Deleuze and Law: Forensic Futures

Deleuze and Law

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Deleuze and Law Forensic Futures Edited by

Rosi Braidotti Utrecht University, The Netherlands

Claire Colebrook Pennsylvania State University, USA

Patrick Hanafin Birkbeck College, School of Law, University of London, UK

Selection and editorial matter © Rosi Braidotti, Claire Colebrook and Patrick Hanafin 2009 Chapters © their individual authors All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2009 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries ISBN-13: 978-0-230-21017-2

hardback

This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. 10 9 8 7 6 5 4 3 2 1 18 17 16 15 14 13 12 11 10 09 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

Contents Acknowledgements

vi

Notes on Editors

vii

Notes on Contributors

viii

1 Introduction: Deleuze and Law – Forensic Futures Rosi Braidotti, Claire Colebrook and Patrick Hanafin

1

2 Legal Theory after Deleuze Claire Colebrook

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3 The Time of Law: Evolution in Holmes and Bergson Alexandre Lefebvre

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4 Rights of Passage: Law and the Biopolitics of Dying Patrick Hanafin

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5 The Terri Schiavo Case: Biopolitics, Biopower, and Privacy as Singularity John Protevi

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6 Vitalistic Feminethics: Materiality, Mediation and the End of Necrophilosophy Patricia MacCormack

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7 Locating Deleuze’s Eco-Philosophy between Bio/Zoe-Power and Necro-Politics Rosi Braidotti

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8 Is There Life in Cybernetics? Designing a Post-Humanist Bioethics Joanna Zylinska

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9 The Silent Scream – Agamben, Deleuze and the Politics of the Unborn Melinda Cooper

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10 Points of Departure: The Culture of US Airport Screening Lisa Parks

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11 The Spectacle of War: Security, Legitimacy and Profit Post–9/11 Ian Buchanan and Laura Guillaume

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Index

198 v

Acknowledgements We wish to thank the Leverhulme Trust for its support of the project out of which this book emerged. We would like to thank Birkbeck Law School for its support of the conferences and workshops where many of the ideas contained in the collection were first aired. Special thanks are due to Valerie Kelley at Birkbeck Law School who prepared the manuscript for publication.

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Notes on Editors Rosi Braidotti is Distinguished Professor in the Humanities at Utrecht University in the Netherlands, founding director of the Centre for the Humanities at Utrecht University and Honorary Visiting Professor in the Law School of Birkbeck College, University of London. She has published extensively in continental philosophy, post-structuralism and feminist theory, epistemology, social theory and cultural studies. Her books include Patterns of Dissonance (1991), Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (1994), Metamorphoses: Towards a Materialist Theory of Becoming (2002), Transpositions: On Nomadic Ethics (2006). She has co-edited Between Monsters, Goddesses and Cyborgs (with Nina Lykke, 1996); Thinking Differently: A European Women’s Studies Reader (with Gabriele Griffin, 2002). She is a member of the editorial board of Signs, differences, Theory, Culture & Society, and The European Journal of Women’s Studies. Claire Colebrook is the Edwin Earle Sparks Professor of English at Pennsylvania State University, USA. She was Professor of Modern Literary Theory at the University of Edinburgh from 2000 to 2008. She has published articles on contemporary European philosophy, feminist theory, literary theory, contemporary music, dance, visual culture and political theory. Her books include New Literary Histories (1997), Ethics and Representation (1999), Gilles Deleuze (2002), Understanding Deleuze (2003), Irony in the Work of Philosophy (2002), Irony: The New Critical Idiom (2003), Gender (2004), Deleuze: A Guide for the Perplexed (2006) and Milton, Evil and Literary History (2008). She is currently completing two book-length studies, one on vitalism and another on William Blake and aesthetics. Patrick Hanafin is Professor of Law at Birkbeck College, University of London, UK. He has been a visiting professor at the School of Law at the University of Porto, Portugal, and at the Law Faculty at the University of Pretoria in South Africa. He has held research fellowships at the European University Institute in Florence and at the Human Rights Program at Harvard Law School. His books include Conceiving Life: Reproductive Politics and the Law in Contemporary Italy (2007); Constituting Identity: Political Identity Formation and the Constitution in Post-Independence Ireland (2001); Identity, Rights and Constitutional Transformation (with Melissa Williams, 1999) and Last Rights: Death, Dying and the Law in Ireland (1997). vii

Notes on Contributors Ian Buchanan is Professor of Critical and Cultural Theory at the University of Cardiff, UK. His research interests centre on the attempt to understand or at least find the means of articulating what is peculiar about the everyday. He has written on topics as diverse as film, literature, popular music, reality TV and, more recently, war. His publications include Fredric Jameson: Live Theory (2006), Deleuzism: A Metacommentary (2002) and Michel de Certeau (2000). Melinda Cooper is Lecturer in the Department of Sociology and Social Policy at the University of Sydney, Australia. She has published widely in the fields of science and technology studies, biopolitics and political theory. Her current research interests include biopolitics and biosecurity, new theories of labour, economic sociology and financialization, revolutionary conservatism and religious revival, critical race and gender studies, philosophies and politics of the ‘event’. Her publications include Life as Surplus: Biotechnology and Capitalism in the Neoliberal Era (2008). Laura Guillaume is a doctoral candidate in the School of International Relations at Aberystwyth University, UK. Her research interests include post-structuralist theories of International Politics, theories of embodiment and corporeality (especially with respect to resistance), War and the Revolution in Military Affairs and theories of military transformation and technical development. Alexandre Lefebvre is Lecturer in the School of History and Philosophy at the University of New South Wales. He is author of The Image of Law: Deleuze, Bergson, Spinoza (Stanford University Press, 2008). Alex’s current project, tentatively titled “Law and the Ordinary”, develops themes from the jurisprudence of the philosopher H. L. A. Hart (excuses and responsibility, rule following and the open texture of law, morality and moralism, causation and the temptation towards skepticism) through ordinary language philosophy. Patricia MacCormack is Senior Lecturer in Communication and Film at Anglia Ruskin University, UK. Her principal research interests are in continental philosophy, particularly the works of Deleuze, Guattari, Irigaray, Foucault, Bataille, Lyotard and Blanchot and she has published extensively in these areas. She has also written on a diverse range of issues such viii

Notes on Contributors ix

as body modification, performance art, monster theory and particularly Italian horror film. Her publications include Cinesexuality (2008), and The Schizoanalysis of Cinema, edited with Ian Buchanan (2008). Lisa Parks is Associate Professor of Film and Media Studies at University of California, Santa Barbara, USA, where she is also an affiliate of the Departments of Art and Women’s Studies. Her research explores uses of satellite, computer and television technologies in a transnational context. She is the author of Cultures in Orbit: Satellites and the Televisual (2005) and co-editor of Planet TV: A Global Television Reader (2003) and Undead TV: Essays on Buffy the Vampire Slayer (2007). She is also coproducer of media arts projects such as Experiments in Satellite Media Arts (with Ursula Biemann, 2002), Loom (with Miha Vipotnik, 2003), Postwar Footprints (2005) and Roaming (2008). John Protevi is Associate Professor in the Department of French Studies, Louisiana State University, USA. His publications include Deleuze and Geophilosophy: A Guide and Glossary (with Mark Bonta, 2004); Political Physics: Deleuze, Derrida and the Body Politic (2001) and Time and Exteriority: Aristotle, Heidegger, Derrida (1994). He is also the editor of The Edinburgh Dictionary of Continental Philosophy (2005) and co-editor (with Paul Patton) of Between Derrida and Deleuze (2003). Joanna Zylinska is Reader in New Media and Communications at Goldsmiths College, University of London, UK. She is currently working on a new conceptualisation of bioethics, conducted via an engagement with the work of Levinas, Derrida, Stiegler, Agamben and feminist ‘science and culture’ studies. She is also looking at different forms of bioart, and the aesthetic and ethical issues it brings up. Her publications include Imaginary Neighbors: Mediating Polish-Jewish Relations after the Holocaust (co-edited with Dorota Glowacka, 2007), The Ethics of Cultural Studies (2005), The Cyborg Experiments: The Extensions of the Body in the Media Age (2002), On Spiders, Cyborgs and Being Scared: The Feminine and the Sublime (2001).

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1 Introduction: Deleuze and Law – Forensic Futures Rosi Braidotti, Claire Colebrook and Patrick Hanafin

This volume engages with the impact of a thinking of law with Gilles Deleuze. It is an attempt to engage in another mode of doing jurisprudence, which places the emphasis on the material bodies of citizens and their interests rather than the abstract formless subject of law. It is, as Claire Colebrook observes in her essay in this volume, a reconsideration of law and legal theory as a differential jurisprudence. In such a jurisprudence the emphasis would be placed on how the claims of some bodies might transform the relation between what counts as a speaking subject for law and what is silenced. This shift in the way we view the manner in which individual bodies are formed and subjugated by law provides an opening to another thinking of law, which emerges in the essays in this collection. In this regard the collection attempts to perform what one might term a vitalist jurisprudence or one in which the body obtains primacy over what Deleuze and Guattari termed the terror of the signifier. In doing so the essays in this volume explore the relation between law and life following the demise of the “linguistic paradigm” in critical theory and the advent of a politics of “life.” How have recent events focused social, political and cultural attention on the living body and its maintenance and management? The central concept, through which the embodiment of the subject is examined, is that of “biopower.” Articulated by Michel Foucault, but brought to attention more recently in the work of Giorgio Agamben, this concept recognizes that the relation between life and law is both historical and necessary in that the law must operate on bodies but can only do so by establishing a border between the body of the polity, and the mere life excepted from political concern. For both Foucault and Agamben the contemporary advent of biopolitics occurs when the polity increasingly and invasively 1

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Introduction

operates on this “mere” life, and the body or organism – rather than the self – becomes the object of political management. The manner in which the body, in its “mere life” (or what Agamben refers to as ‘zoe’) becomes the focus of contemporary power has led legal theory to explore new questions of the threshold between life and death and has led social theory to question the new extensions of the law and the polity into embodied life. In Alexandre Lefebvre’s contribution to this volume the possibilities of a differential jurisprudence are considered. Lefebvre reads the work of Oliver Wendell Holmes, the American legal realist jurist, through Bergson’s conception of the creativity of life in order to propose a reading of Holmes’ work on the notion of legal judgment as one which sees judgment as inescapably inventive. In doing so he attempts to develop a new image of jurisprudence that can appreciate the inventiveness of adjudication insofar as it is in time. In looking at Holmes’ work The Common Law, Lefebvre argues that the key theme animating this work is the notion that adjudication is based on the desire of a society insofar as desire changes in time. As such, the work of the judge cannot be assimilated to the straightforward recognition and application of rules to cases; instead, it has an inherently creative power. In their essays in this volume both Patrick Hanafin and John Protevi expand on what a jurisprudence of differentials might look like in analyzing a number of US court decisions on the right to die. These essays look at how in practice rights jurisprudence could be reconceived if analyzed in a manner, which moved beyond the liberal model of a deathbound jurisprudence. One of the cases discussed by Hanafin in his essay concerns the right of a body to decide its own death. As Hanafin points out, the state has taken over the calculation of such decisions and has done so according to an axiomatic: is the individual’s ongoing life capable of being managed and ordered by the social machine (in which case there can be no cessation of life) or is the body criminalized and thereby rendered capable of being put to death? A differential jurisprudence is already, Hanafin suggests, visible at the margins of this case, where various legal voices enter into debate to decide the points at which a life ceases to be liveable. John Protevi in his essay also demonstrates that we need to look beyond abstract and discursive conceptions of “the subject” to an ontology of singularities. At what point does a body’s corporeal relations – that is, the various relations among its organic and nervous potentialities – undergo a sufficiently major configuration to produce an incorporeal event? That is, we cannot reduce a person to mere physical and organic functions, for in addition to the breathing,

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speaking, moving and interacting body, selves are also capacities for perception, affection, memory and imagination. However, certain corporeal events – such as the state’s capacity to refuse a woman’s desire to terminate a pregnancy – will produce incorporeal events; that woman will now become a “mother.” That latter incorporeal event is not simply caused by a change in body, for it requires other – political – relations, such as the social institutions of parenting, the norms of gender binaries and the notion of the private nuclear family. For Hanafin cases that concern the border between life and death demand an inclusion of various voices that would go beyond the simple opposition between a state power that must preserve and maintain viable life. Protevi argues that Deleuze’s ontology gives us tools to examine thresholds of viability. In her diagnosis of contemporary necrophilosophy, Patricia MacCormack not only argues that the move beyond a life/death dichotomy has implications for the “subject” who can no longer be defined against death as some constitutive limit; she also argues that a Deleuzian attention to thresholds has implications for sexual difference. Deleuze’s concept of “becoming woman” indicates a new vitalist possibility for thinking, where we attend less to “man” who defines himself against a field of death, and more to those whose bodies have always been precarious and subject to minor deaths – not only women and animals, but those populations who have less access to the means of life. In Rosi Braidotti’s essay in this volume the theme that only a liberal and humanistic view of the subject can guarantee basic elements of political agency and ethical probity is further interrogated. Braidotti argues for a politics of “life itself” as a form of active bioethical citizenship. In order to counter the strong “biopower” of political and technological discourses Braidotti calls for a thinking which focuses on processes and interconnections, a post-anthropocentric approach to the analysis of “life itself,” as a way of broadening the sense of community. Her essay elaborates sets of criteria for a new social and political theory. She argues that political practices that take life itself as the point of reference need not aim at the restoration of unitary norms, or the celebration of the master-narrative of global profit, but rather respect for diversity and sustainable growth at the heart of which lies an ethics that respects vulnerability while actively constructing social horizons of hope. Joanna Zylinska’s contribution to this volume develops this theme by looking at how the transformation of the very notion of life and of the accompanying idea of the human, as well as the promises and threats to human and animal health posed by science and technology, have evoked particular hopes and anxieties among the public in Western

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liberal democracies. For her bioethics has been given the task of having to arbitrate over life, death and the nature of the human in the age of biotechnology. She suggests that its response to this task has so far been conservative, in the sense that the foundational humanism of the theories and practices upon which traditional bioethical discourses have been based – be it in their religious or secular guises – has remained intact even though recent advances in scientific technology have called into question not only humans’ ontological status as skin-bound, sovereign beings but also their kinship with, and dependency on, other species and material forms. She engages with the inherent humanism of bioethics and considers the possibility of thinking bioethics otherwise – beyond the belief in the intrinsic dignity and superior value of the human, and beyond the rules and procedures rooted in this belief. Melinda Cooper in her essay also engages in a critical rereading of life in its current biocapitalist mode. She questions why it is that we have inherited a philosophy of life that seems to affirm – indeed ontologize – the contemporary forms of biocapitalist production without offering a corresponding critique of its political economy and modes of capture? Her concern is to find a way in which we can intervene in and contest such regimes of biological production without resorting to something like a nostalgic politics of life, a politics in which the potential human all too often comes to figure the messianic horizon of a foundation to come? In the domain of domestic and international politics contemporary modes of law as biopower are clearly exhibited in what has been termed the “war on terror” where individual bodies and entire populations become the targets of a heightened desire to impose order and control on the part of governments. As can be seen in Lisa Parks’ essay in this volume, certain procedures have been effected in the war on terror that produce a direct image of the lawless. It is through processes of airport monitoring, immigration control and restrictions placed on individual rights that the terrorist is produced as the bomb wielding, border transgressing, hate-inducing and fundamentalist other of law. It is also the case that those bodies who are engaged in process of monitoring also make up the power of the law. Indeed as Ian Buchanan and Laura Guillaume argue in their essay in this volume the spectacle of the “war on terror” is what enables what Deleuze and Guattari term unavowable politics to function. It gives desire something to invest in even as it derides our need to believe in something. For Buchanan and Guillaume war has not only lost legitimacy, but lost the need for legitimation. The discourse is such that the public will to war can be assumed without being tested. The political will to use military force,

Rosi Braidotti, Claire Colebrook and Patrick Hanafin 5

undoubtedly strong in the immediate aftermath of 9/11, has become a foundational reality which is unthreatened by actual manifestations of discontent about the course of the war in Iraq, making war seem ever more eternal as it becomes ever more useless. This collection calls for another thinking of the relation of law and politics to the bodies of individual citizens and to the environment in which they are located. In our role as either citizens or rights-claiming subjects in contemporary liberal democracies the efficacy of our speech is limited because, to paraphrase Foucault, we as speaking subjects are also the subject matter of legal and political discourse. The interlocutor (in this case the political elite or the judiciary) is always in the position of authority. What the essays in this collection perform is a rethinking of the manner in which the subject of law and politics is defined. In this other jurisprudence, a renewed emphasis on the shifting boundaries between living and dying, surviving and becoming extinct, can be distinguished. As is demonstrated in several of the essays, the resurgence of vitalism can be seen as profoundly regressive, with the invocation of “life” in pro-life politics operating as a way of silencing political debate. On the other hand, an attention to the vital forces that are the very basis of politics; the living bodies that are the basis of terror, rights and exclusions requires a thinking that goes beyond the notion of the subject as a speaking/knowing being. In this thinking one can detect the instantiation of a thinking of legal subjectivity as embodied existence, which subsists beyond the biopolitical traps of territory, nation state and identity. This relational encounter of the individual with the law, as Deleuze reminds us “threatens to bring what’s been established back into question” (Deleuze, 1995, p. 153). What is at stake here is a politics beyond the bureaucratic rights-giving or rights-depriving state, which remains after the word has been said. This is the self declaring itself not in response to the call of the state or as the subject matter of rights, but as an active participant in political affairs. It is a self which exceeds fixing.

Bibliography G. Deleuze (1995) Negotiations: 1972–1990 (New York: Columbia University Press).

2 Legal Theory after Deleuze Claire Colebrook

Introduction If Deleuze, and Deleuze and Guattari, appear to have re-shaped the very meaning of what it means to be theoretical, then what consequences does such a transformation of the critical paradigm have for legal theory? To begin with we might make a preliminary remark regarding theoria, with its emphasis on a distanced, elevated and self-consciously critical relation to everyday knowledge, opinion or doxa. Recently there has been much talk of an ‘end’ of or ‘death’ or indeed epoch ‘after’ theory, with the post-theoretical being defined as a return to life and history (Docherty, 1990; Eagleton, 2003). Part of the reason for this perceived opposition between theory and life results from a certain reading of theory in the 1980s and 1990s that was dominated by the linguistic paradigm. That is, theory was often assumed to be an interrogation into the ways in which life, experience and the world in general were mediated or constructed through systems such as language.1 In terms of legal theory this resulted in a highly specific reading of twentieth-century French thought: ‘law’ was taken to be not only the positive laws and traditions of the legal system but a condition for the possibility of experience in general. This expansion of the concept of law can be discerned in the uptake of the works of Jacques Derrida and Jacques Lacan (Cornell, 1991), where it was assumed that ‘law’ could refer both to the general condition of being subjected to some system of order, and to social normativity and legality. It is this concept of law as an enabling and constitutive condition for subjectivity (and that is also anterior and transcendent to living subjects) that can be contrasted with the critique of the primacy of law by Gilles Deleuze and Félix Guattari. 6

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In what follows I will outline the ways in which law has been theorised from the point of view of what Deleuze and Guattari refer to as the ‘despotism of the signifier’, or the assumption that life is necessarily experienced as mediated or constituted through a symbolic system of language. We can then see the ways in which Deleuze and Guattari offer a theory – or an account of the emergence of relations and subjects – that is also committed to the possibility of intuiting the very genesis of law in history.

Deconstructing law Not surprisingly one of the great events of late twentieth-century ‘theory’ – the deconstructive turn taken by Jacques Derrida – has had a profound impact on the very notion of critical thinking and, in turn, the very possibility of law. Derrida’s claims that justice is undeconstructible, and that deconstruction is justice, rely on a highly formalised concept of law (Derrida, 1992). Law is always an articulation or prescription of what ought to be the case, and therefore makes a claim or appeal to justice in general. At the same time, no law in its singular articulation or execution ever achieves the ideal or truth of justice. If justice is that which remains the same, regardless of context, force or interest then it must transcend any particular will, intent or concrete instance, for the very meaning of concepts such as truth and justice is their radical difference from the locality of force and particularity. Deconstruction, which Derrida will constantly differentiate from some system or method applied to meaning and thinking, takes the very possibility of thought, sense and truth seriously, and from the very conditions that make truth and justice possible discloses a necessary impossibility. A concept (such as justice) can operate within a context only if its utterance ‘intends’ some sense that would be repeatable beyond that specific context. While meaning and experience necessarily ‘intend’ or open up to that which goes beyond the pure given or immanence of finite experience, that which is beyond experience is never given or never arrives. It always remains ‘to come’. In this regard Derridean deconstruction is perhaps the most stringent and serious commitment to the possibility of theory, allowing for an equally radical commitment to theory’s concomitant concepts of law and justice. Theoria does not remain within the given but asks how the given is possible. How is it, for instance, that we possess concepts such as ‘law’ and ‘justice’? Theory is therefore essentially tied to the transcendental. It does not accept the simple presence of the transcendent, but asks how – from

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the finitude of experience – we encounter the thought of that which would go beyond any particular or finite experience: law in general, truth in general or justice in general. Theory is tied in two senses to law: for theory accepts that if we experience a world as having a certain being that is other than ourselves, then there must be some lawful process through which such a world is constituted. It is just this structure of acknowledging that there must have been some way in which the subject opens out to a world that is not its own, that gives us a moral idea of law. If it is possible for me to experience this world as an ordered and causal realm, it is also possible for me to think (but not know) of a subject who would be a pure example of the processing of ordering. How would such a subject give a law to itself? It could not appeal to any law in the world, but would be required to imagine itself as one who legislated a world. Derrida is at once indebted to the Kantian tradition of considering the possibility or genesis of law – how it is that we can think law as such, independent of its particular instances and inscriptions – and, at the same time, Derrida is critical of the idea that we can achieve a grasp of the idea or purity of the justice that would be beyond any single law. The Kantian critical turn occurred with the demonstration that while we can think of concepts that would transcend any empirical instance, we can never intuit or be given knowledge of these concepts in their completion (Kant, 1998). For Kant, then, such concepts can only have a practical, never a theoretical, fulfilment. We can only know that which is given to us, and so in this respect all theoretical knowledge is relational, and relies upon transcendental categories and forms through which the world is ordered or given. We know the world as lawfully ordered, but we never experience the law-giving power itself. We know ourselves as subjects, because our world is subjectively formed, but we never experience subjectivity as such. For Kant, the subject is just this necessarily presupposed (but unknowable) forming power, and it is this structure of subjectivity that makes law thinkable, but not intuitable. We cannot intuit the law as an object of possible experience, and this is because the very nature of law (and the lawful in general) is that which remains the same and has universal force above and beyond any particular empirical instance. This idea of law has a weak and strong sense. We perceive a world that is ‘lawful’ and our enquiry into this ordered world presupposes that the world will follow the laws we have discerned. In this sense of natural or given law we rely on reflective judgement. We can never know a law of nature but we presuppose it in all our enquiry,

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and assume lawfulness not just for ourselves but also for others (Kant, 2000). In a much stronger and moral sense, law is possible to be thought but not known. If I can think of myself, not as a being determined by worldly interests and pleasures, but as a being capable of acting justly as such, regardless of who is before me, then I am not given knowledge of the law, but have an idea of law: that there can be law (Kant, 1996). Given that law cannot be known, then I am left with the idea that one must give a law to oneself without being able to rely upon any normal or normative notion of human life. Derrida’s deconstruction is both an extension of Kant’s rigorous critique of the possibility of theoretical knowledge and – through the very fidelity of that extension – a disclosure of the aporetic relation of law and justice. Kant makes a strict distinction between theoretical and practical possibilities for thinking. Theoretical knowledge follows from the relations we bear towards an intuited world, a world that we know only as it is given to us. Practical judgement is based on what we can think. We can imagine a law that would refer to subjects not as they are given in the world but as they would be as purely autonomous. Kant therefore relies upon a transcendental subject. This subject cannot be known but must be presupposed as being the same for all. Such laws are the subject’s own and cannot be experienced because they make experience possible. When reason is practical, it is the idea of pure law – a law that would command me to act as if I were an absolutely free subject concerned only for law as such – that allows me to think of myself and others as pure ends in themselves (Derrida, 1981). Derrida extends this idea of the purely formal, both generally in his theory of concepts, and specifically in his meditations on law. Whereas Kant has recourse to a transcendental subject whose concepts would provide a lawfulness for the world, and whose practical and moral freedom would enable a pure decision of duty and law, Derrida can appeal to no such transcendental ground of purity. On the contrary, we can only have concepts, subjects, discourses, laws and acts of justice through différance. Law requires inscription, articulation, tracing or the marking out of its terms through time. There are not subjects who institute law, for the very experience of oneself as a subject follows on from a genesis of structures that the subject himself has neither authored nor experienced. Once there has been structure or the production of some differential system, it is possible, indeed necessary, to consider the origin or emergence of that system of law, but such an origin is only known after the event. Derrida recognises that while justice is that which must transcend and govern any context, it is also the case

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that we only know justice as given in positive and less-than-pure laws. Because law is always located in a language, context, series of claims and presuppositions, it is always deconstructible. It is the concept of justice that is at once diminished by the law, for a law must always respond to this problem, this other person and this claim, thereby precluding any pure or purely abstract law (Derrida, 1995). While law violates the absolute singularity of individuals it is only the appeal beyond individuals to a truth of justice in general that opens up a responsibility beyond mere force. The deconstructive intervention in law requires us at once to acknowledge that we must be responsible and lawful always with attention to that which cannot be universalised, at the same time as law calls upon us as law to think of the other or the singular as wholly other (as worthy of a justice that can never be given, that can never arrive and that would in this sense be always ‘to come’). It is only through the claims of justice, which for Derrida cannot be deconstructed, that one can solicit and challenge laws. At the same time it is only through the singularity, inscription and practice of law that one can appeal to the pure law or justice that transcends any law as such. Derrida insists that deconstruction is affirmative, and that it is the affirmation of justice, for it opens up any positive law to an idea of an undeconstructible force that precludes any resting secure with law as its stands. It is this futural dimension which Derrida emphasises to radicalise Kantian ethics. For Kant it was the idea of the human personality that enabled the subject to think of himself as a practical power capable of thinking of a pure duty. Derrida refuses the possibility that we might ever arrive at this pure subject who could maintain a critical distance from all given and determined laws. Without that appeal to an original, if purely formal, subjective ground, Derrida’s deconstruction can never arrive at justice or pure law, but can only regard any positive law as necessarily haunted by the possibility of a justice that resists full conceptualisation and actualisation. One way of thinking the concrete implications of such a deconstructive theorisation of the law would be through the relation between law and terror. The relation between law and terror has come to the fore in the ‘war on terror’, where we are increasingly presented with compromises, exceptions or diminutions of the law for the sake of political expediency. If we want to protect and secure ‘our’ lawful world we may need to act unlawfully to protect ourselves from those who would destroy the institutions of law. For Derrida, law is possible only through what he refers to as ‘auto-immunity’: a social body can protect itself or

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give a law to itself only if it also accepts the risk of a destruction to itself (Derrida, 2005, p. 18). In the ‘war on terror’, for example, we see the process of the protection of the social and legal body occurring only with the very possibility of that body’s attack. Such an attack takes the form of anticipated others, whose exclusion from the state requires a certain damage the state must make upon itself (both through going to war, and through being at war with its own legal body). We can also think of Giorgio Agamben’s theorisation of the ‘state of exception’ (Agamben, 1998). For Agamben, it is in the state of exception that we see the pure potentiality for law, or at least the actualisation of law in sovereignty. When law is suspended we can see that law has force only if it is instituted. This means that law as actualised relies on a force that is not itself subject to law. It is not the case that we can reduce law to the lawful, for the lawful sovereign body is the actualisation of law in force, while law itself (the pure potentiality of a ‘law without force’) is witnessed as possibility only with the law’s violation or suspension. In the ‘war on terror’ it is precisely in the violence of Guantanámo, renditions, Abu Ghraib and a series of violations in the name of a provisional need to maintain the force of law that we can witness the potential of law as that which must be other than any instituting violence. For both Derrida and Agamben, law is other than the violence of institution – other than terror – at the same time as it requires a certain terror or violence for its concrete institution. For Derrida this is the ‘opposition’ – which is never a pure distinction – between law and justice, while for Agamben it is this pure potentiality of law without force that can only be discerned in those moments when law is suspended by force. There is always, for Derrida, the contamination of justice (or pure law) with terror. While the thought of justice opens us up to the idea of that which would give response to the integrity and singularity of every other, we all know that laws must – by their generality – miss the singularity of the other and therefore commit a certain violence or injustice. Law can only act or have force if it is particularised in institutions and practices, but this means that it always fails to be just, for it will always in its practical workings miss the radical singularity of claims and the purity of truth.

Deleuze and thinking law otherwise How does the Deleuzian turn in ‘theory’ provoke a shift in the possibility of thinking law otherwise? Deleuze’s ‘theory of theory’ seems at first to be anti-theoretical. Far from opening up a thought or idea of

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that which would exist beyond any possible given instance or actuality, Deleuze is committed to immanence. If theory is (or has been) the capacity to consider conditions for the possibility of experience and knowledge, with an accompanying move to a transcendental position of critique where one would always place claims to the universal beyond experience, then Deleuze opens another idea of theory. Here theory does not seek ideal conditions that would be radically other than the given, for theory is the overcoming of our located and given viewpoint (the human, the lived, the subject) in the name of real conditions: not conditions for how the world is given to, or lived by, ‘us’ but the real or time in its pure state. Theory is the creation of viewpoints that would allow us to discern the emergence and production of lawfulness, a lawfulness that goes beyond human institutions, beyond concepts and ideal categories and beyond the world as it is given actually in chronological time. Deleuze’s commitment to immanence is a commitment to genesis and emergence. In the idea of law, for example, one does not simply ask how such a term is conceptually possible. One goes beyond the notion that law requires a certain language, along with a certain institutionalisation, to the question of how concepts are created and what reality must be if something like societies of law and lawful relations have evolved. Like Derrida and Kant before him, Deleuze does not reduce law, conceptuality or potentiality to the world as it is actualised. Like Derrida, Deleuze (1994) maintains a commitment to the ‘Idea’ in the Kantian sense. Distinct from any positive law we can have the ‘idea’ of law. The key difference between Deleuze and Kant, and Deleuze and Derrida, lies in the commitment to the immanence of ideas, an immanence which is enabled by Deleuze’s theory of the virtual. Deleuze sees theory as the concrete and empirical inquiry into the virtual. The critical theory tradition, following Kant, would acknowledge that we only know terms as they are given, only know any phenomenon relationally; it follows that we could never know anything like justice itself. This is because the attention to theoria, or the relations through which we intuit the world, are assumed to be ‘our’ relations. In other words, knowledge is delimited by our discursive conditions. It is for this reason that law is at once our burden, for we must decide and be responsible in the absence of any given or knowable ground, while at the same time remaining aware that who ‘we’ are and the conditions of ‘our’ relation to what is not ourselves can never be fully disclosed. For Deleuze, the ‘idea’ is a way of thinking through the immanence and positivity of the virtual, and the creation of concepts. By referring

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to real conditions, Deleuze focuses on the virtual not as some structural condition that we only know after the event, but the virtual as the real potentiality from which actuality unfolds. In addition to societies, revolutions or laws as they are known in history, there is also the idea of society, the idea of revolution and the idea of law. This world as it is known and lived emerged from a range of potentialities that have a real range and conditions. The real, though, is not the actual. What Deleuze is doing with theory is demanding that we do not accept any structure without interrogating its real emergence. There can only be concepts, laws and societies because of a virtual potentiality that allows for the creation of actual instances. This virtual domain of Ideas is not some abstract and undifferentiated, or unknowable beyond that we can only approach negatively and critically. For Deleuze, a strong theory of the virtual allows us to take a given positive phenomenon, such as law, and look at its actual and historical genesis and then look at its potentiality. Theory is not only critical, it is also intuitive. It draws on a vitalist tradition that insists that the very possibility of theory (as viewpoint, look, perception, apprehension) unfolds from potentialities which one can, and ought, to strive to know (Deleuze, 1988). This commitment to vitalism and immanence entails a transformation of what counts as knowledge, which is no longer the ordering of the given by or through concepts and discourse, but thinking in ways that go beyond our current knowledge apparatus. For Deleuze and Guattari this entails considering thought as creative. We think not when we submit ourselves to conditions but when we create concepts (in philosophy), functions (in science) and affects (in art) (Deleuze and Guattari, 1994). Let us consider these in turn. The concept of the subject relies on certain real conditions, such as a thinking brain, the institution of philosophy as a style of thought liberated from material and immediate efficiency and a certain ‘plane’ of this history of philosophy with its already installed debates, discourses, logics and technical apparatuses (including the library, the book, the computer and so forth). When Kant creates his specific concept of the transcendental subject he does not simply think within these actual conditions, but enables a transformation of what it is possible to think. This is because concept-creation needs to be understood as one of the ways in which the virtual is actualised. Concept-creation is a power or potential to think intensively – where one considers not what is actually given (all the beings we might generalise as subjects) but what might be thought (what might a subject be?). So philosophical concepts do have an actuality, for we can write the history of philosophy with a focus on how

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each thinker’s concepts have empirical determinations. However, we can also attend to the virtual dimension of every concept, its capacity to reorient what counts as possible. Philosophy’s creation of concepts does not (or should not) proceed by a material and extensive act (such as including other individual bodies) but an incorporeal and intensive event. For Deleuze and Guattari, when Kant creates the concept of the transcendental subject he links potentialities to think, to intuit, to feel, to imagine. Philosophical concepts are not applications of laws to objects – say, an inclusion of women within the set of humans – but reconfigurations of the lawful, allowing new modes of what may lay claim to the concept. The intensive nature of a concept lies in its creation of new orientations of potentialities, so that we can say that we think differently once Kant has created the concept of the subject, or once Derrida has created the concept of différance.2 While philosophy is the creation of concepts, art and science are different styles of thinking. Scientific functions also emerge from real conditions, both actual and virtual. The principle of relativity, for example, is not located in an observer but considers the relation between time and space as two mapped functions, without a consideration of a point of view for whom this principle would be ‘lived’. Art’s affects, no less than philosophy’s concepts or science’s functions, are also virtual powers distinct from the actual and the lived. Artworks allow matters to stand alone, so that we can read a Kafka tale and be presented with ‘terror’. Kafka’s style of writing does not create an interior psychology that would explain events, nor a realistic milieu that would allow us to locate events within history, nor a mode of dialogue or narration that would enable us to reduce the events of the story to a specific scene or gathering of characters. Instead, Kafka creates bodies – animals, prisoners, artists, insects, machines – whose interactions proceed without any explicable or revealed over-arching law. This absence of any revelation or transcendence, this absence of law, is given as a literary affect. In reading we are deprived of anything other than the presentation of encounters and interactions (Deleuze and Guattari, 1994, pp. 193, 198). ‘Kafkaesque’ comes to name something like an affective potential, in the same way that ‘Kantian’ names a style of conceptuality, and ‘Newtonian’ or ‘Euclidean’ name scientific styles. If Deleuze and Guattari parse out the potential for thinking into these three styles – art, science and philosophy – where would we place law? One answer is to say that law is a hybrid form, that it proceeds by adopting some of philosophy’s created concepts (such as justice, humanity, rights, duty and judgement) but that it also draws upon

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scientific functions (for forensic medicine has its own functions and styles of inhuman observation). Moreover, law is also in part a production of affects: legal cases have their own drama and style, with the narration of cases often creating affects of pity and horror and with legal judgements, possibly, imagining or creating worlds not yet lived. An example of this would be the recognition (in the two Mabo v Queensland cases of 1988 and 1992), which overturned the assumption that Australia had been terra nullius when it was invaded by British colonisation. In this ruling we can see law as creative of philosophical concepts (in that notions of justice no longer presupposed a common ‘we’ who would judge as a community, but allowed for the renegotiation of definitions of community). There were also various mutations of science, where historical investigation had to posit impartial observers to consider the past not as it had already been narrated but as it was in actuality. In addition, there were artistic and affective dimensions, where a new dimension of time had to be thought: not Australia as a present population, but a new way of thinking about individuals and habitation beyond ownership and colonisation. What was imagined was what Deleuze and Guattari refer to elsewhere (1986) as a ‘people to come’. By using philosophical concepts of rights and the self, and by investigations into history, a new idea of what Australia and its people might be played a role in a legal decision, imagining a future that would not be an extension of an already existing population (Ivison, Patton and Sanders, 2000). From a broad commitment to the virtual and to immanence, Deleuze and Guattari therefore render thought’s relation to what is not itself far more positive and creative. We should not consider thought’s potentialities from thought as it is actually given, but should see in the transformations of philosophy, art and science various ways in which thought can become other than what it presently is. Such a transformation in Deleuze and Guattari’s own work is achieved by looking at the actual and historical genesis of thought, and then considering what life must be such that these distinct domains and styles of thinking have emerged.

Deleuze, Guattari and the history of law This brings us indirectly to law, and in two senses. First, Deleuze and Guattari challenge the transcendence of law and they do this both through an actual history that traces the genesis of law, and then through an analysis of what they refer to as ‘social and desiring

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machines’, arguing for modes of operation irreducible to the transcendent concept of law. Second, and through a theory of the virtual, Deleuze discloses an entirely other, immanent, vital and more positive conception of jurisprudence. Whereas Derrida acknowledges a certain irreducible contamination of law and justice by terror, such that the ideal of justice must be articulated or enforced by some law, Deleuze and Guattari historicise the emergence of law and tie it directly to a transition from a ‘theatre of cruelty’ to a ‘despotism of terror’ and then finally to a cynicism of capitalism. The most significant aspect of their history of law lies in their description of a pre-despotic and therefore pre-legal conception of society. They are insistent that our contemporary understanding of the transcendent status of the law can be supplanted by an awareness of other modes of social assemblage. Their historical thesis of a social machine prior to law is also a hypothesis regarding a possible future. To understand the futural significance of their ‘universal history’ as it is outlined in Anti-Oedipus, we need to see the ways in which they regard modern, capitalist societies as at once singularly contingent and as disclosing the truth about history and social functioning in general. It is true, they acknowledge, that we are currently suffering from an Oedipal structure, which is tied directly to capitalism and a certain notion of the law. Here they draw directly on the structural psychoanalysis of Jacques Lacan, who insisted that one could only be a subject through subjection to law, and that this subjection was Oedipal in its imaginary dimension. Deleuze and Guattari oppose this thesis by insisting on the reality of desire. Social machines or the network of law and relations are not primary, for social machines and law work upon and require flows of desire. Desire is not some imagined effect of the law. It is not the case that one requires an original prohibition to create a desire that must have been. It is the case, they concede, that Oedipal desire is an effect of the law, for it is the prohibition on incest that leads us to assume that incest is what we must have desired. This prohibition distorts a real and revolutionary desire, a desire that is beyond the law insofar as it is not yet a desire for recognition or social production. It is an intensive desire (Deleuze and Guattari, 1983, p. 114). As an example we might return to the Mabo case. One way to read the legal claim of Aboriginal peoples for native title is through recognition. A claim for land would be a claim for inclusion, given that selfhood today is largely conferred through capacities for ownership. On such a reading the desire of any claim is derived from the social machine of legitimation. Another, intensive, reading of such claims is that there

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is a directly revolutionary desire that takes the form of an attachment to the spirit of a space that is not yet subjected to the social machine of capital. This desire for land might enable the formation of another social machine that would also be a coding of desire. However, as it functions in the Mabo v Queensland judgements, we could see the desire for land as an opening up of the ‘war machine’, where the terms of a body politic are not yet decided (Ivison, Patton and Sanders, 2000). Deleuze and Guattari create a positive concept of desire that provides a radical overturning of the structurally constitutive understanding of law. It is not the case that in the beginning is law, system and relation, with the non-relation or ‘in itself’ being imagined after the event. Instead, they posit desire as a potentiality for creating relation: for example desires for land, for body parts, for sounds, for attachments. There can only be social machines, systems of law or lawfulness in general because of this potentiality for relations. We can give this potentiality a number of names, including the Body without Organs, desire, difference in itself, or the virtual. In all cases what Deleuze and Guattari reject is the primacy of ‘a’ relational system or even systematicity in general. There can only be systems, differences or laws if there are virtual potentials to differ, to enter into relation (Deleuze and Guattari, 1983, p. 111). Without setting up an overly dichotomous relation between Deleuze and Derrida we might suggest that the great contribution of Deleuze’s theory is that while he, like Derrida, insists that any presented being is the effect of some process of genesis, he also insists that it is possible to enquire into the virtual potentials from which such genetic potentials unfold. Derrida continually insisted that we only know genesis through the structures it has enabled, even if those structures never exhaust those potentials. This is made clear in Derrida’s very early essays on culture and the emergence of social relations. In response to Levi-Strauss, who argues that culture emerges with the prohibition of incest or the subjection of natural bodies to an order of exchange, Derrida notes that this distinction between pre-cultural desires and social structures must itself rely on a system of distinctions (Derrida, 1978). We are always already within difference, system and relations. To posit some naively utopian moment prior to prohibition is always to look back from instituted relations to some imaginary and illusory origin. The pre-systemic origin is effected from the system itself. When Deleuze and Guattari direct their arguments against Oedipus they do so in direct criticism of this assumption of the necessary imposition of law. It is not the case, they insist, that desiring bodies

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are constituted through law. It is not through prohibition or subjection that something like a self who is ‘before the law’ can take existence (Deleuze and Guattari, 1983, p. 161). Whereas bodies and their relations were once dominated or ‘overcoded’ through the imposition of terror by despots, it is now the ‘signifier’ that reigns despotically, internalising terror in the form of the Oedipus complex. To explain this they make a comparison between a ‘surplus value of code’, enjoyed by the despots, and the general process of ‘decoding’ in capitalism. A social body produces material for consumption through its interactions and technical processes. A certain excess can be enjoyed by the despot (in the form of sumptuous displays, wasteful expenditure or even the enjoyment of bodies denied to others). It is in this excessive consumption that the body of the despot turns the circulation of goods into a means for establishing his precedence. In this manoeuvre one body is set above the social body to define its point of order, the point from which it can be terrorised. Deleuze and Guattari describe the despot as one who subjects social alliance (relations among tribes and bodies) to filiation. The despot will claim to be descended directly from the gods. The despot’s body is therefore set outside the territory of producing bodies, as a point of anti-production. It is this point of immobility that subjects relations and flows of production to a seemingly transcendent or abstract point of consumption. The goods consumed by the despot in displays of excess are therefore productive of a surplus value of code, allowing the social machine to be explained by a body that is not part of the machine of production. Deleuze and Guattari make a series of points regarding what they refer to as this historical stage of despotism. First, social machines (or the productive relations among bodies) are always repressions of desiring machines. Deleuze and Guattari’s project in Anti-Oedipus (1983) and A Thousand Plateaus (1987) is one of writing a history of varying relations between social machines and desiring machines. Desiring machines are relations that are not yet organised according to named bodies (such as mother–father–child, master–slave or worker–labourer). A desiring machine is a flow of milk connecting lips and breast, a flow of blood connecting scarring hand and enjoying eye, a flow of food from hand to mouth or flows of sound connecting birdsong to attending ears. When such flows become stabilised, through regularised practices of child-rearing, tattooing, hunting or collective eating, then a social machine forms organised bodies from flows of desire. Their important point is that one should not see social machines as collections of human subjects, for there can only be discernible human forms

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(mother–father, male–female, or hunter–consumer) after desiring flows have been assembled into some minimally stable body of relations. This allows them to see law and terror as a form of deterritorialisation. Social machines commence as territories, or relatively stable systems of relation that enable production. As soon as one body appears as a point of law or order for a territory then one has moved from the primitive to the despotic social machine, to a body of law that overcodes the whole. The modern notion that we can only be subjects insofar as we are submitted to a system of signification – and that outside the law there is only the chaos and the terror of the undifferentiated – merely substitutes the abstract terror of the signifier for the concrete terror of the despot (Deleuze and Guattari, 1983, p. 73). The idea that we are necessarily mediated by transcendence is, Deleuze and Guattari insist, an ‘archaism’ that allows despotism to continue in an abstract and internalised form. The notion, then, of justice as some absent, unattainable, ever-deferred but always admonishing ideal is profoundly oedipal. We no longer regard ourselves as terrorised by some actual body who threatens to punish us for inflicting disorder on the social machine. Instead, we imagine that there is no self outside its submission to systems. Beyond our submission there is only the nightmarish chaos of the undifferentiated. When we subject our desire to deferral and lack we are really only obeying a structural law of civilised humanity. They describe this ‘paralogism’ of the law as, ‘The extraction of a transcendent complete object from the signifying chain, which served as a despotic signifier on which the entire chain thereafter seemed to depend, assigning an element of lack to each position of desire, fusing desire to a law, and engendering the illusion that this loosened up and freed the elements of the chain’ (Deleuze and Guattari, 1983, p. 110). We should not, according to Deleuze and Guattari, simply accept this miserable and Oedipal fiction of necessary subjection. It matters little whether this is a literal abandonment of the mother in the face of paternal threat, or the structural resignation to system and signification in the face of a fall into psychotic or meaningless disorder. What occurs with the modern conception of law and desire is an increasing internalisation of terror and despotism, and an increasingly miserable distance from law. One is a subject only through subjection of desires to the law, while law can only be given, not as any actual or positive body, but as that which will always be above and beyond any achievable end (Deleuze and Guattari, 1983, p. 215). It is all too easy to see the practical consequences of what Deleuze and Guattari describe. We can see the ways in which the subject of law in

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modernity suffers from this internalised, abstract, deferred and negative terror of structural negation. Humanity has become nothing other than a structure of subjection. In liberal democracies the self has no positive quality other than its submission to regulation. The social order, ideally, has no positive quality other than its prohibition of the intrusion of positive content from the network of social circulation. Human rights mark an interesting point within the discourse of liberalism that would define the self as properly autonomous, self-constituting and distinct from the imposition of any positive norms. Originally defined through notions of non-interference, rights have become ways of maintaining minimal forms of normative content. The right to free speech, for example, is thoroughly in accord with an internalisation of what Deleuze and Guattari refer to as capitalism’s decoded axiomatic; one is no longer governed by a tyrannical body, but is self-governing precisely through the absence of any specific norm or quality. The order of law as it appears in the imperial formation, and as it will evolve later, indeed will have something in common: the indifference to designation (Deleuze and Guattari, 1983, p. 214). If there is no law other than the law of self-regulation, then the only truth or right of humanity lies in its quality of self-making. This allows us to protect, defend and define rights to free speech and conscience, but also explains those odd intrusions such as the right to ‘bear arms’. In the absence of any norm or law other than individuals’ capacities to enter into relation, one must also begin to acknowledge the rights of those bodies to preclude undue intrusion, possibly justifying a right to defence. Can one say, then, that terror is a lamentable contamination of the law, as deconstructive approaches would have it? On a deconstructive account there would be an idea of justice – a responsibility one bears towards the integrity of others, and of what exists beyond the already normative and articulated domain of prescriptions – and then an expression of that justice in law, a law that would always, as enforced, be contaminated by a degree of terror. We could see the conflict today between rights and terror as following directly from this necessary relation. On the one hand, terror would be the other of law, a violent force and intrusion that would set itself against all forms of accountability, legitimation, universalisation and intersubjective accord. Ideally one would mark out a space of justice that would, in its intimation of that which is other than force in its pure respect for the singularity of every other, radically transcend the blind will of terror. On the other hand, one would also have to acknowledge a certain ‘auto-immune’ structure to the body politic, where the practice and possibility of law

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would require a limit to justice, such that a nation could only maintain and protect its rights and laws through a refusal of justice to the absolutely other (Derrida, 2005). This would account for, although not justify, the ways in which laws directed against terror have taken on the very quality of terror. We could include here not only those measures taken against others who are, in the name of law and freedom, identified as potential terrorists before any question of law has intervened, but also those who (from within the law) cannot be accorded the rights that the law seeks to maintain. There are both bodies that the law must exclude from itself in order to protect the law – potential terrorists who must not be allowed, say, to seek asylum or be heard as potential legal citizens – and bodies who from within the law are marked as being beyond the safe bestowal of rights (bodies who can be held legally, without trial, if suspected of being a threat to the law). Deconstruction, with its appeal to a justice beyond measure, beyond law and beyond calculation would provide a critical foil in such cases, and would do so by positing a justice beyond the pragmatism or Realpolitik of legal administration. A quite different critical and theoretical possibility is offered by Deleuze and Guattari’s genealogy of law as terror, and their positing of another mode of jurisprudence. Law and terror, they argue, are both effected through the same movement of deterritorialisation. Historically, there is a passage from a theatre of cruelty, where bodies are assembled and become parts of a social machine of production not through the elevation of one body and code but through polyvocality. Bodies can be assembled through the sounds that make up a collective dance, through the coordinated actions required for a collective hunt, through the communal spectacle of a circumcision ceremony where all the eyes are affected by the infliction of pain and through the chants and cries that alert and charm the ear. There is not one body or code in general that is determined as the body that gives sense and order to all others. Here, Deleuze and Guattari directly criticise Derrida’s insistence on the quasi-transcendental status of writing in general. Derrida argues that the notion of some moment of pure and self-present voice before the impersonal system of writing is illusory, for there can only be speech if there is already some system of difference. Deleuze and Guattari agree in part by acknowledging that speech, like dance, music, gestures or visual marks, is already a mode of coding, but they argue that in primitive societies codes can operate in distinction from writing. There is not ‘a’ system such as writing in general as the law of differences. Instead, in primitive social machines there are flows of

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voices alongside and not yet ‘flattened onto’ inscribing marks (Deleuze and Guattari, 1983, p. 202).

Notes 1. The notion that ‘theory’ took the form of a focus on language or textuality was most clearly articulated by those who considered themselves to be focusing on those real, historical and contextual forces that had supposedly been set aside by post-structuralism. See, for example, Gallagher and Greenblatt (2000). 2. For Derrida, différance is not a concept because it does not refer to, or intend, anything that could be thought as present or presentable. In Deleuze and Guattari’s sense of concepts as intensive, as vectors that enable orientations for thinking, all of Derrida’s key terms, including ‘justice to come’, are concepts.

Bibliography G. Agamben (1998) Homo Sacer: Sovereign Power and Bare life, D. Heller-Roazen (trans.) (Stanford, CA: Stanford University Press). G. Anidjar (2004) ‘Terror Right’, CR: The New Centennial Review, 4/3, Winter, 35–69. A. Badiou (2005) Being and Event, O. Feltham (trans.) (London: Continuum). D. Cornell (1991) Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (New York: Routledge). G. Deleuze (1988) Bergsonism, H. Tomlinson and B. Habberjam (trans.) (New York: Zone Books). —— (1993) The Fold: Leibniz and the Baroque, T. Conley (trans.) (Minneapolis: University of Minnesota Press). —— (1994) Difference and Repetition, P. Patton (trans.) (New York: Columbia). G. Deleuze and F. Guattari (1983) Anti-Oedipus: Capitalism and Schizophrenia, R. Hurley, M. Seem and H. R. Lane (trans.) (Minneapolis: University of Minnesota Press). —— (1986) Kafka: Toward a Minor Literature, D. Polan (trans.) (Minneapolis: University of Minnesota Press). —— (1987) A Thousand Plateaus: Capitalism and Schizophrenia, B. Massumi (trans.) (Minneapolis: University of Minnesota Press). —— (1994) What is Philosophy? H. Tomlinson and G. Burchell (trans.) (New York: Columbia University Press). J. Derrida (1977) Limited Inc: Abc … (Baltimore: Johns Hopkins University Press). —— (1978) Writing and Difference, A. Bass (trans.) (Chicago: University of Chicago Press). —— (1981) ‘Economimesis’, Diacritics, Summer, 3–25. —— (1992) ‘Force of Law: The “Mystical Foundation of Authority” ’, in Deconstruction and the Possibility of Justice, D. Cornell, M. Rosenfeld and D. Gray Carlson (eds) (London: Routledge), 228–299.

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—— (1995) The Gift of Death, D. Wills (trans.) (Chicago: University of Chicago Press). —— (2005) Rogues: Two Essays on Reason, P.-A. Brault and M. Naas (trans.) (Stanford: Stanford University Press). —— (2008) ‘How to Avoid Speaking: Denials’, in K. Frieden and E. Rottenberg (trans.) Psyche: Inventions of the Other, Volume II, P. Kamuf and E. Rottenberg (eds) (Stanford: Stanford University Press), 143–95. T. Docherty (1990) After Theory: Postmodernism/Postmarxism (London/New York: Routledge). T. Eagleton (2003) After Theory (New York: Basic Books). G. Gallagher and S. Greenblatt (2000) Practicing New Historicism (Chicago: University of Chicago Press). D. Ivison, P. Patton and W. Sanders (eds) (2000) Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press). I. Kant (1996) Practical Philosophy, in M. J. Gregor (ed.) (Cambridge: Cambridge University Press). —— (1998) Critique of Pure Reason, P. Guyer and A. Wood (trans. and eds) (Cambridge: Cambridge University Press). —— (2000) Critique of the Power Of Judgment, P. Guyer and E. Matthews (trans.) (Cambridge: Cambridge University Press).

3 The Time of Law: Evolution in Holmes and Bergson Alexandre Lefebvre1

The image of thought Adjudication has an uneasy relationship with creativity in the common law tradition. On the one hand, the defining quality of the common law is that it is judge-made law. In a sense, adjudication is nothing less than the ongoing invention of law through litigation. On the other hand, there is a longstanding tradition in jurisprudence that regards judgement as the application of rules to cases. Here, the job of the judge is to subsume cases under rules. A significant consequence of identifying judgement with subsumption is that creativity becomes reduced to either judicial activism or judicial accident. In creating the law, either the judge appeals to extra-legal considerations such as policy or personal preference, or else the creation of law happens only by mistake such that the judge suffers a lapse of judgement. Whether creativity is commended or condemned, it is seen as something extrinsic to the law – it becomes something that could, if perhaps only in principle, be eliminated from it (see Lefebvre, 2008). This reduction of creativity to accident or activism seems to me an inadequate characterisation of its role or function in adjudication. My purpose in turning to Deleuze, Bergson, and Holmes is to develop a perspective to see creativity as an inherent capacity of judgement. By concentrating on the theme of evolution (and with it, time and creativity) in Bergson and Holmes, I propose to displace the question of creativity in adjudication from an evaluation of its desirability to an articulation of its necessity. More specifically, I propose to read Oliver Wendell Holmes, the great realist jurist of American law, through Bergson’s conception of the creativity of life in order to develop Holmes’ vision of judgement as inescapably inventive. 24

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I want to begin with an examination of Deleuze’s concept of the dogmatic image of thought in order to reach the depth at which an evolutionary perspective orients Bergson and Holmes. The dogmatic image of thought is a key concept in Deleuze’s Difference and Repetition. In that text, it signifies a set of implicit presuppositions operative throughout the history of philosophy about what it means to think that compromise the true exercise of thought. Deleuze calls these presuppositions an image of thought because they are not concepts and have not been discursively secured; instead, they are opinions about what it means to think; they are what we imagine when we prephilosophically (or we could say pre-critically, if it didn’t have a too Kantian ring) ‘think’ about thought. As Deleuze says in an interview, ‘We live with a particular image of thought, that is to say, before we begin to think, we have a vague idea of what it means to think, its means and ends’ (Deleuze, 2004b, p. 139). In short, philosophy and commonsense alike (or rather, philosophy as compromised by its unexamined commonsense) have assumed certain things about thought, what it is and what it does. Deleuze calls this image of thought dogmatic: first, because it has been drawn from the very realm of opinion and commonsense from which philosophy has classically pretended to break and get its start, and second, because it assumes that recognition is the vocation of thought. This second point is the foremost assumption or image of dogmatic thought: thought equals recognition. With recognition as its aim, thought is reduced to a task of identification. And, as a consequence of its drive to recognise, dogmatic thought threatens to assimilate all its potential encounters (with things, others, texts, etc.) into the concepts and categories used to recognise them. But there is an added complexity to Deleuze’s concept of the image of thought: it changes over the course of his writings. In his earlier work, as represented by Proust and Signs and Difference and Repetition, the image is identified with dogmatism and, as such, is rejected as a spurious, non-philosophical foundation for thought. ‘A single Image [of thought] in general’ spans from Plato to phenomenology and saddles philosophy with presuppositions (commonsense, goodwill, and recognition) that separate it from its classical critical vocation of breaking with opinion or doxa (Deleuze, 1994, p. 132). And so, Deleuze calls for ‘a thought without image’, one able to find its difference and beginning for being ‘without any kind of presuppositions’ (Deleuze, 1994, p. 132). But two decades later in the preface to the English edition of Difference and Repetition, Deleuze proposes the possibility of a ‘new image of thought – or rather, a liberation of thought from those

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images which imprison it’ (Deleuze, 1994, pp. xvi–xvii). What could be the characteristics of such a new image? Given that it remains an image, what place does it preserve for pre-philosophical, albeit nondogmatic, departures? The answer I wish to suggest is that Deleuze’s interim work between Difference and Repetition (1968) and its new preface (1994) – specifically the Cinema books (1983 and 1985) and What is Philosophy? (1991) – led him to find in Bergson an image of thought irreducible to dogmatism. If we were to identify a single proposition of Bergson to summarise his philosophy it would be the following: ‘Time is invention or it is nothing at all’ (Bergson, 1998, p. 341). If the future is given alongside the present (either as a calculable function of it, or as a plan to realise out of it), then time means nothing; in other words, a meaningful conception of time must allow for unpredictability or inventiveness. As we will see, Bergson relentlessly pursued the implications of this proposition and gave it a concept: duration. Nevertheless, there is a sense in which this proposition is perhaps not primarily a concept but rather an image, a hunch, or an intuition that multiplied into so many examinations of the relationship between time and creativity in psychic life (Time and Free Will), ontology (Matter and Memory), cosmology and evolution (Creative Evolution), physics (Duration and Simultaneity), and the sociopolitical (Two Sources of Morality and Religion). As Bergson comments in the opening pages to the Creative Mind, even as a youth reading Spencer, long before he had formalised any concept of duration, he had a strong impression of dissatisfaction in that ‘real time’ was eliminated from philosophical systems (Bergson, 1974, pp. 11–12). As he says, ‘I perceived one fine day that, in [Spencer], time served no purpose, did nothing. . . . Nevertheless, I said to myself, time is something’ (Bergson, 1974, p. 93, translation modified). And, speaking just as autobiographically in that same text, Bergson claims that any great philosopher has, in all honesty, only one or two ideas that serve as simple and concrete starting points to elaborate over the course of his or her life. These are insights so ‘extraordinarily simple that the philosopher has never succeeded in saying it. And this is why he went on talking all his life’ (Bergson, 1974, pp. 108–9). For Bergson, his so-called simple insight was that the task of philosophy is not to think the eternal but to think the new as it makes itself in time, for it is nothing other than time itself. I suggest, therefore, that when Bergson claims that time is invention or it is nothing at all, this insight is as much an image as it is a concept. In other words, a rigorous and formalised concept of duration is inspired by a simple and inchoate image, by Bergson’s stubborn insistence to

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look for real and inventive time right from his youth and on to his most sophisticated philosophical constructions. Stretching them slightly, Deleuze’s commentaries on Bergson seem to corroborate the suggestion that Bergson’s philosophy is based on a non-dogmatic image of thought (time as inventive). In Cinema 1, Deleuze remarks that if time is no longer set in the image of eternity but is instead committed to thinking ‘the production of the new, that is, of the remarkable and the singular’, then what we witness is ‘a complete conversion of philosophy’ (1986, p. 7, emphasis added). Deleuze’s term conversion is suggestive of a theological interpretation in the sense of a faith in this new image of time. If, as Deleuze claims, an image of thought is necessarily non-conceptual (as the pre-philosophical foundation that inspires and orients conceptual inquiry), then it operates as an indemonstrable point of departure or inspiration that launches thought and not as a discursively defended concept. In this sense, when dealing with an image that we cannot but convert, we cannot but change our beliefs from a dogmatic image of thought that longs for the eternal to a new image of thought for which time is invention. The phrase ‘a new image of thought’ simultaneously indicates the newness and the imagistic nature of this thought. The image continues to designate a ‘pre-philosophical’ foundation for thought (Deleuze and Guattari, 1994, p. 40). Only now this image is ‘new’ insofar as it is committed to the thought of creativity and novelty, of time as invention. In this sense, a new image of thought becomes inassimilable to opinion, with the consequence that thought can be based on an image and simultaneously execute a critique of doxa. As inventive or untimely, a new image of thought shakes off and finds a unique perspective from which to criticise the dogmatic image (whose opinion-ridden postulates such as goodwill, recognition, etc. profoundly inhibit the ability to think the new). And so, I suggest that the discovery of a non-dogmatic image of thought in Bergson may be one of the reasons that, late in his work, Deleuze comes to affirm the potential for (and the powers of) a new image of thought. This chapter undertakes the search for a new image of law that can appreciate the inventiveness of time and adjudication, or, more exactly, the inventiveness of adjudication insofar as it is in time. To start, I introduce two concepts of Bergson – internal difference and differentiation – that start from and develop the notion that time is inventive. Next, I turn to Oliver Wendell Holmes’ Common Law and claim that its image of thought is not dogmatic but, like Bergson, starts from the presupposition that time is inventive. The orienting image of

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this great work of American jurisprudence is that adjudication is based on the desire of a society insofar as desire changes in time. This means that the work of the judge cannot be assimilated to (or explained by) the straightforward recognition and application of rules to cases; instead, it will be argued to have an inherently creative power.

Bergson: Time as invention (internal difference and differentiation) I have spoken of creativity but what does it mean? What are, according to Bergson, the requirements for creativity? Foremost, the future must not be calculable from given elements of the present. If the future could be anticipated or prophesied from the basis of the present, all would be given and time would be deprived of its efficacy. Time would be a mere chronological withholding of that which cannot be given at once and in which nothing new, that is, nothing unpredictable according to the elements of the present, could happen. It is helpful to look at two positions – mechanism and finalism – usually considered in opposition, that Bergson identifies as committed to the calculability of the future. The essence of mechanism is to foresee change as the displacement and rearrangement of parts that do not change. ‘To foresee consists of projecting into the future what has been perceived in the past, or of representing for a later time in a new grouping, in a new order, elements already perceived’ (Bergson, 1998, p. 6, translation modified). We can draw three consequences of a mechanistic conception of time. First, we deal with unchangeable parts, unalterable by time. Change occurs only in the displacement and combination of parts, never in the parts themselves (if the parts change we merely isolate smaller parts, from organisms, to organs, to corpuscles, to atoms, etc.). Second, change is reversible in that if basic parts remain unmodified, then, in theory if not in fact, there is nothing to prevent their return to an initial position. And third, by way of conclusion, nothing is created – what the set will be is always already present in what the set is.2 In Creative Evolution, Bergson radically rejects the received opposition between mechanism (with its inexorable yet fortuitous laws) and finalism (with its intelligible designs and purposive ends). In fact, he establishes an antinomy: mechanism and finalism develop a shared illusion in opposite directions. The shared illusion is that the concepts of the intellect are intended for speculation when, in fact, they are meant for action. As Bergson puts it, in a formula that condenses pragmatism to a point, ‘originally, we think only to act’ (1998, p. 44, translation

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modified). It is with action in mind that mechanism identifies closed systems and discrete parts to enable calculation. Such an approach is perfectly legitimate for purposes of action, but when mechanism believes it can offer true knowledge of the singularity and becoming of things, it falls into an illusory and illegitimate extension of its actionoriented concepts. Finalism too is perfectly legitimate, as a doctrine of action. ‘In order to act, we begin by proposing an end; we make a plan, then we go on to the detail of mechanism to realize it’ (Bergson, 1998, p. 44, translation modified). For Bergson, human beings are fundamentally artisans and builders, homo fabers who act according to designs. A doctrine of ends strays into illusion when it takes this uncontestable pragmatic doctrine of human ends and action and claims that the universe is likewise oriented. When finalism dialectically extends itself and claims that the universe also operates with ends in mind it falls into the same illusion as mechanism: all is given, only this time in accordance with the realisation of a plan. Time becomes nothing but the realisation of a programme (Bergson, 1998, pp. 39, 44–5). In Creative Evolution Bergson rejects mechanism and finalism because their mutual image of time – ‘all is given’ (Bergson, 1998, p. 345) – suppresses the most striking feature of life: creativity and the invention of differences. Creativity, therefore, cannot consist in a conception of time wherein all is either given in the present or in the future; it always consists of the production of the new. In what follows, rather than comprehensively relate Bergson’s Creative Evolution, I outline two central concepts from this text as they anticipate the discussion of creativity and time in the law and in Holmes. These two concepts, both committed to explicating Bergson’s image of thought that time is invention or it is nothing at all, are internal difference and differentiation. I begin with internal difference. Internal difference is that which differs from itself, it is the unity of a subject and its becoming. At the outset of Creative Evolution, Bergson proposes the following psychological example, which soon develops into an ontological thesis. Every day I apparently pass through many moods and states. ‘I am warm or cold, I am merry or sad, I work or I do nothing, I look at [that] which is around me or I think of something else’ (Bergson, 1998, p. 1). For the sake of convenience, these states are spoken of as if separate blocks: earlier I was bored; now I’m merry; later I’ll be sad, and so on. Doubtless, this is an expedient mode of expression but it leads to a number of absurdities. First, moods are said to be self-same entities that endure over a period of time. If a mood were seen to vary, it would be broken down according to the principles of mechanism toward an infinitesimal limit, into shorter

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and shorter moods in order to guarantee a self-identity to each mood unit. Second, the process of change from one mood to the next remains incomprehensible. If each mood is self-same it is utterly mysterious as to how I can pass from one state to the next. Third, in order to reunite these moods, we must posit an artificial bond: that of an underlying and indifferent ego that threads together these psychic states to ensure their continuity within a same subject. Bergson instead proposes that we grasp psychical life as ceaseless variation over time: there is ‘no feeling, no idea, no volition which is not undergoing change every moment’ (Bergson, 1998, p. 1). On the one hand, each state is in constant variation and so forfeits any designation as a self-same unit; on the other hand, if our psychic life is constant variation, the ‘passing from one state to another resembles, more than we imagine, a single state being prolonged; the transition is continuous’ (Bergson, 1998, p. 2, emphasis added). With this, Bergson resolves each of the absurdities: moods are no longer divided into self-same units but constantly vary; the passing of moods becomes explicable as the uninterrupted alteration and blending of ‘states’ (strictly, we can no longer speak of states); the notion of an indifferent, underlying ego is replaced in favour of a subject with a singular becoming in time. This is Bergson’s concept of internal difference: the unity of a subject and its becoming. And there is no reason to limit this concept of internal difference to psychic life; more fundamentally, it is ontological. Here, it is rewarding to draw on Deleuze’s powerful and systematic reading of Bergson. Deleuze observes that with internal difference Bergson proposes a fundamental and novel concept of difference no longer confined to distinguishing between subjects as in specific or generic difference3 (Deleuze, 2004a, p. 33). Despite what the exigencies of action and commonsense say, difference is not primarily the delineation of two things determined as different, identified or subsumed by different concepts. As Deleuze puts it, Bergson’s insight is that ‘difference is not exterior or superior to the thing’ (Deleuze, 2004a, p. 33, emphasis added). Difference is the thing itself; it is the very being of the subject. A being is neither an indifferent and stable subject nor is it modified through multiple states; instead, a being is nothing other than its continuous modification in time. In brief, Bergson’s concept of internal difference is a concept of ontological difference: beings are, and express nothing other than, difference (duration). This is the meaning of Bergson’s most famous concept, duration: time as internal difference, as becoming. Evolution exemplifies internal difference. What is evolution in fact? It is life in time. This expression must be strictly construed as internal

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difference. As Bergson puts it, ‘Wherever anything lives, there is, open somewhere, a register in which time is being inscribed’ (Bergson, 1998, p. 19). In other words, and this is not a banality, life occurs in time – it can be understood only by a concept of internal difference, that is, continuous change in time. In relation to life as internal difference (evolution), Bergson repeatedly insists that organisms are expressive not of states but of tendencies (Bergson, 1998, pp. 12–15). In Creative Evolution, Bergson is primarily interested ‘not [in] the thing produced or evolved but the activity of evolution itself’, which is why organisms are expressive not of states or definitions, but of movement and directions (Ansell Pearson, 1999, p. 153; see also Marrati, 2005).4 Organisms are representative of directions – or tendencies – of life over time and the continuous alteration of life that accretes over time. ‘[Organisms] are therefore relatively stable, and counterfeit immobility so well that we treat each of them as a thing rather than as a progress, forgetting that the very permanence of their form is only the outline of a movement’ (Bergson, 1998, p. 128). Indeed, without considering internal difference, change in evolution could only be accidental and would occur only as a result of an extrinsic determination (Deleuze, 1991, p. 8). With the concept of internal difference, however, Bergson is able to provoke a reading of evolution as both modification between organisms over time and also the internal variation of an organism. At this point, I turn to the other main concept from Creative Evolution, differentiation. What characterises evolution for Bergson is the increasing complexity and differentiation of life over time. Contrary to mechanism and to finalism which both hold that life operates by association and reorganisation of parts, life always proceeds by processes of ‘dissociation and division’ (Bergson, 1998, p. 89). This is, of course, consistent with time as the invention of the new, as a productive and positive power. We said of life that, from its origin, it is the continuation of one and the same élan, divided into divergent lines of evolution. Something has grown, something has developed by a series of additions which have been so many creations. This very development has brought about a dissociation of tendencies which were unable to grow beyond a certain point without becoming mutually incompatible. Bergson (1998, p. 53, translation modified) If there is a doctrine of finalism in Bergson, it is found in the notion of the simplicity of an origin that over time divides itself into all kinds of

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life forms, themselves representative of lines or tendencies of development (Bergson, 1998, p. 51). In Bergson’s evolutionary scheme we see a major initial differentiation between plant and animal; subsequently, in the animal line we see a differentiation between those animals with centralised nervous systems (vertebrates) and those with decentralised nervous systems (arthropods). And, as evolution continues, or, as time goes on, we witness more and more differentiations and creations. But why does life divide itself? Why is evolutionary creation manifested through this process of dissociation and differentiation? To answer this question, I must introduce what is perhaps the fundamental biological category for Bergson: the problem. Let us take an example of a single problem – the use of instruments and tools to survive – that receives two divergent evolutionary solutions. It is through this problem that the sense of two great lines of evolution can be comprehended: instinct and intelligence. On the one hand, instinct is the faculty of using inborn organised instruments toward determinate and invariable ends; on the other hand, intelligence is the faculty for making and using unorganised instruments toward a variety of indeterminate ends (Bergson, 1998, p. 140). Faced with a problem (the use of instruments for survival), life proposes two solutions that represent different evolutionary lines (instinct culminating in insects; intelligence culminating in humans). In a beautiful phrase, instinct and intelligence ‘represent two divergent but equally elegant solutions to one and the same problem’ (Bergson, 1998, p. 143, translation modified). As Deleuze states in a lecture course on Creative Evolution, ‘The living [le vivant] is essentially a being with problems that it resolves at every moment’ (Deleuze, 2004c, p. 169). Each line of life is, therefore, related to a problematic situation (an environment or an ethology) in relation to which a body and form must be invented. This is why for Bergson, the living being ‘appears primarily as the stating of a problem, and the capacity to solve problems: the construction of an eye, for example, is primarily the solution to a problem posed in terms of light’ (Deleuze, 1991, p. 103; see also Bergson, 1998, pp. 58, 87–90). And if life proceeds according to the posing of singular problems with correspondingly singular solutions, it is easy to see why evolution is divergent. Every problem (e.g., how to use instruments, how to adapt light) is an original situation with its own temporal index and ‘imparts something of its own originality’; as such, life proceeds by an increasing dissociation according to the demands of problems and their corresponding solutions (Bergson, 1998, p. 28). Life is composed of tendencies in time differentiated according to problems encountered.

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To conclude, it has not been my intention to relate exhaustively Bergson’s philosophy of life in Creative Evolution, or to examine it in light of contemporary science (see Ansell Pearson, 2002, pp. 70–96; Duri, 2002). Rather, I have introduced an image and two concepts to guide our examination of Holmes. I began with Bergson’s opening image that time is invention or it is nothing at all, which I contrasted with the ineffective temporality of mechanism and finalism. Next, I introduced the concepts of internal difference and differentiation. The first of these concepts shows the identity between subject and alteration: a subject is a continuous multiplicity and the true subject of Bergson’s text is not a state or a product but a movement or a tendency. The second concept shows that tendencies are differentiated into new and inventive lines according to problems encountered and the corresponding solutions engendered. To sum up, we say that evolution is life in time: tendencies creatively differentiated according to problems.

Holmes: Evolution and the time of law Immediately, I say what I will not treat in this examination of Holmes and evolution: eugenics. I state this upfront, as the literature on Holmes and evolution obsessively turns on this point. It is a fact that the private, public, and professional writings of this famous turn-of-thecentury jurist consistently recommend eugenics and the engineering of a race. One polemical commentator goes so far as to identify eugenics as the only positive political project Holmes ever advanced (Alschuler, 2000, pp. 52–83). In this vein I can cite his speeches: ‘Perhaps in the future we shall care less for quantity and more for quality and try to breed a race’ (Holmes, 1992a, p. 6) and ‘I think it probable that civilization somehow will last as long as I care to look ahead – perhaps with smaller numbers, but perhaps also bred to greatness and splendor by science’ (Holmes, 1920f, p. 296). With greater notoriety, I can cite Holmes’ majority judgement in Buck v Bell defending forced sterilisation of the ‘mentally defective’: ‘It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind’5 (Buck v Bell, 274 US 200 (1927)). Although criticism of Holmes’ statements on eugenics and the intersection between law and biology is necessary, I have a different aim: the question of time in Holmes as he articulates duration and creativity in law, or law in time. As with my reading of Bergson, I propose an image and two concepts. I claim that the image that launches Holmes’

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thought is that adjudication is based on the desires and interests of a society as these change in time. Holmes never bothered to articulate explicitly (or, perhaps because of the obviousness, could he?) his so commonplace and so taken-for-granted image that, in the most basic sense, the desires of a society change over time. The claim, to use an inapt term, that desires change over time is not a premise or a concept (both of which be stated and actual) but rather an unarticulated starting point that, we will see, launches a theory of adjudication that acknowledges the creativity inherent in judgement. Reading Holmes through this underlying image allows us to create two concepts that, although not identified by name, are rigorously grounded in his text: duration in law and differentiation of law. My intent in establishing a strict symmetry with Bergson is not to suggest that Holmes was in any way a disciple of Bergson or that he adhered to his philosophy of time or that he applied it to law. Such claims would be untenable, for if Holmes’ attachments to American pragmatism are doubtful, his relation to Bergson is more distant.6 Instead, Bergson is useful not for any direct filiation but because his philosophy of time and creativity formalises certain strands of argument within Holmes. Let us jump right into the famous first page of Holmes’ major work, The Common Law, in order to see against whom his philosophy of law is directed: The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result; but it is not all. The life of the law has not been logic: it has been experience. The felt necessity of the time; the prevalent moral and political theories, intuitions of public policy, avowed or unconscious; even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. Holmes (1991, p. 1) To start, observe how the opponent is styled along the lines of Bergson’s mechanist. The contemporary reference is to Christopher Langdell, Dean of Law at Harvard, who looked on law and adjudication as an exercise in logical consistency, extracting general principles from

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particular cases and applying these without reference to ‘anything outside of [logic]’ (Holmes, 1941, p. 17). What does Langdell’s view repress according to this account? Desire and interest in time. Let us look closely at the passage. Logic, as in Bergson and as in pragmatism generally, is assimilated to the status of a tool. It is a tool used, as Holmes says, to secure consistency. It is used within a system that has been isolated by eliminating reference to the outside, that is, to elements not included in its mathematics. Given that it is axiomatic, logic is in the service of calculation and prediction; propositions will be deduced from one another to ensure the consistency of the system. Just as in mechanism, all is given: logic is rigorously atemporal in that it isolates a system of given principles and, by virtue of axiomatic reasoning, secures for itself consistency and calculability. In brief, by eliminating or ignoring those variable elements with a temporal index – such as desires, prejudices, forces, experiences, and so on – logic forecloses the creativity and efficacy of time. This is how I interpret the remarkable line that ‘the life of the law has not been logic’; logic, in the sense that Holmes depicts it, annuls the creativity of time, or rather, the very livingness of life. Obviously, the identification of mechanism in the first paragraph of Common Law is not identical to Bergson’s account in Creative Evolution. In their particulars, both texts are motivated by different problems. But, to adopt a broader perspective, an affinity can be claimed in that both writers are fundamentally concerned with animating time as a productive power. To see this point clearly we can look at how finalism – the other position in Creative Evolution for which ‘all is given’ – is criticised by Holmes. Although not entirely consistent on this basis, Holmes repeatedly insists on the need for a theory of law freed from historicism7 – in other words, to think the becoming of law outside teleology and the realisation of a plan. We are not bound to assume with Sohm that his Frankish ancestors had a theory in their heads which, even if a trifle inarticulate, was the majestic peer of all that was done at Rome. The result of that assumption is to lead to the further one, tacitly made, but felt to be there, that there must have been some theory of contract from the beginning, if only you can find what it was. It seems to me well to remember that men begin with no theory at all, and with no such generalization as contract. They begin with particular cases, and even when they have generalized they are often a long way from the final generalizations of a later time. Holmes (1920c, pp. 217–18)

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In this essay, Holmes reproaches the use of teleological explanations to account for the growth and genesis of law. To repeat Bergson’s characterisation, in teleological accounts the underlying conception of time is that all is given, and here we see that a mature theory of contract is postulated in the inception of a legal system. If granted, the realisation of this contract theory would consist of cleaning up that which was at first, naturally, a ‘trifle inarticulate’; in other words, the genesis of law would be the fine-tuning of an existing, possible plan. As Holmes warns in the first pages of Common Law, we must not suppose ‘because an idea seems very familiar and natural to us, that it has always been so. Many things which we take for granted have had to be laboriously fought out or thought out in past times’ (Holmes, 1991, p. 2). Accordingly, legal scholarship must maintain an appreciation for the growth and becoming of law – which proceeds from particular situations and cases unfamiliar with later ordering principles and generalisations – without subjecting these to a scheme of ends or final causes. An awareness of the becoming of law makes us sensitive to the new in law. This puts even the most sensitive historical scholarship in a tricky predicament. Both Bergson and Holmes are acutely aware that the study of history is necessarily oriented toward the present; as such, the past can be explicated only from the perspective of the present, its categories, and its interests. Although we may know that the present does not bear a prepared and planned future waiting only to be realised, our historical accounts will scarcely be able to avoid such finalism, for our explanations always illuminate and identify those aspects of the past relevant to, and responsible for, our present condition from the perspective of that condition.8 It is within the context of this aporia – an ineradicable finalism from which historicism must extricate itself – that I read Holmes’ claim that ‘history has to be rewritten because history is the selection of those threads of causes or antecedents that we are interested in – and the interest changes in fifty years’9 (Holmes, 1992b, p. 56). Thus, on the one hand, Holmes constantly renews a struggle against the illusion of a finalism that would order the history of law according to given plans and principles; and yet on the other hand, he concedes that all historical scholarship, even his own, writes from the interests of the present and is at least minimally historicist. In this bind, Holmes can only but recommend revisable history (not because of any facile relativism as certain interpreters would have it (see Alschuler, 2000, pp. 8–10, 60–1; Dworkin, 1986, p. 160)) because history is always touched by a finalism that compromises sincere efforts to relate the becoming and creativity

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of law as it develops over time. As Holmes says in a fine line, ‘a development is hard to describe’ (Holmes, 1920e, p. 285). In this tension between the history of law (finalism) and the time of law (the becoming of law) we can begin to formulate Holmes’ image of time and the creativity proper to law. I have said that the interests of the present provoke the fall into finalistic history. But, at the same time, the interests of the present are the ground for legislation and for adjudication. Recall that according to the first paragraph of Common Law, the ‘life of the law’ is animated by ‘prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with the fellow-men’. I must make explicit a latent insight of Holmes’ theory. Perhaps it is too obvious an observation, and perhaps this is why Holmes does not expressly raise it, but the interests and needs of a society are in constant and continued flux. Although Holmes never conceptually develops this thought – and this is precisely why it is an image, as an unthought or pre-conceptual departure – it informs his philosophy of law and provides the reason that law is necessarily creative. We get at this image only indirectly, by reconstructing its secret, animating power. What the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Holmes (1991, p. 35, emphasis added) Why is the law ‘new’? Why is it not merely sometimes, but rather always, new? It would be disastrous to think that Holmes indicates a kind of decisionism wherein the judge can break with tradition at his or her discretion and legislate for contemporary interests and power. To think this way is to ruin both the sense of the new and of the legislative in this passage. According to this reading, the new would be the realised occasion of a power play and the legislative would be an illegitimate suspension of the separation of powers such that the judge would be, temporarily and irresponsibly, a lawgiver. This passage has a different, more radical sense. If the desires (or interests and needs, if one prefers) of a society are the ground for adjudication and if these interests are continuously changing, then adjudication is necessarily creative, for the ground that serves as its ‘secret root’

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changes in time. Furthermore, if judgement is inevitably creative by virtue of having a temporally mobile root (a rhizome, we might say), then judgement is necessarily legislative because the new judgement will suit the needs of the present and thus be discrepant, however slightly, with the past. If, according to this passage, strict adherence to tradition is impossible, it follows that every judgement will be legislative in that it bears, however minimally, novelty. Another way of stating the same point is that if the root of law is a mobile ground of desires, then the rule cannot strictly repeat, for it must be adapted to the requirements of a new ground, and judgement – which adapts tradition to desire – is consequently unavoidably novel and legislative. Law, perhaps contrary to our preliminary expectations, exemplifies differential repetition (a repetition that changes, that is change). Judgements are necessarily novel because they reflect changes at the level of desire of a community. For Holmes, desire – insofar as it is properly comprehended in time – is a perfectly productive power that accounts for what is at once the most striking and the most necessary characteristic of law and of adjudication: creativity. Holmes must not be understood as recommending creativity or advocating invention in adjudication; rather, his texts are committed to understanding why – to formulate properly the problem as to how and why – creativity is inevitable in law. Judgements actualise a temporally mobile basis of interest and desire in conjunction with tradition. Let us look at a profound text from Common Law that explicates this creative relationship between the past of the law (traditions, precedents, etc.) and the interests of the present: A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received. Holmes (1991, p. 5, emphasis added) If Richard Posner takes the liberty to claim in this, and other similar passages, a genealogical method avant la lettre, and goes so far as to call

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Holmes the American Nietzsche, I hesitate only slightly to propose this text as an account of duration in law (Posner, 1992, p. xxviii; see also Posner, 1990, p. 240). This is my first concept. Holmes begins with a provocative thought: rules without sense, or rules whose sense has been forgotten over time. In this passage, a judge is always confronted with a rule that has lost its reason and its sense, both of which must be newly provided. The expression must be strictly constructed: the rule is sense-less. It is not the case that the judge disregards a past rule or overturns reasons previously given; according to Holmes, the rule arrives without reason or explanation and is without sense until furnished by the adjudicative process. What judges do, therefore, is provide a sense for the rule, which is to say that a judgement creates a rule insofar as it connects together the old form (tradition, the rule) and a new content (the reasons provided for the rule). The new career of the rule is nothing other than the differentially repeated rule, or the newly created rule. We must not think that the identity between a rule and its reason is found only in a real or imagined past – as if the first and only time a rule is one with its reason. Rather, this state of identity between rule and reason occurs each and every time a judgement is rendered, because only judgement can establish this identity by creating the rule, once again. The law is nothing other than this creative activity of judgement. As Holmes says, and I underline, the rule is ‘in time’, which means that it is set within a field of desires or interests in flux and change, such that when the rule is received, its reasons have been forgotten; it can no longer be understood because contemporary reasons and interests have changed. I stress this point: it is not that the reasons for the rule have been lost by the empirical destruction of documents or by the real absence of reasons (as if the library had burned down, or that the Twelve Tables or the Ten Commandments had come without supporting documentation). This would be to reduce Holmes’ theory to its most empirical and trivial aspect. Rather, it is that the reasons that have held in the past are no longer tenable and satisfactory. They are no longer fit to give acceptable sense to the rule. What arrives before a judge is a forgotten or a senseless reason in that it is no longer for us – it has ceased to make sense as a legitimate explanation for the rule. The judge is charged with coordinating this senseless rule with contemporary interests and with providing acceptable, sensible reasons to uphold the rule according to current interests. Only in this way can the rule take on a sense, and only in this way can reasons be given for a judgement.

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In a famous essay, Holmes writes, ‘We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident’ (Holmes, 1920b, p. 181, emphasis added). This statement, and other similar statements found throughout Holmes’ work, situates interests and reason given in time and claims that it is precisely these interests and reasons that give sense to rules. A rule, by virtue of being in time, has had its reasons forgotten and its sense lost; and now, no matter how self-evident it may seem, this rule must be created anew according to interests and reasons able to account for it. Adjudication can follow tradition only by creating rules. A simple formula can be given: rules are in time. Or, rules are available (actionable, justiciable, appreciable) only from within the context of temporalised interests and reason giving. At this point, I should say that adjudication for Holmes has nothing to do with subsumption. In subsumption, a rule is applied and determines a case. This implies, first, that the rule’s sense is apparent and ready to be applied; second, that the rule preserves its sense before and after its application; and third, that the case is unable to affect a rule beyond instantiating it within a present state of affairs. But everything is different with Holmes. On account of being in time, the rule cannot be said to make sense before its application. And, as it is only within the process of adjudication that the rule takes on its sense, we must conclude, first, that judgement modifies the rule, and, second, that the case participates in the construction of the rule. In short, this adjudication is not subsumptive; a judge never subsumes but instead always brings a rule into existence. In Common Law, Holmes provides a charming, almost quaint, example of this temporality of law, this forgetting and inventing of sense that brings rules into existence: the ‘deodand’. According to Holmes, a common feature of ancient and superstitious societies (whether Hebraic, Roman, English, or German) was to punish and destroy objects that caused harm. It was as if the thing itself had volition and was culpable and punishable – that is, liability attached to the object doing the damage (Holmes, 1991, p. 11). For example, if an ox were to gore someone, it would be stoned; if a tree were to fall and injure someone, it would be chopped up (Holmes, 1991, pp. 7, 24). Such a thing was deodand: an ‘accursed thing’ (Holmes, 1991, p. 7). What is surprising about the law and ceremony surrounding the deodand, however, is how long it lasted in a special branch of law, admiralty. As Holmes writes, ‘A ship is the most living of inanimate things’, and thus ‘the old books say that, if a man falls from a ship and is drowned, the motion

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of the ship must be taken to be the cause of death, and the ship forfeited’ (Holmes, 1991, p. 26). The ship was treated as if endowed with personality. Almost incredibly, the treatment of ships as a wilful and responsible agent endured all the way to 1844 when Justice Story of the US Supreme Court approvingly cites Chief Justice Marshall: ‘This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel’ (Holmes, 1991, p. 29). Obviously, today the Court no longer thinks that an inanimate thing is capable of committing an offence. And yet, we see a renewal of the deodand rule under a different scheme of interests and reasons. First, the ship is considered as the limit of liability so that its forfeiture is the maximum penalty and second, if a ship causes damages, it is expedient to arrest the ship in that location and oblige the owner to claim it there, rather than to pursue the matter in a foreign court (Holmes, 1991, pp. 30–4). Using this example, we can say that the reasons for the rule of the deodand were truly forgotten by the nineteenth century, yet the rule was revived and effectively invented according to new interests and reasons. The deodand is a single example of a process common to all law for Holmes: evolution. So far, I have shown that time is an inventive and creative power insofar as changing desires are the basis for law and for adjudication. We can say, therefore, that the law is in continuous difference from itself and that the life of the law is nothing but its internal difference. Although the term internal difference is foreign to Holmes, evolutionary expressions are among his favourites to characterise law as it differs from itself through time, that is, as it evolves: ‘One is made to feel the complex antecedents . . . out of which the plant has grown, and one is made to see the growth. . . . The difficulty in remembering the details is the difficulty of marking the steps of an organic process. One sees that the embryo has taken form, gained size and coherence, more readily than one marks the moments of the change’ (Holmes, 1920e, pp. 285–6). And, ‘The history of law is the embryology of a most important set of ideas’ (Holmes, 1920g, p. 299). And, ‘For the last thirty years we have been preoccupied with the embryology of legal ideas; and explanations, . . . [which means] tracing origin and growth’ (Holmes, 1920h, p. 303). The recurrent use of the embryology analogy is significant for our Bergsonian reading of Holmes, given that Bergson notes ‘the development of the embryo is a perpetual change of form. Any one who attempts to note all its successive aspects becomes lost in an infinity, as is inevitable in dealing with a continuum’ (Bergson, 1998, p. 18). The embryo stands in Holmes as a figure of internal

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difference, as continuous change of form. This sense is striking when Holmes writes that he is ‘interested to trace the transformation [of law] throughout its whole extent’ and that this study ‘afford[s] an instructive example of the mode in which the law has grown, without a break, from barbarism to civilization’ (Holmes, 1991, p. 5, emphasis added). Like an embryo, law never ceases to change continuously, and so it is artificial to lay any claim to breaks in law, in between which law could be said to maintain a relative identity and stability with itself. Instead, Holmes is explicit in characterising the law through internal difference; the law grows and changes without interruption, and this growth and alteration is nothing but the being (or becoming) of the law. This is certainly why Holmes, like Bergson, stresses that any analysis of law is much less concerned with states and breaks, than with ‘a study of tendencies’ (Holmes, 1991, p. 2, emphasis added). If I have concentrated intensely on the opening few pages of Common Law, it is because there Holmes provides a perspective on what can only be called an ontology of law: the being of the law as tendency, that is, as difference in time. From the internal difference of law and its substratum of temporal desires, we can deduce the second concept of our analysis: differentiation in law. Over and over Holmes uses evolutionary and vitalistic tropes to characterise the development, or growth, of law. Recall that in Bergson, life differentiates itself according to problems that are encountered (various species are understood as so many equally elegant solutions to the problems of life). In Holmes too we witness the same characteristic of differentiation, for in the history of law ‘we watch the metamorphosis of the simple into the complex’10 (Holmes, 1920g, p. 300). A legal system begins with only a few categories, but, over time, becomes an increasingly sophisticated and differentiated system with many and ever increasing branches and rules. What is the mechanism by which the law differentiates itself? It should not be surprising to propose that Holmes, like Bergson, understands the differentiation of life according to problems encountered. Judgements for Holmes, like species and organisms for Bergson, are kinds of solution to problems; judgements express the constellation of desires and rules from within a problematic situation. I conclude with the following statement of Holmes’ from a speech: My keenest interest is excited, not by what are called great questions and great cases, but by little decisions which the common run of selectors would pass by because they did not deal with the

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Constitution or a telephone company, yet which have in them the germ of some wider theory, and therefore of some profound interstitial change in the very tissue of law. Holmes (1920d, p. 267) The image of ‘interstitial change’ and of the ‘interstitial legislator’ was a favourite of Holmes to describe the process of adjudication and it recurs in his judgements (Southern Pacific Co. v Jensen, 244 US 205 (1916)). I suggest that all legal judgements – some minimally and others profoundly – introduce alteration or interstitial change into the law. This is a consequence of how the ‘problem’ is effective in the differentiation of law. Because the concept of differentiation in law is implied in what I have already said, I will only briefly treat it here. According to Holmes, a case before the court poses a problem with two distinct aspects. First, the case is more or less a novel fact-situation and introduces unforeseen distinctions and differentiations in the law. To take a famous example, what happens if someone murders his benefactor to gain his own inheritance (Riggs v Palmer, 115 N.Y. 506, 22 N.E. 188 (1889))? This case introduces a new distinction into civil law to punish and prevent this kind of conduct; a new rule is born as a solution to this problem. I have already introduced in this discussion of the sense of the new rule the second aspect of the problem. If interests and desires are the ground on which rules are adapted, and because this ground is in time, then every adjudicative situation represents a problem of adapting rules to desires. We need only recall the deodand: each judgement that evokes this rule and keeps it from desuetude must reinvent it along the lines of the needs and desires appropriate to contemporary society. The rule is differentiated and made actual in each case it is called on to adjudicate. Just as in Bergson, the evolution of law develops like an explosion – new cases and desires differentiate the law, and what began as a simple system evolves into tendencies that fork in divergent directions. Following Bergson, we can say that the judicial decision is a solution to the problems of law. Each decision is therefore, at least minimally, a differentiation of law in that it performs a double and simultaneous adaptation of any rule according to both new situations and new desires. Given that law is in time, that it encounters new factual situations and is based on mobile desires, judgements are interstitial modifications of a tissue of law that becomes ever differentiated, indeed ever invented, over time.

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Notes 1. I would like to thank Melanie White, Paola Marrati, and Paul Patton. 2. To sum up these three points, Bergson cites a wonderful text of T. H. Huxley: ‘If the fundamental proposition of evolution is true, that the entire world, living and not living, is the result of the mutual interaction, according to definite laws, of the forces possessed by the molecules of which the primitive nebulosity of the universe was composed, it is no less certain that the existing world lay, potentially, in the cosmic vapor, and that a sufficient intellect could, from a knowledge of the properties of the molecules of that vapor, have predicted, say the state of the Fauna of Great Britain in 1869’ (Bergson, 1998, p. 38). 3. Internal difference is also a critique of the shared assumption made by mechanism and finalism that difference and determination are exterior to being, either in a mechanical cause or a plan. 4. The concept of life as a tendency to change is precisely what Bergson, in a 1915 letter to Harald Höffding, reproaches the biological sciences for failing to appreciate: ‘The essential argument I make against mechanism in biology is that it fails to explain how life unravels a history [déroule une histoire], that is to say a succession without repetition, where each moment is unique and carries within itself the representation of the whole of the past’ (Bergson, 1972, p. 1149). 5. This judgement was infamous enough to be read at length in Stanley Kramer’s film Judgment at Nuremberg (1961) in defence of a Nazi war criminal. 6. I will not take up the vexed question of Holmes’s pragmatism for the reason that our aim is to read Holmes through Bergson without direct attention to American philosophical pragmatism. But on Holmes’s pragmatism, see T. C. Grey (1989, pp. 787–870). Nevertheless, Holmes’s letters do show that he read Bergson. 7. In his biography of Holmes, Edward White claims that ‘the bulk of The Common Law is devoted to a highly purposive reading of historical cases’ (White, 1993, p. 154). Thus, and I agree here with White, Holmes will take a particular theoretic conclusion as to the essence of a branch of law – for instance, external standards of liability for torts – and narrate the history of that branch as the realisation of this idea. This is what I call ‘historicism’ – the reading of historical growth as if it were directed toward a present goal or conclusion. I disagree with White, as will be made clear shortly, in his claim that the evolutionary strain of Holmes’ thought endeavoured to reconcile ‘a historicist attitude toward the past with an interest in deriving general organizing principles around which knowledge could be synthesized’ (White, 1993, p. 149). In my reading, such a historicism was precisely what the evolutionist metaphor sought to overcome: an evolutionary conception of time proper to the becoming of law and irreducible to synthetic activity. 8. For Bergson’s statements on the finalistic character of all historical inquiry, see Bergson (1998, pp. 51–3; 1977, p. 262 and especially 1974, pp. 20–6). Deleuze, for his part, strongly adhered to the distinction between becoming and history, calling history only the set of more or less negative preconditions necessary for an event to come into being and always narrated retrospectively (Deleuze, 2004d; Deleuze and Guattari, 1994, p. 96).

Alexandre Lefebvre 45 9. And, in a speech: ‘The law has got to be stated over again; and I venture to say that in fifty years we shall have it in a form of which no man could have dreamed fifty years ago’ (Holmes, 1920a, p. 42). 10. Or again: ‘I confess that such a development as that fills me with interest, not only for itself, but as an illustration of what you see all through the law – the paucity of original ideas in man, and the slow, coating way in which he works along from rudimentary beginnings to the complex and artificial conceptions of civilized life. It is like the niggardly uninventiveness of nature in its other manifestations, with its few smells or colors or types, its short list of elements, working along in the same slow way from compound to compound until the dramatic impressiveness of the most intricate compositions, which we call organic life’ (Holmes, 1920c, pp. 215–16).

Bibliography A. W. Alschuler (2000) Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press). K. Ansell Pearson (1999) ‘Bergson and Creative Evolution/Involution’ in J. Mullarkey (ed.) The New Bergson (Manchester: Manchester University Press). —— (2002) Philosophy and the Adventure of the Virtual: Bergson and the Time of Life (London: Routledge). H. Bergson (1972) Mélanges (Paris: PUF ). —— (1974) The Creative Mind: An Introduction to Metaphysics, M. L. Andison (trans.) (New York: Citadel Press). —— (1977) The Two Sources of Morality and Religion, R. A. Audra and C. Brereton (trans.) (Notre Dame: University of Notre Dame). —— (1998) Creative Evolution, A. Mitchell (trans.) (New York: Dover). G. Deleuze (1991) Bergsonism, H. Tomlinson and B. Habberjam (trans.) (New York: Zone Books). —— (1994) Difference and Repetition, P. Patton (trans.) (New York: Columbia University Press). —— (2004a) ‘Bergson’s Conception of Difference’ in D. Lapoujade (ed.) Desert Islands, and Other Texts: 1953–1974 (Los Angeles: Semiotext(e)). —— (2004b) ‘On Nietzsche and the Image of Thought’ in D. Lapoujade (ed.) Desert Islands and Other Texts: 1953–1974 (Los Angeles: Semiotext(e)). —— (2004c) ‘Cours inédit de Gilles Deleuze sur le chapitre III de L’Evolution Créatrice’ in F. Worms (ed.) Annales bergsoniennes II (Paris: PUF). —— (2004d) L’Abécédaire de Gilles Deleuze, avec Claire Parnet (Paris: DVD Editions Montparnasse). G. Deleuze and F. Guattari (1994) What is Philosophy? H. Tomlinson and G. Burchell (trans.) (New York: Columbia University Press). R. Durie (December 2002) ‘Creativity and Life’, Review of Metaphysics 56, 357–67. R. Dworkin (1986) Law’s Empire (Cambridge: Belknap Harvard). T. C. Grey (1989) ‘Holmes and Legal Pragmatism’, Stanford Law Review 41/4, 787–870. O. W. Holmes (1920a) ‘The Use of Law Schools: Oration before the Harvard Law School Association, At Cambridge, November 5, 1886, On the 250th Anniversary of Harvard University’ in Collected Legal Papers (New York: Harcourt Brace).

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—— (1920b) ‘The Path of Law’ in Collected Legal Papers (New York: Harcourt Brace). —— (1920c) ‘Law in Science and Science in Law’ in Collected Legal Papers (New York: Harcourt Brace). —— (1920d) ‘John Marshall’ in Collected Legal Papers (New York: Harcourt Brace). —— (1920e) ‘Holdsworth’s English Law’ in Collected Legal Papers (New York: Harcourt Brace). —— (1920f) ‘Law and the Court. Speech at a Dinner of the Harvard Law School Association of New York on February 15, 1913’ in Collected Legal Papers (New York: Harcourt). —— (1920g) ‘Introduction to the General Survey’ in Collected Legal Papers (New York: Harcourt Brace). —— (1920h) ‘Ideals and Doubts’ in Collected Legal Papers (New York: Harcourt Brace). —— (1941) ‘Holmes to Pollock, April 10th, 1881’ in M. de Wolfe (ed.) Holmes– Pollock Letters: the Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874–1932 (Cambridge: Harvard University Press). —— (1991) The Common Law (New York: Dover). —— (1992a) ‘Reflections on the Past and Future. Remarks at a Dinner of the Alpha Phi Club, Cambridge, September 27, 1912’ in R. A. Posner (ed.) The Essential Holmes (Chicago: University of Chicago). —— (1992b) ‘Letter to Harold Laski. March 11, 1922’ in R. A. Posner (ed.) The Essential Holmes (Chicago: Chicago University Press). A. Lefebvre (2008) The Image of Law: Deleuze, Bergson, Spinoza (Stanford: Stanford University Press). P. Marrati (2005) ‘Time, Life, Concepts: The Newness of Bergson’, Modern Language Notes 120/5, 1099–1111. R. A. Posner (1990) The Problems of Jurisprudence (Cambridge: Harvard University Press). —— (1992) ‘Introduction’ in R. A. Posner (ed.) The Essential Holmes (Chicago: Chicago University Press). G. E. White (1993) Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford: Oxford University Press).

4 Rights of Passage: Law and the Biopolitics of Dying Patrick Hanafin

Introduction The figure who refuses is a particularly troubling one for law. Such a figure engages in a refusal to submit to the biopolitical order. One such figure is the terminally ill person who states that they would prefer not to live. This gesture expresses what Gilles Deleuze has termed the mode of being as if already gone (Boutang, 1995). To be as if already gone is to accept death and not allow it to become the limit of thinking. This is a living with, or being with death, which sees it not as an intruder but as that without which we cannot live. Those who have exhausted their end seek the right to die with dignity. This is a choice to die, which allows the body to speak its end rather than have that end dictated by the voice of an expert, legal or medical. The person who seeks to die is, to paraphrase Foucault, ‘the Passenger par excellence: that is, the prisoner of the passage’ (Foucault, 1967, p. 11). This notion of a passenger on the way to death bespeaks our existence, prisoners of our being, passing towards death. When an individual goes before the law to claim this right not to live, judges, in a futile effort to put death on hold, talk, animatedly and excitedly, about life. It is vital from the point of view of legal and political elites that the insubordinate citizen is seen to be managed. The ultimate threat to a legal order built on death control is the individual who refuses to accept law’s prohibition and seeks to self-style her death. She refuses to be styled by law’s speech. In self-styling one’s death one is choosing to affirm one’s life and the desire not to live a degraded existence.1 This act is lost on those blinded by a conservative morality, which opposes death to life. This majoritarian politics of survival or ‘vitapolitics’ attempts to arrest death by composing a narrative 47

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which valorises Life. In other words, the state’s interest in preserving life becomes the interest in preserving the life of the state. The state attempts to put death to work in the service of life. However, as Lars Iyer reminds us, every ‘attempt to put death to work is contested by dying itself, that is, by the “other” Lazarus who refuses to rise and come towards us’ (Iyer, 2004, p. 153).

A ‘strange kind of prosopopoeia’2 The liberal social compact is built on the desire to survive. In this schema man looks constantly ahead to the moment of his death and his legacy. This becomes the be all and end all of life in the shadow of death. Indeed it becomes the foundation of the modern liberal order with the creation of the social contract as a means of survival, as a temporary immunity from death (see further Cavarero, 1995, pp. 57–90). The legal regulation of choosing how one dies reveals that the individual’s power to decide how she lives or dies is ignored at best or curbed at worst. The power to decide is taken from the individual in the name of an abstract notion of Life. The terminally ill person who desires to die is prevented from doing so by legal obstacles. This is part of a wider management of individual lives or what Jean Baudrillard has termed ‘death control’. In this paradigm what we witness is a forced ‘life for life’s sake’ . . . agony prolonged at all costs . . . whether we execute people or compel their survival . . . the essential thing is that the decision is withdrawn from them . . . ‘you shall not die’, not in any old way, anyhow. Baudrillard (1993, p. 174) I want to look at one legal instantiation of this deathbound normative narrative. This example, along with many others which have been decided in a similar way, displays a tendency in the Western legal tradition to valorise true life, the disembodied life of pure and abstract thought over mere incarnate life. With the exception of a very small number of states (Belgium, the Netherlands, Oregon, Switzerland), the Western legal tradition does not condone a right to die using active means, either in the form of voluntary euthanasia or indeed physicianassisted suicide. On the other hand, many states allow an individual to make what is commonly called a living will or advance directive, which permits the withdrawal of artificial feeding and hydration in the event that the person ever finds herself or himself in a persistent vegetative

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state from which there is no hope of recovery. This model is based on the Christian ethical tradition which distinguishes active from passive means of euthanasia. The case I want to look at in some detail is exemplary of the legacy of this normative model. The adjudication of the United States Supreme Court in the jointly heard cases of Washington v Glucksberg and Quill v Vacco (521 US 702 (1997)) came about as the result of decisions on the issue of physician-assisted suicide by the Second and Ninth Circuit Courts of Appeal, which gave constitutional protection to physicianassisted suicide, one on the grounds of the right to privacy, the other on the grounds of equal treatment. The Second Circuit Court of Appeal in Quill v Vacco (80 F.3d 716 (2d Cir. 1996)) held that the Equal Protection Clause of the Fourteenth Amendment rendered statutes which prohibit assisted suicide unlawful. Noting that New York legislation permitted a competent person to refuse medical treatment even if this resulted in the individual’s death, the Court held that assisted suicide should also be permissible on the ground that like persons be treated alike. An en banc panel of the Ninth Circuit Court of Appeal in Compassion in Dying v Washington (79 F.3d 790 (9th Cir. 1996) (en banc)) held that the Washington state statute prohibiting a physician from assisting a patient to die was unconstitutional, as it was contrary to the substantive component of the Fourteenth Amendment’s Due Process Clause. Both cases were consolidated for hearing by the Supreme Court in January 1997. The Chief Justice delivered two opinions for the Court in June 1997 overruling both the Second and Ninth Circuits’ decisions. In these opinions he was joined by Justices O’Connor, Scalia, Kennedy, and Thomas. However, Justice O’Connor filed a separate concurrence joined by Justices Ginsberg and Breyer. In addition Justices Stevens and Souter filed separate concurrences. When reading the case, one is struck by the manner in which the multiple voices in the decision reflect the differing stances on life both as survival and possibility. The Supreme Court majority opinion attempts to compose a narrative of order in the face of these unruly bodies who attempt to die before their time or out of time. The narrative of the majority attempts to impose‘order through judgment’ (Uhlmann, 1999, p. 139), while the plaintiffs seek ‘an always elusive justice’ (Uhlmann, 1999, p. 139). Within the judgement the law attempts to summon forth a living figure and refuses to see the dying or dead figures before it. This calling forth of a living figure in the face of death is even more pointed as the plaintiffs had already died by the time the Supreme Court Justices issued their opinions.

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Chief Justice Rehnquist commences his observations in Washington v Glucksberg in defensive rhetorical mode and, in so doing, evinces the law’s failure to recognise those who would wish to die otherwise than in the legally sanctioned way: [O]ur laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end of life decision-making, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents’ constitutional claim. (521 US 702 (1997) 719) The backdrop or default is set. The individual is bound by the ‘rights’ which also bind her to an impersonal or state-mediated death. Rehnquist speaks in the rhetoric of warfare: ‘we have not retreated’. He goes on to construct a particular legal relation to assisted death and in doing so reveals a certain conception of community: We now enquire whether this asserted right has any place in our Nation’s traditions. Here . . . we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state. (521 US 702 (1997) 721–3) In this passage, the Chief Justice creates the illusion that there is a uniform view on this contested ethical issue. This, however, does not give due consideration to the several contradictory views and practices which coexist. He is interpreting the Constitution in a manner which would give the appearance of unity. Rehnquist appeals to a particular interpretative method and, in so doing, is hailing a particular totalising conception of the nation. The language of Rehnquist posits a particular societal model based on immunity and survival. In this case, one could argue that what is valued most of all is a totalising transcendent being in common of community.3 This relation is built into the law’s normative framework in the natural law model of the sanctity of life. This may help to explain how an inalienable right to life is undone when the body politic needs

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to defend itself or one of its citizens against transgression. This relation to death can be seen as looking to the enforcement of law and exclusion of mere or embodied life. The type of politics implicit in this approach involves discovering the implicit identity of a nation and setting it to work. This conception of politics as work relies upon and follows from the conception of community as immanent identity. Rehnquist creates the textual illusion of a united homogeneous community. In his judgement he creates the textual boundaries which enclose the citizen in the state. In this regard the law can be seen as a stabilising instrument, a means of suspending in abstract ghostly form identifiable citizens who are simultaneously citizens with an identity. In other words the text of law creates or provokes a symbolic unity where none exists in order to secure the state in its territorial and textual space. This illusory wholeness or togetherness is permanently under siege in the paranoiac discourse of the state and of law. Rehnquist’s exclusion of physician-assisted suicide from the domain of rights might be explained by his regarding such deaths as an instance of worklessness. For him such deaths add nothing to the survival of his imagined community. They are pure excess, deaths which do not sublate into building community. In this model, ironically, state executions and killing in time of war are approved of because they appear to uphold the integrity of the community. They maintain societal solidarity, binding it together against the intruder. In the decision of the majority in this case what is eclipsed is the actual choice facing the individual who goes before the Court to obtain recognition of his desire to die with dignity. This process is well described by William Connolly as ‘the sedimentation of an ethos into corporeal sensibilities’ (Connolly, 1999, p. 179). In this model the individual’s plea goes unheard.

The micropolitics of death Yet even within this model of prohibition, the more the law attempts to curb the voice of the individual who seeks to die with dignity, the more it reveals its own contradictory thinking on the matter. To look more closely at how this unravelling operates, let us return to the United States Supreme Court decision in Washington v Glucksberg and Quill v Vacco (521 US 702 (1997)). The Chief Justice’s attempt to repress societal disagreement on the issue is not successful. Physician-assisted suicide in Rehnquist’s schema would appear to act as a threat to a certain construction of communal identity; one built on a unified body of national history, legal traditions, and practices. The Supreme Court’s

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assertion of a universal tradition, which eschews euthanasia and physician-assisted suicide, is countered by an alternative tradition of physician assistance in dying, which occurs outside formal legal structures. This gives the lie to the Chief Justice’s attempt to create a consensual societal attitude on the issue. In Washington v Glucksberg and Quill v Vacco (521 US 702 (1997)) the Supreme Court is engaged in a simultaneous imposition and questioning of what constitutes legal tradition. This confirms from within the judgement that there is no single history or tradition. In other words, physician-assisted suicide is not inconsistent with a unified tradition or history but with a particular conception of tradition and history. However, the imbrication of a particular ideology is always contradicted by the operation of law itself as an institutional mechanism of biopolitical management. This requires looking at law not as the guardian of a certain normative framework but, as Foucault has observed, as a means of administering illegalisms. As Foucault noted: ‘Illegalism is not an accident. . . . I’d say that law is not made in order to forbid any particular kind of behaviour, but in order to distinguish between the different ways of getting around the law itself’ (cited in Deleuze, 2006, p. 114). Deleuze sums up this interpretation of the operation of law thus: Law is always a structure of illegalisms . . . laws are not contrasted . . . with illegality, but . . . are actually used to find loopholes in others. Law administers illegalisms: some it allows, makes possible or invents as the privilege of the dominating class; others it tolerates as a compensation for the dominated classes, or even uses in the service of the dominating class; others again it forbids, isolates and takes as both its object and its means of domination. Deleuze (2006, p. 26) Rehnquist’s attempt to disguise the widespread juridico-medical management of death is contradicted from within the judgement itself. That which is repressed emerges at points within the Supreme Court’s judgement. Justice Stevens in his opinion points to the law’s project of death control in referring to the death penalty: But just as our conclusion that capital punishment is not always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly cruel, so it is equally clear that a decision upholding a general statutory prohibition of assisted suicide does not mean that every possible application of the statute would be

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valid. A State, like Washington, that has authorized the death penalty and thereby has concluded that the sanctity of human life does not require that it always be preserved, must acknowledge that there are situations in which an interest in hastening death is legitimate. Indeed, not only is that interest sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection. (521 US 702 (1997)741–2) Here there is an implicit recognition of existing exceptions to hastening death. Stevens goes on to illustrate further the indeterminacies extant in cases which refer to death control: The Cruzan case demonstrated that some state intrusions on the right to decide how death will be encountered are also intolerable. The now deceased plaintiffs in this action may in fact have had a liberty interest even stronger than Nancy Cruzan’s because, not only were they terminally ill, they were suffering constant and severe pain. . . . Although there is no absolute right to physician assisted suicide, Cruzan makes it clear that some individuals who no longer have the option of deciding whether to live or to die because they are already on the threshold of death have a constitutionally protected interest that may outweigh the State’s interest in preserving life at all costs. . . . It is an interest in deciding how, rather than whether, a critical threshold shall be crossed. (521 US 702 (1997) 745) In Stevens’ opinion we witness a move from a threshold to a critical threshold. In this move we can see a shift from the normative prohibition on assisted suicide – the whether – to the regulatory practise of death control – the how. This judicial recognition of the how opens a space in which a different attitude towards the issue may emerge. Justice Stevens goes on to point out that the Court’s decision here was far from definitive: I do not, however, foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge. Future cases will determine whether such a challenge may succeed. (521 US 702 (1997) 750)

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Stevens points tantalisingly to the possibility of other interpretations but does not cross the normative threshold in this case. He speaks of regulating the how but then in the same move defers the decision. The raising of the possibility of a critical threshold at least acknowledges that the law participates in death control, rather than the disingenuous speech of some of the Justices who seek an uncomplicated right or wrong answer to the dilemma. Justice Souter speaks in a manner similar to Stevens, but ultimately decides to defer, when he observes: There can be no stronger claim to a physician’s assistance than at the time when death is imminent. . . . . . . the importance of the individual interest here . . . cannot be gainsaid. Whether that interest might in some circumstances, or at some time, be seen as ‘fundamental’ to the degree entitled to prevail is not, however, a conclusion that I need to draw here, for I am satisfied that the State’s interests . . . are sufficiently serious to defeat the present claim. (521 U.S. 702 (1997) 781–2) Both Souter and Stevens admit that a right to physician-assisted suicide may be possible and desirable and supported by constitutional tradition, but not in this case. Souter and Stevens disrupt the judgement presented by Rehnquist in which he creates a synthetic past and tradition out of the ritual recitation of precedent, in a narrative which presents an uninterrupted present leading to a perfect future, built on an idealised past. Through the ritual incantation of precedent Rehnquist dawdles on a synthetic boundary between life and death. In this sense what is revealed in the judgement is the very tension within the judgement between a politics of ordering and a politics of becoming. The legal text operates in a similar way to other texts or forms of writing. Legal writing can, to paraphrase Gilles Deleuze, be ‘either a way of reterritoralizing oneself, conforming to a code of dominant utterances, to a territory of established states of things’ (Deleuze and Parnet, 1987, p. 74), or it is ‘becoming, becoming something other than a writer, since what is becoming at the same time becomes something other than writing’ (Deleuze, and Parnet, 199, p. 74). This is also the case within the writing of the judges in this case. On the one hand we have the writing of Rehnquist who reterritorialises in his judgement and forces citizens and himself to conform to a perceived state of dominant utterances, a particular tradition, an ordering of the citizen. The

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controlled writing of the judge attempts to defer the becoming possible of the right to die with assistance. On the other hand, there is the writing of Souter and Stevens which points to the becoming possible of a right to physician-assisted suicide in future cases. The concurring opinions particularly of Stevens and Souter point to the possibility in a given case of a right emerging, which supports the legalisation of physician-assisted suicide. Within the case itself the problematic case of physician-assisted suicide ‘threatens to bring what’s been established back into question’ (Deleuze, 1995, p. 153). In other words there is a tension between, on the one hand, the established notion of a right to life, and on the other, the problematic case of the individual who would prefer not to live a degraded existence. What is at stake in this very tension, to paraphrase Deleuze, is not the ritual application of human rights principles but the possibility of ‘inventing jurisprudences’. As Deleuze observes, ‘There are no human rights, there is life, and there are life rights. . . . That’s what being on the left is about. It’s creating the right’ (Deleuze, 1996, p. 40). This tension between stabilising identity or fragmenting it to create new rights and identities is taken up in the wider political context by William Connolly when he speaks of how self-artistry or working on the self may lead to changes in thinking on contentious social issues such as, for example, the right to die. For Connolly, micropolitics can both stabilise identities and also ‘usher a new identity or right into being’ (Connolly, 1999, p. 147). Connolly argues that such new rights or identities cannot be created by a top-down ‘molarpolitics of public officials’ (Connolly, 1999, p. 149), but comes instead from a mobilisation of self-styling selves, ‘the molecular movements of micropolitics’ (Connolly, 1999, p. 149). Thus, in the case of assisted suicide, we can see the play between the micropolitics of movements of individuals who are attempting to self-style their deaths and public officials, in the form of judges, who attempt to maintain the status quo and prevent the creation of this new right. It is the beginning of an elaboration of a new right, an opening to a new way of becoming indiscernible. This tension one can see reflected in the text of the Supreme Court judgements, which do not engage in some utopian form of objective apolitical legal analysis, but reveal the differing societal attitudes to dying with dignity. The case in fact displays the same process that Connolly describes in relation to an individual who tries to work out a position on the issue in the form of self-artistry or working on the self. An individual in working out their position on controversial ethical issues such as the right to die is confronted with differing sympathies

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and values. In coming to decide, one is confronted with differing views both outside and within oneself. He gives the example of an individual who believes that death must only come when either God or nature brings it (Connolly, 1999, p. 146). This person is shocked by movements which call for a right to doctor-assisted death for those in severe pain as the result of a terminal illness. However, once the initial shock of this claim dissipates the person begins to think of the suffering of terminally ill individuals in a world of high-tech medical care. In such a case Connolly claims, ‘one part of your subjectivity now begins to work on other parts. In this case your concern for those who writhe in agony as they approach death may work on contestable assumptions about divinity or nature already burnt into your being’ (Connolly, 1999, p. 146). Connolly highlights the uncertainties and tension within the self on the issue after such an individual starts to weigh up the many competing interests involved. Indeed, having worked on the self [y]ou continue to affirm . . . a teleological conception of nature in which the meaning of death is set, but now you acknowledge how this judgment may be more contestable than you had previously appreciated. . . . What was heretofore nonnegotiable may now gradually become rethinkable. You now register more actively the importance of giving presumptive respect to the judgment of the sufferer in this domain, even when the cultivation of critical responsiveness to them disturbs your own conception of nature, death, or divinity. Connolly (1999, p. 147) Similarly we can see a working on the self within the legal judgement. In this case the Supreme Court in the end is not swayed from its naturalist interpretation of death in this case but leaves open the possibility that in future cases such an interpretation may be rethought.

Conclusion The micropolitical movements of individuals who challenge the prohibition to die in their own way and in their own time, counters the molar ordering of the subject by the medico-legal gaze. They call for another politics, a politics of becoming beyond the time of the political. This micropolitics points the way to a rethinking of bioethics, focusing instead on the actual desires and interests of the individual who claims a right to die with dignity. This is what Connolly calls an ethos of engagement with existing moral and social givens, which may bring

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about unexpected consequences or transformations in the societal default thinking on issues like the right to die. This process Connolly terms ‘an ambiguous politics of becoming by which a new entity is propelled into being out of injury, energy and difference’ (Connolly, 1999, p. 160). Micropolitical movements such as the right to die movement ‘expose modes of suffering and injury heretofore located below the radar of public discourse. Sometimes the politics of becoming exposes how a list of basic rights that recently seemed complete harboured obscure and inadvertent exclusions inside the sweep of its formulations’ (Connolly, 1999, p. 160). This is a politics of self-artistry which can result in a transformation of accepted notions of right. In controlling the time of one’s passing one enacts an ethics of bios, of embodied life. A decision of the Constitutional Court of Columbia in 1997 made clear what is at stake in thinking our ways of dying differently and how such a rethinking could come about in practice: ‘The decision as to how to face death takes on a decisive importance for the terminally ill person, who knows that his illness is incurable and therefore is not choosing between many years of full life, but rather between dying in conditions of his own choosing within a short period, or in painful and undignified circumstances. The basic right to a dignified life therefore implies the right to die with dignity’ (cited in Tripodina, 2001, p. 1727).

Notes 1. For a full elaboration see R. Braidotti (2006) Transpositions (Cambridge: Polity Press), pp. 234–50. 2. The phrase is taken from J. Hillis Miller (1990) Versions of Pygmalion (Cambridge: Harvard University Press), p. 158. The complete sentence reads: ‘If prosopopoiea in one of its meanings is the ascription of a face, a voice, or a name to the dead, a letter sent to a dead person is a strange kind of prosopopoiea’. 3. In a previous Supreme Court decision, Cruzan v Director, Missouri Department of Health (497 U.S. 261 (1990)), a case involving the issue of treatment withdrawal for individuals in a persistent vegetative state, Justice Scalia exhibits a similar logic of survival as that displayed by Rehnquist in the case under examination. Scalia employs the metaphor of the Court destroying itself if it were to decide affirmatively in cases concerning the right to die. The Court, according to Scalia, must save itself by employing the language of the law against the introduction of such a right: This Court need not, and has not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so, it will destroy itself. (497 U.S. 261, 300–301)

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Bibliography J. Baudrillard (1993) Symbolic Exchange and Death (London: Sage). P.-A. Boutang (1995) ‘Socrate a la tele’, L’Express, 11 November, 58. A. Cavarero (1995) In Spite of Plato: A Feminist Rewriting of Ancient Philosophy (Cambridge: Polity Press). W. Connolly (1999) Why I Am Not a Secularist (Minneapolis: University of Minnesota Press). G. Deleuze (1987) ‘On the Superiority of Anglo-American Literature’, in G. Deleuze and C. Parnet (eds) Dialogues (London: The Athlone Press), 36–76. —— (1995) Negotiations: 1972–1990 (New York: Columbia University Press). —— (1996) L’Abecedaire de Gilles Deleuze, avec Claire Parnet (Video Ed: Montparnasse). —— (2006) Foucault (London: Continuum). G. Deleuze and C. Parnet (eds) (1987) Dialogues (London: The Athlone Press). M. Foucault (1967) Madness and Civilisation (London: Tavistock). L. Iyer (2004) Blanchot’s Communism: Art, Philosophy, and the Political (Palgrave Macmillan: Basingstoke). C. Tripodina (2001) ‘Profili comparatistici dell’eutanasia. Itinerari giuridici alla scoperta di un “diritto” in via di riconoscimento’, Diritto Pubblico Comparato e Europeo, 1714–1748. A. Uhlmann (1999) Beckett and Postmodernism (Cambridge: Cambridge University Press).

5 The Terri Schiavo Case: Biopolitics, Biopower, and Privacy as Singularity John Protevi

Introduction The Terri Schiavo case, whose denouement came in a Florida hospice in March 2005, provided a strange mix of the juridically mundane, the legislatively bizarre, and the mediatically spectacular. For the American courts, it was a typical ‘right to die’ case; it concerned neither assisted suicide nor euthanasia, only the by now solidly established ability to exercise by proxy the right to refuse treatment. Precious few would have noticed it except for the small matter of the constitutional crisis that the passage by Congress of ‘Terri’s Law’ almost provoked and the national, if not global, media frenzy that ensued. After some time has elapsed, the case offers the opportunity to establish some differences between Agamben and Foucault concerning biopower, biopolitics, sovereignty, law, and medical discipline as well as to advance some ideas on jurisprudence, in particular, the use of the Deleuzean concept of singularity to rethink the notion of privacy.

Biopower and biopolitics To understand the differences between Agamben and Foucault, we must distinguish biopower and biopolitics, between material production and (quasi) legal predication. For Foucault, biopower is modern and productive, ‘fostering life or letting die’; this affirmative productivity distinguishes it from sovereign power, with which it today co-exists, whose negativity is expressed in the formula ‘kill or let live’ (Foucault, 1978, p. 138). Biopower is material production, producing capacities in individual bodies as it regulates populations; we can say it positively patterns bodies politic, channelling flows at the somatic and civic/national 59

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levels. Sovereign power, on the other hand, can only slice into material flows via a prélèvement that subtracts from an already-established flow without being able to augment or direct the production process of the flow (Foucault, 1978, p. 136; see also Fitzpatrick, 2005). While Agamben acknowledges the Foucaultian thesis of the modernity of biopower, he will claim that sovereignty and biopolitics are equally ancient and essentially intertwined in the originary gesture of all politics; sovereignty is the quasi-legal power (‘law’s threshold or limit concept’: Agamben, 2005, pp. 4, 23) to decide the state of exception whereby bare life or zoe is exposed ‘underneath’ political life or bios (Agamben, 1998; 2005, pp. 4, 87–8). Grounded in the ‘biopolitical tradition of auctoritas’, which ‘immediately inheres in the living person of the pater or the princeps’, the sovereign power of deciding the exception shows that ‘law and life must be tightly implicated in a reciprocal grounding’ (Agamben, 2005, pp. 84–5). Agamben finds in the concentration camp the modern biopolitical paradigm, in which the state of exception has become the rule (Agamben, 1998) and we have all become (potentially) bearers of exposed bare life in that we are all subject to what I will call a ‘de-politicising predication’: to use the current American jargon, being named an ‘enemy combatant’ (Agamben, 2005, p. 3). The converse of that de-politicising predication is a politicising predication, often implicit or assumed, existing only by the grace of not being de-politicised: the retention of the rights of a citizen. Let us call this complex concept ‘de-politicising predication’. Finally, let us note that Agamben also sees the camp as a material biopower experiment, producing the bare life of the Muselmann (Agamben, 1999, pp. 85, 156). We will interrogate the relation of biopolitics and biopower in Agamben’s writing on the camp. We can also note a difference of method. Agamben reveals the political logic of the originary imbrication of sovereignty and biopolitics via a reading that is something like a Heideggerian gesture of locating an originary decision, founding an epoch that is now exhausted and flattened out into totalitarian management, a complete revelation that hides the very condition of its appearance (‘invisible in its very exposure, all the more hidden for showing itself as such’ (Agamben, 1999, p. 156; see also Sinnerbrink, 2005)), albeit with a Derridean emphasis on imbrication and ‘zones of indistinction’. Foucault, on the other hand, provides a materialist genealogy of modern state biopower techniques of medical discipline and population management operating at the intersection of sexuality and racism.

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I will argue that Agamben’s concept of de-politicising predication, despite its considerable utility in thinking biopolitics, cannot handle biopower, neither in the case of the Muselmann nor in the Schiavo case and other similar cases of ‘end of life issues’, because of its lack of purchase on real material change as opposed to the ‘incorporeal transformation’, or the change in juridical status effected by de-politicising predication. What we need is Foucault’s materialist genealogy of biopower’s investment in real bodies. An analysis of biopolitics is not enough; we need an analysis of biopower. Now Agamben accepts Foucault’s materialist genealogy into his system, but Agamben’s own contribution, the concept of de-politicising predication, does not help in understanding what happened to Terri Schiavo’s body, nor does it help us think how we should transform our jurisprudence to change the dualist ontology behind the phrase ‘Terri Schiavo’s body’. I will conclude, therefore, with some ways to think a transformed right to privacy using the Deleuzoguattarian notions of singularity and depersonalisation.

American jurisprudence on the right to privacy and the right to die In legal terms the Schiavo case was not the establishment of a precedent, though it may turn out to be important if it results in changes in state laws regulating ‘end of life issues’. The ruling precedent in the Schiavo case is Cruzan v Director, Missouri Department of Health, 497 US 261 (1990), in which the Supreme Court Justices ‘assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition’ (497 US at 279). This right can be exercised by proxy, given certain standards of evidence establishing the wishes of the person, or it can be exercised by a guardian acting in his or her judgement as to the best interests of the ward. (This latter option was NOT relevant to the Schiavo case, despite widespread misinformation spread by the parents’ supporters: the original trial judge ruled as to Terri Schiavo’s wishes; thus her husband Michael Schiavo’s judgement as to what was in the best interests of his wife was completely irrelevant – unless you want to say that he thought it was in her best interests that her wishes be honoured, but that seems to stretch the point beyond recognition, as we assume a person is interested in having their wishes honoured.) The court notes that lower courts have grounded this right in the common law right to informed consent, or in both that right and

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in a constitutional right to privacy developed in the modern substantive due process tradition (497 US at 279). This tradition has four major aspects, in roughly historical order: (1) contraception, beginning with Justice Harlan’s dissent in Poe v Ullman 376 US 497 (1961), and continuing with Griswold v Connecticut 381 US 479 (1965) and Eisenstadt v Baird 405 US 438 (1972); (2) abortion, most notably in Roe v Wade 410 US 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992); (3) homosexuality, in Bowers v Hardwick 478 US 186 (1986) and Lawrence v Texas 539 US 558 (2003); and (4) end of life issues, including Cruzan, Washington v Glucksberg 521 US 702 (1997), which defeated a claimed right to assisted suicide, and the recently decided Gonzales v Oregon 04–623 (2006; formerly Oregon v Ashcroft) which affirmed that right. Substantive due process liberty interests, no matter how singular the case and detailed the argumentation, are not absolute and must be weighed against countervailing state interests. The court ruled in Cruzan that Missouri was allowed to impose a clear and convincing evidence standard in determining a patient’s wishes in order to protect a countervailing state interest in ‘the protection and preservation of human life’ (497 US at 280). (In the American system, ‘clear and convincing evidence’ is intermediate between the highest standard, ‘beyond a reasonable doubt’, and the lowest, ‘preponderance of evidence’.) The court expanded on this by saying that ‘a State may properly decline to make a judgment about the ‘quality’ of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual’ (497 US at 282). Here we see biopolitics enshrined in American law: abstract, unqualified ‘human life’ set against the right to privacy as the right to die.

Taking issue with Agamben I see one key problem in thinking the Schiavo case with Agamben’s concepts: corporeal versus incorporeal materialism. In addition, Agamben underemphasises trapped bare life in favour of a near-exclusive focus on exposed bare life. Corporeal materialism To understand the Schiavo case, we need a notion of ontological destratification (Deleuze and Guattari, 1987, p. 160), a notion of corporeal materialism, for the destruction of Terri Schiavo’s cortex was a real

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change that preceded her diagnosis, which then removed her from the philosophical category of conscious subject and its legal counterpart, the ‘competent person’. With de-politicising predication, Agamben, however, gives us only a notion of what Deleuze and Guattari would call an ‘incorporeal transformation’ (Deleuze and Guattari, 1987, p. 80) or change in juridical status that exposes or protects bare life. To understand the incorporeal nature of the de-politicising predication, we might also here refer to what Foucault calls in his inaugural address to the Collège de France an ‘incorporeal materialism’, in which ‘the event is not of the order of bodies [l’événement n’est pas de l’ordre des corps]’ (Foucault, 1972, p. 231; translation modified from ‘the event is not corporeal’). What we need here, though, is precisely a corporeal materialism in order to understand changes to a body in and through an event. A de-politicising predication attaches itself to a body that remains materially unchanged by the act of predication, even though the exposure of bare life thus effected might open that body up to profound changes by means of the action of other bodies. In other words, a change in incorporeal biopolitical status can open a body up to a different set of corporeal biopower practices. Here are three examples of a quasi-legal de-politicising predication opening a body up to different material biopower practices: (A) A person is first named ‘non-Aryan’, then ‘Jew’, then ‘deportee’, and then ‘camp prisoner’. These are all different grades of de-politicising predication, producing different statuses. Shock, overwork, exhaustion, and malnutrition might drive this person to the point where they are named ‘Muselmann’, but we must note two things here: (i) the term ‘Muselmann’ is informal camp jargon, unique to Auschwitz, not an official biopolitical designation (Mills, 2005); (ii) such informal naming follows the physical changes that follow upon the original official de-politicising predications. In other words, ‘Muselmann’ is a diagnosis, an evaluation of a state, not a transforming predication; it caps what has already happened to a body, rather than opening that body up to what is to come. The shunning of the Muselmänner, I would argue in reading Agamben (1999), was caused by the behaviour of the bodies, not by their having been named as ‘Muselmann’. While being named ‘camp prisoner’ transformed the status of the person and allowed the exposure of bare life and the degradation to the condition of Muselmann, the act of being so named did not open the body up to different

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treatment; it was an acknowledgement of their having been differently treated; it was an acknowledgement that nothing else could be done, that no further degradation of de-politicising status or material condition was possible. (B) A person is named by the government of the United States an ‘enemy combatant’ and is then (i) put into ‘stress positions’ which can produce pain, as long as, in the words of then Counsel to the President, Albert Gonzales, in his 1 August 2002 memo, ‘Standards of Conduct for Interrogation under 18 USC §§ 2340-2340A’, the ‘specific intent’ of the interrogator is not to cause pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death’ (Greenberg and Dratel, 2005, p. 172) or (ii) subjected to political physiological manipulation by means of such practices as forced watching of gay porn, exposure to strobe lights and/or excruciatingly loud American music (Brown, 2006; ACLU, 2006), since, again according to Gonzales, the ‘mental harm’ must come from ‘threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party’ (Greenberg and Dratel, 2005, p. 172). A monster like Donald Rumsfeld might laugh and call this the ‘disco treatment’ – just as he compared his work at a standing desk (Greenberg and Dratel, 2005, pp. 236–7) to the ‘standing punishment’ (Field Punishment #1 for the WWI-era British Army (BBC 2006)) – but there is no question as to the psycho–physical destruction prolonged exposure to such treatments wreaks on persons in the ‘detention facilities’ of the New World Order. (C) A person is named ‘brain dead’ and is then ‘abandoned to the extreme vicissitude of transplantation’ as Agamben puts it in The Open (Agamben, 2004, p. 15). (Here we see a diagnosis that is also a de-politicising predication.) Let us note that the official medical categorisation of ‘PVS’ (Persistent Vegetative State), like the informal social categorisation of ‘Muselmann’, follows upon real change – they are both diagnoses – but they do not themselves provoke change in the body. Nor do they open the body up to later changes by allowing a different type of interaction with other bodies. (Thus ‘PVS’ is not the same as ‘brain dead’.) The import of the Cruzan decision is that PVS does not remove the right to privacy involving refusal of life-sustaining medical treatment, including feeding tubes. Thus the

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diagnosis of PVS is not a de-politicising predication: it leaves the person’s legal status unchanged and allows them the same exercise of rights as other citizens, albeit by proxy. It does not necessitate the removal of feeding tubes by state action, but only allows it, following appeal initiated by a person. Agamben writes movingly of the physical changes suffered by the camp prisoners, but he can only use everyday concepts to do so; there’s nothing in his specifically philosophical concepts that covers these changes, as there is in, for instance, Deleuze’s materialist ontology of complex systems, which we will discuss shortly. But it is precisely a corporeal materialism that is needed to think the material changes that occur in and through the action of a physiological event such as that suffered by Terri Schiavo. Trapped bare life My second point in criticism of Agamben is that it is not just judgements as to brain death authorising organ harvesting or inferior quality of life authorising euthanasia that concerns us in biopower (again, any such judgement in this case was Terri Schiavo’s own, and so if anything, it was a matter of assisted suicide rather than euthanasia), but also the construction of an inescapable state interest in fostering the life of the favoured group, those graced with an implicit politicising predication. While it is true that the politicising predication is part of Agamben’s conceptual system, virtually all of his analyses in Homo Sacer and Remnants of Auschwitz concern the way in which bare life is exposed, excluded from law, threatened, while bios, politically-informed life, is protected. But in the Schiavo case we are concerned not with exclusion of zoē, but with its inclusion, with a bare life that the law holds close. A total sphere of protected bare life, a biosphere, into which the out-group cannot penetrate – its bare life is exposed via a de-politicising predication – and from which the in-group can never escape. Again, the relative neglect of the notion of trapped bare life is not so much a conceptual problem for Agamben as it is a matter of emphasis. The limits that exclude the out-group – that create exposed bare life – are currently formed by the state of exception regarding the ‘enemy combatants’ (so that the Guantanámo camp is the state of exception become rule, the spatialisation of the state of exception); the limits of the in-group – trapped bare life – are formed by the two versions of ‘Terri’s Law’, the 21 October 2003 Florida state law and the federal

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version passed on 20 March 2005. (Technically speaking, these were not sovereign decisions, as they were laws, but the federal version could have provoked a constitutional crisis regarding federalism, just as the state version impacted Florida’s doctrine of separation of powers.) More precisely, the bodies of those in the out-group are excluded from the protection of law so that the bare life inherent therein is exposed, while the bodies of those in the in-group are subjected to the most intense medical interventions. In highlighting the subjection of the in-group to medical intervention aimed at keeping trapped bare life going (to be distinguished from Agamben’s analysis of the exposure of bare life of the ‘experimental persons’ of the Nazi camps for the sake of knowledge that would purify and strengthen the body politic of the German Volk), we see how we need Foucault’s genealogy of materialist biopower, to which we now turn.

Foucault’s genealogy of material practices I will focus on three areas in which Foucault enables us to think the Schiavo case in ways that are not the focus of Agamben’s work: (1) medical intervention and the ‘administrative supplement’ in hospital/hospice palliative care, (2) the sexuality and racism elements in the Schiavo case, and (3) hints as to a transformation of right to privacy jurisprudence away from the sovereignty paradigm. Medical intervention and the ‘administrative supplement’ in hospital/hospice palliative care In ‘Society Must Be Defended’ Foucault mentions the 1976 Franco case as an example of medical intervention creating an encompassing biosphere of trapped bare life (Foucault, 2003, pp. 248–9; see also Agamben, 1999, p. 83). With Franco (and in the US, the contemporaneous Quinlan case (70 NJ 10 (1976))), we see the establishment of a disciplinary (and hence individualising) medical power able to defer somatic death, and with which our sovereignty-based jurisprudence struggles. Who is to decide the end of treatment? But just as prison administration provides what we could call a ‘carceral supplement’ to legal control of the prison wing of the criminal justice system (Foucault, 1977, pp. 16, 246–7) – in other words, the complexity and opacity of prison administration shields the daily workings of prisons from legal supervision – so too does hospital administration provide barriers to legal control of medical detail. While in the case

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of the prison, the carceral supplement takes the form of micro-penalties delivered by the prison administration (time in solitary confinement being the most well-known example), in the hospital setting it is ‘palliative care’ that provides the leeway. Palliative care is that which is designed to relieve pain and provide for patient comfort. Hospital administration must clear beds to allow an exchange of patients; it must provide ways for care to stop and for patients to be allowed to die. Since the intent to ‘cause’ death is the legally decisive factor, hospital and hospice care can only aim to relieve pain rather than intend to hasten death (Rawls et al., 1997). Of course there is sufficient grey area here in establishing dosage guidelines so that palliative care can have the ‘unintended’ consequence of ‘hastening’ death (as compared with a completely tendentious ‘natural’ standard, which assumes one can somehow establish what the time of death would have been without medical intervention). This day-by-day hospital work – we can call it the ‘palliative supplement’ – escapes legal control and media attention except in the rare cases – like Schiavo – where a media storm occurs. The sexuality and racism elements in the Schiavo case The intersection of medical discipline of individual bodies and biopower regulation of the population, Foucault famously reminds us, occurs in sexuality and in racism (Foucault, 1978, pp. 149–50; 2003, pp. 257–63). The Schiavo case confirms the sexuality angle: a 1992 malpractice case jury ruled that Schiavo’s bulimia should have been diagnosed by the OB–GYN treating her for ‘infertility’ (Conigliaro, 2005). Regarding race, we must also note that the people at the heart of the three most famous American ‘right to die’ cases – Karen Quinlan, Nancy Cruzan, and Terri Schiavo – were all middle-class, white women who were childless at the times of their accidents. The culture of life enveloped them, refusing to let them go. Potential givers of white life at a time when the white race faces being out-bred by other races, they were in need of phallic domination: give her the tube of life, whether she wants it or not. An ugly thing deserves an ugly name: ‘tube-rape’ (Beyerstein, 2005). The racism here can be overt: Sun Hudson, the first person to be taken off life support under a Texas law, signed by George W. Bush while governor, which allows hospitals to remove life support from indigent patients over family objections, was black (Mayo, 2005). But in the American case, it is more often the ‘social racism’ that Foucault talks about (Foucault, 2003, p. 261), which in the American context means ‘class’, as it is directed against the economically unproductive;

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the marker of that unproductivity being their lack of insurance. ‘Those people’ cannot compete, they are weighing us down, their death purifies our body politic as we compete in the global market. Of course many of these economically unproductive are black, but many of them are white as well. (Again, in Remnants, Agamben cites Foucault’s analysis of racism in ‘Society’.) Right to privacy jurisprudence The Schiavo case was resolved by means of the right to privacy as the right to die, but we want to be wary here, for we remain trapped at the intersection of discipline and biopower if we ground that right in sovereign rights of personal autonomy, which is the theoretical base of current American jurisprudence on ‘end of life issues’. In History of Sexuality, volume 1, Foucault tells us that the initial legal recourse to the new-found intersection of discipline and biopower was the right to life: ‘Against this power that was still new in the nineteenth century, the forces that resisted relied for support on the very thing it invested, that is, on life and man as a living being. . . . What was demanded and what served as an objective was life. . . . The “right” to life, to one’s body, to health, to happiness . . . this “right” . . . was the political response to all these new procedures of power’ (Foucault, 1978, p. 145). Of course, the turn to rights is never simple in the context of medical discipline and biopower, for their relations with sovereignty are not innocent, as Foucault reminds us in ‘Society Must Be Defended’: ‘And it is precisely in the expansion of medicine that we are seeing . . . a perpetual exchange or confrontation between the mechanics of discipline and the principle of right. . . . The only existing and apparently solid recourse we have against the usurpations of disciplinary mechanisms and against the rise of a power that is bound up with scientific knowledge is precisely a return or recourse to a right that is organised around sovereignty. . . . [A]t this point we are in a sort of bottleneck . . . having recourse to sovereignty against discipline will not enable us to limit the effects of disciplinary power. . . . We should be looking for a new right that is both anti-disciplinary and emancipated from the principle of sovereignty’ (Foucault, 2003, pp. 39–40). I cannot present a full-fledged theory of non-disciplinary and nonsovereign right here. What follows is an attempt to develop a preliminary contribution to that effort by bringing some Deleuzean concepts to bear. The basic idea is to step back from the subject as already formed (as modelled on substance) to think of singular subjectivising – or better, de-subjectivising – practices. Here we see the person not as the central

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site of sovereign control over the body as territory, but as a series of de-subjectivising events, in which you reach the point of your singularity by dissolving that which makes you a predictable, normal member of society.

A new jurisprudence: Privacy as singularity What are we to do about end of life issues in order to avoid the sovereignty trap? The challenge to our jurisprudence is to transform creatively the right to privacy. I propose four aspects of that transformation. I use the Deleuzean concept of singularity as my key. A few brief remarks on Deleuzean ontology are in order here. Deleuze is a materialist, but not a mechanist or determinist: the evolution of material systems always includes elements of chance. He proposes a threefold ‘ontological difference’: virtual, actual, and intensive. The virtual is a purely differential field, composed of differential elements, differential relations and singularities. The actual are those things we see before us, stable substances endowed with sets of properties and locked into stereotypical behaviour patterns. The intensive is the actual knocked off its tracks, as it were. Intensive processes are triggered by differences between a system and its environment such that the resultant matter/ energy flow moves systems toward thresholds where their behaviour patterns might change. Such a change of behaviour patterns – not merely a change to a different behaviour within an established pattern – is what Deleuze calls a ‘becoming’. The virtual is composed of ‘Ideas’ or ‘abstract machines’ that do three things: (1) they provide the behaviour patterns for actual systems, (2) they structure the intensive processes that change those behaviour patterns, and (3) they mark the thresholds or ‘singularities’ at which systems change behaviour patterns. Singularities are turning points of systems; they are ‘remarkable’ points as opposed to ‘ordinary’ ones. This ‘mathematical’ sense of singularity should be distinguished from the ‘logical’ sense of singularity as ‘uniqueness’ as opposed to the generic. We can combine them by saying that a mathematical singularity indicates a threshold whereby a logically unique or singular system changes behaviour patterns. To sum up: patterns, processes, thresholds: actual patterns, intensive processes, virtual thresholds (singularities). Deleuze expresses this threefold ontology in a formula: beneath the actual (as we will see, the ‘person’) we find ‘impersonal individuations’ (that is, intensive processes of becoming) and beneath these we find ‘pre-individual singularities’ (virtual thresholds).

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Let us see how these ontological distinctions help us understand the new jurisprudence of privacy as singularity that I propose for thinking the Schiavo case. We have four aspects of privacy as singularity to consider here: (1) Rights do not protect an already formed subject, but must instead protect the bases for a project of individuation. Drucilla Cornell takes an important step in this direction in The Imaginary Domain (1995); in her scheme bodily integrity is protected as the condition of a project of individuation, not as the recognition of a domain controlled by an already-established sovereign; Cornell’s second and third conditions centre on the imaginary realm as the realm within which our projects are undertaken, and she presents a moving meditation on the right to die as the exercise of this project of individuation in her 2005 article ‘Who Bears the Right to Die’. (2) Singularity must be seen in two senses. First, in its logical sense of uniqueness, the way in which the singular is that which escapes the capture of the particular by the universal category under which it is subsumed; an extended encounter with the Kantian notions of reflective versus determinate judgements could be staged here. Second, in its mathematical sense, as that which marks a change in direction of the graph of a function; this is used in non-linear dynamical systems analysis to indicate a threshold or turning point in which a material system qualitatively changes its behaviour: classic examples are the phase transition between the solid and liquid and gas phases of, say, water; a more appropriate example is the legal, medical, and ontological change from a material system exhibiting behaviours of a social subject – a legal person – and one exhibiting only those behaviours of an organic system, as in the PVS cases of which Schiavo is an example. (3) Privacy, as the realm within which a project of individuation occurs, must also be protected from the productive aspect of law, as Jeb Rubenfeld notes in his important 1989 Harvard Law Review article on ‘The Right to Privacy’; Rubenfeld shows that anti-abortion laws, for instance, do not simply remove an action from the field of permissible action (the negative or prohibitory notion of law as interfering with a primordial liberty), but also actively produces a person as a mother, creating both a juridical and an ontological change in the person. In the Schiavo case, then, the right to privacy does not simply keep the state from prohibiting an action that an autonomous subject might wish to undertake, but protects decisions at the turning point of PVS, so that persons are able to prevent

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having state action actively produce them as PVS cases – or at least maintain them as PVS cases, producing them as long-term PVS cases. (4) The project of individuation has for Deleuze and Guattari its basis in de-personalisation. For Deleuze and Guattari, the project of individuation does not aim at a wholeness that we project even though we know in advance it to be impossible (Cornell’s formulation), but aims at revealing the singularity (logical uniqueness) of persons as the nexus of virtual differential ‘lines’ that cross us and that are actualised on the spot at various turning points (mathematical sense of singularities) in our lives. In other words, only in an extraordinary ethical situation, living along the fault line between organic – bare – life and personhood, does one feel the intensities pulsing through a person and revealing the impersonal individuations and pre-individual singularities that the person actualises and that allow for a judgement as to the medical treatment appropriate for him or her, whether that judgement is rendered by him or herself or by proxy. Here it is not a matter of a ‘judgement of God’, that is, the application by a disembodied mind of a transcendent standard to the ‘facts’ of a case, but judgement as felt intensity at a singular point, allowing lines of a virtual multiplicity to be actualised as the solution of a problem. Judgement as felt intensity of that which surpasses a person, de-personalising him or her, rather than the exercise of a sovereign will. Such a judgement is made in love, as Deleuze and Guattari memorably write in A Thousand Plateaus: ‘Every love is an exercise in depersonalisation on a body without organs yet to be formed, and it is at the highest point of this depersonalisation that someone can be named, receives his or her family name or first name, acquires the most intense discernibility in the instantaneous apprehension of the multiplicities belonging to him or her, and to which he or she belongs’ (Deleuze and Guattari, 1987, p. 35). One of the ways to the new right we search for must be through such love, the sacrificial love that Terri Schiavo had for her loved ones, for her husband and for her parents, a love that, obscenely, we glimpsed in the media spectacle to which they were subjected.

Bibliography G. Agamben (1998) Homo Sacer: Sovereign Power and Bare Life, D. Heller-Roazen (trans.) (Stanford: Stanford University Press). —— (1999) Remnants of Auschwitz: The Witness and the Archive, D. Heller-Roazen (trans.) (New York: Zone Books).

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—— (2004) The Open: Man and Animal, K. Attell (trans.) (Stanford: Stanford University Press). —— (2005) State of Exception, K. Attell (trans.) (Chicago: University of Chicago Press). American Civil Liberties Union (2006) FBI Document claimed via Freedom of Information Act. Accessed: 23 February 2006. http://action.aclu.org/torturefoia/released/022306/2600.pdf. L. Beyerstein (2005) Local Cops Thwart Tube-Rape Conspiracy. Majikthise: Analytic Philosophy and Liberal Politics. Accessed: 26 March 2005. http://www. majikthise.typepad.com/majikthise_/2005/03/local_cops_thwa.html. British Broadcasting Company (2006) British Army Discipline and Capital Punishment 1914. Accessed: 2 April 2007. http://www.bbc.co.uk/dna/h2g2/ A944363. D. Brown (2006) FBI memos reveal allegations of abusive interrogation techniques. Knight-Ridder Washington Bureau. Accessed: 23 February 2006. http://www. realcities.com/mld/krwashington/13945827.htm. M. Conigliaro (2005) Terri Schiavo Information Page. Abstract Appeal. Accessed: 23 February 2006. http://abstractappeal.com/schiavo/infopage.html. D. Cornell (1995) The Imaginary Domain: Abortion, Pornography and Sexual Harassment (New York: Routledge). —— (2005) ‘Who Bears the Right to Die’, Graduate Faculty Philosophy Journal 26/1, 173–88. G. Deleuze and F. Guattari (1987) A Thousand Plateaus, B. Massumi (trans.) (Minneapolis: University of Minnesota Press). K. Fitzpatrick (2005) ‘Bare Sovereignty: Homo Sacer and the Insistence of Law’ in A. Norris (ed.) Politics, Metaphysics and Death: Essays on Giorgio Agamben’s Homo Sacer (Durham: Duke University Press), 49–73. M. Foucault (1972) ‘The Discourse on Language’. Appendix to The Archaeology of Knowledge, A. M. Sheridan Smith (trans.) (New York: Pantheon). —— (1977) Discipline and Punish: The Birth of the Prison, A. Sheridan (trans.) (New York: Vintage). —— (1978) The History of Sexuality, Volume 1: An Introduction, R. Hurley (trans.) (New York: Pantheon). —— (2003) ‘Society Must Be Defended’, Lectures at the Collége de France, 1975–76, D. Macey (trans.) (New York: Picador). K. Greenberg and J. Dratel (2005) The Torture Papers: The Road to Abu Ghraib (Cambridge: Cambridge University Press). T. Mayo (2005) Life-Support Stopped for 6-Month-Old in Houston. HealthLawProfBlog. Accessed: 23 February 2006. http://lawprofessors.typepad. com/healthlawprof_blog/2005/03/lifesupport_sto.html. C. Mills (2005) ‘Linguistic Survival and Ethicality: Biopolitics, Subjectivation and Testimony in Remnants of Auschwitz’, in A. Norris (ed.) Politics, Metaphysics, and Death: Essays on Giorgio Agamben’s Homo Sacer (Durham: Duke University Press), 198–221. J. Rawls, R. Dworlin, T. Nagel, R. Nozick, T. Scanlon, and J. J. Thomson (1997) ‘Assisted Suicide: The Philosophers’ Brief’, New York Review of Books, 27 February, 41–47. J. Rubenfeld (1989) ‘The Right of Privacy’, Harvard Law Review, 102, 737–807. R. Sinnerbrink (2005) ‘From Machenschaft to Biopolitics: A Genealogical Critique of Biopower’, Critical Horizons 6/1, 239–65.

6 Vitalistic Feminethics: Materiality, Mediation and the End of Necrophilosophy Patricia MacCormack

Post-philosophies have celebrated and lamented the loss of the human and its associated residual humanism and transcendentalism, particularly the absence of self-reflexivity and the repression of corporeality in both philosophies. The post-human is similarly associated with post-structural philosophy, and I claim both are necrophilosophies. Necrophilosophy describes the aspects of post-structuralism and the post-human that resonate around (and mourn) the death ‘of …’. Perceived as benevolent or malevolent, necrophilosophy focuses on what is lost. It is conceptual, deferred to an abstraction that is compelled to return continuously to the condition of the subjects who mourn their own potential absence as one of the casualties of postphilosophy. Death of the subject invokes creations of multiple subject positions and future subjects, but the focus remains on self-realisation, representation and truth as absence or spectacle. Absence is necrophilosophical because it mourns loss, reifying that which has been lost even in celebrating its absence, and discursively indulging in loss nihilistically or ecstatically, sacrificially. Death is abstracted as a bureaucratic technique at the interface of legal and medical epistemes, an enunciated concept from the legal enunciative function. It absents the material process of dying in the same way as transcendental existence does to living, making a noun of the two most ubiquitous of verbs. Death is now a pronouncement, an agreement between law, medicine and ethics. As Patrick Hanafin states ‘death has been taken out of the hands of the dying’ (Hanafin, 1997, p. 7). Necrophilosophy has collapsed both life as a subject and death into events which must be announced and to which we have access only via institutions. 73

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In-between subjects, for Deleuze and Guattari the points of becoming – woman, animal – are in-between dominant transcendental ‘life’ (the majoritarian) and minoritarian devolved ambiguity (less than the majoritarian). But the very definition of life is now an epistemic state. Before someone can count ethically, their life signs must be counted up. For women and animals this question arises based on counting as equivalently viable life – life given the status of subject. Covertly the mechanisation of the pronouncement of death and thus life means we are facing the dematerialisation of autonomous flesh. Like forensics itself, necrophilosophy extends over territories of physiology, pathology and law, constructing the very territories of possibility of definitions of life and death as it goes. The grand death machines of war are miniaturised in the machine of individual death. Necrophilosophy laments the loss of subjectivity in post-structuralism, and also decides how we lose that self. Ben Rich negotiates the difficult shift from dying as something that happens to organic entities in death coming from the coalescence of four discursive legal imperatives: death as concept, the definition of death, a set of criteria and tests performed to determine if those criteria are fulfilled (Rich, 2002, p. 119). Just as certain subjects in society are permitted to live based on their fulfilling majoritarian criteria, so too they can only become absent through systems. Necrophilosophy collapses life and death, making everything dead only to be alive in pre-formed concepts. Post-structural philosophy could have seemed a utopia for feminism. While certain trajectories mourned or celebrated the death of truth, transcendence and metaphysics, others invoked a materiality in thought as a creative project replacing metanarratives of knowledge. The archaeology of knowledge emphasised humanism and transcendentalism as forms of Forensic philosophy, where to reveal that ready to be known, atrophied in a place of permanent waiting, was itself revealed as a creative form of thought designed to immobilise ideologies, powers and the majoritarian episteme. Thought as knowledge was the resurrection of the already dead, that known before it was revealed, that which fulfilled hypotheses, to prove more than to enflame, dissipate or incite alternate and multiple trajectories of ideas. Forensic philosophy, like all forms of forensics, is active reiteration. At the most basic level forensic textbooks tell us forensic law is based on inference which is ‘any passing from knowledge to new knowledge … for the passage to be valid it must be made according to the laws of logic that permit a reasonable movement from one proposition to another … because of past experiences in human affairs’ (Aldisert, 2006, pp. 13–14). Ruggero Aldisert also tells us that in addition to being logical a premise must

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also be true (Aldisert, 2006, p. 15). New knowledge is found here only in digging up and loving the dead, not moving too far from the grave, and the corpse is always a human who counts – he who creates the category of human itself and thus controls and memorialises the affairs. For vitalistic philosophy the apocalypse of human affairs ruptures the eternal return creating unreasonable movement. This is a movement of new reasonings, ethical because it is inherently critical of the category of human as singular. As a result subjects can speak only as different from one another. As Deleuze and Guattari emphasise: ‘habit is creative’ (Deleuze and Guattari, 1994, p. 105). Theoretically then post-structuralism is not a seemingly impossible explosion of entire discursive systems en masse but a simultaneous active experiment in unthought .It is creative thinking without hypothesis or a projected outcome (point of death). It is reactive in its resistance to those systems which have maintained, oppressed, or have been isomorphically annexed to the dominant. Forensics is excavation, necrophilosophy the lamentation of nothing to find. Vitalistic post-structuralism takes on the seemingly impossible task of addressing the unthinkable. It responds to the other as an encounter without seeking, needing or being able to know its singularity, but thinking it nonetheless. This could be seen in Jacques Derrida’s necessary impossible, Michel Foucault’s unthought and resonant with Jean-Françoise Lyotard’s differend. Thinking rather than knowing is both difficult and easy. It is radical and risks reiterating the margins it attempts to cross and explode. More binaries are invoked, new binaries to replace the old. Forensic philosophy used isomorphic systems to value certain terms within binaries at the expense of the others who were not opposed to but failed to be the dominant term. Some new terms have replaced the old and excavation has been replaced by speed and simulacrum – are we new enough, are we going fast enough, are we changing at breakneck speed, are we replacing things we do not know we need with new things we do not know we need? Forensic philosophy excavated the metaphysics of what it meant to be human, transcendentally, intellectually, spiritually, legally and corporeally, only to the extent that science maintained the body as vessel of, not inextricable from, the mind/soul/self. The painfully slow and ambiguous issues of dying and death have been replaced by the ‘verdict’. ‘Post-’ is maintenance, replacement and augmentation. The transcendental human is now a node within speed epistemes of synthetic reproduction, essence as point more than thing, not the ‘what now’ but the ‘what next’. Life is synthetic and measured by time. Philosophy and science make futures which exist in the present. Law announces their arrival

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through vindicating their presence within structures of knowledge from the past. Post-human spectacle creates fabulations and hybrids of the human through art, technology and bioscience. These appear radical but inherit the same values of humanism packaged in increasingly anthrocentric ways. We are not becoming-machine in cyborgism, becoming-woman through the fetishisation of feminine minoritarianism or becoming-animal through xenotransplantation. Rather the animal, woman and machine as phyla are finally and completely consumed by the pathological drive to make the human without genesis and live forever. Such a human invokes the death of narrative, which Lyotard points out is a key symptom of postmodernity. Assimilation of all alterity makes the human finally evident to itself as finite, as everything to itself. The human as its own self becomes necrotic but both causes and denies the actual and discursive death of others in its wake. An ethical philosophy does not require a return to humanist transcendentalism. It is a valuation of ‘life’ not as a concept but as it actually incarnates in everyday flesh-in-the-world, as an emergent point of philosophy and bio-physiological existence. While post-structuralism laments or celebrates the death of subjectivity and the truth of existence, the post-human is a form of embodied subjectivity similarly necrotic, not through death but the urgent desire to overcome the body. In humanism the body is not yet born because human essence is not yet known, in post-structuralism it is already extinct. Death of the subject – post-structural male hysteria – and death of discourse as affective – relativism – have created necrophilosophy. Historically women have neither been granted form nor controlled ideologies but have been the threshold of bios, between animal and man, monster and baby-incubating machine, physiology and pathology. Rather than dead identity, does feminism offer the possibility of threshold subjectivity? Deleuze and Guattari’s repeated use of the question ‘What happens in-between?’ privileges the affects of interrelative action rather than the reflective meaning of being, thus always considering a between-ness, or existence as only valid within an assemblage rather than dividuated. Deleuze and Guattari emphasise that ‘the plane of consistency is the intersection of all concrete forms’ (Deleuze and Guattari, 1987, p. 251). Concrete forms need not refer to, nor exclude, whole bodies or selves. But they do include materiality and undifferentiated flesh, because the quality of any whole or thing is available at many intersections or points along the plane of consistency. What is discursive flesh when law negotiates the ethics of its conditions

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of social possibility with singular instances of material lived existence? Does repudiating necrophilosophy resurrect the real death of concrete beings and thus the materiality of ethical philosophy? Can feminism’s shift from a critique of the phallic subject to threshold subjectivity both celebrate vitalistic ethics and simultaneously address our relationships with the conceptual and real dead? Many ‘post-’ theorists and artists such as Guattari and Deleuze, Michel Serres, Lyotard, Gil Elliot and Antonin Artaud explicitly demand we get rid of philosophy to mobilise ethical politics, material transformation (though not through the matter of form). Are they really calling for an end to necrophilosophy, at turns hysterical, nihilistic and (whether accidentally or deliberately) murderous, hurtling us towards death but never acknowledging the dead it has caused or the never been? Legal language is about announcing the state and thus rights and viability of subjects. Majoritarian culture is a notorious murderer of difference. A post-necrophilosophical forensic legal announcement of murder could herald a new formation of subjectivity, a vitalistic sacrifice. How could law become postforensic, one which announces the state of the body not as organised into life/death but as a Body without Organs, which here is essentially a legal organisation without organs – ethically adaptive, mediative and diverse in reference to significations of body, property, domination, autonomy and the demarcation between bodies. Necrophilosophy is a kind of spatial atrophy. Temporally this autopsy attempts to make sense of male death within evolutionary celerity. It is a response to two potentials. The first is positioned behind the myth of the white male, as devolutionary – virality, feminism, animal rights, Deleuze and Guattari’s becomings animal- woman- and molecular-. The potential in front of the myth is the post-human, with which the necrophilosopher has an ambivalent relationship – both augmenting and speeding the male towards an evolutionary immortality and anxious at the hybrid created – it is relatively safe if assimilative, threatening as a threshold union. Feminist ethics is spatially the interstitial and pack, temporally as contracted memory and becomings. It is an adamantly material discourse. Playing with Deleuze and Guattari’s becomings-, woman and animal, these terms shift from devolutionary to points of threshold which effectuate shifts in inter-relations between organisms as ecologies, not emptied of their force but teeming with lives at every threshold of forces: a critical but adamantly vitalistic discussion of becomings. Post-necrophilosophical ethics acknowledge flesh and life as reality through issues of feminism, women and Deleuze and Guattari’s inflected de-evolutionary becomings-woman-animal. The

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conception of death ignores the dead, and must address necrology and actualising ecology rather than subjectivity as post-human, equivalent or conceptual. Within the interstices are real life bodies activating material change. Threshold(s) are the becoming that refuse the fathomless empty space between meaning and communication, living as legal status, subject communicating transcendentally to like subject, the space often filled by the bodies of women and animals for symbolic and actual exchange between subjects and their relationship with knowledge and consumption. Law ceases to excavate difference towards the transcendental subject to which all law can be applied, asking which ‘people’ are we invoking when we say the greatest good for the greatest number? While racial otherness, sexuality, diffability, geo-economic and other forms of alterity equally deserve address, I focus in particular on animals and women for various reasons. First animal and woman are the primary two terms with which Deleuze and Guattari suggest we make an ‘unnatural participation’ in becomings. The importance of flesh in ethics is the unnatural of nature – not nature as signifying or as part of an episteme but nature as excess material thought. Becomings are not metaphoric or performative but risky. Both becomings raise issues of possible fetishisation of the minoritarian. Animal rights activists are currently being named urban terrorists for non-violent protesting, while anti-women’s rights groups such as religious extremists and anti-abortionists are increasingly powerful. Both privilege and ignore the subjectivity of the oppressed – coverage of animal rights focuses on the activists (as good, bad or mad) and anti-abortionists on the fetus in relation to the woman. The 1967 Abortion Act in England and Wales, while using the term ‘the woman’ only does so in relation to ‘the child’ and ‘the woman’s health’ not her will or rights. Animals and women are still denied agency and subjectivity, their existence is non-existent, dead before it was born, while those who would have control over their bodies (explicitly their flesh) reaffirm the philosophy/corporeality binary, except now the Cartesian split occurs through conflicts within those who demand the power of epistemic control and those who exist at the intersection between them. Women and animals are territories of new empire. The colonisation of women and animals is more than conceptual, it manifests in actual physical torture and death.1 Those who are forced into interaction based on the specific minoritarianism of their flesh are those who also disprove the potential of any concept of enlightenment being for all humans. This repression of the corporeal corresponds to those subjects within enlightenment

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thinking robbed of potential for thought by way of the being of their bodies. ‘Death’ remains conceptually reflective. It is the very corporeal dead which we must conceive; a turn from the hysteric ownership of the not yet born, bits of nothing cells, by which anti-abortionists ablate women of their flesh; a refusal to shift animals as sentient dividuated singular entities to undifferentiated flesh for consumption or use. Shifting women and animals from singularities to flesh misses the in-between which is the event that also shifts them from a life not to death but to dead. Women do not exist as life when their bodies are not their own, animals are not considered to have lives but simply useful when alive (work, food production, experimentation) or dead (meat). ‘Dead’ may (and must) be represented as theoretical logic rationality of the madness of total war(s) – capitalism, misogyny, animal slaughter. Death cannot. Dead refers to the dead and to making something dead, as these lives do not ‘naturally’ experience their own deaths but are made dead. The rise of capitalism, technology and other tropes of modernity to postmodernity have created an entirely modern post-nation, the nation of the dead. Necrophilosophy attempts to make sense of death, perhaps in order to deny it. Necrophilosophy – a conversation with death, necrology – conversing with the too often needless irrationality of dead-ing in modern culture. In the formulation of anti-genocide law the United Nations General Assembly resolution states that genocide refers to crimes which have already occurred (Schabas, 2000, p. 14). Genocide creates a global crime. But that the crime usually has no name and can only be reflected upon, evinces the impossible nature of fathoming total death in the necrophilosophical playing field. This is because it is immanent and cannot be apprehended in its immediacy as deferrable to pre-formed signification, particularly those oriented around ‘the’ subject or the iconography of individual death as symbolic of shared death. If we take genocide to be an event rather than a group specific crime then the field itself becomes death, an ecological terrain of the dead, which is not demarcated but devoid of subjective specificity. It is nameless and all the more horrific for being so as there is no purpose for memorialisation, no memory. It is precisely the point at which ethics is needed most and an example of technology’s capacity to create death en masse. Politically and historically genocide can refer to the slaughter of certain subjects (Guattari, 1996). Bodies must be understood as flesh in order for us to prevent ethically their actual massacre. While we abstract and signify along reified and repeated trajectories, the occupied

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flesh of ourselves and others is being philosophically and physically slaughtered simply by virtue of its gender, human/non-human status, geography or race. How can we bring about the inclusion of formerly dead (or not counted as living) subjects? What Elliot calls the nation of the dead as a result of total death – man-made in war, industrially induced disasters, genocide and disease – must formulate a nation of the living. This is more than just valuing each individual. It is the intervention of vitalistic reason – ecology – into the irrational mass slaughter through axes of signification (science, law and philosophy as well as war), which have created the nation of the dead. Postmodernity, the new age and other myths of newness have created this nation of the dead. Elliot states ‘Indeed, some people deny the usual bright vision that the next [21st] century will be the “century of Brazil” – or China – or Russia, and instead assert it will belong to the nation of the dead’ (Elliot, 1972, p. 187). This nation, which outnumbers any other, is a created nation. It thus makes a global law beyond reflective legal imperatives. Elliot is speaking of the made-dead by the living through technologies of war, capitalism and their side effects. Just as posthumanism is the self authored by itself so too the largest modern nation of the dead is authored by the other global nation. Elliot emphasises that the irrationality of making-dead has been vindicated in modernity and postmodernity through two myths. The first is the myth that ‘in a society with certain freedoms and drives it is inevitable’, and the second that this ‘free’ society has ‘monstrous proclivities. It grows untrammelled, it has uncontrolled appetites, it consumes that which feeds it’ (Elliot, 1972, p. 193, original emphases). As a form of false consciousness the living nation perceives that with freedoms (of government, of capitalism and of thought) come casualties. Subsequently the creation of these freedoms gives their apparatuses a certain freedom to exceed our control of them – viruses that save but might kill, weapons that leak toxins and kill in a ‘friendly’ way, machines that go haywire, brain diseases that infect while we enjoy our fast food. These myths are necrophilosophies. Through quickening certain material-isations and pack assemblages we can effect change and inflect traditional linear evolution through becoming-pack-animal, becoming-woman, a material subjectivity as well as ecology of transformation. The materiality and materialisation of philosophy through minoritarian flesh, what Guattari calls ecosophy create links and postulates that connect all matter, human, non-human, abstract, social. Philosophy and matter are inextricable but inspired by those trajectories usually designated by flesh. In animal welfare law it is a crime for an individual to inflict cruelty on an animal but total

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extermination is both ignored and abstracted from being torture and murder to a ‘necessary’ making-dead. On a practical level ecosophy’s address to ecology could shift the law to define mass death, as a result of climate-related disaster, for example, as a form of genocide. Seyla Benhabib takes three elements of post-modern thought as problematic when formulating an ethics for selfhood. These are the death of the subject, what she calls The Death of Man, the excavation of the truth of history or The Death of History and the death of the desire to master the self and the world by knowing everything, The Death of Metaphysics (Benhabib, 1992, p. 211). Our bodies are now fashionable theoretically and, ripe for assimilation by the logic that marginalised us in the first place, is a trend of postmodern theory. The desire to master reality through its inception as epistemological being in poststructuralism comes as simulacrum seeming, the extravasated signifier. Benhabib states ‘The subject is replaced by a system of structures, oppositions and differences which, to be intelligible, need not be viewed as products of a living subjectivity at all’ (Benhabib, 1992, p. 209). Where does the specificity of a lived woman’s body and history go when the desire to become process, non-fixity and becoming replaces the idea of an historical embodied self? Whether they are Jean Baudrillard’s nodes of information rather than communication or seemings rather than beings, bodies beneath, beyond and bound by the law still exist. Where are accountability, ethical responsibility and responsibility for history in a constantly altering transforming self? The activity of locating and transforming through ‘others within the self’ simultaneously with ‘pack other’ (becoming animal, an assemblage existence, be it politically such as feminism or total such as a refusal of total death) produces an active engagement with: (1) Concepts of other not limited by and not entirely deposing of the borders of the flesh and not forced isomorphic contracts with abstract legal machines, be they fetishistic (becoming woman) or actual slaughter; an embodied self which actively negotiates others as molecular not molar, either the other in the self or other bodies which themselves have their own boundless others, such that all specificities of all concrete others are actively engaged with at every moment; a self which identifies the borders of the flesh and its memories but does not see them as indicative of wholes or organisms for the future due to such borders. (2) Concepts which deconstruct, sometimes violently, any notion of the sanctity and integrity of a subject created to resemble a valuable

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capital commodity, be it over-valued male subjectivity, objectified female biology or Oedipal or devolutionary models of the creation of man-who-will-live-forever through inhumane – actually quintessentially human – animal experimentation in order to create the post-human. This includes the over-valuation of life defined as brain-stem activity where the right to die and thus being dead would be a more vitalistic state. (3) The nature of what is being deconstructed so that history and accountability are always in process with transformation – we can transform to something else but we transform from whenever we transform to – interstitial. Deleuze and Guattari claim the only way to get out of the dualism is to be-between (Deleuze and Guattari, 1987, pp. 276–7). In being-between, the relation of philosophy and flesh encounter in actual risk, in conceptual experimentation that puts the body both on and as the line. Instead of male death resulting in becomings through fetishisation, the in-between fights an ecosophic war as a dual citizen of resistance fighter in the nation of the privileged living and potential member of the nation of the dead. What Deleuze and Guattari fail to express is that this constant un-being of woman, who promises so much for becoming, exists at a place or a be-between that woman neither made for herself nor resides in willingly. Feminism has attempted to re-appropriate the in-between and abstractedness of woman’s representation in culture in order to affirm female being and take away the power of namingher-there, which phallologocentrism exercises. What Deleuze and Guattari do is make desirable the position without acknowledging the importance of speaking and valuing the position in the process of its becoming desirable. Woman needs to speak her own subversion, as much for the speech as for the subversion. As Rosi Braidotti points out, [t]o put it in more feminist terms, the problem is also how to free ‘woman’ from the subjugated position of annexed ‘other’ so as to make her expressive of a different difference, of pure difference, of an entirely new plane of becoming, out of which differences can multiply and differ from each other. Braidotti (1994, p. 115) Post-philosophies have been resistant to the idea of ‘real life women’. Postmodernism is suspicious of too much meaning being read into experience and hence affixing meaning to action (against ‘performativity’

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where there is no real agency behind the ‘mask’). What this elucidates is postmodernism’s adherence to an element of enlightenment philosophy – that of real life experience being irrelevant and even detrimental to the formulation of a self that is beyond material immanent experience. Real life is hyper-unreal – the cyborg the xenotransplanted – a new enlightenment of privileging post-flesh. It affirms transcendent truth for all ‘man’ against a micro-experiential formation of interrelated existence – life as displaced concept of death, of other made equivalent to self. Interstices existence is the use of animals without their will or sentience, the use of women for becomings without their memory and the use of machines to create uber-terminators or terminal patients as zombies, giving hu-man-ism the post-existence it has so sought, a balm for hysterical possible non-existence in the face of feminism, post-colonialism, queer theory and animal rights. The desire for post-humanity places the chain of being in time, hurtling towards the zenith of eternity, not space, which would configure the links as co-present and mobile, distortable, inflective. Against the post-human as extended or less material new millennial entity, becoming-woman and becoming-animal are possible entrances of post-humanism for a vitalistic eco-philosophy. Becomings in this instance radicalise through two axes; their assemblage nature or ‘pack’ aspects, itself a non-domesticated, non-anthromorphised animal assemblage, and their interstitial nature which invokes becomings always as ethical entrances through the submission to a resonance with an oppressed term and thus with the possibility to suffer. The importance of history in this new ethics is a response to the hyper-speed or present-future of the post-human (already arrived before the human departed). The Krokers, by suggesting that masculinity is so threatened its anxieties are now comparable to those of feminists, are suggesting that popular masculine theorists and their theories are able to be taken on board with feminist discourses. This claim is utopian, and I maintain that whatever a ‘feminine’ or ‘feminist’ version of death is, including its threats, drives and such, it is always going to be different to those of the dominant (hence only) subject position. Death has always been and always is the apocalypse – the apocalypse of every subject is death, and for every subject the idea of their own singular death apocalyptic. Theoretical apocalypse, the death of the integrated male subject, is simultaneously a necrophilosophy and a luxury apocalypse compared to the anxiety expressed at the annihilation of the subject altogether, of consciousness altogether or of whatever any one particular theorist believes is that which is annihilated at the point of death. The fear of death for the idealised

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masculine subject is also an affirmation of a unified identity – where does this put the actual dead? D. N. Rodowick challenges the idea that power may simply be taken by the less powerful and exchanged for already-available (alreadythought) power through Deleuze and Guattari’s idea of resistance and memory. He claims ‘the relation of history and memory is equivalent to that of power and resistance. The memory of resistance is not a ‘human memory’ [male/majoritarian] … this absolute memory of resistance, that founds all acts of resistance, is minoritarian’ (Rodowick, 1997, pp. 205–6). Resistance is attractive because it makes becomingminoritarian available for all subjects without conflating the desire and, most importantly, memory of all subjects in their processes of becoming. Becoming-woman, the memory of ‘woman’ is different to the history of women. A male becoming-woman would utilise the history of ‘woman’ (the idea of woman) resistant to the memory of being (powerful) majoritarian. Women per se would utilise their memory of being women (in all their specificities) resistant to majoritarian powers in history. How can the majoritarian, he who desires becoming, know woman further from the basic fact of her not-being-man/majoritarian? Is becoming-woman a becoming-flesh of the transcendental subject? Man knowing woman’s memory is not her memory but his history of her. Deleuze and Guattari’s focus on the little girl over the woman makes me ask, has she suffered enough yet to need to become-woman? The majoritarianism’s enigmatic relationship to women figures ‘Woman’ in ‘History’ over women’s memory(ies). Aldisert’s claim that law must come from maintaining former legal premises needs to become law developed from memory (or memories) as much as history, ethically interacting with singularities and multiple interstitial communities. Memory also demands our interaction with the nation of the dead to which we can never be members borne of the total death at which we can never bear witness. This crucial point (although Deleuze and Guattari’s conflation of man-and-woman and their choice of order are questionable) emphasises that woman’s suffering can never be known because her marginality, her minoritarianism is never constant and never clear (this is the majoritarian power that forces her to resist constantly). Deleuze and Guattari are potentially guilty of either making women trivial by affirming their difference, based only on their difference in respect to men or they are using the lived experience of real women constantly being differed as a philosophical strategy. Deleuze and Guattari’s suggestion that women first enter into a becoming-woman is problematic because it insinuates that beneath phallologocentric

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repression of the potential within female bodies is some kind of residual memory of how to be ‘woman unbound’. So while the male subject may lose his subjectivity while being made explicitly aware of that which he has oppressed through becoming-woman, woman is leading the way by setting out the true unbound mode of being. Women are re-differed through the suggestion that we might know better how to unbind ourselves, albeit after being told as much by two male philosophers. Unbinding ourselves makes us forget our memories while setting up some kind of mystical innate path for others to follow. Woman as interstices is developed along a chain of being, an adamantly hierarchical chain. Even though the horizontal evolution chain claims to have replaced the vertical arborial taxonomy, the links are relatively finite to the left, certainly devalued, and post-human to the right. And any belief that woman is equivalent with man is almost misguided optimism, just as the belief that animals are good enough equivalent models for science but, in an unethical oxymoron, not good enough to not be tortured and killed. Similarly we have the Oedipal animal (which Deleuze and Guattari critique as not animal at all, but little baby). Concern for the welfare of a little doggie unloved by its mummy and daddy deflects attention from, for example, the prevalent breeding and experiments on beagles, tortured as matter for information. Vivisected animals are configured as strange hybrids who are physiologically human enough to work on but not enough with which to enter into an ethical threshold relationship. While animals, in science, are legally used as tools of equivalence and information or in diet as enslaved and consumable, animal rights activists have to contend with their ethics being similarly valued only through their equivalence use – the arguments must vindicate the animal based on its equivalence of sentience and thus rights. Cruelty law defines unnecessary harm or cruelty towards animals as criminal but here the crucial term is ‘necessary’, as clearly the definition of necessity is ‘necessary for (and thus structured by) the human’ – an arbitrary and vague word forming a deeply unethical, because non-mediative, structure. The episteme must remain the same for the ontological place to shift upward. ‘Can they – hurt/suffer’ is discursively the same as ‘what do women –want/need’? As Adams points out ‘the current ontological condition of animals has less to do with their being than with our consciousness’ (Adams, 1995, p. 194). Becoming-animal is ethically not empathy, sympathy, fetishisation. Becoming-animal is the very opposite of allowing animals rights based on their equivalencies with humans. Animals, like women, cannot become majoritarian. Adams’ association of animal rights with women’s rights is persuasive in pointing out

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that what both want is freedom, not to but from and not from situations or acts of cruelty or oppression or death but from majoritarian (or any) ‘attendant regime of general equivalence between systems of value … necessarily accompanied by an utterly hopeless fetishisation of profit’2 (Guattari, 1996, p. 123). The rights of an animal to be free from torture and being eaten reflect the rights of women to be free from sexual assault. Both emerge through a discourse which places the onus upon them to prove they are not meant for food or sex. Importantly for threshold and hybrid becomings, while many advocates and rights philosophers address issues directly related to their own identity, animal rights activists inherently speak as the irreducibly other because the other cannot speak the language which destroys it. This is increasingly evident in recent US legal arguments which repudiate the rights of animals evaluated simply on the extent of their experiencing cruelty as wrong when it is for fun rather than ‘cause’, to elevating animals to the status of entities with rights. In relation to vitalistic forensic futures and the law this would mean that an animal has the right to die in that it has the right to autonomy over its own death. However the US courts’ problem is that ‘animals do not have standing to seek redress or assistance’ (Slocum-Schaffe, 2005, p. 78). Slocum-Schaffer points out that in various US legal cases violation of the rights of genetically engineered animals was ruled violation of patent, that the refusal of students to dissect was acceptable based on the rights of students, not animals. The law’s problem with animals is not that they may own their bodies but that they cannot ‘recognize rules’, the very human paradigms which allow them to exist and which, according to necrophilosophy, make them inferior as they apparently cannot make their own. Descriptions of ‘animalistic’ or ‘wild’ behaviour now describe the exquisite refinement through technology and consumption of unethical treatment, discursively, materially, actually. The inhuman(e) is the post-human. Destruction for fun, the dead for forgetting, the elimination of bodies for purely discursive or epistemic reasons, existence as flesh, as conceptual (and always someone else’s) are all wild behaviours of war-machines, science, philosophy, and victims are those of progress not evil or aggression. The problem is not that animals suffer like us or even that they suffer for profit, where people do not ‘care’. Unethical treatment of animals and women and, unsympathetically, Deleuze and Guattari’s becoming terms involve legal ‘contracts’ for which the other party has no agency or is acknowledged for its independent alterity, really contracts between majoritarians for the use value of the object. We are in the way or used for the way. The nature of life in (all) living

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non-majoritarians and non-humans is ignored while the abstract enunciative legal machine is the most valued and focal entity. Failure to be majoritarian is more detrimental than opposition because the subjugated or minoritarian term simply does not exist, nor are possible paradigms of existence available to ‘it’. There is not two, there is one. For Deleuze and Guattari unity however comes, not at one, but zero. One is isomorphic, it exists where addition robs its unique status and subtraction insinuates absence. One is the coalescent supremacy of signifiance and subjectification. Post-structuralism can dissipate the one into many. It can also make the one better. Zero creates unity, absolute assemblage, neither hegemony nor homogenisation. Derrida abstracts and mourns the fact of (his own) death – ‘death is very much that which nobody else can undergo or confront in my place …. It is from the site of death as the place of my irreplaceability, that is, of my singularity that I feel called to responsibility’ (Derrida, 1995, p. 41). This would ‘save’ women, animals, others only because of their equivalences. Death is not what Derrida calls ‘the experience of anticipation’ (Derrida, 1995, p. 40), at worst some kind of elegant version of Kroker hysteria. The nation of the dead is not acknowledged through hyper-reflexive empathy. Elliot suggests replacing death as myth (death is evil, death is violent, death is necessary for nationalism), religion (death as pre-fix to post-death) and philosophy with, for example, ecology (Elliot, 1972, p. 202). Ecology is material – after all the dead are nothing but matter whose physiology has failed. This could be seen to resonate with the continued disjuncture between legal definitions of life, death and rights to either with the materiality of palliative care, lived animal reality and other everyday ethical interactions with the fleshy banality of life and death. Discursive physiology must adapt, mobilise and shift to maintain the health of the whole planet, not only interrelation between persons but a challenge to the privileging of certain concepts (or even certain becomings-) over others. While we become we should resist anthropomorphising other life forms or even pure abstractions of nature, acknowledging the unknown and unknowable. Optimistically Guattari urges ‘how do we change mentalities, how do we reinvent social practices to give back to humanity – if it ever had it – a sense of responsibility, not only for its survival, but for the future of the whole planet’ (Guattari, 1992, pp. 119–20) – a virtual ecology. Survival involves living one’s existence rather than ablating one’s death through philosophising it or subjecting it to a legal status. Total death borne of faux nationalism (including gender and political ‘nationalism’) and capitalism (total death by proxy) is replaced with

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a precise alternative; flux over libido, phylum machines (rather than dialectics or drives), virtual universes of value rather than sublimation and unconscious complexes, finite existential territories, not instances of self – ‘the being before being’ (Guattari, 1992, p. 126), which allows the becomings-to-come. Irigaray similarly refers to the ‘sensible transcendental’ (Irigaray, 1993, p. 129). Transcendentalism and existentialism, replaced by necrophilosophy, re-emerge in both Guattari and Irigaray as material, corporeal, thought and flesh indivisible. Theirs is an immanent transcendence, utilising truths that here and now can effectuate change (and thus truths themselves change). Truth is not the enemy of post-structuralism, neither absolute nor limiting. Vague relativism which disputes truths can evoke apathy or a fear of committing to a ‘thing’ – be it activism or thought. Acts need not be inherent, nor thought ideology. Fear of truth can make philosophy necrotic. Irigaray emphasises that the ‘truth’ of life-science must ask ‘what science or what life is at issue here?’ (Irigaray, 1993, p. 125). In right-to-die arguments the horror with which arguments that question our obsession with extending life at any cost are met (including the cost of life as lived for life in death-state) shows that trite perceptions of binaries of activism for life or against death fail to mediate with real life bodies as individuals, and the context of maintaining the life of individuals with access to certain facilities while a land of the dead in other parts of the world is created. We can still ask ‘what truth’ or ‘whose truth’ but for existentialism to shift from self instance to pack activism we must encounter and commit to a tactical truth which may mean tactical acceptance of death in certain laws related to life and death. Our becoming-woman and animal are temporary existential flux-truths to effectuate shifts. How do we create a corporeal philosophy of activism? Put simply what can we do? Ethics demands we put our bodies on the line occupied by the interstitial animal and woman, our becomings must be more than just affectuation through the power of material thought. We have to get up, get out, and do. Another question will arise in this section – what is activism? I will suggest activism needs to challenge dividuated and over-valued self through both becomings and assemblages (which are indivisible but differ in intensities). Activism is a becoming that always goes a bit further than it thinks it should or could to maintain its current existence. It must alter trajectories of dominance. I emphasise the flesh as a privileged point of activism not simply because the flesh of women and animals is a key node of the encounter between becomings, philosophy, dominance and resistance, but also, much to the disgust of post-humanism, the flesh is still the materiality of alive

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and dead. It is not purely consumable by concept – life and death. We hurt and we die through the flesh, nothing else. Arguably it is the limit of most people’s activism, whether through fear of hurt or death but also comfort, pleasure and demand. Before we are hurt or denied, we are relating the hurt and denial to perceived loss or suffering. If activism is embodied philosophy of becoming, so too is maintenance of bodily satisfied self. I do not see an emphasis on flesh being any less discursive, nor discourse being any less fleshy. I see flesh as the point where becomings go from metaphors to actualised, fetishism to minoritarianism. Benhabib’s formulation of a context-specific ethics – interactive not legislative (Benhabib, 1992, p. 6) – encourages an application of Deleuze and Guattari’s theory of becoming and its focus on specificity, intensity and unique intersections, within an ethical and ‘real-life’, social context or ecology. Mediation is a constant consideration of concrete specificities as they intersect, not economically but in terms of quality and movement. Deleuze recognises meditative ecology: ‘Not becoming unearthly. But becoming all the more earthly by inventing laws of liquids and gases on which the earth depends.’3 Deleuze points to the application of theories of becoming and mediation as directly affective of real bodies and real situations in movement – finite existential territories and machinic phyla – not philosophical or reflective conceptual versions of becoming. This actuality ecology encompasses what Braidotti emphasises: ‘Here the focus is more on the experience and the potential becoming of real women in all of their diverse ways of understanding and inhabiting the position “woman”’ (Braidotti, 1994, p. 115). Actuality ecology involves the slowing of time, of tactics which are modest and thus possible to concretise, and of the mobilisation of pack assemblages, devolved animal-humans, rather than the ‘so individual it is no longer completely there as human’ post-human. Feminism, queer, animal rights and other mobilisations of reified maps are pack deterritorialisations of existential territories – inextricably actual and theoretical, politically, aesthetically, activist, creatively (and actually risky for being so). While one may argue that the philosopher activates change because thought is material and thinking is inextricable from action, the body able to be hurt, deprived or die is the point at which the real of hermeneutic subjectivity both haunts and is irrefutably maintained in all philosophies. To activate material vitalistic philosophy the vitalism of the assemblage must colonise that irresistible point of self-maintenance located primarily in the flesh – all we are and all we need to live. Corporeal

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philosophy introduces the hitherto ignored, repressed and overcome. Autonomy defined through legally owning our own bodies is precisely what we must refuse in order to negotiate ethically being a self as not others. We must become molecular and one molecule in a political assemblage, a molecule in a pack such as the pack of feminism, of anti-racism, of animal rights, of queer-rights. Real flesh has been the site of prejudice, isomorphic annexation and suffering. It is purely because of the flesh – its use and its minoritarian status visually and conceptually – that suffering and death has been experienced. The animal slaughtered or experimented on, the woman impregnated, raped or beaten, the racial other starved or murdered, the queer denied human rights have all been made to suffer corporeally and cease to exist through the maintenance of majoritarian ideology. This ideology is a material philosophy. We should not focus on the victim, becomings are not victimhoods but tactical entry points (although the prevention of the making dead of the victims is nonetheless an inherent quality of becomings). Majoritarian systems need to be the focus of change, not just the immediate rights for preserving potential victims within those systems. We must take care not to martyr ourselves. Claiming we shall sacrifice our ‘oneness’ simply makes the value of that oneness consistent. If it is not sustained it cannot be part of the assemblage and while not wanting to overvalue the one that is us, we should not underestimate the more-than-one-less-than-one, which is our ability to act as part of assemblages. We are sustained in our becomings not in our beings. Activism changes paradigms but also attempts to preserve the life of other individuals at local and micro levels. Ethics demands that we seek to decentre molar systems of majoritarianism which oppress ‘women’, ‘animals’ and so forth as groups but also actively affect single instances of suffering and life. The sustaining self encourages these new assemblages which in turn sustain themselves and that with which they subsequently make connections. Sustainability forms both local and overarching assemblages. Sustainability raises ‘the challenge here of how to think in terms of processes, not of entities or single substances, at both the social and symbolic levels’ (Braidotti, 2006, p. 206, cites Becker and Jahn). Processes of the immediate social and the larger symbolic will differ but the activists themselves must therefore be cross-disciplinary both in issues addressed and becomings encountered towards the same issue. The need for interdisciplinarity is urgent if we are to support universal change. We cannot be one activist at the expense of another – ‘I’ am a feminist, ‘I’ am an animal rights activist. We must however acknowledge

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the difficulty of multiple becomings, and refuse the fashionable pick ‘n’ mix issue of the week activism. This leads to activism as impossible and incommensurable with itself. All assemblages exist in disagreement. Difference feminists resist equality feminists, anti-speciesists refuse welfarists. In-fighting is not creative, it constructs dialectic territories which attempt to colonise each other. Majoritarian culture fuels these issues (particularly academically) to deflect the becomings of these activists. These disagreements annex themselves to majoritarian practices, where thought is founded on consistency and homogenous conformity, which is called ‘logic’. In majoritarian logic an argument or issue is logical if it includes disagreeing elements. The molar is infected with radical molecules. The issue must be sick and cannot be acknowledged until it is fit to enter into healthy discourse and society. In order to live, feminism and animal rights are not vitalist philosophies but must atrophy, and essentially die. However becoming-woman and animal are molecular movements and must have inherent disagreements in order to adapt and transform. We must be multiple (many issues) and agreeably disagreeable (within each issue). Inevitably however the interdisciplinarity of issues is their shared becoming. Differing issues share territories, within one issue differing territories and intensities exist. Activism is not empire. This is Braidotti’s ‘co-disciplinarity’, which inflects an ethical turn into post-structural interdisciplinarity that at worst is a series of epistemologies doing their own thing and competing for sexier or more convincing truths but, sadly, inherently maintaining the same majoritarian cultural values. Currently in Britain and elsewhere animal rights activists are being called ‘terrorists’. Activism, anti-war action and many forms of resistance are being pushed towards the criminal. Moira Gatens states: ‘This is one way in which the social body can absolve itself of responsibility for the acts committed, since between “the criminal” and “us” a distance and a difference has been created’ (Gatens, 1996, p. 121). Gatens is speaking of the cultural fascination with serial killers. However, commitment to ethical and material issues elicits discomfort in consumer society in love with empty signifiers. The activist is as criminal as they are crazy and irreconcilability of issues is represented by the media as evidence of an irrationality equivalent to crime and madness more than to complexity, multiplicity and inter-relatedness. Luce Irigaray sees interdisciplinarity as a mobility of female sexual difference. She observes: ‘If a scientific model is needed, female sexuality would perhaps fit better with … “dissipatory” structures which function through exchanges with the exterior world, which proceed in

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steps from one energy level to another and which are not organised to search for equilibrium but rather to cross thresholds.’ (Irigaray, 1993, p. 124). Her scientific model is science’s becoming-woman. How can we think law’s becoming-woman, particularly when law, not science, defines what counts as ‘life’? Irigaray emphasises scientific epistemes as both murderous and dead, a devastatingly effective necrophilosophy. By ‘installing himself within a system, within something that can be assimilated to what is already dead’ (Irigaray, 1993, p. 125), the scientist purges his horror with the post-human scientific revelation that there is and never was the human. Because our scientific abilities are going faster than necrophilosophy can maintain, the law intervenes to orient what we can do with what it means, or more correctly, is allowed to mean. Becomings are different but part of the same, like each activist more-than- and less-than-one. Deleuze and Guattari’s call to becoming resonates here with Irigaray’s sexual politics, themselves two philosophical streams made falsely antagonistic. Physical risks and pains are part of becomings more enfleshed through risk. The wound creates a consistency of traversal and re-orientation of becomings, not a point of wounded ‘I’. Bodily risks effectuate turns and multiply trajectories. They do not affirm commitment but may shift or alter a becoming. Wounding is an opening to the twists and deterritorialisations we go through in activist territories. Wounds as new ruptures make them particularly plastic and unpredictable. The wound is not evidence but might change our tactics depending on our relationship to sustainability. The flesh has always found a privileged site in women and animals and this then may be an inherent part of becomings, a plane of resonance. The risk of our flesh being literally on the line is one of the affects by which we enter into composition with woman, animal, racial other, queer, disabled. We should not overvalue this site. However, it is important for two reasons. First, transcendent truth is present in vitalist philosophy, at least for the person who does not have access to food, medicine, cutting-edge technology and other products of postmodernity. If our bodies are hurt enough we die, we cease to exist in the world. Second, becomingenfleshed is one of the many points of entry into becomings-woman and animal. Becoming assemblages put our bodies on the line, ethically challenging majoritarian techniques putting minoritarian bodies in their place as inferior and useful. In Guattari’s ecology we can see the dissipation of the molecular woman and animal, everywhere actually but nowhere discursively. Becoming-woman is negative, but only to the anthropomorphism

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that ethics derides. Giving up a majoritarian position should hurt. The question is where to find the rhythms of woman and animal. Activism involves seeking a mobilising rhythm. Its effects will be unpredictable, even frightening. The body in becomings is defined ‘by given relations of movement and rest, speed and slowness (longitude); the sum total of the intensive affects it is capable of at a given power or degree of potential (latitude)’ (Deleuze and Guattari, 1987, p. 260). In post-humanism the slowness is as important as the speed, the degree as effective minutely as massively. The intersection of latitude and longitude is interstitial or in-between existence. It is verb not noun, most simply not to be but be-coming, to come but never arrive, the ‘to’ and ‘is’ are lost but not mourned. The fantasy in law based on autonomous ownership of our own bodies keeps us enslaved to an internalised desire to ‘count’ as human. Self-authored hybrids emerge – post-human monsters which replace the former monstrosities of women, racial others, animals, queers, thus draining their reclamation of terminology. These are still dividuated monsters though, not the more attractive pack monsters as teeming collectives of mobile relations. When everything is celebrated nothing is left as a tool for resistance. Hybrids could be shared interstitials – meeting at points of specific celerity and its resonant qualities – ecology as both dependent on transformation by and accountable in force with the other term, the three-or-moreway pack hybrid force, rather than the augmented man. Creating a flux which slows the temporal chain can remap its intensities, turn the band, created by woman as interstices between man and animal, hybrid, pack and fractured – the indeterminate. The great unreason of rational enlightenment thinking is that one can determine the place and (lack of) meaning of a thing precisely in order to refuse, negate and deny that thing. Postmodernity is the exact opposite of ‘anything goes’ – many infinite instances of self rather than finite territories in which interrelational ethics must figure. (Is playing on our clitoral iPods instead of our joysticks really a becoming-woman rhythm?) Feminism finds simultaneously in culture the impossibility of marginalised bodies being valued, and the impossibility of the necessity for only one kind of body to exist. Impossibilities are the cause, the action and the aim of vitalistic feminist becomings. Tactically activated, mapped but mobile ecologies shift through non-linear evolution of becomings-animal, woman and eventually imperceptible – we are all active flesh but not striated and subjectified concept, we can invest vitalism and creativity with a simultaneous address to the pragmatics of an ecological or material philosophy,

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keeping flesh and interrelated systems alive without destroying the world in a pathological quest for eternal physiology of the increasingly pure conceptual individual. We must find enfleshed rhythms of alterity, prepare to be scared, open to our potential to effectuate change through becoming-animal and pack assemblages to create ethical ecologies and mobilise ethics for possible ecologies of the becomings-to-come.4 We must commit to becomings in the face of those changes seeming impossible.

Notes 1. I do not feel a need to vindicate my position concerning the rights of animals because it is the issue and the victim, not the activist herself which is the crux of this chapter and of ethics. However as an initial paradigm I emphasise that in modern culture the male is able to survive well without the need to rape, exchange or express and enact misogyny toward women, and similarly humans are able to survive independently without the need to use or eat in any way non-human animals. Arguments for this position form a huge body of academic work and so elaborating these here is beyond the scope of this chapter. 2. Deleuze expresses a similar sentiment in Spinoza but strangely maintains certain taxonomies to emphasise his point, that ‘the rational man and the foolish man differ in their affections and their affects but both strive to persevere in existing according to these affections and affects. From this standpoint their only difference is one of power.’ (Deleuze, 1988, p. 102). 3. Deleuze, (1995, p. 133). When Deleuze says ‘laws’ I think he refers to new laws which mediate with dominant laws in order to bring about new movements. I do not think he is inferring a new constitution of what Benhabib calls legislation. 4. For this concept I am grateful to David Rodowick.

Bibliography C. J. Adams (1995) Neither Man nor Beast: Feminism and the Defense of Animals (New York: Continuum). R. J. Aldisert (2006) ‘Logic in Forensic Science’ in J. T. Rago and C. H. Wecht (eds) Forensic Science and Law (London: CRC), pp. 11–33. S. Benhabib (1992) Situating the Self : Gender, Community and Postmodernism in Contemporary Ethics (Cambridge: Polity Press). R. Braidotti (1994) Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (New York: Columbia University Press). ——— (2006) Transpositions (Cambridge: Polity Press). G. Deleuze (1988) Spinoza, R. Hurley (trans.) (San Francisco: City Lights Books). ——— (1995) Negotiations. 1972–1990, M. Joughin (trans.) (New York: Columbia University Press).

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G. Deleuze and F. Guattari (1987) A Thousand Plateaus: Capitalism and Schizophrenia, B. Massumi (trans.) (London: The Althone Press). ——— (1994) What is Philosophy? G. Burchill and H. Tomlinson (trans.) (London: Verso). J. Derrida (1995) The Gift of Death, D. Wills (trans.) (Chicago: Chicago University Press). G. Elliot (1972) The Twentieth Century Book of the Dead (London: Penguin). M. Gatens (1996) Imaginary Bodies: Ethics, Power and Corporeality (London: Routledge). F. Guattari (1992) Chaosmosis: An Ethico-Aesthetic Paradigm, P. Baines and J. Pefanis (trans.) (Sydney: Powerhouse). ——— (1996) Soft Subversions, D. L. Sweet and C. Wiener (trans.) (New York: Semiotext(e)). P. Hanafin (1997) Last Rights: Death, Dying and the Law in Ireland (Cork: Cork University Press). L. Irigaray (1993) An Ethics of Sexual Difference, C. Burke and G. C. Gill (trans.) (New York: Cornell University Press). A. Kroker and M. Kroker (1991) The Hysterical Male: New Feminist Theory (Houndsmill: Macmillan). J.-F. Lyotard (1988) The Differend: Phrases in Dispute (Manchester: Manchester University Press). A. Negri and M. Hardt (2000) Empire (Cambridge, MA: Harvard University Press). B. Rich (2002) Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics (New York: Kluwer). D. N. Rodowick (1997) Gilles Deleuze’s Time Machine (Durham: Duke University Press). W. Schabas (2000) Genocide in International Law (Cambridge: Cambridge University Press). M. Serres (1995) Genesis, G. James and J. Nielson (trans.) (Ann Arbor: Michigan University Press). S. Slocum-Schaffer (2005) ‘Animal Rights: Subordinate or Equal Species’ in R. Tatalovich and B. Daynes (eds) Moral Controversies in American Politics (Armonk: M. E. Sharpe), pp. 65–88.

7 Locating Deleuze’s Eco-Philosophy between Bio/Zoe-Power and Necro-Politics Rosi Braidotti

Introduction This chapter focuses on contemporary debates on the politics of life itself, with special emphasis on how a nomadic philosophy of radical immanence results in shifting the boundaries between biopower and necro-politics, between life and death. This kind of vital politics is understood not only in the sense of the government of the living, but also with relation to practices of dying. I will refer to the vitalist force of life itself, which I shall term ‘zoe’, so as to point to its non-human structure. My argument is that the concepts of life and death need to be approached with more complexity and that Deleuze’s vital materialism is of great assistance in this task. I will use environmental justice as a case study.

The politics of life as bios/zoe The starting assumption of my argument is that we are witnessing today a proliferation of discourses that take life as a subject and not as the object of social and discursive practices. The discussion about biopolitics and biopower can be considered as central to a number of discourses and practices which are reflected in this volume, namely: the Law, legal discourse and critical jurisprudence; social and political theory and policy-making in areas of governance, health, the environment and the management of diversity. Reflections on the changing structure of life, the nature–culture continuum and especially on the notion of the human have also been the focus of several interdisciplinary areas of analysis, like cultural studies, feminist theory, new media science and technology studies. They have developed original tools and 96

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methods which are of relevance to social theory today. ‘The politics of life’ refers to the extent to which the notion of biopower has emerged as an organizing principle for the proliferating discourses and practices that make technologically mediated ‘life’ into a self-constituting entity (Rose, 2001). Living matter itself becomes the subject and not the object of enquiry and this shift towards a biocentred perspective affects formation of social subjects. Contemporary science and technologies, supported by the biogenetic structure of contemporary capitalism, have affected the structure of living organisms. The convergence of information and communication with biotechnologies has allowed for the emergence of complex and self-organizing systems. These revolutionary changes have induced major dislocations of the classifications among species, categories and substances which had been hierarchically ordained and dialectically opposed. Issues of power and power relations are consequently central to this discussion. The notion of ‘life itself’ lies at the heart of biogenetic capitalism as a site of financial investments, scientific research and tradable commodities. The potential profit emerging from this web of interests is considerable. The next step of my argument however raises the hypothesis that these technological interventions neither suspend nor do they automatically improve the social relations of exclusion and inclusion that historically had been predicated along the axes of sexualisation (women, gays and lesbians and sexual minorities), racialisation (native, indigenous peoples, colonial others) and naturalization (animals, plants and earth-others). In some ways, the globally linked and technologically mediated structure of biogenetic capitalism merely reinforces and intensifies the traditional patterns of discrimination and exploitation. Also denounced as ‘bio-piracy’ (Shiva, 1997), the on-going technological revolution targets all that lives, the planet as a whole, as capital worthy of interest. In other words, we have all become the subjects of biopower, but we differ considerably in the degrees and modes of actualisation of that very power. ‘We’ may be in this together, but we differ quite radically in terms of locations and allocations of power. Neither the category ‘we’, nor this project can be assumed to be monolithic or static. Accounting for these power differentials in terms of processes, flows and complex relations is one of the challenges of contemporary critical theory. My argument is that rising to the challenge of complexity entails a redefinition of the grounds of subjectivity. Social theory needs to shift the emphasis from the classical and highly formalised concept of ‘bios’ to ‘zoe’. I want to draw a distinction between ‘zoe’, as vitalistic, pre-human

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and generative life, to ‘bios’, as a discursive and political discourse about social and political life. ‘Bios’ as the classical counterpart of ‘Logos’ traditionally refers to the self-reflexive control over discourses and practices of life, is a prerogative reserved for humans. Given that this concept of ‘the human’ was colonised by phallogocentrism, it has come to be identified with male, white, heterosexual, Christian, property-owning, standard language-speaking citizens (Deleuze and Guattari, 1980). Zoe marks the outside of this vision of the subject. Nomadic philosophy strikes a conceptual alliance with the efforts of evolutionary theory to strike a new relationship to the non-human. Contemporary scientific practices have forced us to touch the bottom of some inhumanity that connects to the human precisely in the immanence of its bodily materialism. With the genetic revolution we can speak of a generalized ‘becoming infrahuman’ of zoe. The category of Life has cracked under the strain and has splintered into a web of interconnected effects. This emphasis on life as bios–zoe opens up the eco-philosophical dimension of the problem. It inaugurates alternative ecologies of belonging and moves critical theory along the path of a geo-philosophy. More importantly it marks a shift away from anthropocentrism, towards a new emphasis on the inextricable entanglement of human and non-human, biogenetic and cultural forces in contemporary social theory. It points us towards a sort of biocentred egalitarianism which, as Keith Ansell Pearson suggests, forces a reconsideration of the concept of subjectivity in terms of ‘life-forces’. This distinction supports the argument that the emergence of new discourses about ‘life’ results in the need for a shift of paradigm in political thought. This challenge calls for more social and intellectual creativity in both scientific and mainstream cultures, as Deleuze’s nomadic philosophy never ceases to remind us. Contemporary post-human social and cultural theory (Hayles, 1999; Wolfe, 2003) is addressing the dislocation of the classical boundaries between the human and his others, stressing the importance of becoming animal, becoming other, becoming insect – trespassing the categorical metaphysical boundaries. A post-human eco-philosophy is emerging that challenges the anthropocentrism of so much social constructivist theory and even of progressive political thought. Post-anthropocentrism raises a number of questions, not the least of which is the vital politics of an enlarged sense of our environmental interconnections. Ultimately, this shift of perspective leads to a serious re-consideration of what counts as the ultimate ‘other’ of life itself – that is to say death as a process. Aspects of life that go by the

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name of death are on the social agenda, as an integral part of the bios/zoe process; they introduce differentiations internal to the category of life, which add further complexity. The post-anthropocentric approach allows for a non-binary way of positing the relationship between same and other, between different categories of living beings and ultimately between life and death. The emphasis and hence the mark of ‘difference’ now falls on the ‘other’ of the living body (following its humanistic definition), thanatos – the dead body, the corpse or spectral other. In the rest of the chapter I will expand the different steps of this argument using Deleuze and Guattari’s eco-philosophy of multiplicity. I will start by illustrating the claim of the emergence of bios–zoe with a number of selected and interrelated examples, which aim at exploring the contemporary politics of life and death and challenging the classical definition of ‘life’ and argue the need for a more transversal, hybrid and post-human approach to this question. The chapter will then progress towards a redefinition of death, using our dying environment as the main point of reference.

Biogenetic capitalism and the paradoxes of immaterial labour The defining feature of contemporary genetic-driven capitalist market economies is the extent to which they euphorically associate the genetic code or DNA to marketable brand names (Franklin, Lury and Stacey, 2000). The genetic materials (like stem cells) become data banks of potentially profitable information and are commercialised as such. The very wide-spread practice of patenting and enforcing intellectual property rights as a standard way of doing scientific research demonstrate the point. What this means concretely is that scientific research, which is still reputed and funded as ‘fundamental’, results in applied technological innovations. The case of genetically modified organism in food production is a glaring example of this practice. Biogenetic capitalism, however, cuts two ways and if ‘nature’ has been transformed by technology, then the contamination also works in reverse. Thus, contemporary car and computer engineering, for instance, is visually marketed in a genetic format, which stresses the industrial transmission of inherited traits through careful selection and manufacturing of strengths and weaknesses. This commercialised version of social Darwinism adds a touch of irony to the widespread idea of the ‘next generation’ of electronic gadgets, computers, cars or whatever. The basic equation at work

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in the social genetic imaginary is that the DNA results in marketable brand names, so that your genes are, literally, your capital. The new biotechnologies of ‘Life’ (as both bios and zoe) are expanding quickly. They structure the labour force and forms of production, mostly through enforced flexibility. The whole planet is caught in this new mode of eco-capitalisation. Agriculture, food-production and animal-breeding, genetic and foetal medical interventions, the traffic in organs and body-parts and the growing genetic engineering industry are part of this phenomenon. The new technologies consequently have a direct impact on the most intimate aspects of existence in the so-called ‘advanced world’, from technologically assisted reproduction to the unsustainable levels of consumerism and the commercial exploitation of genetic data for the purpose of health and other types of insurance. Last, but not least are the implications for contemporary warfare and the death machine. The extent to which biogenetic capital takes over living matter can be seen in the examples of global migration, growing stateless-ness and the rise of ‘the emerging digital proletariat that underpins the new world economy’ (Raqs Media Collective, 2003, p. 85). The case I want to focus on is that of workers in call centres that cater to the information society by processing phone enquiries from selected locations miles away from the callers’ home. Denounced strongly by Arundati Roy (2001) these ‘call centres’ or data outsourcing agencies constitute a multi-billion dollar industry which has attracted a great deal of critical attention both in mainstream1 and alternative media. Workers in these centres answer queries on a wide range of subjects. Crucial to the success of the work of these ethnic, indigenous workers is their ability to simulate the Western consumers’ accents, attitudes and interests. The heart of this business is never to let the caller as much as suspect that his/her call is being processed in Delhi: reproducing a simulacrum of proximity and familiarity is what one is paid for. The strategy is not mere impersonation, for there is no visual or physical contact between the parties involved. Nor can it be seen as a form of identification, as the worker need not feel or experience herself as being from a different culture/nation in order to fulfil her contractual obligations. Rather it resembles the logistics of carefully orchestrated simulation. As such, it requires a radical ‘Othering’ of oneself, or a mild form of schizophrenia, which is not a masquerade, in the ironical sense of self-exploration, but a reification of the worker’s own life-world. Not unlike characters in a chat room, the callcentre worker performs her labour market persona at one tenth of her

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Western counterpart’s wages. Another significant example of the same phenomenon is the extensive reliance of the computer games industry on test-players drawn from mostly male youth in former Eastern Europe. Playing computer games up to fifteen hours a day at a time, in an industry that operates continuously, twenty-four hours a day, seven days a week, for wages of about 130 US Dollars a month, these digital workers have invented the virtual sweatshop.2 This is today’s variation on the theme of physical exploitation, which fits into the global marketing of both material commodities and of immaterial Western lifestyles, cultures and accents. Hardt and Negri (2000) stress the immaterial and affective nature of this labour force which trades phonetic skills, linguistic ability and proper accents services, as well as requiring attention, concentration and great care. This tour de force by the digital workers of the new global economy rests on an acute awareness of one’s location in space and time and yet it functions through border crossings, nomadic shifts and paths of deterritorialisation. It exposes the material foundations of a cyber-culture that prides itself in its allegedly ethereal nature. It foregrounds both the collapse of the binary opposition of centre-periphery, in a new fluctuating continuum between discrete spaces in the global economy. But it also emphasizes the growing power dissymmetry between those locations and the disturbing racialised and sexualised structure of the new digital proletariat.

Bio-piracy Vandana Shiva’s plea for biodiversity in global culture focuses on a different facet of the same problem and criticizes the practice of patenting seeds, plants and other biotechnological products. This is an environmental crime which she labels ‘bio-piracy’ (Shiva, 1997). In an interesting foucauldian shift, Shiva connects this practice to European empire building over the last 500 years and sees a continuum between them and the policies of The World Trade Organization (WTO) and the World Bank. She also links bio-piracy to the individualistic philosophies of Locke, Hume and other fathers of British liberalism. Shiva argues that their theoretical works both reflect and legitimate capitalist appropriation of the world’s resources and the eviction of others. These theories are still operational in contemporary practices such as intellectual property rights and the policies of the WTO and the GATT apparatus. What marks specifically the present historical era, argues Shiva, is the fact that the target of capitalist looting has shifted from

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the former colonies to the ‘new frontiers’, or the ‘natural resources’ represented by human genetics in general, and women’s reproductive powers in particular. Capital is the generative power of living matter and the resilient vitality of ‘Life’. The self-generative power of living matter is both denied and enhanced by patenting and branding for the sake of corporate profit. Bios/zoe, as actualised in seeds and cells, is cash. In Shiva’s assessment, ‘bio-piracy’ as the ultimate colonisation of the interior of living organisms, destroys biodiversity by endangering the many species that used to live on this planet. It also damages human diversity by depleting the capital of human knowledge through the devalorisation of local knowledge and value systems. In addition to legitimating theft these practices also devalue indigenous forms of knowledge and spread monocultures and homogenisation in both natural and social systems. The strategy of resistance proposed by Shiva is radical eco-feminism and indigenous land-rights. In a significant convergence of political opinion with Vandana Shiva, in spite of theoretical divergences, Franklin, Lury and Stacey (2000) analyse the ‘seed’ not as the site of resistance, but rather as one of the agents of the global economy. As a privatised icon for commercialised biodiversity the seed connects the old universalist idea of ‘nature’ to the financial reality of global culture. Just as humans have their Genome Project, plants have their Heritage Seed catalogue, which patents a number of seeds. They are advertised as organic and home-grown, but also as ancient and as such the repository of cultural authenticity. There is a holistic ethos at work in the parallel claims to human and natural biodiversity, the perpetuation of species and the preservation of cultural diversity. What we are faced with is a new global compound of nature/ culture that is naturalised and commercialised simultaneously. There is a profound ambiguity in the notion of diversity in the era of globalisation. Diversity, even in the form of indigenous or local knowledge systems, has become a highly valuable and marketable commodity. In its commercialised form it has increased the uniformity of consumers’ habits, while sponsoring the proliferation of ‘local’ differences or micro-diversities. The global market is fuelled by ‘differences’ because the ‘local’ is a political space constructed by the global flows of capital (Hardt and Negri, 2000). Because the proliferation of local differences for the sake of marketability is one of the features of the global economy, globalisation functions through the incorporation of otherness. Therefore, one must beware of taking any claim to cultural identity and diversity at face value. All identities are in process and consequently are inherently contradictory. They are best approached

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in an open-ended and contested manner, as complex and internally contradictory phenomena (Braidotti, 2006).

The plight of animals The dislocation of the categorical divide between humans and animals is another crucial element of our globalised world. Animals (mice, sheep, goats, cattle, pigs, rabbits, birds, poultry and cats) are bred in industrial farming, locked up in battery-cage production units reminiscent of torture chambers. Paradoxically, however, because they are an integral part of the biotechnological industrial complex, some animals enjoy peculiar privileges. Thus, livestock farming in the European Union receives subsidies to the tune of 803 US Dollars per cow. This is not so remarkable, when compared to the 1,057 US Dollars that is granted to each American cow and 2,555 US Dollars given to each cow in Japan. These figures look quite different when compared to the Gross National Income per capita in countries like Ethiopia (120 US Dollars), Bangladesh (360 US Dollars), Angola (660 US Dollars) or Honduras (920 US Dollars).3 Moreover, animals provide living material for scientific experiments. They are manipulated, mistreated, tortured and genetically recombined in ways that are productive for our biotechnological agriculture, the cosmetics industry, drugs and pharmaceutical industries and other sectors of the economy. The monitoring group ‘Gene Watch’ estimates their numbers at half a million a year. Other animals, like pigs, are genetically modified to produce organs for humans in xenotransplantation experiments.4 The category of ‘class’ is accordingly linked to that of tradable disposable bodies of all categories and species, in a global mode of post-human exploitation. Animals are also sold as exotic commodities and constitute the third largest illegal trade in the world today, after drugs and arms but ahead of women; this industry is estimated to be worth 15 billion US Dollars a year.5 Globalisation means the commercialisation of planet earth in all its forms, through a series of interrelated modes of appropriation. Because of the techno-military proliferation of micro-conflicts on a global scale, we cannot even assert anymore that the sky is the limit. The sustainability of the planet as a whole may be the last frontier or, rather, the sustainability of human survival within a planet thus capitalised.

The schizoid structure of advanced capitalism These selected examples show how the political economy of global capitalism consists in multiplying and distributing differences for the

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sake of profit. It produces ever-shifting waves of genderisation and sexualisation, racialisation and naturalisation of multiple ‘others’. It has thus effectively disrupted the traditional dialectical relationship between the empirical referents of Otherness (women, natives and animal others) and the processes of discursive formation of genderisation/racialisation/naturalisation. Once this dialectical bond is unhinged, advanced capitalism looks like a system that promotes feminism without women, racism without races, natural laws without nature, reproduction without sex, sexuality without genders, multiculturalism without ending racism, economic growth without development and cash flow without money. Late capitalism also produces fat-free ice creams and alcohol-free beer next to genetically modified health food, companion species alongside computer viruses, new animal and human immunity breakdowns and deficiencies and the increased longevity of these who inhabit the advanced world. This is indeed capitalism as schizophrenia. The sheer scale of this expansion alters the terms of classical biopolitics as postulated by Foucault, who demonstrated not only the constructed structure of what we call ‘human nature’, but also its relatively recent appearance on the historical scene, which makes it co-extensive with forms of social control and disciplining. Donna Haraway’s analyses move further and assume that contemporary science has moved beyond Foucault’s biopower and has already entered the age of ‘the informatics of domination’, which is a different regime of visualisation and control, as ‘a system to be managed, a field of operations constituted by scientists, artists, cartoonists, community activists, mothers, anthropologists, fathers, publishers, engineers, legislators, ethicists, industrialists, bankers, doctors, genetic counsellors, judges, insurers, priests, and all their relatives – has a very recent pedigree’ (Haraway, 1997, p. 174). This means that the political representation of embodied subjects nowadays can no longer be understood within the visual economy of biopolitics in Foucault’s (1975) sense of the term. The representation of embodied subjects is no longer visual in the sense of being scopic, as in the post-Platonic sense of the simulacrum. Nor is it specular, as in the psychoanalytic mode of redefining vision within a dialectical scheme of oppositional recognition of self and/as other. It has rather become schizoid, or internally disjointed. It is spectral. The body is represented as a self-replicating system that is caught in a visual economy of endless circulation. The contemporary social imaginary is immersed in this logic of boundless circulation and thus is suspended somewhere beyond the life and death cycle of the imaged self. The social imaginary led by genetics has consequently become forensic in its quest for traces of a life

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that it no longer controls. Contemporary embodied subjects have to be accounted for in terms of their surplus value as genetic containers on the one hand, and as visual commodities circulating in a global circuit of cash flow on the other hand. Much of this information is not knowledge-driven, but rather media-inflated and thus indistinguishable from sheer entertainment. Today’s capital is spectral and our gaze forensic.

Deleuze’s contribution to the analysis of schizoid capitalism In this section I will argue that Deleuze’s main contribution to this debate rests on the concepts of radical immanence and nondeterministic vitalism, which unfold onto an affirmative ethics of bio-egalitarianism. The schizoid logic of biogenetic capitalism both expresses and exploits the simultaneously materialist and vitalist force of life itself, that is, zoe as the generative power that flows across all species. Ansell Pearson takes it as a prompt to ‘begin to map non-human becomings of life’ (1997, p. 109). The becoming-earth axis of transformation entails the displacement of anthropocentrism and the recognition of trans-species solidarity on the basis of ‘our’ being in this together, that is to say, environmentally-based, embodied, embedded and in symbiosis with each other. Biocentred egalitarianism is a philosophy of radical immanence and affirmative becoming, which activates a nomadic subject into sustainable processes of transformation. This organic or corporeal brand of materialism lays the foundations for a system of ethical values where ‘life’ stands central. Life is not sacralized as a pre-established given, but rather posited as process, interactive and open-ended. ‘Life’ is far from being codified as the exclusive property or the unalienable right of one species – the human – over all others. As I stated earlier, the old hierarchy that privileged bios – discursive, intelligent, social life – over zoe – brutal ‘animal’ life – has to be reconsidered. Zoe as generative vitality is a major transversal force that cuts across and reconnects previously segregated domains. Biocentred egalitarianism is a materialist, secular, precise and unsentimental response to transversal, trans-species structural re-connections. The displacement of anthropocentrism is exposed by Deleuze and Guattari in the theory of becoming minoritarian/becoming-animal. This process of molecularisation entails the redefinition of one’s sense of attachment and connection to a shared world, a territorial space. It expresses multiple ecologies of belonging, while it enacts the transformation of human sensorial and perceptual co-ordinates, in order to

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acknowledge the collective nature and outward-bound direction of what we call the self. This ‘self ’ is in fact a moveable assemblage within a common life-space which the subject never masters nor possesses, but merely inhabits, crosses, always in a community, a pack, a group, or a cluster. Becoming-animal marks the frame of an embodied subject, which is by no means suspended in an essential distance from the habitat/environment/territory, but is rather radically immanent to it. For philosophical nomadism, the subject is fully immersed in and immanent to a network of non-human (animal, vegetable, viral) relations. The zoe-centred embodied subject is shot through with relational linkages of the symbiotic, contaminating/viral kind which inter-connect it to a variety of others, starting from the environmental or eco-others. This non-essentialist brand of vitalism reduces the hubris of rational consciousness, which far from being an act of vertical transcendence, is rather re-cast as a downwards push, a grounding exercise. It is an act of unfolding of the self onto the world and the enfolding within of the world. What if, by comparison with the immanent know-how of animals, conscious self-representation were blighted by narcissistic delusions of transcendence and consequently blinded by its own aspirations to self-transparency? What if consciousness were ultimately incapable of coping with zoe, as an impersonal force that moves us without asking for our permission to do so? The process ontology centred on life confronts this possibility lucidly, without making concessions to either moral panic or melancholia. It asserts an ethical drive to enter into modes of relation that enhance and sustain one’s ability to renew and expand what consciousness can become. The ethical ideal is to actualize the cognitive, affective and sensorial means to cultivate higher degrees of empowerment and affirmation of one’s interconnections to others in their complexity. Spinoza’s lesson is crucial for Deleuze’s ethical project. The selection of the affective forces that propel the process of becoming animal/minoritarian is regulated by an ethics of joy and affirmation that functions through the transformation of negative into positive passions. In order to grasp this process it is important to de-psychologise it. What is positive about positive passions is not a ‘feel good’ sort of sentimentality, but rather a rigorous composition of forces and relations that converge upon the enhancement of one’s conatus/potentia. That is the ability to express one’s freedom as the ability to take in and sustain connectiveness to others, an expansion, acceleration or intensification of interrelation. What is negative about negative passions is a decrease, a dimming or slowing down effect, a dampening of the intensity, which results in a loss of the capacity for interrelations to others (and hence a decrease

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in the expression of conatus/potentia). Ethics is consequently about cultivating the kind of relations that compose and empower positive passions and avoid the negative ones. The ethical relation is essentially a matter of affinity: being able to enter a relation with another entity whose elements encourage positive encounters. They express one’s potentia and increase the subject’s capacity to enter into further relations, grow and expand. This expansion is ecologically grounded and time-bound. By expressing and increasing its positive passions, the subject-in-becoming empowers itself to last, to endure, to continue through and in time. By entering into affirmative ethical relations, the processes of becoming/animal/minoritarian engender possible futures. They construct possible worlds through a web of sustainable interconnections. This is the point of becoming: a collective assemblage of forces that coalesce around commonly shared elements and empower them to grow and to endure. Very much a philosophy of the outside, of open spaces and embodied enactments, nomadic thought encourages us to think in terms of encounters with anomalous and unfamiliar forces, drives, yearnings or sensations. Becoming animal/minoritarian/anomalous/un-organic is a way to potentiate what embodied and embedded subjects are capable of doing. It is a way of living more intensely, by increasing one’s potentia and with it, one’s freedom and understanding of the complexities one inhabits in a world that is neither anthropocentric nor anthropomorphic, but rather geopolitical, eco-philosophical and proudly biocentred.

Bios/zoe power and necro-politics In this section I want to go on to argue that the management of life in the regime of biogenetic globalised capitalism entails that of dying. Examples to prove that ‘Life’ can be a threatening force abound, the revival of old and new epidemics and the spread of environmental catastrophes that blur the distinction between the natural and the cultural dimensions are obvious examples. Another clear manifestation of the necro-politics folded within the biopolitical management of life is provided by the new forms of warfare, the new ‘intelligent’ weapons on the one hand and the rawness of the bodies of suicide bombers on the other. Equally significant are the changes that have occurred in the political practice of bearing witness to the dead as a form of activism, which can be summarized as the shift from the Human Rights stance of the Argentinian Mothers of the Plaza de Mayo to the more brutal interventionism of the Chechnyan war widows. The dislocation of

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gender roles in relation to death and killing is reflected in the image of women who kill, from recent stage productions of Medea and Hecuba to Lara Croft. The extent to which the killing of children plays a role in this shift of geopolitical belligerency deserves more space than I can grant it here. From a post-human digital perspective comes the debate about the proliferation of viruses, from computers to humans, animals and back. Illness is clearly not only a privilege of organic entities, but a widespread practice of mutual contamination. A rather complex relationship has emerged in our cyber universe, one in which the mutual dependence between the flesh and the machine is symbiotic. This engenders some significant paradoxes, namely, that the corporeal site of subjectivity is simultaneously denied, in a fantasy of escape, and re-enforced. Balsamo (1996) argues that it promotes dreams of immortality and control over life and death: ‘And yet, such beliefs about the technological future “life” of the body are complemented by a palpable fear of death and annihilation from uncontrollable and spectacular body-threats: antibiotic-resistant viruses, random contamination, flesh-eating bacteria’ (Balsamo 1996, pp. 1–2). Popular culture and the infotainment industry are quick to pick up the trend. Relevant cultural practices that reflect this changing status of death can be traced in the success of forensic detectives in contemporary popular culture. The corpse is a daily presence in global media and journalistic news, while it is also an object of entertainment. The currency granted to both legal (Ritalin, Prozac) and illegal drugs in contemporary culture blurs the boundaries between self-destruction and fashionable behaviour and forces a reconsideration of the value of ‘life itself ’. Last but not least, assisted suicide and euthanasia practices are challenging the Law’s tacit assumption of a self-evident value attributed to ‘Life’. Social examples of this new necro-technology of the self are current health practices and the emphasis placed on the individual responsibility for the self-management of one’s health and one’s own lifestyle. This privatisation of good health is amplified by a social drive towards eternal youth, which is linked to the suspension of time in globally mediated societies and forms the counterpart of euthanasia and other social practices of assisted death. Spiritual death is part of the picture as well. Embodied social practices that are often pathologised and never addressed fully are addictions, eating disorders and melancholia, ranging from burnout to states of apathy or disaffection. Instead of being classified as self-destructive practices, these phenomena exemplify in a non-normative manner the shifting social relations between living

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and dying in the era of the politics of ‘life itself ’. In other words, the new practices of ‘life’ mobilise not only generative forces, but also new and subtler degrees of extinction. This type of vitality, unconcerned by clear-cut distinctions between living and dying, composes the notion of zoe as a non-human yet affirmative life-force. This vitalist materialism has nothing in common with postmodern moral relativism, resting solidly on a neo-Spinozist political ontology of monism and radical immanence.

Deleuze on death Life is cosmic energy, simultaneously empty chaos and absolute speed or movement. It is impersonal and inhuman in the monstrous, animal sense of radical alterity, zoe in all its powers. Zoe, or life as absolute vitality, however, is not above negativity and it can hurt. It is always too much for the specific slab of enfleshed existence that single subjects actualise. It is a constant challenge for us to rise to the occasion, to practice amor fati, to catch the wave of life’s intensities and ride on it, exposing the boundaries as we transgress them. We often crack in the process and cannot take it anymore. Death is the ultimate transposition, though it is not final. Zoe carries on, relentlessly. Death is a conceptual excess, both the unrepresentable, the unthinkable, the unproductive black hole that we all fear, and also a creative synthesis of flows, energies and perpetual becomings. This unconventional approach rests on a preliminary and fundamental distinction between personal and impersonal death. The former is linked to the suppression of the individualised ego, the latter is beyond the ego, a death that is always ahead of me. It is the extreme form of my power to become other or something else. In a nomadic philosophical perspective the emphasis on the impersonality of life is echoed by an analogous reflection on death. Because humans are mortal, death, or the transience of life, is written at our core. It is the event that structures our time-lines and frames our time-zones. It is ever-present in our psychic and somatic landscapes as the event that has always already happened. Death as a constitutive event is behind us. It has already taken place as a virtual potential that constructs everything we are. The awareness of the transitory nature of all that lives is the defining moment in our existence. It structures our becoming-subjects and the process of acquiring moral awareness. Being mortal, we are all ‘have beens’. The spectacle of our death is written obliquely into the script of our temporality. We think to infinity, against the horror of the void, in the wilderness of non-human mental

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landscapes. Thought, however, is also a gesture of affirmation and hope for sustainability and endurance, of immanent relations and time-bound consistency. Moving beyond the paralysing effects of suspicion and pain, working across them is the key to ethics. It does not aim at mastery, but at the transformation of negative into positive passions. Because Life is desire which essentially aims at expressing and hence extinguishing itself, by reaching its aim and then dissolving, the wish to die can consequently be seen as another way to express the desire to live intensely. The corollary is even more cheerful. Not only is there no dialectical tension between Eros and Thanatos, but these two entities are really just one life-force that aims to reach its own fulfilment. ‘Life’, or Zoe, aims essentially at self-perpetuation and then, after it has achieved its aim, at dissolution. It can be argued therefore that it also encompasses what we call ‘death’. As a result, what we humans most deeply aspire to is not so much to disappear, but rather to do so in the space of our own life and in our own way (Phillips, 1999). It is as if each of us wishes to die only in our own fashion. Our innermost desire is for a self-fashioned, a self-styled death. We thus pursue what we are ultimately trying to avoid. We are existential suicides, not from nihilism, but because it is our nature to die. It is a paradox that while at the conscious level all of us struggle for survival, at some deeper level of our unconscious structures, all we long for is to lie silently and let time wash over us in the stillness of non-life. Self-styling one’s death is an act of affirmation. It means cultivating an approach, a ‘style’ of life that progressively and continuously fixes the modalities and the stage for the final act, leaving nothing un-attended. Pursuing a sort of seduction into immortality, the ethical life is life as virtual suicide. Life as virtual suicide is life as constant creation. Life lived so as to break the cycles of inert repetitions that usher in banality. Lest we delude ourselves with narcissistic pretences, we need to cultivate endurance, immortality within time, that is to say death in life. The generative capacity of this ‘Life’ cannot be bound or confined to the single, human individual. It rather transversally trespasses all boundaries in the pursuit of its aim, which is the expression of its potency. It connects us trans-individually, trans-generationally and eco-philosophically. Just as the life in me is not mine or even individual, so the death in me is not mine, except in a very circumscribed sense of the term. In both cases all ‘I’ can hope for is to craft both my life and my death in a mode, at a speed and fashion which can sustain all the intensity ‘I’ is capable of. ‘I’ can self-style this gesture auto-poietically, thus expressing its essence as the constitutive desire to endure. I call it potentia.

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What we humans truly yearn for is to disappear by merging into this eternal flow of becomings, the precondition for which is the loss, disappearance and disruption of the atomised, individual self. The ideal would be to take only memories and to leave behind only footsteps. What we most truly desire is to surrender the self, preferably in the agony of ecstasy, thus choosing our own way of disappearing, our way of dying to and as our self. This can be described also as the moment of ascetic dissolution of the subject, the moment of its merging with the web of non-human forces that frame him/her – the cosmos as a whole. Call it death, it has rather to do with radical immanence, with the totality of the moment in which, we finally coincide completely with our body in becoming at last what we will have been all along: a virtual corpse. This is neither Christian affirmation of Life nor transcendental delegation of the meaning and value system to categories higher than the embodied self. On the contrary, it is the intelligence of radically immanent flesh that states with every single breath that the life in you is not marked by any master signifier and it most certainly does not bear your name. The awareness of the absolute difference between intensive or incorporeal affects and the specific affected bodies that one happens to be is crucial to the ethics of choosing for death. Death is the unsustainable, but it is also virtual in that it has the generative capacity to engender the actual. Consequently, death is but an obvious manifestation of principles that are active in every aspect of life, namely, the pre-individual or impersonal power of potentia; the affirmation of multiplicity and not of one-sidedness and the interconnection with an ‘outside’ which is of cosmic dimension and infinite. It is a temporal brand of vitalism that could not be further removed from the idea of death as the inanimate and indifferent state of matter, the entropic state to which the body is supposed to ‘return’. It is desire as plenitude and over-flowing, not as lack, following the entropic model built into psychoanalytic theory. Death, on the contrary, is the becoming-imperceptible of the nomadic subject and as such it is part of the cycles of becomings, yet another form of inter-connectedness, a vital relationship that links one with other, multiple forces. The impersonal is life and death as bios/zoe in us – the ultimate outside as the frontier of the incorporeal. The paradox of affirming life as potentia, energy, even in and through the suppression of the specific slice of life that ‘I’ inhabits is a way of pushing anti-humanism to the point of implosion. It dissolves death into ever-shifting processual changes, and thus disintegrates

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the ego, with its capital of narcissism, paranoia and negativity. Death, from the specific and highly restricted viewpoint of the ego, is of no significance whatsoever. This vision of death as process is linked to Deleuze’s philosophy of time understood as endurance and sustainability and is indebted as much to Nietzsche as to Spinoza. The generative capacity of bios/zoe, in other words, cannot be bound or confined to the single, human individual. It rather transversally trespasses such boundaries in the pursuit of its aim, which is self-perpetuation. ‘Life’ is understood here as aiming essentially at self-perpetuation and then, after it has achieved its aim, at dissolution. It can be argued that it also encompasses what we usually call ‘death’. Just as the life in me is not mine in the appropriative sense espoused by liberal individualism, but is rather a time-sharing device, so the death in me is not mine, except in a very circumscribed sense of the term. In both cases all ‘I’ can hope for is to craft both my life and my death in a mode, at a speed and fashion which are sustainable and adequate. ‘I’ can selfstyle them auto-poietically, thus expressing my essential entity as the constitutive desire to endure ( potentia). This, however, needs to be related to chaos as productive multiplicity, not to the technologies of the Self of the second Foucault. No residual Kantianism here, but rather Nietzschean affirmation. On this point Deleuze and Foucault part ways. The kind of ‘self’ that is ‘styled’ in and through such a process is not one, nor is it an anonymous multiplicity. It is an embedded and embodied set of interrelations, constituted in and by the immanence of expressions, acts and interactions with others and held together by the powers of remembrance, that is, by continuity in time. I refer to this process in terms of sustainability and to stress the idea of continuity which it entails. Sustainability does assume faith in a future, and also a sense of responsibility for ‘passing on’ to future generations a world that is liveable and worth living in. A present that endures is a sustainable model of the future. Death, in such a framework, is merely a point. It is not the horizon against which the human drama is played out. The centre is taken by bios/zoe and their ever-recurring flows of vitality. In and through many deaths, bios/zoe lives on. Deleuze turns this into a critique of the Heideggerian legacy which places mortality at the centre of philosophical speculation. It is against this self-glorifying image of a pretentious and egotistical narcissistic and paranoid consciousness, that philosophical nomadism unleashes the multiple dynamic forces of bios/zoe that do not coincide with the human, let alone with consciousness. These are non-essentialistic brands of vitalism.

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Implications for environmental justice The key implication for the Law of Deleuze’s re-casting of the life–death distinction in terms of a vital continuum based on internal differentiations is the double overturning of individualism on the one hand – in favour of complex singularities – and of anthropocentrism on the other – in favour of multiplicities of flows and assemblages. Post-structuralism initiated this critique of subjectivity by declaring, with Foucault, the ‘death of Man’ defined as the humanistic subject of knowledge. Nowadays we are experiencing a further stage in this process and, as the rhizomic philosophies of Deleuze and Guattari point out. We are forced to confront the in-built anthropocentrism which prevents us from relinquishing the categorical divide between bios and zoe and thus makes us cling to the superiority of consciousness in spite of our post-structuralist scepticism towards this very notion. The monist political ontology of Spinoza can rescue us from the anthropocentric contradiction and the marginalisation of non-human others, by pushing it to the point of implosion. Through the theory of nomadic becomings or plane of immanence, Deleuze dissolves and re-grounds the subject into an eco-philosophy of multiple belongings. This takes the form of a strong emphasis on the pre-human or even non-human elements that compose the web of forces, intensities and encounters that contribute to the making of nomadic subjectivity. The subject for Deleuze and Guattari is an ecological entity. Guattari (1995, 2000) follows Simondon and refers to this process as a transversal form of subjectivity or ‘trans-individuality’. This mode of diffuse yet grounded subject position achieves a double aim. Firstly it critiques individualism and secondly it supports a notion of subjectivity in the sense of qualitative, transversal and group-oriented agency. My point is that by adopting a different vision of the subject and with it a new notion of the nature–culture interaction, legal theory may be able to move beyond the modernist and reductive conception of environmental justice and environmental crime as based only on harm and reparation. As Mark Halsey put it: ‘Where once the sole objective was to control the insane, the young, the feminine, the vagrant and the deviant, the objective in recent times has been to arrest the nonhuman, the inorganic, the inert – in short, the so-called “natural world”’. (Halsey, 2006, p. 15). Lest this be misunderstood for moral and cognitive anarchy, let me emphasize a number of features of this post-human turn. The first main point is that the legal subject of this regime of governmentality is in fact an eco-logical unit. This zoe-driven-body is marked by the interdependence

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with its environment through a structure of mutual flows and data transfer that is best configured by the notion of viral contamination (Ansell Pearson, 1997), complex and intensive inter-connectedness. Secondly, this environmentally bound subject is a collective entity, moving beyond the parameters of classical humanism and anthropocentrism. The human organism is an in-between that is plugged into and connected to a variety of possible sources and forces. As such it is useful to define it as a machine, which does not mean an appliance or anything with a specifically utilitarian aim, but rather something that is simultaneously more abstract and more materially embedded. The minimalist definition of a body-machine is an embodied affective and intelligent entity that captures, processes and transforms energies and forces. Being environmentally bound and territorially based, an embodied entity feeds upon, incorporates and transforms its (natural, social, human or technological) environment constantly. Being embodied in this high-tech ecological manner means being immersed in fields of constant flows and transformations. Not all of them are positive, of course, although in such a dynamic system this cannot be known or judged a priori. Thus we need to allow for a multiplicity of possible cartographies, ethical paths and lines of becoming. Thirdly, such a subject of bios–zoe power raises questions of ethical urgency. Given the acceleration of processes of change, how can we tell the difference among the different flows of changes and transformations? Lines of molarity, molecularity and flight need to be accounted for and mapped out as a collective assemblage of possible paths of becoming. No monolithic or static model can provide an adequate answer. We need more complexity and open-endedness and a diversification of possible strategies. The starting point is the relentless generative force of bios/zoe and the specific brand of trans-species egalitarianism, which they establish with the human. The ecological dimension of philosophical nomadism consequently becomes manifest and, with it, its potential ethical impact. It is a matter of forces as well as of ethology. Fourthly, the specific temporality of the subject needs to be re-thought. The subject is an evolutionary engine, endowed with her or his own embodied temporality, both in the sense of the specific timing of the genetic code and the more genealogical time of individualised memories. If the embodied subject of biopower is a complex molecular organism, a biochemical factory of steady and jumping genes, an evolutionary entity endowed with its own navigational tools and an in-built temporality, then we need a form of ethics and political agency that reflects this high degree of complexity. Fifthly, and last, this ethical approach cannot be dissociated from considerations of power. The bios–zoe-centred vision of the technologically

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mediated subject of postmodernity or advanced capitalism is fraught with internal contradictions. Accounting for them is the cartographic task of critical theory and an integral part of this project is to account for the implications they entail for the historically situated vision of the subject (Braidotti, 2002). The bios–zoe-centred egalitarianism that is potentially conveyed by the current technological transformations has dire consequences for the humanistic vision of the subject. The potency of bios–zoe, in other words, displaces the phallogocentric vision of consciousness, which hinges on the sovereignty of the ‘I’. It can no longer be safely assumed that consciousness coincides with subjectivity, or that either of them is in charge of the course of historical events. Both liberal individualism and classical humanism are disrupted at their very foundations by the social and symbolic transformations induced by our historical condition. Far from being merely a crisis of values, this situation confronts us with a formidable set of new opportunities. Renewed conceptual creativity and a leap of the social imaginary are needed in order to meet the challenge. Classical humanism, with its rationalistic and anthropocentric assumptions is of hindrance, rather than of assistance, in this process. Therefore, as one possible response to this challenge, we should consider the post-humanistic brand of non-anthropocentric vitalism best exemplified by Deleuze and Guattari’s critique of arborescent models of Law and Life.

Notes 1. See for instance Luke Harding ‘Delhi calling’, The Guardian Weekly. March 15–21, 2001. 2. See: The Guardian Weekly. March 25–31, 2005, p. 17. 3. The Guardian Weekly, September 11–17, 2003, p. 5. 4. The Guardian Weekly, May 23–29, 2002, p. 10. 5. The Guardian Weekly, December 27, 2001–January 2, 2002.

Bibliography G. Agamben (1998) Homo Sacer: Sovereign Power and Bare Life, D. Heller-Roazen (trans.) (Stanford: Stanford University Press). K. Ansell Pearson (1997) Viroid Life: Perspectives on Nietzsche and the Transhuman Condition (London and New York: Routledge). A. Balsamo (1996) Technologies of the Gendered Body: Reading Cyborg Women (Durham and London: Duke University Press). R. Braidotti (2002) Metamorphoses: Towards a Materialist Theory of Becoming (Cambridge, UK and Malden, USA: Polity Press). ——— (2006) Transpositions: Of Nomadic Ethics (Cambridge: Polity Press).

116 Deleuze between Bio/Zoe-Power and Necro-Politics G. Deleuze and F. Guattari (1980) Mille plateaux. Capitalisme et schizophrénie II (Paris: Minuit). English trans. (1987b) A Thousand Plateaus: Capitalism and Schizophrenia B. Massumi (trans) (Minneapolis: University of Minnesota Press). M. Foucault (1975) Surveiller et punir (Paris: Gallimard). English trans. (1977) Discipline and Punish (New York: Pantheon Books). S. Franklin, C. Lury and J. Stacey (2000) Global Nature, Global Culture (London: Sage). F. Guattari (1995) Chaosmosis: An Ethico-aesthetic Paradigm (Sydney: Power Publications). ——— (2000) The Three Ecologies (London: The Athlone Press). M. Halsey (2006) Deleuze and Environmental Damage (London: Ashgate). D. Haraway (1997) Modest_Witness@Second_Millennium. FemaleMan©_Meets_ Oncomouse (London, New York: Routledge). K. Hayles (1999) How We Became Posthuman: Virtual Bodies in Cybernetics, Literature and Informatics (Chicago: The University of Chicago Press). M. Hardt and A. Negri (2000) Empire (Cambridge, MA: Harvard University Press). A. Phillips (1999) Darwin’s Worms (London: Faber&Faber). Raqs Media Collective (2003) ‘A/S/L’, in U. Biemann (ed) Geography and the Politics of Mobility (Vienna: General Foundation). N. Rose (2001) ‘The politics of life itself’, Theory, Culture & Society 18:6, 1–30. A. Roy (2001) Power Politics (Cambridge, MA: South End Press). V. Shiva (1997) Biopiracy: The Plunder of Nature and Knowledge (Boston: South End Press). C. Wolfe (ed.) (2003) Zoo-ontologies (Minneapolis: Minnesota University Press).

8 Is There Life in Cybernetics? Designing a Post-Humanist Bioethics Joanna Zylinska

The pretence of humanism Bioethics – by which I mean the interrogation of ‘ethical issues arising from the biological and medical sciences’ (Kuhse and Singer, 1999, p. 1) – has come to occupy a significant place on the public agenda. Many social groups, encouraged and provoked by the media, have been engaged in an ongoing debate over issues concerning our life and health, and the medical interventions into both: abortion, doping, plastic surgery or genetic testing. However, it is the transformation of the very notion of life and of the accompanying idea of the human, as well as the promises and threats to human and animal health posed by science and technology, that have evoked particular hopes and anxieties among the public in Western liberal democracies. As a discipline that combines the theoretical insights of moral philosophy with the experience of clinical practice, bioethics has been mobilised with the task of having to arbitrate over life, death and the nature and role of the human in the age of biotechnology and digital media in a number of different forums: in the media, in scientific research committees, in hospitals and in biotech companies. At the risk of overgeneralisation, I want to suggest that its response to this task has so far been rather conservative, in the sense that the foundational humanism of the theories and practices upon which traditional bioethical discourses have been based – be it in their religious or secular guises – has remained intact in a great number of recent bioethical debates.1 And this in spite of the fact that genetic patenting, cloning, xenotransplantation, cochlear and corneal implants and organ printing have radically called into question not only humans’ ontological status as skin-bound, sovereign beings but also their kinship with, and dependency on, other species and material forms. 117

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The aim of this chapter is to engage with the inherent humanism of bioethics and consider the possibility of thinking bioethics otherwise – beyond the belief in the intrinsic dignity and superior value of the human, and beyond the rules and procedures rooted in this belief. It is also to challenge what we may call the ‘cognitivist pretence’ of humanism, that is, the conviction that the human can be distinguished from other forms of life by the inherent ‘truth’ and teleology of his being which is to be revealed to him, and which he can uniquely grasp (see Glendinning, 2007, p. 104). The human, as both a discrete subject and an object of bioethics, becomes thus a critical point of interrogation in this study. What I want to outline in response is a non-systemic bioethics of relations which does not abdicate its ethical responsibility or its political commitment, although it questions many of the premises of established moral and political theories. Indeed, I want to ‘put to the test the pretentious belief that only a liberal and humanistic view of the subject can guarantee basic elements of human decency: moral and political agency and ethical probity’ (Braidotti, 2006, p. 11). But my project is more genealogical than futurologist. By revisiting the story of bioethics’ emergence as a separate discipline, I want to consider the following question: what if the cyborg rather than the human had been adopted as its foundation? Or, to put it another way, what would a bioethics for humans, animals and machines look like?

The difference of bioethics: Between Deleuze and Derrida Before I outline my own bioethical alternative, I want to acknowledge that some of the most challenging interventions into conventional bioethics have recently come from theoretical positions influenced by the work of Gilles Deleuze, especially by Deleuze’s interpretation of Spinoza’s notion of ethics. For Deleuze ethics is ‘an ethology which, with regard to men and animals, in each case only considers their capacity for being affected’ (Deleuze, 1988, p. 27). Situated beyond the paradigm of good and evil, it does not seek to reaffirm any fixed values. Instead, ethics refers here to the ‘qualitative difference of modes of existence (good–bad)’, the evaluation of which is material or we could even say pragmatic, rather than transcendental (Deleuze, 1988, p. 23). The ethical injunction for Deleuze lies in going along with this non-human flow of life and expanding life to its fullest potential, beyond the already imagined possibilities. It is ‘the becoming body’ rather than the fixed human subject that is the focus of his ethics. We can see here how this notion of the ‘becoming body’ which is always already machinic, and which

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is implicated in the ongoing process of life over which the human has no absolute control because s/he is also part of it, has become attractive to researchers of new technologies, especially those connected with biotechnology. In biotechnological processes living and non-living elements exist in intimate couplings and associations which imply a design that disallows both the notion of life as something entering a machine in order to animate it, and the notion of technology as something added post-factum to the original living entity (see Mackenzie, 2002, p. 175). What emerges instead is a much more enmeshed model of relations between living and non-living forms which always already bear a technological inscription. Spinoza’s question: ‘What can a body do?’ finds one of its most enthusiastic respondents in the feminist philosopher Rosi Braidotti. (Her answer is a firm: ‘a lot’.) With some help from Deleuze and a number of other post-structuralist thinkers, Braidotti develops a materialist, nomadic philosophy of becoming as an alternative to the simplistic models of biotechnological evolution promoted by ‘hypercolonialist capitalism’ (Braidotti, 2006, pp. 3–4). Embodiment and embeddedness in the material world are crucial for Braidotti’s ethics. She lists the placenta, the parasite, the cloned animal and the leaping gene as figurations which can be seen as ‘steps towards a non-linear rendition of the subject in its deep structures’ (Braidotti, 2006, p. 9) and as a physical and conceptual opening of the subject to relationality, the self–other interaction, which, in the area of biotechnology, is not only an ethical injunction but also a lived reality. How we live through this hybrid human-non-human relationality is arguably one of the key ethical questions today. Pointing to the productivity of technology which is never entirely separate from the human but which rather co-constitutes the world, thinkers such as Braidotti and other authors included in this volume have made a serious effort in attempting to dethrone humancentred moral philosophy from its position of an arbitrator over the value of life. Studying ethical issues in a wider context of biocapitalism and globalisation, they have been successful not only in refocusing the ethical debate on the question of the body and the processes of embodiment, but also in positing non-dialectical difference as crucial to the possibility of having an ethical future and enacting a political transformation. And yet, even though my chapter sits closely when it comes to its intellectual and affective investments to the work of many theorists inspired by Deleuze, the way it approaches ‘difference’ is somewhat different. Rather than follow Deleuze’s understanding of difference as a

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‘power within’, an immanent force that ceaselessly produces new forms, it understands the source of an ethical injunction as coming from what Emmanuel Levinas has called ‘otherwise than being’: a place of absolute alterity that cannot be subsumed by the conceptual categories at our disposal. It is thus transcendent – but only in a formal sense: there is no God or other concrete being that legislates this ethical injunction to respond to the alterity of the other. It is the assumption itself – philosophical but also, we may risk saying, experiential – of there being an alterity that exceeds the conceptual grasp, and the very being of what we understand as the self, that creates the framework for an ethical encounter and ethical event. The difference between these two philosophical positions – one of immanence as encapsulated by the work of Lucretius, Spinoza, Bergson, Nietzsche, Foucault and Deleuze, and one of transcendence as developed by philosophers such as Hegel, Husserl, Kant, Heidegger, Levinas and Derrida – has been articulated most cogently by Daniel W. Smith in his article, ‘Deleuze and Derrida, Immanence and Transcendence: Two Directions in Recent French Thought’. Smith states that while Deleuze tries to expunge from Being all remnants of transcendence, Derrida seeks to trace the eruptions and movements of transcendence within Being. He explains that Deleuze’s difference is defined ‘in terms of a genetic principle of difference’ (Smith, 2003, p. 61), as differentiation within life itself. Deleuze can thus reconcile this idea of difference and differentiation-from-within with his concept of univocity, where a certain link or kinship is posited between all forms of life, those real and virtual ones. For Derrida, in turn, difference always already involves a ‘cut’, an impossibility of the ultimate connection. It is precisely in differentiation, which cannot be sublated or tied in to any entity, that an ethical demand and ethical impression on the self takes place. So even if we agree with Paul Patton and John Protevi when they say that ‘Derrida and Deleuze share an ethico-political conception of philosophy as oriented towards the possibility of change’ (Patton and Protevi, 2003, p. 17), we may also perhaps say that Deleuze is more interested in the flow of life, while Derrida pays more attention to a cut or interruption to this flow. It is precisely this cut, a differentiation within the flow of life that cannot be subsumed by this life because it comes from (formal, not theological) ‘elsewhere’, that will constitute a pivotal point of entry for my own attempt to rethink bioethics in this chapter. But my position is not anti-Deleuzian, rather ‘alongside-Deleuzian’, because I share many of the affective investments that structure Deleuze’s philosophy – an investment in the idea of the transformation

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of life, in envisaging better, freer ways of living and in attending to the relationality between different life forms. I just find different passageways into addressing these issues.

The ‘bilocated birth’ of bioethics The work of invention hardly ever starts in a vacuum. My efforts to envisage a new, alternative bioethics, whereby the human is not being posited as a central value or datum point but is rather considered in-relation-to and in-difference-with other life forms, will benefit from revisiting what we may call bioethics’ ‘foundational moment’. This genealogical excursion will be undertaken with a view to tracing such an alternative already present at the very inception of the discipline of bioethics. In what follows, I thus want to lead the reader through an early but now forgotten conceptualisation of bioethics, one in which the relationship between the human, technology and the world was understood in terms of a dynamic system, rather than opposing entities. The term ‘bioethics’ was first suggested by Van Rensselaer Potter, an oncologist working at the University of Wisconsin, who drew on biology, evolution theory and cybernetics to develop his ethical proposal. Potter understood bioethics as an ethics of obligation to the biosphere as a whole. However, his is not the only contribution to the invention of bioethics. The historian and theorist of bioethics, Warren Reich, traces the emergence of bioethics as both a concept and a discipline in two articles published respectively in 1994 and 1995 in the Kennedy Institute of Ethics Journal. He claims that in 1970–1 bioethics actually ‘experienced a bilocated birth’, with Potter and André Hellegers, a Dutch obstetrician and foetal physiologist at Georgetown University, who became one of the founders of the field-defining Kennedy Institute of Ethics, developing their theories of bioethics simultaneously (see Reich, 1994, pp. 325–6). Hellegers himself was in fact closer to Potter’s global approach to bioethics, but the other scholars working at Georgetown adopted a much narrower definition of the term. Bioethics for them effectively became ‘a revitalized study of medical ethics’, dealing with ‘concrete medical dilemmas’ and rooted in applied normative ethics (Reich, 1995, pp. 20–1). Reich points out that it was the Hellegers/Georgetown biomedical connotation of the word that ‘came to dominate the emerging field of bioethics in academic circles and in the mind of the public’ (Reich, 1994, p. 320). Following in Reich’s footsteps, I would like to retrace the story of bioethics’ less popular twin – the one fathered by Potter, focused on the whole of the biosphere and concerning both medical and environmental

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moral issues. The impetus behind this genealogical study of bioethics, as explained above, lies in my attempt to identify the already existent possibilities for thinking bioethics otherwise which are inherent to the discipline itself. Even though, as we shall see below, Potter’s bioethics was not necessarily free from the humanist assumptions shared by the Hellegers school, it nevertheless outlined a networked model of relations between the human, technology and the environment, in which the human was seen as part of a larger system. This forgotten model, which, for the sake of simplicity, we can call ‘bioethics as cybernetics’, will provide a useful directive for my own experiment in thinking bioethics otherwise (even if I will ultimately part ways with the cybernetic legacy).

Cybernetics: Bridging the mechanical and the organic Cybernetics played a significant role in the humanities and social sciences in the second half of the twentieth century. The cybernetic model of the world outlined a new epistemology based on ‘the interaction between variables within a system rather than the domination of the whole by one of its parts’ (Woodward, 1983, p. 69). It also put forward the assumption that ‘there is no necessary contradiction between the organic and the technological’ (Woodward, 1983, p. 69). Ambitious in its almost holistic interdisciplinarity, cybernetics was conceived as a science that was supposed to provide an explanatory framework which would jointly consider humans, animals and machines as information processors (Hayles, 1995, p. 82). The merging of ideas from biology and mechanics led to the inclusion of both living organisms and mechanical ensembles within the category of ‘the system’, and to the supposition of structural continuity between humans, animals and machines. Even though the latter notion proved extremely fruitful for humanities and social sciences scholars interested in exploring less bounded and more relational models of human subjectivity, it is hard not to notice the political conservatism implied by the idea of the system’s homeostasis, that is, the belief that all systems maintained their internal stability, no matter what impulses they received from the environment. However, things changed during the so-called ‘second wave of cybernetics’, the period between 1960–80, which was informed by the work of Humberto Maturana and Francisco Varela. Maturana and Varela saw the world as a set of informationally closed systems, which nevertheless remained open to the environment on the level of their material structure. The most radical shift here concerned the role of the observer, who was now

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seen as part of the system: she was embodied and embedded within the system, rather than maintaining an immaterial God’s eye view over it. The consequences of this shift were not just epistemological but also ontological, as the observer was in fact creating a world through the acts of cognition and linguistic articulation in which she was engaged. Cognition and articulation thus became acts of ‘bringing forth a world’. We can see here similarities between cybernetics and post-structuralism, especially deconstruction and its elaboration of the concept of performativity, theories that have had a significant impact on rethinking politics and ethics beyond the certitudes of linear historical trajectories and tradition-sanctioned moralism. At the same time, I am rather suspicious as to the extent to which the implicit conservatism of the ‘first wave of cybernetics’, which foregrounded the importance of maintaining the system’s status quo, actually disappeared in its ‘second wave’, in spite of the fact that the newly introduced concept of autopoiesis (that is, self-creation) allowed for transformation and emergence within the system – be it a cell, a human being or a polity. When a rather messy element such as the observer was incorporated into the system, the emphasis was still on the system’s functioning, not on its potential disentanglement. Thus any too radical a change was warded off by an appeal to the system’s ‘natural’ closure. I wonder how different the cybernetic response would be from the standard ‘moral’ condemnation of such processes and practices. The pronouncement by Norbert Wiener, one of the founders of cybernetics, that ‘Entropic decay is evil; entropy is morally negative’ (quoted in Hayles, 1999, p. 100) – where entropy is the opposite of ‘organisation’ – only adds to my suspicion. We can therefore ask why a humanities scholar would prefer to look for such partial totality of the system at all; why systems theory is a desirable way of thinking about the world, its politics and ethics. Of course, we can accept a strategic need for identifying such ‘total but partial’ systems – for example, if one is a systems engineer trying to identify bugs in a particular network of computers or a medical doctor administering an appropriate amount of insulin to a diabetic patient. However, even these instances of ‘strategic’ recourse to autopoietic (that is, ‘open but closed’) systems are not culturally, politically or ethically neutral as they rely on a prior valorisation of certain states of being, or the system’s organisation, as intrinsically ‘better’. This is not to say that we cannot evaluate democracy, addiction-free life or organic food as more desirable in a particular set of circumstances, in a given historical and political situation in which we find ourselves – as long as we reflect on the conditions of emergence of this valorisation. Problems

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arise when these values are presented as inherent and natural, as always ensuring the most optimum functioning of ‘the system’ (cell, human body, Iraq), no matter what the cultural context of a given instance is. Indeed, ‘culture’ seems to have been one of cybernetics’ blind spots. By saying this I am not advocating that the science of cybernetics should be replaced with ‘cultural relativism’ or ‘constructionism’; I am only foregrounding the fact that no decision we make can be made on universal grounds, as we always operate in a culturally specific situation. For example, ideas and entities such as ‘organism’, ‘gene’, ‘woman’, ‘animal’ and ‘machine’ always bear cultural inscriptions – which does not mean that they are ‘just constructed’, or that they are mere figments of our imagination. It is therefore in culturally specific situations that our narratives about the world and its organisation emerge. Narratives, as Katherine Hayles points out, can nevertheless be dangerous ‘for someone who wants to construct a system’ (Hayles, 1995, p. 80), precisely because they prompt us to reveal the system’s very foundations, that is, its conditions of possibility and impossibility. But let us not throw out the cybernetic baby with the systemic water (or flow) just yet. Hayles points out that ‘systems theory needs narrative as a supplement just as much, perhaps, as narrative needs at least an implicit system to generate itself’ (Hayles, 1995, p. 72). Any academic work consisting in putting forward an argument or a theory inheres at least a partial investment in the systematicity of language and of the disciplines within which one is working. I am thus wary of setting the ‘culturalism’ of the humanities against the ‘technicism’ of cybernetics. Following Gilbert Simondon and Bernard Stiegler, I want to suggest instead that we go beyond the adverse conceptualisation of ‘culture’ as a system of defence of humanity against technics and pay attention to what Simondon defines as the dynamic of technical objects, whereby the human is no longer seen as an intentional actor but rather as the operator of this dynamic. Culture therefore needs to be ‘adjusted’ to technics, which means not only understanding the technicity of contemporary machines and information systems, but also acknowledging ‘technical dynamics’ as the condition and foundation of culture, not its opponent. From this point of view, technological evolution, or, more broadly, systemic change no longer has an anthropological source, even if the role and presence of the human is still maintained in this non-humanist theory of culture and/as technics (see Stiegler, 1998, pp. 66–7). The importance of Maturana and Varela’s insight that systemic organisation is key to our perception and comprehension of the world, and that we make (sense of) the world by arranging it into systems, becomes evident here, even if

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we may still want to borrow from Derrida an injunction to trace systems’ foundations, exclusions and closures (Derrida, 1995, p. 212). Drawing on the scientific work in cognitive ethology, field ecology and cognitive science, which have all demonstrated that the traditional marks of the human, such as reason, language and tool use, are found beyond the species barrier (see Wolfe, 1995, p. 35), cybernetics and systems theory can help scholars of human-centred disciplines to rethink the concept of the human as the king of ‘the chain of being’, and to outline a new post-humanist epistemology. Inspired by cybernetic propositions, Van Rensselaer Potter was the first to have taken significant steps towards a post-humanist bioethics.

Potter’s bioethics: A bridge to the future In his 1970 article, ‘Bioethics, the Science of Survival’ published in the journal Perspectives in Biology and Medicine,2 Potter puts forward a suggestion that ethics should be understood in a broader ecological context and that ‘[e]thical values cannot be separated from biological facts’ (Potter, 1970, p. 127). Potterian ethics is thus closer to what we call today ‘environmental ethics’, as it examines humans’ relationship to the land, and the animals and plants that grow upon it, as well as posing questions about the dominant economic paradigm of thinking about land. According to Potter, humans should think of the obligations they have towards the ecosystem, rather than the privileges they allegedly enjoy. The survival of the whole ecosystem and the improvement of the quality of life would be the test of the new value system proposed by Potter. Bioethics thus becomes for him a starting point for the science of survival. Exploring both medical and environmental issues, Potter manages to take bioethics from the narrower domains of moral philosophy and clinically oriented practical enquiry, and situate it in a wider socio-political nexus. And thus his bioethics includes ‘ethical issues in public health, population concerns, genetics, environmental health, reproductive practices and technologies, animal health and welfare, and the like’ (Reich, 1995, p. 29). Potter can therefore be seen as offering an alternative to the medicalised model of ethics developed by the Hellegers school, a model which has become one of the dominant tools in the biopolitics of Western democracies. Potter’s importance also lies in his pointing to the connections between different processes and practices – both biological and cultural ones – involved in the management of human life and health. (As an oncologist he was aware of the links between genetic and environmental factors leading to cancer, agricultural

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policies regulating the growth of tobacco, health care and cancer therapy as well as health education.) It is this connectedness between different levels and practices that give his bioethics a ‘global’ scope. In a book that followed his pioneering 1970 article, Bioethics: Bridge to the Future (Potter, 1971), Potter conceptualises bioethics as a bridge between biology, social sciences and the humanities. ‘From such a pooling of knowledge and values may come a new kind of scholar or statesman who has mastered what I have referred to as “bioethics”’ (Potter, 1970, p. 128), he proclaims. But he also calls for the integration of the reductionism and mechanism associated with molecular biology – the paradigm he draws on, although not without reservations – with ‘the holistic principles’ (Potter, 1970, p. 131). Applying the principles of organisation and cybernetic theory, he considers man as ‘an information-processing, decision-making, cybernetic machine whose value systems are built up by feedback processes from his environment’ (Potter, 1971, p. 36). The human is still the principal legislator of the values of the system in which he finds himself, but it is the wider processes taking place between the human and its environment that are crucial to both comprehending the world and ensuring its continued existence. Bioethical agency is partly displaced here from the human to the system – of which the human is part.

Bioethics and cybernetics: A bridge too far? And yet Potter’s bioethics entails a number of conceptual stumbling blocks. It is based on the presupposed analogy between biology and culture (an analogy which actually precludes the analysis of the two in terms of a dynamic relation), and on the belief that the analysis of the processes occurring at the micro-level of the cell can be extrapolated to the ‘higher’ level of the environment and thus culture – an idea he appropriates, somewhat erroneously, from the cultural anthropologist Clifford Geertz. It is the processes of adaptation and natural selection at both biological and cultural levels that Potter sees as vital for the progress of the world. Progress is measured in terms of the survival and prosperity of the human species in the changing environment, a state of events that should permit ‘every man to develop to the maximum his inherited talents’ (Potter, 1971, p. 52). Potter asserts: ‘I believe [most scientists] would agree with John Dewey that progress consists of movement towards a society of free individuals in which all, through their own work, contribute to the liberation and enrichment of society as a whole. I believe that a revitalisation of our value system is both

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necessary and possible’ (Potter, 1971, pp. 80–1). He thus presents us with a curious mix of humanism, individualism and liberalism, coupled with a belief that the world is a system with built-in mechanism for disorder. So, even though the human is not the driving force of this world – because ‘the system operates as it can, not as we would have it’ (Potter, 1971, p. 90) – it is nevertheless the human (in this case, Potter himself) that defines in advance the world’s values. These values are human survival, belief in man’s need to realise his full potential, human dignity, happiness and the prosperity of the human species, although Potter tends to make them sound like scientific facts, that is, products of the optimisation and adaptation of the human species, rather than moral injunctions. Hence Potterian bioethics emerges as a result of adjustments after a certain ‘minimal amount of disorder’, which is seen as necessary for biological evolution and mutation, has been taken care of by the system. Even though creativity and change are regarded as inevitable and, in fact, desirable for the survival of the environment, society and humankind, the minimisation of disorder and the restoration of systemic unity are also positioned as both necessary and always already calculated into the system itself. Bioethics ultimately becomes here an application of the cybernetic principles of feedback and control to the behaviour of the system, a comparison of the action taking place in the world against the principles of that world. Potter argues: Every action is governed by feedback mechanisms in which the action is designed to close the gap between what the human cybernetic machine is doing and what it believes it should do. In other words, feedback mechanisms always involve a reading of an action and a comparison of the reading with a preset standard. This standard may be set by beliefs and tends to shift with time, but the man machine is always trying to close the gap between the actual performance and the standard. Potter (1971, p. 37) The very process of the working out of standards is not something Potter is concerned about too much, as this issue will be resolved via rational deliberation between experts, who will all be committed to ‘advanc[ing] the human condition’ (Potter, 1971, p. 82). The orientation and meaning of this ‘advance’ presumably do not need to be investigated further, as its very origin is biological: it lies in the organism’s natural affinity for organisation and order, acquired in the evolutionary process. If

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autopoiesis ‘establishes a sphere of existence for the individual, a location from which the subject can ideally learn to respect the boundaries that define other autopoietic entities like itself’ (Hayles, 1999, p. 147), it is conservative, in that the self remains closed to an alterity that it does not know or recognise, an alterity that can threaten its stability (closure) and destroy it. It is therefore actually rather non-ethical. We could perhaps suggest, then, that it is the mechanical side of bioethics, that is, the unimpeded running of the system, that is of primary concern to Potter. Indeed, evolutionary processes are seen as the source and origin of all values (that is, of our morality), with Potterian bioethics acting as another control mechanism to the self-adjusting system. Culture itself is understood as an effect of an evolution guided by natural selection. And this is partly where the problem with Potterian bioethics lies. If cultural evolution is seen as analogous to biological evolution (Potter, 1971, p. 36), any forms of antagonism or rupture – what Potter would term temporary disorder or randomness – need to be overcome while the system is being adjusted to the new circumstances. As, according to Potter, rational human beings, guided by experts, should all agree on the direction in which the world should develop and the minimal values that drive it, he can unproblematically present his ethics as beneficial for the whole society, which he sees as constituted out of ‘free individuals’. ‘Individualistic aspects’ of culture are seen as variations resulting from adaptation, not as structuring elements of a social order. In the last instance, they can be seen as moments of disorder and creativity within the system – but not as conditions of the system’s (im)possibility of being. So it is not even the lack of recognition of what is sometimes referred to dismissively as ‘cultural difference’ that troubles me about Potter. It is the elimination of the need to take seriously into account the constitutive and irreducible differences within cultures – or, in other words, within systems – that provides, I believe, a rather large stumbling block for this bioethics. Although seemingly developed with the best of intentions at heart, since it is presented as driven by his desire for ‘the survival and improvement of mankind’ (Potter, 1971, p. 149), Potter’s ethics replicates the kinds of philosophical problems that Maturana and Varela originally ran up against in The Tree of Knowledge with their own turn from cybernetics to ethics. It is precisely the maintenance of the system that Maturana and Varela positioned as an ethical imperative, just as Potter did, even though they acknowledged the radical contingency of observation and advocated vigilance against ‘the temptation of certainty’. However, in their attempt to bring about the peaceful coexistence of the

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social system, they resorted to what Cary Wolfe terms ‘unreconstructed humanism’ by taking recourse to the idea of love as a guarantee of the functioning of their ethics. Believing that people would somehow naturally work out, in a rational manner, that acceptance of difference is better, they idealistically expected that ‘ethics may somehow do the work of politics’ (Wolfe, 1995, p. 61) by eliminating contingency and antagonism through careful and considerate reflection. Wolfe is also rather scathing about Maturana and Varela’s turn to Buddhism (a turn that Potter also takes!), accusing them of trying to solve ‘by ethical fiat and spiritual bootstrapping the complex problems of social life conducted in conditions of material scarcity, economic inequality, and institutionalized discrimination of various forms’ (Wolfe, 1995, p. 63). Cybernetic ‘open systems’ are suddenly starting to look rather closed, because they leave historical contingency as well as the materiality of the actual political conditions on the outside. As Wolfe concludes, [cyberneticists’] humanist ethics thus fails precisely because it is humanist. … [It] forgets what their epistemology knows: that in the cyborg cultural context of OncoMouse™ and hybrids of nature/culture, the question is not who will get to be human, but what kinds of couplings across the humanist divide are possible and indeed unavoidable when we begin to observe the end of Man. Wolfe (1995, p. 66)

Deciding on the system (from outside the system) In all its potential loosening up of human agency and the exploration of the constitutive relationship between the human and his environment, Maturana, Varela and Potter only manage to outline a technical programme for the betterment of the world, not an ethics. The main two problems with their proposals lie for me, first, in the elimination of the moment of decision, with their bioethics only becoming a plan for the successful running of the pre-decided programme and, second, in the foreclosure of its post-humanist promise, whereby the specificity of embodiment and its cultural and political positioning give way to timeless structural analogies across systems and layers. This kind of ethics seems politically orthodox, even totalitarian, as it is primarily focused on maintaining the world as it is, and ruling out a number of (non-systemic) possibilities in advance. Even though Potter himself acknowledges the possibility of a mistake occurring within a system, he sees it as an integral part of the system itself, a reverberation that

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does not disrupt the system as a whole. It is precisely this inability or unwillingness not only to think the total breakdown of the system but also to explore in great detail what happens at its margins, what is excluded by it and how its boundaries are consolidated and maintained, that makes his bioethics ultimately non-ethical. Indeed, Potter emphasises that disorder has to be eliminated to improve the human condition, while knowing in advance (through consultation with the aforementioned ‘experts’) what it is that humans need for their survival and wellbeing. Potter’s bioethics ends up being non- or counter-ethical because it forecloses on the need of a decision that would be heterogeneous to knowledge, and that would exceed the know-how of the system. It thus forecloses on undecidability – which, arguably, is a key condition of ethics. In an oft-cited passage, Derrida claims that ‘If you don’t experience some undecidability, then the decision would simply be the application of a programme, the consequence of a premise or of a matrix’ (Derrida, 1999, p. 66). Interestingly, Derrida resorts to computing terms in order to explain how ethics operates. He acknowledges that an element of calculation is necessary in politics, and that ethics is always already tied to the need for a political response to conflicting demands. We could perhaps even say that ethical decision involves having to choose between zeros and ones. But Derrida also makes it clear that, in order to make actively a decision between ‘two determined solutions’ which are ‘as justifiable as one another’ – rather than allowing for a program to execute itself – we need to go beyond the known sequence of zeroes and ones. A decision thus involves going beyond the system; it is a moment of madness in the face of knowledge which is external to that knowledge; it must be an act of faith, an eruption of a ghost in the machine. And thus if we are to think ethically, we must consider the possibility that the system may collapse, that the world as we know it will explode and that another set of values which will not be focused on individualism, human dignity and prosperity will emerge. This is not to say that such outcomes are to be seen a priori as more interesting or better alternatives to the values on which Potter builds his bioethics; only to suggest that they need to be at least considered, not excluded in advance. Cybernetic ethics as devised by Potter insists on closing the gap between the ‘is’ and the ‘ought’; but ethics, I want to suggest – if it is to be fully ethical rather than just ‘mathematical’ – has to decide on the ‘ought’ every time anew, without the guarantee of the fixed ‘is’, or the possibility of the ultimate closure.

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Breaching totality: For a non-systemic bioethics of relations I am thus proposing that bioethics needs to ask very different questions from those posed by cybernetics-driven ethics if it is to be conceptualised as ethics at all: what happens when the system fails? Is there anything outside of the system? Is there anything that is excluded from it? How are the system’s boundaries maintained? An ethical bioethics (a pleonasm to which I hesitantly resort in order to differentiate my project from Potter’s), needs to respond to the moment when the system is getting out of sync, when it is unworking itself; it needs to be attuned to the singularities within the system that cannot be reduced to mere genetic and cultural variations of a species. I should perhaps also explain that by insisting, with Derrida, on an outer-systemic moment of madness and leap of faith, I am not bringing back humanism to cybernethics – even if I do recognise cultural, political and ethical differences not only between humans, animals and machines (temporary and unstable as these categories may be) but also among different humans, different animals and different machines. The nature and significance of the ethical difference between, for example, ‘abusing a dog and abusing a scallop’ (Wolfe, 2003, p. 88) – what I earlier called ‘the cut’ in the flow of life – will nevertheless have to be responsibly decided always anew, in particular contexts, networks and environments in which we will find ourselves, and with all the knowledge and affect we will be able to mobilise. All these reservations notwithstanding, I find in Potter a possibility of envisaging a different bioethical model, one which looks at the biosphere as a non-hierarchically differentiated whole and which foregrounds relationality between different species and material forms.3 Cybernetics can thus help us in our search for ‘doing bioethics otherwise’, even if this ‘new’ bioethics I am attempting to outline will have a very different relation to ‘the system’ as such. This is by no means to position it outside of the system but rather to assign it the role of a system’s bug: always attentive, tracing the networks, relations and connections and detecting unexpected openings and cracks within the system. Derrida instructs us that this very possibility of finding a metaphysical trace ‘on the other side’ of the system is already inherent in cybernetics, because if it is ‘by itself to oust all metaphysical concepts – including the concepts of soul, of life, of value, of choice, of memory – which until recently used to separate the machine from man, [the theory of cybernetics] must conserve the notion of writing, trace, grammè [written mark], or grapheme, until its own historico-metaphysical character

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is exposed’ (Derrida, 1976, p. 9). Cybernetics therefore cannot escape its own entanglement in the system of language, of writing, and hence in difference (of identity, signification and meaning), even if its proponents position information as content- and meaning-free. The cybernetic proposition that ‘there is no there there’ and that the observer cannot stand outside the system being observed, foregrounds the constitutional role of difference (that is, all this that is not ‘the subject’) in bringing forth this subject, and establishing a relationship between the subject and its difference. We can perhaps trace a similarity here between a cybernetic understanding of subject-formation and Emmanuel Levinas’ notion of ethics as recognition of, and response to, the infinite alterity of the other. Levinas’ thought is extremely helpful in providing a framework and a justification for caring about the life, any life, of the other, especially the precarious and destitute lives of all those who lack recognition in the dominant political discourses and policies, and those whose biological and political existence is confined to ‘zones of exception’: comatose patients, asylum seekers, refugees, people with non-normative bodies and looks, victims of biotech experimentation. It also transforms relationality between sentient beings from an objective material fact perceived as such from any point within the system to a subjective infinite responsibility directed, non-symmetrically, only at me. However, drawing on Levinas in an effort to develop a ‘posthumanist’ bioethics is not unproblematic. As John Llewelyn observes, ‘Levinas seems to imply that I can have responsibilities only towards beings capable of having responsibilities’ (Llewelyn, 1991, p. 237), that is, beings with whom I can be face to face, with whom I can enter into a discourse. Hence it is only really human others with whom I can maintain an ethical relationship – and this, in spite of a certain opening made by Levinas himself in the essay ‘The Name of a Dog, or Natural Rights’, where he writes about the dog Bobby, greeting Jewish prisoners in the German POW camp returning after a day’s labour, as if they were human. Even though Bobby, ‘the last Kantian in the Nazi Germany’, lacks ‘the brain needed to universalize maxims and drives’, at the hour of trial it can ‘attest to the dignity of its person’ (Levinas, 1990, p. 153). Bobby therefore signifies, in Levinas’ own words, and with more generosity than Llewelyn perhaps allows for, ‘the debt that is always open’ (Levinas, 1990, p. 152). But even if he does hint at the possibility of a debt to the animal other, Levinas’ ethical theory undoubtedly suffers from an anthropological bias, which is evident in the excessive weighting he gives to

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logos, or rather perhaps in the too narrow conception of logos as human word, as discourse between equals. I want to suggest that Levinas’ ‘error’ is first of all scientific and historical rather than philosophical per se, in that he does not consider seriously the limitations of his own concept of the human as a speaking being with a face, rather than a sentient being reaching to – and touched by – the other in a myriad different ways. His commitment to the difference and singularity of the human seems to blind him to the discursive limitations of his own language through which ethical responsibility towards the other is justified. Because do we really know with whom we can enter into a discourse (a refugee? a cat? a computer bot?) and what this ‘entering into a discourse’ actually means? However, the recognition of these limitations of Levinas’ philosophy does not take away from an immense significance of his understanding of ethics as responsibility for the alterity of the other, nor does it invalidate his work for our project of thinking bioethics ‘otherwise’, even if it does make the task of encountering and dealing with this (human and non-human) alterity much more complicated. Cybernetics and systems theory can help here in offering a (material as well as conceptual) supplement to the humanist limitations of Levinas’ thought and thus allowing us to envisage and take stock of humans’ relationality and kinship with non-human others. But it is through Levinas that we can take a peek at ‘the other side’ of the system, which I understand less as transcendence and more as a pragmatic possibility of tracing the system’s limits, of breaking through the system’s totality. Levinas himself draws on the language of systems to explain the emergence of signification in the self–other relationship. He recognises the need for an effort which has to be made ‘for the structures to be packed in’ to the system, an act that is to ensure intelligibility and reveal being in its essence. The ‘tight packing in of structures’ is a condition of signification as well as a guarantee of the maintenance of a totality of the system (a point Derrida will take up in his work, arguing that his dictum, ‘there is nothing outside of the text’, can actually mean that there is (almost) nothing outside of the system of signification, in the sense that we cannot identify any present or perceptible limit to this system) (see Derrida, 1986, pp. 167–8). Levinas writes: It is because the assembling of nonsignifying elements into a structure and the arrangement of structures into systems or into a totality involves chances or delays, and something like good or bad luck, because the finitude of being is not only due to the fate that destines the way it carries onto manifestation, but also to the vicissitudes and

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risks of a packing in of its manifested aspects, that subjectivity in retention, memory and history, intervenes to hasten the assembling, to confer more chances for the packing in, to unite the elements into a present, to re-present them. Levinas (1998, pp. 133–4) The subject is thus part of the ‘system’ of being; it is ‘part of the way being carries on’ (Levinas, 1998, p. 134), but its presence and re-presentation are only temporary. They are also predicated on chance, on good or bad luck. The system’s totality is for Levinas only ever provisional. Indeed, he is more interested in what we could describe as ‘an accident in the system’, an unexpected state of events that becomes an ethical opening. He writes in Totality and Infinity: ‘The absolutely other, whose alterity is overcome in the philosophy of immanence on the allegedly common plane of history, maintains his transcendence in the midst of history. The same is essentially identification with the diverse, or history, or system. It is not I who resist the system …; it is the other’ (Levinas, 1969, p. 140). For Levinas, ethics is not just an operation of thought – but neither is it a-rational or thought-free. It happens at the limits of thought. We could describe it as a leap of faith beyond knowledge, but undertaken from the position of knowledge. The operation of knowledge and critical thinking would not need to cease; instead, it would involve thinking that there is unthinkable, ‘an other refractory to categories’, even if we can never ever ultimately think, that is, grasp, this other. (To put it in terms elaborated by systems theory, it would involve being able to think the inability to see the social or natural system as a totality from any particular observer’s point of view.) Arguably, ethics can thus be positioned as taking place in a crack or cut within, or even in the moment of resistance against, the system. It involves a breach of the systemic totality by infinite alterity, but not a one-way passage ‘to the other side’, as that would only amount to absolute immanence being replaced with absolute transcendence, and would actually confirm totalising identitarian categories. The other, as explained by Derrida in his readings of Levinas in ‘Violence and Metaphysics’, can never be ‘totally other’. There is always some sort of relationality to the ‘infinitely other’, a trace of difference in the same. It is precisely in this tension between categories such as self/other, inside/outside and immanence/transcendence that a diachronic ethical relation with alterity is established. And it is in discourse – what Levinas calls speaking and what cybernetics refers to more broadly as communication – that ethics takes place. Of course,

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not all forms of communication are ethical per se. Indeed, in Wiener’s conceptualisation of cybernetics, communication is always coupled with control, and thus, if interpreted from the Levinasian perspective, it would be seen as unethical. The paradox of Levinas’ ethical proposition lies in noticing this possibility of ethics included in any form of communication, which is always a turning towards the other, an (as yet content-free) address, a welcome and a reaching out. Because it is a paradox, this welcome can turn out to be not very welcoming at all; but hostility will occur only after the welcome and hospitality, that is, the reaching- or turning-towards, has taken place. What is needed for communication to be potentially ethical is this very possibility of an address, of turning-towards. It is the eventfulness of the event, that is, the fact that something takes place between me and the never-fully-knowable other, that a relation is established and entered into, that is significant here. The Australian artist Stelarc playfully illustrates this point in a conversation with his Prosthetic Head, a performance agent equipped with a text-to-speech engine with a source code for facial expression and real-time lip-syncing: STELARC: ‘Who are you?’ PROSTHETIC HEAD: ‘That’s not a meaningful question. What is important is what happens between you and me. It’s what happens in the space between us that matters. In the medium of language within which we communicate, in the culture within which we’ve been conditioned at this point in time in our history.’ Stelarc (2005) Some readers may be concerned at this point whether this does not actually reinstate ‘old’ humanism in this ‘new’ ethics, where machines and animals are still a bit ‘like humans’ and where it is the human who ultimately makes all the cognitive and ethical decisions. Yet I suggest that a Levinas- and Derrida-inspired ethics of relationality, of turning-towards, goes beyond the traditional humanist tenets because something very radical happens here to the very idea of the human when it is analysed in terms posited by cybernetics (that is, as being part of the system and thus dependent on the system’s technologies). The one-for-the-other structure of subjectivity in Levinas, which is for him ‘a conjuncture in which a man is responsible for other men’ (Levinas, 1998, p. 135), needs to be expanded if under the conditions of digitality we cannot ascertain any longer whether the other who is ‘assigned to me’ and for whom I am responsible is human or machinic, and whether the ‘fraternity’ Levinas

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talks about extends to all of DNA-kin (chimpanzees, dogs, bacteria). For Bernard Stiegler, the human is always already technological: he is co-constituted with and through technology (e.g. a flint) and depends on tekhnē, mēkhanē and ‘non-living organs’ for his survival (see Stiegler, 2003, p. 158). At the same time, it could perhaps be argued that the digital age exacerbates this technological condition of the human to an unprecedented extent, with technologies and media becoming part of the human in a much more ubiquitous, everyday and embodied way. With mobile phones, iPods, wireless Internet connection, immersive game environments and the convergence of different media forms and contents, the lines between what used to be more comfortably recognised as ‘real’ and ‘virtual’ relations are becoming increasingly blurred. The human is positioned much more ostensibly as an element in the information system, a nodal point for the flow of data, rather than a skin-bound, self-contained rational moral agent. Even if we were to argue that this is a change of degree rather than of kind, ‘the degree of this degree’ in the digital era is significant enough to call, together with Mark Poster, for ‘an innovation in the theory of ethics’ and thus for the development of ‘new ethical rules … for mediated culture’ (Poster, 2006, pp. 139, 142). Indeed, for ‘humachines’ the very nature of what I called ‘relationality’ becomes much more unstable and fluid, and much less dyadic than it is in more human-centred ethical positions. Although it learns its post-humanist lesson from cybernetics, the bioethics I am proposing does not entirely remove qualitative differences between humans, animals and machines, nor does it replace the multiple differences between species and life forms with a species continuum, or a seamless life (or data) flow. So what is the nature of these differences? I do not know. Now, I would like the reader to consider with me the possibility that what might perhaps seem like a flippant answer, an ‘intellectual copout’ which only ends reaffirming humanism via the human’s ability to doubt is actually a serious philosophical proposition for articulating the relationship between humans, animals and machines. Indeed, anything else – no matter if I was to defend the special positioning of the human as a being with its own teleology and truth, or the species continuum of modern naturalism which only affirms differences of degree, not of kind, would require the reinstatement of the position of knowing the nature of this difference and being able to arbitrate over it once and for all. Simon Glendinning argues that a Derrida-inspired position of dwelling on this difference will allow us to avoid the ‘fundamental

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cognitivism with regard to proper appreciation of the human difference’ that classical humanism and modern naturalism share. For Glendinning, both of these theories of the human claim that a proper grasp of the significance of human difference ‘is ultimately, decisively, a matter of our having adjusted our beliefs to how things really are’ (Glendinning, 2007, p. 205). The ethical recognition of this difference, in turn, does not amount to knowing its nature once and for all. Indeed, any attempt cognitively to master this difference will have, as Stiegler postulates, a mythical character – less in the sense that it is opposed to a true story waiting to be discovered and more as a narrative that is yet another one of the prostheses that constitute our humachinic existence. In other words, myths make us (human) as much as flint tools do. Also, the question whether this ethics also applies to others – other humans but perhaps also apes, dolphins or even ‘intelligent machines’ – is not really important, because it only ever applies to me. It is my anxiety about death and my awareness of my own mortality that establish a temporality for me, while also opening up a set of possibilities. These possibilities always include that ultimate possibility of an end – the end of me as a specimen of ‘humans’ and the end of the human as a species (see Stiegler, 2003, p. 158). As soon as I start asking questions about the general applicability and universal validity of this ethics, I am introducing calculation into it by trying to measure my responsibility against that of (human and non-human) others. Of course, it is understandable that I may want to do this but in this way I am already moving from ethics into politics, the domain of making strategic decisions and arbitrating between different procedures and events. Again, these decisions have to be made, every day, in the material conditions in which we find ourselves and against the particular social, economic and cultural circumstances in which we are embedded. But the political questions we will ask about the relations between humans, animals and machines will be very different from the ethical injunction that the human or non-human other – who is both my kin and infinitely different from me – makes upon me, and that precedes any political action. It is precisely in the resistance against the fusion of this relationality between me and the other that ethics is enacted. Because ‘It is not I who resist the system … it is the other’.

Non-clinical hospitality and ‘the human becoming’ The alternative framework for thinking about bioethics in the age of biotechnology and digital media as I have attempted to outline in this chapter does not fully negate the existent bioethical tradition,

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developed by the likes of Hellegers and Potter, and applied in hospitals, clinics and medical research institutes. Rather, it emerges at the margins of the dominant system of hospitality, as this very system’s not always acknowledged aberration or exception. Open, in principle, ‘to who or what turns up, before any determination, before any anticipation, before any identification … whether or not the new arrival is the citizen of another country, a human, animal or divine creature, a living or dead thing, male or female’ (Derrida, 2000, p. 77), it also entails an examination of the historical formation and ideological structuration of ‘the human’, and of many of the concepts positioned as the human’s ‘other’, such as animal and machine. The human does not disappear from the kind of post-humanist bioethics envisaged in this chapter: in fact, it functions as its strategic point of entry. What we are dealing with here, however, is not so much a ‘human being’ understood as a cognisable, disembodied, separate moral unity but rather a ‘human becoming’: relational, co-emerging with technology, materially implicated in socio-cultural networks and kin to other life forms. By pointing, with Levinas and Derrida, to a place of foundational difference as the origin of a bioethical injunction, post-human bioethics challenges the hierarchical system of descent through which relations between species and life forms have traditionally been thought. Informed by the need for a decision, always to be made anew, about what to do, this bioethics of alternative hospitality assumes – or rather accepts – responsibility for the lives and deaths of multiple, human and nonhuman, others. Even though the locus of this responsibility, response and decision is not clearly located in a bounded, rational, human self, the concept of responsibility, in the sense of an exposition and inevitable response to the alterity of other becomings and life forms, is fundamental in this particular ethical framework. However, responsibility becomes much less frequent and much more difficult to enact with any certitude or moral conviction. Indeed, as Francisco Varela acknowledges in Ethical Know-How, many decisions which we consider ‘ethical’ are in fact only spontaneous reactions to the goals that present themselves before us. But while Potter, Varela and other cyberneticists interpret such reactions as ethical events, while also positing the smooth functioning of a semantically-neutral system as an ethical value, for me ethics occurs when the very processes of reaction and feedback come to a temporary halt, when the system unworks itself, when a ghost enters the machine to disrupt its calculation. Ethical responsibility thus needs to be distinguished from instant pragmatism, a quick semi-intuitive reaction in a given set of circumstances.

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Nor should it be reduced to mere relativism, a contextual decision undertaken by a singular individual according to his or her own moral criteria (or mere whim). Even though singular contexts and instances are important when it comes to ethical decisions, we must not forget about the broader horizon of responsibility which is also that of an ethical demand: one that reminds us that we are already indebted to the other – which is perhaps another way of saying that we are connected, relational and hence dependent on what is before us, in both a temporal and ethical sense. The hospitable but also inevitably violent bioethics of responsibility for ‘life itself’ inheres a double injunction: to stabilise and to transcendentalise. Both actions will be temporary and strategic. We need to stabilise in order to manage the ‘flow of life’ and conceptually carve out entities, such as ‘the human’ ‘the other’, ‘the virus’, if we want to consider how the competing claims for responsibility can be resolved in particular circumstances, and whether all forms of relationality matter in exactly the same way at a given moment. We also need to transcendentalise, in the sense that particular bioethical claims, problems and issues (abortion, cloning, the production of GM foods) need to be temporarily isolated from the whole complex network of socio-political circumstances, and elevated over other problems, in order to be considered at all. But it is the wider commitment to responsibility – something that for me amounts to the acknowledgement of the lived materiality of other ‘becomings’ more than to a metaphysical injunction – that differentiates this ethics from mere individualistic decisionism.

Notes An expanded version of this chapter was published in my book, Bioethics in the Age of New Media (Cambridge: The MIT Press, 2009). 1. Although bioethics today is rooted in philosophical positions as diverse as the Aristotelian ethics of the good based on certain adopted views of ‘human nature’; Christian ethics of natural good and evil regulated by the idea of God; a Kant-inflected belief in the inviolable moral principles formulated in the categorical imperative; utilitarianism aimed at ensuring the ‘greatest surplus of happiness’ in the world, and universal prescriptivism, prescribing universalisable judgement for all possible circumstances (see Kuhse and Singer, 1999), all these positions share some dominant characteristics: (1) the sense of normativity which is filled with positive content, that is the idea of good all these positions refer to and defend, (2) the need for the universalisation and applicability of the moral judgement,

140 Is There Life in Cybernetics? (3) the rational human subject that can make a decision and that is seen as the source of this decision. 2. This article was later incorporated into V. R. Potter’s 1971 book, Bioethics: Bridge to the Future (Englewood Cliffs, N.J.: Prentice-Hall), as chapter 1. 3. For an earlier elaboration of a non-systemic theory of ethics for humans, animals and machines see my chapter ‘Bio-ethics and cyberfeminism’ (Zylinska, 2005, pp. 138–58).

Bibliography R. Braidotti (2006) Transpositions: On Nomadic Ethics (Cambridge: Polity Press). G. Deleuze (1988) Spinoza: Practical Philosophy, R. Hurley (trans.) (San Francisco: City Lights Books). J. Derrida (1976) Of Grammatology, G. Chakravorty Spivak (trans.) (Baltimore and London: Johns Hopkins University Press). ——— (1978) ‘Violence and Metaphysics’ in Writing and Difference, A. Bass (trans.) (London and Henley: Routledge & Kegan Paul). ——— (1986) ‘But, Beyond… (Open Letter to Anne McClintock and Rob Nixon)’, P. Kamuf, (trans.) Critical Inquiry 13/1 (Autumn), 155–70. ——— (1995) ‘“There is No One Narcissism” (Autobiophotographies)’ in J. Derrida, Points… Interview, 1974–1994, E. Weber (ed.) (Stanford: Stanford University Press), pp. 196–215. ——— (1999) ‘Hospitality, Justice and Responsibility: a Dialogue with Jacques Derrida’, in R. Kearney and M. Dooley (eds) Questioning Ethics: Contemporary Debates in Philosophy (London and New York: Routledge), pp. 65–83. ——— (2000) Of Hospitality: Anne Dufourmantelle Invites Jacques Derrida to Respond R. Bowlby (trans.) (Stanford: Stanford University Press). S. Glendinning (2007) The Movement of Phenomenology (London and New York: Routledge). N. K. Hayles (1995) ‘Making the Cut: The Interplay of Narrative and System, or What Systems Theory Can’t See’, in ‘The Politics of Systems and Environments’, special issue, Cultural Critique 30/1 Spring, 71–100. ——— (1999) How We Became Posthuman:Virtual Bodies in Cybernetics, Literature, and Informatics (Chicago and London: University of Chicago Press). ——— (2004) ‘Flesh and Metal: Reconfiguring the Mindbody in Virtual Environments’ in R. Mitchell and P. Thurtle (eds) Data Made Flesh: Embodying Information (New York and London: Routledge), pp. 229–248. H. Kuhse and P. Singer (eds) (1999) Bioethics: an Anthology (Oxford: Blackwell). E. Levinas (1969) Totality and Infinity: An Essay on Exteriority, A. Lingis (trans.) Pittsburgh: Duquesne University Press). ——— (1990) ‘The Name of a Dog, or Natural Rights’ in Difficult Freedom: Essays on Judaism S. Hand (trans.) (London: The Athlone Press). ——— (1998) Otherwise than Being: Or Beyond Essence, A. Lingis (trans.) (Pittsburgh: Duquesne University Press). J. Llewelyn (1991) ‘Am I Obsessed by Bobby? (Humanism and the Other Animal)’, in R. Bernasconi and S. Critchley (eds) Re-reading Levinas (Bloomington and Indianapolis: Indiana University Press), pp. 234–245.

Joanna Zylinska 141 A. Mackenzie (2002) Transductions: Bodies and Machines at Speed (London and New York: Continuum). H. R. Maturana and F. J. Varela (1992) The Tree of Knowledge: The Biological Roots of Human Understanding, R. Paolucci (trans.) (Boston: Shambhala). P. Pattonand J. Protevi (2003) ‘Introduction’, in P. Patton and J. Protevi (eds) Between Deleuze and Derrida (London and New York: Continuum). M. Poster (2006) Information Please: Culture and Politics in the Age of Digital Machines (Durham and London: Duke University Press). V. R. Potter (1970) ‘Bioethics, the Science of Survival’, Perspectives in Biology and Medicine 14, 127–53. ——— (1971) Bioethics: Bridge to the Future (Englewood Cliffs, New Jersey: Prentice-Hall, Inc.) W. T. Reich (1994) ‘The Word “Bioethics”: Its Birth and the Legacies of those Who Shaped It’, Kennedy Institute of Ethics Journal 4/4, 319–35. ——— (1995) ‘The Word “Bioethics”: The Struggle Over Its Earliest Meanings’, Kennedy Institute of Ethics Journal 5/1, 19–34. D. W. Smith (2003) ‘Deleuze and Derrida, Immanence and Transcendence: Two Directions in Recent French Thought’, in P. Patton and J. Protevi (eds) Between Deleuze and Derrida (London and New York: Continuum), pp. 46–66. Stelarc (2005) ‘Prosthetic Head: Intelligence, Awareness and Agency’, Ctheory. http://www.ctheory.net/articles.aspx?id=490 (accessed on 15 October 2008). B. Stiegler (1998) Technics and Time, 1: The Fault of Epimetheus, R. Beardsworth and G. Collins (trans.) (Stanford: Stanford University Press). ——— (2003) ‘Technics of Decision: An Interview with Peter Hallward’, S. Gaston (trans.) Angelaki, 8/2, 151–68. F. J. Varela (1992) Ethical Know-How: Action, Wisdom, and Cognition (Stanford, CA: Stanford University Press). C. Wolfe (1995) ‘In Search of Post-Humanist Theory: The Second-Order Cybernetics of Maturana and Varela’,in ‘The Politics of Systems and Environments’, special issue, Cultural Critique, No. 30, Part I (Spring), 33–70. C. Wolfe (2003) Animal Rites: American Culture, the Discourse of Species, and Posthumanism (Chicago: University of Chicago Press). K. Woodward (1983) ‘Cybernetic Modeling in Recent American Writing: A Critique’, North Dakota Quarterly 51/1 Winter, 57–73. J. Zylinska (2005) The Ethics of Cultural Studies (London and New York: Continuum).

9 The Silent Scream – Agamben, Deleuze and the Politics of the Unborn Melinda Cooper

Introduction Perhaps no other philosopher has so thoroughly explored the contemporary articulations of life and law as Giorgio Agamben. Central to his philosophical oeuvre since the publication of Homo Sacer Volume 1 (Agamben, 1998) is the figure of bare life. This figure inhabits Agamben’s political theory in a number of different guises – from the brain-dead body on life support to the concentration camp prisoner in Auschwitz and the stateless refugee. In it, he identifies a biological substratum isolated from all political form or identity but nevertheless subject to the full force of law of the modern state. Agamben also pursues his reflection on bare life in his more immediately philosophical and exegetical work, where he derives it from the category of minimal or vegetative life in Aristotle’s de Anima. Translated back into the terms of Aristotelian philosophy, bare life would thus correspond to a life lived in pure potentia but nevertheless subject to the most violent of political actions, the sovereign power to kill. Yet Agamben consistently and inexplicably eludes the one figure of contemporary political life that would seem to illustrate most fully his philosophical conception of bare life. This is the figure of the ‘unborn’ – a purely potential life which, according to some, has become dangerously exposed to the sovereign violence of women, the state and science. Since the mid-nineteenth century and more pointedly still since the post-war Universal Declaration of Human Rights, the question of the legal status of this particular life form has become a central concern of the right-to-life movement. How can we explain Agamben’s silence on this question and what does it say about his politics of life?1 In this critical reading of Agamben, I propose to look at the sources of his philosophy of life in order to investigate the 142

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moments in which it intersects with key shifts in the doctrine of the Catholic Church. I argue that Agamben’s philosophy of life must be understood as unfolding in dialogue not only with Aristotle’s theory of the soul, but more importantly with the medieval Christian theology of Saint Thomas Aquinas. In so doing, it registers, without acknowledging, a number of key moments in the emergence of the modern rightto-life movement, leading to a position that I define as a theology in suspended animation. The chapter begins and ends with a close reading of one of Agamben’s more recent philosophical texts, ‘Absolute Immanence’, in which he reflects on the implications of Foucault’s understanding of biopolitics for his own work and that of his philosophical contemporary, Gilles Deleuze. While Agamben reads his own philosophy of bare life back into Deleuzian vitalism, I will conclude by drawing out their significant differences, differences that turn precisely around the question of political theology and the Thomist philosophy of life. I will argue that the significance of this divergence is not merely philosophical – rather it points to the key ethical tensions in a contemporary politics of life and law.

Potential life – Agamben and the neo-Aristotelians What are the philosophical sources for Agamben’s conception of bare life? In the article ‘Absolute Immanence’, which purports to be a reading of Deleuze, Agamben establishes his debt to Aristotle’s theory of life as outlined in de Anima. ‘In the history of Western philosophy’, he writes, ‘bare life as such is identified at a decisive moment. It is the moment in which Aristotle, in de Anima, isolates the most general and separable meaning of “living being” (zoon)’ (Agamben, 1999c, p. 230). In other contexts, it becomes clear that Agamben’s reading of de Anima is more immediately indebted to the medieval, scholastic interpretation of Aristotle, in particular to the work of Saint Thomas Aquinas, who was responsible for translating Aristotle into a Christian theology of the gift of life. De Anima, he writes, ‘is truly one of the vertices of Aristotle’s thought and … fully authorizes the medieval image of a mystical Aristotle’ (Agamben, 1999b, p. 184). The first Latin translation of de Anima dates from 1150, after centuries of translation and commentary in the Arabic. However, it was only in the thirteenth-century that the full Aristotelian corpus, along with its Arabic commentaries, was fully integrated into Christian philosophy. It was the thirteenth-century philosopher Saint Thomas Aquinas who was responsible for incorporating

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the principles of Aristotelian philosophy (potential and act, matter and form) into speculative theology, thus forging a wholly new conceptual language for Christian revelation. This is not to say that the fortunes of Thomist Aristotelianism were sealed from the beginning – it was during the Counter-Reformation and more decisively in the course of the nineteenth century that the philosophy of Aquinas would come to be thought of as the very theological basis of Catholicism. Agamben’s philosophy then is as much an intervention into medieval Catholic philosophies of life, the gift and salvation and their revisions as a response to Aristotle. His philosophical derivation of bare life should therefore be read alongside Thomas Aquinas’ Commentary on Aristotle’s De anima, where the ancient theory of potentiality and act becomes inseparable from a Christian theology of the gift and sovereign power (Agamben, 1991). But before returning to the Thomist influence in Agamben’s thought, I first want to pause over his intervention into Aristotle. ‘It is important to observe that Aristotle does not at all define what life is’, he notes; rather he ‘merely divides it up in isolating the nutritive function and then orders it into a series of distinct and correlated faculties (nutrition, sensation, thought)’ (Agamben, 1999c, p. 231). Aristotle’s natural philosophy, as exemplified in De anima, is a theory of attribution in which a generic term – life – is defined first by its minimal substance (plant life, the faculty of nutrition) and progressively complicated by the predication of a series of hierarchical faculties leading from the plant to the animal to the human soul. Aristotle’s political philosophy pursues this work of attribution even further by defining the different orders of political life (bios or form of life), which define the social being of humans. While remaining within the limits of Aristotle’s theory of life, Agamben’s philosophy works in precisely the reverse order. Instead of working upwards from the natural to the political, he is interested in undoing the progressive attributions of organic and political life to uncover – and dwell upon – the irreducible substance that underlies all forms of life; the substance without which no organised form of life would be possible. This is where Aristotle locates the absolutely minimal, nutritive or vegetative life of the plant. And as Agamben reminds us via a reference to the French physician Xavier Bichat, this minimal vegetative life must also be understood in temporal terms, as the first stage in the generation of human life, fetal life being the human equivalent of the plant within a classification of nature (Agamben, 1999c, p. 231). Reflecting on the conditions in which a bare life becomes thinkable, Agamben thus uncovers a problematic that is available to, but not fully

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worked out by Aristotle. What if the ethical task of philosophy were to work through regression rather than progression? What would it mean to consider the existence of bare life in and of itself, independently of all attribution? In philosophical terms, Agamben is fascinated by the implications of such a move for a rethinking of the relationship between potentiality and actuality. For the very existence of nutritive life represents the enigma of a faculty of sensation that coexists with an actual lack of sensation, a state of unfeeling that is nevertheless not the simple absence of power to feel. ‘How … can a sensation exist in the absence of sensation? How can an aesthesis exist in the state of anesthesia?’ – Agamben asks (Agamben, 1999b, p. 178). What intrigues him in the Aristotelian theory of life is its ability to think potentiality independently of actuality. For Aristotle, potentiality considered in and of itself, even when it remains unactualised, is never simply an absence of actualisation, but rather an active potential to be and not-to-be. Even when it remains unactualised, it possesses an irreducible positivity – it preserves itself, in Agamben’s words.2 Elsewhere, Agamben identifies this susceptibility to impotent possibility as the distinctive mark of the human as such and thus an essential condition of ethics. Making direct reference to the neo-Aristotelian ‘image of a mystical Aristotle’, he renders the language of pure potentiality into the Christian idiom of the gift of life, asking what it would mean to conceive of life as the potential not-to-actualise: Contrary to the traditional idea of potentiality that is annulled in actuality, here we are confronted with a potentiality that conserves itself and saves itself in actuality. Here potentiality, so to speak, survives actuality and, in this way, gives itself to itself. Agamben (1999b, p. 184) Agamben’s reflections on pure potentiality as the ethical threshold of human existence are clearly indebted to Thomas Aquinas’ Commentary on Aristotle’s De anima, where the Aristotelian concept of life, with its dialectic of actus and potentia, energeia and dynamis, is fully incorporated into a theology of the gift and sovereign power.

Potential life – the Catholic Church and abortion It is highly significant then, that the very same text has played an enduring role in Catholic Church casuistry, where it has lent itself to centuries of debate on the question of ensoulment and hence on the lawfulness

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of abortion. Within the Catholic tradition, the questions of potential life, the stages of life – nutritive or vegetative, sensitive, human/rational and divine – and the relationship between the actual and the potential, have long been central to the problematic of abortion. Without acknowledging it explicitly, Agamben’s work, both philosophical and political, is intimately informed by this tradition of casuistry and its efforts to deal with multiple threats to the supremacy of sovereign or divine law. With his minimal attention to historical detail, Agamben’s chronology of modernity nevertheless rehearses the key moments of transition in Catholic doctrine, when the Church, confronted with the growing power of the secular state and modern medicine, not to mention periodic attempts to liberalise abortion, found itself obliged to modify its rulings on questions of life and law. Prior to the mid-nineteenth century, the Catholic Church’s rulings on abortion found their justification in the Thomist/Aristotelian philosophy of progressive stages of life.3 Only when the potential life of the fetus was endowed with the intellective soul of the human being could the termination of pregnancy be considered an act of murder. In general, human ensoulment was thought to occur about forty days after conception. Papal authority thereby distinguished between two kinds of sinfulness. While abortion was almost universally condemned by Catholic authorities, important distinctions were made between abortion before and after ensoulment. Prior to ensoulment, abortion was to be treated as the lesser sin of a crime against marriage, comparable to the sins of masturbation and contraception; only at the end of the fortyday period after conception should abortion be considered tantamount to homicide. It was only at the point of ensoulment that the supreme crime could be committed – the crime of usurping the sovereign power of life and death over human existence. There was of course considerable argument around the question of ensoulment, not least on the part of the medico-legal philosophers of the seventeenth and eighteenth centuries. However, Catholic doctrine only changed substantially in the latter part of the nineteenth century, in the context of a growing access to abortion across Western Europe. Interestingly, the reformulation of Church doctrine seems in part at least to have been enabled by reference to developments in the new science of embryology. As the theologian John Noonan remarks: [E]ducated European opinion could not accept Aristotelian biology in light of the new discoveries in biology. Karl Ernest von Baer in 1827 had discovered the ovum in the human female; by 1875

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the joint action of spermatozoon and ovum in generation had been determined. A change in organism was seen to occur at the moment of fertilisation which distinguished the resultant from the components. It was easier to mark this new organism off from the living elements which had preceded it than it was to mark it off from some later stage of its organic growth in the uterus. If a moment had to be chosen for ensoulment, no convincing argument now seemed to support Aristotle or to put ensoulment at a later stage of fetal life. Noonan (1970, p. 38) Perhaps it would be fairest to argue that the encounter with modern embryology did not so much discredit as destabilise the relative certainties of the Aristotelian and Thomist theory of ensoulment. Henceforth, the Church would push the category of properly human life right back to the moment of fertilisation, although the question of whether or not the person in utero was to be considered as potential or actual human life remains a subject of ambivalence even in the most recent doctrinal publications.4 This destabilisation however would definitively refigure abortion as an act of homicide, since the life in question was now defined as being in any case human, whether immediately or by anticipation. Again, Noonan offers the following comment: The slowly changing attitude can be seen in the standard works. The most popular manual for seminary instruction in the nineteenth century was the Compendium of Moral Theology (1864 edition) of the French Jesuit Jean Gury. … in mid-nineteenth century Gury said, ‘The fetus, although not ensouled, is directed to the forming of man; therefore its ejection is anticipated homicide’. In 1869, in the constitution Apostolicace sedis, Pius IX dropped the reference to the ‘ensouled fetus’ in the excommunication for abortion, so that the excommunication now seemed to include the abortion of any embryo. … Thereafter, Thomas Gousset in his work for the practical instruction of confessors treated immediate ensoulment as the opinion to be followed, so that all abortions were homicides. Augustine Lehmkuhl, the German Jesuit who was perhaps the ablest of the nineteenth century moralists, taught that abortion is ‘true homicide’ ‘as follows from what is today the more common opinion that teaches that every fetus is ensouled with a rational soul. Noonan (1970, p. 38)

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The slippage in these interpretations between the idea of homicide by anticipation and homicide pure and simple is worth pausing over, since it coincides so exactly with the structural ambivalence (‘the inclusive exclusion’) that Agamben sees as intrinsic to modern political violence. Translated back into the language of its own traditional philosophy of life, the Church is effectively saying that the sovereign decision can be exercised not only against actualised or ensouled life (life endowed with the intellective or human soul) but also against that life which was formerly relegated to the lowest levels of ensoulment (vegetative, sensitive or pre-human life) and the purest form of potentiality. Indeed, it might be argued that the power of life and death, wielded against the potential life of the fetus, comes to stand in for the supreme act of sovereign violence in modern Catholic philosophy. And inasmuch as this act of violence is ascribed to women in particular, Catholicism comes to represent its own papal authority, indeed the sovereign power of God himself, as somehow frozen in a state of exception and dangerously besieged. In other words, it assumes a voice that could be described as filial and victimised rather than patriarchal and authoritarian. It no longer presents itself as the patrician representative of sovereign power on earth but rather as the infantilised witness to a terrible usurpation of this power. In philosophical terms, this might be described as an immanentisation of the transcendent, inasmuch as it preserves the authority of divine law precisely by maintaining it in a state of exception. However, the Aristotelian/Thomist tradition is only one of the threads in the contemporary pro-life position. More recently, the Catholic Church’s nineteenth century revision of its rulings on abortion has been further complicated by its encounter with the discourse of human rights and again it is necessary to trace the details of this accommodation in order to clarify Agamben’s proximity to contemporary concerns in Catholic theology. In what follows, I outline the political history of this encounter, before turning to Agamben’s own reflections on human rights, twentieth century eugenics and the ethical dimension of bare life.

Genealogy of the right to life The formulation of the contemporary pro-life position has not only drawn on the tradition of Catholic casuistry but has also, since the seventies, very successfully reworked the language of mid-twentieth century human rights discourse, so successfully in fact that it is now almost impossible to evoke the term ‘right to life’ (the founding principle of

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international human rights law) without hearing the ‘right to life’ of the unborn child. What the Catholic Church now refers to as the ‘culture of life’ must therefore be understood as a complex fusion of the Thomist philosophy of life, the concept of dignity developed in medieval canonical law, and modern human rights discourse, all reinterpreted in the light of successive threats to the Church’s authority in matters of reproduction and sexuality. The Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, is the first official document to enshrine the ‘right to life’ in international law.5 Provisions for the ‘right to life’ were subsequently included in Article 6 of the International Covenant on Civil and Political Rights (CCPR), Article 6 of the Convention of the Rights of the Child, Article 2 of the European Convention, Article 4 of the American Convention and Article 4 of the African Charter on Human and Peoples’ Rights. The origins of twentieth-century human rights are routinely assumed to lie with The French Declaration of the Rights of Man and the Citizen of 1789 and the American Declaration of Independence – the latter with its explicit reference to man’s right to life. Yet mid-twentieth century human rights discourse innovates as much as it borrows. In particular the 1948 Declaration is remarkable for its extensive borrowing from the language of the post–World War II welfare state, with its new-found understanding of social security, the right to work and most saliently, the importance of subsidised reproduction in the organisation of the Fordist–Keynesian social state. Thus Article 16.3 declares that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. In line with Henry Ford’s insistence on the foundational importance of the family wage and state-supported motherhood, Article 25.2 stipulates that: ‘Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.’ Incorporated into the very language of human rights discourse is a very particular understanding not only of the intimate linkage between citizenship, nationhood and the natal, as suggested by Hannah Arendt (Vatter, 2006), but also a quite prescriptive interpretation of sexual and reproductive politics. Subject to the productivist logic of the Fordist–Keynesian welfare state, the ‘right to life’, for women, signifies the ‘right’ to state-incentivised reproduction. While the 1948 text of the Universal Declaration of Human Rights does not extend its ‘right to life’ to the life of the unborn child, as will be pointed out by Catholic critics from the very beginning, its assertion of the importance of motherhood occurs in the context of the post–World

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War II Western European welfare state, where legitimate (married) motherhood was indirectly state-subsidised and abortion illegal.6 Despite this pro-natalist context, the Catholic Church nevertheless made very early moves to extend the ‘right to life’ to the ‘unborn child’. In her extensive archival research on the preparatory work for the Declaration of Human Rights, Kirilova Erikkson remarks that an attempt to provide explicit protection for the unborn child was made in the original drafting of Article 3 of the Declaration, while in 1950, delegations from Catholic countries attempted a similar revision of the CCPR. None of these attempts were successful and yet they provided the testing ground in which the Catholic Church could elaborate the ‘right to life’ discourse which would be so successful in its political campaigning against abortion in the 1970s.7 Repeating and refining the move accomplished in the mid-nineteenth century, when the Catholic Church responded to developments in embryology by reworking the neo-Aristotelian definition of human life, the Church now armed itself with the leitmotivs of human rights discourse to argue that the universal right to life should be extended from the born to the unborn as the most vulnerable of human beings. This discourse has considerably hardened since the early seventies, when many countries moved to lift restrictions on abortion, if only partially, in response to feminist demands.8 Melding together a denunciation of twentieth century eugenics, state genocides and international war crimes, the Catholic pro-life movement now speaks to the international community in the very language of human rights, universal equality and essential dignity. What the liberalisation of abortion amounts to, according to the Catholic theologian Paul Marx, is the state-sanctioned suspension of the most fundamental of human rights, the right to life of the unborn.9 Along with the more extreme voices of the right-to-life movement, he concludes that we are now living in a permanent state of emergency, a situation of legalised genocide and de-humanisation that is directly comparable to the Holocaust.

The politics of witnessing – the silent scream In its signposting and interpretation of the key events of political modernity, Agamben’s historiography is remarkably close to that of the Catholic Church. He too identifies the late eighteenth and early nineteenth centuries (Foucault’s threshold of modernity) as the decisive turning point when the modern secular state, in alliance with the new science of biology, usurped the sovereign power of life and death,

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newly identifying and separating the biological as such as an object of political decision. Thus What Remains of Auschwitz, the third volume of Agamben’s three volume Homo Sacer, will refer to Xavier Bichat’s Aristotelian categorisation of levels and kinds of animation to suggest the ways in which modern medicine is able to claim for itself and sustain the ambiguous thresholds of human life, the nascent life of the fetus at one end and the growing insentience of the aging body at the other. Commenting on Bichat’s Recherches physiologiques sur la vie et la mort, he notes that ‘just as in the fetus organic life begins before that of animal life, so in getting old and dying it survives its animal death’ (Agamben, 1999a, p. 152). It is the medical possibility of isolating and as it were suspending in time the thresholds of sentient life, Agamben argues, that will pave the way for future technologies such as the preservation of organs, tissues and body fluids, life support systems and organ transplantation. Such developments are important not only in and of themselves but also in relation to the legal innovations they have occasioned. The example that Agamben continuously returns to is that of brain death – a recently defined medical criterion that has worked hand in hand with the establishment of a peculiar regime of legal exceptions to define the moment in which the rights of personhood can be legitimately suspended, even as life continues. What is this, Agamben asks, but a form of murder by anticipation? The very medical technologies that have made it possible to isolate and prolong life in a state of indefinite survival are also those that reduce the legal person to a state of wholly vulnerable bare life. Also in line with the Catholic Church, Agamben identifies the second key moment of modernity in the rise of the Nazi eugenic state and the subsequent discourse of universal human rights. He thus asserts that the invention of human rights discourse in the wake of the Second World War is as entangled in the biopolitical premises of the modern state as the eugenic and racist practices it sought to criminalise. By designating human biological existence as both the subject and object of universal legal protection, the Universal Declaration of Human Rights participates in the very act of isolation that delivers up bare human life to the violence of direct political decision. In all respects, Agamben’s history and diagnosis of the specific form of modern state violence is strikingly consistent with that of the Catholic Church. Indeed his historiography is caricatural in its adherence to the standard thematics of late twentieth-century Catholic doctrine – the evocation of Auschwitz and state eugenics coupled with a denunciation of biomedicine, medical vegetative states, legal brain death and

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euthanasia. Agamben differs only in his political and ethical response to the presumed violence of the modern state, which consists in a radical refusal of all politics of rights, dignity or legal personhood. The Catholic theologian Paul Marx is typical of right-to-life advocates in insisting on the dignity of potential human life, a dignity that must be reinstated via the recognition of dehumanised potential life as an actual legal and moral person. The right-to-life movement is extraordinarily inventive in its recourse, theatrical or otherwise, to legal representations of the unborn. It is also increasingly successful in translating these representations into actual law, particularly in the United States.10 Agamben on the other hand refuses all politics of dignity. His philosophy insists on the thresholds of human life, those thresholds which escape legal personhood, and calls for ‘an ethics of a form of life which begins where dignity ends’ (Agamben, 1999a, p. 69). Yet the figure of potential human life is curiously absent from Agamben’s most well known work, or rather it is present in the passages where he considers bare life from a philosophical and genealogical point of view (bare life in Aristotle and Bichat) but absent where he draws his most ominous political conclusions. This is not so surprising, given that the topoi of the concentration camp, the usurpation of sovereign power by the secular state and the human rights of the unborn have become staples of right-to-life politics since the seventies. But does this avoidance lend itself to other explanations? I would suggest that Agamben’s muteness on this one question in particular is not simply strategic or hypocritical but rather an entirely logical expression of his politics of witnessing. How to bear witness to the unspeakable violence of the modern state, he asks in Remnants of Auschwitz? The true witness, he concludes, can only ever be mute. ‘What cannot be stated, what cannot be archived is the language in which the author succeeds in bearing witness to his incapacity to speak. In this language, a language that survives the subjects who spoke it coincides with a speaker who remains beyond it’ (Agamben, 1999a, p. 162). The true testimonial is one that bears witness to the ‘silent voice’ (Agamben, 1999a, p. 129), ‘the “infant” in the etymological sense, a being who cannot speak’ (Agamben, 1999a, p. 121), who remains in ‘a position even lower than that of children’ (Agamben, 1991, p. 113). Thus Agamben’s silence on the unborn can be read as an act of melancholic witnessing. A silent scream.

Agamben on the unborn – the in-fantile dwelling Interestingly, there is one context in which Agamben does make explicit the link between his politics of silent witnessing and the status of the

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unborn. This is in one of his earlier works, Language and Death, first published in Italian in 1981. In this study, Agamben is interested in rethinking the conditions of speech in an historical moment in which the authority of the Voice no longer seems to organise language. How can a contemporary philosophy of language conceive of the possibility of voice – for Agamben, an irreducible mark of the human – without reverting to a negative theology, in which the voice becomes the absent signifier (Lacan) or the perpetually deferred trace (Derrida)? Agamben offers the following passage from Oedipus at Colonus as a way of opening up a philosophical alternative: Not being born overcomes all language; but, having come into the light, the best thing is to return as soon as possible whence one came. Oedipus at Colonus, cited by Agamben (1991, p. 90) Commenting on this passage, Agamben writes: Only me phunai, not being born, not having a nature (phusis), can overcome language and permit man to free himself from the guilt that is built up in the link of destiny between phusis and logos, between life and language. But since this is precisely impossible, since man is born (he has a birth and a nature), the best thing for him is to return as soon as possible whence he came, to ascend beyond his birth through the silent experience of death. Agamben (1991, p. 90) For Agamben then, this return to the state of the unborn – which is not simply death but rather the positive potential to not-be – seems to open up an alternative to the philosophy of negativity. ‘Only if the human voice is not simply death, but has never existed, only if language no longer refers to any Voice (and, thus, not even to a gramma, that is, to a removed voice), is it possible for man to experience a language that is not marked by negativity and death’ (Agamben, 1991, p. 95). He conceives of this alternative as a response to the contemporary crisis of foundations, a response to the waning of the politico-theological that does not simply revert to a negative theology: Perhaps the age of absolutely speakable things, whose extreme nihilistic furor we are experiencing today, the age in which all the figures of the Unspeakable and all the masks of ontotheology have been liquidated, or released and spent in words that now merely show the nothingness of their foundation; the age in which all human

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experience of language has been redirected to the final negative reality of a willing that means (vuole-dire) nothing – perhaps this age is also the age of man’s in-fantile dwelling (in-fantile, that is, without Voice or will, and yet ethical, habitual) in language. Agamben (1991, p. 92) Agamben’s philosophy of potential life is not so much a negative theology then (as is often asserted) but rather a theology in suspended animation. A theology in which the frozen son, an iconic in vitro embryo, replaces God the dead father as the source of all language. Whether or not this represents a true – or even interesting – alternative to the politics of fundamental value remains questionable. After all, Language and Death culminates with an evocation of the unborn as the new homeland, a homeland that perhaps never existed but which nevertheless functions – by virtue of its very suspension – as the foundational value of a politics to come: The geography and politics of this land, to which man was not brought by any birth and in which he no longer seems mortal, go beyond the limits that we proposed in this seminar. And yet the experience of language expressed here can no longer have the form of a voyage that, separating itself from the proper habitual dwelling place and crossing the marvel of being and the terror of nothingness, returns there where it originally was; rather, here language … returns to that which never was and to that which it never left. Agamben (1991, p. 97) Language and Negativity represents an important moment in Agamben’s oeuvre in that we find him openly at work here – setting out the problematic from which he wants to escape (negative theology as a response to the crisis of political theology) and evoking the possibilities of an alternative. In the culminating chapters of this work, he formulates the task of his future philosophical oeuvre and outlines the ethical imperative which informs his later, more historico-political reflections in Homo Sacer. Yet this is the last text in which Agamben will mention the unborn. In his later work, the unborn as in-fantile dwelling of ethical experience disappears entirely from the written page, even while the reasons for evoking it would seem to become more and more compelling. In these later philosophical and political studies, Agamben will elaborate on the in-fantile dwelling by exploring its implications for the neo-Aristotelian philosophy of potential life, a move that places him irresistibly on the

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terrain of Roman Catholic debates about the status of the unborn. He will also be interested in the elaboration of human rights discourse as a defining moment of contemporary political violence. Nowhere does he acknowledge the proximity of these questions to the concerns of the Catholic Church in the latter part of the twentieth century. Nor does he explore the historical mutations of the term ‘right to life’ – which in the hands of Catholic theologians has been displaced from a concern with the rights of the (family-centred, heterosexual, reproductive) human to the rights of the potential human. Yet the very internal logic of Agamben’s thought places him squarely within the discursive space of Catholic doctrine – or rather it places him in dialogue with a Catholic theology that is itself in a state of crisis and needs urgently to rethink the question of foundational value. The solution he proposes to the crisis of politico-theology is not a restorative one (as it is for the Church) but a melancholic one. Agamben is the loquacious witness to the silent suffering of the unborn child. [T]his country without pain where no voice is spoken at death, is perhaps that which, beyond the Voice, remains to be thought as the most human dimension, the only place where something like a me phunai is possible for man, a not having been born and not having a nature. Agamben (1991, p. 96) In its refusal to reconcile itself with the decline of onto-theology or the consolations of negative theology, Agamben’s philosophy sets itself the ‘impossible’ task of rendering into language the experience of the silent scream: Philosophy, in its search for another voice and another death, is presented, precisely, as both a return to and surpassing of tragic knowledge; it seeks to grant a voice to the silent experience of the tragic hero and to constitute this voice as a foundation for man’s most proper dimension. Agamben (1991, p. 90) This passage points to the extraordinary consistency of Agamben’s work over the last three decades. What began as an ethics of the human beyond the Voice becomes, in the context of his later, more overtly political work, a reflection on the possibility of witnessing in response to such historical events as Auschwitz. However, it is in his earlier work in the literary and philosophical genre that we find the clearest expression of the political

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problematic that animates his entire corpus. Here it is the ‘unborn’ who appears unequivocally as the ‘tragic hero’ of an age in which onto-theology is assumed to be irremediably in decline. And it is the ‘impossible’ task of rendering into language the voice of the unborn that leads Agamben to his solution of a theology in suspended animation.

On life with and without organs – the difference between Deleuze and Agamben In conclusion, I wish to return to a consideration of the text with which I began this chapter in order to reflect upon some of the productive differences between Deleuze and Agamben. Agamben’s text ‘Absolute Immanence’ (Agamben, 1999c) purports to offer an interpretation of Deleuze’s philosophy of life by unravelling the complexities of Deleuze’s late text Pure Immanence: Essays on A Life (Deleuze, 2005) alongside his earlier investigation into the Spinozan understanding of immanence. In fact, Agamben’s text ends up metabolising Deleuze’s work within the tradition of political theology, performing the seemingly impossible task of reading Deleuze, via Spinoza’s philosophy of life, as an accomplished neo-Aristotelian and interpreter of ‘bare life’. In contrast I wish to unfold the differences between Deleuze’s and Agamben’s philosophy of life, not in order to assert the superior affirmativeness of Deleuzian immanence but rather to point to their different political investments in the present. If, as Foucault argued, modern capitalist politics is intimately invested in the generation and productivity of biological life, then it seems to me that Deleuze and Agamben represent in their different ways the conflicting tendencies that shape the contemporary instantiation of this power. How then can we reinstate some sense of the decisive differences between Agamben and Deleuze when confronted with Agamben’s exegetical tour de force? In Agamben’s hands, the Deleuzian concept of life as immanence is equated through a series of deft sleights of hand with the self-preservative, nutritive life of the plant in Aristotle, which in turn evokes the notion of a divine intellect or nous that thinks itself [t]he most essential character of nutritive life … is not simply growth but above all self-preservation. This means that where the medicophilosophical tradition seeks carefully to distinguish the various faculties of the soul and to regulate human life according to the high canon of the life of the mind, Deleuze (like Spinoza) brings the paradigm of the soul back to the lower scheme of nutritive life. While

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decisively rejecting the function of nutritive life in Aristotle as the ground of the attribution of a subjectivity, Deleuze nevertheless does not want to abandon the terrain of life, which he identifies with the plane of immanence. Agamben (1999c, pp. 236–7) By implication the Deleuzian concept of immanence and the Spinozist philosophy of absolute substance are made to stand in for Agamben’s own Aristotelian derivation of bare life, which he defines, via a process of theoretical dis-attribution, as a purely potential form of life, a vegetative life that might inhere in the human body but is otherwise divested of all personhood. The problem here is that despite his move to strip life of all attributes, Agamben nevertheless remains within the premises of a philosophy of attribution – one that works through the predication of finite form (Aristotle) rather than the expression of modes (Spinoza). Agamben is therefore obliged to gloss over the radical difference between an Aristotelian philosophy of attribution and the Spinozan theory of substance and attributes, despite the fact that Spinoza is very explicit about his refusal of a neo-Aristotelian philosophy of life. Thus in ‘Parts I and II of Descartes’ Principles of Philosophy, Appendix containing Metaphysical Thoughts’, Spinoza offers the following commentary: What the Philosophers commonly understand by life. In order that this attribute, the Life of God, may be rightly understood, it is necessary for us to explain generally what in each thing is denoted by its life. First, we shall examine the position of the Peripatetics. By life, they understand the persistence of the nutritive soul with heat (see Aristotle, de Respiratione, I.8). And because they have feigned three souls, vegetative, sensitive, and intellective, which they ascribe only to plants, the lower animals and men, it follows, as they themselves confess, that all other things are without life. But in the meantime they did not dare to say that minds and God lack life. Perhaps they were afraid that they would fall into its contrary, that is, that if minds and God lacked life, they might be dead. So Aristotle (Metaphysics XI, vii) gives another definition of life, which is peculiar to minds, viz. life is the actuality of the intellect. In this sense he attributes life to God, who understands and is pure act. We shall not have much trouble to refute these doctrines. Spinoza (1985, p. 325)

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Spinoza rejects both of the neo-Aristotelian positions on life – both the idea that life inheres in finite substance, reducible in the last instance to the ‘persistence of the nutritive soul with heat’ and the idea of life as the infinite actuality of God or the intellect (nous). For Spinoza, life is never a predicate that can be attributed to (or separated from) a finite potential substance but rather infinite substance itself, of which there is only one, and of which the attributes and their affections constitute so many expressions: So we understand by life the force through which things persevere in their being. And because that force is different from the things themselves, we say properly that the things themselves have life. But the power by which God perseveres in his being is nothing but his essence. So they speak best who call God life. Spinoza (1985, p. 326) Life then is universal substance – it manifests in the infinite affections and variations of the one infinite substance and refuses all restriction to finite substance or form. Deleuze remains faithful to Spinoza in that he refuses not only to attribute life to the actual, finite form but also to the potential, finite substance (matter without form). Inasmuch as Agamben’s concept of vegetative life represents the ultimate figure of finite potential substance and matter without form it is radically at odds with a Deleuzian ontology of life. It is in this sense too that we can understand Deleuze’s sometimes enigmatic reference to the ‘body without organs’, a reference that begins to make sense when we consider the equivalence between the organ and finite form and substance in the Aristotelian tradition. This equivalence is brought out particularly clearly by Aquinas, who notes that ‘every body being given life has organs’ and that Aristotle’s De Anima is a philosophy of the ‘body with organs’ (Aquinas, 1999, p. 126). Inasmuch as Agamben’s project remains within the attributive and predicative framework of a Thomist philosophy of life, one might be justified in describing him as a philosopher of the organ, albeit an organ in suspended animation.11 Deleuze’s vitalism on the other hand, lies much closer to the natural philosophies of morphological transformation and monstrous contortion developed, for example, by Etienne and Isidore Geoffroy-Saint-Hilaire, scientists who were inspired by the materialist traditions of Leibniz and Spinoza. These natural philosophers were radically at odds with the Aristotelian anatomy of Xavier Bichat, refusing to derive the morphogenesis of the body from a categorisation of forms,

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organs or stages of development and proposing instead the idea of the one body plan or morphological field. Deleuze then is heir to the anti-Aristotelian tradition in natural philosophy, a tradition he associates with the revolutionary and anti-clerical impulses of political modernity. And yet it is remarkable that the Deleuzian philosophy of life – with its multiple borrowings from Lucretius, Spinoza, Bergson and Whitehead alongside various heterodox currents in natural philosophy and biology – seems to prefigure the very forms in which biological life is now put to work and capitalised. By this I mean the forms of contemporary biotechnological invention such as recombinant DNA, stem cell science, regenerative medicine and tissue engineering, all of which seek to mobilise the most mutable, transformative and monstrous properties of biological life. Importantly, these innovations are not merely of a technical nature but also represent the means by which contemporary capitalism puts biological life to work – that is precisely through the mechanisms of transversal recombination, mutant connection and morphological transformation. Their productivity is dependent on the very intensive legal reconceptualisation of invention which has occurred over the past two decades, a process that has greatly extended the realm of patent law, intellectual property rights and copyright. How then are we to work with a philosophy of life that seems to affirm – indeed ontologise – the contemporary forms of biocapitalist production without offering a corresponding critique of its political economy and modes of capture? Moreover, how is it possible to intervene in and contest such regimes of biological production without resorting to something like a nostalgic politics of life, a politics in which the potential human all too often comes to figure the messianic horizon of a foundation to come? If Deleuze’s philosophy seems to fall into the trap of ontologising an emergent regime of production, Agamben’s is surely the most eloquent expression of this nostalgia for the potential human. What I am pointing to here is the double paradox that is opened up by the encounter between Deleuze and Agamben, a paradox that goes beyond their philosophical oeuvre and points to the tensions inherent in the contemporary politics of life and law.

Notes 1. To my knowledge Penelope Deutscher (2008) is the one philosopher who has opened up the question of abortion in Agamben’s work and has similarly drawn attention to the proximity between Agamben’s leitmotivs of power and the symbolic arsenal of the right-to-life movement. Deutscher offers a

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2. 3.

4. 5. 6.

7.

8.

more sympathetic reading of Agamben’s politics than I do, arguing that the right to life’s ‘foetus’ is not comparable to Agamben’s bare life. My argument is rather that the figure of bare life corresponds exactly to the Catholic cultfigure of the ‘unborn’, in the sense that it is derived from the same philosophical and doctrinal genealogy. The difference lies rather in the tenor of Agamben’s theology, which remains as it were in a state of suspension or pure potentiality rather than calling for the reactualisation of the potential person. Thus, bare life is ‘pure potentiality that preserves without acting’ (Agamben, 1999c, p. 234). For detailed accounts of the doctrine of ensoulment and its destabilisation in the nineteenth century, see Noonan (1970) and Baud (2001, pp. 247–69). For a more wide-ranging history of the ‘unborn’, exploring legal, medical and folk understandings of ensoulment and quickening, see Duden (1993). The most significant of these are the Donum Vitae and Evangelium Vitae, published by the Vatican (1987) and (1995). Article 3 states that ‘Everyone has the right to life, liberty and security of person.’ What I am suggesting here is that the illegality of abortion and the implicit nationalism of the welfare state are not incidentally related. Welfare state nationalism presupposes a coercive politics of the reproductive sphere. In her historical work on the French anti-abortion law of 1920, Marie Louise Roberts (2003) has shown that the political invention of the ‘unborn’ is closely related to the renascent and traumatised nationalism that emerged in France after World War I. It should also be noted that the first decades of the twentieth century were also the years in which the first social state reforms such as collective insurance of various kinds were introduced. On the latter point, see Francois Ewald (1986) who notes that the welfare state and mid-twentieth century human rights assume a certain ‘economy of life’. He writes that ‘[t]he relationship of the individual to society is one of generation, kinship, inheritance’, such that the protection of life becomes a political problem on a par with the reproduction of the nation, its continuity into the future (Ewald, 1986, p. 326). In his genealogy of post-World War II bioethics in Europe and France in particular, Jean-Pierre Baud points out that the reproductive politics of the welfare state was perfectly in alignment with the legal regime of Vichy, which in 1942 defined abortion as a ‘crime against society, the State and the race’ (Baud, 2001, p. 296). See M. Kirilova-Eriksson (1993) ‘The Legal Position of the Unborn Child in International Law’, German Yearbook of International Law 36, 86–130 for a detailed discussion of these controversies. On the early attempts to include the ‘right to life’ of the unborn in the Universal Declaration and the International Covenant on Civil and Political Rights (CCPR), see KirilovaEriksson (1993, p. 105 note 78) and (p. 104) respectively. On the rise of the Catholic and Evangelical right-to-life movement in the United States, see R. Petchesky (1990, pp. 241–367) and on a similar history of Catholic pro-life activism in Europe see Venner (2007). Venner is particularly illuminating on the adoption of themes linking the Holocaust, genocide, euthanasia and abortion.

Melinda Cooper 161 9. See P. Marx (1971) The Death Peddlers: War on the Unborn, Past, Present, Future (Collegeville, Minnesota: Human Life International). I cite this book because it has been enormously influential in the development of right-to-life discourse, both for Catholics and Evangelical Protestants. It has been decisive in bringing together human rights discourse with anti-abortion politics. 10. The most recent and notable success of the pro-life movement is The Unborn Victims of Violence Act of 2004 (Public Law, pp. 108–212) otherwise known as Laci and Conner’s Law, which recognises a ‘child in utero’ at any stage of development as a legal victim if he or she is injured or killed during the commission of any of over sixty listed federal crimes. Although the bill explicitly excludes prosecution for abortion, it represents a very significant step in the recognition of the legal personhood of the fetus. As a result of the law, many women have been prosecuted for risking or harming the life of their ‘unborn’ child. Predictably the law has been used most extensively against poor, minority and drug-taking women. 11. This is an argument I have developed in another article, ‘The Living and the Dead: Variations on de Anima’ (Cooper, 2002).

Bibliography G. Agamben (1991) Language and Death: The Place of Negativity, K. E. Pinkus with M. Hardt (trans.) (Minneapolis: University of Minnesota Press). ——— (1998) Homo Sacer: Sovereign Power and Bare Life (Homo Sacer Volume 1), D. Heller-Roazen (trans.) (Stanford: Stanford University Press). ——— (1999a) Remnants of Auschwitz: The Witness and the Archive (Homo Sacer Volume 3), D. Heller-Roazen (trans.) (New York: Zone Books). ———. (1999b) ‘On Potentiality’ in Potentialities: Collected Essays in Philosophy, D. Heller-Roazen (ed.) (Stanford: Stanford University Press), 177–84. ——— (1999c) ‘Absolute Immanence’ in Potentialities: Collected Essays in Philosophy, D. Heller-Roazen (ed.) (Stanford: Stanford University Press), 220–39. T. Aquinas (1999) A Commentary on Aristotle’s De anima, R. Pasnau (ed.) (New Haven and London: Yale University Press). J.-P. Baud (2001) Le droit de vie et de mort: Archéologie de la bioéthique (Paris: Aubier). M. Cooper (2002) ‘The Living and the Dead: Variations on de Anima’, Angelaki: Journal of the Theoretical Humanities 7/3, 81–104. G. Deleuze (2005) Pure Immanence: Essays on a Life (New York: Zone Books). P. Deutscher (2008) ‘The Inversion of Exceptionality: Foucault, Agamben and “Reproductive Rights”’, South Atlantic Quarterly 107/1, 55–70. B. Duden (1993) Disembodying Women: Perspectives on Pregnancy and the Unborn, L. Hoinacki (ed.) (Cambridge, MA: Harvard University Press). F. Ewald (1986) L’Etat Providence (Paris: Grasset et Fasquelle). M. Kirilova-Eriksson (1993) ‘The Legal Position of the Unborn Child in International Law’, German Yearbook of International Law 36, 86–130. P. Marx (1971) The Death Peddlers: War on the Unborn, Past, Present, Future (Collegeville, Minnesota: Human Life International).

162 The Silent Scream J. T. Noonan (1970) ‘An Almost Absolute Value in History’ in The Morality of Abortion: Legal and Historical Perspectives, J. Noonan (ed.) (Cambridge: Harvard University Press), 1–59. R. P. Petchesky (1990) Abortion and Woman’s Choice: The State, Sexuality and Reproductive Freedom, revised edn (Boston: Northeastern University Press). M. L. Roberts (2003) ‘The Dead and the Unborn: French Pronatalism and the Abortion Law of 1920’ in Landscaping the Human Garden: Twentieth Century Population Management in a Comparative Framework, A. Weiner (ed.) (Stanford, CA: Stanford University Press), 91–134. B. de Spinoza (1985) ‘Parts I and II of Descartes’ Principles of Philosophy. Appendix containing Metaphysical Thoughts’ in The Collected Works of Spinoza, E. Curley (trans. and ed.) (Princeton, New Jersey: Princeton University Press), 224–348. The Vatican (1987) Donum Vitae: Congregation for the Doctrine of the Faith, Instruction on Respect for Human life in its Origin and on the Dignity of Procreation. 22 February 1987. http://www.cin.org/vatcong/donumvit.html (accessed January 2006). ——— (1995) Evangelium Vitae. http://www.vatican.va/holy_father/john_paul_ii/ encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html (accessed January 2006). M. Vatter (2006) ‘Natality and Biopolitics in Hannah Arendt’ Revista de Ciencia Politica 26/2, 137–59. F. Venner (2007) L’opposition à l’avortement: Du lobby au commando (Paris: Berg).

10 Points of Departure: The Culture of US Airport Screening* Lisa Parks

For the past several months I have been conducting an experiment at airport security gates, shooting photographs of the Transportation Security Administration (TSA) facilities and screeners to determine how long I can go on before I will be asked to stop. After shooting photos in 12 airports I have received only one warning at the US–Canada border while taking a picture of a twenty-something woman of colour being interrogated by TSA workers after she was physically searched in a nearby makeshift room. I only became visible to the TSA at the moment I witnessed her visibility, but in general as a white woman I go relatively unnoticed in a US security regime largely based on racial profiling. If I were a person of colour it is possible that many of these images would not exist, that my camera would have been taken, the images destroyed, or I might not have even taken the risk in the first place. In any case, it has become clear to me that the airport is no longer just a ‘non-place’ as Marc Auge (Auge, 1995) famously described it over a decade ago, but in the context of the US-led war on global terror it has possibly become ‘the place’, a charged and volatile domain punctuated by shifting regimes of biopower. Two months after the 9/11 attacks on the World Trade Center and the Pentagon, the US Government passed the National Transportation Security Act, which authorised the formation of the Transportation Security Agency to secure the nation’s airports, railways, bridges and highways. Since then the TSA has boldly declared its presence in airports, occupying and branding space as aggressively as McDonald’s and Starbucks. TSA checkpoints have been expanded with multiple lanes and cumbersome new screening equipment. TSA information boards cover airport walls and marquees. Flocks of uniformed TSA agents appear everywhere, some wearing special tags that read, ‘I am 163

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TSA!’ And every few minutes TSA public service announcements blare through loud speakers warning passengers to keep baggage in sight at all times. Indeed, the TSA relies on audio-visual practices that include such things as worker uniforms, behavioural models, placards and signs, loudspeaker announcements, digital simulations, scanning devices and images of passengers and their belongings. In this chapter, I treat the airport checkpoint as a discursive space where the state, the airlines, workers, imaging and sensing technologies and travellers converge to orchestrate and reproduce a set of protocols designed to ensure what the TSA describes as ‘freedom of movement’. Rather than confine my analysis to individuals and their private property, however, I treat the checkpoint as a site of biopower that represents the shift from a paradigm of ‘national defence’ to one of ‘national security’ described by Hardt and Negri. ‘The notion of security’, they explain, ‘signals a lack of distinction between inside and outside, between the military and the police. Whereas “defense” involves a protective barrier against external threats, “security” justifies a constant martial activity equally in the homeland and abroad’ (Hardt and Negri, 2004, p. 21). Treating the airport checkpoint as part of the new security regime, my analysis concentrates on three issues. First, I focus on the working conditions of TSA employees whom the Federal Government pays to screen passengers to accentuate the enduring physicality of their labour despite the technologisation of the checkpoint. Second, I explore new techniques of inspection implemented at TSA checkpoints to delineate practices of ‘close sensing’ that establish seamless continuities between looking and touching/handling/manipulation. Finally, I explore the object-oriented visual economy that takes shape at the checkpoint, and I suggest that the X-ray sequence ultimately exposes the state’s inability to regulate the flow of objects and matter in the age of globalisation. In short, I suggest that the searches, exposures and probes that define this threshold should not be only understood in terms of individual privacy invasions, but rather as an opportunity to focus on structural changes in federal labour, state surveillance and globalisation that have emerged since 9/11. The TSA’s multi-media, multi-sensory and material practices illuminate the ways in which the histories of media technologies are interwoven with that of the state and its security. At different moments radio, television and digital technologies have been developed and used within military and law enforcement institutions in efforts to protect national territory and citizens. Technologies such as signal intelligence, closed circuit monitoring, emergency broadcasting and digital profiling

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have all been used to advance officially defined state security interests. These issues arguably take on greater urgency after 9/11 with the passage of the Patriot Acts, which authorised new regimes of observation and inspection in the US and beyond. As Patrice Petro and Andrew Martin suggest in Rethinking Global Security, ‘In the twenty-first century, the politics of war, terrorism, and security can hardly be separated from the practices and processes of mediation, which continue to expand and intensify. . . . Both fictional and fact based threats to the U.S. and global security helped to create and sustain a culture of fear, with far reaching effects’ (Petro and Martin, 2006, p. 1). Understood in this context, airport screening involves a set of mediation processes that have been expanded and intensified to fit the prerogatives of an anxious state.

The labour of searching for something Airport screeners were first implemented in US airports during the 1970s after a series of skyjackings around the world aroused concerns about airline security. In 1972 the Federal Airport Authority (FAA) made it mandatory for airlines to search passengers and their carry-on bags and magnetometers were installed in US airports. After the 1988 bombing of Pan Am flight 103 over Lockerbie in Scotland, airport security intensified and the FAA began to screen computers and radios more carefully on flights coming from Europe and the Middle East. (You may recall that a bomb was placed in a radio given to a young woman and programmed to explode in mid-air.) Despite bolstered security measures, by the end of the 1990s members of the US Congress began to express concern about airport screeners. At a Congressional hearing on 16 March 2000 political leaders identified the airport screener as the ‘weak link’ in airport security because of poor training, high job turnover, uncompetitive compensation and benefits and a failure among private contractors to conduct rigorous background checks and random drug testing (U.S. House, 2000, p. 28). During this period, commercial airlines paid private contractors to operate and staff airport security checkpoints in the nation’s airports. A comparative study with the UK, Belgium, the Netherlands, Germany and Canada found that US airport screeners were outclassed by better trained, higher paid and professionalised screeners in other countries. In 2000, airport screeners in the US were making an average of US $5.25 to 6.75 per hour, often leaving their jobs just after being trained to take jobs flipping burgers at fast food outlets in the same airport. The job turnover rate at some airports, including Chicago O’Hare, was

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400 per cent. Screeners worked long hours – often twelve-hour days – scrutinising 20-year-old black-and-white monitors that were very difficult to see (U.S. House, 2000, p. 37). The labour of the airport screener was described at a Congressional hearing as a ‘repetitive, monotonous and stressful task that requires constant vigilance’ (U.S. House, 2000, p. 8). A year before 9/11 the consensus in the US Congress was that ‘inadequate training and low morale among screeners threaten safety and security in the skies ….’ (U.S. House, 2000, p. 3). After 9/11 Bush signed the National Transportation Security Act and the number of screeners surged from 8000 private workers in the year 2000 to 53,000 federal employees in 2003. During this period there was a concerted effort to standardise training, increase salary and benefits and produce a professionalised class of airport screeners. The regime of screening and scrutiny at the gate became more intrusive as passengers were not only asked to pass through magnetometers and place their baggage on an X-ray machine, but over time were asked to remove belts, coats and shoes, empty their pockets and submit to wand sweeps or pat downs by TSA officials. Some passengers were also randomly selected for further searching and questioning. The protocols and interpersonal dynamics at airport checkpoints changed dramatically after 9/11, and the gate has become a space of friction for many reasons. Passengers are annoyed by the invasiveness of the new procedures. Long lines cause delays and sometimes travellers miss their flights. Personal items are regularly and increasingly confiscated and never returned. The TSA has earned nicknames like the Tourism Suppression Agency and Thousands Standing Around (Leff, 2005). TSA screeners have even entered the business of mood control, for as of 2004 they can fine passengers for ‘non-physical interference’. If ‘attitude’ becomes an ‘aggregating factor’ the TSA is authorised to issue civil penalties ranging from US $150–10,000 (Sharkey, 2004). A newly-wed woman bringing a wedding cake knife in her carry-on as a memento was fined US $150 (Joyner, 2004). Cecelia Beaman, a 57-yearold middle school principal and grandmother from Seattle taking care of 37 kids on a field trip to California, put a bread knife that she made sandwiches with in her bag en route to the airport and forgot to take it out before the checkpoint. She was fined US $500 and put on the terrorism watch list (Reece, 2005). Other passengers with names that resemble those on the no-fly list have been treated as suspect, detained and/or denied transit (such as Catherine Stevens, wife of US Senator Ted Stevens, whose name is like Cat Stevens, who was alleged to have ties to Muslim fundamentalists).

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While checkpoint tensions have escalated, public discussions of them tend to privilege the civil liberties of the consumers/travellers over those of this new class of federal employees, many of whom only have high school educations and come from working class and non-white ethnic backgrounds. Alongside a flurry of Congressional hearings, surveys have been conducted regarding TSA morale, working conditions and effectiveness, revealing widespread discontent among TSA screeners. A recent report included comments from 11,000 TSA workers that were so negative that the Federal Government, despite several requests, refused to make them public and only released the quantitative parts of the study (POGO, 2006; Arsenault, 2005). For instance, TSA workers sustain more injuries on the job than all other federal employees. In 2004 they were injured four times as often as construction workers and seven times as often as miners (Strohm, 2005). One study found that TSA workers handling checked luggage lifted one bag every seven seconds, and most of them were more than fifty pounds (Frank, 2005b). Not surprisingly, the most common injuries are muscle and back strains due to heavy lifting, tendonitis, hernias and cuts and lacerations sustained while reaching into bags for sharp objects. Between 2002–2004, US taxpayers paid US $67 million in expenses related to airport screeners injured on the job. Last year alone, their injuries and lost wages cost the Federal Government US $52 million (Frank, 2005a). In 2005 29 per cent of all airport screeners were injured on the job and 250,000 days of work were missed, which has caused staff shortages and heightened concerns about security (Frank, 2005b; Barr, 2006). The checkpoint may be increasingly technologised and US taxpayers have subsidised billions of dollars worth of screening equipment in recent years, but the TSA screening process relies more heavily upon manual labour than ever, requiring workers to carry heavy bags, check tickets, shuffle grey bins, search carry-ons, confiscate items, frisk passengers and operate machinery. Thus the airport checkpoint has become a state-led exercise in hand–eye coordination where workers apply manual and ocular labour to minimise risks. In addition to physical injury, there must be profound ontological confusion at the checkpoint. TSA workers are regularly subject to a variety of secret tests by undercover officers and to experiments by citizen vigilantes. The so-called Red Team is a band of secret agents that arrives at security gates to evaluate operations covertly and often attempts to pass through with illegal objects, whether guns, bombs or knives. In one exercise a woman secured a gun to her upper thigh under a thick bandage and after it was detected through wanding, she was asked about it and claimed she had staples

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from a recent surgery and was allowed to pass through (U.S. House, 2003). James McNeil of the security firm McNeil Technologies smuggled a gun past the gates in Rochester and then testified to Congress about his stunt to make the case that security experts do not even know what we need to train screeners for (U.S. House, 2003). A 20 year-old college student, Nate Heatwole, managed to get prohibited items including box-cutters, knives and liquid bleach past airport screeners and onto aircraft, claiming he was intending to test TSA procedures. After doing this successfully on several flights, he emailed the TSA to notify the agency of his experiment and was subsequently fined US $500 and put on probation (U.S. House, 2003). While these checkpoint games are designed to keep the TSA on their toes, they reveal that imagining and staging security breaches has become a national preoccupation and an obsessive management ritual. Besides being subject to covert operations, each day on the job airport screeners are posted at the X-ray monitor and they must decipher between ‘real’ and ‘fake’ threats. The Threat Image Projection (or TIPS) program, which is used at all airports, arbitrarily superimposes simulated images of contraband, bombs and other dangerous materials on X-ray images of innocent passengers’ carry-on bags as they pass through the machine. There is an archive of 4000 images that can be randomly and automatically inserted. As one systems manufacturer, Rapiscan Systems explains, ‘an “escape” is recorded if the checkpoint operator does not respond to the virtual threat projection within the allotted time period’ (Rapiscan, 2006a). In some cases, TIPS has caused enormous confusion. A Seattle Times investigation found numerous incidents in which threat images were identified by screeners, but bags ‘escaped’ without being physically searched and thus entire terminals filled with passengers had to be evacuated and re-screened (‘Airport Insecurity’, 2004). Not only is there a strong likelihood, according to statistics, that a TSA worker will be injured on the job, but such operations constitute a kind of stateside psy-ops – that is, psychological operations that are designed to generate profound confusion among federal employees and passengers about the status of ‘the real’ at the very moment when deciphering it could be a matter of life or death. The checkpoint is used to stage the state’s struggle to define, test and regulate the shape-shifting form of the security threat. TSA workers are paid to partake in a state-sponsored guessing game orchestrated by security experts and the managerial class who concoct all kinds of potential violations which TSA workers on the frontlines are charged day after day to detect. Even though each day dangerous objects pass through without incident and

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each day actual attacks are imagined that are not carried out, the stateled trickery, gaming, and managed chaos at the checkpoint is likely to normalise a fundamental scepticism about the status of all people and things for travellers and workers alike.

Close sensing In addition to articulating a new regime of labour relations, the airport checkpoint exposes new technologies of sensing, scanning and detection. Collectively, these techniques might be referred to as close sensing – a set of practices that serve as the counterpoint to what I have explored elsewhere as satellite remote sensing (Parks, 2005, pp. 74–107) in that they are oriented towards the minute and the personal rather than the geographic and panoramic perspectives of the earth’s surface. Close sensing involves the use of magnetometers, X-ray machines and tracesensing devices to scrutinise personal belongings and their fragments, the body and its interior. In this sense, close sensing is as an extension of the kinds of practices that Lisa Cartwright (1995) discusses in her history of medical imaging where film, X-ray and other technologies combined with scientific and popular imaginaries to make the body visible in new ways. What distinguishes close sensing from other forms of surveillance is the authority the state has granted to supplement machine vision with touch. According to TSA guidelines, all belongings or bodies that are handled must be scanned with a machine first. TSA workers rely on so-called screener assistant technologies such as ‘Target’, that use software algorithms to search X-ray images for dangerous materials – ‘the algorithm analyzes the mass, size, and atomic number of items in the image against preset thresholds; objects that match the defined criteria are identified for the operator’ (Rapiscan, 2006b). TSA screeners also use image-processing programs with names like Crystal Clear, which can zoom in for a closer view and/or perform organic–inorganic stripping. The function of the checkpoint machine, then, is to direct the TSA agent to apply his/her manual labour to specific bodies and objects that pass through the gate. It is impossible, then, to separate the visual search from acts of handling, which are often conducted with conspicuous blue latex gloves, the iconic signature of the TSA. To foreground their manual interventions, TSA workers also leave ‘notices of baggage inspection’ in checked luggage that is physically searched. This tactile supplement to what Paul Virilio would call ‘eyeless vision’ (Virilio, 1989, p. 3) has transformed the checkpoint into a physically charged locale in which passengers hurriedly strip off layers of clothes,

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remove their shoes and empty out their pockets to avoid further inspection. These acts of disrobing, which used to occur in the bedroom, are now performed while in transit and in full view, not only in front of TSA agents, but other passengers as well, so that gender and sexuality are repeatedly invoked as sites for the assertion of authority. The physical search has aroused much controversy as thousands of complaints have been filed with the TSA and discussions abound in the press. There have been letters to newspaper editors and articles re-telling stories about TSA screeners looking down the back of women’s pants, cupping their breasts, or groping body parts during physical searches. More aggressive pat down policies were implemented in September 2004 after two Chechen women carrying explosives allegedly caused two plane crashes in Russia (Goo, 2004). TSA officers were instructed to perform more intrusive pat downs and to look for ‘irregularities in a person’s natural shape or contour’. One woman reported having her breasts touched as the TSA agent loudly asked, ‘Are those real!?’ The agency received 250 formal complaints in the month after the policy went into effect (Associated Press, 2004). A controversy has also bloomed around the use of so called ‘X-rated X-rays’ or backscatter machines that use high energy X-rays and allow screeners to see through passengers’ clothes and detect someone that might be carrying a gun or bomb (Sharkey, 2005). The machines cost from US $100–200,000 a piece and are also the kind of devices used to screen South African diamond miners going home at the end of a workday. There are concerns not only about this high visibility of the body that renders breasts and genitalia in detail, but also about exposure to high levels of radiation. The Electronic Privacy Information Center (EPIC) and American Civil Liberties Union (ACLU) argue that backscatter inspection constitutes a major privacy invasion and should be banned since it ‘compels passengers to submit themselves to a level of bodily exposure that almost everyone would consider is indecent and many find religiously or ethically offensive’ (EPIC, 2005). Nevertheless, backscatter machines have already been implemented in Baltimore/Washington, Dallas/Fort Worth, Jacksonville, Florida, Phoenix, San Francisco and London Heathrow. To encourage the public to accept the idea, in 2003 the director of the TSA security laboratory, Susan Hallowell, strolled through a backscatter machine to demonstrate its efficacy in detecting the gun and bomb she had hidden under her clothes. Trying to minimise the issue of privacy encroachment, she suggested the only problem is that ‘it makes you look fat and naked’ (Miller, 2003). The TSA has used the high volume of women’s

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complaints regarding physical searches to legitimate the use of these backscatter machines, claiming they perform a ‘virtual search’ and will make pat downs unnecessary. Media scholars Laura Marks (2002) and Margaret Morse (1998) have referred to the relation between looking and tactility as haptic visuality, where the eye functions as an organ of touch. They both develop the concept primarily in relation to experimental media art and minority media. As Marks explains, ‘Haptic visuality, a term contrasted to optical visuality, draws from other forms of sense experience, primarily touch and kinesthetics’ (Marks, 2002, p. 2). She invokes the haptic to critique post-Enlightenment rationality and its privileging of distant and detached modes of observation and sets out to ‘restore a flow between the haptic and the optical that our culture is currently lacking … [and] to explore how a haptic approach might rematerialize our objects of perception ….’ (Marks, 2002, p. xiii). While airport screening practices structure continuities between looking and touching, they do so not to generate multi-sensory aesthetics and criticism, but rather to perform a security function for the state. In this way, the close sensing that occurs at the checkpoint shares more in common with medical imaging and diagnostics since it involves the machine’s identification of potentially dangerous objects that are then inspected with workers’ hands and either contained or eliminated. The institutionalisation of close sensing at checkpoints in the US and abroad means that there are now more people in the world whose bodies and belongings have been scanned by machines and touched by workers than ever before. It is important to note, however, that those who are most closely sensed are not necessarily screened by closed circuit monitors, but are taken behind closed doors. Makeshift rooms exist for more intensive inspections and these spaces are cordoned off beyond public view. The visual is given over to the haptic, the tactile. In one sense, the checkpoint is a more protected place in terms of civil liberties because of the over-exposures that it affords, yet it also functions as a system for selecting or filtering those who are subject to even closer scrutiny, where seeing not only becomes touching but may become torture. Therefore we cannot separate the practice of stateside close sensing at the airport checkpoint from the more excessive and violent versions of scrutiny and interrogation that have emerged in the midst of the US-led war on global terror. In some cases individuals have been apprehended and rushed through airport security gates only to be put on CIA ‘torture flights’. In December 2005 new stories broke about hundreds of CIA flights that have funnelled Islamist terror suspects from

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Europe and the US to the Middle East (Taylor, 2005; Goodman, 2004; Hirsch et al., 2005). Close sensing, then, involves the hand–eye coordination of state power and may be articulated at checkpoints or in midair and may be applied to different bodies and to varying degrees. Its most extreme version may be in Abu Ghraib prison or Guantanamo Bay where detainees have been subject to the same kinds of scanning, imaging, profiling techniques and then brutally tortured and photographed. Airport screening practices might be understood as symptomatic, then, of a broader security regime in which looking authorises touching and touching can become torture. Haptic visuality may therefore take on dangerous dimensions when it is articulated by a vengeful state.

Closed circuits and sharp edges Developing a textual or semiotic approach to study close sensing is a difficult proposition since civilians are not allowed to stand near or behind the X-ray machines at checkpoints. Using simulations, however, it is possible to imagine and delineate the visual form of the X-ray screening strip – the sequence of X-ray images that represents personal affects as they pass on a conveyor belt whose rhythms and densities are shaped by flight schedules, the work week, holidays, machine speeds and TSA staffing. An MSNBC website gives us a sense of this visual form as it features a two-minute interactive simulation, inviting the user to identify various threat images that appear including a gun, knife and explosives while passengers tell you to hurry up. Like an airport screener, the user can pause and zoom in/out on the image or turn it from black and white into a colour version that differentiates organic and inorganic matter. The closed-circuit monitor delivers a slide show of personal belongings splayed open by X-rays for the eyes of the operator(s). When I tried the simulation myself I was overwhelmed by how difficult it was and was struck by the odd application of such a high-stakes gaze to a stream of ordinary objects. Purses, briefcases and backpacks rapidly pass by, containing objects such as pill bottles, coins, keys and cell phones, but there are also knives, guns and explosives that the screener is tasked to recognise. As the screener-in-training inspects the materials that pass, the voices of angry passengers can be heard on the soundtrack yelling, ‘This is taking for ever!’ ‘My grandma could do a faster job than that!’ or ‘Come on, I don’t have all day!’ In two minutes I screened 22 bags, nine of which contained threats. I identified 77 per cent of them correctly, earning a ‘C’, and was warned at the end of my session, ‘Letting even one threat by would get a fully trained screener fired.’ Given the sheer

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volume of objects to be scanned it is not surprising that forbidden items sometimes pass through the gate unnoticed. No matter how diligent and well-trained the TSA staff, the labour of searching for something is hard work and the eyes tire when faced with a never-ending display of things to examine. When passing through checkpoints myself I have observed how these screens are monitored, and I have seen two or three workers cloistered around them at times and one person falling asleep at others, a testament perhaps to the condition of high alert banality that characterises this visual form. Whatever the case, the checkpoint X-ray machine generates the most dense object-oriented visual economy we have seen yet, resonating with what Jonathan Beller has called the cinematic mode of production. ‘Cinema’, he suggests, ‘refers not only to what one sees on the screen or even to the institutions and apparatuses which generate film but to the totality of relations which generates the myriad appearances of the world. . . . Cinema means the production of instrumental images through the organization of animated materials. These materials include everything from actors, to landscapes, to populations, to widgets, to fighter planes, to electrons. Cinema is a material practice of global scope, the movement of capital in, through, as image’ (Beller, 2002, p. 67). While one could argue that the airport X-ray machine is not exactly cinematic, I am intrigued by Beller’s provocatively totalising account of the cinema (or audio-visuality) because it relates, I think, to the way airport X-ray sequences expose the steady pace of capital accumulation. What appear on the monitors are the faint traces of consumer goods at once being protected and scrutinised as potentially dangerous objects. The X-ray machine generates a spectral slideshow of twentyfirst century consumerism, so that it becomes a gothic cousin to the television commercial manifesting the trace of already bought and used commodities moving through the world. As belongings pass across the conveyor belt they pivot somewhere between possession and loss, safety and danger, significance and oblivion. Akira Lippit suggests that the X-ray provides a visual registration of invisibility, explaining, ‘X-rays record only the shadows of a secret, its trace, the place where it hides. Not so much an exposure as a disclosure, the X-ray reveals secret visibility as a mode of secret visuality, showing what nonetheless remains invisible, without operation or accident.’ (Lippit, 2005, p. 32). In the case of airport screening, the X-ray may disclose that lurking within capital accumulation are disastrous threats to its future. Each X-rayed object becomes a reminder that the capacity to see, to consume and to move might not last.

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While each object is X-rayed individually, the unending collection of objects X-rayed produces a broader inventory of the things we think we need to have with us – currency, identification cards, eyeglasses, umbrellas, snacks, pills, diapers, tampons, baby strollers, makeup, cigarettes, laptops, ipods, cell phones, shoes, water, documents, magazines, jewellery, and so on – the accoutrements of travel. When all of our personal things are reduced to transparencies, they are not just objects to be looked at, they become symptomatic of a more permeating gaze, in which the state not only reserves the right to touch what it sees, but also uses its visual capital to evacuate temporarily the vitality or materiality of objects as part of the process of trying to reduce or eliminate threats to its own future. Put another way, the closed circuit X-ray sequence is symptomatic of the state’s increasing inability to control and regulate the flow of matter in general, whether weapons, drugs, currency, consumer goods and/or natural resources in the context of globalisation.1 Upon the conveyor belts of airport screening checkpoints, then, there is a larger drama unfolding about the unstable position of state not only in a war on global terror but in a world of uncertain materialities, mutable things and camouflaged objects, where a cell phone can be a gun, a lipstick can be a knife, a teddy bear can carry a weapon, a condom can be a vessel for drug-running and a shoe can be a ticking time bomb. Consider some of the objects that have been confiscated at TSA gates in the US. A knife disguised as a lipstick. A handgun inserted inside a radio. A teddy bear with its backside slashed open with no indication as to what was inside. Between 2002 and 2005, the TSA confiscated 18 million objects (Novotny, 2005). After these objects are taken away from passengers, they are sorted and auctioned in bulk to the public at government warehouses. Not surprisingly, some of these confiscated materials now recirculate through the Web-based economy. When I searched eBay in early 2006, I found 138 entries for TSA-seized knives, scissors, nail clippers, corkscrews, wrenches and pliers. One person describes an ‘NTSA lot of 8 pounds of scissors’ indicating ‘most are made in China, Japan and Korea’ reminding us of the broader global economy from which they emerge. Another describes a ‘crappy bag of old scissors’ as ‘airport seizure property’, suggesting its history of confiscation gives it added value. Indeed, it was just such a descriptor that prompted me to buy a TSA-confiscated pocketknife for US $5.00. The knife was manufactured in Germany, sold to someone who ended up in a US airport after 11 September 2001, was intercepted by the TSA, sold again at a US government auction to second-hand dealers in Las Vegas, who then sold the knife to me on eBay. The transit history of this object alone is

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suggestive of the odd economies of redistribution that have emerged as a side effect of the war on terror. So what do we make of the TSA’s interception and recirculation of our sharp edges? The events of 9/11 enabled a scenario to emerge in which US political and security officials could believe in and promote the idea that sharp edges in mid-air were more threatening than anything else, more threatening than a reckless leader in the White House, more threatening that a US foreign policy determined by unilateralism, more threatening than a global economy contingent upon the ebbs and flows of oil. This idea persists. Just recently a US Congressional leader spiritedly introduced federal legislation called the ‘Leave All Blades Behind Act’. Yet we all know that one person’s fist can be just as deadly as another’s knife. And anyone could turn a handful of coins and an empty sock into something that could wreak havoc. Simply put, if the soft spot in the US security system is the sharp knife wielded in mid-air, then the airport checkpoint exposes the US Government’s wilful blindness to the current state of global affairs.

Unending turbulence In this chapter, I have treated the checkpoint as a discursive space where we can detect shifts in biopower in the context of a changing world political order. I have suggested that TSA procedures have produced problematic working conditions for federal employees who are breaking their backs while trying to keep knives out of the air, generated a new regime of inspection where looking becomes continuous with touching/handling/manipulation, and, finally, revealed changes in the representation of material objects where what may ultimately be seen is the state’s struggle to control capital accumulation and circulation. At the airport checkpoint, security involves everything from screeners’ back muscles to secret agents’ breach scenarios, from trace detection devices to X-rayed pocketknives, from blue latex gloves to CIA torture flights. Much more than a non-place, the airport has become a vital place where security, technology and capital collide and spur the US social body to recognise its terrorising interiority. The turbulence caused by new airport screening practices continues. As I was finishing this chapter, the TSA announced a new policy banning liquids and gels on all flights to and from the US. This policy was based on an alleged terrorist plot to embed bombs in ordinary objects that would be carried on planes to the US leaving from England. This meant that passengers now not only had to leave their blades behind,

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but their bottled water, toothpaste, lotion, eye drops and cough syrup as well. During the months of August and September 2006 airport screeners’ trash bins toppled over with containers full of liquid and gel as perturbed passengers reluctantly complied with the abruptly implemented rules. At the Frankfurt airport in August 2006 I asked the head airport screener whether I could take a photo of the abandoned objects pouring out of the trashcan behind her and was told I would have to get written permission from the Bavarian government to do so. No object is un-threatening in the war on global terror – whether me, my camera or the deodorant, hairspray or lipstick that lay in the trash. As of October 2006 the TSA carry-on regulations had changed yet again and sandwich-sized Ziploc bags filled with three-ounce containers of liquids and gels were allowed. Bottled water could be taken onboard as long as it was purchased beyond the checkpoint. There is a price to pay for secure commodities – in my case, it was US $2.50 for a safe sip of water in mid-air. At Los Angeles International airport in October 2006 TSA staff ordered me to throw my US $1.00 bottle of water in the trash and told me not to worry because I could purchase one for US $3.50 just beyond the checkpoint. Thus whether water or oil, the cost of security is embedded in the exchange value of the commodities we consume. As much as airport screening may isolate dangerous objects, it also exposes the collisions of capital, media and security that increasingly punctuate our lives.

Notes *This paper was presented at the Forensic Futures Conference at the Law School of Birkbeck College in London and the Constant Capture Conference at the University of Wisconsin-Milwaukee in 2006 where I benefited from the questions and feedback of many participants. I would like to thank Dick Hebdige, Jim Schwoch, Jack Bratich, Rosi Braidotti and Amelie Hastie for also providing helpful comments and encouragement. 1. For an interesting take on this issue see Moses Naim (2005).

Bibliography ‘Airport Insecurity’ (2004) Seattle Times Special Report, 11 July. Accessed: March 2006. http://seattletimes.nwsource.com/news/nation-world/airportinsecurity/ breaches/. M. Arsenault (2005) ‘TSA Survey Shows Agency in Turmoil, Screeners Suffering’, Screeners Central, 10 September. Accessed: October 2006. http://www.tsa-screeners.com/start/modules.php?op=modload&name=News&file=article&sid=2317.

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——— (2005) ‘What Screeners Central is doing FOIA’ Screeners Central, undated. Accessed: February 2006. http://tsa-screeners.com/start/modules.php?op=mod load&name=News&file=article&sid=3738. Associated Press (2004) ‘Women Complain About Airport Patdowns’, MSNBC, 30 November. Accessed: March 2006. http://www.msnbc.msn.com/id/6617853/. M. Auge (1995) Non-Places: Introduction to an Anthropology of Supermodernity (London: Verso). S. Barr (2006) ‘In Unusual Request TSA Seeks $10 million to Address High Turnover’, Washington Post, 10 February, p. B02. J. Beller (2002) ‘Kino-World: Notes on the Cinematic Mode of Production’ in N. Mirzoeff (ed.) Visual Culture Reader 2.0 (London and New York: Routledge), 60–85. L. Cartwright (1995) Screening the Body: Tracing Medicine’s Visual Culture (Minneapolis: University of Minnesota Press). Electronic Privacy Information Center – EPIC (2005) ‘Spotlight on Surveillance: Transportation Agency’s Plan to X-ray Travelers Should be Stripped of Funding’, June. Accessed: March 2006. http://www.epic.org/privacy/surveillance/spotlight/0605/. T. Frank (2005a) ‘Airport Screeners’ Strains, Sprains Highest’, USA Today, 10 January. Accessed: February 2006. http://www.usatoday.com/news/ nation/2006-01-10-TSA-injuries_x.htm. ——— (2005b) ‘Demands of the Job Strain Airport Screeners, Airport Security’, USA Today, 23 February. Accessed: February 2006. http://www.usatoday.com/ travel/news/2005-02-23-tsa-strained_x.htm. S. K. Goo (2004) ‘Airport Pat-Down Protocol Changed’, Washington Post, 23 December, p. E01. A. Goodman (2004) ‘US Operating Secret “Torture Flights”’, Democracy Now, 17 November. Accessed: March 2006. http://www.democracynow.org/article. pl?sid=04/11/17/1525208. M. Hardt and A. Negri (2004) Multitude: War and Democracy in the Age of Empire (New York: The Penguin Press). M. Hirsch, M. Hosenball and J. Barry (2005) ‘Aboard Air CIA’, Newsweek, 28 February. Accessed: February 2006. http://www.msnbc.msn.com/id/6999272/ site/newsweek/. J. Joyner (2004) ‘Bad Attitude Punishable? Banned Items in Luggage Bring TSA Fines’, Outside the Beltway, 20 February. Accessed: October 2006. http://www. outsidethebeltway.com/archives/2004/02/bad_attitude_punishable/. G. Leff (2005) ‘Tourism Supression Agency’, POSWID, 2 March. Accessed: October 2006. http://www.dontpanic-ii.org/posiwid/2005/03/tourism-suppressionagency.html. A. Lippit (2005) Atomic Light (Shadow Optics) (Minneapolis: University of Minnesota Press). L. Marks (2002) Touch: Sensuous Theory and Multisensory Media (Minneapolis: University of Minnesota Press). L. Miller (2003) ‘Airport Screeners May Get X-ray Vision’, Associated Press, 25 June. Accessed: October 2006. http://campaignfortruth.com/Eclub/210703/ CTM-airportxray.htm. M. Morse (1998) Virtualities: Television, Media Art and Cyberculture (Bloomington: University of Indiana Press).

178 Points of Departure M. Naim (2005) Illicit: How Smugglers, Traffickers and Copycats are Hijacking the Global Economy (New York: Double Day). M. Novotny (2005) ‘TSA on E-Bay’, MSNBC, 28 April. Accessed: March 2006. http://www.msnbc.msn.com/id/7670500/. L. Parks (2005) Cultures in Orbit: Satellites and the Televisual (Durham: Duke University Press). P. Petro and A. Martin (2006) Rethinking Global Security: Media, Popular Culture, and the ‘War on Terror’ (New Brunswick: Rutgers University Press). Project on Government Oversight (POGO) (2006) ‘Survey of Airport Screeners Shows Problems at TSA’, 20 January. Accessed: March 2006. http://pogoblog. typepad.com/pogo/2006/01/survey_of_airpo.html. Rapiscan (2006a) ‘Advanced Technologies / TIP and TIP Net’. Accessed: March 2006. http://www.rapiscansystems.com/tipnetn.html. ——— (2006b) ‘Advanced Technologies/Target’. Accessed: March 2006. http:// www.rapiscansystems.com/target.html. K. Reece (2005) ‘This is Not Right’, KOMO TV News, Des Moines, Iowa, 1 June. Accessed: February 2006. http://www.komotv.com/news/story.asp?ID=37150. J. Sharkey (2004) ‘Airport Hurdles and the Nonflying Nuns’, The New York Times, 2 March, p. C9. ——— (2005) ‘Airport Screeners Could Get X-Rated X-ray Views’, The New York Times, 24 May, p. C5. C. Strohm (2005) ‘Lawmakers Seek Investigation of TSA Labor Abuses’, GOVEXEC. com, 4 October. Accessed: October 2006. http://www.govexec.com/story_page. cfm?articleid=32482&dcn=todaysnews. R. N. Taylor (2005) ‘MPs Dismiss Torture Flight Denial’, The Guardian, 2 December. Accessed: February 2006. http://politics.guardian.co.uk/foreignaffairs/story/0,11538,1655980,00.html. U.S. House (2000) Hearing Before the Subcommittee on Aviation of the Committee on Transportation and Infrastructure, Aviation Security (Focusing on Training and Retention of Screeners). 16 March (Washington: Government Printing Office). ——— (2003) Hearing Before the Committee on Government Reform, Knives, Box Cutters, and Bleach: A Review of Passenger Screener Training, Testing and Supervision, 20 November (Washington: Government Printing Office). P. Virilio (1989) War and Cinema (London: Verso).

11 The Spectacle of War: Security, Legitimacy and Profit Post–9/11 Ian Buchanan and Laura Guillaume

On the fifth anniversary of the Iraq invasion, Martha Raddatz from ABC’s Good Morning America interviewed Vice President Cheney about progress in the war. The result was one of the most stunning admissions in recent memory of the irrelevance of ‘the people’ to the political process, particularly as it concerns war. CHENEY: On the security front, I think there’s a general consensus that we’ve made major progress, that the surge has worked. That’s been a major success. RADDATZ: Two-third of Americans say it’s not worth fighting. CHENEY: So? RADDATZ So? You don’t care what the American people think? CHENEY: No. I think you cannot be blown off course by the fluctuations in the public opinion polls. Clearly Cheney is oblivious or indifferent to the fact that the war in Iraq has lost its legitimacy. In the past five years, support for the war has plummeted from more than two thirds in favour to less than a third in favour, but that has not deterred the Bush Administration from prosecuting the war. Indeed, far from scaling things down, as one might expect in the face of plunging approval ratings, the Bush Administration has stepped things up. Without a hint of embarrassment, it has even said that it will not be coerced into shirking its duty and pulling out too early as it did in Vietnam.1 Following 9/11 it was thought by many that the political effect of the attacks was that it legitimised long held schemes dating back to the early days of the Clinton administration to attack Iraq, but it now seems that diagnosis was premature. For what really seems to have happened is something far more significant. The very need to legitimise 179

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war seems to have vanished from the political sphere. Our argument is that the nature of war as a social relation has changed in the post–9/11 era in such a way as to enable war to become self-justifying. In Deleuze and Guattari’s terms, 9/11 did not simply allow the state to unleash its war machine; it created the necessary conditions for the war machine to not merely usurp the state, but consume it. Consequently, war is no longer an extension of politics, as Clausewitz proposed; it is the end of politics. The confounding failure of the anti-war movement confirms this. The standard dissident strategies of exposing government lies, cover-ups, mistakes and so on, which rely on the built-in weaknesses and vulnerabilities of the political process no longer work. The war in Iraq was initiated on very dubious grounds and although it had strong support at home, abroad the international community were very suspicious of the evidence, though none spoke out strongly enough to avert it. When the grounds for war, namely the exigent need to act pre-emptively to prevent Saddam Hussein from using the weapons of mass destruction (WMDs) he might possess, were exposed as a set of egregious fabrications conjured out of thin air, wishful thinking and ‘sexed-up intelligence’, the war was not immediately de-legitimised as perhaps it should have been. By then, of course, Baghdad had already fallen, and a whole new set of problems and issues had presented themselves. Getting rid of Saddam Hussein had seemed like a good idea to a great many people, even those against the war, so when his regime toppled in a couple of weeks without much bloodshed (on the invader’s side, at least), the war began to seem like not such a bad idea after all. When George Bush, dressed ridiculously like a Top Gun extra, declared ‘mission accomplished’ aboard the USS Abraham Lincoln (anchored safely off the coast of San Diego), his approval ratings soared to levels approaching those of his ‘ground zero’ speech. What exactly had been accomplished was not clear, save that Saddam was no longer in power, and for the moment at least that seemed to be enough. The absence of WMDs did not de-legitimise the war because an apparently cheap victory buoyed the public into thinking that a good thing had been done, even if it had been done for the wrong reasons. In an astonishing act of political prestidigitation, a narrative of salvation, liberation and indeed modernisation was substituted for the discredited, disproven and now morally and ethically disagreeable narrative of pre-emption. Now, though, the problem was what to do next and it was in this moment, so ripe with opportunity and promise, that the Bush Administration made its worst errors, virtually guaranteeing that Iraq’s future would be anything but peaceful. First it did not secure Baghdad,

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and simply stood by as the city was looted and burned by its desperate and scared occupants. The provisional government dismantled what was left of the Iraqi institutions of governance in the name of deBaathification, thereby plunging the country into chaos. Instead of giving the Iraqi people the promised ‘democracy’, the Bush Administration imposed an occupation, which not unsurprisingly was bitterly resented.2 All the more so when it became apparent that none of the other promises – the restoration of law and order, new power plants, new schools, new hospitals and so on – were going to be fulfilled. The infamous Abu Ghraib prison, once the very emblem of Saddam’s reign of terror (from which the Bush Administration had supposedly saved Iraq), was soon filled to overflowing with suspected terrorists, who were subjected to a variety of ‘sanctioned’ and ‘unsanctioned’ forms of torture and abuse. When images of this abuse were leaked to the press, America did not flinch and stoically re-elected the very man who had made it all possible, namely President George W. Bush, who promised to ‘stay the course’. For the time being, at least, the liberation narrative was working. Promoting democracy became in effect the retroactive alibi and excuse for the invasion.3 But the demand for ‘regime change’ – or ‘intervention’ as it was called in the break-up of the former Yugoslavia – for the sake of democracy, or human rights, or justice, is simply another way of wanting war. The allegedly humanitarian mission of bringing democracy to Iraq was born of the intrinsically militarist idea that the US has the right to judge another nation insufficiently democratic and act on that judgement by force of arms. As Žižek puts it, what human rights actually means ‘is the right of Western powers themselves to intervene – politically, economically, culturally, militarily – in Third World countries of their choice’.4 By dressing itself up in the clothes of the world’s policeman the US has insisted it has this right and has exercised this self-given right on at least 201 occasions between the end of World War II (WWII) and 9/11, all without ever installing a democratic government, or even a regime intrinsically better than the one it replaced.5 Indeed, as Chalmers Johnson points out, where democratic governments did come into power following US interventions, it was in spite of US interference (for example, Greece, Portugal, Spain, Philippines, South Korea and Taiwan, which only established democratic governments after the collapse of the US-sponsored dictatorships). Moreover, it was responsible for putting in power the Shah of Iran, as well as Suharto, Batista, Somoza, Pinochet and Mobutu, all of whom have a special place reserved for them in the pantheon of scoundrels.6 The more potent problem, as Michael Hardt and Antonio Negri have pointed out, is that the ‘concept of justice serves to universalise war

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beyond any particular interests toward the interest of humanity’.7 The US uses concepts like justice and its cognates such as human rights as a blind behind which it can hide the true venality of its purpose. But even noble sounding words like democracy, justice and liberation, have a use-by date and it is evident now that they have reached the limit of their shelf life as far as the war in Iraq is concerned. Judging by the opinion polls that Dick Cheney unthinkingly dismissed, it appears that the American public is at long last wearied of the war and no longer willing to buy into the liberation narrative. Yet this weariness has still not resolved itself into a determined anti-war movement. Its true support for the war is as low as it was during the last days of the Vietnam conflict, but the profile of the anti-war movement is nowhere near as high as it was then. Neither of the candidates contesting the 2008 US Federal election put forward ending the war as their main platform pledge; on the contrary, both parties pledge to stay put in Iraq for at least the foreseeable future. But, then again, there is little need for them to do so. And one might even say there is no way for them to do so: to be anti-war is to risk being painted as (a) unsupportive of the men and women doing the actual fighting; or (b) supportive of the ‘terrorists’, whoever they may be. This double bind is paralysing electoral efforts to induce change as the disappointment of the 2006 mid-term Congressional elections, which delivered a resounding Capitol Hill majority to the Democrats, makes all too apparent. Under the new House Speaker, Nancy Pelosi, nothing much is different. Congress continues to sign off on the war and appears unwilling to flex its muscles and force the White House to provide a binding timetable for withdrawal from Iraq, which is what the Democrats said they would do in the run-up to the elections. Politically, the war has now entered a strange new phase in which its legitimacy, or lack thereof, no longer seems to matter: it continues (as philosophy does, according to Adorno) because the moment – or, indeed, moments – to realise it, to make it part of the actual political process, was missed. Deleuze and Guattari argue that society consists of two types of flows: a flow of belief and a flow of desire. Simplifying a great deal, their thesis is that the capitalist age has separated these two flows from each other and caused one to dry up (belief) and allowed the other (desire) free rein. Capitalist society is, they say, unavowable: it offers nothing for us to believe in and no longer requires our belief to function. This diagnosis, made in the 1970s, is, we argue, fully borne out by recent history. What we have today is not a politics of fear – as many commentators have wanted to call it – because it is not a politics: fear is not being

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used to obtain a mandate for action from the public; rather, fear is used to absolve government of the need to obtain a mandate. Fear is an instrument for separating belief and desire. Neither is today’s situation a case of what Agamben refers to as a politics of exception because the US Government is not using legislative loopholes to justify its actions. Indeed, as is evident in Dick Cheney’s comments, the US government is not concerned about justifying its actions. In this precise sense one may say, as Iain Boal, T. J. Clark, Joseph Matthews and Michael Watts (2005, pp. 19–23) suggest, that war has become a spectacle.8 Wars are spectacles in the traditional sense of being events staged to convey a specific message, but also in the more radical or postmodern sense that spectacle is the final form of war, the form war takes when it takes peace as its object. In alliance with the media, war increases its power and independence rather than increasing democratic oversight. And gradually, the will for such critical political engagement fades in the face of the assemblage of spectacular technology, death and end of days reasoning. As Baudrillard rightly argues, the ‘media and official news services are only there to maintain the illusion of an actuality, of the reality of the stakes, of the objectivity of the facts’ (Baudrillard, 1994, p. 38). Chillingly, this is no longer an incisive criticism of the state, but its explicit outlook. In a conversation with a ‘senior adviser’ to President Bush, New York Times Magazine reporter Ron Suskind was told: ‘We’re an empire now, and when we act, we create our own reality. And while you’re [i.e., the media] studying that reality – judiciously, as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out’ (Danner, 2005, p. 73). The creation of that reality was, as Mark Danner has conclusively shown, the true purpose behind the spurious charge that Iraq had WMDs. The spectacle, as Guy Debord originally formulated it, is an allencompassing concept designed to account for the latest stage of capitalism. Putting it in Deleuze and Guattari’s terms, the spectacle is an abstract machine that registers transformations on three separate planes of immanence: on the existential plane it registers a shift in society’s focus from being to having, and from having to appearing; on the political plane, it registers a shift from the politics of the mass to the politics of the individual; and on the ideological plane, it registers a shift from false consciousness to cynicism, from mistaken belief to helpless disbelief. The spectacle cannot be understood as an abuse of the world of vision, as a product of the techniques of mass dissemination of images. It is,

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rather, a Weltanschauung which has become actual, materially translated. It is a world vision which has become objectified. Debord (1990, p. 5) The spectacle is at once the compensation for and cause of the loss of authenticity in everyday life that Debord perceived all around him. In Deleuze and Guattari’s terms, the spectacle – that is, war – is what enables unavowable politics (as they deem the present axiomatic age) to function. It gives desire something to invest in even as it derides our need to believe in something. There are (at least) three causal factors feeding the current situation and these can be broadly classified as being military, legal/doctrinal and political. They have acted in concert to create a culture of militarism in which not only is effective resistance to war impossible, on some level it is also impossible not to want it – not to be seduced by the spectacle. These causes expressed themselves over time, and culminated after 9/11 to produce a situation in which the war machine has become largely independent of the state, and war has not only lost legitimacy, but lost the need for legitimation. The contention here is that the conditions for war have changed, that political engagement with war has changed in character and that the possibilities for effectively opposing war have been radically decreased. The present situation has had a long gestation – stretching back to the nineteenth century. But it was also triggered by the events of 9/11, which transformed the latent potentialities of the American war machine into an actual operation. The discourse is such that the public will to war can be assumed without being tested, and moreover, what is at stake is the existential protection of the nation as such, against its foundational principles of freedom and democracy which have come to represent its Achilles heel. The political will to use military force, undoubtedly strong in the immediate aftermath of 9/11, has become a foundational reality which is unthreatened by actual manifestations of discontent about the course of the war in Iraq. We turn to each of the causes of the unrestrained war machine in turn, in order to diagnose the prevailing culture of militarism which makes war seem ever more eternal as it becomes ever more useless.

Military affairs: A ‘Gunfighter Nation’?9 It does not seem wrong to say that ‘the hegemonic power of this era has a long standing love affair with technology’ (Gray, 2005, p. 374). It is, moreover, a love affair that has become increasingly passionate

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in the aftermath of the Cold War. Critical theory seems to share this passion and in the case of authors like Manuel DeLanda (1991) and Paul Virilio (1983) has bought into the rhetoric of technology, without questioning either its efficacy or actual purpose. America’s ‘victory’ against the ‘evil empire’ (to use Reagan’s infamous phrase) seemed to demonstrate conclusively that a preponderance of technological capacity and firepower is the necessary and sufficient condition for geopolitical success, in spite of the fact that all the conflicts of the Cold War era demonstrated the very opposite, namely that superior firepower was not sufficient or necessary to achieve geopolitical ends. But from the point of view of American domestic politics, technology has served a vital ideological purpose. As Andrew Bacevich (2005) has argued, the emphasis given to technology in current military discourse has enabled the military to reinvent itself, following the debacle of Vietnam, as clinical, clean and effective. But as powerful as the new high-tech weapons are, they are not as powerful or as effective as they are purported to be, nor have they obviated the need for ‘boots on the ground’. In the First Gulf War, CNN viewers were led to believe that the US’ anti-missile defence system rendered it immune to Iraq’s Scud missile attacks, but in reality not one single Scud was shot down in mid-air (it was in fact the ineffective guidance systems on the Scuds that were the best defence). Similarly, in five years of war in Iraq the weapon that has killed the most American troops is the improvised explosive device (IED), or what used to be known as the car bomb and the booby trap. As Mike Davis reports, there were more than 10,000 IED attacks in 2005. In 2006 IEDs killed on average one hundred people a day in Iraq. These deadly attacks have ruined any possibility of a rapid reconstruction of Iraq’s civic infrastructure and given lie to the idea that the US occupation is all that is staving off civil war.10 The Pentagon’s response to the IED-problem, consistent with its post-Vietnam strategy, is to promise that a technological solution will be found. It has created an IED ‘task force’, which in two years of trying to find a technological fix to the problem has spent in excess of US $6 billion without anything to show for it.11 In doing so, however, the US military is buying into its own propaganda. Its only really effective response to the threat of IEDs has been the rather old-fashioned one of placing its personnel inside a fortified ‘no-go’ area, the ‘Green Zone’, and preventing them from going outside its protected walls and prohibiting everyone else from entering. But even this strategy has proven fallible on a number of occasions, resulting in the deaths of both Americans and Iraqis.

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The Vietnam experience changed the way war intersects with politics. At first it appeared that the magnitude of the failure in South East Asia would mean the US government would not be able to use its military again, except in the event of an actual threat to the US homeland. Yet the stories of the death of the US war machine soon proved exaggerated. There is no ‘Vietnam syndrome’ as it was called by right-wing political theorists lamenting the US’ apparent failure to act militarily in situations such as the Embassy siege in Iran. Technology has been utilised ideologically to save the war machine – to survive, it was going to have to become more spectacular, more powerful, more ubiquitous. No-one wants to see the body bags of American soldiers, so do not let them. The counter-cultural space of 1960s radicalism provided a space for resistance, so eradicate it. In Simulacra and Simulation, Jean Baudrillard detected that a structural change in post–WWII militarism had taken place. The Vietnam War, he argues, was a demonstration of a new kind of will to war, one that no longer thought in terms of winning or losing, but one which defined itself instead in terms of perseverance (Baudrillard, 1994, p. 37). It demonstrated to the US’ enemies, clients and allies alike, its willingness to continue the fight even when defeat was certain, or had in a sense already been acknowledged.12 It was a demonstration of the US’ reach, of its ability to inflict destruction even when its troops were withdrawing and peace talks (however futile) were under way. It also demonstrated to the American people that the fight could be continued as the troops were withdrawn, a factor that would become decisive in re-shaping militarism as an incorporeal system. It was also a demonstration to the American domestic population that the country’s leaders were willing to continue to sacrifice lives to prove this point.13 In sum, Vietnam taught two related lessons. Firstly, that it is as important (or indeed more important) to win the spectacular war as it is to win the war on the ground. And secondly, that American squeamishness about the loss of American lives acts as a limitation on the application of military force. This is to be overcome through militarising the military through ever more technological means reinforcing more than ever the need for overwhelming power. Vietnam taught not the inadequacy of military force but the inadequacy of too little military force. As Larry N. George has written, ‘one of the goals of the RMA (revolution in military affairs) is to reduce domestic political pressures on US civilian leaders conducting foreign military operations (by reducing US casualties)’ (George, 2003, p. 163). This faith in military technology and arms building was absolute by the ‘peaceful’ end of the Cold War. But

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as Deleuze and Guattari put it, writing at the height of this so-called ‘peace’, it was a peace more terrifying than war. That the end of the Cold War was unaccompanied by the apocalyptic atomic confrontation that many had feared indicated that massive destructive power could be an effective guarantor of peace, and indeed was its necessary condition. Of course, we have to adapt our understanding of ‘peace’ in the light of this, given the possibility that ‘peace, under current arrangements, is no more than war by other means’ (Boal, Clark, Matthews and Watts, 2005, p. 94). During the Cold War, the war machine guaranteed peace by guaranteeing total destruction – absolute war – if it was stirred. This apocalyptic possibility served to act as a limitation on hot wars too. The war machine had an objective external limit, in the form of another war machine of equal power (from the perspective of mass civilian death). The end of the Cold War has brought the end of the objective limit. Now, the war machine of the victorious power must generate its own limit in order to prevail over it – it must generate the conditions for its own self-overcoming. This is a logic equivalent in every respect to the logic underpinning capitalism and it introduces a very different kind of political possibility. Failure to come to terms with this has produced a problem for politics. It has given rise to a situation of generalised militarism. The term ‘militarism’ is typically associated with martial cultures such as that of Japan in the 1930s, and is usually taken to imply an irrational, collectivist society inimical to the individual, consumerorientated society promoted in the West. The liberal democratic ‘war on terror’ has yielded a different kind of militarism – a different kind of mass participation. One may posit not a nationalist militarism like in the mid-twentieth century German or Japanese model, but a globalising, securitising militarism for the twenty-first century which is associated not with the glorification of the state or war or the total annihilation of an identifiable enemy, but with the ultimate goals of a pacific utopia defined by the US in its role as hegemonic power.14 ‘We are, the president suggests without using the term, at a millennial moment. With American leadership, it is possible to enter into a new world in which humanity achieves, or re-achieves, its natural state’ (Rhodes, 2003, p. 133). This kind of militarism is one which tends toward globalisation, and demonstrates an almost unlimited hostility to forms of organisation which fail to embody the liberal democratic dream: ‘At West Point [1 June 2002] the president … made clear his faith that a new world order based on liberalism’s cherished values is both necessary and possible. This new liberal order will not construct itself, however. American

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power will be key in building it. Indeed, more specifically, American military power will be key’ (Rhodes, 2003, p. 132). Military power does not and cannot function in a vacuum. Belief in the potency of force does not necessarily demand its use, as the MAD logic of deterrence and its apparent success taught. However, the legal and doctrinal conditions under which the American military power could be deployed changed radically after 9/11. Faith in hard power had been an institutional fact of the National Security State since the end of World War II, but the doctrine of deterrence held that the point was to be powerful enough never to need to engage militarily. After the Cold War, the faith in power held, but so did a degree of reticence about using it. A number of commentators, seeking to assess the temperament of the new post–Cold War American strategy, argued that the US’ reluctance to risk the death of American citizens meant that foreign policy and military intervention would mostly be conducted in accordance with what came to be called the Powell Doctrine following the First Gulf War: overwhelming use of force for vital interests (only) (see Shaw, 2006). After the ‘Black Hawk Down’ incident at Mogadishu, it was widely believed that to risk American lives when American national security was not directly at risk was unacceptable.15 In any case, as proven by the First Gulf War and, after a fashion, Kosovo, the use of air power and high-technology, manpower-saving equipment could still bring about at least the appearance of the desired results. All this changed, however, after 9/11.

Law and doctrine: Regulating or facilitating war? From the US perspective, the nature of this new ‘world vision’ was made explicit in 2002 when the Bush Administration presented its National Security Strategy (NSS). Together with President Bush’s speech at West Point in June 2002, the NSS is an explicit attempt to set the security agenda for the United States in the twenty-first century. What is remarkable about this agenda is its self-presentation – in true spectacle style – as universal. The NSS view is that the outcome of the Cold War is a ‘single sustainable model for national success; freedom, democracy and free enterprise’ (NSS, 2002, p. iv). The agenda for the twenty-first century is clear: there is only one successful model for human flourishing – liberal democracy – and appeals to state sovereignty cannot override the claims of all human beings everywhere to live freely under liberal democratic regimes. The NSS says that no ‘nation owns these aspirations and no

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nation is exempt from them’ (NSS, 2002, p. 3). Moreover, it is regarded as axiomatic that this is what people would choose if they could, ‘because these principles are right and true for people everywhere’ (NSS, 2002, p. 3). There is obviously a strong transformational impulse in the NSS document, but it is not a root and branch revolution. In other words, it is not the doctrine of war that has changed. Robert Kagan speaks for many when he suggests that 9/11 ‘shifted and accelerated but did not fundamentally alter a course the United States was already on’ (Kagan, 2003, p. 91). For Clausewitz, war is always limited by politics. In the case of the war on terror, this limiting influence of politics is fading. There are several factors at work here, factors which are inextricably interrelated. Centrally, these are: the nature of the putative enemy, the relationship between war and the liberal economic agenda and the doctrinal context in which decisions to use force are undertaken. In the first case, the NSS points out that ‘[t]he United States is fighting a war against terrorists of a global reach. The enemy is not a single political regime or person or religion or identity. The enemy is terrorism – premeditated, politically motivated violence perpetrated against innocents’ (NSS, 2002, p. 5). This creates an instant problem. For, having declared war against a behaviour which is completely independent of any other identifying characteristics such as nationality or religion a dilemma is raised in terms of how this war should be waged against such a nebulous opponent.16 The answer is a rhetorical blurring of pre-emption and prevention so that the letter of international law is adhered to while the spirit is ignored. There is a well-established precedent for legitimate pre-emptive action in international law, but the current version of it is a new mutant variety conceived to suit the conditions of the post–Cold War, post–9/11 world. Certain criteria must inhere in order for pre-emptive action to be legitimate, as set down by Daniel Webster in the 1837 Caroline dispute: ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation’ (Blinken, 2003–4, p. 35). The pre-emption doctrine is expounded in the NSS, and was clumsily deployed as a legitimising factor in the case for the war in Iraq, relating to claims that Saddam could launch chemical and biological weapons in 45 minutes. These efforts led to international opprobrium when the United States refused to conform to the norms of pre-emption, which demand that all other diplomatic and economic mechanisms for persuasion and coercion have to be exhausted before force is used. Moreover, in halting weapons’ inspections the US refused to disclose in a manner

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pursuant to the norms of international law, whether there was an ‘imminent’ and ‘overwhelming’ threat in the first place. But the fact is that what is established in the NSS is not pre-emption at all, but prevention. It states that ‘[l]egal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat … [however], [w]e must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries’ (NSS, 2002, p. 15). The trouble is, according to the Bush Administration, we are no longer living in a world in which attack involves armies massing on borders, or noticeable arms build-ups. In the current international climate, the US is threatened not by a conventional major power, but by that which lies at ‘the crossroads of radicalism and technology’ (NSS, 2002, p. v). And the risk of not acting is such that action must be the default strategy: ‘The greater the threat, the greater the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack’ (NSS, 2002, p. 15). Given the fact that it is impossible to tell in advance who the enemy are, this 1 per cent doctrine (as it has become known) (Suskind, 2007) is, to say the least, problematic. The doctrine of pre-emption as prevention represents the law serving a war machine working to overcome its own limit: no longer can we wait for enemies to appear and be identified, we have to attack before they appear. The law also serves the other aspect of US power which is becoming immanent to the war machine: capitalism. The other important pillar of the NSS is the commitment to ‘ignite a new period of global economic growth through free markets and free trade’ (NSS, 2002, p. 17), and let no-one believe that this is ancillary to the commitment to preventing terrorism – they are intimately related. The NSS purports to posit an independence between them, stating that ‘[p]overty does not make poor people into terrorists and murderers’ (NSS, 2002, p. v). Its view is that ‘[f]ree trade and free markets have proven their ability to lift whole societies out of poverty’ (NSS, 2002, p. vi), so any US commitment to this goal relates only to its separately conceived humanitarian mission. However, this argument does not stand up to even the most cursory scrutiny. This is not only because as the NSS puts it, a ‘strong world economy enhances our national security’ (NSS, 2002, p. v) but, more significantly, because ‘[t]he concept of “free trade” arose as a moral principle … before it became a pillar of economics’ (NSS, 2002, p. 18). What is being exported is not ‘merely’ an economic principle which has been scientifically proven in its efficacy and humanitarianism. It is an ideology. And the way that this works

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in practice is guided by the assumption, naive but dearly held, that all people everywhere are potential citizens of a liberal democratic state – all they are missing is the state. Therefore, the strategy is focused on the removal of tyrants and dictators who are standing in the way of the true progress of humanity. This leads to ‘decapitation strategies’ such as was employed in Iraq, under the assumption that once Saddam and the Ba’athist hard-line were removed, liberal democracy would naturally follow. This strategy assumes that societies are organised in a molar fashion only and not, as Deleuze and Guattari insist, in both a molar and molecular fashion, meaning that cutting of the head is never going to be enough by itself to change the social ‘body’ through and through.

Politics: Consent, dissent and display The new ‘preventive war’ war machine is fought against an enemy which is, by definition, unknown, unknowable and visible only in its alleged deeds. The NSS proclaims that ‘[t]he struggle against global terrorism is different from any other war on our history. It will be fought on many fronts against a particularly elusive enemy over an extended period of time. Progress will come through the persistent accumulation of successes – some seen, some unseen’ (NSS, 2002, p. 5). If this is the case, then public support for the global war on terror cannot be predicated upon visible successes or dramatic victories in the battlefield. This is a war which is profoundly secretive and ideological, and at the same time, profoundly concerned with spectacle and display. This must (increasingly) suggest that the one does not correspond to the other – the narratives of nobility and a global mission for American exceptionalism may have little or nothing to do with the machinations of the American military ‘in the (global) field’. This is Baudrillard’s point with respect to the First Gulf War. In his view, ‘[s]omething undoubtedly was occurring out in the desert far away from the journalists and the cameras, but it bore little resemblance to the clean hi-tech encounters between missiles and buildings which television presented to its fascinated viewers’ (Patton, 1997, p. 4). Gradually, the application of military force becomes uncoupled from the idea of ‘victory’ and as a consequence war is uncoupled from its objective limits. The only question is whether Baudrillard’s point goes far enough. One cannot localise the ‘preventive war’, as it is waged everywhere, and must always be prepared for new frontiers to open up, on every level, without end or victory in sight.

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This, according to Deleuze and Guattari, ‘is the point at which Clausewitz’s formula is effectively reversed’. When total war – that is, war which not only places the annihilation of the enemy’s army at its centre but its entire population and economy too, or biopower at its zenith – becomes the object of the state-appropriated war machine, ‘then at this level in the set of all possible conditions, the object and the aim enter into new relations that can reach the point of contradiction’ (Deleuze and Guattari, 1987, p. 480). In the first instance, the war machine unleashed by the state in pursuit of its object, total war, remains subordinate to the state and ‘merely realises the maximal conditions’ of its aims. Paradoxically, though, the more successful it is in realising the state’s aims, the less controllable by the state it becomes. As the state’s aims grow on the back of the success of its war machine, so the restrictions on the war machine’s object shrink until, scorpionlike, it effectively subsumes the state, making it just one of its many moving parts. In Vietnam, the state was blamed for the failure of the war machine precisely because it attempted to set limits on its object. Its inability to impose adequately these limits not only cost it the war, but in effect its sovereignty too. Since then the state has been a puppet of a war machine global in scope and ambition. The evolution of war after 9/11 amply demonstrates our thesis. There has been a dramatic increase of the power and independence of the war machine both in terms of faith in military power, and in terms of the willingness to deploy it. And this changes the politics of war in terms of legitimacy. The war machine now creates and overcomes its own limits: it is a self-sustaining, autopoietic ‘desiring machine’. Thus, its only contact with an ‘outside’ is itself simulacral. With 9/11, the ‘boundaries between everyday existence and a dangerous world had been shattered, as had the assumption of safety that had long since become … part of what it meant to be an American. September 11 was not just a national security crisis. It was a national identity crisis’ (Gaddis, 2004, p. 10). Exporting insecurity is no longer a tenable strategy. If previous foreign policy was designed to guarantee the security of the American homeland, its ostensible offensive goals always secondary to this, then this policy sees a change in emphasis after 9/11. Thus interventionism and unilateral internationalism are not mere epiphenomena; nor are they simply a screen designed to cover up the true purpose of gaining ever more control over the world’s natural resources; nor are they radically different from the tradition of American foreign policy making. But in the past, circumstances have tended to conspire to rein in the US’ imperialist tendencies. For example, ‘[d]espite his rhetoric

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about the “evil empire”, … Ronald Reagan’s policies never moved far outside the mainstream of America’s Cold War containment strategy’ (Rhodes, 2003, p. 138). Necessity now pulls in the opposite direction so that conceptions of American national interest become identical with a neo-imperial policy of spreading liberal democracy, with all the ideological and economic baggage that this entails. There is no longer a stable inside to which Americans could retreat from this task. And the task is a global one because one cannot assess the degree of threat in accordance with arms-racing behaviours or avowed state ideologies. As the NSS says, ‘[t]he events of September 11, 2001 taught us that weak states, like Afghanistan, can pose as great a danger to our national interests as strong states’ (NSS, 2002, p. v). In other words, America’s view of itself, its foreign policy and its economic world view are inextricably intertwined and mutually dependent. Critically, they are also global, in accordance with the belief that ‘safety comes from enlarging, rather than contracting, its sphere of responsibilities’ (Gaddis, 2004, p. 13). Of course, wars have always been waged with the support of the law and in pursuit of national interests, the highest of which is security. Moreover, as Gaddis points out, historically, Americans have always felt uneasy about the degree of security with which the ‘inside’ of the state is insulated from threats from without. He suggests, too, that since the nineteenth century the US has justified pre-emptive action on the basis of power vacuums and states that might fail (Gaddis, 2004, pp. 17–18). But there are differences in the style of American foreign and domestic policy with respect to security between the nineteenth and twentieth century. For example, after Pearl Harbour, immediate mobilisation was ordered, and a ‘state of emergency’ was declared. This required Americans to set aside their ‘normal lives’ and surrender to a period of exceptionalism. That the American people complied on a massive scale – some 15 million men and women served in the armed forces – is doubtless one of the reasons why today they are referred as the ‘great generation’ by sociologists like Robert Putnam. As Gaddis points out, the opposite was the case after September 11 – carrying on with work, going shopping, getting on with business became a declaration of American strength and determination (Gaddis, 2004, p. 37). What we might call ‘the era of statehood’ was concerned with certain forms of control and regulation, discipline, internalising order and exporting disorder. As Zygmunt Bauman says, ‘Modernity was bent on making the world manageable, and on its daily management; the zeal to manage was whipped up by the not altogether groundless conviction that when left to themselves things will go bust or run amuck’ (Bauman, 2002, p. 28). But now, the

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postmodern, post-statist global politics is concerned with making a suitable profit when things run amuck, and simply making sure, through the application of military force, that they do not run amuck in unprofitable or institutionally threatening ways. This normalisation of military power through a generalised culture of militarism, with its marriage of the demands of capitalism and the demands of the US national security state, has pushed ‘meaningful politics’ (for the want of a better phrase) to the brink of extinction. By meaningful politics, we mean a politics which can effectively critique the grounds upon which American calls to arms are made: the legitimacy of the legitimation. The answer to this cannot only be to appeal to adherence to the norms of international law as ‘defended’ by the UN, since these too are thoroughly implicated in the globalising culture of militarism, and are in any case powerless to apprehend it. ‘American leftists are surprisingly ready to brand those who depart from their views as “fascists”. The left, already tiny and isolated, has too frequently derived its industrial strength self-righteousness from its own marginality’ (Cooper, 2003, p. 227). Their only strategy is criticism of a kind which is easily brushed aside in the context of the new American mission, whose importance is always reinforced by the memory of the burning towers – a memory which will ‘live in infamy’ (Gaddis, 2004, p. 35). The whole world, as spectacle, is in thrall to a kind of meta-‘ticking time bomb’ reasoning, which holds that it cannot wait and it cannot not act, and anyone asking for concrete evidence, Hans Blix-style, of this urgency is seriously missing the point and stakes of this new security situation. The notion of a ‘peace still more terrifying than fascist death’ (Deleuze and Guattari, 1987, p. 422) finds resonance in Bush’s terrifying proclamation that ‘[o]ur nation’s cause has always been larger than our nation’s defense. We fight, as we always fight, for a just peace – peace that favors human liberty’ (Bush, 2003, p. 268).

Notes 1. As several commentators have pointed out, this is the exact same rhetorical gambit (namely, the Dolchstosslegende or ‘stab in the back myth’) the Nazi’s used in the wake of Germany’s loss in World War I to rouse public opinion against the incumbent Weimar Government as well as the Jews. 2. As Rajiv Chandrasekaran put it in his chilling account of the US-led occupation of Iraq, Imperial Life in the Emerald City, ‘With the search teams unable to turn up any weapons of mass destruction, the primary justification for the invasion, the viceroy [Bremer] deemed the development of democracy

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4. 5. 6. 7. 8.

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to be no longer just an important goal. It was the goal. Iraq would have to become that shining city on a hill in the Arab world’ (Chandrasekaran, 2007, p. 176). On this point it is perhaps worth pointing out that not even those charged with the actual task of fulfilling the humanitarian mission in Iraq fully subscribed to the ‘democratic nation-building’ rationale the Bush camp thrust upon them. As Rory Stewart (2006, p. 121), who spent a year in Iraq as part of the British mission there, rather astutely observed, the occupiers – by which he means CPA staffers and policy ‘wonks’ like himself – felt both guilty and ashamed of what they were doing in Iraq. See Žižek (2006, p. 341). See Gore Vidal cited in Johnson (2006, p. 18). See Johnson (2006, p. 19). See Hardt and Negri (2004, p. 15). That said, we do not share their assessment that ‘Spectacularly, the American state suffered a defeat on September 11’ (Boal, Clark, Matthews and Watts, 2005, p. 25). We would say, rather, that 9/11 helped propel war into its spectacle form. But this is not to say we agree with either Zizek or Baudrillard because the spectacle is not the same thing as fantasy or simulation. See Slotkin (2000). See Davis (2007, p. 186). See Davis (2007, pp. 189, 190). The US strategy of ‘Vietnamising’ the war which commenced shortly after the Tet offensive in 1968, and become official policy under Nixon, was patently an admission that the war could not be won – in the short term it was Johnson’s way of putting off admitting defeat until after the election so as to give Hubert Humphrey some chance of victory; in the longer term it was a way of buying time for a diplomatic solution (Kolko, 1994, p. 321). That this position chimed with the government’s position on welfare, which was to become similarly hard-hearted, is scarcely likely to be a coincidence. The current regime has shown the truth of this. As Frances Fox Piven (2004, p. 89) has recently pointed out, in contrast to the Johnson Administration, the Bush II regime has offered nothing to its domestic population to ease the burden of war. In fact, it seems hell-bent on brutalising the people at home too as it clamps down on welfare and intensifies surveillance. Bush has expressly denied having an ‘empire to extend or utopia to establish’. But the conflict-free world for human flourishing and liberal capitalist profit described at West Point and in the NSS can surely be legitimately described as ‘utopian’. See Bush (2003, p. 270). Note, however, that the ‘casualty aversion’ of American citizens should not be taken for granted. For example, ‘a poll performed by the Triangle Institute for Security Studies completed in 1999 showed that the (American) public has a greater tolerance for military casualties than was thought’. See Beam and Howe (2003, p. 835). Of course, in practice, this is not the case, since ‘racial profiling’ and other security measures based on biometrics and risk assessment have been widely used, and discrimination against people regarded as being of Middle Eastern/ Arabic origin in the aftermath of 9/11 has been well documented.

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Bibliography A. J. Bacevich (2005) The New American Militarism: How Americans are Seduced by War (Oxford: Oxford University Press). J. Baudrillard (1994) Simulacra and Simulation S. Faria Glaser (trans.) (Ann Arbor: University of Michigan Press). Z. Bauman (2002) Society Under Siege (Cambridge: Polity Press). T. Beam and E. Howe (2003), ‘A Look toward the Future’, in Department of Defense, Office of the Surgeon General, US Army (ed.), Military Medical Ethics, volume 2 (Washington, DC: Borden Institute). A. J. Blinken (2003–4) ‘From Preemption to Engagement’, Survival 45/4, pp. 33–60. I. Boal, T. J. Clark, J. Mathews and M. Watts (2005) Afflicted Powers: Capital and Spectacle in a New Age of War (London: Verso). G. W. Bush (2003) ‘Remarks at West Point: New Threats Require New Thinking’ in M. L. Sifrey and C. Cerf (eds) The Iraq War Reader: History, Documents, Opinions (London: Simon & Schuster). R. Chandrasekaran (2007) Imperial Life in the Emerald City: Inside Baghdad’s Green Zone (London: Bloomsbury). M. Cooper (2003) ‘A Year Later: What the Right and Left Haven’t Learned’ in M. L. Sifrey and C.Cerf (eds) The Iraq War Reader: History, Documents, Opinions (London: Simon & Schuster). M. Danner (2005) ‘The Secret Way to War’, New York Review of Books, LII: 10, pp. 70–4. M. Davis (2007) Buda’s Wagon: A Brief History of the Car Bomb (London: Verso). G. Debord (1990) Comments on the Society of the Spectacle, trans. M. Imrie (London: Verso). M. DeLanda (1991) War in the Age of Intelligent Machines (Cambridge, MA: the MIT press). G. Deleuze and F. Guattari (1987) A Thousand Plateaus: Capitalism and Schizophrenia, B. Massumi (trans.) (London: The Athlone Press). J. L. Gaddis (2004) Surprise, Security, and the American Experience (Cambridge,MA/ London: Harvard University Press). L. N. George (2003) ‘On Pharmacological War’ in B. Gőkay and R. B. J. Walker (eds) 11 September 2001: War, Terror And Judgement (London/Portland, OR: Frank Cass). C. S. Gray (2005) Another Bloody Century: Future Warfare (London: Weidenfeld & Nicolson). M. Hardt and A. Negri (2004) Multitude: War and Democracy in the Age of Empire (London: Hamish Hamilton). C. Johnson (2006) Nemesis: The Last Days of the American Republic (NY: Metropolitan Books). R. Kagan (2003) Paradise and Power: America and Europe in the New World Order (London: Atlantic Books). G. Kolko (1994) Anatomy of a War: Vietnam, the United States, and the Modern Historical Experience 2nd edn (NY: The New Press). C. McInnes (2002) Spectator-Sport War: The West and Contemporary Conflict (London: Lynne Rienner Publishers).

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The National Security Strategy of the United States of America (2002) Available at http://merln.ndu.edu/whitepapers/USnss2002.pdf. P. Patton (1997) ‘The World Seen From Within: Deleuze and the Philosophy of Events’ in Theory and Event 1/1 at http://muse.jhu.edu/journals/theory_and_ event/v001/1.1patton.html (accessed 2 July 2009). F. Piven (2004) The War at Home: The Domestic Costs of Bush’s Militarism (NY: The New Press). E. Rhodes (2003) ‘The Imperial Logic of Bush’s Liberal Agenda’, Survival 45/1, pp. 131–54. M. Shaw (2006) The New Western Way of War: Risk Transfer War and its Crisis in Iraq (Cambridge: Polity Press). R. Slotkin (2000) Gunfighter Nation: The Myth of the Frontier in Twentieth Century America (University of Oklahoma Press). R. Stewart (2006) Occupational Hazards: My Time Governing in Iraq (London: Picador). R. Suskind (2006) The One Percent Doctrine: Deep Inside America's Pursuit of its Enemies Since 9/11 (London/Sydney/New York/Toronto: Pocket Books). P. Virilio (1983) Pure War, M. Polizzotti (trans.) (NY: Semiotext(e)). S. Žižek (2006) The Parallax View (Cambridge, MA: The MIT Press).

Index abortion 3, 62, 78–9, 139, 145–50 Catholic doctrine on 145–52 feminism and 150 France 160 as homicide 147–8 human rights and 148 Abortion Act (1967) 78 Abu Ghraib prison 11, 172 accountability 81 activism 88, 90–1 actual 69 actuality ecology 89 actus 145 Adams, Carol J. 85 adjudication 24, 34, 37, 40, 43 logical consistency and 34 admiralty 40 Adorno, Theodor Ludwig Wiesengrund [1903–69] 182 advance directives 48 advanced capitalism 103–5 affects arts 13–4 affirmation 106 Afghanistan 193 African Charter on Human and Peoples’ Rights (1986) 149 Agamben, Giorgio 1–2, 11, 59–61, 142–59, 183 criticism of 62–5 differences between Deleuze and 156–9 agency women and animals denied 78 agriculture 100 airports employees undertaking screening 165–6 introduction of screening 165–6 security 163–76 x-ray imaging 164, 166, 168–70, 172–4 Aldisert, Ruggero 74, 84

Alschuler, Albert W. 33, 36 alterity 120, 133 American Civil Liberties Union (ACLU) 170 American Convention on Human Rights (1969) 149 animal rights 78–81, 83, 85–6, 89 activists called terrorists 91 animals 132 breeding 100 genetic engineering 86, 103 health 3 illegal trade in 103 legal definition of cruelty towards 85 scientific experiments 103 use of 83 welfare 80–1, 85–6, 103 Ansell Pearson, Keith 31, 33, 98, 105, 114 anthropocentrism 114 displacement of 105 shift away from 98 anthropomorphism 92 Anti-Oedipus: Capitalism and Schizophrenia 16, 18 anti-war action 91 Aquinas, Thomas see Thomas Aquinas, Saint archaism 19 Arendt, Hannah [1906–75] 149 Aristotle [BC384–22] 142–5, 147, 152, 157 arms right to bear 20 Arsebaykt, M. 167 art 76 Artaud, Antonin 77 arts affects 13–4 assisted suicide see physician-assisted suicide asylum seekers 21 198

Index auctoritas 60 Auge, Marc 163 Australia colonisation of 15 autonomy 90 Aviation and Transportation Security Act (United States) (2001) 163, 166 Bacevich, Andrew J. 185 backscatter machines 170 baggage inspection 169 Balsamo, Anne Marie 108 bare life 62–3, 65–6, 142, 144, 148, 151–2, 156–7, 160 Barr, S. 167 Batista, Fulgencio [1901–73] 181 Baud, Jean-Pierre 160 Baudrillard, Jean [1929–2007] 48, 81, 183, 186, 191 Bauman, Zygmunt 193 Beakan, Cecelia 166 becomings 69, 74, 77, 82–4, 88, 91 animals 85 human 137–9 nomadic 113 being 120 Beller, Jonathan 173 Benhabib, Seyla 81, 89 Bergson, Henri-Louis [1859–1941] 2, 24, 26–33, 120, 159 Beyerstein, L. 67 Bichat, Marie François Xavier [1771–1802] 144, 151–2, 158 bio-piracy 97, 101–2 bio/zoe power 96–115 biocapitalism 4 biocentred egalitarianism 105 biodiversity commercialised 102 bioethics 4 Bioethics: Bridge to the Future 126 bioethics alternative 121–2 cybernetics and 126–9 definition 117 development of 121–2 difference between Deleuze and Derrida on 118–20

199

differing models 131 origin of term 121 post-humanist 117–36 post-World War II 160 Potter on 125–6 Bioethics in the Age of the New Media 139 biogenetic capitalism 99–101 biogenetic globalised capitalism 107 biology law and 33 biomedicine denunciation of 151 biopolitics 59–71 biopower distinguished 59–61 biopower 1, 3, 59–71, 104 biopolitics distinguished 59–61 law as 4 bioscience 76 biotechnology 97, 159 Blinken, A.J. 189 Boal, Iain 183, 187 bodily integrity protection of 70 body maintenance and management 1 body fluids preservation of 151 body of law 19 body parts traffic in 100 body politic 17, 20 Boutang, Pierre-Andre [1937–2008] 47 Bowers v Hardwick 62 Braidotti, Rosi 3, 82, 90–1, 103, 115, 119 brain death 65, 151 brand names 99–100 Breyer, Justice Stephen 49 Brown, D. 64 Buchanan, Ian 4 Buck v Bell 33 Buddhism 129 bulimia 67 Bush, President George Walker 67, 194 Iraq invasion 179–84 West Point speech 188

200 Index call centres 100–1 capitalism 16, 20, 79, 87, 97, 101 advanced 103–5 hypercolonialist 119 as schizophrenia 104 schizoid 105–7 war and 190 carceral supplement 66–7 Caroline dispute 189 carry-on regulations 175–6 Cartwright, Lisa 169 cash flow advanced capitalism and 104 casualty aversion 195 Cavarero, Adriana 48 chain of being 25 Chandrasekaran, Rajiv 194–5 change foreseeability 28 Chechnyan war widows 107 Cheney, Vice President Richard Bruce (Dick) 179, 182–3 Christianity 143–5 affirmation of life 111 CIA torture flights 171–2 cinema 173 Cinema 1: The Movement Image 26–7 civil law 43 Clark, T.J. 183, 187 classical humanism 115 Clausewitz, Carl Philipp Gottlieb [1770–1831] 180, 189, 192 Clinton, President William Jefferson (Bill) 179 cloning 139 close sensing 169–72 closed circuit monitoring 164, 172–5 closure 128, 130 co-disciplinarity 91 codification 19 Cold War 185–8, 193 Colebrook, Claire 1 colonialism 101–2 colonisation Australia 15 Commentary on Aristotle’s De anima 145 common law adjudication in 24

Common Law, The 2, 27, 34, 36–8, 40, 42 communication 81 Compassion in Dying v Washington 49 Compendium of Moral Theology 147 complexity 97 computer games 101 concepts 9 creation of 13–4 conceptuality 12 styles of 14 confiscation by Transportation Security Administration (TSA) 174–5 connectiveness 106 Connolly, William E. 51, 55–7 consciousness 112 constitutional protection physician-assisted suicide 49 consumerism 100 consumption 18 contamination 108 continuous modification 30 contraception 62 Convention on the Rights of the Child (1980) 149 conversion philosophy 27 Cooper, Melinda 4, 161, 194 Cornell, Drucilla 70 corporeal materialism concept of 62 corporeal philosophy 88–9 cosmology 26 covert operations 168 Creative Evolution 28–9, 31–3, 35 creative judgements 39 Creative Mind, The 26 creativity 2, 24, 98 judgements 38 meaning of 28 crime prevention 43 critical theory 12 cruelty legal definition of towards animals 85 Cruzan, Nancy Beth [1957–90] 67 Cruzan v Director Missouri Department of Health 53, 61–2, 64

Index Crystal Clear 169 cultural authenticity 102 cultural relativism 124 cultural studies 96 cultural theory 98 culturalism humanities 124 culture 128 cyber culture 101 cybernetics 117–36 bioethics and 126–9 technicism 124 cyborgism 76, 83 Danner, Mark 183 Darwinism 99 data flow 136 data transfer 114 Davis, Mike 185 de Anima 142–4, 158 de Respiratione 157 de-politicising predication 60, 63, 65 quasi-legal 63–5 death 56, 73–94 border between life and 3 control of 48, 54 Deleuze on 109–12 hastening 67 individual 74 juridico-medical management of 52 legal order built on 47 micropolitics of 51–6 self-styled 110 synthetic boundary with life 54 wish for 48 Death Peddlers, The: War on the Unborn, Past, Present, Future 161 death penalty 52–3 deathbed jurisprudence 2 Debord, Guy Ernest [1931–94] 183–4 decisionism 37 Declaration of Independence (United States) (1776) 149 Declaration of the Rights of Man and of the Citizen (France) (1789) 149 deconstructionism 21, 81–2 law and 7–11

201

defence right to 20 DeLanda, Manuel 185 Deleuze and Derrida, Immanence and Transcendence: Two Directions in Recent French Thought 120 Deleuze, Gilles [1925–95] 1 passim democracy notion of 182 promoting 181 deodand 40–1 depersonalisation 61 Derrida, Jacques [1930–2004] 6–12, 21, 75, 87 Descartes’ Principles of Philosophy 157 desire law and 17 desiring machines 18 despotism 18–9 internalisation of 19 of the signifier 7 of terror 16 detention without trial 21 deterritorialism 21, 89, 101 Deutscher, Penelope 159 dialectics 87 dictatorships US sponsored 181 différance concept of 14 differ potential to 17 Difference and Repetition 25–6 differential jurisprudence 1–2 differential repetition 38 differentiation 29, 32–3, 120, 131 of law 34, 42–3 digital profiling 164 discourses 9 discursive philosophy 87 disease 80 distinctions system of 17 diversity ambiguity in notion of 102 divinity 56 DNA 99–100, 136, 159 dogmatic image of thought 25 dogmatism 26

202 Index Doherty, Thomas 6 dominant utterances 54 Donum Vitae 160 doxa critique of 27 Drate, J. 64 drives 87 drugs 108 dualism 82 duration 26 concept of 26 law 34 in law 39 Durie, Robin 33 Dworkin, Ronald 36 dying law and biopolitics of 47–58 shifting boundaries between living and 5 societal attitudes towards 55–6 dynamis 145 Eagleton, Terry 6 eco-capitalisation 100 eco-feminism 102 eco-others 106 eco-philosophy 98 ecology 87, 89 economic growth advanced capitalism and 104 ecosophy 80 egalitarianism 98, 115 biocentred 105 ego 112 Eisenstadt v Baird 62 elections United States (2008) 182 Electronic Privacy Information Centre (EPIC) 170 Elliot, Gil 77, 80, 87 embryology 41–2 development in 150 development of 146–7 emergence 12 emergency broadcasting 164 empowerment 106 end of life issues 62 enemy combatants 64 energeia 145

ensoulment 146–8, 160 environmental catastrophes 107 environmental crime 113 environmental justice 113–5 environmental others 106 epidemics 107 epistemic control 78 epistemic state life as 74 epoch founding 60 equal treatment 49 Eriksson, Kirilova 150, 160 eternity image of 27 Ethical Know-How 138 ethical politics 77 ethical probity 3 ethical responsibility 81, 138–9 ethical urgency 114 ethics application of 137 explaining 130 importance of flesh in 78 Spinoza’s notion of 118 eugenics 33, 148, 151 denunciation of 150 European Convention on Human Rights (1950) 149 European Union (EU) farming 103 euthanasia 48–9, 52, 65, 108, 152, 160 Evangelium Vitae 160 evolution 26, 32–43, 41 internal difference and 30–1 of law 41–2 Ewald, Francois 160 excess 18 execution 51 existentialism 88 exploitation 101 false consciousness 80 family wage 149 farming EU 103 faux nationalism 87 Federal Airport Authority (FAA) 165 feminine minoritarianism 76

Index feminism 74, 76–7, 81–3, 89–91, 93 abortion and 150 advanced capitalism and 104 feminist ethics 77 feminist theory 96 fetishisation 82 finalism 33, 36–7 doctrine of 31 Fitzpatrick, K. 60 flesh importance of in ethics 78 flux 88 foetal medical interventions 100 food production 100 force law without 11 forced sterilisation 33 Ford, Henry [1863–1947] 149 forensic futures 86 forensic philosophy 74–94 Foucault, Michel [1926–84] 1, 5, 47, 52, 59–60, 63, 66–9, 75, 104, 112, 120 foundational humanism 4 Fourteenth Amendment 49 France abortion 160 Frank, T. 167 Franklin, Sarah 99, 102 fraternity 135–6 free markets and trade 190 free speech 20 free will time and 26 functions 13 fundamental freedoms 80 Gaddis, J.L. 192–4 Gatens, Moira 91 Geertz, Clifford James [1926–2006] 126 gender binaries 3 genderisation 104 Gene Watch 103 General Agreement on Tariffs and Trade (GATT) 101 genesis 12 genetic code 99

203

genetic data commercial exploitation of 100 genetic engineering 100, 104 animals 103 food 139 genetic interventions 100 genetics 102 genocide 79–80, 150, 160 Genome Project 102 Geoffroy-Saint-Hilaire, Etienne [1772–1844] 158 Geoffroy-Saint-Hilaire, Isidore [1805–61] 158 George, Larry N. 186 German Yearbook of International Law 160 Ginsberg, Justice Ruth Bader 49 Glendinning, Simon 136–7 global crime genocide as 79 globalisation 102, 187 God life and 157–8 Gonzales, Albert 64 Gonzales v Oregon [formerly Oregon v Ashcroft] 62 Goo, S.K. 170 Good Morning America 179 Goodman, A. 172 goodwill 27 Gousset, Thomas Marie Joseph [1792–1866] 147 Gray, C.S. 184 Greece return to democracy 181 Greenberg, K. 64 Griswold v Connecticut 62 Guantanamo Bay 65, 172 renditions 11 Guattari, Pierre Félix [1930–92] 1 passim Guillaume, Laura 4 Gulf War (1990–1) 185, 191 Gury, Jean Pierre [1801–66] 147 Hallowell, Susan 170 Halsey, Mark 113 Hanafin, Patrick 2–3, 73 haptic visuality 171–2

204 Index Haraway, Donna 104 Hardt, M. 101–2, 164, 181 Harlan, Justice John Marshall [1899–1971] 62 Harvard Law Review 70 Hayles, Nancy Katherine 98, 122–4, 128 health 3 health care 108 Heatwole, Nate 168 Hegel, Georg Wilhelm Friedrich [1770–1831] 120 hegemony 87 Heidegger, Martin [1889–1976] 120 Hellegers, André [1926–79] 121–2, 125, 138 Heritage Seed catalogue 102 hermeneutic subjectivity 89 hierarchies dislocation of 97 Hirsch, M. 172 historical scholarship 36 History of Sexuality 68 Holmes, Oliver Wendell [1841–1935] 2, 24–5, 27, 33–43 Holocaust 160 homicide abortion as 147–8 Homo Sacer 65, 142, 151, 154 homogenisation 87 homosexuality 62 hospitality non-clinical 137–9 Hudson, Sun [2004–5] 67 humachines 136 human formation of 138 idea of 3–4 notion of 96 human nature 104 human rights 20, 55, 107, 160 abortion and 148 international law on 149 post World War II 151 unborn children and 150 humanism 114, 117–8 classical 115 humanities culturalism 124

Hume, David [1711–76] 101 Humphrey, Vice President Hubert Horatio [1911–78] 195 Hussein, Saddam [1937–2006] 180 Husserl, Edmund Gustav Albrecht [1859–1938] 120 hydration refusing 61 hypercolonialist capitalism 119 idea 12 identity 55 ideologies 74 illegal trade animals 103 illegalism 52 image dogmatic 27 image-processing programs 169 Imaginary Domain, The 70 imbrication 60 immanence 12–3, 113, 120, 156 immaterial labour 99–101 Imperial Life in the Emerald City 194 impersonal individuations 69 improvised explosive devices (IEDs) 185 inanimate objects offences and 40–1 incest 16 incorporeal materialism 63 incorporeal transformation 63 indigenous land rights 102 individualism liberal 115 individuation 70 industrial disasters 80 infertility 67 informatics of domination 104 information nodes of 81 information processing 100 infotainment 108 Ingaray, Luce 91–2 insurance commercial exploitation of genetic data for purposes of 100 intellectual property rights 99 intelligent weapons 107

Index intensity 89 intensive 69 interconnections 3, 106 interior psychology 14 internal difference 29–31 International Covenant on Civil and Political Rights (CCPR) (1976) 149–50, 160 international law war and 188–91 interrogation 64 interstices existence 83 interstitial change 43 interstitial legislator 43 intervention 181 inventive time as 27 Iranian Embassy siege 186 Iraq invasion 179–83 legitimising factors 189–90 public opinion 179–84 Irigaray, Luce 88 isomorphic annexation 90 isomorphic systems 75 Ivison, Duncan 15, 17 Iyer, Lars 47 Johnson, Chalmers 181 judge-made law 24 judgements creative 38–9 judicial activism 24 jurisprudence 21 deathbed 2 differential 1–2 rights 2 justice 9, 12 affirmation of 10 law and 7 limiting 21 notion of 182 Kafka, Franz [1883–1924] 14 Kagan, R. 189 Kant, Immanuel [1724–1804] 8–9, 12–4, 120 Kantian critique 8–9 Kantian ethics 10 Kennedy, Justice Anthony 49

205

Kennedy Institute of Ethics Journal 121 kinesthetics 171 knowledge 102 archaeology of 74 Kroker, Arthur and Marilouise 83 Lacan, Jacques-Marie-E*mile [1901–81] 6, 16 Laci and Conner’s Law 161 land legal claim to 15–6 Langdell, Christopher Columbus [1826–1906] 34 language symbolic system of 7 Language and Death 153 Language and Negativity 154 Lara Croft 108 law 12 biology and 33 biopower as 4 concept of 14–5 creativity and time in 29 deconstructing 7–11 desire and 17 differentiation of 34, 42–3 duration in 34, 39 evolution of 41–2 history of 15, 37 justice and 7 logical consistency and 34 nature of 8 new extensions of 2 primacy of 6 pure 10 reconsideration of 40 relation between terror and 10 rethinking definition of 5 scope of 6 time of 33–43 transcendent status of 16 understanding of 17 war and 188–91 without force 11 lawful reconfigurations of 14 lawfulness 12 Lawrence v Texas 62 laws 9

206 Index ‘Leave All Blades Behind’ Act (United States) 175 Lefebvre, Alexandre 2, 24 legal judgements 15 legal order built on death 47 legal scholarship 36 legal theory 6–22 legality 6 legitimation 4, 15, 116 Lehmkuhl, Augustine [1834–1918] 147 Leibniz, Gottfried Wilhelm [1646–1716] 158 Levinas, Emmanuel [1906–96] 120, 132–5, 138 liberal individualism 115 liberalism 101 liberation notion of 182 libido 88 life arbitration over 4 biotechnologies of 100 changing structure of 96 Christian affirmation of 111 defining 150 as epistemic state 74 evolution and 32 gift of 145 God and 157–8 nature of 86–7 notion of 3 politics of 1, 3, 96–9 potential 145–8 pro-life politics 5 right to 155, 160 United States 160 synthetic boundary with death 54 theory of 144 threatening force, as 107 value attributed to 108 viability 3, 74 life, right to 142, 148–50 life support 151 removal from 67 linguistic paradigm 6 demise of 1 Lippit, Akira 173

litigation 24 livestock farming 103 living shifting boundaries between dying and 5 Living and the Dead, The: Variation on de anima 161 living wills 48 Llewelyn, John 132 location 101 Locke, John [1632–1704] 101 Lockerbie bombing 165 logic 91 logical consistency law and adjudication 34 Lucretius (Titus Lucretius Carus) [c.BC99–55] 120, 159 Lury, Celia 102 Lyotard, Jean-François [1924–98] 75–7 Mabo v Queensland 15–7 MacCormack, Patricia 3 machines dependence on 108 Mackenzie, Adrian 119 McNeil, James 168 McNeil Technologies 168 magnetometers 169 majoritarian culture 77, 91 majoritarian episteme 74 majoritarian ideology 90 majoritarian logic 91 Marks, Laura 171 Marrati, Paola 31 Marshall, Chief Justice John [1755–1835] 41 Martin, Andrew 165 Marx, Paul 150, 152, 161 masculinity threat to 83 material practices 66–9 material transformation 77 materialism 105 matter 26 Matthews, Joseph 183, 187 Maturana, Humberto 122, 124, 128–9 mechanism 33 Meda and Hecuba 108 media science 96

Index mediation 89 medical intervention 66–7 medical treatment refusal of 64 refusing 49 melancholia 106 memory 26 resistance and 84 mental harm 64 mentally defective forced sterilisation of 33 mere life 2 metanarratives of knowledge 74 metaphysics 74, 81 Metaphysics XI 157 micro-diversities 102 migration 100 militarism 187 military power normalisation of 194 Miller, L. 170 minoritarianism 84 devolved ambiguity 74 misogyny 79 mobile technology 136 Mobuto Sese Seko Nkuku Ngbendu wa Za Banga [1930–97] 181 modification continuous 30 monitoring closed-circuit 172–5 moral panic 106 morality 26 Morse, Margaret 171 Most, Mark 136 motherhood state-supported 149 multiculturalism advanced capitalism and 104 multiplicity 99 Muslim fundamentalism 166 myth 87 Nain, Moses 176 narcissism 112 narrative death of 76 nation-building 195 National Security State 188

207

National Security Strategy (NSS) 188–91 nationalist militarism 187 natural laws advanced capitalism and 104 natural resources 102 naturalization 97, 104 nature 56 nature-culture continuum 96, 113 necro-politics 107–15 necro-technology 108 necrophilosophy 3, 73–94 scope of 74 negativity 112 Negri, A. 101–2, 164, 181 New York Times Magazine 183 Nietzsche, Friedrich Wilhelm [1844–1900] 112, 120 Nixon, President Richard Milhous [1913–94] 195 no-fly list 166 nomadic becomings 113 nomadic philosophy 98 non-clinical hospitality 137–9 Noonan, John 146–7, 160 Novotny, M. 174 nutrition refusing 61, 65 O’Connor, Justice Sandra Day 49 Oedipal structure 16 Oedipus at Colonus 153 Oedipus complex 18–9, 83 offences inanimate objects and 40–1 ontological distinctions 70 ontology 26 Deleuzean 69 ontotheology 153 open systems 129 Open, The: Man and Animal 64 organisms 31 organs preservation of 151 traffic in 100 originary decision 60 otherness 100, 104 otherwise than being 120 outsourcing 100

208 Index ownership land 15–6 Pahlavi, Shah Mohammad Reza [1919–80] 181 pain 64 palliative care 66–7 palliative supplement 67 paralogism 19 paranoia 112 Parks, Lisa 4, 169 Parnet, C. 54 patenting 99 Patriot Act (2002) 165 Patton, Paul 15, 17, 120, 191 Pearl Harbour 193 Pelosi, Nancy Patricia D’Alesandro 182 persistent vegetative state (PVS) 64–5, 70–1, 151 personhood divestment of 157 Petchesky, Rosalind Pollack 160 Petro, Patrice 165 phallologocentrism 82, 84–5, 98 Philippines return to democracy 181 Phillips, Adam 110 philosophy 13–4, 25, 87 conversion of 27 ethical task of 145 forensic 74–94 nomadic 98 phylum machines 88 physician-assisted suicide 48–56, 62, 65, 108 constitutional protection for 49 physics 26 Pinochet, Augusto José Ramón [1915–2006] 181 Pius IX, Pope 147 Planned Parenthood of Southeastern Pennsylvania v Case 62 Plaza de Mayo 107 Poe v Ullman 62 political agency 3 political opinion 102 political representation 104 politicing predication 60, 65

politics rethinking definition of 5 war and 188–94 popular culture 108 population management 60 Portugal return to democracy 181 Posner, Richard A. 38–9 post-anthropocentrism 98–9 post-colonialism 83 post-human bioethics 117–36 post-human theory 98 post-philosophies women and 82–3 post-structural male hysteria 76 post-structuralism 73–4, 81, 87 loss of subjectivity in 74 truth and 88 postmodernism 76, 80–1, 92 potentia 110–2, 142, 145 potential life philosophy of 154 potentiality 12, 106 Potter, Van Rensselaer [1911–2001] 121–2, 125, 131, 138 on bioethics 125–30 powers 74 pre-emption 180, 189–90, 193 pre-individual singularities 69 precedent 54 prediction 63 prejudice 90 prescriptions 20 presuppositions 25 preventive war 191 primordial liberty 70 privacy American jurisprudence on right to 61–2, 68–71 invasion of 170 notion of 59 right to 49 as singularity 69–71 private nuclear family notion of 3 pro-life politics 5, 150, 160–1 process ontology 106 processes 3 production 18

Index Project on Government Oversight (POGO) 167 Protevi, John 2–3, 120 Proust and Signs 25 psychology interior 14 public opinion Iraq invasion 179–84 punishment 43 Pure Immanence: Essays on a Life 156 pure law 10 Putnam, Robert David 193 queer rights 90 queer theory 83, 89 Quill v Vacco 49, 51–2 Quinlan case 66 Quinlan, Karen Ann [1954–1985] 67 racial profiling 163 racialisation 97, 104 racism 60 advanced capitalism and 104 Schiavo case 67–8 Raddatz, Martha 179 radiation 170 Rapiscan 169 Raqs Media Collective 100 Rawls, J. 67 Reagan, President Ronald Wilson [1911–2004] 193 real flesh 90 real time 26 reality 119 desire to master 81 realpolitik 21 Recherches physiologiques sur la vie et la mort 151 recognition 27 Reece, K. 166 refusing medical treatment 49 regime change 181 Reich, Warren T. 121, 125 relationality 119, 136 relativism 76, 88, 139 religion 26, 87 Remnants of Auschwitz: The Witness and the Archive 65, 68, 152

209

rendition Guantanamo Bay prison 11 Renquist, Chief Justice William Hubbs [1924–2005] 50–2, 54 representation 73 reproduction 149 advanced capitalism and 104 subsidised 149 reproductive politics 149 reproductive powers 102 resistance memory and 84 responsibility 81 Rethinking Global Security 165 Rhodes, E. 187–8, 193 Rich, Ben A. 74 Riggs v Palmer 43 right to bear arms 20 right to die 48, 59–71 American jurisprudence on 61–2 US court decisions on 2 right to life 142, 148–50, 152, 155, 160 United States 160 right to privacy 49 jurisprudence 68–71 right to work 149 rights 21 concepts of 15 rights jurisprudence 2 rights-giving/rights-depriving state 5 Roberts, Marie Louise 160 Rodowick, David Norman 84 Roe v Wade 62 Roman Catholic church 143, 155 culture of unborn 160 doctrine on abortion 145–52 Rose, Nikolas 97 Roy, Arundati 100 Rubenfeld, J. 70 Rumsfeld, Donald Henry 64 Sanders, Will 15, 17 satellite remote sensing 169 Scalia, Justice Antonin 49, 57–8 Schiavo case 59–71 Schiavo, Terri [1963–2005] 67 schizoid capitalism 105–7 science 3

210 Index scientific experiments animals 103 screening airport 163–76 employees undertaking airport 165–6 introduction of airport 165–6 searching physical 170 Seattle Times 168 security 179–94 airport 163–76 security breaches exposing 168 seemings 81 self 106, 112 concepts of 15 transforming 81 self-realisation 73 self-regulation 20 selfhood 81 sensing technologies developing 169–72 serial killers fascination with 91 Serres, Michel 77 sexual difference 3 sexual politics 149 sexualisation 97 sexuality 60, 149 advanced capitalism and 104 Schiavo case 67–8 Sharkey, J. 166, 170 Shiva, Vandana 101–2 signal intelligence 164 signification axes of 80 system of 19 Simondon, Gilbert [1924–89] 113, 124 Simulacra and Simulation 186 simulacrum 104 simulation 100 simultaneity 26 singularity 61 concept of 59 privacy as 69–71 Sinnerbrink, R. 60 skyjackings 165

Slocum-Schaffer, Stephanie A. 86 Smith, Daniel W. 120 social assemblage 16 social machines 16–9 social normativity 6 social order 20 social racism 67 social security 149 social structures 17 Society 68 society concept of 16 interests and needs of 37 superstitious 40 Society Must Be Defended 68 solidarity trans-species 105 Somoza, Anastasio [1925–80] 181 Souter, Justice David 49, 54–5 South Korea return to democracy 181 Southern Pacific Co v Jensen 43 sovereign power 60 sovereignty 68 Spain return to democracy 181 specificity 89 spectacle 73 post-human 76 speed epistimes 75 Spencer, Herbert [1820–1903] 26 Spinoza, Baruch [1632–77] 106, 112, 118–20, 157–9 Stacey, Jackie 102 state of exception 11 statelessness 100 status 63–4 Stelarc (Stelios Arcadiou) 135 stem cells 99 sterilisation forced 33 Stevens, Justice John Paul 49, 52–5 Stewart, Rory 195 Stiegler, Bernard 124, 136–7 Story, Justice Joseph [1779–1845] 41 Strohm, C. 167 students rights of 86 subjection 20

Index subjectivity 98 loss of in post-structuralism 74 women and animals denied 78 subjects 9 subsidies livestock farming 103 subsidised reproduction 149 suffering 90 Suharto, Mohammed [1921–2008] 181 suicide virtual 110 suicide bombers 107 Suskind, Ron 183 sustainability 90, 112 sweatshops 101 synthetic reproduction 75 system of order 6 systems deciding on 129–30 systems theory 124, 129–37 Taiwan return to democracy 181 Taylor, R.N. 172 technicism cybernetics 124 technology 3, 76, 79, 96 tendencies 31, 42 terminally ill 48, 50, 56, 83 termination of pregnancy see abortion Terri’s law 59 terror 20–1 internalisation of 19 relation between law and 10 terror of the signifier 1 terrorism 21 preventing 190 terrorist attacks of 11 September 2001 5, 163–6, 179, 184, 189–90 evolution of war after 192–3 terrorist suspects treatment of 181 terrorists animal rights activists called 91 thanatos 99 theatre of cruelty 16 theory definition 12

211

theory of theory 11–2 Thomas Aquinas, Saint [1225–74] 143–7 Thomas, Justice Clarence 49 thought image of 25, 27 Thousand Plateaus, A: Capitalism and Schizophrenia 18, 71 Threat Image Projection (TIPS) program 168 threshold subjectivity 77 time 26–46 free will and 26 as inventive 27 mechanistic conception of 28 time of law 33–43 tissues preservation of 151 torture 64 totalitarian management 60 totality breaching 131–7 Totality and Infinity 134 touch 171 trace-sensing devices 169 trade 190 tradition 54 trans-individuality 113 trans-species solidarity 105 transcendence 74, 120 transcendent presence of 7, 9 transcendentalism 88 transformation becoming-earth axis of 105 transplantation 64, 151 Transportation Security Administration (TSA) 163–4, 169–70 complaints against 170 conditions of employment 165–8 morale of employees 167 objects confiscated by 174–5 operation of 164–5 Tree of Knowledge, The 128 Tripodina, C. 58 truth 73–4 post-structuralism and 88 tube-rape 67

212 Index uber-terminators creation of 83 Uhlmann, Anthony 49 unborn Catholic culture of 160 human rights of 150 politics of 142–59 Unborn Victims of Violence Act (United States) (2004) 161 undecidability 130 unique intersections 89 United Nations (UN) 79 United States airport screening 163–76 elections (2008) 182 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (2002) (United States) see Patriot Act (2002) Universal Declaration of Human Rights (1948) 142, 149–51, 160 unthought 74 valorisation 123 Varela, Francisco [1946–2001] 122, 124, 128–9, 138 Vatican 160 Venner, F. 160 Vietnam War 179, 185–6, 192, 195 lessons from 186–7 Violence and Metaphysics 134 viral contamination 113 Virilio, Paul 169, 185 virtual 69 theory of 12 virtual suicide 110 virtual thresholds 69 viruses proliferation of 108 vitalism 13, 112 vitalistic ethics 77 vitalistic philosophy 75, 89

vitalistic reason 80 von Baer, Karl Ernest [1792–1876] 147 war 17, 51, 74, 80, 100, 179–94 capitalism and 190 evolution of post-terrorist attacks of 11 September 2001 192–3 international law and 188–91 politics and 188–94 as spectacle 183–4 war crimes 150 war on terror 4, 10–1 Washington v Glucksberg 49–52 Watts, Michael 183, 187 weapons of mass destruction (WMD) 180 Webster, Daniel [1782–1852] 189 welfare state 149, 160 What is Philosophy? 26 What Remains of Auschwitz 151 Wiener, Norbert [1894–1964] 123 Wolfe, Cary 98, 129, 131 women 78–9 idea of 84 minoritarianism and 84 post-philosophies and 82–3 Woodward, Kathleen 122 work right to 149 World Bank 101 World Trade Organization (WTO) 101 x-ray imaging airports 164, 166, 168–70, 172–4 xenotransplantation 76, 83, 103 Yugoslavia break-up of 181 Žižek, Slavoj 181, 195 zoe 96–115 zones of indistinction 60 Zylinska, Joanna 3