as these groups organise and reorganise to maintain their position. At the same time, rights formulation and articulation reflect, albeit in a subordinate position, the resistance of the dominated as they strive to change the status quo. Human rights, therefore, like any other systematised regime of articulated ideas, is a contested terrain.” [12]

Both tendencies play a part in shaping the version of human rights that emerges; it is never just one-sided. Hence, in this respect, while Whyte’s book is a welcome corrective to the starry-eyed accounts of human rights devotees, there is a danger that her account over-emphasizes, and exaggerates, the other side of the determination. This, in turn, can skewer the normative implications one draws from the story.

On this second point, the conclusion Whyte draws, as noted at the outset, is that human rights are now so deeply implicated in the neoliberal order that breaking with the latter requires breaking with the former too. As she puts it, “[a] break with neoliberalism requires a break with the morals of the market”. [13] This is an entirely reasonable conclusion, following the thread of Whyte’s argument throughout the book.

However, if, as intimated above, one does not see the development of human rights over the last forty years as only, or even primarily, a neoliberal exercise, then a different set of questions present themselves, the key ones being: what is the role of human rights in the contemporary global order, and what role, if any, should they play in movements that seek to break with the contemporary order–movements which, to borrow Whyte’s phrase, are engaged in contestation over political ends.

To answer this, we need to take several steps back: human rights are the product of ongoing contestation within a system of global capitalism. As such, ideas of human rights reflect (and shape) the outcomes of political struggles. In that sense human rights are contradictory. As Whyte shows, they both legitimate and rationalize the rule of capital in the neoliberal era, and at the same time provide part of a vocabulary for challenging the extant order and supporting movements that mobilize to do that.

Just as dominant conceptions of democracy, justice, equality, and freedom cohere with the extant system of property relations and prevailing dominant forces, so too there are always alternative accounts that challenge this same status quo. Things are, to borrow a phrase, pregnant with their contrary.

Human rights, then, are an important part of the ideological and political terrain that movements for social change operate on. As such, “political struggles over the … conception of rights … move centre-stage in the search for alternatives”. [14] Or, to put it slightly differently, movements that contest the hegemony of neoliberalism in everyday life will find themselves articulating counter-hegemonic ideas of human rights. This, indeed, is what already happens in practice today, from London to Johannesburg, Dublin to Cochabamba, and Porto to Porto Alegre. [15]

But, as David Harvey correctly points out, to “propose different rights to those held sacrosanct by neoliberalism carries with it … the obligation to specify an alternative social process within which such alternative rights can inhere”. [16] This brings us back to an important point, namely that the history of the development of human rights reflects “the history of changing modes of production and their respective social relations”. [17]

Whyte’s work, with its focus on the one-sided determination of human rights in the ideas of a key group of neoliberal thinkers, does not do enough to relate these ideas to the crisis of capitalism that has rumbled on from the late 1960s onwards. Specifically, it does not do enough to relate these ideas to the way the ongoing crisis of capitalism has restructured the global economy, playing host to the political defeat of historic socialism and social democracy, and how the contradictions produced by this crisis have themselves produced (and reproduced) human rights as a necessarily contradictory category. [18]

This, of course, is not Whyte’s objective. In the goal that she sets for herself, narrating the coterminous evolution of neoliberal ideas and neoliberal understandings of human rights, she succeeds admirably, and has written a book which makes a valuable contribution to the human rights literature. However, like all good books, it raises questions, and will no doubt act as a spur to further debate and research. The moral of the story Whyte tells in this book is that while it is crucial to apprehend and interrogate the nature and role of dominant ideas, it is also important to grasp, at their root, the conditions that produce, contest, and shape these ideas. It is crucial, in other words, to have “an adequate concept of capital”. [19] In that regard, Whyte’s book will no doubt prove to be an important contribution to debates about the role of human rights in the contemporary global order.

Paul O’Connell is a reader in law at SOAS, University of London.

[1] Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (London: Verso, 2019).

[2] Ibid., 241.

[3] Ibid., 242.

[4] Ibid.

[5] Ibid., 4.

[6] Ibid., 34.

[7] Franz Neumann, “Economics and Politics in the Twentieth Century”, in Franz Neumann, The Democratic and the Authoritarian State: Essays in Political and Legal Theory, ed. Herbert Marcuse (Glencoe, IL: Free Press, 1957), 257.

[8] Whyte, Morals of the Market, 232.

[9] Ibid., 321–32.

[10] Ibid., 33.

[11] Raymond Williams, Marxism and Literature (Oxford: Oxford University Press, 1977), 113.

[12] Issa Shivji, “Constructing a New Rights Regime: Promises, Problems and Prospects” 8 (1999) Social and Legal Studies 253, at 253–54.

[13] Whyte, Morals of the Market, 242.

[14] David Harvey, A Brief History of Neoliberalism (New York: Oxford University Press, 2005), 182.

[15] Paul O’Connell, “Human Rights: Contesting the Displacement Thesis” 69 (2018) Northern Ireland Legal Quarterly 19.

[16] Harvey, Brief History, 204.

[17] Gary Teeple, “Honoured in the Breach: Human Rights as Principles of a Past Age” 1 (2007) Studies in Social Justice 135, at 137.

[18] Ibid., 140.

[19] Tony Smith, Beyond Liberal Egalitarianism: Marx and Normative Social Theory in the Twenty-First Century (Leiden: Brill, 2017), x.