The Strange Victory of Human Rights

In 2002, a year before the invasion of Iraq, Samantha Power published A Problem from Hell: America and the Age of Genocide, a ponderous meditation on the responsibilities of the United States in responding to the outbreaks of exterminatory violence that cut a bloody swathe across the twentieth century. Just 32 at the time, Power was the executive director of the Carr Centre for Human Rights at Harvard’s Kennedy School, and her book contributed to the penumbra of liberal mood music accompanying the second Iraq War, the pianissimo to the operatic bombast emanating from the Bush administration.

When Barack Obama won the presidency six years later, Power was duly initiated into the new administration, first as a National Security Advisor, then as Ambassador to the United Nations. Alongside State Department functionary Anne-Marie Slaughter, she formed a Strangelovian-named duo that revealed – in ways that would be considered de trop for even the hackiest novelist – the reality of the liberal commitment to human rights. ‘Between equal rights,’ Marx wrote, ‘force decides’. ‘Responsibility to Protect’, the once-fashionable justification for US military intervention that moved to the centre of imperial policy under Obama, was – in truth – power and slaughter. The apotheosis of Obama-era human rights lies in the still smouldering ruins of what is now only notionally Libya.

But perhaps not just there. As Jessica Whyte demonstrates in The Morals of the Market: Human Rights and the Rise of Neoliberalism, it also lies among the decrepit tract-housing, poverty and unemployment that marked the recession that inaugurated Obama’s reign, and which marks, and will mark, much of the globe in the fallout from the COVID-19 pandemic.

The Morals of the Market reconstructs the ways in which major neoliberal thinkers and organisations were not indifferent to human rights, but deeply invested in them, or at least in their own construction of such rights. They wanted those rights to reflect what that they saw as the morality inherent in a market economy. To demonstrate this, Whyte’s work examines a number of crucial moments for both human rights and neoliberalism. In the first half of the book, she looks at the decades immediately following the Second World War, where the understanding of what constituted human rights was contested. In the second half, she turns to the 1970s, the period that would see the emergence of human rights as a hegemonic discourse in international politics. Whyte’s book shows that despite the differing emphases in this period, and the shift from the statements, manifestos and declarations of the first period to the constitutions, activist groups and death squads of the second, a clear set of normative commitments and rights undergirds and informs the technical theoretical proposals of the thinkers and groups who would come to definite neoliberalism.

---

Whyte, a philosopher and political theorist at the University of New South Wales, is no stranger to the task of untangling the knots of human rights. Her first book, Catastrophe and Redemption, was an examination of the political thought of Giorgio Agamben. Whyte draws out the concrete political implications of his hermetic and occasionally scandalous work, which is notable for its amalgamation of major strands in modern European thought from both the right and left, and Agamben’s abiding commitment to philology, theology and medieval thought. In particular, Whyte considers the devastation wrought by the European Union on Greece in the wake of the global financial crisis. Between the human rights enshrined by treaty in the EU and the rights of German and French bondholders to be made whole, force decided. Catastrophe was the result.

Agamben’s work allows us to conceptualise the Greek crisis. The destruction and the political response need not be understood within a narrow framework of national humiliation. Agamben cautions us, Whyte says, against ‘understanding the fate of contemporary Greece as a struggle for sovereignty and democracy against the rule of the economy’. Rather, we must look to what Agamben calls ‘economic theology’: an economic or governmental strand of Christian theology, which Agamben reconstructs from the early Church Father’s debates about the doctrine of the Trinity. If political theology, as Carl Schmitt (another major influence on Agamben) puts it, indicates that ‘all significant concepts of the modern theory of the state are secularized theological concepts’, then Whyte argues that understanding economic theology allows us to ‘grasp the genealogy of contemporary liberal democracies … characterised by economic management, consensual democracy, and spectacle’. These two theologies, as their joint origins in the Trinity indicate, are mutually dependent, such that any strategy that mobilises a violated sovereignty (political theology) against alien economic management (economic theology) – as the Greek fascists of Golden Dawn were wont to do – is both dangerous and doomed to fail.

However, Agamben’s account remains limited. What he is unable to do, Whyte suggests, is ‘adequately conceptualize the contours of the global catastrophe that takes its paradigmatic form in Greece’. While Agamben offers us immense resources for thinking through the deeper intellectual basis of our worldly government, he fails to help us understand the ways in which the Greek crisis, and the Global Financial Crisis of which it was a part, was a ‘specifically capitalist crisis’. Only by grasping this specificity are we able to formulate a response that moves beyond mere observation or even condemnation of this ongoing catastrophe. Better, Whyte suggests, to look past Agamben, and back to Marx or to Walter Benjamin. Those thinkers allow us to consider both the form of withdrawal specific to capitalism – the general strike – and the specific needs of capital to reduce, as Marx puts it in the Grundrisse, the level of wage labour to the point where ‘the most animal minimum of needs and subsistence appears to him as the sole object and purpose of his exchange with capital’.

This methodology – of confronting the claims of philosophical abstraction with the material realities of capitalism – marks Whyte’s thinking. The Morals of the Market is a continuation of this approach, confronting the modern high priests of economic theology with the ruin wrought under the banners of their speculation.

To do this, Whyte has migrated from traditional philosophical exegesis into intellectual history. As her book’s subtitle suggests, she is attempting to trace a genealogy of the limited form of human rights that has come to dominate the halls of power, which, she argues, reflects the particular interpretation of human rights developed by the economists we now associate with neoliberalism, who seek to formulate not just rules of the marketplace, but norms too. This is counterposed both to some claims from the left that see little but nihilism and a lack of a positive program of change, and to the claims of some neoliberals, that they are merely technicians of the market, neutrally determining a set of policies that conform to the verities of capitalism and human nature.

In this, Whyte is working at the confluence of two crucial movements in contemporary historiography, each of which gained speed as the ‘humanitarian’ wars and financial crises of the past two decades revealed the underlying realities of the reigning moral and economic ideologies.

The first is an explosion of research, much of it by cultural and intellectual historians, into the concept and genesis of ‘human rights’. This has included work by Lynn Hunt on the ‘invention’ of human rights in the eighteenth century, which reads epistolary novels of private life and sentiment – Richardson’s Pamela and Clarissa, for example. Hunt argues that these novels encouraged a deep identification with their weak and oppressed protagonists and led readers to see all humans as fundamentally like them, and thus bearing some natural rights. More germane to Whyte’s study is the work of Samuel Moyn. The titles of his two book-length works examining the rise of human rights in the second half of the twentieth century, The Last Utopia and Not Enough, summarise his attitude. The history of the concept in Australia received its full-dress treatment by Jon Piccini in 2019. Behind works such as these lies a vast hinterland of less celebrated research, much of it appearing in academic periodicals like the Journal of Human Rights and Humanity.

The second movement is what can broadly be called the history of neoliberalism. This can be crudely summarised as occurring in two waves. The first emerged out of the social sciences and political theory, seeking to grasp the particular type of politics and regimes that marked neoliberal states. Examples of this include Wendy Brown’s seminal essays of the early 2000s, including ‘Neoliberalism and the End of Liberal Democracy’ and ‘American Nightmare: Neoliberalism, Neoconservatism, and De-Democratization’, and David Harvey’s A Brief History of Neoliberalism. In a moment of felicitous historical coincidence, the work that might be said to both reflect this first wave and anticipate the second, Michel Foucault’s The Birth of Biopolitics, based on transcripts for lectures given at the Collège de France in 1978–79, was first published in 2008. The second wave returned to key moments in the birth and development of what one of the doyens of this work, Philip Mirowski, called the ‘neoliberal thought collective’.

The thrust of all this work was to trouble the understandings of human rights and neoliberalism held by both the right and the left. Human rights are neither atemporal endowments of mankind, nor are they uncomplicatedly positive. Neoliberalism is not a mindless program of winding back the state. Perry Anderson once rightly called the European Union ‘the last great world-historical achievement of the bourgeoisie’, and it bears human rights and neoliberal ideas about economic governance in its heart. Whyte’s book, then, is an attempt to articulate what might be seen as the intellectual peak of bourgeois ideology.

---

In the spring of 1947, in a resort town on Lake Geneva, Friedrich Hayek, The Road to Serfdom already behind him, convened a small group of economists, with some sympathetic historians and philosophers, who declared that ‘over large stretches of the Earth’s surface the essential conditions of human dignity and freedom have already disappeared’. For this group, these essential conditions were not only extinguished in the USSR and the newly conquered states of Eastern Europe, but also in Western Europe and the United States, where efforts were underway to build the welfare states that were to characterise the trente glorieuses of capitalism. This creeping totalitarianism, proclaimed the group that would come to call itself the Mont Pelerin Society, meant that the ‘central values of civilisation [were] in danger’. From the outset, the questions this group would concern themselves with would not be limited to the technical questions of economic management, but would encompass the gravest moral questions of human life.

The society counted among its members the brightest stars in the neoliberal firmament. This included not just Hayek (president until 1961), but Milton Friedman and Wilhelm Röpke – both of whom also served as presidents – as well as Ludwig von Mises, like Hayek, a child of late-Hapsburg Vienna.

This ‘neoliberal thought collective’ (to return to Mirowski’s phrase) brought together a number of lines of economic thought. Hayek and von Mises emerged out of – and later defined – Austrian economics, which built on the theories of marginal utility developed by the likes of Carl Menger to provide an account of macroeconomics and broader social phenomena from the perspective of individual choice. Friedman represented what would come to be called the Chicago School, which operated from the same methodological assumptions as the Austrians, but focused on the consequences for government policy making. The Chicago School rejected the Keynesian emphasis on fiscal policy, arguing that a government’s remit was limited to regulating the monetary supply, preferably without democratic interference. Röpke represented the strand of neoliberal thought that focuses on the so-called social market economy. This strand, generally referred to as ordoliberalism, emphasised the role of the state in the construction and ongoing maintenance of the market. Its institutional home was at the University of Freiberg. Ludwig Erhard, who, as finance minister and then Chancellor of Germany, oversaw that country’s Wirtshaftswunder, was an adherent and would join the society in 1950.

When Whyte speaks of ‘the neoliberals’, she is referring to this thought collective. She argues that one thing uniting these different approaches was a shared account of human rights, which developed in parallel and eventually overcame the better-known version embodied in the 1948 Universal Declaration of Human Rights (UDHR).

The first three chapters of The Morals of the Market set out three systemic differences between these two versions of human rights. Firstly, Whyte argues that it is wrong to see the neoliberals as balance-sheet nihilists. At the heart of their early preoccupations was a desire to defend ‘the West’ and ‘civilisation’ by ‘develop[ing] a moral framework to protect the market economy’. Secondly, the neoliberals believed that there was a fundamental distinction between what Hayek called ‘classical civil rights’ and the expansive vision of the UDHR, which included broader social rights to work, health, leisure, education, and so on. According to Hayek, the latter was an attempt to suture ‘the rights of the Western liberal tradition with an altogether different conception derived from the Marxist Russian Revolution’. Thirdly, as decolonisation progressed in the decades after the Second World War and grounded its demands in the UDHR, the neoliberals developed an alternative account of colonialism and thus a different prescription for postcolonial countries. ‘Against postcolonial demands for economic self-determination’ Whyte argues, ‘the neoliberals mobilised their dichotomy between the market as a realm of mutually beneficial, free, peaceful exchange, and politics as violent, coercive and militaristic.’

In confronting these apparent threats to the argument that commerce and the market were not sources of corruption, but naturally ‘civilising’ and benign, the neoliberals were forced to develop a conception of human rights capable of providing a coherent response to the perils of universal healthcare and social housing. Given the scale of a such a challenge, Whyte argues that this articulation was ‘a central component of the neoliberal attempt to inculcate the morals of the market’.

What, then, are human rights as articulated by the neoliberals? Broadly, they might be summarised as liberty, equality, property and security. At this level of abstraction, there is little that the drafters of the UDHR might disagree with. But as Whyte shows, these rights are specific in their neoliberal guise. Neoliberal liberty is ‘largely indistinguishable from submission to what Mises called “the sovereignty of the market”’. Formal equality is ‘a right of everyone to preserve their unequal wealth and power in the face of political demands for redistribution’. The neoliberal right to security is ‘a right for states to beat into submission those who threaten the market order’. States must also secure the right to property, which for neoliberals is ‘the right to impose “good governance” and the institutional structures that private investment requires across the globe’.

What this amounts to is a brief for ‘human rights as the moral language of the competitive market’. The conjunction of rights-morals-market is crucial here, because these terms are mutually dependent. Violations of human rights only occur when they impinge on the liberty, equality, property and security embodied in the competitive market. At the same time, any attacks on the market (as defined by neoliberals), such as the provision of healthcare through a non-market mechanism, are attacks on human rights, as they violate the principles outlined above. Human rights can only exist and be defined in the market, so the market itself becomes the only guarantor of human rights.

---

In the second half of her book, Whyte turns to the ‘human rights revolution’ of the 1970s, and what she sees as two emblematic instances of the morals of the market being put into practice. There was a shift in the emphasis of human rights groups, whereby the ‘attempt to discipline postcolonial states held a much larger place in the new politics of human rights than did the concerns with economic welfare and self-determination of previous decades’. Whyte presents contrasting case studies – call them tragedy and farce – to illustrate this.

The first is an account of the Chilean regime Augusto Pinochet, that brutal triumph of neoliberal state-making, and how that regime was received by a nascent Amnesty International. The second is the creation of Liberté sans Frontières by some of the leadership of Médicins sans Frontières (MSF) as a research centre ostensibly concerned with wider questions of economic development and human rights. What this foundation comes to symbolise for Whyte is the retrenchment of economic justice within human rights activism. She notes the increasingly prevalent ‘argument against postcolonial economic quality and in favour of a liberal economy’. This led to a ‘distinctively neoliberal human rights discourse, in which civil and political rights are essential aspects of the institutional structure necessary to facilitate a liberal market order’.

The story of Pinochet’s 1973 coup against the elected social-democratic government of Salvador Allende is well known. So is the role of key neoliberal thinkers in shaping and celebrating the dictatorial regime that emerged from the coup. Hayek would routinely praise the junta, and acted as the intellectual inspiration for its constitution, while Friedman and his ‘Chicago boys’ were key policy advisors. For Whyte, it is the very starkness of this case that makes it the most striking illustration of the neoliberal understanding of human rights:

It was in Chile that a neoliberal human rights discourse was consolidated. This neoliberal version of human rights justified constitutional restraints and law as necessary to preserve the individual freedom that only a competitive market could secure. If human rights were a product of a functioning market, as the neoliberals consistently argued, they were also necessary to protect the market from egalitarian political movements. Rather than protecting individuals from state repression, neoliberal human rights operated primarily to preserve the market order by depoliticising society and framing the margin of freedom compatible with submission to the market as the only possible freedom.

NGOs such as Amnesty International documented the abuses under Pinochet, but deliberately avoided the political conflict at the heart of the disorder in Chile – the role of the government in the economy, and in alleviating poverty and dispossession. This meant that they reinforced the ‘dichotomy between violent politics and pacific civil society’ and thus worked to discredit ‘political challenges to the inequalities and impersonal domination of market society’.

Chile constituted another kind of culmination too, in that it drew from all the major branches of post-war neoliberalism. Initially, Friedman and his coterie provided crucial advice on economic ‘reform’, but the regime preceded to draw upon ordoliberalism, the public choice theory of James Buchanan’s (Mont Pelerin Society president 1984-86), and Hayek’s ‘constitutionalism’. What these strands shared was ‘an attention to the role of morality … in a market order, and a commitment to using law to protect the immediate institution of civil society from political interference’.

This is clearly seen in the constitution adopted under the Pinochet dictatorship, which took its title, The Constitution of Liberty, from Hayek’s 1960 book of the same name. Human rights were codified alongside powers intend to severely limit what Hayek would call ‘unlimited democracy’, which he maintained was the ‘particular form of representative government that now prevails in the Western world’. An ideal constitution, he argued, should contain an emergency provision as ‘freedom may have to be temporarily suspended when those institutions are threatened which are intended to preserve it in the long run’. These are the paradoxical norms of the market order.

---

Whyte’s book closes with an examination of the neoliberal response to the growing wave of Third World challenges to the global political order and the theoretical resources neoliberalism developed to counter demands for a fundamental reordering of the global economic hierarchy. In particular, Whyte examines the work of development guru Peter Bauer, who took the abstractions of neoliberal thinkers and applied them to prescriptions for poverty reduction in the Third World. Individualism would need to be encouraged through the abolition of communal land and the creation of individual property rights. People must be freed from ‘the hand of custom’ and the grasping demands of suspiciously large extended families. Only in freeing such ‘animal spirits’ could poverty be overcome.

Bauer – another Mont Pelerin initiate – spoke at the inaugural conference hosted by Liberté sans Frontières in 1985, and a series of remarkably candid interviews with that group’s founders forms a thread running through Whyte’s final chapter. These founders, also significant figures within MSF, represented the activist wing of neoliberal human rights discourse. Whyte argues they ‘played an important role in shifting responsibility for Third World poverty away from the legacy of colonialism and the neocolonial framework of the global economy, and onto the leaders of individual Third World states’.

In these founders – notably Rony Brauman, president of MSF from 1982 to 1984 – we can also see the limits of Whyte’s project, and the challenges that confront any work of intellectual history as ambitious as this. As the chapter closes, Whyte quotes from her interview with Brauman:

I see myself and the small group that I brought together as a kind of symptom of the rise of neoliberalism … We had the conviction that we were a kind of intellectual vanguard, but no, we were just following the rising tendency.

Whyte disagrees, calling Brauman ‘too modest’, but she does not substantiate the assertion. At the centre of intellectual history – particularly when it is, like Whyte’s, influenced by Marx – is the question of causation or, as Brauman has it here, symptomology. That is, to what extent is all this intellectual production merely the epiphenomena of the unfathomable tectonic movements of capital? Or from an alternative tradition: to what extent is it just the perfumed atmosphere surrounding the great men and women of action – Pinochet, Reagan, Thatcher and so on – who are simply casting about for ideas to guild the lilies grown elsewhere?

Whyte’s book, then, is ultimately a warning. By so thoroughly illustrating the ways in which the expansive claims of a socialist, anticolonial or democratic human rights have been met and countered by a rigorous and self-conscious neoliberal response that does not abandon the field of rights – as early accounts might have had it – but instead occupies it, she offers a valuable corrective to any naive invocation of the rights of man.

The Morals of the Market is excellent on the intellectual frameworks of neoliberalism, and on the ways in which they have recast human rights. What it doesn’t do is account for how the particular conception of human rights developed by a group of thinkers who once sat outside of mainstream economic thought came to reside at the centre of a global empire. What were the broader structural transformations that had to occur within the political economy of that empire in order for Operation Iraqi Freedom to position itself as inculcating the morals of the market in a populace cruelly deprived of such instruction?

---

In her afterword, Whyte notes that the rise in right-revanchism ‘suggests that the project of subordinating politics to human rights norms and transferring governance to international bodies has failed to create more inclusive and equal polities’. This might be worthy of consideration for those invested in human rights as a path to inclusion and equality, but is this true of Hayek or von Mises? They would surely argue that endeavouring to create more inclusive and equal polities is dangerously hubristic – what the market order creates spontaneously cannot be undone through mere political will. That will would be better turned to the maintenance of that order. The distance between Whyte’s indictment of the morals of the market and the cool indifference of the neoliberal position marks the explanatory gap between Mont Pelerin and Mosul.

A similar misapprehension marked a key moment in the Greek financial crisis Whyte addresses in her first book. Yanis Varoufakis, finance minister of the newly elected SYRIZA government, went to the relevant European bodies to explain why policies of ‘fiscal waterboarding’ were not merely brutal but economically incoherent. He was met mostly with indifference or hostility. In particular, he was faced with one figure who, he later said, ‘controls everything’: German finance minister, Wolfgang Schäuble. Schäuble was, mirabile dictu, educated at the University of Freiberg, home to ordoliberalism.

Varoufakis should have read Whyte’s book. Schäuble’s goal for Greece was not its economic recovery, but its ethical instruction. He was acting not as an economist, but as a moral tutor. This was an unbridgeable gap. The deal put to the Greeks remained punitive. After a referendum in which the Greek people – demonstrating that pernicious democratic threat to freedom that Hayek warned about – voted no to the European offer, Varoufakis resigned. SYRIZA, trapped by a referendum they had hoped to lose, were eventually forced into a humiliating acceptance of European terms. A victory, of sorts, for human rights.