Have you noticed the weird titles of some recent books and articles about human rights?
In 1999 Michael Ignatieff, formerly Director of the Carr Center for Human Rights Policy at Harvard University, published an article in The New York Review of Books under the title, `Human Rights: the midlife crisis’. If human rights were experiencing a mid-life crisis in 1999, they must, presumably, be approaching their death by now – but they aren’t.
In 2010 Samuel Moyn, Professor of Law and History at Harvard University, published a book entitled The Last Utopia: human rights in history. He didn’t, however, say why he thought human rights was a `utopia’, let alone the last one: the book contains no analysis of utopias.
In 2013 Stephen Hopgood, Professor of International Relations at the School of Oriental and African Studies (SOAS), University of London, published a book announcing The Endtimes of Human Rights. `Endtimes’ is a religious concept (not used by Hopgood in his book) denoting a future time in which the world will be set to right, a time that may be preceded by a time of tribulation. It doesn’t seem to have much to do with the present state of human rights.
In 2014 Eric Posner, a professor of law at the University of Chicago, published a book whose title proclaimed The Twilight of Human Rights Law. Was Professor Posner foretelling that human rights law would soon experience a new dawn? Probably not.
The Essex University Human Rights Centre is, understandably, much more upbeat. Its website says that it offers `a collaborative and transformational education in the theory and practice of human rights, informed by our unique interdisciplinary perspective’. It is worth noting that the four distinguished, `human-rights-in-crisis’ scholars also represent a set of interdisciplinary perspectives: Ignatieff in Government; Moyn in History; Hopgood International Relations; Posner a Professor of Law. Interdisciplinary approaches to human rights do not necessarily leave human rights in good shape.
The weirdness of some recent accounts of human rights should not conceal the fact that human rights are not in very good shape: the civil war in Syria, the intractability of China, authoritarianism in Russia and elsewhere in Europe (e.g., Hungary) – and Donald Trump (see The Columbia Human Rights Law Review, Trump Human Rights Tracker) – among many other examples. However, surely it was ever thus. Are human rights in worse shape now than they were in the past? The truth is that we really don’t know, and the `crisis’ reports don’t tell us.
Is human rights law sufficient? No. Why? Here are some reasons.
Firstly, human rights lawyers are insufficiently attentive to the empirical implications of their work. In particular, they are incurious as to how far, if at all, human rights law actually improves the enjoyment of human rights. Social scientists have now contributed some systematic evidence on the effectiveness of human rights law, which tends to show that it has some, but quite limited, beneficial effects (Hathaway 2002; Landman 2005; Hafner-Burton 2008; Simmons 2009).
Secondly, human rights lawyers avoid difficult theoretical questions. For example, they often assume that democracy and human rights are mutually compatible. They may acknowledge that actually existing democracies sometimes violate human rights, but they rarely confront the possibility that international human rights and constitutional democracy may be in principle incompatible as they posit two different, and potentially conflicting ultimate sources of authority (Buchanan 2014, chapter 6).
Thirdly, although human rights lawyers can be introverted – looking in to the law and not out to society – they can be uncritically so. An anthropological approach to the making, transmission and implementation of human rights law can bring a welcome realism to its abstractions: putting the `human’ into human rights. To what extent is the human rights movement `ritualistic’ and to what extent effective? What is `cultural relativism’ like on the ground? (Merry 2006; Charlesworth and Larking 2014).
Fourthly, human rights law and economics too often ignore each other. For example, Bjørnskov and Mchangama found, in an empirical study, that incorporating economic and social rights into law had inflationary effects with the result that, while some benefitted and others lost, the net outcome might be negative (Bjørnskov and Mchangama 2013). Dowell-Jones and Kinley complain that the human rights movement has offered little analysis of the impact of financial crises on the enjoyment of human rights and that there has been no `rights-based approach’ to sovereign bond markets, capital adequacy, liquidity, leverage levels, algorithmic trading, risk management, derivatives, financial modelling, procyclicality, ratings, or bank supervision, all of which may greatly affect the enjoyment of human rights (Dowell-Jones and Kinley 2011).
In my book, Human Rights: An Interdisciplinary Approach, I analyse the complex relations between human rights law and the social sciences by presenting perspectives from the history and philosophy of human rights. In this way, I seek to give a coherent account of human rights as historical development, as philosophical commitment, and as social practice. Polity Press have just published a third, updated edition of the book, taking in, among other things, the Obama presidency, the Syrian Civil War, the challenge of ISIS, the refugee crisis, and the Paris Climate Conference of 2015.
Michael Freeman is an emeritus professor in the Department of Government and a former Deputy Director of the Essex University Human Rights Centre. He is currently writing a book on climate change and human rights.
Disclaimer: The views expressed herein are the author(s) alone.