Young: Narrative, Metaphor and Human Rights Law: When Rights-Talk Meets Queue-Talk

Katharine Young (Boston College - Law) has posted Narrative, Metaphor and Human Rights Law: When Rights-Talk Meets Queue-Talk (in Narrative, Metaphor and the Law, Mike Hanne & Robert Weisberg eds., forthcoming). Here's the abstract:

Much contemporary legal scholarship on human rights sees the lapses between rhetoric and reality, symbol and substance, and rights-talk and rights-action, as human rights law’s greatest deficiency. That approach, however, fails to acknowledge the power of the human rights vocabulary to change people’s political commitments, and with them, especially in democratic states, the authority, meaning, and ultimately, effectiveness of human rights law. Yet the power of language cuts both way: it is both constitutive and distortive of rights. This chapter, which is part of an edited collection by Mike Hanne and Robert Weisberg, entitled Narrative and Metaphor in Law (forthcoming, 2017), explores how narrative and metaphor provide the literary, cognitive, and cultural frames for events and issues to be understood as part of human rights law. Metaphor, in particular, is understood not simply as an ornament to language, but as a fundamental scheme by which people conceptualize and organize their moral, social, and legal worlds.

With this contribution in mind, this paper examines a metaphor which frequently accompanies rights talk: the metaphor of “the queue”. The queue, or waiting line or wait list, is ubiquitous in modern, especially urban, life. It distributes resources, usually on a first-come, first-served basis, in conditions of scarcity or where simultaneous provision is not possible. For example, surgery wait lists for health care or waiting lines in the emergency room, housing wait lists or the waiting lines for shelters, or visa entry wait lists for immigration, or for deportation, are all pivotal aspects of human rights law configured by a queue. The common experience of participating in other queues, in transport, recreation, or other contexts, helps to explain the metaphor’s resonance.

And yet, the metaphor’s connection with rights provokes disagreement around notions of entitlement. The queue institutionalizes, but also discredits, the political and social reordering compelled by human rights law. By using examples of “queue talk” around the constitutional right to housing in South Africa, the paper examines how the queue metaphor occupies the doctrinal vacuum of the obligation to “progressively realize” certain human rights, particularly economic and social rights, and particularly when positive obligations are at issue. Moreover, it explores how the metaphor exaggerates the state provision of a good or service, rather than the state’s regulatory, or private law, levers of control. In each respect, the queue metaphor reveals severe limits on what human rights law makes possible.