—Jorge González-Jácome, Universidad de los Andes (Bogotá)
The recent publication of Samuel Moyn’s Not Enough has triggered an important debate among human rights and international law scholars. The book focuses on the discussion about the relationship between the human rights revolution of the 1970s and the more or less simultaneous rise of neoliberalism and its diffusion around the world as a paradigmatic economic model. Moyn steers away from Marxist explanations and rejects the idea that legal ideals embedded in human rights are a mere reflection of the socioeconomic structure of the world. Instead, he shows that there were a set of complex processes revolving around the rise and fall of the welfare state in the global north and south. The book mainly underscores the formation of international law since the end of World War II within the framework of a tension between ideals of sufficiency, ensuring that everyone has a minimum of the good things in life, and equality, aiming towards redistributing goods for the purpose of breaching gaps between the wealthy and the poor. Moyn’s reconstruction is a suggestive revision of the relationship between welfarism, neoliberalism, and individual rights. The main legal character of Not Enough is international law. Although constitutional law briefly appears -namely through a sound criticism of the redistributive power of social and economic rights adjudication-, I would like to argue that the book is also a provocative invitation to rethink domestic constitutional histories.
One of the key questions of Moyn’s work is about the changing relevance of human rights after the Universal Declaration of 1948. Our contemporary notions of international human rights norms emerged only in the 1970s, when activists, non-governmental organizations and, finally, international apparatuses used a set of ideals to pierce the veil of national sovereignty in order to name and shame state actions. One question that emerges in this historical revision is about the meaning of human rights after its promulgation in the late 1940s. In Not Enough, Moyn argues that the role of rights before the 1970s has to be assessed against the framework of the rise of the welfare state and decolonization, while their relevance after that period has to be understood through considering the neoliberal background that accompanied their ascent. Within this framework, our contemporary consciousness about rights, including constitutional rights, underscores their role in accompanying the rise of neoliberalism and operating to remedy some of the most gruesome effects of market policies. For example, domestic adjudication of social and economic rights leads Constitutional Courts to protect individuals against big banks during economic crises, thereby softening the rules for collecting debts in order to protect the right to adequate housing. Courts may invoke the right to health and order medical treatments to patients with serious illnesses and they may also seek to construct concepts of human dignity for the sake of protecting those who cannot work and still need a basic set of entitlements that cannot be provided according to market logics.
Even more poignantly, Moyn argues that constitutional rights adjudication has been powerless even for fulfilling the aim of sufficiency. Building on the work of David Landau and Helena Alviar in Colombia, he stresses that “social rights adjudication functioned far better to maintain the middle class against the stripping of privileges than it did to succor the most miserable. To identify the claims of and offer remedies to the truly indigent, the internationally developed concept of a ‘minimum core’ to each social right proved of less use than many originally hoped.” This argument raises a question about the alleged transformations that democratic transitions achieved in the global south, especially in the poster children of socioeconomic rights adjudication – namely India, South Africa and Colombia.