History, Geography, and Rights: A Response to Chilton and Posner
UVA Law Faculty Affiliations
Professors Chilton and Posner argue that a major predictor of contemporay human rights practices can be found in states' own distant pasts. Countries that faced adverse geographic, demographic, or institutional conditions centuries ago tend to have worse human rights practices today than those that faced favorable conditions. These conditions can affect contemporay human tights practices regardless of modern-day interventions, such as international human rights treaties.
This claim is important, but it also leaves many questions unanswered. This response Essay focuses on two such unanswered questions. First, Professors Chilton and Posner do not theorige the mechanisms through which historical conditions affect contemporay human rights practices. This Essay draws on the development economics literature to articulate some preliminay hypotheses on how fixed geographic and historicalfactors can affect contemporay human rights. More generally, it suggests that, if we want to develop a research agenda that incorporates histoU into our understanding of contemporag human rights practices, we need theof to explain how fixed historical and geographic factors affect contemporay human rights.
Second, Chilton and Posner do not address whether historical trends can be reversed. This Essay focuses on this question by drawing on the concept of criticaljunctures. Critical junctures are transformative moments in a nation's histoy during which there exist opportunities to reverse deeply rooted historical trends. In the spirit of Chilton and Posner's article, it takes seriously the idea that histoU matters. But unlike Chilton and Posner, who focus on path dependence, the idea of critical junctures suggests that there exist opportunities for change. This Essay illustrates the potential importance of critical junctures by exploring the development ofgay rights in Argentina and South Africa, two countries with long histories of conservative sexual norms and repressive anti-gay laws, which nonetheless became global trailblaZers on gay rights. These case studies provide important insights into the pathways through which historical trends can be reversed. This Essay concludes that, if human rights scholarship is to take histoU seriously, it should include the study of criticaljunctures, and notjust path dependence.