Foucault and the Limits of Identity Rights

Abstract

Michel Foucault considers the categorisation of subjectivity in identity categories to be normative and exclusionary, but at the same time, he does not reject identity as politically irrelevant, preferring instead to focus on the contingency of identities and how they are historically and culturally produced. Law, and human rights law in particular, has provided weight and density to social understandings of identity and as a consequence, has been the subject of Foucauldian inspired critique for its role in re-enforcing exclusionary social categories. More recent Foucauldian perspectives argue that rights claims can be made in a way that acts to neither re-enforce nor completely refuse existing networks of power, and that they have the potential to radically subvert existing social categories, and offer new futures to the excluded and the oppressed. Drawing on Foucault’s lectures at Louvain and Rio which link the process of legal truth-seeking to questions of subjectivity and identity, this chapter offers an alternative Foucauldian perspective focused specifically on identity rights. At Louvain, Foucault articulates the theoretical limitations of legal process in radically disrupting existing social truths, particularly in relation to human subjectivity and identity. These lectures suggest that whilst rights-based identity claims might address specific dominations affecting individual litigants and the discourse their claims generate might shift social attitudes, they cannot, in themselves, produce radical social transformations.