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Can Human Rights Have Merit in Foucault's Disciplinary Society?

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Can Human Rights Have Merit in Foucault's Disciplinary Society? Can Human Rights Have Merit in Foucault’s Disciplinary Society? Alexandra Solheim Thesis presented for the degree of MASTER IN PHILOSOPHY Supervised by Professor Arne Johan Vetlesen and Professor Espen Schaaning Department of Philosophy, Classics, History of Art and Ideas UNIVERSITY OF OSLO December 2018 Can Human Rights have Merit in Foucault’s Disciplinary Society? II © Alexandra Solheim 2018 Can Human Rights Have Merit in Foucault’s Disciplinary Society? Alexandra Solheim http://www.duo.uio.no/ Trykk: Reprosentralen, Universitetet i Oslo III Summary This thesis’s inquiry sets out to study the apparent irreconcilability between Foucault’s notion of disciplinary power and the idea of human rights. By reconceptualising human rights, this thesis attempts to redeem the merit of human rights in the context of Foucault’s disciplinary society. This thesis shall, firstly, address four issues of human rights, which are: the large number of contestations concerning its content, the increasingly expanding scope, the technocratic characteristics of human rights practice, and lastly, the adverse effects of human right struggles. By looking at Foucault’s power as disciplinary, it can account for and explain the challenges identified. Foucault does not envision himself to provide a normative theory, but rather a descriptive theory. This might illuminate why and how rights become problematic in practice. If we adopt Foucault’s notion of power, it appears that it would discredit the idea of human rights altogether. In this view, human rights reinforce power structures instead of opposing them. Firstly, disciplinary power renders emancipatory human rights nonsensical, as power is not uniform and the opposite of freedom. Power, in disciplinary society, is polymorphous, which implies that to claim a right cannot necessarily guarantee more freedom. Secondly, if we reject the normative basis for rights, it is unclear how we can decide what rights should entail and why we ought to respect them. Lastly, a third rejection of human rights shall argue that Foucault’s notion of disciplinary power undermines the juridical institution, which leads to a supposition that rights must be independent of the law. This is problematic as human rights are embedded in law. By turning to the notion of parrhesia, and Foucault’s ethical work, we embed rights in the ethical sphere, in which rights take the form of activism. According to the Greeks, parrhesia is a truth-claim that leads to an unforeseen change and involves that the person takes a risk. Parrhesia can be argued to take place when a subject resists a power relation imposed on him. If we consider rights activism a practice akin to parrhesia, rights can be proved to have merit and empowering effects. This reconceptualisation of rights as a practice of parrhesia evades the criticism that rights cannot be empowering and the normative questions of what rights should entail. However, parrhesia does not address the question of the juridical institution. IV This thesis will show that Foucault’s critique of law is mainly towards philosophers who formulate social contract theories and argue that humans have natural rights. By turning to legal positivism and Herbert L. A. Hart’s account of a legal system, this thesis argues that the legal system is not necessarily in conflict with Foucault’s notion of power. From this perspective, laws are the collection of formalised rules that can be found in any society. A legal system must be supported by the dominant discourse, but it also displays a normalising function. When citizens respect these laws, they make them prescriptive and they assume others will do the same. If we accept this interpretation of a legal system, human rights have merit insofar as they take the shape of parrhesia. The thesis will argue that when rights become inscribed in law, they become part of the dominant discourse. A right that becomes part of the dominant discourse cannot necessarily guarantee empowerment, and may also lead to disciplinary effects. V Acknowledgements This thesis has in many ways been a special project for me since I was first introduced to Foucault during my undergraduate degree. To further my research, I decided to spend a semester at the Sorbonne University in Paris. First and foremost, I would like to thank my supervisors Espen Schaaning and Arne Johan Vetlesen, for their insight and effort in refining my argument. It was crucial to have a supervisor that I could turn to when I found some of Foucault’s passages difficult to understand, as well as to point to which books would be useful for me. I also owe my gratitude to the professors I had the privilege of meeting at Sorbonne, who introduced me to some key secondary literature. As the thesis is written in English, I have cited the English translations of Foucault’s work. I am convinced the translator would do a better job than if I were to translate the original work myself. The exception is when the texts were only accessible in French. I have in those cases translated the direct quotes myself and included the original quote in the footnotes. VI VII Contents Introduction ................................................................................................................................ 1 I) The Debate Around Foucault’ Stance on Rights............................................................. 2 II) Four Interpretations ..................................................................................................... 4 III) The Thesis.................................................................................................................... 7 1 The Disillusion of Human Rights..................................................................................... 11 a) Contestations Towards Rights ............................................................................... 11 b) The Multifaceted Implementation of Rights........................................................... 12 c) The Technocracy of Human Rights........................................................................ 13 d) The Adverse Effects of Human Rights.................................................................... 14 I) From a Theory of Sovereignty to a Theory of Domination .......................................... 15 II) Power Relations......................................................................................................... 19 III) Discourse ................................................................................................................... 20 IV) The Theoretical Boundary Between Theory and Practice......................................... 24 2 Disciplinary Society ......................................................................................................... 25 I) The Constitution of the Observed Subjects................................................................... 28 II) Two Transformations Towards our Human Rights-Institution ................................. 29 III) Rights as Power-Knowledge: The Proliferation of Rights Discourse ....................... 32 IV) The Rejection of Rights............................................................................................. 34 a) Denial of Emancipation ......................................................................................... 34 b) The Forfeiture of the Authentic and Uncorrupted Human .................................... 37 c) Disciplinary Power Undermines Legal Rights ...................................................... 39 V) The Need to Revitalise Human Rights ...................................................................... 40 3 Parrhesia........................................................................................................................... 43 I) Foucault’s Truths........................................................................................................... 44 II) Parrhesia .................................................................................................................... 49 a) Political Parrhesia................................................................................................. 51 b) Philosophical Parrhesia ........................................................................................ 54 c) Parrhesia in Modern Philosophy........................................................................... 56 III) Resisting Power Relations......................................................................................... 57 IV) The Ethical domain of Rights: Response to the Rejection of Disciplinary Coercion60 V) The Right of the Governed and the Insolent Child.................................................... 63 VIII 4 On the Question of Law ................................................................................................... 67 I) Revising the Rejection of Law as the Rejections of Social Contract Theories and Natural Law Theories........................................................................................................... 69 II) Towards Contemporary Theories of Legal Positivism.............................................. 72 III) H. L. A. Hart’s System of Laws ................................................................................ 73 IV) The Internal Point of View and Disciplinary Technologies ...................................... 77 V) Parrhesia Revisited .................................................................................................... 80 VI) The Legal System
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