(Linklater versus Dou’s invocation of C.L.S.

against international
law?)

One way this collapse takes place: humanitarianism constructing

identity: Western/Other

Žižek and Douzinas against Marx –

Dou – rights no longer able to detach, achieve transcendence, simply mirror

order.

Žižek – the decline of the space of the political as the space of the public is
dominated by the private – identity politics.

Dou 129: “Bio-power abolishes the line of separation between universal and
particular, human and citizen, ought and is.”

Dou argument – closing of the gap between the ideal and the real –
threatening self-constitution – role of the critic to keep the distance
between ought and is

Foucault –

Costas Douzinas’ Human Rights and Empire “is an attempt to

develop a political philosophy of resistance.”1 His discussion of
human rights is underpinned by the belief that they “can reclaim
their redemptive role in the hands and imagination of those who
return them to the tradition of resistance and struggle”.2
In translating this intention to text, his chosen structure is “a
layered presentation of different strategies and approaches to
human rights”, thus he engages with the disciplinary approaches of
“intellectual and political history, speculative philosophy, ontology,
political philosophy, psychology, social and political theory, legal
doctrine and jurisprudence.” Accordingly, throughout the text
Douzinas addresses a diverse range of perspectives including, to
name a few, David Kennedy, Jacques Lacan, Hannah Arendt, Walter
Benjamin, Adam Smith, Hans Kelsen and Michel Foucault. The
generalist nature of this text is defended by Douzinas on the
grounds that “[n]o single theory can capture the multiplicity of
discourses, practices, agencies and struggles that are using the
term “human rights”.” In particular, as mentioned, Douzinas
incorporates within his theoretical perspective the ideas of Foucault:
more specifically, in relation to the operation of biopolitical power.
This is a welcome addition; considering the considerable influence
of this conception of power, its inclusion is appropriate.
Nevertheless, though Douzinas includes the operation of biopower
1
Douzinas, ix.
2
Douzinas, 293.
as an important element of his stance, I argue that further
development of this particular perspective would have usefully
supported Douzinas’ project to sustain the “redemptive role” of
human rights: that of Foucault. Thus it is not that Douzinas is
criticised on account of his “missing” entirely a useful theoretical
perspective but that, amongst the breadth of disciplines, sources
and authors addressed, further appreciation of the Foucaultian
arguments would have been not just suitable but productively
developed certain key elements of the text.

Ultimately, in this review of Human Rights and Empire, it shall be

argued that the work would have benefitted from an increased
engagement with the work of Foucault. This argument is made in
particular relation to the important efforts of Peter Fitzpatrick and
Ben Golder in putting into sharp relief the more conventional
classification of Foucault’s work as dismissing human rights or
alternatively, or additionally, that whilst his earlier work did not see
worth in human rights, he finally embraced them in what has been
characterised as a “deathbed conversion”. Douzinas, in his Human
Rights and Empire, adopts a nuanced stance towards human rights,
but has his “principle aim” has been described as the “retriev[al of]
the emancipatory power of human rights…[h]e seeks to establish
that “human rights can reclaim their redemptive role in the hands
and imagination of those who return them to the tradition of
resistance and struggle against the advice of the preachers of
moralism, suffering humanity and humanitarian philanthropy” (at
293).” His work “not only makes room for the possibility of a
renewed engagement with the radical force of human rights but
positively demands such engagement.” Ultimately, the review of
such a work has here been taken as an opportunity to put into
practice the efforts of Ben Golder, who argues that the Foucaultian
approach presents fruitful possibilities to the discussion of human
rights. Douzinas’ work, in its support of the radical potential of
human rights, is addressed in the form of its key underpinning
assumptions and it is put forth that the work would have been
strengthened by deeper engagement with Foucault, who would
appear to share with Douzinas certain fundamental views. As well as
putting forth ostensible similarities, from this evidence of a shared
stance, it is put forth that, in particular, Human Rights and Empire
could have potentially been strengthened by a more in-depth
appraisal of Foucault’s “The Subject and the Power”, and the notion
of the “techniques of the self”. In the case of the former, this
remarkable piece would have perhaps acted to complicate in a
productive way the possibilities of resistance that are repeatedly
referred to by Douzinas. Though already pointing to difficulties,
Douzinas’ approach could have further developed with reference to
this work by Foucault. The “techniques of the self” that Foucault
puts forth would perhaps have added a further sophisticated
dimension to Douzinas’ elaboration of his “cosmos”, particularly in
the Epilogue.

-The radical potential of Foucault in his overlapping with the

decidedly and acknowledged radical Douzinas. Using the book
review as a medium to put this point forth. That Foucault’s work
would have been of benefit in this context is argued in order to
support and apply the efforts of Ben Golder.

Section solely on Human Rights and Empire, perhaps quotations

from others (Žižek on the back-cover) that illustrate its reception as
radical work,

More radical: example of historical stance – compare with more

“linear” Santos?

Douzinas – like Santos to an extent – sees difficulties in the collapse

of the space of resistance? However, unlike Santos, he conceives
history not as “a timeline but a porous surface”. Douzinas reinforces
throughout the book the persistence of the “the fight for
transcendence in immanence”3, for example describing the
Antigone as “the first and still greatest symbol against unjust law”.4
At the same time, it is recognised that

Section on recent trend in Foucaultian academia which is to be

followed here – Ben Golder.

to put the statements of principle to the test and demand their

verification”. Prima facie the emancipatory possibilities of human
rights are is at least put into question by the idea that the
recognisable symbols of human rights, “the Constitutions framed
throughout the world since the French Revolutions…were the forms
that made an essentially normalizing [sic] power acceptable.”

Before addressing the Foucaultian theoretical perspectives that

could have been usefully employed by Douzinas, I will first outline
the manner in which Foucault is discussed in the book. Douzinas
employs the Foucaultian notion of biopolitics to bring forth one of
Human Rights and Empire’s main themes: the reduction of the
“distance [previously opened by human rights] between the ideal
and the real [thus] introduc[ing] the demands of justice in legal
operations”:5 the implicit reversal of the message of resistance that
speaks of“[t]he political an moral duty…to keep [this] rift open”.6
3
Douzinas 110.
4
Douzinas 17
5
Douzinas 129
6
Douzinas 110
Key to this idea is the operation of bio-power, which acts a force
behind the “move to the age of non-political politics”, as it
“abolishes the line of separation between universal and particular,
human and citizen, ought and is.” This theme, it may be added, is
not a new one. Boaventura de Sousa Santos similarly asserts that
“modern law – which is reduced to scientific, state law – has
gradually eliminated the tension between regulation and
emancipation that originally lay at its heart.”7

Douzinas begins the discussion of biopolitics with a reference to the

disciplinary power by which it was preceded. As he makes clear, this
power was based in institutions, for example prisons, factories and
schools, in which “people were subjected to continuous observation,
classification and disciplining aimed at shaping bodies and making
them economically productive and socially pliant.” From this is
made the argument that disciplinary technologies acted in a realm
that “preceded” human rights, constructing its subjects. However,
the notion of biopolitics, Douzinas makes clear, is the “further
mutation” of disciplinary power. Whereas disciplinary power
constructed the individual, biopower puts to question “the very
existence of man as a living being … [and the early modern]
sovereign’s power [to take life or let live] becomes to make life or
let die”. In this way, the deductive nature of the early modern
sovereign is replaced by biopower’s concerns of increasing
production of persons, goods and wealth: “only efficiency matters”.
In this context, the increasing extension of rights operates as a
means for the state to further control the lives of individuals,
supporting the administration of life by means of a regulatory law
that “does not represent or pursue any inherent logic, overarching
policy direction or coherent value system”; its sole concern is “the
overall control of life”. Postmodern thus simply “mimics” life, with
“[c]ontemporary rights increasingly asssum[ing] the characteristics
of society, reproducing society’s “natural” order, thus closing the
“distance … between law and the order of the world”. Thus the
biopolitical operations of power” result in “[r]ights as much as
regulatory norms abandon[ing] their normativity in order to
normalise.” This threatens “[t]he strength of human rights…[which
lies in the] back and forth movement between the abstract
statement of principles in Constitutions and Bills of Rights and their
denial in legal and political practice…[which] creates the conditions
for the excluded to put the statements of principle to the test and
demand their verification.”

Douzinas thus employs the Foucaultian perspective in order to raise

concerns in relation to the decline in the role of the law an
instrument of principle. The emancipatory potential of human rights
is severely weakened by their use as a tool of biopolitical
operations. As illustration, Douzinas uses Anne Orford’s work which
7
Boaventura de Sousa Santos 61
outlines the employment of human rights by the World Bank in
former communist states and the Third World:

“Education packages” aim to teach the “cultural, political,

national values” of market capitalism and to train in the
skills of efficiency and compliance. Reproduction, health
and sanitation, nutrition, youth development, population
control, HIV/Aids bring together international economic
institutions, NGOs and human rights activists in a huge
operation of biopolitical control of the poor.”

The biopolitical configuration thus reduces rights to means of

regulation as they “reinforce the process of normalisation by
subjecting all aspects of bodies to political control, from private an
intimate life to public life and work, in order to produce the “human
capital necessary to reproduce markets”.” In this way, Douzinas
reinforces one of his primary arguments that human rights, in
“[t]heir promotion by Western states and humanitarians” are turned
into a “palliative: …. Useful for a limited protection of individuals but
… can blunt political resistance.”

Foucault is thus used in order to support the thesis that marks the
reduction of human rights to a means of regulation. Douzinas thus
invokes the Foucaultian perspective to support the diagnostic
element of Human Rights and Empire, rather than as to support the
positive prescription for the imaginative appropriation of rights
against their deployment as means of regulation.

Before discussing specific Foucaultian approaches, in order to

support the proposition that a greater attention to Foucault’s work
would have acted to develop elements of Human Rights and empire,
observable parallels between the perspectives Douzinas and
Foucault will be put forth in order to introduce and justify the more
substantive discussion of specific Foucaultian arguments that could
have added nuance to certain points made in Human Rights and
Empire.

Furthermore, Douzinas makes clear that

Iraq – what joins us with Iraqis – 295

Foucault – letter – Golder – 373

From these clear parallels in approach, these shared premises are

presented as a justification for the subsequent discussion of key
Foucaultian works that Douzinas may have mentioned to the benefit
of Human Rights and Empire.
Second point (for after discussion of obvious similarities)

As well as the striking similarities that can be observed when one

compares Douzinas’ with Foucault’s approach to human rights, the
idea of resistance that permeates Human Rights and Empire could
perhaps have been further developed with a view to the ideas put
forth in Foucaults’ “The Subject and the Power”. Ending his
discussion of biopolitics, Douzinas presents arguments “On freedom
in a biopolitical world”.8 Douzinas proposes that, as understood by
modernity, “[f]reedom is precisely to choose to go against the
nature of need, desire or custom…the capacity to distance [one]self
from social codes (the “second nature”) and start ex nihilo time and
again”. This freedom is central to the criterion “humanity”, the
“function” of which “lies not in a philosophical essence but in its
non-essence, in the endless process of redefinition”.9 Using this
notion of freedom, Douzinas observes that freedom has been
reworked by late capitalism which now treats as central “freedom to
choose”.10 Freedom is now an “appearance”, compared to its
modern form. Douzinas characterises this new “freedom to choose”
not as being able to act against the compulsion of nature and
environment, but instead it is a “freedom” of “forced choices”, that
“you are free when you choose what is already in your nature … to
choose (freely in principle by inescapably in practice) what has
conditioned you.” The modern free individual has been transformed
into a man that chooses and as such, the open idea of “freedom
to…” is substituted with a “choice between…” One is faced with a
more limited realm within which to act. Central today is the right to
choose, but the options to which this refers are “different types of
fake happiness.” To be free to be able to “shop in the same shops
everywhere in the world”, even if one does not necessarily have the
material means to do so in practice. This limited freedom, Douzinas
concludes pessimistically, is the freedom “to follow nature or the
“second nature” of social conformity. This determination of choice
acts in an obviously inimical way to the possibility of resistance.
“Freedom”, in its modern sense, contains an apparent possibility for
rejection of what is given, an ability to act against conformity. To be
free is now “to follow slavishly the limited set of choices offered to
us.”

It is at this point that the Foucaultian perspective would appear to

offer a “bridge” between Douzinas’ diagnosis of late capitalism and
his prescriptive message of resistance and radicalism. Foucault’s
insights from this piece would allow a more complicated treatment
of this “freedom to choose”. Most importantly it would import into
the discussion the possibility for resistance, thus promoting what
Douzinas describes as the ultimate end of Human Rights and
8
Douzinas 127
9
Douzinas 290
10
Emphasis added. Douzinas 128.
Empire. Most interesting in this context is the manner in which
Foucault approaches “freedom” in relation to power. Power is to be
distinguished from, though the two may coexist, objective
“capacity”, “which is exerted over things and gives the ability to
modify, use, consume, or destroy them – a power which stems from
aptitudes directly inherent in the body or relayed by external
instruments.” If an individual forces by physical means another to
perform an action, this “physical relationship of constraint” is not a
“relationship of power” in the Foucaultian sense; “slavery is not a
power relationship when man is in chains.” Furthermore, power is
not to be thought of something which is “exists[s] in a concentrated
or diffused form.” Power in this sense is relational; it does not exist
abstracted from its exercise. A power relationship is defined by “a
mode of action which does not directly and immediately on others.
Instead it acts upon their actions: an action upon an action, on
existing actions or on those which may arise in the present or in the
future.” Accordingly, the “other” must be “recognized [sic] and
maintained throughout as a person who acts; and that, faced with a
relationship of power, a whole field of responses, reactions, results,
and possible inventions may open up.” With power conceived as
such, freedom is at the core of power relations, “the possibility of
recalcitrance” prevents power relationships from becoming
relationships of “physical determination”. As “there is no
relationship without the means of escape of or possible flight”,
Foucault observes that there is a potential for resistance and
struggle.

The Foucaultian idea of “the intransigence of freedom” proffers a

perspective from which Douzinas may have been able to add
nuance to his argument of the limitations of “freedom” in the sense
in which it has been employed by late capitalism. Whereas Douzinas
identifies freedom as existing when actors are able to detach from
“need, desire or custom”, Foucault would appear to judge freedom
as existing when relationships are not defined by objective, physical
capacities. As such, though admittedly a more limited freedom, the
“freedom of choice” that Douzinas observes now to be ubiquitous,
the “dose of compulsion” that attends this “freedom” arguably does
not reduce the individuals to the extent that are no longer
“recognized [sic] and maintained throughout as [persons] who
[act]”.11 Following the Foucaultian argument, individuals would
therefore be faced with “points of insubordination”. Considering
Douzinas’ explicit radical intentions, this aspect of Foucaultian
thought would at least appear very relevant and further, would
perhaps present a theoretical basis for maintaining the possibility of
11
These instances can be distinguished from the reduction of an
individual to “inhuman”, which Douzinas discusses in relation, for
example, to torture practices by American officials. Such
relationships are physically determined, and thus would not
constitute “power relationships” in the Foucaultian sense.
resistance whilst simultaneously putting forth a realistic diagnosis of
the current order. As Ben Golder observes in relation to Foucault’s
work, “power designates a relational field of actions, and of actions
upon other actions. Resistance emerges within the space of this
field but is not attributable to an undetermined subject who can
step outside the relations of power.”12 As such, this would allow
Douzinas to maintain both that the modern notion freedom has
been reduced to the weak “freedom of choice”, but not necessarily
renounce his radical intentions.

Douzinas puts forth the operation of biopower in a diagnostic

manner, whilst also continuing to prescribe the imaginative
appropriation of human rights in order to retrieve their
“redemptive” potential. Further engagement with Foucault’s work
would have been useful in uniting these elements. In particular, the
aspect of Foucaultian thought to which Douzinas alludes during The
End of Human Rights:

Self-realisation is not merely liberation from external

constraints and impositions, as Foucault has shown, and does
not lead to the attainment of some “essential” identity. Self-
realisation is a process of shaping the self, an aesthetic poesis
and care, which can only by carried out in relations with others
and within a community.

Here Douzinas would appear to make reference to the later work of

Foucault in which Foucault concedes that he may have “insisted too
much on the technology of domination and power…[and that he is]
more and more interested in the interaction between oneself and
others”.13 What is of interest is thus “how the subject constitutes
himself in an active fashion through practices of the self, [though]
these practices are nevertheless not something invented by the
individual. They are models that he finds in his culture and are
proposed, suggested, imposed on him by his culture, his society and
is social group.”14

Though he raises the work of Foucault as primarily acting to

problematize Additionally, Douzinas’ advocacy of a mode the mode
of being he refers to as “”being-to or being-toward [être à];
[this]means rapport, relation, address, sending, donation,

12
Ben Golder, 369
13
Michel Foucault, “Technologies of the Self”, in Essential Works of
Foucault, Vol. 1: Ethics, p. 225, referenced in Ben Golder and Peter
Fitzpatrick, Foucault’s Law (Oxon, 2009), p. 111.
14
Michel Foucault, “The Ethics of the Concern of the Self as a
Practice of Freedom”, p. 291, referenced in Golder and Fitzpatrick,
Foucault’s Law, p. 114.
presentation…of entities or existents to each other”.15 As he makes
he clear, this is a conception of the “cosmos” that entails
“community [but] not [in the sense of] the common belonging of
communitarianism, common essence given by history, tradition,
the spirit of the nation. Cosmos is being together with one another,
ourselves as others, being selves through otherness….The
cosmopolis is the coming together of multiple and singular worlds,
each exposed to each other in the sharing of the cosmos.”

Would benefit from discussion of “techniques of the self” – Judith

Butler quotation – the self is created with others: Ben Golder’s gloss
that the Foucauldian subject s “the unfinished result of a political
negotiation with and through others”

The End of Human Rights: p. 319 – does mention this aspect of

Foucault’s work and its usefulness to his ideas- is at least implicit.

-Use example of “hypomnemeta”: constructing one’s self through

the “already said”

Douzinas includes the Foucaultian idea of the “biopolitical”.

However, the text Human Rights and Empire may have been
strengthened by further exploration into recent trends of
Foucaultian studies. Arguments central to Douzinas’ approach as
presented in this work find parallels in certain aspects of Foucaultian
thought. Douzinas argues that”[f]or legal humanism, humanity has
a rigid and static essence”16 but, as he further makes clear,
“humanity’s function lies not in a philosophical essence but in its
non-essence, in the endless process of redefinition”.17 Such “rigid”
determination, however, is of the nature of “[l]aw (and rights)
[which links] language with things or beings; it nominates what
exists and condemns the rest to invisibility and marginal
existence”.18 Instead, Douzinas advocates the embrace of “the
longing for what does not exist according to the law; for what
confronts past catastrophes and incorporates the promise of the
future.”19 It is for this reason that human rights must be
“uncoupled” from their role as tools of “Western states and
humanitarians [who turn] them into a palliative:…useful for a limited
protection of individuals but…can blunt political resistance.”20
Foucault similarly warned that “[o]ne must guard against
reintroducing a hegemonic thought on the pretext of presenting a
15
Douzinas 294, referencing Jean-Luc Nancy, The Sense of the
World (Jeffrey Librett, trans.) (Minneapolis, MN, University of
Minnesota Press, 1997), 92.
16
Douzinas 7
17
Douzinas 290
18
Douzinas 298
19
Douzinas 298
20
Douzinas 293
human rights theory or policy.”21 He argues that “a certain ideal or
model or humanity…this idea of man has become normative, self-
evident and is supposed to be universal….we can’t say that freedom
[which Douzinas also describes as, together with humanity, “[t]he
other candidate for the position of cardinal virtue”22] or human
rights has to be limited at certain frontiers….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

Foucaultian ethics, as a theoretical perspective would acted as an

appropriate and interesting means of elaboration of certain
arguments with Human Rights and Empire. Firstly, Douzinas’
engagement with the idea of the constitution of the self would
perhaps have found in Foucault’s ethical “self” a further means of
development. Furthermore, the idea of rights in Focuault’s work on
ethics may have also provided a further useful perspective.

This “self-creation” is one of the foundational ideas that recurs in

Human Rights and Empire: that “my being – always a being
together – is on the move, created and recreated in the infinite
number of encounters with the unique world of other singular
beings. This is the ontology of the cosmopolitanism to come”.23
Within this ontology, “self” is the result of endless encounters with
others; “identity is being constantly [re]created through the
recognition of others involved in actual or silent conversations with
me.”24 Thus, “each singular being is a cosmos, the point of
intertwining and condensation of past events and stories, people
and encounters, fantasies, desires and dreams, a universe of unique
meanings and values … existence, our only essence. … The axiom
of cosmopolitan justice: respect the singularity of the other.” The
pertinence of Foucault’s work in this context is indeed recognised in
Douzinas’ earlier work The End of Human Rights, where he makes
the similar argument that “[s]elf-realisation is not merely liberation
from external constraints and impositions, as Foucault has shown,
and does not lead to the attainment of some “essential” identity.
Self-realisation is a process of shaping the self, an aesthetic poesis
and care, which can only be carried out in relations with others and
within a community.”25 Key insights from Peter Fitzpatrick and Ben
Golder’s reading of Foucault would appear to offer a perspective
that supports and develops that of Douzinas is Human Rights and
Empire; its inclusion would have perhaps added further
sophistication to the work. In particular, what Fitzpatrick and Golder
21
Ben Golder 373 (In PDF: 374 (21 of 22))
22
Douzinas 187
23
Douzinas 57.
24
Douzinas 43.
25
Douzinas, The End, p. 319.
call “the later Foucaultian subject” could perhaps act as an
elaboration of the subject Douzinas begins to construct in his
cosmopolitan ontology:

a subject never sure of itself, an uneasy and relational subject

constantly posed in exteriority. As Foucault repeatedly stresses,
the ethical subject he envisions is not one which resides in
comfortable enclosure and satisfaction with its true sense of
self but rather is turned outward to others in denial of any
innate or fixed interiority.26

This subject is drawn from Foucaultian ethics, which he treats as

“the kind of relationship you ought to have with yourself, rapport à
soi, …and which determines how the individual is supposed to
constitute himself as a moral subject of his own actions.”27 This
notion of selfhood is characterised by its taking place in common
with others: in “models that he finds in his culture and [that] are
proposed, suggested, imposed on him by his culture, his society,
and his social group.”28 Furthermore, this self-constitution may
attempt to make appear a “self” but this is a self “which, happily,
one never attains.”29 As such, this notion of self-constitution is akin
to an endless “becoming”. This idea of the “becoming” subject
would appear to have the potential to expand the nature of the
“cosmopolitanism to come” which Douzinas ultimately promotes in
Human Rights and Empire.

Within Foucaulitan ethics, an idea of law and human rights is

included which could perhaps provide a means of further
engagement with Douzinas’ concern that “[f]ully positivised rights
and legalised desire extinguish the self-creating potential of human
rights.”30 This is an observation which echoes Foucault’s warning
that “[o]ne must guard against reintroducing a hegemonic thought
on the pretext of presenting a human rights theory or policy”.31
Douzinas puts forth that the cosmopolitan ontology of a “being
common” which does not rest upon any “essence” but that of
“existence itself” is confronted by the opposing force of the
traditional image of the law. “a key aim of politics and of law is to fix
meanings and to close identities by making the contingent,
historical links between signifiers and signifieds permanent and
necessary.”32 In contrast, a Foucaultian conception of rights parallels
26
Golder and Fitzpatrick 119-120.
27
PF n.73, pp. 112-113.
28
PF n.82, p. 114.
29
PF n.107, p. 118.
30
Douzinas 50.
31
Michel Foucault, “Useless to Revolt?”, in Essential Works of
Foucalt, Vol. 3: Power, pp. 453, referenced in Golder and Fitzpatrick,
Foucault’s Law, p. 124.
32
Douzinas 57
the “becoming” subject and would appear to be constructed in line
with “resistance and struggle”, as advocated by Douzinas.
Foucault’s rights include, for example, the ““liberty of expression”
and the “liberty to manifest” one’s sexual choice”33 and “a new
relational right … [which] is the right to gain recognition in an
institutional sense for the relations of one individual to another
individual”.34 These rights are constructed as “not limited by any
determinant content”. In this way, an idea of rights is extended
which would not create the restraints which Douzinas illustrates as
constraining creation of self and extension and transformation of
relationships with others. Foucaultian ethics, in this sense, may
have provided a support, or at least interesting further perspective
on the relationship between human rights and the “cosmopolitanism
to come”.

33
PF, n.138, p. 123.
34
PF n.139, p.123