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]
Social & Legal Studies20(3) 283–312
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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
286 Social & Legal Studies 20(3)
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,
288 Social & Legal Studies 20(3)
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
290 Social & Legal Studies 20(3)
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
292 Social & Legal Studies 20(3)
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
294 Social & Legal Studies 20(3)
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
296 Social & Legal Studies 20(3)
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
298 Social & Legal Studies 20(3)
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
300 Social & Legal Studies 20(3)
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
302 Social & Legal Studies 20(3)
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;
304 Social & Legal Studies 20(3)
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.
306 Social & Legal Studies 20(3)
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