Ben Golder’s book on the attitudes of a celebrated French philosopher and intellectual historian to the discourse of rights, which is such a prominent feature of the contemporary political scene, has two primary aims. One is to counter suggestions that, in his later work, Michel Foucault substantially revised his hostility to the notion of human beings as having some characteristic that makes them possessors of rights. According to the account that Golder disputes, Foucault in effect ended up conceding much of the legitimacy of the liberal individualism which he had once dismissed—along with the other “structuralist” and “poststructuralist” thinkers of the 1960s—as the cornerstone of a philosophically discredited “humanism.” Golder does not deny that novel references to “rights” begin to proliferate in Foucault’s lectures, interviews, and writings from the late 1970s onward. But he argues that the manner in which Foucault appropriates the language of rights builds on the insights of the archaeological and genealogical studies of theoretical discourses and institutional practices (to use Foucault’s own shorthand, of the complicities of “knowledge” and “power”) that made him famous, rather than breaking with them. Hence, the second principle intention of this book: to show that Foucault, from a perspective initially shaped by Nietzsche and structuralism, had something important and original to say about the notion of rights, and about their political applications—something that lies beyond the scope of mainstream liberal thinking.

To an outsider not familiar with the vernacular of the style of French thought that, in the final decades of the twentieth century, impacted deeply on many academic disciplines in the English-speaking world, it may not be evident why humanism was the target of such antipathy in the first place. This is a complicated story, but the basic contention was that humanism legitimates its moral ideals, whatever they may be, by reference to a conception of the human “essence.” However, the champions of “French Theory” argued, there is no such universal to be had—with the consequence that notions of what our humanity fundamentally consists in will always be partial, prejudiced, and potentially exclusionary. To put this another way, definitions of the human will always function to limit human possibility; they will mask the contingency of a constitution of the human that owes everything to the changeability of society and history, and nothing to nature. As Foucault himself puts the matter, unequivocally: “All my analyses are against the idea of universal necessities in human existence” (“Truth, Power, Self: An Interview with Michel Foucault,” in Luther H. Martin, Huck Gutman and Patrick H. Hutton, eds, Technologies of the Self, 1988: 11). Given this philosophical commitment, what are we to make of the later Foucault’s turn toward the language of rights?

Central to Golder’s interpretation of this shift in Foucault’s approach is the notion of “counterconduct”—a notion that only appears fleetingly in Foucault’s own writings, but which Golder freights with special significance. The basic thought is that social practices can be turned against their dominant realizations, and employed as expressions of resistance. In the case of rights claims, this means that the emphasis will not be on the assertion of universal entitlements. Rather, a rights claim will assert the validity of engaging in a practice specific to a social group or—at the limit—specific to an individual, one that lies outside of existing social norms, and may be subject to sanctions, whether social or legal. As Golder puts it:

“For Foucault the real political value of rights resides in their unpredictable afterlives—the discourses they generate and the changed attitudes their spur. Rights are not an end but rather a medium, themselves contested and contestable, for political contestation. They are a means to ventilate the political and what it might [be made to] mean” (137).

The problem with this conception, of course, is that it opens the way to what might be termed a “Nietzscheanism of rights,” in which groups and individuals struggle against one another to assert what they believe to be valid and desirable practices. Appeals to rights would be simply expressions of a “will to power,” weapons in the incessant battles between prevailing forms of order and resistance to them.

The conception of a social critique that might mobilize such a notion of rights was made clear by Foucault in a statement that has been frequently cited by his adherents (Golder quotes it in part on page 37): “Critique doesn’t have to be the premise of a deduction which concludes: this then is what needs to be done. It should be an instrument for those who fight, those who resist and refuse what is. Its use should be in processes of conflict and confrontation, essays in refusal. It doesn’t have to lay down the law for the law. It isn’t a stage in a programme. It is a challenge directed to what is.”

I will not dwell on the obvious point that if critique is simply an instrument of fighting, resistance and refusal, providing no principled guideline and connected to no specific program, it can be used just as well by right-wing populists or white supremacists opposed to the existing social order as it can by feminists or antiracists. That kind of criticism of Foucault’s normative abstentionism has frequently been made, and is usually dismissed by his defenders as a cheap shot. The deeper philosophical issue is surely that Foucault’s notion that he could detach himself entirely from the ethical-political context of the society in which he lived, treating all socials norms simply as objects to be investigated, was hopelessly quixotic. Indeed, it contradicts an argument that runs like a thread through his own work: that there can be no subject of the kind envisaged by transcendental phenomenology, able to detach itself entirely from its lifeworld context through an epoché—a suspension—of the “natural attitude.”

The predictable result of such an attempt at abstraction is that the supposedly suspended ethical-political assumptions will simply return “through the back door,” as it were. Hence, it is arguable that the concept of an “aesthetics of existence,” one of the foci of the final phase of Foucault’s thought, simply presupposes, at the very least, the defensive fundamental rights of Georg Jellinek’s status negativus. For Foucault’s crowning ethical idea was that individuals should be able continuously to create or reconstitute themselves through the experimental development of new practices, in a manner not involving conformity to a preconceived life plan. Clearly, this would not be possible without the modern legally protected private sphere of action, which Foucault seems simply to take for granted, without being able to offer any justification for it. To point out that his late aesthetics of existence was inspired by the practices of “care for the self” characteristic of Antiquity, when no such private sphere existed, would not disarm this criticism. For Foucault himself makes clear that, in the ancient world, care for the self was a means of making oneself fit for preexisting social roles. As he explicitly stated, “care for self renders one competent to occupy a place in the city, in the community, or in individual relationships which are proper” (“The Ethic of Care for the Self as a Practice of Freedom: An Interview with Michel Foucault,” in James Bernauer and David Rasmussen, eds, The Final Foucault, 1988: 7).

Why did Foucault get into this tangle? The basic difficulty lies in his failure to distinguish between a fundamental principle, and concrete norms that represent an attempt to instantiate that principle. Contrary to the assumption not only of Foucault but of his fellow “anti-humanists” of the 1960s, the basic claim that all human beings are worthy of respect leaves wide open the manner in which the claim is to be interpreted; the debate and conflict over its proper instantiation will be ongoing. As Christoph Menke and Arnd Pollmann have put the matter: “the recognition of each individual is not to be understood in the sense that each individual is determined by a fixed concept of the person or of the human being” (Christoph Menke and Arnd Pollmann, Philosophie der Menschenrechte, 2007: 86–87). On the contrary, the irreducible otherness of human beings to one another will lead to constant revision in our sense of what it means to give each human being his or her due. However, this distinction between a principle and its instantiations is one that Golder constantly erases. Thus, with a typical exaggerated flourish, he writes of “the metaphysical closure of orthodox humanism and the political violence which that orthodoxy licenses” (81). Setting aside the complete obscurity of what “orthodox humanism” is supposed to mean, a universalistic conception of rights need be committed to no such “metaphysical closure”; it can be as “anti-essentialist” with respect to the human as Golder portrays Foucault to be. Indeed, on one widespread construal, it is this lack of an “essence”—in other words, this fundamental or existential freedom—that endows human beings with their equal worth in the first place. Arguably, Foucault himself performs such a transition from anti-essentialism to an (apparently universal) concept of freedom in his late thought, declaring, for example, that “Freedom is the ontological condition of ethics” (“The Ethic of Care for the Self”: 4—translation altered).

Indeed, Foucault takes up the theme of freedom enthusiastically, arguing that the “philosophical ethos” appropriate to our post-Enlightenment age involves “a historico-practical test of the limits that we may go beyond, and thus . . . work carried out by ourselves upon ourselves as free beings” (Michel Foucault, “What is Enlightenment?,” in Paul Rabinow, ed., The Foucault Reader, 1984: 47) We might note, in passing, that the attribution of freedom—a capacity for spontaneous action—to human beings is incompatible with a conception of “different forms of speaking subjectivity” as “effects proper to the enunciative field” (Foucault, The Archaeology of Knowledge, 1972: 122), or the notion of “an analysis which can account for the constitution of the subject within a historical framework” (Foucault, “Truth and Power,” in Colin Gordon, ed., Michel Foucault: Power/Knowledge, 1980: 117), which Foucault defended earlier in his career. In other words, there is indeed a rupture in Foucault’s intellectual development of the kind that Golder tries to deny, but whose existence he inadvertently betrays, by reminding us of Foucault’s earlier characterizations of subjectivity as a product at various points in his book (“for me, the late Foucauldian subject continues to be an artifact of power and knowledge”; 64). But, beyond this, Golder’s account brings home how morally and politically empty any talk of freedom can be if it is not harnessed to a universalizing project (as opposed to a putatively universal system of concrete norms).

If human freedom is both the basis of rights and what rights are intended to secure, then an endlessly complex debate and struggle can commence, concerning both failures to universalize (when relevant commonalities are overlooked or repressed) and over-universalization (when pertinent differences are not taken into account). But without the universalist horizon, freedom degenerates into the sheer arbitrariness of going beyond limits, of doing things differently—without any implication that “different” implies “better.” Foucauldian critique, Golder asserts in a typical passage, is “ruptural and affirmative of plural, contingent possibilities for the future” (51). But why should such possibilities be of interest to us, unless—in one mode or another—they promise an advance in the instantiation of principles that are central to our modern moral-political consciousness (and so are contingent only in a very attenuated sense)? Golder’s writing, like that of his fellow Foucault enthusiasts, is full of the feel-good rhetoric of “contestation” and “subversion.” But he leaves the reader who takes him at his word with the question: What is the point of it all?