Beyond the Human Rights Measurement Controversy

Abstract

The human rights measurement controversy of the past decade has reached its limits. One side contends that human rights law is little above contempt-it makes no difference, or next to it. The other side insists that human rights law deserves promotion or even celebration, even if it merely tweaks the world a tiny bit for the better. There is consensus on the facts, though intrepid researchers continue to accumulate new ones. But this very agreement makes it obvious that the essential difference between the two sides is that, in the face of the selfsame facts, one adopts an attitude of bitter cynicism and the other a stance of modest enthusiasm. Beyond the human rights measurement controversy lies the need for a philosophy of history, which neither side provides.

The controversy-which at first seems like a momentous choice-turns out to mainly require changing the subject. Granted, the contest of the past ten years is not necessarily uninteresting. It was diverting to watch its parties arm for contest. In fact, the controversy turns out to be highly revealing, though not in the way that the parties to the dispute intend or that their audience always recognizes. In the end, the situation is familiar. The most important thing to know about the human rights measurement controversy is that both sides have put similar or even identical intellectual and political options on the table. And neither can justify why they are happy or sad in response to their findings.

Nor can either the bitter cynics or modest enthusiasts justify why it is not worth holding out for something better, as their intense firepower is deployed on the picayune topic of whether human rights law makes a difference of some kind or other, no matter how small. When one hears of a dispute, in most circumstances, it is correct to gratify the temptation to pick sides. But if it turns out that the competitors share a lot more than people realize, and the real problem is how their common assumptions rule out other and better alternatives, then that temptation is a mistake. I will argue the human rights measurement controversy is not the general case but the special case -and therefore ought to end. And if so, in the face of those who want to divide the landscape between tearing down human rights law for making no difference or building it up for only making a little difference, it seems self-evident that we should look for something that makes a big difference. Whether it is another form of human rights thinking, politics, and law, or some radically distinctive approach, is the really important question.