1AC
In January 1997 the Rehnquist Court combined two cases concerning the right to
die. Rehnquist’s contradictory opinion on the case mobilized the law as a
stabilizing discourse, invoking the state’s ability to criminalize death in order to
reify national identity. Yet the resulting confusion in the Court unveiled the
instability of the law in defining life and death
Hanafin 09. Patrick Hanafin, professor of law at Birbeck University (London, UK). Rights of
passage: law and the biopolitics of dying. In: Braidotti, R. and Colebrook, C. and Hanafin,
Patrick (eds.) Deleuze and Law: Forensic Futures. Basingstoke, UK: Macmillan Publishers
Limited, pg. 86
The case I want to look at in some detail is exemplary of the legacy of this normative model. The United States’ Supreme
Court’s adjudication in the jointly heard cases of Washington v Glucksberg and Quill v
Vacco (521 U.S. 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 physician- assisted 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 judgment 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. 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:
our 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 U.S. 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 so doing 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 U.S. 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 practises 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 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 judgment 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 denial of the right to die is an attempt by an all expansive state to maintain
control over the power of life and death. This form of biopolitics comes as the
expense of autonomy and quality of life – empirically proven
McDorman 5 [Todd F. McDorman is Associate Professor in the Rhetoric Department at
Wabash College, “Controlling Death: Bio-Power and the Right-to-Die Controversy”, published in
Communication and Critical/Cultural Studies Vol. 2, No. 3, September 2005, pp. 257-279]
Normalizing the State’s Interest in Life: The Root of Domination As Foucault previously noted, the willful death of
the citizen through ‘‘suicide’’ has been a controversial issue throughout history. The response of
the state to efforts to choose death has been to develop means of supervision and discipline that
create a sort of public knowledge that normalizes the superiority of life and in particular the
state’s claim over it. That is, through legal instruments*/statutes and selected court decisions*/the
importance of preserving the life of the body became public knowledge. The selected fragments
demonstrate the trajectory of the issue, high- lighting both the state’s persistence in regulating or supervising death and the
changing nature of the argument as the general prohibition against suicide became a more particularized concern with assisted
death. As a critical rhetoric, this section traces the roots of domination in exposing what has
become the underlying principle for other efforts that discourage or prohibit the RTD. The laws
and court cases discussed represent examples of authoritative discourses that normalize the
state’s interest in life and reflect the expansion of bio-power into the RTD. At least since St. Augustine’s
condemnation of suicide, there has been a presumption against the moral and legal legitimacy of ending one’s life.24 The thread
connecting euthanasia, morality, and the state’s prohibition of suicide is codified in William Blackstone’s legal commentaries.
Forming the basis of US common law, these commentaries established a presumption against suicide and, later, against assisted
suicide or mercy killing and euthanasia.25 The prosecution of early instances of euthanasia or mercy killing as homicide
demonstrated the state’s opposition to the practice, through a form of discipline, while signaling state appropriation of, or control
over, the body.26 By treating the issue as a definitional question (mercy versus murder), prosecution maintained focus on
classification, initially deflecting questions of rights and autonomy, and established a legal norm that willfully ending one’s life was
not allowed. Such focus allowed the state to overlook mitigating circumstances, the suffering of the individual, and the lack of value
life had for the person in question. By changing their strategy from attempting to distinguish ‘‘mercy killing’’ from ‘‘murder’’ to
seeking legal permission for the act, RTD advocates sought to offer resistance, thereby challenging the dominant discourse. Such
resistance demonstrates Foucault’s claim that power is relational, that it exists in relation to the absence or suppression of resistance
and it depends upon that resistance in maintaining its power network.27 What we observe are the initial makings of
a critical rhetoric critique of freedom on the part of activists, changing their strategy in an effort
to protect the dying. The shift to examinations of a (constitutionally protected) right intimately
connected to individual autonomy brought the legal system fully into the controversy. Almost
uniformly, regulatory apparatuses such as state governments, often supported by the
medical profession and religious groups, responded by opposing efforts at legal relief.
The state consistently has asserted that its interests demand the right to control
questions of life and death. New Jersey’s position in Matter of Quinlan (1976) was an early
and clear indication of the state’s anti-euthanasia stance. Despite the unanimous opinion of medical
experts that Karen Ann Quinlan had no hope of recovery, her father’s request for relief was
opposed by Karen’s doctors, the hospital, the county prosecutor, and the State of New Jersey.28 New Jersey’s Attorney
General contended that the state’s ‘‘interest ...in the preservation of life,’’ despite Karen’s condition,
demanded a ruling in its favor. However in a radical move, the court ignored recognized medical practice and ruled in Quinlan’s
favor based upon a right to privacy. Similarly, in Cruzan (1990), the brief filed by the federal government claimed the
state has a ‘‘profound interest in preserving human life’’ and should be given ‘‘considerable
flexibility in adopting rules’’ on euthanasia. In reasoning that proved persuasive to the Supreme Court, they called for the
use of an extremely forgiving standard that only measures if a ‘‘rule is ‘reasonably designed’ to serve legitimate state interests.’’29
Chief Justice Rehnquist’s majority opinion validates and normalizes the state’s claim,
characterizing Missouri’s ‘‘interest in the protection and preservation of human life’’ as being of
the utmost importance and credibility.30 As is suggested later in this essay, this normalization of the
state’s interest in life is accorded such immense power that it may overwhelm the
autonomy of all citizens, since the state may assert its superiority regardless of the
rationality and thought involved in an individual’s choice. Perhaps the most dramatically visible*/as well as
persistent*/effort to discipline those who challenge the state’s control over life is observed in Michigan’s repeated prosecution and
ultimate conviction of RTD icon Jack Kevorkian. The almost decade-long pursuit of Kevorkian demonstrates the extent of state
opposition to individual choice-in-dying and the lengths to which it will go in insuring control over life and death decisions. Unlike
in Quinlan and Cruzan, Kevorkian’s patients were not comatose, were typically competent, and, on occasion, had not reached a
terminal stage in their illness. His suicide assistance continued despite three trials and Michigan’s passage of statutes explicitly
designed to prevent his practice.31 Kevorkian’s brazen act of moving from PAS to active euthanasia in the death of Thomas Youk,
broadcast on 60 Minutes in November 1998, finally resulted in his conviction after a trial that featured Kevorkian representing
himself in court. In 1997, the government reasserted its opposition to the RTD and assisted suicide
through two separate courses of action. First, the Clinton administration joined the Justice Department in filing two
amicus curiae, or friend-of-the-court, briefs in Washington v. Glucksberg and Vacco v. Quill. Despite acknowledging
the significant interest of the individual in avoiding the protracted suffering, pain,
and mental anguish that often accompany terminal illness, one of the briefs asserts that
‘‘overriding state interests justify the state’s decision to ban physicians from
prescribing lethal medication. The state has an interest of the highest order in prohibiting
its physicians from assisting in the purposeful taking of another person’s life.32 Although the
Economist calls the filing surprising considering the Clinton administration’s stress on individual autonomy, this analysis
demonstrates that it would have been surprising only if the administration removed itself from the controversy or supported an
individual’s interest in making end-of-life decisions.33 Second, in the spring of 1997, the House of Representatives and the Senate
passed a highly symbolic PAS bill. Initially inaccurately reported by some as a ‘‘ban’’ on assisted suicide, the bill prevents the use of
federal funds in paying for procedures connected to suicide assistance. The bill has no effect on patient care but served perceptually
to reinforce the state’s claim over life. Passed in the House by a vote of 398/16 and in the Senate by a vote of 99/0, the bill was
signed into law by President Clinton.34 Since the passage of the Oregon Death with Dignity Act, the most successful effort at
resistance, there have been multiple attempts at the federal level to thwart the decision of Oregon residents. These efforts initially
consisted of two failed congressional attempts to pass the ironically titled Pain Relief Promotion Act, which ostensibly would have
worked to relieve patient pain by a de facto over-ruling of the Oregon law.35 Subsequently, the 6 November 2001 ‘‘Ashcroft
Directive’’ attempted to achieve the same result through non-legislative means. A reversal of the policy announced by former
Attorney General Janet Reno, this proclamation authorized federal agents to take action against physicians who prescribe lethal
drugs to terminally ill patients*/actions that are legal under the Oregon statute.36 Four Oregon residents in various stages of
terminal illness immediately challenged Ashcroft’s directive and, after an initial 2002 district court decision in favor of Oregon and
the legitimacy of its death with dignity law, the government appealed to the United States Court of Appeals for the Ninth Circuit.37
On 26 May 2004, a year after hearing the appeal, that court found the Ashcroft directive an unlawful effort to stifle ‘‘democratic
debate about physician-assisted suicide.’’ Undeterred, the federal government made an additional effort to revalidate its power of
supervision by persuading the Supreme Court to hear Gonzalez v. Oregon.38 The most spectacular controversy to
illustrate the persistence of the state in using legal instruments to control the body is the Terri
Schiavo saga. This unusually complex case, even by RTD standards, pitted family members against one
another in debating proper treatment and garnered a level of media scrutiny likely unparalleled
in the already visible controversy. The case produced novel efforts to preserve the life of the body in opposition to court
decisions and rebuked appeals, all in favor of Ms. Schiavo’s husband and guardian, Michael Schiavo. Florida’s Governor Jeb Bush
issued an October 2003 executive order, under the cover of a special Florida house bill, that prohibited the withholding of nutrition
and hydration from Schiavo. The measure was temporarily effective in preserving Schiavo before being rejected as unconstitutional, which produced yet further legal wrangling between the parties and drew state and national institutions deeper into the
supervision of Ms. Schiavo’s treatment. In what was another unprecedented act, the US congress hastily
passed the ‘‘Compro- mise Bill,’’ signed into law by President Bush on 21 March 2005, less than forty-eight hours after it
was introduced by lawmakers. The bill was directed specifically at Schiavo for the purpose of granting
jurisdiction to a US district court to hear suits brought forth by Schiavo’s parents in their efforts
to maintain treatment. The intent of the act to normalize the state’s control over life is plainly
expressed in section two of the bill whereby legal proceedings are justified against any ‘‘person
who was a party to state court proceedings relating to the withholding or withdrawal of food,
fluids, or medical treatment necessary to sustain her life.’’ The brazen act, ironically
championed by states-rights Republicans, signals a federal interest to regulate life and
death that threatens to impede the authority of judicial decisions and upset the checks and
balances of the constitutional system. The district court ultimately validated the previous court rulings and, after
multiple appeals for hearing were rejected by the US Supreme Court, Terri Schaivo was permitted to die.39 The position of
the state in each of these instances demonstrates a strong desire to control end-of-life decisions
and discipline those who would attempt to evade supervision. The history of the RTD demonstrates
that the state has attempted to normalize its ‘‘interest’’ in the body by using a variety of
technical, legal discourses to create public knowledge of the abnormality of willfully seeking death. In
withholding, restricting, and opposing the RTD, the state is at once demonstrating its dominance and
exerting agency-limiting control. Consistent with the articulation of bio-power, the ‘‘power play’’
at work here is not threatening to end life, but threatening to preserve and monitor it through
regulatory means. Advocate efforts to establish a ‘‘right’’ to die might best be understood as an attempt to adjust the power
flow between the state and the subject, in the process expanding individual agency. Faced with challenges from RTD advocates, the
state has responded by appropriating the hospital and creating the powerless vegetative subject, as the next section explores.
Denying end-of-life options serves to perpetuate the continual fear of death and
failure among doctors and creates a dislocation of the public’s narrative from the
reality of life – this ultimately creates a fantasy world in which death is the
ultimate taboo and confined to dark corners of antiseptic hospitals
McDorman 5 [Todd F. McDorman is Associate Professor in the Rhetoric
Department at Wabash College, “Controlling Death: Bio-Power and the Right-toDie Controversy”, published in Communication and Critical/Cultural Studies Vol.
2, No. 3, September 2005, pp. 257-279]
Doctors, not unlike any other professional, remain committed to overcoming their ‘‘adversary,’’ which is
not only disease, but death itself. As Foucault explains, ‘‘behind the doctor’s back, death
remained the great dark threat in which his knowledge and skill were abolished.’’41 In
continuing to attempt to defeat this threat*/to extend physician knowledge*/the viewpoint
might be simplified to the mantra ‘‘death is the enemy.’’ In using this as the ultimate truth,
doctors can, perhaps unintentionally, use the hospital as a structure to maintain the body. The
potential result, as Herrle-Fanning explains in a different context, is that ‘‘if both patient and practitioner have accepted an
anatomical understanding of the body, simply ‘submitting to fate’’’*/in the present case allowing for death to occur*/’’is an almost
unthinkable option.’’42 Consequently, life-prolonging medical technologies, such as life support systems,
feeding tubes, and respirators*/hallmarks of contemporary ‘‘bio-power’’*/are normalized and
can be read as ‘‘techniques for achieving the subjugation of bodies.’’43 When preserving life is
identified as the ultimate goal by the state*/buttressed by their self-proclaimed (and judicially
legitimated) claim of an unqualified interest in life*/the physician can be utilized as an
instrument for transmitting the ideology. The result may be that in confrontations with
death, the patient risks becoming a captive object, a site of struggle between physician and
nature, rather than an active subject who is treated as a person. Unable to cope with death, with ‘‘failure,’’
doctors may impose their own form of subjugation upon the body. As physician Sherwin Nuland explains, ‘‘in the personalities of
many doctors’’ there may be a ‘‘fear of failure’’ that creates an abnormally high ‘‘need to control. ...In
an attempt to maintain control, a doctor, usually without being aware of it, convinces himself
that he knows better than the patient what course is proper.’’ It is also possible that the physician, even when
death is inevitable, ‘‘may maintain a bit of authority by exerting ...influence over the dying process ...by controlling its duration and
determining the moment at which’’ life will be allowed to ‘‘end.’’44 Notably, Nuland’s description of the ‘‘control’’ and
‘‘authority’’ exerted over life is nearly a mirror image of the sort of supervision that accompanied
the advent of bio-power as explained by Foucault.45 Beyond the actions of doctors, the hospital
can appear to be a prison-like structure for the near-dead, a place to be contained, controlled,
and, not least importantly, hidden. While the historic foundations and purposes of the hospital expounded upon by
Foucault seem questionable today*/and there can be no denying that the hospital and modern medicine have greatly improved life
and its quality*/there are similarities. In Madness and Civilization, Foucault argues Paris’s Ho ˆpital Ge ´ne ´ral served more of an
administrative function than as a medical center. That is, the hospital primarily provided ‘‘an instance of order,’’ confining the
unemployed and impoverished in times of economic recession.46 Hoeffler and Kamoie extend this conclusion in arguing similarly
that during the 1800s, American hospitals ‘‘typically provided only food, shelter, and nursing care to dislocated indigents. Very little
in the way of clinically sound treatments were available there.’’47 Today, the hospital continues to serve an
administrative function through confinement of a slightly different nature. This is, as Phillipe
Arie ´s argues in his history of Western attitudes toward death, that in addition to its ‘‘curative
function,’’ the hospital also has become ‘‘the designated spot for dying.’’48 This development furthers the
regulation of death, the stigma it acquires and, at least superficially, aids in the normalization of life. When the RTD is
implicated, the hospital serves to maintain vital signs rather than to heal, confining the body
according to a mangled web of medical protocols. Life support, like Foucault’s picture of the asylum, might
be seen as aiding the ‘‘conversion of medicine into justice, of therapeutics into repression.’’49
The procedures contribute to the creation of what Nuland terms a ‘‘method of modern dying.’’50
The sterility, isolation, and intrusiveness of this method have stigmatized death, have made
dying more unbearable, and likely have contributed to the appeal of euthanasia. Nuland argues that for
many of the dying, intensive care, with its isolation among strangers, extinguishes their hope of not being abandoned in the last
hours. In fact, they are abandoned, to the good intentions of highly skilled professional personnel who barely know them.51 While
Arie ´s explains that death was once a ceremony involving close personal friends and family rather than overseeing doctors and
nurses, our reliance on the hospital has eliminated such ritual ceremony and transformed death into ‘‘a technical phenom- enon.’’52
It is a point David Thomasma reinforces, commenting that hospitals provide ‘‘little possibility of maintaining the personal and social
ritual of dying.’’53 By segregating death, by excluding it from ordinary view, the idea that death is an
‘‘abnormality’’ is reinforced. This is consistent with and advances the state’s promotion of biopower, but it also ultimately makes death more difficult to face and accept. Hoeffler and Kamoie
explain that the transformation of death into a ‘‘process’’ has made it ‘‘very much an
extraordinary and disconcerting experience, and, understandably, Americans find themselves
struggling to adjust.’’54 It also has contributed to a tendency in American culture to ‘‘feel out of place in the foreign,
intimidating, antiseptic surroundings of a hospital or nursing home,’’ as visitors ‘‘struggle to find the right words during brief
irregular visits. Seeing death in this light, it is no wonder that they have come to fear and deny it. ’’55
James F. Bresnahan adds that ‘‘we
must ask ourselves whether, as a society, we have become simply
incapacitated from being sensible about when to stop treatments originally designed to help the
survivable survive. We continue to use them to afflict the dying. ...This is just another way of not
facing our problem.’’56 Banished to the hospital, dying is almost too painful to watch*/and often
we do not.
The Rehnquist decision can never be divorced from global biopolitical wars fought
over the definition of life itself, which manifest in the racist destruction of all that
which is outside Eurocentric definitions of “life”
Evans 10. Brad Evans, Lecturer in the School of Politics and International Studies at the
University of Leeds and Programme Director for International Relations, “Foucault’s Legacy:
Security, War, and Violence in the 21st Century,” Security Dialogue vol.41, no. 4, August 2010,
pg. 422-424, sage
***we do not endorse any of our author’s intent of ableist or gendered language and apologize
for our author’s use of it
Imposing liberalism has often come at a price. That price has tended to be a continuous
recourse to war. While the militarism associated with liberal internationalization has already received scholarly attention
(Howard, 2008), Foucault was concerned more with the continuation of war once peace has been
declared.4 Denouncing the illusion that ‘we are living in a world in which order and peace have
been restored’ (Foucault, 2003: 53), he set out to disrupt the neat distinctions between times of
war/military exceptionalism and times of peace/civic normality. War accordingly now appears to
condition the type of peace that follows. None have been more ambitious in map-- ping out this war–peace continuum
than Michael Dillon & Julian Reid (2009). Their ‘liberal war’ thesis provides a provocative insight into the
lethality of making live. Liberalism today, they argue, is underwritten by the unreserved righteousness of its mission. Hence,
while there may still be populations that exist beyond the liberal pale, it is now taken that they
should be included. With ‘liberal peace’ therefore predicated on the pacification/elimination of all
forms of political difference in order that liberalism might meet its own moral and political
objectives, the more peace is commanded, the more war is declared in order to achieve it: ‘In
proclaiming peace . . . liberals are nonethe-- less committed also to making war.’ This is the ‘martial face of liberal
power’ that, contrary to the familiar narrative, is ‘directly fuelled by the universal and pacific
ambitions for which liberalism is to be admired’ (Dillon & Reid, 2009: 2). Liberalism thus stands
accused here of universalizing war in its pursuit of peace: However much liberalism abjures war, indeed finds
the instrumental use of war, espe-- cially, a scandal, war has always been as instrumental to liberal as to
geopolitical thinkers. In that very attempt to instrumentalize, indeed universalize, war in the pursuit of
its own global project of emancipation, the practice of liberal rule itself becomes profoundly
shaped by war. However much it may proclaim liberal peace and freedom, its own allied
commitment to war subverts the very peace and freedoms it proclaims (Dillon & Reid, 2009: 7). While
Dillon & Reid’s thesis only makes veiled reference to the onto-- theological dimension, they are fully aware that its rule depends
upon a certain religiosity in the sense that war has now been turned into a veritable human crusade with
only two possible outcomes: ‘endless war or the transformation of other societies and cultures
into liberal societies and cul-­ tures’ (Dillon & Reid, 2009: 5). Endless war is underwritten here by a new set
of problems. Unlike Clausewitzean confrontations, which at least pro-- vided the strategic comforts of clear demarcations
(them/us, war/peace, citizen/soldier, and so on), these wars no longer benefit from the possibility of scoring
outright victory, retreating, or achieving a lasting negotiated peace by means of political
compromise. Indeed, deprived of the prospect of defin-- ing enmity in advance, war itself becomes just as complex,
dynamic, adaptive and radically interconnected as the world of which it is part. That is why ‘any
such war to end war becomes a war without end. . . . The project of removing war from the life of
the species becomes a lethal and, in principle, continuous and unending process’ (Dillon & Reid,
2009: 32). Duffield, building on from these concerns, takes this unending scenario a stage further to suggest that since wars for
humanity are inextricably bound to the global life--chance divide, it is now possible to write of a
‘Global Civil War’ into which all life is openly recruited: Each crisis of global circulation . . . marks
out a terrain of global civil war, or rather a tableau of wars, which is fought on and between the
modalities of life itself. . . . What is at stake in this war is the West’s ability to contain and manage international poverty
while maintaining the ability of mass society to live and consume beyond its means (Duffield, 2008: 162). Setting out civil war in
these terms inevitably marks an important depar-- ture. Not only does it illustrate how liberalism gains its mastery by posing
fundamental questions of life and death – that is, who is to live and who can be killed – disrupting the narrative that ordinarily takes
sovereignty to be the point of theoretical departure, civil war now appears to be driven by a globally ambitious biopolitical
imperative (see below). Liberals have continuously made reference to humanity in order to justify their
use of military force (Ignatieff, 2003). War, if there is to be one, must be for the unification of the species.
This humanitarian caveat is by no means out of favour. More recently it
underwrites the strategic rethink in
contemporary zones of occupation, which has become biopolitical (‘hearts and minds’) in
everything but name (Kilcullen, 2009; Smith, 2006). While criticisms of these strategies have tended to
focus on the naive dangers associated with liberal idealism (see Gray, 2008), insufficient attention
has been paid to the contested nature of all the tactics deployed in the will to govern illiberal
populations. Foucault returns here with renewed vigour. He understood that forms of war have always been
aligned with forms of life. Liberal wars are no exception. Fought in the name of endangered
humanity, humanity itself finds its most meaningful expression through the battles waged in its
name: At this point we can invert Clausewitz’s proposition and say that politics is the continuation of war by other
means. . . . While it is true that political power puts an end to war and establishes or attempts to
establish the reign of peace in civil society, it certainly does not do so in order to suspend the
effects of power or to neutralize the disequilibrium revealed in the last battle of war (Foucault, 2003:
15). What in other words occurs beneath the semblance of peace is far from politically settled:
political struggles, these clashes over and with power, these modifications of relations of force –
the shifting balances, the reversals – in a political system, all these things must be
interpreted as a continuation of war. And they are interpreted as so many episodes, fragmentations, and
displacements of the war itself. We are always writing the history of the same war, even when we are
writing the history of peace and its institutions (Foucault, 2003: 15). David Miliband (2009), without perhaps
knowing the full political and philo-- sophical implications, appears to subscribe to the value of this approach, albeit for an
altogether more committed deployment: NATO was born in the shadow of the Cold War, but we have all had to change our thinking
as our troops confront insurgents rather than military machines like our own. The mental models of 20th century mass warfare are
not fit for 21st century counter-- insurgency. That is why my argument today has been about the centrality of politics. People like
quoting Clausewitz that warfare is the continuation of politics by other means. . . . We need politics to become the continuation of
warfare by other means. Miliband’s ‘Foucauldian moment’ should not escape us. Inverting Clausewitz on a
planetary scale – hence promoting the collapse of all meaningful distinctions that once held
together the fixed terms of Newtonian space (i.e. inside/outside, friend/enemy, citizen/soldier,
war/peace, and so forth), he firmly locates the conflict among the world of peoples. With global war
there-- fore appearing to be an internal state of affairs, vanquishing enemies can no longer be sanctioned for
the mere defence of things. A new moment has arrived, in which the destiny of humanity as
a whole is being wagered on the success of humanity’s own political strategies. No
coincidence, then, that authors like David Kilcullen – a key architect in the formulation of counter-- insurgency strategies in Iraq
and Afghanistan, argue for a global insurgency paradigm without too much controversy. Viewed from the perspective of
power, global insurgency is after all nothing more than the advent of a global civil war
fought for the biopolitical spoils of life. Giving primacy to counter-- insurgency, it foregrounds the problem
of populations so that questions of security governance (i.e. population regulation) become central to
the war effort (RAND, 2008). Placing the managed recovery of maladjusted life into the heart of military strategies, it insists
upon a joined--up response in which sovereign/militaristic forms of ordering are matched by
biopolitical/devel-- opmental forms of progress (Bell & Evans, forthcoming). Demanding in other words a
planetary outlook, it collapses the local into the global so that life’s radical interconnectivity
implies that absolutely nothing can be left to chance. While liberals have therefore been at pains to
offer a more humane recovery to the overt failures of military excess in current theatres of
operation, warfare has not in any way been removed from the species. Instead, humanized in the name of
local sensitivities, doing what is necessary out of global spe-- cies necessity now implies that war
effectively takes place by every means. Our understanding of civil war is invariably recast.
Sovereignty has been the traditional starting point for any discussion of civil war. While this is a well-established Eurocentric
narrative, colonized peoples have never fully accepted the inevitability of the transfixed utopian prolificacy upon which sovereign
power increasingly became dependent. Neither have they been completely passive when confronted by colonialism’s own brand of
warfare by other means. Foucault was well aware of this his-- tory. While Foucauldian scholars can therefore rightly argue that
alternative histories of the subjugated alone permit us to challenge the monopolization of
political terms – not least ‘civil war’ – for Foucault in particular there was something altogether more
important at stake: there is no obligation whatsoever to ensure that reality matches some
canonical theory. Despite what some scholars may insist, politically speaking there is nothing that is necessarily proper to the
sovereign method. It holds no distinct privilege. Our task is to use theory to help make sense of reality, not vice versa. While there is
not the space here to engage fully with the implications of our global civil war paradigm, it should be pointed out that since its
biopolitical imperative removes the inevitability of epiphenomenal tensions, nothing and
nobody is necessarily dangerous simply because location dictates. With enmity instead depending upon the
complex, adaptive, dynamic account of life itself, what becomes dangerous emerges from within the liberal
imaginary of threat. Violence accordingly can only be sanctioned against those newly appointed
enemies of humanity – a phrase that, immeasurably greater than any juridical category, necessarily affords
enmity an internal quality inherent to the species complete, for the sake of planetary survival.
Vital in other words to all human existence, doing what is necessary out of global species
necessity requires a new moral assay of life that, pitting the universal against the particular,
willingly commits violence against any ontological commitment to political
difference, even though universality itself is a shallow disguise for the practice of destroying
political adversaries through the contingency of particular encounters. Necessary Violence Having
established that the principal task set for biopolitical practitioners is to sort and adjudicate between the species, modern
societies reveal a distinct biopolitical aporia (an irresolvable political dilemma) in the sense that
making life live – selecting out those ways of life that are fittest by design – inevitably writes into that very
script those lives that are retarded, backward, degenerate, wasteful and ultimately
dangerous to the social order (Bauman, 1991). Racism thus appears here to be a thoroughly modern
phenomenon (Deleuze & Guattari, 2002). This takes us to the heart of our concern with biopoliti-- cal rationalities. When
‘life itself’ becomes the principal referent for political struggles, power necessarily concerns
itself with those biological threats to human existence (Palladino, 2008). That is to say, since life
becomes the author of its own (un)making, the biopolitical assay of life necessarily portrays a
commitment to the supremacy of certain species types: ‘a race that is portrayed as the one true
race, the race that holds power and is entitled to define the norm, and against those who
deviate from that norm, against those who pose a threat to the biological heritage’
(Foucault, 2003: 61). Evidently, what is at stake here is no mere sovereign affair. Epiphenomenal tensions aside, racial
problems occupy a ‘permanent presence’ within the political order (Foucault, 2003: 62). Biopolitically
speaking, then, since it is precisely through the internalization of threat – the constitution of the threat that is now from the
dangerous ‘Others’ that exist within – that societies reproduce at the level of life the ontological commitment to secure the subject,
since everybody is now possibly dangerous and nobody can be exempt, for politi-- cal modernity to
function one always has to be capable of killing in order to go on living: Wars
are no longer waged in the name
of a sovereign who must be defended; they are waged on behalf of the existence of
everyone; entire populations are mobilized for the purpose of wholesale slaughter in the
name of life necessity; massacres have become vital. . . . The principle underlying the
tactics of battle – that one has to become capable of killing in order to go on living – has become
the principle that defines the strategy of states (Foucault, 1990: 137). When Foucault refers to ‘killing’,
he is not simply referring to the vicious act of taking another life: ‘When I say “killing”, I obviously do not
mean simply murder as such, but also every form of indirect murder: the fact of exposing someone to
death, increasing the risk of death for some people, or, quite simply, political death, expulsion,
rejection and so on’ (Foucault, 2003: 256). Racism makes this process of elimination possible,
for it is only through the discourse and practice of racial (dis)qualification that one is capable of
introducing ‘a break in the domain of life that is under power’s control: the break between what must live
and what must die’ (Foucault, 2003: 255). While kill- ing does not need to be physically murderous, that is
not to suggest that we should lose sight of the very real forms of political violence that do take
place in the name of species improvement. As Deleuze (1999: 76) duly noted, when notions of security are
invoked in order to preserve the destiny of a species, when the defence of society gives sanction
to very real acts of violence that are justified in terms of species necessity, that is when the
capacity to legitimate murderous political actions in all our names and for all our sakes becomes
altogether more rational, calculated, utilitarian, hence altogether more frightening: When a
diagram of power abandons the model of sovereignty in favour of a disciplinary model, when it becomes the ‘bio-­power’
or ‘bio-­politics’ of populations, controlling and administering life, it is indeed life that emerges
as the new object of power. At that point law increasingly renounces that symbol of sovereign
privilege, the right to put someone to death, but allows itself to produce all the more
hecatombs and genocides: not by returning to the old law of killing, but on the contrary in
the name of race, precious space, conditions of life and the survival of a population that
believes itself to be better than its enemy, which it now treats not as the juridical enemy of
the old sovereign but as a toxic or infectious agent, a sort of ‘biological danger’.Auschwitz
arguably represents the most grotesque, shameful and hence meaningful example of necessary
killing – the violence that is sanctioned in the name of species necessity (see Agamben, 1995, 2005).
Indeed, for Agamben, since one of the most ‘essential characteristics’ of modern biopolitics is to con-­ stantly ‘redefine the threshold
in life that distinguishes and separates what is inside from what is outside’, it is within those sites that ‘eliminate radically the people
that are excluded’ that the biopolitical racial imperative is exposed in its most brutal form (Agamben, 1995: 171). The camp can
therefore be seen to be the defining paradigm of the modern insomuch as it is a ‘space in which power confronts nothing other than
pure biological life without any media-­ tion’ (Agamben, 1995: 179). While lacking Agamben’s intellectual sophistry, such a
Schmittean--inspired approach to violence – that is, sovereignty as the ability to declare a state of juridical exception – has certainly
gained wide-- spread academic currency in recent times. The field of international rela-- tions, for instance, has been awash with
works that have tried to theorize the ‘exceptional times’ in which we live (see, in particular, Devetak, 2007; Kaldor, 2007). While
some of the tactics deployed in the ‘Global War on Terror’ have undoubtedly lent credibility to
these approaches, in terms of understanding violence they are limited. Violence is only rendered
problematic here when it is associated with some act of unmitigated geopolitical excess
(e.g. the inva-- sion of Iraq, Guantánamo Bay, use of torture, and so forth). This is unfortunate.
Precluding any critical evaluation of the contemporary forms of violence that take place within
the remit of humanitarian discourses and practices, there is a categorical failure to address how
necessary violence continues to be an essential feature of the liberal encounter. Hence, with postinterventionary forms of violence no longer appearing to be any cause for concern, the nature of
the racial imperative that underwrites the violence of contemporary liberal occupations is
removed from the analytical arena.
This too has been codified in the legal system – though some laws prohibiting
physician assisted suicide have been lifted, one of the earliest pro-PAS measures,
the Oregon Death with Dignity Act, employs “mental competency” standards which
embrace a paternalistic view of disabled bodies as unable to ever act on their own
which reinforces ableism
Qualls and Kasl-Godley 10
Sara Honn, Professor, Kraemer Family Professor of Aging, Director of Gerontology Center and Ph.D. from The Pennsylvania State
University, and Julia, Ph.D from USC, End-of-Life Issues, Grief, and Bereavement: What Clinicians Need to Know, 2010, p.269-271
SJE
Opponents of assisted suicide concur with the perspective that the capability evaluation clause is unworkable because of conceptual
and empirical limitations, but they view these limitations as an argument against¶ assisted suicide rather than a reason to proceed
without such an evaluation¶ (Hendin & Foley, 2008). Disability experts (Coleman, 1992, 2002; Gill,¶ 1992, 1998; Longmore,
2005; 01km, 2005) have
raised other concerns about¶ the capability clause. They point to evidence that
people without disabilities¶ assess the quality of the lives of people with disabilities to be
dramatically¶ lower than do people with disabilities, and they wonder whether a request¶ for physician-assisted
suicide from a person with disabilities might then “be¶ subject to less scrutiny because the decision makes sense to others” (01km,¶
2005, p. 70). “A ‘competent’ person knows that society considers the need¶ for assistance in
activities of daily living to be degrading and undignified,”¶ writes Coleman (2002, p. 224). “In other words,
when asked to describe¶ the ‘indignities’ that assisted suicide would help people avoid, proponents¶ describe disability” (Coleman,
2002 p. 220). “If professionals think that of¶ course the disabled person would want to die” because of the indignities¶ of disability,
“might not these expectations play a disheartening role in some¶ one’s decision to seek physician-assisted suicide?” asks Olkin
(2005, p. 70). In conclusion, capacity assessment may be “the Trojan horse” of assisted-¶ suicide policies
(Martyn & Bourguignon, 2000, p. 388). Like the Trojan¶ horse, it
is meant to provide protection, but it hides
dangers. Its chief danger is that it is subjective. As advocates of assisted suicide recognize “clinicians¶ are left
to decide on their own [what to use and] how strict a standard to use”¶ (Werth et al., 2000, p. 356).¶
Clinicians asked to bring their expertise on assessments of the capability¶ to make requests to die should exercise great caution in
what they promise¶ they can deliver. They should he educated and educate others about the¶ limits of scientific knowledge on
capability assessment. They should also be¶ aware about the danger, in the absence of scientifically robust standards, that¶
ableist biases influence evaluations of the rationality of physician-assisted¶ suicide
requests.¶ The patient must be determined not to suffer from a mental condition impairing¶
judgment. If either physician believes the patient's judgment is impaired by a ¶ psychiatric or psychological disorder, the patient
must be referred for a psychological¶ evaluation. No medication to end a patient’s life in a humane and
dignified manner¶ shall be prescribed until the person performing the counseling determines
that the¶ patient is not suffering from a psychiatric or psychological disorder or depression¶
causing impaired judgment. This clause, like the one about capacity, is meant¶ to provide safeguards
against the influence of psychological disorders on¶ judgment, but it is so vague and weak to be practically
meaningless. First ¶ of all, it is an “exceedingly minimalist” clause (Burt, 2000. p. 383) because¶ it rules out only mental
conditions that impair judgment. In other words,¶ the clause allows for petitioners to have mental disorders as
long as these¶ disorders do not impair judgment—an oxymoron based on current U.S. mental
evaluation standards (Burt, 2000; N. G. Hamilton & Hamilton, 2005;¶ Sullivan et al., 1998). Another paradox in the
mental disorder clause is¶ that within current standards, suicidal ideation is a symptom par
excellence¶ of impaired judgment and mental disorder. In fact, suicidal ideation is one of¶ the few
legal justifications for involuntary psychological treatment (Sullivan¶ et al., 1998). Based on current clinical
standards, the presence of suicidal¶ intention calls for an automatic finding of incompetence and obligates the¶ clinician to suicide
prevention, including removal of lethal means. By contrast, within the physician assisted-suicide competence
model, providing the¶ lethal means is the main decision to make in response to suicidal
intention¶ (N. G. Hamilton & Hamilton, 2005). Whether petitioners receive suicide prevention or
suicide enabling depends solely on their health or disability status, which
disability experts view as evidence of, and a vehicle for ableist ideologies (Coleman,
2002).
Traditional legal responses to Rehnquist reify liberal norms of life and death but
our affirmation of a right to die through physician assisted suicide combined with
our process of counter memory breaks down that traditional definition and
recognizes the impossibility of liberalism creating a possibility for an alternative
reading of death rights that unseats the violence of biopolitics.
Golder 11. Ben Golder, Ph.D, Professor at the University of New South Wales (Sydney, Australia), “Foucault’s Critical¶ (Yet
Ambivalent)¶ Affirmation:¶ Three Figures of Rights,”Social And Legal Studies, 2011
In a recent article on this topic, Thomas Tierney neatly illustrates how Foucault diverges from
orthodox liberal articulations of the ‘right to die’. In order to do this, Tierney reads
Foucault’s comments on the ‘right to die’ against the famous intervention of the ‘Dream Team’
(a collection of six eminent liberal/libertarian philosophers, to wit: Ronald Dworkin,
Thomas Nagel, Robert Nozick, John Rawls, TM Scanlon and Judith Jarvis Johnson) in their
amicus curiae brief in the 1997 US Supreme Court case on assisted suicide, Washington v
Glucksberg (see Dworkin et al. 1997). Whereas the latter is ‘concerned with providing to
individuals enough control over their deaths so they can avoid a painful and/or
degrading demise, while simultaneously maintaining the integrity of juridico-medical
authority that is aimed at preserving life’, (Tierney, 2006: 626), Foucault’s deployment of
the ‘right to die’ is intended to contest the forms of subjectivity produced and required by
that very ‘juridico-medical authority’. Under contemporary conditions of bio-politics, that
which Tierney calls the ‘juridico-medical order of modernity’, the medically-aware subject is
enjoined to police his or her own health such that ‘[r]easonable individuals have been
eager participants in this modern project of death deferral’ (Tierney, 2006: 614, 615; see
also Thompson, 2004). Under these conditions the standard liberal resort to the dignity of
the individual and the autonomous terms under which that individual can exit life do
nothing to contest the terms under which that life is bio-politically lived and invested by the
institutions of medical power. By contrast, Foucault’s interventions on the ‘right to die’
(read alongside his wider critique of biopolitics) actually entail a ‘fundamental challenge to
the juridico-medical complex of modernity’ (Tierney, 2006: 631) by ‘rais[ing] unsettling
questions about the very nature of modern subjects’ (Tierney, 2006: 605). The
deployment of rights is intended to reflect back, as it were, upon the politicization of life.
Foucault’s assertion of a ‘right to die’ is thus intended to problematize the subjective
pre-suppositions of medicalized bio-politics (obedience to discourses of deathdeferral and medical self-management) by opening up a different perspective upon
death in life – that is, the preparation of one’s own death as an aesthetic project (cf.
Foucault, 1983: 237). ‘It is quite inconceivable that we not be given the chance’, Foucault writes
elsewhere, ‘to prepare ourselves with all the passion, intensity and detail that we wish,
including the little extras that we have been dreaming about for such a long time’ (Foucault,
1996: 296–297), that is to make of suicide ‘a fathomless pleasure whose patient and
relentless preparation will enlighten all of your life’ (1996: 296). The crux of the
difference between the Foucaultian and the liberal articulations of the ‘right to die’
thus resides in life’s preparation for death and, through this late modern melete thanatou,
the consequent ‘enlightenment’ in life (read, for Foucault: the disruption of bio-politicized
subjectivity). In contrast, ‘by focussing on controlling one’s death [the] liberal
perspective does not foster critical reflection upon those convictions by which one lives
one’s life, and leaves unchallenged the role of medical authority in shaping those
convictions’ (Tierney, 2006: 632). For all its insistence upon the manner of death needing to
reflect autonomous decisions concerning the value of life itself (which would seemingly import
some critical perspective upon that life), orthodox liberal articulations of the ‘right to die’,
like that of the ‘Dream Team’, work to reinforce a bio-political medical apparatus. The
liberal narrative reinscribes the death-bound subject of bio-politics in a milieu of suffering
(see the pathos-laden conclusion to Dworkin et al., 1997) from which medicine cannot save her
and it thus calls upon law¶ and the state to balance the interests of the individual’s dignity
against the state’s¶ (bio-political) interest in preserving life. Such an approach leaves
unquestioned (indeed,¶ performatively reinforces) the respective roles of law, state and
medicine, whereas¶ Foucault’s aesthetic, de-medicalized, anti-statist discourse seeks to
subvert or avoid¶ these relations.
Our task is the introduction of dysfunction into the fabric of the law—the fuzzying
of the conservative separation of life and death.
Hanafin 09. Patrick Hanafin, professor of law at Birbeck University (London, UK). Rights of
passage: law and the biopolitics of dying. In: Braidotti, R. and Colebrook, C. and Hanafin,
Patrick (eds.) Deleuze and Law: Forensic Futures. Basingstoke, UK: Macmil- lan Publishers
Limited, pg. 84
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 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).
Thus we call into question the definition of a liberal human subject through a
radical affirmation of the ‘right to die’ and in so doing problematize liberal
legalism and its reliance on strict notions of life and death
Hanafin 09. Patrick Hanafin, professor of law at Birbeck University (London, UK). Rights of
passage: law and the biopolitics of dying. In: Braidotti, R. and Colebrook, C. and Hanafin,
Patrick (eds.) Deleuze and Law: Forensic Futures. Basingstoke, UK: Macmillan Publishers
Limited, pg. 96
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 judgments, 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 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:
You 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 judgment. 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.
Political subjects under the state are ahistorical fabrications of being – our praxis
of counter-memory exposes the illusion of subjectivity and, through a process of
cutting, opens up space for radical becoming.
Clifford 1
(Michael, Associate Professor of Philosophy with the Institute for the Humanities and the
Department of Philosophy and Religion at Mississippi State University, 2001, “Political
Genealogy After Foucault”. Routledge, London, Great Britain. pp. 134-7)
Foucault’s counter-memory is very close to the Nietzschean idea of “active forgetfulness” (aktive
Vergesslichkeit).21 Counter-memory consists of essentially forgetting who we are. It is a forgetfulness
of essence, of necessity, of the moral and ontological obligations that bind us to an identity. There
is freedom in forgetfulness. Counter-memory holds us at a remove, a distance, from ourselves; not in
the traditional sense of self reflection, but of wrenching the self—this identity—apart, through an
incision, a cutting that makes the self stand naked and strange before us across an unbridgeable
divide, a gap of difference. Counter-memory dislodges the propriety of our-selves. The self, as a coherent
identity, becomes foreign through counter-memory. We cannot remember what it was that
compelled us to act, believe, be a given way. Counter-memory dissolves this compulsion, this
determination, this subjection. The power of identity is suspended through a forgetfulness of its
necessity—a freedom is opened within the space of a difference that no identity can constrain.
This difference always plays outside the limits, outside any delimitation of being. Counter-memory thrusts us into this uncharted
world, where a memory makes no sense, where play is the order of the day, where lightening and chance disintegrate the heavy and
solid, the identical. Counter-memory bears directly on processes of subjectivation, on the techniques of the
self through which we constitute for ourselves an identity. “Counter-discourses”
anticipate a subjectival freedom
of open possibilities by opposing themselves to the discourses of truth through which we
recognize ourselves as subjects.22 These counter-discourses, the discourses of genealogy, lift the
burdensome obligations imposed on us by such a recognition. As a forgetfulness of these obligations,
counter-memory always takes the form of a transgression. It invites condemnation even as it refuses to be held
accountable. Yet there is freedom in this refusal, in this transgression—for those who have the stomach for it.23 There
is always an essential risk involved in refusing, in forgetting, one’s identity.24 Counter-memory is not a form of consciousness. It is
nothing, really, except the effect of a certain kind of description of ourselves, a description of the historical ontology of ourselves as
subjects. This description has been closed off and denied by power/knowledge relations, excluded and made peripheral by certain
dominant discourses and entrenched scientific-philosophical enterprises that bind us to a conception of what we are in truth.
Counter-memory counters, or suspends, the power of identity through genealogical accounts of
its constitution. Genealogy effects “the systematic dissociation of identity” by revealing its
radical contingency, its historicality and utter lack of essentiality. The purpose of genealogy, says
Foucault, “is not to discover the roots of our identity, but to commit itself to its dissipation.”25
Genealogical critique is an exposition of our history as subjects that has the effect of disposing
subjectival constraints by exposing the contingency of their imposition. Genealogy turns the firm posture
of the self-identical subject into the mere posing of a pretentious display. Genealogy proceeds through “dissension” and “disparity.”
Wherever “the self fabricates a coherent identity,” genealogy puts into play a subversive counteranalysis that “permits the dissociation of the self, its recognition and displacement as an empty synthesis.”26
Genealogy disturbs, fragments, displaces the unity of subjectivity. It cuts through the
oppressive, assimilating density of Truth and discovers in this beguiling haze that subjectivity is
nothing more than a colorful mask. Who we are, what we are, is a mask displayed for public viewing and examination,
for person-al subjection and ethical subjugation. Genealogy cuts through this mask, only to make another discovery. Behind it
there is no essential identity, no unified spirit or will, no naked subject stripped of its colorful
dress. Rather, there is only a matrix of intersecting lines and heterogenous congruities, an
arbitrary and historically contingent complex of discursive and nondiscursive practices. Asserts
Foucault, “If the genealogist refuses to extend his faith in metaphysics, if he listens to history, he finds that there is ‘something
altogether different’ behind things; not a timeless and essential secret, but the secret that they have no essence or that their essence
was fabricated in a piecemeal fashion from alien forms.”27 Contrary to what René Descartes or John Locke would contend, unity
(whether of consciousness proper or the continuity of personal experience) is not the essence of subjectivity. Unity is a mask
for an interplay of anonymous forces and historical accidents that permits us to identify
subjects, to identify ourselves, as specific human beings. Unity—identity—is imposed on subjects as the mask of
their fabrication. Subjectivity is the carceral and incarcerating expression of this imposition, of
the limitations drawn around us by discourses of truth and practices of individualization; but
seen through the “differential knowledge” of genealogy, the identity of subjectivity collapses.
Counter-memory through genealogical critique is a transgression of limits. As such, it opens
onto a possibility of freedom. Genealogy permits us “to separate out, from the contingency that has made us what we are,
the possibility of no longer being, doing, thinking what we are, do, or think.” In this sense, genealogy gives “new impetus,
as far and wide as possible, to the undefined work of freedom.”28 The freedom offered by counter-memory is
a kind of parodic reversal of negative freedom: it is not a freedom from interference, but for it—for disruption, for displacement, for
violating those inviolable spheres of liberty that serve as the limits of our subjection. It is not a freedom for individuality, but from
it—a freedom from individualization, from the practices and discourses which bind us to our own identity as individuals. It is not
a freedom against the office of government, but against governmentality—against a rationality
that imprisons us in the cellular space of our own self-government. At the same time, the freedom
of/through counter-memory is a form of mimetic play with the notion of positive freedom
whereby citizenship is unwrapped like a cloak from the politicized body. In simple terms, it can be said
that genealogy “enables one to get free of oneself.”29 That is, by exposing the nonessentiality of the limits
imposed on us through the constitution of a self, it opens the possibility of going beyond those
limits.30 This opening is a kind of fracture, at once an open space and a breaking free of the
constraining power inherent in identity and identification. In this sense, genealogy opens up “a space of
concrete freedom, i.e., of possible transformation.”31 This notion of fracture allows us to define freedom more precisely, to gauge
whether or not a genuine space of freedom has been opened for us. Freedom, concrete freedom, is a space of
possible transformation. Unless we are free to transform ourselves, to be other than the identity dictated for us by some
extraneous rationality, we have no freedom. Even the most violent forms of resistance against subjection
accomplish nothing if they do not gain this freedom, do not open a space of possible
transformation—which means nothing more, and nothing less, than the possibility of being
otherwise. Something very like this point is made by Dennis Altman with regard to the Stonewall riots of 1969 and the militant
Gay Liberation Front that emerged from them in the early 1970s. In one of the seminal texts of what would later become known as
Queer Theory, Altman rails against the limited vision of a political movement that sought for gay and lesbian people little more than
an expansion of rights and the “liberal tolerance” of the homophile community: “Homosexuals can win acceptance as distinct from
tolerance only by a transformation of society, one that is based on a ‘new human’ who is able to accept the multifaceted and varied
nature of his or her sexual identity. That such a society can be founded is the gamble upon which gay and women’s liberation are
based; like all radical movements they hold to an optimistic view of human nature, above all to its mutability.”32 This requirement
that we are only genuinely free if we able to transform ourselves is recalcitrant.33 It is crucial to understand, however, that what is
being required here is not a freedom to transform ourselves in accordance with some global or
teleological model of a more “genuine” form of subjectivity. This freedom does not consist (as it does in On
Liberty) in replacing one form of subjectivity for another that is supposedly “truer” or more fulfilling to human nature. Not only is
this illusory and unobtainable, it would also amount to a cancellation of freedom, a reimposition of subjectival limitations and
expectations. Rather,
the freedom opened by counter-memory is a freedom of permanent
transformation, of always being able to become other than what we are.
This affirmation of a right to die is a non-teleological strategic reversibility against
dominant nodes of sovereignty which enables continual contestation. Rights
seized in this manner are political tools which construct and reconstruct historical
artifacts.
Golder 11
Ben Golder, Ph.D, Professor at the University of New South Wales (Sydney, Australia), “Foucault’s Critical¶ (Yet Ambivalent)¶
Affirmation:¶ Three Figures of Rights,”Social And Legal Studies, 2011 SJE
The second figure is that of rights as the strategic implement-effect of political struggle. Such a figure has (at
least) three elements which I shall discuss in reverse order here, starting with the question of the political. To characterize
Foucault’s various assertions and endorsements of rights as, in a broad sense, political is to suggest in the first
instance several general dimensions of rights that flow from or are compatible with the above figure of the non-necessary,
ungrounded ground of rights. That is, if the content of a right cannot straightforwardly be derived from a
necessary figure of the human and if that human is rather, as Foucault consistently holds, a contested and
volatile construction, then rights emerge as historical and political artefacts which reflect the
contours of ‘the human’ as s/he is variously constructed in discourse and regimes of power.
Rights hence appear from this perspective as thoroughly political creations, dependent upon the
political/discursive/strategic viability of rights claims and their consequent observance and enforcement.17
Rights can be made and unmade (Patton, 2005: 272–273) and, crucially, the terms of their un/making betray
particular exclusions, erasures and disavowals which themselves reflect particular political aims,
projects and alliances. Foucault’s wider philosophical and political practice is of course animated by and attentive to such
concerns. From his early archaeology of Western reason as founded upon the constitutive silence of madness (2006: xxviii)18 to his
later analyses of the disciplinary regulation of the ill, the abnormal, the delinquent, etc., Foucault focused upon the ways in which
the content of rationality, normality, and so forth was sustained in and through the suppression or discipline of its opposite; hence,
in order to ‘find out what our society means by ‘‘sanity’’’, Foucault aptly suggests in a late essay, ‘perhaps we should investigate what
is happening in the field of insanity’ (2000i: 329). So, rights for Foucault are political in this general sense of
being particular constructions, the result and reflection of political claims and value systems
which are made and unmade, and which include and exclude. Moreover, for Foucault this imports both
a necessary and ongoing concern for what is excluded in the making of claims. It follows also that he
sees the openness and contingency of rights as a promise and not as raising the spectre of nihilism or relativism, or indeed as a
tarnishing of the currency of rights. Rights claims on this view proclaim particular political perspectives and hence cannot
masquerade as ‘something of an anti-politics – a pure defense of the innocent and the powerless against power’ (Brown, 2004: 453),
but neither can they be understood qua ‘trumps’, as expressing by their own force some kind of political or ontological priority
(Dworkin, 1977). Rather, rights in this sense are political tools used in the service of
constructing and reconstructing different social and political visions, tools which
compete on the same terrain in agonistic combat (Simons, 1995) with other rights and indeed with other political
idioms and visions.19 If from some orthodox perspectives this devalues rights, from the perspective elaborated here it opens up both
a politically richer and a more self-reflexive (less disingenuous, less moralistic) rights discourse.20 Thus, from Foucault’s
perspective the removal of ontological certainty for rights claims actually excavates a hidden
margin of ‘freedom’ – indeed, the critical force of genealogy is directed at exposing false necessities and demonstrating that
‘people ... are much freer than they feel’ (Foucault, quoted in Martin, 1988: 10). Rights must be claimed, must be
seized and in this political seizure can be expanded and inhabited – indeed even against their
‘terms’, as a strategic reversibility or as a counter-investment (Foucault, 1979: 100–102; Nietzsche,
1998, II, §12: 50–52). This political description of rights thus designates both an ungrounded and a
non-teleological conception, a necessarily open-ended, never-ending, process of
contestation, a ‘permanent provocation’ (Foucault, 2000i: 342) which, as Foucault memorably puts it in a slightly different
context, will, separate out, from the contingency that has made us what we are, the possibility of no
longer being, doing, or thinking what we are, do, or think ... [that is,] to give new impetus, as far and wide as possible, to the
undefined work of freedom.
Intellectual resistance undoes the relationship of truth and power that ensures
domination
Deacon 3
(Roger Alan Deacon – Political Science Researcher with a doctorate from University of Natal, “Fabricating Foucault: Rationalising
the Management of Individuals”, pg 272-275) MaxL
To problematize the Enlightenment is to pose questions about current conceptions of theory,
politics and human subjects. It is to suggest that Enlightenment has been bought at the huge,
but not ‘unreasonable’, price of the free participation of all modern individuals (from patients ,
paupers and pupils to consumers and deviants) in their objectification and subjection to powerful,
knowledgeable, and usually institutionally legitimated, others. Such a genealogical examination
of the modern “rationalization of the management of the individual”, of the interplay between
that which orders human conduct—strategies of government and resistance—and that which
rationalises (both justifying and making more efficient) such conduct—forms of knowledge and
technological refinements—would make it possible to define what Foucault called a new kind of ‘political
spiritualité’, to rethink issues of social (and self) transformation which are always bound up with
issues of truth and power. The recognition of how we have historically constituted ourselves—
our unique configuration of scientifically sanctioned styles of soothsaying and subjection—is
thus the first step towards experimenting with the possibility of no longer being, doing or
thinking what we are, do or think. Entirely warranted as it may be, that “the essential thing in a
condemnation is not the quality of the evidence but the force of the one who presents the
evidence” (Foucault 1989: 182), it cannot be forgotten that the force of the presentation is accentuated by the rigour of the
investigation. Indispensable for genealogy as much as for any modern science is thus a studious
examination of specific contemporary experiences (not only socially marginal ones like madness
or transgression, or particular ones like sexuality, but especially our supposedly natural subjectivities and
even the experience of freedom itself), in relation to each other as well as historically, for, as
Bernstein notes with reference to the work of Rorty, MacIntyre and Kuhn, an appeal to history is not anecdotal but
critical (Bernstein 1991: 23). Historical analysis as genealogy will no longer simply rationalise the
present, but will be a weapon with which to challenge the modes by which human beings have
been and are being made into known and knowing, governed and governing, and ‘moralised and
moralising’, subjects. Through his historical reinterpretations of how we moderns have constituted ourselves in the realms of
reason, health, law, science, sexuality and subjectivity, Foucault deliberately aimed to ‘fabricate’ the present, to play its interpretive
violence against itself so that, on the assumption that different descriptions distort differently, he would be able to inscribe effects of
truth in the present and upon the real (as opposed to revealing the past or expressing a truth). This is this book’s second conclusion:
Foucault’s ‘truth-fabricating’ and ‘reality-constituting’ approach has major implications for the nature, object and purpose of theory.
Theory becomes a practice in its own right, problematizing as much as enlightening, and
dependent on the very social forces with which it concerns itself; its object, reality, is
reconfigured as a terrain which coalesces under the impact of strategic maps, or theoretical
practices, such that the object (things, others and their contexts) is always the object for theory, forged or
fabricated; and its purpose is not to produce a programme for action but to mount a
constructive challenge. A Foucauldian approach is one which seeks to deploy familiar images in a way which subverts their
recognisability, by going along with a familiar manoeuvre in order to extend it beyond itself or play it at its own game; which does
not so much reveal truths or assume solid individual identities as reveal their fabrication; and which substitutes for the penetrating
but blinkered scientific gaze an oblique and informing glance. Thus, what we do with the Enlightenment depends to a large extent on
what the Enlightenment has done with us. This ‘we’ has several references: it is simultaneously the all-inclusive ‘we’ of humanity, the
exclusive ‘we’ of the Enlightened West, and the very specific ‘we’ of those who have arrogated to themselves the task of reflecting
upon who ‘we’ are—the intellectuals. We who monopolise the use of the analytical tools bequeathed to us by the Enlightenment have
also been accustomed to legislating how Enlightenment is to be cultivated. The third conclusion is that, once the nature,
object and purpose of theory is rethought in this way, the traditional prophesying role of
intellectuals, as well as their hope of arriving at complete and definitive knowledge of ourselves
and our history, must of necessity be abandoned. Nonetheless, under these circumstances social
transformation becomes simultaneously problematic, vital and possible. Alongside, rather than in the
vanguard of, struggles by particular groups of the disaggregated masses, and in terms of their own
specific practices, concrete problems and particular locales, intellectuals can question the self-
evidence of modern political rationalities and assist in dismantling the coordinates of experience
which constitute modern subjects, as much as they struggle within and against the relations of
power (predominantly institutionalised in universities) that transform them into objects of and
instruments for the production of knowledge. Merely to pose the question of the possibility of
transforming our modern forms of subjectivity is to bring into stark relief the power relations
which compose the price we are paying for our freedom, our capacity for technological
development and our ability to reason in the manner laid down by the Enlightenment. To
problematize the Enlightenment, then, requires a reconceptualisation of power relations. For
genealogical purposes, however, conventional theories of power, and most particularly Marxist
theories, which focus on individual or collective but always sovereign agents and how their
possession of or suppression by power differentially affects their knowledge and their autonomy,
are inadequate. While not denying the particular significance of the modern state in regulating
relations of power, or of social classes, elites, governments, political parties and constitutions as forms in which power
relations customarily manifest themselves, Foucault argued that to insist upon their salience is to neglect
the complexity, multiplicity and specific effects of local power relations which, operating
independently of and at a certain distance from these customary forms, often sustain, enlarge
and maximise their effectiveness. Yet because notions of power as sovereignty prevail in modern society (mainly because
they disguise, justify and normalise, and help regulate and energise, more ubiquitous relations of power), in order to avoid simply
reproducing them Foucault sought instead to develop an ‘analytics’, as opposed to a ‘theory’, of power, by not saying what power is
but instead showing how it operates, concretely and historically, in the form of strategic relations aimed at governing subjects. In
short, what is required is an historical analysis of the broad ‘body politic’, from global political
rationalities through local relations of power to individual human subjects.