Is there an empirical literature on rights?

• Date: 02 September 2009
• Pages: 69-91
• Published date: 02 September 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000048006
• Author: Thomas F. Burke,Jeb Barnes

IS THERE AN EMPIRICAL

LITERATURE ON RIGHTS?

Thomas F. Burke and Jeb Barnes

ABSTRACT

The empirical literature that attempts to study rights is at an impasse.

It can demonstrate that big claims about how some rights structure

politics are overblown, but it has struggled to go beyond this step. This is

in large part because studying rights is much more difficult than is

commonly appreciated. A study of rights promises implicitly to be a study

of how rights politics differs from other kinds of politics. But rights are so

ubiquitous and so diverse in form that it is often unclear what the excluded

other is. We examine three books on rights that we admire: two by

political scientists, Gerald Rosenberg’s The Hollow Hope and Michael

McCann’s Rights at Work, and one by an anthropologist, Sally Merry’s

Human Rights and Gender Violence. These books conceptualize rights

in diverse ways, in diverse settings, using diverse methodologies; yet they

run up against similar difficulties in trying to think beyond the cases they

study. At the conclusion, we make some humble suggestions for how

researchers might try to overcome these problems.

Revisiting Rights

Studies in Law, Politics, and Society, Volume 48, 69–91

Copyright r2009 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048006

69

INTRODUCTION

Rights are a central subject of sociolegal studies. Many books and articles

use ‘‘rights’’ in their titles and thus seem to promise an understanding of this

topic. We are avid readers of these books and articles, and we often find

them provocative and useful in our own thinking about law and politics.

Nevertheless, we are not at all sure that there is an empirical literature on

rights.

This is because studying rights and their effects turns out to be much more

difficult than is often appreciated. Like all concepts, a ‘‘right’’ is defined in

large part by what it excludes. A study of rights politics promises implicitly

to be a study of how rights politics differs from other kinds of politics. But

rights are so ubiquitous, and so diverse in form, that it is often unclear what

the excluded other is. The opposition between rights and non-rights is often

left shadowy and unexplored. Rights studies are haunted by this other.

As a result, the empirical literature that attempts to study rights is at an

impasse. It can demonstrate that big claims about how some rights structure

politics – that they unilaterally deliver social goods or demobilize citizens –

are overblown. But it has struggled to go beyond this step, to say anything

more general about rights. In fact, we detect great ambivalence among

sociolegal scholars in even attempting to cumulate knowledge about rights,

developing general frameworks about rights consciousness and rights

mobilization. Yet, without this, it is not at all clear what service empirical

researchers can provide, other than to remind us (against some overstated

theories) that rights politics is more complex, varied and fluid than is

sometimes supposed. As currently composed, the sociolegal literature can

give us wonderful portraits of particular instances of rights at work (or

not at work), but little to link these studies other than the word ‘‘rights.’’

They are merely studies of politics.

The struggles of rights researchers in part reflect developments in

sociolegal studies that have radically decentered and so complicated our

understanding of law. If law is conceived as a force that arises out of

formal institutions – courts, agencies and legislatures – then the effects of

law can be studied straightforwardly as top-down (or ‘‘center-out’’)

implementation. One measures the effect of law by comparing legal

commands, ‘‘law on the books’’ with the implementation process, ‘‘law on

the streets,’’ and the behavior that results. But as sociolegal researchers have

long understood, people interpret legal commands in strikingly varied ways,

and their interpretations have social effects that are just as significant as

those of judges and legislators. Once this is recognized, and the formal

THOMAS F. BURKE AND JEB BARNES70