32 Pages Posted: 17 Jul 2017 Last revised: 13 Jul 2018
Date Written: July 10, 2017
In many respects, there has never been a better time for fundamental rights. The best data available suggests that violence around the world is at an all-time low and trending downward. Moreover, the rhetoric of rights — so-called rights talk — has never been more prevalent. It is against this backdrop that social scientists and lawyers have asked whether rights matter. There is mounting evidence that the legal instruments that guarantee these rights — both national constitutions and international agreements — have little measurable impact on state behavior. So we are left with a puzzle: we are told that the norms underlying the most basic rights are thriving, and yet the rights themselves have failed. How can this be?
This Essay provides an answer. For the last decade, legal scholars have attempted to answer the question, “Do rights matter?,” by counting up the commitments that states make to basic rights — in domestic constitutions and international treaties — and then asking whether states live up to their commitments. I call this quantitative rights scholarship. This scholarship is part of a larger empirical turn in legal scholarship. But quantitative tools, for all their merit, are particularly unsuited to the task of assessing whether rights “matter” in any meaningful sense of the term. Quantitative rights scholarship, in other words, asks the wrong questions and seeks answers in the wrong places. This Essay critiques this scholarship, and suggests several alternative lines of inquiry.
Suggested Citation: Suggested Citation