1AC Tejas
In 1997 the Supreme Court of the United States ruled that the prohibition on
physician-assisted death was not a violation of the 14th amendment in
Glucksberg v Washington. However, that prohibition on physician assisted
death produced an administration of an illegalism on death that attempted to
repress the workless death. The ruling was a push on the part of the Supreme
Court to forcibly propel certain parts of the community to vitality and life
through biopolitical management based on imagined conception of the
American nation-state.
Hanafin, 09 – Professor of Law, University of London, Birkbeck College (“RIGHTS OF
PASSAGE: LAW AND THE BIOPOLITICS OF DYING”, Deleuze and Law: Forensic Futures:
(Palgrave/Macmillan), 2009, pp. 47-58) *edited 4 ableist lang*
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[death]. 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: 88 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 89 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 understood 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 physicianassisted suicide [death]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 unheardYet 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 U.S. 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
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 U.S. 702 (1997)) the
Supreme Court is engaged in a simultaneous imposition and questioning of what constitutes
legal tradition. This confirms from within the judgment 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 understanding 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 judgment itself. That which is repressed emerges at points
within the Supreme Court’s judgment . 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
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 U.S. 702 (1997) 741–2). Here there is an implicit
recognition of existing exceptions to hastening death. Stevens went 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 n deciding how, rather
than whether, a critical threshold shall be crossed (521 U.S. 702 (1997) 745). In Stevens’s opinion we
witness a move from a threshold to a critical threshold. In this move we can note 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 went 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 U.S. 702 (1997)
750). 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
similar manner 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) 781-782). 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
judgment 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 judgment is the very tension within the judgment between a politics of
ordering and a politics of becoming.
This propulsion toward vitality and life creates a fundamental split in the
operations of power; on one hand, there are those who are part of the
community whose lives must be protected and fostered through biopolitical
management, and on the other there are those who are subjected to the regime
of necropolitics that relegates subjects to death-worlds of violence and
abandonment—the right to kill that is the underside of the right to life is what
justifies structures of internal domestic violence, such as the prison industrial
complex.
Lamble, 13 Lamble, Sarah. "Queer necropolitics and the expanding carceral state: Interrogating
sexual investments in punishment." Law and Critique 24.3 (2013): 229-253.
Each of the above examples involves the direct or indirect mobilisation of discursive, financial or
labour-related resources towards state practices of imprisonment and punishment. Given the
ongoing colonial legacies of the carceral state, the disproportionate number of people of colour in
prison and the widespread abuses within carceral institutions, these queer investments in punishment
are, by their very nature, investments in state racism and violence. In this way, such investments are
symptomatic of what Jasbir Puar, drawing from Achilles Mbembe’s work, describes as queer
necropolitics. Necropolitics can be understood as technologies of power that (re)produce
social relations of living and dying, such that some populations are ushered into the worlds
of life and vitality, while others are funnelled into what Mbembe calls death-worlds—worlds of
slow living death, and dead living (Mbembe 2003). Death here includes literal physical death,
but also social, political and civil death—the social relations of death, decay and dying that
emerge from prolonged exposure to violence, neglect, deprivation and suffering. Offering a
corrective to Michel Foucault’s work on biopolitics, Mbembe puts forward the notion of
necropolitics and necropower to account for the various ways in which, in our contemporary
world, weapons are deployed in the interest of the maximum destruction of persons and the
creation of death-worlds, new and unique forms of social existence in which vast populations
are subjected to conditions of life conferring up on them the status of living dead (2003, p.
40). In other words , while biopolitical powers work to manage, order and foster life for
citizens worthy of protection, such powers work in tandem with necropolitical powers that
produce death for those destined to abandonment, violence and neglect . Taking up this
concept within contemporary queer politics, Puar draws attention to the ways in which the folding
into life of some queers is predicated on the folding out of life of others (Puar 2007, p. 36). On one
level, as Braidotti (2007) notes , ‘Bio-power and necro-politics are two sides of the same coin’;
the relationship between the governance of life and death cannot be separated . Indeed,
Foucault notes the inherent tension within the classical theory of sovereignty in the right of power
over life and death. Because the sovereign has no capacity to create life, the ‘right of life and
death is always exercised in an unbalanced way: the balance is always tipped in favour of
death’ (Foucault 1976/2003, p. 240). Hence the ‘very essence of the right of life and death is
actually the right to kill; it is at the moment when the sovereign can kill that he exercises his
right over life’ (Foucault 1976/2003, p. 240). Yet the emergence of biopower, argues Foucault,
marks a shift in this balance, from the right to take life or let live, to the power to make live and let
die. Biopower intervenes in the conditions of life at the level of populations to improve,
prolong, extend living; it is a technique of governance aimed at maximising, optimising and
fostering life. 25 Yet the tension between the exercise of power over life and death remains.
For if biopower seeks to maximise life, what justifies its continued exercise of death? It is here,
Foucault argues, that racism intervenes, as ‘the precondition that makes killing acceptable’
(1976/2003, p. 256). For the imperative to kill is acceptable only if it results not in a victory
over political adversaries, but in the elimination of the biological threat to and the
improvement of the species or race…Once the State functions in biopower mode, racism alone
can justify the murderous function of the State (Foucault 1976/2003, p. 256). Racism is therefore
not an aberration within the exercise of biopower, but a key premise in determining which
populations will be made to live and left to die. Taking this analysis further, Mbembe asks
whether biopolitics can fully account for specific conditions, processes and techniques in which
contemporary forms of life are subjugated by the power of death: Is the notion of biopower
sufficient to account for the contemporary ways in which the political, under the guise of war, of
resistance, or of the fight against terror, makes the murder of the enemy its primary and absolute
objective?… What place is given to life, death and the human body (in particular the wounded or
slain body)? How are they inscribed in the order of power?’ (Mbembe 2003, p. 12). Mapping out the
ways in which the politics of death are central to contemporary modes of governance and warfare,
Mbembe suggests the creation of deathwords is not merely a by-product of biopower, but a
primary aim of its counterpart, necropower. Indeed, the administering of life is increasingly
contingent upon, and supplemented by, new forms of sovereign power that are deployed in
the administration of mass death and destruction . While Mbembe’s analysis focuses
primarily on situations of military occupation, colonialism and war, the modern prison
arguably constitutes another key instantiation of necropower. For the prison is a site that
produces the conditions of living death; it is a place where bodies are subject to regimes of
slow death and dying. Not only are deprivation, abuse and neglect regular features of incarceration
but the monotonous regime of caged life—the experience of ‘doing time’—involves the slow
wearing away of human vitality and the reduction of human experience to a bleak existence
(Scraton and McQulloch 2009; Taylor 2000). This is especially true within regimes of solitary
confinement, particularly in ‘supermax’ or ‘special housing units’ in the USA where prisoners are
locked up for 23 hours a day, only permitted an hour of exercise in pens the size of dog cages,
subjected to windowless cells and deprived of virtually any human contact—not only for days, but
for years—with devastating mental health consequences (Haney 2003). In these ways, the prison
serves as a site of mass warehousing of bodies in conditions that often resemble the deathworlds that Mbembe describes . While the modern prison was designed as an institution which
aimed in part to train prisoners as productive workers, obedient citizens and docile subjects—a
strategy that used disciplinary power in the broader service of biopolitical power (Foucault
1978/1995)—contemporary prisons are little more than mass warehouses for poor, racialised
and otherwise disenfranchised populations (Gilmore 2007). As prison populations continue to
grow to unprecedented levels, many states are abandoning even the pretence of rehabilitation,
by dramatically reducing the hours that prisoners spend out of their cells, slashing funding for
educational and other programmes and increasingly leaving prisoners to spend their days in
monotonous isolation. These conditions, coupled with overcrowding, lack of adequate medical
care and disconnection from family and friends, mean that prisoners experience high risks of
self-harm, psychological abuse, trauma and suicide, both during imprisonment and postrelease (Collins 2008; Taylor 2000; Kupers 2006). A criminal record also means that employment
and housing are difficult to secure postrelease, family and community relationships are difficult to reestablish, and problems of poverty, mental illness and addiction persist—such that the consequences
of imprisonment extend well beyond the duration of one’s sentence. The added combination of
intensive surveillance and disciplinary probation regimes on the one hand, and limited post-release
supports on the other, also mean that a high portion of prisoners experience repeated cycles of
capture and release in the ‘revolving door’ of imprisonment. The prison thus plays a significant
role in altering the ‘distribution of life chances’ or what Gilmore (2007, p. 247) describes as
‘group differentiated vulnerability to premature death’. In one sense, the after-effects of
imprisonment can be understood as unfortunate but inevitable ‘challenges’ that prisoners
face in recuperating from their sentences. But on another level, these ‘collateral
consequences’ constitute a form of legally sanctioned social abandonment. Because exprisoners can be legally discriminated against with respect to housing, employment, education, jury
duty, volunteer service and social assistance access, a criminal conviction becomes a ‘negative
credential’ that functions as a ‘unique mechanism of state-sponsored stratification’ (Alexander 2010,
p. 148). Voting restrictions—including the disenfranchisement of prisoners while serving sentences
in Britain, and the permanent disenfranchisement of felons in some US states—marks another
mode of exclusion from the polis (Manza and Uggen 2006). But perhaps more importantly, the
social stigma and shame of a criminal conviction casts a long shadow on the future prospects of the
(ex)prisoner. Marked as permanently failed, perpetually dangerous, and always suspicious,
prisoners do not simply serve their time and move on; they pay the debt over and over in the
form of stigma, shame and exclusion . A prison sentence thus becomes one of the most
powerful ways that working class, black, migrant, disabled and other over-criminalised
populations, are legally subjected to social, civil, and political death. To argue that the
prison is an institution of necropolitical power and that prisoners are resigned to slow death, is
not to deny the resilience and agency of those who survive prison on a daily basis. It is
instead to underscore how the conditions of captivity govern life in ways that are akin to slow
and prolonged death, thus severely restricting the possibilities for resistance and survival.
Ironically, and perhaps most devastatingly, it is through the act of potentially reclaiming death
that prisoners exercise a desperate form of agency. As Mbembe argues, in the realms of the
living dead, death offers a brutal moment of power. ‘For death is precisely that from and over
which I have power. But it is also that space where freedom and negation operate’ (Mbembe
2003, p. 39). Hence it should be no surprise that the hunger strike—the exercise of threat of the
living to authorise their own death—persists as a last resort of collective power in prison. As
the recent prisoner hunger strikes in California, Italy, England, Palestine, Guantanamo Bay and
elsewhere have demonstrated—alongside other less visible forms of collective organising inside—
there is persistent resilience among prisoners to resist and survive the brutal conditions of their
captivity.26 Arguably, what makes the prison an example of necropolitics, and not just an
instance of ruthless state brutality, is that the imposition of death and suffering on some
populations is explicitly legitimised and authorised in the name of fostering and protecting
the life of others . In other words, the enhancement and protection of life for some is
predicated on the violent sequestering of others. There are parallels here to what Nikolas Rose
(2000) describes as circuits of security and circuits of insecurity—contemporary forms of governance
that work by moving some subjects into modes of security and others into abandonment—as well as
to what Judith Butler (2004) describes as the politics of ‘precarious life’ or what Elizabeth Povinelli
(2011) refers to ‘economies of abandonment’. Necropolitics, however, draws more explicit
attention to the deathly logic of these modes of governance, foregrounding the exercise of
sovereign power (both within and beyond the state) to authorise and legitimate the politics of
death and killing in the name of vitality and living. Examining these queer investments in
punishment and necropolitics, we can identify several recurring patterns. First, these trends suggest
the emergence and expansion of a specifically queer penality. Although punishment is widely
endorsed and socially sustained, it appears that LGBT organisations are increasingly engaging in
citizenship claims that are explicitly bound up with punitive norms and values. The popularity of
LGBT campaigns for the passage and enforcement of hate crime legislation, with the specific aim of
increasing carceral penalties for those convicted, sutures claims of queer safety and freedom to state
practices of caging. Second, these trends reconfigure the neoliberal carceral state as the guardian of
sexual citizenship rather than the perpetrator of violence. As Jin Haritaworn argues the redefinition
of crime, security, and integration as sexual problems lends an intimate touch to the hard arm of the
state. The move of LGBT activism into the penal state enables the police to reinvent themselves as
protector, patron, and sponsor of minorities at the very moment that their targeting of racialized
populations and areas is reaching new levels. (2010, p. 83) In the current era of neoliberalism, where
faith in the welfare state has been all but abandoned, it is striking how much faith is placed in the
carceral state’s capacity to dole out justice, particularly when the state itself has begun to
acknowledge the limits of this capacity (Garland 2001). In this context, queer investments in
punishment become mechanisms through which the state enlists LGBT subjects as responsibilised
partners in the ‘co-production of security’ (Garland 2001, p. 124) and acquires consent and support
for one of its most systemically violent and discriminatory institutions. Whereas law and order
politics once belonged more firmly in a right wing conservative agenda, policing and
punishment in these contexts have been transformed into ‘symbols of social inclusion and
care for sexual diversity’ (Haritaworn 2010). These processes go hand in hand with the
perpetual (re)invention of a dangerous Other, who is easily recognised through older tropes
of criminality: the ‘homophobic Muslim’, the ‘working-class yob’ or the ‘backwards
immigrant’ (Haritaworn 2010). State recognition of the respectable, enlightened and worthy sexual
citizen is thus produced through the reproduction of a dangerous Other who offers a scapegoat for
the insecurities and vulnerabilities produced by the contemporary political economic order. The coproduction of these figures works to entrench the dividing line between those who are
marked for life and vitality versus those ushered into abandonment and death. In this way,
queer investments in punishment can be seen to occur at multiple levels, through: (a) discursive
investments in the myths of the neoliberal carceral state (by endorsing rhetoric which equates
community safety and violence prevention with state punishment and securitisation politics); (b)
affective invest- ments in the racialised and classed politics of fear and danger (by invoking
discourses of ‘dangerous others’ who threaten LGBT claims to citizenship and security); (c) labour
investments in the techniques of punishment (by undertaking the work of the carceral state through
partnerships that provide training, develop criminal justice policy and undertake state-based criminal
justice work) and; (d) financial investments in the expanding carceral state (by channelling
community resources into practices of punishment and by supporting policies that increase state
spending on prisons and policing). These punitive trends are not restricted to LGBT organisations,
but are occuring more broadly within leftist and ‘progressive’ politics (Aharonson 2010). Feminists
who advocate for the criminalisation of sex work and trafficking, for example, are becoming engaged
in what Bernstein (2010) describes as ‘carceral feminism’. Similarly, feminist anti-violence goals
increasingly operate in tandem with ‘law and order’ politics and are used to justify increased
imprisonment, policing and immigration controls (Critical Resistance and INCITE! Women of Color
Against Violence 2006; Bumiller 2008; Ritchie 2012). These trends suggest that activist agendas have
not simply been co-opted by pro-criminalisation agendas, but rather that social movements are
redefining their politics in ways that
This same necropolitical system that aims to foster and extend the lives of the
privileged in the West also maintains the Global South as a death world that is
the site of endless extermination in the name of the market.
Banerjee 2006 - University of South Australia (Subhabrata Bobby, “Live and Let Die: Colonial
Sovereignties and the Death Worlds of Necrocapitalism,” Borderlands, Volume 5 No. 1,
http://www.borderlands.net.au/vol5no1_2006/banerjee_live.htm)
10. Agamben shows how sovereign power operates in the production of bare life in a variety of
contexts: concentration camps, 'human guinea pigs' used by Nazi doctors, current debates on
euthanasia, debates on human rights and refugee rights. A sovereign decision to apply a state
of exception invokes a power to decide the value of life, which would allow a life to be killed
without the charge of homicide. The killings of mentally and physically handicapped people during
the Nazi regime was justified as ending a 'life devoid of value', a life 'unworthy to be lived'.
Sovereignty thus becomes a decision on the value of life, 'a power to decide the point at which life
ceases to be politically relevant' (Agamben, 1998: 142). Life is no more sovereign as enshrined in
the declaration of 'human' rights but becomes instead a political decision, an exercise of
biopower (Foucault, 1980). In the context of the 'war on terror' operating in a neoliberal
economy, the exercise of biopower results in the creation of a type of sovereignty that has
profound implications for those whose livelihoods depend on the war on terror as well as those
whose lives become constituted as 'bare life' in the economy of the war on terror. 11. However, it is
not enough to situate sovereignty and biopower in the context of a neoliberal economy especially in
the case of the war on terror. In a neoliberal economy, the colony represents a greater potential
for profit especially as it is this space that, as Mbembe (2003: 14) suggests, represents a
permanent state of exception where sovereignty is the exercise of power outside the law,
where 'peace was more likely to take on the face of a war without end' and where violence
could operate in the name of civilization. But these forms of necropolitical power, as Mbembe
reads it in the context of the occupation of Palestine, literally create 'death worlds, new and
unique forms of social existence in which vast populations are subjected to conditions of
life conferring upon them the status of theliving dead ' (Mbembe, 2003: 40). The state of
endless war is precisely the space where profits accrue whether it is through the extraction of
resources or the use of privatized militias or through contracts for reconstruction.
Sovereignty over death worlds results in the application of necropower either literally as the
right to kill or the right to 'civilize', a supposedly 'benevolent' form of power that requires
the destruction of a culture in order to 'save the people from themselves' (Mbembe, 2003:22).
This attempt to save the people from themselves has, of course, been the rhetoric used by
the U.S. government in the war on terror and the war in Iraq. 12. Situating necropolitics in the
context of economy, Montag (2005: 11) argues that if necropolitics is interested in the production of
death or subjugating life to the power of death then it is possible to speak of a necroeconomics - a
space of 'letting die or exposing to death'. Montag explores the relation of the market to life and
death in his reading of Adam Smith's Wealth of Nations and Theory of Moral Sentiments. In
Montag's reading of Smith, it is 'the dread of death, the great poison to the happiness...which while it
afflicts and mortifies the individual, guards and protects the society' (cited in Montag, 2005: 12). If
social life was driven solely by unrestrained self-interest then the fear of punishment or death
through juridical systems kept the pursuit of excessive self-interest in check, otherwise people would
simply rob, injure and kill for material wealth. Thus, for Smith the universality of life is contingent on
the particularity of death, the production of life on the production of death where the intersection of
the political and the economic makes it necessary to exercise the right to kill. The market then, as a
'concrete form of the universal' becomes the 'very form of universality as life' and requires at certain
moments to 'let die'. Or as Montag theorizes it, Death establishes the conditions of life; death as by
an invisible hand restores the market to what it must be to support life. The allowing of
death of the particular is necessary to the production of life of the universal. The market
reduces and rations life; it not only allows death , it demands death be allowed by the
sovereign power , as well as by those who suffer it. In other words, it demands and required the
latter allow themselves to die. Thus alongside the figure of homo sacer, the one who may be
killed with impunity, is another figure, one whose death is no doubt less spectacular than the first
and is the object of no memorial or commemoration: he who with impunity may be allowed to
die, slowly or quickly, in the name of the rationality and equilibrium of the market (Montag,
2005: 15). Montag, therefore, theorizes a necroeconomics where the state becomes the
legitimate purveyor of violence: in this scenario, the state can compel by force by 'those who
refuse to allow themselves to die' (Montag, 2005: 15). However, Montag's concept of
necroeconomics appears to universalize conditions of poverty through the logic of the market. My
concern however, is the creation of death worlds in colonial contexts through the collusion between
states and corporations. 13. If states and corporations work in tandem with each other in
colonial contexts, creating states of exception and exercising necropower to profit from the
death worlds that they establish, then necroeconomics fails to consider the specificities of colonial
capitalist practices. In this sense, I would argue that necrocapitalism emerges from the intersection
of necropolitics and necroeconomics, as practices of accumulation in colonial contexts by
specific economic actors - multinational corporations for example - that involve dispossession,
death, torture, suicide, slavery, destruction of livelihoods and the general management of
violence. It is a new form of imperialism, an imperialism that has learned to 'manage things
better' . Colonial sovereignty can be established even in metropolitan sites where necrocapitalism
may operate in states of exception: refugee detention centres in Australia are examples of these states
of exception (Perera, 2002). However, in the colonies (either 'post' or 'neo'), entire regions in the
Middle East or Africa may be designated as states of exception.
Thus, we affirm the workless death—the Supreme Court’s rationale in the
Glucksberg v Washington and Vacco v Quill decisions was premised on a
rejection of the concept of the unruly death of the workless subject that
doesn’t have any utility for the community. Our affirmation is the ultimate
threat to the coherence of the narrative of the community that depends on
making death work for the body politic by opening an alternative relation to
death and finitude.
Hanafin, 03 - Professor of Law, University of London, Birkbeck College (“Surviving
Law: Death Community Culture”, Studies in Law, Politics, and Society, Vol. 28, pg.
97-115, 2003)
The individual who goes before the law to seek assistance in dying falls into the bind of
seeking the approval of the law for her transgressive desire. The person in other words remains
within law’s imaginary domain where she is: already marked in [her] difference through [her]
symbolic devaluation . The problem [is] not that difference [is] recognised, but that it [is]
recognised as not being of equivalent value (Cornell, 1995, p. 54). The attempt to overcome the
law by using the law must fail . By coming before the law in order to secure a right to die by
assistance, the individual's lack of freedom is underlined. The appeal to the Constitution to
uphold this argument marks the individual as being before and outside the law . This workless
subject, attempting to die within the space of legal permission, is absorbed into the law's
space.9 In this case, to paraphrase Derrida, the discourse of the law: "operates at the limit, not to
prohibit directly, but to interrupt and defer the passage" (Derrida, 1991, p. 203). This legal
discourse posits a particular societal relation to death which in Blan-chot's terms is embodied
in homogeneity, immanence and the enforcement of law (Blanchot, 1983, p. 70). In this case one
could argue that what is valued most of all is a transcendent being in common of community.
The death which builds this form of community is the death of the patriot , a community
bound together through death and worship of the war dead. Death in time of war for one's
country is valorised as adding to the life of the community. Similarly such a relation to death
would valorise the death penalty, self-defence and killing in time of war, as necessary for the
security of the body politic. This relation is built into the law's normative framework in the
natural law model of the sanctity of life, which al-lows of exceptions in the aforementioned cases.
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. The law authorises its own transgression
in eliminating the transgressor. This relation to death can be seen as looking to the
enforcement of law and exclusion. In managing death and repelling the enemy, the body politic
aims to survive. Indeed as Tom Dumm has observed: In this framework, security comes to
supersede freedom ... the discourse of freedom as secu-rity allows for there to be a strategic
use of the rhetoric of freedom to intensify control over populations at large ... The securing of
self is more and more closely tied to participation in or acknowledgement of one's designated
place on the (largely) demographically and economically determined scales of meaning (Dumm,
1996, p. 132). Death as the ultimate intruder must also be repelled in such an understanding
of community. The exclusion of physician-assisted suicide[death] from the list of exceptions
to the sanctity of life doctrine might be explained by looking on this death as an instance of
worklessness. It adds nothing to the survival of the community. It has no utility, it does not
defend the state or individual against attack. It is pure excess, a death which does not
sublate into building community. This is the ultimate threat to the body politic. In
transgressing the law one always remains within the space of law case with the carnivalesque
which occupies a ludic space set up by the law. This is the bind in which we find ourselves when
talking of asserting freedom in the space of the law. In order to challenge the law one must
set up an alternative symbolic universe (Mitchell, 1984, p. 291). Juliet Mitchell explains this very
well she observes: You cannot choose the imaginary, the semiotic, the carnival as an alternative
to the symbolic, as an alternative to the law. It is set up by the law precisely as its own ludic
space, its own area of imaginary alternative, but not as a symbolic alternative. So that politically
speaking, it is only the symbolic, a new symbolism, a new law, that can challenge the
dominant law (Mitchell, 1984, p. 291). This thinking of a new symbolic may lead us to look
more closely in those spaces of transgression which exist at the limits of the law. An act such
as suicide or assisted suicide[death], which so upsets the equilibrium of the law, may be one such
insubordi-nate act, which points to an alternative relation to death. This insubordinate act of
dying outside the law may fall within Blanchot's alternative positing of a societal relation to
death. In The Inavowable Community Blanchot posits this other rela-tion to death as one of
heterogeneity, alterity and the suspension of law (Blanchot, 1983, p. 59). Thus, to paraphrase
Blanchot, death is the outsider which "perturbs the untroubled continuity of the social and
does not recognize prohibitions" (Blanchot, 1983, p. 59). Instead of rigidly delineating a boundary
between life and death, death is always already on the inside . It is the foreign body within the
body politic without which life cannot go on. This affirmation of finitude may be an opening
to an alternative discourse . Thinking death otherwise requires a discourse other than the
limited and limiting discourse of the law. It involves a questioning of why it is that the law
presumes to be in control of language. It involves a certain refusal to submit to the law, to
be insub-ordinate. In L' Amitie Blanchot speaks of a community founded on "the friendship of this
No, certain, unshakeable, and exacting which holds men united in solidarity" (Blanchot, 1971, p.
130). What this "no" affirmed according to Leslie Hill was: the necessity of rupture: of a break
in continuity in politics, so to speak, and one that put at the centre of political discourse an
interval and a disjunction — beyond being and non-being, so to speak (Hill, 1997, p. 212). Such a
politics consists in a refusal of politics based on power, and is one in which the individual
bears the responsibility to decide for oneself.
Our affirmation’s re-working of the definition of what is and is not an
acceptable death in the context of assisted death challenges and subverts the
contemporary necropolitical system of governmentality at the level of culture.
Whitaker 15 (Emilie Whitaker, Emilie Whitaker is a lecturer in sociology and social work at
Cardiff University. She is a sociologist of the life course with a particular interest in the practices,
cultures and experiences of care. Her burgeoning work on necropolitics, ageing and dying has been
buoyed through her teaching on the social work programme at Cardiff University, “2015 – The year
of the new necropolitics?” SOCIOLOGICAL IMAGINATION JANUARY 21, 2015) rishi
Unusually for a festive period associated with new beginnings and births, the past fortnight has been
suffused with debate around death and dying. The death of Debbie Purdy, long-term
campaigner for assisted dying, reopened the ‘right to die’ debate in frank fashion. In
obituaries, commentators called for the House of Commons to support Lord Falconer’s Assisted
Dying Bill which would allow doctors to prescribe a lethal dose to terminally ill patients judged to
have less than six months to live. As a barometer of the public mood, a steady 60 – 70% are in
favour assisted dying. Those of us who are fortunate enough to work with the practitioners of
tomorrow are likely to report similar patterns of support amongst students in our classrooms. In my
own experience many despair at the ‘warehousing’ of older people and argue for ‘selfdetermination in death.’ * Debate over what constitutes a ‘good death’ has moved from the
hands of bioethicists into mainstream and social media. Indeed, perhaps our collective
engagement with social media provides scope for a ‘digital afterlife’ – leaving a tangible legacy after
death. Dr Kate Granger tweets about her experiences of terminal cancer and her personal
confrontation with mortality. The late Philip Gould wrote about his preparations for death following
his diagnosis of oesophageal cancer in 2008. His book, When I Die: Lessons from the Death Zone
possesses a kind of dark comedic reverie befitting the forensic detailing of his experience. This
year’sReith Lectures were delivered by bestselling author and surgeon Atul Gawande whose recent
book, Being Mortal: Medicine & What Matters in the End, critiques the extension of life at all costs.
There has been the rise of the ‘death café’ which seeks to engage the public at large on
debates about death and dying. Indeed the mundane interaction of strangers gathering over
cake to discuss death in order to“increase awareness of death with a view to helping people
make the most of their (finite) lives” underlines how death discussion is losing the protective
clothing and going mainstream. There can be little doubt that the stories of those living with
dying have through their adoption of social media, brought the debate into kitchens, chat rooms and
pubs. The intently personal reflections by Gould and Dr Kate Granger and the sociability of the
death cafés make it increasingly difficult, perhaps passé, to keep death sealed in the box we all hold at
the back of our minds. The shift from the social denial and medicalisation of death to the
conversational and public has been placed into sharp relief by a controversial blog post written by Dr
Richard Smith. Smith, a former editor of the British Medical Journal wrote that cancer provided the
“best way to die”. His argument rested on temporality and vitality. He outlined the long decline of
dementia “slowly erasing” the person, the “up and down” of organ failure as ‘tempting’ doctors to
‘treat too long’ before dismissing the widely preferred quick, sudden death as self-centred, “That may
be OK for you…but it may be very tough on those around you.” On his case for cancer he writes,
You can say goodbye, reflect on your life, leave last messages, perhaps visit special places for a last
time, listen to favourite pieces of music, read loved poems, and prepare, according to your beliefs, to
meet your maker or enjoy eternal oblivion. Dr Smith revives in many ways, the most ancient of
arguments – that only through confronting death can we truly know how to live. From a
sociological viewpoint these events mark a reorientation in the politics of death and dying,
one which alerts us to the generative as well as punitive aspects of what Mbembe (2003)
coined ‘ necropolitics .’ In Mbembe’s Foucauldian-inspired theorising, our current geopolitical
condition is indicative of unprecedented forms of biopolitical governmentality in which the
technologies of control strategically subject life to the power of death. Drone strikes, ISIS orgies of
violence and the geopolitics of the Ebola outbreak underline such a thesis, but perhaps there is
more to necropolitics as a site of inquiry and human experience. The current academic
writing on necropolitics tends to deny the generative aspects of Foucault’s schemata – the
subversions, the resistances the alternate narratives, the cultural. The work of those like
Gould, Dr Granger and participants in death cafés suggest that necropolitics can be a site
for cultural action and broadening public understanding. The turn outwards to debate what
a ‘good death’ means is sociologically instructive of a burgeoning public reclaiming of
death. Such an expansion troubles the current conceptualisation of necropolitics,
challenging it to encompass the generative cultural responses and subversions of citizens to
biopolitical governmentality exercised not only on the battlefield but in hospitals and
residential homes across the county.
The law is a lived experience that’s embedded in a rhetorical culture that
marks the symbolic boundaries that people work within—our affirmation is
the part of the necessary process of challenging those symbolic boundaries of
the law. .
Hasian et al 96 Hasian, Marouf, Jr., Celeste M. Condit, and John L. Lucaites. (Professor of
Communications, University of Utah) "The Rhetorical Boundaries of 'the Law': A Consideration of
the Rhetorical Culture of Legal Practice and the Case of the 'Separate But Equal'
Doctrine." Quarterly Journal of Speech 82 (1996): 323-42. Web.
In place of both the traditional classical liberal theories of law and the CLS critique, we offer a third
alternative that seeks to transcend the tension between these two perspectives by positing that the
law exists as part of an evolving rhetorical culture .By “rhetorical culture” we mean to draw
attention to the range of linguistic usages available to those who would address a historically
particular audience as a public. In this rhetorical culture we find the full complement of
commonly used allusions, aphorisms, analogies, characterizations, ideographs, images,
myths, narratives, and commonplace argumentative forms that demarcate the symbolic
boundaries within which public advocates find themselves flexible constrained to operate.
Rhetorical cultures evolve by adapting to changing social, political, and economic exigencies,
and the law is an inevitable branch of such a culture. From this perspective, then, the law is
neither an immutable, foundational principle, nor a relentlessly overdetermined dominant ideology,
but one component in the organic evolution of a social order that continually (re)constitutes
itself through public discourse. Unlike those orientations that treat the law as pristine
procedure free of external coercion or the product of “mere” ideology, the concept of a
“rhetorical culture” encourages us to examine the argumentative postures of ordinary
humans as they actively negotiate the social boundaries of both their domination and
liberation. Contained by this perspective is the recognition that legal hegemony entails more than
the efforts of a homogeneous ruling class to impose its worldview on some subordinate, subject
class. Instead, legal hegemony refers to “government by consent,” a social and political order
in which a set of ruling relationships represents a temporary “stand-off” among competing
groups seeking to achieve the most they can under the prevailing circumstances. Such
relationships might not be fair and equal in the best of all possible worlds, but they nonetheless
possess a certain cultural authenticity insofar as they are forged in the fires of controversy where
prudential concerns often necessitate the acceptance of less than perfect public arrangements.
We can’t just focus on the public texts of the law—our affirmation challenges
the dominant necropolitical ideologies that work as the hidden legal
transcripts that inform broader policy—this is the only way to open such
scripts to change.
West 2008 (Isaac, Associate professor at the University of Iowa in Department of Communication,
“Debbie Mayne’s Hidden Trans/Scripts” in Communication and Critical/Cultural Studies 5.3)
At this point, we face the limits of legal critique informed solely by public texts such as
judicial decisions or legislative debates about statutes .11 Confining our attention to state-
based discourses, John Louis Lucaites contends, ‘‘ seldom seriously engage[s] the political and
ideological implications of the relationship between rhetoric and law for life-in-society .’’12
Put another way, our histories of legal effectivities rely almost exclusively on ‘‘public
transcripts,’’ defined by James Scott as ‘‘the open interaction between subordinates and those
who dominate.’’13 Limiting ourselves to the optics of visibility , Scott suggests, dissimulates
‘‘the immense politicalterrain that lies between quiescence and revolt and that, for better or
worse, is the political environment of subject classes .’’14 In order to gain a more accurate
reading of the dynamic operations of domination and resistance, we must seek out ‘‘hidden
transcripts’’ or ‘‘discourse that takes place ‘offstage,’ beyond direct observation of powerholders’’ to
challenge dominant hegemonies and ideologies.15 Attention to hidden legal transcripts, the
dialectical and ‘‘silent partner of a loud form of public resistance,’’ exposes the radical
instability of legal language, institutions, and cultures which open up the possibility for
counterhegemonic articulations .16
The point is not to IGNORE the law but rather to engage in how it manifests
within everyday spaces like debate—our affirmation is a necessary
prerequisite to engaging textual law.
West 2008 (Isaac, Associate professor at the University of Iowa in Department of Communication,
“Debbie Mayne’s Hidden Trans/Scripts” in Communication and Critical/Cultural Studies 5.3)
Finally, the third intervention, exemplified in Mayne’s case, beckons us to further interrogate our
commitment to locating ourselves and our senses of agency in legal recognition, not only as
a matter of practical outcomes but also as a question about how it enables and constrains the
possibility for non-normative subjectivities that can resist modalities of dominance. The
move here is not to ignore or disengage the law , for none of us has the privilege of existing
outside the law’s disciplinary technologies. Rather, we must recognize first that the practice of
law is not restricted to the courtroom and second that the state has limited ability to ensure
the cultural recognition of official legal protections . As Austin Sarat et al. suggest, the law
‘‘seeks to colonize everyday life and give it substance, to capture it and hold it in its grasp, to
attach itself to the solidity of the everyday and, in so doing, to further solidify it.’’ However,
the law’s imperial aims are frustrated by the fact that ‘‘everyday life is a force in motion, a
clash of forces which never fully reveal themselves, [such that] law can never totally capture
or organize the everyday.’’ In this way, ‘‘law does not just happen to the everyday; it is
produced and reproduced in everyday encounters.’’69 Therefore, in order to understand the
disciplinary effectivities of legal ideologies and hegemonies, critics must engage the law not
only in its reified forms but also as a practice of everyday life.
Encounters with an affirmation of the workless death in terms of physician
assisted death is what jumpstarts the process of changing the symbolic
constitution of death in culture—even if we don’t change your mind, just
having the encounter is enough.
Hanafin, 09 – Professor of Law, University of London, Birkbeck College (“RIGHTS OF
PASSAGE: LAW AND THE BIOPOLITICS OF DYING”, Deleuze and Law: Forensic Futures:
(Palgrave/Macmillan), 2009, pp. 47-58)
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 selfartistry 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 selfartistry 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.
The positioning of our affirmation within the university is key to generating a
pedagogy of resistance within hegemonic institutions—cultural struggle
within academia helps us cultivate a language of possibility.
Giroux 13
[09/27/13, Henry Giroux, “Henry Giroux on the Militarization of Public Pedagogy”,
http://www.counterpunch.org/2013/09/27/teaching-and-learning-with-henry-giroux/]
SK: Here’s a paradox for you: How do you teach social change or resistance to authority within public
schools – institutions that many have criticized for being authoritarian and resistant to
change? HG: You can’t do it if you believe these institutions are so authoritarian that there’s
simply no room for resistance. That’s a mistake . Power is never so overwhelming that
there’s no room for resistance . Power and the forms it takes are always contradictory in
different ways and there is always some room for resistance. What needs to be understood is
the intensity of dominant power in different contexts and how it can be named, understood,
and fought. The issue here is to seize upon the contradictions at work in these institutions
and to develop them in ways that make a difference. During the sixties, the term for this was the long march
through institutions and the reference had little to do with reform but with massive restructuring of the instruments of democracy. And
we also need to impose a certain kind of responsibility upon adults in the schools – whether they
be social workers, university professors, or high school teachers. Clearly it’s
not enough to say they operate under
terrible burdens that make them voiceless. I understand those structural conditions but it doesn’t mean they
shouldn’t resist either. That means they not only have to promote particular kinds of
pedagogies in their classrooms but they also have to join social movements that give them
the force of a collective voice that can bear down on these problems and create change . The
greatest battle that we’re facing in the U.S. today is around the question of consciousness . If
people don’t have an understanding of the nature of the problems they face they’re going to
succumb to the right-wing educational populist machine. This is a challenge that the Left
has never taken seriously because it really doesn’t understand that at the center of politics is
the question of pedagogy . Pedagogy is not marginal , it is not something that can be
reduced to a method , limited to what happens in high schools, or to what college professors
say in their classes. Pedagogy is fundamental not only to the struggle over culture but also, if not
more importantly, the struggle over meaning and identity . It’s a struggle for consciousness, a
struggle over the gist of agency, if not the future itself – a struggle to convince people that
society is more than what it is , that the future doesn’t simply have to mimic the present. SK:
What would this look like in practice? One encouraging experiment I had the privilege of observing up close is taking place at the Emiliano
Zapata Street Academy in Oakland. There, in an “alternative high school” within the Oakland Unified School District, student interns
working with a group called BAY-Peace lead youth in interactive workshops on topics relevant to their lives: street violence, the school-toprison pipeline, military recruiters in their schools, and so on. HG: I think two things have to go on here, and you just mentioned one of
them. We’ve got to talk about alternative institutions. There has to be some way to build institutions that provide a different model of
education. On the Left, we had this in the ‘20s and ‘30s: socialists had Sunday schools, they had camps; they found alternative ways to
educate a generation of young people to give them a different understanding of history, of struggle. We need to reclaim that legacy, update
it for the twenty-first century, and join the fight over the creation of new modes of thinking, acting, and engaging ourselves and our
relations to others. On the second level is what Rudi Dutschke called what I referred to earlier as the “long march through the
institutions.” It’s
a model that makes a tactical claim to having one foot in and one foot out. You
can’t turn these established institutions over to the Right . You can’t simply dismiss them
by saying they’re nothing more than hegemonic institutions that oppress people . That’s a
retreat from politics. You have to fight within these institutions. Not only that, you have to create
new public spheres. SK: Henry, we’ve covered a lot of territory. Is there anything we haven’t addressed that you would like to
bring up before closing? HG: We need both a language of critique and a language of hope . Critique is
essential to what we do but it can never become so overwhelming that all we become are
critics and nothing else . It is counterproductive for the left to engage in declarations of powerlessness, without creating as
Jacques Rancière argues “new objects, forms, and spaces that thwart official expectations.” What we need to do is theorize,
understand and fight for a society that is very different from the one in which we now live.
That means taking seriously the question of pedagogy as central to any notion of viable
progressive politics; it means working collectively with others to build social movements that
address a broader language of our society – questions of inequality and power (basically the two most important issues
we can talk about now.) And I think that we need to find ways to support young people because the
most damage that’s going to be done is going to be heaped upon the next generations. So
what we’re really fighting for is not just democracy; we’re fighting for the future . And so
critique is not enough; we need a language of critique and we need a language of possibility
to be able to go forward with this.
Our affirmation that is outside of the law allows us to avoid the trap of the
biopolitics of neoliberal rationality that posits the subject as a radically selfsufficient individual—rather we open a lens of relational ethics of improper,
i.e. workless, subjects that allows us to re-read the relationship between the
physician and patient as one of outside of enmity.
Hardes 14—Jennifer, Department of Sociology, University of Alberta, Canada, “Biopolitics and
the Enemy: On Law, Rights and Proper Subjects,” March 24, 2014, Law, Culture and the Humanities
1(21): Sage
By understanding how enmity and its coterminous discourse vulnerability operate in such a way as to
enunciate a neoliberal rationality of governance that shores up limits of human relationships, we can
also reconsider how to reframe the problem. For instance, in this article I have noted that
human relationships are shored up in two ways. The first is through law’s articulation of the
subject who would help the person die as necessarily an “other” by way of fixing the gaze on
them as performing an act of murder, without considering other motives for taking life. This
fixes the appellant as vulnerable and the assister as enemy. The second is through the
appellant’s “right” to die appeal itself, which also docs not escape this problematic. The
appellant’s articulation of the right to die through law, by refusing vulnerability and claiming
instead to assert self-direction and self sovereignty, also ascribes to the same neoliberal
rationality of governance that operates on the basis that subjects are able to take care of
themselves, be self sufficient individual subjects, and therefore conform to the social
conditions in which they find themselves shaped as subjects .87 In this sense, one can ask to
what extent rights claims also shore up the limits of human relationships whereby in
appealing to the prospect of assisted dying they are also paradoxically asking the law to
immunize them. Neither of these positions necessarily challenges the conditions of a
neolibcral govemmentality that divides or immunizes subjects from one another; rather, it
seems that both positions arc fixed within a rationality that continues to erect borders
around the self and shore up human relational limits. The question then becomes: how can we
imagine an affirmative politics of assisted dying without relying on discourses of enmity that
constitute the “proper” subject as he or she in need of protecting from an adversarial other?
Or, perhaps better put, how can we envisage a more “relational” ethics that notes, and works
against, the performative features of these utterances of the “absolute enemy” and the “proper”
more broadly conceived? As the article has noted, despite the way that the discourse of enmity is
used to fix subjects through immunity’s protective enclaves, the “other” who is constituted as this
enemy is not strictly an “other” but instead is always reciprocally related to us. For Esposito, this
kind of relational ethic is crucial to an affirmative instance of biopolitics that he wants to
salvage. Such a relational ethic is one that does not close us off from one another through
immunity mechanisms, but that puts us “outside ourselves,” back into relation. Drawing on the
reciprocity of community and immunity, Esposito gestures to a type of “contagion” that might
break with the constitution of the self. Rather than the threat of the other merely causing us to
immunize, instead this threat may relate us. In order to think this kind of relational contagion, or
“contagion that relates,”88 Esposito pushes us to consider new ways to relate to one another
through difference , or plurality, as “improper” subjects.
Improper subjects do not share an “entity” or something “proper" in common, but rather share the
very rclationality of being. As Esposito states, it “isn’t the inter of esse but rather esse as inter, not a
relationship that shapes being [essere] but being itself as the relation.”89 In the legal appeals
discussed this relational contagious experience would not rationalize a type of selfstylization in which the individual and autonomous subject turns himself or herself into a
subject of rights by seeking “privacy” or other immune-bound concepts like “dignity” and
“liberty.” These problematically endeavor to protect the proper subject of rights. Rather,
Esposito’s affirmative plea would ask us to reconsider the relationality of one’s subject
position. This type of relational approach would ask the law to respond on the basis of one’s
actions as a relational subject, as opposed to law-responding on the basis of what one “is” as
a “proper” subject. This might therefore be more akin to the type of politics Hannah Arendt had
envisaged.90 For instance, we might argue that the use of enmity in legal rationale forecloses a
number of relational moments by already constituting “what” one is in law, without
considering “who” one is on account of the actions one takes. Right to die cases tell us as
much when the law has already decided, before any action occurs, that the person who takes
the life of another is, inevitably, a murderer, even if the action reveals a different
characteristic of the subject as compassionate and loving. In considering this affirmative
biopolitics in such a relational way it also helps us note the way that life “evolves” when we
open ourselves up to these new relational possibilities.91 Thus, Esposito provides us with an
ethics that points to a process of “becoming other,” or a way that we can open ourselves up
to otherness by dissolving the very meaning of “otherness” into a reciprocal relation with the
self. To draw to a conclusion, this article has argued that Esposito’s insight into immunization, which
brings together sovereignty and biopolitics, is not only revealing of the way that bioethics legal eases
appear very much bound to the discourse of sovereignty and adversarial relations underscored by
enmity, but also suggests that his “immunity paradigm” is absolutely integral to appreciating how
biopolitics operates in the contemporary ncolibcral political climate. Where Foucault had noted that
enmity was bound with sovereignty, and that the articulation of enmity had therefore dissipated in
biopolitical modes of governance, arguably through the intimate link between biopolitics and
contemporary rights claims that reify the proper self we see the re-articulation of enmity and
immunity as a central operational feature of modem ncolibcral biopower. In particular, reading legal
eases through the immunity paradigm helps us comprehend how right to die cases appear to fail on
appeal because they tend to articulate themselves according to a particular narrative of enmity, which
is a defining moment in the operation of immunity. Moreover, this insight into the immunity
mechanism also asks us to carefully question those eases wre might otherw ise consider “liberally
affirmative” that give us the outcome we might desire, but use the same damaging and potentially
closed rationale that is embedded in the discourse of their conservative counterparts (for instance,
eases that affirm rights on the basis of being a liberal individual and private self). In making these
claims, the article has further noted that we ought to be careful when employing discourses of
liberal affirmative theoretical frameworks such as “ethopoli-tics” without considering the
ways that they may also close off the self through the same mechanisms of immunity when
they relate autonomous “selves” to political change. This does not mean that all ethopolitical
conceptions of politics are problematic. Yet, Esposito’s account of immunity, and the ways in
which these legal eases appeal to immunization mechanisms underscored by enmity, reminds us that
the affirmative potential is found more so when biopolitical analyses are considered through
a lens
that is receptive to notions of difference and enmity.