—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.”[1] 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.
In the Colombian case, the defense of socioeconomic rights adjudication by progressive elites has been accompanied with a historical account that tends to canonize the 1991 process that led to a constitutional reform. The overwhelming presence of violence in the country – related to armed struggle, drug trafficking and urban crime – during the late 1970s and the 1980s contributed in creating a mythological status for the 1991 constitutional reform, which has been seen as a process that saved the country from a deeper crisis and a profound social disintegration. The democratic process that led to the election of the constituent assembly’s members, as well as the rise of the Constitutional Court’s prestige through the adjudication of socioeconomic rights after 1992, also aided in building an historical idea about a sort of untouchability of the 1991 Constitution. Progressive and left leaning scholars and jurists were particularly interested in preserving this status.[2]
This state of affairs placed conservatives and the right wing in an offensive position, while the left played defense. Conservatives seek to restrict, for instance, sexual and reproductive rights, individual liberties, and have struggled to limit the authority of the Constitutional Court in socioeconomic rights adjudication. In doing so, some on the right have questioned the legitimacy of the 1991 process. Meanwhile, progressive have resisted by defending rights and liberties, separation of powers, and socioeconomic constitutional adjudication allegedly brought about by the 1991 Constitution.[3] But Moyn’s argument is unsettling for progressives, for it actually raises the question whether this defensive position is the best that we can wish for, especially if rights adjudication appears relatively ineffective in curbing inequality or even satisfying basic needs. Although there can be cases where rights might have had specific redistributive effects, the overall political project of overcoming inequality, or even poverty, has largely failed.
If Moyn is right, one of the problems of progressives and the left is that they have sat on a defensive position and they do not have a powerful narrative to counteract the conservative offensive of the last fifteen years. One of the suggestions for scholars is that we might need a different story of what happened in the 1991 constitutional reform, a narrative that steers away from the celebratory transition-to-democracy account that permeated constitutional histories of the 1980s and 1990s. Colombian constitutional history of the 1991 process has been over-concerned with the important domestic story of the student movement that came up with the idea of calling the people, el constituyente primario, to express their will in changing the Constitution. The idea overcame an institutional stalemate and proved essential for the approval of the 1991 charter. But these stories lose sight of global and local intellectual battles about poverty and inequality, and their relationship with rights. The overwhelming presence of violence in Colombia has led to narrow approaches toward legal reforms, losing sight of broader battles in the field of political, economic and legal ideas that can also explain pain and death.
Moyn’s Not Enough is an attractive invitation for constitutional scholars in the global south to rethink the transitions to democracy of the 1980s and 1990s. The immediacy of local factors in transformations has led to domestic narratives that ignore (or give a secondary status) to ideas that have travelled the world and have connected the fate of many people across borders. Rethinking transformations from a historical perspective does not mean that we aim to show that we were better off under the authoritarian frameworks of the past. Rather, the purpose is to reimagine new alternatives and roles for constitutional law in an age where many feel that inequality and poverty has been ineffectively tackled by rights adjudication.
Suggested citation: Jorge González-Jácome, Samuel Moyn in Bogotá: Not Enough and Domestic Constitutional Histories, Int’l J. Const. L. Blog, Sept. 7, 2018, at: http://www.iconnectblog.com/2018/09/samuel-moyn-in-bogota-not-enough-and-domestic-constitutional-histories/
[1] Samuel Moyn, Not Enough. Human Rights in the World Today, Cambridge Mass: Harvard University Press, 2018, p. 201.
[2] One of the most sophisticated accounts of this process is: Julieta Lemaitre, El Derecho como Conjuro. Fetichismo Legal, Violencia y Movimientos Sociales, Bogotá, Siglo del Hombre Editores-Uniandes, 2009
[3] See: “Uribe vs Gaviria: duelo por la Constitución”, Revista Semana, 08/19/2009, available at: https://www.semana.com/politica/articulo/uribe-vs-gaviria-duelo-constitucion/106425-3 .
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