Neoliberalism, Human Rights, and the Socialist Imperative — Umut Özsu

[This is the third post in a series 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 two posts, authored by Eva Nanopoulos and Paul O’Connell respectively, see here and here.]

What precisely is the relation between neoliberalism and human rights? Jessica Whyte’s elegant Morals of the Market tackles this question directly, skillfully, and insightfully. This brief post engages with some of the broader questions raised by Whyte’s welcome contribution to the growing literature on the interlinked histories (and theories) of neoliberalism and human rights.

Historically, as we now know, the neoliberal and human rights movements have long been joined at the hip. Leveraging the legal and political resources made available through the post-1945 “human rights revolution” and the debates about apartheid and other forms of racial discrimination that unfolded in the United Nations during the 1950s and 1960s, organized human rights movements experienced a series of sustained operational “breakthroughs” in the mid- to late 1970s, at much the same time that neoliberal proposals began to garner increased attention from firms and policymakers, especially in advanced capitalist countries. [1] Human rights movements quickly moved to secure the ideological high ground, with organizations like Amnesty International and Human Rights Watch spearheading something of a second (and, in practical terms, arguably more effective and socially consequential) “human rights revolution”, this one unfolding over the 1980s and 1990s and boasting deep roots in feminist, LGBT+, environmentalist, “food sovereignty”, and other social movements. For its part, the material infrastructure of the new post-welfare state was built through the introduction and normalization of anti-Keynesian proposals for legal, economic, and institutional “reform”, especially in regard to taxation, social service provision, and the autonomy and operation of the financial sector. Most of the usual talking heads and policy salons have long since ceased celebrating neoliberalism as such, the term having lost much of its cachet due to its close association with austerity, structural adjustment, and rising socio-economic inequality. [2] But it is by no means easy to argue that we are now in a “post-neoliberal” world, at least if this is meant to involve a clear break with past practices, given how successfully the push to enhance “efficiency”, reduce “transaction costs”, bolster labour market “elasticity”, and eliminate all modes of economic “friction” has been integrated into older capitalist techniques for creating, sustaining, and expanding markets through state power. However we may understand neoliberalism, and however we may want to think about the political valence, normative content, and social effectiveness of actually existing movements working in the name of human rights, something more than coincidence or passing resemblance is clearly at work here. 

The historical link between neoliberalism and human rights is clearly identifiable. The conceptual link is more elusive, but it is also present and operative. Most influential forms of neoliberalism and human rights prioritize the individual rights-bearer, stake their claim to authority and legitimacy on their supposedly “non-ideological” (or “post-ideological”) character, and take for granted the very distinction between private right and public authority they destabilize in actual practice (as, for instance, legal realists like Robert Hale showed in connection with the centrality of the state’s coercive powers for the creation and operation of “free markets”). [3] Similarly, while human rights advocates and proponents of neoliberalism both devote a considerable amount of energy to the critique of state power, they both also make a point of drawing heavily upon this power—in order to recalibrate concrete forces and relations of production, marshal the state’s material and symbolic resources to uphold and enforce legal entitlements, or both. Even more to the point, as Whyte documents, many self-identified neoliberals have elaborated their own models of rights—human rights included—in an effort to subordinate social relations to the mysticism of the price mechanism, just as most human rights advocates, committed in the main to civil liberties and political rights, have done remarkably little to counter privatization initiatives or respond to growing wealth and income inequalities, tracking neoliberal precepts indirectly if not always avowedly. The two have long overlapped and intermeshed, programmatically, organizationally, and, above all, in concrete practice.

That said, like attempts to reduce the “neoliberal thought collective”, in all its variations, to human rights pure and simple, attempts to reduce all struggles waged in the name of human rights to neoliberalism are unlikely to yield real analytical insight—into either of the two movements, not to mention the structural relation between them. [4] The neoliberal and human rights movements are underwritten by closely related but formally distinct social logics—liberation through (legally reinforced) markets in the case of the former, liberation through (legally reinforced) rights in the case of the latter. Understanding the relation between these two logics is essential to understanding the relation between the commodity form and the legal form (Pashukanis’ principal concern) [5], just as it is essential to understanding the relation between capitalist society—rooted in the capital-relation, i.e. the worker’s separation from ownership of the means of production—and the “relatively autonomous” state structures in which class compromises are materialized (the chief concern of Poulantzas and many other Marxist state theorists). [6] Neoliberalism and human rights are both complex, internally heterogenous movements. And each is shaped by the work of countless activists, scholars, journalists, “policy wonks”, and all manner of other “norm-entrepreneurs”. It is an error to fold one into the other, transforming their dynamic tension into a simple, undifferentiated identity. But it is no less an error to convert their dialectical relation into one of mutual exclusivity, not least because the separation between the “economic” and the “political” is itself a reflection of capitalism’s internal division of labour. In this sense, human rights, and rights more generally, are no less integral to the legitimation and social reproduction of the capital-relation than neoliberalism, itself simply the most significant contemporary effort to ensure the continued survival of (late) capitalism.

At root, Whyte seeks to demonstrate that “human rights were not simply shaped by an underlying economic reality; they were a central component of the neoliberal attempt to inculcate the morals of the market” (21). She does not argue that the neoliberal and human rights movements are related in a causal sense, so that we might, for instance, speak of neoliberalism having engendered the modern human rights movement. Nor, however, does she argue that the two are unrelated, or that some sort of rough correlation between the two is all that we can reasonably hope to establish. Instead, Whyte contends that neoliberals had recourse to the discourse and practice of human rights, which they appropriated and made their own, in an effort to safeguard and shore up a capitalist system they generally viewed as under threat from welfarism (in the “global North”) and decolonization (in the “global South”). [7]

To this end, Whyte makes a point of focusing on “hegemonic conceptions of human rights, rather than uses of human rights by marginalised and subaltern groups” (33). Whyte’s aim is to understand the actual operation of the structurally most significant human rights movements, and she therefore trains her lens on the most influential actors and institutions—Amnesty and Human Rights Watch, not the International Association of Democratic Lawyers or La Vía Campesina; Charles Malik, Peter Benenson, and Aryeh Neier, not Carol Weiss King, Dobby Walker, or William Kunstler. [8] Much the same may be said for Whyte’s analysis of neoliberalism, which concentrates on key figures—Friedrich Hayek and Milton Friedman, to be sure, but also Gary Becker, Walter Lippmann, Ludwig von Mises, William Rappard, Wilhelm Röpke, Alexander Rüstow, and other participants in a decades-long drive, coordinated partly within the transatlantic Mont Pèlerin Society, to ensure that the whole of state and society—and, indeed, the whole of the self and the body—are transformed once and for all into what I have elsewhere called “a conduit for market rationality and a conveyor belt for capital accumulation”. [9] For Whyte, if we want to understand what “neoliberalism” and “human rights” mean today, we have no choice but to understand what the modern neoliberal and human rights movements have actually done.

Morals of the Market is an excellent book, all the more so for its clarity and its combination of panoramic synthesis and issue-specific analysis. Its fifth chapter breaks the newest ground, discussing the early work of Liberté sans frontières, an organization that was set up by Médecins sans frontières in 1984 and that campaigned against the New International Economic Order advanced by non-aligned and socialist states, chiefly in the United Nations and on the plane of international law, during the 1970s and early 1980s. That this organization is relatively little-known, and that it never commanded the kind of effective power that some other human rights organizations did, attenuates Whyte’s stated commitment to focusing on big players and core drivers. But it also makes a convincing case for the need to take “neoliberal human rights” seriously and on their own terms.

If the “age of human rights” has largely come to an end, as many have suggested over the past two decades, the fate and final resting-place of what most of us continue to term “neoliberalism” seem significantly less clear. I write this review in the midst of a devastating pandemic and financial meltdown that has all the hallmarks of a promissory note, a harbinger of many an ecological, financial, and microbiological catastrophe to come, each confirming the abiding importance of Marx’s understanding of labour as the “metabolism between man and nature”. [10] It may well be the case that both neoliberalism and human rights survive the onslaught, only to be transformed as a result, perhaps unrecognizably. If so, Whyte’s book may be the final, and perhaps the most important, addition to a body of scholarship that will itself have been transformed, should it survive at all. It remains to be seen whether a socialism that has dispensed with all facets of neoliberalism, fully and without reservations or compromises, stands to gain from further investment in human rights, whatever their future may be. [11]

Umut Özsu is an associate professor of law and legal studies at Carleton University. 

[1] On the “breakthrough” thesis, see especially Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010); and also Jan Eckel and Samuel Moyn (eds), The Breakthrough: Human Rights in the 1970s (Philadelphia: University of Pennsylvania Press, 2013).

[2] Even IMF economists have sought to beat something of a retreat; see, e.g., Jonathan D. Ostry, Prakash Loungani, and Davide Furceri, “Neoliberalism: Oversold?“, 53 (2016) Finance & Development 38.

[3] See Robert L. Hale, “Coercion and Distribution in a Supposedly Non-Coercive State“, 38 (1923) Political Science Quarterly 470.

[4] Philip Mirowski understands neoliberalism as “a sociological thought collective that eventually produced a relatively shared ontology concerning the world coupled with a more-or-less shared set of propositions about markets and political economy”. Philip Mirowski, Never Let a Serious Crisis Go To Waste: How Neoliberalism Survived the Financial Meltdown (London: Verso, 2013), 50; and also Philip Mirowski, “Defining Neoliberalism”, in Philip Mirowski and Dieter Plehwe (eds), The Road from Mont Pèlerin: The Making of the Neoliberal Thought Collective (Cambridge: Harvard University Press, 2009), 417, at 426.

[5] Evgeny Pashukanis, “The General Theory of Law and Marxism” [1924], in Pashukanis: Selected Writings on Marxism and Law, ed. Piers Beirne and Robert Sharlet, trans. Peter B. Maggs (London: Academic Press, 1980), 37.

[6] Nicos Poulantzas, State, Power, Socialism, trans. Patrick Camiller (London: Verso, 2000 [1978]). See also Nicos Poulantzas, “The Capitalist State: A Reply to Miliband and Laclau“, 95 (1976) New Left Review 63, at 71–76.

[7] For a recent reappraisal of (Austrian and related forms of) neoliberalism from this standpoint, see Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge: Harvard University Press, 2018).

[8] In a particularly memorable passage, Whyte justifiably excoriates Neier, co-founder of Human Rights Watch and long-time president of the Open Society Institute, for his explicit repudiation of social and economic rights and his acerbic remarks on the Universal Declaration of Human rights, which he criticized on the ground that “[n]ot everybody can have everything”. As Whyte notes perspicaciously, “[h]uman rights NGOs flourished in a period of neoliberal ascendency, in which Hayek’s contention that it was meaningless to declare that ‘everyone’ was entitled to food, housing, clothing and medical care had begun to seem self-evident” (77). For Neier’s original statement, see Aryeh Neier, “Social and Economic Rights: A Critique“, 13 (2006) Human Rights Brief 1, at 2.

[9] Umut Özsu, “Neoliberalism and the New International Economic Order: A History of ‘Contemporary Legal Thought’“, in Christopher L. Tomlins and Justin Desautels-Stein, eds., Searching for Contemporary Legal Thought (Cambridge: Cambridge University Press, 2017), 330, at 343.

[10] “Labour is, first of all, a process between man and nature, a process by which man, through his own actions, mediates, regulates and controls the metabolism between himself and nature.” Karl Marx, Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes (Harmondsworth: Penguin, 1990 [1867]), 283.

[11] For reflections on the broader questions from a specifically Marxist perspective, see Paul O’Connell, “On the Human Rights Question“, 40 (2018) Human Rights Quarterly 962.