Why Do Human Beings Rise Up?

Abstract

Foucault has had an enormous impact on social and legal theory. In particular, there is an overwhelming use of Foucauldian concepts in critical theories of rights. This article asks what Foucault’s work and its reception say concerning the normative legitimacy of individual rights, and what insights this discussion offers for rights theory. Though Foucauldian critique is largely historiographical and empirical rather than normative, I argue, along with scholars such as Fraser, that normative implications are rampant in Foucault, and that a normative interest can thus validly be taken. Ultimately, I argue that concepts of agency and autonomy remain present in Foucault and critical rights theory, and that this affirms both a trans-contextual basis of resistance as well as the enduring importance of rights language. I conclude that Foucauldian rights concepts and normative humanist approaches are codependent, as they both address different aspects of similar central problems. While humanism is concerned with universal reasons for resistance, Foucauldian theory offers critical tools to problematize homogenizing, exclusionary elements within universal narratives. However, the two worldviews remain codependent because they must both, in the end, affirm the legitimacy of some type of rights universalism, as legal critique otherwise robs itself of its own preconditions.