TY - JOUR
AU - Focarelli,, Carlo
AB - Abstract A “crisis” of international human rights is under way. This article focuses on the “neoliberalism and human rights” debate. It argues that the current human rights crisis hinges on the evolution of neoliberalism as a “totalizing project”. A way out may be provided by the notion of the “human person” conceived as the individual in his/her uniqueness and complexity against any form of (market-induced or other) massification. The article concludes by suggesting that we place the (decommodified) human person, empathy, and school/education center stage. I. Introduction 1. A “crisis” of human rights, if not their “end”, is increasingly said to be under way. Such crisis seems to engage human rights generally, including international human rights, and to concern, more specifically, the way these rights should or may be interpreted and applied according to existing international law rules. For an adequate interpretation and application of such rules, which continue to be in force as originally drafted or amended later on, one has to ascertain whether the alleged “crisis” actually concerns “human rights”, or is rather part of a broader phenomenon, and what its causes could possibly be. This is the purpose of the present article. 2. Against this background, the UN Universal Declaration of Human Rights (UDHR) of 1948 has been recently debated worldwide, on the occasion of its 70th anniversary. As is well known, the UDHR represented a model for subsequent treaties and may be taken, at least to a first approximation, as a reference point when discussing international human rights more generally. Clearly, it represented a compromise at both the theoretical level (between such antagonist doctrines as Liberalism, Marxism, Christianity, etc.) and the practical level (between “liberal democracies” and “popular democracies” in the two antagonist blocks that emerged soon after the end of World War II). Indeed, it was drafted as a non-binding declaration rather than a legally binding treaty, precisely because this was the only practicable compromise at the time. The UDHR comprised both civil and political (CPR), as well as economic, social and cultural (ESC) rights. Certain rules therein contained were ambivalent since the beginning, such as the “right to own property” in Article 17, implying both private and collective property. Other provisions have not been adequately developed in subsequent treaties, such as Article 24 on the right to “rest and leisure” (“Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay”), and Article 29(1) on the “duties” that are necessary to realize human rights (“Everyone has duties to the community in which alone the free and full development of his personality is possible”). On balance, the UDHR (as well as subsequent human rights treaties) were conceived against the background of the Nazi War and the Holocaust (“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”, in the words of its preamble). The UN Charter itself mentioned human rights presumably as tools for the key purpose to maintain international peace and security, rather than on exclusively humanitarian grounds. 3. This basically “anti-tyrannical-states” model appears today increasingly inadequate inasmuch as current major (global) dangers to human rights either do not seem to come from this or that state, or seem to have deeper root causes that transcend the context of a specific state. In contrast, it seems sometimes that the current key danger to human rights is the fact that the state is increasingly unable to carry out its duties against other (often private) intangible and “diffused” forces. It is possible that the traditional (UDHR-based) reading of international human rights and of their rationale has even become misleading, to the extent that it may point to dangers that are not actual and pre-eminent anymore, while involuntarily hiding (new) real dangers and obscuring effective remedies. If this were true, then international human rights would need to be interpreted and applied afresh, or else made anew, in light of their (redefined) core meaning, that is, in accordance with their “quintessence” or basic rationale, possibly beyond their deeply ambivalent use for the purposes of one or another political and economic theory. It is here suggested that this core meaning should be grounded in the idea (worth struggling for) of the “human person”. 4. My line of argument is the following: the “alleged” crisis of human rights is itself not a “given”, but a matter of constant social construction. This social construction basically hinges on a mass market pan-psychism of neoliberal origins. Under such a psychic massification process there is little room, if any, for (decommodified) criticism of neoliberalism. Hence, the quintessence of human rights, i.e. the “human person” in his/her uniqueness and complexity, is deeply challenged at the level of the psyche, upstream of the rational mind. Inasmuch as international law is the (socially constructed) law common to humankind, it is supposed to govern the “human” and requires struggling against the above psychic massification process. On the contrary, the ongoing developments in international law which aim to counter neoliberalism are embedded in the same process, and therefore risk turning out to be futile. An alternative path may be offered by three leverages, namely the (psychically decommodified) human person, empathic self-containment, and education. II. The alleged “end” or “crisis” of human rights 5. Besides a number of academic works that appeared in recent years1 and documents released by international fora2 and NGOs,3 several recently published stories open to the public opinion more at large, have focused on an alleged “crisis”, “failure” or “end” of human rights, and/or of the “human rights movement”. These stories are not necessarily concerned with international human rights law, yet their implications for international law are obvious. Moreover, they best disclose the latest social trends that international law has to face at present, in its constant construction/deconstruction process. 6. For example, on 23 April 2018 Samuel Moyn wrote in The New York Times that, after decades of gains, “the Human Rights Movement, like the world it monitors, is in crisis” and has “failed”, suggesting that “an even more ambitious agenda is to provide the necessary alternative to the rising evils of our time”.4 In the issue of 9 April 2018 of Foreign Policy, David Rieff pointed to the shattering of “the human rights movement’s narrative that progress is inevitable” and, in particular, to the failure of the Responsibility to Protect Doctrine (RtoP) and the International Criminal Court (ICC) as “doctrines that are not possible in the world as it actually exists” and, “from the beginning, unworkable ideas for the world we live in”, especially in the time of “Brexit, Trump’s presidency and the rise of populism” in Europe, concluding that “[c]alls to action by human rights activists, therefore, are not enough”.5 The “2018 Rule of Law Index” prepared by World Justice Project (WJP), in turn, reported that human rights have contracted in almost two-thirds of the 113 surveyed countries, and that a worldwide surge in authoritarian nationalism and a retreat from international legal obligations is taking place.6 Furthermore, Christopher R. Browning—asked repeatedly about the degree to which the current situation in the United States resembles the interwar period and the rise of fascism in Europe—noted “several troubling similarities and one important but equally troubling difference”.7 Finally, as for the technological developments that pose a threat to human rights, China’s orientation towards a “digital dystopian dictatorship” has been exposed in the media.8 7. Undoubtedly, all these remarks timely capture some truth, and yet they sound unsatisfactory in at least three respects. Firstly, they appear to reinforce what they candidly state. To say that activism is “not enough”, in practice amounts to say that activism should not be enough. There is no scientific evidence in fact (or at least, no evidence has been so far actually provided) that the trend at issue has no chance to be reversed in the future, as a consequence of redoubled activist efforts. Whatever the intentions of these authors, their “findings” are intended not only to inform but also to shape the minds of large audiences, through credited global media. In so doing, they may be seen as aimed at inducing the “end” of human rights inasmuch as people may reasonably feel no longer interested in defending what may appear as a hopeless cause and “dead” human rights. In other words, the announcement or the prospect of the “end” of human rights, though based on certain objective data and reasoning, works also as a self-fulfilling prophecy, and it is unclear whether and to what extent the media and the authors involved are aware of this. Secondly, against the rising evils, some of such stories call for paths to “alternative” ethics to (allegedly “failed”) human rights, but are laconic (if not completely silent) on what these new paths may be, what should be done for their success, and why they should work better than human rights. The reader is led to suspect that the new evoked “ethics” may work because it is against the ethics underlying human rights. Thirdly, the same stories often refer to the failures of the “human rights movement” rather than of human rights themselves, without even attempting to define and/or articulate the “human rights” that are deemed to be in a state of crisis. In sum, the above stories tend to converge on disclosing an ongoing struggle between advocates and opponents of human rights to gain audiences on their side. Such struggle is anything but novel, but it remains to be deciphered in the present-day context. As a first approximation, I argue that the “human rights crisis” is neither real nor unreal, neither well-founded nor unfounded. It is rather the object of a self-realizing prophecy pursued by both human rights advocates and critics, although in opposing directions. It should, thus, be seen as part of a process of social construction that needs to be investigated more in depth, as will be done below. 8. To the extent that the “human rights crisis” is (believed to be) “real”, and with a view to assessing it either negatively or positively, a variety of theories have been advanced on its origins. Roughly summarized, these theories contend that the crisis may have been induced, at least to some degree, by international law scholars and international monitoring bodies who have endeavored to elevate human rights to the higher-in-rank status of jus cogens and/or of obligations erga omnes against (or regardless of) all or most evidence, or, more generally, by human rights advocates who have disproportionately defended the emergence of a “new” (“human-being-oriented”) international law, as opposed to an “old” (“state-sovereignty-oriented”) international law,9 while people may perceive them, instead, mainly as impracticable utopias, or as the “last” utopia, once all other historical utopias have failed.10 Secondly, the crisis is alleged by some to be the inevitable result of the counter-terrorism measures adopted after the 9/11 attacks at the global level in the name of security, measures that have often led states to behave in defiance of their treaty-based human rights obligations.11 Thirdly, the crisis may be perceived as a corollary of today’s “souverainist” (nationalistic, nativist, xenophobic, misogynistic, explicitly anti-human rights) “populism” and of the concomitant rejection and “crisis” of international rules and institutions.12 Fourthly, the crisis may represent, essentially, an “updated” corollary of the persisting “Westphalian” world system, on the grounds that, in a world of fierce competition among states, human rights may simply appear as a luxury that states cannot ultimately afford, inter alia, because they have to carry out their duties and be able to control the people under their jurisdiction. Human rights may also appear to be just one among many strategies to prevail (only) when it is convenient to do so.13 From this perspective, human rights may have been mistakenly hailed as “just” entities in themselves, without considering the key reasons that exist in the world system as a whole in which human rights are supposed to work and that, in practice, militate against them (or against their exceeding expansion), nor the “real” public opinion (or the opinion of “civil society”) that should support them against unwilling states, nor the possibility of their instrumental use (both by critics and advocates) for other strategic purposes. Finally, the human rights crisis may be understood as a corollary of the prevailing global neoliberal order, that is, an effect (and in particular an overflowing effect) of the current global economy,14 one that may be even reshaping, or at least reinforcing, the “security” and “souverainist” causes of the crisis.15 While I believe that all (and other) such theories capture some truth, the present article will focus and expand on the latter perspective, according to a legal constructivist approach. III. The “neoliberalism versus human rights” debate 9. The “trade and human rights” debate is well known and does not need to be recapitulated here.16 The focus may rather be placed on its relatively recent restyling in terms of “neoliberalism and human rights”. This relationship, involving the impact of neoliberalism on statehood itself,17 has been quite differently viewed by different scholars in different perspectives, including, but certainly not limited to, an international legal perspective.18 Briefly, the main theories surrounding the neoliberalism-human rights relationship may be encapsulated in the following five theses (the first three expounded by human rights advocates and the last two by human rights critics): (a) human rights are intrinsically “good” and must be defended against any possible challenge, be this national security, nativism, neoliberalism, etc.19; (b) human rights, and especially ESC rights, are increasingly eroded by neoliberal policies and should be secured by combating neoliberalism20; (c) ethics and solidarity values, and the underlying human rights, must prevail over the individual interests of antagonistic individuals, groups and states21; (d) security (and ultimately survival) considerations should always be prioritized over human rights22; (f) neoliberalism and, more generally, for-profit activities are indeed supportive of, rather than hostile to, human rights.23 10. At a first glance, all of these theories appear unsatisfactory, although on different grounds. In the hope to subvert, somehow, the persisting “Westphalian” system within which human rights are meant to work, into a “new”, more human rights-driven world order, the first approach (a) tends not to take sufficient account of that system and of the fact that, in it, the states that defend human rights are more prone to lose the competition with other states. Moreover, by invoking the “interdependence” of human rights, this approach tends to pay little attention to the diversity and, even, opposition (in their rationale and remedies) between different human rights, as well as their highly ambiguous definition, a point to be discussed below. An exceedingly enthusiastic appeal to human rights (and to international law) as a remedy to the world system as such, thus, easily turns out to sound as a pious wish and is likely to be unsuccessful. The second approach (b) generally fails to define the key (and no less ambiguous) notion of “neoliberalism”,24 although referring to so-called “neoliberal” policies and the erosion of ESC rights, however without due consideration of the need to safeguard other rights and demands. Moreover, in focusing on the “intrinsic justness” of ESC rights, it fails to take due account of the historical collapse of the Communist block which supported both ESC rights and the redistribution of world wealth, thus aspiring to an outcome that is simply politically unrealistic. As a result, its strategy to counter-hegemonize existing and allegedly hegemonic neoliberalism25 sounds nostalgic and confrontational (despite it fighting, at last, with blunt weapons), so this second approach too is likely to be unsuccessful. The third approach (c) fails to take note of the substantial secularization of the world, despite many people professing to be “followers” of this or that religion, and of the fact that religious appeals to ethics and solidarity often do not address neoliberalism at all. It also fails to consider that all religious followers feel themselves pressed by the basic need to survive (especially politically and economically) on the local, national and international scenes. Therefore, this approach too proves increasingly unsuccessful. The fourth approach (d) reacts to such positions either by accusing human rights of being utopias that can only lead states to lose the competition with other state and non-state actors in the real world, or by appropriating human rights to its vision to defend its values. Finally, the fifth approach (e) presumes that the dualism between neoliberalism and human rights is false and assumes that (economic) neoliberalism actually enhances human rights, or at least certain “fundamental” human rights, in light of its political and moral underpinnings.26 Assuming that the limited chances of success of the first three approaches and the ensuing rise today of the last two approaches summarize what is called the “crisis” of human rights, I argue that an alternative critical approach to all of the above theories is needed. 11. A first point worth making is that “neoliberalism” is quite an ambivalent term which implies different conclusions when one or another of its meanings are adopted.27 The current trend to see it as a threat to human rights is rarely accompanied by an adequate definitional analysis. A second point to ask is whether neoliberalism is really the cause, or rather one of the multiple causes, of the alleged current “crisis” of human rights. III.A. Definitional issues 12. As to the first point, one has to distinguish between different schools of thought which are typically associated with “neoliberalism”. As is often noted, there are at least two different abstract “versions” of neoliberalism, namely the plainly “liberal” and the “ordoliberal” school, each one containing, in turn, an endless number of nuanced variations, depending on the author and context. It seems also necessary to note that the concept has been frequently mis/appropriated, including in a caricatural or stereotyped way, a fact that renders its precise characterization quite nebulous and polysemic. Some authors deny altogether the possibility of arriving at a unitary “neoliberal theory”.28 The “liberal” school of neoliberal thought, which advocates the least possible state intervention in the economy, has been championed by economists such as Ludwig von Mises, Friedrich von Hayek (the so-called “Vienna School”) and Milton Friedman (the so-called “Chicago School”). The “ordoliberal” school, instead, which admits a much more pronounced pro-market intervention of the state, has been championed by economists such as Alexander Rüstow, Wilhelm Röpke and others (the so-called “Freiburg School”, or “ordo-neoliberalism”).29 The term “neo” tends to assume different meanings in these two schools of thought: on one side, it simply refers to a (possibly more coherent) restatement of “original”, classical nineteenth-century liberalism, after (and in opposition to) the non-liberal inter-War period;30 on the other, it identifies a “new” form of liberalism able to cope with the major failures of classical liberalism that had been witnessed in the inter-War period, that is, the inability to avoid both the 1929 Wall Street crisis and the rise of totalitarian regimes in Europe.31 Both schools of thought are, however, in favor of market economy against collectivist/central planning of the communist type. The former especially tends to be highly critical of Keynes’ recipes of economic policy, although Keynes was certainly not against market economy in itself and described Hayek’s The Road to Serfdom—to which I’ll get back later—as “a grand book”, finding himself “morally and philosophically […] in agreement with virtually the whole of it; and not only in agreement with it, but in a deeply moved agreement”.32 13. The ambivalence of “neoliberalism” increases when one leaves academic speculation and refers to neoliberal practice. One only needs to compare the very different landscapes surrounding the neoliberal economic policy measures adopted by the Pinochet regime in Chile in the 1970s,33 and those adopted in the 1980s by the Reagan administration and the Thatcher premiership, which famously admitted to have found in Hayek’s neoliberalism a major source of inspiration, in the United States and the United Kingdom respectively. 14. Apart from such uncertainties, there is substantial agreement that neoliberalism is marked by a number of typical measures of economic policy, namely the pervasive privatization of former public services, deregulation, competition extended to any human activity, a strong encouragement of the pursuit of private profit, trade liberalization, the parameterization and measurement of any human action (including intellectual and creative endeavors) in terms of performance, the ubiquitous application of advertising and marketing techniques, the flexibilization of work, the promotion of austerity measures to contain public debt, together with cuts to social expenditures and public services, the dismantlement of the welfare state, a diffused infantilization and sensationalisation, and so on. III.B. Dissecting neoliberalism 15. In order to attempt to clarify such ambiguities, and to find out the proper cause of the alleged “crisis” of human rights today, I suggest that neoliberalism should be dissected into three “moments”. The underlying assumption is that the current “neoliberalism versus human rights” debate is totally absorbed in one such moment while the actual issue lies in another. In particular, I argue that most theories (whether neoliberal or anti-neoliberal) focus on the second moment, while the problem today is basically connected to the third moment, which overtakes neoliberalism itself. It goes without saying that I am not trying to outline neoliberalism’s historical development, though these three moments do have some connections to history, nor to develop any analysis in terms of economic theory, and that such three moments (and related implications) intermingle and blend into one another and cannot be read in isolation from each other. 16. The first moment, which could be labelled as “the political project”, can be traced back to the end of World War II and particularly to the publication, in 1944, of The Road to Serfdom by Hayek. Already in its preface, Hayek noted that “[t]his is a political book” deriving “from certain ultimate values”. Thus, the idea that neoliberalism (in Hayek’s sense) is “in reality” a political project rather than merely a set of recipes of economic policy, grounded, inter alia, in a larger epistemological context,34 is quite obvious and explicitly stated by Hayek himself. Indeed, he observed, in the preface to the 1976 edition of the book, that he was himself “uncomfortable about the possibility that in going beyond technical economics [he] might have exceeded [his] competence”.35 What was the “political” idea underlying the book? Clearly, Hayek was fearful of a return of Nazism disguised as Socialism, especially in Western European democracies and in the United States. In other words, the purpose of the book was anti-Nazi and, more precisely at the time of writing, anti-Socialist. Its basic assumption was that Nazism and Socialism were just two anti-liberal variants of the same form of totalitarianism, characterized by (scientific) central planning and social engineering,36 in particular “a warning to the socialist intelligentsia of England” and “against the believers in the all-powerful state”.37 In Hayek’s words, “socialism in its beginning was frankly authoritarian”, then it “began increasingly to make use of the promise of a ‘new freedom’”—freedom from necessity rather than freedom from coercion—but “what was promised to us as the Road to Freedom was in fact the High Road to Serfdom”.38 17. From this perspective, Hayek arguably viewed himself as a defender of “fundamental human liberties” (what today may be called human rights, or at least civil and political rights) against totalitarianism, whatever its form and irrespective of its name and rhetorical apparatus.39 In his view, at the time of writing, there was “more than a superficial similarity between the trend of thought in Germany during and after the last war [World War I] and the present current ideas in the democracies”, and few were ready to recognize that “the rise of fascism and nazism was not a reaction against the social trends of the preceding period but a necessary outcome of those tendencies”.40 What appeared to him to be dangerously under way was the abandonment of “one of the salient characteristics of Western civilization”, that is, “individualism which, from elements provided by Christianity and the philosophy of classical antiquity, was first fully developed during the Renaissance”, and notably, “the respect of the individual man qua man”.41 He criticized, on the contrary, the idea that individualism is necessarily associated with egoism and selfishness.42 When neoliberalism is understood in such terms, it is somewhat problematic to see it as a plainly anti-human rights project, although the term “human rights” itself is ambivalent and needs clarification (as already noted, this issue will be addressed further below). 18. The second moment, which could be labelled as “the epistemological project”, may be associated with the Cold War period and, in particular, with what may have represented (to cite a well-known book authored by Noam Chomsky and Edward S. Herman, published in 1988)43 a stage of “consent manufacturing”, in the United States and the United Kingdom, around neoliberal ideas as then known especially in Hayek’s sense. It seems that at the time, in order to succeed, the “neoliberal” political project needed to become an “epistemological” project, i.e., an internalized way of thinking, so that neoliberal recipes, as defined above, could not be logically rejected by most people, notably as voters and consumers, against communism, at a time when the USSR was able to provide a powerful and effective epistemological counter-narrative. To this end, the advertising techniques developed to sell products through the parallel sale of audiences to advertisers, proved extremely effective.44 19. This was possibly the critical perspective of Michel Foucault, who in 1979 gave a well-known seminar at the College of France on neoliberalism as key to the birth of bio-politics, focusing in particular on “classical” nineteenth-century laissez-faire liberalism and on the two forms of neoliberalism already hinted at earlier, that is, German “ordo-neoliberalism” and American “anarcho-neoliberalism”.45 Besides their common hostility to state (anti-market) dirigisme and Keynesian policies, in Foucault’s view the “ordo-neoliberals” advocated for a “social market economy” to be constantly supported by political/legal regulations, while the American “anarcho-neoliberals” promoted the extension of market epistemology/rationality/intelligibility to the entire social sphere, by redefining the “social” in economic terms with a view to both legitimizing and limiting governmental action within a state that was itself entrepreneurial.46 With “anarcho-neoliberalism” it is no longer the state that monitors market freedom, acting as an external limit to it, as it was with nineteenth-century liberalism, but rather the market itself operates as the inner organizational and regulative principle underlying the state. Nor does the nineteenth-century economic individual (homo oeconomicus) work as an external limit of governmental action, but the individual “becomes a behavioristically manipulable being”, based on the expectation that “individuals are characterized by [entrepreneurial and competitive behaviour guided by] ‘rational choice’”.47 Foucault viewed the market as “a site and mechanism of the formation of truth” (véridiction in French), that is, a “regime of truth dividing the true and the false”, destined to control jurisdiction (juridiction in French) and the exertion of bio-power.48 What he called “truth” is discussed as a paradigm of governmentality, discipline and control (including, importantly, “spontaneous” self-control) over people. He essentially focused on the relationship between power and knowledge and, in particular, on how power is used as a means of social control by defining knowledge (including scientific knowledge) and the very inner formation of the idea of truth. He assumed that intellectuals, like himself, could see neoliberalism and the market as a detached mechanism of generating a sense of truth. The nexus between power and truth may justify the thought that he viewed neoliberalism as a “totalizing” form of control, a point to which I will return shortly, but he believed that this could be actually “uncovered” (and successfully resisted) by way of critical thought. Foucault’s seminar seems also much more concerned with finding out the underlying assumptions of (especially German and American) neoliberalism, rather than with deconstructing it into a “regime of truth”.49 Furthermore, the seminar has been criticized for failing to catch the so called “double-truth” approach typical of neoliberals (that is, the fact that the neoliberals’ “version of governmentality elevates the market as a site of truth for everyone but themselves”) and for ultimately acquiescing in the neoliberal doctrine of the market as “an information processor” that “offers nonstop cogent critique of the pretension of the state”.50 20. Today’s critical analyses of neoliberalism also often draw from Antonio Gramsci’s idea of “cultural hegemony”,51 arguing that the distinctive feature of today’s neoliberalism is indeed its “hegemonic” character and the need for a “counter-hegemonic” strategy.52 In fact, Gramsci developed the theory of a counter-cultural hegemony conducted by the working class and the peasantry against the cultural hegemony of the bourgeois class (and related “organic intellectuals”), within his conception of Marxism and with a view to realizing a communist society in which he strongly believed, at the cost of sacrificing his own life in prison and facing premature death without compromising with the hegemonic forces against which he committed himself. 21. The third moment, which could be labelled as “the totalizing project”, may be dated back to the post-Cold War period. Its distinctive mark is the progressive erosion, at the psychic level,53 of an “outside” from which the possible limits or flaws of what is commonly associated with neoliberalism and with commodification can be seen, and remedies devised.54 It is “totalizing” inasmuch as it has no outside, and with no outside it also lacks any “way out”. This does not occur because any outside or way out is prohibited or discouraged, but because every possible outside or way out cannot be realized but by applying the same criticized methods, thus reinforcing them. Its totalizing nature does not (only or mainly) rest on the unbounded operation of private actors (such as multinationals), nor on certain economic measures (such as privatization and austerity) and their political underpinnings (such as the rise of right-wing or “souverainist” parties and movements), nor on the establishment of a Foucauldian “regime of truth” (such as a pervasive market epistemology). As a result, to debate the issue in these terms, as is often the case today, whatever the direction of one’s argument, may go wide off the mark. 22. To put it in more detail, the project is “totalizing”, or “global”, in at least six different interconnected meanings. Firstly, it is a geographically planetary project, with no possible “outside” and/or “way out” on Earth. Secondly, it is an all-purpose project extending to any human activity—including intellectual endeavors—or, in other words, a forma mentis that applies to any aspect of life, thus going very much beyond a set of political and economic recipes, and leaving no possible “outside” and/or “way out” available through really different mental approaches at least to some human endeavors. Thirdly, it is a project that disables or defuses, without prohibiting or censoring, the idea of “common good”, that is an idea opposite to its private-advantage-based pillar. No “outside” and/or “way out” of the conventional idea of the common good and the “general interest” as the antidote to excessive competition-based individualism is possible. In particular, any ideas associated with the common good are vastly (thought of as) commodified and sold,55as well as mediatized: while being in theory admitted and abundantly debated in all possible directions, in practice the appeal to the “common good” does not work.56 Such ideas include human rights themselves, the sense of humanity and humanitarianism, ethics, justice, politics and democracy,57 statehood,58 national security and/or nativity, essential public services (e.g., school,59 public health, and, more generally, ESC rights and the so-called “welfare state”) and the protection of the most vulnerable, the “other”, science and scientific research, critical thinking (including today’s anti-neoliberalism), the objectivity of data, truth, the news (whether “fake” or not, in any event shaping voters and consumers), privacy, the humanities (such as arts and history),60 the media, “non-profit” NGOs,61 common sense, religious appeals to a community spirit, “humility”, the “human rights crisis” debate, even satire and, last but not least, the law and international law, as well as international legal scholarship, its “working conditions” and the whole academic market.62 It goes without saying that all those engaged in such good causes will strongly object to this portrayal of reality, for being exaggeratedly hopeless. However, I am anything but hopeless, as will be shown below, and I can only hope that they would take my point here as seriously as possible. The assumption underlying this third moment is that a political debate, a movie or an economic analysis on the media can be offered at no cost, by selling audiences to advertisers and sponsors in a seemingly inoffensive, immaterial way. However, this practice turns out not to be immaterial, since it involves processes of commodification and mediatization which distort the “message”, so that what remains of it is actually its parody. A poem in between two adverts is a poem no more; it merely serves the purpose of attracting audiences (of poem readers/consumers) to be sold. The same applies to a movie, to a political or expert debate, to appeals to ethics or common values, to disputations on the “human rights crisis”, as well as on security, on the national interest, on populism, on xenophobia, on ESC rights, on the welfare state, on neo-Keynesian measures, on anti-austerity strategies, on new waves of protectionism, and so on. Political leaders and policymakers, whether “democratic”, “pro-human rights”, “souverainist” or “nativist”, as well as economists, international organizations, NGOs, etc., all use (and feel compelled to use, in order to “stay on the market” and to have a say and an “impact”) the same structural advertising strategy (collecting audiences for money or for votes, that is, for personal wealth and power, despite that all are invoking “a good cause”). Therefore, all their messages, whatever their direction and contents and including opposite ones, are radically different from their apparent substance and (perhaps) intentions. As a result, nothing is destined to change, despite such anti-neoliberal, anti-Nazi, anti-populist, or pro-human-rights strategies. However sound, any “rational” discourse to “persuade” is useless, as are appeals to ethics. All discourses are either useless or economically oriented (in any event, not in economically “rational” terms, but rather in psychologically impactful ones). Clearly, there is no “way out” by using the same “weapons” of the system either: the “message” needs a messenger, the messenger needs the media to “exist”, the media need audiences that can be sold to advisers/sponsors, therefore the message systemically becomes a psychological commodity to be sold in order to gain money or power, no matter whether this happens “for good reasons” or not. This entire process is at once decided at the political level (that is, in theory it may be changed at will), but the political level works as part of the process itself (that is, it entirely depends on it). This circumstance produces a political vicious circle, a spiral that contemplates no way out. Unsurprisingly, then, human rights seem “ineffective” or “failing”, when considering that they are, and can only be, discussed in market terms and on market conditions. However, their “failure” or “crisis” is part of a much broader phenomenon, as argued here. Fourthly, it is a project capable of defusing or disabling, without prohibiting or censoring, any form of external criticism: however capable of being “successful”, criticism too is possible only in market terms and on market conditions. However, this “criticism” in fact reinforces (rather than weakens) what it criticizes, and the end result is the exact opposite of the intentions. Fifthly, it is a subliminal project here again capable of disabling or defusing, possibly without prohibiting or censoring, self-criticism, with no possible “outside” and/or “way out” of one’s own state of mind: it automatically falls outside the field of self-critical thinking and action, for the simple reason that any self-criticism seems possible only within it. This is also a result of the education system organized as a “public” service provided in market terms and on market conditions, as discussed below. In other words, common good considerations, including the human rights discourse, external criticism and self-criticism are in theory possible, and indeed encouraged as expressions of freedom, only in terms of sale, effective advertising and sensationalism, a fact which reinforces what is criticized despite the (if any) opposite intentions. Finally, the project embraces the whole (psychically commodified) person: not just his/her “mind” and “logical” ability, but his/her entire psyche. 23. Briefly, the key concept of this totalizing project is represented by the mass “market” psychology and its psychic interchangeability pillar, rather than “neoliberalism” as such, a process that could probably not happen without the previous “manufacturing consent” process, but should be distinguished therefrom. The core issue is rather about massification, and the related degree of admitted “intervention” by the state (more or less) to force or to contain it, including the massification of intellectuals and critics themselves. It does not really matter what is the source of massification reaching the level of leaving no room for criticism, whether a totalitarian or a democratic state, a planning or a market economy. The other concerns (such as inequality, manipulation, authoritarianism, oppression, poverty, cultural difference, populism, state totalitarianism, and so on) which are typically addressed by neoliberalism’s critics, appear as slogans, symptoms or side-effects of this massification. The latter is clearly related (at least in part) to neoliberal ideas and practices, but is a distinct phenomenon, at a time when the term “neoliberal” has no longer (if it ever had) an unequivocal meaning and is itself commodified and massified, that is, at a time when neoliberalism itself is a commodity like any other to be placed in the mass market, as is “anti-neoliberalism”, both (or better, both their parodies) being products on the shelf to be “freely” sold in the media to their respective supporters/customers by selling them in mass to advertisers. 24. One could imagine that Hayek might be strongly against this (so-called) “neoliberal” project and would indeed invoke again neoliberalism—evidently differently understood—against it, as a new form of totalizing threat. Hayek intended to protect the individual from the masses while what is today labelled as “neoliberalism” does create masses against the individual.63 This confirms how out of place the term “neoliberalization” of human rights, ethics, law, public services, etc. is, unless it is qualified or redefined in terms of psychic massification in a direction that is capable of re-incorporating (and reselling) all of its antidotes and critics.64 IV. Individualism, the human person and AI-driven global automation 25. After looking at the developments of so-called neoliberalism, a further step is to analyze human rights as the other side of the question. 26. If the “crisis” of human rights were rooted in “neoliberalism” as an economic theory or as a set of economic measures, then alternative theories or recipes of economic policy would be effective. However, the above analysis indicates that the “crisis” may not be dependent on “neoliberalism” as such and cannot be remedied by simply adopting non-neoliberal measures of economic policy, such as policies of deficit-spending in place of austerity measures. Similar alternative measures, while being possibly more effective in economic terms (and possibly more human rights-friendly, especially when it comes to ESC rights) in particular circumstances and even in most circumstances, would reinforce the problems discussed here. 27. International human rights may be (and are indeed) thought of as tools capable of “balancing” or “tempering” economic reasons of efficiency, including the most recent developments of artificial intelligence (AI) and the ensuing global automation, with “genuinely-other” considerations. However, it is necessary to emphasize that the very term “human rights” is problematic and, as a result, human rights need to be traced back to their quintessence. To this end, a conceptualization of the “human person” is worth exploring. IV.A. Definitional issues 28. As to the definitional point, there is clearly no agreement on what a “human” right is or on why a certain right is a human right while another is not. For example, Amnesty International and the UN Human Rights Committee recognize the right to abortion (on certain conditions) as a human right,65 whereas the Catholic Church and the United States are of the opposite view and rather defend the human right to life of the unborn against abortion.66 Many defend the human rights of migrants while others defend the human right to security against the potentially unlimited rights of migrants and of other “undeserving” categories of people, if not even the “right to dominate”,67 or the “right to be unequal”.68 Some persons, groups and states understand the right to life as including the prohibition of the death penalty, whereas other persons, groups and states defend the opposite position. The human right to trade, or more precisely the alleged attempt by certain scholars to “recast […] the legal obligations in international economic treaties in terms of individual human rights”, is defended by some,69 and rejected by others.70 Sometimes, very controversial rights, such as the human right to happiness, have been presented as “human rights”, although the latter is not mentioned in any international legally binding instrument.71 Other human rights, such as the right to rest and leisure, explicitly set out in Article 24 UDHR, are rarely, if ever, perceived as rights. Some readers may be tempted to hold that these are borderline examples, but practice shows that human rights (or perhaps the label “human rights”) have been appropriated (or misappropriated) by the most diverse discussants to the most diverse purposes. Legal experts may argue that human rights are simply those which are so defined in a legally binding text, such as human rights treaties. However, even so narrowly defined, human rights pose a large number of very difficult questions, since the available texts are extremely succinct in their language, and hardly define what the balancing criteria that may be applied to resolve potential conflicts between different rights are. Monitoring bodies may be in place to solve such difficulties, but they too have to elaborate appropriate speculative criteria and rationales to avoid proceeding arbitrarily, and the existing practice shows how their decisions are susceptible to criticisms on the most different fronts. In this respect, three points are worth making. 29. First, human rights are usually presented as “claims for justice”, thus evidently referring to a notion of justice which is not present in the law in force. These requests assume that they should be incorporated in the law in force and, more specifically, that the state should impose the corresponding obligations on those whose behavior is necessary to have such rights respected.72 For example, there can be no rights of persons with disabilities if the collectivity does not comply with an obligation to contribute thereto, such as by funding through taxation the works that are necessary to enable disabled persons to move freely and safely on the streets. Clearly, there is no chance for a world where all are entitled to all conceivable human rights while no one has any correlative obligation. Thus understood, rights should be better viewed in terms of duties, although in political terms it is clearly much more rewarding to promise rights rather than duties. As hinted above, the UDHR does provide for duties in Article 29(1). The terms “law” and international law are intended here as collective organized violence against individual transgressors and as a social construction that works in practice for the living together of its addressees as a whole, that is, something which is not “given” but is rather under constant social construction. As a result, law and international law cannot be expected to work by themselves, but require a common ethical and pedagogical background. Besides, inasmuch as human rights require the law, they aspire to be collectively imposed on potential and actual individual transgressors, a fact which tends to transform rights into another potential form of arbitrary power in the hands of the (now) stronger against the weaker. In turn, “duties” refer here to some form of sacrifice of one’s own advantage for the benefit of others, to be understood as opposed to a strategy of benefitting others in order to gain a greater personal advantage, as is today often the case. Finally, by “justice” I essentially mean the protection of the weaker, the true weaker,73 as opposed, here again, to those who may be instrumentally represented (and sold) as weaker for a gain, as clarified below.74 30. Secondly, there is no single, homogenous and coherent set of human rights.75 Many distinctions between human rights have been devised—based (rightly or wrongly) on different rationales—such as between individual and collective rights, CP and ESC rights, or “core/basic” and other human rights.76 The diffused trend to evoke them as such, is misleading and scientifically unsound. Very often, different human rights are in tension or in competition with one another, in that the recognition and protection of a right may entail a limitation or negation of another. Even one and the same human right may go in opposite directions when applied to different individuals, as is the case with the right to respect for family life when applied to one or the other partner in a couple who claim opposing stances on a common matter.77 Further, human rights have not a “life of their own” but each one of them reflects the often conflicting interests and/or values of different social groups (including different states). For example, civil and political rights are often (rightly or wrongly) believed to be functional to the interests and values of Western liberal democracies more than ESC rights, which apparently involve anti-liberal, undue coercion by the state to impose a redistribution of wealth from the richer to the poorer. Similarly, the human right to a healthy environment, as set out in Article 24 of the African Charter of Human and Peoples’ Rights, may be supported by a state, or a social category, and not by another state, or another social category, depending on their respective advantages. This also implies that different human rights, while having some common core meaning, may well reflect different philosophical or general views, which may either in part overlap or be outright antagonistic.78 For example, as hinted above, the right to life is supported both by the Catholic Church and by Amnesty International, but the Catholic Church extends it to the unborn child (a stance, though, so far uncorroborated by the practice of human rights monitoring bodies),79 while Amnesty International reads it in terms of prevalence of the right to life of the mother. Human rights distinctions are typically invoked (and strategically used) to defend certain rights which are congenial to a given theoretical perspective, while rejecting others which are not.80 In sum, whenever “human rights” are mentioned without qualification, such as in the stereotypical expressions “human rights movement” or “human rights crisis”, the entire question is actually eluded and the discourse tends to be militant, either in one or another direction, although militancy may also be present in the approaches that see human rights divided and in conflict with one another. This simply confirms how human rights are ambivalent and ambiguously used to defend antithetical positions. 31. Thirdly, in light of the foregoing, one should pose the question that is being discussed here as follows: if there is a “crisis” of human rights, and if underlying groups/states and interests/values exist, which and whose rights (or conceptions of rights) are in crisis rather than which and whose others? In other words, the crisis may involve certain rights rather than others (such as the “right to security”) or the rights of certain categories of people rather than others (such as the “right to be unequal” or “neoliberal human rights”) according to the theory of rights of their respective advocates.81 32. The foregoing analysis shows how human rights are diversified and in tension with each other, and hence very fragile unless they are traced back to their core, if any. In other words, just as with neoliberalism, some speculative insights are inevitable to make some sense of the essence and scope of human rights, that go beyond (or argue between the lines of) their succinct formulation in legal texts. The term “human person” is often used to this end and its consideration seems now in order. IV.B. The human person 33. The concept of the “human person”, at times simply the “person”,82 as a general value to be protected by or, more specifically, as the key foundation of human rights, is much debated, especially in the context of the philosophical and theological stream of “personalism”.83 The addition of the apparently redundant adjective “human” to the noun “person” has been particularly expounded in the Christian theological conception of the human being as an image of the Trinity (“One God in Three Divine Persons”), the “human” person being an image of (but distinct from) the Divine Persons.84 This notion ultimately points to what it means to be human. However, beyond its philosophical and theological underpinnings, the term is found—typically together with the expressions “inherent dignity” and/or “worth”, not further specified85—in a number of international instruments, such as in the preambles of the UN Charter (affirming its “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”) and the UDHR, in the preamble and in Article 10 ICCPR, in the preamble of the ICESCR, in the “Martens Clause”86 and in the 1986 UN Declaration on the (human) right to development.87 The term has also been used by the ICJ, for instance in its 1970 Barcelona Traction judgment88 and its 1996 Nuclear Weapons Advisory Opinion.89 Despite its relative frequency in the international law jargon, the term “human person” has been poorly analyzed by international legal scholars, who seem to take it for granted, including a few who tend to use it very broadly to defend every possible “human” cause.90 It is in a secular and legal sense that it will be discussed here. 34. The “human person” can be defined as a limit to any kind of massification, where the latter is understood as exceeding uniformity in a society or group, be this of political (authoritarian or democratic), economic, epistemological, psychic, religious or technological origins. Human rights are against massification, that is, the homologation (and consequent negation) of the individual as such, in all his/her complexity. This is not necessarily to imply that human rights thus defined are “individualistic” as a product of Western liberalism or, more broadly, civilization. The human person is typically associated with the protection of the individual, but much depends on what is meant by “individual”, and individualism may be defended on the basis of very different, even opposite, conceptions of the individual. I suggest to distinguish the “massified individual” from the “individual in his/her uniqueness and complexity”. 35. For present purposes, the massified individual is one that is basically thought of as a commodity, or as an entity that can always be exchanged with some other to carry out a function. In terms of human rights, this massification process and the negation of any distinctiveness of the “human” that goes beyond the functions that he/she can perform, amount to the “inhuman”, to treating human beings as a thing or, more specifically, as a cog in a machine, that is, they amount to “depersonalization”. An individual’s value is equal to his/her ability to perform a function. Nothing else is recognized as relevant, but relegated to the (publicly insignificant) “private” sphere. Such a phenomenon is not limited to the way the individual is objectively treated by others. It also involves, and this is particularly relevant here, the individual psychic sense of the self, such as when he/she essentially (if not exclusively) considers him/herself or acts as an entrepreneur of the self (including his/her personality, emotional endowment, bodily traits, rationality, genetic heritage, etc.), a self that is to be placed on the market of life for a profit.91 Of course, this notion of the individual does not exclude but, rather, ostensibly welcomes the “uniqueness” of any individual. This very uniqueness, nonetheless, is itself commodified, sold and massified by having people believe that they are unique. It is not actual uniqueness, but the idea of uniqueness that becomes relevant, in as far as it can be sold and there are consumers willing to buy it. This process is today culminating in the developments of AI, in mass data (that is, data that are massively collected from a mass of data for a mass of people) and in the global automation to which AI is leading,92 and which raises inter alia “moral” issues.93 Artificial “intelligence”—the term itself is quite revealing of its key aim to “improve” (in fact, to replicate and commodify) the human psyche—may be considered as the apex of the massification process described above and, in this respect, it constitutes a (if not the) key issue in the human rights debate and, much more broadly, in any possible debate. AI requires and at the same time shapes the automaton-human: rather than making robots similar to humans as much as possible, as it is commonly advertised, AI actually makes humans similar to robots as much as possible, since it is only under this precondition that it can work “intelligently”. For example, users of artificially intelligent sex-dolls have enthusiastically said that the latter’s (silicon-made) “skin” is incredibly “almost equal” to that of “true” women. The process transforms users in beings who become able to appreciate silicon skin as much as, and ultimately more than “real” (old-fashioned) skin.94 This is not of course to imply that AI is in itself troubling. A trouble arises only when it becomes impossible to assess AI and its possible flaws in particular circumstances or in certain respects from the outside. 36. In contrast, precisely because of “their uniqueness”, individuals are not interchangeable or cannot simply reduce themselves to exchangeable functions. Once an individual is lost, such as when he/she dies, he/she is lost for good, despite that others may replace him/her in any function he/she used to perform. Such individual is not a set of functions; he/she feels and conveys a sense of humanity. In addition to “uniqueness”, the human person is marked by an “integrated” complexity, against any Cartesian dualism between reason and emotion, that is, the whole human being, including both its rational and non-rational components. It seems that this is the true “weak” that human rights are designed to protect: the individual who is alone and helpless, with no demand and no market value, thus insusceptible of being sold. In a conversation, this individual represents both myself speaking (alone, without any broader category ideally siding with me) and my interlocutor (likewise alone, here and now, without any ideal and abstract mass category to support him/her). The point, thus, becomes if and how I do understand, first of all, myself as a human person and, by reflection, others as human persons, beyond my and their contingent functions. 37. Clearly, a world where all human beings conceive of themselves and of all others as human persons in absolute terms is impossible. To the very least, society requires organizational forms, and these reduce the possibility of treating people as human persons in the above terms. Moreover, the human person, as it is understood here, has nothing to do with a Christian-grounded, or a romantic, or even an anti-technological or anti-organizational vision of how individuals should be expected to behave towards each other. To draw attention to the human person does not necessarily preclude social action, planning and organization. To the contrary, it provides a foundation and a direction to every human action, including the foundation and direction of (international) human rights. So, in what sense is the human person relevant to our purposes? My answer is that, in order not to risk losing the sense of human rights, we have to keep the human person at center stage. This may enable us to see efficiency, organization, economy, politics, etc. from the outside, and keep a “human” safeguard constantly alive and potentially trumping other considerations. V. Overcoming the “crisis” and the social construction of international law 38. Is there any chance to “overcome” the above-mentioned broader massification “crisis” that is currently under way in existing international law and institutions? An affirmative answer seems hardly defensible. Let us have a look at some developments in the recent practice of some relevant international fora. V.A. Recent developments in international practice 39. The “neoliberal question” has been abundantly discussed internationally, in particular at the United Nations in the framework of the “business and human rights” and “corporate social responsibility” (CSR) debates. In fact, no “international norms” elaborated thus far at the United Nations and elsewhere on this matter are legally binding on corporations. For example, the UN “Global Compact”, officially launched by the UN in 2000, is aimed at encouraging businesses worldwide to adopt sustainable and socially responsible policies and to report on their implementation (so far, some 10,000 businesses have participated) on the basis of 10 principles. The Global Compact is advertised online by the UN as “the world’s largest corporate sustainability initiative” and as “[a] call to companies to align strategies and operations with universal principles on human rights, labor, environment and anti-corruption, and take actions that advance societal goals”. The 10 (legally non-binding) principles include respect for “internationally proclaimed” human rights and in particular for workers’ rights (such as “the freedom of association and the effective recognition of the right to collective bargaining”), the prohibition of child, forced and compulsory labor, support for “a precautionary approach to environmental challenges”, and efforts “against corruption in all its forms, including extortion and bribery”.95 Likewise, the UN “Guiding Principles on Business and Human Rights” (UNGPs) developed by the Special Representative of the UN Secretary-General, John Ruggie, and unanimously endorsed by the UN Human Rights Council (HRC) in 2011 with Resolution 17/4, aim at identifying and clarifying standards of corporate responsibility and accountability for transnational corporations and other business enterprises in respect of human rights. Significantly, in addition to manifestly being non-legally binding (“Nothing in these Guiding Principles should be read as creating new international law obligations” reads their preamble), they envisage a “duty to protect” incumbent on states against human rights abuse “by third parties, including business enterprises” within their territory and/or jurisdiction (points 1–10) and a “responsibility to respect” human rights (specifically, at point 12, “internationally recognized human rights”) directly incumbent on multinational enterprises and based on due diligence (point 17), but only as a “standard of expected conduct” (point 11 and related commentary).96 More recently, the UN Committee on Economic, Social and Cultural Rights adopted General Comment No. 24 (2017) on “State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities”.97 Besides its non-legally binding nature, the Comment in essence confirms that (already existing) international human rights obligations are only binding on states, not on business “entities”.98 40. As to sustainable development, the UN General Assembly adopted with Resolution 70/1 of 2015 the “2030 Agenda for Sustainable Development” and the related “Sustainable Development Goals” (SDGs), which since 2016 have replaced the “Millennium Development Goals” (MDGs) adopted in 2000. Inspired by “5 Ps” (People, Planet, Prosperity, Peace and Partnership), SDGs are meant to be realized by 2030 and comprise 17 “goals” which, in turn, are articulated in 169 “targets”, a much larger number than the eight “goals” and 18 “targets” of the previous MDGs. Despite the enthusiasm (indeed, an inevitable enthusiasm when considering that SDGs are formulated in the form of advertising slogans) and the quasi-imminent “Land of Plenty tone” which surrounds SDGs in the media which, despite the SDGs being non-legally binding, even speak at times of their “entry into force” from 1 January 2016, the actual realization of SDGs at a meaningful level is unlikely. This has been confirmed by a working paper of the International Bank for Reconstruction and Development, part of the World Bank Group, which just a week after the adoption of the SDGs observed that “meeting the global poverty target by 2030 remains aspirational in all but the most optimistic of scenarios”.99 41. With special regard to extreme poverty, neoliberalism has been repeatedly addressed by Philip Alston, in his capacity as UN Special Rapporteur on Extreme Poverty and Human Rights, by focusing on the impact of neoliberal economics (notably privatization and austerity policies) on human rights. In his report of 22 March 2017, he noted that “[t]he neoliberal policies encapsulated in the 1980s-era Washington Consensus can be seen, especially in retrospect, to have greatly exacerbated economic insecurity […] The State was assumed to be intrinsically inefficient and corruption-prone […] The ascent of a new neoliberal agenda, which involves further fetishization of low tax rates, demonization of the administrative State, deregulation as a matter of principle, and the privatization of remaining State responsibilities in the social sector, risks leaving the State in no position to protect or promote social rights meaningfully”.100 Moreover, addressing the impact of IMF neoliberal policies on social protection, Philip Alston held that “[t]he neoliberal agenda generally refers to policies intended to increase market-based competition and decrease the role of the state in an economy”, and that despite the fact that “[b]y 2016, some leading IMF economists were even conceding that neoliberalism had been oversold and that ‘the short-run costs [of austerity] in terms of lower output and welfare and higher unemployment have been underplayed’”, “[m]any of the critics, however, are not convinced that the basic policy paradigm has changed”.101 42. On the matter of public debt and austerity measures, in a report released on 16 July 2019, the UN Independent Expert on Foreign Debt and Human Rights, Juan Pablo Bohoslavsky, envisaged the possibility of holding international financial institutions responsible for complicity in human rights violations in the context of retrogressive economic reforms, stating in connection with the report that “[a]lthough States are the main guarantors of human rights, international financial institutions can also be held responsible if they are complicit in prescribing [austerity and regressive economic] policies with probable negative impacts on human rights” and that “austerity measures often lead to reduced food subsidies, and cuts in essential public services. They have a negative impact on salaries and on social investment like housing, infrastructure, health and education”.102 43. Finally, in the World Economic Forum (WEF) an “end” of, or an “alternative” to, neoliberalism seems to be preconized, for instance by stating that “Neoliberal economics has reached a breaking point”, and “[t]he neoliberal age had its day. It is time to define what comes next”,103 or that “for humanity to have any hope at all, Globalization 4.0 must break with neoliberalism for good”,104 or that “[t]he neoliberal experiment—lower taxes on the rich, deregulation of labor and product markets, financialization, and globalization—has been a spectacular failure”.105 Similar positions, however, have often raised skepticism.106 44. In sum, all such initiatives are based on non-binding acts, and, from the perspective of the present article, seem to go off the mark. The prevailing approach insists, first, on “neoliberalism” as a set of economic recipes that have eroded the state, without investigating the deeper psychic and much more pervasive implications of the issue. Secondly, it continues to treat human rights and the economy as separate areas which should “dialogue” with each other to the effect that neoliberal policies should at least be tempered by human rights, without taking seriously that the economy has clear human rights implications and human rights have clear economic implications. The two “areas” are considered either as two real enemies that somehow should come to terms with each other, or as two apparent enemies who are reconciled by means of one of them co-opting the other (typically by economicizing human rights, or arguing that the economy, in particular the neoliberal economy, may harness human rights). Thirdly, if, on one side, the notion of “neoliberalism” is simplistically reduced to certain economic recipes, on the other it is also generally taken for granted that the category of “human rights” unitarily coincides, more or less, with the idea of “justice” or “morality”, without dissecting it into its various meanings and underlying rationales, ideologies, prerequisites and remedies. Against the background of this article, all of these assumptions are misleading at best, and their respective remedies bound to worsen the illness and to fail. In fact, the issue is, first of all, actually rooted in the mass psychology applicable to every human endeavor, and it is precisely these (apparently recalcitrant) masses that are supposed to “support” the remedy. Secondly, the economy and human rights cannot be seen as separate fields of human activity, since the economy concerns as well a degree of fair allocation of resources that is motivated by and supportive of certain human rights, and human rights, for their part, undoubtedly imply certain economic choices rather than others. This is not, of course, to hold that human rights should be recast in economic terms, nor international economic law in human rights terms. It simply means that their separate (however somehow “interconnected”) treatment does justice to neither of the two, and turns into a militant (and ultimately sterile) action favoring one against the other. Thirdly, human rights are far from a unitary category and serve a variety of different (and even opposite) purposes, some implied in neoliberal thinking while others implied in anti-neoliberal thinking, so that any appeal to “human rights” as such can “hide” behind very different visions of justice and morality. Finally, in practice neoliberalism is far from eroding the notion of state sovereignty, but it actually reinforces the state, or more precisely, it reinforces certain states to the detriment of others, and it clearly represents a political choice, not just a set of economic recipes with adverse (or beneficial) effects. V.B. An international law constructivist agenda 45. If international law is only conceived of as what is stipulated by existing rules, and if the role of international legal scholars is understood as a commitment to pure analysis, then there is hardly (or they can hardly contribute to) any way out of the current state of things. A hyper-efficient, massified conception of the human being is psychically and globally endorsed at the institutional, as well as academic level. However, if international law is seen as a social construct, and the work of scholars as not only an apparently neutral (“disciplinary and professional”) reading of rules,107 but also as an indication of, and struggle for, more constructive legal paths to follow, by way of interpretation of existing rules and of promotion of new ones, then certain paths may appear more reasonable than others to regain an outside. In fact, any strictly “disciplinary and professional” approach to international law, although undoubtedly necessary, risks only or predominantly working as a megaphone for contemporary power structures, leaving the task of exposing existing flaws and injustices to other “suited” disciplines, with no or little inter-communication between the latter and international law, and is clearly insufficient. In advocating international law as a social construct, I refer to the law as a social phenomenon that has to work in practice to enable the people to live together, no matter on what theoretical or ideological basis. And the law requires, in order to work in practice, a non-legal, ethical, pedagogical, cultural background common to its addressees as a whole in the first place. 46. On these premises, I would rather indicate the paths through which it may be possible to construct a better law and international law, rather than discussing this or that rule of existing (commodified, as said) international law. Undoubtedly, the chance or margin for improvement is limited, but the alternative within the currently prevailing system, in light of the foregoing analysis, is nonexistant. This approach amounts to an invitation to those (including voters and members of international human rights monitoring bodies) who have followed my argument thus far, to struggle for what seems to be a more convenient path to follow. My compass is the “human person” in his/her uniqueness and “integrated” complexity.108 The human person is meant as the unique and whole human being, including both its rational and non-rational components, and the law is aimed at governing in practice the lives of such human beings (humankind, as far as international law is concerned) in their variety, enabling them to succeed in living together under common rules. 47. Three interrelated elements appear key to being able to regain an “outside”, to contain any totalizing project, and thus also to have this mutual respect for the quintessential “human”, as described above, valued and respected. First, I would place at center stage the human person as defined above, that is, the “true” weak, in contrast to the massified, individual. It is difficult to see other really credible paths, and we all know that when, in the past, certain attitudes have changed (such as when the previously “natural” practice of slavery or of racial discrimination/segregation were prohibited), this has occurred as a result of someone’s different thinking and acting, at the cost of losing (rather than gaining) advantages in the prevailing system as it stood.109 In any event, I doubt that there are “reasons” in favor of this attitude; it is in the end a matter of conscience for any jurist, assuming that a clear conscience is an inner part of the human person. 48. Secondly, I would place at center stage empathy, that is, empathic self-containment, in contrast to massified reason.110 By “empathic self-containment” I refer to the capacity of feeling (rather than only reasoning about) the hunger of another as equal to my hunger, and consequently my factual incapacity, just to give an example, to rush and eat the only piece of bread that is available before us. Empathy is part of the endowment of the human person and may be used to different ends: either for neoliberalism-driven advertising or omnipresent pressure on competitiveness, with the aim to overwhelm people in their psychic processes; or for dictatorship’s practices of torture through “feeling” and performing the most unbearable acts towards the tortured, in order to overwhelm people in their body and mind;111 or, on the contrary, to make people and their relationships become more intimate and meaningful. 49. Empathy is closely related to social and emotional “attunement” and “common sense”. People experience their involvement in communities by the act of intuitively “attuning” with one another. Attunement amounts to feeling “in tune” (or “in body resonance”) with others, a two-part process going even beyond empathy by metaphorically feeling to be “in their skin”. As Daniel N. Stern has shown in The Interpersonal World of the Infant, attunement is the cornerstone of intersubjectivity, originating in the mother-infant relationship.112 It is the ability to recognize and join with the other through the same common meaning structures, affectivity, and emotional life.113 It is not a set of cognitive beliefs forming the content of consciousness, nor a stock of reflective knowledge, nor an act of theoretical cognition. Attunement makes intersubjectivity and a communal real world possible. As common sense, it is “the ability to see things in the appropriate perspective, an implicit non-conceptual grip of the ‘rules of the game’, a sense of proportion, a taste for what is adequate and appropriate, likely and relevant”,114 an experience of belonging that makes one feel “one of them” who share a common world. The exposure to the absence of such a feeling means the loss of reality, the reality of both self and other, and the abnormal experience of depersonalization (self-disorders) and desocialization (autism). The human person is closely related to empathic self-containment and emotional attunement. 50. Thirdly, I would place at center stage the school, at any level, in contrast to the massified “cookbooks” now in vogue. A school that is not “supermarketized” as it is today, this being one of the most abhorrent operations having been conducted in the last decades and still in progress, against which rebellion, in my view, is fully justified.115 For example, as far as higher education is concerned, despite some timely (but unheard) critical authoritative voices, such as Harvard’s President Drew Faust in 2009,116 universities have mostly become “cultural” shopping malls selling techno-thinking for profit according to multinational corporations’ business models.117 A model of “education for profit” to the detriment of “education for democracy” is prevailing.118 Critical thinking’s ability to expose such a model is typically perceived as “dysfunctional” to economic growth and political obedience or discarded as unnecessarily “polemic”, if not “ideological” or “exaggerated”, on the assumption that “neoliberalism” (as roughly intended) is instead a “neutral” and the best way of thinking in the circumstances. Critical thinking is then understood, similarly to “creativity”, as “what businesses need for profitability”.119 Evidence that universities are conceived of as businesses selling cultural “products”, “services” and prospective jobs is overwhelming, such as deep cost cuts in most of them—especially in the humanities and arts programming as inessential, too costly and with no returns—due, inter alia, to global economic crises that may well be propelled by market-and techno-centered thinking itself and “Oxbridge” secretly investing offshore.120 Teachers are increasingly induced to function as cogs in an industrial machine for the benefit of the machine as a whole. As cogs, they are increasingly required to be “loyal” to the machine rather than to “truth”, to sell their knowledge and increase the market value of the machine/university which allows them to earn a living. Moreover, as cogs, they are ever more required to conform to strict standards in terms of “performance”, which are gradually transforming them into robot-like humans who are about to lose the competition with “true” robots. The model is leading universities to assume techno-thinking or industrial-thinking as the optimal mode of thinking, the only one correct and valid for every aspect and moment of human life, from hospitals to the Red Cross, including affective life and the arts, as confirmed by current attempts to “sell” the humanities as techno-science aimed at “changing the world” rather than (also, if not primarily) understanding this same change.121 51. Indeed, the school has always been used by any kind of dominant or totalizing regimes to shape the minds of current and future societies. Today, the “old” mind-shaping function of the school has been largely replaced by profit-driven media, and schools themselves, including their staff, have been mostly commodified and mediatized. However, much more than elsewhere, it is in the school as an institution that people are educated to cultivate rational thinking and “inner eyes”—as opposed to being overwhelmed by the emotions of the moment—to compare and to objectively discuss an endless variety of different perspectives, both synchronically and diachronically.122 One may have reasonable doubts as to how the school can represent a solution, and no doubt the school is unable by itself to improve people’s ability to attune with others and constructively contribute to a successful living together. However, once the school is annihilated as an educational institution and transformed into a for-profit enterprise, no other institution is left where people are expected to progress in their detached knowledge, understanding and sensitiveness to the events and changes of the humans around them. All the more so when this process involves universities, with no “higher” educational institution being left free from the primary concern of profit-making. A cutting-edge school on the scientific front that is also inspired by the humanities, where people are educated on the basis of data and ideas to comprehend (that is, to progress in the ability of the mind to hold together) both complexity (that is, the circumstance that one and the same thing can be seen from many, even opposing, points of view at the same time) and ambivalence (that is, the circumstance that one and the same thing may have many, even opposing, meanings at the same time), two circumstances surrounding every human aspiration, expression, craftwork and accomplishment. VI. Conclusion 52. The so-called “crisis” of human rights is part of a much broader “crisis” that originates, inter alia, in the Cold War and post-Cold War neoliberal wave and that has taken hold of mass psychology, upstream of mass politics and thinking. The way ahead needs to go beyond both (psychically commodified) “human rights” and “neoliberalism” and towards the valuing of the human person in his/her uniqueness and integrated complexity. To this end, the human person, empathy and the school, provided that they are intended as (firstly) psychically and (secondly) legally decommodified, may provide a way out and a (humanistic) direction to regain an outside and to perceive the need for the practical co-existence of human beings, beyond all theoretical, abstract constructions. This paper was completed for publication on 30 March 2020. I wish to thank Emma Luce Scali for her invaluable research assistance. Footnotes 1 " Costas Douzinas, The End of Human Rights: Critical Thought at the Turn of the Century (2000); Upendra Baxi, The Future of Human Rights (2008, 3rd edn.); Stephen Hopgood, The Endtimes of Human Rights (2013); Eric Posner, The Twilight of Human Rights Law (2014); Philip Alston, The Populist Challenge to Human Rights, 9 JHR Practice (2017), 1–15; Ingrid Wuerth, International Law in the Age of Trump: A Post-Human Rights Agenda, Lawfare, 14 November 2016 (www.lawfareblog.com/international-law-age-trump-post-human-rights-agenda) (accessed 30 March 2020); Michael Ignatieff, The Ordinary Virtues: Moral Order in a Divided World (2017); Kathrin Sikkink, Evidence for Hope: Making Human Rights Work in the 21st Century (2017); Samuel Moyn, Not Enough: Human Rights in an Unequal World (2018); Joseph R. Slaugther, Hijacking Human Rights: Neoliberalism, the New Historiography, and the End of the Third World, 40 Human Rights Quarterly (2018), 735–75. While this article will engage with the scholarly debate where appropriate, non-academic contributions are also valuable here, in light of the “constructivist” reasons given below. 2 " See, for example, Michael O’Flaherty, Protecting Human Rights in Today’s Europe, 23 January 2017 (fra.europa.eu/en/speech/2017/protecting-human-rights-todays-europe) (accessed 30 March 2020); UN HRC, Report of the Special Rapporteur on Extreme Poverty and Human Rights, 22 March 2017, UN Doc. A/HRC/35/26 (ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/26) (accessed 30 March 2020), paras.2 and 3 (“[t]he fundamental values of the international human rights system are under attack […] further undermining faith in electoral democracy”). 3 " Amnesty International, Report 2017/2018: The State of the World’s Human Rights (www.amnesty.org/download/Documents/POL1067002018ENGLISH.PDF) (accessed 30 March 2020), 12 and 14; Human Rights Watch, 2019 Report, Keynote Essay by HRW Executive Director Kenneth Roth on “World’s Autocrats Face Rising Resistance” (www.hrw.org/sites/default/files/world_report_download/hrw_world_report_2019.pdf) (accessed 30 March 2020), 1 (“this is a dark time for human rights” and “[u]nlike traditional dictators, today’s would-be autocrats typically emerge from democratic settings”). 4 " Samuel Moyn, How the Human Rights Movement Failed, The New York Times, 23 April 2018. 5 " David Rieff, The End of Human Rights?, Foreign Policy, 9 April 2018. 6 " Will Bordell and Jon Robins, “A Crisis for Human Rights”: New Index Reveals Global Fall in Basic Justice, The Guardian, 31 January 2018. 7 " Christopher R. Browning, The Suffocation of Democracy, The New York Review of Books, 25 October 2018. 8 " “Leave No Dark Corner”, ABC News, 17 September 2018 (www.abc.net.au/news/2018-09-18/china-social-credit-a-model-citizen-in-a-digital-dictatorship/10200278?pfmredir=sm) (accessed 30 March 2020). 9 " See, typically, Antonio Cassese, International Law (2001, 1st edn.), 18. The same approach was adopted by the International Criminal Tribunal for the former Yugoslavia in its 1995 Tadić decision, presided by Judge Cassese himself (see ICTY, Prosecutor v Tadić Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, Case No. ICTY-94-1, para.97, stating that “the impetuous development and propagation in the international community of human rights doctrines, particularly after the adoption of the Universal Declaration of Human Rights in 1948, has brought about significant changes in international law, notably in the approach to problems besetting the world community”, so that a “State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach”. 10 " Samuel Moyn, The Last Utopia: Human Rights in History (2010). 11 " See Carlo Focarelli, International Law as Social Construct: Struggling for Global Justice (2012), 441–3. 12 " With regard to the policy of US President Donald Trump, see recently Stefan Talmon, The United States under President Trump: Gravedigger of International Law, 18 Chinese JIL (2019), 645–68. Previously, see Samuel Moyn, Trump and the Limits of Human Rights, OpenGlobalRights, 14 November 2016 (www.openglobalrights.org/trump-and-limits-of-human-rights) (accessed 30 March 2020), arguing that “human rights could well complement a political response to populism, but not compensate for the failure to construct that response in the first place”; Alston, above n.1, as a (very representative) voice of the “we in the human rights movement”. 13 " See, differently, Hopgood, above n.1, xiii, 166, arguing that “we are entering a neo-Westphalian world”, that is “a world of renewed sovereignty, resurgent religion, globalized markets, and the stagnation or rollback of universal norms about human rights” (emphasis in the original). 14 " Slaugther, above n.1, 766–7. 15 " For the historical and conceptual nexus between “neoliberalism” and “authoritarianism” against the (Communist or left-wing) masses and the equality of people and peoples, see recently Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (2019), 156–197, 239. 16 " For one appreciable survey and analysis among many others, see Andrew Lang, World Trade Law after Neoliberalism: Re-Imagining the Global Economic Order (2011). 17 " For example, according to William Mitchel and Thomas Fazi, Reclaiming the State: A Progressive Vision of Sovereignty for a Post-Neoliberal World (2017), “social-democratic parties are being ‘pasokified’ […] due to their embrace of neoliberalism” (at 2), “many left thinkers [having] declar[ed] the state dead” (at 105), “neoliberalism has very little to do with classical liberalism or laissez-faire, and certainly does not entail a retreat of the state in favour of the market” (at 94–5), neoliberalism is “about restructuring the institutional framework of the state” and “in its official anti-state guise […] was (is) a convenient alibi for what has been and is essentially a political and state-driven project” (at 108, emphasis in the original). 18 " The topic of the intersection between human rights and neoliberalism has been the subject of extensive recent scholarship and debate, see e.g. Philip Mirowski, Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown (2013); Honor Brabazon (ed.), Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (2016); Joe J. Wills, Contesting World Order? Socioeconomic Rights and Global Justice Movements (2017); Gillian MacNaughton and Diane F. Frey, Economic and Social Rights in a Neoliberal World (2018); John Linarelli, Margot Salomon and Muthucumaraswamy Sornarajah, The Misery of International Law: Confrontations with Injustice in the Global Economy (2018), especially Ch. 7; Moyn, above n.1. 19 " This is the typical approach of human rights NGOs and UN/EU human rights institutions, see e.g. Amnesty International, above n.3; Human Rights Watch, above n.3; UN HRC, above n.2; Alston, above n.1; O’Flaherty, above n.2. 20 " UN HRC, above n.2; UNGA, Third Committee, World Altered by “Neoliberal” Outsourcing of Public Services to Private Sector, Third Committee Experts Stress, amid Calls for Better Rights Protection, 19 October 2018, UN Doc. GA/SHC/4239 (www.un.org/press/en/2018/gashc4239.doc.htm) (accessed 30 March 2020); Wills, above n.18; Linarelli et al., above n.18, Ch. 2; MacNaughton et al., above n.18. For example, according to Wendy Brown neoliberalism is a threat to human rights and democracy that wholly desacralizes civil liberties, the rule of law and fair elections (see Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (2015), 17; Id., American Nightmare: Neoliberalism, Neoconservatism, and De-Democratization, 34 Political Theory (2006), 702). Against the view that neoliberalism is merely an “amoral economic ideology”, see recently Whyte, above n.15, 6–10, arguing that “the neoliberal argument for the competitive market was itself moral and political” (at 14), the “guarantor of individual freedom” and “dignity” (at 27), as well as the “necessary condition of social peace” (at 17) and (Western) civilization (at 35–74). 21 " Appeals in this sense are commonly made by the Catholic Church and NGOs, see e.g. Hannah Brockhaus, Pope Francis, Benedict XVI Voice Support for Conference on “New” Human Rights, Catholic News Agency, 15 November 2018 (www.catholicnewsagency.com/news/pope-francis-benedict-xvi-voice-support-for-conference-on-new-human-rights-50196) (accessed 30 March 2020); Andrea Gagliarducci, Benedict XVI’s Unpublished Letter: God is Key to Understanding Human Rights, Catholic News Agency, 14 May 2018 (www.catholicnewsagency.com/news/analysis-benedict-xvis-unpublished-letter--god-is-key-to-understanding-human-rights-86495) (accessed 30 March 2020); Amnesty International, above n.3; Human Rights Watch, above n.3. 22 " See e.g. Eric Posner, above n.1; Id., Human Rights Law Is Too Ambitious and Ambiguous, The New York Times, 28 December 2014 (www.nytimes.com/roomfordebate/2014/12/28/have-human-rights-treaties-failed) (accessed 30 March 2020); Eric Posner, Charlie Hebdo Proves Just how Broken Human Rights Law Is, The Washington Post, 14 January 2015 (www.washingtonpost.com/posteverything/wp/2015/01/14/human-rights-law-is-basically-dead-thats-a-good-thing) (accessed 30 March 2020). Today, this stance is also typically supported by “souverainist”, “populists” and more generally rightist movements. See also below n.75. 23 " This is the typical stance of liberal and neoliberal economists, including perhaps “rightist” people, economists and scholars, see e.g. Jagdish Bhagwati, In Defense of Globalization (2004, edn. 2007), arguing that economic “globalization has a human face” (at 49, 270) and, more specifically, that “growth reduces poverty” (at 64), that, in principle, economic globalization has not widened (but instead narrowed) world inequality (at 67), has “accelerate[d] the reduction of child labor […] and literacy” (at 68), has “help[ed] women” (at 74), and has “promote[d] democracy while constraining it at the same time”, given that “extreme, radical shifts to the left cannot be undertaken in the presence of globalization” (at 93, 96). Furthermore, according to Bhagwati, globalization has not imperiled cultural diversity (at 106–21), it has involved no race to the bottom as to wages, and labor standards (at 122–34), as well as to environmental standards (at 135–61). See also below n.97. 24 " See n.28 below. 25 " See n.51–52 below. 26 " See Linarelli et al., above n.18, 240, opposing the theory that “growth and the ubiquitous role of the market is the precondition for the realization of human rights” and remarking that “the growth narrative has been used to misappropriate the socio-economic rights narrative and the rights themselves” and it has been “developed by focusing on the neoliberal co-optation of human rights”, with the result that “the enfranchising capacity of human rights is subverted by the interests of global capitalism”. 27 " See, for example, Simon Glendinning, Varieties of Neoliberalism, 36 Graduate Faculty Philosophy Journal (2015), 437–61. For a general treatment, see David Harvey, A Brief History of Neoliberalism (2005); Simon Springer, Kean Birch, and Julie MacLeavy (eds.), The Handbook of Neoliberalism (2016). 28 " See, for example, Clive Barnett, The Consolation of Neoliberalism, 36 Geoforum (2005), 7–12, holding that “[t]here is no such a thing as Neoliberalism” (at 9), against any “simplistic” attempt to reconcile neoliberalism in terms of (Gramscian) hegemony and (Foucauldian) discourse and governmentality, two approaches that will be discussed in the next section; Bruce Caldwell, The Chicago School, Hayek, and Neoliberalism, in Van Horn Robert, Philip Mirowski and Thomas Stapleford (eds.), Building Chicago Economics (2011), noting that “the term ‘neoliberalism’ has many connotations” (at 308, 324–30); Taylor Boas and Jonas Gans-Morse, Neoliberalism: From New Liberal Philosophy to Anti-Liberal Slogans, 44 Studies in International Development (2009), 137–61, arguing that “neoliberalism has become an academic catchphrase” the meaning of which “curiously have elicited little scholarly debate” and finding that “the term is often undefined; it is employed unevenly across ideological divides; and it is used to characterize an excessively broad variety of phenomena”; Catherine Kingfisher and Jeff Maskovsky, Introduction: The Limits of Neoliberalism, 28 Critique of Anthropology (2008), 115–26, treating neoliberalism “as a process rather than a fait accompli” and emphasizing that “its rise to global prominence has been fraught with contradiction and partiality”, with a view to moving “beyond abstract and totalizing approaches”. 29 " Alexander Rüstow, Das Versagen des Wirtschaftsliberalismus als religionsgeschichtliches Problem, Istanbuler Schriften No. 12 (1945); Wilhelm Röpke, Civitas Humana. Grundfragen der Gesellschafts- und Wirtschaftsreform (1946, 2nd edn.), English version: Civitas Humana: A Humane Order of Society (1948), on Röpke see also n.84 below. The term “ordo” derives from the journal ORDO (“Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft”, in English “The Ordo Yearbook of Economic and Social Order”) established in 1948 to further the creation of the post-World War II German social market economy. For an analysis of their theories, see Thomas Biebricher, The Biopolitics of Ordoliberalism, Foucault Studies No. 12, November 2011, 171–91; Werner Benefeld, Adam Smith and Ordoliberalism: On the Political Form of Market Liberty, 39 Review of International Studies (2013), 233–50; Whyte, above n.15, 35–155. 30 " Friedrich A. Hayek, The Road to Serfdom [1944] (2007), “Foreword to the 1956 American Paperback Edition”, 45; ibid., “Preface to the 1976 Edition”, 54. 31 " The issue was debated at the so-called “Walter Lippmann Colloquium”, a conference held in 1938 in Paris among 26 intellectuals, including economists, with the aim of constructing a new liberalism. At the meeting, the term neoliberalism was coined by Alexander Rüstow, referring to the rejection of the (old) laissez-faire liberalism, see Philip Mirowski and Dieter Plehwe, The Road from Mont Pèlerin: The Making of the Neoliberal Thought Collective (2009). 32 " John Maynard Keynes, “Letter to Hayek” (28 June 1944) in Hayek, above n.30, 23–4. Keynes’s criticism was about the line between “good” and “bad” state planning, as follows: “You admit here and there that it is a question of knowing where to draw the line. You agree that the line has to be drawn somewhere, and that the logical extreme is not possible. But you give us no guidance whatever as to where to draw it” (see n.39 below). 33 " See Whyte, above n.15, 156–97. 34 " Friedrich A. Hayek, The Use of Knowledge in Society, 35 The American Economic Review (1945), 519–30; Friedrich A. Hayek, Individualism and Economic Order (1948), 77–91, postulating that knowledge is by definition fragmentary, imperfect and socially dispersed, hence the impossibility of central planning, the necessity of a social institution to avoid chaos and the preference for free market and the price system to work as said decentralized institution, whereas the centralized management of society would lead to economic collapse and political totalitarianism. On this point, see also Primož Krašovec, Neoliberal Epistemology: From the Impossibility of Knowing to Human Capital, 24 Filozofija I Društvo (2013), 63–83. It is worth noting, a point which is rarely emphasized other than in philosophical circles, that Hayek extensively and acutely discussed the epistemological foundations of his thought against the objectivist/collectivist/engineer-like approach of “scientism” also in The Counter-Revolution of Science: Studies on the Abuse of Reason (London, 1955) and in The Errors of Constructivism, in New Studies in Philosophy, Politics, Economics and the History of Ideas (London, 1978) 3–22. Here, differently from (and in perfect accord with) the meaning that I will attach to constructivism below, the term “constructivism” refers to the apparently “innocent” and pseudo-rational formula in great vogue in modern times whereby “since man has himself created the institutions of society and civilization, he must also be able to alter them at will so as to satisfy his desires or wishes” (at 3). For the sake of brevity, only a few other works of Hayek will be examined here. For a detailed analysis of Hayek’s thought, together with that of other economists commonly associated with neoliberalism, see recently Whyte, above n.15. 35 " Hayek, above n.30, “Preface to the 1976 Edition”, 53. 36 " Ibid., “Foreword to the 1956 American Paperback Edition”, 43 and Chs. 2 and 12. 37 " Ibid., 40 and 45. 38 " Ibid., 76-78. 39 " Ibid., 50. However, Hayek advocated in favor of certain measures of “economic security” for the protection of the needy, provided that they complemented (rather than replaced) the market system. In his words, although “[t]here are difficult questions about the precise standard which should thus be assured […] there can be no doubt that some minimum of food, shelter, and clothing, sufficient to preserve health and the capacity to work, can be assured to everybody […] nor is there any reason why the state should not assist individuals” in severe need, including a “given income” in particular circumstances, as a matter of “justice” (ibid., 147–50). 40 " Ibid., 58-59. 41 " On the close connection between neoliberalism and (Western) civilization, see recently Whyte, above n.15, 35–74 and n.20 above. 42 " Hayek, “Individualism: True and False” in Hayek (1948), 1–32. 43 " Edward S. Herman and Noam Chomsky, Manufacturing Consent (1988). 44 " See, for example, Harvey, above n.27, 39–63. 45 " Michel Foucault, Naissance de la biopolitique: cours au Collège de France (1978-1979) (2004), English version: The Birth of Biopolitics: Lectures at the Collège de France 1978–1979 (2008). For a discussion of Foucault’s ideas expressed at the seminar, see Thomas Lemke, The Birth of “Bio-Politics”: Michel Foucault’s Lecture at the Collège de France on Neo-Liberal Governmentality, 30 Economy and Society (2001), 190–207; Jakob Nilsson and Sven-Olov Wallenstein (eds.), Foucault, Biopolitics, and Governmentality (2013); Mirowski, above n.18, 93–101, arguing that Foucault, although prescient of the ambition of neoliberals to recast the totality of human existence “into a novel modality, to be disciplined and punished by structures of power/knowledge”, missed that “[t]heir version of governmentality elevates the market as a site of truth for everyone but themselves” (emphasis in the original), hence “Foucault’s acquiescence in the neoliberal doctrine” (see n.50 below); Daniel Zamora and Michael C. Behrent, Foucault and Neoliberalism (2016); Stephen W. Sawyer, Foucault, Neoliberalism, and Beyond (2019). 46 " Foucault, above n.45 (Lect. 21 March 1979, at 247), arguing that, while “in classic liberalism the government was called upon to respect the form of the market and laisser-faire […] [h]ere, laisser-faire is turned into a do-not-laisser faire government, in the name of a law of the market which will enable each of its activities to be measured and assessed” so that “[l]aisser-faire […] turned round, and the market is no longer a principle of government’s self-limitation; it is a principle turned against it [, …] a sort of permanent economic tribunal confronting government”. 47 " Lemke, above n.45, 200. 48 " Foucault, above n.45 (Lect. 17 January 1979, at 20; Lect. 17 January 1979, at 30). See also n.49 below. 49 " In fact, the issue of liberalism (or, more specifically, “political economy”) as a “regime of truth” is dealt with by Foucault only in the first two introductory lectures, covering nineteenth-century liberalism and its relation to state “governability”, although he noted that “the basic apparatus of [it] is in fact still the same today”, pointing out that “the moment I am presently trying to indicate is marked by the articulation of a particular type of discourse and a set of practices, a discourse that, on the one hand, constitutes these practices as a set bound together by an intelligible connection and, on the other hand, legislates and can legislate on these practices in terms of true and false” (emphasis added). See Foucault, above n.45 (Lect. 17 January 1979, at 18, 22; Lect. 10 January 1979, at 29, 33, 36). 50 " Mirowski, above n.18, 99–9 (emphasis in the original), n.45 above. 51 " Antonio Gramsci, Quaderni dal carcere, 1948–1951 (2014), English version: Prison Notebooks (1992). In the Gramscian literature see e.g. Thomas R. Bates, Gramsci and the Theory of Hegemony, 36 Journal of the History of Ideas (1975), 351–66. 52 " See e.g. Wills, above n.18. 53 " In this article, the terms “psyche” and “psychic” are meant to identify something more radical than what the other similar terms used in the (anti-neoliberal) literature refer to, generally without detailing their assumptions and implications, when expressions such as “way of being”, “consciousness”, “cultural unconscious”, “mentality”, “logic”, industrial-scale “brainwashing”, “imaginaries”, “default option of […] reflex assumptions”, “irrational leap of faith” or “mind-set” (see e.g. Mirowski, above n.18, 89–94, 106, 119, 123), “way of thinking”, “epistemology”, “imagining”, “internalization”, or Foucault’s “site of truth” or “regime of truth” (supra, n.48 and 49) are used. For present purposes, apart from the use of the terms “psychology” and “psychologically” when referring to induced mass effects, the terms “psyche” and “psychic” are preferred for a number of reasons. Firstly, the phenomenon addressed here is deemed to be broader than those denoted by any of the above-mentioned alternative terms; it includes all of them at the deepest and most influential level, thus involving the “psyche” very much in Jung’s understanding of it as “the totality of all psychic processes, conscious as well as unconscious”, see Carl G. Jung, Collected Works, vol. 6, Psychological Types, Ch. XI, para.48). Secondly, the phenomenon addressed here concerns a largely (yet not totally) unaware subject, not differently from an “objective” biological fact, or instinct, or mental health condition: it operates at the level of relatively scarcely-differentiated mental activity (meaning by “differentiation” the development of differences, that is, the separation of parts from a whole) and is insusceptible to being remedied by the subject through his/her sole own (especially rational) forces. Thirdly, in principle, it is unable to see any alternatives to correct itself, nor to appreciate rational, epistemological, psychological or moral counter-arguments. Fourthly, it is deeply embedded even in its self-professed critics who, despite their apparent convictions, may be intimately more “neoliberal” than (those considered) neoliberals themselves, notably for the way in which they actually live, in contrast to what they preach. Finally, this phenomenon is so embedded that, though of neoliberal origins, it has absorbed and affected neoliberalism itself. Unlike the alternative terms listed above, which may be traced back to what I called the second “epistemological” moment of neoliberalism, the terms “psyche” and “psychic” point to the “totalizing project” of the third moment. In fact, the “epistemological” moment is still “logical”, or at least it can be “logically” approached, whereas the “totalitarian” moment is inherently “logically” (let alone morally) intractable. 54 " The association of “neoliberalism” with the morals and omnipotence of the “market”, as well as with ubiquitous “commodification” is commonplace. However, it has been noted that not even Adam Smith portrayed liberalism as an all-pervasive mode of thinking and clearly provided for several areas which had to remain alien to competition, see Debra Satz, Why Some Things Should Not Be for Sale: The Moral Limits of Markets (2010), 40–4. It has also been observed that “[t]he free market does not exist […], the free market is an illusion” and “[i]f some markets look free, it is only because we so totally accept the regulations that are propping them up that they become invisible”, assuming that “being critical of free-market ideology is not the same as being against capitalism” but only critical “of a particular version of capitalism that has dominated the world in the last three decades” and believing that “capitalism is still the best economic system that humanity has invented”, see Chang Ha-Joon, 23 Things They Don’t Tell You About Capitalism (2010), xv, 1–10 (emphasis in the original). Moreover, as Foucault, above n.45, pointed out, “[n]eoliberalism is not Adam Smith; neoliberalism is not market society” (at 131). 55 " The import of this creeping “commodification” of life as a whole has been largely debated over the last decades, especially since the 1970s, together with consumerism and, more recently, also in connection with the topic of justice. There is no need to extensively recall this debate here, see e.g. Jane M. Radin, Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things (1996); Satz, above n.54; Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets (2012). 56 " On the marketization and commodification of human rights see, for example, Baxi, above n.1, Chs 7–9. 57 " Colin Leys, Market-driven Politics: Neoliberal Democracy and the Public Interest (2001); Raymond Plant, The Neoliberal State (2009). 58 " Mariana Mazzuccato, The Entrepreneurial State: Debunking Public vs. Private Sector Myths (2013). 59 " For a recent passionate assertion that “the existing model of higher education has yet to adapt to the seismic shifts rattling the foundations of the global economy” (emphasis added), in particular to the new “knowledge economy” (or “digital economy” or “AI economy”), rather than the other way around, and to “help make learners robot-proof” and “creative” (evidently within the global economy as it stands), including in order to give “us the power to mitigate poverty, hunger, and disease”, see Joseph E. Aoun, Robot-proof: Higher Education in the Age of Artificial Intelligence (2017), xi, xv, 62. I will return to artificial intelligence and education below. 60 " Paul Sukys, Dehumanizing the Humanities: Neoliberalism and the Unethical Dimension of the Market Ethic, 1 Forum on Public Policy (2009) (forumonpublicpolicy.com) (accessed 20 July 2019); David R. Shumway, The University, Neoliberalism, and the Humanities: A History, 6 Humanities (2017), 83. 61 " See Clifford Bob, The Marketing of Rebellion: Insurgents, Media, and International Activism (2005), 14–53. These organizations are often said to operate according to the business model of multinational corporations, with the aim of “selling” human rights as a commercial “product” to human rights consumers, thus taking over a niche of the market of human rights supporters. 62 " Whatever its merits, the “peer-review” system presupposes, in order for its evaluations to be objective and credible, a level of standardization that hardly exists, at least in the field of law, while it strongly tends itself to create market-like standardization (the one it needs to work), i.e., it creates the standardization that it (mistakenly) presupposes, which is a further case of self-fulfilling prophecy. See Richard Smith, Peer Review: A Flawed Process at the Heart of Science and Journals, 99 Journal of the Royal Society of Medicine (2006), 178–82; Bohannon John, Who’s Afraid of Peer Review?, 342 Science (2013), 60–5. 63 " Hayek himself dealt with the typical (“now so familiar” in his words) propaganda of the “totalitarian state”, noting in this connection that “[a]lthough the beliefs must be chosen for the people and imposed upon them, they must become their beliefs, a generally accepted creed which makes the individuals as far as possible act spontaneously in the way the planner wants”. This system is “destructive of all morals” and “cannot confine itself to values” but extends to facts and “a whole host of beliefs about cause and effect”, inter alia by constructing theories that “use the old words but change their meaning”, such as liberty, justice, law, rights and equality. The word “truth” itself “ceases to have its old meaning” and becomes “something which has to be believed in the interest of the unity of the organized effort” (Hayek, above n.30, 171–80). 64 " Neoliberals’ key concerns for the masses and any form of mass politics is well known, see recently Whyte, above n.15, 87–93. 65 " Amnesty International, Access to Safe Abortion Services is a Human Right (www.amnesty.org/en/what-we-do/sexual-and-reproductive-rights/abortion-facts) (accessed 30 March 2020). The UN Human Rights Committee’s General Comment No. 36 on the Right to Life of 30 October 2018 states, at para.8, that “[a]lthough States parties may adopt measures designed to regulate voluntary terminations of pregnancy, such measures must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the Covenant”, so that “restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering […], discriminate against them or arbitrarily interfere with their privacy”, and “States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, and where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable” (www.ohchr.org/EN/HRBodies/CCPR/Pages/GC36-Article6Righttolife.aspx) (accessed 30 March 2020). 66 " For the United States’ position, see recently (c-fam.org/friday_fax/u-s-state-department-says-abortion-not-human-right and oneofus.eu/2018/05/trump-administration-declares-abortion-is-not-a-human-right) (accessed 20 July 2019). As to the Catholic Church’s position, see lately Angela Giuffrida, Pope Francis Compares Abortion to Hiring a Hitman, The Guardian, 10 October 2018 (www.theguardian.com/world/2018/oct/10/pope-francis-compares-abortion-hiring-hitman) (accessed 30 March 2020). 67 " See Nicola Perugini and Neve Gordon, The Human Right to Dominate (2015). 68 " See Margaret Thatcher, Speech to Conservative Party Conference, 10 October 1975 (www.margaretthatcher.org/document/102777) (accessed 30 March 2020) (contrary to “the Socialists”, “[w]e believe that everyone has the right to be unequal”). 69 " Ernst-Ulrich Petersmann, The WTO Constitution and Human Rights, 3 Journal of International Economic Law (2000), 19–25; Id., Time for a United Nations “Global Compact” for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration, 13 EJIL (2002), 621–50; Id., Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston, 13 EJIL (2002), 845–51; Id., Human Rights, International Economic Law and “Constitutional Justice”, 19 EJIL (2008), 769–98. 70 " Philip Alston, Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann, 13 EJIL (2002), 815–44; Robert Howse, Human Rights, International Economic Law and Constitutional Justice: A Reply, 19 EJIL (2008), 945–53. 71 " See www.npr.org/sections/13.7/2017/03/20/520803361/is-happiness-a-universal-human-right (accessed 30 March 2020). 72 " For the constructivist view that human rights are man-made, “this-worldly”, politically grounded, locally developed, freely embraced and indigenously valid against any “otherworldly”, “a-priori”, theological or metaphysical foundation in nature or God, see Benjamin Gregg, Human Rights as Social Constructions (2012). 73 " Focarelli, above n.11, 56–60. 74 " See e.g. Mirowski, above n.18, 133, noting that “the fundamental narcissism encouraged by neoliberalism demands that we participate in an active externalization of the experience of insecurity and vulnerability to revaluation”. 75 " On the ambiguity and “dialectic character” of human rights, see Baxi, above n.1, 10–12. However, the ambiguity of human rights does not necessarily justify their outright dismissal, as Posner suggests, above n.22, on which see the reply of Kenneth Roth, ibid. 76 " For the distinction between “modern” and “contemporary” human rights paradigms, see Baxi, above n.1, 42–6, and for that between “human rights” and “Human Rights”, see Hopgood, above n.1, viii–ix. 77 " See ECtHR, Evans v. United Kingdom, Judgment of 10 April 2007, App. no. 6339/05. For a legal summary of the case, see (hudoc.echr.coe.int/eng#{“itemid”:[“002-2761”]}) (accessed 30 March 2020). 78 " See, among many others, Baxi, above n.1, 12–14, arguing that “human rights [are] ethical values that ought to inform collective and individual action”, but “these values present a contested terrain”, “are what communities and individuals ought to desire as distinct from what they may actually desire” and “[t]he sources of this ‘oughtness’ vary incredibly”. 79 " See e.g. ECtHR, Vo v. France, Judgement of 8 July 2004, App. no. 53924/00. For a legal summary of the case, see hudoc.echr.coe.int/eng?i=002-4246 (accessed 30 March 2020). 80 " This appears, for example, as the underlying purpose of a recent Vatican-sponsored symposium on the theme “Fundamental Rights and the Conflicts between Rights”, held on 15-16 November 2018 at LUMSA, a Catholic University in Rome, on the occasion of the 70th anniversary of the UDHR. The symposium, backed by both Pope Francis and the retired Pope Benedict XVI, pointed out the risks posed by the present-day “multiplication of [“new”] rights […] not infrequently in contradiction with one another” (such as typically the right to life and the right to abortion), risks which “tend to involve, at bottom, the very idea of law and its foundations”, arguably with a view to discerning “true” and “false” rights depending on their theological orthodoxy. See Brockhaus, above n.21; Gagliarducci, above n.21. 81 " For the notion of “neoliberal human rights”, see Whyte, above n.15, 17–22. 82 " The term “person” comes from the Latin persona, meaning “mask” and, by implication, the “character” played by an actor on stage or, more broadly in colloquial English, “the particular type of character that a person seems to have and that is often different from their real or private character” (Cambridge English Dictionary) or “the aspect of someone’s character that is presented to or perceived by others” (Oxford English Dictionary). This meaning partly differs from the deeper meaning of human person, which rather points to what it means to be human, as is discussed above in the main text following. Carl Jung defined it as “a kind of mask, designed on the one hand to make a definite impression upon others, and, on the other, to conceal the true nature of the individual” (see Carl G. Jung, Two Essays on Analytical Psychology (1953), 190, original German title: Zwei Schriften über Analytische Psychologie), “a functional complex that comes into existence for reasons of adaptation or personal convenience” (see Gustav C. Jung, Psychologische Typen (1921), English translation: The Collected Works of Gustav C. Jung, vol. 6, Psychological Types (1971), Ch XI, para.48). In the Italian literature, Luigi Pirandello emphasized that all human beings wear a “mask” which hides their multiple identities (see Ali Jamali Nesari, Shadi Shahraz, Nabieh Filinezhad and Shamsaldin Jamali Nesarid, A Study of the Lack of Identity in Luigi Pirandello’s Six Characters in Search of an Author and Henry IV, 28 Procedia—Social and Behavioral Sciences (2011), 896–9). In the movie Persona (1966), one of the most enigmatic and enduring masterpieces of the world-renowned Swedish director Ingmar Bergman, the concept of persona is deeply represented at many different levels and in virtually all of its implications (see, for an in-depth analysis, Emanuel Levy, Persona: Ingmar Bergman’s 1966 Masterpiece is among the Films that Made Me Want to Become Critic, 28 May 2016 (emanuellevy.com/review/featured-review/persona-1966-ingmar-bergmans-masterpiece-starring-liv-ullmann-and-bibi-andersson) (accessed 30 March 2020). In marketing and advertising, a persona is defined as a group or segment of customers (see Bonnie Rind, The Power of the Persona (www.pragmaticmarketing.com/resources/articles/The-Power-of-the-Persona) (accessed 30 March 2020). Of particular interest here are the uses of the verbs “depersonalize” and “personalize”, the former being relevant in the context of criminals capable of committing crimes through a psychological depersonalization of the victim and the latter being relevant especially in the marketized form of “customization”, which is typical of the “massified individual” discussed in the main text as a further form of depersonalization. 83 " See e.g. Cheikh Mbacke Gueye (ed.), Ethical Personalism (2011). For the “Asian perception of personhood”, see Sienho Yee, “The Concept of Human Rights in Asia”, in id., Towards an International Law of Co-progressiveness (2004), claiming inter alia that “particularly in the areas where Confucianism has had influence, the individual has a certain ‘two-man-mindedness’ requiring that one give due consideration to others, the English language [having] no equivalent to the Chinese term” (at 296). 84 " The locus classicus is Severinus Boethius’ ontological definition of “persona” as naturae rationalis individua substantia (“an individual substance of a rational nature”), in Liber de persona et duabus naturis contra Eutychen et Nestorium, Chapter IV, which has massively inspired Christian Trinitarian theology. It is particularly important here to note that, based on anti-scientist underpinnings similar to Hayek’s (see n.34) and on Christian values, Wilhelm Röpke, one of the most eminent figures of “ordo-liberalism”, argued for “personalistic” liberalism. He stated that “the decisive influence of Christianity on the state and society of the Occident is due […] to […] the Christian doctrine itself, which, in contradistinction to the social philosophy of pagan antiquity, starts from man as an individual endowed with an immortal soul striving for its salvation”, that is, “[b]efore the state there is now the Person, whereas above the state there is God, His love and His justice common to all men”, in Röpke, above n.23, 102. Elsewhere, to the question “what is liberalism?”, Röpke answered that “it is ‘humanistic’, which means: It starts from the premise that the nature of man is capable of good and that it fulfils itself in ‘community’, that his destination stretches beyond his material existence, and that we are debtors in respect of every individual, as man in his unicity, that forbids us to lower him to simply a means. It is therefore […] personalistic”, in Wilhelm Röpke, Die Krise des Kollektivismus (1947) (my translation). 85 " On “dignity”, see Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EJIL (2008), 655–724. 86 " The 1977 Geneva Protocol (II) additional to the four 1949 Geneva Conventions on the victims of war contains in the preamble the following Martens Clause: “In cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience” (emphasis added). 87 " The Declaration, annexed to Resolution 41/128 of the UN General Assembly of 4 December 1986, defines the right to development as “an inalienable human right” by virtue of which “every human person and all peoples” are entitled to “participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”. 88 " ICJ, Barcelona Traction, Light and Power Co Ltd (Belgium v. Spain), Second Phase, Judgment, ICJ Reports 1970, 3, paras.33-34 (“obligations erga omnes […] derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”, emphasis added). 89 " ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 66, para.79 (“a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’” that “are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”, emphasis added). 90 " See Antônio Augusto Cançado Trindade, The Historical Recovery of the Human Person as Subject of the Law of Nations, 1 Cambridge JICL (2012), 8–59. 91 " For the interrelated notions of “human capital” and of homo oeconomicus as “an entrepreneur, an entrepreneur of himself […] being for himself his own capital”, a “machine” constantly absorbed in “investing” himself and “divided in relation to himself” according to a cost-analysis instrument of himself very easy to predict in his “rational” behavior and to manipulate (“eminently governable”), see Foucault, above n.45, 224–6, 270. Mirowski, above n.18, persuasively summarized what may be called the “neoliberal person” as follows: “not just an employee or student, but also simultaneously a product to be sold, a walking advertisement, a man of her résumé, a biographer of her rationales, and an entrepreneur of her possibilities”, having “to somehow manage to be simultaneously a product to be subject, object, and spectator […] all at once the business, the raw material, the product, the clientele, and the customer of her own life […] a jumble of assets to be invested […] but equally an offsetting inventory of liabilities to be pruned, outsourced, shorted, hedged against, and minimized […] both headline star and enraptured audience of her own performance”, the summum bonum of the neoliberal agency being “to present oneself as eminently flexible in any and all respects”, including “the so-called private sphere of everyday life” (emphasis in the original, at 108, 111), that is, in my terminology, empty self-identity that is “valuable” precisely because of its emptiness or absence of (i.e. alleged “freedom” from) any content. Thus, people are portrayed as being able freely to get what they want by the market and, at the same time, as “desperate to transform themselves into the type of person who wants what the market provides” (at 115). 92 " A number of interesting (non-binding) instruments on AI and its impact on both the economy and human rights have been recently released by international organizations, including the “Guidelines on Artificial Intelligence and Data Protection” adopted on 25 January 2019 by the Consultative Committee of the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (so-called “Convention 108”) (rm.coe.int/guidelines-on-artificial-intelligence-and-data-protection/168091f9d8) (accessed 30 March 2020); the Resolution on a “Comprehensive European Industrial Policy on Artificial Intelligence and Robotic”, adopted by the European Parliament on 12 February 2019 (www.europarl.europa.eu/doceo/document/TA-8-2019-0081_EN.html?redirect) (accessed 30 March 2020); the Recommendation on Artificial Intelligence, adopted on 22 May 2019 by the OECD Council (legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0449) (accessed 30 March 2020). On AI in general see e.g. Matt Carter, An Introduction to the Philosophy of Artificial Intelligence (2007); Keith Frankish and William M. Ramsey (eds.), The Cambridge Handbook of Artificial Intelligence (2014); Stuart Russell and Peter Norvig, Artificial Intelligence: A Modern Approach (2016, 3rd edn.). 93 " For a recent experiment on “quantifying societal expectations about the ethical principles that should guide machine behaviour” in making “moral decisions”, see Edmond Awad, Sohan Dsouza, Richiard Kim, Joseph Schulzm Azim Shariff, Jean-François Bonnefon and Iyad Rahwan, The Moral Machine Experiment, 563 Nature (2018), 59–64, surveying “40 million decisions from millions of people in 233 countries and territories” concerning “moral dilemmas faced by autonomous vehicles”. Similar studies may be understood as (involuntary) self-fulling prophecies: a mass of people inform the scientists on how they expect machines to make moral decisions, then such expectations are authoritatively published and become “scientific”, hence: (a) people will end expecting what science dictates, and (b) machines will be designed accordingly. The process of analysis is scientific, but the source and the effects of the data are not, when considering that data are collected from masses of people (ultimately) to shape masses of people. It seems, thus, that what is actually at stake is what must count as ethics for humans as an aggregate, rather than for machines and the machine discourse is a sham. 94 " John Danaher and Nail McArthur, Robot Sex: Social and Ethical Implications (2018). 95 " See www.unglobalcompact.org (accessed 30 March 2020). 96 " See www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf (accessed 30 March 2020). It is worth noting that all “duties” of business enterprises indicated in the Guiding Principles, unlike those of states, are worded in terms of “should” rather than “must”. 97 " See www.refworld.org/docid/5beaecba4.html. Interestingly, the Comment starts noting that “[b]usinesses play an important role in the realization of economic, social and cultural rights, inter alia by contributing to the creation of employment opportunities and—through private investment—to development”, while exposing “situations in which, as a result of States’ failure to ensure compliance, under their jurisdiction, with internationally recognized human rights norms and standards, corporate activities have negatively affected economic, social and cultural rights” (para.1). 98 " For a comment, see Diane Desierto, The ICESCR as a Legal Constraint on State Regulation of Business, Trade, and Investment: Notes from CESCR General Comment No 24 (August 2017), EJIL Talk!, 13 September 2017. 99 " IBRD, Ending Extreme Poverty and Sharing Prosperity: Progress and Policies, October 2015 (openknowledge.worldbank.org/handle/10986/23604) (accessed 30 March 2020), at 23. See, critically, Jason Hickel, The Contradiction of the Sustainable Development Goals: Growth versus Ecology on a Finite Planet, 27 Sustainable Development (2019), 873–84. 100 " UN HRC, above n.2, paras.4 and 8(e). For similar observations by Alston, see also UNGA, Third Committee, above n.20, noting that “[t]he world has been fundamentally reordered by widespread neoliberal economics that has privatized basic public goods—social protections, education, pensions and criminal justice among them—with often disastrous impacts on the human rights of the extremely poor […] privatization is premised on assumptions fundamentally different from those that underpin human rights—profit is the overriding objective”; UN HRC, Report of the Special Rapporteur on Extreme Poverty and Human Rights, 26 September 2018, UN Doc. A/73/396 (undocs.org/A/73/396) (accessed 30 March 2020), stating that “privatization often involves the systematic elimination of human rights protections and further marginalization of the interests of low-income earners and those living in poverty. Existing human rights accountability mechanisms are clearly inadequate for dealing with the challenges presented by large-scale and widespread privatization. Human rights proponents need to fundamentally reconsider their approach”. 101 " UN HRC, Report of the Special Rapporteur on Extreme Poverty and Human Rights, 8 May 2018, UN Doc. A/HRC/38/33 (digitallibrary.un.org/record/1629536/files/A_HRC_38_33_Add-1-EN.pdf) (accessed 30 March 2020), paras.6–8. For the IMF debate see since 2016 Jonathan D. Ostry, Prakash Loungani, and Davide Furceri, Neoliberalism: Oversold? 53 Finance & Development (June 2016), 38–41 (www.imf.org/external/pubs/ft/fandd/2016/06/pdf/ostry.pdf) (accessed 30 March 2020); Rick Rowden, The IMF Confronts its N-word, Foreign Policy, 6 July 2016 (foreignpolicy.com/2016/07/06/the-imf-confronts-its-n-word-neoliberalism (accessed 30 March 2020); Sarah Babb and Alexander Kentikelenis, International Financial Institutions as Agents of Neoliberalism, in: Damien Cahill, Melinda Cooper, Martijn Konings and David Primrose (eds.), The SAGE Handbook of Neoliberalism (2018), 16–27; Kevin Farnsworth and Zoë Irving, Austerity: Neoliberal Dreams Come True? 38 Critical Social Policy (2018), 461–81 (doi.org/10.1177/0261018318762451) (accessed 30 March 2020). 102 " UN HRC, Report of the Independent Expert on Foreign Debt and Human Rights, 16 July 2019 (www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24967&LangID=E) (accessed 30 March 2020). 103 " Sebastian Buckup, The End of Neoliberalism?, 17 July 2017 (www.weforum.org/agenda/2017/07/this-is-what-the-future-of-economic-liberalism-looks-like-its-time-to-rethink-it) (accessed 30 March 2020). 104 " Winnie Byanyima, Globalization 4.0 can be a Brilliant Future: If we Break from the Injustice of the Past, 21 December 2018 (www.weforum.org/agenda/2018/12/globalization-4-0-for-whom) (accessed 30 March 2020). 105 " Joseph Stiglitz, If the Neoliberal Agenda Has Failed, What Should Come After It?, 3 June 2019 (www.weforum.org/agenda/2019/06/after-neoliberalism-joseph-stiglitz/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+inside-the-world-economic-forum+%28Inside+The+World+Economic+Forum%29) (accessed 30 March 2020). 106 " Mirowski, above n.18, 28, whereby “[n]eoliberalism is alive and well” at the time of writing. 107 " See, for example, James Crawford, International Law as Discipline and Profession (2012), ASIL Proceedings, 471–86. 108 " When considered from the perspective of the above analysis, the recent conclusion of Whyte, above n.15, at 242 that “[o]nly a political struggle against […] institutions, governments and corporations that have promoted and benefited from the inequality and ‘economic powerlessness’ of the neoliberal age can open a horizon of freedom for all”, assuming that “[a] break with neoliberalism requires a break with the morals of the market”, sounds rather optimistic, downplaying the likeliness that the invoked “political struggle” is absorbed by new subliminal forms of substantially neoliberalist anti-neoliberalism and human-rightism. 109 " This argument has been recently made, for example, by the ECtHR’s Judge Dedov in his dissenting opinion in the Naït-Liman case (see ECtHR, Naït-Liman v. Switzerland Judgment of 15 March 2018 [GC], App. 51357/07, paras.183–4, 187–8, 201–2, 218) by resorting to a natural law approach. 110 " On empathy, morality and neuroscience research in this field see Simon Baron-Cohen, The Science of Evil: On Empathy and the Origins of Cruelty (2001), arguing that “empathy erosion [this terms is deliberately designed to replace “the unscientific term ‘evil’”] is necessary but not sufficient for cruelty to take place”; Martin L. Hoffman, Empathy and Moral Development: Implications for Caring and Justice (2002, 2nd edn.); Michael Slote, The Ethics of Care and Empathy (2007); Giacomo Rizzolatti and Corrado Sinigaglia, Mirrors in the Brain: How Our Minds Share Actions, Emotions, and Experience (2008); Frans De Waal, The Age of Empathy: Nature’s Lessons for a Kinder Society (2009); Jeremy Rifkin, The Empathic Civilization: The Race to Global Consciousness in a World in Crisis (2010); Amy Coplan and Peter Goldie (eds.), Empathy: Philosophical and Psychological Perspectives (2011); Patricia S. Churchland, Braintrust: What Neuroscience Tells Us About Morality (2012); John C. Gibbs, Moral Development and Reality: Beyond the Theories of Kohlberg, Hoffman, and Haidt (2013). 111 " See recently Fritz Breithaupt, The Dark Sides of Empathy (2019). 112 " Daniel N. Stern, The Interpersonal World of the Infant (1985). 113 " Max Scheler, Wesen und Formen der Sympathie: Die Deutsche Philosophie der Gegenwart [1923] (1973), English trans. The Nature of Sympathy (2008). 114 " Josef Parnas, Pierre Bovet, and Dan Zahavi, Schizophrenic Autism: Clinical Phenomenology and Pathogenetic Implications, 1 World Psychiatry (2002), 131–6; Pierre Bovet and Josef Parnas, Schizophrenic Delusions: A Phenomenological Approach, 19 Schizophrenia Bulletin (1993), 579, 583. 115 " See e.g. Martha C. Nussbaum, Not for Profit: Why Democracy Needs The Humanities (2010); Lawrence Busch, Knowledge for Sale: The Neoliberal Takeover of Higher Education (2017); Carlo Focarelli, International Law (2019) 226–8; Id., Teaching International Law Today and the Human Person’, in: Peter Hilpold (ed.), Teaching International Law, forthcoming. 116 " Drew G. Faust, The University’s Crisis of Purpose, The New York Times, 1 September 2009, noting that “human beings need meaning, understanding, and perspective as well as jobs”. 117 " See e.g. Stefan Collini, What Are Universities For? (2012); Gary Hall, The Uberfication of the University (2016); Frank Furedi, What’s Happened to the University? A Sociological Exploration of Its Infantilisation (2017); Stefan Collini, Speaking of Universities (2017); Busch, above n.115. With specific regard to the United Kingdom see Andrew McGettigan, The Great University Gamble: Money, Markets and the Future of Higher Education (2013). 118 " Nussbaum, above n.115, 13–26. 119 " Ibid., 137. See recently Aoun, above n.59, for an updated, perfect illustration—by the incumbent President of an American university—of the university institution as a supermarket, selling knowledge, as well as “critical thinking”, “creativity” and even empathy (“a commodity much in need in our increasingly global and technologically complex era”, emphasis added) while chasing global economic changes rather than changing or contributing to develop a sounder global economy. This approach substantially advertises the idea that, in such a model (termed “humanics”), adopted at this university, students will win the competition with robot workers by learning “robot-proof” (genuinely “uniquely human”) skills, so as to “stay relevant in the AI economy”. Unsurprisingly, the conclusions of such analysis are that “the dichotomy between learning to live and learning to earn a living” is a “false choice”, and it is time “to move beyond the canard that students must choose between an economically rewarding career and a fulfilling, elevated inner life” (ibid., 147–9, emphasis added). In short: “there is no alternative” (TINA). Of course, there is nothing intrinsically bad in wishing that schools train future workers in relevant skills, this falling under schools’ functions, nor in using AI devices in education. However, the apparently “human-inspired” model above, excellent for marketing purposes to attract prospective students/clients terrorized by the prospects that robots will replace people in the workforce, is designed to form merely “skilled”, “happy”, obedient workers and docile bureaucrats, who are allegedly made able to win the competition with robots in the workplace thanks to their (economically-driven) “creativity”, and to reinforce (without questioning at all) the prevailing marketized vision of the human being (i.e., students and future workers and citizens) and the larger conditions in which human beings have to live. This is precisely the way a supermarket typically operates, while “higher” education is expected to reason and organize itself differently, if only because there is no “higher” institution designed to do so: to have a look from the outside and to be able to propose a (real) way out which is “novel”. 120 " Luke Harding and Richard Adams, Paradise Papers: Oxford and Cambridge Invested Tens of Millions Off-shore, The Guardian, 8 November 2017 (www.theguardian.com/news/2017/nov/08/paradise-papers-oxford-cambridge-invest-millions-offshore-funds-oxbridge) (accessed 30 March 2020), reporting that “Funds invested in by the universities include a joint venture to develop oil exploration and deep-sea drilling”; Ed Pilkingdon, Top US Universities Use Off-shore Funds to Grow their Huge Endowments, The Guardian, 8 November 2017 (www.theguardian.com/news/2017/nov/08/us-universities-offshore-funds-endowments-fossil-fuels-paradise-papers) (accessed 30 March 2020), reporting that “Paradise Papers show 12 major universities and colleges invest in Cayman Islands hedge fund pumping cash into fossil fuels”. 121 " See, for example, the “Health Humanities” research project at the University of Nottingham (“The arts and humanities do more than hold a mirror up to human nature or give people a voice: they can change the world”) (www.nottingham.ac.uk/research/research-areas/health-humanities/index.aspx) (accessed 30 March 2020). 122 " For a more balanced and still illuminating humanistic vision of education, see Harvard Committee, General Education in a Free Society [1945] (Cambridge, MA: Harvard University Press, 1945) (regarding “the cultivation of the mind as the chief function of the school” while viewing “reason as a means to the mastery of life” and defining “wisdom as the art of living”, as well as pointing to “[r]easonableness [which] does not lead to exciting conclusions because it aims to do justice to the whole truth in all its shadings”, at 176). © The Author(s) 2020. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - International Human Rights “in Crisis” and the Neoliberalization of the Human Person
JF - Chinese Journal of International Law
DO - 10.1093/chinesejil/jmaa011
DA - 2020-03-01
UR - https://www.deepdyve.com/lp/oxford-university-press/international-human-rights-in-crisis-and-the-neoliberalization-of-the-VYw1eeqZz2
SP - 53
VL - 19
IS - 1
DP - DeepDyve
ER -