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All too relevant: Marx’s critique of rights and neoliberal human rights

Originally published: Legal Form on March 6, 2020 by Eva Nanopoulos (more by Legal Form) (Posted Mar 15, 2020)

This is the first in a series of posts comprising a symposium on Jessica Whyte’ s recently published book, The Morals of the Market: Human Rights and the Rise of Neoliberalism (2019).

Jessica Whyte’s new book, The Morals of the Market, demonstrates the kind of scholarship we all aspire to: insightful, thought-provoking, and, above all, accessible and engaging. In it, she traces the “historical and conceptual relations between human rights and neoliberalism” (4). Her intervention in what is now a brewing debate about the interconnections between neoliberalism and human rights, both of which have gained global credence since the 1970s, is distinctive for at least two reasons. Conceptually, the book does not approach neoliberalism merely as a set of economic policies or a doctrine of market fundamentalism. Instead, it retrieves a more holistic account of its moral dimension and the place of human rights within the “morals of the market” through a careful reading of key intellectual neoliberal thinkers such as Friedrich Hayek, Ludwig von Mises, and Wilhelm Röpke. As she writes, the competitive market that twentieth-century neoliberals “sought to revive was not simply a more efficient means of distributing resources; it was the basic institution of a moral and ‘civilised’ society” (10). This perspective allows Whyte to explore how neoliberals deployed the language of human rights to further their project and how this neoliberal iteration and discourse of rights was subsequently embraced by human rights NGOs. She uses the term “neoliberal human rights” not so much to refer to a particular list of rights as much as to a practice and notion of human rights that aligns with neoliberal ideas, including the crucial assumptions (a) that contrary to the violence of politics, markets are inherently peaceful, (b) that market freedom is thus an essential precondition for the realization of world peace and human rights, and (c) that human rights should be compatible (i.e. not interfere) with and support the market order. Historically, the book does not focus solely on the 1970s, but tracks the gradual intertwining of the two projects (and hence the emergence of “neoliberal human rights”) from the end of the Second World War, with the drafting of the Universal Declaration of Human Rights, to the first neoliberal experiment in Chile, the aftermath of decolonization, when the third world agitated for a new international economic order designed to address the injustices of colonialism, up to the present. The end product is a powerful narrative about how neoliberalism and human rights spread in tandem in a mutually constitutive fashion, implanting capitalist social relations across the world, and how human rights were instrumental in crashing alternative political projects, most notably welfarism and third world aspirations for global economic redistribution.

In this short post, I do not aim to offer an overview of Whyte’s story (I have done so in a separate review for State Crime). Instead, I want to discuss Whyte’s contribution to the Marxist critique of rights. Whyte’s conclusion that neoliberalism and human rights developed as “fellow travellers” sets her in opposition to the recent work of Samuel Moyn. While his famous revisionist historiography of human rights traced their origins to the 1970s,(1) Moyn has refused in subsequent writings to read into the uncanny parallels between the two projects more than a mere historical coincidence. For him, human rights became “powerless companions” to the neoliberal project, but “neoliberalism, not human rights, is to blame for neoliberalism”.(2)

Moyn situates his argument between two opposing poles, what he calls the “mainstream” and “Marxist” approaches.(3) According to Moyn, the former presents human rights as a way of limiting the excesses of the market, and has been disproven in practice. In addition, human rights tend to emphasize the securing of a minimal level of sufficiency rather than material equality, which makes them inherently unsuitable for countering market fundamentalism (as the title of his latest book, Not Enough, makes clear).(4) By contrast, the “Marxist” position–which Moyn takes to assert an inextricable, almost causal, link between global neoliberal capitalism and human rights–overstates the connections between the two.

Leaving aside for now the question of whether Whyte’s work could be classified as “Marxist” simply because she demonstrates the deeper connection between the two projects (or indeed whether, given the plurality of Marxist positions on human rights,(5) these can be reduced to the single argument that neoliberalism “required”(6) human rights),(7) Moyn’s objection to the “Marxist” position rests at least partly upon the alleged anachronism of the critique formulated by Marx in On the Jewish Question.(8) In this text, Marx famously criticized the rights contained in the Declaration of the Rights of Man and of the Citizen, adopted in the aftermath of the French Revolution. These comprised a mixture of political rights, or the rights of the citizen, and droits de l’homme, or the rights of man (such as freedom of conscience, and the rights to property, liberty, security, and equality), which are often taken to be precursors of modern human rights. For Marx, this latter set of rights merely reflected the rights of “egoistic man, man as a member of civil society, namely an individual withdrawn into himself, his private interest and his private desires and separated from the community”.(9) Moyn’s skepticism as to the contemporary relevance of Marx’s early work has at least three strands. First, however persuasive Marx’s critique of rights may have been, human rights are no longer reducible to the narrow nineteenth-century protections of contract and property.(10) Second, there is a “massive distance between the globalizing capitalism to which [Marx] bore witness and our world”.(11) And, finally, Marx’s original critique would therefore require “significant theoretical work … to apply it to modern-day international and global human rights politics”.(12)

In the introduction, Whyte explicitly engages with Moyn’s first argument. For Whyte, who otherwise agrees that contemporary human rights differ from their nineteenth-century counterparts, the comparison misses the fact that neoliberalism also differs from classic laissez-faire liberalism, and that the former may therefore require a different set of legal and political arrangements. The whole point, Whyte argues, is that neoliberals thought that protecting property rights and contracts was a necessary but insufficient condition for the creation of a competitive world market.

To prove her point, she moves on to compare the rights of man, as criticized by Marx, with neoliberal conceptions of human rights. For Marx, Whyte recalls, the right to liberty essentially amounted to a right of separation of “man from man”, a “right to do and perform everything that does not harm others”.(13) Neoliberals, she continues, would take the right in a slightly different direction. Their emphasis on the market as a precondition for human rights meant that, for them, the latter could only be realized within what Whyte calls the “margin of freedom” (23), namely the measure of action compatible with the “sovereignty of the market” (23) and the reproduction of a competitive capitalist order. As a result, they conceptualized the right to liberty as a “right to do anything that does not harm the market” (24).

Similarly, Whyte shows that while Marx interpreted the right to equality in the “non-political sense”(14) as the equal right “to be a self-sufficient egoistic monad”,(15) many neoliberal figures did not believe in human equality. Aptitude for the market was racially defined, while the gendered division of labour ensured that providing for biological and other needs remained the responsibility of the home: under no circumstances was the state to operate as a family household, which also explained their aversion to the term “economy”, which comes from the Greek oikos, meaning household. The neoliberal conception of equality was thus shaped by concerns about how to facilitate the construction of a competitive market order while preserving the racial and gendered hierarchies naturally presupposed by it. This culminated in the articulation of a formal right to equality as a “right of everyone to preserve their unequal wealth and power in the face of political demands for redistribution” (24).

Whyte then considers Marx’s critique of the right to security, which he described as the “supreme social concept of civil society”.(16) For Marx, security was closely connected to the “concept of police, the concept that the whole of society is there only to guarantee each of its members the conservation of his person, his rights and his property”.(17) Neoliberals, Whyte shows, aimed “to globalise this function, legitimising state violence aimed at the global dissemination of capitalist social relations” (25). Notwithstanding their claim that the market is inherently peaceful, the neoliberal conception of security effectively amounted to a “right for states to beat into submission those who threaten the market order” (25).

Whyte closes her comparative analysis with the right to property. For Marx, the right amounted to a “right of self-interest”,(18) which stood at the very foundation of the entire capitalist system. Neoliberals agreed with respect to the importance of property rights, which ensured that “wealth was put in the hands of those most capable of utilising it” (25), but their emphasis was now also on the conditions necessary to guarantee their protection. As such, they supported a right to property as a broader “right to impose ‘good governance’ and the institutional structures that private investment requires across the globe” (25).

Through this powerful elucidation of the core features of neoliberal human rights, Whyte goes some way to countering Moyn’s point that human rights cannot be systemically connected to neoliberalism solely because they no longer only protect private property rights. Whether that would justify describing her analysis as Marxist is, however, doubtful. Whyte never explicitly returns to Marx’s critique of rights, nor does she seek to situate her argument within Marxist debates about human rights or anchor her story in the tradition of historical materialism. The book seeks to “explain why these two revivals and reinventions of liberalism [human rights and neoliberalism] took place at the same time, and why their trajectories have been so intertwined ever since” (4). Part of the answer to that latter question could have involved a more sustained engagement with the relationship between liberalism, in its many variants, and capitalism, pushing the analysis past intellectual history pure and simple. But the book works primarily on the level of ideas to uncover the conceptual and historical affinities between human rights and neoliberalism; it does not–nor did it aim to–map the changing form and content of rights onto changing configurations of capitalism.

This necessarily means that the book neglects Moyn’s second point about the need to engage with the specificity of contemporary capitalism. Certainly, a Marxist approach would require a sustained engagement with the internationalization of capitalism, the increased transnationalization of capitalist social relations, and the place of human rights within the complex political, legal, and ideological arrangements that sustain and reproduce the capitalist mode of production in its globalized neoliberal form today. But it also means that some of the continuities between classic liberal rights and neoliberal rights (and hence some aspects of the enduring relevance of Marx’s early critique) go missing.

For Whyte, “the correlate of seeing the competitive market as the sine qua non of peace, freedom and rights is that that neoliberal human rights exist not so much to protect the individual–even the egoistic individual–as to preserve the market order” (22). But it is not clear that Marx’s critique focused only, or even primarily, on rights as protectors of the bourgeois man. Marx’s critique of the rights of man was made as part of his broader critique of the limits of political emancipation under capitalism, a concept he uses in reference to the granting of equal rights of citizenship and political participation. For Marx, however important an achievement, political participation did not amount to real human emancipation because in the sphere of civil society, individuals remained fundamentally unequal and alienated from their true self as communal species-beings. In that context, his critique of the rights of man, as the rights of individuals as members of civil (bourgeois) society rather than as members of the political community, was precisely that they helped to sustain unequal capitalist relations and maintain a market order that thwarted any prospect of true human emancipation. In subsequent work,(19) Marx (and Marxists) would place even greater emphasis on the role of legal rights in the constitution and reproduction of the capitalist order as a whole. In that regard, it is also doubtful that neoliberal human rights made political and other freedoms uniquely subordinate to the sovereignty of the market order. Indeed, Marx had already criticized the French revolutionaries for “reducing citizenship, the political community”, to “a mere means for the conservation of” the rights of the bourgeois man.(20)

Further, Whyte maintains that neoliberal rights differ from classical liberal rights not only because they are shaped by a different “underlying economic reality” (21) but also because they have become “a central component of the neoliberal attempt to inculcate the morals of the market” (21), a “set of individualistic, commercial values that prioritized the pursuit of self-interest above the development of common purposes” (11) which for Hayek constituted essential preconditions for a competitive market. Here again, the precise distance between the two iterations of rights could be questioned, as Marx very explicitly took issue with the way the rights of man crystalized and stabilized bourgeois subjectivity in the form of the egoistic self-interested man. From that perspective, the instillation of a particular form of market morality and rationality can hardly be seen as the preserve of neoliberal human rights.

Despite this, Whyte’s narrative makes invaluable contributions to Marxist theories of rights. For one thing, the book confirms that Marxist engagement with rights remains a worthwhile, indeed crucial, endeavor. By revealing the symbiosis between (hegemonic neoliberal conceptions of) human rights and the global neoliberal order, the work calls for sustained examination of the role of human rights in the expansion and reproduction of capitalism. Most importantly, the book suggests that any such engagement must take seriously the nature of capitalism as a complex totality. This means avoiding economic reductionism or a purely economic approach to capitalism as a mode of production. Whyte’s work shows how the refashioning of capitalist social relations in the neoliberal era involves far more than the mere constitution of new forms of property relations across national borders. It means placing any theory of rights within a broader theory of the state and the world market, two of Marx’s planned additions to Capital. As the book documents, neoliberals themselves recognized and feared the power of classic Marxist theories of imperialism, and much of their effort to revive ideas about the non-violent nature of markets and the peaceful effects of commerce were designed explicitly to counter Marxist arguments that capitalism, war, and violence are inextricably linked and that any real programme of global justice must therefore necessarily be anti-capitalist and not merely egalitarian. And, finally, it means grounding such theories in simultaneous analyses of class, gender, and race relations. As Whyte shows, the morals of the market involve assumptions about all three.

This second set of observations also allows us to use Whyte’s work to counter Moyn’s third objection to borrowing from Marx’s original critique. Indeed, the point is not so much that Marx’s critique of rights would require significant updating to be adapted to modern-day conditions. Rather, it is that any theory of human rights–whether the rights of eighteenth-century bourgeois revolutions or those superimposed on the state more recently–necessarily entails picking up the unfinished project of Marx’s understanding, and critique, of capital. With her rich and rounded account of the neoliberal and human rights projects, Whyte offers powerful ammunition for Marxists to carry that project forward.

Eva Nanopoulos is a lecturer in law at Queen Mary, University of London, and author of The Juridification of Individual Sanctions and the Politics of EU Law (2020).


  1. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010).
  2. Samuel Moyn, Not Enough: Human Rights in an Unequal World(Cambridge, MA: Harvard University Press, 2018), 192.
  3. See in particular the discussion in Samuel Moyn, “A Powerless Companion: Human Rights in the Age of Neoliberalism” (2014) 77 Law and Contemporary Problems 147.
  4. Moyn, Not Enough.
  5. See, among others, the debate that followed the publication of Steven Lukes, “Can a Marxist Believe in Human Rights?” (1981) 4 Praxis International 334, usefully summarized in Paul O’Connell, “On the Human Rights Question” (2018) 40 Human Rights Quarterly 962, at 964–75.
  6. Moyn, “A Powerless Companion”, 150.
  7. For an interesting discussion see Zak Manfredi, “Compatibility as Complicity? On Neoliberalism and Human Rights“, LPE Blog (28 May 2018).
  8. Karl Marx, “On the Jewish Question“, in Karl Marx, Early Writings, trans. Rodney Livingstone and Gregor Benton (Harmondsworth: Penguin, 1990).
  9. Marx, “Jewish Question”, 230.
  10. Moyn, Not Enough, 175.
  11. Moyn, “A Powerless Companion”, 152.
  12. Moyn, “A Powerless Companion”, 153.
  13. Marx, “Jewish Question”, 229.
  14. Marx, “Jewish Question”, 230.
  15. Ibid.
  16. Ibid.
  17. Ibid.
  18. Marx, “Jewish Question”, 229.
  19. See, e.g., Karl Marx, Capital: A Critique of Political Economy, vol. 1 (Harmondsworth: Penguin, 1990), chs. 2, 10, and pt. 8.
  20. Marx, “Jewish Question”, 231.
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