Skip to main content

Advertisement

SpringerLink
Log in

Foucault, Rights and Freedom

  • Published:
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique Aims and scope Submit manuscript

Abstract

As dominant liberal conceptions of the relationship between rights and freedom maintain, freedom is a property of the individual human subject and rights are a mechanism for protecting that freedom—whether it be the freedom to speak, to associate, to practise a certain religion or cultural way of life, and so forth. Rights according to these kinds of accounts are protective of a certain zone of permitted or valorised conduct and they function either as, for example, a ‘side-constraint’ on the actions of others or as a ‘trump’ over governmental or community goals. In such accounts, of course, the emphasis is placed upon the forms of power against which rights protect the individual, whether that be the trespasses of others or the overweening attentions of the state. Such accounts famously do not themselves take much account of the multiple ways in which rights also function as forms of power, often delimiting the courses of action that a putative rights-holder can take and affecting the manner of its exercise, indeed often in the very name of freedom itself. Of course, there is a sizeable critical literature which does address itself to these kinds of question, most notably from the radical traditions of Marxism and critical legal theory, which see rights in terms of the relations of production, consumption and exploitation that they establish between legal subjects. For various reasons, Foucault has not figured as prominently in critical discussions of rights. Here I do not propose to enter into debates surrounding Foucault’s engagement with, or failure to engage with, law as an object of study, nor with the emergent literature on Foucault’s deployments of rights, indeed even of human rights. Rather, what I want to do in this paper is to articulate and defend the view that through a reading of Foucault’s work, both on rights and on power relations more broadly, we can discern an understanding of the political ambivalence of rights. For Foucault (and for some of the post-Foucaultian scholars whose work I shall address, below), rights are both political tools for the contestation and alteration of mechanisms of power and simultaneously mechanisms of inscription, both disciplinary and governmental, which work to conduct those who rely upon them. Far from being an unproblematic tool for the protection of the subject’s freedom, rights emerge in this account as conflicted and ambivalent mechanisms. In the first part of this paper I develop a Foucaultian account of rights along these lines and then hope to illustrate it by reference to several examples, from the constitution of gender and cultural identity via rights to the figure of the refugee, whilst in the final part of the paper I make a return to the idea of freedom in Foucault’s work and link the view of rights developed herein to a certain conception of freedom in his work.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. I am in general agreement with Ivison’s presentation of the dual character of rights mechanisms. Here I attempt, through Foucault, to offer a closer engagement with what Ivison himself calls ‘the distinctive relation of power’ disclosed by rights, in part by resort to some examples of how rights (to identity, to asylum, and so forth) function.

  2. For a way of proposing the question ‘Who is the Subject of the Rights of Man?’, which does not assume such an ontology of the subject, but rather sees the subject-position of rights as a directly political (hence contingent, revisable) space, see [58]. It remains to elucidate the possible relations and affinities between Rancière’s post-Marxist engagement with rights and Foucault’s.

  3. This is a more ‘classical’ or at any rate a more orthodox Foucaultian question to ask in the sense that Foucault famously took himself to be problematising the ‘how’ of power. A Foucaultian power analytics hence addresses itself to the question of power neither from the ontological perspective of ‘what is power?’ nor from the normative perspective of ‘how can power be justified?’ but rather from the perspective of its functioning: ‘What I have been trying to look at since 1970–1971 is the “how” of power. Studying the “how of power,” or in other words trying to understand its mechanisms’ [26, p. 24].

  4. The above presentation of the disciplinary function of rights in the context of the refugee (but also, of the rights-claimaint in the other situations I have been discussing) is not intended to present the figure of the refugee as solely determined by the ascriptions of bureaucratic identity and hence utterly lacking in agency. The disciplinary production of subjectivity is not a unilateral exercise but a more complicated, negotiated, multilateral, temporal and hence contingent one. Whether one reads her work as a correction to or as a critique of Foucault, or, as I do, as an extension of themes present and compatible yet untheorized in his work, Judith Butler’s work on the iterable (re)production of identity through the repetition and deformation of norms is one fruitful way of understanding the possibility of agency or resistance whilst still accepting the Foucaultian assumption that subjects are made, not given. For a direct discussion of Foucault, iterability and temporality, see [7, p. 245]. Butler’s fullest presentation of this theme as it relates to gender identity is to be found in Gender Trouble [6].

  5. The range of critical questions that are productively opened up by such an analytic move—that is, one which begins to see refugee law and rights discourse as formative of identity – include an inquiry into: the types of subject produced by this ‘classificatory space of “refugee”’ [43, p. 386]; the gendering and racialising effects of this production on the subject [on this, see for example: 43]; and, the circulation of these forms of subjectivity within and beyond political communities. How, for example, is the refugee subject constituted as a ‘passive, dependent, vulnerable victim in need of protection’ [51, p. 348]? What are the gendered and racialised matrices which subtend such a construction and how are they circulated and deployed? What are the political ramifications and ‘specific effects of the contemporary dehistoricizing constitution of the refugee as a singular category of humanity within the international order of things’? [43, p. 378]. For a related argument about the depoliticising effects of the constitution of the subjects of human rights as either suffering victims in need of Occidental saviour see [47], and for an argument that human rights produces apolitical and anti-democratic subjects, see [5].

  6. ‘In Foucault, it seems, there is a price for telling the truth about oneself, precisely because what constitutes the truth will be framed by norms and by specific modes of rationality,’ argues Judith Butler in [8, p. 121]. That individuals are governed ‘by their own verity’ [22, p. 312] in this way may thus explain Foucault’s discussions of possible forms of resistance in terms of a critical desubjectification [18, pp. 103–104 or a refusal of extant forms of subjectivity 25], p. 336]—where both forms of resistance represent an attempt to rupture the relation posited between subjectivity and the truth of what one is.

  7. Of course, Foucault himself made several statements along these lines, contrasting sovereignty and biopolitics, for example. For discussion, see [32].

  8. Let me take the opportunity to clarify here that whilst the above presentation of, for example, the Foucaultian concepts of discipline and governmentality has been done, heuristically, in a sequential manner, the intention is neither to read either of these as strict, abstract concepts, nor as unrelated phenomena, nor indeed (as some have done), as temporally organised (sovereignty replaced by discipline replaced by governmentality, and so forth). What are here called ‘discipline’ and ‘govermentality’ necessarily find themselves in complex amalgams in actual, political practice—I have simply intended to show how political rationalities premised upon the subjection-creation of the individual (‘discipline’) and political rationalities premised upon the incentivisation of the ‘freedom’ of that individual (‘governmentality’) work through rights mechanisms. These are of course not mutually exclusive rationalities.

  9. Other examples of engagements with the theme of rights as governmentality include Nicolas Guilhot’s discussion of how neo-conservative interpretations of human rights maintain that ‘human rights are no longer a normative, formal or external constraint, but the internal premise of governmental practices’ which promote regime change and democratic governance [33 p. 510]. For a discussion of human rights as a particular kind of governmentality that, inter alia, produces a particular kind of subject, see [49]. For a discussion of EU human rights discourses as a form of governmentality, see [61, 62]. Finally, see Raco and Imrie’s discussion of how ‘the recent shift towards a “rights and responsibilities” agenda in urban policy is part of broader transformations in the rationalities and techniques of government’ [57, p. 2187]. This last discussion shares similar themes with [40].

References

  1. Anker, Deborah E. 2002. Refugee law, gender, and the human rights paradigm. Harvard Human Rights Journal 15: 133–154.

    Google Scholar 

  2. Boyd, Christopher. 2009. Can a Marxist believe in human rights? Critique 37: 579–600.

    Article  Google Scholar 

  3. Brown, Wendy. 1995. States of injury: Power and freedom in late modernity. Princeton: Princeton University Press.

    Google Scholar 

  4. Brown, Wendy. 2000. Suffering rights as paradoxes. Constellations 7: 230–241.

    Article  Google Scholar 

  5. Brown, Wendy. 2004. “The most we can hope for…”: Human rights and the politics of fatalism. South Atlantic Quarterly 103: 451–463.

    Article  Google Scholar 

  6. Butler, Judith. 1990. Gender trouble: Feminism and the subversion of identity. New York: Routledge.

    Google Scholar 

  7. Butler, Judith. 1993. Bodies that matter: On the discursive limits of ‘sex’. New York: Routledge.

    Google Scholar 

  8. Butler, Judith. 2005. Giving an account of oneself. New York: Fordham University Press.

    Book  Google Scholar 

  9. Coombe, Rosemary. 2007. The work of rights at the limits of governmentality. Anthropologica 49: 284–289.

    Google Scholar 

  10. Dworkin, Ronald. 1977. Taking rights seriously. Cambridge, MA: Harvard University Press.

    Google Scholar 

  11. Ford, Richard T. 2002. Beyond “difference”: A reluctant critique of legal identity politics. In Left legalism/left critique, ed. Wendy Brown, and Janet Halley. Durham: Duke University Press.

    Google Scholar 

  12. Foucault, Michel. 1972. The archaeology of knowledge, (trans: by Sheridan Smith A. M.). London: Routledge.

  13. Foucault, Michel. 1979. The will to knowledge: The history of sexuality, Vol. 1, (trans: by Robert Hurley). Harmondsworth: Penguin.

  14. Foucault, Michel. 1980. Power and strategies. In (trans: Colin Gordon ed.), Power/knowledge: Selected interviews and other writings 1972–1977. Brighton: Harvester Press.

  15. Foucault, Michel. 1980. Truth and power. In (trans: Colin Gordon ed.), Power/knowledge: Selected interviews and other writings 1972–1977. Brighton: Harvester Press.

  16. Foucault, Michel. 1988. Critical theory/intellectual history. In Politics, philosophy, culture: Interviews and other writings, 1977–1984, ed. Lawrence D. Kritzman (trans: Alan Sheridan et al.). London: Routledge.

  17. Foucault, Michel. 1991. Discipline and punish: The birth of the prison, (trans: Alan Sheridan). Harmondsworth: Penguin.

  18. Foucault, Michel. 1996. What is critique? In What is enlightenment? Eighteenth-century answers and twentieth-century questions, ed. James Schmidt (trans: Kevin Paul Geiman) Berkeley and Los Angeles: University of California Press.

  19. Foucault, Michel. 1997. The ethics of the concern for self as a practice of freedom. In Essential works of Foucault 1954–1984, Vol. 1: Ethics, subjectivity and truth, ed. Paul Rabinow (trans: Robert Hurley et al.). Harmondsworth: Allen Lane/Penguin.

  20. Foucault, Michel. 2000. Confronting governments: Human rights. In Essential works of Foucault 1954–1984, Vol. 3 Power, ed. James D. Faubion (trans: Robert Hurley et al.). New York: The New Press.

  21. Foucault, Michel. 2000. Letter to certain leaders of the left. In Essential works of Foucault 1954–1984, Vol. 3: Power, ed. James D. Faubion (trans: Robert Hurley et al). New York: The New Press.

  22. Foucault, Michel. 2000. “Omnes et Singulatim”: Toward a critique of political reason. In Essential works of Foucault 1954–1984, Vol. 3: Power, ed. James D. Faubion (trans: Robert Hurley et al.). New York: The New Press.

  23. Foucault, Michel. 2000. The political technology of individuals. In Essential works of Foucault 1954–1984, Vol. 3: Power, ed. James D. Faubion (trans: Robert Hurley et. al.). New York: The New Press.

  24. Foucault, Michel. 2000. The risks of security. In Essential works of Foucault 1954–1984, Vol. 3: Power, ed. James D. Faubion (trans: Robert Hurley et al.). New York: The New Press.

  25. Foucault, Michel. 2000. The subject and power. In Essential works of Foucault 1954–1984, Vol. 3: Power, ed. James D. Faubion (trans: Robert Hurley et al.). New York: The New Press.

  26. Foucault, Michel. 2003. ‘Society must be defended’: Lectures at the Collège de France, 1975–1976, (trans: David Macey). London: Allen Lane.

  27. Foucault, Michel. 2007. Security, territory, population: Lectures at the Collège de France 1977–1978, (trans: Graham Burchell). Houndmills: Pan Macmillan.

  28. Foucault, Michel. 2009. The birth of biopolitics: Lectures at the Collège de France, 1978–1979, (trans: Graham Burchell). Houndmills: Pan Macmillan.

  29. Golder, Ben. 2010. Foucault and the unfinished human of rights. Law, Culture and the Humanities 6: 354–374.

    Article  Google Scholar 

  30. Golder, Ben. 2010. What is an anti-humanist human right? Social Identities 16: 651–668.

    Article  Google Scholar 

  31. Golder, Ben. 2011. Foucault`s critical (yet ambivalent) affirmation: Three figures of rights. Social & Legal Studies 20: 283–312.

    Article  Google Scholar 

  32. Golder, Ben, and Peter Fitzpatrick. 2009. Foucault’s law. Abingdon: Routledge.

    Google Scholar 

  33. Guilhot, Nicolas. 2008. Limiting sovereignty or producing governmentality?: Two human rights regimes in US discourse. Constellations 15: 502–516.

    Article  Google Scholar 

  34. Hardy, Cynthia. 2003. Refugee determination: Power and resistance in systems of Foucauldian power. Administration & Society 35: 462–488.

    Article  Google Scholar 

  35. Hunt, Alan, and Gary Wickham. 1994. Foucault and law: Towards a sociology of law as governance. London: Pluto Press.

    Google Scholar 

  36. Ignatieff, Michael. 2001. Human rights as politics and human rights as idolatry. In Human rights as politics and idolatry, ed. Amy Gutmann. Princeton: Princeton University Press, 2001.

  37. Ivison, Duncan. 2008. Rights. Stocksfield: Acumen.

    Google Scholar 

  38. Keenan, Tom. 1987. The “Paradox” of knowledge and power: Reading Foucault on a bias. Political Theory 15: 5–37.

    Article  Google Scholar 

  39. Keenan, Tom. 1997. The “Paradox” of knowledge and power: Foucault on the Bias. In Fables of responsibility: Aberrations and predicaments in ethics and politics. Stanford: Stanford University Press.

  40. Kotkas, Toomas. 2010. Governing health and social security in the twenty-first century: Active citizenship through the right to participate. Law and Critique 21: 163–182.

    Article  Google Scholar 

  41. Lemke, Thomas. 2002. Foucault, governmentality, and critique. Rethinking Marxism 14: 49–64.

    Article  Google Scholar 

  42. MacKinnon, Catharine. 1987. Feminism unmodified: Discourses on life and law. Cambridge, MA.: Harvard University Press.

    Google Scholar 

  43. Malkki, Liisa H. 1996. Speechless emissaries: Refugees, humanitarianism, and dehistoricization. Cultural Anthropology 11: 377–404.

    Article  Google Scholar 

  44. Manokha, Ivan. 2009. Foucault’s concept of power and the global discourse of human rights. Global Society 23: 429–452.

    Article  Google Scholar 

  45. McLure, Kirstie M. 1995. 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.

    Google Scholar 

  46. Mourad, Roger. 2003. After Foucault: A new form of right. Philosophy & social criticism 29: 451–481.

    Article  Google Scholar 

  47. Mutua, Makau. 2008. Human rights: A political and cultural critique. Philadelphia: University of Pennsylvania Press.

    Google Scholar 

  48. Nozick, Robert. 1974. Anarchy, state, and utopia. New York: Basic Books.

    Google Scholar 

  49. Odysseos, Louiza. 2010. Human rights, liberal ontogenesis and freedom: Producing a subject for neoliberalism. Millennium: Journal of International Studies 38: 747–772.

    Article  Google Scholar 

  50. Oksala, Johanna. 2005. Foucault on freedom. Cambridge: Cambridge University Press.

    Book  Google Scholar 

  51. Oswin, Natalie. 2001. Rights spaces: An exploration of feminist approaches to refugee law. International Feminist Journal of Politics 3: 347–364.

    Article  Google Scholar 

  52. Patton, Paul. 2004. Power and right in Nietzsche and Foucault. International Studies in Philosophy 36: 43–61.

    Article  Google Scholar 

  53. Patton, Paul. 2005. Foucault, critique and rights. Critical Horizons 6: 267–287.

    Article  Google Scholar 

  54. Pickett, Brent L. 2000. Foucaultian rights? The Social Science Journal 37: 403–421.

    Article  Google Scholar 

  55. Pickett, Brent. 2005. On the use and abuse of Foucault for politics. Oxford: Lexington Books.

    Google Scholar 

  56. Prozorov, Sergei. 2007. Foucault, freedom and sovereignty. Aldershot: Ashgate.

    Google Scholar 

  57. Raco, Mike, and Imrie Rob. 2000. Governmentality and rights and responsibilities in urban policy. Environment and Planning A 32: 2187–2204.

    Article  Google Scholar 

  58. Rancière, Jacques. 2004. Who is the subject of the rights of man? South Atlantic Quarterly 103: 297–310.

    Article  Google Scholar 

  59. Rose, Nikolas. 1996. The death of the social? Re-figuring the territory of government. Economy & Society 25: 327–356.

    Article  Google Scholar 

  60. Rose, Nikolas, and Peter Miller. 1992. Political power beyond the state: Problematics of government. British Journal of Sociology 43: 172.

    Article  Google Scholar 

  61. Sokhi-Bulley, Bal. 2011. Governing (through) rights: Statistics as technologies of governmentality. Social and Legal Studies 20: 139–155.

    Article  Google Scholar 

  62. Sokhi-Bulley, Bal. 2011. Government(ality) by experts: Human rights as governance. Law and Critique 22: 251–271.

    Article  Google Scholar 

  63. Souter, James. 2008. Emancipation and domination: Human rights and power relations. in-Spire. Journal of Law Politics and Societies 3: 140–150.

    Google Scholar 

  64. Tierney, Thomas. 2006. Suicidal thoughts: Hobbes, Foucault, and the right to die. Philosophy and Social Criticism 32: 601–638.

    Article  Google Scholar 

  65. Zagor, Matthew, (forthcoming). Recognition and narrative identities: The Legal Creation, Alienation and Liberation of the Refugee. In Allegiance and identity in a globalised world, ed. Fiona Jenkins, Mark Nolan and Kim Rubenstein. Cambridge: Cambridge University Press.

  66. Zetter, Roger. 1991. Labelling refugees: Forming and transforming a bureaucratic identity. Journal of Refugee Studies 4: 39–62.

    Article  Google Scholar 

Download references

Acknowledgments

I would like to thank Ronnie Lippens for the generous invitation to contribute, and Dan Joyce and Matthew Zagor for crucial references and insight.

Author information

Authors and Affiliations

  1. Faculty of Law, University of NSW, Sydney, NSW, 2052, Australia

    Ben Golder

Authors
  1. Ben Golder
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Ben Golder.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Golder, B. Foucault, Rights and Freedom. Int J Semiot Law 26, 5–21 (2013). https://doi.org/10.1007/s11196-012-9259-8

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11196-012-9259-8

Keywords

Search

Navigation