Human Rights Beyond the Courtroom: Foucault on Power and Knowledge - Essay 1 of 3

Rights are not only shields against repression — they must also confront the truths and categories that shape who belongs.

When people imagine human rights, the picture is often cinematic and kafka-inspired: an individual standing before the heavy machinery of the state, shielded only by the rule of law. It is a scene of repression and resistance. A law has been passed that censors speech, or a journalist has been detained, or a community has been discriminated against. The courtroom becomes the theatre of justice, the place where rights are defended and abuses overturned.

This image is not false. Courts remain essential to rights protection. But it is incomplete. It misses the deeper, subtler ways in which power operates — not only by punishing and prohibiting, but by shaping the very categories through which people are understood. Power does not simply repress; it produces. It produces knowledge, norms, and truths that define who belongs, who is “normal,” and who is marked as deviant or disposable.

To see this, we need Michel Foucault (1926–1984), the French philosopher and historian who made it his life’s work to show how modern societies govern through knowledge as much as through law. If human rights are to be more than a defensive shield, if they are to address the root causes of inequality, they must reckon with this dimension of power.

A Life at the Margins and in the Institutions

Foucault’s own life helps explain his preoccupations. Born in provincial France in 1926, he studied philosophy and psychology in Paris. He was brilliant, mercurial, and openly gay at a time when homosexuality was still criminalised and stigmatised. His career took him through some of the most powerful institutions of modern life: teaching in universities, working in psychiatric hospitals, observing prisons.

He was not a detached academic. In the 1970s he threw himself into political causes: campaigning against prison conditions, supporting radical movements, and later, advocating for gay rights. He died of AIDS-related illness in 1984, one of the first prominent French intellectuals whose cause of death was publicly identified in that way. His life was spent at the intersection of personal vulnerability and institutional power.

Power that Produces, Not Just Represses

Foucault’s central claim was deceptively simple: modern power does not just repress, it produces. We often think of power in terms of kings, police, and censors — forces that stop people from acting freely. But in Foucault’s account, power also creates categories, discourses, and ways of seeing the world.

Consider psychiatry. For centuries, “madness” was seen as sin, possession, or eccentricity. By the nineteenth century, psychiatry had reclassified madness as “mental illness.” Hospitals and asylums reorganised themselves around this concept. The result was not just new knowledge but new forms of control: diagnoses, institutionalisation, treatment regimes. Power here was not only in restraining patients but in producing the very category of “the mentally ill.”

The same can be said of sexuality. Far from being repressed in the nineteenth century, sexuality was discussed more than ever: in medicine, education, and law. “The homosexual” became a distinct category, an identity produced by scientific discourse. Once named, it could be studied, policed, pathologised. Power created the subject it then sought to control.

Colonialism offers another example. Colonisers did not only conquer territory; they produced categories of “civilised” and “uncivilised,” “tribes” and “natives.” These categories justified domination and shaped the legal systems imposed on colonised peoples. They linger long after the empire formally ends, in ways as simple as correcting people's grammar as a class marker. As Donna Haraway said, "Grammar is politics by other means."

In each case, knowledge and power are inseparable. Knowledge gives institutions legitimacy; power gives knowledge authority. Together they form what Foucault called “regimes of truth.”

Archaeology and Genealogy: Methods of Excavation

To trace how such regimes emerge, Foucault used two distinctive methods.

• Archaeology: digging into the historical layers of discourse to show how ways of speaking and thinking change over time. In The Birth of the Clinic (1963), he described how medicine invented a new “medical gaze” that turned the body into an object of clinical inspection.
• Genealogy: a term borrowed from Nietzsche, used to trace the contingent, messy histories of practices we take for granted. In Discipline and Punish (1975), he showed how the modern prison replaced public torture not out of humanitarian progress alone, but as part of new systems of discipline and control.

The point of both methods was to destabilise what we take as natural. What seems eternal — madness, crime, sexuality, race — is revealed as contingent, the product of history and institutions.

Why This Matters for Human Rights

For human rights advocates, the lesson is profound. If we see rights purely as legal shields against repressive actions, we miss how injustice often begins earlier — in the production of categories that define who counts as human, who is normal, who belongs.

• Gender identity: For decades, medicine and law defined sex and gender as binary. Transgender, non-binary, and intersex people were literally written out of existence. Rights work today is not only about preventing discrimination; it is about contesting the categories that excluded them in the first place.
• Colonial categories: Indigenous peoples were defined as “wards,” “natives,” “uncivilised” — categories that denied them equal humanity. Modern rights work must engage with these historical constructions, not just present-day discrimination.
• Hate speech: Racist or transphobic rhetoric does more than offend. It creates categories of exclusion: who is truly a citizen, who is an outsider. Rights work must recognise this productive dimension of language.

In each case, the problem is not only repression but the shaping of truth itself. And if rights advocacy ignores this, it risks fighting symptoms rather than causes.

Beyond the Courtroom

This is why the courtroom alone is not enough. Legal remedies remain vital, but they come late in the process. Courts can strike down discriminatory laws, but they cannot by themselves undo cultures of exclusion. They can protect individuals, but they cannot rewrite the categories that rendered them vulnerable.

If rights advocacy remains narrowly legalistic, it will always be reactive — defending against each new abuse while leaving the underlying norms intact. To be transformative, rights work must also engage at the level of knowledge and culture.

That means:

• Education: shaping how history and identity are taught.
• Media: contesting representation, ensuring marginalised voices are heard.
• Public discourse: telling new stories, producing new categories of belonging.

In other words, human rights must be fought as much in the classroom, newsroom, and community hall as in the courtroom.

Foucault and Human Rights: A Difficult Friendship

Foucault himself was sceptical of “universal” claims, including human rights. He worried that lofty declarations could become new instruments of domination, masking their own biases. He preferred to focus on specific struggles and local resistances.

This scepticism is worth heeding. It reminds us that even rights language can exclude. Whose rights are named as universal? Whose are overlooked? For example, early human rights law often assumed a heterosexual, nuclear family model, leaving queer families outside protection.

Yet this need not discredit rights. It makes them more self-aware. It pushes advocates to interrogate their own categories, to resist complacency, to expand universality rather than assume it. Foucault does not undermine rights work; he sharpens it.

Resistance and Counter-Narratives

For Foucault, where there is power, there is resistance. People are never merely passive subjects. They can reinterpret, resist, and reconfigure the norms imposed upon them.

This is visible in rights activism everywhere. When communities tell their own stories, when they demand to be named on their own terms, they are engaging in precisely the kind of resistance Foucault described. A trans activist declaring “we exist” is not only asserting a right; they are challenging the categories of medicine and law that once denied their existence. A community insisting on its history is refusing the colonial narratives that excluded it.

Rights advocacy, then, is not simply about defending individuals from the state. It is about enabling people to resist and remake the truths that govern them.

Towards the Next Movement

This first post has introduced the theme: human rights must go beyond the courtroom to contest the production of knowledge itself. Power is not only repressive; it is productive. It shapes categories, identities, and truths. Rights work that ignores this will always arrive too late.

But Foucault’s analysis does not stop here. He also showed how modern societies discipline and normalise through surveillance and control — how people are trained to regulate themselves under the gaze of authority. The metaphor was Bentham’s Panopticon, but the reality today is social media platforms, digital monitoring, and algorithmic governance.

In the next post, we will turn to this second movement: how Foucault’s insights into surveillance and discipline can help human rights advocates confront the challenges of the digital age.