After Foucault - SAGE Journals - Sage Publications

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eignty', the term Michel Foucault uses for what he claims to be the traditional theme of modern political philosophy. Some attempts to derive a theory of right from ...

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Roger Mourad

After Foucault A new form of right

Abstract The purpose of this paper is to explore the possibility of a new form of right that is both antidisciplinarian and liberated from ‘sovereignty’, the term Michel Foucault uses for what he claims to be the traditional theme of modern political philosophy. Some attempts to derive a theory of right from Foucault’s critique have been made. However, by their own admission they do not yield a coherent and adequate theory, and other work has demonstrated the major problems inherent in Foucault’s critique that render such a project problematic. This paper takes a different approach by revising the philosophical foundations of modern democracy with the goal of developing a new theory of right that addresses the problems that Foucault identified. To provide a theoretical context for this exploration, Foucault’s key concepts of disciplinary technologies, power, the construction and maintenance of human subjects, and the role of the human body in human subjection are briefly reviewed. The main analysis will focus on the ideas of three political theorists whose respective works represent the core of ‘sovereignty’, and who are indisputably basic to any student of Western political theory, namely Hobbes, Locke and Rousseau. The aim of this analysis is not to provide another critique of their virtues and shortcomings. Instead, the work of these thinkers is used in a pragmatic way, to elicit a new form of right that could serve as a counter to disciplinary power. Key words civil right · Enlightenment · Foucault · natural right · political philosophy · political theory · postmodern critique · social justice

If one wants to look for a nondisciplinary form of power, or rather, to struggle against disciplines and disciplinary power, it is not toward the ancient right of sovereignty that one should turn, but towards the possibility of a new form of right, one which must indeed be antidisciplinarian, but at the same time liberated from the principle of sovereignty.1

PHILOSOPHY & SOCIAL CRITICISM • vol 29 no 4 • pp. 451–481 Copyright © 2003 SAGE Publications (London, Thousand Oaks, CA and New Delhi) www.sagepublications.com [0191-4537(200307)29:4;451–481;034070]

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452 Philosophy & Social Criticism 29 (4) In 1976, after the bulk of his work had been completed, Michel Foucault delivered two lectures at the Collège de France in which he sought to explain his diverse critical undertakings as parts of a sustained series of related themes. 2 In the course of his explanation, Foucault distinguished between the concerns of traditional Western political philosophy and his sociohistorical critique of modern society. He concluded the lectures by suggesting the possibility of a new form of right that would overcome the weaknesses of traditional conceptions in light of his critique, especially the subjection of individuals to the effects of ‘disciplinary technologies’. The purpose of this paper is to explore the possibility of a new form of right that is both antidisciplinarian and liberated from ‘sovereignty’, the term Foucault uses for what he claims to be the traditional theme of modern political philosophy. To provide a theoretical context for this exploration, I will briefly review several of Foucault’s key concepts that are most relevant to this study. They include disciplinary technologies, power, the construction and maintenance of human subjects, and the role of the human body in human subjection. The main analysis will focus on the ideas of three political theorists whose work represents the core of ‘sovereignty’, and who are indisputably basic to any student of Western political theory, namely Thomas Hobbes, John Locke and JeanJacques Rousseau.3 The aim of this analysis is not to provide another critique of their virtues and shortcomings. Instead, the work of these thinkers will be used in a pragmatic way, to elicit a new form of right that could serve as a counter to disciplinary power. To this end, I will analyze the most fundamental concepts pertaining to human nature and behavior behind their respective theories of civil association and government. A common shortcoming will be identified in their thought in order to derive by implication an alternative approach to civil right that expands upon traditional rights. I will then begin to elaborate the nature of this right by showing how it addresses the effects of disciplinary power. My aim is not to present a comprehensive theory but rather to introduce a new conception for consideration and debate. While the themes of disciplinary technologies, power/knowledge, human-as-subject and the role of the human body in the operation of disciplinary technologies have been explored and analyzed by many scholars, the idea of right in the wake of Foucault’s critique has not been a prominent theme. This is not surprising, since his critique seems to render the idea of right problematic, at least as right has been conceived and developed in modernity. The idea of individual right is closely associated with sovereignty; according to Foucault, the former arises historically and conceptually with the latter. Individual right does not stand against oppression but is in fact consistent with it. Some attempts to derive a theory of right from Foucault’s critique

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453 Mourad: After Foucault have been made.4 However, by their own admission they do not yield a coherent and adequate theory, and other work has demonstrated the major problems inherent in Foucault’s critique that render such a project problematic. All that can be reasonably inferred from Foucault’s work and his own commentary is a freedom to act and think in ways that defy normalizing institutions and cultural practices.5 Any positive program seems to be untenable under Foucault because all modern forms from Locke to Marx are grounded on essentialist ideas about human beings that are at best illusory, and at worst complicit in the machinations of disciplinary technologies. The theoretical and practical impoverishment of this position has left Foucault open to criticism.6 Despite these shortcomings, Foucault’s critique of modern society has been the subject of considerable scholarship. Much of this scholarship finds his critique persuasive to a significant extent. Although some scholars have wrestled with the idea of right under Foucault, at the time of this writing there has not been an effort to revisit the philosophical foundations of modern democracy after his critique with the goal of developing a new theory of right based on an alternative interpretation of those foundations. I will assume that Foucault’s characterization of modern society does reveal and explain with a reasonable degree of persuasiveness the discrepancies between the de jure promise of individual freedom and equality embodied in founding constitutions and political theory in the West and the de facto alienation, anomie and oppression that are apparent in contemporary social life. However, I will also proceed on the basis that Foucault’s critique does not itself provide the basis for a new theory of right.

Disciplines, subjects, and bodies Foucault argues that the rise of the scientific study of the human being in modernity is associated with the appearance of what he calls ‘disciplinary technologies’, or simply ‘disciplines’. They are practical mechanisms for establishing norms that produce and control the modern individual subject and that became ‘general formulas of domination’ in modernity.7 Foucault claims that disciplinary technologies became particularly significant in the 19th century as organized means for the purpose of making human beings productive, cooperative participants in society: individuals whose behavior ‘consolidated the system and contributed to its overall functioning’.8 The creation and production of knowledge about the human subject is a key element in the operation of disciplines. A condition of the emergence of the human sciences was ‘the great nineteenth-century effort in discipline and normalisation’.9 One of Foucault’s most controversial

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454 Philosophy & Social Criticism 29 (4) claims is that notions such as freedom and liberation are complicit in totalization rather than responses to it.10 While the example of prisons is his most extensive illustration of ‘sites’ where disciplinary technologies and the ‘power-knowledge’ of the human sciences are focused, Foucault details a number of other examples, including factories, schools, hospitals, and the military. In his early work, Foucault approached the study of human beings as the strategy by which the human subject is constituted by ‘dividing practices’. For example, he claims that the description of people as mentally or physically ill and their ‘internment’ in asylums or hospitals are means by which the modern human subject seeks to cleanse itself of ‘the other’ within itself.11 In later work, he examines the emergence of discourse regarding sexuality and the self in the constitution and control of human subjects.12 In all of these cases, the role of knowledge in the human sciences is identified as a key element in the proliferation of disciplinary technologies in the 19th century.13 Foucault emphasizes the significance of the human body as the target of disciplinary technology.14 The human body, as the ultimate local site on which power is concentrated, is a prominent element in Foucault’s notion of disciplinary technologies and his critique of the human subject. It is the object by which the human being is trained to be a ‘docile, productive subject’: The historical moment of the disciplines was the moment when an art of the human body was born, which was directed not only at the growth of its skills, nor at the intensification of its subjection, but at the formation of a relation that in the mechanism itself makes it more obedient as it becomes more useful, and conversely.15

Disciplines proceed by directing various techniques upon the object of the human body; in this process, human subjects are invested with individuality. In Discipline and Punish, these techniques involve four basic dimensions. They are the efficient distribution and circulation of individuals in ‘cells, places, and ranks’ according to the precise analysis of space; the control of activities; the organization of time in profitable durations; and the creation of productive forces ‘superior to the sum of elementary forces that composed it’.16 According to Foucault, the 19th-century proliferation of disciplinary technologies was made possible by the emergence of sciences that take the individual human being as their subject. In linking disciplinary technologies to the advancement of knowledge about the human being, Foucault makes a sharp distinction between the emergence and spread of disciplinary power, on one hand, and the modern history of individual rights, on the other.17 The former are practical and concrete procedures, legitimated and advanced by the pursuit of knowledge,

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455 Mourad: After Foucault whereas the latter involve codified rules of right that govern the de jure relationship between civil authority and citizens. For Foucault, analysis and critique that emphasize the latter are beside the point, at least as social justice is concerned.18 He argues that the real playing-field for critical analysis is the concrete activities and effects of disciplinary technologies. ‘We must escape from the limited field of juridical sovereignty and State institutions, and instead base our analysis of power on the study of the techniques and tactics of domination’.19 However, Foucault acknowledges that the two realms are related. Rules of right and disciplinary power are both integral to the execution of power in modern society.20 Rules of right have a subsidiary role as ‘agents’ of the domination that actually occurs in modern societies. ‘Right should be viewed, I believe, not in terms of a legitimacy to be established, but in terms of the methods of subjugation that it instigates’.21 Foucault also alleges that the pervasiveness and effectiveness of disciplinary power are more relevant than sovereign power in defining the modern individual. Foucault claims that the human sciences and disciplinary technologies created and continue to maintain a certain kind of individual. This individual is a ‘docile, productive body’ that conforms to social norms and thereby contributes toward optimizing the performance of social systems. People who do not conform are banished to prisons, hospitals and asylums, or they are marginalized in other ways. Appeal to the rules of right as they have evolved and exist at present is futile. Instead, Foucault suggests a new form of right, one that is liberated from the received tradition of right and that is also ‘antidisciplinarian’.22 The problem that Foucault’s critique of right leaves and that I will pursue in this paper can be summarized as follows. Sovereign right is the predominant framework of contemporary rights theory, positive law, and ordinary political consciousness in the West. It is the basis for how we think about oppression. In contrast, the predominant nature of oppression in the West consists of the exertion of forces of domination that occur through many different overlapping and intersecting pathways. Although attribution of these forces to original or single sources is not possible in any universal sense, the pursuit and application of knowledge about human beings have a particularly prominent role in social oppression. The modern idea of the autonomous, creative, acquisitive individual, which is historically related to the idea of sovereign right (as a capacity that can be bargained for and protected on the basis that it is natural), has been complicit in social oppression. The human body, as the material manifestation of individual autonomy, is the object upon which, and the vehicle through which, power is exerted and domination is enacted. Given this reality, the ideology of sovereignty

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456 Philosophy & Social Criticism 29 (4) is an anachronism that is at least inadequate to critique, challenge and overcome domination, and that, at worst, acts to buttress domination. A new form of right that is satisfactory must invent a language about individuals that is capable of challenging this new form of domination. As stated above, efforts to derive a satisfactory form of individual right from Foucault’s critique have not been very successful. These attempts have focused mainly on seeking the basis for right from what may suggest itself within Foucault’s work. Yet Foucault himself did not attempt to develop a new form of right and there is no reason to believe that a notion of right was germane to his work. The analysis that I will undertake in this paper will pursue a different strategy on the basis that Foucault’s critique of sovereignty warrants a fresh examination of the theoretical foundations of sovereignty. My goal is not to provide another critique of those foundations but to ‘mine’ them for an alternative interpretation of the problem of justice and freedom that could serve as the basis for a new form of legal right, one that could counter the variegated and complex exercise of power as described by Foucault. It is very conceivable that the ‘success’ of disciplinary technologies would not have been possible but for the foundation of individual prerogative established through the Enlightenment political upheavals that democratized sovereignty.23 Those upheavals were influenced by the theoretical debates in which Hobbes, Locke and Rousseau were major contributors at different times.24 The modern tradition of free inquiry that protects and sustains the development of the human sciences is itself supported by the modern tradition of political freedom, especially freedom of expression.25 Further, the modern idea that the individual is an independent entity by nature would seem to support the idea that individuals can be studied as individuals. Thus, the possibility of the human sciences assumes that people are capable of acting freely. This is not to say that political freedom was sufficient for the human sciences, but it would seem to be an important condition for them. Similarly, it is arguable that the disciplinary technologies could not have succeeded or even occurred as mechanisms of power without the previous establishment of individual right. The tradition of rights theory, which for the modern era began in the 12th century, has always been fundamentally concerned with the general question of individual prerogative to do something or to act upon something.26 Both the execution of disciplinary technologies and the ‘productivity’ of its subjects are marked by a practical orientation to initiate and sustain cooperative action. The concept of the social contract purports to create the basis for human justice by transferring power of governance to the people as individual members of a civil state. The power here is the sovereign power that Foucault claims is illusory because it does not account for the kinds

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457 Mourad: After Foucault of disciplinary power that became pervasive in Western society subsequent to the formation of democracy, and which functions as a device that hides and justifies disciplinary power. Yet one significant weakness of Foucault’s critique, which has been exposed by a number of leading political theorists, is that he does not offer a distinct idea of the individual to counter the modernist ideal of the rational, autonomous individual.27 If the social contract is a bad deal such that the latter idea of the rational, autonomous individual is a sham, then one ought to look behind it to examine how the human being is construed before it has executed the contract. How is this entity conceived and constituted? On what basis is it provided with sovereign rights? What alternative path may be created for a new form of right from those foundations in the wake of Foucault’s critique?28 I will focus in part on the conceptual apparatus that Hobbes, Locke, Rousseau, and many other early modernists utilized, the so-called ‘state of nature’. The term refers to a conception of human nature and behavior, and the consequent social condition that would ensue in the absence of any formal, organized government and rule of law.29 However, answers to the questions posed above cannot be made adequately on an analysis of their political works alone. For Hobbes, the analysis also requires an investigation of his metaphysics in addition to his theory of the state. A sufficient analysis of Rousseau necessitates an understanding of his theory of education as well as his political philosophy. In the case of Locke, one must examine his epistemology and his educational theory along with his political treatises.

Theoretical bases for civilization in Hobbes, Locke and Rousseau Hobbes’s state of nature is derived from his position on the fundamental nature of reality.30 For Hobbes, like many natural philosophers of the 17th century, reality is essentially understood according to the mathematical and physical concepts that gained wide currency among intellectuals of the period. More specifically, reality is fundamentally understood as bodies extended in space, and the effects that are produced within and between bodies by their motions and the motions of their parts.31 Scientifically, for Hobbes there is one universal cause of all things, and that is motion.32 To gain knowledge of something, one must understand it in terms of general truths, which are its basic motions. One starts with universal concepts for the most basic things in nature, not directly observed with the senses, since they have access to only particular things,33 but arrived at through reason, and then one deduces the effects caused by the inherent motions of these things.34

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458 Philosophy & Social Criticism 29 (4) Human nature is governed by ‘endeavor’ or ‘passions’, which are motions of desire or aversion from other objects.35 All of the human being’s activity, including its intellectual activity, is caused by its passions, which are internal motions that originate in the experience of objects through the senses.36 The passions are in a state of constant motion, because desire and aversion are never-ending. Since the human being is, like all bodies in space, in a state of constant motion, it is bound to continue its motion unless another body of greater force impedes it.37 Human happiness or contentment cannot be realized through the attainment of a stable inner satisfaction. There is ‘a continual progress of the desire, from one object to another. . . . The cause whereof is, that the object of man’s desire, is not to enjoy once only, and for one instant of time, but to assure forever, the way of his future desire’.38 Since ‘the constitution of a man’s body is in continual mutation, it is impossible that all the same things should always cause in him the same appetites, and aversions’.39 Thus, the human being is in a state of constant flux, such that passions are affected differently within an individual at different times. Further, the difference in abilities to satisfy the passions across individuals is not significant enough to ensure any individual that he or she has unfettered access to the objects of desire.40 Therefore, an individual in a state of nature, in the absence of civil law and society, generally behaves in ‘a perpetuall and restless pursuit of Power after power, that ceaseth onely in Death . . . because he cannot assure the power and means to live well which he hath present, without the acquisition of more’.41 From this equality of ability, ariseth equality of hope in the attaining of our Ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their End . . . Endeavour to destroy, or subdue one another.42

However, Hobbes deduces that beneath this behavior lies a more fundamental desire, namely, an existence of moderate contentment, free from the worry of imminent harm by others in the competitive pursuit of common objects. Hobbes concludes that ‘Desire of Ease, and sensuall Delight, disposeth men to obey a common Power: Because by such Desires, a man doth abandon the protection might be hoped from his own industry, and labour’.43 According to Hobbes, then, every person’s desire for contentment free from the threat of interference to contentment by others will lead people to form a civil state that ensures the security of the ‘means to live well’ by their mutual agreement to obey a commonly recognized power.44 From this foundation, Hobbes proceeds to justify a civil state ruled by a single sovereign authority, to whom absolute power is acceded voluntarily by its inhabitants.

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459 Mourad: After Foucault Leviathan, the name of this state, is thus the blueprint for a state of civility, created and accepted by right reason.45 Locke advanced a conception of the state of nature that departs from the Hobbesian version. In his Second Treatise of Government, Locke asserts that properly conceived, the state of nature is a state of reason.46 ‘Men living together according to reason, without a common Superior on earth, with Authority to judge between them, is properly the state of nature’.47 The state of nature is a state of perfect freedom, such that people can do whatever they desire ‘within the bounds of the Law of Nature’.48 Under Locke, the fundamental law of nature is that since people are naturally independent of each other in thought and action, and basically equal in capacities (in that they are of the same species), there is no natural subordination that would justify the destruction or servitude of one human by another. Therefore, no one may harm another person ‘in his Life, Health, Liberty, or Possessions’.49 This law is a law of reason, in that this truth is apparent to anyone willing to use his or her reasoning faculty correctly.50 For Locke, a state of war is a condition in which arbitrary force is threatened or used by one person or group against another.51 The aim of the just civil state is to preserve the rights that human beings have naturally, by virtue of having the capacity to reason. The just state does this by protecting individuals from anyone who would use force arbitrarily to deprive anyone else of their life, liberty, or possessions. In the absence of civil authority, the state of nature is bound to collapse into a state of war. Further, the creation of a single authority that has absolute power results, by Locke’s definition, in a state of war. Since the sovereign Leviathan is such an authority, the Hobbesian civil state is a state of war. What is needed, according to Locke, is a civil government that preserves the rights that humans have by virtue of being naturally reasonable beings, which are, fundamentally, one’s right not to be killed by another (right of life), one’s right to follow one’s will if it does not violate civil law (right of liberty), and one’s right to dominion over, and enjoyment of, property appropriated by one’s own labor (right of property).52 This government is fundamentally composed of an elected legislature, established by consent, whose basic duty is to preserve and to enlarge these basic civil rights.53 On what basis do life, liberty and property attain the special status of a ‘law of nature’ under Locke? Hobbes grounded Leviathan on a distinctive conception of human nature, arrived at via rigorous deduction, that emphasizes the dynamic role of passions. How does Locke support his assertions scientifically, and what role does human reason play in moving humanity to a just civil state?54 To answer these questions, one must examine Locke’s most

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460 Philosophy & Social Criticism 29 (4) significant work, An Essay Concerning Human Understanding.55 In that work, perhaps the most important justification for empirical knowledge during its rise to intellectual prominence in the Enlightenment period, Locke explains his ideas of freedom, liberty and the pursuit of property in scientific terms.56 Locke’s epistemology starts with the basic claim that the content of human thought, which he calls ‘Ideas’, originates mainly in direct sense experience of external objects.57 Before the mind can know, it passively receives ‘Impressions’ caused by objects through the senses.58 Locke starts his analysis of these concepts by defining human freedom as the extent that a person can think and move according to, and to the extent of, that person’s preference.59 Freedom is the degree to which one is able to link one’s thought and action to ‘preference’. Preference, which Locke also calls ‘volition’, is a power of the individual to choose among alternative courses of thought and action.60 He defines liberty as the power to perform an action according to one’s preference.61 What is the formative basis for preference? And to this I answer, the motive, for continuing in the same State or Action, is only the present satisfaction in it; the Motive to change, is always some uneasiness: nothing setting us upon the change of State, or upon any new Action, but some uneasiness. This is the great motive that works on the Mind to put it upon Action, which . . . we shall call determining of the Will . . . 62

The decision, then, to change a present state of thought or action originates in uneasiness, or ‘Desire’, the discomfort ‘of the Mind for want of some absent good’.63 This condition of uneasiness is not, in Locke’s view, merely an occasional experience. Ease is rare, for ‘a constant succession of uneasinesses . . . take the will in their turns’.64 When the human manages to extricate itself from one particular instance of uneasiness by gaining satisfaction, another desire is nearly always imminent. Now one’s exercise of liberty, which partly determines the extent that one can be said to be free, is subject to a basic problem. Since ‘uneasinesses’ flow continually through human experience, if one tried to pursue every object of desire, one would be unable to maintain a coherent link between preference and action. In this case, one could not act consciously and deliberately, and would not be free. Therefore, uneasiness must be rationally managed. Fortunately, the human being has a power to suspend an immediate response to uneasiness, to rationally analyze and evaluate the particular object(s) of desire that may be involved, and to determine the best course of action (or inaction). This inherent ability is the key to controlling unwise or impractical responses to uneasiness, and to being free.65 Locke calls this power ‘will’.66 This

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461 Mourad: After Foucault capacity is the ‘source of all liberty’, since the end of freedom is that we may attain desired objects.67 Human freedom is, then, ultimately a function of the degree that a person can (1) restrain a continual desire to react indiscriminately to uneasiness, until the best course of action is determined according to reason, and (2) carry out the action so chosen.68 The just state is a state whose fundamental purpose is to support the pursuit of desired objects, by protecting each individual’s natural right to life, liberty and property acquired, created and improved by one’s own effort, and otherwise, staying out of the way.69 For Locke, it is the role of education to teach the individual how to use its capacity to reason and to exert its will to choose the right actions.70 Locke emphasizes that the pursuit of objects of desire would result in uncivilized behavior if not controlled by one’s skill at making correct decisions and by one’s ability to endure the hardship of uneasiness that accompanies unsatisfied desire. ‘It seems plain to me, that the Principle of all Vertue and Excellency lies in a Power of denying ourselves the Satisfaction of our own Desires, where Reason does not authorize them’.71 For Locke, in order for the individual to overcome the uncivilized aspects of human nature, he or she must be created by education into a subject of the civil state. Education is the instrument by which the human is taught to master its body and mind through disciplined application of reason to manage desire and uneasiness, and to contribute to the maintenance of the just civil order, which he views as coincident with the realization of individual freedom. Rousseau proposed a fundamentally different state of nature than did Hobbes and Locke. In Rousseau’s state of nature, human beings are not dominated by violent passions; nor are they driven to form a civil state out of fear, or to protect their possessions. I hear it constantly repeated that, in such a state, the strong would oppress the weak; but what here is meant by oppression? Some, it is said, would violently domineer over others. . . . This indeed is exactly what I observe to be the case among us; but I do not see how it can be inferred of men in a state of nature, who could not easily be brought to conceive what we mean by dominion and servitude. . . . If, for instance, I am driven from one tree, I can go to the next . . .72

Rousseau claims that human propensities toward aggressive and selfish behavior have developed across many centuries of social organization and consciousness, from what were originally simple instincts that the human being shared with other animals in the state of nature.73 Further, he alleges that the concept of ownership of property has a central role in the genesis of these social phenomena, and reached its most extreme, destructive forms in modern bourgeois society.74

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462 Philosophy & Social Criticism 29 (4) What does Rousseau propose as a just alternative, and how does he characterize the transition to it from the state of nature? Rousseau’s most salient exposition on this question is in The Social Contract.75 Like Hobbes and Locke, Rousseau grounds the voluntary movement from the state of nature to the civil state in self-interest. However, this change is not conditioned by a natural ‘state of war’.76 Properly conceived, the need for the civil state under Rousseau occurs upon recognition that individuals can survive and live better as equal members of an organized group, and this requires a government and civil rule. Before a sovereign power can be created voluntarily by people, individuals must agree to be a people.77 Since the only reliable means of self-preservation in the state of nature is the individual’s natural freedom to do whatever it desires and is capable of doing, it would not be rational to suppose that the individual would give up this freedom and risk its personal welfare unless it would gain in the transaction. Therefore, the right formula for a just civil association must not result in a diminution of freedom. By ‘social contract’, the individual contributes its natural freedom toward the creation of a greater form of freedom, a freedom of the people, expressed by Rousseau’s notion of the ‘general will’.78 This sovereign will of the people advances the common interest among all individuals as equals over particular interests.79 Thereby, the individual gains a civil freedom that is better than the atomistic freedom that it had in the state of nature.80 According to Rousseau, however, civil freedom is not simply a name for the common interest. It is something for the individual to achieve through an education that is grounded in the natural development of the individual.81 Like Hobbes and Locke, Rousseau places great significance on the role of passions in his conception of human nature.82 Passions are closely linked to freedom, because ‘passions are the principal instruments of our preservation’.83 The fundamental human passion is ‘self-love’, a ‘primitive, innate passion, which is anterior to every other, and of which all others are in a sense only modifications’.84 Self-love is defined by Rousseau as ‘a natural sentiment which leads every animal to look to its own preservation, and which, guided in man by reason and modified by compassion, creates humanity and virtue’.85 The danger that Rousseau seeks to avoid is the devolution of selflove into the artificial individual that Rousseau claims to be the product of 18th-century Europe. Rousseau characterizes this person as selfish, vain, dependent on the opinion and customs of others, deceitful, and unscrupulous.86 What makes these ills possible is imagination, ‘which extends for us the measure of the possible’.87 In contrast, the person educated according to nature understands through experience that it is dependent on things.88 An individual becomes independent when the

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463 Mourad: After Foucault person understands ‘the power to will’, and exercises the ‘power of judgment’ based on intelligence and the truth of things.89 However, for Rousseau knowledge of things is not sufficient for one to live according to nature. One must develop a code of conduct and live by it. This code is founded not on reason but on conscience.90 One learns that one needs the companionship of others. Similarly, based on the experience of pain, one can learn to be compassionate toward the plight of others. In this way, the individual rises above the state of nature, and becomes a moral being. This is ‘moral liberty, which alone makes him truly master of himself; for the mere impulse of appetite is slavery, while obedience to a law which we prescribe for ourselves is liberty’.91

The state of nature and a new form of right For Hobbes, human behavior is compelled by ever-changing desires for, and aversions to, objects, and these forces confound the prospect of a stable inner satisfaction. Similarly, Locke describes ‘uneasiness’ as a virtual constant in human experience, and satisfaction as transitory because desire is unrelenting. For Rousseau, the problem of civility is the problem of avoiding the degeneration of the fundamental passion of self-love into a vulgar selfishness. Thus, each of these influential philosophers grounds his respective formulation of the just civil state on the idea that human beings are subject to a condition of desire and need. For these thinkers, this condition is a problem for the civil state because it makes people a threat of harm to each other. In their constructions of civil association, government, and individual ethics, an overriding concern is to keep people from hurting each other. The subject of the just civil state is essentially a problem because people are inevitably drawn toward interpersonal conflict over material resources. The solution to this problem is not simple because their other basic concern is to preserve freedom of thought and action. This definition of the basic problem sets the parameters of their proposed solutions. Each theorist aims to solve the problem by proposing a civil state that resolves the social conflict and harmonizes the relationship between individual and group interests. For Hobbes, it is resolved by a singular sovereign power that protects individuals from harming each other. For Locke, resolution comes through training the individual to control one’s behavior by habit, and a government that protects one’s right to safely pursue the material satisfaction of desire. For Rousseau, the individual must learn to develop and abide by a moral code from self-love that is not selfish, and social conflict is resolved by acceding to the general will. All three theorists start with the individual,

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464 Philosophy & Social Criticism 29 (4) yet quickly move to the position that the problem of the individual in the civil state is a problem between individuals (and between groups). Further, in each case, the tacit assumption is that the problem is properly cast in terms of social conflict. Hobbes’s conception of human nature left the problem of inevitable conflict between individuals that required an all-powerful sovereign to enforce the peace. Locke and Rousseau grounded their ideas of the civil state and the social contract on a similar basis. However, they find a way to overcome the problem of conflict, and it is not simply to give prominence to the human being’s capacity to be reasonable and ethical. For Locke and Rousseau, the idea of the individual includes the idea that the human being must qualify to be recognized as an individual worthy of rights, that is, a free citizen. It is this idea that makes the prospect of individual freedom workable for them. The means of qualification is an elaborate process of intellectual, moral and physical development via comprehensive training regimens described in Locke’s Some Thoughts Concerning Education and Rousseau’s Emile. Although there are major differences between these works, in both cases individual development is guided according to a plan by one who has attained civil autonomy. In these works one can find the precursor to the application of the human sciences in the form of disciplinary technologies whose rise in the 19th century is the subject of Foucault’s work. Clearly, the individual of civility per Locke and Rousseau is well qualified to become Foucault’s docile, productive individual subject of normalization. When Hobbes, Locke and Rousseau moved from the basic position that passions are powerful factors in human thought and action that must be addressed in political theory, to the narrower idea that human beings are naturally harmful toward each other, they severely limited the range of options for their ensuing analyses and conclusions. Further, since the conflict arises due to roughly equal abilities and a consuming desire to acquire resources, it validates the idea that human nature is predominantly acquisitive. From this starting-point, it is a short step to the idea that the civil state must be grounded in principles that are framed around this alleged essence, including the development of civil law. This is the conceptual apparatus that yielded the oppressive conditions that Karl Marx confronted in the 19th-century industrial state, and reconceived to be a pivotal stage in a dialectical process around the key activity of production. There are two important implications that state-of-nature theory has for a new form of right. The passions are presented by the state-ofnature theorists as basic aspects of human nature that have a chronic and pervasive influence on social behavior. Yet the passions are not presented as social phenomena. Rather, they are considered to be

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465 Mourad: After Foucault manifestations of the individual human being, as desires or urges for satisfaction or gain. They are a problem because satisfaction is not imminently and finally available amid the flux of practical experience. Although the state-of-nature theorists explicate the problem as social, the passions are a problem of the individual, apart from whether there are other human beings in the same general condition in its vicinity. The need or want for satisfaction that cannot be readily fulfilled is an adverse condition that the individual is subject to, and that poses ever-present problems for its well-being. That is the first important implication of state-of-nature theory for a new form of right. The second important implication is the link that it makes between formulation of the just civil state and this condition, such that the civil state serves as a remedy for a plight faced by individual human beings. For the state of nature theorists this plight is limited to the problem of the passions. It leads them to the idea that the human being is a body compelled to act freely and independently by its inherent nature. Under Hobbes, this condition is a social danger that necessitates an all-powerful sovereign authority. For Locke, human beings are generally rational enough to be their own sovereign and responsible for self-rule, and representative government must ensure the individual’s right to self-rule.92 In Rousseau, individual sovereigns must be brought together as equal parts of the ‘general will’, but individual management of the passions is also important. In both Locke and Rousseau, the individual’s reasoning ability and ethical conscience must be developed to bring about the citizen anticipated by the social contract. Yet there are many other kinds of conditions that the individual is confronted with besides passions that cause adversity. The early modern identification of the ‘state of nature’ with ‘human nature’, and its reduction of the problem of the passions to the idea that humans are a threat to each another, are unsatisfactory for the same reason. The tradition firmly established in practice by the Enlightenment that is concerned mainly with individual rights does not adequately consider human beings in relation to the complex, diverse and unpredictable environment that they are immersed in, both inside and outside civilization, and involving factors both internal and external to the human body. The modern state of nature, and Marx’s critique of its consequences, can be resituated as particular instances of a much broader condition, namely, the idea that the human being is subject to conditions that may harm or pose threats to it. These conditions include both inner threats (e.g., the ‘passions’) and external threats (e.g., threat to each other) that may cause the individual to suffer in some way. This broader conception of the problem of the individual that leads to the need for a civil state could be termed ‘contention’. Under this conception, the human

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466 Philosophy & Social Criticism 29 (4) being is thrust into a world largely adverse to it and much more powerful. The word contention is used to emphasize that the individual is regularly subject to conditions that place demands on it and that require an action or its suppression. In a ‘state of nature’, this situation can be attributed to ‘forces of nature’, meaning phenomena that do not originate with human action. In a civilized society, natural adversity cannot be assumed because the human being is immersed in socially created conditions. Further, in technologically advanced, complex, dynamic societies, the demands placed on individuals cannot be readily attributed to specific social actors to a degree that is incontrovertible. The sources of adversity are, in effect, ‘forces of society’. ‘Contention’ is meant to shift the focus from the potential and achievements of the human mind to the fragility of the human being as a situated entity. Foucault’s focus on the human body is important in this regard for the following reason. The body can be understood as a condition that renders the individual inescapably vulnerable to harm and suffering. This condition is particularly acute for the human being in that it is capable of being aware of the idea of being free from harm and suffering. Specifically, the human being can be construed for this purpose as (1) confined to a body that places limits on its capacities and subjects it to pain and suffering, (2) capable of imagining a condition in which it is free from pain, suffering and limitation, and (3) yet aware that it cannot be immune from suffering.93 The human body is not only a phenomenon that is not simply known as an object of inquiry. It is a vehicle by which the human entity acts and is acted upon. If it did not have this capacity and this vulnerability, the human body would not be the strategic object by which human beings have been, according to Foucault, organized and coerced into becoming ‘free’ subjects. This idea shifts the concept of the individual from the modern one (naturally or authentically free) to the idea that the individual is an entity that is vulnerable to harm. Under this concept, the paramount reason for the civil state is to help the individual cope with adversity. Recognition of this need is not grounded in any definition of ‘human nature’. It is undeniably a subjective judgment, at least from the standpoint that it does not purport to be an objectively demonstrable truthclaim. However, I claim that scholars and non-scholars alike carry at least tacit judgments about human nature all the time. Further, these judgments have profound effects on research and action. Contention is grounded in an understanding of the human being as an entity that, despite its powers and capacities for improvement, can be harmed physically and psychologically by conditions of existence that constitute its mistreatment, and that, in general, this mistreatment of individuals by social forces cannot be justified in a state of civility.94

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467 Mourad: After Foucault The problem of power and a new form of right Although Foucault associates the idea of the authentic individual with the vagaries of disciplinary technologies, he has an authentic concern for the well-being of the individual human.95 He is concerned with the totalization of people by the manipulation and complicity of intellectuals in the production of knowledge, and he consistently breaks his object of critique down to the individual. Thus, it is not the idea of the individual per se but the historical subjection of the individual to a coercive notion of individuality that Foucault seeks to overturn. Similarly, power in itself is not a ‘bad thing’ according to Foucault. It is a bad thing when it has the effect of defining limits for how individuals conceive of themselves and act. Foucault’s position may appear to conjure up standard notions of individual freedom and equality. That is why some commentators have placed Foucault within a liberal modernist framework.96 This interpretation is not difficult to make because it is a familiar vantage point for most scholars and Foucault can be understood in the thematic context of domination and oppression. However, there is little substantive evidence from Foucault’s work and interviews that he would agree with it. The problem with this interpretation is twofold. First, Foucault’s work does not lend itself to a robust emancipatory alternative. It describes a social predicament, the machinations of ‘power after power’, without suggesting a substantive way out of it. Second, comprehensive social theories such as Marxian-based critique are viewed by Foucault as being at least inaccurate, at worst dangerous depictions of society that would subjugate individuals because they may have practical consequences that may be no less oppressive than bourgeois democracy. Foucault’s critique of power dispenses with the traditional oppressor–oppressed dichotomy. Like Marx, Foucault looks outside the formal juridical stratum to the world of action. However, unlike capital, which centers on relationships of production, Foucault’s idea of power expresses an exercise of domination and coercion of people upon and through people that is not unidirectional or even bilateral but instead multi-dimensional. Foucaultian power in this general sense denotes a phenomenon that operates throughout contemporary society. For this reason, Foucaultian power confounds the assignation of cause to a distinct individual or group. Nevertheless, for Foucault power is essentially understood as a social problem, albeit one without a comprehensive socio-theoretic solution. It is no surprise that even sympathetic commentators are baffled by the problem of power, and choose either to rehabilitate Foucault to a neo-Marxian position or ultimately to acknowledge that his work is problematic in terms of having any clear emancipatory potential.

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468 Philosophy & Social Criticism 29 (4) Perhaps one has to find a way that includes but is not limited to the language of the social, even if knowledge is inherently a social construction. I want to suggest that Foucault does not extricate himself from the problem of power for the very reason that he limits the nature of knowledge to its social construction. In thinking this way, Foucault remains stuck in the language that he seeks to overcome. Here is where the state-of-nature concept in the broadly construed sense that I introduced above is handy. For example, even if the idea of the body is a social construct, it can be pursued in a way that is not limited by the frame of reference that is social. It can be an idea of body and nature that is not confined to challenges that respond to oppressive conditions that are already created, and thus limited by, the forces and languages of those who created and reproduce them. If one assumes Foucault’s critique, critical intellect loses the idea of the individual with its attendant features of authenticity and autonomy. However, critical intellect gains something as well. Foucault’s critique opens up theoretical space for an idea of the individual that is not only capable of purposive activity upon its environment (thus capable of acts of power) but also capable of being adversely affected by its environment (thus capable of being harmed by acts of power). The problem of the individual human being vis-à-vis power can be understood as a problem of the capacity of the human body to be adversely affected. If it did not have this capacity, there would be no problem of power. This position opens up critique because it makes it possible to expand what it means to be an object of power. The value of the state-of-nature concept in this regard is that it provides a means of thinking that includes but is not limited to the social. From this vantage point, one can understand Foucault as signaling that the Lockean-Rousseauean idea, that a civilized society is one that develops human capacities, fails to overcome the Hobbesian state of war. The difference between Hobbes’s ‘war of all against all’ and Foucault’s ‘power is everywhere’ is the intercession of the idea of human development brought out in the training manuals that are Some Thoughts Concerning Education and Emile. These texts can be understood as precursors to the organized pursuit and application of human sciences that became prominent in the 19th century and that have become a part of the global-commercial-media complex at the dawn of the 21st century. So from this perspective, Foucault is not about a remedy so much as the testament of one who bears witness to a state of human affairs – a civil war of all against all – such that civil society is a new kind of state of nature, an uncivilized condition that masquerades as civilized, thus a ‘civil’ state of nature. The idea that the human being is an entity to be developed is the basis for the organized pursuit of knowledge about humans. This idea

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469 Mourad: After Foucault of human development operates through disciplinary technologies in the midst of this war that ensued with the extension of sovereignty to the common individual. The extension of sovereignty to the common individual requires that the individual be developed to follow a social order or be marginalized, though this is always a tension within and across individuals to varying degrees. Its applications are a prominent means of imposing and maintaining an idea of the problem of law and freedom as a problem of individual human development. Under this perspective, the emergence of disciplinary power calls for a new form of individual right, a civil right of protection, which could be termed the right of civility. This right is a new form because it is not strictly about rights between people or about interference of people with the individual’s rights to gain objects of desire and to express ideas (i.e. rights of sovereignty). Rather, it is a right between the individual and the environment (broadly construed). It is further distinguished as being concerned with protecting the individual rather than with giving the individual the prerogative to act by itself without support. The two categories are not mutually exclusive and can be complementary. The question of where to place limits on individual freedoms of action and expression is a subset of the problem of civility, but only one among many. From this vantage point, the ramifications of Foucaultian powerknowledge can be brought out more fully than Foucault himself was able to do. The basic logic of the civil state of nature is a state of mind. I mean by this that institutional practices and civil law are conceived and carried out without regard for tangible, psychic and material conditions of human fragility. In effect, the social order expects the human being to have an unlimited ability to think and act with reason sufficient to cope with increasingly complex situations that require individual intellect to adequately recognize, evaluate and prioritize alternative courses of action, consider their consequences, and make good decisions. The idea of a rational mind is, among other things, the idea of immateriality – of reasons and justification, of calculation and explanation – of being conditioned to give accounts for concrete states of affairs that protect human thought from the prospect of human suffering. For the most part, the increasing complexity of civil society, and the multiplicity of factors that intellect is expected to deal with in different situations, are not directly questioned. The modern idea, beginning with Descartes and given a practical ground through Lockean empiricism, that anyone has the capacity to be rational, leads quickly to the idea that everyone is personally responsible for being wholly rational as that word is understood according to prevailing social rules and mores. The idea that the fundamental issue of the just civil state is to find

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470 Philosophy & Social Criticism 29 (4) the right balance between preserving individual freedom and constraining individual threat has served as a tacit foundation within which political debate and judicial decision occur. The responsibility for dealing with suffering and limitation lies almost solely with the individual, not the state. Suffering is viewed largely as something that is good for the individual to endure, and limitation is not acknowledged, unless the individual is deemed disadvantaged in some way. How could the right of civility serve as a counter to disciplinary power? Disciplinary power is a pervasive phenomenon that imposes normalization throughout the universe of social relations via highly differentiated, diffuse, localized chains of action and discourse. It cannot be strictly or ultimately identified with a single set of repetitive relations (although this does not mean that repetitive relations are insignificant). Domination is the consequence of multiple actions by multiple parties acting apart as well as in concert, and having different as well as consistent interests, strategies and goals. The effects on individuals and groups are not singular but a complex accumulation that may collide and change as well as reinforce and reproduce. These effects are not limited to constraints on individual freedoms and opportunities, and, in fact, presume ‘free’ subjects as understood in terms of sovereign rights. Thus, the effects of disciplinary power cannot be overcome by relying on or expanding individual freedoms or opportunities to act. These kinds of rights place the onus on the individual, or groups of individuals, to gain power relative to others. Further, their extension in civil law usually requires a demonstration of intent to limit action by identifiable individuals or groups. The diffuseness, diversity and dynamic nature of disciplinary power require that a relevant form of right is one that addresses the adverse environmental effects of disciplinary power. This means that it must protect the individual from harm without the necessity of identifying adverse effects with intent or even action of other specific individuals or groups. Traditional individual rights, the rights that were created in the context of sovereign power and that are protected by law, are not adequate to counter this environmental condition for several reasons. First, a showing that these rights have been violated usually requires identification of the sources or causes of the violation, and this form of oppression defies identification by its discontinuous, erratic character. Traditional rights were created in response to sovereign power exercised in a stable social environment where the meaning and nature of social roles and relationships were not regularly subject to multiple or changing interpretations. Second, violations of traditional rights usually require a showing of intent to violate. Even if the source of a violation is identifiable, intent

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471 Mourad: After Foucault is often required. Intent cannot be assigned to a specific party or parties when the effects of disciplinary power are the consequence of multiple actions that are not coordinated. Third, traditional individual rights are rights to initiate action and gain resources. They give people the power to act or do things, such as express opinions and own property, but they do not insure that action will result in desired goals or situations. They only make them possible. They do not protect individuals from existing social conditions. Even in the case of ‘civil rights’, the right that is created is a right of equal access, requiring individuals to take action to institute.97 This right to act is consistent with a conception of human nature that the human sciences and disciplinary technologies appear to assume and exploit in order to gain knowledge and control. Foucault emphasizes that the idea of the free individual subject is integral to the human sciences and the disciplines.98 The idea that the free actor (capable of self-directed action) is essential helped to distinguish it as an object of positivistic scientific investigation in the 19th century. It is a sociocultural phenomenon and a value judgment that prioritizes one characteristic or capacity of the human being. The right of civility introduced here also prioritizes a capacity of the human being, in this case its capacity to suffer, to recognize, and to act responsibly toward suffering. This capacity is given prominence via an alternative interpretation inferred from state-of-nature theory. This alternative is that the human being is subject to an adverse environment rather than a free actor that is dangerous to its peers. Disciplinary power creates, maintains and extends an environment that is adverse to this entity. It is a fragile entity that deserves to be provided for and protected by being provided rights of civility to protect it from the environmental effects of disciplinary power, regardless of intent or cause. This conception of the human being is not advanced as an essence that transcends local context. Instead, it is a practical and moral conception that is intended to counter disciplinary power, just as the idea that human beings are naturally free can now be understood as a strategy that was used in early modernity as a counter to sovereign power. What would freedom mean from this position? Freedom as the basis for challenges to disciplinary oppression is not relevant. In fact, it is often counter-strategic because ‘freedom’ is relied upon to insulate and justify actions that contribute to the exercise of disciplinary power. Free inquiry has a very specific utility in this regard. As Foucault emphasizes, the idea of truth is related in practice to the pursuit of power, particularly in advanced societies. This assertion can be further elaborated in terms of a particular tacit and institutionalized belief that precedes the practice of free inquiry. In general, for an inquiry to be justified, it must seek to explain, or improve upon, phenomena that are assumed to exist before

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472 Philosophy & Social Criticism 29 (4) and independent of an inquiry, and to persist essentially unchanged by the inquiry. However, this is only one form of potentially compelling inquiry. Many other kinds of relations to ‘reality’ can be involved.99 We need to broaden the terms of debate from rights of action to rights of protection. I hope that this new form of right presents the beginnings of a language of reality, nature, and body that is outside of the language of both sovereignty and disciplinary power in order to overcome the destructive effects that they have on the basic well-being of formally ‘free’ people. Institutional Research, Washtenaw College, Ann Arbor, Michigan, USA

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Notes 1 Michel Foucault, ‘Two Lectures’, in Power/Knowledge, ed. Colin Gordon (New York: Random House, 1980), p. 108. Also in Critique and Power: Recasting the Foucault/Habermas Debate, ed. Michael Kelly (Cambridge, MA: MIT Press, 1994), p. 45. 2 Surveiller et punir: naissance de la prison, the book that develops Foucault’s most widely known, though often misunderstood concept of power, was published in 1975. The English translation is Discipline and Punish: The Birth of the Prison, trans. A. Sheridan (New York: Random House, 1979). The first volume of his last series of books, Histoire de la sexualité, was published in 1976. It contains Foucault’s clearest articulation of the concept of power. The History of Sexuality, Volume 1, An Introduction, trans. R. Hurley (New York: Random House, 1978), pp. 92–7. 3 For a recent analysis of the first modern theorist to develop a systematic formulation of sovereignty, Jean Bodin, who did not use the state-of-nature concept, see Alain de Benoist, ‘What is Sovereignty?’, Telos 116 (Summer 1999): 99–118. 4 See, for instance, Tom Keenan, ‘The “Paradox” of Knowledge and Power: Reading Foucault on a Bias’, Political Theory 15 (1987): 5–37; Brent Pickett, ‘Foucaultian Rights?’, The Social Science Journal 37 (2000): 403–21; Leslie Paul Thiele, ‘The Agony of Politics: The Nietzschean Roots of Foucault’s Thought’, American Political Science Review 84 (1990): 907–25. 5 See the essays throughout Part II of Critique and Power, ed. Kelly. 6 See, for instance, Nancy Fraser, ‘Foucault on Modern Power: Empirical Insights and Normative Confusions’, Praxis International 1 (1981): 272–87; Kelly, Part II, Critique and Power; Derek Kerr, ‘Beheading the King and Enthroning the Market: A Critique of Foucaultian Governmentality’, Science & Society 63 (1999): 173–202; Gad Horowitz, ‘The Foucaultian Impasse: No Sex, No Self, No Revolution’, Political Theory 15 (1987):

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61–80; Stephen White, ‘Foucault’s Challenge to Critical Theory’, American Political Science Review 80 (1986): 419–32. Foucault, Discipline and Punish, p. 137. Foucault, ‘Two Lectures’, pp. 101–2. Foucault, ‘Body/Power’, in Power/Knowledge, p. 61. ‘Two Lectures’, pp. 95–8, 103–4; Michel Foucault (1977), ‘Revolutionary Action: Until Now’, in Language, Counter-Memory, Practice: Selected Essays and Interviews, trans. D. Bouchard and S. Simon. Ithaca, NY: Cornell University Press. pp. 221–2. Michel Foucault, Madness and Civilization: A History of Insanity in the Age of Reason, trans. R. Howard (New York: Random House, 1965). Michel Foucault, The Birth of the Clinic: An Archaeology of Medical Perception, trans. A. Sheridan (New York: Random House, 1975). Foucault, The History of Sexuality, Vol. 1; Volume 2, The Use of Pleasure, trans. R. Hurley (New York: Random House, 1985); Volume 3, The Care of the Self, trans. R. Hurley (New York: Random House, 1986). A prominent example is the formation and growth of psychology: ‘It was the emergence . . . of a new type of the supervision – both knowledge and power – over individuals who resisted disciplinary normalization . . . the supervision of normality was firmly encased in a medicine or a psychiatry that provided it with a sort of “scientificity” . . . marked a new era’. Discipline and Punish, p. 296. For good discussions of this concept, see Judith Butler, ‘Foucault and the Paradox of Bodily Inscriptions’, Journal of Philosophy 86 (November 1989): 601–7 and Ladelle McWhorter, ‘Culture or Nature? The Function of Term “Body” in the Work of Michel Foucault’, Journal of Philosophy 86 (Nov. 1989): 608–14. Discipline and Punish, pp. 137–8. ibid., pp. 141–69. ‘Disciplines are the bearers . . . not the juridical rule deriving from sovereignty, but a natural rule, a norm. The code they come to define is not that of law but that of normalisation. Their reference is to a theoretical horizon which of necessity has nothing in common with the edifice of right. It is human science which constitutes their domain, and clinical knowledge their jurisprudence . . . the process which has really rendered the discourse of the human sciences possible is the juxtaposition, the encounter between two lines of approach, two mechanisms, two absolutely heterogeneous types of discourse: on the one hand there is the re-organisation of right that invests sovereignty, and on the other, the mechanics of the coercive forces whose exercise takes a disciplinary form’. ‘Two Lectures’, in Power/Knowledge, pp. 106–7. ‘Modern society, then, from the nineteenth century up to our own day, has been characterized on the one hand, by a legislation, a discourse, an organization based on public right, whose principle of articulation is the social body and the delegative status of each citizen; and on the other hand, by a closely linked grid of disciplinary coercions whose purpose is in fact to assure the cohesion of this same social body’. Power/Knowledge, p. 106. For two views on Foucault’s position regarding de jure law, see W. T.

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Murphy, The Oldest Social Science? Configurations of Law and Modernity (New York: Oxford University Press, 1997) and Carole Smith, ‘The Sovereign State v. Foucault: Law and Disciplinary Power’, The Sociological Review 48 (May 2000): 283–306. ‘Two Lectures’, in Power/Knowledge, p. 102. ibid., p. 107. ibid., p. 96. ibid., p. 108. Foucault’s account of the human sciences and their role in this process emphasizes the exclusionary and divisionary activities upon individuals who are not ‘normal’. It situates this phenomenon as an indication of what is happening to those who are normalized but this theme is not developed by Foucault. Nor does he develop a new form of right. For a variety of views on the historical accuracy of disciplinary technology as an explanatory framework for understanding the rise of the modern state in the specific cases of the Soviet Union, France and Germany, see Laura Engelstein (1993), ‘Combined Underdevelopment: Discipline and Law in Imperial and Soviet Russia’, American Historical Review 98(2): 338–53; Rudy Koshar, ‘Foucault and Social History: Comments on “Combined Underdevelopment” ’: 354–63; Jan Goldstein, ‘Framing Discipline with Law: Problems and Promises of the Liberal State’, 364–75; Laura Engelstein, ‘Reply’: 376–81. The considerable significance of Locke and Rousseau on American and French Enlightenment thought is described in general terms in Peter Gay, The Enlightenment: An Interpretation, Vol. I, The Rise of Modern Paganism (New York: Norton, 1966), Vol. II, The Science of Freedom (New York: Norton, 1969) and in Inventing Human Science: Eighteenth-Century Domains, ed. C. Fox, R. Porter and R. Wokler (Los Angeles: University of California Press, 1995). A focused discussion is J. G. A. Pocock, ‘Negative and Positive Aspects of Locke’s Place in Eighteenth-Century Thought’, in John Locke and Immanuel Kant: Historical Reception and Contemporary Relevance, ed. Martyn P. Thompson (Berlin: Duncker & Humblot, 1991), pp. 45–61. An analysis of Locke’s influence on the French philosophes is Hans Aarsleff, ‘Locke’s Influence’, in The Cambridge Companion to Locke, ed. Vere Chappell (Cambridge: Cambridge University Press, 1994), pp. 252–89. For a recent interpretation of Locke’s influence on American republicanism, see Michael Zuckert, Natural Rights and the New Republicanism (Princeton, NJ: Princeton University Press, 1994). For an in-depth discussion of the literature on the influence of Locke on American revolutionary thought, see Scott Douglas Gerber, To Secure These Rights: the Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1995), Chs 1, 2. For the influence of Locke on the Glorious Revolution of 1688, see Richard Ashcraft, Revolutionary Politics and Locke’s Two Treatises of Government (Princeton, NJ: Princeton University Press, 1986); John Dunn, ‘The Politics of Locke in England and America in the Eighteenth Century’, in John Locke: Problems and Perspectives, ed. John W. Yolton (Cambridge: Cambridge University Press, 1969), pp. 45–80; Peter Laslett, ‘The English Revolution and Locke’s Two Treatises of Government’, Cambridge Historical Journal 12 (1956):

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40–55. Notable works on Rousseau’s influence on French revolutionary thought include Carol Blum, Rousseau and the Republic of Virtue (Ithaca, NY: Cornell University Press, 1986) and James Miller, Rousseau: Dreamer of Democracy (New Haven, CT: Yale University Press, 1984). Two collections of essays that explore this relation are A. Bartlett Giamatti, The University and the Public Interest (New York: Atheneum, 1981) and A. Bartlett Giamatti, A Free and Ordered Space: The Real World of the University (New York: W. W. Norton, 1988). For a detailed intellectual history of early modern rights theory, see Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979); for a more comprehensive though less rigorous history of natural law and rights that leads up to the late 20th century, see Julius Stone, Human Law and Human Justice (Stanford, CA: Stanford University Press, 1965). Critique and Power: Recasting the Foucault/Habermas Debate, ed. Michael Kelly (Cambridge, MA: MIT Press, 1994), Part II; Barry Hindess, Discourses of Power: From Hobbes to Foucault (Oxford: Blackwell, 1996). Foucault thought of history, or, more specifically, ‘genealogy’, as a means of changing the present by changing the past. Michel Foucault, ‘Interview with Lucette Finas’, in Michel Foucault: Power, Truth, Strategy, ed. M. Morris and P. Patton (Sydney: Feral, 1979), p. 75. The approach that I take in this paper is (1) to show how a historically influential idea that purports to have foundational status is an unreasonably limiting conception that leads to less-than-desirable consequences; (2) to ‘decenter’ the idea by relocating it as only a particular instance of a broader theme; (3) to show how this broader theme leads to more desirable consequences; and (4) to develop that broader theme. Works that illuminate the state-of-nature concept as it was understood and used by philosophers of the period include Tuck, Natural Rights Theories; Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Oxford University Press, 1991); C. Fox, R. Porter and R. Wokler (eds) Inventing Human Science: Eighteenth-Century Domains (Los Angeles: University of California Press, 1995), Chs 4, 11; and Arthur O. Lovejoy, Reflections on Human Nature (Baltimore, MD: Johns Hopkins University Press, 1961), pp. 1–65. Classic works that offer conflicting interpretations are C. B. McPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (London: Oxford University Press, 1964) and Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953). The significance of the state-of-nature concept as a heuristic device is discussed in Thomas Spragens, Understanding Political Theory (New York: St Martin’s, 1976). The relationship between Hobbes’s natural philosophy and his political philosophy has long been the subject of scholarly debate. Sorell argues that they are alike only in the general sense that in each case, knowledge is made possible by the cognitive capacity of the intellect, ‘namely the capacity for reasoning’. Tom Sorell, Hobbes (London: Routledge & Kegan Paul, 1986), p. 26. In contrast, Watkins holds that by locating ‘roundabout connections’ between the two branches of Hobbes’s thought, he has shown that Hobbes’s

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476 Philosophy & Social Criticism 29 (4) political theory follows logically from, and is organically related as the solution to, political problems that are implications of what Watkins calls Hobbes’s ‘system of philosophical ideas’, i.e. his metaphysics and cosmology. J. W. N. Watkins, Hobbes’s System of Ideas: A Study in the Political Significance of Political Theories (London: Hutchinson, 1965). Herbert asserts that it is the concept of conatus or endeavor, the tendency to oppose or resist, that provides the locus of unification for Hobbes’s natural and civil philosophies. Gary Herbert, Thomas Hobbes: the Unity of Scientific and Moral Wisdom (Vancouver: University of British Columbia Press, 1989). Strauss argues that the theoretical basis and origin of Hobbes’s political philosophy are moral, based on right, and wholly independent of his natural science. Leo Strauss, The Political Philosophy of Hobbes: Its Basis and Genesis, trans. Elsa M. Sinclair (Oxford: Clarendon Press, 1936) and Strauss, Natural Right and History, Ch. 5. Another well-known position, generally shared by Taylor and Warrender, is that moral law, based on duty derived from the commandment of God in the form of natural laws, is the true foundation of Hobbes’s political philosophy. A. E. Taylor, ‘The Ethical Doctrine of Hobbes’, in Hobbes Studies, ed. Keith Brown (Oxford: Basil Blackwell, 1965) and Howard Warrender, The Political Philosophy of Hobbes: His Theory of Obligation (Oxford: Clarendon Press, 1957). Oakeshott’s position, that ‘The coherence of [Hobbes’s] philosophy, the system of it, lies not in an architectonic structure, but in a single “passionate thought” that pervades its parts’, strikes me as the best apprehension of what Hobbes apprehended among these interpreters. Michael J. Oakeshott, Hobbes on Civil Association (Oxford: Basil Blackwell, 1975), p. 16. 31 Thomas Hobbes, Elements of Philosophy Concerning Body, in Metaphysical Writings, ed. Mary Whiton Calkins (La Salle, IL: Open Court, 1989[1656]), p. 13. ‘A body is that, which having no dependence upon our thought, is coincident or coextended with some part of space’: Metaphysical Writings, p. 53. Like many of his contemporaries, Hobbes placed great significance on geometry and physics. These sciences, however, emerge from the most fundamental science, which is philosophy, the analytical science of deducing universal causes that lie behind sensible appearances. All of these sciences are centrally concerned in different ways with motion, the nature of cause, which is motion and the myriad effects that motions produce on, between, and within bodies. Metaphysical Writings, pp. 17–25; Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1991[1651]), pp. 60–1. The civil state of Leviathan is constructed by Hobbes synthetically, based on a causal chain of motions, beginning with bodily sense experience, which is caused by the motion of external objects. Leviathan, pp. 13–14. 32 Concerning Body, p. 22. 33 ‘Whatsoever accidents or qualities our senses make us think there be in the world, they be not there, but are seeming and apparitions only: the things that really are in the world without us, are those motions by which these seemings are caused. And this is the great deception of sense . . .’: Hobbes, Human Nature, in Metaphysical Writings, p. 162.

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477 Mourad: After Foucault 34 The basic things in nature include ‘Body, Time, Place, matter, Form, Essence, Subject, Substance, Accident, Power, Act, Finite, infinite, Quantity, Quality, Motion, Action, Passion, and divers others, necessary to the explaining of a mans Conceptions concerning the Nature and Generation of Bodies’. Hobbes, Leviathan, p. 463. 35 Leviathan, p. 38. Hobbes further delineates a number of different kinds of passions, including intellectual curiosity, in Chapter VI of Leviathan, pp. 37–46. 36 Leviathan, pp. 15–16. 37 Concerning Body, pp. 59, 65. 38 Leviathan, p. 70. 39 ibid., p. 39. 40 ibid., p. 87. 41 Concerning Body, p. 65. ‘The POWER of a Man, (to take it Universally,) is his present means, to obtain some future apparent Good’. Leviathan, p. 62. 42 Leviathan. 43 ibid., pp. 71–2. 44 ibid., p. 70. 45 The idea of more than one authority is unreasonable because the authorities will seek to destroy each other, for the same reasons that people will seek to destroy each other in the state of nature. The only truly civil state is thus a state ruled by a single sovereign. Leviathan, pp. 130–1. For the same reason, the ideal single authority, that is, the form of sovereign authority that is most apt to produce a stable peace, is a monarchy. 46 John Locke, The Second Treatise of Government, in Two Treatises of Government, ed. Peter Laslett, rev. edn (Cambridge: Cambridge University Press, 1967[1692]), p. 309. 47 Locke, Two Treatises, p. 321. 48 ibid., p. 309. 49 ibid., p. 311. However, in the state of nature, the execution of the law of nature is in the hands of everyone individually, such that anyone may punish transgressors of the law. Two Treatises, p. 312. 50 ibid., pp. 349–52. Further, one has to have the capacity to understand and observe the limits of this freedom, and to obey the law, in order to be qualified to receive its privileges, and to be expected to follow it. 51 ibid. 52 ibid., pp. 324–44. 53 ibid., p. 403. I use the term ‘civil rights’ because according to Locke, these rights are not the same rights as the rights that people have in the absence of a civil government. For example, in the state of nature, everyone has liberty to do anything they desire conditioned only by obedience to the law of nature; in contrast, someone’s liberty to do as he or she pleases in the civilized state is conditioned by the need to obey laws enacted by a government established by consent. Two Treatises, p. 324. See also pp. 347–48. Also, humans can transfer to a legislature only as much power as they have naturally, no more than that. Since humans do not have a natural right to exert force arbitrarily, and since humans cannot delegate any right that they

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do not have naturally, the legislature cannot, therefore, have arbitrary power, and be a legitimate legislature. Two Treatises, p. 402. As with Hobbes’s work, the inference of a theoretical connection between Locke’s Essay, ostensibly an epistemological work, and Locke’s political philosophy has been subject to debate. Ashcraft claims that the Essay is ‘primarily a work of moral philosophy and is intended to provide its reader with the principles appropriate to right conduct’. Richard Ashcraft, Locke’s Two Treatises of Government (London: Allen & Unwin, 1987), p. 234. Dunn states: ‘In a sense, the whole Essay is predominantly a study in the morals of thinking, an extended casuistry of the duty of “regulating” one’s assent’. John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the ‘Two Treatises of Government’ (London: Cambridge University Press, 1969), p. 191. Yolton agrees: ‘Locke in fact tells us that the need for such an analysis as the Essay makes was first brought home to him after a discussion with certain friends on some problems in morality and religion . . . one of the traits of the Essay which created such an active interest in Locke’s contemporaries was the way in which its philosophical doctrines were almost always directly related to the moral and religious disputes of the day’. John W. Yolton, John Locke and the Way of Ideas (London: Oxford University Press, 1956), preface, pp. vii–viii. Nidditch states that ‘a philosophical inquiry into the nature and grounds of certainty was required above all to determine the application and scope of certainty in the most important cases, namely in ethics and religion’. John Locke, An Essay Concerning Human Understanding, ed. Peter H. Nidditch (Oxford: Oxford University Press, 1975[1689]), editor’s foreword, p. xviii. Adds Laslett: ‘the implications of Locke’s theory of knowledge for politics and political thinking were very considerable and acted quite independently of the influence of Two Treatises. . . . For though Locke wrote the Essay about how men know things, his final object, the object that he had in mind when he started, was to help men to know what to do’. Two Treatises of Government, ed. Laslett, intro., p. 97. Locke, An Essay Concerning Human Understanding, ed. Nidditch. For example, Dunn states that ‘The Two Treatises . . . is an argument developed from the core of theoretical confidence which [Locke] had attempted to define in the Essay’. Dunn, Political Thought of John Locke, p. 198. Similarly, Laslett claims that ‘Natural law, in his system in Two Treatises, was at one and the same time a command of God, a rule of reason, and a law in the very nature of things, as they are, by which they work and we work too’. Two Treatises, ed. Laslett, intro., p. 95. Essay, p. 105. ‘For since there appear not to be any Ideas in the Mind, before the Senses have conveyed any in, I conceive that the Ideas of the Understanding, are coeval with Sensation; which is such an Impression or Motion, made in some part of the Body, as produces some Perception in the Understanding’. Essay, p. 117. Compare Hobbes: ‘The Originall of them all, is that we call SENSE; (For there is no conception in a mans mind, which hath not at first, totally, or by parts, been begotten upon the organs of Sense.) . . . The cause of Sense, is the Externall Body, or Object . . . All which qualities called Sensible, are in the object causeth them, but so many several

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59 60 61 62 63 64 65 66 67 68 69 70

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motions of the matter, by which it presseth our organs diversly’. Leviathan, pp. 13–14. ‘In this Part the Understanding is meerly passive; and whether or no, it will have these Beginnings, and as it were materials of Knowledge, is not in its own Power. For the Objects of our Senses do, many of them, obtrude their particular Ideas upon our minds, whether we will or no. . . . These simple Ideas, when offered to the Mind, the Understanding can no more refuse to have, nor alter, when they are imprinted, nor blot them out . . . than a mirror can refuse, alter, or obliterate the Images or Ideas, which, the Objects set before it, do therein produce. As the Bodies that surround us, do diversly affect our Organs, the mind is forced to receive Impressions; and cannot avoid the Perception of those Ideas that are annexed to them’. Essay, p. 118. Essay, pp. 237–8; p. 244. ibid., p. 241. Volition is ‘an Act of the Mind knowingly exerting that Dominion it takes itself to have over any part of the Man, by imploying it in, or withholding it from any particular Action’. ibid., p. 241. Liberty is ‘the power a Man has to do or forbear doing any particular Action, according (to) as its doing or forbearance has the actual preference in the Mind’. ibid., p. 249. ibid., p. 251. ibid., pp. 261–2. ibid., p. 263. Will is ‘a power to think on its own Actions, and to preferr their doing or omission either to the other’. ibid., p. 241. ibid., pp. 263, 264. ‘The stronger ties, we have, to an unalterable pursuit of happiness in general, which is our greatest good, and which our desires always follow, the more are we free . . .’ ibid., p. 266. Two Treatises, pp. 330–44. John Locke, Some Thoughts Concerning Education, in The Educational Writings of John Locke, ed. with intro. and notes James L. Axelrod (London: Cambridge University Press, 1968[1692]). See also John Locke, Of the Conduct of the Understanding, ed. with intro. and notes Francis W. Garforth (New York: Teachers College Press, 1966[1706]). Locke, Educational Writings, p. 143. Jean-Jacques Rousseau, A Discourse on a Subject proposed by the Academy of Dijon: What is the Origin of Inequality among Men, and is it authorized by Natural Law?, trans. with intro. G. D. H. Cole, rev. J. H. Brumfitt and John C. Hall, in Jean-Jacques Rousseau: The Social Contract and Discourses (London: J. M. Dent & Sons, 1973[1755]), p. 81. In Rousseau’s view, the only fundamental difference in nature between humans and other animals is that the former have free will. Rousseau, Social Contract and Discourses, p. 59. Rousseau’s most extensive explanation and justification of this claim is in the Second Part of Origin of Inequality, in Social Contract and Discourses, pp. 84–117.

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480 Philosophy & Social Criticism 29 (4) 75 Jean-Jacques Rousseau, The Social Contract [1762], in Social Contract and Discourses. 76 ‘Men, from the mere fact that, while they are living in their primitive independence, they have no mutual relations stable enough to constitute either the state of peace or the state of war, cannot be naturally enemies’. Social Contract, p. 187. 77 Social Contract, p. 190. 78 ibid., pp. 190–6. 79 ‘There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills . . .’ Social Contract, p. 203. One goal behind the notion of the general will is Rousseau’s desire to create a civil state that is not subject to perpetual political clashes between group interests, or between individual interests, which he views as detrimental to the common good, and the welfare of the individual in civility because it causes inequality, whereas humans are equal by nature. 80 Social Contract, p. 207. 81 Jean-Jacques Rousseau, Emile, or On Education, intro., trans., and notes Allan Bloom (New York: Basic Books, 1979[1762]). 82 For a review of the scholarship on the unity of Rousseau’s thought, see Gay, The Enlightenment: An Interpretation, Vol. II, The Science of Freedom, pp. 694–700. 83 Social Contract, p. 212. 84 ibid., pp. 212–13. 85 Origin of Inequality, p. 71. ‘The first law of nature is the care of preserving oneself . . .’ Emile, p. 193. 86 ‘Dependence on men, since it is without order, engenders all the vices. . . . If there is any means of remedying this ill in society, it is to substitute law for man and to arm the general wills with a real strength superior to the action of every particular will’. ibid., p. 85. 87 ibid., pp. 80–1. 88 ibid., p. 85. 89 ibid., p. 280. ‘I know only that truth is in things and not in the mind which judges them, and that the less of myself I put in the judgments I make, the more sure I am of approaching the truth’. ibid., p. 272. 90 ibid., p. 286. ‘There is in the depths of souls, then, an innate principle of justice and virtue according to which, in spite of our own maxims, we judge our actions and those of others as good or bad. It is to this principle that I give the name conscience’. ibid., p. 289. 91 Social Contract, p. 196. ‘. . . we must clearly distinguish natural liberty, which is bounded only by the strength of the individual, from civil liberty, which is limited by the general will . . .’ 92 See especially Peter A. Schouls, Reasoned Freedom: John Locke and Enlightenment (Ithaca, NY: Cornell University Press, 1992), Ch. 6. 93 Note that this point is not dependent upon an assumption that the body of the individual human being is essentially real, ideal, formal, instrumental, or some other basic existential state. The idea of contention is not intended

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to be an empirically demonstrable hypothesis. It is intended to be pragmatic in the ways that Richard Rorty and Michel Foucault are pragmatic in their respective approaches to the subject of the state. It is intended to address an unacceptable state of contemporary Western civilization, namely, its repetitive, and even escalating, incidence of disregard for suffering and harm in many forms, despite intellectual, social, medical, legal, educational, scientific and technological progress. This is not the place to elaborate the implications of this reinterpretation for Marxian critique. A few points merit mention. Marx rejected the stateof-nature approach for a historically based social theory. In doing so, he overlooked the potential contained in the passions by implication. The reinterpretation advanced in this paper introduces into discourse on justice the idea that human beings are subject to conditions that pose ever-present problems for their welfare. Neither the state-of-nature theorists, Marx, or Foucault made this recognition. Most important, in making this move, all of these paths bypass a different analysis of the problem of the civil state, as a problem of the individual, rather than limiting it to a problem between individuals. See, for instance, Alexander Hooke, ‘The Order of Others: is Foucault’s Antihumanism against Human Action?’, Political Theory 15 (1987): 38–60. Mark Bevir, ‘Foucault and Critique: Deploying Agency against Autonomy’, Political Theory 27 (February 1999): 65–84; Thiele, ‘The Agony of Politics’; David Gruber, ‘Foucault’s Critique of the Liberal Individual’, Journal of Philosophy 86 (November 1989): 615–21. Arguably, one exception to this claim is the right to life. However, this right has a very narrow application by definition. Attempts to extend it, such as a fetus’s right to life, are not very successful for the most part. The right to life is a ‘negative’ right. It is a right of the individual to not have something taken away rather than a right of the individual to have something provided to it. Further, one of the hallmarks of Marx’s work is its persistent emphasis on analyzing the human actor in its ordinary material existence. The modern state-of-nature theorists also focused on the human being in its practical, ‘lived’ experience. This was a very important break from classical natural law theory, which derived justice from transcendent metaphysical principles and emphasized human reason apart from emotion. Subsequent theorists who rejected the state of nature took it too literally; but this is understandable, since the history of modern political thought has been a competition of objective truth-claims. For an explication of the concept of intellectually compelling inquiry, see Roger Mourad, Postmodern Philosophical Critique and the Pursuit of Knowledge (Westport, CT: Greenwood, 1997).

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