Deirdre McGowan, Foucault and the Limits of Identity Rights In Marshall, J. (Ed.). Personal identity and the European court of human rights. Routledge (2022).
Foucault does not deny the materiality of human existence, but he does challenge the notion that it has a fixed essence to which specific identities or characteristics can be attributed, arguing that ‘[n]othing in man, not even his body is sufficiently stable to serve as a basis of self-recognition or for understanding other men.’3 He rejects a fixed identity for himself and throughout his work characterises the categorisation of individual subjectivity into identity categories as normative and exclusionary. He recognises that identity categories exist and have real meaning and impact in the world. His purpose is to unsettle the assumptions about human nature that underpin identity classifications and to create spaces of freedom within which individuals might shape their lives beyond the reach of normalising power.
These spaces of freedom are often what is at issue in contemporary identitybased human rights claims as plaintiffs seek to expand the limits of the right to an identity in order that it might better reflect their lived experience.4 In pushing the boundaries of what law recognises as a protected identity characteristic, progressive human rights lawyers seek to bring law to a place where it can recognise the inherent ‘messiness’ of human life.5 However, law rarely captures the full breadth of experience, always tending toward a unified subject that might be more easily categorised and understood. It is this unitary subject that Foucault views with suspicion, and understandably so.