Vol. 27 No. 3 (April 2017) pp. 42-44

FOUCAULT AND THE POLITICS OF RIGHTS, by Ben Golder. Stanford, CA: Stanford University Press, 2015. 264 pp. Cloth $85.00. ISBN: 9780804789349. Paper $24.95. ISBN: 9780804796491.

Reviewed by Mark G. E. Kelly, School of Humanities and Communication Arts, Western Sydney University. Email:

Michel Foucault offered his thought as a ‘toolbox’ and it’s been taken up as such enthusiastically throughout the humanities and social sciences, with references to him becoming ubiquitous. It is rare, however, to encounter a scholar who engages with Foucault closely enough to enter into the spirit of his thought and understand his methodology from within. The discipline of legal studies is fortunate indeed now to have such a figure in Ben Golder.

Golder’s book, his first sole-authored monograph, concerns itself with a paradoxical corner of Foucault’s thought, namely his employment relatively late in his life of the vocabulary of human rights. This loose thread has become an object of contention in recent years, with both critics and supporters of Foucault seizing on it to suggest that Foucault was more liberal than he might have seemed, threatening to unravel the apparent distinctiveness of his position in the process. Golder attempts to halt this unraveling by showing how Foucault’s invocation of rights is compatible with his broader intellectual project. The conceptual stitch Golder uses here is the notion of human rights as a ‘critical counter-conduct’ – a phrase that, as far as I can work out, Foucault himself never uses verbatim, but which does successfully describe Foucault’s approach in this regard. Golder understands Foucault’s true methodological orientation, specifically his foreclosure of the possibilities of theoreticisation and normativity, framing it entirely accurately and adequately, in terms of an absolute commitment to critique.

The crucial thing that Golder, unlike so many commentators, understands in light of this is commitment is that Foucault’s talk of ‘rights’ does not betoken liberalism. I’m tempted to accuse Golder’s book of resembling a sledgehammer designed to crack a nut here, given how ‘unlikely’ (as Golder puts it) the contrary thesis is, but the misinterpretation of Foucault – on this as on other points – currently threatens to crowd out his thought itself, such that the kind of monumental counterattack Golder provides is surely necessary.

Golder (p. 6) argues that Foucault’s sudden and surprising turn late in his life to invoking the notion of human rights cannot be taken to imply a change in position, since he previously had simply never said anything about the topic. However, if Foucault had never spoken about ‘human rights’ as such before, he had nonetheless notoriously pronounced a negative opinion on the ‘human’ over a decade before, and been suspicious of the language of ‘right’. When Foucault invokes the notion of human rights, it is not, however, as so often among philosophers, a question of endorsing the transcendent validity of rights claims, but rather a ‘tactical’, contextually bounded intervention.

I feel that it is important to mark the fact that this purely tactical move occurs outside of Foucault’s canonical major writings, instead appearing in statements which have a different status, namely that of activist interventions, effectively part of his activism rather than his scholarly output. I think Golder fails adequately to mark this difference. Foucault did not understand himself to be a canonical intellectual figure as he has come to be viewed, and as such would have thought of such contributions as relatively throwaway remarks that would not come down to posterity. While I, with Golder, argue for an ultimate consistency of all these statements with Foucault’s published scholarship, I think this should nonetheless come with the caveat that this discourse was a kind of careless speech, much as his journalistic writing on Iran or his lecture notes on neoliberalism were.

It’s not that I disagree with the focus on marginalia that this volume of Golder’s effectively represents, and I don’t disagree with it for at least two reasons: for one thing, the marginalia has already been inflated in importance by secondary scholarship that it is a large enough object to deal with, and also within the field of legal studies, trying to follow what Foucault says about the law inevitably forces one to mine the marginalia. One can indeed refer with sympathy to Deleuze’s (1986, 115) remark that Foucault’s interviews “form an integral part of his thought.” Still, I think Golder nonetheless falls into the trap of exaggerating his object’s import. Signally he speaks of Foucault’s ‘work on rights’ – but there is no ‘work’ here in anything but the loosest sense (p. 62). Foucault does not take rights as a research object. On p. 63 Golder gives a side-by-side comparison of ‘the closing remarks of two texts’ by Foucault, separated by 18 years. These are Foucault’s magisterial, iconoclastic, vast, bestselling doorstop of intellectual history, THE ORDER OF THINGS, and a statement, written apparently by Foucault but in the first person plural, of less than 500 words in length, published in a daily newspaper as Foucault lay dying. The juxtaposition might be intended to show the flimsiness of the latter pronouncement, but there’s no indication in Golder’s glossing that there is any difference in kind between the two sources.

This is merely a niggling criticism of Golder’s superb contribution, however, which I shall now briefly survey. The book begins with a masterful introductory run-down of the winding path of Foucault’s thought, setting the scene for what follows. This continues through the first chapter into the second, the latter taking us into the period of Foucault’s late thought that provides the subject matter of Golder’s study. The first half of the second chapter effectively constitutes an explanation of how Foucault’s approach does not fundamentally change during this period, through an extended engagement with the most facile misinterpreter of Foucault in this relation, Eric Paras. This choice of interlocutor might seem justified by the extremity of Paras’s position, but I think it is in the end somewhat unfortunates insofar as it tends to lead Golder to defend Foucault in relation to claims that lack even the semblance of merit, and which I think would be better ignored. It’s true that Paras, unlike Foucault’s earlier critics, does engage with the crucial late lecture series, but Paras actually did this on the basis of tapes, not the published versions that have since stimulated so much scholarship, and as such is peculiarly obsolete now.

The second half of the second chapter sees Golder get to grips with the question of rights, presenting Foucault’s invocation of human rights as based on an understanding of the human as that which overflows any essence or definition, hence any prescribed definite set of ‘universal’ rights. In the third chapter, Golder explores Foucault’s remarks on rights in detail, via a detour encompassing the consideration of contemporary commentators Jacques Rancière and Wendy Brown, whom Golder accurately deems ‘post-Foucauldian’, examining how Foucault’s position has played out in relation to rights.

The fourth chapter is the most original, attending to Foucault’s remark that the law itself had come to be used as a political tactic, in the contest of his strategic analysis of power relations, to diagnose in Foucault’s invocations of human rights a tactical intervention in this strategic field, via a comparison with Marxism. Golder discusses contemporary legal issues about which Foucault had something to say, including assisted suicide (which Foucault endorsed absolutely). Golder finishes with a discussion of the areas in which Foucault refused any recourse to the discourse of (human) rights, despite this idiom being the usual one for critical discussion, the case in point being Foucault’s vociferous opposition to the death penalty. Golder deftly takes Foucault’s refusal to speak in terms of rights here to illustrate precisely how the use of this term is for him a tactical question, rather than a matter of abstract principle. In this specific case, the problem for Foucault is that the notion of a ‘right to life’ is already imbricated in the existing order of things, so invoking it ends up playing into, rather than undermining the status quo. Here (if I may be permitted to inject an aside) Foucault’s modus operandi is approximately the opposite of recent Critical Theory’s practice of immanent critique.

Golder uses his conclusion to reject views of the late Foucault as a ‘liberal’. He considers Samuel Moyn’s recent allegations against human rights discourse – which Golder endorses – and how these might apply to Foucault, concluding, I take it, that while Foucault might have had a different attitude towards the notion of human rights today in the wake of the use and abuse of the concept in the three decades since his death, it remains ultimately an open, tactical question whether we should employ any particular political vocabulary.

Golder should be praised for producing a comprehensive and definitive treatment of Foucault on rights, and the book must become the touchstone for the reception of Foucault in legal studies.


Deleuze, Gilles. 1985. FOUCAULT, trans. Seán Hand. Minneapolis: University of Minnesota Press.

Foucault, Michael. 1970. THE ORDER OF THINGS. 1966. New York: Vintage.

© Copyright 2017 by author, Mark G. E. Kelly.