541099

research-article2014

CUS0010.1177/1749975514541099Cultural SociologyElliott

Article

The Institutionalization of Human Rights and its Discontents: A World Cultural Perspective

Cultural Sociology 2014, Vol. 8(4) 407­–425 © The Author(s) 2014 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1749975514541099 cus.sagepub.com

Michael A. Elliott Towson University, USA

Abstract A recurring theme in the sociology of human rights is the vast decoupling that exists between the formal codification of these rights in principle and their implementation in practice, fueling much debate about the effectiveness of international law. Yet, despite this disjuncture, a deeper question remains: given all the barriers that have impeded the realization of human rights, why have they become so widely institutionalized? Revisiting previous work in this journal, I argue that one important component of the expansion of human rights is the rise of the universal, egalitarian individual as the primary entity of social organization in world society. Additionally, I explore how the nature of human rights law itself promotes widespread decoupling that, in turn, fuels ongoing efforts to close the gap between principle and practice. Indeed, while human rights law envisions an ideal world that is practically unrealizable, it inspires a never-ending, global crusade to bring about that vision.

Keywords decoupling, Durkheim, human rights, law, legal, individualism, institutionalization, sociology world culture, world society

Why Human Rights? Suppose that human rights did not constitute globally institutionalized doctrines. Suppose that there were no Universal Declaration of Human Rights, no Declaration on the Rights of the Child, no International Convention on the Elimination of All Forms of Racial Discrimination. Suppose that human rights NGOs did not exist – no Human Rights Watch, no Amnesty International, no Red Cross or Red Crescent societies. Suppose that Corresponding author: Michael A. Elliott, Department of Sociology, Towson University, 8000 York Road, Towson, MD 21252, USA. Email: [email protected]

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states, intergovernmental organizations, and universities had not created agencies and institutes to defend or promote human rights. Suppose that human rights doctrines, which promote the fundamental dignity and equality of every individual on the planet, had yet to be invented. What social forces and conditions could produce them? Throughout much of human history, the conditions seemed less than favorable: corporate bodies were far more common and meaningful units of social organization and identity, not individuals. What is more, the distinct tribal, ethnic, and religious affiliations defining corporate groups were used as a basis to construct fundamental differences and rigid inequalities between people, and not something to be celebrated as unique and valuable aspects of individual diversity. Human rights ideology is, after all, historically peculiar in its insistence on the universal value, integrity, and inviolability of every human being, in its championing of the absolute and irrevocable rights of every person to protection, empowerment, and participation in all spheres of modern life. How could such unfamiliar ideas – so counter to historically dominant ideologies that justified slavery, caste, or colonialism – become so sweeping and elaborate in countless global, national, and local organizations, so central to so many social movements, so deeply institutionalized at so many levels? To committed activists, lawyers, state officials, or scholars, such questions may seem irrelevant – the existence and necessity of human rights are indisputable. Indeed, as the ideology itself proclaims, human rights are self-evident. They inhere in the human condition. They are naturally progressive and imperative elements of human society. They are a crowning achievement of civilization, the basis for social progress and the fashioning of a dignified life for all. Human rights are the prism through which countless global problems – poverty, patriarchy, racism, political repression, environmental degradation, and on and on – are to be refracted. Human rights are their own inevitable justification. That human rights are widely seen as natural, self-evident, and essential is a tribute to their legitimacy and cultural power. As a result, scholars are less likely to question the striking triumph and proliferation of this ideology itself. Instead, we tend to focus on ‘how well’ or ‘to what degree’ human rights principles are implemented and who complies with them. Indeed, the literature is replete with accounts of the various violators, victims, and activists in this arena (see Goodhart, 2012, for an overview). Debates continue to be waged, for example, about whether or not international human rights treaties adequately temper government repression (Clark, 2010; Cole, 2012a, 2012b; Simmons, 2009) or improve the plight of the vulnerable, such as women and children (Boyle, 2002; Boyle and Kim, 2009), or how minority groups and human rights NGOs can have a tangible effect on reforms (Bell et al., 2012; Davis et al., 2012; Murdie and Bhasin, 2011; Tsuitsui et al., 2012). These are important studies that often highlight (implicitly or explicitly) the extensive decoupling between ideal notions of human rights in principle and the stark reality of human rights in practice. Indeed, for every detailed account of potential progress and success, there are inevitable caveats about persistent inequalities and restraints that remain.1 Given this glaring disparity between principle and practice, and all the powerful forces that have impeded universal equality, empowerment, and participation, a deeper question remains relatively unexplored: why did this particular ideology rise to such global prominence in the first place and why does it continue to undergo widespread

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institutional expansion? Building on previous work in this journal (Elliott, 2007) and recent world-society scholarship (Beck et al., 2009; Frank et al., 2010; Koo and Ramirez, 2009; Meyer et al., 2010), I address the widespread institutionalization of human rights head-on, using original data on a key institutional form – the international legal instrument – to reveal the pace, extent, and depth of this globalizing process since the mid-19th century.2 I also employ aspects of the data to show how the nature of human rights law itself promotes inevitable decoupling and, in turn, further institutional expansion. In brief, I contend that human rights are driven by key elements of world culture that construct the universal, egalitarian individual as increasingly sacred, bounded, and valuable (cf. Casanova, 1999; Joas, 2008; Spickard, 2002). The ontological and moral centrality of the individual in world culture impels actors at all levels to insist on protection of the vulnerable, empowerment of the weak, and inclusion of the marginalized. To an ever-greater extent, the universal, egalitarian individual transcends all else, having become the high god of modernity (Durkheim, 1973 [1898]; Goffman, 1956) and the principal means and end of progressive social development. The individual is thus the central locus of rights, and the panoply of rights becomes ever more elaborated as the cultural model of the individual itself undergoes rational elaboration. All of the rights that emerge, and the inevitable decoupling that results, become compelling sources of social organization and action – to be guaranteed by states, advocated by social movements, respected by enterprises, and so on. The codification of human rights instruments, in particular, has become a prominent, rational-legal means of protecting and empowering the individual in myriad domains of social life. As I demonstrate below, the number and variety of these instruments, as well as the concrete rights and entitlements that they specify, have expanded dramatically over time, particularly since the Second World War. At the same time, decoupling at the national level is endemic because the formal rules and expectations that guide state behavior are highly universal and abstract; they evoke ideals of rational progress, justice, and equality that apply to all states equally, regardless of economic, political, or cultural differences. Yet, these very differences ensure that decoupling is bound to occur (Meyer et al., 1997; Meyer, 2010; Ramirez, 2012). What is more, the rules and expectations involved are often highly idealistic, particularly in the arena of human rights where formal treaty commitments tend to exceed realistic capacities for implementing them. The Universal Declaration of Human Rights (1948), for example, is virtually impossible to actualize in toto – it is an ideal to strive for, much like the Ten Commandments, but never fully realized by members of the international community. Therefore, widespread decoupling creates an unbearable tension that drives a seemingly unending global crusade to bring practice closer and closer in-line with principle via more legal instruments, more precise implementation and compliance measures, and more concerted activism. I begin my analysis, however, with a historical discussion of how the consolidation and diffusion of a ‘cult of the individual’ from the 19th century forward coincides with the rise of contemporary human rights. In the process, I use data on international instruments to highlight the linkages between this globalizing cult and human rights doctrine over time. Next I present several features of the data that reveal how this cultural model of the individual in the post-war era has become particularly elaborate and differentiated.

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Finally, I explore the lofty and idealistic aspirations of human rights law that, ironically, help perpetuate decoupling but also justify ongoing institutional enhancement.

The Triumph of the Individual and the Rise of Human Rights At the root of human rights ideology is a steadfast belief in the inherent dignity and equality of each individual person, who has inalienable rights that are intrinsic and that must be recognized and guaranteed by nation-state societies and their constituent organizations. Yet, in historical perspective, it was the reverse conception that was much more common and far more universal across time and space – that rights and privileges are bestowed unevenly, by the gods or the ‘natural order of things’, on corporate collectivities (e.g. families, clans, monarchies, estates, and so on) as the ultimate loci of meaning and value (Boli and Elliott, 2008; Pagels, 1979). The stratification of medieval European society into estates, for example, was justified because that was the divine order of things; every individual was called by God to perform specific tasks (as a nobleman, clergy, or peasant) and should abide by that calling for the proper functioning of society as a whole. In particular, the tradition of royal authority was bolstered by a theocratic or ‘descending’ conception of government and law (Ullmann, 1966), which granted the king supreme power over subject populations ‘by the grace of God’. The gradual displacement of hierarchically-ordered corporate entities as the central locus of agency, value, and identity in the modern world is a remarkable turn of events, one that is central to the contemporary development of human rights and other individual safeguards (Boyle, 2002; Frank et al., 2010; Matthias, 2013). This dramatic change was well appreciated by Durkheim over a century ago. His analysis of the division of labor (1984 [1893]), for example, described how the transition to modern, differentiated societies embeds sacrality first and foremost in the individual – not in individuals as separate flesh-and-blood entities, but in ‘the Individual’ as an abstract concept that conceives every human being as a sovereign actor, a person worthy of respect, and a viable social entity essentially equal to all other individuals. This relocation of primordial value had quasi-religious implications, transforming the human person from a mere instance of one or another collectivity into the primary object and agent of social progress, development, and, in essence, worship (see also Durkheim, 1973 [1898]). This change was by no means inevitable, however. While notions of intrinsic, individual value and personal autonomy have deep roots in Western culture, most notably Christianity (see Dumont, 1986; Lindsay, 1930–5; Meyer et al., 1987; Morris, 1972; Parsons, 1968), they competed with alternative conceptions of fundamental difference and inferiority (‘the savage’, ‘the barbarian’, ‘the heretic’) that promoted slavery, colonialism, holy wars, and genocide.3 Nonetheless, by the mid-19th century, Durkheim’s ‘cult of the individual’ was reflected in a vast array of societal endeavors and institutions directed toward an increasingly individualized existence. The individual now needed, and was worthy of, formally organized nurturing (via mass schooling and occupational training), health care (via psychology and medicine), efficiency enhancement (via time and motion studies), protection (via legal and welfare systems), empowerment (via

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citizenship rights), and national inclusion (via censuses and ballots). At the same time, a series of transnational social movements emerged that sought to rectify immoral social practices – that is, violations of the integrity, value, and boundedness of individuals – by, for example, abolishing slavery (Keck and Sikkink, 1998), implementing humane and impartial treatment of wounded soldiers (Finnemore, 1999), promoting temperance measures (Epstein, 1981), and establishing women’s suffrage (Berkovitch, 1999). All of these movements were largely or partly religiously inspired, but their primary goal was not to please God or promote eternal salvation. They sought to liberate the individual from societal constraints, ensure individual sovereignty, and bolster the individual’s capacity to seek not only their own deliverance but that of society as well, in a thisworldly sense. The anti-slavery movement, for example, began as an effort to abolish the transAtlantic slave trade, primarily in Britain and the United States, but expanded to include efforts in many countries to abolish slavery altogether. As early as the 1780s, abolitionist societies began to form in many British locales, led primarily by Quakers, Baptists, Methodists, and members of other Protestant sects. As Keck and Sikkink (1998: 46) explain, the backbone of the anti-slavery movement was profoundly evangelical. ‘Revival theology emphasized each individual’s capacity and responsibility for salvation through good works and efforts to root out individual and social sin. In this worldview, not only was slavery a social sin, but also the slave was being denied the individuality essential for personal salvation.’ To be sure, some members of the anti-slavery movement were influenced just as much by enlightenment ideas of equality and liberty as by Christian doctrine. Yet, as Bales and Robbins (2001: 27–8) conclude, a common theme in all of the international agreements concerning the abolition of slavery and slavery-like practices is the loss of individual autonomy. ‘The fundamental characteristic of many of the practices is that they curtail freedom of movement and ability to make decisions, as well as many other fundamental freedoms. That is, many of these practices deprive victims of the exercise of their free will.’ Humanitarian efforts to control or limit the destructiveness of war had emerged at various times throughout the European Middle Ages (Nicolle, 1999), and various civilizations had developed codes of conduct for the treatment of prisoners and non-combatants. A universalistic code did not take form until the early 1860s, however, when the Genevese-Swiss banker Henri Dunant famously led a movement to establish standards of humane treatment for wounded soldiers in all wars, under the aegis of the International Committee of the Red Cross (ICRC). Like the anti-slavery movement, Dunant’s cause was motivated largely by Christian revivalism and he bankrupted himself in service to the Red Cross, living in impoverished obscurity for much of the latter part of his life (Finnemore, 1999). Under his leadership, the Committee organized the first Geneva Convention in 1864, which dealt exclusively with the establishment of national relief societies to care for wounded soldiers regardless of nationality. Within four years, the Convention was signed by virtually every state in Europe as well as the United States and Turkey, and it was soon extended to civil wars, civilian refugees, and naval warfare. The provisions of the Convention were also applied unilaterally by Japan in the Sino-Japanese War of 1894.

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The international agreements produced by these two movements – slavery abolition and humanitarian rules of war – are widely recognized as the first human rights instruments. Since this period, the number and variety of legal instruments have grown dramatically. While these documents differ slightly in name (e.g. convention, covenant, declaration, protocol) and legal function, they all tend to follow a standard format: an introductory preamble expressing general beliefs and values precedes a series of articles or clauses in the main text that translate these generalities into detailed rights and claims. The data employed below derive from a comprehensive coding of all recognized human rights instruments since the mid-19th century (see Elliott, 2011, for a more complete description). The coding project targeted all articles, clauses, and appendices (but not preambles) to produce two distinct data sets: (1) a Master List of 779 instruments adopted between 1863 and 2003, which were coded for general information such as year and location of adoption, convening body (e.g. UN General Assembly), and overall subject matter; and (2) a subset of this larger list – the Core List – comprised of 145 renowned and widely influential instruments enacted from 1926 to 2002, which were coded extensively for detailed information about the kinds of violations mentioned, the various recipients of legal protection and concern, as well as the specific rights and entitlements enumerated in each instrument. Based on the comprehensive Master List data, roughly 80 percent of human rights instruments recognized before the First World War (31 out of 39 documents) concerned the arena of warfare (including the humane treatment of wounded or captured soldiers, banned weaponry, and the peaceful settlement of disputes), two concerned the abolition of slavery, and the remainder defined a small range of additional protections for certain categories of individuals (the guardianship of minors, rights of aliens, deprivation of civil rights, prohibition of night work for women in industrial employment, and residency of naturalized citizens). As highlighted in Figure 1, this initial period of human rights codification percolated slowly for decades, focusing on domains in which the individual was subject to the greatest degree of personal violation – physical restraint, injury, and death in slavery or war. At the same time, this era of early transnational movements went hand-in-hand with the rapid institutionalization of individual-based, and highly rationalized, social structures – the market economy, mass schooling, nascent welfare systems (in Bismarck’s Germany, for example), universal male suffrage, and voluntaristic (non-state sanctioned) religiosity – that dramatically transformed the organization of nation-state societies. After the First World War, the League of Nations system provided the first central platform upon which universalistic models of the state, society, and the individual (and relations among them) were debated and conventionalized on a worldwide scale. As its primary goal, the League continued the work of the Hague conventions (in 1899 and 1907) and prior international efforts to prevent war and promote peaceful relations, though it avoided direct involvement in the internal affairs of member states and their citizenry. But it also oversaw agencies and commissions that dealt with a variety of international problems concerning health, colonialism, labor standards, the narcotics trade (particularly opium), slavery, and the legal status of refugees and women (League of Nations, 1933–9). League of Nations Mandates, for example, were expected (in principle) to transition former colonies to independence and self-sufficiency as modern

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40 Decade

35

Number of Instruments

30

25

20

15

# of Instruments

2000-2003

53

1990-1999

191

1980-1989

115

1970-1979

113

1960-1969

78

1950-1959

62

1940-1949

54

1930-1939

37

1920-1929

30

1910-1919

10

1900-1909

23

1890-1899

7

1880-1889

1

1870-1879

1

1863-1869

4

Total

779

10

5

0 1863

1870

1877

1884

1891

1898

1905

1912

1919

1926

1933

1940

1947

1954

1961

1968

1975

1982

1989

1996

2003

Figure 1.  Number of international human rights instruments drafted per year: 1863–2003. Source: Elliott, 2011 (Master List).

nation-states. Mandates in Class B, which applied to former German colonies in subSaharan regions of central and west Africa, decreed that the following guarantees should be implemented among subject populations: 1) freedom of conscience and religion; 2) maintenance of public order and morals; 3) prohibition of abuses such as the slave trade, arms trafficking, and liquor trafficking; 4) prevention of military fortifications, bases, and training of local populations, except for defense of territory or political purposes; and 5) equal opportunities for trade with other Members of the League (Anghie, 2002; League of Nations, 1933–9). Thus, while laws of war and the abolition of slavery continued to be prominent human rights issues, many instruments from the interwar period sought to delineate the ‘proper’ relationship between nation-state societies and individuals in such arenas as freedom of transit, statelessness, the status of aliens, asylum, extradition, and nationality laws. The creation of the International Labor Organization in 1919 led to a rapid increase in instruments dealing with labor standards and practices; ILO documents comprise the majority (55%) of the 73 recognized human rights instruments in the interwar period. By the 1930s many nation-states began building elaborate welfare systems to provide economic security to individual citizens, though the human rights principles underlying these systems had yet to take explicit international form. The aftermath of the Second World War facilitated an explosion of human rights activity in a number of ways. First, the defeat of fascist and Japanese imperialism, and revulsion at the atrocities of the Nazi regime, severely delegitimated aggressive nationalism and illiberal forms of governance, helping to further consolidate the ideology of the individual as the primary cultural locus of meaning and value. Thus, from 1947 to 1949

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there were vigorous efforts to strengthen the laws of war, punish war criminals (above all, perpetrators of genocide), end slavery, and implement labor standards. Beyond these specific efforts, the years immediately following the war witnessed a powerful and unprecedented movement to articulate general, universalizing instruments. Documents such as the Universal Declaration of Human Rights (1948), the American Declaration on the Rights and Duties of Man (1948), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) articulated a broad range of individual protections, entitlements, and duties in various domains (politics, law, education, work, culture, and the economy) that had theretofore been addressed separately, if at all. Second, the United Nations system, building on the institutional apparatus of the League of Nations, provided a truly global arena for the ongoing articulation of human rights. Even before the UDHR was promulgated in 1948, the United Nations had established a Commission on Human Rights, a Commission on the Status of Women, and a Subcommission on Prevention of Discrimination and Protection of Minorities, in 1946. Numerous instruments from 1944 to 1946 mark the early and rapid expansion of associated intergovernmental bodies (e.g. Food and Agriculture Organization, UNESCO, World Health Organization, International Refugee Organization) that began to delineate new human rights standards in their domains of expertise. Regional organizations also accelerated the expansion of human rights immediately after the war, most notably the Organization of American States (OAS) and the Council of Europe (CE). First established as the Pan-American Union in 1910, the OAS adopted several human rights instruments in 1948 (in addition to its Declaration on the Rights and Duties of Man), while the CE began adopting its own instruments in 1950. These intergovernmental activities were also greatly amplified by the vigorous work of human rights NGOs, whose worldwide numbers rose steadily beginning in the 1960s and exploded during the 1980s and early 1990s (Tsuitsui and Wotipka, 2004: 593). Formal national commissions and agencies dealing specifically with human rights grievances also began to appear in the late 1970s and have proliferated rapidly since the early 1990s (Koo and Ramirez, 2009: 1327). Besides legal instruments, national constitutions (Beck et al., 2009: 31) and school textbooks (Meyer et al., 2010: 123) have increasingly affirmed the virtues of human rights in recent decades as well. Third, as former colonies entered the UN system in the 1950s and 1960s, they encountered a nation-state system informed by universalistic models and prescriptions about how to organize national populations on the basis of individual citizenship, further delegitimating the primacy of corporate associations in world society. Other globalizing institutions, such as market-based capitalism and mass education, also weakened corporate actorhood by empowering the individual (rather than, for example, households, tribes, firms, or classes) as the fundamental bearer of economic liberty and source of rationalized action (via ‘human capital’), pursuing ‘self-actualization’ in line with ever more elaborate cultural models. Thus, while its initial primary mandate was to promote peace and security among states, the UN and associated bodies became increasingly involved in concrete efforts to define, promote, and protect the human rights of individuals. This is borne out in the data: 85 percent of all recognized instruments from 1863– 2003 were drafted from the 1940s onward. Figure 1 shows a burst of instrument making in the late 1940s, which leveled off in the 1950s but rose to increasingly higher levels in

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each succeeding decade thereafter (see the table insert in Figure 1). This long-term pattern of progressively intensifying activity culminated in the stand-out peaks of 1990, 1994, and 1999, which made the 1990s by far the most expansive human rights decade in history. Much like the end of the Second World War, the fall of communism and the end of the Cold War dealt another heavy blow to the legitimacy of statist regimes and corporatist social organization. Individualizing ideologies like human rights, liberal democracy, and free-market capitalism, which had been gaining momentum for decades, surged forward in the late 1980s and 1990s. Nevertheless, the perceived threat of globalization and its purportedly homogenizing effects also helped to reinforce corporate identities, both national and ethno-nationalist, in the 1980s and 1990s. As shown below, the overwhelming individualism of human rights ideology did not preclude a renewed (albeit lesser) emphasis on collective entities’ rights during this period. In particular, the rights and protections of minorities (national, ethnic, religious, linguistic) and indigenous peoples became important human rights concerns as well.

Post-War Human Rights and the Ever-Expansive Model of the Individual Individuation and Differentiation While human rights institutionalization was rapidly increasing in the post-war period, the content of human rights ideology was becoming increasingly differentiated and elaborated in terms of the types of entities specified as subjects of protection and the kinds of violations identified as matters of formal concern. Using data regarding the 145 Core List instruments, Table 1 presents 32 categories of entities that have been singled out as requiring protection or support, 14 of which are aggregated in a residual category at the bottom of the table. In essence, these are entities imbued with sacrality in the global moral order (Boli, 2005). They warrant protection because they embody value and meaning. They are to be respected, treated with dignity, and approached with caution (Ellul, 1975). In many cases, they are especially vulnerable categories of individuals, so specific provisions for their protection and empowerment are seen as necessary. Entities are ranked by the number of mentions in column one, followed by the percentage of total mentions in column two and, finally, the percentage of instruments mentioning the entity in column three. For example, women are mentioned as deserving of protection 28 times, which is 9.6 percent of all entity mentions. In addition, 19.3 percent of the instruments mention women as a protected entity at least once. Leading the list is ‘everyone’. In other words, the entity most commonly depicted as sacred and thus meriting protection (54 mentions, in 37.2% of the instruments) is the universal individual, or all persons. Close behind is an entity that is seen as especially vulnerable, the child (49 mentions, 33.8% of the instruments), followed by women, also historically seen as particularly vulnerable. Workers, persons subject to criminal procedures, peoples/nations, and the handicapped/disabled are also frequently mentioned (about 5–6% of the total). Less common are refugees, minorities, and the family. Conversely, very little concern is shown for historically prominent entities such as

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Table 1.  Categories of protected entities and institutions mentioned in human rights instruments. Entity/Institution1 Everyone/All Persons Children Women Workers Persons in Crime (e.g. the accused, detained persons) Peoples/Nations Handicapped/Disabled Refugees/Stateless Persons Minorities/Minority Languages The Family/Marriage Persons in War (e.g. prisoners, civilians) Nature/The Environment Cultural Heritage Foreigners/Aliens/Immigrants The Elderly Judges/Lawyers/Clients/ Prosecutors The Media/Journalists Gypsies Other Protected Entities/ Institutions2 Totals:

Number of Mentions

Percent of All Mentions

Percent of All Instruments (N=145)

54 49 28 18 17

18.6 16.8 9.6 6.2 5.8

37.2 33.8 19.3 12.4 11.7

17 14 11 11 11 10

5.8 4.8 3.8 3.8 3.8 3.4

11.7 9.7 7.6 7.6 7.6 6.9

7 6 5 5 4

2.4 2.1 1.7 1.7 1.4

4.8 4.1 3.5 3.5 2.8

3 3 18

1.0 1.0 6.2

2.1 2.1 12.4

291

100

>1003

1This

list abbreviates and aggregates some of the original categories. For a detailed and unaggregated list of all sacred entities and institutions, see Elliott, 2014 (Appendix A). 2These include the following (frequencies in parentheses): The Poor (2), Slaves (2), The State (2), Unions/ Employee Organizations (2), Africa or Africans (1), Artists or Authors (1), Colonies or Dependent Countries (1), Embryos (1), Groups (1), Persons suffering from HIV/AIDS (1), Home or Private Residence (1), Parents or Legal Guardians (1), Racial or ethnic groups which are socially or economically disadvantaged (1), Students (1). 3Percentages in this column exceed 100 because the categories are not mutually exclusive; each document can specify more than one sacred entity/institution. Source: Elliott, 2011 (Core List).

the state (two mentions) or labor unions (two). These entities are not rights-endowed to any substantial degree; put another way, human rights doctrine is not wont to attribute much sacrality to them. What is more, no sacrality at all is attributed to the power actors of world society. Neither corporations, nor heads of state, nor militaries, nor Europeans, nor white males receive even a single mention. Rather, most of the entities in Table 1 are relatively weak or marginalized. Note, for example, that concern for persons involved in criminal proceedings is much greater than concern for those who preside over those proceedings (judges, lawyers, and prosecutors). The latter, of

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Individuated Entities (N = 223) 225

200

Cumulative Number of Mentions

175

150

125

Decade

# of Mentions

2000-2002

25

72

1990-1999

104

76

Collective Entities (N = 68)

% Individuated

1980-1989

53

79

1970-1979

31

68

1960-1969

38

71

1950-1959

16

100

1940-1949

22

82

1930-1939

1

100

1926-1929

1

100

100

75

50

25

0 1926

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Figure 2.  Protection of individuated vs. collective entities: Cumulative number of mentions as ‘protected’ over time: 1926–2002. Source: Elliott, 2011 (Core List).

course, are mentioned in instruments meant to ensure the autonomy of the judicial system from the arbitrary power of the state. To be sure, some of the entities in Table 1 are corporate collectivities, that is, groups with an identity and legal status distinct from the individuals that comprise them. Such collective entities (e.g. peoples, minorities, the state, the family, nature) are recognized as legitimate, bounded actors in their own right. For example, instruments dealing with labor unions endow the unions as corporate groups with various rights (to organize workers, determine membership rules, go on strike, etc.). The unions themselves are designated as the beneficiaries of these rights, not union leaders or members. Individuated entities, on the other hand, are constructed either as pure individuals (‘everyone’ or ‘all persons’) or as categorical groups. In contrast to ‘peoples’ or ‘ethnic groups’, categorical groups like ‘women’, ‘children’, and ‘the disabled’ are collections of individuals who share a particular trait but do not form a holistic, corporate identity group. Human rights apply to individual instances of these categories (i.e. any given woman, child, or disabled person) rather than to the entire group as a singular entity. Using the Core List data, I examine two aspects of the individuated vs. collective orientation of human rights: sacred entities meriting protection and the nature of human rights themselves.4 Figure 2 shows the cumulative number of mentions of protected entities for the Core instruments, with the insert box giving the number and percentage of individuated entities for each decade. The general finding is overwhelming predominance of individuated entities, which garner 223 mentions (76.6%), as compared to 68 mentions for collective entities. Individuated entity predominance is especially marked

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Individuated Rights (N = 1411) 1500 1400 1300 1200

Cumulative Number of Rights

1100 1000 900

Decade

Number of Rights

2000-2002

28

96

1990-1999

609

90

1980-1989

304

76

1970-1979

164

88

1960-1969

194

91

1950-1959

102

95

1940-1949

188

97

1930-1939

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100

Collective Rights (N = 182)

% Individuated

800 700 600 500 400 300 200 100 0 1926

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Figure 3.  Granting of individuated vs. collective rights: Cumulative number of rights declared over time: 1926–2002. Source: Elliott, 2011 (Core List).

through the 1950s, but in the 1960s corporate groups received considerable mention (29%), thanks to such instruments as the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) and the Permanent Sovereignty over Natural Resources resolution (1962) of the UN General Assembly. Thereafter, corporate groups continued to receive a modest proportion of mentions, ranging between 21 percent (1980s) and 32 percent (1970s), while the predominance of individuated entities carried through to the early 21st century. With respect to human rights specifications, the predominance of individuated prescriptions is even greater. Of the 783 distinct rights identified in the Core List instruments, 666 (85.1%) pertain to individuated entities, 117 to collective groups. Including rights that were specified more than once, individuated entities account for 88.6 percent of the total (1411 of 1593). Thus, while corporate entities account for almost a quarter of the mentions of entities worthy of protection, their share of specific rights is less than 12 percent. It is worth noting that 59 of the 117 rights associated with corporate groups come from just one instrument, the Convention concerning Indigenous and Tribal Peoples in Independent Countries (1989). This is the primary instrument of corporate character in the history of human rights institutionalization. Tellingly enough, its beneficiaries are precisely the groups and societies that are least individuated in the contemporary world. A historical view of individuated vs. collective rights is provided by Figure 3. Here I give the cumulative number of individuated and collective rights for the Core List since 1926, with an inserted table showing the number and proportion of individuated rights

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each decade. After a slow start, in the late 1940s the cumulative number of rights associated with individuated entities increased steeply, while few rights of a collective character appeared. In succeeding decades individuated rights continued to pile up, but corporate rights became relatively common in the 1960s, when they accounted for 9 percent of the total. The heyday for corporate rights, such as it was, came in the late 1980s with the Indigenous and Tribal Peoples convention, but the long-term trend reasserted itself in the 1990s. In that decade, 90 percent of rights specifications were individuated; for the instruments of most recent enactment, 96 percent of rights were individuated. The dimension in which the articulation of human rights is most elaborate and differentiated is that of violations; a truly dizzying array emerged in the 145 Core List instruments. I found it necessary to use 44 categories of violations, ranging from apartheid, discrimination, and drug trafficking to slavery, torture, and war crimes (see Elliott, 2011: 541). Categories related to women and children are especially diverse. The formal condemnation of violations related to children, for example, include mentions of abduction, trafficking, begging, harmful labor, pornography, prostitution or sexual slavery, sex tourism, forced marriage and religious conversion, domestic violence, participation in the production or trafficking of drugs, participation or displacement in armed conflict, and discrimination regarding HIV/AIDS. This remarkable diversity, largely taken for granted in scholarly discourse, reflects not only the triumph of the individual and individuated entities (vis-à-vis corporate collectivities) but also their cultural elaboration in a profusion of distinctive roles, capacities, and identities in everyday life (Frank and Meyer, 2002). This elaboration provides a rationalized (often scientific) basis upon which new entitlements and violations can be claimed. Children, for example, are no longer viewed primarily as undeveloped adults or economic assets in a household economy, but as unique and complex individuals that move through a distinct life course of developmental stages from conception to adulthood. Each stage in the life course is linked to scientific research about specific capacities and needs that should be nurtured and protected. Thus, legal measures to prevent such violations as early death, physical abuse, degrading employment, or mental anguish are the order of the day. Likewise, a detailed range of rights and entitlements (regarding health, education, guardianship, detention, work, and many other arenas) are crucial for the full development of the child. A similarly expansive range of entitlements and concerns apply to women, the disabled, persons with mental illness, the elderly, and other categorical groups endowed with meaning and bolstered by scientific or professionalized elaboration.

Ideal Principles vs. Decoupled Practice For years, scholars have shown that the actual implementation of human rights principles is a less than straightforward process, to say the least, but tends to vary by certain national-level characteristics. Key characteristics such as economic development, level of democracy, prevalence of war, and NGO activity, for example, have all been shown to affect implementation in common sense ways. Thus, countries that are more developed, democratic, peaceful, and have more active NGOs are more likely to implement human

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rights principles (see Cole, 2012b, for an overview of recent studies and approaches). Yet, what is commonly overlooked is that the nature of human rights law itself ensures persistent decoupling over and above these characteristics. From a Durkheimian perspective, ‘the law’ is an institution reflecting higher, sacred principles (Boyle and Meyer, 2002; Frank et al., 2010). Modern law, for example, is universal; it can be implemented in any society around the world. Modern law is highly rational; it embodies systematic and impersonal laws and procedures, and requires specialized technique and training to be administered. Modern law is thoroughly secular; it is formulated and progressively applied through human reason. Modern law is principled; it codifies that which is ultimately right and wrong. As a result, modern law is essential for administering justice and a central component of legitimately functioning nation-states (Boyle and Meyer, 2002: 69–72). Yet, because the law is more a reflection of these abstract principles rather than a strategic instrument, the actual process of implementation and actualization is far from uniform; states exhibit very broad similarities in how the law is formally structured (i.e. similar principles, procedures, and organizational bodies), but extensive variation in how these structures actually perform or correspond with everyday behavior. Similarly, neo-institutional theories of globalization (see Jepperson, 2002, for a review) have long observed that national-level practices become decoupled from worldlevel doctrines that prescribe such practices. This is particularly evident in the case of human rights doctrines, which specify idealized social arrangements that no country is fully able, or sometimes willing, to implement. For example, the Universal Declaration of Human Rights (1948) envisions a world where every individual should be free from discrimination, torture, and slavery, able to express personal opinions and participate in government, as well as enjoy equal access to education, social security, leisure activities, and an adequate standard of living. As shown above, international law contains hundreds of human rights instruments modeled after the UDHR, specifying endless commitments and obligations that states are expected (in principle) to follow. Upon closer examination, the legal articles contained in these instruments read like modern-day commandments. In essence, they function in similar ways as universal mandates that specify morally proper and improper behavior. It is no surprise, then, that human rights instruments are drafted with the highest moral aspirations in mind. Based on the Core List data, Table 2 presents a list of the essential virtues and aspirations that are considered to be part and parcel of the realization of human rights (along with their total mentions, percent of all mentions, and percent of all 145 instruments). These are generalized ideals that often provide ultimate guidelines or goals for specific provisions of human rights instruments. For example, Article 2 of the European Framework Convention for the Protection of National Minorities (1995) states: ‘The Provisions of this framework Convention shall be applied in good faith, in a spirit of understanding and tolerance and in conformity with the principles of good neighbourliness, friendly relations and co-operation between States.’ Overall, the kind of virtues and aspirations that show up in these instruments imply fundamental beliefs (e.g. in harmony, co-operation, respect, freedom, participation, equality) that are highly idealized; they do not imply a world where human rights should be the birthright of some more than others, that they should be applied discriminately, forcefully, or at the

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Elliott Table 2.  Essential virtues and aspirations mentioned in human rights instruments. Virtue/Aspiration Equality/Non-Discrimination Multilateralism/State Cooperation Human Dignity and Diversity (respect for) Peace/Solidarity/Tolerance Fairness/Justice/Equity Freedom/Liberty/ Independence Sovereignty/Non-Interference Rule of Law/International Instruments (respect for) Democracy/Pluralism/NonPartisanship Environ. Preservation/ Sustainable Development Development/Economic Growth and Efficiency Moral Well Being/Religiosity Transparency/Accountability Totals:

Frequency of Mention

Percent of All Mentions

Percent of All Instruments (N=145)

52 39

24.9 18.7

35.9 26.9

28

13.4

19.3

24 19 11

11.5 9.1 5.3

16.6 13.1 7.6

8 8

3.8 3.8

5.5 5.5

7

3.4

4.8

6

2.9

4.1

4

1.9

2.8

2 1 209

1.0 0.5 100

1.4 0.7 >1001

1Percentages

exceed 100 because the categories are not mutually exclusive; each document can specify more than one virtue or aspiration. Source: Elliott, 2011 (Core List).

discretion of certain authoritative bodies, or for the sake of localized or personalized interests. Rather, they imply that human rights can flourish only in a world where everyone is fundamentally equal and sovereign, where interactions are peaceful, respectful and inclusive, and where the common good is available to every individual. Ironically, because human rights principles are couched in rational-legal rather than religious terminology, they are often viewed as realistic rather than idealistic. A recent and noteworthy example is the United Nations’ ambitious Millennium Development Goals (MDGs) that seek to reduce extreme poverty, achieve universal primary education, improve child and maternal health, combat disease, and ensure environmental sustainability, among others (United Nations, 2014). Designed to be more than just abstract goals, the MDGs have involved a concerted effort to develop and employ specific targets, implementation strategies, monitoring mechanisms, and indicators of success. Likewise, prominent NGOs and other activists take these efforts very seriously, relentlessly policing the globe like moral watchdogs to continuously demand state compliance and shame those who shirk their obligations (Keck and Sikkink, 1998; Smith and Wiest, 2005). Nonetheless, the goal of full compliance for even the richest and most wellbehaved states is unattainable, above and beyond purely strategic concerns. The result,

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inevitably, is widespread and uneven decoupling that, in turn, provokes fervent and continual efforts to overcome this.

Conclusion For many, the global rise of human rights ideology is taken for granted as good, natural, and inevitable. However, given the historical primacy of corporate collectivities and the exclusivity of their identities, this is a truly remarkable development. Borrowing insights from Durkheimian and world society analyses, I view the widespread institutionalization of human rights as a consequence of the expanding world-cultural emphasis on the individual as a sacred and inviolable entity. The human rights regime, as formalized in legal instruments, is principally concerned with the rights of individuals, both as single, distinct beings and as instances of categories of individuals sharing a given identity characteristic. Nonetheless, the human rights regime can hardly be said to ignore the rights of corporate collectivities entirely; it clearly protects marginalized groups that are themselves relatively weakly individuated. As shown above, however, a rather limited range of both corporate and categorical identities is activated in human rights instruments. In addition, the inevitable decoupling that arises between abstract legal principles, on the one hand, and actual practices, on the other, provokes widespread efforts to rectify this disjuncture and evermore structuration of formal, institutional protections. Today, the global human rights regime (of IGOs, NGOs, national-level institutions, individual experts and activists) is a massive, rational-legal apparatus to protect and empower the sacred core of modern society. Moreover, it is increasingly specific about the nature of associated rights, the definitions of violations, the monitoring and reporting of violations, and the appropriate means to be used to achieve progress. Of course, this also makes it increasingly likely that issues of decoupling will appear more starkly and urgently than ever. Acknowledgements I would like to thank John Boli, Elizabeth Heger Boyle, David John Frank, and John Meyer for helpful comments, suggestions, and support on earlier versions of this article.

Funding This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes 1. See Hopgood (2014) for a typically cynical assessment of human rights progress around the world. 2. While my previous work explored alternative explanations of this phenomenon more extensively, this current version seeks to explore the data more fully and develop a world cultural explanation. While I make note of contending hypotheses, where appropriate, I do not systematically engage them here.

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3. Similarly, during the heyday of corporate nationalism and imperialism, the principle of ‘sovereign equality’ between all states was (and still is) a foundational assumption of international relations, even though in practice it constituted ‘organized hypocrisy’ (Krasner, 1999). 4. My characterization of entities as individuated or collective is conservative: all ambiguous entities were placed in the collective category. For example, indigenous/tribal peoples are treated in the instruments sometimes as corporate groups and sometimes as categories of individuals who share an indigenous or tribal identity. Because indigenous/tribal peoples are not consistently treated as an individuated category, they are classified as collective entities.

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Author biography Michael A. Elliott is Assistant Professor of Sociology at Towson University. His research focuses on processes of globalization from a world society perspective. Recently, he has published on the subjects of human rights, world heritage, and monastic asceticism.