And yet on closer reflection matters become even more curious, because as it turns out some of these very same anti-humanist thinkers themselves turn out to be human rights advocates. In 1948, the year of the Universal Declaration’s drafting, the French philosopher Michel Foucault was finishing a philosophy degree at the Sorbonne. Unrecognizably, he sported a full head of hair. He had yet to develop the iconoclastic anti-humanism of texts like The Order of Things, whose metaphoric concluding passages welcomed the imminent dissipation of “man” and Discipline and Punish, whose historical argument refuted the idea that the modern West had become more humane and civilized in its forms of punishment.
There can be few more recognizably anti-humanist thinkers than Foucault, who relentlessly assailed Enlightenment notions of human essence.
In the post-War intellectual climate of French structuralism and post-structuralism there can be few more recognizably anti-humanist thinkers than Foucault, who relentlessly assailed Enlightenment notions of human essence, agency, reason and intentionality in his writings and speeches. (Perhaps the best-known example of the latter is the televised debate between Foucault and Noam Chomksy on Dutch television in 1971, where a skivvy-clad Foucault clearly unnerved the American philosopher with his unrepentantly Nietzschean theses on human nature and justice; “I’d never met anyone who was so totally amoral,” a horrified Chomsky later observed of their meeting).
And yet this Nietzschean amoralist of the mid-twentieth century himself comes to endorse the twentieth-century’s master moral universalist discourse: human rights. In the late 1970s Foucault advocates openly for a range of rights—the rights of prisoners and of refugees, of gays and lesbians, the right to suicide, and even human rights themselves. Does this mean he gave up on the project of critiquing human subjectivity and, instead, took it for granted as a moral and universal value? Many people have argued precisely this, suggesting that he becomes a late and devoted convert to the liberal cause of human rights and put away the childish critical things of his recent past. But Foucault’s own pronouncements on the matter make this a little hard to credit: “I try to consider human rights in their historical reality,” he wrote on one, revealing, occasion, “while not admitting that there is a human nature.”
As far as Foucault was concerned, it was possible to be a supporter of human rights whilst contesting any notion of a universal human essence. One could have human rights without humanism. So it was in response to this puzzle of what exactly a human rights without humanism might look like that I went back to re-read Foucault’s works of the 1970s. There I found a subtle, challenging and deeply interesting body of work in which Foucault struggles to defend and articulate a political conception of rights and of human rights that is open, contingent and revisable—and that does not rely for its moral or normative legitimacy on the idea of a universal human essence beyond power or politics. His is a tactical and strategic usage of rights that draws on the available resources of the law and liberal institutions in order to creatively and radically contest them.
In so doing, Foucault adopts a concept of human rights that does not start with a pre-given idea of “the human” whose innate dignity (or reason, or interests) demands universal protection but rather sees the meaning and value of “humanity” as something that is very much open and that shifts in response to (among other things) ongoing and unpredictable political struggles over the jurisdiction of human rights. Political struggles over what human rights include and what they exclude themselves define the content of “the human” in whose name these rights are claimed.
From the perspective of many rights theorists this insistence of Foucault’s on the contingency of “the human” of human rights deprives them of a solid normative grounding. But for Foucault it is clear that the political promise of human rights would be utterly exhausted if we ever arrived at a definitive and enduring statement of humanity and its rights. “[W]e can’t say that freedom or human rights has to be limited at certain frontiers,” Foucault warns in a late interview. It is precisely this claim to limit the meaning of humanity and of human rights that concerns him: “What I am afraid of about humanism is that it presents a certain form of our ethics as a universal model for any kind of freedom. I think that there are more secrets, more possible freedoms, and more inventions in our future than we can imagine in humanism as it is dogmatically represented on every side of the political rainbow.” It is in this creative and political spirit, in this aspiration to invention rather than dogmatism, that Foucault claims to speak of human rights without finally knowing what humanism means. [Read More]