It was a sunny afternoon in early March. We were a small group of about twelve and the event was a teach-in I was leading on the topic ‘Is it Useless to Revolt? The Strike as Counter-Conduct’ (part of a month of Sussex Strike events).[1] We quickly agreed that ‘is it useless to revolt’ is not, of course, the interesting or important question; it is, rather, how we revolt and how we are formed in the process — and what we can create. Can we invent a relationship that is still formless? Can we be friends? Perhaps, as a colleague later wrote to me, it was something to do with ‘the afternoon light, the listening, the mixture of who we were and our disciplinary perspectives, but we modeled friendship that day’.[2]

The topic of the teach-in was prompted by a legal theory class I’d taught a few weeks earlier. We’d been looking at critical approaches to rights and resistance — and it seemed topical in those turbulent weeks to discuss the UCU strike action in the context of ‘is there a right to revolt/a right way to revolt? And what is this notion of ‘counter-conduct’ that Foucault adds to our vocabulary of ‘resistance’? Is the strike counter-conduct? Is it even resistance? One student’s response to this last question stuck with me — ‘the strike isn’t resistance because you are just doing your refusal in a conventional way that has sort of been approved by the institution. Strikes are a recognised form of resistance. So it can’t be a counter-conduct.’

This bothered me because whilst we might have thought we were ‘refusing the form of being conducted’, we were part of a domesticated revolt; one that had some legitimacy, that was a good type of revolt rather than bad, that had defined laws, prior conditions and objectives, and ways of being carried to completion. Our revolt, as Foucault wrote in 1979 in his statement ‘Useless to Revolt’ was also ‘colonized in Realpolitik.’[3] But then I experienced something different during the teach-in. Here we were engaged in a practice of learning differently (not in the classroom, with a set register of Law only students, fulfilling the learning objectives of a module guide); we were spontaneous (we had to be, there was no knowing the audience beforehand, no Powerpoint presentation at the ready); we had the desire to be there (to perform our resistance in some way and to share collectively in that performance). It wasn’t just the afternoon light — this was a collective experience that created a new mode of being together, where friendship happened.

So, what is/why friendship? And what does any of this have to do with rights? I think the teach-in and the context of the UCU strike action is actually quite a profound illustration of the changing time(s) and temporarily of human rights law[4] — against the backdrop of neoliberal marketization of education, the strike represents a practicing of the right not to work, or at least, as in a teach-in, the right not to work in that way. It is a story that is perhaps deceptive because it is whimsical — we performed a right that does not exist and we did it through friendship. But whimsy is not fickle when adopted as a critical position; it is, and what I am trying to do here is, a radical provocation — to what? To the traditionally juridical nature of rights. Can rights be and see ethical relations? Can you claim a right by performing it (and not because it exists)? The teach-in story reflects what needs to be a bigger project; that is, to re-think rights as an ethics, to understand new modes of being together and where the big question then is: What can be played?

Now, this question only makes sense if we understand rights as a game. By game I mean what Foucault (who talked about ‘games of truth’) referred to as ‘a set of rules by which truth is produced … a set of procedures that lead to a certain result, which, on the basis of its principles and rules of procedure, may be considered valid or invalid, winning or losing.’[5] What does it mean to win in rights? I think it means using rights to play a different game.[6] This is not a legal game but an ethical one. We can find something in Foucault’s later work on relational right and a topic he effectively abandoned, friendship, to provoke and reimagine rights as relational, ethical concepts that mean we can perform and claim rights where they have ‘failed’ or where they do not exist.

The important question from the teach-in was not ‘is it useless to revolt’ because revolts happen; they are fact. The important question is what was created/what can we create — and I think we can create new relational forms, a new ethics, and a new kind of right. And I think friendship is what allows us to play that more strategic game — which is strategic in two ways because it a) makes a spontaneous, practiced and challenging call to rights (by claiming, for example, a right not to work) and b) where the question of ethics is ‘antistrategic’. In all the voices of the strikers, ‘no one is obliged to support them. No one is obliged to find that these confused voices sing better than others and speak the truth itself. It is enough that they exist …’[7] Meaning ethics is a question of reality; it is about practice, attitudes and forms of behaviour. It is about exercising freedom and about an ethos, a way of being and of behaviour, which can be found in friendship.

The attitude and pattern of behaviour was not working. Can this mode of behaviour be thought of (or, played) in rights terms? I think we can see here a relational right to not work. It is relational because it finds its basis in relationality (as opposed to an individualistic or natural rights claim) and, I suggest, has an affective element. Foucault made a maybe half-hearted or at least ‘ambivalent’[8] turn to rights in his later work during the early 1980s; he doesn’t tell us much about what he means by ‘relational right’ (which he discusses in the context of sexual liberation and what was then ‘gay rights’)[9] — relational rights are ‘not’, he says, ‘exactly associative rights … [t]he relational right is the right to gain recognition in an institutional sense for the relations of one individual to another individual, which is not necessarily connected to the emergence of a group … It’s a question of imagining how the relation of two individuals can be validated by society and benefit from the same advantage as the relations … which are the only ones recognised’ (and here he was referring to marriage and the family).[10] The teach-in created a space for relationality, where rank (between student-teacher, lecturer-prof), departmental and disciplinary affiliation did not matter. We did need something in common — so, there was already an affective bond, a similar desire to perform a kind of freedom, and a pleasure that we got from being there. The relational right, here the right not to work, needs then a commonality, an affective relation, freedom and pleasure. It also needs to be performed — our performance was through the appropriation of an unusual space (not the classroom) for an unconventional style of learning through sharing; we discussed what rights, counter-conduct, friendship mean. We created a new way of doing teaching and learning that the institutional boundaries of rank, discipline and procedure don’t allow for; and practiced the right not to work, through friendship.

We became friends. I don’t mean companions or confidents; I mean something else. Friendship is hard to define — and this is both its challenge and its promise, as it opens us to the questions: How can we make friendship mean differently and become different in the process? How/can we extend this relation to an understanding of rights as ethical concepts? And these questions are important because the discourse of human rights has so far not been able to recognise an ethical subject. When Foucault was asked in an interview, ‘what is friendship?’, he answered provocatively ‘the sum of all those things through which [people] can give each other pleasure’[11] — but then what he means by pleasure is not very well spelled out. And he did abandon pursuing friendship in favour of an ethics of the care of the self.[12] But that is irrelevant because I think we can make this ‘tool’, if it is that, ‘groan and protest’[13] and use it to rethink relationality and collectivity in rights. We can use it to demand that impoverished relational institutions recognise new and alternative ways of being together, where a group of people are claiming a right by practicing it. I recently co-wrote a chapter on disability counter-communities and friendship, which illustrates the wider reach of a rights-through-friendship thesis.[14] In the context of austerity, we argued that through, for instance, disability art and theatre, disabled people perform a relational right to not work and to live enriched lives in new collective bonds; these bonds have the potential to transform a culture of disability as community-threatening and to create culture, where we see performing the right not to work/to not be an active citizen as a non-threatening way of life.

The bonds are important. If ‘governmentality’ is about the problem of government (how it happens and how it can be thought) then friendship is about the problem of relationality (how it happens and how it is thought). It is about intense relations of innovation (so they are creative); can we imagine relations between, for example, and as I am trying to do in a paper I am currently working on, between border guards and irregular migrants that do rights properly (that is not my own word, it the Frontex Fundamental Rights Officer’s word, who I interviewed for the project).[15] I cannot endorse ‘properly’ but I understand what she means; she means performing rights, as in the example of a border guard who took home and effectively adopted an abandoned baby, rather than (just) being trained in them. She means an attitude and a culture, that can perhaps lead to new ways of being together; that can, as friendship taken from its Foucauldian use, means produce a new mode of life, a new culture, a new ethics. So we can ask, in this wider context of a migrant crisis, how can we do border management ethically (not just according to a rights based approach)? So, properly can perhaps be substituted for ‘ethically’; where ethics is an ethos, a way of being and behaviour, that has the potential to affect a mode of life. That can allow for a ‘multiplicity of relationships’[16]to exist, for a new collectivity[17] — between lecturer and student, between disabled and non-disabled people, between irregular migrants and those who welcome and host them.

This ethical challenge to rights comes up against an institutional block. Institutions — the university, the EU’s regulations on border management, the welfare state — cannot recognise intense relations based in friendship. Recommending that Frontex instill a ‘friendship concept’ alongside the ‘fundamental rights concept’ in its manual for border guards training won’t work. Friendship cannot be institutionalised. It happens. This is both why, as a practice of relational right(s), it is challenging and why a relational right is possible — it happens.[18] It’s an uncomfortable position for the human rights lawyer; but the future of human rights has to live with this ‘ethics of discomfort’[19] if it is to survive. Being uncomfortable is an important critical position. As universities and unions now tackle issues like the Gender Pay Gap, the issue of complex discrimination will need us to be uncomfortable with notions like ‘inclusivity’ and even ‘equal rights’, so we see intersectional realities and lived experiences over metrics and data. I think we will need to practice friendship.

After the teach-in we went on to singing from the Sussex Strike Songbook;[20] there were strike aerobics and post-picket pints during the week. Maybe this was a kind of pleasure; maybe it was a counter-conduct, a move towards changing a culture of work, of claiming a right not to work or to work differently.

Bal Sokhi-Bulley is Senior Lecturer in Law and Critical Theory at the University of Sussex

[1] Adapted from the title of Foucault’s statement,‘Useless to Revolt’ in Power: Volume 3: Essential works of Foucault 1954-1984, J Faubion (ed.) (London, Penguin, 2002) 449; @sussex4ussevent, #USSstrike #pensionsstrike #savehighereducation Thanks to Anna Gumucio Ramberg (@AnnaGumucioR) for their organisation of these events and for the invitation to take part.
[2] Thank you, Sara Jane Bailes, Reader in Theatre and Performance Studies, University of Sussex.
[3] ‘Useless to Revolt’, 450.
[4] Thanks to Kathryn McNeilly and Mark Hanna for the invitation to participate in the workshop The Time(S) and Temporality of International Human Rights Law, Queen’s University Belfast, 2 July 2018, where this talk was given under the title ‘Possible Futures: Rethinking Rights as Friendship’.
[5] M Foucault, ‘The Ethics of the Concern of the Self as a Practice of Freedom’ in P Rabinow (ed), Michel Foucault:Ethics – Essential Works of Foucault 1954-1984 (London, Penguin, 1997) 281, 297.
[6] B Golder, Foucault and the Politics of Rights(Stanford, Stanford University Press, 2015).
[7] ‘Useless to Revolt’, 452.
[8] Golder, Foucault and the Politics of Rights.
[9] M Foucault, ‘The Social Triumph of the Sexual Will’ and ‘Sex, Power and the Politics of Identity’ in P Rabinow (ed), Michel Foucault:Ethics – Essential Works of Foucault 1954-1984 (London, Penguin, 1997) 157 and 163.
[10] ‘The Social Triumph of the Sexual Will’, 162.
[11] M Foucault, ‘Friendship as a Way of Life’ in P Rabinow (ed), Michel Foucault:Ethics – Essential Works of Foucault 1954-1984 (London, Penguin, 1997)135, 136.
[12] Or perhaps the care of the self is what led him here – see T Roach, Friendship as a Way of Life: Foucault, AIDS and the Politics of Shared Estarngement(Albany, State University of New York Press, 2012) Chapter 1.
[13] Foucault, commenting on his use of Nietzsche: ‘The only valid tribute to thought such as Nietzsche’s is precisely to use it, to deform it, to make it groan and protest. And if commentators then say that I am being faithful or unfaithful to Nietzsche, that is of absolutely no interest’ – M Foucault, ‘Prison Talk’ in Power/Knowledge:Selected Interviews and Other Writings 1972-1977 (C Gordon ed, C Gordon and others trans) (Longman, London, 1980) 37, 53-4.
[14] With Ivanka Antova, ‘Disability Counter-Communities: Resisting Precarity with Friendship’ in R Vij et al(eds) Precarity and IR (Palgrave, forthcoming).
[15] Project ‘Treating People as Objects?: Ethics, Security and the Governance of Mobility’, jointly funded by the ESRC and AHRC (Ref ES/L013274/1), as part of the Partnership for Conflict, Crime and Security Research (PaCSS).
[16] Foucault, ‘Friendship as Way of Life’, 135.
[17] That is, where we ‘start from connections with others’ – see Isabell Lorey, State of Insecurity: Government of the Precarious(London, Verso, 2015) 6; on the challenge of ‘making kin’ (the need for new concepts to describe collective, satisfied lives), see Adele E Clarke and Donna Harraway (eds), Making Kin Not Population (Chicago, Prickly Paradigm Press, 2018).
[18] I’d like to thank Colin Perrin for his insights here.
[19] M Foucault, ‘For an Ethic of Discomfort’ in in Power: Volume 3: Essential works of Foucault 1954-1984, J Faubion (ed) (London, Penguin, 2002) 443.
[20] @sussex4ussevent