Many will read Samuel Moyn's latest, powerful book, Not Enough, as an intended wake-up call. For some of human rights law's critics on the left, the book's interrogation of human rights law's silence in the face of growing social and material inequality will seem a necessary and welcome call to arms. In human rights’ failure to respond to the 2008 financial crisis or the trans-Atlantic populist politics that followed, those detractors see an indictment of human rights’ collusion with neoliberalism. For defenders of human rights law, the reaction might instead be anger. To them, the strident and condemnatory tone—particularly of the last chapter, in which Moyn, the Henry R. Luce professor of jurisprudence at Yale Law School and professor of history at Yale University, calls human rights law “unambitious in theory and ineffectual in practice” (p. 216)—will seem unwarranted, unfair, and misdirected. Moyn, for his part, tries to tamp down these reactions. No fewer than six times, Moyn writes that human rights did not “abet” neoliberalism (pp. xi, 187, 192, 202), and he specifically writes that he is trying to find a middle path between “corrosive attack[s]” and “complacent apologetics” (p. xi). Nonetheless, “there is no doubt that the transition from an era of liberal ascendancy to one of liberal crisis demands an attempt to rethink where our highest ideals of human rights come from,” Moyn writes (p. x).
This reading, and the conflict it invites, is likely to get the book attention, but it is not the best reading, nor is it the one that gives the book its full due. Rather than as a blaring alarm, Not Enough is better read as an invitation to dream. Moyn seeks to transport us to an imagined dreamscape in which things could have turned out differently, or in which we inhabit someone else's body and see the world through their eyes. “Before the age of human rights came,” Moyn reminds us, “dreams of equality were taken quite seriously, both nationally and globally” (p. 3). By resuscitating these visions and visionaries, Moyn hopes to help us dream again, to imagine paths to social and material justice beyond human rights.
In Moyn's alternative narrative, we see the world through the eyes of a new protagonist—social and material justice. And its story is the story of competing paths. The primary choices pit a focus on sufficiency—a guarantee to everyone of basic material needs—against a focus on material equality, or at least, a commitment to shrink the margin of inequality between rich and poor. A secondary set of choices involves framing. While “rights” are now the dominant frame for conceptualizing social justice (so much so that even Moyn sometimes describes the central concern of the book as “economic and social rights” or “social rights” (p. xi)), social and material justice have been framed in other ways, using “more collectivist languages,” “ideologies of class compromise,” or “collective need or greatest benefit” (p. 32). As Moyn writes, “[i]f the rights of man were primarily those of free enterprise and sacrosanct property, many thought it best to oppose the whole notion of rights rather than supplement the list” (p. 31).
Moyn starts the journey down these paths and the struggle to achieve social and material justice with the French Revolution and the Jacobins. From there it meanders through the rise of socialism in the nineteenth century, in which poor laws compete with Marxist calls for equality; through the rise of the welfare state before, during, and following World War II; the post-colonial struggle for global equality represented by the New International Economic Order; and finally, the tripleted rise of concerns for global poverty and the guarantee of basic needs, human rights activism, and neoliberal economics. In the end, the story explains how human rights settled on a vision of social and material justice concerned primarily with poverty alleviation and provision of minimum core economic rights or basic needs. Once formulated this way, Moyn argues, human rights lost the ability to challenge the inequities created by neoliberal economics. As Moyn explains, human rights’ failure was “not so much abetting the romance of market freedom as failing to cry foul about its likely effects when the time was ripe to do so” (p. 187).
Along the way, we see some familiar characters from human rights history: Thomas Paine, Franklin Roosevelt, John Rawls, Amartya Sen, Aryeh Neier, Peter Benenson, and Philip Alston. But in social and material justice's story, their role is reduced. Others who wrestled with core questions of sufficiency and material equality, T.H. Marshall, Gunnar Myrdal, Julius Nyerere, Charles Beitz, Henry Shue, and Mahbub ul Haq, are elevated to the main cast. Some of their ideas, like Marshall's, Shue's, and Haq's, won the day; others’, like Myrdal's, Nyerere's, and Beitz's remain unfulfilled. (The full cast of Moyn's story is vast and too long to list. One of the strengths of the book is how it recreates a full conversation across time, including the range of styles and languages used to wrestle with the same basic questions. The cacophony of voices accentuates the point that there have over time been many ways to imagine social justice.)
The Universal Declaration of Human Rights (UDHR) remains a key pivot in this version of the story, but its role is quite different than in conventional narratives. Usually portrayed as the birth of human rights, in Moyn's story, the UDHR reflects the highpoint of the welfare state and the equality promoting vision of social and material justice. In the Last Utopia,Footnote 1 Moyn controversially argued that the UDHR was far less momentous at its passage than usually imagined. It remained largely forgotten until the flourishing of human rights activism in the 1970s. Here, he suggests why. The UDHR codified the post-World War II conventional wisdom that the world would be governed by welfare states. Its list of economic and social rights, far from being radical claims, represented consensus assumptions (perhaps even watered-down) about states’ duties to guarantee their citizens the good things in life. But the world into which the UDHR entered was already changing. At least in the United States, the welfare state had reached its zenith and was already being rolled back. By the time the UDHR reemerged, together with the two Covenants that made it law,Footnote 2 material equality in the West had fallen victim to East-West divisions and its association with Third-World demands for a New International Economic Order. Human rights became the language not only of anti-communism and anti-authoritarianism, but of anti-poverty and minimum provision. As Moyn writes:
With human rights in ethics and neoliberalism in economics arising, with national welfare state in crisis and with initial visions of a more ambitious globalized welfare nipped in the bud, the ideal of equality died. The ideal of sufficiency was left to subsist alone. (P. 118)
The triumph of human rights is thus portrayed by Moyn as a sort of tragedy; human rights may have flowered, but only “amid the ruins of equality” (p. 9) One idea of social justice prevailed, but only at the expense of the other. Having travelled far down the path of sufficiency and rights, the path to material equality and collective compromise could no longer be discerned.
Many traditional human rights advocates are likely to be angered by this retelling—and their anger will be fair. Moyn already had a reputation for smashing human rights idols, and he certainly does so here. Along with the UDHR, Amartya Sen and Philip Alston have been idolized by many in the field of human rights for their ideas, passion, commitment, and leadership. Moyn reduces both to human size. The widely renowned Sen, whose “capabilities” approach to human rights (co-developed with Martha Nussbaum)Footnote 3 has inspired many and is often-seen as the cutting edge in human rights thinking, is described here as a popularizer of the more limited vision of sufficient provision—and thus partly responsible for human rights’ surrender to inequality. Alston, both in his youth and in his current role as UN special rapporteur on extreme poverty and human rights, is portrayed as passionate and well-meaning, but headed in the wrong direction. Grootboom,Footnote 4 the famous South African Constitutional Court decision recognizing the right to housing, a totem for modern human rights lawyers, is similarly cut down. In Moyn's telling, Grootboom is not a triumph but a tragedy (pp. 199–201). Not only is the Court's mandate never fulfilled, but its vision of justiciable social and economic rights, in the hands of others, becomes a shield to protect the current social and economic hierarchy rather than a sword of revolution and reform (p. 201).
More broadly, human rights’ struggles for and successes in achieving some level of status equality for women and minorities are recognized, but given short shrift.Footnote 5 The protection of civil and political liberties, again under assault globally, is barely mentioned. Nor does Moyn's story make much room for democracy. The elections that produced the welfare state and replaced it with neoliberalism go unmentioned. Focused on the work of intellectuals, Moyn's story might even sound anti-democratic. Most of all, Moyn describes human rights as weak and feckless in the face of the world's most glaring social problems. “The tragedy of human rights is that they occupied the global imagination but have so far contributed little of note, merely nipping at heels of the neoliberal giant whose path goes unaltered and unresisted” (p. 216). For all those advocates working to make sure states “respect, protect, and fulfill” all rights, civil and political as well as economic and social, this will be a tough message to countenance.
But Not Enough is not human rights law's testimony; these are events as seen through the eyes of social and material justice. And in social and material justice's version of events, the story is not a story of success, but one of nostalgia for a world that might have been.
This is the true power of Sam Moyn's counter-narrative. It has been said that “humans are pattern-seeking animals.”Footnote 6 If that's true, then lawyers lead the herd. Lawyers are adept at finding the narrative thread running through events that can make sense of and justify the law.Footnote 7 And in propounding the law, lawyers become the storytellers of the political community, preserving the normative narratives that hold it together and on which it is based.Footnote 8 But we are often too good at our job. In finding and refining these stories, we emphasize the threads that reinforce them and discard those that do not. Like good brief writers, we minimize the facts that work against us to tell a compelling narrative. We, not just courts, are the agents of jurispathy—killing off story lines of the law that do not fit our narratives.
In this case, we have told and retold a story about human rights, running from the horrors of World War II through the UDHR, the Covenants, and the successes of regional human rights courts, among others, in fighting for individual rights. Over time, those stories have been polished to a bright shine. Other potential narratives, told in vernaculars of social justice rather than rights, have fallen away. A time when socialism rather than rights was the language of social justice is difficult to even imagine.
By resuscitating those alternative narratives, their vernaculars, and their viewpoints, Moyn has given us the room again to imagine. And the time is an auspicious one for new ideas about social justice. The human rights regime,Footnote 9 international economic law,Footnote 10 and the whole post-war liberal order are currently in flux.Footnote 11 Illiberal democracies are on the rise and freedom, globally, seems under attack.Footnote 12 With the World Trade Organization under attack, trade wars have been started, as states seek “better” deals than the one offered by the current system.Footnote 13 Complaints about international investment law have reached a crescendo, as a range of states have sought to renegotiate and reform the system.Footnote 14 The list could continue across fields of international law.
Whether or not growing economic inequality, at least in the West, is a cause of this turmoil is an open question. There is no doubt though that the flux in those regimes, along with the continuing after effects of the 2008 financial crisis, has brought the reality of economic equality back into the public imagination and the political conversation.Footnote 15 The work of economists focused on the distributional effects of the current order, like Dani RodrikFootnote 16 and Branco Milanović,Footnote 17 and historians of the modern economy, like Moyn, Quinn Slobodian,Footnote 18 and Adam Tooze,Footnote 19 have joined more popular chroniclers of current inequality, like J.D. Vance,Footnote 20 Alyssa Quart,Footnote 21 and Edward Luce,Footnote 22 in the pages of popular reviews and even some bestseller lists. And the calls to remedy the growing divide between rich and poor, capital and labor, the elite and the left-behind from within domestic policy,Footnote 23 human rights,Footnote 24 and international economic lawFootnote 25 have been growing louder and more widespread. Figuring out how to reform these fields and their relationship to one another “is daunting in the extreme” (p. 220). “To date, a global welfare structure has only been imagined but never institutionalized” (id.). Reform will require breaking out of the intellectual and professional boxes or silos that we have so carefully built.Footnote 26 Not Enough helps us though start a new/old conversation about how we might think differently about social and material justice across those fields.
As edges of the current legal order has frayed, many have looked to history to try to make sense of what is happening. Oona Hathaway and Shapiro's book The Internationalists Footnote 27 looks to the birth of our current order and provides a historical pep talk. In their riveting, compelling story, law and lawyers matter; lawyers (the internationalists in question) succeeded in banning war. New problems have emerged, but lawyers can help solve them as well. Its history verges on hagiography. Adam Tooze's brilliant and nuanced Crashed,Footnote 28 covering the global history of the 2008 financial crisis and its aftermath, tells a story of well-meaning policymakers hemmed in by preconceptions, ideologies, and politics, doomed to fight immediate crises only to lose the longer-term economic war. It is history as tragedy. Moyn's book at times sounds like a tragedy too. He uses “grave” language to describe the death of ideas of equality and the rise of neoliberalism; some passages have an elegiac quality. But the book is better read as an attempt at redemption. It is history as imagination or potentiality. And the need for such imagination in a time of disaffection and anxiety will be the fuel of its ultimate popularity. As Moyn reminds us, “[m]any of our ancestors would have demanded more” (p. 213). Perhaps, we should too.
