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From folk notion to social science concept: What is a ‘rights revolution’, really?

The notion of ‘rights revolution’ is widely used in socio-legal scholarship, yet in numerous different ways with varying precision and definition. What is a rights revolution? How can it be turned into a more rigorous social science concept?

Judicial rights revolutions have been observed in numerous countries around the world. The United States’ civil rights revolution in the 1950s–’70s – whereby the Supreme Court expanded rights protection for African Americans and, subsequently, for other groups – forms a much-researched paradigm case, and similar (if rarely as pervasive) transformations of judicial agendas have been documented in e.g. Canada, the United Kingdom, Australia, Ireland, South Africa, the Philippines, several Latin American states, and in the European Union.

However, ‘rights revolution’ is a folk notion that has found its place in academic vocabulary ((cf. Madsen, Mikael Rask, Pola Cebulak, and Micha Wiebusch. 2018. ‘Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’. International Journal of Law in Context 14 (2): 197–220., rather than a rigorous, well-defined social science concept. You’ll find several books that have the rights revolution in their title, as a catchy phrase, without defining, operationalizing or even using it in the study as such.

A seminal study that not only has the notion in its title but actually defines it, operationalizes it and employs it in a comparative study is Charles Epp’s The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (CUP 1998). On Epp’s definition, a rights revolution is a transformation in the agendas of the highest courts of a country away from dealing primarily with business disputes and property rights claims brought by corporations and wealthy individuals towards protecting and expanding the individual rights of ordinary citizens (Epp 1998:7).

A rights revolution, thus, entails “a sustained, developmental process that produced or expanded the new civil rights and liberties.” (p7) The transformation consists of three components: (a) Judicial attention, i.e., the proportion on a court’s agenda of cases involving individual rights; (b) judicial support, as evidenced through the court’s decisions on rights issues; and (c) implementation of rights, by the court or other agencies.

Epp’s definition comes quite some way in giving the notion greater conceptual clarity and specificity. Defining the rights revolution narrowly – as growing judicial protection of individual rights – is useful, as it allows us to distinguish analytically the concept from related phenomena that may cause it or result from it, such as legislative or executive enactment of rights, a growing rights consciousness in society, or a political discourse of individual rights ((Southworth, Ann. 2000. ‘The Rights Revolution and Support Structures for Rights Advocacy’. Law & Society Review 34: 1203–20.)) – phenomena which are sometimes also referred to by the term rights revolution. The US civil rights revolution involved, I guess, all of those aspects and a fundamental redistribution of social power, and by keeping them analytically distinct, it is easier to explore their interrelations, conceptually and empirically. In other contexts, putative judicial rights revolutions might have less profound consequences, so narrowing the concept to shifting judicial agendas may allow the concept to travel better.

However, even with its greater analytical specificity, Epp’s conception of a rights revolution raises a set of issues, especially once we seek to apply it outside of the US or common law contexts Epp studies. First, being modeled on the US experience, it may seem to suggest that absent (prior to) a rights revolution, the natural role of a supreme court is chiefly to settle business disputes and property claims of powerful societal actors, rather than to protect the individual rights of the ordinary citizen or marginalized groups. Yet supreme courts have quite different functions and competences and they have evolved along distinct historical trajectories. For instance, the Scandinavian supreme courts have a broad competence in civil, criminal, constitutional and administrative matters, and while they used to be chiefly courts of appeal deciding large numbers of routine cases, docket reforms have transformed them into more proactive courts of precedent ((Sunde, Jørn Øyrehagen. 2017. ‘From Courts of Appeal to Courts of Precedent: Access to the Highest Courts in the Nordic Countries’. In Supreme Courts in Transition in China and the West: Adjudication at the Service of Public Goals, edited by Cornelis Hendrik (Remco) van Rhee and Yulin Fu, 53–76. Springer.)). Such reforms also seem to have placed principled issues – including rights – higher on court agendas. ((Bentsen, Henrik Litleré. 2018. ‘Court Leadership, Agenda Transformation, and Judicial Dissent: A European Case of a “Mysterious Demise of Consensual Norms”’. Journal of Law and Courts 6 (1): 189–213.; Derlén, Mattias, and Johan Lindholm. 2016. ‘Judiciell aktivism eller prejudikatbildning? En empirisk granskning av Högsta domstolen’. Svensk Juristtidning, no. 2: 143–58.)) But it’s hardly a shift away from a role similar to that of the US Supreme Court prior to the rights revolution.

Second, Epp’s concept also seems to suggest a sharp distinction between property rights and individual rights of ordinary citizens, and between corporate and individual rights holders. He explicitly bases this distinction on US constitutional development:

Rights, as I use the term here, consist of the new rights that emerged in judicial interpretation of U.S. constitutional law and statutes in this century. Constitutional rights in the past had been primarily the rights of property and contract. The new rights encompass, among other rights, freedom of speech and the press; free exercise of religion and prohibitions on official establishment of religion; prohibitions against invidious discrimination of the basis of race, sex and a few other more or less immutable characteristics; the right of privacy; and the right to due process in law enforcement and administrative procedure.”

(Epp, p.7)

The distinction becomes operative in the empirical case studies, which indicate, for instance, a declining share of ‘tax & ordinary economic’ cases and an increasing share of cases on ‘civil liberties & rights’ in the UK House of Lords and Canada’s Supreme Court.

However, this distinction seems conceptually implausible: property rights aren’t inherently only protecting interests of the rich or the powerful, and feature centrally among individual civil rights granted in many constitutions and international human rights instruments. It seems that Epp distinguishes rights in terms of whether they have benefited the underdogs, the marginalized, the little man, rather than the wealthy and powerful. Who benefits from a specific rights protection, however, may be historically contingent. A reviewer of Epp’s book suggests that “these new rights differ from the old property rights in at least one important respect: they are valuable to everyone, whether or not one has a big bank account.” ((Provine, Doris Marie. 1999. ‘Revolutionizing Rights: Epp’s Comparative Perspective’. Law & Social Inquiry 24 (4): 1125–40. But rights of property and contract may, of course, be valuable to marginalized people, too, such as indigenous groups suing for property rights to lands that the state took from their forebears.

Moreover, different rights claims are often interconnected, as in Sporrong & Lönnroth v. Sweden, where the ECtHR found that the respondent state – by authorizing municipalities to issue expropriation permits that were neither time-limited nor appealable – had violated both the right to peaceful enjoyment of property and the right to a fair trial. Or, to see how ‘civil liberties & rights’ can also feature centrally in ‘tax & economic’ cases, just look at the legal struggle over tax surcharges in Sweden, where the Supreme Court in 2013 decided that people who’ve had to pay a tax surcharge cannot also be prosecuted for the same tax crime, referring to the ne bis in idem principle in ECHR case law.

Relatedly, third, the notion of rights implied in this concept of a rights revolution raises issues. One might argue that all law in some respect regulates rights, and that virtually everything courts do relates to legal rights in one way or another. The real focus, rather, is on fundamental individual rights (if excluding fundamental individual property rights).

However, fundamental individual rights are hardly a monolithic category:

One of the implicit assumptions of Epp’s analysis is that the rights of the criminally accused and other rights are interchangeable parts of a single phenomenon. In other words, if rights revolutions are measured based on the change of agenda devoted to all rights cases reaching the high courts, the same results achieved from looking at that combined measure should still hold true when we look at criminal and other civil rights and liberties separately. Such an assumption appears to be reasonable in the U.S. context, but there is less established support for such an assumption in other countries. There are several reasons why this is an assumption which should be tested before accepted as universally true.

The danger of accepting false assumptions is especially great in the field of comparative politics. When hypotheses that have been proven valid in the U.S. American context are applied in a comparative perspective, many of the assumptions underlying the hypotheses are accepted on face value. In this case, the assumption that criminal and other civil rights and liberties cases are equally valid measures for determining the existence of a rights revolution as a combined measure of rights cases, assumes that a given support structure would have an equal effect on both. The assumption might also skew our analysis of other explanatory variables. Though there is a high correlation between justices’ attitude towards criminal and other civil rights and liberties cases in the U.S. …, this might not be the case in other countries…. We must therefore consider the possibility that outcomes in criminal and other civil rights and liberties cases are not very good predictors of one another.

Schorpp S, Songer DR, Urribarri RAS. 2008. What Rights in the “Rights Revolution”? Analyzing Criminal and other Civil Rights Cases Separately

Operationally, further, it seems questionable to assume that a court case is either about rights or about something else. A court case that ends up in a supreme court is likely to involve a broad range of issues many of which have to do with (fundamental) rights, to higher or lower degrees. Epp, however, is rather silent about how we coded cases:

Some crucial details are missing, however, particularly concerning caseloads and case types. The cataloging of cases filed forms a crucial part of his argument, but he gives the reader little guidance on how he did it (compare nn.3 and 4, pp. 254-55). Epp tells us, for example, that the Indian Supreme Court decides over 30,000 cases per year (pp. 90, 92, 109). How did Epp sort out which raised rights issues and which did not over the 30-year period covered by his study? Did he read them all? Or did he sample from this massive population, and if so, how? Nor is Epp clear about how he used data sets borrowed from other scholars. The book would have benefited from a technical appendix addressing these issues.

(Provine, p. 1133)

Finally, after presenting our project titled The Scandinavian Rights Revolution to diverse audiences, I’ve come to realize that while the title is catchy and while there might be things going on in Scandinavia one could arguably describe as a rights revolution (both on the folk notion view, as a multifaceted shift in society, and in the sense of changing judicial agendas), it also triggers unnecessary reactions, since it is hard to liberate the concept from the many complex connotations of the folk notion. If one wants to study whether and how fundamental rights increasingly feature on judicial agendas, one could just as well refer to the sub-components: judicial attention, judicial support, rights implementation. It might just not be worth the effort to seek to turn this folk notion into a rigorous social science concept.

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