Is there an empirical literature on rights?

Date02 September 2009
Pages69-91
Published date02 September 2009
DOIhttps://doi.org/10.1108/S1059-4337(2009)0000048006
AuthorThomas 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

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