1. Introduction: Anxiety about human rights inflation
Do we have too many human rights? The question keeps resurfacing in debates on human rights. This is by no means self-evident: we might just as well be asking, for example, whether we have too few human rights,Footnote 1 or whether the human rights we do have or those we could have serve the purpose we want them to serve. We might ask whether human rights can lead to meaningful social transformation,Footnote 2 whether they have become primarily tools of governmentality,Footnote 3 and how this relates to whether, how, and which rights claims should be raised. And yet, the question of whether we have too many human rights lurks underneath every debate on the substantive merits of a particular human right or a particular approach to human rights as a whole. For if having too many human rights is undesirable, then this might constitute an argument against making new human rights claims or recognizing certain kinds of claims as human rights – not a decisive argument, necessarily, but at any rate an aspect to consider in making decisions about which rights to claim or recognize.
Worries that we might have too many rights are often raised by pointing to concerns about the so-called ‘inflation’ of human rights.Footnote 4 James Nickel has summarized this as the concern that ‘positing too many rights’ will lead ‘to the devaluation of the currency of rights’.Footnote 5 The number of human rights, in other words, is thought to be inversely connected to their value: if the prior rises, the latter may sink. To preserve the value of the human rights project as a whole and prevent ‘trivialization’, as Anne Peters has put it,Footnote 6 certain claims may not be admitted into the circle of what is rightfully called human rights: ‘real’ human rights must be distinguished from ‘supposed’ human rights.Footnote 7
Worries about the inflation of human rights are not new – indeed, they can be traced back at the very least to mid-century responses to the Universal Declaration of Human Rights (UDHR). In one of the foundational texts delineating the inflation objection, Maurice Cranston argued, in 1967, against the inclusion of welfare rights in the UDHR. One of the primary rationales underlying his argument was that:
the effect of a Universal Declaration which is overloaded with affirmations of so-called human rights which are not human rights at all is to push all talk of human rights out of the clear realm of the morally compelling into the twilight world of utopian aspiration.Footnote 8
Over the course of its career, since Cranston and others raised it in reaction to the UDHR, the popularity of the inflation objection has by no means waned. If anything, it may even have risen in response to the increasing popularity of rights language itself. Hurst Hannum, for example, argues that human rights ‘are on the verge of becoming a victim of their own success’ and that the proliferation of new rights stands in the way of reinvigorating human rights for the twenty-first century.Footnote 9 The number of potential human rights – both new and old – to come under the scrutiny of the inflation objection, then, is immense.
This article sets out to assess the inflation objection, to disentangle it from other objections to human rights expansionism,Footnote 10 and to offer a critique of the way in which it draws boundaries around some human rights at the expense of others by constructing the former as valuable and the latter as threatening. The inflation objection thus shifts the focus away from awkward questions which could be raised about human rights and the boundaries drawn around them. Which human rights should be protected and which rights threaten them? Who decides what counts as a ‘real’ human right and what doesn’t? Who profits from the way in which ‘real’ human rights are thus constructed?
In particular, I will argue below that it is currently dominant understandings of human rights which are further strengthened by the inflation objection. This is not to imply that there is a singular and unified ‘mainstream’ understanding,Footnote 11 but merely that the many intersecting power structures at play within human rights discourse combine in such a way as to render certain elements more dominant than others within current institutions.Footnote 12 This may include, for example, capitalist, (neo)colonial, heteropatriarchal, and cis-normative elements.Footnote 13 In what follows, my focus will be primarily on those elements within dominant understandings of human rights which reflect and support, or at least do not challenge, commodification and market freedom: these tend to be understood as ‘real’ human rights, while welfare rights and other rights claims geared at far-reaching transformation tend to elicit the inflation objection. Since such an approach draws heavily on a long tradition of liberal human rights theory but also resonates specifically with neoliberal approaches to human rights, I will mostly describe it as ‘(neo)liberal’.Footnote 14 In sum, then, I will argue that the inflation objection has conservative effects: it makes it more difficult to raise challenges to the (neo)liberal status quo.
My argument will proceed as follows. Section 2 serves as an entry into the topic, clarifying the meaning I assign to the ‘inflation objection’ compared to related notions such as human rights expansionism or proliferation, explaining why I think it matters, and setting it in relation to different perspectives on human rights in general. I then draw on human rights literature in which the inflation objection is invoked to explore a number of questions which arise as to its scope, implications, and ultimately, its politics. I begin by outlining the scope of the inflation objection, comprising both the creation of ‘new’ human rights and the interpretation of previously recognized human rights, so as to demonstrate both its potentially immense reach and the dynamic of boundary-setting which comes with it (Section 3) The following section connects this dynamic to the search for that boundary: it asks, in other words, which substantive or procedural restrictions on human rights follow from the inflation objection (Section 4). My argument will be that the inflation objection is characterized by a formal emptiness which means that it does not, and indeed cannot, by itself, hold answers to this question.
The formal emptiness of the inflation objection does not, however, mean that it is devoid of effects: despite its inability to generate closure, it does generate a sense of closure by drawing strict boundaries around the corpus of ‘real’ human rights. I will call the approach to human rights which this implies a ‘mindset of gatekeeping’ and explore the way it entrenches dominant, (neo)liberal understandings of human rights (Section 5). It does so, I suggest, by virtue of several interrelated effects. For one thing, it distributes authority to decide on human matters in a certain way, positioning rights claims raised by activists or social movements as threatening and state-centred institutions as those responsible for sifting out ‘true’ human rights (Section 5.1). Secondly, the anti-inflation mindset generates scepticism as to any human rights claims which have significant potential for social transformation, thus strengthening understandings of human rights which do not challenge (neo)liberalism (Section 5.2); and, thirdly, it entrenches the very notion of human rights, thus understood, as particularly fundamental, underlining the superiority of human rights vis-à-vis other forms of morality or social justice (Section 5.3). Differently put, the anti-inflation mindset constructs (neo)liberal understandings of human rights as superior and challenges to the status quo as marginal.
In light of this, my conclusion is that the inflation objection should best be set aside. This does not mean that more human rights are always better or that there cannot be other objections to rights expansionism, but simply that a mindset influenced by the inflation objection is not a helpful way of assessing human rights for those interested in transformative politics. I will close by briefly sketching what I call a ‘mindset of wonder’ as an alternative to the anti-inflation mindset: we can understand human rights claims outside of dominant understandings not as a threat, but as a chance to wonder at the status quo and reflect on what should be changed in the world (Section 6).
2. Introducing the inflation objection
To begin, I would like to dwell briefly on the assumptions undergirding my critique of the inflation objection and the way in which I approach it. First, a few clarifications on terminology and its implications. The term human rights inflation is sometimes used interchangeably with related terms such as human rights expansionism or human rights proliferation, usually with a negative connotation.Footnote 15 My focus here is specifically on human rights inflation, which is the term that most precisely captures the worries I introduced above: that positing too many human rights will lead to a devaluation of human rights as a whole.
Given the connections to (neo)liberal understandings of human rights which I hope to demonstrate in what follows, it is perhaps telling that the inflation objection is so often couched in terms drawn from economics: the ‘value’ and ‘devaluation’ of human rights, human rights as ‘currency’,Footnote 16 and of course the term ‘inflation’ itself. The debate on human rights inflation could thus be considered a particularly transparent manifestation of what Upendra Baxi has described as ‘human rights markets’: that increasingly, ‘and in mimetic relationship with high economic theory, human rights movements organize themselves in the image of markets’ as they produce and reproduce symbolic goods and struggle for resources.Footnote 17 Differently put, there may be significant linkages between social values such as human rights and ‘value’ in the economic sense.Footnote 18 These linkages also speak to a burgeoning literature that understands neoliberalism not simply as an amoral ideology based only on economic rationalities, but rather foregrounds the distinctive moral and legal foundations – including particular understandings of human rights – which neoliberals have built to ensure a competitive market and price stability.Footnote 19
Insofar as I speak of human rights expansionism (or human rights proliferation), I am referring to the more general perception that there are ‘many’ human rights, and that the corpus of human rights covers an extremely broad range of subject-matters.Footnote 20 In the terminology I adopt, then, human rights inflation is one possible reason to stand opposed to human rights expansionism. This limitation of the scope of my argument is crucial. There are many other objections commonly raised against human rights expansionism, and often intermingled with concerns about inflation: that human rights language is not well suited to respond to certain social problems for example, or that the broad reach of human rights depoliticizes the underlying issues by virtue of increasing legalization and judicialization which come with it.Footnote 21 I do not attempt to argue against these other objections here – in fact, I agree with many of them.Footnote 22 My aim, rather, is to disentangle the inflation objection from other possible objections to human rights expansionism and consider its implications and effects on its own merits.
One way in which the inflation objection functions differently from other objections to rights proliferation is that, while the latter often share ground with more general critiques of human rights,Footnote 23 the prior implies a positive stance towards the notion of human rights as such. As Charles Beitz has noted, ‘the expansion of the scope of international human rights doctrine’ can be a cause of concern ‘[e]ven among those who consider themselves friends of human rights’.Footnote 24 I would go further: concerns about inflation are likely to be prevalent particularly among those sympathetic towards human rights – for worrying about the devaluation of human rights assumes a positive stance towards the concept of human rights as such.Footnote 25
My intention here is not to argue for or against a positive stance towards human rights as such; accordingly, I am not aiming to intervene in the long-standing debate as to whether and how it is desirable to make use of human rights language when aiming for a transformative, left-wing politics.Footnote 26 For present purposes, I will instead take as a given that human rights continue to be a highly relevant language (of governmentality, but also of resistance) in practiceFootnote 27 – an ‘undeniably empirical element’ of the world, as Florian Hoffmann has put it.Footnote 28 My assumption is therefore that the way in which human rights discourse is shaped – including, inter alia, by the inflation objection – holds practical relevance and is therefore worth engaging with. However, this is not to say that my argument in what follows is politically neutral vis-à-vis the notion of human rights: to the contrary, my goal is to show how the inflation objection focuses on an abstract notion of the ‘value’ of human rights rather than the specific privileges, power constellations, and struggles which underlie them.Footnote 29 Accordingly, my suggestion would be that those of us invested in transformative politics and challenges to the (neo)liberal hegemony should be wary of this kind of ‘devotion’ to the notion of human rights.Footnote 30
I will consider the inflation objection primarily through an analysis of scholarly literature on human rights, since it is in that context that it is most often voiced.Footnote 31 To give a counter-example: courts or quasi-judicial bodies, to my knowledge, barely ever refer explicitly to concerns about inflation in their processes of justification. This is hardly surprising since they usually wish to present themselves as focused on legal interpretation (is a certain law or practice a violation of the human rights document at issue according to legal standards?) rather than broader political considerations (will a certain interpretation contribute to a devaluation of human rights as a whole and does this matter?).Footnote 32
I do not think, however, that the relevance of the inflation objection is consigned to scholarly works. To stay with the example of courts, they may not explicate the inflation objection in their processes of justification, but it may well influence judges during the processes of interpretation leading up to their judgments.Footnote 33 I will elaborate further on this idea of ‘influence’ on decisions (whether by courts or other actors) below, by reference to the inflation objection as a mindset from within which human rights issues may be approached.Footnote 34 At a more general level, my assumption is simply that conceptualizations of human rights developed, inter alia, in scholarly or theoretical works, are not separable from the power relations which structure the everyday practice of human rights. Through the lens of ideology critique, Susan Marks has succinctly captured this assumption by arguing that ‘analyses affect outcomes, knowledge is bound up with power’.Footnote 35 If we understand neoliberalism as an economic rationality that is not as such amoral but rather consciously and deliberately buttressed by the ‘power of ideas’Footnote 36 to ensure the smooth functioning of the market, as mentioned above, then a critique of neoliberal ideology becomes all the more important.
In structuralist terms, one might say that my aim is to consider the inflation objection as one of many elements which form part of the ‘underlying world of beliefs that controls our institutional practices’ insofar as human rights are concerned.Footnote 37 My motivation for discussing the inflation objection stems from the sense that it paints a picture of human rights which I am uncomfortable with, one which locks in certain human rights as worth protecting from devaluation or trivialization while simultaneously drawing a hard line around them and raising scepticism about other (claims to) human rights. It constitutes, in other words, one part of a ‘world of beliefs’ which I think is worth making explicit and challenging.
Of course, to speak of ‘the’ inflation objection belies the many different ways in which it has been and can be raised, even if we restrict our purview to the literature on human rights.Footnote 38 Human rights themselves are multidimensional, forming part of political, moral and legal discourses;Footnote 39 accordingly, theories of human rights have been developed in many different disciplines and with very different points of emphasis.Footnote 40 I do not think that these distinctions carry particular weight in the present context since the basic contours of the inflation objection and (neo)liberal ideology, as just described, cut across academic disciplines. It is worth noting at the outset, however, that the kind of boundary-drawing which I take the inflation objection to effect reinforces ways of thinking already present with particular force in legalized human rights discourse and law more generally: the idea that there is a clear boundary between human rights violations and permissible state conduct,Footnote 41 and ultimately between law and politics.Footnote 42 It comes as no surprise that those who invoke the inflation objection also argue that ‘the status of human rights as law needs to be protected and that the distinction between legal obligations and other obligations of a moral or political nature needs to be maintained’.Footnote 43 The policing of law’s boundaries, then, will haunt the discussion that follows even as my primary focus is on the boundaries of human rights more generally.Footnote 44 That law should play such a role is perhaps unsurprising, given the central role it plays within neoliberalism as a vehicle for articulating political claims.Footnote 45
Finally, a word on method. I have labelled the analysis which follows a ‘deconstruction’, a label I use somewhat hesitantly given the manifold different expectations which it may invoke, some of which I will certainly not live up to here (as the mere mention of ‘method’ makes clear). I nonetheless take the label to be useful, primarily for two reasons. First, it has been taken up in some international legal scholarship in a way which draws attention to the structuralist elements of analysis mentioned above.Footnote 46 Second, and more importantly, it invokes a sense of the dynamics involved in certain forms of argument which very accurately captures my experience while trying to make sense of the literature invoking the inflation objection as it oscillates between different terms and assumptions.Footnote 47 If, as I will argue, the inflation objection constructs some categories (of human rights, or human rights themselves) as superior and others as marginal in a way which has conservative effects, then there is hope in the fact that these hierarchizations are not static but rather engaged ‘in a more unsettled and dynamic tacit relation’.Footnote 48
3. The scope of the inflation objection: Interpretation and (over)expansion
Having introduced the inflation objection in broad strokes, this section provides an overview of how its scope is delineated by those who invoke it. Differently put: how does the proliferation of human rights to which the inflation objection responds come about? By introducing the inflation objection in this way, my aim is both to provide a sense of its potentially wide-ranging implications and to demonstrate how – because of the tensions involved in delineating its scope – the inflation objection is drawn towards the kind of boundary-drawing which I mentioned above.
The traditional focus of the inflation objection, besides a general concern about welfare rights, lies on issues which have been newly (pro)claimed in the form of a ‘human right to …’. Writing in 1984, Philip Alston mentioned numerous examples of ‘new’ human rights claims, ranging from the right to tourism and the right to disarmament over the right to sleep, the right not to be killed in a war, the right of access to challenging work requiring creativity, the right to self-education and education with others, to the right to coexistence with nature,Footnote 49 as well as those rights already recognized in some form by United Nations organs such as the right to development, the right to peace, the right to a clean environment and the right to popular participation.Footnote 50
Over two decades later, many of these ‘human rights to …’ continue to raise questions about human rights inflation.Footnote 51 In addition, novel formulations of human rights have only increased in recent years. To name just a few examples from the copious literature and practice, one might consider the human right to internet access,Footnote 52 a ‘right to be loved’,Footnote 53 peasant rights and the human right to land,Footnote 54 the right to read,Footnote 55 and the human rights of older persons.Footnote 56 Furthermore, some rights claims seek to expand the very notion of ‘human’ rights by declaring animal rightsFootnote 57 or rights of nature.Footnote 58
All these examples illustrate that there is ample room for concern about the proliferation of newly formulated ‘human rights to …’ from the perspective of the inflation objection – but this is not the only mode of proliferation which it takes issue with. The substance of human rights, after all, can be debated without (pro)claiming a new ‘human right to …’: one can rely on the right to freedom of expression rather than speaking of a ‘right to insult’;Footnote 59 one can discuss whether night flights which cause a certain level of noise for residents near an airport should be prohibited by referring to the right to respect for private life or the right to health rather than a ‘right to sleep well’;Footnote 60 and the rights of various disadvantaged groups can be framed as applications of general human rights rather than naming them specifically as women’s rights, gay rights, trans rights, the rights of persons with disabilities, and the like.Footnote 61 Particularly when (quasi-)judicial pronouncements on matters of human rights are at issue, it is likely that courts and other supervisory bodies will refer back to more general rights clearly articulated in the positive law they are interpreting, rather than framing their conclusions as a free-standing ‘human right to …’.Footnote 62
Worries about inflation are liable to be more prominent when a flashy ‘human right to …’ is (pro)claimed – understandably so, to some extent, since it may come to constitute a discursive hub which prompts jurisgenesis and contributes to yet further proliferation of human rights.Footnote 63 (More cynically, one might also say: those who disapprove of a certain right and wish to argue against it on grounds of inflation are themselves more likely to frame it as a ‘human right to …’ so as to make it seem more boisterous than it otherwise would.) But if the concern is that we will lose sight of the ‘distinctive significance of human rights’ if they are inflated in such a way as to cover all of morality or any issue pertaining to social justice,Footnote 64 then those cases in which there is no explicit reliance on a newly phrased ‘human right to …’ seem similarly if not equally relevant.
Concerns about inflation thus encompass not only enumerated ‘human rights to …’, the number of which would in any case depend on the level of generality they are phrased at,Footnote 65 but are rather directed at the ‘huge scope of human activity’ which human rights cover in substance.Footnote 66 Stephen Bouwhuis deems this ‘a more modern tension in the creation of human rights, namely an expansion of their ambit through their elaboration’.Footnote 67 Thus, elaboration or interpretation of accepted rights comes within the scope of the inflation objection: rights might be interpreted expansively, for example in response to societal, scientific or technological developments,Footnote 68 and it is not only their number (however defined) but also their content which may contribute to human rights inflation.Footnote 69
Much depends here on how one approaches the issue of interpretation of human rights and, consequently, what kind of connections are acknowledged between different (expressions of) human rights. For example, Alston treated the various ‘human rights to …’ which he considered as a form of creation ex nihilo: he described them as having been ‘literally conjured up, in the dictionary sense of being “brought into existence as if by magic”’.Footnote 70 Yet this over-simplifies matters: even when ‘human rights to …’ are newly (pro)claimed, they are rarely disconnected entirely from more established rights. Those who argue for a free-standing human right to water, for example, acknowledge its connections to other human rights such as the right to life, the right to health, and the right to an adequate standard of livingFootnote 71 – and indeed rely on argumentative links to these rights even as they frame the human right to water as its own topos. Of course, such argumentative links are bound to remain controversial; but there need not be any magic involved.
Conversely, if an issue is brought within the ambit of human rights through their elaboration or interpretation, i.e., no newly phrased ‘human right to …’ is (pro)claimed, then the argumentative links to established human rights are more readily apparent. On an interpretivist account, indeed, one might even claim that in interpreting human rights, a court is not ‘expanding or inflating’ their scope, but ‘merely discovers what these human rights always meant to protect’.Footnote 72 Such an account, however, glosses over the political aspect involved in specifying the content of human rights:Footnote 73 the metaphor of discovery makes the interpretive process seem predetermined whereas it is, in fact, never devoid of a decisional aspect.Footnote 74
Creation, then, involves elements of elaboration, while elaboration involves elements of creation;Footnote 75 Corina Heri has very aptly captured the resulting ambiguities by speaking of the development of ‘new-ish’ rights, given that there is both a creative element in positing any particular rights claim and an area of overlap with previous rights iterations.Footnote 76 In light of this, it makes perfect sense to give the inflation objection a broad scope, and to not restrict it to any one mode of human rights proliferation.
Still, there remains a tension. So as to understand the elaboration or interpretation of the content of human rights as subject to the inflation objection, it must be construed – as indeed it explicitly is in the citation by Bouwhuis mentioned above – as an ‘expansion’.Footnote 77 Kasey McCall-Smith has made this connection particularly clear by juxtaposing evolutive interpretation of human rights with the notions of both ‘expansion’ and ‘inflation’.Footnote 78 Others even speak of ‘overexpansive interpretations’.Footnote 79 But once elaboration becomes (over)expansion, it becomes difficult to demarcate any ‘pre-expansion’ content of human rights which the inflation objection serves to protect.
Differently put, it becomes difficult to remove the implementation of established rights from the scope of the inflation objection;Footnote 80 as Allen Buchanan has noted, the distinction ‘between legal rights and administrative directives designed to give them effect’ is ‘conspicuously absent’ in human rights conventions.Footnote 81 The difficulty of drawing a line between ‘mere’ implementation and potentially expansive interpretation is not specific to debates about inflation, of course. But since part of the motivation for the inflation objection is to prioritize the effectiveness of a certain group of (say, relatively established) rights over the assertion of other (say, newer) rights,Footnote 82 it seems somewhat counter-intuitive to submit the implementation of the prior to an inflation-based scrutiny. While any elaboration or interpretation of human rights can come within the scope of the inflation objection, then, it needs to be geared only at a subset of cases which are read as ‘expansion’ so as to retain a field of ‘non-expansion’ for those rights interpretations which it seeks to protect from inflation.
To summarize, then, the scope of the inflation is simultaneously vast and constrained: vast, in that any ‘human right to …’ or any elaboration or interpretation of a human right can, in theory, be met by the inflation objection, but simultaneously constrained, in that the internal logic of the inflation objection demands a certain set of human rights or human rights interpretations to prioritize over others and thus be excluded from its own scope. A boundary of some sort therefore needs to be set: one might say that this is necessary to prevent an inflation of concerns about inflation. Because of the ambiguities involved in capturing rights claims as either creation or elaboration, and the resulting difficulty of demarcation which substantive elements are consider an ‘expansion’ of rights, however, this boundary remains highly unstable.
4. The formal emptiness of the inflation objection
The question then arises, of course, how this boundary should be drawn: which restrictions on human rights follow from the inflation objection? The basic impetus of the inflation objection is fairly clear: if the worry is that the increasing expansion of human rights will lead to their devaluation or trivialization by ‘eroding the legitimacy of a defensible core of rights’, as Michael Ignatieff has put it,Footnote 83 then the content of human rights will have to be in some way limited. But how are these limitations ascertained?
Different authors writing on inflation have, unsurprisingly, proposed different responses. Ignatieff’s own response is to define the ‘defensible core’ as those rights which are ‘strictly necessary to the enjoyment of any life whatsoever’.Footnote 84 Others have proposed different but similar tests: for example, Maurice Cranston relied on the notions of universality, practicability, and paramount importance.Footnote 85 More recently, John Tasioulas seeks to restrict human rights law to those rights which give appropriate expression and effect to an underlying morality of universal rights, characterized in particular by the fact that they – unlike, e.g., interests or values, on Tasioulas’s account – are associated with obligations.Footnote 86
However, as Alston has noted in response to Cranston, ‘philosophers can always have a field day debating the elements to be included in such a list of substantive criteria for determining whether a given claim qualifies as a human right’, yet in the practice of international organizations, the same exercise ‘becomes infinitely more difficult’.Footnote 87 Substantive criteria ‘imply a degree of rationality and objectivity in the selection of rights that simply does not and could not characterize the approach of a body such as the United Nations’; human rights remain, after all, ‘a quintessentially political issue’.Footnote 88 Or, as Makau wa Mutua has summarized it, while a ‘diverse and eclectic assortment of individuals and entities now invoke human rights norms’, this ‘universal reliance on the language of human rights’ has failed ‘to create agreement on the scope, content, and philosophical bases of the human rights corpus’.Footnote 89 Alston’s response to this issue, while simultaneously seeking to prevent inflation of human rights, is to focus on procedural criteria as ‘an indirect means to achieve many of the same objectives’:Footnote 90 he relies on Richard Bilder’s claim that an international human right exists if the United Nations General Assembly says it does.Footnote 91
We thus reach the well-known tension between substance and process, a tension which demonstrates the difficulty in specifying any kind of principled standards for preventing human rights inflation. Alston is quite right, I think, to foreground the political aspect of human rights in response to philosophical over-confidence in distinguishing ‘real’ from ‘supposed’ rights in the way which Cranston envisages.Footnote 92 But the turn to procedures carries its own problems. For one thing, much depends on which body is considered the competent authority. The much-discussed fragmentation of international law pertains to human rights not only by virtue of their relationship to ‘general’ international law,Footnote 93 but also insofar as human rights norms and institutions have become increasingly diverse within themselves: there is an increasing number of legal texts and institutions that focus on human rights, and different fora may provide different answers as to whether a certain issue is (covered by) a human right.Footnote 94
For those concerned about human rights inflation, such fragmentation further exacerbates the problem: the multiplication of available fora gives applicants and social movements increased chances of their claims being recognized in at least some of those fora, and hence potentially contributes to the devaluation of human rights by expanding their reach in some contexts at least.Footnote 95 In other words, concerns about human rights inflation carry a unifying undercurrent which makes the fragmentation of international human rights law seem problematic. Faced with the fact that such fragmentation does exist, it becomes ever more difficult to establish any kind of procedure to definitively establish which human rights are recognized and which are not. At the very least, one would have to rely on some kind of extra-procedural standards to establish which procedures are deemed relevant.
The fragmentation of international law is, in this respect at least, only a particularly tangible expression of a more general issue, for any reliance on process ends up relying on substance in some way, if only to establish the relevant procedures and why they should matter, or the standards which should be applied within these procedures.Footnote 96 Furthermore, a purely procedural approach would not sufficiently capture the moral significance commonly assigned to human rights, so that it can in turn always be criticized from a substantive viewpoint. In that vein, for example, one might question the central role of states in determining what counts as a human rights – the old problem of international human rights law ‘pulling itself up by its own bootstraps’.Footnote 97 Similar tensions can be observed in contemporary debates within human rights theory, which pit so-called moral conceptions and political conceptions of human rights against one another: moral conceptions are said to pay insufficient attention to human rights practice, while political conceptions are said to overemphasize it.Footnote 98
Ultimately, then, the tensions between substance and process confront us with the fact that there are no fixed pre-political criteria for deciding which human rights we have or should have, and which rights claims should, to the contrary, be disregarded because of the inflation they induce. This goes for human rights as an element of political morality as well as human rights as a matter of positive international law – while the latter is typically perceived as less subject to disagreement than moral issues,Footnote 99 both constant contestation in legal practice and critical accounts of the structure of international legal argument demonstrate the limitations of any assumption of determinacy.Footnote 100
The debate about inflation cannot, then, resolve the various open questions surrounding the concept of human rights. Both substantive and procedural criteria have been proposed to stem the proliferation of human rights, and neither seem inherently better suited nor follow naturally from concerns about human rights inflation. As we have seen in the previous section, this indeterminacy pertains not only to the restrictions which are thought to follow from the inflation objection, but also imbues its very scope with an unescapable instability: the question of which modes of human rights proliferation are covered collapses in on itself without a clear answer to which human rights are being protected from devaluation in the first place. This is what I think of as the ‘formal emptiness’ of the inflation objection.
Given the constitutive paradoxes of human rights law, this formal emptiness is entirely unsurprising, perhaps even banal. I nonetheless think it is important to spell it out explicitly because it helps to lay bare the political work which the inflation objection does by emphasizing the need to ‘determine a borderline’ of human rights although ‘the location of the border is not clear at the outset’.Footnote 101 Differently put: even though the inflation objection does not and cannot contribute any kind of closure to the question of which issues fall within the scope of human rights, it generates a sense of closure by drawing an ostensibly clear boundary between ‘real’ and ‘supposed’ human rights. It is this sense of closure and its politics which I would like to dwell on in the following section.
5. The politics of the inflation objection: A mindset of gatekeeping
5.1. Institutional gatekeeping as a response to unruly human rights claims
If one accepts that the content of human rights is underdetermined and that a decisional element is involved when human rights are (pro)claimed, then the way in which that decision is approached gains significant importance. This aspect has been described in critical legal literature by means of a broad variety of notions, including sensibility, intuition, voice, style, credo, rhetoric, and performance.Footnote 102 For present purposes, I think it is helpful to think of the inflation objection as a kind of mindset in the sense that, despite its formal emptiness, it nonetheless provides a certain perspective on questions of human rights which influences the way in which arguments are formed and decisions are made.Footnote 103
Allen Buchanan has captured the inflation objection qua mindset quite perfectly by describing ‘informal internal constraints’ consisting of ‘a stable psychological predisposition against the proliferation of rights, but one that is not a reflection of determinate legal principles of constraint’.Footnote 104 I am interested here in the effects of approaching human rights from within such a mindset; my suggestion is that these effects can be summarized as a form of gatekeeping and hence that they are largely conservative. This entails several different elements, which this and the following subsections will explore.
One effect of an anti-inflation mindset, then, is that it positions human rights claims raised by activists or social movements as potentially dangerous (since they are likely to induce human rights inflation), rather than a potentially necessary or inspirational challenge to currently dominant understandings of human rights. This dynamic is, in a sense, inherent in the idea of preventing inflation: some rights must be protected at the expense of others. My point here, however, is specifically about how the authority to decide on which human rights should be recognized and which should be set aside is distributed – an aspect that is of obvious importance in light of the formal emptiness of the inflation objection discussed above.
At the outset, worries about the inflation of human rights are projected onto various different sites in which they may be enunciated: Upendra Baxi illustratively names institutional, state-centric sites, peoples’ struggles, and social movements, as well as intergovernmental and transgovernmental networks.Footnote 105 Dominique Clément, for example, has argued that the inflation of human rights ‘takes myriad forms’ ranging from legislation and judicial interpretations to the way in which social movements frame their grievances and to shifts in public discourse.Footnote 106
These various sites, however, tend to be perceived somewhat differently from within an anti-inflation mindset. Activists or social movements making rights claims are positioned as particularly threatening, for these claims are likely to be made on a vast number of subject-matters – since the elasticity of rights language makes it ‘easy to repackage a political movement’s agenda in terms of rights’Footnote 107 – and with little regard to the proliferation or inflation of human rights. Although the inflation objection does carry some sway within certain ‘activist’ institutions such as large human rights organizations,Footnote 108 its popularity in less institutionalized contexts is necessarily limited, especially among those who do not deal with human rights professionally but rather use them as a language through which to challenge directly experienced injustices. As Clifford Bob has dryly put it, ‘aggrieved groups are unlikely to be deterred by abstract assertions that they should forgo their rights in the interests of the human rights “core”’.Footnote 109
So, claims to human rights continue to be made – indeed, one might argue that the conceptual and institutional framework of human rights as a practically relevant and simultaneously open-ended concept itself prompts the proliferation of human rights claims.Footnote 110 Intervening directly into this discursive process is considered objectionable: it would contravene what Baxi has beautifully captured as the ‘human right to interpret all human rights’Footnote 111 – and even traditionally acknowledged human rights such as the right to freedom of expression point in this direction.Footnote 112 Carl Wellman has summarized the lack of options to prevent the proliferation of rights claims by admitting that ‘there is no effective and nonprejudicial way to prevent any public speaker from asserting any right that springs to her mind’.Footnote 113
As a result, Wellman calls for more sustained deliberation, as others also call for ‘restraint and moderation’Footnote 114 – perhaps with echoes of the ‘restraint’ which neoliberal policies require to prevent economic inflation. The question of how to achieve such restraint, of course, remains.Footnote 115 So Wellman also advocates for a more circumspect approach to legal recognition of claims voiced within political discourse, so as to ‘limit legal rights to a manageable number of very important rights’.Footnote 116 In a similar vein, Kasey McCall-Smith acknowledges the expression of ‘individual preferences and interpretations’ of rights as a process which should not be encroached upon directly, but emphasizes the importance of differentiation between rights (or implementation of rights) and of elements of calculation – including regard to both the need for expansion and the danger of inflation – for law and policy makers.Footnote 117
A recurring theme in this context is that rights claims by aggrieved groups are presented, if not as selfish, at least as somewhat suspect since they relate to concrete political interests, whereas state-centric and especially legal institutions benevolently balance competing interests and acknowledge only ‘proper’ human rights.Footnote 118 In that vein, Hannum suggests that ‘[p]erhaps the crux of the problem is that many human rights advocates … confuse their own social agendas with the promotion of internationally recognized human rights’.Footnote 119 International human rights law is thus conceived of as distinct from ‘political debate and activism’ instead of one of many tools used within, and as a field shaped by such activism.Footnote 120 As Robert Cover has described this view, it is ‘the multiplicity of laws, the fecundity of the jurisgenerative principle, that creates the problem to which the court and the state’ – and, we might add, the community of states at the international level – ‘are the solution’.Footnote 121 Stricter standards for recognition by institutional, state-centric sites of human rights enunciation thus constitute the answer to the unavoidably ‘unruly’Footnote 122 proliferation of rights claims.
The boundary between recognized human rights and mere claims which is reinforced in this way is, again, unstable: any ostensibly recognized right can be challenged by reinterpreting it as a mere claim, for example by arguing that it was wrongly recognized (as many do for certain socio-economic rights) or that it is insufficiently based on international legal sources to be considered a legal human right (as in debates on whether some ‘new’ rights merely constitute soft law).Footnote 123 Nonetheless, the anti-inflation mindset offers a distinctly conservative perspective which highlights the importance of restraint, achievable within certain institutions but not within the broad field of ‘unruly’ rights claims: these are construed not as a call to ‘invite new worlds’Footnote 124 or as a ‘democratization of interpretation’Footnote 125 alongside the human right to interpret human rights, but rather as a threat to institutionally recognized human rights. Existing institutions are thus positioned as the gatekeepers of which human rights should be recognized and which should not. By emphasizing gatekeeping by established institutions and de-emphasizing the importance of human rights claims in other sites and by other actors, contestations to the status quo in the shape of the latter are rendered marginal.
5.2. Which rights are threatening?
Another effect of the anti-inflation mindset, I would submit, is that it bolsters the status quo by making certain kinds of rights claims appear particularly suspect. Superficially, we might say that these are whichever rights any given author (or treaty-maker, or judge) happens to disagree with: as James Griffin has noted, ‘we speak of “proliferation”, in a pejorative sense’ – or of inflation, perhaps – ‘only because we suspect that some of the declared rights are not true rights’.Footnote 126 Because of the formal emptiness of the inflation objection, it could, in theory, be used to defend or vilify any given sets of rights. In practice, however, the inflation objection tends to attach to certain substantive positions despite its formal emptiness.Footnote 127 Based on the literature on human rights inflation surveyed above, we can deduce that those rights claims particularly likely to fall prey to the anti-inflation mindset are by no means aleatory.
It is remarkable, in particular, how consistently socio-economic human rights in the form of welfare rightsFootnote 128 have been denied the status of ‘real’ human rights on the basis of the anti-inflation mindset. Economic and social rights were the primary target of Maurice Cranston’s early concerns about human rights inflation based on the distinction between ‘real’ and ‘supposed’ human rights.Footnote 129 More recently, Michael Ignatieff argues that rights inflation ‘ends up eroding the legitimacy of a defensible core of rights’, which he takes to be a ‘core of civil and political rights’;Footnote 130 welfare rights, apparently, are indefensible. George Letsas develops a liberal theory of interpretation for the European Convention of Human Rights and concludes from this that the responsibility of the European Court of Human Rights is ‘to interpret civil and political rights, not social and economic rights’, and that however compelling welfare interests may be, we ‘cannot inflate the concept of human rights so much that it covers the whole realm of justice’.Footnote 131 Eric Posner criticizes the ‘hypertrophy’ of human rights for making the human rights system collapse into ‘undifferentiated welfarism’.Footnote 132 Hurst Hannum celebrates some developments of the last decades, especially certain minority rights, as ‘welcome advances’, but also notes ‘rights-inflation criticism’ with a particular focus on ‘broad economic or political issues’ such as poverty, which, on his account, are ‘incapable of being rationally debated in the context of rights’.Footnote 133 And even when welfare rights are not targeted as a whole, the anti-inflation mindset tends to focus on broad interpretations of individual welfare rights such as the right to health.Footnote 134
We can learn from this focus of the anti-inflation mindset, because it teaches us which kinds of human rights tend to be perceived as threatening – those which fall outside a (neo)liberal conception of human rights which protects and sustains, or at least does not threaten, the rule of the free market. It is the market, after all, which forms the centre of neoliberal conceptions of freedom and the basis for ostensible beneficial social relations.Footnote 135 But this is not necessarily an exclusively neoliberal positionFootnote 136 – for all that neoliberalism is more welcoming than classical laissez-faire liberalism of state intervention, understood as legally constituting and entrenching competition and free markets, either form of liberalism would reject state intervention in the form of welfare rights as described above.
Take Michael Ignatieff’s account of a ‘defensible core’ of civil and political rights which he considers ‘strictly necessary to the enjoyment of any life whatever’ in that they are ‘both an essential motor of economic development in themselves and also a critical guarantee against coercive government schemes and projects’.Footnote 137 As Wendy Brown has summarized it, this involves an argument in favour of understanding ‘human rights as the essential precondition for a free-market order and for the market itself as the vehicle of individual social and economic security’: in sum, ‘as much a brief for capitalism as for human rights’.Footnote 138 Welfare rights would constitute a form of state intervention incompatible with the free-market order; as such, they are rejected as not strictly necessary, and hence viewed as contributing to the inflation of human rights if recognized as such.
As another example, consider Friedrich Hayek’s perspective on human rights: He wrote in 1966 that to the important negative rights ‘which are merely a complement of the rules protecting individual domains’ and to positive rights of participation in the organization of government, ‘there have recently been added new positive “social and economic” human rights for which an equal or even higher dignity is claimed’.Footnote 139 We might note in passing the interesting positioning of welfare rights as mere claims despite their recognition in the UDHR which prompted Hayek’s criticism.Footnote 140 But more importantly for present purposes, ‘these “rights”’ (in scare quotes – clearly not ‘real’ rights!) were fundamentally opposed to Hayek’s worldview because they assumed a conception of society going beyond the ‘spontaneous order’ of ‘the cosmos of the market’.Footnote 141
It should come as no surprise at this point that Hayek’s defence of negative rights (protecting the market from government interference) and his dislike of welfare rights (based on a social philosophy which would threaten the market) combined in such a way as to raise the inflation objection against the latter: solemnly to proclaim welfare rights, he argued, ‘was to play an irresponsible game with the concept of “right” which could result only in destroying the respect for it’.Footnote 142 It is this kind of (neo)liberal approach which continues to underpin much of the anti-inflation mindset, all the more so when the idea of ‘inflation’ is connected to the narrative that welfare rights are particularly vague,Footnote 143 as well as difficult and costly to implement.Footnote 144 Civil and political rights can thus be constructed as primary, while welfare rights are relegated to Cranston’s ‘twilight world of utopian aspiration’.Footnote 145
This approach also resonates with the narrative of different ‘generations’ of human rights (civil and political rights as the first generation, socio-economic and cultural rights as the second generation, and group or solidarity rights as the third generation).Footnote 146 To categorize human rights in this way implies, by virtue of the temporal element of periodization contained in postulating different ‘generations’,Footnote 147 that socio-economic and group rights are in some sense ‘new’ and hence more subject to scrutinyFootnote 148 – which provides the space to question whether the ‘newer’ rights might not devalue the ‘older’ ones. Here, too, civil and political rights are construed as primary; by universalizing the Western, liberal history of ideas centring the individual, it becomes possible to construct welfare rights or group rights – particularly those associated with non-Western traditionsFootnote 149 – as subordinate and potentially threatening in how they differ from civil and political rights.
The shared ground between a (neo)liberal conception of human rights and the anti-inflation mindset also helps to shed light on the way in which some rights claims are read as ‘new’ even though they belong to what Hayek calls the ‘time-honoured’ civil and political rights.Footnote 150 For all the ambiguities discussed above, there is a sense that certain understandings of human rights – notably, Western (neo)liberal approaches to them – are currently dominant.Footnote 151 Accordingly, although abstract human rights principles can be and are interpreted in many different ways, their common interpretation in fact, within current institutions, reflects certain structural biases.Footnote 152 Those interpretations which run counter to those biases will, broadly speaking, be perceived as ‘new’ and subjected to stricter scrutiny on the basis of the anti-inflation mindset. ‘New’ rights in this sense – and the lawyers who advocate for them – are thus ‘constituted as marginal in order to contain the threats they pose’.Footnote 153
I would argue that this is the case, for example, with minority rights. To a certain extent, these are (by now) accepted as a matter of course, e.g., with regard to decriminalization of same-sex acts or relatively superficial anti-discrimination measures;Footnote 154 such forms of protection may even be considered integral to the very idea of human rights.Footnote 155 This is in line with what Nat Raha calls the neoliberal incorporation of difference,Footnote 156 since certain forms of minority protection can easily be commodified and made to serve neoliberal ends. By contrast, more far-reaching human rights for marginalized and oppressed groups – disability rights beyond ‘reasonable accommodation’,Footnote 157 for example, or trans rights that subvert gender norms rather than reinforcing themFootnote 158 – challenge the structural bias of human rights law and are hence more likely to be perceived as ‘new’ and liable to induce inflation.Footnote 159
Ultimately, then, the more a human rights claim is geared at far-reaching social transformation, the more threatening it seems from within the anti-inflation mindset. This dynamic is exemplified in the case of welfare rights which threaten the (neo)liberal hegemony, but we can also see it in action when other human rights claims surpass what can be accommodated within currently dominant understandings of human rights, and it constitutes a further way of bolstering the status quo.
5.3. Positioning human rights as superior to other languages of resistance
A further effect of an anti-inflation mindset based on gatekeeping is that it has consequences not only for the way we think about certain human rights claims, but also about the concept of human rights as a whole. After all, the anti-inflation mindset involves drawing a boundary around human rights vis-à-vis other normative concepts.Footnote 160 It has been argued, for example, that while welfare rights might hold moral ground, they should not be regarded as ‘a problem about the universal rights of all men’ (much less of all women or people of other genders, one surmises) but rather as ‘a problem of socialization or democratization’.Footnote 161 Many authors emphasize the distinctiveness of human rights in a similar way: they have been deemed particularly ‘distinctive and important’,Footnote 162 aiming to ‘protect only the most significant human interests’,Footnote 163 as possessing ‘distinctive moral force’ compared to ‘the whole realm of justice’,Footnote 164 and as of ‘distinctive significance’ while not exhausting ‘the whole field of moral concern’Footnote 165 and distinct from ‘all socially desirable progress’.Footnote 166 Some authors also distinguish, to similar effect, between human rights and ‘mere’ rights tout court: ‘there is a grave danger that if we speak glibly about human rights, we may lose sight of the reality that some rights are more basic than others’.Footnote 167
In the context of an anti-inflation mindset, statements such as these not only position human rights as distinct from social justice (or socialization, morality, rights tout court, and so on); the notion of human rights is also constructed as hierarchically superior to other normative frames. As Dominique Clément has argued, the insistence that framing various grievances as violations of human rights undermines the moral legitimacy of human rights ‘is based on the presumption that human rights have a greater moral claim than social justice’.Footnote 168
In this way, even as other normative concepts are pointed to as a kind of safety net for those claims which don’t make the cut as human rights, they are constructed as conceptually subordinate to human rights. The derogatory implications of deeming some human rights claims ‘supposed’, ‘illusory’, ‘fake’Footnote 169 or ‘wannabe’Footnote 170 also resonates with and further contributes to this form of hierarchization. One effect of a mindset which foregrounds the gatekeeping of human rights in this way, then, is to create a discursive culture in which vocabularies by means of which to contest the status quo – what Balakrishnan Rajagopal calls ‘language[s] of resistance’Footnote 171 – other than human rights, are made to seem increasingly marginal.
Combined with the previous parts of my argument, this leads me to conclude that the anti-inflation mindset has several, mutually reinforcing effects. It serves, first, to reinforce currently dominant, (neo)liberal understandings of human rights, both by positioning existing institutions as the gatekeepers of ‘proper’ understandings of human rights and by putting into question any human rights claims aimed at far-reaching social transformation. This cannot prevent such claims from being articulated in different languages of resistance, but the anti-inflation mindset does, second, position normative frames other than human rights as hierarchically inferior to human rights themselves, thus creating an additional barrier to challenging those aspects of reality – including, e.g., property rights and a free-market orderFootnote 172 – which are already deemed part of human rights. The double-bind this creates for challenges to the status quo is what makes the anti-inflation mindset, to my mind, a form of gatekeeping with deeply conservative political effects.
6. Outlook: The merits of wonder
I have argued that the inflation objection, despite being characterized by a formal emptiness, involves a mind-set of gatekeeping which benefits the currently dominant (neo)liberal understanding of human rights and makes challenges to the status quo, whether in the form of human rights or other languages of resistance, more difficult. As I noted at the outset, this could also be described as giving too much weight to the abstract ‘value’ of human rights rather than the specific privileges, power constellations, and struggles which underlie them.Footnote 173 In this way, the ‘value’ of (currently dominant understandings of) human rights is positioned as primary, while other claims and other normative frames are constructed as subordinate – echoing the classic boundary-drawing which places issues or people inside or outside the law.Footnote 174
However, these hierarchically constructed relations are not static but rather unsettled and unstable.Footnote 175 Sara Ahmed has argued that ‘the integrity of law as a system is always under threat by its “others”, by that (and those) which it seeks to exclude and repress’;Footnote 176 we might consider the inflation objection one way in which the area of human rights law, specifically, responds to such threats by establishing a mindset of gatekeeping in response to ‘unruly’ rights claims. But this can never be set in stone. Ahmed continues: ‘what the law excludes through the process of policing its boundaries’ – or gatekeeping, as I have been calling it – ‘can be rearticulated as internal to law, to law’s self-definition as law’.Footnote 177
In a sense, this constant process of rearticulation and redefinition could even be considered entirely unremarkable, part and parcel of constant discursive shifts in the morality, politics, and law of human rights.Footnote 178 Claims to new (interpretations of) human rights, as noted above,Footnote 179 will continue to be made so long as the vocabulary of human rights forms ‘an undeniably empirical element’Footnote 180 of the world, so long as we ‘cannot not want’ human rights.Footnote 181 Experience shows that some of these claims will be recognized, often after years and decades of struggle and activism.Footnote 182 These complex and multidirectional processes take place within a great many intersecting power structures and involve both strategic and principled decisions by a vast number of actors of all kinds. I am not, of course, claiming some kind of directly tangible and monocausal effect of the inflation objection within these processes. And yet, if we accept that it involves a mindset of gatekeeping which has the potential to shape how we think about human rights and how we approach decisions – if we accept, in other words, that it forms part of the ‘underlying world of beliefs that controls our institutional practices’Footnote 183 – then we cannot simply set it aside as a harmless theoretical curiosity, either.
Opposing the anti-inflation mindset for the conservative effects it has is not to say that any extension of human rights, much less human rights law, is to be welcomed.Footnote 184 As the above discussion of (neo)liberal human rights exemplifies, there is nothing inherently emancipatory about human rights, including ‘new’ rights claims – no more than international law in general do they contain an ‘ideal of the good society’.Footnote 185 Upendra Baxi’s distinction between the politics for human rights (which ‘combats as overproduction the regimes of protection of the rights of global capital, while celebrating the newly emergent rights of peoples’) and the politics of human rights (which does the opposite) captures this in particularly vivid form.Footnote 186
As we navigate these ambiguities, perhaps we can learn from the way in which the anti-inflation mindset aims to shut down social transformation by inverting its approach into its opposite.Footnote 187 It is notable, in particular, how often the inflation objection is connected to language deriding utopian aspirations. I have already referred repeatedly to Cranston’s distinction between ‘morally compelling’ human rights and ‘the twilight world of utopian aspiration’.Footnote 188 Much more recently, John Tasioulas has mirrored this language by proposing that the best way to assuage ‘anxiety about human rights inflation’ would be to reject broad accounts of human rights law as ‘a blueprint for utopia’ – he even dubs the emphasis on the ‘distinctive significance’ of human rights an ‘antiutopian insight’.Footnote 189
The anti-utopian bent of the inflation objection should not come as a surprise; neoliberalism often seeks to essentialize itself by undercutting the ability to think or feel utopian alternatives.Footnote 190 Focusing on precisely those utopian alternatives, then, might be a remedy to the anti-inflation mindset. While utopianism carries its own dangers – continuing its history of realizing orientalist Western utopias at the expense of populations in the Global South, for exampleFootnote 191 – it can also be associated with imagination, self-reflexion, and critique.Footnote 192 In this counter-hegemonic form, utopianism aims to make ‘the actual world seem strange’Footnote 193 and shatter the ‘taken-for-granted nature of the present’.Footnote 194
In keeping with the utopian commitment, we might seek to cultivate a mindset of wonder as a way of unsettling the status quo.Footnote 195 To wonder, as Sara Ahmed has put it, is ‘to remember the forgetting and to see the repetition of form as the “taking form” of the familiar’;Footnote 196 it is thus at the heart of the utopian enterprise which seeks to make the world as it is ‘seem strange’. From this perspective, when claims that are far removed from currently dominant understandings of human rights seem outlandish, we might take this as an occasion not to dismiss them, but to ask which structures and assumptions make us consider them outlandish.Footnote 197 Why are things as they are? Why should they not be different?
As an example, not so as to build a substantive argument for a particular claim but merely to sketch the shift in mindset which I am envisioning, consider the human right of access to law as proposed by Simon Rice.Footnote 198 Going beyond the relatively well-established right to legal aid, the right of access to law is said to relate also to individuals’ engagement with state law outside of the trial context, given the pervasive presence of law in everyday life.Footnote 199 Based on a mindset of gatekeeping and concerns about inflation, responses to such a proposal might go something like this: it would be ‘absurd’ to suggest that one could know the content of ‘all law’;Footnote 200 the resources to enable knowledge of and access to the law by everyone are unfathomable and better spent on other matters; to recognize a human right of access to law would make human rights lose all contours (as someone asked at a recent workshop: would the right of access to law require public transportation for rural populations so as to reach lawyers and courts in the next bigger city?); it would therefore endanger the enterprise of human rights as a wholeFootnote 201 and should not be recognized outside of the narrow ambits of a right to legal aid.
A mindset of wonder, by contrast, would pick up on the ostensible absurdity of the proposal not as a way of closing down, but as a way of opening up political contestation by asking why the right of access to law seems absurd and who profits from framing it as such. Which material and discursive structures separate those who have access to law from those who don’t?Footnote 202 Why should it not be possible to provide, for example, broader education on legal (and other) matters and meaningful material support to disenfranchised or rural populations (including, yes, some form of public transportation)? To wonder at how things are does not necessarily lead to any particular stance on the issue in substanceFootnote 203 – for example, one might be sceptical of the right of access to law for the way it centres law itself, rather than questioning its omnipresence in our lives and the relations of domination in can conceal.Footnote 204 But to wonder in this way does invite us to imagine how things could be otherwise, and thus to open up avenues for debating transformative political action rather than giving a privileged place to the status quo.Footnote 205
In brief: the ‘outside’ of human rights, from within a mindset of wonder, would not be perceived as subordinate or threatening; rather, it becomes an essential element on the basis of which to (self-)critically assess the status quo. As Baxi has put it, those ‘who feel excluded from the contemporary human rights regime’ – he cites those advocating for a human right to sexual orientation as an example – ‘may, with considerable justification, maintain that the tasks of human rights enunciation have just barely begun’.Footnote 206 Kathryn McNeilly lays an even stronger focus on this element in her futural conception of human rights which entails ‘approaching rights politics as not about claiming, applying or enforcing already existing articulations of human rights, but about challenging and debating human rights based on the inevitable alterity and exclusion of current rights concepts and ideas’.Footnote 207 Excess, from this perspective, does not threaten human rights. To the contrary, it is both unavoidable and welcome; human rights can be thought of as ‘driven by excess’, ‘permanently unsettled and unfinished’.Footnote 208
An anti-inflation mindset is by no means necessary, then, nor ‘the liberal conception of rights as a minimum standard’ which it seeks to entrench.Footnote 209 In the current juncture of (neo)liberal hegemony, the idea of human rights as minimum standards to be protected from devaluation ‘always attempts to limit or deny the transformative power of human rights’, but it ‘never succeeds in extinguishing it’Footnote 210 – as the continued anxieties about human rights inflation show. We can retain a mindset of wonder. We can retain our moral outrage. We can retain our willingness to be shocked by the status quo.
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