Foucault’s Critical (Yet Ambivalent) Affirmation: Three Figures of Rights
| Published date | 01 September 2011 |
| Author | Ben Golder |
| DOI | 10.1177/0964663911404857 |
| Date | 01 September 2011 |
| Subject Matter | Articles |
Article
Foucault’s Critical
(Yet Ambivalent)
Affirmation:
Three Figures of Rights
Ben Golder
University of New South Wales, Sydney, Australia
Abstract
Michel Foucault is not often read as a theorist of human rights. On the one hand, there is
a tendency to read his works of the mid-1970s – his celebrated poststructuralist geneal-
ogies of subjectivity, of discipline, of bio-politics, and so forth – as proposing a critique of
rights discourse which definitively rules out any political appeal to rights. On the other
hand, somewhat curiously it has to be said, there is a tendency to read his works of the
late 1970s and early 1980s – his perhaps less celebrated concern with ethics and with
technologies of the self – as tacitly re-introducing a liberal humanist notion of subjectivity
and, with that, an embrace of orthodox rights discourse. Beginning from this curious
disjunction between the rejectionist Foucault and the liberal Foucault, this article attempts
to articulate a Foucauldian politics of human rights along the lines of a critical affirmation.
Neither a full embrace nor a total rejection of human rights, the Foucauldian politics
of human rights developed here elaborates (and attempts to connect) several disparate
figures in his thought: rights as ungrounded and illimitable, rights as the strategic
instrument-effect of political struggle, and rights as a performative mechanism of community.
Keywords
Foucault, critique, human rights, politics of rights, strategy
Introduction
Michel Foucault is often, perhaps more often than not, read as being a trenchant critic of
rights discourse.
1
Paul Patton aptly captures this orthodox interpretation of the celebrated
Corresponding author:
Ben Golder, Faculty of Law, UNSW, Sydney, NSW 2052, Australia
Email: b.golder@unsw.edu.au
Social & Legal Studies
20(3) 283–312
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DOI: 10.1177/0964663911404857
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French thinker when he writes that: ‘Foucault is widely supposed to have a problem with
regard to the language of rights’ (2004: 43). And there is undoubtedly much textual
warrant for this widely supposed ‘problem’ both within Foucault’s published work and
throughout his posthumously published lecture courses at the Colle`ge de France. Indeed,
as is well observed elsewhere (Pickett, 2000, 2005: 77–99), Foucault’s problem extends
beyond the language and the rhetoric of rights claims to encompass the metaphysical pre-
suppositions of natural (and human) rights discourse as well as the very utility of rights
as political instruments.
On the one hand, of course, Foucault consistently refuses the notion of an anthropo-
logical constant (Chomsky and Foucault, 1997: 109–110, 132). That is, he is suspicious
in all his work of the idea of an atemporal and universal human essence that could serve
as the basis for rights claims. Indeed, Foucault offers more than a refusal or a suspicion of
the idea of human essence, insisting moreover upon a Nietzschean genealogy (Butler,
1990: viii–ix) which asks after the constitutive exclusions, erasures and remainders of
‘the human’ and how it came to ‘be’. On the other hand, as is perhaps equally well
known, Foucault’s quarrel with rights discourse was not simply with the alleged ‘ground’
of, or basis for, rights but also with their complicit, constitutive relations to modern
technologies of power. Thus, in a famous (and broadly representative) passage of
Discipline and Punish, he observes:
Historically, the process by which the bourgeoisie became in the course of the eighteenth
century the politically dominant class was masked by the establishment of an explicit, coded
and formally egalitarian juridical framework, made possible by the organization of a parlia-
mentary, representative re´gime. But the development and generalization of disciplinary
mechanisms constituted the other, dark side of these processes. The general juridical form
that guaranteed a system of rights that were egalitarian in principle was supported by these
tiny, everyday, physical mechanisms, by all those systems of micro-power that are essen-
tially non-egalitarian and asymmetrical that we call the disciplines. And although, in a for-
mal way, the representative re´gime makes it possible, directly or indirectly, with or without
relays, for the will of all to form the fundamental authority of sovereignty, the disciplines
provide, at the base, a guarantee of the submission of forces and bodies. The real, corporal
disciplinesconstitutedthe foundationof the formal, juridicalliberties ... The‘Enlightenment’,
which discovered the liberties, also invented the disciplines. (1991: 222)
2
For Foucault, the failure of the juridico-discursive model of power (in which a sanction-
ing power is figured either as limiting or protecting a primal, ontologically pre-existent
zone of subjective liberty) was not simply a failure of a certain dispositif to correspond
with the actuality of political practice (Foucault, 2003b: 13–14). Rather, this routine
(epistemological) failure of orthodox normative political and legal theory to comprehend
the productive circuits of power was itself (politically) productive – it functioned to dis-
avow and to foreclose inquiry into the disciplinary production of subjects and of objects
of regulation. For Foucault, then, formal regimes of rights thus simultaneously both
‘mask’ and enable disciplinary projects. They do not stand apart from societal relations
of power but are fundamentally implicated in them – facilitating, transmitting and nat-
uralizing relations of domination even as, indeed especially as, they claim to emancipate
284 Social & Legal Studies 20(3)
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