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Millennium: Journal of International Studies Vol.38 No.3, pp. 747772
ISSN 0305-8298; DOI: 10.1177/0305829810364876
http://mil.sagepub.com

Human Rights, Liberal Ontogenesis

and Freedom:
Producing a Subject for Neoliberalism?
Louiza Odysseos

Taking liberalism as a technology of government characterised by its

signature impulse what Michel Foucault called the internal rule
of maximum economy the article interrogates the ways in which
human rights produce a distinct subjectivity, homo juridicus, which is
a subject amenable to self-government and, as such, acts as a partner,
indeed a predicate, to neoliberal governmentality. Taking its impetus
from Foucaults discussion of homo oeconomicus, the article traces
human rights relations of subjectification, that is, the ways in which
human rights call homo juridicus into being as a distinct type of subject-
ivity that, in parallel to homo oeconomicus, makes possible the con-
traction of the state and its governmentalisation. The article calls
such subjectification liberal ontogenesis and argues that it takes four
distinct but related forms: rhetorical, epistemic, performative and
structural ontogenesis. It provides an illustration of how each of these
forms of ontogenesis produce, and produce globally through their dis-
courses, knowledge production, law-making and restructuring of the
conditions of freedom a necessary subject for neoliberalism. The
article thereby shows that human rights assist in the evolution of govern-
ment as the conduct of conduct, and irrevocably recast the very mean-
ing of freedom and the possibilities for agonism.
Keywords: freedom, governmentalisation of the state, homo juridicus, homo oeconomicus,
human rights, liberalism, neoliberal governmentality, subjectification

This article offers a contribution to critical examinations of human rights

within contemporary liberalism. Human rights today attempt to con-
cretise liberalisms commitment to individual freedom and to act as a
counterweight against charges that it is the ideology of the market and

The author would like to thank Cynthia Weber, Andreas Behnke, Beate Jahn,
Stefan Elbe, Ronnie Lipschutz, Annika Bergman-Rosamond, Gillian Youngs,
and Millenniums anonymous referees for their questions, critical comments and
assistance in thinking through some of the ideas contained in this article.

747
Millennium: Journal of International Studies 38 (3)

of the economic status quo, marginalising the poor and disadvantaged.1

The article is chiefly interested in examining human rights largely
under-explored role in subjectification, which is important for under-
standing liberalisms complex (global) politics. Specifically, the article
uses Michel Foucaults recently translated discussions of liberalism and
neoliberalism2 to interrogate the ways in which human rights produce a
distinct subjectivity, which it calls homo juridicus: this is a subject amen-
able to self-government and, as such, acts as a partner, indeed a predicate,
to neoliberal governmentality. To do so, the article eschews the common-
place understandings of liberalism as a theory of individual freedom or
as an ideology of the socio-economic status quo. Rather, it reads liberal-
ism as a historically distinct technology of government characterised by
its signature impulse, what Foucault called the internal rule of maximum
economy.3
The liberal technology of government best embodies the rule of max-
imum economy which refers to the attempt to achieve maximum ends
with minimal, cost-effective action by evolving away from extensive
and direct state involvement towards the more minimalist directing of
the possible fields of action of others.4 A contracting state is accompan-
ied, however, by an expansion of government. Government here refers
to the regulative but often indirect activities by state, para- or sub-state
agents, and civil society actors and institutions: government becomes the
conduct of conduct.5 However, this is no straightforward retreat of the
state;6 rather, it marks the states governmentalisation, which refers to
its involvement in the pastoral care and welfare of the population, that
is, in biopolitical and governmental ends. Given the costly and inten-
sive nature of such an expansion in the biopolitical goals of government,

1. See James L. Richardson, Contending Liberalisms: Past and Present,

European Journal of International Relations 3, no. 1 (1997): 533 and Hakan
Seckinelgin, Between Aspirations and Assimilations: The Worlds Poor Meet the
Cosmopolitans, Alternatives 29, no. 1 (2004): 6988.
2. For example, Michel Foucault, The Birth of Biopolitics: Lectures at the Collge de
France, 197879, trans. G. Burchell (Basingstoke: Palgrave Macmillan, 2008).
3. Michel Foucault, The Birth of Biopolitics, in Paul Rabinow (ed.), The Essential
Works of Foucault, Vol. 1: Ethics (London: Allen Lane, 1997), 74.
4. Michel Foucault, The Subject and Power, in Michel Foucault: Beyond
Structuralism and Hermeneutics, eds. Hubert L. Dreyfus and Paul Rabinow
(New York: Harvester Wheatsheaf, 1982), 221.
5. Ibid. Foucault engages with the two meanings of conduire, to direct or to
lead and the reflexive verb to conduct or behave oneself within a more or less
free field of possibilities, in order to indicate the complexity and interconnection
of this form of government. Interestingly, he refers to conduire la conduite in
Dits et crits: 19541988, Vol. 4 (Paris: Gallimard, 1994), 237, but the actual phrase
is not found in the English translation.
6. Cf. Susan Strange, The Retreat of the State: The Diffusion of Power in the World
Economy (Cambridge: Cambridge University Press, 1996).

748
 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

it has to increasingly promote and encourage self-government and, in

particular, the calling into being of types of subjects able to take up free-
dom in radically new ways and govern themselves.7
Understanding liberalism as a technology of government, therefore,
demands closer examination of its relations of subjectivation to manu-
facture the free, self-governing subject.8 Taking inspiration from
Foucaults specific discussion of homo oeconomicus,9 a type of self-
interested and rational self-governing subject which makes possible the
limitation of neoliberal governmental practice, the article illustrates how
human rights production of homo juridicus also predicates liberalism and
neoliberal governmentality and the evolving global liberal order.10 In
doing so, the discussion acts as an immanent critique of Foucaults rela-
tive neglect of human rights11 and his cursory dismissal of the juridical
subjects subjectification as enabling of neoliberalism.12
The article identifies human rights relations of subjectification as lib-
eral ontogenesis, the latter being a term retrieved from its origins in devel-
opmental biology where it usually denotes the development of organisms
from embryonic origin to maturation.13 Critically applying the term onto-
genesis to the engendering of a mature moral and legal subject of human
rights, the article illustrates this complex process in its distinct but related
forms. These are rhetorical, epistemic, performative and structural onto-
geneses. Exploring each form of liberal ontogenesis confirms that liberal-
ism does have an intimate relationship with freedom but not because it is
predicated upon the pre-given, free and sovereign individual, which is
the core ontological premise or ground of liberal thought.14 Rather, liberal

7. Michel Foucault, Security, Territory, and Population, in The Essential Works

of Foucault, Vol. 1: Ethics, ed. Paul Rabinow (London: Allen Lane, 1997), 68.
8. Michel Foucault, Society Must Be Defended, in The Essential Works of
Foucault, Vol. 1: Ethics, ed. Paul Rabinow (London: Allen Lane, 1997), 59.
9. Foucault, The Birth of Biopolitics.
10. On a controversial and highly problematic view of the current and potential
evolution of liberal order, see the discussion of liberal internationalism 2.0 and
3.0 in G. John Ikenberry (2009) Liberal Internationalism 3.0: America and the
Dilemmas of Liberal World Order, Perspectives on Politics 7, no. 1 (2009): 7187.
Liberalisms relations of subjectification are curiously if not unsurprisingly absent
from this analysis.
11. Exceptionally, see Michel Foucault, Confronting Governments: Human
Rights, in The Essential Works of Foucault, Vol. 3: Power, ed. James Fabion
(New York: New Press, 2001), 4745.
12. Foucault, The Birth of Biopolitics, 2746.
13. See Tony Bilton, Kevin Bonnett, Philip Jones, David Skinner, Michelle
Stanworth and Andrew Webster, Introductory Sociology, 3rd edn. (Basingstoke:
Macmillan, 1996).
14. Anthony Arblaster, The Rise and Decline of Western Liberalism (Oxford:
Blackwell, 1984), 15; on ground, see Martin Heidegger, On the Essence of

749
Millennium: Journal of International Studies 38 (3)

governmental practice requires and indeed must produce, and produce

globally, through its discourses, knowledge production, law-making and
restructuring of the conditions of freedom15 the free and sovereign
(here understood as self-governing) subject, whose behaviour can then be
directed according to the right (here understood as minimal) dispos-
ition of things.16 In other words, the liberal ontogenesis by human rights
now becomes an integral part of governmental practice, while recasting
irrevocably the very meaning of freedom itself.
The first section below selectively explores a number of important elem-
ents in Foucaults discussions of liberalism, pastoral power and homo
oeconomicus as the partner subjectivity of neoliberal governmentality.
This prefaces and provides key concepts for the subsequent examin-
ation of human rights and their production of homo juridicus in the main
section of the article. The final section explores the implications of lib-
eral ontogenesis for our understanding of freedom and the dilemma this
poses for critical thought.

Liberal Ontogenesis I: Markets and Homo Oeconomicus

This section introduces Foucaults discussion of the historically distinct

liberal technology of government and homo oeconomicus as a type of
subjectivity that predicates its contemporary neoliberal manifestation.
This brief exegesis highlights, in particular, liberalisms commitment
to maximum economy, its utilisation of a secularised form of pastoral
power and the resulting concern with self-government and subjectifica-
tion. Moreover, the discussion calls attention to liberalisms recasting of
freedom, as discussed by a variety of more recent contributions. Each of
these elements is necessary for understanding the subsequent illustration
of human rights and their ontogenesis of homo juridicus.
Foucaults lectures at the Collge de France in the late 1970s inter-
rogated the historical emergence of liberalism in the West as a technol-
ogy of government.17 He was interested in liberalism not as a theory
or ideology but as a practice, which is to say, as a way of doing
things oriented towards objectives and regulating itself by means of

Ground, trans. W. McNeill, in Pathmarks, ed. William McNeill (Cambridge:

Cambridge University Press, 1998), 97135.
15. Foucault, The Birth of Biopolitics, 63.
16. Michel Foucault, Governmentality, in The Essential Works of Foucault, Vol. 3:
Power, ed. James Fabion (New York: New Press, 2001), 208.
17. For example, Foucault, The Birth of Biopolitics; see also, Michel Foucault,
Society Must Be Defended: Lectures at the Collge de France, 197576, trans. David
Macey (New York: Picador, 2003) and Security, Territory, Population: Lectures at
the Collge de France, 197778, trans. Graham Burchell (Basingstoke: Palgrave
Macmillan, 2007).

750
 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

a sustained reflection.18 This perspective pointed to the significance

of the concern that one always governs too much,19 which beginning
in the 18th century led to concerted political consideration of what
is within the competence of the state and what is not.20 Such consideration
eventually modified raison dtat according to the principle that govern-
ment cannot be its own end.21 This new governmental reason introduced
political economy and, specifically, costbenefit considerations into gov-
ernment, leading to the varied contraction of the administrative and
mercantilist state apparatus.22 This is what Foucault means when he
argues that liberalism is characterised by the internal rule of maximum
economy.23
Importantly, the attempt to limit direct state involvement did not
indicate, in any way, the absence of government. The latter, however, no
longer has a purely political meaning;24 rather, it comes to encompass the
ensemble of pastoral activities that regulate (conduct) citizens conduct
through multiform tactics in a wide range of contexts such as the family,
society, faith and so on. This is what Foucault means by the often-used
phrase the governmentalisation of the state.
To regulate citizens conduct, government harnessed and secularised a
modern form of pastoral power, whose older manifestations were con-
cerned with individual salvation and associated with Christianity and
the Church.25 Pastoral power, as employed by the liberal technology of
government, continues to target conscience. However, it now focuses
on secular concerns, directing individuals towards appropriate behav-
iours in areas such as health, well-being ... security, protection against
accidents.26 Moreover, it involves a broader range of agents, such as state
institutions and officials but also private benefactors and organisations,
societal groups (civil society), and various expert figures such as aca-
demics and researchers.
In order to advance the governmentalisation of the state, liberalism
chiefly employed this modern form of pastoral power to produce sub-
jects amenable to being directed (or governed), which required their abil-
ity to exercise freedom along structured paths and fields of action, rather
than their subjection. Foucault illustrated this liberal governmental

18. Foucault, The Birth of Biopolitics, 734.

19. Ibid., 74; cf. Foucault, The Birth of Biopolitics, 13.
20. Foucault, Governmentality, 221.
21. Ibid.
22. Ibid., 220.
23. Foucault, The Birth of Biopolitics, 74.
24. Barry Hindess, Politics as Government: Michel Foucaults Analysis of
Political Reason, Alternatives, 30, no. 4 (2005): 390.
25. Foucault, The Subject and Power, 212.
26. Ibid., 215.

751
Millennium: Journal of International Studies 38 (3)

concern with subjectification in his now famous analyses of the calling

into being of homo oeconomicus by neoliberal governmentality. In lecture
series such as The Birth of Biopolitics, he discussed the ways in which
government engenders particular types of subjectivity, such as homo
oeconomicus, whose peculiar and noteworthy exercise of freedom aided
in the self-limitation of neoliberal governmental practice around the rule
of maximum economy and laissez-faire.27 Foucault illustrated that homo
oeconomicus is not an ontologically prior free subject, an atom of free-
dom, opposed to the state and marking an area of non-intrusion. Rather,
this subject is called into being as a free, self-interested and rational sub-
ject. Neoliberal theory suggested that this subjects ability to act on its
self-interest and its rational and systematic responsiveness to changes in
its environment illustrate that homo oeconomicus is best able to govern
itself. As such, the characteristics of self-interest and responsiveness to
environmental changes form the conditions of possibility for the contrac-
tion of the state necessary to neoliberal governmentality, because they
make possible the application of the principles of maximum economy
and laissez-faire.28
To elaborate briefly, as a subject able to pursue his interest through
rational behaviour, homo oeconomicus enables the generalisation of the
economic form of the market and market principles across most social
domains. Economics expands to become that science which analyses
rational conduct (which is that conduct which is systematically respon-
sive to environmental alterations29), in whichever domain this may be
found.30 As Thomas Lemke notes, criminality and other phenomena,
familial and social relations, even the state and its policies, can all be ana-
lysed according to the same principles as the market and the economy.31
Importantly, the rule of maximum economy (i.e. achieving maximum ends
with cost-effective and minimal action) and the principle of laissez-faire
are upheld as the criteria for judging the efficacy (and, hence, legitimacy)

27. Foucault discusses at length how American neo-liberalism tended towards

an absolute generalisation of the economic form of the market, and as such is
distinguished from its German ordoliberal counterpart, see Foucault, The Birth of
Biopolitics, 242. This comparison is, however, beyond the scope of this article.
28. Foucault, The Birth of Biopolitics, 26971.
29. Foucault, The Birth of Biopolitics, 269.
30. In terms of knowledge, the generalisation of the economic offers an analyt-
ical principle with which to investigate non-economic areas and forms of action
in terms of economic categories, affecting a variety of social science disciplines,
such as demography, politics or sociology which are reshaped in their efforts to
utilise the economic analysis of rational conduct; see Thomas Lemke, The
Birth of Bio-Politics: Michel Foucaults Lecture at the Collge de France on Neo-
liberal Governmentality, Economy and Society 30, no. 2 (2001): 198.
31. Lemke, The Birth of Bio-Politics: Michel Foucaults Lecture, 197; cf.
Foucault, The Birth of Biopolitics, 243.

752
 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

of governmental practice, constituting a permanent economic tribunal ...

that claims to assess government action in strictly economic and market
terms.32 In this way, the rationality of government is judged by its facili-
tation of the free and rational action of individuals; however, its point of
reference is no longer some pre-given human nature, but an artificially
created form of behaviour.33
Therefore, homo oeconomicus must be understood as that free subject
whose engendering predicates neoliberal governmental practice. Indeed,
Foucault regarded it as its partner, the vis--vis and the basic element
of the new governmental reason, whose calling into being demands the
evolution of an art of government to be determined according to the prin-
ciple of economy.34 Curtailing the encroachment of the state in private
life is not merely a liberal ethical compulsion, but facilitates the contrac-
tion of direct state involvement that is necessary for the government-
alisation of the state. Government, therefore, rests both on the creation
and management of the conditions of freedom, in which subjects are free
to be free,35 and also on the ontogenesis of a subject able to exercise that
freedom, that is, able to govern itself.
The emergence of self-government in neoliberalism radically trans-
forms the very meaning of freedom. As numerous studies have shown,36
for homo oeconomicus freedom primarily entails the exercise [of] eco-
nomic and political choices as citizen-consumers.37 This subjects con-
cern with freedom pertains particularly to freedom of choice with respect
to consumption (of goods and services), lifestyle, mobility and economic
opportunity.38 Freedom also invokes individual responsibility in the sense
of fending for oneself, that is, being self-sufficient.39 Given that freedom,

32. Foucault, The Birth of Biopolitics, 2467.

33. Lemke, The Birth of Bio-Politics: Michel Foucaults Lecture, 200.
34. Economy in the sense of thriftiness, efficiency and frugality; Foucault, The
Birth of Biopolitics, 271.
35. Ibid., 63.
36. See Lemke, The Birth of Bio-Politics: Michel Foucaults Lecture; Clive
Barnett, Nick Clarke, Paul Cloke and Alice Malpass, The Elusive Subjects of
Neoliberalism, Cultural Studies 22, no. 5 (2008): 62453.
37. Liz Bondi and Nina Laurie, Introduction to the Special Issue Working
the Spaces of Neoliberalism: Activism, Professionalisation and Incorporation,
Antipode 37, no. 3 (2005): 3989.
38. Cf. Barnet et al., The Elusive Subjects of Neoliberalism and Aihwa Ong, On
the Edge of Empires: Flexible Citizenship among Chinese in Diaspora, Positions
1, no. 3 (1993): 74578 and Neoliberalism as Exception: Mutations in Citizenship and
Sovereignty (Durham, NC: Duke University Press, 2006).
39. Cf. Barbara Cruikshank, Revolutions Within: Self-Government and Self-
Esteem, in Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities
of Government, eds. Andrew Barry, Thomas Osborne and Nikolas Rose (Chicago:
University of Chicago Press, 1996), 23152.

753
Millennium: Journal of International Studies 38 (3)

greater choice (of consumption, lifestyle, opportunity) and individual

responsibility are near impossible to resist, programmes of neo-liberal
rule unfold by seeking to secure synergies between their objectives and
the motivations and identifications of individuals.40
With this theoretical discussion in mind, the article moves on to illus-
trate the ways in which human rights produce homo juridicus, another
type of subjectivity that acts in distinct yet parallel ways as the necessary
partner to the governmentalisation of the state.41 The present discussion,
therefore, offers a critique of Foucaults neglect of the ontogenetic effects
of human rights by showing how the ontogenesis of homo juridicus fur-
ther enables the governmentalisation of the state. Foucault argues quite
strongly that the subject of right (for which he uses the term homo juridi-
cus or homo legalis), cannot be superimposed on the subject of interest,
economic man. Homo juridicus is a subject that cedes its pre-existing nat-
ural rights to a sovereign in a positive system of law and is, as such, a sub-
ject of transcendence and negativity.42 Homo oeconomicus, however, is
never called upon to relinquish his interest but to maximise it in a market
setting, which is the very opposite of the (social) contract mechanism.43
While Foucault is correct in drawing this important distinction, the article
argues that this does not prevent homo juridicus, as the subject of human
rights, from similarly acting in different ways as a partner subjectivity
to the neoliberal technology of government. Indeed, Foucaults cursory
dismissal neglects the ways in which human rights, and their engender-
ing of homo juridicus, participate fully in the governmentalisation of the
state and the creation and reorganisation of the conditions of freedom,
domestically and internationally. The following two sections, therefore,
begin to illuminate some of the largely under-examined processes of sub-
jectification associated with human rights, and call for greater attention to
the resulting recasting of freedom within a framework of rights.

Liberal Ontogenesis II: Human Rights and Homo Juridicus

When invoking human rights, we tend not to distinguish strictly between

human rights as moral rights on the one hand and legal rights on the

40. Barnett et al., The Elusive Subjects of Neoliberalism, 625; see also, Bondi and
Laurie, Introduction, 399. As keystones of neoliberal self-governance, freedom,
choice, responsibility and self-sufficiency form the basis of NewLiberalSpeak,
but their appeal to classical liberal values legitimates them and helps their
success in the centre and the periphery; Pierre Bourdieu and Loic Wacquant,
NewLiberalSpeak: Notes on the New Planetary Vulgate, Radical Philosophy 105
(2001): 2.
41. Foucault, Governmentality, 220.
42. Foucault, The Birth of Biopolitics, 276.
43. Ibid., 275; cf. Ibid., 2746.

754
 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

other. In liberal ethics, human rights as moral rights exist for all human
beings because they capture the worth inherent in our free and equal
humanity.44 Human rights as moral rights exist regardless of their
legal and political acknowledgement by sovereign power and prior to
any exercise of sovereign power to codify them into legal entitlements.
Their liberal origin means that they represent a claim against the state,
demanding the limitation or prohibition of those actions by sovereign
power that impinge upon human freedom, marking a space of individual
sovereignty in which the state ought not to intrude. However, at the
same time, human rights as moral rights are also a claim for recognition,
demanding that sovereign power recognises the space and scope of that
freedom and enshrines it in positive law. The juridical act of enshrining
moral rights is an exercise in sovereign power and the resulting, legally
endowed rights are its product.
The perspective of sovereign power, however, may not be enough
to help us understand the subjectifying, or ontogenetic, operations of
human rights in global politics. Indeed, the article argues that the power-
ful role of human rights in the liberal universe becomes far clearer if
viewed from the perspective of a governmental, rather than a sovereign,
economy of power.45 This perspective reveals that human rights which
call for and sanction the exercise of sovereign power through processes
of legalisation/codification and enforcement are nevertheless imbued
with liberalisms signature impulse, the stricture to not govern too much
according to the internal rule of maximum economy.46 A governmental
perspective shows that human rights call into being a particular type of
subjectivity, homo juridicus, and encourage its ability to govern itself in
certain ways. In engendering a self-governing subject, human rights con-
tribute positively to the deployment of pastoral power and the govern-
mentalisation of the state. Indeed, viewed from this perspective, human
rights become a significant illustration of how the law, usually associated
with sovereign power, becomes one of the varied tactics of government,
and, more generally, of how sovereignty itself becomes connected, some
might say subordinated, to government.47
What are the ontogenetic effects of human rights? How do they
produce homo juridicus as another type of subjectivity that can act as

44. This is true even if theories of rights choose to focus on human nature,
fundamental human interests or basic human needs. Cf. Charles Beitz, What
Human Rights Mean, Daedalus 132, no. 1 (2003): 3646.
45. Foucault is careful not to suggest that sovereignty is replaced by (discipline
which is then itself replaced by) government, but that instead one has a triangle,
sovereigntydisciplinegovernment. See Foucault, Governmentality, 219.
46. Foucault, The Birth of Biopolitics, 74.
47. Cf. Stefan Elbe, Virus Alert: Security, Governmentality, and the AIDS Pandemic
(New York: Columbia University Press, 2009), 12.

755
Millennium: Journal of International Studies 38 (3)

a partner, much like homo oeconomicus, to neoliberal governmental

practice? And, how do they call into being the subject whose freedom
liberal governmentality requires for its continuation and intensification?48
Ontogenesis can take a number of forms, and the discussion below identi-
fies four as worthy of further reflection: rhetorical, epistemic, performa-
tive and structural.

Rhetorical Ontogenesis

The first aspect of ontogenesis comes about through a broad range of

discursive, justificatory, symbolic and sentimental discourses of human
rights. Rhetorical ontogenesis has as its purpose the maturation of human
beings. It advances the understanding that all human beings in their
diverse physical, cultural and aesthetic attributes are subjects of human
rights as moral rights. Human rights discourses are of course varied and
multiple, but many of them tend to rely on a prior discourse, which rede-
scribes and rearticulates human beings (to themselves) as moral human
beings. Identifying sameness in diversity and redefining human beings
as something universal, rhetorical ontogenesis engenders further acts of
socialisation and maturation. Through these discourses, human beings
become aware of their humanity and are sentimentally encouraged and
educated to think of others as equal moral agents with innate freedoms
and rights. In Richard Rortys famous example, racists are sentimentally
encouraged to think of blacks, and sexists to think of women, as human,
and so on.49
Such rhetorical practices are not minimal: they incessantly expand their
purview and add to the repertoire of rights that flow from this essence of
human beings. Similarly, they are not geographically restricted: rhetorical
ontogenesis works not only within Western societies, which mostly generate
such discourses, but also internationally. Reaching out to non-Western
others with an instructive story to tell, about what we in the West look
like as a result of ceasing to hold slaves, beginning to educate women,
is far more efficacious than castigating them for their backwardness and
lack of progress or rationality.50 Such sentimental education51 often

48. Foucault, The Birth of Biopolitics, 63.

49. Richard Rorty, Human Rights, Rationality, and Sentimentality, in The
Politics of Human Rights, ed. Belgrade Circle (London: Verso, 1999), 678.
50. Richard Rorty, Justice as a Larger Loyalty, Ethical Perspectives 4, no. 3 (1997):
147. It is important to acknowledge that the West has benefited from centuries of
exploiting slaves and subjugating women, ignoring their innate worth and vio-
lating their rights systematically, rights which are now the tools through which
we subjectify and integrate the non-West into neoliberal (self-)governance.
51. Rortys view is that we are (or should be) moving away from our commit-
ment to rationality and towards sentimentality in our support of human rights,
see Rorty, Human Rights, 6976. Here, I use the term rather more loosely to

756
 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

works through a passionate denunciation of the wounds of the present,52

of what are often called moral wrongs.53 Through rhetorical ontogenesis
discourses of rights encourage us to think of ourselves and others as
ethical subjects of rights, with moral worth and entitlements, the official
bestowal of which will improve both persons and societies.
Let us give a number of examples to illustrate the expansionary ten-
dency of rhetorical ontogenesis. Discussions continue currently about
whether womens rights ought to constitute a fourth generation of rights.
Diffusing the feminist challenge to the masculinist history of rights,54 senti-
mental discourses about the plight of subjugated women in the West
and many parts of the non-Western world, such as Afghanistan, rearti-
culate the diverse experiences, concerns and problems of women as capa-
ble of being ameliorated by the recognition, bestowal and enforcement of
rights. Another example can be found in the history of securing the human
rights of indigenous peoples. Over several decades, discourses about
their assimilation and cultural genocide were able to sensitise inter-
national concern and, later, generate support for their inclusion in the inter-
national human rights regime. Although indigenous peoples concerns
were usually of a collective and often economic nature that challenged
the minimalist and individualist nature of civil and political rights,55 senti-
mental and educational discourses rearticulated them through rights
language,56 gradually leading to the United Nations Declaration on the
Rights of Indigenous Peoples.57
Moreover, it is important to note that rhetorical practices entail an
ontogenetic function even before sovereign power enshrines them for-
mally into law or, more so, when it refuses to do so. Because the concept

indicate the ways in which all sorts of discourses (on universality, commonness,
shared human nature) educate us about who we are, rather than strictly sub-
scribing to Rortys view.
52. Charles Champetier, Reflections on Human Rights, Telos 118 (2000): 79.
53. Nicholas Owens, Human Rights, Human Wrongs (Oxford: Oxford University
Press, 2003).
54. See, for instance, Hilary Charlesworth, Human Rights as Mens Rights, in
Womens Rights, Human Rights: International Feminist Perspectives, eds Julie Stone
Peters and Andrea Wolper (London: Routledge, 1994) and Hilary Charlesworth
What Are Womens International Human Rights?, in Human Rights of
Women: National and International Perspectives, ed. Rebecca J. Cook (Philadelphia:
University of Pennsylvania Press, 1994).
55. Courtney Jung, The Politics of Indigenous Identity: Neoliberalism, Cultural
Rights and the Mexican Zapatistas, Social Research 70, no. 2 (2003): 433.
56. Shannon Speed, Global Discourses on the Local Terrain: Human Rights
and Indigenous Identity in Chiapas, Cultural Dynamics 14, no. 2 (2002): 20528.
57. United Nations, Declaration on the Rights of Indigenous Peoples, A/RES/61/295,
13 September 2007, http://www.un.org/ga/search/view_doc.asp?symbol=A/
RES/61/295 (accessed 6 January 2010).

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Millennium: Journal of International Studies 38 (3)

of human rights is poised between that of moral (or natural) rights and
that of legal (or positive) rights,58 they exist (as moral rights) even when
they do not exist (as legal rights). Indeed, discourses of human worth and
of human rights as moral rights engender a transitional kind of subject-
ivity one might call a rights holder in waiting. The existence of potentially
endangered (because as yet legally unprotected) rights holders in wait-
ing acts as a powerful motivation. It engenders international pressure to
create the legal instruments required to protect emerging areas of rights,
such as womens rights or indigenous rights, and to persuade recalcitrant
states to ratify international human rights conventions and to codify the
moral rights of these human beings into positive law.
An example of this transitional subjectivity, the rights holder in wait-
ing, can be found in the history of the aforementioned United Nations
Declaration on the Rights of Indigenous Peoples. Though the journey of
this Declaration is too complex to recount here, its eventual adoption is
notably due to the incremental transformation of the native and largely
rural groups in the Americas into indigenous rights holders in waiting.59
Stories about their colonial plight and cultural assimilation in settler soci-
eties and instructive stories of cultural rights empowerment enabled
such ontogenetic transition.60 Rhetorical practices encouraged agitation
and lobbying, and gradually gathered international support for a global,
comprehensive, inclusive and integrated prescriptive effort.61
The above discussion suggests that rhetorical ontogenetic practice is
situated firmly within the purview of pastoral power. Global civil soci-
ety and international institutions promote discourses of education and
maturation as the new agents of pastoral power.62 Rhetorical practices,
moreover, are concerned with the development of conscience of our-
selves about the kinds of subjects that we are and, additionally, inappro-
priate actions or wrongs which human rights are meant to eliminate
or prevent.63 As Foucault discussed in The Subject and Power, pastoral
power seeks to integrate us into government so that our conduct can

58. Jiwei Ci, Taking the Reasons for Human Rights Seriously, Political Theory
33, no. 2 (2005): 248.
59. Speed, Global Discourses on the Local Terrain; see also, Patrick Thornberry,
Indigenous People and Human Rights (Manchester: Manchester University Press,
2002).
60. Cf. Rorty, Justice as a Larger Loyalty and Jung, The Politics of Indigenous
Identity.
61. Siegfried Wiessner, Introductory Note to the United Nations Declaration
on the Rights of Indigenous Peoples, 2 in United Nations Audiovisual Library of
International Law, http://untreaty.un.org/cod/avl/pdf/ha/ga_61-295/ga_61-295_
e.pdf (accessed 11 November 2009).
62. See, for example, Mervyn Frost, Constituting Human Rights: Global Civil
Society and the Society of Democratic States (London: Routledge, 2002).
63. See, for example, Owens, Human Rights, Human Wrongs.

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 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

be directed towards appropriate behaviours and along certain paths.64

Our maturation to homo juridicus occurs, moreover, both at the level
of community and at the level of the individual; the two cohere and
work together to encourage states to recognise existing and emerging
generations of human rights, bringing about constitutional change, codifi-
cation and the integration of more of our diverse actions and conducts
into the framework of rights.

Epistemic Ontogenesis

The rhetorical aspect of ontogenesis directly promotes, and is further

reinforced by, processes of epistemic ontogenesis. Epistemic ontogenesis
relies on authoritative agents such as those conducting academic or
policy research in universities, think-tanks or other supra-state organisa-
tions. Such agents analyse, corroborate or refute the claims of the largely
sentimental and educational discourses that engender maturation of
the subject of moral rights. Epistemic processes analyse human beings
as subjects of human rights and produce valid knowledge about their
fundamental human interests, which affects politics and policy. Like rhet-
orical ontogenesis, epistemic ontogenesis also operates at the level of
community and the individual simultaneously. It provides analysis and
produces truth65 so that the individual can understand itself and so that
the community can reflect on how it is constituted by moral subjects and
how the codification and enforcement of rights can assist in the political,
economic and moral life of the community.
Epistemic reflection encompasses a wide range of issues, analysing,
for example, the characteristics of human beings as subjects of rights, the
right conditions in which human beings might flourish,66 as well as pos-
sible ways in which rights can be upheld and protected once codified.67
It also makes judgements about fundamental challenges to the univer-
sality and validity of rights, as witnessed for example in the 1990s in the
context of the so-called Asian Values debate.68 Moreover, international

64. Foucault, The Subject and Power.

65. Evelyn S. Ruppert, I Is; Therefore I Am: The Census as Practice of Double
Identification, Sociological Research Online 13, no. 4 (2008): 2.6.
66. For example, Martha C. Nussbaum, Women and Human Development: The
Capabilities Approach (Cambridge: Cambridge University Press, 2000).
67. See Todd Landman, Protecting Human Rights: A Comparative Study
(Washington: Georgetown University Press, 2005); Richard Falk, Cultural
Foundations for the International Protection of Human Rights, in Human Rights in
Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi Ahmed An-NaIm
(Philadelphia: University of Pennsylvania Press, 1995), 4464.
68. Cf. Xiaorong Li, Asian Values and the Universality of Human Rights,
in Philosophical Dimensions of Public Policy, eds Verna V. Gehring and William
A. Galston (Edison, NJ: Transaction Books, 2003), 17180.

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Millennium: Journal of International Studies 38 (3)

lawyers, political scientists and International Relations scholars study

what dangers human rights face domestically and internationally and
how these dangers may be ameliorated.69 Importantly for international
politics, epistemic ontogenesis also reflects on the legal, political and
international conditions that enable such subjects to be free and offers
analysis and judgement on the political and regime conditions appro-
priate for best rights observance.70 Let us consider an example from the
latter.
For the past 30 years, academic discussion has reflected on the signifi-
cance of regime type, that is, the type of rule in a given country, for human
rights observance, examining in particular what Christian Davenport has
called the democratic proposition. This is the intuition that autocracies
are likely to abuse human rights, while democracies and democratising
regimes are far more likely to respect human rights. Given that most aca-
demic research offers valid evidence that upholds the democratic prop-
osition, epistemic processes contribute to the view that regime type and
regime change (i.e. the transition from autocratic to democratic regimes
and vice versa) matter tremendously for the best possible protection of the
subject of human rights.71 More recently, academic research has focused
on a different but related issue: how state capacity affects human rights
adherence or abuse. This concern centres on the practical ability of weak
and failing states to enforce laws and restrain rogue agents of the state
from perpetrating human rights abuses in even well-intentioned demo-
cratic or democratising states.72 Such knowledge enhances the earlier
debate because it suggests that we must look further beyond regime type
and within states to discern a states institutional and political ability to
uphold human rights.73 Given the confidence and faith in the objectiv-
ity of epistemic agents,74 and the technical and objective terms that
dehistoricise and naturalise the highly political nature of the research,

69. In this sense, politics and International Relations are disciplines whose
generation of knowledge, and support of the discourses of rhetorical ontogen-
esis, are central to liberal ontogenesis.
70. For example, see Christian Davenport, Human Rights and the Democratic
Proposition, Journal of Conflict Resolution 43, no. 1 (1999): 92116 and Neil
A. Englehart, State Capacity, State Failure, and Human Rights, Journal of Peace
Research 46, no. 2 (2009): 16380. For a critical view see Shahar Hameiri, Capacity
and its Fallacies: International State Building as State Transformation, Millennium:
Journal of International Studies 38, no. 1 (2009): 5581.
71. Davenport, Human Rights and the Democratic Proposition, 94.
72. Englehart, State Capacity, 166.
73. Ibid., 177.
74. The question of agency is in this instance also linked to the choice of methodol-
ogy and approach; see the long-standing critique of positivism in the social sciences
and IR more specifically, e.g. Mark A. Neufeld, The Restructuring of International
Relations Theory (Cambridge: Cambridge University Press, 1995), 2238.

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such discussions appear authoritative.75 This is the case even when there
is substantial contestation of findings (which is the case in both examples
given). There is only marginal awareness that the categories constructed
are not politically or ideologically neutral.76 Thus, epistemic ontogenesis
generates influential truths about the political conditions that enable the
subject of human rights to be protected, extending and reinforcing the pro-
cesses of the fourth and structural form of ontogenesis, discussed below.
This authoritative knowledge influences international decisions about
which states require assistance to strengthen capacity and, where states
are assessed to be failing or fragile, decisions about appropriate forms
of assistance, state-building and intervention. In seeking to strengthen
capacity, such policy interventions advance the governmentalisation of
the state,77 which is not its reinforcement in the sense implied by the older
understanding of raison dtat, but its evolution into the broader and more
general understanding of government explicated above.

Performative Ontogenesis

Rhetorical practices and epistemic analysis also encourage human beings

to call upon their states and other international actors to recognise the
moral worth and freedom of human beings and furthermore to legally
acknowledge them as bearers of rights, that is, rights holders.78 The per-
formative aspect of ontogenesis results from sovereign powers juridical
act of enshrining the moral rights of human beings into positive law.
As suggested by speech act theory,79 the legal utterance of enshrining
human rights into legal entitlements also entails an ontogenetic act.80
Human rights as products of sovereign power call into being and give
legal personality to a new legal subject: homo juridicus, the rights holder.

75. Hameiri, Capacity and its Fallacies, 60.

76. Hakan Seckineglin, Colonial Silences, Gender and Sexuality: Unpacking
International HIV and AIDS Policy Culture, in The Fourth Wave: Violence, Gender,
Culture & HIV in the 21st Century, eds Vinh-Kim Nguyen and Jennifer F. Klot
(Paris: UNESCO, 2009), 280; cf. Hameiri, Capacity and its Fallacies, 57.
77. Cf. Hameiri, Capacity and its Fallacies, 58.
78. Ci, Taking the Reasons, 248.
79. See J.L. Austin, How to Do Things with Words (Oxford: Oxford University
Press, 1962); John Searle, What Is a Speech Act?, in Philosophy in America, ed.
Max Black (London: George Allen and Unwin, 1965), 22139; and Judith Butler,
Excitable Speech: A Politics of the Performative (New York: Routledge, 1997).
80. A fuller discussion of Austins and Searles work on speech acts and
Foucaults thinking on discourses and subjectification is beyond the scope of
this article, but has been usefully begun, see James D. Marshall, Varieties of
Neo-liberalism: A Foucaultian Perspective, Educational Philosophy and Theory 33,
nos 3 and 4 (2001): 3013.

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Millennium: Journal of International Studies 38 (3)

In J. L. Austins well-known example, the utterance of the magistrate

creates the subjects of matrimony when pronouncing two people as
husband and wife, that is, legal married spouses. In the same vein, the
juridical act of transforming the moral subject of human rights into the
legal rights holder calls into being a new type of subject, whose assumed
innate attributes of freedom and moral worth are now also made legally
concrete. Performative ontogenesis, therefore, aims to produce as its
effect what it describes as existing.81
Theoretically, discerning the process of performative ontogenesis is
quite significant. At a basic level, such performative ontogenesis refutes
the a priori existence of the free subject assumed by liberal theory. More
importantly, however, this performative act of calling into being the legal
rights holder enables us to discern the subordination of sovereign power
to governmental ends. The subjectification of the legal rights holder
through the legalisation and codification of human rights shows how it is
misleading to construe an opposition between sovereignty and govern-
mentality.82 Rather, the use of the law for the purposes of subjectification
shows how the law becomes one of the multiform tactics of govern-
ment and illustrates that sovereignty can no longer be understood as dis-
tinct from government.83 Finally, the adoption or reform of constitutional
frameworks, which homo juridicus often entails, leads to the final form of
structural ontogenesis, which concerns the organisation of the conditions
of freedom and their global exportation.

Structural Ontogenesis

The performative task of calling the legal rights holder into being, out-
lined above, requires that an operational framework of rights exists
through which to create and regulate freedom. Structural ontogenesis,
then, is concerned with the creation, organisation and management of the
conditions of freedom, though the term structural is used here loosely.
Its workings illustrate that pastoral power shapes individual subjects in
order to integrate them into new structures84 that allow for their better
(in the sense of less direct and cost-effective) government and direction
along certain paths of action. This form of ontogenesis in creating,
reshaping and managing the freedoms of homo juridicus captures the
important evolution of governmental reason and practice according to
the rule of maximum economy. By creating, managing and expanding
the legal framework of human rights, it channels social discontent and the

81. Denis Meuret, A Political Genealogy of Political Economy, in Foucaults

New Domains, eds Mike Gane and Terry Johnson (London: Routledge, 1993), 50.
82. Foucault, Governmentality, 219.
83. Ibid., 211; cf. Elbe, Virus Alert, 12.
84. Ruppert, I Is; Therefore I Am, 2.6.

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 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

general management and resolution of social ills through the language

and framework of rights. This language and framework not only regulate
freedoms, they also displace prior lexicons and frameworks, such as rev-
olution, wealth redistribution and structural change for the expression
of claims for social transformation, discontent and political and social
fervour more generally.
The enshrining of human rights into positive law (performative
ontogenesis) and the creation and management of a human rights legal
framework (structural ontogenesis) ensure that responsibility for making
claims of social discontent and for social change rests with individu-
als. At the same time, structural ontogenesis always already provides a
pathway (the human rights framework) through which such claims can
be expressed. The aforementioned rights of indigenous people again
form an important example. The ontogenesis of the indigenous rights
holder creates the conditions in which indigenous groups can be free
by providing the legal and political framework for activism and political
action. The claims of indigenous activism, however, are rearticulated
in the language of rights, which displaces earlier linguistic and action
horizons: concern with the more socialist notion of agrarian reform and
peasant liminality is increasingly transformed into the claim for rights
to cultural heritage or rights to cultural self-determination.85 Demand
for radical social transformation is largely supplanted by agitation for
rights to safeguard indigenous culture. As the supplementary literature
of the UN Declaration on the Rights of Indigenous Peoples explains, sev-
enteen of the forty-five articles of the Declaration deal with indigenous
culture and how to protect and promote it.86 With the endowment of
indigenous rights, peoples previously fighting for revolutionary ends
such as redistribution of land and wealth, agrarian justice and radical
political reform redefine their struggles into claims for (more) rights.
Thus, for example, the Mexican Indian campesinos, who used to think
of themselves as agrarian workers engaged in a revolutionary material
struggle, have increasingly begun to adopt their redescription and regard
themselves as indigenous rights holders fighting for rights to cultural
self-determination.87
In parallel, governmental action can limit its responses to social and
political claims to such feats of endowment, codification and enforcement

85. Cf. Speed, Global Discourses on the Local Terrain and Jung, The Politics
of Indigenous Identity.
86. United Nations, FAQ: Declaration on the Rights of Indigenous Peoples
(New York: United Nations, 2007), http://www.un.org/esa/socdev/unpfii/
documents/FAQsindigenousdeclaration.pdf (accessed 11 November 2009).
87. Speed, Global Discourses on the Local Terrain, 217. This is not to suggest
that claims to cultural self-determination are not important, but to note the direc-
tion of such subjects within particular fields of action.

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Millennium: Journal of International Studies 38 (3)

of rights within the human rights framework.88 To put it cynically, it says:

let them eat rights!89 The provision of rights can be seen as a minimal
legal response, leaving the material conditions of the new rights holders
largely unchanged, as the granting of rights to cultural self-determination
in many parts of Central America has shown. While rights are legal entitle-
ments, in other words, they remain abstractions in the absence of soci-
etal change that would render them politically potent.90 In this way, they
appear to be useless ... sent abroad, along with medicine and clothes, to
people deprived of medicine, clothes, and rights.91
In structural ontogenesis, therefore, we discern the coming together
of the rule of maximum economy and neoliberal subjectification, where
human rights can be shown to assist in our being governed minimally,
by calling into being homo juridicus and structuring its conditions of
freedom. This is the self-governing subject who exercises freedom by
first demanding and then exercising its human rights. For neoliberal
governmentality, the right disposition of things involves not only the
examples discussed by Foucault as to the generalisation of the eco-
nomic form of the market through homo oeconomicus. The right dis-
position of things involves also the appropriate reorganisation and
management of freedom for neoliberal ends, as enabled by the onto-
genetic functions of human rights. Human rights call into being the
subject of self-government and provide a framework in which to claim
and exercise minimal and often abstract legal entitlements, rather
than offering or even approximating radical societal and international
change (for which we might once have used the term revolution).92
Yet it is their ontogenesis of the self-governing subject that predicates

88. In The Birth of Biopolitics, Foucault discusses how the governmentalisation of

the state is what has allowed the state to survive, and this lends weight to argu-
ments re-evaluating Foucaults own liberal leanings, see Eric Paras, Foucault 2.0:
Beyond Power and Knowledge (New York: Other Press, 2006).
89. The phrase quils mangent de la brioche is attributed to a great princess
by Jean-Jacques Rousseau in his Confessions (London: Penguin, 1953, originally
published in 1782) but is now associated with Marie Antoinettes callous response
to the demands of the working class and peasantry in times of famine. Given,
however, that she arrived in France after the completion of the Confessions in 1769,
this common attribution is likely mistaken.
90. I thank one of the anonymous reviewers for making this important point.
91. Jacques Rancire, Who Is the Subject of the Rights of Man?, South Atlantic
Quarterly 103, nos 2 and 3 (2004): 307.
92. This claim does not deny that human rights are more expansive than the
earlier minimalist natural rights. This argument, supported by Charles Beitz,
urges us to understand human rights as requirements for social justice, Beitz,
What Human Rights Mean, 44. Here I have argued that even as expansive
requirements for social justice, they channel such claims within minimalist legal
frameworks which fall short of maximal material social change.

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 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

and advances the governmentalisation of the state domestically and

internationally.
Indeed, alongside a range of other practices, the international exten-
sion of the human rights regime effectively assists in globalising the
governmentalised state, its technology of government determined by
the principle of economy (the conduct of conduct),93 and its partner
subjectivity, which takes both forms of homo oeconomicus and homo
juridicus.94 Liberal ontogenesis is, of course, always a work in progress.
Nowhere is this incomplete or partial character better exemplified than
in those instances of structural ontogenesis where the pastoral oper-
ations of power have yet to adequately restructure and regulate the condi-
tions in which homo juridicus is free to be free.95 In many instances of
incompleteness or outright failure, the attempt to incite pastoral oper-
ations in the periphery, and more specifically to engender homo juridicus
through human rights, does not seem to result in a free subject capable of
either integration or agonism, as arguably may be seen in the example of
Darfur. Where rhetorical, epistemic and performative practices have
sought to engender homo juridicus, but the management of the conditions
has failed to create and regulate freedom, the subject of human rights is
not empowered (in Foucaults sense of being free to be free). Rather,
this subject becomes manifested as a helpless victim subjected to inhu-
man repression and inhuman conditions of existence; here human rights
become the rights of those who have no rights ... they become humani-
tarian rights, the rights of those who cannot enact them, the victims of the
absolute denial of right.96
As the experience of the 1990s has shown, such helpless victims
require assistance, which often takes the form of humanitarian inter-
ventions. Such interventions, in turn, demand hyper-involvement on
behalf of (some, usually Western) states, empowering a collective agent
in the international community.97 Yet, assistance and intervention by the
willing agents of the international community seek to restore or establish
new human rights frameworks and strengthen their legal and political
enforcement in the intervened states. Though, again, the effects often

93. Foucault, The Birth of Biopolitics, 271.

94. Louiza Odysseos, Crossing the Line? Carl Schmitt on the Spaceless
Universalism of Cosmopolitanism and the War on Terror, in The International
Political Thought of Carl Schmitt: Terror, Liberal War and the Crisis of Global Order,
eds Louiza Odysseos and Fabio Petito (London: Routledge, 2007), 12443.
95. Foucault, The Birth of Biopolitics, 63.
96. Rancire, Who Is the Subject of the Rights of Man?, 307.
97. I thank Andreas Behnke for his critical but very helpful comments on this
point. On the international community, see William Rasch, Human Rights as
Geopolitics: Carl Schmitt and the Legal Form of American Supremacy, Cultural
Critique 54 (2003): 138.

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Millennium: Journal of International Studies 38 (3)

point to disempowerment, interventions intend to renew and reinforce

the promotion of self-government and to advance the symbiosis of
self-government and the governmentalisation of the state.
As this section has shown, human rights assist in at least four ways in
the ontogenesis of homo juridicus, a type of self-governing subject able
to take over the work of its own care and, for that matter, of its own free-
dom.98 Although the analysis above alluded to some effects which the
coming into being of homo juridicus has on the meaning of freedom, far
greater attention to this is needed. The final section begins to consider
this below but acknowledges that the question of neoliberal governmen-
tality, self-government and freedom requires further work and reflection
by this author and others.

The Unbearable Lightness of Freedom

Homo juridicus, it was suggested above, is a free (self-governing) sub-

ject whose freedom is marked by the minimal (critics would say empty)
gesture of claiming, possessing and exercising rights. The four forms of
ontogenesis of homo juridicus examined in the preceding section edu-
cate, generate knowledge about, enshrine and manage freedom in the
form of rights. Its subjectification enables the minimisation of the (ini-
tial and largely mythological contractarian) commitment of the state,
in as far as it is restricted to the cost-effective juridical endowment and
protection of rights. In other words, this subject enables governmental
practice to uphold the rule of maximum economy, achieving maximum
ends with minimal juridical or constitutional action, whose broader and
deeper societal and international effects are diffused and postponed. As
such, homo juridicus forms a distinct, yet in its effects related, subjectivity
to homo oeconomicus. Where homo oeconomicus manifests its freedom
in the expression of its self-interest and its choices in consumption, life-
style and opportunity,99 homo juridicus is free to express claims for social
discontent and change and to utilise distinct forms of political activism
within a human rights framework.
Such an acknowledgement does not deny that liberal ontogenesis,
and its establishment and management of human rights frameworks,
amounts to social transformation. One need only consider the necessary
and, often, substantial constitutional changes involved to accept that
human rights have extensive effects on the legal and political landscape.
However, as argued above, human rights are imbued with the liberal
rule of maximum economy. The social transformation that they entail,
therefore, assists in the governmentalisation of the state. Within human

98. Cf. Lemke, The Birth of Bio-Politics: Michel Foucaults Lecture, 2002.
99. Cf. Bondi and Laurie, Introduction.

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 Odysseos: Human Rights, Liberal Ontogenesis and Freedom

rights frameworks, freedom is exercised within already structured fields

of expression and action: in the examples given above individual and col-
lective claims become increasingly restricted to demands for the granting
of rights and/or their enforcement. Correspondingly, the state is able to
channel its responses to claims by subjects to codification and rights obser-
vance. While empowering citizens as rights holders and enabling their
expression of claims for change, such human rights-related responses
allow for the cost-effective delimitation of state action.
As a result, liberal ontogenesis gives freedom new meanings and con-
texts, restricting it to the human rights framework. As homo juridicus,
individuals are governmentalisable:100 they are free to be directed
along specific expressions of freedom within structured fields of action.
In this way, they assist a technology of government striving for the least
or frugal state, that is, the self-limiting of direct state involvement.101
Liberalism as a technology of government, therefore, formulates simply
the following: I am going to produce what you need to be free requiring
not so much the imperative of freedom as the management and organi-
zation of the conditions in which one can be free.102 Neoliberalism, in
particular, requires the reinterpretation of freedom as self-government
and self-sufficiency. The neoliberal art of government becomes in this
way a consumer of freedom because it can only function insofar as a
number of freedoms actually exist: freedom of the market, freedom to
buy and sell, the free exercise of property rights, the possible freedom of
expression.103
Should the examination of homo juridicus, alongside Foucaults own
discussions of homo oeconomicus and the governmentalisation of the
state more generally, leave us with a negative view of freedom and of the
pastoral power involved in the ontogenesis of the self-governing subject?
Put plainly, is the ontogenesis of the subject of human rights a perni-
cious or detrimental endeavour? One is definitely tempted to answer in
the affirmative, especially when it becomes increasingly apparent that
the appearance of (greater) individual freedom that comes with self-
government, even if this is restricted to choices about consumption (homo
oeconomicus) or the endowment of rights (homo juridicus), is one that
is extremely difficult to resist.104 And even more so, when one considers

100. Foucault, The Birth of Biopolitics, 252.

101. Ibid., 28. The verb striving is crucial here because the tendency towards
self-limitation often requires the intensification and extension of governmental
practice, as seen in the expansion of both agents and activities of the ontogenesis
engendered by human rights; yet this serves the purpose of enabling less state
involvement.
102. Ibid., 634, emphasis added.
103. Ibid., 63.
104. Bondi and Laurie, Introduction, 399.

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Millennium: Journal of International Studies 38 (3)

the ways in which neoliberalism co-opts contestation by claiming that its

incidence marks precisely the ascendancy of rational subjects making use
of their rights and freedom to run their own lives, that is, self-governing
subjects. As Bondi and Laurie have argued, neoliberalism recognises
political resistance by subjects free to resist, complain, seek to change
their own lives according to their rights and choices as the performance of
neoliberal subjectivity.105
As scholars, citizens and activists, we have directed our critique towards
the economic operations and effects of neoliberal governmentality; the
same critical gaze must be directed towards the operations and effects of
liberal ontogenesis. We must ask whether liberal ontogenesis displaces,
competes with, refuses, or rejects other political projects, including those
also aimed at producing justice, whether it is not merely a tactic but a
particular form of political power carrying a particular image of justice
and inspect, evaluate, and judge it as such.106 Yet, to answer the question
of whether liberal ontogenesis is detrimental for freedom entirely in the
affirmative and without caveats might be simplistic. It ignores not only
that in the current conjuncture human rights is all we have,107 but it also
denies the integrative and ethical (in the sense of the care of the self)
aspects of pastoral power. In other words, we need to acknowledge that
subjectification, and in particular liberal ontogenesis by human rights,
is not the absolute imposition of subjectivity from above.108 Nor does it
signal the complete denial of freedom. Rather, it renders freedom as a
relationship: in Foucaults words freedom is never anything other but
that is already a great deal than the actual relation between governors and
governed.109
This begs the question, however, of why understanding freedom as
the relationship between governors and governed should be regarded
as already a great deal. To understand Foucaults assertion we have
to remember that, through its very processes of subjectification, pasto-
ral power recognises subjects as being capable of reflection and self-
formation.110 Indeed, pastoral power reinforces the overall mode of care
of oneself found in Foucaults later ethical thinking in which subjects
engage in creating themselves ethically and aesthetically as work[s]

105. Ibid.
106. Wendy Brown, The Most We Can Hope For ... : Human Rights and the
Politics of Fatalism, South Atlantic Quarterly 103, nos 2 and 3 (2004): 453.
107. Cf. Ronnie Lipschutz, First Time as Tragedy, Second Time as Farce:
21st Century Global Life in 17th Century Capitalist England, in The Empire of
Governmentality and the Biopolitics of Rights, unpublished manuscript (2009).
108. Foucault, The Subject and Power, 214.
109. Foucault, The Birth of Biopolitics, 63, emphasis added.
110. Ruppert, I Is; Therefore I Am, 2.6.

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of art.111 Indeed, as Alan Milchman and Alan Rosenberg have noted,

subjectification entails techniques or practices through which one creates
a self, it is a kind of self-knowledge within the ambit of care of self.112
Thus, liberal ontogenesis channels and restricts freedom but at the same
time forms part of a specific ethical self-forming activity (pratique de
soi).113 Understanding pastoral power and ontogenesis as reverberating
with ethical and integrative impulses and intentions (in the sense of
government explicated above), allows us to accept that human rights are
strongly implicated in delimiting our freedom by directing our fields of
action; at the same time, they allow us to engage in activities and prac-
tices that remake us.
The dissatisfaction of critical thought about how liberal ontogenesis
recasts freedom may well be real but ultimately rests on a notion of an
essential freedom.114 Foucault reminds us that relying upon an account of
proper and essential freedom is problematic since such an account is
historically and theoretically a myth. He cautions that we should not
think of freedom as a universal which is gradually realized over time, or
which undergoes quantitative variations, greater or less drastic reduc-
tions, or more or less important periods of eclipse.115 Rather, if freedom
is the relationship between governors and governed, then the measure
of the too little existing freedom is given by the even more freedom
demanded.116 Acknowledging that pastoral power and its processes of
subjectification call into being a subject that can demand freedom returns
our reflection to pastoral powers desire to integrate this subject into gov-
ernment, which attempts in no small part to shape her, to help her know
who she is, that is, know herself as free.117

111. On Foucaults later thinking, see The History of Sexuality, Vol. 3: The Care of
the Self (London: Penguin, 1988); on ethical self-creation as a work of art see Michel
Foucault, On the Genealogy of Ethics: An Overview of Work in Progress, in The
Foucault Reader, ed. Paul Rabinow (London: Penguin), 350, and Vivienne Jabri,
Restyling the Subject of Responsibility in International Relations, Millennium:
Journal of International Studies 27, no. 3 (1998): 591611.
112. Alan Milchman and Alan Rosenberg, The Aesthetic and Ascetic
Dimensions of an Ethics of Self-Fashioning: Nietzsche and Foucault, Parrhesia 2
(2007): 56.
113. Foucault, On the Genealogy of Ethics, 355.
114. Foucault, The Subject and Power, 221; Louiza Odysseos, The Subject
of Coexistence: Otherness in International Relations (Minneapolis: University of
Minnesota Press, 2007), 46; Isaiah Berlin, Two Concepts of Liberty (1958), in
Four Essays on Liberty (Oxford: Oxford University Press, 1969).
115. Foucault, The Birth of Biopolitics, 63.
116. Ibid., emphasis added.
117. Ruppert, I Is; Therefore I Am, 2.6. For some, this makes freedom into
a form of subjection, a governmental injunction akin to a duty, see Sergei
Prozorov, Foucault, Freedom and Sovereignty (Aldershot: Ashgate, 2007), 30.

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Moreover, re-reading Foucaults The Subject and Power recalls that

power is exercised only over free subjects, and only in so far as they
are free.118 This seminal text suggests that there is little to be gained in
denying that we are produced as free.119 Insisting that freedom is the
pre-existing, natural freedom of subjects heralded most vehemently by
classical liberalism may be, in other words, unproductive. Yet to suggest
that all we are is production, and that there is no prior state of a pre-
governmental production of subjectivity, is not being defeatist.120 Taking
the words of Emmanuel Levinas out of context, we might say that it is as
if the emptiness were full, as if the silence were a noise.121
Hence, what may be more important than professing belief in an
essential freedom is to be vigilant against that which in the production
of freedom risks limiting and destroying it.122 What might that be? For
Foucault, it is the possibility of agonism, which contains within it both
reciprocal incitation and struggle.123 Reciprocal incitation, however,
begins with the very subjectification of the free subject by governmental
power and by liberalism as a regime of power.124 This subject is with-
out ground or essential freedom; at least, none other than the freedom
already incited by power in the subjects very ontogenesis, manifest in
its ability to exist in the permanent provocation between governors and
governed.125 In other words, the subjects capacity to resist is part of its
ontogenesis as free, because its freedom is required for the very operation
of power essential only in this sense, so that it can be consumed.126 More

118. Foucault, The Subject and Power, 221.

119. On the significance of as, see Giorgio Agamben, The Coming Community,
trans. Michael Hardt (Minneapolis: University of Minnesota Press, 1993), 989
and Martin Heidegger, Being and Time, trans. John Macquarrie and Edward
Robinson (Oxford: Blackwell, 1962), 158.
120. Prozorov, Foucault, Freedom, 110.
121. Emmanuel Levinas, Ethics and Infinity: Conversations with Philippe Nemo,
trans. Richard A. Cohen (Pittsburgh: Duquesne University Press, 1985), 48.
Indeed, this is the way I read Prozorovs claim that there is radical freedom,
that is, as an instance of Heideggers es gibt, where the commonplace under-
standing there is is foregone for the meaning of it gives which does not name
the availability of something which is, but rather precisely something unavail-
able, what concerns us as something uncanny. Martin Heidegger, Summary of
a Seminar on the Lecture Time and Being, in On Time and Being, trans. Joan
Stambaugh (New York: Harper and Row, 1972), 40.
122. Foucault, The Birth of Biopolitics, 64.
123. Foucault, The Subject and Power, 222.
124. Michael Dillon and Julian Reid, The Liberal Way of War: Killing to Make Life
Live (London: Routledge, 2009).
125. Foucault, The Subject and Power, 222.
126. Foucault, The Birth of Biopolitics, 63. Its capacity for solidarity, more-
over, is founded on this freedom, rather than on a universalization of political

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concretely, one can acknowledge the operation of power and the specific
workings of the liberal ontogenesis of human rights, without giving up
social struggle.127 Indeed, the potentiality for struggle may be enhanced
if we avoid seeking a foundation for that struggle in an essential, pre-
governmental freedom.
Therefore, a crucial question for critical International Relations, a
discipline whose generation of discourse and knowledge are central to
rhetorical and epistemic forms of ontogenesis, may well be: do current
international operations in the production of freedom successfully pro-
duce and manage freedom or do they risk limiting and destroying it by
rendering agonism unlikely or impossible?128 The incidence of resistance
in the form of claims for (more) rights, as well as protestations about their
abuse or for better enforcement may well signify the success of liberal
ontogenesis.129 Agitation in the language of rights illustrates the operation
of the self-governing subject, which responds to its environment within
the limited framework of rights, whose agonistic response illuminates its
ability to participate in the permanent provocation of its governors.
For example, after 20 years of biopolitical interventions130 and nearly
seven years of war and counter-insurgency, Iraqis for the most part
have begun to utilise the rights framework to respond to the continued
operations of occupying forces. I say for the most part because govern-
mental power constantly differentiates between those who behave in
accordance with the welfare of the population and those who act as if
they were not part of the population ... as if they put themselves out
of it.131 Yet, contrary to the facile propaganda of the so-called War on
Terror, the counter-insurgency campaigns in Iraq and Afghanistan con-
tinue not because they must protect us from those who hate our free-
dom, but because those who refuse to be produced as free endanger
the continued ontogenesis of the self-governing subject and the exten-
sion and intensification of neoliberal governmentality. It is for the same
reason that human rights are championed in the periphery, alongside
administrative and market reform, within the broader parameters of the

consciousness, see Michel Foucault, The Politics of Truth, trans. L. Holchroth

and C. Porter (New York: Semiotext(e), 2007), 125. On solidarity see David
Campbells influential statement, Why Fight: Humanitarianism, Principles, and
Post-structuralism, Millennium: Journal of International Studies 27, no. 3 (1998):
497522.
127. Cf. Lipschutz, First Time as Tragedy, 358.
128. Foucault, The Birth of Biopolitics, 64.
129. Bondi and Laurie, Introduction.
130. See Julian Reids extensive discussion of policy and non-governmental
interventions such as the oil for food programme in The Biopolitics of the War
on Terror: A Critique of the Return of Imperialism Thesis in International
Relations, Third World Quarterly 26, no. 2 (2005): 2456.
131. Foucault, Security, Territory, Population, 434.

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War on Terror.132 The failure of liberal ontogenesis would make untenable

the governmentalisation of territorial, administrative and maximal states,
the self-limitation of governmental practice and the consumption of free-
dom that neoliberalism requires.

Concluding Remarks

The article examined liberalism as a distinct technology of government and

human rights as an integral part of the ontogenesis of self-governing sub-
jects. Taking inspiration from Foucaults discussion of homo oeconomicus,
this article provided an internal critique of his cursory dismissal of the
affinities between homo juridicus and neoliberalism. Using Foucaults
analysis, but expanding its purview, the article discussed how human
rights call homo juridicus into being by detailing four related forms of lib-
eral ontogenesis. Taken together, they illustrate how it too acts as a partner,
indeed as a predicate, for the liberal technology of government, thereby
recasting the very meaning of freedom and the possibility of agonism.
While studies acknowledge that human rights entail numerous trans-
formations in the political and legal landscape, the article focused on how
this occurs through subjectification, which is not an individual or solip-
sistic activity but has discursive, epistemic, legal and structural compo-
nents and effects. Human rights assist in the evolution of a technology
of government in line with the principle of economy and costbenefit
considerations. In so doing, they belong firmly and fully within the
many techniques of neoliberal rule. With respect to freedom, in particu-
lar, the article suggested that the liberal ontogenesis of homo juridicus
by human rights creates and manages the conditions of freedom of this
subject, directing it to take up its freedom within certain paths of action.
At the same time, it also limits freedom through its concretisation of the
rule of maximum economy. Freedom, therefore, becomes the relation-
ship between the governors and the governed, where the governed are
constituted as free (i.e. self-governing). Coming into being as capable of,
and open to, self-government, subjects have ethical potential to care for
themselves,133 by taking up their freedom and transforming themselves
within structured fields of action.

Louiza Odysseos is Senior Lecturer in International Relations at the

University of Sussex, UK.

132. Tarik Kochi usefully calls this human rights in the name of terror, see his
Terror in the Name of Human Rights, Melbourne Journal of International Law 7,
no. 1 (2006): 12755.
133. Foucault, The Politics of Truth, 1534.

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