New Critical Legal Thinking

Law and the Political

Matthew Stone, Illan Wall, Costas Douzinas, Matthew Stone, Illan rua Wall, Costas Douzinas

• Publisher: Birkbeck Law Press
• Year: 2012
• ISBN:
  9781136291203
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

New Critical Legal Thinking articulates the emergence of a stream of critical legal theory which is directly concerned with the relation between law and the political. The early critical legal studies claim that all law is politics is displaced with a different and more nuanced theoretical arsenal. Combining grand theory with a concern for grounded political interventions, the various contributors to this book draw on political theorists and continental philosophers in order to engage with current legal problematics, such as the recent global economic crisis, the Arab spring and the emergence of biopolitics. The contributions instantiate the claim that a new and radical political legal scholarship has come into being: one which critically interrogates and intervenes in the contemporary relationship between law and power.

Part I

Resistance, dissensus and the subject

Chapter 1

Human rights: confronting governments?

Michel Foucault and the right to intervene

Jessica Whyte1

The accumulated anguish of individuals who fear for their lives brings about a new power.

— Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes

In 1981, Michel Foucault delivered a speech entitled ‘Confronting Governments: Human Rights’ at the UN in Geneva to coincide with the creation of an International Committee Against Piracy.² Addressing ‘all members of the community of the governed’, he argued that the ‘suffering of men’, too often ignored by governments, ‘grounds an absolute right to stand up and speak to those who hold power’.³ The specific suffering that had sparked Foucault’s intervention was that of the Vietnamese asylum-seekers who had left their country after the fall of Saigon. Under the leadership of Bernard Kouchner of Médecins du Monde (Doctors of the World), the committee sought to protect the asylum-seekers from pirates who were viciously attacking boats in the South China Sea. Foucault’s short speech, in which he evoked an ‘international citizenship that has its rights and its duties, and that obliges one to speak out against every abuse of power, whoever its author, whoever its victims’ is both powerful and passionate.⁴ Nonetheless, it leaves us with many questions, not least about the nature of this new right advocated by the thinker whose prior view of rights had been most starkly encapsulated in a phrase from a 1976 lecture: ‘Right in the West is the King’s right’.⁵ In that, now justly famous, lecture, Foucault suggests that the function of the theory of right, since medieval times, has been to erase the problem of domination by framing power as a question of legitimacy — to secure both the legitimate power of the sovereign and the legal obligation to obey. In contrast, he describes his own ‘general project over the past few years’ — that is, in the period in which he was writing Discipline and Punish and The History of Sexuality: An Introduction — as an attempt to reverse the mode of analysis of the discourse of right in order to show that right is itself an instrument of domination. In language that is both stark and seemingly unambiguous, he writes: ‘The system of right, the domain of the law, are permanent agents of these relations of domination, these polymorphous techniques of subjugation’.⁶

Foucault’s approach in his Geneva intervention is starkly different; no longer is right the prerogative of kings and no longer is it bound to the problem of legitimacy. Rather, those who would exercise such a right have ‘no other grounds for speaking, or for speaking together, than a certain shared difficulty in enduring what is taking place’.⁷ Somewhat surprisingly, given his previous distrust of attempts to oppose the individual to power, Foucault uses the phrase ‘private individuals’ to describe the bearers of this new form of right.⁸ He also gestures, however, to the organisations to whom he attributes the responsibility for bestowing rights upon those with no official capacity in which to exercise them: ‘Amnesty International, Terre des Hommes, and Médecins du Monde’, he writes, ‘are initiatives that have created this new right — that of private individuals to effectively intervene in the sphere of international policy and strategy’.⁹ In this short speech, right no longer appears as an instrument or mask of domination but, rather, as that which enables ‘the will of individuals’ to wrench from governments the monopolisation of the power to effectively intervene.¹⁰

For some later thinkers, Foucault’s advocacy of such a right is evidence of a late reconsideration of humanism and reappraisal of the idea of a pre-discursive subject, after which, in Eric Paras’s words, he ‘embraced the ideas that he had laboured to undermine: liberty, individualism, ‘human rights’ and even the thinking subject’.¹¹ There are moments in Foucault’s later works, and particularly in those texts he drafted as specific political interventions that, on the surface, would seem to support such a contention. It is no doubt difficult to reconcile his declaration that the discourse of right is a mask for domination, with his argument, in the wake of the Iranian revolution, that ‘[a]gainst power one must always set inviolable laws and unrestricted rights’.¹² If we were to accept Paras’s position, however, Foucault’s new right would simply be the old right — the right of sovereignty, the right of the ‘rights of man’. My contention, in contrast, is that we would be mistaken to assimilate this new form of right to the sovereign right he had previously criticised in such detail.¹³ During the 1970s and early 1980s, the period in which he had regular recourse to the discourse of right in his political interventions, Foucault was working on what he termed governmentality — that is, that ensemble of institutions, practices and tactics that allows for a form of power that ‘has the population as its target, political economy as its major form of knowledge, and apparatuses of security as its essential technical instrument’.¹⁴ The new form of right he advocates during this period, I suggest, should be situated in relation to a phenomenon Foucault suggests arose along with government — that is, ‘the art of not being governed, or the art of not being governed like that and at this price’.¹⁵ Through appeals to a new form of right the late Foucault, I suggest, believed it was possible to develop this art of not being governed, and thus to undo relations of coercion from within the strategic field in which they are engendered.¹⁶

Nonetheless, there remain real questions about whether rights discourses can be wrenched away from the role of bestowing legitimacy upon domination, and about whether they can effectively renounce their humanist presuppositions. The risks inherent in utilising rights claims in opposition to government will become clearer if we trace the genealogy of what Foucault defines as the ‘right to intervene’ in the practices of those organisations to whom he grants the credit of making it a reality — most importantly, Médecins Sans Frontières (MSF) and Médecins du Monde, which pioneered a form of interventionist humanitarianism that challenged the prerogatives of sovereign power.¹⁷ No name is more closely associated with the attempt to develop such a new form of right than that of Bernard Kouchner, who worked closely with Foucault while he was president of Médecins du Monde and who was, until recently, Foreign Secretary in France’s Sarkozy Government. In what follows, I trace Kouchner’s crusade to have the right to intervene accepted into international law, and his mobilisation of Foucault’s legacy for that purpose. In a context in which many have become suspicious that the moral language of humanitarian intervention is simply another justification for the domination of less powerful states by stronger ones, I ask what we can make of Foucault’s attempt to formulate a new right to intervene in violation of the Westphalian principles of sovereignty.

Foucault’s critique of rights

In an influential article on human rights and liberalism, Rhoda E. Howard and Jack Donnelly write: ‘If human rights are the rights one has simply as a human being, as they are usually are thought to be, then they are held “universally” by all human beings’.¹⁸ Few thinkers have done as much to call into question the belief in what the Universal Declaration of Human Rights terms the ‘equal and inalienable rights of all members of the human family’¹⁹ as did Foucault, whose critique of humanism undermined the idea of an ahistorical human subject that serves as the ground for the ‘rights of man’. As Alain Badiou writes, in the 1960s Foucault ‘outraged his readers with the declaration that Man, in the sense of constituent subject, was a constructed historical concept peculiar to a certain order of discourse, and not a timelessly self-evident principle capable of founding human rights or a universal ethics’.²⁰ Even more scandalous than the argument that ‘man’ was ‘an invention of recent date’,²¹ was Foucault’s suggestion that this invention may be nearing its end. With a change of arrangements akin to that which led to the crumbling of the ground of classical thought in the late 18th century, he infamously argued at the conclusion of The Order of Things that ‘man would be erased, like a face drawn in sand at the edge of the sea’.²²

The key danger with humanism, Foucault suggested in a late interview, is that it ‘presents a certain form of our ethics as a universal model for any kind of freedom’.²³ Any attempt to found a vision of society or a universal ethics on a conception of human nature must therefore naturalise a historically specific conception of humanity — that is, in Nietzsche’s words, it must ‘take the recent form of man, as it developed under the imprint of certain religions or even certain political events, as the fixed form from which one must proceed’.²⁴ While Foucault saw the idea of natural rights as normalising, in that it presupposed an ideal and natural human subject as the bearer of rights, in this interview, as in many of his later political interventions, he does not dismiss the reliance on human rights altogether. If we recognise that what we call humanism is historically specific and capable of being wielded for a diverse range of political projects, he suggests, ‘this does not mean that we have to get rid of what we call human rights or freedom, but that we can’t say that freedom or human rights has to be limited at certain frontiers’.²⁵ Recently, a number of thinkers have argued that Foucault’s challenge to the ahistorical human subject presupposed by human rights discourses is not inconsistent with a different conception of human rights as, in Ben Golder and Peter Fitzpatrick’s words, ‘the carrier of future inventions and different ways of being’.²⁶ Similarly, Paul Patton argues that ‘the manner in which Foucault historicises and therefore particularises discourses of right is . . . consistent with appealing to rights in particular contexts’.²⁷ A Foucauldian account of rights, he suggests, would not treat them as natural or inalienable aspects of the human condition but, rather, as the codification of ever-shifting power relations.²⁸

Foucault’s argument in his earlier writings was not merely that rights reflect existing power relations, however, but that the discourse of right serves to mask social relations of domination. His infamous statement: ‘we need to cut off the king’s head; in political theory that has yet to be done’, has often been taken to suggest that he abandoned the problems of sovereignty and right altogether, in exchange for an analysis of power relations, discipline and bio-politics and, later, what he termed government.²⁹ The account he offers of the relation between these forms of power, however, is more nuanced than this criticism would suggest.³⁰ Certainly, he traces the development in the 17th and 18th centuries of what he terms ‘disciplinary power’, stressing that the discourse of right is inadequate for understanding a form of power that operates through a range of non-juridical techniques that are ‘absolutely incompatible with the relations of sovereignty’.³¹ In contrast to the concern with right, contract and legitimacy that typified juridical thought, he proposed a methodology that focused attention on power in its capillary forms, on how power operated, rather than on its representation and legitimation.³² In short, he argued that we should direct our researches on the nature of power ‘not towards the juridical edifice of sovereignty, the state apparatuses and the ideologies which accompany them, but towards domination and the material operators of power, towards forms of subjections and the inflections and utilisations of their localised systems, and towards strategic apparatuses’.³³ Rather than tracing the disappearance of the theory of right, however, he argues that it persists in a disciplinary society, and for two reasons: first, the theory of right operates as a ‘permanent instrument of criticism of the monarchy’ that is useful for overcoming obstacles to the development of disciplinary power.³⁴ Secon...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Preface
• Introduction: Law, politics and the political
• PART I. Resistance, dissensus and the subject
• PART II. The state, violence and biopolitics
• PART III. Futures of critical legal thinking
• Bibliography
• Index