Rights, Development and Critical Modernity

Debate

Rights, Development and Critical Modernity

Malcolm Langford

ABSTRACT

The march of rights into international development offers, on the face of it,a more progressive and transformational paradigm. Contemporary rights ex-pressions are more expansive and diverse than their nineteenth-century fore-bears. Inevitably though, rights-based approaches have been criticized, withclaims that rights have contributed to a minimization and individualizationof distributive justice and participatory democracy or even been appropriatedfor profoundly anti-transformational ends. This article argues that the criticsneed to be taken seriously, but that their complaints suffer from many of thefamiliar problems with critical theory and post-developmentalism. Instead, itis posited that the frame of critical modernity allows scholars and practition-ers to better understand, chart and constructively critique the uptake of rightsin development. This reflexive standpoint also allows one to focus on thosedimensions of rights approaches that remain under-developed but carry thegreatest potential, namely notions of citizenship, agency and accountability.

THE RISE OF RIGHTS

Over the past few decades, the subject of human rights has emerged as adominant international discourse, a global lingua franca or even a ‘world-wide secular religion’ (Wiesel, 1999). Simmons (2009: 3) argues that wefind today ‘an increasingly dense set of international rules, institutions andexpectations regarding the protection of individual rights’ that is more sig-nificant ‘than at any point in human history’. This relentless rise of rights hasnot spared international development. Even though the two fields have beenconceptually delinked and institutionally discrete (Uvin, 2004: 1) with con-troversies persisting over their compatibility (Alston and Robinson, 2005),rights-based approaches of various persuasions have penetrated the surfaceof development discourse and practice. Of these multifaceted intersections,

The author would like to thank Murat Arsel, Anirban Dasgupta and the editorial team for theirvery helpful comments on earlier versions of the paper.

Development and Change 46(4): 777–802. DOI: 10.1111/dech.12184C© 2015 International Institute of Social Studies.

778 Malcolm Langford

the most striking perhaps has been the exhortation in 1997 of the then UnitedNations Secretary-General Kofi Annan to all UN agencies to mainstream hu-man rights.

A diverse range of factors has precipitated the journey of rights towardsrespectability. The fall of the Berlin Wall and the third wave of democratiza-tion severed the neat link between different generations of rights and politicalsystems: civil and political rights were no longer the discursive monopoly ofthe West, and the same applied to social rights and the East. In this shiftingpolitical environment, development activists saw the language of rights asa means to legitimize progressive positions: social rights were invoked inprotests against structural adjustment, privatization and globalization; andcivil and political rights norms were invoked to challenge opaque devel-opment cooperation with authoritarian regimes and to undergird a broaderconcept of development that embraced participatory democracy and politi-cal citizenship. Developing countries themselves turned to the language ofrights as a way of articulating global justice concerns. They spearheaded theUN General Assembly’s 1986 Right to Development declaration as a wayof revitalizing and legitimizing the earlier-championed but controversialNew International Economic Order.1 All of these progressive moves werebuttressed by a growing institutional understanding of economic growthand development, which took seriously questions of governance and, morerecently, distributional equity (Rodrik, 2000; World Bank, 2006).

On the face of it, this turn to rights offered a more transformationalparadigm than other new and related approaches to development, such asgovernance and participation and even gender equality and the environment.Contemporary rights expressions are more expansive and diverse than theirnineteenth century forebears, which may explain the significant controversyamongst most states, international financial institutions and the private sectorover their adoption in the development sector. Moreover, rights provide ananalytic and institutional resource for articulating a wide range of justiceand democratic concerns in order to challenge power relations and structuralviolence (Farmer, 2003; Moser and Norton, 2001; Yamin, 1996) and alanguage that can be easily vernacularized at the local level (Cousins andHall, 2014; Merry, 2006).

At the same time, the rights-based movement has strong pragmatic strains.Many of its advocates have identified the need to engage with the variousdevelopment communities, seeking to transform rather than replace existingpractice. The result is that a rights approach possesses a partly hybrid char-acter. On the one hand, it highlights certain and distinctive aspects — rights,duty, remedy — that set it apart from other notions of addressing injusticeand need, particularly strong charitable and utilitarian approaches. This claimfor distinctiveness is accompanied by operational methods that are strongly

1. Declaration on the Right to Development, G.A. res. 41/128, annex, 41 UN GAOR Supp.(No. 53) at 186, UN Doc. A/41/53 (1986).

Debate: Rights, Development and Critical Modernity 779

rights flavoured, such as fact-finding missions, rights-based budget analysis,human rights impact assessments, monitoring, peoples’ tribunals, etc. On theother hand, it is rarely conceived as a fully-fledged policy platform. Rightsapproaches can partially overlap and fuse with other paradigms, such as self-empowerment (absent or marginal duty bearer), community customary law(mutual obligations and mediated rights), public policy consequentialism(rights can be partly traded off with other public goods), market liberalism(an emphasis on libertarian rights that ensure market efficiency and growth-based poverty reduction), radical political economy and various strands ofsocialism (e.g. the state must be substantially reconfigured and citizenshipmust be creative or militant in finding solutions). Thus, defining rights indevelopment involves both a general and a specific lens, identifying theircommon attributes as well as their concretization in particular discourses.

The strand of particular interest here is the progressive packaging of rights.While conscious of the dangers of reductionism (Farmer, 2003: 3), the em-phasis of many progressive rights advocates is on reforming the analysis andpractice of development rather than promoting alternative solutions, withrights functioning as a critical norm rather than a critical alternative. Ac-cording to two Oxfam authors, a rights-based approach shifts developmentpractice from top-down technicism to a people-centred focus on power andstructural impediments: ‘Instead of focusing on creating an inventory ofpublic goods or services for distribution and then seeking to fill any deficitvia foreign aid, the rights-based approach seeks to identify the key systemicobstacles that keep people from accessing opportunity and improving theirown lives’ (Offenheiser and Holcombe, 2003: 271).

Equally, a rights-based approach is emancipatory in reframing politicalengagement from below with the state and corporate entities: ‘The real po-tential of human rights lies in its ability to change the way people perceivethemselves vis-a-vis the government and other actors. A rights frameworkprovides a mechanism for reanalyzing and renaming “problems” as “viola-tions”, and, as such, something that need not and should not be tolerated’(Jochnick, 1999: 59). Moreover, it deconstructs and transforms underlyingkey assumptions in development:

The rights-based emphasis on assigning responsibility is not an afterthought about how togarner sufficient political will to make ‘technical interventions’ effective; such an approachinstead focuses from the beginning on mapping the operations of power at work in respondingto public health problems, as well as in shaping vulnerability [and] . . . does not take resourceconstraints as natural givens but [treats] them as the result of past choices. (Yamin, 2008: 49)

THE CRITICS

Inevitably, though, progressive rights-based approaches have met theircritical demarche, with claims that rights have contributed to a tech-nicization, minimization and individualization of distributive justice and


participatory democracy or, worse, that rights have been appropriated foranti-transformational ends. The critics do not speak with one voice. Post-Marxists focus their attention on the pervasiveness of liberal and thin visionsof justice within rights and the reifying of law over collective and organizedpower; civic republicans focus on the appropriation of robust forms of partic-ipation and top-down notions of rights; post-developmentalists baulk at theuniversalism of rights and its seamless fusion with other global developmentdiscourses.

Nonetheless, these various voices form a particular body of critique. Theycan be distinguished from internal dissension within the ‘rights community’over the meaning of a rights-based approach and its reach in practice (e.g.Darrow, 2005; Russell, 2011); and likewise from rationalist and partly com-munitarian2 critiques that focus on the economic and political costs of allor certain rights claims (Bolnick, 2009; Chauffour, 2009). It is possible todiscern a ‘critical’ posture towards rights, even if the arguments vary in em-phasis or are partially contradictory. It is also a critique with a long pedigreewhich stretches back to Marx’s On the Jewish Question and which burstinto life after the progressive turn to rights in the United States in the 1950s(Scheingold, 1974).

We can identify four key critical positions on the role of rights in develop-ment: material, democratic, instrumental and epistemological. The first twoare clearly within the emancipatory tradition while the latter two are broaderin scope. The material critique of rights commonly proceeds with a doublemovement. The liberal heritage of rights and the inherent and structuralizedasymmetry of rights privilege certain claims over others. Contemporary ma-terial critiques do offer an acknowledgement of the positive attributes ofliberalism and rights: the Left is made ‘more sensitive to civil liberties andthe dangers of state oppression’ (Wood, 1995: 256). But the admission isaccompanied by the sustained warning over the ‘mystifications of liberal-ism’, and its silent oppressive and exploitative nature and transformativeimpotency (ibid.).

D’Souza provides a good example of this double movement. In her critiqueof the deployment of the right to water to challenge privatization and otherwater policies in international development, she claims that the core problemlies with the ‘old rights’, which limit the potential of the new ones. Theproblem with a rights frame is that it cannot be selective and tailored. It is aself-standing paradigm with numerous pre-conditions that restrict the spacefor alternative and more radical notions of justice:

The history of ‘rights’ as we understand it today begins with property as ‘natural right’, andthe transformation of labour, a natural endowment, into property for sale in the labour market,themes extensively traversed in the literature on capitalism and class. Over two hundred years

2. This is because rights talk and contestation tactics limit the possibility for cooperativerelationships to develop between citizens and state, communities and private actors, so thatpressing socio-economic issues can be solved.


at least both of these ‘natural’ rights and ‘freedoms’ in capitalist democracies have entailedcolonialism, slavery, plantation economies and breakdown of social structures in the ThirdWorld. Should not the question for politics then be: do we really need to add water to the listof property rights, and must communities in the Third World first concede to property rightsin water within the new WTO regime so that they may struggle for human rights to water inthe new economic context of neo-liberalism? Does not the excellent critique and limitationsof human rights and liberalism then return a full circle in asking us to accept an idealisedversion of it? (D’Souza, 2008: 9)

D’Souza’s point could be taken a step further with the observation thatinternational law is largely bifurcated and disproportionate in its protection ofdifferent categories of rights. On the one hand, the economic rights of foreigninvestors and corporate trading entities are heavily protected in internationalinvestment and trade regimes, in scope, substance and enforcement. Onthe other hand, international human rights law is considerably weaker incomparison, dominated by quasi-judicial and monitoring mechanisms withonly some regional courts tracking their international economic counterpartsin terms of enforcement power. The asymmetry becomes even more salient ifwe contrast the wide array of enforceable rights foreign investors hold underinvestment treaties (which extend far beyond a standard right to property)with their voluntary duties in the multiplying global standards on corporatesocial responsibility.

This material critique is also sharpened by the observation that the mode ofarticulating and institutionalizing rights entrenches this asymmetry. Humanrights claims in particular are promoted as a ‘morality of the depths’ ratherthan an aspiration of the heights (e.g. King, 2012; Nickel, 2007), whichseverely limits the more expansive dimensions of social, civil and politicalrights. For instance, rights-based approaches may unwittingly become thehandmaiden for neoliberalism through highly minimalistic and target-basednotions of social rights (Fischer, 2013; Moyn, 2010). Simultaneously, courts,bureaucrats and professionally-driven civil society organizations may applythese notions in a highly technical, legalistic or deferential manner (Bond,2008; Brand, 2009; Pieterse, 2007). The combination of both features resultsin what we might call a double minimalism. As Roithmayer puts it, the‘discourse of human rights pulls a sleight of hand’ by offering ‘only verylimited recognition of moral claims’ and converting them into ‘bureaucratic,technical legal problems’ (Roithmayer cited in Bond, 2010: 15).

The democratic critique focuses on the lack of agency in many rightsapproaches. The seeming preference for state-centric, duty-oriented andlegalized or a-historicized conceptions of justice may clash sharply withmore open-ended collective or experimental notions of participation. ForNeocosmos (2009: 276): ‘Citizenship, from an emancipatory perspective,is not about subjects bearing rights conferred by the state, as in humanrights discourse, but rather about people who think becoming agents throughengagement as militants/activists and not politicians’. If rights are invoked,they are to be ‘assertions of rights to be fought for’ rather than mere ‘pleas for


human rights to be conferred by the state’ (ibid.). Moreover, a duty-centricunderstanding of rights may not only disempower the subaltern, it mayover-empower the experts. Elites, professionals or lawyers have been quickto master the new language and its opportunities and often stand accused ofundermining its emancipatory potential. In analysing transitional justice infragile post-conflict settings — one field in which human rights has becomeparticularly prominent in development cooperation — Madlingozi (2010:225) paints this picture:

A well-travelled international cadre of actors — what I have called transitional justiceentrepreneurs — theorize the field; set the agenda; legitimize what constitute appropriatetransitional justice norms and mechanisms; influence the flow of financial resources; assistgovernments in transition; invite, collaborate with and capacitate ‘relevant’ local NGOsand ‘grassroots organizations’; and ultimately not only represent and speak for victims but‘produce’ the victim.

The epistemological critique takes aim at the universalism of rights claims,particularly those embedded in human rights. This problem with rights ap-proaches is inherent in any global vision. As Bartelson (2009: 2) warns,‘every effort to impose a given set of values on the existing plurality ofcommunities in the name of a common humanity is likely to be met withresistance on the grounds of its very own particularity’. For instance, Mutua(2008: 1029) states that: ‘The human rights corpus views the individual asthe center of the moral universe, and therefore denigrates communities, col-lectives, and group rights . . . . This is a particularly serious problem in areasof the world where group and community rights are deeply embedded bothin the cultures of the peoples, and exacerbated by the multinational natureof the post-colonial state’.

In the context of development, these cultural critiques of human rightsresonate well with post-developmentalism. Here, development and progressare deconstructed as mythological ‘ideal constructs’ that ride roughshodover localized understandings of development, representing a ‘mercilesswar against the age-old traditions of communal solidarity’ (Rahnema, 1997:ix), and that provide in practice little protection against mass displacementand persistent inequalities (Rahnema, 1997: ix, x, xii). As quintessentiallyuniversalistic and modernistic, human rights may do little to arrest the im-position of standardized social meanings even if it provides a certain spacefor the protection of diversity. However, this problem is not reserved forhuman rights alone. Citizenship conceptions of rights, such as Marshall’s(1964), are rooted within the idea of the modern welfare state (Crowley,1998), which can be understood and practised in forms that exclude particu-lar groups (e.g. migrants) or alternative visions of development and welfare(e.g. indigenous peoples). As Bakker (2007: 447) argues, ‘individualistic, an-thropocentric, state-centric’ approaches may blind civil society movementsand organizations to ‘thinking about new community economies’.


The instrumental critique finds a broader group of adherents. It rangesfrom those on the left who emphasize the countervailing power of the mar-ket and state (Bond, 2010; Hirschl, 2004) to a more realist centre-left andright that places greater trust in hard material forms of accountability, suchas economic incentives, electoral contestation, or collective bargaining. Thecentrality of discourse, law and analytics in rights approaches combined withweak intermediaries such as courts, professionals and lower-order govern-ment departments and donor agencies generates scepticism. Rights revolu-tions may be simply isomorphic, representing a change in form rather thansubstance (Meyer et al., 1997), too easily reduced to a ‘facade investment’like good governance in development (Moene and Søreide, 2015), wherebydomestic political elites make reforms which maximize international legit-imacy and support and minimize the need to change corrupt and unjustdomestic practices and structures.

As part of this critique, empirical evidence is seized upon regularly toreveal the futility of rights-based approaches. Early studies of the impact ofinternational human rights treaties and constitutional rights revealed littleevidence of progression on key civil, social and political rights (Hafner Bur-ton and Ron, 2007; Makinen, 2001) while studies of impacts of rights-basedapproaches by civil society organizations revealed mixed and largely local-ized impacts (Gready, 2009). Enthusiasm about ground-breaking decisionsby courts soon engendered criticism. Judgments against forced evictions ofurban pavement dwellers3 and rural farming and tribal communities4 in In-dia provided little sustenance against mass displacement as courts weakenedor were unwilling to enforce remedies (Rajagopal, 2007); South Africanshack dwellers in Cape Town remained consigned to their shacks after thecelebrated Grootboom judgment (Pieterse, 2007);5 while in Brazil early judg-ments on access to HIV medicines6 laid the basis for a middle-class captureof the courts to secure access to expensive medicines (Ferraz, 2009). Theweight of the critique seemed to confirm Hazard’s (1969: 712) conclusionand prediction that ‘the contribution of civil justice is diffuse, microcosmic,and dull’.

CRITICAL MODERNITY

These critical views deserve a proper hearing. However, the complaintssuffer from many of the familiar problems with general critical theory andpost-developmentalism, notably a reluctance to engage with aggregative and

3. Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545 (Supreme Court of India).4. Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 (Supreme Court of India).5. Government of the Republic of South Africa and Others v. Grootboom and Others (2000)

(11) BCLR 1169 (CC) (Constitutional Court of South Africa).6. RMS 6.564/RS (1996) (Superior Court of Justice - Brazil).


condition-based empirical studies, to recognize the progressive subalternforces that structure their claims as rights, and to acknowledge the compati-bility of rights with persistent and multiple modernities. Equally importantly,some strands of critical theory are inherently conservative, particularly thosestrands of realism which vitiate similar claims by powerful states and actorsand an uncritical post-modernity that legitimates hegemonic and regressivepower relations at the macro and micro levels.

Instead, a more open framework of critical modernity that allows schol-ars and practitioners to better understand, chart and constructively critiquethe uptake of rights in development is needed. Across a diverse range ofdisciplines, critical modernity constitutes a school of thought that is partlymethodological and partly substantive.7 Methodologically, it is suspiciousof fixed theories, methods and conclusions, demanding a ‘relentless re-viewing of processes and methods and continual reinvention of vocabulary’(Redhead, 2005: 39). Stagnant, rigid and unconstructive criticism is viewedas sceptically as sunny, optimistic and naıve positions: ‘Criticize everything,convert critique into proposal, criticize the proposal but still do something— that is the critical modernist credo’ (Peet, 1999: 198). In this respect,critical modernity is reminiscent of scientific realism with its blend of theoptimistic pursuit of truth and epistemological humility.

Substantively, critical modernity embraces certain features of both moder-nity and to a lesser extent modernization. In the context of development, crit-ical modernity ‘learns from Marxist, poststructural, and feminist critiquesof modernity, but retains belief in the potential, rather than the present prac-tice, of development’ (Peet, 1999: 198). Proponents are willing to acceptmodernism in terms of science, democracy, reason and welfare but retain ahealthy suspicion as to the corroding effects of capital and any form of elitepower (Peet, 1999: 255–6; also Hickey and Mohan, 2005b). Thus, criticalmodernity heralds personal agency and autonomy but does not subscribe to asingular Western expression of these. Rather, it is open to multiple moderni-ties that may pre-date or diverge from Western modernity (Eisenstadt, 2000)and which locate ‘people’s desire for development in individual subjectivi-ties and local social and cultural configurations’ (Raghuram, 2009: 106).

Despite the regular articulations of these elements in critical modernity,they are partly in tension — a factor that often goes unacknowledged. Theempiricist thrust can conflict with the substantive vision, while the demo-cratic and political economy threads are not always internally and externallyreconcilable. An illustration of this is Peet and Hartwick’s (2009: 289–90)move from theory to application.8 In their influential portrait of critical

7. The scholarship is limited but it has impacted on social theory (Morera, 2000), developmentstudies (Raghuram, 2009), education (Harkin, 1998), social work (Trygged, 2010) andespecially architecture (Redhead, 2005).

8. The same is evident in Hickey and Mohan (2005a). They acknowledge the more pragmaticHabermasian dialogical stream of critical modernity and emphasize scientific method but


modernity in development, democracy is both participatory (‘control’ by allmembers of society’s institutions as ‘direct and equal participants’) and de-liberative (‘collective discussion and reasoning’). Yet, democracy scholarshave pointed out that this is unfeasible: ‘pure conceptions of democracy’are ‘institutionally incomplete’ because of operational contradictions (Fung,2007: 455). Strong forms of participation will undermine the possibility forquality deliberation (Kis, 2009) while well-functioning deliberative modelsare unlikely to be fully participatory or representative (Dryzek, 2001: 665;Ryfe, 2005: 62–4).9

Equally, Peet and Hartwick’s description of radical democracy or demo-cratic socialism raises empirical contradictions. On the one hand, the as-sessment of the Soviet Union and Cuba is arguably compatible with criticalmodernity: they criticize ‘distant elites’ and the ‘military-industrial power-house’ but argue that the social successes in health, housing and welfarecannot be ignored (Peet and Hartwick, 2009: 284). On the other hand, theirPanglossian evaluation of contemporary Venezuela as ‘a living traditionof critical thought’ (ibid.: 290) slides over the long-standing authoritar-ian strains of the Chavezian revolution and some questionable priorities insocial policy. Likewise, Peel and Hartwick praise social democratic Euro-pean states for producing ‘growth with equity’ from the 1950s to 1970s(ibid.: 284), but these states diverge from their model of democratic social-ism. These economies were regulated as much as they were controlled, andrepresentative democracy has often been more salient than participatory anddeliberative democracy. In their enthusiasm for deep forms of democraticand economic participation, the authors seem to overstate the potential forconsensual collective action — a challenge raised not only by recent findingsin neuroscience and evolutionary psychology (Pinker, 2002) but also earlierscholarship in the reformist socialist tradition (Campbell, 1983: 56, 102).

This is but one illustration of the tensions. Other scholars move in the op-posite direction, emphasizing the more pragmatic, discursive and subjectiviststrains of critical modernity. Here, the emphasis is on Habermasian dialogueand respect for social identity (Harkin, 1998). However, this reading of crit-ical modernity is not too short a ride away from a highly reflexive third wayof ‘utopian realism’ (Giddens, 1994) which glosses too easily over highlyunequal material power relations. In my view, an applied critical moder-nity should maintain its commitment to its diverse elements, embracing andstruggling with the contradictions rather than privileging one tenet over theother.10 At its core, it should reflect the Gramscian elements of critical moder-nity (Morera, 2000: 27–45): a committed empiricism and a foregrounding

repeat Peet’s insistence that critical modernity begins with a critique of capitalism and endswith democratic socialism.

9. Any operational theory of democracy will need to reach some pragmatic equilibrium (Fung,2007).

10. A pertinent example is Fraser’s (2000) attempt to balance the recognition and resourcedimensions of justice.


of counter-hegemonic subaltern movements, alliances and communities.Likewise, critical modernity should resist simplistic assumptions about lawsuch as ‘resort to laws is an admission of social dysfunctionality’ (Peet andHartwick, 2009: 289). A turn to law may represent a failure in collectiveparticipation yet remain necessary in concrete counter-hegemonic struggles(Madlingozi, 2014); a phenomenon that de Sousa Santos and RodrıguezGaravito (2005) label ‘subaltern cosmopolitan legality’.

In thinking about rights, critical modernity represents a useful thoughlargely unidentified departure point for reconciling the turn to rights withcritical theory. It offers a way of working through the various claims andcounter-claims but helps legitimize, in a progressive sense, various expres-sions, trajectories and practices of rights. Yet, while it is possible to identifycontemporary authors whose work would fall under such a moniker, criticalmodernity is neither named nor developed as such.11 The partial exceptionsseem to be Hickey and Mohan’s (2005b) work on participatory develop-ment and Trygged’s (2010) truncated use of critical modernity to navigateuniversal and local rights standards in the field of international social work.

It is also possible to locate older accounts of rights that fall within thisframe. One example is T.H. Marshall’s (1964) historical and normativeaccount of citizenship rights in social welfare states.12 While Marshall ispluralistic as to justifications for rights, his sociological and structuralistperspective privileges equality of status, as he highlights the ‘stigma’ ofexclusion and the unfairness of elite ‘privilege’ (ibid.: 72, 80–1, 84). Hisaccount is equally pluralistic as to its choice of rights, seeing civil and po-litical rights as historical conditions for sustainable social rights rather thanas axiomatic obstacles. Yet, Marshall’s vision of social rights is far fromminimalistic and his respect for liberty rights is far from absolute. Throughsocial rights, status is reconfigured by legislative and programmatic inter-ventions that seek partial de-commodification of the value of citizenship.13

The principal objective is equity and the reduction of inequality, the move-ment from ‘a modicum of economic welfare and security to the right to shareto the full in the social heritage and to live the life of a civilized being’ (ibid.:72). Marshall also uses a dialectic common to critical modernity and relatedtheories in which progress may be inchoate as long as it is dynamic: greater

11. General examples would include Rodrıguez Garavito (2011) and Madlingozi (2007) whileSimmons’s (2009) committed empiricism in evaluating rights claims and Sen’s (2009)review of pre-Enlightenment rights and democratic practices in Asia are good examples ofthe different elements of a rights-inflected critical modernity.

12. Contemporary citizenship theory has criticized the absence of active citizen participationand the lack of identify politics in Marshall’s account, arguably because the shape of theemerging welfare state in the middle of the twentieth century influenced Marshall’s visionof social citizenship.

13. See further discussion in Esping-Anderson (1990: 21–3): ‘If social rights are given the legaland practical status of property rights, and if they are granted on the basis of citizenshiprather than performance, they will entail a de-commodification of the status of individualsvis-a-vis the market’ (ibid.: 21).


equalization is driven through the creation of ‘an image of ideal citizenshipagainst which the achievement can be measured’ (ibid.: 84).

A similar example is Campbell’s (1983) attempt to fuse leftist thoughtwith rights. In an explicitly ‘reformist’ vein, Campbell argues that interesttheories of rights are compatible with socialism, particularly as they providespace for class-sensitive protections and collective rights that may be looselycorrelated with individual material self-interest. Like Marshall, he stronglyaffirms ‘traditional’ liberty rights but he also prioritizes social and economicrights, in particular rights to own the means of production, employmentand welfare. Interestingly, Campbell is more positive than Marshall aboutpositivizing rights in law (including in abstract constitutional forms) on thegrounds that such rules can prefigure substantive forms of justice.

In the remainder of this article, the methodological dimension of criticalmodernity will be taken up through a discussion of the need for conditionedempiricism while the substantive dimension will be analysed with a focuson the coherence of rights with subaltern claims.

CONDITIONED EMPIRICISM

Empirical presumptions pervade many of the surveyed critical approachesto rights in development. Yet, the claims that rights lead inevitably to mate-rial minimalism, thin participation, or weak enforcement require validation.Moreover, the evidence is complicated — partly because of methodologicalchallenges and partly because of its conditional nature.14

For a start, whether rights are modest or transformative is partly a matterof context. Take international human rights treaties. Whether these legalstandards are materially more progressive or regressive than local politicaldemands, laws or policies is largely determined by a country’s level of ex-isting institutionalization and realization of rights. Moreover, some treaties,such as conventions on child rights and disability rights, are decidedly trans-formative in their objectives. The consequence is that these standards raisemultiple issues of compliance for developed countries as much as for devel-oping countries (Skold, 2013). Even when an international standard is lessdemanding, regression to a lower global minimum is determined by the in-terface with domestic politics and various intermediaries of rights. Rationalchoice approaches posit that the likelihood of policy regression is a functionof the domestic political costs and benefits to political actors — it is not agiven (Guzman and Linos, 2014). Likewise a discursive institutionalist ap-proach places emphasis on how predominant conceptions of rights amongstkey actors and epistemic communities inflect their interpretation of rights

14. On methodological questions concerning impact, from attribution to measurement, see thediscussions in Sano (2015) and Langford et al. (2014).


(Langford, 2014b). Thus, we need to be cautious in presuming whether aparticular standard or claim is progressive and transformative.

Turning to the democratic critique, it is especially bracing for rights advo-cates. Rights approaches are frequently promoted as a solution to watered-down notions of participations in development (UN-OHCHR, 2008) ratherthan a democratic problem. These rights include not only macro-level par-ticipation rights (free elections, free speech, unionization and association)but also sectoral-level participation in public policy, relevant to a host ofsocial, environmental and civil rights. ‘Rights-based participation’ is a con-scious attempt to move beyond mere consultation and implementation asparticipation (as is commonly found in development) and to give substanceto the idea of ‘genuine’ participation.

Now, the critics are partly right. Literature and practice reveal many ex-amples of thin notions of participation, even amongst proponents of thickerforms. Genuine participation is not always synergistic: it often entails aloss of power for some actors. Nonetheless, the literature is studded withcase studies of the progressive uses and appropriations of rights that permitsocial movement organization and democratic experimentalism in diversecountries across the developing world (Andreassen and Crawford, 2013;Gaventa, 2006; Madlingozi, 2010). Many of these instances involve profes-sionals and institutional actors in various roles but preserve space for thegenuine autonomous space of people’s movements (Madlingozi, 2014), andare thus consistent with a critical modernity that ‘favours alliances that drawtogether the powers of the oppressed majority to counter what is otherwisethe overwhelming power of the exploiting minority’ (Peet with Hardwick,1999: 198).

This conditional understanding likewise extends to the instrumental ef-fects of highly diverse rights-based approaches. For instance, Gready (2009)reviews studies of local non-governmental organization (NGO) program-ming that compare the outcomes of human rights and non-human rightsapproaches. He finds that ‘RBA and non-RBA projects led to immediateimpacts which benefit stakeholders, but the former generated a greater rangeand depth of positive impacts’ due to a ‘focus on underlying causes ofpoverty’ (ibid.: 397). Other studies examine social accountability tools, of-ten championed by domestic rights and developments groups seeking tomeasure performance, with wildly varying effects in shifting governmentpractice (Gauri and Gloppen, 2014; McNeil and Mumvuma, 2006).

In terms of policy design, qualitative and quantitative evidence showsthat entitlement-based legislation backed by courts can be particularly effec-tive (Heymann et al., 2012; Huchzermeyer, 2003). This is because law canprovide a clear and enforceable yardstick for civil society, judges or otheractors from which to generate compliance. Yet, even remote internationalhuman rights treaties have been found to be more important than previouslyassumed in highly quantitative evaluations. New, multivariate analysis findsmodest effects, particularly when treaties are mobilized in domestic politics


(Neumayer, 2005; Simmons, 2009), and especially in transitional middle-income states (Simmons, 2009). Even an under-ratified treaty such as ILOConvention 169 has strengthened indigenous peoples’ claims in many de-veloping and developed countries (Courtis, 2009; Langford and Bhatterai,2011; Semb, 2012), particularly where indigenous groups have exploitedambiguous provisions on land rights.

However, the level of effectiveness can vary considerably amongst in-ternational instruments. For instance, the concrete application of the UNDeclaration on the Right to Development has been quite limited (Oduwole,2014) making it difficult to speak of any significant impact. On the one hand,this illustrates the challenges of employing international human rights lawto advance global justice within an inter-state realpolitik. On the other hand,it underscores the importance of consensus in international human rights.Unlike most other standards, states were heavily divided over the adoptionof the Declaration — a division that persists whenever the Declaration isinvoked. It is thus notable that another soft law standard of a similar ilk,the UN Guiding Principles on Human Rights for Business from 2011, forall its normative shortcomings, has had more of an impact in a short periodof time on the policies of developed states (Taylor, 2013), partly because itwas adopted by consensus.

Other conditional factors behind programmatic and legalistic uses of rightsare also identified in the literature. Banik (2010) argues that human rightsapproaches to development are less effective in rural Africa because literacyis lower and the state is less present. Polzer Ngwato and Jinnah (2014)question whether rights strategies are useful for non-nationals, who maybe wary of using the language of claims when confronted with a hostilecitizenry; some have suggested that advancing rights in the private sector ismore challenging than in the public sector (Liebenberg, 2014; Muralidhar,2008).

Turning to litigation, which some might consider to be the sine qua nonof rights approaches, research often arrives at similarly mixed results. Thereis a strong variation in expected effects although occasionally one finds dra-matic material, political and/or symbolic gains.15 An in-depth empirical andquantitative study of five developing countries by Gauri and Brinks (2008)found that ‘it is clearly not the case . . . that the direct effects were limited tothe elites or even to the middle class’ while millions of marginalised groupsbenefited ‘indirectly’ from health and education policy advances that werecatalysed by individual and public interest cases (Gauri and Brinks, 2008:338-39). Moreover, claims that rights litigation generally has a maldistribu-tive impact have been challenged on empirical grounds (Berry, 2007; Brinksand Gauri, 2014; Ginsberg, 2003; Rodrıguez Garavito, 2014).

15. The literature is expanding rapidly now (see Bergallo, 2011; Gauri and Brinks, 2008;Hillebrecht, 2014; Jones and Stokke, 2005; Langford et al., 2014; Rodrıguez Garavito,2011; Simmons, 2009; Wilson, 2011).


Others highlight the political effects. Muralidhar (2008) notes how litiga-tion on the right to food in India precipitated larger social movements in ad-dition to extending midday meal schemes throughout the country; RodrıguezGaravito (2011) finds court-induced shifts in public discourse on the statusand humanity of the millions of internally displaced in Colombia; and eventhe high-profile but ultimately unsuccessful Mazibuko litigation on the rightto water in South Africa achieved largely its material mission: bottom-uplegal mobilization prevented the City of Johannesburg from taking politicaladvantage of its legal victory in the final round at the Constitutional Court.In a textbook case of ‘winning while losing’, demands for an expanded basicwater allocation and less discriminatory use of prepayment meters were soonreflected in policy (Dugard and Langford, 2011).

The factors behind impact and compliance obviously vary across thesecases and judgments. However, the variables of civil society mobilization,political/bureaucratic contingency’,16 and the political and economic reflex-ivity of the remedial orders often feature. For instance, in their analysis ofmobilization on the right to social security, Goldblatt and Rosa (2014) foundthat approaches that combined political and legal mobilization were oftenmore successful than those which concentrated on either strategy. Thesefindings correspond to Brinks’s (forthcoming, 2016) cost inequality: civilsociety may be able to increase the cost of non-compliance, while bureau-cratic or political resistance may deepen the cost of compliance.

An illustration of these outcomes and dynamics is the South African caseof Grootboom (see footnote 5). Living in perilous conditions, and suffer-ing from repeat evictions from different informal sites on the outskirts ofCape Town, the 390 adults and 510 children who made up the ‘Groot-boom community’ filed a complaint alleging that their constitutional rightto housing was violated, and sought different orders for temporary and per-manent housing and improved social services. The eventual judgment fromthe Constitutional Court is the most widely-known and celebrated judgmenton social rights with its eloquent finding on justiciability, its requirementthat all government programmes meet a reasonableness test, and its concreteorder that the government implement an emergency housing programme forthose in desperate need.

Certainly, the judgment can be critiqued for a measure of minimalism: itwas somewhat deferential on other aspects of government housing policy,declined to set a minimum standard for the right to housing, and missedthe opportunity to consider broader questions of equity in housing policydesign (Langford, 2014a; Liebenberg, 2008; Roux, 2002). However, someof these issues became only apparent in hindsight and were exacerbated bythe Court’s recent caution.

16. Note the study by Wilson and Rodriguez (forthcoming, 2016), which finds that socialrights judgments directed against smaller public and private entities were more likely to beimplemented than decisions against larger ones.


Table 1. Impacts of the Grootboom Case

Grootboom Community Systemic Effects

Material Impacts � Building materials and services(2001–)

� Protection from eviction(2001–)

� Permanent housing process forcommunity starts (2007–9);housing for 90% (2012)

� National Emergency HousingPolicy (2005)

� Western Cape andWallacedene Housing Policy(2001–)

� Socio-economic rights andeviction jurisprudence (2001–)

� Slum Upgrading Policy (2005)� Grootboom proofing of

policies (2002–10)

Political and SymbolicImpacts

� Increased leverage withmunicipality

� Some but limited alliancebuilding by community

� Community self-perceptionsmay have changed

� Judgment used in mobilizationand leverage of power in othercommunities

� Local-wide forum on housingprocess

� Shack dwellers viewed asrights holders by somebureaucracy and planners

� But marginal effects onbroader perceptions of shackdwellers

Source: Langford (2014a)

More importantly, the decision is used as a, if not the, prime example fordemonstrating the negligible impact of courts. Pieterse (2007: 818) strikesa common tone when he says that ‘there was limited compliance with theorder’, and ‘[more] significantly, the order did not result in the alleviation ofthe housing needs of the successful litigants’. This critique was heightenedby the death of the lead applicant. It was widely reported that in August 2008,Mrs Grootboom died ‘homeless and penniless’ in her shack in Wallacedene(Joubert, 2008). For critics, these results revealed the lack of potency ofsocio-economic rights litigation (Hirschl, 2004).

These broad empirical brushstrokes of the case’s impact require deeper in-terrogation. Not only do they obscure different methodological assumptions,but the evidence is second-hand and outdated: a 2005 newspaper article is themost commonly cited source in academic and mainstream literature.17 More-over, the research has failed to test the conclusions against an array of casesthat arose in similar circumstances. Using a range of sources (interviews,statistics, policy documents, jurisprudence), I have assessed the impact of theGrootboom case: the results are shown in Table 1 (from Langford, 2014a),which sets out the material, political and symbolic (communicative) effects.

17. See Gauri and Brinks (2008); Hirschl (2004); Hirschl and Rosevear (2012); Yamin andGloppen (2011).


Although the court’s order was limited — endorsing a settlement orderfor basic housing materials for the community and requiring only the estab-lishment of an emergency housing programme for persons in desperate need— its impacts have been much broader than acknowledged. The communityavoided further eviction, gained improved access to basic services and, even-tually, permanent housing; the judgment catalysed the development of anemergency housing policy (although poorly implemented), developed thejurisprudential foundation for socio-economic rights litigation and helpedslow or eliminate a pattern of large-scale evictions.

Of key importance is that 90 per cent of the community achieved perma-nent housing by 2012. In the wake of the judgment, the local municipalitydeveloped a housing plan for the local area even though it was not formallyrequired (a response which is commonly missed in the literature). However,implementation for the Grootboom community was delayed by the factthat other communities were judged to be in a more desperate situation andbuilding contractor corruption frustrated the initial housing delivery process.Nonetheless, the end goal of permanent housing was achieved. Politically,the judgment also helped lead to the formation of a community-wide hous-ing forum for shack-dweller groups as they engaged with municipal housingplans, although the community’s own self-organization was not particularlywell-sustained. Admittedly, these political effects remain largely localizedand the judgment did not achieve the systemic political and partly symbolicimpacts generated by the concurrent legal mobilization by the TreatmentAction Campaign on HIV/AIDS (Heywood, 2009).

Yet it is important to move beyond the headline cases. Even less anal-ysed is the impact of subsequent housing rights litigation that emerged fromidentical circumstances to the Grootboom case, namely attempted forcedevictions by public authorities. In many of these cases, a similar patternemerged: a negative violation by the state triggered positive demands bythe victims. Communities invoked the right to housing as they mountedcounter-claims for better housing or improved alternative accommodation.These cases therefore present an opportunity to try to identify some broadertrends concerning the effectiveness of rights-based strategies.18 Table 2 in-cludes the Grootboom case, along with seven additional cases which emergedfrom attempted forced evictions of urban settlements in Western Cape andGauteng (they are analysed in-depth elsewhere; see Langford, 2014b). Indrawing together what we know about the different cases — largely materialand political impacts — we can plot them in binary form. Table 2 lists fivetypes of direct impacts for communities, together with two broader indirect

18. Indeed, the ways in which communities have legalized their struggles have taken differentroutes. In the cases discussed here, communities contacted lawyers directly, or High Courtjudges called on lawyers to represent defendant communities (as in Grootboom). But in onlyone case (Olivia Road) was a proactive litigation strategy developed from the outset, witha broader civil society coalition as part of a larger city-wide strategy.


Table 2. Community and Systemic Impacts of Eight ‘Evictions’ Cases

Case

Not Evictedor Relocated

to LowerStandard

ImprovedServices orEmergencyHousing inShort Run

FormalHousing in

5 Years

FormalHousing in10 Years

ImprovedCommunityOrganization

PolicyChange orInnovation

LegalPrecedent

Used AverageGrootboom 1 1 0 1 0 1 1 0.71Valhalla 1 1 1 1 1 1 1 0.64Modderklip 1 1 1 1 1 1 1 1.00Olivia Road 1 1 0.5 n.a 1 1 1 0.92Bardale 1 1 1 1 0.5 1 0 0.71Joe Slovo 1 0 0.5 n.a 1 1 1 0.83Makause 1 0 0 n.a. 1 0 0 0.25Mandelaville 0 0 0 1 0 0 0 0.14

Source: Langford (2014a)

impacts. A score of 1 is given if there was a substantial change in thesedependent variables after litigation and 0 if there was not.

The results suggest that, in the majority of cases, litigation has helped pre-vent evictions, immediately improved basic services (although to varyingdegrees), strengthened community organizations, and forced local munici-palities to be more innovative in their policies. In cases that pre-dated 2007,permanent housing has been achieved and, in each case, the litigation appearsto have played a role in partly accelerating the timetable. However, the impactis more inconsistent for the other factors, particularly the securing of per-manent or formal housing in a shorter period. The last column also gives theaverage score across all factors. If we use Grootboom as a yardstick, it is no-table that these impacts — if weighted equally — were greater in some of thesubsequent cases, such as Modderklip, Olivia Road and Joe Slovo. However,the Makause and Mandelaville litigations have had much less effect, particu-larly Mandelaville. Equally importantly, these cases display some conditionsfor success, which strongly resonate with the earlier discussion of criticalmodernity and subaltern cosmopolitan legality. In resisting urban displace-ment, highly fragmented communities — which struggle to form nation-widesocial movements — relied heavily on alliances with local social movements,legal professionals, independent architects, or responsive judges willing todevelop creative remedies that leveraged greater rates of compliance.

It is important to acknowledge that many critics use a different baselinein measurement of impact, a model of ‘idealist’ expectations that measureseffects against future expectations rather than improvements on a historicalbaseline. On the face of it, this approach permits a more objective assess-ment: contrasting the promise of a particular rights strategy with its eventualoutcome. But this method suffers from the challenge of nailing down anacceptable expectation. For instance, Feeley (1992: 751) criticizes Rosen-berg for mounting his entire idealist expectations baseline on the publicstatements made by lawyers in public-interest litigation: the bombast of


media sound bites may not be a reliable indicator for the real expectations ofthe litigants. Analysis based on idealist baselines needs to take into accountpolitical, economic and legal constraints and the necessary time span. Thus,given the constraints in advancing progressive development, a before-and-after approach that takes account of counterfactuals and the availability ofnon-rights-based opportunity structures may be more appropriate. Workingwith such a baseline, as this section has shown, allows us to identify concretechanges which are attributable to rights-based strategies but with the provisothat they are variable, conditional and sometimes unpredictable.

SUBALTERN CLAIMS

One of the curious aspects of rights-based approaches is their persistenceand attraction beyond states, donors and professionals. Rights possess a par-ticular quality in which they are malleable in incorporating new and diversedemands and yet provide a unifying platform for common action. One onlyhas to follow the post-2015 development agenda process to see this paradoxin action. Not only have civil society movements and groups around theworld made human rights the benchmark for the new Sustainable Develop-ment Goals (SDGs), but more demanding and egalitarian demands are nowarticulated in human rights language (see The Post-2015 Human Rights Cau-cus, 2014). While lawyers and philosophers tend to be uncomfortable withoverly dynamic and explicit egalitarian uses of rights, it is a phenomenonquite common to the history of rights, particularly in more political settingsand occasionally in courts.

A further paradox is the turn of indigenous peoples and transnationalpeasant movements to the use of rights in their campaigns, a strategy thatis not simply tactical. Here we can name collective land rights, rights tothe city, rights to food sovereignty, rights to water, etc. Not only do wefind impoverished groups articulating their claims as rights, but groups withstrikingly different and alternative worldviews, suggesting a multiplicityof modernities. Even the right to property — that most quintessential ofliberal rights — has been embraced by indigenous peoples in Latin Americato defend and claim land rights (Pasqualacci, 2013). In India, there is alively debate as to whether constitutional amendments weakening the rightto property were wise in the aftermath of the Supreme Court’s 1950s and1960s pro-property judgments. While the right to property was invoked inthat period to protect economic elites, contemporary deprivations of propertyrights regularly concern the poor, as the state has endorsed or driven large-scale displacement and eviction. It is notable that the most progressivewelfare states in the world, the Nordic countries, are firmly based on the ruleof law and protection of property rights (Strath, 2004).

Thus, the simplistic conflation of rights, and especially human rights, withWestern and modernist values and interests should be avoided. Indeed, the


non-Western contributions to universal human rights should not be over-looked (Sen, 2009). For instance, a world-wide study preceded the draftingof the Universal Declaration of Human Rights, and the Second World Waraffected Asia and other parts of the world and produced intellectuals anddiplomats who were equally enamoured of the concept (Glendon, 2001).Inclusion of human rights in the UN Charter was forcefully demanded by‘small’ states — from Brazil to Lebanon to Australia to the Philippines —which were wary of the enhanced role of the five large powers under the UNCharter.

Likewise, at the local level, one has to respect the manner in whichrights are deployed for local struggles. Local uses of rights rarely mirrorconstitutional or international standards, but neither do they wholly reflectlocal custom. According to Robins (2008: 11–13), individuals use the leversand discourse of rights as ‘citizens’ (we could also add ‘humans’) when itsuits them, but they are just as likely to turn to other tactics in their capacityas ‘subjects’, for example through the forms of accountability embeddedin customary and patronage-based relationships. Moreover, while socialmovements generally prefer highly non-institutional and disruptive actionrepertoires (Tarrow, 2005), if they lose their newsworthy or mobilizingnovelty or are subject to state control (Taylor and van Dyke, 2004), moreinstitutionalized tactics may be one option within a constrained politicalopportunity structure (Madlingozi, 2014; Scheingold, 1974).

Of course, it is possible to see the more appropriating and neoliberal handof human rights in the last two decades. The third wave of democracy fromthe 1980s has been characterized as a ‘Janus-faced transition that embracedpolitical democratisation and economic liberalisation’ (Habib, 2014: 137).The rise of globalization led to the promotion of investor and trade rights ininternational law (Langford, 2011) — increasingly recognized and promotedas human rights (Dupuy et al., 2009) — and early enthusiasm over rightsapproaches was accompanied by a sometimes indiscriminate and excessiveuse of aid conditionalities and sanctions, the latter being highly appropriatein the case of apartheid South Africa but rather questionable in the case ofIraq.

Thus, the answer to the politicization of rights may be a politics of rights:affirming some interpretations and uses, attacking others; drawing on theprinciples and pedigree of rights rather than their form or author. As Douzinas(2007: 295) argues:

What must be attacked is the theological mask of sovereignty, represented today by thehegemonic power rather than its pale homonymic imitations . . . we must be aware that wecannot fight sovereignty and the nation-state in general without risking giving up the prin-ciples of equality and self-determination to the emerging super-sovereign. These principleswere inaugurated by, with and against national sovereignty. They are today an indispensablebarrier against ideological, religious, ethnic or capitalist hegemonies which masquerading asuniversalism or cosmopolitanism, claim the dignity of the cosmos that is nothing more thana marketplace or the moral rationalisation of particular interests.


CONCLUSION

The slow march of rights into the mainstream of development studies andpractice should be met with a critical reflex. Even if one is an ardent advocateof rights, alertness to their inherent fragilities and their ready appropriationis crucial. We need to be wary of optimistic prognoses or enthusiastic dec-larations of rights revolutions. It is too easy to recount the use of rights thatfail to advance progressive, participatory and alternative forms of justice.The response requires empirical sensitivity and theoretical reflexivity, whichallow for a more dynamic, constructive and grounded form of engagement,as is called for in critical modernity. Critical theorists risk otherwise play-ing into the hands of conservative critiques by failing to offer constructivealternatives. As the case of Grootboom reveals, it is possible to identifythe particular conditions under which rights strategies help advance counter-hegemonic and subaltern struggles. The question is thus not so much whetherto maintain rights but how to ensure that they are directed as far as possibletowards facilitating transformational spaces and achieving transformationalends.

The use of the idea of critical modernity might also be taken a step furtherin the field of rights. One problem with the critics is that they view rights asan ideology. But it is doubtful whether rights are an ideology. We rarely seeany political parties with that moniker in the title (although we do see greenparties representing environmental interests). This is for two reasons: first,rights tend to raise challenges across the political spectrum; and, second,they are largely used in oppositional terms. Even the early European socialdemocratic parties championed rights until they gained power in the 1920sand 1930s. Rights might be thus viewed as a critical norm — a tool forthe minority, the outsider, the disempowered; an analytic which evaluatesand resists unjust arrangements, relationships and institutions. Like criticalmodernity itself, rights perhaps function well as a weapon for constant andempirical critique with a search for contextual solutions, but less well as thebasis for over-arching political and policy programmes. Thus, one versionof rights might fit seamlessly with both the method and substance of criticalmodernity, meshing with Cox’s notion of the proper role of critical theory insocial science, in its call for a ‘feasible transformation of the existing world’(Cox, 1981: 130).

This also means taking a constantly critical approach to what the rightscommunity is offering to development practice. A reflexive standpointmust force us to focus on those dimensions of rights approaches that re-main under-developed but carry its greatest potential, namely notions ofcitizenship, agency and accountability. In the development of rights ap-proaches, human rights have arguably gained too much of an ascendanceeven if this universalism can provide a linguistic or strategic resource. Areturn is needed to normative citizenship approaches that seek to establishparticipation as a set of grounded political rights with a deep respect for


individual and popular agency (Hickey and Mohan, 2005b); to equalize dis-tributional differences and promote universal policies within nation states(Fischer, 2013; Marshall, 1964) — even equity at the global level (Caney,2001); and to embed accountability in institutional, economic and socialrelations (Marshall, 1964).

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Malcolm Langford (e-mail: [email protected]) is a PostdoctoralFellow at the Norwegian Centre for Human Rights and Pluricourts Centreof Excellence, University of Oslo, and Senior Researcher, Chr. MichelsenInstitute (CMI). He is also the Co-Director of the Centre on Law and SocialTransformation, University of Bergen and CMI.

Rights, Development and Critical Modernity

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