'Foucault's Critical (Yet Ambivalent) Affirmation: Three Figures of Rights' (2011) 20(3) Social &...

Article

Foucault’s Critical(Yet Ambivalent)Affirmation:Three Figures of Rights

Ben GolderUniversity of New South Wales, Sydney, Australia

AbstractMichel Foucault is not often read as a theorist of human rights. On the one hand, there isa tendency to read his works of the mid-1970s – his celebrated poststructuralist geneal-ogies of subjectivity, of discipline, of bio-politics, and so forth – as proposing a critique ofrights discourse which definitively rules out any political appeal to rights. On the otherhand, somewhat curiously it has to be said, there is a tendency to read his works of thelate 1970s and early 1980s – his perhaps less celebrated concern with ethics and withtechnologies of the self – as tacitly re-introducing a liberal humanist notion of subjectivityand, with that, an embrace of orthodox rights discourse. Beginning from this curiousdisjunction between the rejectionist Foucault and the liberal Foucault, this article attemptsto articulate a Foucauldian politics of human rights along the lines of a critical affirmation.Neither a full embrace nor a total rejection of human rights, the Foucauldian politicsof human rights developed here elaborates (and attempts to connect) several disparatefigures in his thought: rights as ungrounded and illimitable, rights as the strategicinstrument-effect of political struggle, and rights as a performative mechanism of community.

KeywordsFoucault, critique, human rights, politics of rights, strategy

Introduction

Michel Foucault is often, perhaps more often than not, read as being a trenchant critic of

rights discourse.1 Paul Patton aptly captures this orthodox interpretation of the celebrated

Corresponding author:

Ben Golder, Faculty of Law, UNSW, Sydney, NSW 2052, Australia

Email: [email protected]

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French thinker when he writes that: ‘Foucault is widely supposed to have a problem with

regard to the language of rights’ (2004: 43). And there is undoubtedly much textual

warrant for this widely supposed ‘problem’ both within Foucault’s published work and

throughout his posthumously published lecture courses at the College de France. Indeed,

as is well observed elsewhere (Pickett, 2000, 2005: 77–99), Foucault’s problem extends

beyond the language and the rhetoric of rights claims to encompass the metaphysical pre-

suppositions of natural (and human) rights discourse as well as the very utility of rights

as political instruments.

On the one hand, of course, Foucault consistently refuses the notion of an anthropo-

logical constant (Chomsky and Foucault, 1997: 109–110, 132). That is, he is suspicious

in all his work of the idea of an atemporal and universal human essence that could serve

as the basis for rights claims. Indeed, Foucault offers more than a refusal or a suspicion of

the idea of human essence, insisting moreover upon a Nietzschean genealogy (Butler,

1990: viii–ix) which asks after the constitutive exclusions, erasures and remainders of

‘the human’ and how it came to ‘be’. On the other hand, as is perhaps equally well

known, Foucault’s quarrel with rights discourse was not simply with the alleged ‘ground’

of, or basis for, rights but also with their complicit, constitutive relations to modern

technologies of power. Thus, in a famous (and broadly representative) passage of

Discipline and Punish, he observes:

Historically, the process by which the bourgeoisie became in the course of the eighteenth

century the politically dominant class was masked by the establishment of an explicit, coded

and formally egalitarian juridical framework, made possible by the organization of a parlia-

mentary, representative regime. But the development and generalization of disciplinary

mechanisms constituted the other, dark side of these processes. The general juridical form

that guaranteed a system of rights that were egalitarian in principle was supported by these

tiny, everyday, physical mechanisms, by all those systems of micro-power that are essen-

tially non-egalitarian and asymmetrical that we call the disciplines. And although, in a for-

mal way, the representative regime makes it possible, directly or indirectly, with or without

relays, for the will of all to form the fundamental authority of sovereignty, the disciplines

provide, at the base, a guarantee of the submission of forces and bodies. The real, corporal

disciplines constituted the foundation of the formal, juridical liberties . . . The ‘Enlightenment’,

which discovered the liberties, also invented the disciplines. (1991: 222)2

For Foucault, the failure of the juridico-discursive model of power (in which a sanction-

ing power is figured either as limiting or protecting a primal, ontologically pre-existent

zone of subjective liberty) was not simply a failure of a certain dispositif to correspond

with the actuality of political practice (Foucault, 2003b: 13–14). Rather, this routine

(epistemological) failure of orthodox normative political and legal theory to comprehend

the productive circuits of power was itself (politically) productive – it functioned to dis-

avow and to foreclose inquiry into the disciplinary production of subjects and of objects

of regulation. For Foucault, then, formal regimes of rights thus simultaneously both

‘mask’ and enable disciplinary projects. They do not stand apart from societal relations

of power but are fundamentally implicated in them – facilitating, transmitting and nat-

uralizing relations of domination even as, indeed especially as, they claim to emancipate

284 Social & Legal Studies 20(3)

(Brown, 1995: 96–134; Ivison, 2008: 186; Souter, 2008). It is hardly surprising from this

perspective that political mobilizations of rights discourse appear not only to be ineffect-

ive but, more crucially, performatively to reinforce the very sovereignty which they

claim to limit, contest or displace (and, correlatively, to shore up, rather than ‘liberate’,

the disciplinarily-produced subjectivities upon which they rely). Thus ‘we are in a sort of

bottleneck’, laments Foucault in the second lecture of ‘Society Must be Defended’, and

‘we cannot go on working like this forever’ (2003b: 39). Such are his ‘dismal conclu-

sions with regard to the potential of rights as a language of political contestation or resist-

ance’ (McClure, 1995: 162), indeed even his ‘denial of any potential political value’ to

the invocation of rights at all (Hunt and Wickham, 1994: 63).3

And yet whilst Foucault is taken to provide a withering critique of the discourse of

rights, he is nevertheless also read by many as endorsing and affirming a certain politics

of rights. In the passage of his just quoted from ‘Society Must be Defended’, he goes on

famously, if somewhat elliptically, to call for a ‘new right that is both antidisciplinary

and emancipated from the principle of sovereignty’ (2003b: 40).4 This suggestion, along

with Foucault’s own increasing reliance upon a political vocabulary of rights in his

philosophical, journalistic and political interventions from the mid-1970s onwards, has

led many to argue that Foucault becomes, in this late work, a proponent of rights. In light

of his affirmation of a ‘right to compensation, care and damages’ (2000g: 374), of a right

to asylum (2000b: 427), of a right to suicide (2000g: 380), of a right to choose one’s own

sexuality (quoted in Keenan, 1987: 30), and indeed of several other rights,5 many com-

mentators have discerned in Foucault’s work ‘an embrace of human rights’ (Dosse,

1997: 336). In the most developed of recent readings along these lines – Eric Paras’s

intellectual biography, Foucault 2.0: Beyond Power and Knowledge – the author

identifies a teleological ‘process by which Foucault abandoned his hard structuralist

position and later embraced ideas he had labored to undermine: liberty, individualism,

‘‘human rights,’’ and even the thinking subject’ (2006: 4).6 Et voila: ‘Foucault the neo-

humanist’ (Wolin, 2006).

How are we to interpret this supposed Foucauldian volte-face? As a sign of genea-

logical exhaustion? Of a ‘capitulation in the face of the moral superiority of humanism’

(O’Leary, 2002: 117)? Of inconsistency, crypto-normativism or performative contradic-

tions (Habermas, 1997), or indeed of aporetic, paradoxical blind spots in Foucault’s

thought?7 Or is it perhaps a sign of something altogether more mundane, more ‘practical’

– a pragmatic accommodation to the political and discursive exigencies of the age of

human rights, a sacrifice of critique to the imperative of achieving ‘positive change’

within the here-and-now (Pickett, 2005: 97)? I am myself suspicious of readings of

Foucault which aim to domesticate the late work to a question of reversal, recantation

and accommodation to liberal humanism. However, here my approach will not be to

make Foucault’s various invocations of, and engagements with, rights coincide seam-

lessly with his genealogies of power-knowledge or even to attempt to align these invo-

cations with the later work on technologies of the self and ethical self-fashioning in a

way which resists this reading. Rather, taking my cue from the work of Wendy Brown

(in this connection, see 2000), I want to resist the logic of ‘for and against’ which struc-

tures much writing on rights and which itself structures either implicitly or explicitly

many temporalizing readings of Foucault along the lines just sketched – that is, putting

Golder 285

it crudely, Foucault was against rights in his genealogical prime but somehow came to be

for them in his ethical dotage.8 My interpretation of Foucault’s stance on rights, of which

the present article forms a part, is that he aimed to deploy rights discourse critically in the

service of a range of different political commitments and engagements but that the qual-

ity of his late affirmation of rights cannot be reducible to a simple embrace, defence or

acceptance of the existent norm. Predictably, Foucault’s thought on rights can neither be

marginalized as a pure rejection (pace Gehring, 2006: 489) nor included comfortably as a

belated embrace. Rather, his thinking on rights represents a critical affirmation of rights

discourse, a critical and strategic engagement within and against existing rights discourse.

The present article is an attempt to sketch the contours of what I have just called

Foucault’s critical affirmation of rights. It is intended as exploratory and not compre-

hensive but even so a preliminary methodological caveat is perhaps in order before

I continue. As with the related question of Foucault’s position on law, it would be a

mistake to represent Foucault’s rather disparate writings on rights as representative of

a unified and comprehensive ‘theory of rights’ in the sense that is traditionally conveyed

by ‘theory’ (on this question as it pertains to law, see Golder and Fitzpatrick, 2009: 3–5;

Hunt and Wickham, 1994: viii; Wickham, 2002: 265). This article thus does not claim to

locate and then reflect upon such a ‘theory’. Nevertheless, throughout his late work

Foucault does make claims on and with respect to rights and human rights discourse, and

these claims are (indeed they cannot fail to be) theoretical in nature despite their not

being synthesized into a systematic whole.9 That synthesizing task is not the one I set

myself here, although I shall be concerned to propose relations (where they exist)

between elements of Foucault’s thoughts on rights. Rather, what I want to do in this arti-

cle is to illustrate and reflect upon several recurring figures in Foucault’s thinking on

rights. These figures, it bears repeating, do not themselves add up to a complete theory

of rights (and nor, predictably, does Foucault connect them for his readers) but they do –

in their sometimes uneasy, sometimes reinforcing coexistence – constitute Foucault’s

approach to rights discourse. That approach, I repeat here, is one of critical affirmation.

What I hope to show is how Foucault engages with rights discourse and how this engage-

ment inhabits and yet departs from standard legal and political idioms of rights – that is,

I am ultimately interested in how Foucault’s rights praxis diverges from orthodox liberal

understandings, and to what (political) effect and end.

In what follows I present Foucault’s thinking on rights through three different yet

inter-related figures. These figures are recurring ways in which Foucault either implicitly

or explicitly expresses his engagement with rights. They are, in the order I discuss them

here: rights as ungrounded and illimitable; rights as the strategic instrument-effect of

political struggle; and, rights as performative mechanisms of community. What I hope

to show is that in the awkward ‘sum’ of these different figures resides a Foucauldian

approach to rights,10 not in the form of a political template but rather as an articulation

of provocations, critiques, deployments, interventions and deportments towards rights.

Let me start with the figure of the ungroundedness and the illimitability of rights.

As I discuss these figures I shall try to sketch ways in which, in my view, they relate,

or perhaps fail to relate, to other aspects of Foucault’s thinking on rights and power. But,

as we shall see in the course of this discussion, what emerges from these figures of Fou-

cauldian engagement with rights is not a seamless or coherent programme but rather


a critical approach which in its besetting ambivalence raises many more (hopefully

productive) questions of rights and politics.

I Ungrounded and Illimitable11

The first figure is that of the ungroundedness and illimitability of rights. For Foucault,

rights cannot be based upon some timeless and immutable essence of humanity but are

in fact a function of particular power-knowledge formations which themselves configure

the human. From Foucault’s early archaeological investigations which aimed to decen-

tre, indeed perhaps even ‘erase’, the constituent subject as the locus of knowledge (1994:

387) to the genealogical works of the 1970s which insisted (against Reichean and

Marcusean theories of liberation) upon the production of the individual by power

(Foucault, 2003b: 30), it would not be overstating the case to say that a resistance to

humanism ‘crystallizes in a phrase the central concern that worried Foucault’s philoso-

phy and interprets the entire path which Foucault’s thought sculpted’ (Bernauer, 2004:

87; see also generally Bernauer, 1987; Paden, 1987). Despite influential readings to the

contrary (Dews, 1987, 1989; Paras, 2006) this resistance continues into the late work in

the philosophical form of an investigation into technologies of the self that are ‘proposed,

suggested and imposed on [the subject] by his culture, his society and his social group

[sic]’ (Foucault, 1997a: 291) and in the political form of critical interventions into essen-

tialist ‘identity politics’ (for example, see Foucault, 1997b: 135; 1997d: 166).12

By Foucault’s resistance to humanism, I mean his objection to a theory of human

nature which posits an essential figure of humanity, something we all bear within

ourselves as the locus of knowledge and agency and which ‘must be brought to light

in the face of alienation and other social and political constraints’ (Reynolds, 2004:

970; Foucault, 1997a: 282). Humanism for Foucault is crucially both simultaneously

under- and over-determined as a conceptual resource. In ‘What is Enlightenment?’, he

counsels that ‘humanism is too supple, too diverse, too inconsistent to serve as an axis

of reflection’ (1997f: 314) and yet the concrete assertion of any given humanism is at

the same time a potent instrument of power, one which works to circumscribe the limits

of (human) being. As Bernauer goes on to put it: ‘The prison from which Foucault seeks

escape is nothing other than the modern identity of man himself, the historically consti-

tuted figure in that humanism which is both a particular understanding of human reality

and a technology for human development: a truth which is power and a power which

presents itself as truth’ (Bernauer, 2004: 87). So, Foucault’s critical methodologies are

ranged against the fictive yet powerful truth of a naturalized and absolutized human

being understood as existing outside networks of power and knowledge, emphasizing

instead the manifold ways in which humanity is installed within, conditioned by and

inscribed within networks of power.13

And yet it is precisely these unsettling archaeological and genealogical insights into the

constructedness (and necessary circumscription) of the human which have traditionally

posed problems for an interpretation of Foucault as a rights theorist. As Patton puts it again:

Foucault is well known for his reluctance to rely upon any such universalist concept of

human nature or human essence. By contrast, the predominant approach to the nature of

Golder 287

rights in contemporary moral and political philosophy supposes that these inhere in

individuals by virtue of some universal ‘rights bearing’ feature of human nature, such as

sentience, rationality, interests or the capacity to form and pursue projects. (2005: 269)

If in light of the above ‘[t]o think of Foucault as a champion of human rights seems

fraught with contradiction, if not downright perverse’ (Reynolds, 2004: 971), then it

remains for us to ask ‘whether we need a form of humanism – in particular, a form that

forces us to posit an essential conception of what ‘‘man’’ is – to have human rights’

(Alessandrini, 2009: 78). Foucault’s short answer to this question was of course, ‘no’.

Let me give some brief examples of Foucault’s non-essentialist invocations of human

rights before expanding a bit more upon that short answer of ‘no’, below. As he put it in

a late interview:

Through these different practices – psychological, medical, penitential, educational – a

certain ideal or model of humanity was developed, and now this idea of man has become

normative, self-evident, and is supposed to be universal. Humanism may not be universal

but may be quite relative to a certain situation. What we call humanism has been used by

Marxists, liberals, Nazis, Catholics. This does not mean that we have to get rid of what

we call human rights or freedom, but that we can’t say that freedom or human rights has

to be limited at certain frontiers. For instance, if you asked eighty years ago if feminine vir-

tue was part of universal humanism, everyone would have answered yes. What I am afraid

of about humanism is that it presents a certain form of our ethics as a universal model for

any kind of freedom. I think that there are more secrets, more possible freedoms, and more

inventions in our future than we can imagine in humanism as it is dogmatically represented

on every side of the political rainbow: the Left, the Center, the Right. (quoted in Martin,

1988: 15)

Here Foucault clarifies that a critique of the limits of humanism, as both a form of

thought and a technology of power which works to circumscribe the limits of human

possibility, is indeed compatible with an affirmation of human rights. And we see this

repeated in the context of particular interventions. He insists for example in one of his

brief pieces on the Iranian revolt against the Shah (‘Useless to Revolt?’) that the asser-

tion of rights is not founded upon some enduring metaphysics of humanity but rather

rests on more contested ‘grounds’:

All the forms of established or demanded freedom, all the rights that one asserts, even in

regard to the seemingly least important things, no doubt have a last anchor point there

[namely, in the ‘irreducible’ urge to disobey authority], one more solid and closer to expe-

rience than ‘natural rights’. (2000j: 449)

And again, the famous statement he made at the United Nations in Geneva to coincide

with the announcement of the International Committee Against Piracy begins thus:

‘We are just private individuals here, with no other grounds for speaking, or for speaking

together, than a certain shared difficulty in what is taking place’ (2000a: 474). The

signatories are not carriers of universal humanity (not ‘spokesm[e]n of the universal’

(Foucault, 1980c: 126), and their right was granted them by ‘[n]o one’ (Foucault,


2000a: 474). As Thomas Keenan observes of Foucault’s statement, ‘[t]here is no original

owner or possessor of rights, no self-present source here mediated or represented in its

(temporary and ultimately accidental) absence’ (1987: 23). Foucault’s rights claims in

these two disparate instances are based not upon humanity but on the facticity of struggle

(‘[p]eople do revolt’: Foucault, 2000j: 452) and on a ‘shared difficulty’ (2000a: 474).14

As is implied by Patton’s statement above concerning the ‘predominant’ approach to

theorizing rights, there are of course rival philosophical traditions – with which

Foucault’s can be interestingly analogized – that maintain a different stance on the

‘ground’ of rights. These other traditions conceive rights as social incidents and not prop-

erties of the human as such. Thus, ‘the apparent tension between the particularism of

Foucault’s preferred form of critique and the universality supposedly implied by the

appeal to rights disappears’, writes Patton, ‘once we abandon the universality condition

and understand rights as historical and contingent features of particular forms of social

life’ (2005: 269).15 Clearly Foucault understands the articulation of rights claims not to

be based upon claims to human essence, and in this sense, as we have seen, his engage-

ment with rights does not entail a performative contradiction – it entails simply a differ-

ent concept of rights. But the longer, and stronger, form of response to the question of

whether a rights claim necessarily presupposes ‘some concept of what human beings

actually are like as a species’ (Fukuyama, 2002: 101) is to insist not only on the compat-

ibility of a critique of the human and a claim for rights but rather upon the necessity of

such a critique for rights. That is, the ungroundedness and illimitability of the human are

generative and sustaining of rights. Were rights to be based upon some fixed,

determinate sense of humanity, then that very fixing of the human would of necessity

circumscribe the scope of possible future social relations, those contingent and unpro-

grammable ‘inventions in our future’ that Foucault evokes (Foucault, quoted in Martin,

1988: 15).16 Indeed, the giving of determinate content to the human of rights has of

course necessarily installed certain figures of humanity to the detriment of others – as

entire traditions of, for example, feminist and critical race scholarship on rights have per-

suasively argued. Foucault’s critical genealogical invocation of rights thus recalls rights

to its past remainders and abjections and orients them to an undetermined future. ‘One

must guard against reintroducing a hegemonic thought on the pretext of presenting a

human rights theory or policy’, Foucault warns in ‘The Moral and Social Experience

of the Poles’ (2000c: 472). Rights, if they are to be the carrier of future inventions and

different ways of being, thus cannot be contained but must remain ever ‘unrestricted’

(Foucault, 2000j: 453). Foucault’s position hence opposes itself to any satisfaction that

we have, in the enlightened present, attained to a respect of mere humanity without

remainder. Mere humanity has of necessity its constitutive outside.

From this perspective, then, Foucault’s insistence upon the contingency of the human

emerges not as a liability but rather as a critical promise, as the unstable yet necessary

condition of possibility for any and all rights claims. As we shall see, of course, the

genealogical insistence upon the contested status of the human as a ground of rights does

open up a politics but it does not constitute in and of itself a critical or political interven-

tion into human rights discourse. Indeed, it raises several questions which are themselves

perhaps best addressed, though not unequivocally, from the perspective of different

figures of rights in Foucault’s thought. It is to these we now turn.

Golder 289

II The Strategic Implement-Effect of Political Struggle

The second figure is that of rights as the strategic implement-effect of political struggle.

Such a figure has (at least) three elements which I shall discuss in reverse order here,

starting with the question of the political. To characterize Foucault’s various assertions

and endorsements of rights as, in a broad sense, political is to suggest in the first instance

several general dimensions of rights that flow from or are compatible with the above fig-

ure of the non-necessary, ungrounded ground of rights. That is, if the content of a right

cannot straightforwardly be derived from a necessary figure of the human and if that

human is rather, as Foucault consistently holds, a contested and volatile construction,

then rights emerge as historical and political artefacts which reflect the contours of ‘the

human’ as s/he is variously constructed in discourse and regimes of power. Rights hence

appear from this perspective as thoroughly political creations, dependent upon the polit-

ical/discursive/strategic viability of rights claims and their consequent observance and

enforcement.17 Rights can be made and unmade (Patton, 2005: 272–273) and, crucially,

the terms of their un/making betray particular exclusions, erasures and disavowals which

themselves reflect particular political aims, projects and alliances. Foucault’s wider

philosophical and political practice is of course animated by and attentive to such con-

cerns. From his early archaeology of Western reason as founded upon the constitutive

silence of madness (2006: xxviii)18 to his later analyses of the disciplinary regulation

of the ill, the abnormal, the delinquent, etc., Foucault focused upon the ways in which

the content of rationality, normality, and so forth was sustained in and through the sup-

pression or discipline of its opposite; hence, in order to ‘find out what our society means

by ‘‘sanity’’’, Foucault aptly suggests in a late essay, ‘perhaps we should investigate

what is happening in the field of insanity’ (2000i: 329).

So, rights for Foucault are political in this general sense of being particular construc-

tions, the result and reflection of political claims and value systems which are made and

unmade, and which include and exclude. Moreover, for Foucault this imports both a nec-

essary and ongoing concern for what is excluded in the making of claims. It follows also

that he sees the openness and contingency of rights as a promise and not as raising the

spectre of nihilism or relativism, or indeed as a tarnishing of the currency of rights.

Rights claims on this view proclaim particular political perspectives and hence cannot

masquerade as ‘something of an anti-politics – a pure defense of the innocent and the

powerless against power’ (Brown, 2004: 453), but neither can they be understood qua

‘trumps’, as expressing by their own force some kind of political or ontological priority

(Dworkin, 1977). Rather, rights in this sense are political tools used in the service of con-

structing and reconstructing different social and political visions, tools which compete

on the same terrain in agonistic combat (Simons, 1995) with other rights and indeed with

other political idioms and visions.19 If from some orthodox perspectives this devalues

rights, from the perspective elaborated here it opens up both a politically richer and a

more self-reflexive (less disingenuous, less moralistic) rights discourse.20 Thus, from

Foucault’s perspective, the removal of ontological certainty for rights claims actually

excavates a hidden margin of ‘freedom’ – indeed, the critical force of genealogy is

directed at exposing false necessities and demonstrating that ‘people . . . are much freer

than they feel’ (Foucault, quoted in Martin, 1988: 10). Rights must be claimed, must be


seized and in this political seizure can be expanded and inhabited – indeed even against

their ‘terms’, as a strategic reversibility or as a counter-investment (Foucault, 1979:

100–102; Nietzsche, 1998, II, §12: 50–52). This political description of rights thus des-

ignates both an ungrounded and a non-teleological conception, a necessarily open-ended,

never-ending, process of contestation, a ‘permanent provocation’ (Foucault, 2000i: 342)

which, as Foucault memorably puts it in a slightly different context, will,

separate out, from the contingency that has made us what we are, the possibility of no longer

being, doing, or thinking what we are, do, or think . . . [that is,] to give new impetus, as far

and wide as possible, to the undefined work of freedom. (1997f: 315–316)21

And yet it is at the same time crucial to temper the above insistence on the political

promises of contingency with a return to the nature of rights as instrument-effects of

politics. This is the second element of the figure of rights as strategic instrument-

effects of political struggle and it imports a telling ambivalence into Foucault’s deploy-

ment of rights – one which recalls his work of the 1970s on the disciplinary regulation of

identity. As Wendy Brown counsels, ‘it behooves radical democrats [indeed, leftist crit-

ics of rights more generally] not simply to proliferate rights but to explore the historically

and culturally specific ground of the demand for them’ (Brown, 1995: 12). That is, we

must ask whether a focus upon the utopian horizon of the re-writability of rights, of the

semiotic indeterminacy of the human and the deconstructiblility of rights, fails to take

proper notice of the material, disciplinary conditions of rights regimes – conditions

which structure rights claims in advance.22 Might the political possibilities of the

former, Brown poses, be foreclosed or subsumed by the disciplinary logics of the latter?

Indeed might the two be in some kind of paradoxical symmetry? Foucault, I want to

suggest here, appreciates this dual character of rights claims. Indeed, in a discussion

of Foucauldian rights Duncan Ivison describes them as conduits and explains them in

these terms: ‘modes for distributing capabilities and forms of power and influence

and thus shaping behaviour as much as constraining it . . . [that is,] rights are often impli-

cated in various relations of power as much as they are a means of criticizing them’

(2008: 180). This is what I mean by Foucault’s rights being instrument-effects.

Rights are instruments in the sense foreshadowed in the above discussion – that is,

they are particular tools used in the service of political projects. Foucault discusses a

particular example of rights being used as political instruments in his lecture course

of 1975–76 at the College de France, ‘Society Must be Defended’. In the course of what

he calls a genealogy of ‘the first historico-political discourse on society’ (2003b: 49),

Foucault discusses the subject position occupied by the speaker of this discourse who

‘cannot, and is in fact not trying to, occupy the position of the jurist or the philosopher,

or in other words the position of a universal, totalizing, or neutral subject’ (2003b: 52;

see also Foucault, 1980c: 126). Rather, such a subject:

speaks the discourse of right, asserts a right and demands a right. But what he is demanding

and asserting is ‘his’ rights – he says: ‘We have a right’. These are singular rights, and they

are strongly marked by a relationship of property, conquest, victory, or nature. It might be

the right of his family or race, the right of superiority or seniority, the right of triumphal

Golder 291

invasions, or the right of recent or ancient occupations. In all cases, it is a right that is both

grounded in history and decentred from a juridical universality. (2003b: 52)23

The subject who speaks thus wields ‘a truth-weapon and a singular right’ and aims to

introduce thereby ‘a rift into the discourse of truth and law’ (2003b: 54). Foucault traces

examples of this ‘historico-political discourse’ (a designation in which both ‘historico’

and ‘political’ derive their meaning at least in part from their opposition to the respective

parts of ‘philosophico-juridical’ [2003b: 49])24 in both England and France from the

seventeenth century onwards:

In England it was one of the instruments used in bourgeois, petit-bourgeois – and sometimes

popular – struggles and polemics against the absolute monarchy, and it was a tool for polit-

ical organization. It was also an aristocratic discourse directed against that same monarchy.

(2003b: 49–50)

Foucault goes on to trace how the discourse developed in France through the deploy-

ments of Boullainvilliers and Sieyes, right up to the ‘racist biologists and eugenicists

of the late nineteenth century’ (2003b: 50). In ‘Society Must be Defended’ Foucault thus

gives an example (indeed, several different permutations) of a ‘historico-political

discourse’ of rights which does not proceed upon the basis of a hypothetical Hobbesian

covenant (and which consequently reinforces existent sovereignty). Rather, the exam-

ples he gives aim to contest and expose that sovereignty. These deployments of rights

(namely as ‘instruments . . . [in the service of] struggles and polemics’, Foucault,

2003b: 49–50) are consonant with Foucault’s oft-repeated characterization of ‘theory’

– that is, not as an encapsulation of universality but as particular, singular ‘tools’

(Deleuze and Foucault, 1977: 208; Foucault, 1980b: 145).25

But to argue that political subjects wield rights as weapons, instruments or tools in the

service of particular struggles or according to particular strategies would be a misleadingly

voluntaristic interpretation of Foucault’s engagement with rights (and a misrepresentation

of his well-known views on power and subjectivity), for not only are rights the instruments

of political subjects but those political subjects are simultaneously themselves the effects

of rights. Foucault’s rights are thus instrument-effects in the dual sense that whilst rights

function as tools, nevertheless the very contours of those rights are themselves the effect of

pre-existent and re-produced power relations (capital, discipline, patriarchy, racial and

sexual oppression) which themselves effect the subject of rights. As Foucault puts it

in ‘Society Must be Defended’:

The individual is not, in other words, power’s opposite number; the individual is one of

power’s first effects. The individual is in fact a power-effect, and at the same time, and

to the extent that he is a power-effect, the individual is a relay: power passes through the

individuals it has constituted. (2003b: 30)

That is, the subject of rights cannot be ontologically separated from the power-

knowledge networks of rights-claiming mechanisms, the subject does not stand outside

or before regimes of rights but is constructed in and through them. Brown articulates this


regulatory function of rights as an incident of a larger paradox concerning rights claims

which she frames as one of abstraction/neutrality and particularity. Discussing the

question of identity-based rights claims, she writes thus:

The problem surfaces in the question of when and whether rights for women are formulated

in such a way as to enable the escape of the subordinated from the site of that violation, and

when and whether they build a fence around us at that site, regulating rather than challen-

ging the conditions within. And the paradox within this problem is this: the more highly

specified rights are as rights for women, the more likely they are to build that fence insofar

as they are more likely to encode a definition of women premised upon our subordination in

the transhistorical discourse of liberal jurisprudence. Yet the opposite is also true . . . [for]

the more gender-neutral or gender-blind a particular right (or any law or public policy) is,

the more likely it is to enhance the privilege of men and eclipse the needs of the women as

subordinates. (2000: 232)

As she goes on to remark, the second element of the paradox is the one thematized by

Marx – and, in terms of feminist jurisprudence, pursued by Catharine MacKinnon

(1987) – whilst the first,

might be understood as the problem that Foucault painted most masterfully in his formula-

tion of the regulatory powers of identity and of rights based on identity. To have a right as

[for example] a woman is not to be free of being designated and subordinated by gender.

(Brown, 2000: 231–232, emphasis in original)

A right, as Brown puts it elsewhere in a claim advanced as a correction to Foucault, is not

simply a mechanism that converges with disciplinary power but is itself, ‘from the beginning

a potentially disciplinary practice’ (Brown, 1995: 99). Indeed, she writes that:

Moreover, the emancipatory function of rights cannot be adjudicated in abstraction from the

bureaucratic juridical apparatus through which they are negotiated. Who, today, defends

their rights without an army of lawyers and reams of complex legal documents? In this

regard, rights, rather than being the ‘popular and available’ currency depicted by Patricia

Williams, may subject us to intense forms of bureaucratic domination and regulatory power

even at the moment that we assert them in our own defense. (Brown, 1995: 121, fn 41)

Rights thus particularize, producing narratives of identity-formation which are unavoid-

ably exclusionary and regulatory. In doing this, they do not simply represent a pre-given

or already established identity but rather – through the various legal and political

mechanisms of representation, lobbying, enactment and enforcement – go to constitute

that very identity in the guise of its recognition. They are thus performative mechanisms

and attendant upon this performativity there is an unavoidable excision and relegation of

experience in the formation, and the re-iterative shoring up, of the rights-based identity

(Butler, 1993: 188). Moreover, the identities furnished by rights regimes can themselves

be integral to wider regulatory schemes. This was in part what Foucault intended when

he articulated the simultaneously totalizing and individualizing character of modern

politics:

Golder 293

I think that the main characteristic of our political rationality is the fact that this integration

of the individuals in a community or in a totality results from a constant correlation between

an increasing individualization and the reinforcement of this totality. (Foucault, 2000e: 417)

And again:

Very significantly, political criticism has reproached the state with being simultaneously a

factor for individualization and a totalitarian principle. Just to look at nascent state rationality,

just to see what its first policing project was, makes it clear that, right from the start, the state is

both individualizing and totalitarian. Opposing the individual and his interests to it is just as

hazardous as opposing it with the community and its requirements. (Foucault, 2000d: 385)

Individual rights cannot thus be simply opposed to the state, not only for the reason that

in classic Hobbesian fashion such an invocation does not contest but rather confirms the

importance of the state, but for the added Foucauldian reason that ‘individual rights’ can

function as regulatory tools. Jon Simons explains:

Foucault holds that identity politics has its unbearably high costs. Identities are fashioned by

political technologies of individuals which totalize as they individualize. On the basis of such

identities we recognize ourselves as members of a social group or state. The same political

logic according to which a gay man identifies himself politically as a member of the gay com-

munity induces citizens to lay down their lives in defence of their states. When identity is

taken to be natural in relation to a larger social or political entity then, as Rajchman says,

we are confronted by the identities of nationalism or racism. Not only are people tied to iden-

tities that are designed to be governable, but they are prepared to participate in mass sacrifice

of themselves and others in wars to defend their identities. (Simons, 1995: 98)

As Simons puts it, the specification of identities – a process which occurs through rights

mechanisms – can tie subjects to ‘governable’ forms of being and rights can thus become

integral to apparatuses of governmentality. Foucault’s challenge in deploying rights is to

do so in a way which is both contestatory of given social practices but which is not

‘achieved’ in a way that reinforces other social practices or forms of power, and that

crucially does not sediment the limits of identities articulated through rights. As he puts

it in a late essay entitled ‘The subject and power’:

[m]aybe the target nowadays is not to discover what we are but to refuse what we are . . .

We have to promote new forms of subjectivity through the refusal of this kind of individual-

ity which has been imposed on us for several centuries. (Foucault, 2000i: 326)

Rights for Foucault must thus become the mechanism of refusal of governmental power

and, through a process of self-critique in which new forms of being are installed in given

emanations of rights, the mechanism for the refusal of set juridical identities through the

contestatory repetition and deformation of rights themselves (see Foucault, 1997d: 166).26

It is hopefully clear from the foregoing that Foucault’s deployment of rights is neither

intended somehow to reinforce existing normative systems nor to make appeals to rights,

the recognition of which can easily be accommodated within liberal orthodoxy (which is


not of course to assert that some of these claims cannot or do not get politically recup-

erated – see Bailey, 2009). Rather, the deployment of Foucauldian rights as instrument-

effects of political struggle is strategic. This is the final element of this second figure of

Foucault’s theorization of rights. By strategic here I refer to two different aspects of Fou-

cault’s approach. First, a strategic deployment of rights is one in which rights are invoked

neither as a mechanism of reform nor as a simple appeal to the existing system in and on

its own terms, as it were. Rather, borrowing from the critical legal strategy of Emilios

Christodoulidis, ‘the ‘‘strategic’’ imports a specific reflexivity that does not necessarily

fall within, but may situate itself incongruently to the spaces, interstices and speaking

positions that the system makes available’ (Christodoulidis, 2009: 22). Foucault’s invo-

cations of rights are strategic in this incongruous sense as they are situated within (the

spaces, the available rhetorical tools, and so forth, of) a political formation but are

intended to resist and go beyond that formation, to transform it. In locating resistance

uneasily within political formations such an understanding of ‘strategy’ accords both

with general Foucauldian insights about the constitutive inextricability of power and

resistance, but also with Foucault’s more specific comments on what he calls in the first

volume of the History of Sexuality the ‘rule of double conditioning’ (1979: 99–100). This

is the second aspect of ‘strategy’, namely the connection of local tactics of power

(and hence resistance) to overall political (again, also, resistant) strategies. In that text

Foucault briefly discusses this important connection between tactics and strategy.

For Foucault, as Kevin Thompson helpfully explains, ‘the tactical and the strategic

. . . condition one another’ and hence resistance can be ‘historically situated, local and

specific, and politically effective, a challenging of the reign of the strategic as a whole

from within this reign itself’ (2003, 118–119). So, in terms of the argument I am devel-

oping here, Foucault’s usage of rights is strategic in the (first) sense of being intended to

disrupt the system of power in and towards which it is directed and also (in the second

sense) of affirming that local interventions and deployments of rights discourse can

leverage changes in overall political formations.

To take one example, Foucault famously asserted a ‘right to suicide’ towards the end

of his career. In the interview, ‘The Risks of Security’, for instance, he argued that:

‘The idea of bringing individuals and decision centers closer together should imply, at least

as a consequence, the recognized right of each individual to kill himself when he wants to

under decent conditions’ (Foucault, 2000g: 380). He went on immediately to say that:

If I won a few billion in the lottery, I would create an institute where people who would like

to die would come spend a weekend, a week, or a month in pleasure, under drugs perhaps, in

order to disappear afterward, as if erased. (2000g: 380)

Questioned by the interviewer: ‘A right to suicide?’ (p. 380, emphasis in original),

Foucault simply replied: ‘Yes’. Liberal advocacy for the ‘right to die’, understood either

as physician-assisted suicide or euthanasia, is of course well established and has in sev-

eral jurisdictions and at various points in time been legislatively recognized. How, then,

does Foucault’s mobilization of ‘right to die’ rhetoric constitute a strategic intervention

and how does it seek to position itself incongruently in relation to the institutional spaces

of liberalism (or, crucially, of contemporary bio-politics)?

Golder 295

In a recent article on this topic, Thomas Tierney neatly illustrates how Foucault

diverges from orthodox liberal articulations of the ‘right to die’. In order to do this, Tier-

ney reads Foucault’s comments on the ‘right to die’ against the famous intervention of

the ‘Dream Team’ (a collection of six eminent liberal/libertarian philosophers, to wit:

Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, TM Scanlon and Judith

Jarvis Johnson) in their amicus curiae brief in the 1997 US Supreme Court case on

assisted suicide, Washington v Glucksberg (see Dworkin et al. 1997). Whereas the latter

is ‘concerned with providing to individuals enough control over their deaths so they can

avoid a painful and/or degrading demise, while simultaneously maintaining the integrity

of juridico-medical authority that is aimed at preserving life’, (Tierney, 2006: 626),

Foucault’s deployment of the ‘right to die’ is intended to contest the forms of subjectivity

produced and required by that very ‘juridico-medical authority’. Under contemporary

conditions of bio-politics, that which Tierney calls the ‘juridico-medical order of mod-

ernity’, the medically-aware subject is enjoined to police his or her own health such that

‘[r]easonable individuals have been eager participants in this modern project of death

deferral’ (Tierney, 2006: 614, 615; see also Thompson, 2004). Under these conditions

the standard liberal resort to the dignity of the individual and the autonomous terms

under which that individual can exit life do nothing to contest the terms under which that

life is bio-politically lived and invested by the institutions of medical power. By contrast,

Foucault’s interventions on the ‘right to die’ (read alongside his wider critique of bio-

politics) actually entail a ‘fundamental challenge to the juridico-medical complex of

modernity’ (Tierney, 2006: 631) by ‘rais[ing] unsettling questions about the very nature

of modern subjects’ (Tierney, 2006: 605). The deployment of rights is intended to reflect

back, as it were, upon the politicization of life. Foucault’s assertion of a ‘right to die’ is

thus intended to problematize the subjective presuppositions of medicalized bio-politics

(obedience to discourses of death-deferral and medical self-management) by opening up

a different perspective upon death in life – that is, the preparation of one’s own death as

an aesthetic project (see Foucault, 1983: 237). ‘It is quite inconceivable that we not be

given the chance’, Foucault writes elsewhere, ‘to prepare ourselves with all the passion,

intensity and detail that we wish, including the little extras that we have been dreaming

about for such a long time’ (Foucault, 1996: 296–297), that is to make of suicide ‘a

fathomless pleasure whose patient and relentless preparation will enlighten all of your

life’ (1996: 296). The crux of the difference between the Foucauldian and the liberal

articulations of the ‘right to die’ thus resides in life’s preparation for death and, through

this late modern melete thanatou, the consequent ‘enlightenment’ in life (read, for

Foucault: the disruption of bio-politicized subjectivity). In contrast, ‘by focussing on

controlling one’s death [the] liberal perspective does not foster critical reflection upon

those convictions by which one lives one’s life, and leaves unchallenged the role of med-

ical authority in shaping those convictions’ (Tierney, 2006: 632). For all its insistence

upon the manner of death needing to reflect autonomous decisions concerning the value

of life itself (which would seemingly import some critical perspective upon that life),

orthodox liberal articulations of the ‘right to die’, like that of the ‘Dream Team’, work

to reinforce a bio-political medical apparatus. The liberal narrative reinscribes the death-

bound subject of bio-politics in a milieu of suffering (see the pathos-laden conclusion to

Dworkin et al., 1997) from which medicine cannot save her and it thus calls upon law


and the state to balance the interests of the individual’s dignity against the state’s

(bio-political) interest in preserving life. Such an approach leaves unquestioned (indeed,

performatively reinforces) the respective roles of law, state and medicine, whereas

Foucault’s aesthetic, de-medicalized, anti-statist discourse seeks to subvert or avoid

these relations.

Foucault’s rights, as I have been arguing in this section, are thus ambivalent artefacts –

they are used in the service of (and are the effects and incidents of) political struggles,

struggles which can strategically go beyond and challenge existing liberal institutions, but

they simultaneously constrain and determine the very political subjects who mobilize

them. Rights, that is, never simply perform the role assigned to them but necessarily go

beyond their present deployments. In the final section of this article I want briefly to sketch

something of rights’ ability to go beyond, something of the futurity of rights and their

ability to bring new communal worlds into being. This is the final figure of Foucault’s

critical affirmation of rights – rights as the performative mechanism of community.

III The Performative Mechanism of Community

The final figure of Foucault’s affirmation that I want to discuss is the idea of rights as a

mechanism for bringing about changes to and within community, and indeed even in

bringing new communities into being. Ivison again puts this dimension of rights neatly:

In a very broad sense then, rights are not only, as Rex Martin has put it,

‘established ways of acting or established ways of . . . being treated’[reference deleted, empha-

sis in Ivison], but also a means for establishing various ways of acting or being treated. To mark

some interest or claims in terms of a right is not merely to describe a particular jural relation, but

also to perform it, to help bring it into being. (2008: 10, emphasis in original)

Rights can, as we have seen, be vehicles for transmitting relations of power and they thus

have an inescapably regulatory dimension. But they can also be vehicles for new social

relations and new constructions of community. This can be through creating new ways of

being within existing communities but can also be through carving out new forms of

community themselves. Let me first link Ivison’s distinction, introduced above, between

rights as an established way of acting and rights as themselves establishing such ways

of acting to a scholarly debate surrounding one of Foucault’s more notable invocations

of rights, before discussing this question in terms of community.

In a Derridean-inspired reading (see Derrida, 2002) of a particular text of Foucault’s

(‘Confronting Governments: Human Rights’: Foucault, 2000a) Thomas Keenan empha-

sizes the performative element of Foucault’s declaration of a ‘right’ of private individ-

uals to intervene effectively in matters of international government (see Keenan, 1987,

1997). In taking issue with this reading, Paul Patton starts by conceding that Keenan’s

reading of the simultaneously ‘constative and performative’ dimension of Foucault’s

intervention (which ‘inaugurat[es] a right founded upon nothing’) is ‘illuminating’ and

reflective of a dynamic common to other such interventions (‘ . . . like every other

declaration of rights’) (Patton, 2004: 55). Patton’s concern, however, is that such a focus

upon performative inauguration risks ‘ignoring the conditions which make possible the

Golder 297

emergence of this right’ (Patton, 2004: 55). In a later piece Patton elaborates upon this

concern and argues that ‘Foucault’s appeals to particular rights or to particular forms of

rights, I suggest, may be understood . . . as appealing to historically available discourses

of right’ (Patton, 2005: 279). In the case of the particular right to intervene internation-

ally, Patton argues that this right emerges because of material and discursive aspects of

the present such as ‘the role of NGOs such as Amnesty International, Terre des Hommes

and Medecins du Monde’, their ‘relative independence of governments’, ‘organisational

and financial power’ and ‘significant political leverage over governments’ (2005: 279).

It also emerges because of a ‘widely accepted belief about the role and purpose of

government in providing moral leverage’ (2005: 279). Undoubtedly, the historical avail-

ability and normative force of discourses of rights are partly dependent upon such things.

Or, to put it another way, the focus upon the emergence of rights as being linked to

material and discursive conditions of possibility is a classic Foucauldian analytic ges-

ture. If one were to ask after the emergence of a given right, then such changes are, of

course, for the archaeologist or genealogist, highly relevant. And yet the analytic focus

after the historical fact upon that which makes rights possible surely misses something

equally Foucauldian – the irruptive and discontinuous emergence of difference in history

(and its political mobilization in and through rights). From a political perspective

(accepting for the moment a difficult distinction between the analytic and the political)

rights can themselves be used, and indeed they are used by Foucault, as mechanisms to

bring new worlds into being (and not simply as responsive to, or reflective of, changes in

underlying material or discursive conditions).

The aspect of Foucault’s rights politics that I want to highlight here is the way in

which claims of rights are themselves used to bring new communal worlds into being.

When Patton writes that ‘appeals to new rights or new forms of right will always rely

upon concepts that may be found within or derived from existing discourses of moral

or political right’ (Patton, 2005: 284), I take him to be arguing that rights are dependent

for their expression upon a pre-existing lexicon or body of political values, ideas and

concepts (and that it is developments in these fields which, perhaps, license the develop-

ment of rights, epiphenomenally as it were). Of course there is no pure performative, and

Foucault does not, I think, argue that an act of discourse unilaterally brings new arrange-

ments into place, but nevertheless Foucault’s own deployments of rights demonstrate the

ways in which novel claims of right themselves help to inaugurate new political arrange-

ments. The example already instanced of the right to intervene is of course apt.

Foucault’s language towards the end of the piece seeks to conceal its inaugurating force

(as many performatives do). He contends that: ‘Amnesty International, Terre des

Hommes, and Medecins du monde are initiatives that have created this new right – that

of private individuals to effectively intervene in the sphere of international policy and

strategy’ (Foucault, 2000a: 475). But the ‘new right’ which Foucault speaks of as having

already been created, is by no means fully formed when he speaks of it; rather, it is partly

in and through his speaking of it, his claiming it, that it emerges. Revealingly, he con-

tinues to the effect that: ‘The will of individuals must make a place for itself in a reality

of which governments have attempted to reserve a monopoly for themselves, that mono-

poly which we need to wrest from them little by little and day by day’ (2000a: 475,

emphasis added). The language of an already achieved right here reverts to the language


of future promise, of our having and needing to assert and constantly reiterate rights.

Indeed, much of Foucault’s advocacy of rights is directed towards those rights not cur-

rently recognized. The ‘right to die’ discussed in the above section is one example, as is

his suggestion of a ‘new relational right’ in the interview ‘The Social Triumph of the

Sexual Will’. As he puts it at one stage in that interview:

Rather than arguing that rights are fundamental and natural to the individual, we should try to

imagine and create a new relational right that permits all possible types of relations to exist and

not be prevented, blocked or annulled by impoverished relational institutions. (1997e: 158)

Here Foucault focuses upon the imaginative, experimental and necessarily speculative

aspect of rights claims. Crucially for my argument here, it is in the performative asser-

tion of a right itself – even those temporarily unsuccessful assertions – that the values,

assumptions and beliefs of a political community can be altered and rights created. As

Martha Minow reminds us, arguing for an expansive conception of rights:

I mean, then, to include within the ambit of rights discourse all efforts to claim new rights, to

resist and alter official state action that fails to acknowledge such rights, and to construct

communities apart from the state to nurture new conceptions of rights. Rights here encompass

even those claims that lose, or have lost in the past, if they continue to represent claims that

muster people’s hopes and articulate their continuing efforts to persuade. (1986–87: 1867)

Minow raises here the aspect of community, which is central to Foucault’s critical

engagement with rights. The point I am making is that, for Foucault, rights can be used

as an instrument to create new ways of acting and relating to others within community,

and indeed even to construct alternative communities beyond those currently envisioned.

In this regard they can be, as Patricia Williams puts it, a ‘marker of our citizenship, our

participatoriness, our relation to others’ (1987: 431). So, for example, the ‘right to sui-

cide’ discussed above is intended to reconfigure subjectivities and hence also relations

between subjects, whilst Foucault’s call to establish a ‘new relational right’ aims to use

rights discourse to carve out spaces for new forms of relation (community) to take place

between individuals. And the right discussed above by Keenan and Patton, namely the

right of ‘private individuals to effectively intervene in the sphere of international policy

and strategy’ (Foucault, 2000a: 475), also aptly demonstrates how rights talk can sum-

mon a community – here, somewhat uncomfortably, both a community of international

activists beyond state borders and an interventionist ‘international community’

(see Whyte, forthcoming). The communities produced in and through the deployment

of rights are thus unpredictable, uncontainable and incoherent. Clearly, just as rights for

Foucault do not represent something ‘fundamental and natural to the individual’

(Foucault, 1997e: 158) neither do they represent a mechanism for the achievement of

a harmonious social equilibrium. Rather, as Minow herself puts it later in the same piece

just quoted, ‘[t]he very act of summoning ‘‘community,’’ through a language of rights,

may expose the divisions within the community – and even beyond it’ (1986–87: 1911–

1912). Rights both broaden and breach community, and the communities they create and

sustain are themselves conflictual.

Golder 299

And for Foucault, this is the very nature of community. Community itself must be

understood as an unstable affective assemblage, constantly negotiated and renegotiated,

and for him rights are one of the crucial mediums of this negotiation. As Foucault insists,

it is only through the work of altering itself and differing from itself that a community

manages to continue in being. This work of differentiation and contestation both ‘marks

a relation of belonging and presents itself as a task’ (Foucault, 1997f: 309), a task which

is always ongoing and never fully achieved. Foucault’s remarks on Deleuze and Guat-

tari’s Anti-Oedipus can stand as an effective description of his own theoretical position

on the task of contesting the ever-revisable limits of community: ‘What is needed is to

‘‘de-individualize’’ by means of multiplication and displacement, diverse combinations.

The group must not be the organic bond uniting hierarchized individuals, but a constant

generator of de-individualization’ (Foucault, 2000f: 109). Foucauldian rights claims,

whether they be intended to inaugurate new ‘relational rights’ between subjects

(and hence to extend the range of recognized affective relations between subjects) or

whether they be aimed at extending rights of asylum, are frequently deployed to contest,

broaden and make more inclusive the boundaries of community.

Conclusion

I have attempted to navigate here between two opposed readings of rights in Foucault’s

work – according to one view, Foucault forsakes rights in a fit of rejectionist pique,

failing to recognize any political potential in their deployment; whilst according to the

other, Foucault celebrates the moral core of liberal human rights discourse, relinquishing

prior critical attachments. Navigation is not reconciliation, however, and accordingly

I have not sought to locate an equilibrium between the rejectionist and the celebratory.

Rather, I have argued that Foucault’s engagement with rights discourse constitutes a

critical affirmation and I have tried in the foregoing to sketch different dimensions of

this difficult, often ambivalent, enterprise.

But such an exercise in reading Foucault’s texts, indeed in re-reading or reconstruct-

ing them, is of course neither a narrow, nor simply an exegetical, question of getting

Foucault ‘right’ on rights. For a start, it should obviously matter even to the user of intel-

lectual ‘tools’ (a commonly encountered Foucauldian trope which licenses all manner of

readings) just what the purpose or use-value of such a tool might be. Thus, readings of

Foucault on rights which take him to have definitively rejected rights sit ill with his

broader genealogical insights about the possibility of reversibility and counter-

investment of political institutions (see Patton, 2007), whilst readings of Foucault on

rights which style him as a neo-humanist rights advocate do so at the cost of eliding

an entire career spent interrogating the political investments of the human. But for all

that they miss, such readings are not themselves mis-readings but rather political read-

ings. What they ‘miss’ is either a political choice or itself symptomatic of a political way

of reading Foucault. Thus, asking questions of these readings (indeed, offering a counter-

reading as I have done here) reflexively implicates broader questions about the politics of

interpretation, of critique, and most particularly (in this instance) of rights. This is

because through my own critical re-reading of Foucault we can begin to see how con-

testations and provocations directed towards (and situated within) rights discourse and


rights politics get managed, and the various textual strategies deployed in aid of this

management.

The readings against which I have been articulating my reading of critical affirmation

do themselves aim to defuse critiques of rights discourse. To that extent, and this will

hardly be surprising to readers of Foucault, they are bound up with the normative

orthodoxy of rights discourse and are part of the way that discourse forestalls and deflects

critique. According to the one, any critical engagement with rights amounts to a rejection

(for one must be either for or against rights in order to speak sensibly of them), the better to

dismiss it; and, according to the other, when Foucault begins to deploy rights this some-

what idiosyncratic, curious and sensitive deployment is hastily co-opted as a return, a

recantation, an assimilation to rights orthodoxy. Questions, then, of how one reads

thinkers like Foucault in their engagement with dominant discourses such as rights raise

matters not just of interpretation, nor of just interpretation, but of the politics of interpreta-

tion – and, relatedly, of the value and style of critique itself. In trying to articulate

Foucault’s critical affirmation of rights, and in speaking of his strategy and his ambiva-

lence, the counter-reading I have offered here aims to retain something of Foucault’s

unsettling ability to inhabit and disturb political idioms such as rights. And it also, I hope,

tries to stake out a position for rights critique (through but not limited to a reading of

Foucault) which resists the intellectual blackmail of rejection or celebration.

Notes

1. I discuss some of these specific readings of Foucault on rights in this and following sections of

my article. However, it must be noted here both that there are more nuanced takes on Foucault’s

relation to rights with which I am largely in agreement (see Ivison 1998, 2008; Keenan 1987,

1997; Patton 2004, 2005), and that the notion of Foucault’s being a critic (or, indeed, a propo-

nent) of rights is itself at odds with a certain understanding of the Foucauldian analytic method

(on this, see the brief comments at the end of Barret-Kriegel, 1992: 197).

2. For a similar formulation, see Foucault (1980a: 187–188). The accents of ideology critique in

the passage just quoted in the text above from Discipline and Punish, and resonant in another

related passage (Foucault, 1980d: 105: ‘the theory of sovereignty, and the organisation of a

legal code centred upon it, have allowed a system of right to be superimposed upon the mechan-

isms of discipline in such a way as to conceal its actual procedures, the element of domination

inherent in its techniques, and to guarantee to everyone, by virtue of the sovereignty of the

State, the exercise of his [sic] proper sovereign rights’) have led some to criticize Foucault’s

theoretically inconsistent renovation of the classic Marxian base-superstructure model (into the

form of discipline-sovereignty). For one example, see Baker, 1994: 195. For a more convincing

and nuanced interpretation, see Dean (1999: 171).

3. The readings of McClure, and of Hunt and Wickham, both conclude that Foucault denies the

political potential of rights claims. They focus upon Foucault’s unjustified linking (and hence,

in their view, confining) of ‘rights’ to ‘right’, the latter understood as sovereign right. In this

telling slippage, they argue, Foucault is led to see rights claims as necessarily performative rein-

scriptions of sovereignty, from which flows the abovementioned ‘bottleneck’. This is because

if, as Foucault argues, ‘sovereignty and discipline . . . are in fact the two things that constitute

. . . the general mechanisms of power in our society’ (2003b: 39), and if they are linked in the

Golder 301

ways he indicates in the passage I have quoted in the text above from Discipline and Punish,

then rights are ineffective against discipline and work to reinforce sovereignty (see McClure,

1995: 155; Hunt and Wickham, 1994: 63). McClure interestingly counterposes historical exam-

ples of rights claims which are not linked to sovereign right from the English historical context.

Of course, Foucault makes similar genealogical moves in ‘Society Must be Defended’ and

I draw upon some of his discussions, below. For an interesting historical critique of Foucault’s

theses about law and disciplinary power, see the exchange in the American Historical Review,

1993, Vol. 98(2) (Engelstein, 1993; Goldstein, 1993; Koshar, 1993).

4. Admittedly, this curious invocation of a new right has led to some consternation in the ranks of

commentators on Foucault’s work, mainly due to his previous critiques of rights discourse but

also for the fact that Foucault himself fails (or, rather, refuses) to articulate the terms of this new

right (Pickett, 2000; 2005: 77–99; Mourad, 2003: 456).

5. See Pickett (2005: 97, fn 19) for a list of other rights that Foucault supported. See also Patton

(2005: 269–270). Useful historical background information on Foucault’s political involve-

ments of this time (especially in regards to the Solidarity movement) can be found in the two

leading biographies of Foucault. See Eribon (1991: 296–308) and Macey (1993: 436–456).

6. The reading of Foucault as having ‘embraced’ human rights is often bolstered by, or linked to, a

perceived shift in his perspective on subjectivity in the ‘late work’. By Foucault’s ‘late work’

I mean that body of work conducted after 1978–79, for which the problematic of ‘governmen-

tality’ serves as a conceptual bridge and in which Foucault engages with a range of different yet

related concerns. Among these concerns are: first and foremost, his examination of ethics in

antiquity and the elaboration of subjectivity through ‘technologies of the self’ such as parrhesia

and hypomnemata (and a comparison of these techniques both with early Christian and contem-

porary hermeneutics of the self); secondly, the related questions of the Enlightenment, the ‘atti-

tude of modernity’, critique and critical ontology; and, finally, the deployment of certain of

these notions in the context of contemporary debates around gay desire, subjectivity and iden-

tity politics. What unites these fields of study and political interventions is Foucault’s more

explicit thematization of a resistant subjectivity. For an excellent collection of essays on

Foucault’s late work, see Moss (1988) and for a comprehensive monographic treatment with

which I am in broad agreement, see O’Leary (2002). Paras’s is the most recent of a line of

interpretations which emphasizes a shift in Foucault’s work in terms of a ‘return’ to subjectivity.

For the classic reference, see Dews (1987,1989). In Golder (2010a) I critique both this reading of

Foucault’s conception of subjectivity and its implications for his thinking of human rights.

7. For an exemplary appreciation and negotiation of this paradox with which I am in agreement,

see Keenan (1987, 1997).

8. One profitable way of pursuing ‘a Foucauldian approach to rights’ (see note 10, below) would

be to take up the question of how the insulation of human rights discourse from critique is sus-

tained via certain interpretive strategies or schemas which aim to defuse or to exclude critique,

discursively setting the agenda in advance, as it were. In responding to a critique of her own

work (Baynes, 2000), Brown usefully discusses one such strategy – namely, how critique gets

recast as rejection and thence more easily dismissed (Brown, 2000: 470). This insistence – that

one is either ‘for’ or ‘against’ an object of critique – reduces the multivalence of critique to the

binary logic of acceptance/rejection (and brings to mind Foucault’s own frequently cited

warnings about the ‘‘‘blackmail’’ of the Enlightenment’ – see Foucault, 1997f: 312–313).

For an argument stressing the necessity of critique in its multivalent form, see Brown and


Halley (2002: 25–33). Of course in the context of Foucault’s late work and his claimed

acceptance, or embrace, of human rights, there are at least two other operative, and powerful,

interpretive schemas – both of which are temporalizing: first, the periodization of Foucault’s

work (archaeology, genealogy, ethics); and, secondly, the reading of Foucault as making a

‘return to the subject’ in the late work. Here the two schemas intersect, with the former licensing

a separation of the early and the middle from the later work and the latter specifically orienting a

teleological reading of Foucault’s work to that which it was supposedly lacking all along – a

subject. It is worth noting here the specific genre of these teleological readings. Here I am grate-

ful to Bonnie Honig for emphasizing to me the religious inflections of some of these readings –

Foucault’s damascene moment, Foucault as prodigal son, Foucault as recusant sinner, Foucault

as death-bed convert, Foucault as apostate, and so forth – which all seek to position Foucault in a

certain way towards a liberal thinking of human rights (and in which Foucault returns to the

liberal fold) (on the trope of conversion, see Hacking, 1986: 238; Schmidt and Wartenburg,

1994: 287). Interestingly, these religious narratives are all matched, or opposed, by another set

of readings – embedded in the same texts – which betray a rather more erotic subtext. According

to these readings, Foucault is first seduced by, then begins to flirt with, and then finally embraces

human rights (Dosse, 1997: 336; Paras, 2006: 4). Both ways of reading Foucault’s late work – as

recanting and return, or as consummation – are underpinned by a similar teleologic in which a

liberal thinking of human rights emerges as the necessary but delayed conclusion to Foucault’s

thought.

9. Despite Foucault’s oft-claimed aversion to theory tout court, I read him simply as rejecting the

implications of a certain sort of totalizing theory. That is, what he calls in ‘Society Must be

Defended’ the ‘inhibiting effect specific to totalitarian theories, or at least – what I mean is

– all-encompassing and global theories’ (2003b: 6).

10. Of course, my reading of Foucault on rights is neither exhaustive nor definitive to the exclu-

sion of other interpretations or methodological approaches. My approach here is to mine Fou-

cault’s work for critical insights on rights discourse in order to derive a critical stance towards

rights. In legal theoretical work on Foucault there is still a distinction (not entirely coherent, of

course) between interpretive and applied deployments of Foucault’s work (Baxter, 1996: 450–

451; Simon, 1992: 49–50), and the present work is situated within the former. Clearly if one

were to develop a Foucauldian approach to rights, one could just as easily begin by deploying

genealogy or archaeology in the service of critique (a critique, for example, of rights univers-

alism, of humanitarianism and militarized intervention in its name, of the production of rights-

bearing identities, of the operation of given regimes of rights, and so forth). For two recent

examples of such a deployment, clearly in the spirit of Foucault’s ‘box of tools’ (Deleuze and

Foucault, 1977: 208), see Manokha’s (2009) and Evans’s (2005) critiques of the international

human rights regime. And for a similar critique of international law, see Olmsted (2005).

11. This section distils ideas developed at greater length in Golder (2010b).

12. Space forbids here a discussion of the late work but I signal here that such an interpretation

remains contested. See note 6, above and Golder (2010a) for a fuller defence of my position.

13. The question of Foucault’s relationship to humanism, and whether it could most accurately be

described as a form of critical humanism, post-humanism or anti-humanism (for all three, see

Hardt and Negri, 2000: 91) invites an answer longer than that allowed here. Of course, as

Derrida points out, ‘to be suspicious about the limits of man is not to be anti-humanist, on the

contrary, it’s a way of respecting what remains ‘‘to come’’, under the name and the face of

Golder 303

what we call ‘‘man’’’ (2001a, para. 44). Nevertheless, I have characterized Foucault’s position

here as one of resistance to humanism, and elsewhere under the label of ‘anti-humanism’

(see Golder, 2010b), because this signals Foucault’s oppositional stance to the fiction of the

individual human subject of intention and action and to the idea that such a subject can be fully

known (and thus rendered in power-knowledge). It is in these senses that, whilst acknowled-

ging that the ‘humanism/anti-humanism’ debate is more nuanced than such a simplistic

hyphenation implies, I still find it useful to describe Foucault’s position as one of resistance

to, or anti-, humanism – but by the same token such a resistance, in proper Foucauldian style,

can only possibly take place within and against (the grain of) existing humanisms. See Derrida

(1982: 135) and, on Foucault specifically, Scott (1991).

14. Although see Whyte (forthcoming) for a compelling argument that Foucault – specifically in

the Geneva text – reintroduces a figure of suffering humanity (Agamben’s ‘bare life’, see

Agamben, 1998) as the grounds for rights claims. Whilst in agreement with her that this is

an available interpretation of this particular text I do not feel that this can characterize

Foucault’s rights claims as a whole.

15. The first of these philosophical traditions (both of which are discussed by Patton) is the

‘naturalist’ tradition of Nietzsche. Philosophical naturalism is obviously a broad and contested

tradition and it is clearly not uncontentious to characterize Nietzsche as a naturalist (for a brief

overview of naturalism, and a specific interpretation of Nietzsche as a certain type of natur-

alist, see Leiter [2002: 1–29]). By naturalism in the present context is meant an understanding

of phenomena not in ‘transcendent or universal’ but rather in ‘historical and contingent’ terms

(Patton, 2004: 57). This understanding of naturalism does not demand explanation of phenom-

ena strictly in terms of the physical sciences (as would a much ‘harder’, scientific variant of

naturalism) but rather encompasses, as a related treatment holds, ‘an account of human beings

not only as part of nature, but also living under (and helping to create) culture’ (Ivison, 2008:

22; for an account of Nietzsche’s naturalism influential upon Patton, see Schacht, 2001). For a

relation of Foucault’s thinking of rights to Nietzsche’s naturalist (in the above sense) treatment

of rights (chiefly advanced in Nietzsche, 1997, Book II, §112: 66–67, but see also the related

discussion of justice in Nietzsche, 1996, Vol. 1, II, §92: 49) (see Patton 2004, 2005). The sec-

ond of these philosophical traditions is the tradition of ‘rights externalism’ in analytic philo-

sophy. Again, there are many different strands of externalism but the kind to which Patton

analogizes Nietzsche’s, and thus by implication Foucault’s, approach is that of Derrick Darby

(Patton, 2005: 271). The analogy is an illuminating one in that Darby’s work problematizes

humanity as a ground for rights (2001: 392) and through this problematization a certain

politics of rights is opened up (Darby, 1999, 2003). In Foucault’s case, however, I think the

analogy cannot be taken too far. Darby’s adoption of the Hartian understanding of law

(Darby, 2001: 402) is plainly not Foucault’s, and likewise Darby’s concern to secure

the integrity and systematicity of rights regimes in the face of the spectre of rights

inflation/proliferation (Darby, 2001: 388–390) is also not Foucault’s concern – indeed arguably

Foucault’s position could be conceived as contrary to this. In the forthcoming section on

‘The Strategic Implement-Effect of Political Struggle’ I engage this analytic problematic

of inflation/proliferation from a somewhat different angle and idiom, namely the semiotic

indeterminacy of the ‘human’ and what does and does not flow from this politically.

16. The (non-)coincidence of Foucault and Derrida on law and rights is matter enough for a

separate paper (for engagements with this topic, see Shildrick, 2005; Valverde, 1999;


Williams, 1988). For a contrary reading which emphasizes shared themes, see de Ville (2010).

I just signal here the Derridean accents of the above passage of Foucault’s (see Derrida, 2001a,

para 44). For a Derridean conception of rights which sees their (necessarily constrained) illi-

mitability and their (necessarily insufficient) determinacy as co-implicated, see Fitzpatrick

(2007).

17. By ‘enforcement’ is meant here not a strictly legal, or even necessarily political, conception

(see Minow, 1986–87: 1867).

18. Although, as critics as diverse as Derrida (2001b: 36–76) and Habermas (1997: 240–241) have

argued, in this early work Foucault is in fact attempting to recover through historical narrative

the pre-discursive reality of madness, as such – and not practising the rigorous nominalism of

later archaeological texts like The Birth of the Clinic (Foucault, 2003a). On this see Foucault’s

own comments in (1972: 47).

19. Although cf. Brown (2004: 460–461).

20. One of the many paradoxes of contemporary human rights discourse is its simultaneous depo-

liticization and politicization; that is, mainstream human rights discourse represents itself as a

straightforward, apolitical defence of the vulnerable in the name of a straightforward humanity

(with manifest depoliticizing effects, see Brown, 2004), whilst simultaneously arrogating to

itself the position of humanity, which as Schmitt warned in The Concept of the Political was

‘an especially useful ideological instrument of imperialist expansion’ and the most potent

political tool (1996: 54). The characterization of human rights I offer here through Foucault

would militate against the self-presentation of human rights as universal, apolitical, and so

forth. My thanks to Daniel McLoughlin for helpful conversations on this topic.

21. Freedom figures prominently in this late text of Foucault’s, ‘What is Enlightenment?’ (see e.g.

1997f: 316: ‘ . . . work carried out by ourselves upon ourselves as free beings’), and there is

much useful commentary on the meaning of freedom in this text and in relation to Foucault’s

work more generally. For an instance of the latter with which I am in broad agreement, see

Prozorov (2007). Let me schematize here my reading of freedom in Foucault and how it

relates to rights. Freedom for Foucault is not a property of the individual subject (Oksala,

2005: 188), and there are for him consequently ‘no [subjective] spaces of primal liberty

between the meshes of [power’s] network’ (Foucault, 1980b: 142). Rather, freedom is to be

understood as simultaneously designating both a condition of possibility for, and a margin

of contestability/reversibility of, power formations. As he puts it in ‘The Subject and Power’:

‘freedom may well appear as the condition for the exercise of power (at the same time its pre-

condition, since freedom must exist for power to be exerted, and also its permanent support,

since without the possibility of recalcitrance power would be equivalent to a physical deter-

mination’ (2000i: 342). Freedom for Foucault is hence neither an ontological property of the

subject nor that which can be alienated to found sovereignty – rather, it subsists as the consti-

tutive instability and possibility of reversibility of power itself. As such, it cannot ever be defi-

nitively ‘guaranteed’ or secured institutionally (Foucault, 2000h: 355) but exists in its

exercise, in its practice (2000h: 354). Rights as instruments (in the way I develop that concep-

tion above) are part of the armoury of resistant subjects to reverse power formations, to ‘turn

around’ (2000h: 355) laws and government practices through practices of liberty (which is not

to say, as I argue above, that rights are themselves removed from or unproblematically

opposed to power). My thanks to Warwick Mules for pressing me to think about the relation-

ship of freedom to rights in this late work, particularly in the context of Foucault (1997f).

Golder 305

22. I do not mean to make a strict distinction between discursivity and materiality – clearly

neither can be thought without the other. Nevertheless, a focus on questions of materiality

is salutary here. These questions share something with current concerns in critical legal

theory to focus energies upon what Susan Marks usefully calls the problem of ‘false con-

tingency’ (see Marks, 2009; see also, Koskenniemi, 2009: 9). The problem of false con-

tingency marks a failure to identify the structural and strategic blockages which, whilst

not historically necessary, are nevertheless neither arbitrary nor easy to disrupt (on this

latter point, see Christodoulidis, 2009; Bailey, 2009). A critique of institutions and prac-

tices must, as Marks emphasizes, deploy simultaneously both a critique of false necessity

and of false contingency (2009: 10). I take this to be Foucault’s position also, aptly

encapsulated by his perceiving in ‘the contingency that has made us what we are’

(1997f.: 315) the formative force of the contingent.

23. But compare this polemical formulation of rights with Foucault’s later discussion in the inter-

view ‘Polemics, Politics and Problematizations’ (1997c: 111–113).

24. See Ivison (1998: 142), see Nietzsche’s comments on ‘historical philosophizing’ in Human,

All Too Human (1996, Vol. 1, I, §2: 12–13).

25. Of course, it is in the nature of rights (and human rights even more so) to be both particular

creations and have universal, or universalizable, aspirations. Foucault’s position is obviously

opposed to the idea that any claim of right, any positive right, can encapsulate universality as

such but it is precisely in the contestation between the particular and the universal that a

politics of human rights resides. Pahuja delineates this dynamic neatly when she argues: ‘when

a human right comes up against someone to whom the right does not apply because of the

particular ‘‘human’’ inscribed within the right, that person embodies the limit of the right and

presents to the universal an insistent factuality contesting the universal’s claim to be such.

This clash brings political contestation to the heart of every human right’ (2007: 169). See also

Ranciere (2004).

26. There is not sufficient space here to develop this account, but the reading of rights-based

resistance signalled in the text, above, is indebted to Judith Butler’s Derridean reading of

Foucauldian resistance (1993: 244–246, fn 8). As she puts it towards the end of Bodies

that Matter: ‘To take up the political signifier [here, for me, rights] (which is always

a matter of taking up a signifier by which one is already taken up, constituted, initiated)

is to be taken into a chain of prior usages, to be installed in the midst of significations

that cannot be situated in terms of clear origins or ultimate goals’ (1993: 219). And again,

elsewhere in that same text, in discussing performativity, she writes: ‘Performativity

describes this relation of being implicated in that which one opposes, this turning of

power against itself to produce alternative modalities of power, to establish a kind of

political contestation that is not a ‘‘pure’’ opposition, a ‘‘transcendence’’ of contemporary

relations of power, but a difficult labor of forging a future from resources inevitably

impure’ (1993: 241).

Acknowledgements

I would like to acknowledge the UNSW Law School Research Fellowship which supported the

writing of this article. I would also like to thank the following people for their critical engagement

with previous versions of this article: Angus Corbett, Peter Fitzpatrick, Colin Gordon, Martin

Krygier and Gary Wickham.


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