I try to consider human rights in their historical reality while not admitting that there is a human nature.
The Impossible Object of a Foucauldian Politics of Rights?
The anthropologist Clifford Geertz’s well-known review of Michel Foucault’s Discipline and Punish in the New York Review of Books in 1978 opens with the following tart, yet characteristically acute, observation:
Michel Foucault erupted onto the intellectual scene at the beginning of the Sixties with his Folie et déraison, an unconventional but still reasonably recognizable history of the Western experience of madness. He has become, in the years since, a kind of impossible object: a nonhistorical historian, an anti-humanistic human scientist, and a counter-structuralist structuralist.1
It could not have been apparent to Geertz in 1978, but today, with the benefit of hindsight, we might add to his list of putative paradoxes the even more surprising figure of Foucault the political defender of rights. Indeed, as many readers of Foucault have noticed in the thirty-seven years since Geertz’s review, something quite remarkable happens in Foucault’s work from the mid- to late 1970s onward. Having made up to that point in his career a series of powerful critiques of the philosophical presuppositions of rights, Foucault begins increasingly to make appeals to the discourse of rights. He does so in philosophical work that engages with rights as a subject of analysis, but also in more directly political texts such as his often co-signed or collaboratively authored activist statements, interviews, and journalistic interventions. What may account for this puzzling shift from an iconoclastic anti-humanism and imperviousness to rights talk to a seemingly liberal defense of the classical Enlightenment tradition (of the rights of prison inmates, sexual minorities, asylum seekers, and many more besides)—and this in such a staggeringly short period of time? What happens to Foucault in this interim? Does he recant and revise his former critical positions, acceding to a liberal politics of rights, or is there something else at work in the later body of work, in this curious Foucauldian Spätstil?
This is a book about Foucault and the politics of rights. As to the latter, we are frequently told in tones either celebratory or skeptical that we live today (and have for some time now) in the age of rights.2 The phrase implies that rights function as the dominant contemporary political idiom—as something much like what Jean-Paul Sartre, speaking of Marxist communism in postwar France, once famously called “the unsurpassable horizon of our time.”3 All manner of claims for justice—social and transitional, individual and communal—are made in the name of rights, channeled through their particular juridico-institutional avenues, stamped with their moral imprimatur. One index of the success of this discourse of rights—best exemplified in today’s ideologically hegemonic version of rights, namely, human rights—is the extent to which even those critical thinkers routinely suspicious of claims to universality, of liberal doxa concerning the subject of rights, and of the constraints of “juridifying” political claims through rights and law,4 have nevertheless themselves come to accept rights as forming some part of a critical, radical, or left politics. Of course, such “acceptances” of rights are nuanced and often ambivalent encounters, and accordingly need to be understood both in terms of the historical location of the theorist as well as the political work that rights are said to perform in their theory. Nevertheless, the phenomenon of what Costas Douzinas has recently called “rights revisionism”5 on the left is an observable and remarkable one in the thought of thinkers as diverse as Claude Lefort, Jean-François Lyotard, and Étienne Balibar in the 1980s and 1990s,6 as well as in the more contemporary work of Jacques Rancière, Judith Butler, and Slavoj Žižek.7 Rights emerge in these varied accounts not as an end in themselves but rather as a tactical means, as an opening to other forms of emancipation, rearticulation, and struggle—that is, as representing some form of political possibility, whereas hitherto they had merely represented a blockage, an obstacle, an ideological mystification, or an unhelpful displacement of political energies onto legal-formalist terrain.
Foucault, as we have observed, is a thinker who in his late work makes a surprising turn to rights. This book presents an account of that body of work and proposes a reading of it. But in addition to being a study in the philosopher’s late political thought—which articulates a specifically Foucauldian politics of rights—it also uses the particular case of Foucault to reflect more broadly upon the phenomenon of “rights revisionism” just instanced—and thereby to begin to provide an assessment of the political possibilities (and limitations) of such a return to rights. The first task is interpretive, the second more diagnostic and reflective. The book has two aims therefore: I want first, by reconstructing from a number of Foucault’s different writings, to explain exactly what I mean by the notion of a “Foucauldian politics of rights” in the late work and hence distinguish it from a range of other possible approaches to rights politics. I shall very shortly come to describe Foucault’s own approach, but for now let me simply signal that the interpretation pursued in the following pages is one of a critical politics of rights: anti-foundationalist, non-anthropologically grounded, openly political, and tactically oriented toward intervening into existing formations of law, state, and power. In other words, I do not read Foucault’s turn to rights as simply coincident with liberalism but rather as critically engaged with (and transformative of) it. Second, however, and simultaneous with the above task of explanation, I want to begin to analyze both the possibilities opened up and the limits encountered by such a politics. As a result, this book is simultaneously expository and analytical—I am concerned to construct a plausible interpretation of Foucault’s theorization and deployment of rights in the late work but, at the same time, to submit this very understanding of Foucault’s politics of rights to critique as the argument develops. The first task raises interpretive questions—just what is a Foucauldian politics of rights and how can it be understood in light of his work as a whole?—while the second broaches a range of wider but also more directly political questions. If, as I shall argue, Foucault can be understood to be making critical and tactical interventions into rights discourse, then what precisely is the value of such an engagement? How might such a politics navigate the dangers of co-optation by the hegemonic force of rights? What is gained and/or lost in the political encounter with rights, and do we thereby relinquish the possibility of thinking a political alternative to rights? In thinking rights differently and critically, do the possibilities of alternative organizations and figurations of the political become fainter? Here my reading of Foucault will also be a historical, symptomatic one, in which Foucault’s critical yet ambivalent engagement with rights will be seen to index wider changes in the culture of rights criticism—changes which continue to structure and animate many contemporary approaches today.
There are at least two ways to grasp Foucault’s importance to, and distinctiveness within, this broader tendency within political theory toward critically re-engaging with rights. The first of these approaches is simply to read Foucault alongside a range of other theorists who deploy rights in a similar way. This body of work includes thinkers influenced by Foucault or who reacted to him, as well as thinkers from different or theoretically opposed schools of thought whose thought parallels, complements, or challenges Foucault on rights. Accordingly, in the chapters that follow, I read Foucault alongside (and sometimes against) important figures in contemporary philosophy and political theory such as Wendy Brown, Judith Butler, and Jacques Rancière, as well as work within and indebted to the Marxist tradition and recent contributions within the field of critical legal theory that take up the work of Foucault’s contemporary, the radical lawyer Jacques Vergès. My intention is to situate Foucault within a political theoretical tradition that critically engages with and deploys rights, showing how his thought impacts upon and is impacted by others thinking along similar yet sometimes opposed lines. This is obviously one way to avoid the mistake of treating Foucault in conceptual isolation from other innovators on the political terrain of rights and, in the process, to tell a richer story both about Foucault and his relation to this broader critical tendency of which he is a part.
But the second way is not so much, or at least not primarily, conceptual as it is historical. This second approach is reflected in a burgeoning body of literature—in history, obviously, but also in law and political theory—that addresses itself to the question of the origins of contemporary human rights discourse. This scholarship intersects both methodologically and substantively with the account of Foucault that I provide in this book. The methodological question revolves around the political value and effect of genealogy as a mode of historical inquiry. Writing in 2012, the historian of human rights Samuel Moyn observed that “the historiography of human rights is currently in great ferment. Scarcely a decade ago, the field did not exist.”8 That it exists today cannot be credited solely to Moyn, of course, but that it has grown exponentially (especially since the publication of his book The Last Utopia: Human Rights in History in 2010) probably can. As Philip Alston recently put it (in the context of a critique of Moyn’s work), “there is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.”9 Moyn’s provocative book catalyzed that genealogical struggle, fomenting political and philosophical disagreement about the ends of human rights in and on the terrain of history. Briefly, The Last Utopia proposes a bold, revisionist understanding of the origin of contemporary human rights discourse that, instead of connecting it (as did previous historical accounts) to ancient sources in Western civilization (Micheline Ishay), the French Revolution and the American Declaration of Independence (Lynn Hunt), or the Holocaust (Michael Ignatieff), locates it much more recently and contingently in the late 1970s as a response to the failure of the dream of revolution.10 That Moyn and others have troubled the triumphalist and teleological certitude of orthodox accounts of human rights, and have spurred rival and competing attempts to renarrate the origins of human rights, speaks to the productivity of genealogy as a critical tool. Yet more important than the methodological stakes of these histories (to this book, at any rate) is the substantive historical context that they provide. On Moyn’s reading, human rights emerge in the vacuum left by the collapse of faith in the dream of revolution in the West. Human rights come to prominence as a form of moralistic anti-politics precisely in reaction to the “demise of the revolutionary privilege,”11 and in the late 1970s there takes place a transfer of utopian energies and investments from revolution to compliance with international human rights law. The present book is not a work of history, but it is nevertheless important to locate Foucault historically. Rather obviously, his critical innovations with rights take place at the same time as the historical shift that Moyn describes is unfolding. Can Foucault’s engagements with rights accordingly be read through the lens of a failed revolutionary utopia and a return to liberalism, or does he try to navigate a critical space between liberalism and revolution? If so, what are the nuances and ambivalences of Foucault’s position and how can his experimental and evolving politics of rights be understood in relation to his present—and ultimately, to ours?
But this is already to get a little ahead of myself, for these are questions that will emerge as my account of Foucault’s politics of rights develops throughout the book (and that will culminate in its final chapter). How, then, do I understand Foucault’s approach to the question of rights? To foreshadow the argument of the coming chapters, let me say that I echo Foucault’s own words and call it a critical counter-conduct of rights.12 In my view, it is indisputable that Foucault engages much more (and much more seriously) with rights discourse in the period after the mid-1970s than in the preceding years. However, this engagement, pace many of Foucault’s readers, can neither be easily reduced to a straightforward acceptance of individualist liberal rights discourse nor to an endorsement of the regnant pieties of contemporary human rights talk. (Or, at any rate, it cannot be so reduced without losing sight of a significant part of what Foucault was hoping to achieve.) In my view, Foucault seeks instrumentally to deploy rights in the service of particular political struggles in the years following the mid-1970s, but in so doing he has in mind a more critical and contestatory agenda—an agenda transformative both of power relations and of the relations to self that they engender and rely upon—than is encompassed either by liberalism or by orthodox mainstream human rights thinking. On my reading, there is indeed a shift in his late work concerning rights, but it does not amount to a radical break with, and rejection of, his previous methods and concerns. Rather, Foucault now better perceives the ways in which rights can function to contest and remake relations of power—but without ever losing sight of their (often paradoxical) limitations. His is a critical, but often quite ambivalent, appropriation of rights discourse. Rights emerge in Foucault’s (later) account as potentially useful, tactical instruments in political struggle, as political tools immanent and not exterior to the field of political combat. (That is, as we shall shortly see, precisely as amenable to forms of counter-conduct in the language of the late work.)
Many readers of Foucault maintain that he makes a return to rights in the late work that is indicative of a shift in his political stance toward liberalism (a kind of détente or rapprochement). I disagree with both these positions. First, and bearing in mind the earlier work, Foucault’s late engagement with rights cannot exactly be called a form of return or of “rights revisionism,” as he does not express a clear (and hence revisable) view on rights prior to this point. Rights simply do not figure prominently enough in his earlier work for us to be able to make such a claim. What he does express is a critique of the philosophical presuppositions of liberal rights discourse—which has led many to style him as a rights critic, or cynic, by which is usually meant one who rejects rights out of hand. My account stresses both a continuity and a development; in the late work, Foucault maintains his earlier critiques but now tries to show how rights as political instruments can be understood differently and can in this light form part of critical political struggles. From this it follows that his late articulation of rights surely does not betoken some shift to liberalism, if what is meant by this is an embrace of the sovereign subject and an individualist ontology. Rather, he consistently refutes these intellectual positions. But we have to be careful here to do justice to Foucault’s position, for to deny that he adopts or comes closer to adopting a “liberal” position in this philosophical or ideological sense is not to rule out any critical engagement with, or adaptation of, the historical and contemporary resources of liberalism. Liberalism, Foucault insists in his 1979 Collège de France lecture course, “The Birth of Biopolitics,” is not—or is not only—an ideology or a theory about the relation between the individual and the state or civil society. It is also, and more importantly, a set of practices and a way of governing and of conducting the relations between individuals, civil society, and the state. For Foucault, that is, liberalism primarily represents a form of governmentality and not a theory of the subject.13 Rights are a key political technology within the repertoire of liberal practices of rule, and so just as he proposes to reunderstand and reappropriate elements of rights discourse, this also means that he enters onto the terrain of liberalism and works within and against its practices. Such a position reflects my understanding both of Foucault’s concept of critique and of his methodological orientation toward practice. Foucault was indeed a critic of the liberal tradition (and consistently of its core philosophical tenets) well into the late work, but his critique is neither equivalent to rejection nor exclusive of adaptation or subversive borrowings from that tradition.
But perhaps it would be sensible to begin by taking a few steps back, in order to explain why the idea of Foucault as a rights theorist, or further, as a political advocate of rights, might strike many, if not most, of his readers today as a somewhat counterintuitive idea. After all, wasn’t the philosopher a radical critic of rights, a poststructuralist undoer of the sovereign subject, indeed, even—horribile dictu—a denier of law’s emancipatory possibilities? What is it that makes a specifically Foucauldian politics of rights seem so unlikely—or even, in Clifford Geertz’s terms, “impossible”?
The beginnings of an answer to this initial question can be found in the scholarship for which Foucault continues to be best known in the humanities and social sciences, namely, his mid-1970s work on the political technologies of modernity.14 Foucault’s Nietzschean genealogies of the power to punish (in the book Discipline and Punish, for example), his brief but posthumously influential sketches of biopolitics (in the first volume of the History of Sexuality and in his 1976 Collège de France lectures), and his more detailed (and similarly influential) histories of changing forms of late modern and contemporary governmental reason and practice (in his 1978 and 1979 Collège lectures on governmentality)15 represent the body of work—Foucault’s genealogies and “power analytics”16—that for the majority of his readers is the most explicitly political. It is in this political corpus that Foucault treats questions of power—famously conceived as neither a thing nor a capacity but rather, after Nietzsche, as a complex, contingent, and fluctuating relation between forces. This body of work on power, much commented upon and critiqued in the post-Foucauldian literature, is distinguished by several methodological and substantive features, many of which I propose to discuss in the coming chapters. For the moment, however, let me simply note two that best clarify the reasons why the notion of Foucault as a theorist (or more peculiarly, as a proponent or advocate) of rights politics is so unlikely. The first is his critique of foundationalist understandings of subjectivity, and the second is his critique of traditional conceptions of sovereign power. Each of these critiques engages key components of an orthodox liberal account of rights. It is my contention that, in order to make a proper evaluation of Foucault’s late deployment of rights, it is necessary to understand his theoretical objections to the orthodox liberal discourse of rights. Let me introduce these critiques briefly, starting with the question of the subject.
In short, Foucault’s work of this period (indeed, both his earlier and later work) decenters the privileged position of the sovereign subject as a knowing and acting agent. As is now very well known, his 1970s work on rationalities and technologies of power (discipline, biopolitics, apparatuses of security) consistently maintains that subjects do not pre-exist the world, but rather are fashioned within it; subjects are “created,” “fabricated,”17 constituted by formations of power and regimes of truth. Any number of Foucault’s statements in this period could attest to this, but perhaps the most often cited come from a series of admonitory “methodological precautions” given during his 1976 lecture course at the Collège de France, titled “‘Society Must Be Defended.’” There he cautions against understanding “the individual as a sort of elementary nucleus, a primitive atom or some multiple, inert matter to which power is applied, or which is struck by a power that subordinates or destroys individuals.” For Foucault, the subject is not “elementary”; it has no special, ontological status prior to its emergence in relations of power. There is no essence to the subject. Power in this view does not repress or disallow a pre-existing subjective essence; rather, it is that which itself enables the subject to appear, permitting “bodies, gestures, discourses, and desires to be identified and constituted as something individual” in the first place.18
Foucault’s sustained critique of subjectivity—a critique consistently maintained, and yet modulated and variously articulated throughout his work—is a much-rehearsed (and -caricatured) topic in the critical literature, where may be found any number of solemn pronouncements on the dire ethical and political ramifications of such a pernicious doctrine that the subject is made and not given. For such readers, Foucault evacuates the position of the subject and into the resulting normative void slides every possibility of ethical responsibility, self-reflection, agency, engagement, critique, resistance, or progressive social and political change.19 The overheated charges of nihilism, paralysis, and quietism leveled at much French poststructuralist philosophy and social theory (especially Foucault’s) from the 1960s onward are doubtless familiar enough today to need no further elaboration here, but I shall touch upon Foucault’s critique of subjectivity in later chapters and there look to problematize some of these statements. For now, it suffices to note that Foucault’s position on the subject commits him to rejecting any universal constant in human affairs (“All my analyses are against the idea of universal necessities in human existence,” he insists)20 and to denying that the subject can be simplistically and unproblematically opposed to relations of power that challenge it from the outside, as it were. Rather, for Foucault, subjects and power relations are imbricated and co-constitutive.
We can immediately see that from the perspective of liberal political theory and its traditional understanding of the grounds and functions of modern rights discourse, these two tenets are deeply problematic. As regards the first of these, philosopher Paul Patton writes succinctly:
Foucault is well known for his reluctance to rely upon any . . . universalist concept of human nature or human essence. By contrast, the predominant approach to the nature of 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.21
We might add to Patton’s list that in the case of human rights today it is the supposed mere fact of our being human,22 and not the manifestation of a given feature or capacity, that qualifies us as rights holders. However, as regards the second Foucauldian tenet, namely, that subjects cannot be ontologically separated from or straightforwardly opposed to relations of power from which they need protection or sheltering, we can see immediately that this also challenges a core understanding of liberal political thinking about rights. From this latter perspective, rights are supposed to reflect and protect the originary freedom of the subject (as against other subjects and the community at large). In her essay “Law, Boundaries, and the Bounded Self,” for example, legal theorist Jennifer Nedelsky meditates at length upon the imaginative properties of the idea of the boundary “as a central metaphor in the legal rhetoric of freedom.” She writes: “Everyone is familiar with, or at least would immediately recognize as intelligible, the image of rights as boundaries defining the sphere within which human autonomy (or freedom or privacy) resides. Certainly within Anglo-American legal theory that image is routine.”23 Nedelsky is surely right: the texts of law and liberal political theory are undoubtedly suffused with spatial metaphors (such as spheres, boundaries, zones, and limits) and the ontologically bounded subject they imply and re-perform. Moreover, these texts themselves function rhetorically through the very mobilization of such metaphors. Whereas in much liberal political thought, then, the subject of rights is presupposed as ontologically prior to and separate from the relations of power that compose the society in which that subject finds herself (and rights accordingly emerge as beneficial juridical tools to facilitate and mediate that separation, to protect or carve out a zone of liberty, privacy, and so forth), Foucault’s position on the production of the subject in and through relations of power fundamentally challenges this core conception of orthodox liberal rights theory. We can thus appreciate how Foucault’s critique of subjectivity undoes any easy justificatory resort to the familiar “grounds” of rights. Indeed, it goes further in reversing the assumptions embedded in the radical separatism (of the subject from surrounding power relations) characteristic of liberal rights discourse. Instead, Foucault points to both the connectedness and constructedness of subjects in and through rights. This might seem an unpropitious start to the task of trying to conceive of Foucault as a rights theorist or advocate, but it will be recalled that a moment ago I introduced a second (and related) objection—or rather, a second theoretical challenge—that Foucault issues to conventional liberal rights discourse. Foucault, that is, provides us not only with a critique of the subject but with a critique of sovereign power.
Foucault’s analysis and critique of sovereign power is a topic to which I shall turn at length in Chapter 1. For now, I simply want to touch upon several aspects of this work that pose cognate problems to those raised by the critique of subjectivity just discussed—that is, potential stumbling blocks to conceiving of Foucault as a rights theorist. To start with, Foucault’s critique of sovereign power—work largely conducted in the 1970s, the “middle phase” of his career—takes issue with the model of sovereignty for understanding how power functions in modern society. This problematization of sovereignty as an organizing principle for the analysis of power relations, and its ultimate inadequacy to the task of comprehending the actual movements of power in the modern world, is frequently expressed in what are now very well known and oft-cited decapitatory metaphors. “In political thought and analysis,” Foucault remarks famously in the first volume of the History of Sexuality, “we still have not cut off the head of the king.”24 Again, in a 1977 interview titled “Truth and Power,” he urges: “We need to cut off the King’s head: in political theory that has still to be done.”25 What he means by inciting this act of analytic regicide is that the theoretical model of the sovereign who speaks the law and whose imperative commands are issued to his subjects in a restraining, negative, repressive, and top-down manner—imperatives obeying the juridical, sanctioning form of “a law which says no”26—fails to capture the actual dimensions of the modern exercise of power.
For Foucault, the discourse of sovereignty and the understanding of power it relies upon (and reproduces) first emerge in the historical context of the Middle Ages and are connected to the shape and function of monarchical institutions at that time. Indeed, according to him, the monarchy originally “made itself acceptable by allocating itself a juridical and negative function,” mediating between warring feudal parties by deploying the threat of juridical sanctions so as to “put an end to war, violence and pillage.”27 This particular “system of representation of power” then gets redeployed and extended in the “subsequent era” by the “classical theoreticians of right”28—social contract thinkers of the seventeenth century such as Thomas Hobbes and John Locke, and then Jean-Jacques Rousseau in the eighteenth century—who come to understand power in terms of a discourse of sovereign legitimacy. When is the exercise of sovereign power justified and legitimate? When must the subject obey? The figure of the sovereign and his legitimate rights (and, conversely, the subject’s rights vis-à-vis the sovereign) provided the model for answering these questions. That is, for Foucault, these “great edifices of juridical thought and . . . knowledge” (Hobbes’s Leviathan, Locke’s Second Treatise) functioned at one and the same time both to justify the existence of sovereign power and to police its limits:
Either it had to be demonstrated that royal power . . . was perfectly in keeping with a basic right; or it had to be demonstrated that the power of the sovereign had to be limited, that it had to submit to certain rules, and that, if that power were to retain its legitimacy, it had to be exercised within certain limits.29
In Foucault’s view, “from the Middle Ages onward, the essential role of the theory of right has been to establish the legitimacy of power.”30 As he sees it, from the Middle Ages through the classical era of social contract thinking to the modern state, political theory has “never ceased to be obsessed with the person of the sovereign”31 and in so doing has simply supplied itself with a succession of inapt sovereign avatars (King, Leviathan, State) that fail to apprehend the actual exercise of power. As he puts it in “Truth and Power,” “to pose the problem in terms of the State means to continue posing it in terms of sovereign and sovereignty.”32 But—and this is crucial for Foucault—these theoretical models fail to grasp the way in which power actually functions in modernity. In texts from the mid-1970s onward, especially Discipline and Punish and the first volume of the History of Sexuality, Foucault provides a contrary account of the way in which modern power functions—namely, through juridically unauthorized and asymmetrical relations of discipline and biopolitics that subsist alongside or underneath the majestic spectacle of the sovereign discourse of right. As he famously says of discipline, “the real, corporal disciplines constituted the foundation of the formal, juridical liberties. . . . The ‘Enlightenment,’ which discovered the liberties, also invented the disciplines.”33
In conclusion, Foucault’s thinking seems to undermine a resort to rights. Surely, a common argument would have it, for a politics of rights to be effective one must begin by assuming a stable and delimitable “ground”—an ascertainable subject of rights, an intentional, autonomous, and willing political actor in whose name rights are claimed and protected. “A long and distinguished tradition of modern, normative social criticism and historical interpretation,” writes social theorist Nancy Fraser, “has developed around the humanist notions of autonomy, reciprocity, mutual recognition, dignity and human rights . . . [which] derives its normative force from . . . a metaphysics [of subjectivity].”34 And yet, as we have just seen, Foucault begins precisely by seeking to displace and to trouble such assumptions about subjectivity: subjects (of rights) are neither prior to nor severable from surrounding networks of power but are indeed the very “effects” of them. Ultimately, for Fraser (and many others), this means that in rejecting these hallowed humanist premises Foucault dangerously leaves himself with “no foundation for critique.”35 To complicate matters further, Foucault’s critique of sovereign power and his alternative conception of power as alternately disciplinary and biopolitical refuse the very concept of rights as a way of codifying or understanding power. If the discourse of rights cannot comprehend the operative movements of discipline, or of biopolitics—worse, if rights are in fact masking these very movements, or are in some way complicit with them—then of what use is a politics of rights in combating or reframing these relations? Can rights, as is claimed, even be said to mitigate the effect of power relations or protect the subject from them? We have returned, it seems, to Geertz’s initial and unpromising summary verdict of impossibility. With what sense can Foucault himself plausibly talk of rights, or we today talk of a “Foucauldian politics of rights”? Very little, it would seem. As Joan Reynolds observes, expressing a widely held view, “To think of Foucault as a champion of human rights [and, we might add, rights more broadly] seems fraught with contradiction, if not downright perverse.”36
Foucault’s Curious Deployments of Rights
Of course, as seasoned readers of Foucault will already know, “contradiction” and “perversity” are the kinds of judgments that have routinely been made either of Foucault’s political theorizations per se or of his concrete interventions into particular political questions and controversies of the day. Moreover, it is very often the case that Foucault’s well-known theoretical positions on discourse, power, and the subject are themselves thought to render difficult—indeed, perhaps even contradictory or perverse—the kinds of political commitment and activity in which he nevertheless frequently engages. Often Foucault’s particular political interventions are read as symptomatic of a disavowed normativity that he fails to confront or thematize in his theoretical work. This is the thesis of Foucault’s “cryptonormativity” pursued by Jürgen Habermas, for example, who asserts that Foucault operates according to a hidden normative agenda. Alternatively, Foucault’s interventions are read as revealing a split between the order of philosophy and that of politics, between his theory and his practice, between his words and his deeds.37 This is definitely the case with the reception and understanding of Foucault’s own late deployment of rights.
Against the background of these concerns, and in the light of his twin criticisms of the metaphysics of subjectivity and of the model of sovereignty over a number of years, Foucault begins to resort increasingly to the discourse of rights in his political, journalistic, and philosophical work of the mid- to late 1970s and into the early 1980s, before his death in 1984. This is no doubt a relatively short period of time, but this particular aspect of Foucault’s work is nonetheless noticeable, remarkable, and illustrative of important dimensions of his broader approach to theorizing power and practicing politics.
Many commentators on Foucault’s late deployment of rights discourse have located a retrospective “origin” for his “turn” to rights discourse buried in his closing comments to the second lecture of his 1976 Collège de France lectures.38 There, having just made the argument—in line with his critique of sovereignty outlined above—that because “right, the famous old formal, bourgeois right . . . is in reality the right of sovereignty” and that “having recourse to sovereignty against discipline will not enable us to limit the effects of disciplinary power,” he goes on to suggest that
if we are to struggle against disciplines, or rather against disciplinary power, in our search for a nondisciplinary power, we should not be turning to the old right of sovereignty; we should be looking for a new right that is both antidisciplinary and emancipated from the principle of sovereignty.39
So, against the “old right of sovereignty” Foucault proposes a “new right” that would respond both to the problems of discipline and sovereignty itself. (More precisely, it would be opposed to the former and untethered from the latter.) It is noticeable that, in the years following this theoretical challenge—a challenge that, like many others issued in the forum of the Collège lectures, is never explicitly taken up again as such—Foucault begins to mobilize the discourse of rights and to make more concrete appeals to rights in his own work.40 Can we read these subsequent discussions of rights as attempts to answer the question he had set himself in “‘Society Must Be Defended’”? Perhaps. Foucault’s discontinuous intellectual trajectory—his unexplained silences, changes of direction, changes of method—seems to militate against, or at any rate complicate, such a reading. Nevertheless, what is clear is that references to rights in his work after this point not only proliferate but also take on greater theoretical importance. Many of these references appear in interviews and in public political statements, but rights are also discussed in the context of his Collège lectures and in his philosophical work at this time. They concern appeals both to rights currently recognized and (more frequently, as we shall see) to rights not envisioned, accepted, or enforced at the time. They encompass procedural rights (that is, guaranteeing certain procedural protections) as well as substantive rights (to the enjoyment of certain things or ways of life). They feature rights traditionally enforced by, and held against, the state, and also those which recall or envision a theatre beyond the state. They concern rights attaching to individuals but also various rights grounded upon, claimed in the name of, and exercised in and by different kinds of collectives. And finally, they concern rights pertaining to political issues with which Foucault had previously engaged on a theoretical or an activist level (prisons and sexuality, for instance), but also to new and evolving contexts with which he had not hitherto centrally concerned himself (asylum, international humanitarianism, international solidarity). All in all, a very wide spectrum of different rights—let us briefly examine some of them.
In a lecture given in March 1976 at a University of Montreal conference on the rights of prison inmates, for example, Foucault observed critically of the prison that its “internal rules . . . are always absolutely contrary to the fundamental laws that in the rest of society guarantee the rights of man,” and that this spatio-political arrangement thus constituted “a fearsome exception to right and to the law.”41 Indeed, elsewhere he had called for “immediate measures . . . [to] eliminate all abuses of rights in the way the law is applied” within the prison.42 These interventions are in a political field with which Foucault’s contemporary theoretical and activist work (Discipline and Punish and via the Groupe d’Information sur les Prisons [GIP]) is very clearly associated. But the philosopher’s interventions into and deployment of rights discourse in this period go far beyond the question of intolerable conditions in French prisons. In December 1977, for example, in a statement published in Le nouvel observateur, “Letter to Certain Leaders of the Left,” Foucault criticizes the Socialist Party (then in opposition) over their failure to respond urgently both to the deportation of Klaus Croissant, a lawyer for the Baader-Meinhof German terrorist group seeking political asylum in France, and to the government of the day’s charging of two French women with themselves having “harboured” Croissant. In the course of this brief discussion Foucault not only invokes the right of asylum, but also criticizes the tendency of the contemporary “security pact” (between state and citizen) to produce “dangerous extensions of power and distortions in the area of recognized rights.”43 Again in Le nouvel observateur, this time in April 1979, Foucault writes an “Open Letter to Mehdi Bazargan,” the then Iranian prime minister (who had been installed as the first prime minister after the revolution by Ayatollah Khomeini). Here Foucault publicly recalls private conversations with Bazargan (while he was chairman of the Association for the Defense of Human Rights in Iran, prior to the revolution), in which the latter had argued that a future Islamic republic would guarantee human rights. Now, in the context of postrevolutionary human rights abuses and political show trials, Foucault asserts the importance in the judicial system of affording the accused “every means of defence and every possible right.”44 Furthermore, in an interview published in English as “The Risks of Security,” and in other fora, he advocated a “right to suicide.”45 But perhaps the best-known example of Foucault’s appeals to rights discourse is his invocation of the concept of the “rights of the governed” in the context of international affairs, refugees, and humanitarianism. From the late 1970s he had been politically involved in the question of Vietnamese refugees. In 1981 he attended a United Nations conference on piracy in Geneva. A brief statement he made to the conference, described by one of his biographers as “a sort of charter of human rights,”46 was translated into English and published under the title “Confronting Governments: Human Rights.” In this text, which makes no explicit reference to “human rights” as such, but rather mobilizes the concept of the “rights of the governed,” Foucault refers to the rights of an international citizenry and the effective establishment of a “new right—that of private individuals to effectively intervene in the sphere of international policy and strategy.”47 Numerous other examples could be adduced at this stage, from Foucault’s defense of rights pertaining to sexuality and to “relational rights” through to his support for the Polish Solidarity movement along human rights lines,48 but I think it is probably clear from the foregoing that he is beginning at this time to affirm the political importance of rights in a way that seems, to put it mildly, somewhat at variance with the critiques—both of subjectivity and of sovereign power—that I outlined earlier. Thomas Keenan, in an insightful reading of Foucault’s particular predicament, articulates these concerns. His comments are helpful to set out at length at this point, as they crystallize the set of concerns that I have been addressing:
Is not Michel Foucault the most committed opponent of the discourse of rights, the operator of the theoretical guillotine that decapitates not only the king as political power principle but the individual, the human, and the humanism of human rights as well? Was not man’s face erased from the sand at the edge of the sea in the final words of Les mots et les choses? Doesn’t “right” belong precisely to the juridical vocabulary of power as sovereignty out of which Foucault tried to twist? Did not “power-knowledge” replace “right”? Doesn’t “right” presuppose as the object of its legitimation or the target of its claims exactly the conception of power as negative, repressive, interdictive, against which Foucault tried to rethink power as positive, provocative, and productive (of exactly the subject, indeed, that would claim its rights and thus secure that play of power)? Did not Foucault contend that right in the West is the King’s right and demand with distinctive epigrammatic economy that we “cut off the King’s head”?49
There is an obvious conundrum, then: how interpret this late body of work, and how (if at all) relate it to Foucault’s earlier critical investigations into discourse, power, and the subject? It is one of the purposes of this book to propose a particular answer to these questions, but before proceeding further I want to discuss some of the common readings of Foucault’s “turn” to rights in the literature, a number of which have already been touched upon. This will prove helpful not only because I intend to situate my own answer in response to them (and in some places adopt and extend their insights), but also because unearthing and critiquing some of their presuppositions (about Foucault’s work more broadly, and about the nature of critique and of politics) will allow me to clarify both the stakes and the contours of my own reading.
So, an initial response already foreshadowed above is to insist upon the normative incoherence of Foucault’s advocacy of rights. Indeed, strictly speaking, the charge of normative incoherence—or normative “confusion,”50 as Nancy Fraser puts it—affects Foucault’s philosophy and politics more broadly (not simply those later sorties conducted in the language and idiom of rights talk). For his critics in this camp, any attempt by Foucault at critique, resistance, or political engagement is necessarily disabled by the lack of normative grounds. For Habermas, Foucault’s critique of modern power is nothing more than the “arbitrary partisanship of a criticism that cannot account for its own normative foundations.”51 For Fraser, while Foucault’s methodological “bracketing” of both epistemological and normative questions concerning the operation of modern power produces empirical insights of considerable merit, nevertheless his “work ends up, in effect, inviting [normative] questions that it is structurally unequipped to answer.”52 For her,
Foucault calls in no uncertain terms for resistance to domination. But why? Why is struggle preferable to submission? Why ought domination to be resisted? Only with the introduction of normative notions of some kind could Foucault begin to answer such questions. . . . Clearly, what Foucault needs, and needs desperately, are normative criteria for distinguishing acceptable from unacceptable forms of power.53
For readers of Foucault in this vein, his critique of modern forms of power, alongside his critique of the standard humanistic resources with which one might furnish oneself in order to support such a critique (emancipation, liberation, enlightenment, the subject), leaves his political critiques and interventions without any underlying basis to recommend them. Why, so goes this reading, should we accept any of the claims of right that Foucault makes—on behalf of prisoners, sexual minorities, “the governed”? From this perspective Foucault’s appeals to rights are incoherent and, hence, normatively unappealing to his audience.
A related way in which Foucault has been interpreted, and his appeals to rights summarily disposed of, is by pointing to a gap between his political activism and his philosophical work: between, as I put it above, Foucault’s deeds and his words. Writing specifically of rights, Foucault’s philosophical contemporary, Jacques Derrida, expresses this distinction in terms of a separation between the ethico-political and the philosophical. For him, attendant upon this distinction is an inescapable “difficulty . . . in making an ethico-political gesture (supporting the resistance of the Prague philosophers, who demand respect for human rights and articulate that with a philosophy of the subject, the person, individual liberty, etc.) coincide with a philosophical labor governed by the necessity of deconstructing precisely such philosophemes.”54 How indeed does one articulate a philosophical critique of rights, sovereignty, and subjectivity with the political mobilization of these very same concepts? For many readers of Foucault’s late work, this admittedly difficult attempt to make the two coincide on the political territory of rights is bound to fail. In Decadence of the French Nietzsche, James Brusseau glosses the charge in these simple terms: “Foucault inside the university rails against subjugation while, apparently incompatibly, outside the university makes an appeal for human rights.”55 For Brent Pickett, this appeal to rights (and on occasion human rights) is a sign of Foucault’s underlying political pragmatism. Discussing the “Open Letter to Mehdi Bazargan” and Foucault’s support for the Solidarity movement, he asserts that the inconsistency between philosophy and politics revealed in the late work is ultimately resolved in favor of a pragmatist (and a progressive and reformist) conception of politics in which “theoretical consistency takes a backseat to what is more likely to effect positive change.”56
These first two interpretations of Foucault’s engagements with rights—namely, that his appeals to rights are normatively unsupported and that they express a tension57 (or worse, an irreconcilable conflict) between his philosophy and his political aspirations—fault Foucault for not fully articulating the basis of his rights politics. The third interpretive strand in the literature on Foucault and rights essentially marginalizes Foucault’s later work on rights. For these readers, Foucault’s critical genealogical accounts of discipline and related forms of modern power in the mid-1970s encapsulate his position on rights (to the exclusion of the later political deployments of rights that are my focus here). For Kirstie McClure, Foucault in this period of his work arrives at a set of fairly “dismal conclusions with regard to the potential of rights as a language of political contestation or resistance.”58 For Alan Hunt and Gary Wickham, in their Foucault and Law: Towards a Sociology of Law as Governance, Foucault’s attitude to rights amounts (much less plausibly) to a pernicious and misguided form of rights skepticism that fails to accord “any potential political value to tactics that seek to invoke rights against the incursions of disciplinary power and to advance or expand new rights.” Discussing Foucault’s call for a “new right” at the conclusion of the second of the 1976 Collège de France lectures, they go on to observe that Foucault “says nothing about what this ‘new form of right’ might be . . . [and never] return[s] to explore this idea.”59 Likewise for Nancy Fraser, who opines that rights for Foucault have “no emancipatory potential whatsoever, [and hence are] . . . reducible without remainder to . . . [their sovereign] function.”60 From this third perspective, then, Foucault’s attitude toward rights can be encapsulated simply as one of critique, where critique is understood to issue in a thoroughly negative or rejectionist stance toward its object.
Of course, the flipside of utter rejection is uncritical acceptance. Hence it should perhaps not surprise us to learn that a fourth and final strand61 in the literature interprets Foucault’s late “turn” to rights discourse as a deliberate revision of his earlier genealogical work of the 1970s in favor of a celebratory “return” to liberalism. Here Foucault’s varied invocations and deployments of rights discourse are implausibly assembled under the sign of “liberalism” and read symptomatically as a political evacuation of the genealogical project. This interpretation is often made alongside, or is underwritten by, a reading of his late work on ethics and on technologies of the self as tacitly reintroducing some manner of pre-discursive, constituent or at any rate more strongly agentive “subject” into his analyses of power-knowledge.62 I shall propose my own reading of Foucault’s ethics in Chapter 2 and in so doing address the question of the subject. For the moment, however, we may simply observe that in such readings of Foucault he somehow “becomes cozy with a kind of liberal individualism”63 and the late work as such constitutes a “capitulation in the face of the moral superiority of humanism.”64 This Foucault—a figure now barely recognizable as the iconoclastic author of Discipline and Punish and the first volume of the History of Sexuality—sues belatedly for admission to the liberal fold, reintroducing the elusive and talismanic subject and directing his chastened political interventions via the orthodox institutional channels of sovereignty and right. Characteristically, such readings are configured by the reconciliatory trope of an “embrace”: late in life a mature and repentant Foucault finally comes to “embrace ideas he had labored to undermine: liberty, individualism, ‘human rights,’ and even the thinking subject”!65
A Critical Counter-Conduct of Rights
We have just seen a series of different interpretations of this late body of work end up rendering Foucault’s deployments of rights discourse normatively incoherent; severing them from his philosophical work; marginalizing them as an inconvenient (or forgotten) addendum to his more properly critical work of the mid-1970s; or indeed casting them as an embarrassing humanist volte-face and a return to liberal individualism. It is clear that there is some manner of affirmation entailed in Foucault’s late invocation of rights, but is this affirmation a simple embrace of the ideology of liberalism—with its operative assumptions about subjectivity and sovereignty—that Foucault had been at such pains to contest for so long? Or is it something else?
The short answer is that Foucault’s politics of rights is indeed something else, and the shorthand phrase I adopt in this book to describe what he is attempting to do in his late work on rights is to generate a critical counter-conduct of rights. My use of the word “critical” signals at least two different aspects of this reading. First, and in a more general (and less technical) sense of the word, I am marking a certain distance on Foucault’s part from an orthodox liberal politics of rights (with its valorization and protection of the individual subject, its protection or enlargement of that subject’s originary freedom, its paradoxical restraint of and yet reliance upon state sovereignty, and so forth). Rather than interpreting his late work on rights as expressing a return, or a capitulation, to liberalism, I intend to read that work as indicative of a critical distance between Foucault and liberalism.66 It will be apparent already from some of my remarks, then, that the reading to which I am most opposed is that of Foucault as a belated convert to a liberal philosophy of the subject and of sovereignty. In my reading, Foucault remains faithful in his rights politics to his earlier theoretical critiques of the subject and of sovereignty. But in remaining a critic of these philosophical presuppositions of liberal political theory, he nevertheless draws tactically upon the resources, practices, and institutions of liberalism. He expresses his political interventions via the liberal idiom of rights, but perverts and “performative[ly] undermin[es]” them in the process.67 Here we must observe that Foucault’s critique of liberalism is neither a simple opposition to nor a rejection of liberalism, but rather a contrary inhabiting of it, a destabilizing “counterinvestment” which works within and against it.68 This leads me to the more specific, and revealing, sense of critique used in this book.
Second, in engaging with rights “critically” Foucault aligns himself with a more particular, personal understanding of critique—which also implicates “counter-conduct,” the term I have used to characterize Foucault’s rights politics. In the next chapter I shall examine in greater depth the variety of ways of approaching Foucault’s understanding and deployment of “critique.” For now I want to introduce just one of these, and it relates to the question of resistance to forms of government. In the late essay “The Subject and Power,” Foucault proposes an understanding of power relations in terms of the related ideas of “conduct” and “government.” He argues there that to conduct means to lead others but also reminds us that the term refers to a way of acting and behaving. For him, the exercise of power represents an attempt to modify conduct, to affect behavior and actions. Such an exercise is best conceived not as a “confrontation between two adversaries or their mutual engagement,” but rather as a calculated “‘conduct of conducts’ and a management of possibilities . . . a question of ‘government.’”69 Power is here understood as a mode of governing the conduct of others (and of oneself). In a broad sense this “definition” comprises the disciplinary relation whereby individuals are objectified together with those relations to self whereby the individual is enjoined to work upon himself in the exercise of his “autonomy.”70 This project of governing conduct is not, as he goes on to say, reducible to “political structures or to the management of states,” but rather encompasses a much more diffuse domain of possible actions whereby “the conduct of individuals or groups might be directed—the government of children, of souls, of communities, of families, of the sick.”71
But just as he had previously insisted upon the necessary entailments of power and resistance,72 so too within the historical forms of the government of conduct there emerge for him various forms of “counter-conduct” that are deployed “as a way of suspecting them, of challenging them, of limiting them, of finding their right measure, of transforming them, of seeking to escape these arts of governing or, in any case, to displace them, as an essential reluctance.”73 And it is to this internal contestation and limitation of government that Foucault comes eventually to give the name “critique,” or the critical attitude. “I would thus propose this general characterization,” he says in “What Is Critique?,” a lecture delivered around the same time, “as a rather preliminary definition of critique: the art of not being governed so much.”74 Thus to be critical, in this second, more specific sense, is to pose questions of the government of conduct (“of [its] principles, . . . objectives . . . [and] methods”)75 using the available political resources and repertoire furnished by government itself, a kind of refractory turning of government against itself from within the discursive and political field of possibilities opened up by government. The critic is necessarily situated within the field of government and tries to destabilize existing governmental arrangements from this immanent vantage point, thereby freeing them up to the possibility of their being otherwise. As we shall see in the next chapter, this critical countermobilization of existing concepts rests upon some theoretical premises (articulated in Foucault’s famous methods of archaeology and genealogy) concerning the historicity and promising contingency of knowledges, institutions, and social practices.
In what follows I shall be reading Foucault’s deployment of rights precisely as a form of critical counter-conduct. While Foucault says that we must not “demand of politics that it restore the ‘rights’ of the individual”76 (where such a demand synechdochically reduces all politics to rights), nevertheless rights do present themselves as one of a range of contingent political tools available for counter-investment and appropriation, for “strategic reversibility”77 on behalf of different political interests and as a part of diverse political struggles. This is the general characterization of Foucault’s approach to rights that this book will present. In the chapters that follow I offer a layered and detailed account of different aspects of this politics of rights—the sorts of subjects it presupposes and configures; the relations of power it reveals, contests, and transmits; the tactical and strategic uses for which it can (and cannot) profitably be deployed. Foucault’s critical politics of rights is by no means a straightforward endorsement of the power and value of rights (and definitely not as a normative defense of the individual), but rather a much more selective, strategic, instrumental, shifting, and often quite ambivalent engagement with them. My account is organized around three different but related dimensions of Foucault’s understanding and deployment of rights: the contingent ground of rights; the ambivalent nature of rights as simultaneously liberatory and subjectifying; and finally, the tactical and strategic possibilities of rights as political instruments. At the same time, as I have already noted, I want to think critically about just what such a politics of rights comprises and what it helps to foreclose. As we shall see in the coming pages, Foucault does some of this critical thinking for us, too.
My interpretation is one that insists upon a continuity between the critical philosophical concerns of Foucault’s early and midcareer work—on the archaeology and genealogy of regimes of truth and relations of power—and those of the late work on rights.78 But how, and how successfully, does he maintain his critical genealogical perspective in the late encounter with rights? How does his articulation of rights respond to the critiques he had made in the previous years? How and to what extent can rights, being embedded within relations of power, offer a truly critical purchase that breaks with the logic of the power relations within which they are situated? What limits are encountered when one attempts tactically to redeploy a politically hegemonic discourse such as rights? These are all crucial (even critical) questions engendered by Foucault’s politics of rights, and my answers to them will be given in the coming pages.
On Reading Foucault
Before proceeding to outline my argument, I want briefly to make a few methodological remarks, in order, first, to explain how I approach the task of reading Foucault, and second, to provide a caveat as to what not to expect from this book. To start with, the argument about Foucault’s politics of rights presented here makes no pretensions to the status of a unified and systematic “theory” of rights (one which, for example, might claim to explain whence rights derive their normative authority, what they are in their essence, how they are to be applied in all circumstances, how different rights might be related to or balanced against each other, and so forth). This would be an odd thing to expect of a book about a thinker who on repeated occasions abjured the role of “theoretician” and characterized his work in supposedly opposed terms (as “neither a theory nor a methodology,”79 or, for example, as an “analytics” of power as opposed to a “theory”80). Of course, much turns on what one understands in this connection by “theory.” I do take Foucault to be making theoretical observations about rights in his work, and inescapably so, but for me this does not make his position untenable or incoherent. Rather, I interpret his resistance to theory not to theory tout court, but rather, and more narrowly, to the brand of theorization to which he refers in his “‘Society Must Be Defended’” lectures. There Foucault takes aim at “totalitarian theories, or at least—what I mean is—all-encompassing and global theories.”81 Here he has psychoanalysis and a scientistic Marxism primarily in mind as theories that in their putative universalism are necessarily reductive and exclusionary in operation and effect. Foucault does reflect theoretically on rights (on their contingency, on their imbrications with power relations, on their subjectifying and regulatory dimensions), but such a theory does not—and the point is, it need not, in order to merit the label—amount to a structured, systematic account of the nature of rights.82
Second, what is presented here is not a coherent template for political action. Again, Foucault does not purport—either via his engagement with rights or more broadly in his reflections on power—to arrive at a “politics” in the perhaps more commonly accepted sense of a coherent ideological position or set of values that might dictate the assumption of certain concrete positions or the desirability of a particular future state of affairs. In the famous answer to a question posed to him in the interview titled “Polemics, Politics, and Problematizations” concerning his political affiliations (“Where do you stand?” asks his interviewer), he asserts: “I think I have in fact been situated in most of the squares on the political checkerboard, one after the other and sometimes simultaneously: as anarchist, leftist, ostentatious or disguised Marxist, nihilist, explicit or secret anti-Marxist, technocrat in the service of Gaullism, new liberal, and so on.”83 He continues in the same interview to characterize his own politics in terms precisely of a problematization of politics itself, of posing genealogical questions to politics. Properly speaking, if there is a politics in Foucault, it is methodologically prior to the establishment of any given political position—in the form of an archaeological or genealogical inquiry that asks after the founding circumscriptions of “the political” and what it excludes, represses, and disavows (but also, of course, what it enables in terms of the objects it articulates and the subjects it generates).84 For Wendy Brown, “this is the space—harbouring no particular political aims but replete with challenging exposures and destabilizations—of genealogical politics.”85 Foucault’s genealogical politics, when it comes to rights, does not dictate the assumption of a given policy or advocacy position. As a theoretical matter, Foucault views rights as contingent historical artifacts that are (more or less, depending on the strategic and institutional balance of forces) available for political contest and deployment. When it comes to his own deployment or advocacy of given rights in particular situations, we shall see that he views the attainment and enforcement of these rights not as normative ends in themselves, but rather as part of an ongoing and often diffuse struggle conducted on a number of different fronts. It is not possible, I believe, to characterize the various “aims” of Foucault’s rights struggles (the recognition of different affective relations, the establishment of rights for prisoners or “the governed,” and so forth) as belonging to a unitary normative political goal or vision of the world. Consistent with his own philosophical refusal to legislate moral or political ends, there is neither any overarching principle that can predict how rights will be used nor anything that can safeguard them from what we might judge normatively unappealing or “illegitimate” uses. Just as Foucault tends to bracket questions of legitimacy, so too am I, in trying to make sense of his late body of work on rights and in calling the interpretation I have arrived at a “Foucauldian politics of rights,” focused much more on how rights are constructed and deployed and on the political effects they produce than on what they are engaged for or on why they are so engaged. On these former levels, I shall argue, it is possible to detect commonalities among Foucault’s different rights claims, and moreover, these commonalities are themselves reflective of his long-standing yet evolving positions on discourse, power, and the subject.
Finally, the interpretive approach I shall take to this late body of work on rights—a collection of philosophical works that engage with rights as a subject of analysis, but also more directly political texts such as activist statements, interviews, and journalism—is twofold. First, I endeavor to interpret this latter body of directly political texts in the light of (or in a way that is consonant with) Foucault’s more elaborated theoretical positions. In the face of the oft-remarked discontinuities between the two bodies of work it is tempting, as many have done,86 to sever them.87 I feel that this is an unsatisfactory way to proceed. For a start, it appears to be based upon what is not only a somewhat ungenerous interpretive premise (namely, assuming Foucault to have deliberately cultivated inconsistency between the different orders of his own discourse), but also an arguably incorrect one, in that Foucault, it turns out, paid scrupulous attention to the continuity of his work on multiple occasions.88 To separate the two types of work thus elides the theoretical import of the more directly political texts. Second, and this flows from the comment just made, I shall try not only to address the theoretical significance of the political texts, but also to foreground the political importance of the philosophical texts. Put another way, without collapsing the distinctions between the two types of text or failing to attend to their different exigencies or material requirements,89 I hope to complicate the very distinction between theory and practice in Foucault’s work. For me, the political texts are not the direct practical application of a pre-announced theory; rather, they are themselves theoretical contributions, disclosing theoretical insights about rights even in the instant of their claiming or mobilizing them. Similarly, his theoretical remarks about rights made in the course of the philosophical texts are themselves speech acts that are intended to have “political” performative effects and force. Thinking and doing rights are here necessarily intertwined in the scene of Foucault’s various énoncés.
In Chapter 1 I aim to achieve three goals. In the first part of the chapter, I propose a theoretical framework for thinking about the meaning and the function of critique in Foucault’s work. Here I shall suggest that the Foucauldian style of critique is best understood primarily as a labor of destabilization. Critique as destabilization functions to expose the contingency of social and political arrangements and thus, potentially, to open them to alternative possibilities. Importantly, then, this style of critique is not simply a negative rejection of the present, but represents instead a profoundly affirmative and enabling enterprise, one that allows us to begin to think the present—and the past and future—differently. This understanding of critique provides a way of grasping Foucault’s politics of rights as a tactical re-using of rights for new and different purposes. In the second part of the chapter, I expand upon some of the material introduced in the foregoing pages concerning Foucault’s theoretical challenge to the two underlying presuppositions of liberal rights theory: subjectivity and sovereignty. Simply put, it is important to grasp what Foucault’s critique of these fundamental elements of liberal rights theory consists of in order to understand how he does, or does not, move away from these positions. The treatment of these two interrelated topics is largely expository in nature and intended as background material to the arguments I make in subsequent chapters. I conclude the chapter by introducing in more detail Foucault’s specific concept of “counter-conduct,” which serves as a kind of conceptual or theoretical lens through which to interpret his politics of rights in the following chapters.
My account of Foucault’s politics of rights in the remainder of the book is developed through a series of readings of particular rights, or of political claims or issues to which rights present a response, in order to elucidate a different dimension of his rights politics. Chapter 2 focuses on the issue of Foucault’s advocacy of human rights in a number of different contexts. This serves to introduce the first dimension of Foucault’s rights politics, namely, their being contingent and ungrounded. Here I make the argument that the rights for which he contends are contingent and ungrounded in the sense that they consciously disavow the conventional normative grounds of rights—whether that be envisioned as reason, will, intention, or even (in the case of human rights) bare humanity itself. Foucault, as I have already indicated, consistently refuses the notion of any “anthropological constant”90 that might serve as an enduring or essential ground for rights claims. However, rather than seeing this refusal as an insuperable problem for his deployment of rights in the late work (as have many normative theorists of rights and those critical of Foucault on this score), I argue that Foucault’s advocacy of the contingent, artifactual, and revisable grounds of rights claims actually constitutes a particular and conscious ethico-political choice on his part, and more to the point, one that opens up future political possibilities in and through rights rather than destabilizing or circumscribing them. (Here I read Foucault’s work alongside that of Judith Butler on rearticulating the human of human rights and Jacques Rancière on the politics of rights claiming.)91
In Chapter 3, in order to illustrate the second dimension of Foucault’s politics of rights, namely, their ambivalent quality, I present a reading of rights of or to “difference” or “identity” within political communities, with a particular focus on gay and lesbian rights activism. Here I develop the argument that Foucault theorizes rights as ambivalent (and that he attempts to navigate this ambivalence in his political practices of rights claiming). What I mean by the idea that Foucault perceives rights as ambivalent is that they have a dual function. On the one hand, they can enlarge, expand, or protect the sphere of action of subjects (as well as bring new worlds and communities into being). On the other, and simultaneously with the above function, they can constitute those very subjects and communities in particular ways and hence work to reinscribe them within existing forms of power, recuperating and domesticating the political challenges they might pose. A particular focus of this chapter will be Foucault’s engagement with issues of identity formation through rights and with what I call the “regulatory dimension of rights regimes.” (Here I read Foucault alongside some of the early work of political theorist Wendy Brown and subsequent debates in the political theory literature around rights claiming as a performative political practice.)92 One of the questions raised here concerns the way in which political actors tactically negotiate this ambivalent space of rights. This thematization of tactics then leads into the discussion in the next chapter.
Chapter 4 is organized around a discussion of different political contexts—joined by the question of life and death under conditions of biopolitical rule. In the first, concerned with the debate around the “right to die,” Foucault has recourse to rights in order to achieve particular political aims. In the second, which deals with the debate around France’s abolition of the death penalty, Foucault noticeably refuses to engage “rights talk.” I use these related political contexts in order to think through the third and final dimension of my account, namely, that Foucault’s rights claims are intended to constitute tactical deployments and interventions. However, in so characterizing them I want to reflect not only upon their tactical qualities but also on their broader strategic aspirations and effects. By “tactical,” I refer to the ways in which Foucault deploys rights not as a means to satisfy political demands within the extant parameters of a liberal system (of law and state), but rather as an instrument to achieve other political aims. By “strategic,” I mean to capture the extent to which these tactical deployments can be articulated in order to support wider political goals (of contestation or rupture of given power relations or forms of subjectivity). Here the theoretical foils to my particular reading of Foucault are provided by Marxist engagements with the question of political strategy, as well as more recent attempts in critical legal theory to develop a legal strategy of “rupture” (especially as found in the work of the legal theorist Emilios Christodoulidis).93
Finally, the Conclusion brings my account of Foucault’s rights politics to an end by, as it were, shifting into a different, more openly historicizing, diagnostic, and reflective register. Here, assisted by the recent historiographies of human rights that I discussed at the beginning of this Introduction, I try to situate Foucault’s turn to rights in the late 1970s and early 1980s in a political and historical context. I want to bring the book to an end not simply by restating my interpretation of Foucault but by beginning to pose some questions about the emergence, and contemporary afterlife and influence, of Foucault’s critical counter-conduct of rights down to the present day. Ultimately, these are questions which point beyond the limits of the present study and toward future research.
This book thus starts with Foucault but ends by gesturing beyond him. In the following chapters I propose a particular reading of Foucault, and yet the wider political stakes of that reading present themselves all too clearly. Are Foucault’s late works to be read as consonant with the liberal humanism of much contemporary rights talk or as a criticism of it? And what might such a critique amount to? Does it betoken the political or theoretical failure of the genealogical project in the face of the hegemony of rights, or a subtle continuation of that project through different means and media? Is Foucault to be assimilated into a general trend in revisionist, anti-revolutionary 1970s French intellectual circles which sees former foes now reconciled to the droits de l’homme, or indeed human rights? Here we might recall the nouveaux philosophes as testament to and symptom of this “antitotalitarian moment” in French thought.94 Or might something more than a simple return to liberalism be made of Foucault’s engagements with rights? What, ultimately, is to be made of those (re)turns to rights (of which Foucault’s is but one) that seek not to glorify or naturalize them, but rather to occupy them, to appropriate and resignify them? It is to these questions and to that indicative “something more” that I want now to turn. The first step is to revisit in detail Foucault’s twin critiques of subjectivity and of sovereignty. These are the necessary background to an understanding of his later political deployment of rights and are the subject matter of Chapter 1.
*The epigraph to the Introduction is from Michel Foucault, Wrong-Doing, Truth Telling: The Function of Avowal in Justice, trans. Stephen W. Sawyer (Chicago: University of Chicago Press, 2014), 265.
1. Clifford Geertz, “Stir Crazy,” New York Review of Books, 26 January 1978, 3.
2. See Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990); and Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford, UK: Hart, 2000), 1.
3. Quoted in Jean-Luc Nancy, The Inoperative Community, trans. Peter Connor et al. (Minneapolis: University of Minnesota Press, 1991), 1.
4. See the illuminating introductory chapter to Left Legalism/Left Critique, ed. Wendy Brown and Janet Halley (Durham, NC: Duke University Press, 2002), 1–37.
5. Costas Douzinas, “Adikia: On Communism and Rights,” in The Idea of Communism, ed. Costas Douzinas and Slavoj Žižek (London: Verso, 2010), 81.
6. Claude Lefort, “Politics and Human Rights,” in The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism, ed. John B. Thompson (Cambridge, MA: MIT Press, 1986); Étienne Balibar, “‘Rights of Man’ and ‘Rights of the Citizen’: The Modern Dialectic of Equality and Freedom,” in Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, trans. James Swenson (New York: Routledge, 1994); Jean-François Lyotard, “The Other’s Rights,” in On Human Rights, trans. Chris Miller and Robert Smith, ed. Stephen Shute and Susan L. Hurley (New York: Basic Books, 1993).
7. See, for example, Jacques Rancière, “Who Is the Subject of the Rights of Man?,” South Atlantic Quarterly 103, nos. 2–3 (2004); Judith Butler, “Beside Oneself: On the Limits of Sexual Autonomy,” in Undoing Gender (New York: Routledge, 2004); and Slavoj Žižek, “Against Human Rights,” New Left Review 35 (July–August 2005).
8. Samuel Moyn, “Substance, Scale, and Salience: The Recent Historiography of Human Rights,” Annual Review of Law and Social Science 8 (2012): 124.
9. Philip Alston, “Does the Past Matter? On the Origins of Human Rights,” Harvard Law Review 126, no. 7 (2013): 2077.
10. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2010). And see Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2008); Lynn Hunt, Inventing Human Rights: A History (New York: Norton, 2007); and Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2001).
11. See Robert Horvath, “‘The Solzhenitsyn Effect’: East European Dissidents and the Demise of the Revolutionary Privilege,” Human Rights Quarterly 29, no. 4 (2007).
12. Foucault first discusses the concept of “counter-conduct” during his 1978 Collège de France lecture course, “Security, Territory, Population,” in the historical context of revolts within and against the Christian pastorate. See Michel Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–78, trans. Graham Burchell (Basingstoke, UK: Palgrave Macmillan, 2007), 191–226. For a recent argument that the concept is central to an understanding of Foucault’s shift from an analysis of power-knowledge to ethics in the late work, see Arnold I. Davidson, “In Praise of Counter-Conduct,” History of the Human Sciences 24, no. 4 (2011). For a brief yet rich and suggestive characterization of Foucault’s late work on rights as forms of counter-conduct, see Louisa Cadman, “How (Not) to Be Governed: Foucault, Critique, and the Political,” Environment and Planning D: Society and Space 28, no. 3 (2010). See also on this score Jessica Whyte, “Confronting Governments: Human Rights?,” in New Critical Legal Thinking: Law and the Political, ed. Matthew Stone, Illan rua Wall, and Costas Douzinas (Abingdon, UK: Routledge, 2012).
13. See Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978–79, trans. Graham Burchell (Basingstoke, UK: Palgrave Macmillan, 2008), 20. I am especially grateful to Colin Koopman for pressing me to refine the arguments in the above paragraph.
14. Here and in what follows I adopt as a heuristic (with some qualifications that I shall explain as they arise) the fairly standard tripartite division of Foucault’s work into three phases: the archaeological, the genealogical and the ethical (or, the successive engagements with discourse, power, and the ethical subject). For example, see Béatrice Han, Foucault’s Critical Project: Between the Transcendental and the Historical, trans. Edward Pile (Stanford, CA: Stanford University Press, 2002), 1 (although see xiii for her own reservations on this score). This division is both a product of scholarly exegesis and of Foucault’s own occasional (but not always consistent) retrospective (self-)fashioning. See, for example, Michel Foucault, “The Subject and Power,” in Essential Works of Foucault 1954–1984, vol. 3, Power, trans. Robert Hurley et al., ed. James D. Faubion (New York: New Press, 2000), 326–27, in which distinctions are drawn between the study of sciences, the study of “dividing practices,” and the study of the ways in which a “human being turns him- or herself into a subject”; and Michel Foucault, “Preface to The History of Sexuality, Volume Two,” in Essential Works of Foucault 1954–1984, vol. 1, Ethics, Subjectivity and Truth, trans. Robert Hurley et al., ed. Paul Rabinow (Harmondsworth, UK: Allen Lane/Penguin, 1997), in which he draws a distinction between the three axes of knowledge, normativity, and relation to the self.
15. See Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (Harmondsworth, UK: Penguin, 1991); The Will to Knowledge, vol. 1 of The History of Sexuality, trans. Robert Hurley (Harmondsworth, UK: Penguin, 1979); “Society Must Be Defended”: Lectures at the Collège de France, 1975–76, trans. David Macey (London: Allen Lane, 2003); Security, Territory, Population; and The Birth of Biopolitics.
16. See Foucault, The Will to Knowledge, 82.
17. Foucault, Discipline and Punish, 167, 194.
18. Foucault, “Society Must Be Defended,” 29–30. For a set of related reflections on methodology, see Foucault, The Will to Knowledge, 92–102.
19. For one example among many, see Stephen K. White’s Habermasian lament that Foucault’s normative failure ultimately proceeds from his inability to account for the subject: “What finally hangs on Foucault’s failure to bridge the gap between the aesthetic and the juridical, while he nevertheless endorses political resistance to the normalizing processes of modern life? The most immediate implication revolves around the fact that without any way of conceptualizing juridical subjectivity, Foucault’s recommendation of collective resistance has such a blind and undifferentiated character as to be almost politically irresponsible. He provides us, ultimately, with no way of distinguishing the resistance of the women’s movement or the Polish Solidarity movement from, say, the Ku Klux Klan or Jim Jones’s People’s Temple.” See “Foucault’s Challenge to Critical Theory,” American Political Science Review 80, no. 2 (1986): 430.
20. Michel Foucault, “Vérité, pouvoir et soi,” in Dits et écrits II, 1976–1988, ed. Daniel Defert and François Ewald (Paris: Gallimard, 2001), 1598.
21. Paul Patton, “Foucault, Critique and Rights,” Critical Horizons 6, no. 1 (2005): 269.
22. As Jack Donnelly puts it, crystallizing a widely shared—almost mantrically invoked—tautology, “human rights are the rights one has simply because one is a human being.” See Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca, NY: Cornell University Press, 2003), 1.
23. Jennifer Nedelsky, “Law, Boundaries, and the Bounded Self,” Representations 30 (Spring 1990): 162, 167. Nedelsky’s discussion focuses on property (largely but not only in the context of American constitutional discourse); but for an illuminating consideration, from an explicitly Foucauldian perspective, of the right to privacy and its operative metaphors and assumptions, see Kendall Thomas, “Beyond the Privacy Principle,” Columbia Law Review 92, no. 6 (1992).
24. Foucault, The Will to Knowledge, 88–89.
25. Michel Foucault, “Truth and Power,” in Power/Knowledge: Selected Interviews and Other Writings 1972–1977, trans. Colin Gordon et al., ed. Colin Gordon (Brighton, UK: Harvester Press, 1980), 121.
26. Ibid., 119. For a reading of Foucault which insists that he himself adhered narrowly to an undifferentiated, Austinian model of modern law, see Duncan Kennedy, “The Stakes of Law, or Hale and Foucault!,” in Sexy Dressing Etc. (Cambridge, MA: Harvard University Press, 1993).
27. Foucault, “Truth and Power,” 121.
28. Foucault, The Will to Knowledge, 135.
29. Foucault, “Society Must Be Defended,” 26.
31. Foucault, “Truth and Power,” 121.
32. Ibid., 122.
33. Foucault, Discipline and Punish, 222.
34. Nancy Fraser, “Foucault’s Body-Language: A Post-Humanist Political Rhetoric?,” Salmagundi 61 (Fall 1983): 56.
36. Joan M. Reynolds, “‘Pragmatic Humanism’ in Foucault’s Later Work,” Canadian Journal of Political Science 37, no. 4 (2004): 971.
37. As to the former claim, see, for example, Jürgen Habermas, “Some Questions Concerning the Theory of Power: Foucault Again,” in The Philosophical Discourse of Modernity: Twelve Lectures, trans. Frederick G. Lawrence (Cambridge, UK: Polity, 1997), 282–86. As to the latter, see nn. 54–56 below and the relevant discussion in the text.
38. I have previously argued this, but now harbor some reservations about such a reading. See Ben Golder, “Foucault and the Unfinished Human of Rights,” Law, Culture and the Humanities 6, no. 3 (2010): 362. See also the penetrating critique of Foucault’s Geneva intervention (as just such a “new right”) offered by Whyte in her “Confronting Governments: Human Rights?” For an interesting discussion which proceeds upon the footing that “Foucault’s critique does not itself provide the basis for a new theory of right” but tries to answer Foucault’s theoretical challenge by way of a rereading of the social contract tradition, see Roger Mourad, “After Foucault: A New Form of Right,” Philosophy & Social Criticism 29, no. 4 (2003): 453.
39. Foucault, “Society Must Be Defended,” 39–40.
40. To clarify, I mean that Foucault subsequently makes references to rights both within the Collège lectures and in other sources, but he never explicitly returns to address the question of what might constitute a “new right” as such—and whether the various examples he adduces are candidates for such a “new right.”
41. Michel Foucault, “Alternatives to the Prison: Dissemination or Decline of Social Control?,” Theory, Culture & Society 26, no. 6 (2009): 19.
42. Quoted in Thomas Keenan, “The ‘Paradox’ of Knowledge and Power: Foucault on the Bias,” in Fables of Responsibility: Aberrations and Predicaments in Ethics and Politics (Stanford, CA: Stanford University Press, 1997), 168.
43. Michel Foucault, “Letter to Certain Leaders of the Left,” in Essential Works of Foucault, vol. 3, Power, 427.
44. Michel Foucault, “Open Letter to Mehdi Bazargan,” in Essential Works of Foucault, vol. 3, Power, 441.
45. Michel Foucault, “The Risks of Security,” in Essential Works of Foucault, vol. 3, Power, 380. See also Michel Foucault, “The Simplest of Pleasures,” in Foucault Live: Collected Interviews, 1961–1984, trans. Lysa Hochroth and John Johnston, ed. Sylvère Lotringer (New York: Semiotext(e), 1996).
46. Didier Eribon, Michel Foucault, trans. Betsy Wing (Cambridge, MA: Harvard University Press, 1991), 279.
47. Michel Foucault, “Confronting Governments: Human Rights,” in Essential Works of Foucault, vol. 3, Power, 475.
48. For example, see Michel Foucault, “The Social Triumph of the Sexual Will,” in Essential Works of Foucault, vol. 1, Ethics, 160, 162; Michel Foucault, “The Moral and Social Experience of the Poles Can No Longer Be Obliterated,” in Essential Works of Foucault, vol. 3, Power, 465, 471, 472.
49. Keenan, “The “Paradox” of Knowledge and Power,” 160–61.
50. Nancy Fraser, “Foucault on Modern Power: Empirical Insights and Normative Confusions,” in Unruly Practices: Power, Discourse, and Gender in Contemporary Social Theory (Minneapolis: University of Minnesota Press, 1989), 31.
51. Habermas, “Some Questions Concerning the Theory of Power,” 276 (emphasis in original).
52. Fraser, “Foucault on Modern Power,” 20–21, 27.
53. Ibid., 29, 33. For both Fraser and Habermas, Foucault’s failure to adduce proper normative grounds for his critique of modern power cannot be made good by reading him as attempting some kind of Marxian immanent critique, relying, for example, upon extant liberal norms as a presupposition of his own more radical dialectical overturning (“unmasking the humanistic self-understanding of modernity by suing for the normative content of bourgeois ideals,” as Habermas neatly puts it in “Some Questions Concerning the Theory of Power,” 282). Marx, writes Fraser, “is not . . . fully suspending the bourgeois norms of reciprocity and freedom. Perhaps Foucault could be read in similar fashion. Perhaps he is not fully suspending but presupposing the very liberal norms he criticizes?” (“Foucault on Modern Power,” 30). However, both Habermas and Fraser ultimately rule out such a reading of Foucault. Indeed, for Habermas, while Foucault’s critiques tacitly make an appeal to humanistic sentiment, the latter ultimately seeks not to resolve the pathologies of modernity but to evacuate it totally (see “Some Questions Concerning the Theory of Power,” 283). This is the philosophical basis of Habermas’s ill-founded and polemical charge that Foucault was a “Young Conservative.” See Jürgen Habermas, “Modernity Versus Postmodernity,” New German Critique 22 (Winter 1981): 13 (and for Fraser’s significantly more nuanced response, see her “Michel Foucault: A ‘Young Conservative’?,” Ethics 96, no. 1 ). I have dwelt on the Habermas (and Fraser) contra Foucault debate of the 1980s not because it substantively deserves a reprisal (to the contrary, as Thomas Biebricher ably shows, the “debate” proceeded on the basis of a serious misreading of Foucault by Habermas—see his “Habermas, Foucault and Nietzsche: A Double Misunderstanding,” Foucault Studies 3 —and on a restricted range of sources). Rather, it is because the aftereffects of this debate about normativity continue to inform much of the contemporary reception of Foucault on rights.
54. Quoted in Keenan, “The ‘Paradox’ of Knowledge and Power,” 155. For a sensitive discussion of the relation of philosophy to politics in Foucault’s later work, see David Couzens Hoy, “Foucault and Critical Theory,” in The Later Foucault, ed. Jeremy Moss (London: SAGE, 1998), 19–22.
55. James Brusseau, Decadence of the French Nietzsche (Plymouth, UK: Lexington, 2005), 192. One finds a similar figuration of politico-juridical strategy in critical legal theoretical work, whereby particular (institutional and discursive) spaces invite particular approaches (which others foreclose), leading to the embrace of “multiple consciousness as judicial method.” See Mari J. Matsuda, “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” Women’s Rights Law Reporter 11, no. 1 (1989).
56. Brent Pickett, On the Use and Abuse of Foucault for Politics (Oxford, UK: Lexington, 2005), 97n19.
57. Thomas Biebricher, “The Practices of Theorists: Habermas and Foucault as Public Intellectuals,” Philosophy & Social Criticism 37, no. 6 (2011): 725.
58. Kirstie McClure, “Taking Liberties in Foucault’s Triangle: Sovereignty, Discipline, Governmentality, and the Subject of Rights,” in Identities, Politics, and Rights, ed. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1995), 171.
59. Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto, 1994), 63, 64. “It may be too harsh to say that he never returns to this topic,” the authors go on to say. While admitting that Foucault does indeed “return to grapple with issues that touch on this range of issues,” nevertheless they conclude that these reflections are “scattered” among (then) unpublished lectures on liberal and neoliberal government which fail to come to terms with law’s role in governance (64).
60. Fraser, “Foucault’s Body-Language,” 65.
61. Here I am, of course, being somewhat reductive. There are several scholars whose work on Foucault and rights does not fall into the above-mentioned four interpretive categories (some of them already referenced, above). I shall deal with (and reference) their work more fully in coming chapters, often relying upon, extending, and disagreeing with their insights. Those authors who do concern themselves with the question I am addressing in this book, namely, a characterization of Foucault’s approach to rights in the late work, include: Thomas Biebricher, Louisa Cadman, Philippe Chevallier, Duncan Ivison, Thomas Keenan, Paul Patton, and Jessica Whyte.
62. The classic reference point for these arguments is the work of Peter Dews. His “The Return of the Subject in Late Foucault,” Radical Philosophy 51 (Spring 1989), is a continuation of criticisms of Foucault made in his Logics of Disintegration: Post-Structuralist Thought and the Claims of Critical Theory (London: Verso, 1987), esp. chaps. 5 and 6.
63. Jeffrey T. Nealon, Foucault Beyond Foucault: Power and Its Intensifications Since 1984 (Stanford, CA: Stanford University Press, 2008), 10.
64. Timothy O’Leary, Foucault and the Art of Ethics (London: Continuum, 2002), 117.
65. Eric Paras, Foucault 2.0: Beyond Power and Knowledge (New York: Other Press, 2006), 4. See also François Dosse, History of Structuralism, vol. 2, The Sign Sets, 1967–Present, trans. Deborah Glassman (Minneapolis: University of Minnesota Press, 1997), 336. See also Alain Beaulieu, “Towards a Liberal Utopia: The Connection Between Foucault’s Reporting on the Iranian Revolution and the Ethical Turn,” Philosophy & Social Criticism 36, no. 7 (2010). The question of narrative (and the ways in which the generic expectations of certain narratives structure the reception and interpretation of Foucault’s late work) is crucial here. The religious inflections of many readings of the late work (and the religious tropes and motifs which circulate within these texts)—Foucault’s Damascene moment, Foucault as recusant sinner, Foucault’s deathbed conversion, Foucault’s mea culpa, Foucault’s putting away childish illiberal things—are rather difficult to miss (for example, see James Schmidt and Thomas E. Wartenburg, “Foucault’s Enlightenment: Critique, Revolution, and the Fashioning of the Self,” in Critique and Power: Recasting the Foucault/Habermas Debate, ed. Michael Kelly [Cambridge, MA: MIT Press, 1994], 287; and Ian Hacking, “Self Improvement,” in Foucault: A Critical Reader, ed. David Couzens Hoy [Oxford, UK: Blackwell, 1986], 238). I am grateful to Bonnie Honig for first raising this issue with me. But alongside the religious narratives is a competing romantic narrative—in which Foucault first spurns, then flirts with, and then finally embraces, and so forth, a liberal politics (in addition to the above sources, see Michael C. Behrent, “Liberalism Without Humanism: Michel Foucault and the Free-Market Creed, 1976–1979,” Modern Intellectual History 6, no. 3 : 541, 544, 545, 547). The point is that both of these narrations of Foucault’s late work—as religious recanting and return to orthodoxy or as romantic consummation—are often underwritten by a similar teleologic in which a liberal thinking of rights emerges as the necessary but delayed conclusion to Foucault’s (mature, evolved, fully worked-through) thought.
66. Cf. the recent work of Paul Patton, which effects a careful and limited rapprochement between aspects of Foucault’s thought and a certain (late, more historically minded) Rawls. See Paul Patton, “Foucault and Normative Political Philosophy,” in Foucault and Philosophy, ed. Timothy O’Leary and Christopher Falzon (Oxford, UK: Wiley-Blackwell, 2010); and Patton, “Historical Normativity and the Basis of Rights,” in Re-Reading Foucault: On Law, Power and Rights, ed. Ben Golder (Abingdon, UK: Routledge, 2012). See also Carlos A. Ball, “Sexual Ethics and Postmodernism in Gay Rights Philosophy,” North Carolina Law Review 80, no. 2 (2002).
67. Biebricher, “The Practices of Theorists,” 725. See also Thomas Biebricher, “Foucault and the Politics of Rights,” Journal of Political Power 5, no. 2 (2012): 310–11 (who is critical of the interpretation of Foucault’s rights politics as “liberal,” but is himself also critical of certain aspects and effects of Foucault’s rights politics); and David F. Gruber, “Foucault’s Critique of the Liberal Individual,” Journal of Philosophy 86, no. 11 (1989) (who argues that Foucault maintains a critique of liberalism which also, it seems for him, rules out any appeal to rights). A final note on liberalism in this context. The focus of the present study is on Foucault and not on liberalism or on liberal political theory, but even so it may be objected by those better versed in the latter that I do not provide a fuller and fairer account of its more nuanced and diverse practitioners. This is true, and doubtless some of their accounts could be brought into more sympathetic alignment with Foucault in places (as, for example, does Patton, discussed in n. 66 above). Nevertheless, that is not my project here. Rather, I am trying to reconstruct a specifically Foucauldian politics of rights, and in doing so I want to suggest that it differs in important respects from the liberal conception of rights, which at its core is committed to maintaining some version of the following: that rights are an entitlement of the individual subject (she herself understood as being pre-political); that entitlement flows from certain fundamental capacities or properties of the subject; and that rights provide a mechanism to restrain (and simultaneously legitimize) the use of power against the individual subject (most classically in the sense of state coercion).
68. Foucault, The Will to Knowledge, 97. My reading of Foucault contra liberalism shares much in common with Samuel Chambers’s reading of Rancière in his The Lessons of Rancière (New York: Oxford University Press, 2013), which, relevantly, “seeks to disentangle democratic [Rancièrean] politics from liberalism . . . [without necessarily] impugn[ing] all of liberalism” (10–11; emphasis in original).
69. Foucault, “The Subject and Power,” 341.
70. Ibid., 326–27.
71. Ibid., 341.
72. For example, Foucault, The Will to Knowledge, 93.
73. Michel Foucault, “What Is Critique?,” trans. Kevin Paul Geiman, in What Is Enlightenment?: Eighteenth-Century Answers and Twentieth-Century Questions, ed. James Schmidt (Berkeley: University of California Press, 1996), 384.
76. Michel Foucault, “Preface to Anti-Oedipus,” in Essential Works of Foucault, Vol. 3: Power, 109.
77. Cited in Colin Gordon, “Governmental Rationality: An Introduction,” in The Foucault Effect: Studies in Governmentality, ed. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991), 5. And see also Foucault, The Will to Knowledge, 100–102.
78. See the discussion of periodization and the sources cited in n. 14 above. For a more recent and illuminating discussion of Foucault’s transition from archaeology to genealogy, see chapter 1 of Colin Koopman, Genealogy as Critique: Foucault and the Problems of Modernity (Bloomington: Indiana University Press, 2013).
79. Foucault, “The Subject and Power,” 326.
80. See Foucault, The Will to Knowledge, 82; but see also his comment that “I am not developing a theory of power” (Michel Foucault, “Critical Theory/Intellectual History,” in Politics, Philosophy, Culture: Interviews and Other Writings, 1977–1984, trans. Alan Sheridan et al., ed. Lawrence D. Kritzman [London: Routledge, 1988], 39).
81. Foucault, “Society Must Be Defended,” 6.
82. For a compelling contrary account, and one that engages the notion of “theory” on a theoretical level itself, see Peter Fitzpatrick, “Foucault’s Other Law,” in Re-Reading Foucault.
83. Michel Foucault, “Polemics, Politics and Problematizations: An Interview with Michel Foucault,” in Essential Works of Foucault, vol. 1, Ethics, 113.
84. Judith Butler, “Contingent Foundations: Feminism and the Question of ‘Post-modernism,’” in Feminists Theorize the Political, ed. Judith Butler and Joan W. Scott (New York: Routledge, 1992), 4.
85. Wendy Brown, “Genealogical Politics,” in The Later Foucault, 34.
86. “We suggest that there is no embarrassment in holding that some of Foucault’s own political stances, such as his naïve ‘abolitionist’ views about criminal justice or his ill-advised enthusiasm for the regime of the mullahs in Iran, are frankly silly and barely worth debating. . . . Any serious assessment of Foucault depends not on the causes he espouses but on what those who read him can do with his enormously fertile leads and suggestions” (Hunt and Wickham, Foucault and Law, 36). As this quotation bears out, the temptation to treat Foucault’s political interventions in this way has been felt most strongly when it comes to his engagement with the Iranian revolution and his views on criminal justice (see, for example, his views on the desexualization of rape). For a full-length critique of the former, see Janet Afary and Kevin B. Anderson, Foucault and the Iranian Revolution: Gender and the Seductions of Islamism (Chicago: University of Chicago Press, 2005). For a much more nuanced engagement with the latter, see Ann J. Cahill, “Foucault, Rape, and the Construction of the Feminine Body,” Hypatia 15, no. 1 (2000).
87. Biebricher, “The Practices of Theorists,” makes a strong argument—concerning both Foucault and Habermas—for integrating a reading of theoretical and political texts, but the most recent and sustained argument for reading Foucault’s theorizations (of power, in particular) in relation to his militant engagements of the time is provided by Hoffman, Foucault and Power.
88. Foucault was, I take it—and in spite of many hyperbolic declamations to the contrary—studiously concerned with consistency and with the fashioning, and retrospective refashioning, of an intellectual oeuvre. This is no doubt itself an unfashionable observation to make of the author of “What Is an Author?” (see Michel Foucault, “What Is an Author?,” trans. Joseph V. Harari, in Modern Criticism and Theory: A Reader, ed. David Lodge [London: Longman, 1988]), but I believe the many attempts on Foucault’s part to characterize his work (as all along being about power or the subject and so forth) bear this out. See n. 14 above for some of these sources.
89. See the insightful discussion by Paul Patton of Foucault’s Collège lectures as a particular form of philosophical work, the (changing) conditions under which the lectures were produced, and the ramifications that this had for Foucault’s thinking on power in the mid- to late 1970s (Paul Patton, “From Resistance to Government: Foucault’s Lectures 1976–1979,” in A Companion to Foucault, ed. Christopher Falzon, Timothy O’Leary, and Jana Sawicki [Oxford, UK: Blackwell, 2013]).
90. Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon, UK: Routledge, 2007), 53n4.
91. See Rancière, “Who Is the Subject of the Rights of Man?”; and Butler, “Beside Oneself.”
92. See, for example, Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995); Brown, “Suffering Rights as Paradoxes,” Constellations 7, no. 2 (2000); Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (New York: Oxford University Press, 2012); and Samuel Chambers, “Giving Up (on) Rights?: The Future of Rights and the Project of Radical Democracy,” American Journal of Political Science 48, no. 2 (2004).
93. Emilios Christodoulidis, “Strategies of Rupture,” Law & Critique 20, no. 1 (2009).
94. For an orientation to this intellectual trend and its historical context, see Michael Scott Christofferson, French Intellectuals Against the Left: The Antitotalitarian Moment of the 1970s (New York: Berghahn Books, 2004). For a situation of Foucault within this context, and especially in relation to the nouveaux philosophes, see chapter 3 of Paras, Foucault 2.0. I briefly return to Foucault’s relationship to the nouveaux philosophes and his situation within this “antitotalitarian moment” in Chapter 2 (n. 16).