Daniele Lorenzini

The Use of Rights

Review of Ben Golder, Foucault and the Politics of Rights, Stanford University Press, Stanford 2015 (246 p.)

How are we to interpret Michel Foucault’s turn to rights in some of his texts and interviews from the mid-/late 1970s onward[1]? Was it just a momentary appropriation (dictated by a contingent political agenda) of a discourse that he had been criticizing for years, and that he was still willing to reject in its very philosophical foundations? Or did it bear witness to a deeper shift, implying a radical reorganization of his views on the relationships between the subject and power, and a definitive departure from his analyses on discipline, normalization, and biopolitics? Moreover, we could wonder whether this turn or shift was connected to another, namely to what has been widely presented as a fascination with (neo-)liberalism, to the point that Foucault is supposed to have offered a sort of apology of it in The Birth of Biopolitics[2].

In his timely book, Foucault and the Politics of Rights, Ben Golder offers a convincing answer to these questions, which are no less than crucial for contemporary Foucault studies. Through a meticulous, quasi-philological reading of Foucault’s texts (one of the most impressive and valuable features of Golder’s book), he compellingly shows that Foucault’s later engagement with rights does not constitute a rejection of or a break vis-à-vis his earlier analyses on power relations, nor a symptom of his hypothetical fascination with (neo-)liberalism (pp. 20-21). However, at the same time, he rightly argues that we should not downplay the philosophical and political relevance of Foucault’s claims about rights (p. 6). Indeed, according to Golder, Foucault’s turn to rights is not the result of a purely contingent and momentary appropriation, but does constitute a fruitful contribution to an original way of conceiving of a “politics of rights” that Foucault did not fully elaborate – at least not in the form of a “unified and systematic ‘theory’ of rights” (p. 23) –, but that his work can help us to develop today. More precisely, Golder offers a careful interpretation of Foucault’s account of rights in terms of what he calls a “critical politics of rights” (p. 3), or a “critical counter-conduct of rights” (p. 5), which, he argues, still proves to be extremely valuable in the present moment, since it allows us to question the widely-accepted idea that the claim to (human) rights is the only effective way to limit the exercise of power over our lives. Thus, Golder’s book is also a fundamental contribution to the fields of political and critical legal theory, and to human rights scholarship.

Golder’s aim, however, is not to maintain (as Foucault is universally supposed to have himself done) that the function of law in modern societies is just repressive, that law is nothing more than a tool in the hands of the state through which the latter is able to efficiently control and subjugate its citizens, avoiding the use of overt violence. On the contrary, Golder fruitfully highlights the ambivalent function of law and rights: on the one hand, rights can actually “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, they also “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” (p. 27). Besides, Golder’s claim that it was Foucault himself who conceived of rights as ambivalent is convincing and coherent with Foucault’s stance on gay and lesbian rights activism and his problematization of identity politics, as well as with his methodological insistence on the reversibility and normative neutrality of power relations – what he called his “hyper- and pessimistic activism” (pp. 103-109). Power relations are everywhere, but they are not bad (nor good) in themselves: they are a fact of human life and societies[3]. They are always dangerous, though, and we should be vigilant and prepared to enact strategies of resistance as soon as a specific power relation becomes unacceptable. This is why Foucault was interested in a non-normative, experimental critical attitude, constantly putting the present limits of the acceptable to the test and trying, as a consequence, to give rise to new forms of (individual and shared) conduct[4]. It is in Chapter 3 that Golder focuses on this crucial dimension of Foucault’s politics of rights, that is, the ambivalence of (human) rights, stressing their capacity to produce both new spaces of freedom and new forms of subjection – the fact that they are both emancipatory and regulatory (pp. 92-103).

Reading Foucault’s account of rights along these lines means highlighting the fact that Foucault did not conceive of the juridical apparatus (only) as an instrument of and a vehicle for domination[5], but (also) as a tool that can be used in politically crucial ways in order to oppose the exercise of power – which always tends to be excessive[6]. However, as Golder’s expression “critical counter-conduct of rights” aptly suggests, the point is to argue not only that (human) rights can be used as subversive tools against domination, but also that – even when they are effective in modifying power relations toward a greater space of freedom for the subjects –, they do so “by fabricating and then regulating the very subjects who claim to rely upon them” (p. 103). In Chapter 1, relying on Foucault’s analyses, Golder thoroughly defines critique as an immanent and socially situated practice of defamiliarization and destabilization whose aim is to expose the contingency of social and political arrangements, thus opening at the heart of the present new possibilities of “being otherwise” (pp. 33-37); and counter-conduct as a strategy of contestation, limitation, or reversal of governmental procedures which nevertheless remains internal to the field of governmentality itself and is always at risk of being reterritorialized (pp. 51-59).

Now, a “critical politics of rights” is not a politics of rights whose objective is to criticize the excesses in the exercise of power, thus protecting and enlarging the sphere of action of subjects, but a politics of rights which is self-critical, that is, which takes seriously the idea that power relations and freedom, subjection (assujettissement) and subjectivation (subjectivation) are inseparable, that they cannot exist in isolation but are essentially entangled and ceaselessly engendering one another. What Golder calls a “critical counter-conduct of rights” is thus a historically situated attitude based on the awareness that rights can be at the same time instruments of liberation and vehicles for new forms of subjection, limiting the creative power of individuals and hindering their attempt to go beyond the borders traced by the rights they themselves claim. It is the name of a limit and experimental attitude, immanent to the field of governmentality, whose objective is to take advantage of the “strategic reversibility” of power relations in order to lead specific and contingent political struggles (p. 22). It is in Chapter 4 that Golder highlights this fundamental dimension of Foucault’s politics of rights, namely the fact that his rights claims always constituted tactical deployments and strategic interventions aimed not at satisfying political demands within the extant parameters of a liberal system, but at pursuing different, partial, and selective political objectives (pp. 115-128). For instance, while Foucault made use of the discourse of rights within the framework of the debate concerning the right to suicide, he systematically refused to do so in his fight for the abolition of death penalty in France. This clearly shows that rights were not per se the aim of Foucault’s struggles: they were rather instruments that he deliberately chose to use or not depending on circumstances and tactical/strategic considerations (pp. 128-146).

One of the most relevant contributions of Golder’s book consists precisely in his critique of the oversimplified opposition between the idea of rights as pure instruments of domination and the blind faith in a positive (liberal) use of rights as a principle of limitation of government. He rather suggests that we should conceive of rights as essential elements of a series of practices of freedom going beyond at the same time the dominant liberal framework and the traditional paradigm of revolution. Indeed, practicing rights means questioning a metaphysical, foundationalist, anthropologically-grounded approach to a politics of rights (and human rights in particular), transforming it into an “openly political, and tactically oriented [intervention] into existing formations of law, state, and power” (p. 3). In Chapter 2, Golder focuses on the contingent and ungrounded character of (human) rights, which he considers to be the first crucial dimension of Foucault’s politics of rights. As a matter of fact, those rights disavow all the conventional grounds of rights (that is, reason, will, intention, or even bare humanity itself), and according to Golder – who reads here Foucault’s claims alongside Judith Butler and Jacques Rancière’s –, rather than a weakness in Foucault’s conception of rights, this feature constitutes a deliberate ethico-political choice on his part and a way to open up future political possibilities (pp. 61-88).

Thus, rights emerge in Foucault’s later work as potentially useful instruments which are “immanent and not exterior to the field of political action”, and which can function “to contest and remake relations of power – but without ever losing sight of their (often paradoxical) limitations” (p. 6). Conceiving of rights in this way entails, as Golder puts it, avoiding both the acceptance of the individualist liberal rights discourse and the endorsement of the contemporary human rights talk (p. 5), since Foucault’s politics of rights is rooted in his sharp critique of the traditional conception of sovereign power as well as of a foundationalist understanding of subjectivity. These two key components of the mainstream (liberal) account of rights are radically questioned by Foucault’s insistence on the productive – and not only repressive – nature of power, and on the fact that subjects do not pre-exist the complex networks of power/knowledge within which they are created[7], so that it turns out to be impossible to claim that rights reflect and protect the originary freedom of a given, universal, and unhistorical subject (pp. 8-12, 37-51).

This is a crucial point, one that is often misunderstood, especially by those who believe in Foucault’s fascination with (neo-)liberalism. But The Birth of Biopolitics is first and foremost the site of a radical redefinition of the concept of freedom itself. Indeed, according to Foucault, (neo-)liberalism governs people through their freedom, because (neo-)liberal governmentality is not satisfied with guaranteeing this or that specific form of freedom: it rather produces, organizes, and consumes freedoms. This is why, Foucault argues, we should avoid concentrating on an “abstract subject”, a “philosophico-juridical” one defined by a set of “individual rights that no power can limit unless agreed by contract”[8]; at the same time, freedom should not be conceived of as “a universal which is particularized in time and geography”, as “a white surface with more or less numerous black spaces here and there and from time to time”. Freedom is rather “an actual relation between governors and governed”[9], or, as Golder aptly puts it, “a ceaseless work without any guarantee” (p. 112).

Therefore, freedom is not (only) something that can be legitimately opposed to power, it is not (only) something that power has to respect and to preserve in order to be justified in its exercise, but (also and) more fundamentally something which – as the subject herself – is produced by power, or better, by (neo-)liberal technologies of government, and which constitutes their very condition of existence and functioning. Hence, as Golder convincingly points out, we should carefully avoid inscribing Foucault’s rights claims within a traditional liberal framework, since rights are “a political mechanism that both produce and threaten the space of freedom” of the individual (p. 112). At the same time, in the Conclusion of his excellent book, Golder tries to situate Foucault’s turn to rights in a broader political and historical context, in order to avoid the risk of considering it in isolation and to show that Foucault, far from being a denier of the emancipatory potential of rights, was in fact “one of the first to develop a critical, subversive, appropriatory praxis of rights” that fruitfully explores the ways in which they can be effectively put to different, and even contrary, uses (p. 159). This is a most timely call to put, once again, Foucault’s thought at work in our present.

[1] See especially the texts listed by Ben Golder at pp. 15-16: Foucault’s lecture at the University of Montreal on Alternatives to the Prison (1976), his Letter to Certain Leaders of the Left (1977) and his Open Letter to Mehdi Bazargan (1979), the statement he made at the United Nations conference on piracy in Geneva, Confronting Governments: Human Rights (1981), and the interview The Moral and Social Experience of the Poles Can No Longer Be Obliterated (1982).

[2] See e.g. M.C. Behrent, Liberalism without Humanism. Michel Foucault and the Free-Market Creed, 1976-1979, in «Modern Intellectual History», vol. 6 (2009), no. 3, pp. 539-568; G. de Lagasnerie, La dernière leçon de Michel Foucault. Sur le néolibéralisme, la théorie et la politique, Fayard, Paris 2012; D. Zamora, Can We Criticize Foucault?, in «Jacobin», 10 December 2014 (available at: https://www.jacobinmag.com/2014/12/foucault-interview/ [accessed 26 August 2017]); M. Dean and K. Villadsen, State Phobia and Civil Society. The Political Legacy of Michel Foucault, Stanford University Press, Stanford 2016.

[3] M. Foucault, The Ethics of the Concern of the Self as a Practice of Freedom, in Ethics: Subjectivity and Truth. Essential Works of Foucault, 1954-1984, edited by P. Rabinow, The New Press, New York 1997, pp. 298-299.

[4] M. Foucault, What Is Critique ?, in The Politics of Truth, edited by Sylvère Lotringer, Semiotext(e), Los Angeles 2007, pp. 41-81.

[5] M. Foucault, “Society Must Be Defended”. Lectures at the Collège de France, 1975-1976, edited by M. Bertani and A. Fontana, Picador, New York 2003, p. 27.

[6] M. Foucault, Useless to Revolt? (1979), in Power. Essential Works of Foucault, 1954-1984, edited by J.D. Faubion, The New Press, New York 2000, pp. 452-453.

[7] See L. Cremonesi, O. Irrera, D. Lorenzini and M. Tazzioli (eds.), Foucault and the Making of Subjects, Rowman & Littlefield, London 2016.

[8] M. Foucault, Psychiatric Power. Lectures at the Collège de France, 1973-1974, edited by J. Lagrange, Palgrave Macmillan, Basingstoke 2006, p. 57.

[9] M. Foucault, The Birth of Biopolitics. Lectures at the Collège de France, 1978-1979, edited by M. Senellart, Palgrave Macmillan, Basingstoke 2008, p. 63.