Yes, a Myth: A Reply to Kirkup and Evans

We suspected that our article would generate controversy since it challenges much of the “received wisdom” about the West’s attitude toward economic and social rights. We thus specifically focused our attention on a decisive, formative historical moment: the founding of the global human rights regime. We argued that the roots of contemporary economic and social rights norms emerged out of domestic US and British policy and practice. Because what is at stake is a matter of fact—namely the attitudes and actions of Western states—we provided extensive evidence and careful, detailed analysis to support our claims.

In response, Alex Kirkup and Tony Evans complain that we have presented “a distorted and partial view of the post-war inclusion of economic and social rights within the post-war capitalist order.”¹ Our purpose, though, was never to provide any sort of account of integrating human rights into the capitalist world order.² We argued instead, as the quote at the outset of their reply indicates, that contrary to the common perception of Western hostility to economic and social rights, Western states were strong, consistent, and essential supporters of international recognition of economic and social human rights. Western states were also leading practitioners of dramatically expanded domestic implementation of those rights. Although Kirkup and Evans never actually address the particulars of our argument—it is hardly even cited—they do raise a number of interesting methodological and substantive issues that merit discussion. We begin with methodology, which their abstract identifies as their principal concern.

I. Empiricism and Positivism

Kirkup and Evans complain that our approach is “empirical and positivist.”³ We have always thought that it is a good (and certainly not a problematic) thing to support one’s arguments by “a wealth of empirical examples, references to international law, speeches, and regional human rights regimes”⁴—particularly when the issue is what states did and why. If there is a problem here, we cannot figure out what it might be.

As for the charge of positivism, we are perplexed. Kirkup and Evans seem not to mean the epistemological doctrine prevalent in much mainstream social science. “Positivism,” as they present it, appears to involve the view that legal texts are a description of state practice.⁵ This is neither our view, nor is it the view of the self-identified international legal positivists we know, who instead typically emphasize the difference between practice and texts, and the priority of practice.

Kirkup and Evans also suggest that “positivism” entails the claim that “the ratification of a human rights treaty and the intention to pursue the principles embodied within a treaty are one and the same thing.”⁶ We certainly do not hold this view. Ratification creates obligations. Whether states comply with those obligations is another matter. As for the claim that “Whelan and Donnelly’s positivism supports a natural rights philosophy,”⁷ we are dumbfounded. We had thought that central to any form of legal positivism was an opposition to natural law (and thus, one would imagine, natural rights as well).

Contrary to Kirkup and Evans’ suggestion that we take “UN debates, resolutions, and [the] corpus of international law, at face value,”⁸ we looked in some detail at the politics of negotiating the international legal instruments⁹ and the domestic politics and practice of the two leading post-war Western states.¹⁰ We took the claims of Western states seriously only because they are backed by a strong and sustained record of practice. Western (and especially US) practice, to be sure, has been not merely imperfect, but in many instances profoundly inadequate. Nonetheless, parallel with and subsequent to the development of global human rights norms, there was a major transformation of Western states into rather robust welfare states that devoted immense resources and attention to implementing internationally recognized economic and social rights.

The assertion that we give scant “reference to politics, interests, and power”¹¹ is simply untrue. One of our central objectives was to demonstrate the interests of Western states in strengthening their emerging welfare states...