Human Rights and Neoliberalism in a Time of Pandemic: A Reply — Jessica Whyte

[This is the fourth and final 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 previous posts, authored by Eva Nanopoulos, Paul O’Connell, and Umut Özsu respectively, see here, here, and here. In this concluding post, Whyte responds to Nanopoulos, O’Connell, and Özsu, and takes the opportunity to speak to the ongoing COVID-19 pandemic.]

I write this response in early April, in the midst of the COVID-19 pandemic. To date 100 000 people have died from the virus, and responses to it are profoundly transforming social and economic life. All around us events take place that would have seemed inconceivable a month ago: in Italy, mass deaths lead to the cancellation of funerals; in the United Kingdom, the prime minister announces the suspension of “the ancient, inalienable right of free-born people of the United Kingdom to go to the pub” [1]; in Turkey, the government removes park benches to discourage older people from leaving their homes; in Australia, the conservative Liberal-National government announces the doubling of unemployment payments. Yet much continues to feel all too familiar: the under-resourcing of public health systems; the rush to xenophobia and border controls; the fast-tracking of online education; and the disproportionate health risks faced by displaced people and informal workers, many of whom already lack basic medical care and whose livelihoods are now threatened by enforced lockdowns. Although this is not the time for great prognostics about the future, this context, in which “all that is solid melts into air”, inevitably informs my response to these contributions.

A global pandemic that puts both lives and livelihoods at stake does not seem an appropriate context for hair-splitting polemics. Whatever our small differences, over how to understand human rights, neoliberalism, or the Marxist tradition, I am immensely grateful to the three contributors to this forum for the extraordinary care with which they have engaged with my book, and for their thought-provoking responses, which reflect a commitment we all share to a more just and equal world. I therefore proffer these comments in a spirit of camaraderie and solidarity.

Eva Nanopoulos’ incisive contribution focuses on my book’s contribution to Marxist critiques of rights and on my reading of Marx’s early text “On the Jewish Question”. In the book, I draw on Marx’s text in order to consider the differences between the rights of man tradition that he critiqued and contemporary neoliberal human rights discourses. For neoliberals, I suggest, the competitive market was the sine qua non of peace, freedom, and rights, and human rights for them existed not so much to protect the individual–even the egoistic individual Marx criticized–as to preserve market order. Nanopoulos doubts the extent of the difference between the rights of man and contemporary human rights, and suggests that Marx’s critique was not directed solely against the role of rights in protecting “bourgeois man”, but was instead “part of his broader critique of the limits of political emancipation under capitalism”.

Yet there was no reference to capitalism in “On the Jewish Question”. Instead, Marx referred to “civil society” (die bürgerliche Gesellschaft), which, like Hegel and the Scottish Enlightenment thinkers he drew on, he understood to be a system of needs that required private property, generalized exchange, and an extensive system of contract law for its proper functioning. [2] Marx’s critique of rights, as Warren Breckman notes, radicalized this Hegelian tradition by focusing its critical attention on political emancipation and the autonomous individual it presupposed. [3] But this critique of political emancipation was not yet a critique of capitalism. If “a Marxist approach” requires sustained engagement with the internationalization of capitalism and the place of human rights within it, as Nanopoulos suggests, then it is doubtful that Marx’s “On the Jewish Question” earns the label “Marxist”. I doubt this would have worried Marx himself, who, after all, infamously stated that he was not a Marxist.

We cannot assume that the “human” of contemporary human rights is necessarily the “man” of the rights of man. While “man” always maintained an ambiguous relation to “the citizen” (just as the rights of man maintained an ambiguous relation to sovereignty), the transnational human rights movement has sought to overcome the gap between universal, humanist pronouncements and the territorial jurisdiction of independent sovereign states, including by licensing new forms of military intervention to protect “humanity”. For Marx, “man” was emancipated politically in the state—that is, emancipated “in an abstract, limited, and partial way”. [4] While the state politically annulled private property, by abolishing property qualifications for suffrage for instance, it left private property itself untouched. The emancipation it offered was abstract and formal, though not, for Marx, meaningless.

For neoliberals, the political realm is no longer a realm of abstract freedom and universality. Politics, for them, is simply another (and more violent and coercive) realm for the pursuit of individual ends. The market is the true democracy, in which, as neoliberal thinkers have never tired of repeating, every dollar counts as a ballot–meaning, of course, as Ludwig von Mises acknowledged, that “the rich cast more votes than the poorer citizens”. [5] For neoliberals, universal humanism therefore required global protections for the rich and their capital. [6] It also required that we forgo group solidarities and redistribution, as Hayek stressed, and limit our obligations to others to those that could potentially be extended to all humanity–that is, in his view, to the avoidance of harm.

To note discontinuities and transformations is not to suggest that either contemporary human rights or neoliberalism lacked precedents, or emerged ex nihilo from the Swiss mountains. I agree with Nanopoulos that the installation of a market morality was not the exclusive preserve of neoliberal human rights, and with Paul O’Connell that various liberal legalisms have relied on a dichotomy between politics as violent and conflictual and law and human rights as rational and freedom-enhancing. Yet O’Connell misses what is distinctive about the neoliberals, on my account. This is their argument that it is not just law but markets themselves (albeit legally constituted markets, as Umut Özsu rightly notes) that provide sites of free, mutually beneficial, voluntary social relations–relations that contrast with the violent, conflicting passions neoliberals take to be endemic to politics.

In tracing the early neoliberal promulgation of this argument for the pacifying virtues of the market, I make no claim for its originality. Quite the opposite: my argument in the book is that the neoliberals took up and retooled an earlier “political argument for capitalism”, in Albert Hirschman’s words, that found its starkest form in the Baron de Montesquieu’s contention that “the natural effect of commerce is to lead to peace”. [7] The neoliberals did not invent this argument, but it is significant that they revived it in the wake of the Second World War–at a time when Hirschman, who devoted a classic book to this doux commerce thesis, believed that no one could possibly subscribe to the optimistic view of the pacifying virtues of the market. [8]

Disentangling the new from the old, the repetitions from the foundations, is never simple. It is often precisely when they are revolutionizing themselves and creating something unprecedented that historical actors “nervously summon up the spirits of the past”, borrowing their names, uniforms, and marching orders to enact new scenes in time-honoured disguises. [9] This is no doubt true of the way in which neoliberal thinkers later came to renounce their own novelty, defining themselves simply as “classical liberals”. Just as it is necessary to avoid seeing novelty everywhere, a thought without distinctions and determinations leaves us in a night in which all cows are black. Marx himself was a great reader of newspapers and an observer of his world, which he sought to understand in all its specificity and singularity—no doubt in order to change it. This remains our task today. I agree with Nanopoulos that an attempt to theorize human rights today can only benefit from picking up the “unfinished project” of Marx’s critique of capital. That requires a serious examination of the human rights politics of our present, and both the continuities and the discontinuities between contemporary human rights and the rights of man.

Can a Marxist Believe in Human Rights?

In 1981 Steven Lukes provocatively argued that a Marxist cannot believe in human rights. “Those many non-hypocritical and non-self-deceiving Marxists who do so”, he argued, “can only, therefore, be revisionists who have discarded or abandoned those central tenets of the Marxist canon which are incompatible with such a belief”. [10] For O’Connell, on the other hand, Marxists can and should believe in human rights, and he therefore criticizes the “potential danger” in my book of overemphasizing the power of neoliberal ideas and their influence on the politics of human rights. Alongside neoliberal arguments and rights discourses, there have always been counter-arguments, he contends, made by trade unionists, anti-colonialists, and newly independent states.

Yet this is a point my book makes explicitly. Far from painting “a more or less straight line from the world view articulated by the MPS to contemporary understandings and practices of human rights”, as O’Connell argues, I devote the first half of the book to the human rights politics of the 1940s to the 1960s, when neoliberal thinkers responded to and attacked other then-dominant conceptions of rights—among them socialist defences of social and economic rights, anti-colonial arguments for racial equality in opposition to narratives of “civilization”, post-colonial successes in reframing the right of nations to self-determination as the first human right in the 1966 covenants, and, finally, demands for international wealth redistribution to compensate for colonial exploitation. That human rights is a “contested terrain” is something I argue and demonstrate throughout the book.

However, to reduce these conflicts to the claim that human rights (always and everywhere) are “contradictory”, or that “things are pregnant with their contrary”, as O’Connell does, is to substitute a metaphysical claim for political and historical analysis. There may well “always” be “alternative accounts” that challenge the status quo, but knowing how powerful or how successful these alternatives were at any particular moment requires an assessment of political struggles, and political defeats at specific historical junctures. That is what my book attempts to do, as it traces neoliberal ideas, and neoliberal articulations of human rights, from their profoundly marginal status in the late 1940s to their global uptake decades later. I show that the commitments to social welfare and the right to self-determination, which marked the drafting of the Universal Declaration of Human Rights and the human rights covenants respectively, were not replicated by the new human rights NGOs of the 1970s and 1980s, which were far more compatible with neoliberal perspectives of the period.

As Özsu notes, I do not make a causal claim about the relationship of human rights and neoliberalism, such that neoliberalism could be conceived as engendering human rights, let alone vice versa. Indeed, I do not accept the base-superstructure frameworks that such causal claims presuppose. Nor do I accept the common view that neoliberalism is a narrow economic agenda. On the contrary, I show that neoliberal thinkers devoted significant attention to questions of politics, law, and morality, and that lines of transmission between neoliberal circles and mainstream human rights movements moved in both directions. While O’Connell, quoting David Harvey, argues that the “history of the development of human rights reflects ‘the history of changing modes of production and their respective social relations'”, I argue that human rights do not simply reflect modes of production and social relations; they help to constitute markets, modes of exploitation, and the ways in which wealth is accumulated and transferred. As E. P. Thompson noted of his own research on law in eighteenth-century England, “I found that law did not keep politely to a ‘level’ but was at every bloody level”. [11]

Human Rights and Neoliberalism Today?

In his stimulating account of the relation between human rights and neoliberalism, Özsu suggests that, if these “survive the onslaught” of the COVID-19 pandemic, they may nonetheless be transformed by it, to such an extent that they appear unrecognizable. I find myself in agreement with much of what Özsu writes here, and so will respond by taking his provocation as an opportunity to consider today’s rapid transformations of neoliberalism and human rights.

In the last decade, we have increasingly been told that we are living through the “twilight of human rights law” and have reached the “endtimes of human rights”. [12] As I show in the book, such prophecies are not new. In 1974, in the middle of what historians have identified as “the breakthrough” decade for human rights, the founder of contemporary human rights law Louis Henkin wrote that “few would insist that the international effort has brought a substantial improvement in the welfare of many human beings”, declaring that there was, “in fact, a ‘crisis’ in human rights”. [13] Ever since the (last) Global Financial Crisis, we have also heard claims about the decline or end of neoliberalism. But as many scholars have noted, while the utopian imaginary of freedom and prosperity that once underpinned it has been severely tarnished, neoliberalism itself has proved particularly resilient, and has persisted—albeit in “mutant” forms. [14]

It is too early to see what will become of either human rights and neoliberalism, but some trends are already emerging. No doubt, the neoliberal attempt to subordinate politics to market relations, or in Özsu’s words to “subordinate politics to the mysticism of the price mechanism”, is still underway. Yet when the price mechanism proves unable to adequately distribute toilet paper and pasta, let alone ventilators and surgical masks, this mystique loses some of its shine. While neoliberal think tanks claim that restrictions on price-gouging prevent the mechanisms of supply and demand from incentivizing increased production, popular responses to those who speculate on desperately needed medical goods resemble that “moral economy” that led to denunciations of grain hoarders and speculators before the rise of laissez-faire market economies [15]

Here it is worth remembering that neoliberalism emerged in the context of the profound popular disillusionment with laissez-faire premises that followed the Great Depression. In The Good Society, US journalist Walter Lippman wrote that while the price mechanism organized production and social positions with “brutal effectiveness”, the “statistics of improvement are not sufficiently impressive to obscure the statistics of waste or to drown out the cries of the victims”. [16] This problematic animated the 1938 Walter Lippman Colloquium, where the term “neoliberalism” was coined. Among the preliminary questions laid out for discussion by its organizer Louis Rougier was: “can economic liberalism meet the social demands of the masses?” [17] This question deeply informed the 1947 formation of the Mont Pèlerin Society (MPS), on which my book focuses. Rather than rejecting all forms of social welfare, the founding statement of the MPS called for further research into “the possibility of establishing minimum standards by means not inimical to initiative and the functioning of the market”. [18] The attempt to devise market-friendly forms of welfare to prevent absolute destitution and political instability while warding off political demands for equality was central to the development of neoliberalism.

However much decades of neoliberal restructuring have contributed to today’s lack of preparedness in the face of COVID-19, there is little sign that major institutional defenders of economic liberalism have broken with their fundamental ideological commitments. On 23 March of this year, David Malpass, the president of the World Bank Group, stressed that if the poorest countries want support during the present crisis, they “will need to implement structural reform” to create confidence in the possibility of recovery. “For those countries that have excessive regulations, subsidies, licensing regimes, trade protection or litigiousness as obstacles”, he stated, “we will work with them to foster markets, choice and faster growth prospects during the recovery”. [19] In Brazil Paulo Guedes, Jair Bolsonaro’s minister of the economy (who, like the Pinochet regime economists I discuss in the book, was trained at the Chicago School of Economics) has announced that Brazil cannot afford to maintain a quarantine regime after the first week of April—even as the country’s health minister warns that its health system faces collapse by the end of that month due to inadequate investment. [20]

A particularly stark illustration of the persistence of neoliberal articles of faith in the face of crisis was the argument of MPS member Richard Epstein, a central figure in the law and economics movement, that deaths from COVID-19 are “not more tragic than others, so that the same social calculus applies here that should apply in other cases”. [21] Epstein and many of his neoliberal colleagues have long seen social misery and even death as an adequate price to pay for their libertarian market system. By tampering with this system, and the freedoms it grants, in an attempt to foster life, “public officials”, he argued, “have gone overboard”. [22] Here it is worth recalling the long lineage of such ideas in neoliberal thought: Ludwig von Mises, the elder statesman of the MPS, was so allergic to restricting market freedom to provide for human needs that he depicted the idea of a “physiological minimum of subsistence” as an invention of “demagogues”, and argued that the claim that “a definite quantity of calories is needed to keep a man healthy and progenitive” was “no more tenable”. [23]

Today, those who are less intransigent than von Mises (as indeed most of his neoliberal colleagues were in the twentieth century) have acknowledged the temporary need to suspend their usual prescriptions. But they worry about the long-term implications of sacrificing the market for the preservation of human life. As millions of people face instant unemployment, the Brookings Institute concedes that the “moral hazard” of providing unemployment insurance is less severe today than at other times, but warns that in the aftermath of the pandemic the morally perverse results of welfare must again be balanced against its social function. [24] The Economist, that bastion of liberalism, acknowledges the need for “big government” to fight the pandemic, but warns that “what matters is how it shrinks back again afterwards”. [25] While the threat of the post-war welfare state hangs over these nervous prescriptions, it is worth recalling that, from Bismarck to Henry Ford, authoritarian welfarism as a tool to ward off crisis need not augur a victory for the left.

And what of human rights today? While O’Connell recognizes that I use the term “the morals of the market” to refer to human rights in their “dominant neoliberal rendering”, he reads my argument that a break with neoliberalism requires a break with the morals of the market as a “call to break with human rights as a necessary step to breaking with neoliberalism”. To be clearer, my argument is not that a break with human rights is a precursor to a break with neoliberalism but that the dominant conception of human rights I examine in the book is too saturated with neoliberal assumptions about freedom, civil society, and the dangers of politics to challenge neoliberalism. Most human rights advocates have tended to track neoliberal precepts and remain focused on civil liberties and political rights, as Özsu notes, while doing “remarkably little to counter privatization initiatives or respond to growing wealth and income inequalities”.

In the context of the COVID-19 crisis, as states introduce extraordinary measures to confine people to their homes and criminalize acts as innocuous as sitting on park benches, it may be that the activism of mainstream human rights NGOs will have some purchase in shaping the implementation of these restrictions. On the other hand, it is clear that such NGOs have not contested the evisceration of public services, which has left large swathes of the world’s population, including in the global North, without basic medical care. The statement in Human Rights Watch’s recent “Human Rights Dimensions of COVID-19” brochure that “[i]nternational human rights law guarantees everyone the right to the highest attainable standard of health” reads as parody when it is only too clear that what is attainable in the context of decades of sustained destruction of public medical systems is inadequate to the simple task of keeping people alive. [26] Meanwhile, an Amnesty International online course on COVID-19 and human rights stresses that, despite its negative impact on well-being, COVID-19 “is not violating our human rights”! The virus, Amnesty explains, cannot be held responsible, and therefore cannot itself violate human rights. Although this argument is on a certain level uncontroversial, the same argument has made human rights NGOs ill-equipped to respond to impersonal relations of domination, economic inequalities, and structural violence, for which no one is clearly responsible individually. Human rights NGOs have always been better at naming and shaming individual violators and states than challenging the dull compulsion of economic relations. When it comes to naming and shaming, it is noteworthy that, on 25 March, as US President Trump struggled to re-signify COVID-19 as a “China virus”, every example of a human rights abuse in Amnesty’s online course came from China. [27]

One NGO that stands out today is Médecins Sans Frontières (MSF)—an organization to which my book devotes extensive attention. Both O’Connell and Özsu raise doubts about the influence of Liberté Sans Frontières (LSF), established by the French leadership of MSF in the mid-1980s to challenge Third Worldism in the aid sector. It seems necessary to clarify that LSF was not simply a minor player, and that its history is very much part of the history of MSF. The LSF figures whom I discuss and who campaigned for neoliberal ideas in the 1980s–Rony Brauman and Claude Malhuret in particular–were at the time the president and director of MSF France (the largest and the most powerful of the MSF groups).

It therefore seems important to acknowledge the distance MSF has travelled since the days of its deep involvement in the development of both neoliberalism and military humanitarianism. [28] In the last two decades (after the period I considered in the book), influential MSF figures have become deeply skeptical of the language of human rights. [29] For instance, in the context of COVID-19, as its teams provide vital medical care, Jonathan Whittall, head of humanitarian analysis at MSF, has observed that those at greatest risk from COVID-19 include people already neglected as a result of war, austerity, and the privatization of health services. Policies of social exclusion, increased inequality, and reduced access to free healthcare, he argues, are “the enemy of our collective health”. [30] For all its utopianism about market capitalism in the 1980s, MSF’s current work has brought it decisively into confrontation with the legacies of decades of neoliberal privatization of health services, the dominance of Big Pharma, and the restriction of life-saving medicines to those who can afford to pay. As much as my book shows that human rights was a terrain of struggle, it also makes clear that human rights was not the sole terrain on which struggles over equality, justice, and freedom played out in the course of the twentieth century. Nor, if we wish to contest this neoliberal legacy, should it be so for us.

Jessica Whyte is a Scientia Fellow (philosophy and law) and associate professor of philosophy at the University of New South Wales. She is the author of Catastrophe and Redemption: The Political Thought of Giorgio Agamben and The Morals of the Market: Human Rights and the Rise of Neoliberalism. She is also an editor of Humanity.

[1] “Ancient British Rights To a Drink in the Pub Have To Be Suspended: Johnson“, Reuters (20 March 2020).

[2] Norbert Waszek, The Scottish Enlightenment and Hegel’s Account of “Civil Society” (Dordrecht: Kluwer, 1988), 142.

[3] Warren Breckman, Dethroning the Self: Marx, the Young Hegelians, and the Origins of Radical Social Theory (Cambridge: Cambridge University Press, 1999), 258.

[4] Karl Marx, “On the Jewish Question” [1843], in Marx: Early Writings, trans. Rodney Livingstone and Gregor Benton (London: Penguin, 2000), 211.

[5] Ludwig von Mises, Human Action: A Treatise on Economics (Auburn, Alabama: Ludwig von Mises Institute, 1998 [1949]), 272.

[6] Quinn Slobodian provides an excellent account of neoliberal “globalism” in Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge: Harvard University Press, 2018).

[7] Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism Before Its Triumph (Princeton: Princeton University Press, 2013 [1977]); Baron de Montesquieu, The Spirit of the Laws, trans. and ed. Anne M. Cohler, Basia C. Miller, and Harold S. Stone (Cambridge: Cambridge University Press, 1989 [1748]), 338.

[8] Hirschman, The Passions and the Interests.

[9] Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” [1852], in Marx: Later Political Writings (Cambridge: Cambridge University Press, 1996), 31, at 32.

[10] Steven Lukes, “Can a Marxist Believe in Human Rights?“, 4 (1981) Praxis International 334, at 344.

[11] Cited in Perry Anderson, Arguments Within English Marxism (London: New Left Books, 1980), 69.

[12] Eric Posner, The Twilight of Human Rights Law (Oxford: Oxford University Press, 2014); Stephen Hopgood, The Endtimes of Human Rights (Ithaca: Cornell University Press, 2015).

[13] Louis Henkin, “The United States and the Crisis in Human Rights“, 14 (1974) Virginia Journal of International Law 653.

[14] William Callison and Zachary Manfredi (eds), Mutant Neoliberalism: Market Rule and Political Rupture (New York: Fordham University Press, 2020).

[15] E. P. Thompson, “The Moral Economy of the English Crowd in the Eighteenth Century“, 50 (1971) Past & Present 76.

[16] Walter Lippmann, The Good Society (London: Billing & Sons Ltd., 1943 [1937]), 170–71.

[17] Louis Rougier, “Address by Professor Louis Rougier”, in The Walter Lippmann Colloquium: The Birth of Neo-Liberalism, ed. Jurgen Reinhoudt and Serge Audier (London: Palgrave Macmillan, 2018), 101.

[18] Statement of Aims of the MPS, cited in Dieter Plehwe, “Introduction”, in The Road from Mont Pèlerin: The Making of the Neoliberal Thought Collective, ed. Philip Mirowski and Dieter Plehwe (Cambridge: Harvard University Press, 2009), 25.

[19] World Bank, “Remarks by World Bank Group President David Malpass on G20 Finance Ministers Conference Call on COVID-19” (23 March 2020).

[20] Sam Cowie, “Deny and Defy: Bolsonaro’s Approach to the Coronavirus in Brazil“, Al Jazeera (30 March 2020).

[21] Richard A. Epstein, “Coronavirus Perspective“, Hoover Institution (16 March 2020).

[22] Epstein, “Coronavirus Perspective”.

[23] von Mises, Human Action, 604.

[24] Louise Sheiner, “How Does the Coronavirus Pandemic Compare to the Great Recession, and What Should Fiscal Policy Do Now?“, Brookings Institution (12 March 2020). On neoliberalism, welfare, and moral hazard, see Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism (New York: Zone, 2017).

[25] “The State in the Time of Covid-19“, The Economist (26 March 2020). On The Economist and liberalism, see Alexander Zevin, Liberalism at Large: The World According to the Economist (London: Verso, 2019).

[26] Human Rights Watch, “Human Rights Dimensions of COVID-19 Response” (19 March 2020).

[27] Amnesty International, “Take Our Online Course on the Human Rights Implications of COVID-19” (25 March 2020).

[28] Rony Brauman and Régis Meyran, Humanitarian Wars? Lies and Brainwashing (London: Hurst, 2019).

[29] Rony Brauman, “Questioning Health and Human Rights“, Médecins Sans Frontières (2001).

[30] Jonathan Whittall, “Vulnerable Communities Are Bracing for Impact of COVID-19”, Médecins Sans Frontières (20 March 2020).