The governmentalisation of global human rights governance

Abstract

This chapter unites the work of Oakeshott and Foucault on the nature of the relationship between teleocratic law and governance. It argues that what Foucault labelled “governmentality” is chiefly the result of purposive social action. In the modern State such social action tends to take place within the complex of law, discipline and security, producing a regulatory or managerial approach which derives from law but achieves its purposes through what Foucault called “tactics” rather than laws. That is, while law is able to declare purposes and also specify intermediary objectives on the way to achieving those ends, it is unable in itself to realise them: it cannot in itself affect change at the desired level of the population. Instead, it must give rise to more indirect means for manipulating conditions within the population so as to “conduct conduct” more subtly. While, in other words, law becomes oriented to teleocracy, it retains elements of nomos which prevent it from bringing about social change on its own. Governmentality is understood therefore as the means of circumventing this problem. The chapter ends by arguing that just as the State was “governmentalised” by imagining the State as having the purposive of improving well-being - declared in law but achieved through regulatory “tactics” - so a sphere of global human rights governance is now being “governmentalised” by imagining the international community as having the purpose of improving well-being universally. Here, human rights law declares the relevant ends, and gives rise to the deployment of regulatory “tactics” for achieving them.