Critical human rights research

Abstract

What constitutes human rights research? This article provides an overarching understanding of what human rights research is, or could be, by applying the philosophical research paradigm of critical theory to the field. It argues that human rights research should adopt a critical stance, steering clear of both “activist” and “value-neutral” approaches, as these might impede progress in figuring out the best ways of safeguarding human rights. In contrast, the critical approach preserves the vital role of human rights as a critical corrective to prevailing practices. As such, critical human rights research is explicitly normative, emancipatory, and interdisciplinary. Besides outlining a specific mandate for human rights research, the article illustrates how existing research in this domain can be situated and comprehended within the framework of critical theory.

What sets the academic field of human rights apart from other disciplines, and what constitutes appropriate methodology and methods for human rights research? These questions have been debated since the establishment of human rights as an academic discipline, and have recently received a growing interest (Andreassen et al., 2017; Buerger, 2018; Rothenberg, 2019).

On one hand, the study of human rights has been acknowledged as an explicitly normative field in which the role of the researcher is to contribute to the improvement of human rights (see, e.g., Freeman, 2001). This understanding has been criticized as being “unscientific” in the sense of being biased and activist. On the other hand, many human rights scholars have made the case that the study of human rights should be value-neutral and apply rigorous scientific methods (Coomans et al., 2010; Landman, 2006, 2009; Roper & Barria, 2009). This understanding has been criticized as losing touch with the uniqueness of the field of human rights and for producing results largely irrelevant to the people facing human rights violations (Arstein-Kerslake et al., 2020; Freeman, 2001). Thorough academic research and deliberate advancement of human rights norms are thus typically seen as opposites (Andreassen et al., 2017; Arstein-Kerslake et al., 2020; Coomans et al., 2010; Landman, 2006; Roper & Barria, 2009).

In this article, I show that thorough academic research and the advancement of human rights, and hence normative research, are not opposites but can and should be aligned. I do so by situating human rights research within critical theory. Critical theory is a school of thought within philosophy and the social sciences encompassing a wide range of different and distinct theories and research approaches (Bohman, 2021; Rush, 2004). Critical theory is thus a research paradigm, a philosophical foundation and horizon on which to understand and situate one’s own research practice (including one’s application of methods and methodology).¹

Within the philosophy of human rights, a distinct critical theory of human rights—with roots going back to Immanuel Kant’s views on human dignity and rights—has in recent years made significant and specific contributions to the human rights canon by, for example, justifying human rights and offering unique perspectives on governance and cosmopolitanism (Lutz-Bachmann & Nascimento, 2016; Nascimento & Bachmann, 2018). In this article, critical theory is used more widely as the research paradigm argued to be particularly well-suited to diverse (theoretical and empirical) human rights studies. I argue that empirical and theoretical studies based on (and critiquing) human rights norms are what human rights research is (or should be) about. In the following, I use “critical theory” to refer to the school of thought, and “critical research” to denote the practical application of critical theory.

Common for all critical theory (see, e.g., Bohman, 2021) is that it is explicitly normative, serves the practical purpose of increasing human freedom in its many forms, is interdisciplinary, and connects theory to practice through the interplay between empirical research and conceptual (normative) reflection. Applied to the research field of human rights, I argue that human rights research should build on the explicit normative foundation of human rights, serve the practical purpose of contributing academically (as opposed to activistly) to the realization of the human rights, and encompass several subdisciplines within social and legal science, combining (normative) theory with empirical science. By situating well-known human rights scholarship within the framework of critical theory, I also show how existing human rights studies can be understood within a critical theory framework, and how critical theory enlightens our understanding of human rights studies.

I begin by briefly introducing what critical research is, as applied to the field of human rights. What distinguishes critical research from other research paradigms is mainly the role of theory in empirical research. Critical research does not only say something about what society is currently like; it also says something about how society should be, and it evaluates society from this explicitly normative perspective. To human rights scholars, the relevant normative perspective is that of human rights norms.

To better understand what critical (human rights) research is—its essence and its contrasting aspects—and to explain the necessity of adopting a critical research approach in the human rights domain, I proceed to outline and highlight the limitations associated with two alternative research approaches. First, I discuss what I categorize as “activist” research, which uncritically seeks to promote specific interpretations of human rights, neglecting fundamental academic principles in the process. Second, I delve into the most conventional approach, termed “value-neutral” research, which asserts that it is devoid of inherent values. Activist research has the aim of emancipation in common with critical research but fails to critically question the norms it seeks to promote (for example, by taken human rights law as given) and sidesteps important academic principles (i.e., the independence of the researcher) to promote the norms. I argue that activist research may, in fact, hamper progress in finding the best way of protecting human rights.

Value-neutral research shares critical research’s aim of explaining how the world is but stands in opposition to critical research by dismissing norms as integral to (social) research. I argue that within the framework of value-neutral research, human rights lose the function as a critical directive to current practices. Human rights research’s liberating potential is thus weakened, and the status quo may be enforced. For both the activist and the value-neutral approaches, the problems occur because they fail to critically question the underlying normative framework that shapes the production of research (that is, the connection between normative theory and empirical practices).

Having introduced critical theory and shown some of the flaws of two research alternatives, I move on to elaborate the philosophical foundations and practical application of critical human rights research. Throughout the article I give examples of human rights studies to illustrate the theorical points. I also explain how critical human rights research can be evaluated. As such, the article sets out a specific mandate for human rights research.

Introducing critical (human rights) theory

Critical theory is a school of thought within philosophy and the social sciences encompassing a wide range of different and distinct theories and research approaches (Bohman, 2021; Rush, 2004). Common for all critical theory (Bohman, 2021) is that:

1. It is explicitly normative;

2. It serves a specific practical purpose—that of increasing human freedom in its many forms; and

3. It is an integrative and interdisciplinary approach combining political philosophy and social science—that is, it connects theory to practice through the interplay between empirical research and conceptual (normative) reflection.

Human rights research can be situated within the scholarly field of critical theory in the following ways:

1. It builds on the explicit normative foundation of human rights;

2. It has the practical purpose of contributing academically to the realization of the human rights;

3. It crosses several subdisciplines within social and legal science and combines theory (conceptual reflection of human rights norms) with empirical science, drawing on (and contributing to) several academic fields. Critical human rights research thus combines internal critical reflection with methodological rigor.

Human rights can be defined as ethical standards for how governments should behave toward citizens. As human rights violations are rampant and no country fully protects all individuals’ human rights in practice, human rights provide a critique of status quo. As a critical discipline (challenging the received wisdom of the status quo and hence the powerful), human rights research thus has the potential of speaking truth to power and aiding in promoting the rights of the vulnerable.

The most distinguishing feature of critical research concerns the role of theory in empirical research. Generally speaking, there are at least three ways of thinking about theory in social inquiry: as a description of the structure of social reality that can be (more or less) true, as a framework for organizing empirical investigations of social reality that can be (more or less) useful, and as a critique of social reality that can be (more or less) justified (Jackson, 2010).

What critical theory has in common with conventional approaches is the concern with understanding social practices—that is, whether certain phenomena exist, under which conditions they occur, and what role they play (Skjervheim, 1964). However, in addition to being concerned with how social practices manifest themselves, a critical theorist also takes an explicit normative stand toward social practices by evaluating whether they are just and legitimate according to certain moral standards (Skjervheim, 1964). In other words, critical research does not only say something about what society is currently like, it also says something about how society should be, and it evaluates society from this explicitly normative perspective. Critical approaches thus combine all the three functions of theory mentioned above.

Because critical research combines all three functions of theory (description, framework, and critique), it contests the conventional disciplinary divide within social science, in which (political or social) theorists deal with normative questions, whereas social scientists deal with “objective” facts (e.g., see Toshkov, 2016). Importantly, to a critical theorist the critical (normative) aspect is not added as a mere choice; the normative aspect is inherent to social analysis (Bohman, 2021; Skjervheim, 1964). Thus, social scientists neither can nor should try to rid themselves of making normative observations. Elimination of norms will only lead to the replacement of other norms, although they might not always be visible as norms or values. In fact, the more dominant or widespread a norm is, the more internalized (less questioned) it will be among a large majority (Finnemore & Sikkink, 1998). What is considered objective will thus often represent the view of the majority, whereas the minority opposing the norm will be regarded as subjective. This also implies that what is considered objective often escapes critical scrutiny.

The important question is thus not about value vs. value free research, but about what values we would like to adhere to and how. As all research is driven by certain norms, human rights norms should be what guide human rights research. Human rights norms must themselves, however, also be critically questioned and their manifestations—for example, in human rights law—not simply be taken as given. This deliberative process is of utmost importance if we want to improve our understanding of human rights and, by implication, human rights protection.

I will now move on to show how activist research contrasts with critical research because it does not provide this critique of human rights and may sidestep some academic principles to advance human rights. I then show the potential pitfalls of value-neutral research, which is often seen as the (only) alternative to activist research. Together, the inquiries into the shortcomings of activist and value-neutral research point to why critical human rights research is needed and how it differs from other approaches.

The problems of ‘activist’ research

Human rights research has been criticized for being activist in the sense of lacking methodological rigor and internal critical reflection (Coomans et al., 2010). According to Andreassen et al. (2017, p. 2), many researchers within the field are more interested in the practical implementation of human rights norms than a critical investigation of the role of human rights in social and institutional contexts. In a similar vein, Coomans et al. (2010) have argued that many human rights researchers have been, or are currently, human rights activists who do not want to challenge conventional wisdom. The result is that much human rights research uncritically promotes human rights (Coomans et al., 2010). Thus, activist research shares with critical research the overarching goal of being emancipatory.

Both perspectives view research as a means of bringing about positive change in the world. Yet, activist research deviates from critical research in that it does not critically question the human rights norms it seeks to promote and lacks methodological rigor. By taking certain interpretations of human rights (i.e., how human rights are manifested in certain laws) as given, activist research mainly concerns itself with only two of the three functions of theory identified above—the descriptive and framework functions—and misses out on the critique function of theory.

As an example, some human rights researchers see human rights laws as “objective” truths that must be implemented (Coomans et al., 2010; Føllesdal, 2009). If human rights laws and their current interpretation are seen as the absolute definition of human rights, the role of law to protect human rights will be confused with the claim that law is the ethical grounding of human rights (Freeman, 2001, p. 128). As Freeman (2001, p. 38) stated, “The first is empirically plausible [a rival view claims that human rights are better protected by political culture, civil society and democratic institutions rather than law]; the second is ethically objectionable.”

Common to all academic disciplines is the pursuit of truth through systematic and transparent endeavors. If human rights research instead uncritically pursues the goal of supporting the implementation of certain absolute definitions of human rights and lacks methodological rigor, the credibility of human rights research as an academic field, including the validity of the findings described in human rights scholarship, will be undermined (Andreassen et al., 2017; Coomans et al., 2010; Landman, 2006).

It is hard to tell how widespread the problem of activist research is. The scholars who have pointed out the problem (such as Andreassen et al., 2017, Coomans et al., 2010, Landman, 2006) have not given concrete examples of published academic work that have these flaws, and the peer review process of the established academic human rights journals should, at least in theory, filter out sloppy academic work. However, in the next section I discuss an article that, for all its merits, has clear activist traits because it seems to treat human rights law as an objective truth and argues against researchers’ independent position. The article used as an example proposes a methodology for disability human rights research.

Example: Disability human rights

Persons with disabilities experience more and graver human rights violations than persons without disabilities (Elwan, 1999; World Health Organization and World Bank, 2011). Their human rights have historically been largely ignored, also within the human rights research community (Arstein-Kerslake et al., 2020; Skarstad, 2018b). Human rights research has thus much to contribute when it comes to disability human rights. To outline how human rights research can or should be conducted in the disability field is thus a needed and valuable goal.

Specifying a human rights-based methodology of disability research is the aim of a recent article in Human Rights Law Review written by several of the much-cited names within human rights disability research (Arstein-Kerslake et al., 2020). The authors claimed that the proposed methodology can also be applied to research on other minority groups and the ambition of the methodology is thus broad. They argued that the concept of academic neutrality can be used to maintain a status quo characterized by oppression and marginalization of minority groups. Instead of being neutral observers, researchers should “play a role in rights realisation and emancipation as opposed to marginalisation” (Arstein-Kerslake et al., 2020, p. 413). Thus far, the authors seem to be in line with the critical research approach. Unfortunately, in the pursuit of these valuable goals, Arstein-Kerslake et al. made two “activist” claims that are problematic to the academic discipline of human rights.

The first problem is that the authors wrote that disability human rights research must be consistent with the Convention on the Rights of Persons with Disabilities (CRPD) (UN General Assembly, 2006). In making this claim, they appear to be emphasizing the literal interpretation of the legal text, focusing on its specific wording rather than the broader and more abstract ethical principles that underlie the CRPD and all UN human rights conventions. They specified, for example, that “disability human rights research is not: Research that conflict with, undermines or contradicts the CRPD, even if it is claimed to be ‘rights-based’” (Arstein-Kerslake et al., 2020, p. 426). By doing so, the authors seem to have done what Freeman (2001) warned against: They confused the role of law as a means to protect human rights with the claim that law is the ethical grounding of human rights. The CRPD is (as is all UN human rights law) a politically negotiated document and, as such, it is not flawless. Treating it without critical scrutiny—that is, adopting an uncritical approach—could potentially hinder our progress in discovering the most effective ways to safeguard human rights for everyone.

To illustrate, the Convention on the Rights of the Child (CRC), adopted in 1989, was the first UN Convention to explicitly mention the rights of persons with disabilities. At the time, this was an important achievement. However, as the understanding of disability rights improved, scholars were able to point out that one of the two articles mentioning children with disabilities was actually delimiting the rights of children with disabilities compared to children without disabilities and that this was unjustifiable (Peters, 2007; Skarstad & Stein, 2018; UN General Assembly, 1989).² Although the wording of the Convention is still the same—and does, in fact, delimit the rights of children with disabilities—the article (and Convention) is not understood as such anymore: That is, the child rights committee explicitly applies an equal rights approach to children with and without disabilities (Skarstad & Stein, 2018). Hence, our understanding of human rights law is (and should be) evolving, and human rights law needs to be critically questioned if we want to continuously improve our understanding of human rights and, as an extension, human rights protection.

The second problematic claim the authors made is that “[t]he disability community must have ownership and guidance of research in all phases of the research process” (Arstein-Kerslake et al., 2020, p. 426). They also claimed, “The research problem is owned by disabled people” and that research should further “the interests of disabled people; and non-disabled researchers should be committed to those interests” (Arstein-Kerslake et al., 2020, p. 426). In fact, they said, the researcher must play a “subservient role to the community being researched” (Arstein-Kerslake et al., 2020, p. 418).

These are highly problematic claims. Most importantly, all academic researchers should first and foremost be committed to, and responsible for, searching for the truth.³ Academic research cannot and should not be owned in any way by specific (interest) groups. This would undermine the research’s credibility. Moreover, by claiming that researchers should be responsible to the disability community, Arstein-Kerslake et al. seem to imply that persons with disabilities have similar interests. Indeed, what does it really mean to be “responsive to the disability community,” and how is that different from being responsive to seeking the truth in a transparent manner? The article seems to implicitly (perhaps also unknowingly) be grounded in a belief in identity politics, which, ironically, according to many other human rights scholars, is the opposite of the universalistic rights-approach on which the CRPD is grounded.⁴

The problems of value-neutral research

To many scholars, the alternative to activist research is value-neutral research. Their argument is that values may play a role in the selection of research questions but should not influence any other part of the research process (Gerring & Yesnowitz, 2006; Landman, 2009). The researcher may bring values into the research of which he or she is not aware, but this bias should be filtered out (at least as much as possible) through the proper use of research design and rigorous scientific methods (Toshkov, 2016).

Value-neutral research concerns itself with only two of the three functions of theory identified above—the descriptive and framework functions—and, in contrast to critical research, misses out on the critique function of theory. In contrast to critical researchers, value-neutral researchers claim that a sharp distinction can and should be made between the normative (political/philosophical theory) and the empirical (facts/the world-as-it-is). The claim is that this separation is necessary also to the field of human rights if human rights research is to be regarded as a proper academic field. Normative human rights claims should be tested rather than assumed (Rothenberg, 2019, p. 186). Under the value-neutral empirical paradigm, human rights are thus not treated as a “fundamental philosophical category to guide ethical and political action, but rather, as an ideological construct to be explained by social science” (Freeman, 2001, p. 127).

Todd Landman, one of the most prominent political scientists in the human rights field, can be seen as a representative of the value neutral research position when he stated that the political science of human rights rests on the assumption that phenomena are “observable in ways that can be compared, measured, and examined in systematic ways to minimise bias and maximize interference” (Landman, 2009, p. 26). He claimed that there is a “strong role for empirical analysis to be used to address fundamental normative questions” (Landman, 2016, p. 1). As an example, on the interdependency of human rights (a core principle of human rights law and theory) Landman wrote,

[M]uch empirical analysis has yet to be done that confirms the existence of ‘mutually reinforcing and interdependent relationships between and among the different types of human rights … in the absence of systematic analysis the degree to which these relationships exist, such claims remain largely baseless. (Landman, 2006, p. 2; italics added)

Obviously, human rights can and do have empirical manifestations in concrete laws and practices and can as such be studied as empirical phenomena. However, human rights are also, and first and foremost, an ethical concept meant to guide policy and behavior. Human rights are ideals, and human rights theory tells us something about how things ought to be—they cannot be validated by how things currently are. As such, human rights theory stands in a critical relation to the facts of today.

Normative theory—as manifested, for example, in human rights law—does not have to be empirically tested to be true. You can empirically test whether the protection of different rights coincides in practice today, but you cannot empirically test whether rights should be understood as interdependent. To use another example, the Universal Declaration’s statement that all persons are born free and equal makes little sense as an empirical claim (Skarstad, 2018b; UN General Assembly, 1948). There are currently persons born into slavery or into an unjust class-based society, and many are deprived of autonomy. The Declaration’s proclamation of all persons being born free and equal, does not become any more or less true depending on empirical verification. Rather, such statements should be understood as ideals that inform how we should treat one another (Skarstad, 2018b). They are not baseless, as they are rooted in normative (theoretical) insights.

Normative theory—including our understanding of ideals such as dignity, equality, and justice—can (and should), of course, be critically disputed, their meaning can be changed, and our understanding of them can be improved—including through empirical research—but their meaning cannot be grounded in empirical research that concerns facts about the here and now.⁵

One of the dangers of focusing exclusively on empirical testing and believing in value-neutrality is that this approach risks weakening the transformative ethical guidance of human rights, basing it instead on the world as it currently is. If the status quo is not critically questioned, value-neutral social science research may reinforce it. Although research can improve social practices just by documenting results, this effect will depend on the normative-political context in which the results are presented. A report on the effectiveness of the beating of children to improve their manners would cause moral outrage in many countries today (perhaps leading people to demand better protection of child rights), but it would not have done so only 50 years ago (when it perhaps would have been validated as a common child-rearing approach).⁶

Value-neutral research thus risks to “reproduce prevailing patterns of power” (Booth, 1999, p. 32). Moreover, as Booth (1999, p. 47) claimed, “What purports to be value-free/objective/apolitical/positivist analysis can merely be a cloak for status quo thinking (and therefore values).”

I will elaborate more theoretically on why values always play a part in the social sciences later. In the next section, however, I illustrate that value-neutral research can contribute to preserving the status quo and is thus not value-neutral, by using the example of quantitative human rights and peace research.

Example: Human rights and peace⁷

Peace is commonly regarded as an ideal that societies should strive toward, and human rights and peace are usually believed to be strongly interlinked (Skarstad & Strand, 2016). The Universal Declaration of Human Rights (UN General Assembly, 1948, preamble), for example, states that the recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of … peace in the world.” Galtung, who is recognized as the founding father of modern peace research, also saw human rights as an integral part of the concept of peace, as he saw peace as being concerned with the justice of society (Galtung, 1969).

However, within current empirical quantitative peace research, defining peace as constituting a certain respect for human rights—what a good society consists of—is commonly regarded as normative, vague, and subjective, and hence unscientific (Gleditsch et al., 2014). The need for value neutrality and, relatedly, the need for empirical measurability implies that human rights (or justice) cannot be part of the concept of peace. Operationalizing and accordingly measuring peace (and what leads to peace) precisely becomes difficult if the concept is broad (Adcock & Collier, 2001). Armed conflict (or the lack thereof), however, is a readily observable metric. Mainstream empirical quantitative peace research thus usually defines peace as the absence of armed conflict and seeks to establish the conditions or causes leading to this absence (Gates, 2002; Sambanis, 2002). Within value-neutral research, measurability (science itself) takes precedence over the normative meaning of a concept (such as peace) (Beetham, 1999).

However, to define peace as the absence of armed conflict is not value-free. When justice is removed from the concept of peace, order or stability as such are the only remaining components and implicitly become the good to aim at, as the goal of the research is to identify the conditions (Xs) that create stability/order (Y) (Hvidsten & Skarstad, 2018). One implication from this is that it is not possible to separate just and unjust rebellion, because all violent conflicts are treated the same. As they both led violent rebellions at some point, there is no distinction between Osama Bin Laden and Nelson Mandela within such a framework (Hvidsten & Skarstad, 2018).

Although human rights are seen as distinct from the concept of peace within quantitative peace research, human rights can feature as potential explanatory factors for peace. However, within this metric, human rights policies or laws are reduced to an instrumental device that can be used by governments to increase the potential for stability (Hvidsten & Skarstad, 2018). One of Jakobsen and De Soysa’s (2009) research articles illustrates where this can lead us. Jakobsen and De Soysa (2009, p. 153) found that human rights violations do not increase the risk of armed conflict and, accordingly, they stated that “removing repression of empowerment rights should not be the main goal if one wants to reduce the risk of rebellion by ethnic groups.”

My point here is not to imply that the authors endorsed human rights violations to ensure stability—in fact, they immediately added that violating human rights is not normatively defensible. Rather, my point is that this policy advice is the logical extension of the results they achieved conducting value neutral research in this case. Yet, clearly, such advice is not value neutral. When order as such (the absence of armed conflict), in contrast to just order (peace as a concept containing social justice), becomes the focal point, the perspective that such research embraces easily (at least indirectly) becomes that of the governing authorities—that is, those benefiting most from keeping the status quo. Policy advice derived from such research is on maintaining any type of order, making it incapable of offering society truly value-neutral information and advice. A genuinely objective foundation, upon which politicians and others can base their actions in promoting peace, is not provided. As critical theory holds, empirical analysis always takes place in a larger political-normative context; value-neutrality is therefore not possible.

The underlying problem and how critical research provides a way out

Both activist and value-neutral research have valuable aims. Activist research is explicitly normative and aims to contribute to the improvement of human rights protection. Value-neutral research aims to apply rigorous scientific methods to establish facts. However, and despite usually being seen as two completely different research approaches, both downplay a critical assessment of the underlying norms driving research. This is particularly noticeable in the way human rights law is treated. Treating human rights only as how they are defined in human rights law⁸ (the activist approach), and treating human rights law as only being true if it can be empirically validated (the value-neutral approach), removes the deliberative process of continuously discussing what the right understanding of human rights are. In Freeman’s (2001, p. 128) words, such approaches “eliminate the concept of human rights as a critical instrument for the evaluation for laws.” They obscure the fact that human rights law presents the conclusion of certain arguments and that the source of these arguments is human rights theory (Freeman, 2002, p. 57).

Although human rights (can) have empirical manifestations, the philosophy of human rights is first and foremost a critical standard for evaluating empirical practices. The idea that all human beings are equal in dignity and rights was and still is a radical idea. Ideals are subject to critical debate and can, and should, be challenged, altered, and refined to enhance our understanding of them. Yet, this point seems to be overlooked by both activist research, in which human rights law is treated as the final answer to what should be done, and by value-neutral research, in which human rights law is treated as the final answer if (only) empirically verified.

If the continuous deliberative process regarding the correct understanding of human rights is omitted, both the value-neutral and activist approaches may, in turn, perpetuate a specific status quo, be it the current legal interpretation or the prevailing empirical situation on the ground. Promoting a specific interpretation of norms and implicitly asserting it as the standard for academic investigation, as in the activist approach, or contending that research should be devoid of norms, as in the value-neutral approach, may also exempt researchers from responsibility. Such claims suggest that the outcomes of their research are solely determined by an external standard, whether it be the law or “objectivity,” over which they have no influence.⁹

As noted, these problems occur because of the disconnect between, and the lack of discussion about, the underlying normative considerations driving research and the actual (often empirical) research. Critical theory is a solution to the problems, as it aligns normative (emancipatory) considerations and empirical (rigorous) research. Critical theory is explicitly normative, has an emancipatory function, applies scientific standards, and makes researchers accountable for their work. In the remaining sections of the article, I will elaborate on what critical theory is as applied to the field of human rights. As such, I outline a framework for what human rights research is or should be about. Importantly, this framework gives the normative and emancipatory ambitions of human rights research a philosophical—and scientific—basis.

Critical research: Philosophical foundations and practical purpose¹⁰

As noted, critical research combines all the three functions of theory (description, framework, and critique) and contests the conventional disciplinary divide within social science, in which researchers either deal with normative questions (social or political theorists), or objective facts (social scientists). To a critical theorist, the normative aspect is inherent to all social analysis (Bohman, 2021; Skjervheim, 1964). The philosophical position that social scientists neither can nor should try to rid themselves of making normative observations has important implications for what critical research attempts to do, and hence how it should be evaluated. In the next sections, I therefore introduce the philosophical underpinnings and purpose of critical research, applied to the field of human rights. I also explain how such research contributes academically (as opposed to “in an activist fashion”) to the realization of human rights.

What critical research aims to do

The belief that the normative-evaluative aspect of research—the critique—is inherent to social research is rooted in three interconnected ontological, epistemological, and philosophical-practical stances concerning the special nature of social inquiry: the nature of social reality, as constituted by practices determined by the self-understandings of participants; the character of social explanations as value-laden interpretations; and the intersubjective relation between the researcher and what is being researched (Hvidsten, 2019). Each of these elements will now be explained.

Social institutions and practices cannot operate without certain self-understandings of those who influence and take part in them (Skjervheim, 1964; Taylor, 1985, p. 93). Intersubjective meanings are constitutive of social reality, “brute data” do not make sense without them (Taylor, 1971, p. 29). Someone working in the field of human rights, for example, must have a certain understanding of what working with human rights entails and what a good human rights worker should do. These self-understandings shape the human rights worker’s practice. If the self-understandings change, then the practices will also (likely) change.¹¹ For example, Nobel Prize winner in economics Amartya Sen has argued that development should not be viewed merely as an advancement of metrics such as GDP but, rather, as an advancement of real freedoms and human rights that individuals enjoy (Sen, 1999). His views had considerable influence on the work of the UN Development Programme (2010).

The participants in social practices, however, may not have an explicit understanding of why they are doing things or why they perceive of things in a certain way. This is the role of theory. Within the social sciences, theory is an explicit formulation of what transpires in a social practice (Taylor, 1985). However, theories do not merely reflect the self-understandings of participants; they also seek to explain what is really transpiring and, as such, they may extend, reinforce, or challenge the self-understandings of participants (Taylor, 1985: 94). If an explanation of a practice is clearer than the lived interpretation of it, it would alter the behavior of the agents if they came to internalize the explanation as their own self-interpretation (Taylor, 1971, p. 71). Hence, theory is of practical importance in that it influences the way we act (Taylor, 1985). Just think, for example, about how our ideas of a just society have changed dramatically during the past 200 years and how our practices are influenced by such ideas. For example, the right to vote, women’s participation in the workforce, and homosexuals’ right to marry are supported by certain arguments (theory).

In the famous book Basic Rights (1980), Henry Shue argued that not only (a selection of) civil and political rights but also (a selection of) economic and social rights should be regarded as basic, because both categories of rights are necessary for subsistence and contain negative (noninterference) and positive (interference) duties (Shue, 1980). The book provided arguments that may inform better human rights practices. It has likely influenced the way UN treaty bodies perceive of human rights, as all human rights are now understood to contain both negative and positive duties (Gerald R. Ford School of Public Policy, n.d.; United Nations, n.d.).¹²

To a critical theorist, any “description” of social practices is an interpretation, and implicit to interpretations are certain normative attitudes (Bohman, 2021; Taylor, 1985). By applying a theory, a researcher is legitimizing a certain understanding for society (Skjervheim, 1964). Thus, instead of aiming toward value-neutral or value-free social research, critical research contests that such research is possible, and instead seeks to uncover and make explicit the underlying norms of social practices (including social theorizing; see Cox, 1981). To illustrate, this was what I attempted above when I argued that within quantitative peace research, empirical measurability takes precedence over the meaning of the concept of peace, with the implication that the meaning of peace is reduced to order (which is not value neutral).¹³

According to Bohman (2021, n.p.; building on Horkheimer, 1993), a critical theory must “explain what is wrong with current social reality, identify the actors to change it, and provide both clear norms for criticism and achievable practical goals for social transformation.” Hence, the critique in critical research is not simply negative but also positive or constructive (Bohman, 2021).

Accordingly, within the human rights field, academic contributions can, for example, include a negative part that explains how existing understandings of human rights ideals or practices devalue or exclude minority groups from full human rights protection, and a positive part that shows how our theories and practices can be improved. Within the human rights field, it would be especially relevant to focus on actors who have a particular responsibility to protect human rights (in particular, the UN human rights treaty bodies and the states parties to the human rights conventions). The norms and standards for criticism (which should be explicit and may, of course, also be subject to criticism) can, for example, be the human right norm of “equal” rights.

One example of such literature is Kimberlé Crenshaw’s work on intersectionality. Crenshaw showed how women of color can be left with no justice if gender and race are treated separately under discrimination law (Crenshaw, 1991). Another example is the UN-ordered report, written by several academics, entitled “The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability” (Quinn et al., 2002). The report shows how persons with disabilities have been excluded and how they can be included in the human rights protection mechanisms of the United Nations.

Although critique is a defining element of critical research, no inquiry can critique all concepts. Researchers, for example, are bound by language loaded with reflections of earlier generations, and any analysis needs some stable elements (Skjervheim, 1973). Within a specific human rights research contribution, some common human rights norms can constitute such stable (noncritiqued) elements. Moreover, while critical theory combines (normative) theoretical development with empirical inquiry, not all academic articles need to contribute both theoretically and empirically to the field yet should be informed by and operate within the broader critical theory framework.

When researchers (or others) treat social structures as if they are given and unchangeable, they are reifying or naturalizing social structures (Berger & Luckmann, 2011). By doing so, the researcher is, albeit often unconsciously, reinforcing and legitimatizing the social practice in question (Skjervheim, 1964; Taylor, 1985). The values inherent in many social practices can, however, be so deeply entrenched that they appear “natural.” This entrenchment makes them difficult to become aware of and even more difficult to critique (Skjervheim, 1964). As noted, at the time the Convention of the Rights of the Child was created, the degradation of persons with disabilities was so common that formulations that did not give children with disabilities rights on par with children without disabilities were not noticed. At a certain point, slavery was considered the “natural order of things,” as was denial of women’s full citizenship, and anyone criticizing the practices and arguing for a different type of system was fiercely opposed.

A controversial topic in disability human rights is the right to self-determination of persons with intellectual disabilities. As noted also by Arstein-Kerslake et al. (2020), the “fact” that persons with intellectual disabilities cannot have the right to self-determination is often regarded as “obvious” (Fiala-Butora, 2015; Nickel, 2007, p. 37). Guardianship practices have existed for nearly 2,000 years (Fiala-Butora, 2015). Recently, however, scholars in the disability and human rights field have begun to question guardianship practices and to search for alternatives (see Arstein-Kerslake et al., 2020; Dhanda, 2007; Fiala-Butora, 2015; Skarstad, 2018a).

Critical theory holds that social scientists are intersubjective participants in the society they study (Skjervheim, 1976). Social scientists are observers of society, but they are not detached observers. Research is a social practice, and science is an institution within society (rather than external to it). As such, it is in dialogue with society. This dialogue is explicit when researchers recommend how responsible actors can improve current practices—as, for example, when peace researchers give advice on how to maintain social stability or order.

Because research is a social practice operating within society, research is necessarily also guided by norms. For example, in their seminal article, “International Norm Dynamics and Political Change,” Finnemore and Sikkink (1998) noted how International Organization (one of the top political science journals) during its first 50 years of existence (1947–1997) had published only one article on any issue related to gender or women. They did not suggest that editors self-consciously rejected articles on gender-related topics; rather, they said, “we know a strong norm is in effect when it does not occur to authors to write on the topic or submit articles because it is not generally understood as an appropriate topic” (Finnemore & Sikkink, 1998, p. 894).

As noted, the literature on the human rights of persons with disabilities is limited. Doing research on persons with disabilities (or other minorities) within social science is thus a way of empowering persons with disabilities by making them less invisible, and this aligns well with the emancipatory purpose of critical research (Bohman, 2021). Such research is important in terms of opening up for a social science that does not reproduce the silencing and exclusion of persons with disabilities that are often widespread in the practices social scientists often study (Fiala-Butora et al., 2014; Hawkesworth, 2006; Priestley et al., 2016).

Finally, and related to the belief that any social explanation is value-laden, critical research also holds that it is impossible not to have a perspective. Any theory that presents itself as divorced from time and space becomes even more important to critique so as to lay bare its concealed perspective (Cox, 1981, p. 128). A “[t]heory is always for someone and for some purpose” (Cox, 1981, p. 128; italics in the original). Research on bureaucratic efficiency or on social stability, for example, may be particularly beneficial for ruling governments, who want an effective bureaucratic apparatus to implement their decisions, and who want an absence of social unrest that threatens their position. Whether bureaucratic efficiency or stability is beneficial for citizens, however, depends on what the government is implementing (e.g., Jim Crow or democratic laws), and whether the current society is just (e.g., both North Korea and Norway are usually considered stable). As “[t]heory is always for someone and for some purpose” (Cox, 1981, p. 128; italics in the original), human rights research should be for the purpose of contributing academically (as opposed to in an activist fashion) to the realization of the human rights.¹⁴

How critical research can be evaluated

How precisely do we contribute academically (as opposed to in an activist fashion) to the realization of human rights? The explicitly normative and perspective-based claims of critical theory entail that the research ideal of objectivity—if interpreted as a commitment to being value-free and not having a perspective—becomes problematic. Critical research cannot be validated according to whether it is “objective” in these terms, because this is not what it attempts to achieve; indeed, it contends that objectivity, in this sense, is impossible. However, critical theory holds that social research can be validated according to other criteria.

First, because social reality is constituted by practices determined by the self-understanding of participants, an important criterion for evaluating research is whether it enlightens practices or makes them more clear-sighted (Taylor, 1985)—that is, whether the research makes (more) sense of practices that were previously strange, puzzling, or not accounted for (Taylor, 1971, p. 5).¹⁵ As Hawkesworth (2006, p. 165) stated, part of the justificatory force of a theory is derived from its “capacity to illuminate existing social relations.” To critical researchers, the evaluation of whether research enlightens practices is always measured against some normative standard. For example, someone who evaluates a theory according to whether it explains the world “as it is” uses the status quo as the normative standard (Booth, 1999). Similarly, someone who evaluates a theory according to whether it explains well how individual freedom, justice, and autonomy are to take place uses human rights as a normative standard.

Second, because an important purpose of critical theory is to increase human freedom in its many forms (Bohman, 2021), and theory always will strengthen one way of acting over others, critical theory should be evaluated according to whether it improves practices. In Taylor’s (1985, p. 111) words, “the proof of the validity of a theory can come in the changed quality of the practice it enables.” In human rights research, the human rights theory used, and the principles and recommendations applied, can thus be evaluated according to whether their application to practice would likely lead to an improvement for particularly vulnerable citizens.

Third, because all research is for someone and for some purpose (Cox, 1981), research should be evaluated according to whether it is explicit on its own perspective and set of values. Researchers should be aware of their own role and the interests they might be serving (Grue, 2015). The normative foundation of the research should be explicit, and in empirical research, for example, one should seek to make as explicit as possible the normative standards used for evaluating and drawing conclusions about the practices concerned (the empirical data).

Critical theorists hold that if one is aware of one’s own perspective, it becomes easier to transcend one’s particular departure point and to adopt another, improved perspective—more specifically, a better informed and more enlightened perspective. In a similar manner, a position is superior to another if one from this position can understand not only one’s own position but also that of one’s opponent, but not the other way around (Taylor, 1971, p. 47).

By understanding your own perspective, you have a new perspective because you cannot be without a perspective (i.e., your perspective is understood from a perspective; see Kierkegaard, 1980). Indeed, as a result of good academic inquiry, the perspective of the researcher will not be the same as when she or he started. Hence, although all research occurs from a certain departure point, sophisticated critical research transcends this starting point and, as other theories do, seeks to lay claim to some general propositions (Cox, 1981). It is in this sense that we can talk of objectivity in social research. Hence, general propositions are objective in the sense that they do not simply represent the perspective of the specific researcher, but lay claim to some general truths about society. The perspective inherent to the research can thus be evaluated according to its level of sophistication.

Crenshaw’s research on intersectionality illustrates this point. She explained how, after both personal experience and studies on equality and nondiscrimination, she came up with the concept of intersectionality—a term used to understand how different aspects of a person’s identity in combination can create disadvantages (or advantages; Crenshaw, 1991). Intersectionality is now a concept widely used within human rights and nondiscrimination law, and is understood as a more sophisticated and better way of analyzing discrimination than the earlier approach of looking at different identity aspects separately.

Fourth, like all social research, critical research should also be judged according to the quality of its arguments. The superiority of a proposed account is provided by reasons—that is, through rational arguments supporting the proposed account (Hawkesworth, 2006, pp. 165–166). Although normative theory cannot be tested, it can be better informed. Sound theory must build on sound empirical knowledge if it is to be relevant and not utopian (Taylor, 1985). Claims should follow logically from the defined set of values, and the application of a theory can be judged according to whether the argumentation and analysis follow from defined premises and is coherent (Taylor, 1971). Additionally, all research should be evaluated according to whether it arrives at conclusions transparently (Christensen et al., 2011).

Fifth, the intersubjective perspective of critical research has some practical implications regarding how researchers should treat their research subjects: Researchers have a certain responsibility toward others in society, especially those being subject to the research; researchers must legitimize their practice; and as participants in the society they study, researchers are also bound by the theory they apply (Skjervheim, 1964).

For example, if the theories you draw on and develop place much emphasis on the importance of including persons with disabilities, you, as a participant in the society you study, are also bound by this normative consideration. This does not imply, as Arstein-Kerslake et al. (2020) wrote, that the disability (or any other) community owns your research, but their suggestion of having a disability advisory board is a good one. Throughout the research process, one can then seek to listen to persons with disabilities and to their experiences, particularly through their representative organizations, and also of course by reading academic literature from the disability studies field—a field with explicit “disability perspectives.” This does not compromise the independence of the researcher. Listening to people and different perspectives makes the researcher better informed and should be an ethical requirement when the research concerns matters that affect the group one is studying.

Conclusion

Since the establishment of human rights as an academic discipline, scholars have debated what makes the field of human rights unique and, accordingly, what methodology and methods constitute human rights research. This article proposes a common framework for human rights research by applying critical theory to the field of human rights.

I have argued that human rights research should build on the explicit normative foundation of human rights, serve the practical purpose of contributing academically (as opposed to in an activist fashion) to the realization of the human rights, and encompass several subdisciplines within social and legal science, combining (normative) theory with empirical science.

I have shown how critical human rights research deviates from and is a better option than the activist or value-neutral research alternatives. In contrast to these alternatives, critical human rights research aligns normative development with rigorous empirical research. It preserves human rights function as a critical directive to current practices, while at the same time continuously discussing what the right understanding of human rights are.

Critical theory, obviously, comes with its own challenges. To some, it may be hard to accept critical theory’s premise that not only are there certain moral standards that can be reached by human thinking, but also that some interpretations of moral standards are better than others, or to be open to the fact that human rights, as we understand them today, may not be the best way to go about increasing justice. Critical research also does not come with a clear metric for evaluation. Theory is not meant to mirror the world as it is but to say something about how it should be, and this “should” is also a moving target. Despite such challenges, I have made the case for critical human rights research. And by doing so, I have set out a specific mandate for human rights research.

Acknowledgments

Many thanks to Jonas Bergan Dræge, Andreas Hvidsten, Henry Allen, and two anonymous reviewers for very helpful comments.

Additional information

Notes on contributors

Kjersti Skarstad

Kjersti Skarstad is an associate professor at the Department of Political Science and International Relations at Oslo New University College. Her research focuses on human rights, disability, equality, democracy, and peace. She has worked extensively on how human rights ideals can be applied to political practices, including advising government departments and civil society organizations.

Notes

1 Positivism is an example of a competing philosophical research paradigm.

2 The rights of children with disabilities are subject to more stringent state resource constraints. There is no duty to ensure that all children with disabilities have the right to education, and their integration is narrowly envisioned (Peters, 2007).

3 The truth is, however, in social research, also normative. This point will be made clearer in the section on critical research.

4 The main problem here is not an (implicit) endorsement of identity politics, but that the authors do not seem to be critical to and open about some of the premises of their arguments.

5 In its pure form empiricism—the ideology that there is no principal distinction between natural and social science—and the ideology of human rights are incompatible. To see no fundamental distinction between natural and social science is to, at the same time, see no fundamental distinction between things (physical objects) and people (subjects; see Skjervheim, 1976). This distinction is the very foundation of human rights thinking: No person should be treated as a means to something else, but as an end in him- or herself (Kant, 1797; UN General Assembly, 1948). In itself this shows that applying the ideology of natural science on society is not a value-neutral activity. In this article, however, I do leave the meta-philosophical questions aside and focus on the more practical-philosophical implications of adhering to “value-neutrality” in social science.

6 How value-neutral research may reinforce the status quo is explained further under the section titled, “What critical research aims to do.”

7 This example draws on Hvidsten and Skarstad (2018).

8 Or in the political origins of law.

9 Yet, as will be made clearer soon, in the social sciences, facts are always understood and evaluated according to evolving normative standards, which researchers themselves influence (if only by legitimizing the usefulness of the standards by applying them).

10 This section draws on my PhD thesis (Skarstad 2018c).

11 It may of course be that external factors prevent actors from making big changes to their practice even though they have a new self-understanding. Moreover, practices also influence ideas, an aspect I pay less attention to here.

12 States should respect (negative duty of noninterference) and protect and fulfill (positive duties of interference) human rights.

13 There are, of course, empirical findings that by themselves, outside of any context, are simply objective facts (e.g., that 20% of all men within a country voted for a particular political party, that the unemployment rate in country X is 30%) and researchers have a duty to get such facts straight. However, social science is much more than fact-finding. If it was only about fact-finding, all evaluations and interpretations would be left to politicians or other clients, and the job of the academic would simply be data collection on their premises. (This is, unfortunately, the only option that is given to researchers in some highly repressive countries.)

14 In the same way, research on peace, democracy, and the climate may have an explicit purpose of strengthening these categories.

15 According to Taylor (1971, p.) we can only convince others that our interpretation is correct or better through the use of arguments or by way of explaining our interpretation (of social reality) better. If we cannot convince others, we may start to doubt our own understanding: Perhaps we are wrong in the sense of being locked into a circle of illusions.