Permutation is neither reform nor appeal to the existing system but a strategic usage of the biopolitical apparatus against itself

Rights for Foucault must thus become the mechanism of refusal of governmental power and, through a process of self-critique in which new forms of being are installed in given emanations of rights, the mechanism for the refusal of set juridical identities through the contestatory repetition and deformation of rights themselves (see Foucault, 1997d: 166).26 It is hopefully clear from the foregoing that Foucault's deployment of rights is neither intended somehow to reinforce existing normative systems nor to make appeals to rights, the recognition of which can easily be accommodated within liberal orthodoxy (which is not of course to assert that some of these claims cannot or do not get politically recup¬erated - see Bailey, 2009). Rather, the deployment of Foucaultian rights as instrument- effects of political struggle is strategic. This is the final element of this second figure of Foucault's theorization of rights. By strategic here I refer to two different aspects of Foucault's approach. First, a strategic deployment of rights is one in which rights are invoked neither as a mechanism of reform nor as a simple appeal to the existing system in and on its own terms, as it were. Rather, borrowing from the critical legal strategy of Emilios Christodoulidis, 'the ''strategic'' imports a specific reflexivity that does not necessarily fall within, but may situate itself incongruently to the spaces, interstices and speaking positions that the system makes available' (Christodoulidis, 2009: 22). Foucault's invocations of rights are strategic in this incongruous sense as they are situated within (the spaces, the available rhetorical tools, and so forth, of) a political formation but are intended to resist and go beyond that formation, to transform it. In locating resistance uneasily within political formations such an understanding of 'strategy' accords both with general Foucaultian insights about the constitutive inextricability of power and resistance, but also with Foucault's more specific comments on what he calls in the first volume of the History of Sexuality the 'rule of double conditioning' (1979: 99-100). This is the second aspect of 'strategy', namely the connection of local tactics of power (and hence resistance) to overall political (again, also, resistant) strategies. In that text Foucault briefly discusses this important connection between tactics and strategy. For Foucault, as Kevin Thompson helpfully explains, 'the tactical and the strategic ... condition one another' and hence resistance can be 'historically situated, local and specific, and politically effective, a challenging of the reign of the strategic as a whole from within this reign itself (2003, 118-119). So, in terms of the argument I am developing here, Foucault's usage of rights is strategic in the (first) sense of being intended to disrupt the system of power in and towards which it is directed and also (in the second sense) of affirming that local interventions and deployments of rights discourse can leverage changes in overall political formations.To take one example, Foucault famously asserted a 'right to suicide' towards the end of his career. In the interview, 'The Risks of Security', for instance, he argued that: 'The idea of bringing individuals and decision centers closer together should imply, at least as a consequence, the recognized right of each individual to kill himself when he wants to under decent conditions' (Foucault, 2000g: 380). He went on immediately to say that:If I won a few billion in the lottery, I would create an institute where people who would liketo die would come spend a weekend, a week, or a month in pleasure, under drugs perhaps, inorder to disappear afterward, as if erased. (2000g: 380)Questioned by the interviewer: 'A right to suicide?' (p. 380, emphasis in original), Foucault simply replied: 'Yes'. Liberal advocacy for the 'right to die', understood either as physician-assisted suicide or euthanasia, is of course well established and has in sev¬eral jurisdictions and at various points in time been legislatively recognized. How, then, does Foucault's mobilization of 'right to die' rhetoric constitute a strategic intervention and how does it seek to position itself incongruently in relation to the institutional spaces of liberalism (or, crucially, of contemporary bio-politics)? In a recent article on this topic, Thomas Tierney neatly illustrates how Foucault diverges from orthodox liberal articulations of the ‘right to die’. In order to do this, Tier- ney reads Foucault’s comments on the ‘right to die’ against the famous intervention of the ‘Dream Team’ (a collection of six eminent liberal/libertarian philosophers, to wit: Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, TM Scanlon and Judith Jarvis Johnson) in their amicus curiae brief in the 1997 US Supreme Court case on assisted suicide, Washington v Glucksberg (see Dworkin et al. 1997). Whereas the latter is ‘concerned with providing to individuals enough control over their deaths so they can avoid a painful and/or degrading demise, while simultaneously maintaining the integrity of juridico-medical authority that is aimed at preserving life’, (Tierney, 2006: 626), Foucault’s deployment of the ‘right to die’ [RTD] is intended to contest the forms of subjectivity produced and required by that very ‘juridico-medical authority’. Under contemporary conditions of bio-politics, that which Tierney calls the ‘juridico-medical order of mod- ernity’, the medically-aware subject is enjoined to police his or her own health such that ‘[r]easonable individuals have been eager participants in this modern project of death deferral’ (Tierney, 2006: 614, 615; see also Thompson, 2004). Under these conditions the standard liberal resort to the dignity of the individual and the autonomous terms under which that individual can exit life do nothing to contest the terms under which that life is bio-politically lived and invested by the institutions of medical power. By contrast, Foucault’s interventions on the ‘right to die’ (read alongside his wider critique of biopolitics) actually entail a ‘fundamental challenge to the juridico-medical complex of modernity’ (Tierney, 2006: 631) by ‘rais[ing] unsettling questions about the very nature of modern subjects’ (Tierney, 2006: 605). The deployment of rights is intended to reflect back, as it were, upon the politicization of life. Foucault’s assertion of a ‘right to die’ is thus intended to problematize the subjective pre-suppositions of medicalized bio-politics (obedience to discourses of death-deferral and medical self-management) by opening up a different perspective upon death in life – that is, the preparation of one’s own death as an aesthetic project (cf. Foucault, 1983: 237). ‘It is quite inconceivable that we not be given the chance’, Foucault writes elsewhere, ‘to prepare ourselves with all the passion, intensity and detail that we wish, including the little extras that we have been dreaming about for such a long time’ (Foucault, 1996: 296–297), that is to make of suicide ‘a fathomless pleasure whose patient and relentless preparation will enlighten all of your life’ (1996: 296). The crux of the difference between the Foucaultian and the liberal articulations of the ‘right to die’ thus resides in life’s preparation for death and, through this late modern melete thanatou, the consequent ‘enlightenment’ in life (read, for Foucault: the disruption of bio-politicized subjectivity). In contrast, ‘by focusing on controlling one’s death [the] liberal perspective does not foster critical reflection upon those convictions by which one lives one’s life, and leaves unchallenged the role of medical authority in shaping those convictions’ (Tierney, 2006: 632). For all its insistence upon the manner of death needing to reflect autonomous decisions concerning the value of life itself (which would seemingly import some critical perspective upon that life), orthodox liberal articulations of the ‘right to die’, like that of the ‘Dream Team’, work to reinforce a bio-political medical apparatus. The liberal narrative reinscribes the death- bound subject of bio-politics in a milieu of suffering (see the pathos-laden conclusion to Dworkin et al., 1997) from which medicine cannot save her and it thus calls upon law and the state to balance the interests of the individual’s dignity against the state’s (bio-political) interest in preserving life. Such an approach leaves unquestioned (indeed, performatively reinforces) the respective roles of law, state and medicine, whereas Foucault’s aesthetic, de-medicalized, anti-statist discourse seeks to subvert or avoid these relations.