HILJ Symposium: Getting to the Right Answers about Rights

by Tom Ginsburg

Tom Ginsburg is Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science at the University of Chicago. Zachary Elkins is Associate Professor in the Department of Government at the University of Texas at Austin.

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

In recent years there has been an active debate in the social sciences about the distinct “cultures” of qualitative and quantitative inquiry. Gary Goertz and James Mahoney, A Tale of Two Cultures: Qualitative and Quantitative Inquiry in the Social Sciences (2012). We ourselves have been skeptical of the extent of this purported divide, as our prior collective and individual work has sought to integrate the strengths of the two approaches. Professor Christopher Roberts’ thoughtful comments on our article demonstrate, in our view, the basic complementarity of the methodologies.

Our article demonstrates a set of statistical relationships that are consistent with the interpretation that we give them: that constitutional and international rights are reciprocally produced, and that an important channel of impact for international human rights has been their adoption by national constitution-makers. Roberts draws on the historical literature to both supplement and challenge elements of this story, and to make the important point that it is, as always, a bit more complicated.

Historical inquiry is necessary to understand the context of particular social phenomena, and we are grateful to Roberts for reminding us about the various earlier efforts by H.G. Wells and several other prominent thinkers to articulate a set of rights. The broader culture, it seems, was already demanding of a set of rights well before governments and the new United Nations began the postwar project of formalizing the Universal Declaration. Our method focuses on formal government actions but no doubt the broader story of the spread and impact of international human rights requires attention to pressures from social movements, civil society, and public intellectuals, without which governments would have little motive to constrain themselves. Qualitative work is especially helpful for identifying the mechanisms at work, and for tracing the pre-history of the high profile actions of government officials.

The timing of the adoption of the international menu by national governments coincides with the adoption and ratification of the International Covenants in the late 1960s. We argue that this had some independent causal effect on the choices made by national constitution-writers, but no doubt both sets of governmental decisions were driven by broader factors pushing in this direction. In fact, parts of our analysis of the influence of the ICCPR suggest that its influence did in fact predate 1966 (see, e.g., our Figure 3). We therefore very much agree with Roberts, that our identification of 1966 in formal tests of its influence may very well underestimate the effect.

The timing of the emergence of international human rights movement is a subject of intense controversy even among professional historians. The traditional view is that the movement emerged during World War II and spread rapidly thereafter. Louis Henkin, The Age of Rights 16 (1990) (human rights movement “born during Second World War”). Recently, the revisionist historian Samuel Moyn has argued that the movement really emerged several decades later. Samuel Moyn, The Last Utopia: Human Rights in History 6 (2010) (arguing that 1970s were the key period). We ourselves have no particular expertise in this area, but our emphasis on reciprocal interaction between the national and international levels of law-making provides evidence that might be deployed in sorting out these claims.

Roberts helpfully suggests new lines of inquiry in which quantitative analysis can help to play a role. One might, he notes, apply our survey methodology to the various proposals articulated in the 1930s and 1940s. This method would help us to sort out who was responsible for first articulating various ideas, and might help us to better understand the sources of innovation in public law.
In describing these alternative proposals, Roberts very thoughtfully proposes a clever test to rule out the idea of common responses to common stimuli, which he rightly argues is a plausible alternative explanation to our story of interdependence. If the content of these alternative declarations in shown to have shaped constitutional development in the same way that the UDHR did, then it behooves us to rethink our conclusions. We take this suggestion gratefully and look forward to exploring the idea in future research.

As our response suggests, we firmly believe that the “two cultures” of scientific inquiry are in fact one. We look forward to continued engagement with historians such as Roberts to try to make analytic progress on the origins, spread and efficacy of human rights. Getting to the right answers requires nothing less.

http://opiniojuris.org/2013/03/06/hilj-symposium-getting-to-the-right-answers-about-rights/

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