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Inequality

Can Rights Combat Economic Inequality?

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Introduction

Few recent academic-press books have spurred as much public and scholarly debate as Professor Samuel Moyn’s Not Enough: Human Rights in an Unequal World.1×1. The book has spurred many reviews and debates. See, e.g., Gráinne de Búrca, Samuel Moyn. Not Enough: Human Rights in an Unequal World, 16 Int’l J. Const. L. 1347 (2018) (book review); Ioannis Kampourakis, Samuel Moyn, Not Enough: Human Rights in an Unequal World, 83 Modern L. Rev. 229 (2020) (book review); Jennifer Pitts, Not Enough: Human Rights in an Unequal World, by Samuel Moyn, 47 Pol. Theory 267 (2019) (book review); Mitchell Cohen, Did the Crusade for Human Rights Lead to More Inequality?, N.Y. Times (May 18, 2018), https://nyti.ms/2k4HuqO [https://perma.cc/ZLS2-3G2N] (book review); Katharine Young, Inequality and Human Rights, Inference (Dec. 12, 2019), https://inference-review.com/article/inequality-and-human-rights [https://perma.cc/T9JD-Z4VF] (book review). The blog Law and Political Economy featured some seven response pieces. See Category Archives: Not Enough Symposium, Law & Pol. Econ., https://lpeblog.org/category/not-enough-symposium [https://perma.cc/2GAS-N8F6]. This is unsurprising given its topical and important subject: the growing gap between rich and poor in many countries around the world.2×2. See Richard Partington, Inequality: Is It Rising, and Can We Reverse It?, The Guardian (Sept. 9, 2019, 1:00 AM), https://www.theguardian.com/news/2019/sep/09/inequality-is-it-rising-and-can-we-reverse-it [https://perma.cc/ENY4-KWEF]. Rising inequality, which Moyn and others attribute largely to neoliberal policies of free trade and free markets, is often blamed for the rise of populist movements and the resulting threats to liberal democracy (pp. 216–18). Moyn explores this phenomenon from the perspective of human rights: What, if anything, have human rights done to address the economic inequality at the heart of these disturbing trends?

“Not enough,” answers Moyn. The book is therefore a critique of the modern human rights movement, which, Moyn believes, has barely attempted to address economic inequality. As Moyn puts it, human rights have been “unambitious in theory and ineffectual in practice in the face of market fundamentalism’s success” (p. 216). While human rights “have occupied the global imagination,” they have “contributed little of note, merely nipping at the heels of the neoliberal giant” (p. 216). Even worse, the human rights movement has been tainted by association with unconstrained capitalism because the movement gained prominence while laissez-faire policies were gaining favor globally (p. 217). Moyn believes that “[t]he coexistence of the human rights phenomenon with the death of socialism . . . is a historical fact that needs to be named” (p. 217) because past decades show that “even perfectly realized human rights . . . are compatible with . . . radical inequality” (p. 213).

Not Enough: Human Rights in an Unequal World

By Samuel Moyn. Cambridge, Mass.: Harvard University Press. 2018. Pp. xii, 277. $29.95.

Moyn acknowledges that some advocacy efforts have addressed social rights, such as the rights to healthcare, to social security, and to education (pp. xi, 68–69, 143). But these efforts are not enough either, as they have focused only on sufficiency: a minimum of resources for the poorest of the poor, rather than comparable resources for all (p. 3). For Moyn, there exists a crucial distinction between the former, that is, “sufficiency,” and the latter, what he calls “material equality” (p. 3) (also “distributive equality” (p. 3), “economic justice” (p. 3), or just “equality” (p. 218)). Sufficiency captures “how far an individual is from having nothing and how well she is doing in relation to some minimum of provision of the good things in life” (p. 3).3×3. Emphasis has been omitted. In contrast, material equality “concerns how far individuals are from one another in the portion of those good things they get” (p. 3).4×4. Emphasis has been omitted. A commitment to material equality therefore effectively requires limiting inequality in any given country and a “commitment to a universal middle class” (p. 4). Moyn believes that promoting sufficiency is not enough to achieve equality: even if we realize higher levels of sufficiency for more people, the rich can still become richer (pp. 4–5).5×5. Moyn conjectures that promotion of sufficiency alone could lead to a world in which “the poor will come closer to sufficient provision as the rich reap ever greater gains for themselves” (p. 5).

Not Enough is a strong indictment of the human rights movement. Yet in the end, Moyn concludes that human rights law is actually the wrong vehicle for promoting material equality.6×6. There is some ambiguity here, as Moyn also claims that the human rights movement could do more: “If human rights movements today focused even more than they do on social rights, for example, especially in the promotion of labor rights that functioned as mechanisms of collective empowerment, it might make a significant difference to material outcomes” (p. 217). One reason is that human rights law — with its individualistic premise of constraining the state from committing human rights abuses against discrete persons — is simply a bad fit for the task of effecting material equality (p. 218). “[W]henever inequality has been limited,” he says, “it was never on the sort of individualistic and often antistatist basis that human rights share with their market fundamentalist Doppelgänger” (p. 218). Another, related reason is that human rights law’s toolkit — litigation and “naming and shaming” violators — is ill-equipped to promote economic justice (pp. 10, 218). According to Moyn, “When it comes to mobilizing support for economic fairness, the chief tool[] of the human rights movement — playing informational politics to stigmatize the repressions of states . . . — [is] simply not fit for use” (p. 218). In addition, the movement’s hopes for litigation have never materialized: Moyn concludes that litigation opportunities at the international level are ineffectual or nonexistent, while at the domestic level, courts have been unwilling and unable to do much of note (pp. 199–201). In fact, Moyn even questions whether human rights have any role to play in combating inequality: “[A] critical reason that human rights have been a powerless companion of market fundamentalism is that they simply have nothing to say about material inequality” (p. 216).

What, then, is Moyn’s solution? Moyn’s primary objective is to force redistribution and cap inequality (p. 218). To accomplish that, he argues, we need not only to provide a basic minimum of subsistence but also to set an income ceiling, lift up the middle classes, prevent the dismantling of existing social welfare states, and build new ones (pp. 214, 218–21). His own plan therefore entails a more radical shift than a mere change in human rights advocacy strategies. He appears to envision economic transformation realized through global economic interventionism, massive tax reforms, and new antitrust rules (p. 214). The end goal is a strong social welfare state, preferably extended to the global level. “The truth is that local and global economic justice requires redesigning markets or at least redistributing from the rich to the rest, something that naming and shaming are never likely to achieve . . . .” (p. 218).

Moyn’s critique and proposal leave the reader wondering: If human rights law by its nature is not the right vehicle for achieving his redistributive vision, why indict the movement for not addressing it adequately? Political economists and policymakers have been increasingly concerned with rising economic inequality.7×7. See, e.g., Christopher Ingraham, U.N. Warns that Runaway Inequality Is Destabilizing the World’s Democracies, Wash. Post (Feb. 11, 2020, 8:03 AM), https://www.washingtonpost.com/business/2020/02/11/income-inequality-un-destabilizing [https://perma.cc/3Y8T-LVLE]. Moyn masterfully forces his readers to grapple with the connection between human rights and this growing inequality. He places their relationship in historical perspective, taking us back to times when political leaders imagined a world with relative economic equality. Not Enough introduces us to the thinkers of the French Revolution, the architects of the mid-twentieth-century European social welfare states, and the drafters of the Universal Declaration of Human Rights, all of whom sought to close the gap between rich and poor. These leaders built societies genuinely concerned with material equality, with the post–World War II European social welfare state as Moyn’s primary example. They were also the first to put social rights into writing, although they viewed these rights as “regulatory guidelines” rather than as human rights in the modern sense (p. 55). By the end of the book, though, it remains unclear why the human rights movement is the object of Moyn’s scorn.

This Book Review addresses the question that Not Enough prompts but does not ultimately answer: Can human rights law, including litigation and other forms of legal mobilization, be used to promote material equality? To do so, this Review takes an angle mostly absent from Not Enough: the phenomenon of courts around the world interpreting their domestic constitutions to promote economic equality. Courts in Colombia, Mexico, Argentina, Peru, Hungary, Portugal, Russia, Romania, Lithuania, and Latvia have all, on occasion, rendered decisions that tackled economic inequality.8×8. See infra Part II, pp. 2029–52. Some of these courts have provided access to social rights–related goods and services to the poor and the middle classes alike. Others have protected middle-class entitlements in the face of harsh austerity measures or have prevented tax cuts for the rich or new tax burdens on the poor. In essence, these courts have used constitutional rights to do exactly what Moyn says human rights law has failed to do: attempt to advance economic equality.

One takeaway from these foreign examples is that rights do have a potential role to play in promoting economic equality. Many courts have deployed their constitutions to promote economic justice and, in doing so, have illuminated numerous possible connections between rights and material equality.9×9. See infra Part II, pp. 2029–52. Even though these decisions may fall short of Moyn’s transformative vision, they do ensure equality gains if faithfully implemented.

Another takeaway is that the political economy of these judicial interventions is very different from Moyn’s description of the international human rights movement. Notably, many of these interventions were not primarily concerned with sufficiency for the poor, but with protecting the middle classes.10×10. See infra pp. 2033–37, 2044, 2048–49. Indeed, some of the courts that have addressed economic equality beyond a minimum subsistence for the poor have been heavily criticized for pursuing a majoritarian agenda and engaging in “judicial populism,” that is, catering justice to the middle class.11×11. See infra pp. 2053–54. Commentators have argued that, in doing so, courts have strayed from the core objective of justiciable social rights: protecting society’s most vulnerable.12×12. See infra p. 2054.

This Review argues that if rights are to play a role in promoting material equality, some judicial populism is probably helpful. When large segments of the population benefit from judicial interventions, equality gains are likely larger than when interventions focus on the poor alone. Such interventions are not necessarily inconsistent with the judicial role: protecting the rights of the groups that lack political power, even if those groups comprise numerical majorities, is arguably a proper function of constitutional courts. What is more, such interventions can be particularly impactful. A large body of empirical social science literature on rights effectiveness has shown that, although rights enforcement is often difficult, rights are most impactful when mobilized groups of citizens push for their enforcement.13×13. See infra notes 265–272 and accompanying text. Such mobilization is more likely to occur for rights that benefit majorities than for rights that protect vulnerable minorities alone.14×14. See infra notes 265–272 and accompanying text. It follows that a human rights agenda focused on economic justice that also benefits the middle classes can be particularly powerful.

Ultimately, however, whether rights can promote economic equality is an empirical question, and neither Moyn nor I have done the work required to answer it with certainty. But I imagine that the readers of this Review will feel more optimistic about such an endeavor than those who only read Not Enough. At a minimum, my analysis suggests that it may be premature to abandon human rights law as a tool for fighting economic inequality.

My conclusions differ from Moyn’s chiefly because I introduce three perspectives that are mostly absent from Not Enough. First, my account draws heavily on the comparative constitutional law literature. Not Enough is an intellectual history focused on political thought in Western Europe and Northern America. Yet the comparative literature has shown that most of the action on social rights has occurred in the Global South, and particularly in Latin America.15×15. David Bilchitz, Constitutionalism, the Global South, and Economic Justice, in Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia 41, 47 (Daniel Bonilla Maldonado ed., 2013) (noting that for many constitutions in the Global South, “matters of economic distributive justice . . . are central”). Latin American courts are especially known for their social rights activism. See, e.g., César Rodríguez-Garavito, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America, 89 Tex. L. Rev. 1669, 1672–73 (2011). They were the first to enforce social rights and have been most aggressive in deploying them toward material equality. See Benedikt Goderis & Mila Versteeg, The Diffusion of Constitutional Rights, 39 Int’l Rev. L. & Econ. 1, 5–10 (2014). What is more, Latin American countries were the first to constitutionalize many social rights. See id. The right to public education was first constitutionalized in Haiti in 1801. Mila Versteeg & Emily Zackin, American Constitutional Exceptionalism Revisited, 81 U. Chi. L. Rev. 1641, 1688 (2014); see Constitution de 1801, art. 68 (Haiti). The right to asylum was first constitutionalized in Colombia in 1811. Lucas Kowalczyk & Mila Versteeg, The Political Economy of the Constitutional Right to Asylum, 102 Cornell L. Rev. 1219, 1261 (2017); see Acta de Federación de las Provincias Unidas de la Nueva Granada [Constitution] (1811) art. 39 (Colom.). Children’s rights were first constitutionalized in Haiti in 1816. See Revised 1806 Constitution d’Haïti (June 2, 1816) art. 35; id. art. 53. Rights for the disabled were also first constitutionalized in Haiti in 1816. Id. art. 35. The right to work was first constitutionalized in Mexico in 1857. Constitución Política de la República Mexicana (1857) art. 4. And the right to food was first enshrined in the constitution of Argentina in 1949. See Constitución de la Nación Argentina (1949) art. 37, § I.6. Notably, Not Enough does not cover the stories of the Latin American drafters who first imagined and constitutionalized these rights; its focus is on the 1791 French Constitution (which mentioned poor relief and public education) and other European constitutions (pp. 20–25). Indeed, Moyn mentions only the Mexican Constitution of 1917 and then moves on to the drafters of the 1919 Weimar Constitution and the 1921 Yugoslav Constitution, leaving untold the stories of the Latin American drafters who constitutionalized these rights (p. 35). Second, my account takes seriously the many different doctrinal connections between rights and material equality. Not Enough uses the term “human rights” broadly, to encompass both the political project of building a social welfare state and the legal project of the modern human rights movement. This approach may explain why Not Enough largely abstracts from doctrine. Taking doctrine seriously, however, reveals that judicial decisions that promote equality are rooted not only in social rights but also in property and equality rights. Thus, focusing on social rights alone does not reveal the full potential of human rights law to address economic inequality. Third, this Review engages the social science literature on human rights effectiveness. Sorting out the causal effect of human rights law is notoriously difficult.16×16. Adam S. Chilton & Mila Versteeg, How Constitutional Rights Matter (forthcoming 2020) (manuscript at 100–03) (on file with the Harvard Law School Library); see Adam S. Chilton, Essay, Experimentally Testing the Effectiveness of Human Rights Treaties, 18 Chi. J. Int’l L. 164, 166–68 (2017); see also Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 Eur. J. Int’l L. 171, 171–78 (2003); Eric A. Posner, Some Skeptical Comments on Beth Simmons’s Mobilizing for Human Rights, 44 N.Y.U. J. Int’l L. & Pol. 819, 823–30 (2012). Nonetheless, Not Enough makes a strong causal claim: human rights have been ineffective in reigning in the soaring income inequality around the globe (p. 201). In developing its claim, Not Enough does not engage the voluminous empirical social science literature that has attempted to sort out the causal impact of human rights law.17×17. For Moyn’s view on the debate, see Samuel Moyn, Beyond the Human Rights Measurement Controversy, 81 Law & Contemp. Probs., no. 4, 2018, at 121, 121–22. He argues that the controversy in the empirical literature over whether human rights treaties matter “[s]ettles [n]othing,” id. at 122, because “both sides have put similar or even identical intellectual and political options on the table” and that the debate “ought to end,” id. at 121. Granted, this literature has addressed social rights in only a limited way, and, to date, few studies have directly explored the impact of rights on material equality.18×18. See infra notes 265–266 and accompanying text. What is more, this literature has shown that rights protections are no panacea: it is only under a limited set of circumstances that they make a difference in practice.19×19. See infra notes 285–287 and accompanying text. Nonetheless, some of the literature’s findings do offer cause for optimism on the impact of social rights.

The remainder of this Review is organized as follows. Part I explores the relationship between rights and material equality by introducing the well-known concepts of the Lorenz curve and the Gini coefficient and providing some stylized examples of how rights can improve equality in theory. This Part reveals that there are a number of different ways that law can promote economic equality other than by capping the wealth of the rich, including successful efforts to promote sufficiency and the protection of middle-class entitlements. Part II gives examples of how courts around the world have used rights to promote economic equality. It focuses especially on judicial interventions in austerity measures and regressive tax reform, as these most directly seek to mitigate the neoliberal agenda. It observes that not all these cases were decided based on social rights provisions, and that some courts used the rights to property and equality to promote economic equality. Part III concludes by exploring the lessons we can draw from these foreign examples.

 


*Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law; Carnegie Fellow 2017–2019, Andrew Carnegie Foundation of New York. I thank Kevin L. Cope, Sujit Choudhry, Rosalind Dixon, Rich Schragger, Camilo Sanchez, Franz Oberarzbacher, David Landau, Nadiv Mordechay, and Micah Schwartzman for helpful comments and conversations. I thank Franz Oberarzbacher, Cosi Piehler, Apinop Atipiboonsin, Ben Doherty, and Xhin Luu for excellent research assistance. Unless otherwise noted, translations of Spanish-language texts were provided by Franz Oberarzbacher.