—David McGrogan*
[Editor’s Note: this is a rejoinder, from the latest issue of ICON, by David McGrogan to a reply to his article, The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance.]
The latest issue of ICON contains a Reply by Maxime St-Hilaire to my 2018 article, ‘The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance’.[1] I am grateful to Dr St-Hilaire for his comments, and to the Editors-in-Chief at ICON for giving me the opportunity to respond. That opportunity is particularly timely, as earlier this year a book of mine was published which elaborates considerably on the themes explored in that article.[2] This Response therefore allows me not only to reply to Dr St-Hilaire’s comments, but also to briefly summarise the way in which the book expands on what I consider to be the central observation of the article – namely, that something similar to what Foucault described as the ‘governmentalization of the state’ is taking place in what I call – with apologies – the ‘governmentalization of global human rights governance’.
First, then, a brief word on Dr St-Hilaire’s Reply. It is chastening when one encounters the response of a reader to the presentation of one’s ideas and it becomes evident that what one had hoped to state clearly was, in fact, unclear. Let me, then, take the opportunity here to attempt to re-state my argument. I confess that I do not in general find Foucault’s work to be particularly insightful or interesting. But the concept of ‘governmentality’ as elucidated in the Security, Territory, Population lectures[3] is an exception, because it hits on something important about the nature of governance and the role that law plays within it.
What I take to be the main theme running through Security, Territory, Population, although it is nowhere openly stated, is the impossibility of achieving one’s ends in circumstances of what, borrowing from Manzi, I think of as ‘high causal density’[4] – i.e., of complexity properly understood as the product of a Humean admixture of causes. Social systems are, of course, examples par excellence of such circumstances. Almost nothing that any individual does is the result of a single identifiable cause, and what is true at the individual level is infinitely more true at the societal level. Put bluntly, anybody who wants another person or group of persons to do anything cannot reliably hope to achieve her goal through the manipulation of any one single variable. A parent cannot reliably hope to get his or her child to wash the dishes just through making it a rule, let alone can a politician achieve anything much at all through simply creating a law and leaving it at that. There must be more – far more, and one need only think of the example, familiar now to almost all of us, of lockdowns. Nowhere in the world did a government achieve its objective of having the population largely stay at home merely through making it mandatory for it to be so. A whole host of other causal factors were also involved: social conditioning to abide by the law; the threat of arrest; genuine anxiety about the novel pathogen; concern not to catch the virus and pass it on to loved ones; novelty; a certain glee at no longer having to commute to school or work; a sense of social solidarity; peer pressure; and many more reasons besides.
This is as true in the field of human rights as it is in any other. There is undoubtedly an element of social signalling in the ratification of human rights treaties by states, but human rights laws generally exist for substantive purposes, whether grand (to “preserve and promote human dignity”[5]) or quotidian (protecting children against tobacco-related harm[6]), and the way in which human rights laws are used and interpreted is also highly purposive. Put very crudely, human rights law is often used instrumentally as a way to try to achieve certain objectives. But the existence of laws alone is, for reasons described above, not sufficient to realise those objectives because of the complexity of the underlying phenomena – the making of law in itself achieves nothing. To take one example, it has become common to identify a human rights-based approach to improving mental health.[7] But it would be absurd to suggest that a piece of legislation enshrining a right to good mental health would in itself achieve anything substantive whatsoever in that regard. Identifying the causes of good (or bad) mental health for a single individual is itself practically a life’s work; the idea that the mental health of the population can be improved in the aggregate by law alone would be pure fantasy.
Dr St-Hilaire described this observation of mine as having ‘Austinian resonance’,[8] but if so, it was entirely unintentional. The fact is simply that laws are often created in order to try to do things,[9] but cannot in themselves achieve anything much at all. And this is especially true of international human rights law, where problems of compliance are particularly acute for well-rehearsed reasons. This observation is so obvious that it ought to go without saying, of course – except for the fact that it leads us to some important corollaries.
The first is that the fact that law is very often created (or interpreted) in order to realise certain goals which it cannot in itself achieve is not self-defeating, but highly productive. It results in the vast proliferation of regulatory ‘tactics’, to borrow Foucault’s term, which very often themselves derive from the making of further laws. To go back to mental health, a goal is enshrined in law (in this case in a fresh interpretation of the right to health) because of a desire to improve the mental health of the population in the abstract. Since this in itself will achieve nothing, the consequence is that a wide range of managerial apparatus are then created in order to bring about the goal which the law enshrines.[10] In this sense, the ‘thick natural phenomenon’[11] of the population and its inherent complexity serves not as a barrier to governing, then, but rather as a spur to its creativity and scale.
The second is that the entire international human rights system is practically a case study in this phenomenon, and therefore that its managerialisation is really an inevitability. As soon as human rights laws are fixed upon as being declarative of goals or purposes, the impossibility of achieving those goals through mere law-making results instead in the growth of regulatory ‘tactics’, of which audit is merely a part. And this is what we see writ large across the field: the human rights system is being managerialised in the truest sense (i.e., made subject to the attempts by managers to coordinate organisations – in this case often entire societies – towards predetermined objectives).
The value of Foucault’s concept of governmentality is that it allows us to define and describe exactly this kind of phenomenon: the results which follow from attempts to govern purposefully (or, indeed, to ‘manage’) in circumstances of complexity. The state itself was in early modernity ‘governmentalized’, as he put it, through precisely this pattern: the need for the incipient state to compete with its rivals and hence improve the health and vitality of its population, combined with the impossibility of doing so simply through making laws. The application of governmental reason, resulting in the proliferation of diverse and diffuse tactics for ‘conducting conduct’, followed. This mirrored earlier developments in the Christian pastorate, which had of course faced exactly the same sort of problem as secular government in early modernity: how to save souls under conditions of complexity. What we are now seeing, or have seen, is a ‘governmentalization of global human rights governance’, as I call it: the application of governmental reason, once again, which gives rise to a vast array of methods for ‘conducting conduct’ (including the human rights audit) with particular objectives in mind that cannot be achieved simply through the making or re-interpreting of laws alone. It is an occupational hazard when discussing Foucault’s work that one inevitably ends up sounding conspiratorial. That is not my intention: it is simply to observe that governmentality will always and everywhere emerge when a prospective ‘governor’ (pastor, politician, UN special rapporteur, or for that matter parent or teacher) is trying to get people to do things in order to realise certain purposes. That it is inevitable does not mean that we should not also be alert to its dangers, or try to analyse its effects, and doing this with regard to human rights was the aim of my article, and (in much expanded and more closely reasoned form) in my recent book.
* Associate Professor of Law, Northumbria Law School, Newcastle, United Kingdom. Email: David.mcgrogan@northumbria.ac.uk.
[1] 16 (4) International Journal of Constitutional Law (2018) 1073.
[2] D. McGrogan, Critical Theory and Human Rights: From Compassion to Coercion (Manchester University Press, 2021).
[3] M. Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977-78 (Palgrave Macmillan, 2008; ed. M. Senellart, trans. G. Burchell).
[4] J. Manzi, Uncontrolled: The Surprising Payoff of Trial-and-Error for Business, Politics and Society (Basic Books, 2012).
[5] A. Fellmeth, Paradigms of International Human Rights Law (OUP, 2016), p. 30.
[6] M. Gispen and B. Toebes, “The Human Rights of Children in Tobacco Control” 41 (2) Human Rights Quarterly (2019) 340.
[7] Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. HRC/41/34 (2019).
[8] M. St-Hilaire, “Audit Culture of Human Rights as ‘Governmentality’?” International Journal of Constitutional Law 2021.
[9] The most important analysis of this feature of law and its consequences remains M. Oakeshott, On Human Conduct [1975] (Clarendon Press, 1991).
[10] The report of the UN Special Rapporteur, cited above (supra note 7), itself being a case in point.
[11] M. Foucault, supra note 3, p. 71.
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