#183      24 min 23 sec
For show only? The language of human rights in national constitutions

Sociologist Associate Professor Gili Drori explains how the vocabulary of human rights is making its way into the constitutions of nation states, and the degree to which societies actually honour the words in their own national charters.

"So here you see the pattern that it is those countries that are most susceptible to international influence, that are most eager to establish themselves as a modern nation state." -- Associate Professor Gili Drori




           



Assoc Prof Gili Drori
Assoc Prof Gili Drori

Gili S. Drori (PhD 1997, Stanford University) recently joined the faculty of the Hebrew University of Jerusalem, Israel, as an associate professor of sociology, after 22 years at Stanford University in the US. In addition to her teaching and research at Stanford University, Gili also taught at the University of California – Berkeley, the Technion in Israel, and in several universities and business schools in Europe.

Gili’s research interests include the comparative study of science and innovation, globalization, and rationalization. She also studies branding, world culture, technology entrepreneurship, higher education, and global health – analyzing all from an institutionalist and comparative perspective.

These interests are expressed in her recent books: “Science in the Modern World Polity: Institutionalization and Globalization” (2003, Stanford University Press; co-authored with John W. Meyer, Francisco O. Ramirez and Evan Schofer), “Global E-litism: Digital Technology, Social Inequality, and Transnationality” (2005, Worth), “Globalization and Organization: World Society and Organizational Change” (2006, Oxford University Press; co-edited with John W. Meyer and Hokyu Hwang), and, World Society: The Writings of John W. Meyer (2009, Oxford University Press; co-edited with Georg Krücken).

Her current research agenda concerns business and technological entrepreneurship (how economic arrangements and business practices reflect global ideas, often in disconnect from local context), the branding of universities (how marketing strategies shape higher education and its organization), and the rationalization of governance and management (how professionalization joins other institutional forces in shaping governance models and propelling their global diffusion).

Credits

Host: Jennifer Cook
Producers: Kelvin Param, Eric van Bemmel
Audio Engineers: Gavin Nebauer
Voiceover: Nerissa Hannink
Series Creators: Eric van Bemmel and Kelvin Param

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VOICEOVER 
Welcome to Up Close, the research talk show from the University of Melbourne, Australia. 

JENNIFER COOK
I'm Jennifer Cook. Thanks for joining us. A constitution is the document that defines a nation state and sets out the fundamental principles by which it is governed. It defines how laws can be made and by whom. Constitutions can both confer power on institutions and limit how those institutions can exert their power over a state's citizens. In short, a constitution is the very bedrock upon which a nation state is built. But what can constitutional language tell us about ourselves, the citizenry? Who do we consider citizens? Who has a right to stand beside us and how do we position ourselves in the global community? Today's guest has taken this last question and examined the extent to which the language of human rights is reflected in the constitutions of national states around the world. In other words, how important is it for a country to define and declare the basic human rights of its citizens? What influences the use or omission of such language and what can that tell us about the people we share a planet with?Gili Drori is Associate Professor of sociology from the Hebrew University of Jerusalem. Her research interests include globalisation, institutional theory, governance and global culture. Gili is visiting the University of Melbourne, as a guest of the Melbourne Research Office. Gili, thank you so much for joining us.

GILI DRORI
My pleasure.

JENNIFER COOK
No Gili, let's make this clear at the outset. You are not a constitutional lawyer, you're a sociologist. Can you explain to us then, how you approach a document that, essential, tries to put a nation's best foot forward.

GILI DRORI
As a sociologist, when I look at the national constitution, I see it as a text. I see it as an evidence of the normative aspirations, in this case, of a nation, and I read it like it is a manuscript, like it is a text to be analysed. So we read through the words, looked for phrases, looked for the history of phrases, looked for the etymology of particular words and phrases, and analysed this content of the document that we call a constitution.

JENNIFER COOK
So what are the benefits, do you think, to this narrative approach?

GILI DRORI
Lawyers act upon constitutions. They use the constitution as a bar, by which to judge the attitude that we have towards fellow citizens. We, as sociologists, look at the culture and also at the spread of culture across nationally. So our way to look through the narrative that we call a constitution, through the text that is a constitution, is a way for us to decipher the codes, the values, the attitudes behind those actions.

JENNIFER COOK
What is the essential question that you're trying to answer here?

GILI DRORI
It is quite clear that what we observe around us, worldwide, is an expansion of human rights. More than that, the expansion of the attention that we give to issues of rights. Now rights are not new to our civilisation. Historians framed for us, the different centuries focused on different rights and we had a chain of definitions of what rights are, from citizenship rights, political rights, economic and social rights, which defined the twentieth century. By the end of the twentieth century, we see more and more of a focus on human rights. Now, this is more than a semantic change. It goes to the heart of what we think our community is. In the old days, or rather, in previous centuries, the focus on civil and political rights means that the important political entity was that of the nation state. The language of human rights reorients the conversation towards universalistic sort of rights, meaning the rights of humans wherever they are. They also change the parameters by which we take legal action, which is outside of my scope of expertise but, nevertheless, the comment is that we look to transnational forms of justice and transnational forms of enforcement when we bring up the language of human rights.

JENNIFER COOK
I think that's really important for us to remember isn't it, as we delve into this unpacking of language, that a constitution actually defines the laws which is how we go forward as a society.

GILI DRORI
Indeed. In the age of globalisation, the issue of law is an interesting one. We do have these transnational notions of justice. However, we depend very much on national courts for their reinforcement. In this process of a globalisation of the notion of human rights, what we see is an expansion of instruments, legal instruments, that define rights in universalistic terms. We have international courts for different things, jurisdiction of one national court extends to violations of human rights in other nations, et cetera.

JENNIFER COOK
Gili, can you talk us through your research. You and your team spent several years reading every constitution in the world but, of course, that was just the beginning wasn't it?

GILI DRORI
Yes. Constitution is a very interesting document, even if it is very, very long. It took us a while to compile all the different constitutions, of all the different countries. We find them in their English language form, which makes cross-national research rather easy. It took us even longer to devise a coding scheme to figure out, what is it in the constitution, and in the narrative that the constitution formalises - what is it in that narrative that we are seeking?

JENNIFER COOK
So Gili, just how many constitutions did you read through and how long did that take?

GILI DRORI
We read 189 constitutions and they extend over tens and tens of pages. No need to roll your eyes, this is interesting work and this is what we consider primary material for discourse analysis. So we were happy to do that. We actually had a team of people who read through it. There's a trickiness to doing discourse analysis. We come with our own frames of mind and it is biased, what we find, what we even look in a text and therefore, we need a few eyes to look through a text like this.Let me add one more comment about the trickiness of coding in this way. The phrase human rights is so routinized these days. We accept it as a figure of speech but it is for me, as a native speaker of Hebrew, that I approach this phrase with more care. The phrase in Hebrew, the common phrase by which we refer to human rights is Zkhuyot Adam, which is actually translated as the rights of Adam. The phrase is both gendered and has religious connotations. It is fine for Israelis; we take this phrase to mean human rights. But the human here, is a particular sort of human. Now from this intuition, from being a speaker of Hebrew, we were more sensitive to how the phrase human rights actually appears in the native language, by which these different constitutions were written.So, on the one hand, we look at the universalisation of a discourse and therefore the routinization of referring to this catchphrase called human rights, but we also acknowledge the fact that, as much as there is a growing commonality in the legal language across the world, there are still very important differences in the way we conceptualise these rights.

JENNIFER COOK
Gili, you mentioned the length of these constitutions. Some of them went for 10, 14 pages...

GILI DRORI
Oh, no, no, no.

JENNIFER COOK
More?

GILI DRORI
Much longer than that. Well, it depends how we print. But in one-and-a-half space printing, some of them extended over 140 pages. So the constitutions are very, very long. The Constitution of Uganda has 287 different articles. We're talking about very length documents that give a lot of room for language and, because we're talking about very length documents, they also give a lot of room for different terms to pop up.

JENNIFER COOK
This is up close, coming to you from the University of Melbourne, Australia. I'm Jennifer Cook. Our guest today is Associate Professor Gili Drori, from the Hebrew University of Jerusalem, and we're talking about the relationship between constitutional language and human rights. Gili, I'm wondering if you could talk us through your methodology and the way in which that got you through to your conclusion of these human rights filtering into the constitutions and reflecting a global consciousness, or awareness, of human rights.

GILI DRORI
So, we compiled a database of the English translation of 189 national constitutions, of different nations. By the way, there are 192 members of the United Nations so we almost got all of them. Two nation states do not have constitutions - Israel and the UK. They have different ground rules for legal action but not a constitution. What we did was we searched for the language of human rights. We counted how many references are there to rights, how many references are there to human rights, what are the other rights that are mentioned? We also did some proximity measures. When one right is mentioned, how close it is mentioned to another right. Do all these rights appear in one place, listed one after the other, or are they spread and each one gets a full section of the constitutions? All of those indicators were important for us to gauge the depth of attention given to rights in national constitution.Then we took these different indicators and plugged them into a regression. That allows us to see the causal relationship between different national features and that prominence, depth, expression of human rights in national constitutions. As comparative sociologists do, our list of independent variables - as they are called in a technical sense but what we mean is, the causal factor that may lead to human rights having more prominent place given to human rights or less so. Those factors, causal factors, we draw out of different theories and give enough room for each theory to emphasise particular causal mechanisms. So about this reference in national constitutions around the world to human rights, about 60 per cent of all constitutions have at least one mention of human rights. On average, there are slightly over six mentions of the phrase human rights, per constitution. Generally, the rights language, including citizenship rights, is a norm, with an average of 86 mentions of just the phrase rights, not human rights, in these 189 constitutions. It just shows you the depth by which the language of human rights had penetrated legal documents of different nation states. Across all constitutions, the share of references to the phrase human rights, out of references to any rights, is pretty low. It is about five per cent. So as much as we see the language of human rights globalising, diffusing around the world, still it is only an added, latest elements or reference to rights for a long history of additional rights. 

JENNIFER COOK
You've found that some of the most conservative constitutions belong to countries like the United States.

GILI DRORI
Indeed. One of our findings, in trying to understand the patterns by which the language of human rights is added onto constitutions - one of our findings has been that it is democratic and established western countries, meaning the countries that have these constitutions with a language of rights for a long time, these are the slowest ones to add the language of human rights. There are several explanations to this.One of them is the taken for grantedness. That in countries like the United States, there is a long, informal legal culture of protection of rights and, therefore, the universal version of rights, the language of human rights, does not formally need to appear there in order for there to be protection of these rights.A second explanation could just be that the political and legal mechanisms of these well-established democracies are just slower to make amendments to this sacred, national document that is a constitution.

JENNIFER COOK
Interesting use of the word sacred there because that's what it does become, doesn't it? There's so much is invested in it.

GILI DRORI
Indeed. And another argument that we make based on this research is that it is a ritual of nation statehood that we compose a constitution, and what is it in the constitution that we sanctify? It is because it is a ritual that we add to constitutions the language of human rights. It is the newest countries, the newest nation states, and the nation states that depend very much on others and want to appear as normal nation states - as members of the international community - it is these countries, in particular, that have the most expansive reference to human rights.

JENNIFER COOK
Now Gili, I'm dying to get to some examples of countries and their constitutions. Can we start by asking, which country, in your opinion, has the most progressive constitution?

GILI DRORI
By progressive, in our research, we mean those that have more references to human rights, to this universalistic language of how we approach rights. Let me go through the list of the top 10. Top 10 constitutions, by the mention of human rights per page - Bosnia, Serbia, Slovenia, Venezuela, Togo and the list goes on.The top 10 constitutions that have references to human rights, as a per cent of the other references to rights in general, because the constitutions are rich with language of rights - the rights of citizens, political rights, but also the rights of women, the rights of children, increasingly references are made to the rights of gays and lesbians, animal rights, environmental rights, rights to water, et cetera. So what is the ratio of references to human rights, in this field of rights. Again, the top 10 - Bosnia, Uganda, Serbia, Ghana, Benin.So here you see the pattern that it is those countries that are most susceptible to international influence, that are most eager to establish themselves as a modern nation state, and some of them - although they don't appear in the top 10, many of the countries are also post-Soviet countries. East European countries that have recently amended, recreated or redrafted their constitutions. It is these countries that, when they build a constitution, they imprint their constitution in the culture of global, civil society today and add a hefty amount of references to human rights.

JENNIFER COOK
Can a constitution then act as a kind of a buffer between a country and the global community, almost like a screen between them and the global community, or a way of entering that global community? 

GILI DRORI
Yes, there is very interesting work on this gap between the language of human rights and the practice of protecting human rights. Form the work of Emilie Hafner-Burton and Kiyoteru Tsutsui, we looked at the ratification by countries of international instruments of human rights - international treaties that protect rights - and compared them to the actual protection of rights by national courts or by the intervention of political and policing forces in a country. They show that there is a big gap there and it is actually the countries that ratified many of the international convention or treaties on human rights are actually the biggest violators of human rights. One of those has been Iraq, before the falling of the Saddam Hussein regime.

JENNIFER COOK
On Up Close, this episode we're speaking about the use of human rights language in the constitutions of nations around the world, with Associate Professor Gili Drori, from the Hebrew University of Jerusalem. I'm Jennifer Cook. Now Gili, in your paper, you mention Mongolia. Why is that?

GILI DRORI
Because Mongolia is one of those countries that has a constitution. When you read through it, you would not know that this is a country that only recently drafted its constitution. You would think that it is one of those western, well-established democracies. The language is very progressive. I can give you examples from other countries and we can play guess work and see if you could recognise who is the country that would have these kinds of phrases.I quote, "the state shall guarantee and respect the independence of non-governmental organisations which protect and promote human rights". No clue, right? I'll give you an example from another constitution and I quote, "Article three. A human being, his or her dignity, fundamental rights and freedoms, are an inalienable and ultimate value."

JENNIFER COOK
There we go, I'm thinking Switzerland.

GILI DRORI
[Laughs] Well, these were quotes from the Constitutions of Uganda and Armenia. Here is an expression of the way we draft constitutions, with the ritual of expressing our commitment to human rights. The language is very broad. The language is universalistic and it is very difficult to see the imprint of national heritage, of national political institutions, of any particularities of the nation state, for which this is the lead legal document.

JENNIFER COOK
So what you're doing is, you're taking that crucial first step of examining the language and looking at what it's actually saying and holding accountable really. You're shining a spotlight on that.

GILI DRORI
Yes. This comes from a larger research project on the expansion of the language of rights and my colleagues are looking at other expressions of this global discourse on rights, to see the expansion of national institutions like ombudsman, where citizens can come and bring their claims and not to a court but to a national agency. The expansion of human rights language in textbooks of schools, primary and secondary schools. So there are many ways by which a nation expresses this commitment to rights, and to human rights specifically. And all of these give us the impression of the age of globalisation, the twenty-first century tone of citizenship, global citizenship. But in each one of them, we also see a dimension by which people could read the sociological work, understand the trends, and then take their own lessons and hopefully act on it.

JENNIFER COOK
Gili, what is your overall view on the importance of constitutions, if they do tell us - and we've established that the values of a country - I'd like to ask you, how do you think the global community is looking? If you had to take a pulse check?

GILI DRORI
[laughs] Indeed, looking at national constitutions and looking, particularly, at the discourse of human rights as they are expressed in national constitutions, we do see processes that are transnational, that are cross national in nature. What we do observe is that the references to human rights are widespread. We also see that the references to human rights are either upon the previous notions of rights - political rights, civil rights, development rights, et cetera. However, what we see in the constitutions is that the references to human rights appear mostly in the preamble, in the general instructions, which means that the references at the moment are very general. They, at the moment, do not much establish detailed guidelines for legal institutions to act upon. So indeed what we see is a worldwide diffusion of notion of rights, that is extended to human rights. This is, from my perspective, a most hopeful trend, however we do know that we need to follow up at the next step. Even in this very symbolic sphere of constitutions, move the language of human rights from preambles, into those sections that establish grounds for legal precedence. 

JENNIFER COOK
That's so interesting. Let that language, what you're saying is, drop down, filter through to where it can really make a difference and do the best good, and then actually become action, so the words translate into action. Or at least, in the constitution, you've set up the means for that to happen.

GILI DRORI
Indeed.

JENNIFER COOK
Gili, thank you so much for joining us.

GILI DRORI
Thank you for inviting me and let me take this opportunity to acknowledge and also thank my partners on this research - Professor John Meyer, of Stanford University, and Professor Colin Beck, of Pomona College.

JENNIFER COOK
That was sociologist, Associate Professor Gili Drori, from the Hebrew University of Jerusalem. Gili was speaking to us about the extent to which the global language of human rights can be found in the constitutions of nations around the world. Relevant links, a full transcript and more info on this episode, can be found at our website at upclose.unimelb.edu.au. Up Close is a production of the University of Melbourne, Australia. This episode was recorded on Wednesday, 15 February 2012 and our producers were Kelvin Param and Eric van Bemmel. Audio engineering by Gavin Nebauer. Up Close is created by Eric van Bemmel and Kelvin Param. I'm Jennifer Cook, until next time, goodbye.

VOICEOVER 
You're been listening to up close. We're also on Twitter and Facebook. For more info, visit upclose.unimelb.edu.au. Copyright 2012, the University of Melbourne.


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