Foucault and the Politics of Rights

Ben Golder

• Publisher: Stanford University Press
• Year: 2015
• ISBN:
  9780804796514
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Menschenrechte

This book focuses on Michel Foucault's late work on rights in order to address broader questions about the politics of rights in the contemporary era. As several commentators have observed, something quite remarkable happens in this late work. In his early career, Foucault had been a great critic of the liberal discourse of rights. Suddenly, from about 1976 onward, he makes increasing appeals to rights in his philosophical writings, political statements, interviews, and journalism. He not only defends their importance; he argues for rights new and as-yet-unrecognized. Does Foucault simply revise his former positions and endorse a liberal politics of rights? Ben Golder proposes an answer to this puzzle, which is that Foucault approaches rights in a spirit of creative and critical appropriation. He uses rights strategically for a range of political purposes that cannot be reduced to a simple endorsement of political liberalism. Golder develops this interpretation of Foucault's work while analyzing its shortcomings and relating it to the approaches taken by a series of current thinkers also engaged in considering the place of rights in contemporary politics, including Wendy Brown, Judith Butler, and Jacques Rancière.

CHAPTER 1

CRITICAL COUNTER-CONDUCTS

I can’t help but dream about a kind of criticism that would try not to judge, but to bring an oeuvre, a book, a sentence, an idea to life; it would light fires, watch the grass grow, listen to the wind, and catch the sea-foam in the breeze and scatter it.

Michel Foucault*

From Critique to Acceptance?

There is a common and, at first glance, perfectly plausible explanation for the puzzle of Foucault’s late engagement with rights discourse. It proceeds by setting Foucault’s engagements with rights within a major shift in the late work (his “ethical turn” or “return to the subject”). This frequently invoked shift, from the so-called power to the “ethical” phase of his writing, is one in which Foucault supposedly retreats from critiquing to eventually accepting the normative importance of the subject.¹ Such readings are plainly revisionist in intent—after all, what could possibly be more critical a subject to the Foucauldian legacy than the very critique of the subject, one of the leitmotifs of Foucault’s project as it unfolded throughout the 1970s?² “At the time of Foucault’s death in 1984,” writes Richard Wolin with evident satisfaction, “prominent observers noted the irony that the ex-structuralist and ‘death of man’ prophet had played a pivotal role in the French acceptance of political liberalism.”³ Having on this view rashly consigned the subject to its grave as early as the mid-1960s in a fit of (post)structuralist pique, Foucault is embarrassingly forced to exhume it only a decade later for compelling moral and political reasons—a seemingly remarkable “capitulation in the face of the moral superiority of humanism.”⁴ For many, this supposed shift—from critique to acceptance of the subject—provides a convenient and almost self-evident lens through which to view the thinker’s late engagements with rights.⁵ Of course, so goes the argument, if the later Foucault comes finally to formulate what the intellectual historian Eric Paras has hailed as a “prediscursive subject” unmarked by power and knowledge,⁶ then it follows that his contemporaneous resorts to rights discourse come to be understood in an orthodox liberal individualist fashion—namely, as juridical protections for certain pre-political qualities of the subject (its inalienable dignity, originary liberty, and so forth). For me, once such an interpretive schema is adopted in order to read Foucault’s deployments of rights, then this interesting, disparate, ambivalent, and challenging late political body of work is unhelpfully reduced to a unitary and extended paean to liberalism—which is precisely what Wolin intends by such a reading when he approvingly (yet provocatively) refers to Foucault, in another piece, as a “neohumanist.”⁷

But something more—at once more politically challenging and more faithful to the critical and transformative intent of Foucault’s thought—can yet be made of this late work.⁸ In what follows I construct an alternative conceptual lens through which to view the late work on rights. I proceed in three steps. First, I articulate a general understanding of what critique means and how it functions in Foucault’s work. As intimated earlier, the understanding I propose here is intended to foreground the affirmative dimensions of Foucault’s critical approach—to him, critique is a form of disassembly that productively opens the contingent present to an undetermined future. Then, moving from a general and principled statement about the intent of Foucault’s critical method to some particular instantiations of it, I revisit in greater detail material outlined in the Introduction—that is, Foucault’s related critiques of subjectivity and of sovereignty. In this section I shall necessarily traverse some fairly well-trodden Foucauldian territory, both historical and conceptual (disciplinary power and biopolitics) and methodological (archaeology and genealogy) in nature. Finally, I shall offer a more detailed discussion of Foucault’s mature conception of power as the affecting of “conduct” and the crucial notion of “counter-conduct” that such a conception brings with it. My overall aim in this chapter is hence to present an understanding of critique in Foucault’s work and then to relate this understanding to his more specific concept of “counter-conduct.” I hope to show how the resistant and affirmative potential embodied in this concept, a concept that looks to make sense of his late politics of rights, itself rests upon the theoretical premises of Foucault’s own understanding of (archaeological and genealogical) critique.

Both this chapter and Chapter 2 together constitute an attack upon the idea that Foucault, when it comes to the subject, moves from a posture of critique to one of acceptance—an idea central to the misreading of Foucault as a belated convert to a liberal political philosophy of rights. But if Foucault, as I maintain, consistently adopts a critical stance well into his later work, then it is necessary to start by examining in some detail precisely what is meant here by critique. If, as I contend, a certain (mis)understanding of critique contours the reception of Foucault in the liberal misreadings to which I have just referred, then I am obliged to articulate a proper understanding of just what it is that Foucault intends, and more to the point, does not intend, by critique. It is to this task that I now turn.

What Is Foucauldian Critique?

What precisely does Foucault mean by “critique”? My premise is that one way of understanding the contention that Foucault moves toward an unlikely rapprochement with liberalism in the late work is to approach his alleged “turn” through the prism of critique itself. By commencing in this way—that is, by distinguishing the specifically Foucauldian idiom of critique from other critical traditions, with their attendant understandings of the role of the critic and of the social function of critique itself—we shall begin to see a little more clearly just what the intent, the uses, and (perhaps even) the limitations of Foucault’s particular critical project might be. It will show that any claim that he reverts approvingly to liberal individualism in the late work is untenable.

No doubt an entire book could be written on Foucault’s various critical practices and his serial formulations of what it means to be engaged in critique. Thankfully, Foucault himself rescues me from such a task: in the late essay “What Is Enlightenment?”⁹ he provides a synoptic (and cumulative) account of his different methodological approaches. I shall accordingly take this text, an “apologia” in the “classical sense,”¹⁰ as a distillation of Foucault’s critical methods and of what he believes the work of the critic to be. As is common with Foucault, he proceeds in this essay to construct his own position by reference to the position of another thinker.¹¹ As is somewhat less common, the thinker on this occasion is Immanuel Kant—and quite remarkably, Foucault begins by implicitly aligning his own critical enterprise with the Kantian philosophical tradition.¹² What exactly does Foucault mean by this? He opens with a brief reading of Kant’s famous 1784 essay, Was ist Aufklärung? (What is enlightenment?), in which Kant—in answer to the Berlinische Monatschrift’s question—proposed that enlightenment represents the release of man from his self-incurred tutelage and his accession to a state of intellectual maturity, in which, now daring to know, he uses his own powers of reason and no longer acquiesces unthinkingly to the dogmas of religion, tradition, or authority.¹³ Foucault links this definition of enlightenment as the mature, autonomous use of reason to Kant’s three philosophical Critiques (in particular the first, The Critique of Pure Reason). For him, the former necessitates the latter in that the vertiginous moment at which man’s reason is finally to be deployed upon its own account, as it were, requires the critical policing of this selfsame reason, lest humanity’s newly acquired faculty go awry: “Its role is that of defining the conditions under which the use of reason is legitimate in order to determine what can be known [connaître], what must be done, and what may be hoped. . . . The critique [Kant’s Critique] is, in a sense, the handbook of reason.”¹⁴

For Foucault, the importance of Kant’s text resides in the fact that it poses a particular question—that of the philosopher’s relationship to the present—and that in so doing it inaugurates a particular style of modern philosophy whose questions we (Foucault included) are still asking today. Foucault observes:

It is the reflection on ‘today’ as difference in history and as motive for a particular task that the novelty of this text appears to me to lie. And, by looking at it in this way, it seems to me that we may recognize a point of departure: the outline of what one might call the attitude of modernity.¹⁵

According to Foucault, the modern attitude that Kant’s philosophical essay encapsulates is a “mode of relating to contemporary reality.”¹⁶ In his own essay, Foucault argues that the “thread which may connect us to the Enlightenment is not faithfulness to doctrinal elements but, rather, the permanent reactivation of an attitude—that is, of a philosophical ethos that could be described as a permanent critique of our historical era.”¹⁷ By so doing, Foucault provocatively situates his own critical historical analyses—his archaeologies, genealogies, and problematizations—within a Kantian orbit: he is a Kantian in spirit, if not exactly in the arid “doctrinal” letter, in that he seeks to reactivate modern philosophy’s problematic of interrogating the historical present. He characterizes his own attempt to take up these questions—an attempt that he variously figures within the text as an ethos, a task, a philosophical life, a historical ontology, and finally, as critique itself—in both negative and positive terms. Let me reverse the order of the text’s presentation and begin by addressing the positive dimension of Foucault’s critical project.

In describing his own project affirmatively, then, Foucault again employs terms drawn from Kant, but now he gives them a different meaning. He describes the philosophical ethos of modernity as a “limit-attitude” and proposes critique as a means to analyze, reflect upon, and breach those limits. Whereas for Kant critique consisted in an attempt to “know[. . .] [savoir] what limits knowledge [connaissance] must renounce exceeding,” for Foucault the point of contemporary critique is not to establish transcendental limits to knowledge but rather to historicize and dissolve them. He thus asks:

In what is given to us as universal, necessary, obligatory, what place is occupied by whatever is singular, contingent, and the product of arbitrary constraints? The point, in brief, is to transform the critique conducted in the form of necessary limitation into a practical critique that takes the form of a possible crossing-over [franchissement].¹⁸

For Foucault critique thus dispenses with the (Kantian) search “for formal structures with universal value.” In its place he proposes “a historical investigation into the events that have led us to constitute ourselves and to recognize ourselves as subjects of what we are doing, thinking, saying.”¹⁹ Such a form of critique, he stresses, is “at once archaeological and genealogical.”²⁰ It is “archaeological—and not transcendental—in the sense that it . . . treat[s] the instances of discourse that articulate what we think, say, and do as so many historical events,” and it is “genealogical in the sense that it will not deduce from the form of what we are what it is impossible for us to do and to know; but it will separate out, from the contingency that has made us what we are, the possibility of no longer being, doing or thinking what we are, do, or think.”²¹

For Foucault, then, critique consists in the work of historicizing and rendering contingent the discourses and modes of being that have come to define our present (and our relations to our present). The purpose of such a critique is not simply to explain the various historical processes that have led to the current conjuncture of why we are, behave, or think in a particular way, but rather, and more pertinently, to defamiliarize and destabilize that conjuncture, to explain how it was produced and, by doing so, open it to the possibility of its being otherwise. As he puts it toward the end of the essay, joining these two moments of analysis and disassembly, “The critique of what we are is at one and the same time the historical analysis of the limits imposed upon us and an experiment with the possibility of going beyond them [de leur franchissement possible].”²²

Foucault’s “negative” presentation of critique in “What Is Enlightenment?” is no less revealing. Here he is concerned to clear a space for a type of critique that neither judges (after Kant, perhaps)²³ nor negates (with Hegel or Marx), but rather, as we have just seen, simply excavates and renders unstable.²⁴ He expresses his objection to the constraints of these dominant ways of thinking critique in terms of an act of Manichaean “blackmail”: the critic must necessarily be either in favor of or against the object of critical analysis. Worried that such a requirement reduces the possible modalities and valences of critique to a static forensic binary,²⁵ he insists that to situate oneself within the historical inheritance of an event such as the Enlightenment, while simultaneously critiquing it,

does not mean that one has to be “for” or “against” the Enlightenment. It even means precisely that one must refuse everything that might present itself in the form of a simplistic and authoritarian alternative: you either a...