Legalism K
1nc
1nc – policy – short
Quick-fix legal solutions cement racial injustice and ensures meaningful reforms never
take place – the alternative is the endorse grassroots activism in opposition to
surveillance
Kumar & Kundnani ’15 Deepa Kumar is an associate professor of Media Studies and Middle East Studies at Rutgers
University. She is the author of Islamophobia and the Politics of Empire (Haymarket Books, 2012). Arun Kundnani is research
fellow at the International Centre for Counter-Terrorism. He is a writer and activist, and a professor at NYU. “Race, surveillance,
and empire” – International Socialist Review - Issue #96 – Spring - http://isreview.org/issue/96/race-surveillance-and-empire
Today,
we are once again in a period of revelation, concern, and debate on national security surveillance. Yet if real change is to be
brought about, the racial history of surveillance will need to be fully confronted —or opposition to
surveillance will once again be easily defeated by racial security narratives. The significance of the Snowden leaks is that they have laid
out the depth of the NSA’s mass surveillance with the kind of proof that only an insider can have. The result has been a generalized level of alarm as people have
become aware of how intrusive surveillance is in our society, but that alarm remains constrained within a public
debate that is highly abstract, legalistic , and centered on the privacy rights of the white middle class. On the one hand, most
civil liberties advocates are focused on the technical details of potential legal reforms and new oversight
mechanisms to safeguard privacy. Such initiatives are likely to bring little change because they fail to
confront the racist and imperialist core of the surveillance system. On the other hand, most technologists believe the problem of government
surveillance can be fixed simply by using better encryption tools. While encryption tools are useful in increasing the resources that a government agency would need to monitor an individual, they do nothing to unravel the larger
surveillance apparatus. Meanwhile, executives of US tech corporations express concerns about loss of sales to foreign customers concerned about the privacy of data. In Washington and Silicon Valley, what should be a debate
about basic political freedoms is simply a question of corporate profits.6 Another and perhaps deeper problem is the use of images of state surveillance that do not adequately fit the current situation—such as George Orwell’s
discussion of totalitarian surveillance. Edward Snowden himself remarked that Orwell warned us of the dangers of the type of government surveillance we face today.70 Reference to Orwell’s 1984 has been widespread in the
current debate; indeed, sales of the book were said to have soared following Snowden’s revelations.71 The argument that digital surveillance is a new form of Big Brother is, on one level, supported by the evidence. For those in
certain targeted groups—Muslims, left-wing campaigners, radical journalists—state surveillance certainly looks Orwellian. But this level of scrutiny is not faced by the general public. The picture of surveillance today is therefore
quite different from the classic images of surveillance that we find in Orwell’s 1984, which assumes an undifferentiated mass population subject to government control. What we have instead today in the United States is total
the “bad guys.” In March 2014, Rick Ledgett, deputy
director of the NSA, told an audience: “Contrary to some of the stuff that’s been printed, we don’t sit there and grind out
metadata profiles of average people. If you’re not connected to one of those valid intelligence targets, you
are not of interest to us.”72 In the national security world, “connected to” can be the basis for targeting a
whole racial or political community so, even assuming the accuracy of this comment, it points to the ways that national security
surveillance can draw entire communities into its web, while reassuring “average people” (code for the
normative white middle class) that they are not to be troubled. In the eyes of the national security state, this average person must also express no
political views critical of the status quo. Better oversight of the sprawling national security apparatus and greater use of encryption in digital communication should be
welcomed. But by themselves these are likely to do little more than reassure technologists , while racialized populations
and political dissenters continue to experience massive surveillance. This is why the most effective challenges
to the national security state have come not from legal reformers or technologists but from grassroots
campaigning by the racialized groups most affected. In New York, the campaign against the NYPD’s surveillance of Muslims has drawn
surveillance, not on everyone, but on very specific groups of people, defined by their race, religion, or political ideology: people that NSA officials refer to as
its strength from building alliances with other groups affected by racial profiling: Latinos and Blacks who suffer from hugely
disproportionate rates of stop and frisk. In California’s Bay Area, a campaign against a Department of Homeland Security-funded Domain Awareness Center was successful because various constituencies
were able to unite on the issue, including homeless people, the poor, Muslims, and Blacks. Similarly, a demographics unit planned by the Los Angeles Police
Department, which would have profiled communities on the basis of race and religion, was shut down
after a campaign that united various groups defined by race and class. The lesson here is that, while the national
security state aims to create fear and to divide people, activists can organize and build alliances across race lines
to overcome that fear. To the extent that the national security state has targeted Occupy, the antiwar movement, environmental rights activists, radical journalists and campaigners, and whistleblowers, these
groups have gravitated towards opposition to the national security state. But understanding the centrality of race and empire to national security
surveillance means finding a basis for unity across different groups who experience similar kinds of
policing: Muslim, Latino/a , Asian , Black , and white dissidents and radicals. It is on such a basis that we can see
the beginnings of an effective multiracial opposition to the surveillance state and empire.
1nc – policy – long
Quick-fix legal solutions cement racial injustice and ensures meaningful reforms never
take place
Kumar & Kundnani ’15 Deepa Kumar is an associate professor of Media Studies and Middle East Studies at Rutgers
University. She is the author of Islamophobia and the Politics of Empire (Haymarket Books, 2012). Arun Kundnani is research
fellow at the International Centre for Counter-Terrorism. He is a writer and activist, and a professor at NYU. “Race, surveillance,
and empire” – International Socialist Review - Issue #96 – Spring - http://isreview.org/issue/96/race-surveillance-and-empire
Today,
we are once again in a period of revelation, concern, and debate on national security surveillance. Yet if real change is to be
brought about, the racial history of surveillance will need to be fully confronted —or opposition to
surveillance will once again be easily defeated by racial security narratives. The significance of the Snowden leaks is that they have laid
out the depth of the NSA’s mass surveillance with the kind of proof that only an insider can have. The result has been a generalized level of alarm as people have
become aware of how intrusive surveillance is in our society, but that alarm remains constrained within a public
debate that is highly abstract, legalistic , and centered on the privacy rights of the white middle class. On the one hand, most
civil liberties advocates are focused on the technical details of potential legal reforms and new oversight
mechanisms to safeguard privacy. Such initiatives are likely to bring little change because they fail to
confront the racist and imperialist core of the surveillance system. On the other hand, most technologists believe the problem of government
surveillance can be fixed simply by using better encryption tools. While encryption tools are useful in increasing the resources that a government agency would need to monitor an individual, they do nothing to unravel the larger
surveillance apparatus. Meanwhile, executives of US tech corporations express concerns about loss of sales to foreign customers concerned about the privacy of data. In Washington and Silicon Valley, what should be a debate
about basic political freedoms is simply a question of corporate profits.6 Another and perhaps deeper problem is the use of images of state surveillance that do not adequately fit the current situation—such as George Orwell’s
discussion of totalitarian surveillance. Edward Snowden himself remarked that Orwell warned us of the dangers of the type of government surveillance we face today.70 Reference to Orwell’s 1984 has been widespread in the
current debate; indeed, sales of the book were said to have soared following Snowden’s revelations.71 The argument that digital surveillance is a new form of Big Brother is, on one level, supported by the evidence. For those in
certain targeted groups—Muslims, left-wing campaigners, radical journalists—state surveillance certainly looks Orwellian. But this level of scrutiny is not faced by the general public. The picture of surveillance today is therefore
quite different from the classic images of surveillance that we find in Orwell’s 1984, which assumes an undifferentiated mass population subject to government control. What we have instead today in the United States is total
the “bad guys.” In March 2014, Rick Ledgett, deputy
director of the NSA, told an audience: “Contrary to some of the stuff that’s been printed, we don’t sit there and grind out
metadata profiles of average people. If you’re not connected to one of those valid intelligence targets, you
are not of interest to us.”72 In the national security world, “connected to” can be the basis for targeting a
whole racial or political community so, even assuming the accuracy of this comment, it points to the ways that national security
surveillance can draw entire communities into its web, while reassuring “average people” (code for the
normative white middle class) that they are not to be troubled. In the eyes of the national security state, this average person must also express no
political views critical of the status quo. Better oversight of the sprawling national security apparatus and greater use of encryption in digital communication should be
welcomed. But by themselves these are likely to do little more than reassure technologists , while racialized populations
and political dissenters continue to experience massive surveillance. This is why the most effective challenges
to the national security state have come not from legal reformers or technologists but from grassroots
surveillance, not on everyone, but on very specific groups of people, defined by their race, religion, or political ideology: people that NSA officials refer to as
campaigning by the racialized groups most affected. In New York, the campaign against the NYPD’s surveillance of Muslims has drawn
its strength from building alliances with other groups affected by racial profiling: Latinos and Blacks who suffer from hugely
disproportionate rates of stop and frisk. In California’s Bay Area, a campaign against a Department of Homeland Security-funded Domain Awareness Center was successful because various constituencies
were able to unite on the issue, including homeless people, the poor, Muslims, and Blacks. Similarly, a demographics unit planned by the Los Angeles Police
Department, which would have profiled communities on the basis of race and religion, was shut down
after a campaign that united various groups defined by race and class. The lesson here is that, while the national
security state aims to create fear and to divide people, activists can organize and build alliances across race lines
to overcome that fear. To the extent that the national security state has targeted Occupy, the antiwar movement, environmental rights activists, radical journalists and campaigners, and whistleblowers, these
groups have gravitated towards opposition to the national security state. But understanding the centrality of race and empire to national security
surveillance means finding a basis for unity across different groups who experience similar kinds of
policing: Muslim, Latino/a , Asian , Black , and white dissidents and radicals. It is on such a basis that we can see
the beginnings of an effective multiracial opposition to the surveillance state and empire.
Lending legitimacy to government self-regulation ensures subversion and noncompliance – turns the aff
Jennifer Granick, 14 (The Surveillance State’s Legalism Isn’t About Morals, It’s About Manipulating the
Rules) http://justsecurity.org/17393/ics-legalism-morals-manipulating-rules/ accessed online 7/15/15
ARTICLE II The scope
of the president’s Article II powers loom over all discussion of modern surveillance
legality. Where Congress has regulated, the president can act in contravention of statute only if
executive authority is exclusive, and not subject to the check of statutory regulation . However, after
9/11, the executive branch strongly began pushing a theory of “Commander-in-Chief override”, which
maintains that it is unconstitutional for congressional action to limit the president’s exercise of his
“war powers” under the Commander-in Chief clause of Article II. As Steve Vladeck has written, the argument
claiming statutes imposing barriers to unilateral executive action are unconstitutional even where
Congress has power to regulate is unprecedented. And nowhere has this novel argument been pushed
more strongly than in the Justice Department’s defense of the president’s warrantless wiretapping
program. From NSA white papers to congressional hearings on surveillance, executive branch officials
assert that “if the president chose to exercise Article II authority, that would be the president’s call”
and there’s nothing that Congress can do to constrain that authority. This argument is both novel and grossly
overstated, but it’s not necessary to explain why here. My point is that the unprecedented Commander-in-Chief
override gives lip service to legal rules and regulations (it’s in Article II!), but is essentially lawless
(S/he can do whatever s/he wants.) Looming over legislative efforts to rein in surveillance practices is
the danger—or implicit threat—that Congress will be instigating interbranch power struggle against a
president that will assert his override, and the fight could tear the government apart. As a lawyer, I
understand that an interpretation of Article II powers that would vitiate whatever Congress might legitimately try to do to protect the
American people is, technically, a legal argument. But
it’s not “an ethical attitude that holds moral conduct to be a
matter of rule following.” It’s a Get Out of Jail Free card that just allows the IC to make up its own
rules, which, at that point, aren’t rules at all. POWER VACUUM It’s the absence of affirmative
regulation — Congress’s failure to act—that has allowed some of the NSA’s most troubling activities to
flourish. NSA (and law enforcement agencies) fight any congressional effort to issue rules, not in the
least by hiding their activities from public view. The NSA has built a network of compromised Internet routers it uses for
surveillance and to install spyware. It is capable of hijacking user connections to Facebook in order to install malware on a target’s
computer. It forced Microsoft and Cisco to build surveillance back doors into their products. It has automated control over swarms of
computers—botnets—capable of attacks that bring down websites and computer systems.
US intelligence agencies have
successfully undermined various encryption protocols and implementations . The Intelligence Community
purchases zero-day exploits thereby helping drive the market for malware.
All of these techniques contribute to a
network infrastructure that is insecure, something that benefits not only America’s spies, but other
governments, thieves, and terrorists. Meanwhile, Congress hasn’t even authorized the FBI to hack,
though the agency does. The FBI uses “Stingray” devices to warrantlessly track the location of US citizens’ cell phones and it
remotely accesses people’s computers to perform searches. The bureau even creates fake news sites to entice suspects to visit and then be
compromised by FBI surveillance malware. The DEA has a vast “law enforcement sensitive” database of phone call information called
Hemisphere—only discovered by a citizens’ series of public information requests to West Coast police agencies. The IRS gets data on
Americans from the NSA for tax enforcement reasons.
Yet Congress has never had a hearing to specifically discuss
the desirability of any these practices, nor has it explicitly authorized these three letter agencies to do
these things. And, rather than disclose its use of these practices in court, the government frequently
uses “parallel construction”—making up a fake story and an alternative investigatory trail for how
they discovered the information. LEGALISM OR LIPSTICK? In February of 2014, The NSA sent out two
of its senior lawyers, Director of Compliance John DeLong and its General Counsel Rajesh De, to make
the pitch that the agency is actually an intensely-regulated, closely-watched, and law-abiding good
citizen. It is true that today, in response to NSA failures to follow FISC post-collection rules, the agency has a large bureaucracy devoted
to compliance, headed by Mr. DeLong. Margo calls this bureaucratic structure an “Office of Goodness”, because the compliance office is
tasked with furthering a value not primary for the NSA and it wouldn’t be there unless the NSA believed compliance to be A Good Thing. The
first part of that argument, at least, makes sense. I have no doubt that compliance is a major expense for NSA or that today the agency takes
it very, very seriously. But I don’t know whether the NSA leadership supports the compliance department because they think its ethical to
do so, or because they think its politically necessary to preserve NSA’s relationship with the FISA court judges it pissed off, and who have to
continue to approve at least some of NSA’s surveillance activities. Either way, if the public laws that Congress passes don’t mean what they
say, then compliance is just lipstick on a pig. Chris Sprigman wrote about this here at Just Security, and he sees the culture of lawyering at
the NSA, far from assuring the agency’s lawfulness, as actually aiding and abetting the essential lawlessness of the mass surveillance
programs. “ There is
a danger here that the role of the NSA’s lawyers – and this goes for both De and
DeLong – creates the appearance but not the reality of lawfulness, and, in the end, does not vindicate
the law, but subverts it.” If Chris is right that De and DeLong and the agency’s other lawyers have very little, if any, input into the
Administration’s interpretation of the agency’s legal authority (and neither lawyer has claimed to have such input), then NSA lawyers aren’t
empowered,
they are rubber stamps . De is the agency’s general counsel, responsible to ensure that the agency’s employees
operate within the law. Yet he emphasizes repeatedly that he relies on the expansive interpretation of the NSA’s authority that he says has
been approved by Congress, and the courts, and the Administration. De hasn’t engaged with the arguments that the agency is overrunning
whatever surveillance authority Congress and the courts have actually given it .
Margo argues that legalism actually both
crowds out the consideration of policy and interests (as opposed to law and rights), and legitimates
the surveillance state, making it less susceptible to policy reform. Chris says that De and DeLong’s approach to
agency lawyering is actually lawlessness in disguise. Who is right, and does it matter for reform? INFORMED REFORM
Sprigman is right. And yes, it matters. Margo is no cheerleader for legalism, and her critique is quite
valuable. Rules alone won’t produce true policy reform . But first things first. The priority has to be to rein
in an Intelligence Community which has all kinds of tricks to violate the law, contravene public
expectations, hide from public scrutiny, and when it gets caught, kick up so much legal dust that no
one gets in any kind of serious trouble. Reform which starts from the premise that the IC is ethically
committed to following the law won’t be enough to keep the IC from trying to manipulate and evade
the rules. Once we fix that problem, then and only then will we have the luxury of seeking creative opportunities to, as Margo writes,
“nurture [the IC’s] civil liberties ecology”.
The alternative is to endorse grassroots movements in opposition to surveillance –
that solves
Abbas ‘14
Gadeir Abbas is a staff attorney for The Council on American-Islamic Relations. The author holds a JD from Case Western
Reserve University and a BA in Philosophy from Loyola University of Chicago – “How NSA Spying Impacts Muslim Communities
and Cultivates Islamophobia”. This piece is an transcribed interview conducted by - Rania Khalek - January 26, 2014 –
Transcribed and posted at Dispatches from the Underground - http://raniakhalek.com/2014/01/26/how-nsa-spying-impactsmuslim-communities-and-cultivates-islamophobia/
KHALEK: I
wanted to ask a more broad question about NSA surveillance. I love all the things you’re mentioning because a lot of this
stuff really been I feel left out of the debate because a lot of the debate has been had between people who maybe haven’t been quite as effected or targeted by
surveillance over the last decade or so. It seems the debate is just between white people, who are upset about this, and rightly so because it’s targeting everyone.
We talked about how this is sort of the outgrowth of these policies that targeted Muslims but in general surveillance and spying in this country has always existed in
a really intense manner in communities of color, whether it be Muslim communities or the black community or black Muslim communities. Do
you think
there’s an important lesson to learn from that, that this has been ongoing and people need to be concerned when it’s
marginalized communities that are being targeted? ABBAS: Really it’s up to the communities that are most
affected to stand up and advocate for themselves on behalf of their own community as well as everyone else. I tend to take a
slightly pessimistic view on what the Snowden revelations will ultimately accomplish because as you said we
have a long history of undue surveillance in this country and it’s very easy for what they’re doing now
to be reformed and for it to just become a part of the black budget and we not know about it but it still happens.
But like we’re seeing in the push by the African American community
1nc – biopower
The affirmative’s attempts at legal reform create a state of exception in which
sovereign control is renewed and perpetuated – this furthers biopolitical control and
ensures violence
Bull 4, Malcolm Bull is Professor of Art and the History of Ideas. He has spent his entire career at
Oxford, but has also spent periods elsewhere as a Getty Scholar and a Clark Fellow, and as a visiting
professor at the Courtauld Institute of Art and at Complutense University of Madrid. 12/16/4, “States
don’t really mind their citizens dying (provided they don’t all do it at once): they just don’t like anyone
else to kill them,” http://www.generation-online.org/p/fpagamben2.htm, NN
Agamben follows Benjamin here, losing any sense that mythical and divine violence are both
potentially forms of revolution, as opposed to norm and exception, which are forms of state power.
Instead, he is concerned solely with their relationship to the law, and because mythical violence is
law-making, he turns to divine violence as the only possible alternative to the sovereign violence of the
state of exception: mythical violence is dismissed as a means to an end, divine violence celebrated as a
'means without end'. Sorel himself is never even mentioned, but it is his hostility to anything that
couples violence and law that forms the limit of Agamben's political imagination.∂ This distorts
Agamben's argument at both a historical and a theoretical level. Missing from his account of the state of
exception is any real acknowledgment that, in its modern form, a primary function of the emergency has
been to deal with strikes. In the United Kingdom, the first Emergency Powers Act was passed in 1920
and used the following year against the miners' strike; a state of emergency (which lasted eight months)
was declared to deal with the General Strike, and, most recently, during the Heath government, there
were five states of emergency, all in response to strikes. The symmetry between the strike and the
emergency is not just historical. In a strike, workers break their contracts with a view to renegotiating
them, then resuming work. Like the state of exception, the strike is simultaneously within the law and
outside it. Yet unlike exceptions to the law, exceptions to work can easily come about by accident,
through the spread of wildcat strikes or absenteeism. A formal state of exception may result. Livy
mentions an occasion when a iustitium was declared because people had given up going to work to
participate in the Bacchanalia. (The 2 January Bank Holiday in Scotland is a more recent example.) Who
then decides the exception? In Agamben's work, the state of exception produces outlaws, but if there
are enough outlaws there is effectively no law in any case.∂ Instances such as this, in which the
government sanctions collective (in)action, are unusual. The state of exception is more often used to
suppress industrial action: an attempt to turn law into violence in order to oppose the law-making
violence of the strike. But Agamben gives little indication that the state of exception is usually only
one side of a social confrontation, or that, rather than creating a void in the law, the exception is
often made in an attempt to close a space opened up by someone else. According to Schmitt, 'in the
exception the power of real life breaks through the crust of mechanism that has become torpid by
repetition.' Yet it is not the state of exception itself that carries the power of real life so much as the
crisis with which it attempts to deal, or the crisis that it provokes. The state of exception is, in itself, a
purely formal device which allows 'the state to exist even as the law recedes', and provides a bridge
across the abyss between two moments of law.∂ In this respect, the exception differs significantly
from constituent power and the political general strike, both of which have the capacity to remake
established legal and social frameworks. The ability to revise existing norms is, as Machiavelli first
recognised, just as important for the survival of institutions as dictatorship, for while dictatorship
only allows norms to be preserved, reformation enables them to be renewed. Dictatorship and
renovation may both be precipitated by crisis, but whereas the former is to be deployed as sparingly
as possible, the latter is to be encouraged, for institutions last longer if they retain the capacity to
start over.∂ Agamben does not refer to this tradition of exception, but it has its own sacred history. In
the Jewish law, jubilees were years when normal working activities ceased, and the socially dead were
resuscitated - debtors given relief, slaves freed and the poor reunited with their property. Such practices
provided the model for the first attempted general strike, William Benbow's 'Grand National Holiday', so
named because 'a holiday signifies a holy day and ours is to be of holy days the most holy . . . established
to establish plenty, to abolish want, to render all men equal.' Unlike the state of exception, when all
men become homines sacri, on the holy day, when 'we shall legislate for all mankind', all men are
sovereign, and it is the body politic that becomes the defenceless homo sacer.
Biopolitical control ensures endless wars and extinction
Duarte 5 (André Duarte, professor of Philosophy at Universidade Federal do Paraná “Biopolitics and the dissemination of violence: the
Arendtian critique of the present,” April 2005, http://works.bepress.com/cgi/viewcontent.cgi?article=1017&context=andre_duarte)
These historic transformations have not only brought more violence to the core of the political but have also redefined its character by giving
rise to biopolitical violence. As stated, what characterizes
biopolitics is a dynamic of both protecting and
abandoning life through its inclusion and exclusion from the political and economic community . In
Arendtian terms, the biopolitical danger is best described as the risk of converting animal laborans into
Agamben’s homo sacer, the human being who can be put to death by anyone and whose killing does
not imply any crime whatsoever 13). When politics is conceived of as biopolitics, as the task of increasing the life
and happiness of the national animal laborans, the nation-state becomes ever more violent and murderous. If we link
Arendt’s thesis from The Human Condition to those of The Origins of Totalitarianism, we can see the Nazi and Stalinist extermination
camps as the most refined experiments in annihilating the “bare life” of animal laborans (although these are by no
means the only instances in which the modern state has devoted itself to human slaughter). Arendt is not concerned only with the process of
the extermination itself, but also the historical situation in which large-scale exterminations were made possible – above all, the emergence of
‘uprooted’ and ‘superfluous’ modern masses, what we might describe as animal laborans balanced on the knife-edge of ‘bare life.’ Compare her
words in ‘Ideology and Terror’ (1953), which became the conclusion of later editions of The Origins of Totalitarianism: Isolation is that impasse
into which men [humans] are driven when the political sphere of their lives… is destroyed… Isolated man who lost his place in the political
realm of action is deserted by the world of things as well, if he is no longer recognized as homo faber but treated as an animal laborans whose
necessary ‘metabolism with nature’ is of concern to no one. Isolation then become loneliness… Loneliness, the common ground for terror, the
essence of totalitarian government, and for ideology or logicality, the preparation of its executioners and victims, is closely connected with
uprootedness and superfluousness which have been the curse of modern masses since the beginning of the industrial revolution and have
become acute with the rise of imperialism at the end of the last century and the break-down of political institutions and social traditions in our
own time. To be uprooted means to have no place in the world, recognized and guaranteed by others; to be superfluous means not to belong
to the world at all 14). The
conversion of homo faber, the human being as creator of durable objects and
institutions, into animal laborans and, later on, into homo sacer, can be traced in Arendt’s account of
nineteenth century imperialism. As argued in the second volume of The Origins of Totalitarianism, European colonialism combined
racism and bureaucracy to perpetrate the “most terrible massacres in recent history, the Boers’ extermination of Hottentot tribes, the wild
murdering by Carl Peters in German Southeast Africa, the decimation of the peaceful Congo population – from 20 to 40 million reduced to 8
million people; and finally, perhaps worst of all, it resulted in the triumphant introduction of such means of pacification into ordinary,
respectable foreign policies.” 15) This simultaneous
protection and destruction of life was also at the core of the
two World Wars, as well as in many other more local conflicts, during which whole populations have
become stateless or deprived of a public realm. In spite of all their political differences, the United States of Roosevelt, the
Soviet Russia of Stalin, the Nazi Germany of Hitler and the Fascist Italy of Mussolini were all conceived of as states devoted to the needs of the
national animal laborans. According to Agamben, since
our contemporary politics recognizes no other value than life,
Nazism and fascism, that is, regimes
which have taken bare life as their supreme political criterion are bound
to remain standing temptations 16). Finally, it is obvious that this same logic of promoting and annihilating life
persists both in post-industrial and in underdeveloped countries, inasmuch as economic growth depends on the increase
of unemployment and on many forms of political exclusion. When politics is reduced to the tasks of
administering, preserving and promoting the life and happiness of animal laborans it ceases to matter
that those objectives require increasingly violent acts, both in national and international arenas. Therefore, we should not
be surprised that the legality of state violence has become a secondary aspect in political discussions, since what really matters is to protect and
stimulate the life of the national (or, as the case may be, Western) animal laborans. In order to maintain sacrosanct ideals of increased mass
production and mass consumerism, developed countries ignore the finite character of natural reserves and refuse to sign International
Protocols regarding natural resource conservation or pollution reduction, thereby jeopardising future humanity. They also launch preventive
attacks and wars, disregard basic human rights, for instance in extra-legal detention camps such as Guantánamo,27) and multiply refugee
camps. Some countries have even imprisoned whole populations, physically isolating them from other communities, in a new form of social,
political and economic apartheid. In short, states
permit themselves to impose physical and structural violence
against individuals and regimes (‘rogue states’ 18) ) that supposedly interfere with the security and growth
of their national ‘life process.’ If, according to Arendt, the common world consists of an institutional in-between meant to outlast
both human natality and mortality, in modern mass societies we find the progressive abolition of the institutional artifice that separates and
protects our world from the forces of nature 19). This explains the contemporary feeling of disorientation and unhappiness, likewise the
political impossibility we find in combining stability and novelty 20). In the context of a “waste economy, in which things must be almost as
it is
not only possible, but also necessary, that people themselves become raw material to be consumed,
discarded, annihilated. In other words, when Arendt announces the “grave danger that eventually no object of the world will be safe
from consumption and annihilation through consumption,” 22) we should also remember that human annihilation, once
elevated to the status of an ‘end-in-itself’ in totalitarian regimes, still continues to occur – albeit in different
quickly devoured and discarded as they have appeared in the world, if the process itself is not to come to a sudden catastrophic end,” 21)
degrees and by different methods, in contemporary ‘holes of oblivion’ such as miserably poor Third World neighbourhoods 23) and
penitentiaries, underpaid and slave labour camps, in the name of protecting the vital interests of animal laborans. To talk about a process of
human consumption is not to speak metaphorically but literally. Heidegger had realized this in his notes written during the late thirties,
later published under the title of Overcoming Metaphysics. He claimed that
the difference between war and peace had
already been blurred in a society in which “metaphysical man [human], the animal rationale, gets fixed as the labouring animal,”
so that “labour is now reaching the metaphysical rank of the unconditional objectification of everything present.” 24) Heidegger argued that
once the world becomes fully determined by the “circularity of consumption for the sake of
consumption” it is at the brink of becoming an ‘unworld’ (Unwelt), since ‘man [human], who no longer conceals his
character of being the most important raw material, is also drawn into the process. Man is “the most important raw material” because he
remains the subject of all consumption.’ 25) After the Second World War and the release of detailed information concerning the death
factories Heidegger took his critique even further, acknowledging that to understand man as both subject and object of the consumption
process would still not comprehend the process of deliberate mass extermination. He saw this, instead, in terms of the conversion of man into
no more than an “item of the reserve fund for the fabrication of corpses” (Bestandestücke eines Bestandes der Fabrikation von Leichen).
According to Heidegger, what happened in the extermination camps was that death became meaningless, and the existential importance of our
anxiety in the face of death was lost; instead, people were robbed of the essential possibility of dying, so that they merely “passed away” in the
The human being as animal laborans (Arendt), as homo
sacer (Agamben), as an ‘item of the reserve fund’ (Heidegger) – all describe the same process of dehumanisation whereby
humankind is reduced to the bare fact of being alive, with no further qualifications. As argued by Agamben,
when it becomes impossible to differentiate between biós and zóe, that is, when bare life is transformed
into a qualified or specific ‘form of life,’ we face the emergence of a biopolitical epoch 27). When states
process of being “inconspicuously liquidated” (unauffällig liquidiert). 26)
promote the animalisation of man by policies that aim at both protecting and destroying human life, we can interpret this in terms of the
widespread presence of the homo sacer in our world: “If
it is true that the figure proposed by our age is that of an
unsacrificeable life that has nevertheless become capable of being killed to an unprecedented degree,
then the bare life of homo sacer concerns us in a special way… If today there is no longer any one clear figure of the sacred man, it is
perhaps because we are all virtually homines sacri.” 28) Investigating changes in the way power was conceived of and
exercised at the turn of the nineteenth century, Foucault realized that when life turned out to be a constitutive
political element, managed, calculated, and normalized by means of biopolitics, political strategies
soon became murderous. Paradoxically, when the Sovereign’s prerogative ceased to be simply that of
imposing violent death, and became a matter of promoting the growth of life, wars became more and
more bloody, mass killing more frequent. Political conflicts now aimed at preserving and intensifying the life of the winners, so
that enmity ceased to be political and came to be seen biologically: it is not enough to defeat the
enemy; it must be exterminated as a danger to the health of the race, people or community. Thus Foucault
on the formation of the modern biopolitical paradigm at the end of the nineteenth century:… death that was based on the right
of the sovereign is now manifested as simply the reverse of the right of the social body to ensure,
maintain or develop its life. Yet wars were never as bloody as they have been since the nineteenth century, and all things being
equal, never before did regimes visit such holocausts on their own populations. But this formidable power of death… now presents itself as the
counterpart of a power that exerts a positive influence on life that endeavours to administer, optimise, and multiply it, subjecting it to precise
controls and comprehensive regulations. 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. It is
as managers of life and survival, of bodies and the race, that so many regimes have been able to wage so many wars, causing so many men
[humans] to be killed. And through a turn that closes the circle, as
the technology of wars have caused them to tend
increasingly toward all-out destruction, the decision that initiates them and the one that terminates them are in
fact increasingly informed by the naked question of survival. The atomic situation is now at the end of
point of this process: the power to expose a whole population to death is the underside of the power
to guarantee an individual’s continued existence. The principle underlying the tactics of battle – that
one has to be capable of killing in order to go on living – has become the principle that defines the
strategy of states. But the existence in question is no longer the juridical existence of sovereignty; at stake is the biological existence of a
population. If genocide is indeed the dream of modern powers, this is not because of a recent return of the ancient right to kill; it is because
power is situated and exercised at the level of life, the species, the race, and the large-scale phenomena of population. 29) Arendt proposed no
political utopias, but she remained convinced that our political dilemmas have no necessary outcome, that history has not and will not come to
a tragic end. Neither a pessimist nor an optimist, she wanted only to understand the world in which she lived in and to stimulate our thinking
and acting in the present. It is always possible that radically new political constellations will come into our world, and responsibility for them
will always be ours. If we wish to remain faithful to the spirit of Arendt’s political thinking, then we
must think and act politically
without constraining our thinking and acting in terms of some pre-defined understanding of what
politics ‘is’ or ‘should’ be. In other words, I believe that the political challenge of the present is to multiply the
forms, possibilities and spaces in which we can act politically. These may be strategic actions destined to further the
agendas of political parties concerned with social justice. They can also be discrete, subversive actions favoured by small groups at the margins
of the bureaucratised party machines, promoting political interventions free of particular strategic intentions, since their goal is to invite radical
politicisation of existence. Finally, there
are also actions in which ethical openness towards otherness becomes
political: small and rather inconspicuous actions of acknowledging and welcoming, of extending
hospitality and solidarity towards others.
Vote neg to completely depose the law – that’s key to create a new sphere outside of
sovereign domination
Agamben 14, Giorgio Agamben is Giorgio Agamben is a professor of philosophy at the University of
Venice, Italy. He is the author of a great many significant works, including Homo Sacer (1995) and The
State of Exception (2002). Nearest date given is 2014. “What is a destituent
power?,” http://www.envplan.com/abstract.cgi?id=d3201tra, NN
7. If the fundamental ontological question today is not work but inoperativity, and if this inoperativity can, however, be
deployed only
through a work, then the corresponding political concept can no longer be that of ‘constituent power’
[potere constituente], but something that could be called ‘destituent power’ [potenza destituente]. And if revolutions
and insurrections correspond to constituent power, that is, a violence that establishes and constitutes
the new law, in order to think a destituent power we have to imagine completely other strategies, whose definition
is the task of the coming politics. A power that was only just overthrown by violence will rise again in
another form, in the incessant, inevitable dialectic between constituent power and constituted power, violence which
makes the law and violence that preserves it. It is a matter of a concept that is only just beginning to appear in contemporary political
reflection. Along these lines, Tronti alludes in an interview to the idea of a “potere destituente” without managing in any way to define it.(5) Coming from a
tradition in which the identification of a subjectivity was the fundamental political element, he seems to link it to the twilight of political subjectivities. For us, who
begin from that twilight, and from the putting into question of the very concept of subjectivity, the problem presents itself in different terms. It is a
‘destitution’ of this type that Benjamin imagined in the essay Critique of Violence, trying to define a form of violence that escaped
this dialectic:
the destitution (Entsetzung) of law with all the
powers on which it depends (as they depend on it), ultimately therefore on the destitution of state violence, a
new historical epoch founds itself” (Benjamin, 1977, page 202). Now what does “to destitute law” mean? And what is a destituent violence
that is not only constitutive? Defining the dispositif of the exception as a structure of the archē yields an important consequence. Since power functions
through the inclusive exclusion of anarchy, of anomie, of inoperativity, etc, it is not possible to access these
dimensions directly: it is necessary first to exhibit the form in which they are captured in power.
Something is ‘excepted’ in the state and, in this way, ‘politicized’: but, for that to happen, it is necessary
that it be reduced to the state of ‘nudity’ (bare life, anarchy as war of all against all, anomy as being-in-force [vigenza]
“on the breaking of this cycle that plays out in the sphere of the mythical form of law, on
without application, ademy as formless multitude). We know of life only bare life (seeing that the medicalization of life is an integral part of the political dispositif),
of anarchy we understand only the war of all against all, of anomy we see only chaos and the state of exception, etc. Only
a power that is made
inoperative and deposed is completely neutralized. Benjamin located this ‘destituent power’ in the
proletarian general strike, which Sorel opposed to the simply political strike. While the suspension of work in
the political strike is violent, “because it causes (veranlasst, ‘occasions’, ‘induces’) only an extraneous modification of
working conditions, the other, as pure means, is without violence” (Benjamin, 1977, page 194). Indeed, this does not entail
the resumption of work “following external concessions and some modifications to working
conditions”, but the decision to resume only a work completely transformed and nonimposed by the
state; that is, an “upheaval that this kind of strike not so much causes (veranlasst) as realizes (vollzieht)” (page 194).
The difference between veranlassen, “to induce, to provoke”, and vollziehn, “to accomplish, to realize”, expresses
the opposition between constituent power, which destroys and always recreates new forms of law ,
without ever completely destituting it, and destituent power, which, in deposing law once and for all,
immediately inaugurates a new reality. “It follows that the first of these operations is lawmaking but the second
anarchic” (page 194). An example of a destituent strategy that is neither destructive nor constituent is that of Paul faced with the question of law. Paul expresses
the relationship between the messiah and the law with the verb katargein, which means to render inoperative (argos), to deactivate (Estienne’s Thesaurus suggests,
redo aergon et inefficacem, facio cessare ab opere suo, tollo, aboleo). Thus Paul can write that the messiah “will render inoperative (katargese) all rule (potere), all
authority, and all power (potenza)” (1 Corinthians15:24) and, at the same time, that “the messiah is the telos that is the end and fulfillment of the law” (Romans
10:4): inoperativity and fulfillment coincide here perfectly. In another passage, he says of the believers that they “have been rendered inoperative (katargethemen)
with respect to the law” (Romans 7:5–6). The customary translations of this verb with “to destroy, to abolish” are not correct (the Vulgate expresses it more
cautiously with evacuari), all the more so because Paul in a famous passage declares to want “to hold firm the law” (nomon istanomen—Romans 3:31). Luther, with
an intuition whose importance must not have escaped Hegel, translates katargein with aufheben; that is, with a verb that means as much “to abolish” as “to
conserve”. In any case, it is certain that for Paul it is not a question of destroying the law, which is “holy and just”, but of deactivating its action with regard to sin,
because it is through the law that the people know sin and desire: “I would not have known desire, if the
law had not said: ‘do not desire: taking impulse from the commandment, sin has made operative (kateirgasato, has activated) in me every
desire’” (Romans 7:8). It is this operativity of the law that the messianic faith neutralizes and renders
inoperative, without thereby abolishing the law. The law “held firm” is a law deprived of its power of
command—that is, it is a law no longer of the commandments and of work (nomos ton entolon—Ephesians 2:15; ton
ergon—Romans 3:27), but of faith (nomos pisteos—Romans 3:27). And in its essence, faith is not a work, but an experience of the word (“faith from the
hearing and hearing through the word”—Romans 10:17).
Exceptions to the aff are built into the legal apparatus itself – its try or die for the
alternative
Douglas 9, “Jeremy Douglas is an independent researcher who focuses on issues of surveillance and
state reform, nearest date given is 2009, “Disappearing Citizenship: surveillance and the state of
exception,” http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/3402/3365, NN
This politics
of potentiality is created through the de facto ‘laws’ of state of exception legislation like the
Patriot Act. Looking at actual parts of the Act, we can see that it exemplifies the state of emergency referred to by
Agamben et al.; the ‘normal’ law of the state is not abolished but its “application is suspended” so
that it still technically “remains in force ” (Agamben 2003, 31). As such, the suspension of the normal
application of the law is done “on the basis of its right of self-preservation” (Schmitt 1985, 12), so that the
exception is that which must produce and guarantee the norm. Obviously then the state of exception is not intended to be
anything more than a temporary safeguarding of normal law. In fact, there can be no ‘normal’ law
without the state of exception: “the state of exception allows for the foundation and definition of the normal legal order”
(Agamben 1999, 48). The use of the state of emergency to protect the normality of the legal order dates
back at least as far as the Roman Empire. Whenever the Senate believed the state to be in danger, they could implement the iustitium, which
allowed for the consuls “to take whatever measures they considered necessary for the salvation of the state” (Agamben 2005, 41).∂ Looking
back at the Judean Roman camp example, the
detention of the Jews could be seen as enacted during an iustitium
when Jewish rebelliousness was endangering the newly acquired Roman providence of Judea. The
iustitium, as with other examples of the state of exception, is a void in which the “suspension of the law” creates
a zone that evades all legal definition. Thus, the state of exception is neither within nor outside of jurisprudence – it is “situated
in an absolute non-place with respect to the law” (ibid, 50-51). This ‘non-place’, however, also has literal geographic implications – the ‘place’ of
the camp is no longer necessary for creating bare life. Rather, the
mutually operative surveillance and state of exception
allow for a city-camp, which maintains control and suspicion over a population without necessitating
borders. But, we must distinguish – and this is relevant for the Roman camp example – between the functionality and
mechanization of camps (see abstract). For example, the Roman camp, prison, border camp, work camp, etc. all have a different
functionality – from the suppression of a rebellion to idle detention – but the mechanizations they employ to carry out this functionality are the
same - to monitor and maintain control over a given population by creating bare life (the reason the population is in a camp in the first place is
surprisingly irrelevant). Although the functionality of camps may differ, I want
to emphasize that the mechanizations of
power will always employ a structure of surveillance; this is the link between ancient and modern camps.∂ Moving away
from ancient examples of the state of exception and looking at the current American judicial-political situation, Agamben’s central argument in
Homo Sacer and State of Exception is that modern politics are defined by the permanence of a state of exception in which the exception
becomes the rule, or the norm. An example of this exception-as-the-rule can be seen in an American 2006 CRS Report for Congress on national
emergency powers: “those authorities available to the executive in time of national crisis or exigency have, since the time of the Lincoln
Administration, come to be increasingly rooted in statutory law” (Relyea 2006, 2, author’s italics). It continues:∂ Under the powers delegated by
such statutes [constitutional law, statutory law, and congressional delegations], the President may seize property, organize and control the
means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and
communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.
(ibid, 4, author’s italics).∂ This report alludes to biopolitical powers for one, but also the ways in which the state of emergency is implemented
through a variety of statutes, and not instituted as one bill or act that can be in or out of force en bloc. Rather,
it is becoming more
difficult to identify juridical documents that provide state of exception powers that are clearly
distinguishable from ‘normal’ law. The Patriot Act, to be sure, is clearly identifiable from ‘normal’ US
law, but The Domestic Security Enhancement Act 2003 was not passed under that name (nor under the alias
‘Patriot Act II’), but was tacked on to other Senate Bills∂ piecemeal. For example, some enhanced surveillance
measures were not passed under the Patriot Act, but were passed into US Code - under title 50, chapter 36,
subchapter I, § 1802 of the US Code: “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic
surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year”.
So,
‘snooping’ surveillance tactics will still be part of ‘normal’ law even if the Patriot Act is not renewed ;
this is what Agamben means when he writes of the “permanent state of emergency” (Agamben 2005, 2).
Link
2nc link - constitution
Constitutional reform is entirely closed off and inaccessible – no risk of a turn – that
discourse is ensirely useless to the majority of people
Balkin 98, Jack Balkin is a Lafeyette senior professor at Yale Law school, nearest date given is 1998,
Agreements with Hell and Other Objects of Our Faith – Part II,”
http://www.yale.edu/lawweb/jbalkin/articles/agrhell2.htm/
I emphasize this point because we might think that one answer to the problem of constitutional evil is to
take constitutional idealism seriously: By discussing and arguing about the Constitution among
ourselves, legal academics can contribute to the constitutional tradition and change its trajectory. We
can be the masters of our own constitutional destiny.(51) This solution to the problem of constitutional
evil is appealing because it envisions legal academics as having a significant effect on the Constitution.
By writing about the importance of justice in constitutional interpretation, by engaging in an ongoing
conversation with others about the meaning of the Constitution, they can actually make the
Constitution more just. Yet this is a fool's errand for most of the law professors who write and think
daily about the Constitution. It is a confusion of their role with the role of the Supreme Court Justice.(52)
Even if participating in arguments about the Constitution is a possible solution to the problem of
constitutional faith for Justice Story, it is not a possible solution for the vast majority of American law
professors, or, indeed, the vast majority of American citizens. The articulation of constitutional ideals
by different parties may look grammatically identical but its social meaning and social effect is quite
different.(53) The construction of constitutional systems by the average law professor at the average
American law school has only a minuscule effect on the direction of the Constitution's meaning. For
them, as for most Americans, constructing a Shadow Constitution is shadow boxing. It does not avoid
the real problems of constitutional faith. Justice Story's faith in the Constitution is importantly different
precisely because he is able to turn the Constitution to the path of what he regards as just. Of course,
the very fact that Story was presented with a case like Prigg shows that even Supreme Court Justices
have limited control over events that affect the Constitution's meaning. And in any case, he does not act
alone - he must convince four of his other colleagues. But these limitations on Justice Story simply
support the larger point I wish to make: To have faith in the Constitution is to have faith in an ongoing
set of institutions whose meaning the individual will not be able to control. Most of us participate only in
the great mass of public opinion that eventually affects the meaning and direction of the Constitution;
our views are like a drop of water in a great ocean. We cannot mold the object of our faith to our will;
its eventual trajectory is largely out of our hands. And what, then, if our constitutional faith is shaken?
What if we come to believe that fidelity to the Constitution will not eventually achieve social justice, but
that it will, on the contrary, preserve and even expand pervasive social injustices? It would be like
discovering that the God we worshiped was not in fact good but was indifferent or even evil; that He did
not care about us or about our well being and might be actively hostile to us. Should we have faith in
such a God at that point? Should we even come to doubt His existence? It is no accident that one of the
most difficult arguments put forward by atheists against the existence of God is the Argument from Evil.
Explaining the existence of evil, and constructing theodicies, has been a constant task for generations of
theologians.(54) Of course, there is no question of not believing in the existence of the Constitution. But
we might well doubt whether our Constitution deserves our fidelity, just as we might come to wonder
whether the god we thought we were worshipping was actually a demon.
2nc link – foreign law/modeling
Reforms in the name of international modeling only furthers the façade of legalistic
change and ensure the deflection of real reform
Margo Schlanger, 15 (is a Professor of Law at the University of Michigan Law School, and the founder
and director of the Civil Rights Litigation Clearinghouse) “Intelligence Legalism and the National Security
Agency's Civil Liberties Gap”
Stealth authoritarianism also increases the costs of detection and sanction for global actors . Stealth
authoritarian practices transform the domestic legal framework to appear consistent with the
normative expectations of international actors. Subtle reconfigurations of the existing order through
the use of stealth authoritarian practices are more difficult to detect than long-condemned
authoritarian practices that portray an openly repressive regime with ubiquitous government control.
International actors, sitting at a distance from the domestic political arena, may have even more
difficulty in detecting stealth authoritarian practices than domestic actors. In addition, the adoption
of democratic reforms may help incumbent officeholders build coalitions with international
institutions, which, in turn, bolsters regime legitimacy . For example, several human rights groups
supported Hugo Chavez for some time after he inserted language they proposed into Venezuela's
Constitution. 402 Likewise, semi-authoritarian Ugandan leader Yoweri Museveni increased his
popularity by enacting a new law on land ownership and inheritance in response to demands by
international human rights groups. 403 What is more, many of the sub-constitutional mechanisms that serve as the foundation
for stealth authoritarian practices exist in countries with [*1734] favorable democratic credentials or are adopted with the imprimatur of
international organizations.
The adoption of financial surveillance laws with the backing of the FATF provides
a good illustration. 404 International institutions are less likely to criticize legal mechanisms or
institutions whose adoption they advocated or endorsed, as evidenced by the FATF's continuing
commendation of financial surveillance laws in Russia despite evidence of abuse. Likewise, foreign
political actors can also be loath to resist stealth authoritarian practices if such practices enforce laws
that exist in their own legal systems, lest they be criticized as hypocritical. For example, Turkey's high electoral
threshold - whose anti-democratic effects were discussed above - has, for the most part, escaped the opprobrium of the international
community and even obtained the blessing of the European Court of Human Rights. 405 One reason might be that electoral thresholds exist
in many democratic countries and serve useful purposes for the incumbent regime. In Germany, for example, an electoral threshold was
adopted for the purpose of creating some stability in a fractious political marketplace. 406 German political actors' criticism of Turkey's
electoral threshold may call into question the wisdom of the German threshold. For that reason ,
many incumbent officeholders
who deploy stealth authoritarian practices attempt to deflect criticism by citing democratic foreign
countries that have adopted the same criticized legal mechanisms. 407 That provides some legitimacy
to those mechanisms before domestic audiences, but also raises the costs to the global community of
detecting their abuse and resisting their adoption.
2nc link – reform
Reforms helps the state
Law 7, Bruce A. Law has a Ed.D from Indiana University, May 2007, “The Critical Subject of Reform,”
https://books.google.com/books?id=8aC1zuReXJQC&dq=The+Critical+Subject+of+Reform&source=gbs_navlinks_s,
NN
This makes it easier to see that, far from the unitary and consensual myth of∂ reformism, the
conception of reforms diverges from one individual to another,∂ one social category to another, one
interest to another. The worlds of∂ production and the social universes are different, and people’s
behaviour∂ ambiguous, but reform is common to all. That is why analyses in terms of∂ binary
confrontations (for or against the reforms), of opposition or resistance∂ to reforms, turn out to be
partial and, in a word, incorrect: individuals certainly∂ do have different positions vis-a-vis the
reforms, and to the (themselves very∂ diverse) practical problems which they have to resolve or to
which they need∂ to adapt - privatization, liberalization, the opening of borders, public health∂ or social
measures, competition, the weight of bureaucracy, and the absence∂ of rules. They express complex and
subtle opinions, but they all express them∂ in terms circumscribed by the reformist myth. So the
problematizing in terms∂ of reform and reformism does not come merely from ‘on high’; it is not∂
merely the instrumental expression of a political will to domination, a∂ technique of control, a mode of
the exercise of the centralized and authoritarian∂ power; it is just as much fuelled by aspirations ‘from
below’, by positive∂ demands for transformations and by existential preoccupations.∂ If we follow the
reasoning proposed by Etienne Balibar in his analysis of∂ nationalism and citizenship, we can say that at
the heart of the reformism of∂ the ‘dominant’ dwell the representations of the 'dominated’.“ The
secret∂ power of reformist domination resides in the imaginaire, the awareness of∂ identity and the
reformist demands of the Tunisians themselves. They all∂ recognize themselves in these precisely
because the meaning of reform is∂ plural, not to say ‘empty’."5 Reform is endorsed by the vast
majority of∂ individuals, even if this endorsement challenges the reformist logic of the∂ central power
and its technique of domination in an attempt to highlight, every individual in his own manner, his
own vision, his own strategy, his own∂ logic of action, or quite simply his own desire for survival. That
is also why∂ support is partial and partly deployed in the field of representations and in∂ the imaginaire.“
For all these groups, it is not a question of adopting a∂ reformist package, but rather of choosing
elements from it, borrowing certain∂ forms of behaviour and rejecting others, of taking certain of its
meanings and∂ even of its shapes in order to reject its philosophy or modes of existence. This∂ is the case
with middle-class consumerism, which is not merely outrageous∂ consumption, westernization and
modernity, or the mechanism of domination∂ by debt, but can be an instrument of social integration and
recognition, an∂ effect of distinction, a symbol of protest . . . This eclecticism is all the more∂ significant in
that Tunisian reform is disparate, including Arab nationalist∂ thought as much as the Islamization of
society, the westernizing as much as∂ the orientalizing of social practices, and a return to origins as much
as an∂ openness to the future. Ever since the nineteenth century, reformism has also constituted the∂
historically constituted mode of extraversion, to use the expression coined in∂ the African context by
Jean-Francois Bayart.” Even though she does not use∂ the term, Magaly Morsy offers us a rich reinterpretation of the work of∂ Khayr ed-Din, seen through the prism of a process of westernization that∂
‘cannot be equated with an imitation since it must, on the contrary, impugn∂ passivity in the face of
European penetration’; this process carries out ‘a∂ necessary return to religious roots’ insofar as ‘only a
reform that is deliberately∂ accepted and integrated into the inner movement of Muslim societies has
any∂ meaning’.“∂ The myth of a Tunisia ‘at the crossroads of East and West’ rests on facts∂ whose
importance is doubtless exaggerated but no less real. Historians have∂ shown that incomings, economic
resources, political resources, men, and∂ legitimacy all stemmed largely from relations with foreigners
and that the∂ confused interplay of foreign powers with the internal quarrels of Tunisia∂ made possible
both a certain dependency and, at the same time, a certain∂ autonomy.” Likewisfl, it now seems that the
thesis of reformism as a response∂ to decline, internationalization, and the crisis of the nation-state in
the Muslim∂ world is a gross simplification:'° internationalization significantly predates∂ the nineteenth
century and has always contributed to the formation of the∂ nation-state; reformism, furthermore, was a
response to internal dynamics∂ proper to Tunisian society." The novelty, in the nineteenth century, came
from the simultaneous pursuit∂ of a long movement of emancipation from the Sublime Porte, from
growing∂ (and suddenly aggressive and pressing) competition from western empires,∂ from the
economically dependent position in which Tunisia was placed by∂ those same European powers, from
the emergence of nationalism across the∂ world (more particularly in Europe, but in Tunisia, too), from
the∂ reinforcement and centralization of nation-states, and from technological∂ developments. The
novelty also provoked this new problematization in terms∂ of reformism as a system of thought that
inclissociably bound together the∂ process of national construction and openness to (or at least
awareness of)∂ the Other. From this moment on, therefore, the project of reform was an∂ essential part
of the recurrent operation of the nation-state.
Reform – it maintains the fluid nature of sovereign power – their attempt to correct
the harms of imperialism through piece-meal reform and economic integration makes
global civil war inevitable
Agamben 98 (Giorgio Agamben, professor of philosophy at the University of Verona, Homo Sacer: Sovereign Power and Bare Life, pg.
179)
In this sense, our
age is nothing but the implacable and methodical attempt to overcome the division
dividing the people, to eliminate radically the people that is excluded. This attempt brings together,
according to different modalities and horizons, Right and Left , capitalist countries and socialist
countries, which are united in the project-which is in the last analysis futile but which has been
partially realized in all industrialized countries-of producing a single and undivided people . The
obsession with development is as effective as it is in our time because it coincides with the
biopolitical project to produce an undivided people. The extermination of the Jews in Nazi Germany
acquires a radically new significance in this light. As the people that refuses to be integrated into the
national political body (it is assumed that every assimilation is actually only simulated), the Jews are
the representatives par excellence and almost the living symbol of the people and of the bare life that
modernity necessarily creates within itself, but whose presence it can no longer tolerate in any way.
And we must see the extreme phase of the internal struggle that divides People and people in the lucid fury with which the German Yolkrepresentative par excellence of the People as a whole political body-sought to eliminate the Jews forever. With
the Final Solution
(which did, not by chance, involve Gypsies and others who could not be integrated), Nazism darkly and futilely sought to liberate the political scene of the West from this intolerable shadow in order to produce the German Volk
as the people that finally overcame the origi-nal biopolitical fracture . (This is why the Nazi leaders so obstinately
repeated that in eliminating Jews and Gypsies, they were actually also working for the other European peoples.)
Paraphrasing the Freudian
postulate on the relation between ego and id, one could say that modern
biopolitics is supported by the principle
according to which "Where there is bare life, there will have to be a People"-on condition that one
immediately add that the principle also holds in its inverse formulation: " Where there is a People,
there will be bare life ." The fracture that was believed to have been overcome by eliminating the
people (the Jews who are its symbol) thus reproduces itself anew, transforming the entire German
people into a sacred life consecrated to death, and a biological body that must be infinitely purified
(through the elimination of the mentally ill and the bearers of hereditary diseases). And in a different yet analogous way, today's
democratico-capitalist project of eliminating the poor classes through development not only
reproduces within itself the people that is excluded but also transforms the entire population of the
Third World into bare life . Only a politics that will have learned to take the fundamental biopolitical
fracture of the West into account will be able to stop this oscillation and to put an end to the civil war
that divides the peoples and the cities of the earth .
2nc link – rights/civil liberties
Their appeal to civil liberties and privacy rights is a façade that only furthers the
state’s biopolitical control over the population
Anders 13, Abram Anders is an Assistant Professor, University of Minnesota Duluth, nearest date given is 2013,
“Foucault and "the Right to Life": From Technologies of Normalization to Societies of Control,” http://dsqsds.org/article/view/3340/3268, NN
The essential and unavoidable problem with rights discourse is that it appeals to a liberal notion of
equality that " insofar as it neither constitutes political community nor achieves substantive equality,
guarantees only that all individuals will be treated as if they were sovereign and isolated individuals"
(Brown 110). As Brown argues, the formal equality of liberalism abandons the individual to the social
forces that produce her or him as a politicized identity. Thus, the problem with rights discourse and the
desire to seek melioration within its institutions is that "[it] continuously recolonizes political identity
as political interest—a conversion that recasts politicized identity's substantive (and often
deconstructive) cultural claims and critiques as generic claims of particularism endemic to universalist
political culture" (Brown 59). Along these lines, we might consider Brown's example of the way in which
an identity such as the "welfare subject" is produced and regulated through categories of "motherhood,
disability, race, age, and so forth" (59). While such subjects seek the intervention of the state, that is, a
political solution for social inequity, the response is further reform and administration by the
institutions that produced these subjects as effects. In other words, the entire system becomes a
closed circuit: "Thus, disciplinary power politically neutralizes entitlement claims generated by liberal
individuation, while liberalism politically neutralizes rights claims generated by disciplinary identities"
(Brown 59).∂ For another example, political efforts to address racism culminate in affirmative action
legislation, which in turn becomes a mean of regulating ethnic identities through institutional and
legal procedures. This effectively shifts debates and conflicts over racism from a political issue to one
addressed in the educational system and through workplace litigation. At the same time, conservatives
characterize such programs as reverse discrimination that unfairly provides "rewards" based on
characteristics (i.e. race) which the government should disregard. Brown describes a two-stage process
whereby political claims against social inequalities are depoliticized and privatized through
disciplinary administration and the logic of formal justice.∂ This pattern holds equally true for the
disability movement. Though intended to politically contest social inequalities pertaining both to the
allocation of resources and the self determination of the disabled, measures such as the ADA
ultimately depoliticize and privatize these claims by reinserting them into the purview of judicial
institutions: "It converts social problems into matters of individualized, dehistoricized injury and
entitlement, into matters in which there is no harm if there is no agent and not tangibly violated
subject" (Brown 124). Furthermore, such measures not only neutralize political claims as private
interest, but through bureaucratic codification reify the subject categories that are meant to protect
and serve as a means of further disciplinary regulation.∂ In consideration of the latter claim, it is
important to recognize the way in forms of disciplinary discourses imply and reinforce one another.
Historically, this has been particularly true of the relationship between medical and judicial discourse. In
his lecture series on this very topic, Foucault reiterates the fundamental thesis of much of his work, that
power is productive, that it "multiplies itself on the basis of its own effects" and operates primarily
through the "formation of knowledge" (Abnormal 48). Disability scholars have pointed out that a
primary aspect of court decisions pertaining to disability has been the reliance on medical knowledge. As
Hahn points out, "courts have viewed medical evidence of a functional impairment as an essential precondition for legal findings about disability."
Human rights are western, imperialist justifications for biopolitical control and
domination
Gündoğdu 11, Ayten Gündoğdu is part of the Department of Political Science, Barnard College-Columbia
University, 7/19/11, “Potentialities of human rights: Agamben and the narrative of fated necessity,”
http://www.palgrave-journals.com/cpt/journal/v11/n1/full/cpt201045a.html, NN
Human rights have become a predominant discourse in global politics particularly in the post-Cold War
era as they have been invoked to address multifarious forms of injustice ranging from violence
against women to global poverty. If this transformation has been welcome by some for its promise of a
cosmopolitan future, it has also become the target of several critics who underline the insidious effects
of human rights as a new form of power. The cosmopolitan aura of human rights has been increasingly
demystified as various scholars have pointed out their deployment in the justification of neoimperial
interventions (Anderson, 2002; Mutua, 2002; Douzinas, 2007), their masking of a political power
constituting subjects in need of political protection (Brown, 2004), and their hegemonic hold on our
political imagination (Kennedy, 2002).∂ Giorgio Agamben makes a distinctive contribution to this
contemporary debate with his analysis aiming to demonstrate how human rights, perceived as
normative guarantees against the state, actually participate in rendering human lives vulnerable to
sovereign violence. Although Agamben joins some other critics, especially those influenced by Michel
Foucault's work (for example, Wendy Brown), in making this claim, he radicalizes the critique of human
rights in many ways. The critique is radical literally as it tries to grasp the problem by its roots. To do
this, Agamben goes back to the early formulations of human rights in the eighteenth-century
declarations, especially the 1789 Declaration of the Rights of Man and Citizen, and shows how these
declarations reiterate the biopolitical fracture between political and natural life at the heart of
Western metaphysics and politics. Once these declarations make life the foundation of the nation-state,
every aspect of life becomes politicized and is subjected to sovereign power to an unprecedented
degree. This analysis showing how human rights participate in the reproduction of a centuries-old
problem takes Agamben also to a conclusion that is much more radical than those drawn by other
critics: Given the underlying assumptions of human rights, there is no possibility of thinking them
anew; we instead need to imagine a politics beyond human rights so as to sever the tight link that
holds human life in the grip of sovereign power.∂ This article aims not only to understand Agamben's
distinctive intervention in the contemporary debates on human rights but also to assess his concluding
call for a politics beyond human rights. I argue that this call is necessitated by a counternarrative of
Western politics that ties human rights inextricably to the ‘logic’ Agamben ascribes to biopolitical
sovereignty. Within this stringent logic, any human rights struggle cannot help but participate in the
reproduction of the sovereign violence that it aims to contest. The article questions this conclusion in
two ways: First, it shows how Agamben's counternarrative, which aims to demystify all the myths that
sustain sovereignty, ends up repeating what it identifies as the distinctive mythologizing gesture:
rendering the contingent necessary. Albeit unwittingly, Agamben's narrative against Western myths
reintroduces a ‘principle of fated necessity’, to use a phrase invoked by Max Horkheimer and Theodor
Adorno to capture the problems of a mythologizing gesture that casts each event as an inevitable
reinstatement of what always was (2002, p. 8). Second, the article also shows how this gesture is at odds
with Agamben's own efforts to rethink the past in terms of contingencies and inexhaustible
potentialities. I argue that Agamben's rethinking of ‘potentiality’ as a capacity that is not consumed in
any of its determinate actualizations can provide us with a better framework for capturing the
contingent, complex and unfinished histories of sovereignty and rights.∂
Liberal reforms
Wilcox 15 (Lauren Wilcox, University Lecturer in Gender Studies and Deputy Director of the Centre for Gender Studies at the University of
Cambridge, Bodies of Violence: Theorizing Embodied Subjects in International Relations, 2015, pg 20-22, SMahajan)
Violence and Liberal Subjects Liberal political thought takes us away from Hobbes’s preoccupation with self-preservation to a concern with the
cultivation of conditions for human achievement and flourishing. Self-preservation is not the primary purpose of political community, but rather
is a necessary condition for human flourishing. The subject of liberalism
is not only dependent upon a protected,
healthy, and naturalized body, but is also a subject with exogenous interests and desires—a willing,
speaking subject who can pursue his or her own interests in the public sphere. This liberal subject is not only a body that is
threatened by violence from outside the sovereign state, but is always at least potentially threatened
by the state itself. This is a central fear driving the liberal political tradition. Defining “cruelty” as “the willful inflicting of physical pain on
a weaker being in order to cause anguish and fear” (Shklar 1984, 8), Judith Shklar writes, “liberalism’s deepest grounding is in
place from the first, in the conviction of the earliest defenders of toleration, born in horror, that cruelty is an
absolute evil, an offense against God or humanity” (1998, 5). It is this fear of cruelty that not only legitimizes the
sovereign state and the rule of law , as in Hobbes, but limits governmental power to prevent the
government from cruelty toward its citizens . State-sponsored torture, for example, reveals a tension
between the state’s imperative to provide security for its citizens and its duty to respect the moral
status of individuals as subjects with a moral right over their own bodies. In liberal societies, “pain is not mere
negativeness. It is, literally, a scandal” (Asad 2003, 107). In the social contract, violence is disqualified from the public, domestic realm. The
subjects of liberalism are motivated by a fear of violence and cruelty, but as such, they solve problems in the domestic realm by deliberation
and the creation of a sphere of tolerance. They are subjects of reason, who do not resort to violence except in self-defense. For Hobbes, it is an
inalienable right to defend oneself, even against the sovereign (1996 [1651], 93). This is a right that cannot be contracted away, for it has to do
with man’s safety and security and so renders subjects as predominantly defined by a constitutive anxiety to preserve themselves. Violence
in liberalism is figured differently. The possibility of violence provides the motive for founding a community
that rejects it entirely and seeks to define humans in terms of their capacity for flourishing, as evidenced in their abilities to deliberate
and reason. The result is that violence is thought of as a violation not only of community standards but also of
inalienable rights. Sovereign power is not the means to security but rather a key threat to security. Liberal norms of human
rights are meant to provide the same protections for individuals against states as the sovereign provides against
other citizens. Human rights are a statement of the limitations of government interference . The human
rights that are considered jus cogens, or “non-derogable,” even in times of emergency or martial law, are
prohibitions against summary execution, torture, and slavery. Even in a state of emergency or “ state of
exception ,” the human rights regime stipulates the limits of sovereign power in killing , torturing, or
enslaving the bodies of citizens . These non-derogable rights instantiate the body of the citizen as sacrosanct,
as that which must be protected. The “ liberalism of fear ” may therefore be understood as a political theory
built upon the same concept of security for individual bodies as for the national state . While the
concept of human rights is understood to entail many more freedoms than the absence of statesponsored violence against the body, these basic “non-derogable” rights form the basis without which no
other rights or liberties could be enjoyed. In contemporary international politics, the concept of human security is an
attempt to articulate this combination of state and individual security in which states are not only the
protectors of citizens, but also a major source of insecurity for citizens. This concept, first developed by the United Nations
Development Programme in 1994, attempts to shift the referent of security from the state to the individual, and brings with it issues of health
and welfare as well as the traditional freedom from violence. Security
is re-theorized to encompass threats to the wellbeing of people, adding what had been considered development or economic issues to the security
agenda. The doctrine of “responsibility to protect” has emerged as a simultaneous challenge to, and reinforcement of, state sovereignty.
This doctrine stresses that sovereignty is not absolute; states have a “responsibility to protect” their own citizens against wide-scale violence
and genocide. At the same time, the doctrine emphasizes that such human rights abuses are the state’s responsibility to resolve before
international actors may be involved (Bellamy 2009). Human
rights and human security are not only seen as foundational of the
as pre-conditions for the exercise of freedom. Ultimately, the liberal emphasis on
the protection of human rights against the violence and cruelty of governments is founded on a similar conception of
the subject as the subject of security, a subject whose political subjectivity is dependent upon the
elimination of violence. The body, in liberalism, is a body whose natural functioning is protected and whose
needs are met so that the subject can transcend such concerns to thrive and prosper according to his interests and
liberal state, but also serve
desires. As violence is disqualified within the political community, the subject is able to exercise his exogenously given preferences, which he is
entitled to pursue up until the point that he interferes with the same rights that others enjoy. The
subject of liberalism is a
rational, autonomous individual who is entitled to a sphere of freedom from government interference. “Over himself,
over his own body and mind, the individual is sovereign” (Mill [1859] 1989, 13). Similarly, Locke’s liberal subject is the owner of his body. In
the liberal political tradition in general, the body is a mechanical feature that is animated by the
conscious mind, a Cartesian view of the relationship between mind and body. The body of the citizen (and the citizen’s property, as an
extension of his body) is an instrument for putting the mind’s desires into action. The sovereignty of the subject means that
the subject is a self-governed and willing subject; the mind of the subject is in control of his body and can freely interact in
the world to pursue its own direction.
2nc link – social justice
Legal reforms hurt social justice overall – starting from the perspective of legal
solutions forecloses the political imaginary and hampers radical solutions
Kandaswamy 12 (Priya Kandaswamy; Associate Professor Women's, Gender & Sexuality Studies;
“THE OBLIGATIONS OF FREEDOM AND THE LIMITS OF LEGAL EQUALITY” SOUTHWESTERN LAW REVIEW
Vol. 41, pg 265, 1/21/2012)
Despite a vast array of critiques that have elucidated the ways in which the U.S. state is deeply invested
in maintaining social relations of racism, capitalism, and heteropatriarchy, it is still quite commonplace
to assume that to remedy social injustices one must turn first to the law. The pursuit of legal equality
is frequently understood as the most pragmatic approach and a necessary first step to any kind of
broad scale social change. In practice, however, legal equality struggles have failed to deliver
substantive social justice for many groups. Frequently written off as a sign of the incompleteness of
legal change, these failures are often invoked as evidence of the need for further legal reform rather
than prompting the serious consideration of the law’s actual capacity to effect change that perhaps
they should. Even those critical of legal strategies frequently fall back on them, citing legal reform as a
necessary evil, the best that can be achieved in the current political context, or the first step toward
broader changes. In this way, the law maintains a fierce hold on the political imagination. In this essay,
I argue for the importance of severing that hold. The assumptions that legal reform is a pragmatic and
necessary first step to social justice is a reflection of the boundaries that circumscribe what is
imagined as politically possible within dominant discourse rather than the essential truths they are
often taken to be. To the extent that legal interventions will always simultaneously reinforce the legal
authority of the U.S. state, legal reform is bound to reiterate rather than transform unequal
distributions of power. Pinning political possibilities to the law circumscribes the boundaries of
change in very narrow ways. Instead, movements for social justice must seek to open up possibilities
for transformation and evaluate their engagements with the law in terms of the future possibilities
those engagements might open or foreclose. In other words, rather than presume legal equality is the
answer, it is necessary to engage with the more complex questions about what freedom should and
could look like and locate legal interventions in relation to this broader vision.
2nc link – realism
Realisms pretty biopolitical
Wilcox 15 (Lauren Wilcox, University Lecturer in Gender Studies and Deputy Director of the Centre for Gender Studies at the University of
Cambridge, Bodies of Violence: Theorizing Embodied Subjects in International Relations, 2015, pg 17-19, SMahajan)
In order to demonstrate the stakes of theorizing bodies and embodiment in International Relations (IR), this chapter describes how theories of
International Relations have conceptualized human bodies in relation to subjectivity and violence. I argue that, in conventional IR,
bodies
have been problematically understood in liberal humanist terms as individual, material objects preexisting
politics and housing sovereign subjects, even if such a theorization is often more implicit than explicit, with
the embodiment of the subject serving as an “absent presence.” Yet, contemporary practices of violence
are constituted not only in reference to sovereign power, as most IR theory assumes, but to biopower as well.
Biopolitical violence takes bodies as not only objects of protection, but objects of active intervention; bodies
are constituted as individuals and as populations that must be killed , or must be made to live. As such,
biopolitical practices of violence call our attention to the question of how bodies are constituted as
objects and what the parameters and possibilities for embodied subjectivity are. Though disagreements exist within feminist
theory about the constitution of “the body” and its role in politics, feminists have made questions of embodiment central to their
deconstructive and emancipatory projects. Theorizing
the subject as embodied demonstrates the stakes of
rethinking IR’s approach to violence and the subject. By understanding contemporary security
practices as constituted in relation to biopower as well as the more familiar terms of sovereign power, I call
attention to the ways in which the body must be interrogated in its contingent manifestations as a crucial means
for apprehending contemporary global politics. Conventional IR tells two broad stories about violence,
rooted in traditions of political theory. In both of these stories, violence is the ultima ratio of modern politics,
and the subject’s vulnerability to violence is foundational to understandings of subjectivity and
politics (see inter alia Campbell and Dillon 1993), yet the human body is a natural organism whose integrity is to be protected from violence
as the prerequisite for politics. The first is a realist story, in which violence is primarily about self-preservation.
The second story is the liberal tradition, in which violence is a violation of the law. In both the realist and
liberal traditions, the focus is on sovereign power: the power to kill or to let live, in which the body is a biological
organism to be protected against death and deprivation. Hobbesian Bodies In realism, violence is natural
and inevitable, and violence also marks the boundary between nature and human communities. Violence
is sometimes necessary to maintain the political community from external and internal threats . Realism
draws a sharp distinction between domestic and international politics, and maintains that states must be able to use or
threaten violence in order to maintain the state’s status and survival in the world. The iconic figure in the realist tradition is
Hobbes, who is read as telling a relatively simple story of the establishment of the political community that excludes violence from the
domestic realm. Realist theories of IR extend Hobbes’s state of nature from individual “natural men” to relations between states.
in the form of interstate war
Violence
is sometimes necessary because states provide protection for citizens not only from other
which could threaten individuals ’ lives in the absence of state authority .
The objects that are to be defended by the state are, first and foremost, the living, breathing bodies of humans as
organisms. Sovereign power , in the artificial man of the Leviathan, is constituted precisely to protect the
states, but from anarchy and civil war,
“natural man ” (Hobbes 1996 [1651], 9). It is their safety and bodily integrity that is to be protected. In order to foster life, to
prevent the life that is “nasty, brutish and short,” the state must be convened. In this logic, the survival of the state’s
citizens is dependent upon the survival of the state itself. As Dan Deudney insists, “Security from political
violence is the first freedom, the minimum vital task of all primary political associations, and achieving security requires
restraint of the application of violent power upon individual bodies” (2007, 14).
Alt
2nc alt - buell
That solves and competes – top down legal focus disenfranchises efforts at
paradigmatic change
Buell 13 (John Buell, columnist for The Progressive Populist and a faculty adjunct at Cochise College, “Nationalism, Tech Giants, and Spy
States”, http://contemporarycondition.blogspot.com/2013/08/nationalism-tech-giants-and-spy-states.html, 8/10/13, SMahajan)
That is one reason it is hard today to remain aloof from politics. But for those who seek to do so the message is just as clear. If the Internet has
progressive possibilities, their realization will not be automatic. Today a countersubversive
culture nurtures and is nurtured
by an evolving alliance of high tech giants, government bureaucrats (whom Smith calls securecrats), the older
more established military industrial complex and powerful private corporations that benefit from
close ties to the state, including especially the oil and investment banking community. If the most repressive outcomes
are to be avoided, the best course might be an evolving counter-coalition that would emerge from
moral and historical critiques of and alternative to the countersubversive tradition. In Emergency Politics,
Honig argues that the very focus on the question of the rules that should govern declarations of emergency
and the protections that can be revoked in emergencies reinforce a notion of sovereignty as unitary
and top down . Thus they "marginalize forms of popular sovereignty in which action in concert rather
than institutional governance is the mark of democratic power and legitimacy." Unitary and decisive
sovereignty committed to its own invulnerability is "most likely to perceive crisis where there may
only be political conflict and to respond...with antipolitical measures." The best answer lies not merely
in challenging the constitutional status of this surveillance state but in building a political coalition
that embodies the forms of popular sovereignty of which Honig speaks. This would include labor, consumer and
environmentalist critiques of and alternatives to the role of the state and markets in fostering inequality. It would be attentive to
the possibilities and risks of the social media and the limits of its own interventions in these. The coalition
might advance more democratic forms of enterprise and media as well as decentralized and more sustainable forms of energy production and
transportation. And in
an era where hyper nationalism erodes so many democratic impulses, cross border initiatives in
of widespread access to an open Internet with robust privacy protections would be
paramount. (Let's hope that) Edward Snowden's travels (in a world dominated by the state passport and surveillance system)
helps to highlight the stake citizens of many lands have in a democratic Internet but a more
exploratory and democratic polity.
the interest
2nc alt – digital resistance
Politics can never resolve internet freedoms – the alternative is the endorse digital
resistance – this creates zones of resistance that effectively overthrow oppressive laws
Ziccardi 13 (Giovanni Ziccardi; Professor of Legal Informatics in the Law Faculty of the University of
Milan and founder and director of the post-graduate course in Computer Forensics and Digital
Investigations; “ Resistance, Liberation Technology and Human Rights in the Digital Age”; Law,
Governance and Technology Series VOLUME 7; 2013)
The evolution from the ideas that are at the basis of these new hackers’ activities to actual digital
resistance, i.e. a strategy aimed at
unlocking the structure of a corporation, of a state, of a single computer or even of an entire legal or political
system for the purpose of bene fi tting humanity, is one of the most interesting aspects of communication technology in the modern
world. Clearly, the more effective a single action of digital protest is, the more it will be apparent that all misguided political and legal initiatives, projects aimed at
censorship, state fi lters and systems controlling Internet and social media will
be destined to fail even before they are fully
implemented: the identi fi cation of system weakpoints and of loopholes in fl awed legislation framework is facilitated, and in some cases demanded, by
technology. These sorts of activities have already been de fi ned as Digital Resistance , 9 Electronic Civil Disobedience10 or activism related to the use of Liberation
Technology11 : they
denote a new form of civil resistance, which has, at its core, the fusion of traditional resistance tactics with the skilled
use of newly available technology. As Diamond sapiently notes, liberation technology means any form of information and communication technology able to expand
political, social, and economic freedom. In modern times, it embraces essentially the most advanced, interrelated forms of digital technologies, like the computer,
the Internet, the mobile phone, and countless innovative applications for them, including new social media such as Facebook and Twitter ( Diamond 2010 : 70).
While it
is mistaken to maintain that digital resistance activities are necessary only in those countries
where repressive regimes engage in political practices that are distant from the democratic standards
enjoyed in other nations, it is also clear that, in these more oppressive states, the process of rebellion will be more evident (and more strongly motivated), and will
often take on forms that are more aggressive, resulting in more violent repression. Even
in so-called “democratic states”, however, there
are current political initiatives aimed at limiting citizens’ liberties and the possibility of communicating
(and of uncovering) facts which directly involve them; there are projects, today, aimed at obscuring public sector
activities, at masking corruption, at hindering the full performance and implementation of fundamental
procedures and processes. Careful attention to all that occurs, making the best use of new technologies, is not only bene fi cial, but even of critical
importance in every kind of society and under every form of government. Political systems which base their powers on barriers,
on the willingness to place their own intangible moral and cultural values under a glass bell in order to
prevent them from being contaminated by the free fl ow of information, are destined to cede and to
become increasingly transparent in their actions. The introduction, in authoritarian and repressive environments, of content
considered to be culturally improper or unacceptable will be increasingly dif fi cult to avoid, as will the diffusion of reserved information from the con fi nes of such
nations. This will result, as it nearly always has, in increased pluralism and democracy, culture and innovation, liberty and new stimuli, but also, in some cases, in
violent reactions and in systematic violations of human rights. 1.3 The So-Called Twitter Revolutions: It may be going too far to maintain that the bene fi cial aspects
of this type of progress are made possible only by hackers and solely through the diffusion of new technologies, or by the proliferation of the so-called Twitter
Revolutions (Morozov 2011 ) ; it is undeniable, however, that hacking, over the last 60 years of technological progress, has
made fundamental
contributions to the creation of an unprecedented framework of digital liberties. Politics has never
been able either to satisfy the real needs of Internet users or to fully comprehend the nature of the
Internet , nor has does it seem to understand what might be the best rules and regulations to govern
the Internet and to protect civil rights in cyberspace . Attempts to “gag” web sites by extending the application of rules created for
the press, often carrying signi fi cant limitations, in order to eliminate anonymity, unquestioningly incrementing instances of defamation and to impose the right to
oblivion, along with the c rusades
on the part of certain politicians to “bring legality online” 12 are nothing more
than justi fi cations for proposing legislation aimed at diminishing the level of liberty . The dream of absolute
transparency is becoming, in these days, a reality, albeit one fraught with a number of inherent dif fi culties, 13 including those related to public and national
security, which must be addressed and overcome, and which are already creating useful antibodies in both web users and in the overall social framework as well.
There will certainly be an increasingly downward movement of political activities, toward the local,
grassroots and even individual levels, despite the fact that the majority of institutions and organized
groups are loathe to accept real transparency with regard to internal procedures. 14 On the other hand, it is also
apparent that the advent of an ever-increasing range of communication encryption technologies is of growing concern to law enforcement agencies throughout the
world. It is inconceivable, for authorities, that should exist areas that are non-interceptable , in which it is possible to communicate in secret and in which users are
truly anonymous. It is foreseeable, in the not so distant future, that there may be concerted attempts to seek to intensify, ostensibly for reasons of national security,
control of these grey areas which so worry governments and in which, perhaps paradoxically, citizens’ digital liberties are most fully manifested. This increased
government control may well lead to the creation, in reaction, of true off-shore data heavens hosting the ideas and documents of all
those who feel the need to continue to communicate within similar grey zones . In addition to the analysis of the relationship between digital resistance activities
and human rights (digital dissidence activities so often serve to reveal some of the most violent human rights violations), it is also particularly interesting to analyze
the levels of digital liberty in several regions of the world, taking into consideration those laws and technologies which seek to limit the free expression of human
rights. The panorama which emerges from this type of analysis is quite worrisome: as technological evolution progresses, so at the same time do government
investments seeking to control these new technologies. A map of government actions aimed at limiting digital liberties, and of the local digital resistance activities
working against them, paints a very realistic portrait, which in some areas of the world is quite dire indeed. Finally, a concrete analysis of the digital resistance
techniques best suited to delicate contexts allows us to appreciate, once again, the geniality of those individuals who are forced to utilize technology, often in
unconventional ways, to identify escape routes in contexts where human rights are limited and voices are sti fl ed. Three aspects, collectively, make up the focus of
the main portion of this study: 1. the evolution of the concept of digital liberty, and its relationship with human rights; 2. the level of digital liberties and their
protection throughout the world; and 3. the technologies which might help Internet users to change the status quo and to resist, in many cases, to oppressive laws.
2nc alt – grassroots
Grassroots movements have solved empirically
Teresa Welsh, November 21, 2013, Teresa Welsh is a foreign affairs reporter at U.S. News & World
Report. E-mail her at twelsh@usnews.com and follow her on Twitter, “A Forgotten Era of Activism,”
http://www.usnews.com/opinion/articles/2013/11/21/the-forgotten-era-of-grassroots-americanactivism-in-the-70s-and-80s
When historians talk about grass-roots organizations and social change, the civil rights and antiwar
movements in the 1960s are usually the focus. But as Michael Stewart Foley, historian and professor of
American political culture at the University of Groningen in the Netherlands, explores in "Front Porch
Politics: The Forgotten Heyday of American Activism in the 1970s and 1980s," the decades following did
not see a retreat from civic engagement. Foley spoke with U.S. News about how Americans became
unintentional activists in reaction to issues they felt threatened them, their families and their ways of
life. Excerpts: Why isn't the history of post-1960s politics better known? Historians have, for the most
part, focused on the politics of this period from a national perspective. That means they've looked at
electoral trends, and these trends tell a story of American politics becoming more conservative. But as
I point out in the book, there are so many examples of grass-roots politics, of ordinary Americans who
didn't come from an activist background but became activists in the '70s out of what they sensed was
necessity. What were some of the period's key activist achievements? There are a number of
campaigns that are overlooked but are really important in demonstrating the kind of robust civic
culture that existed at the time. Americans in the 1970s woke up to the fact that companies had been
dumping toxic waste in communities all over the country. [Check out U.S. News Weekly, an insider's
guide to politics and policy.] What was unique about the grass-roots activism that took place during that
decade as opposed to what took place during the 1960s? The main distinction is that when we think
about the archetypal movements of the '60s, we think of a certain measure of idealism and people
acting on behalf of others and on behalf of the larger society. University kids from California and
Michigan and Boston go to Mississippi to fight alongside African-Americans who are experiencing
segregation in a front porch way. Then, in contrast, in the '70s and '80s, there's not so much of this
acting on behalf of others. For the most part, it's mostly people who are responding based on their own
experience. Almost always people join social movements because they're having a visceral reaction to
some kind of issue, but the difference in the '70s and '80s is the emotional reaction that comes from
their own personal experience. What issues today inspire a similar sort of activism to that seen in the
'70s and '80s? We don't see as much of this kind of activism. You could say that Occupy Wall Street
[attracted] people who felt betrayed by the banking system and by the government regulators. It's
more likely you'll find people engaged with environmental issues. Fracking, whether you're for or
against it, can be a front porch issue. People in the Catskills in New York are living in an area that's
seriously economically depressed, so the most pressing front porch issue for them is paying bills. When
a gas company comes along and says we'll give you all this money for the rights to your land, they
want you to invite them in for a front porch reason. But then equally there are all the people who are
afraid they're going to have fire coming out of their water faucets and that their families will be
endangered by this process. They're mobilized by sort of primal, existential reasons, too. [See a
collection of political cartoons on the tea party.] Would today's tea party have been at home during this
era? For me, the tea party is not really a grass-roots movement because it's so obvious that much of this
is driven by monied interests. This is not to dismiss any of the success that the tea party has had because
they obviously marshaled a lot of votes to support candidates. But it's not the same thing as the grassroots movements where we've seen tens of thousands, if not hundreds of thousands, of people in the
'70s and '80s mobilizing and participating in grass-roots activism across the country. What can members
of contemporary political movements learn from your book? The most important thing, and I say this
as much as a historian as an organizer, is that it's important to speak to the American people in a way
that resonates with them personally if you want to win them to your cause. It's better for our
democracy; it's better for the health of the republic to have Americans more thoroughly engaged in
their politics. If you can, find a way to engage Americans [so] that they feel they can channel their
emotions and harness their concerns in a way where they're investing themselves personally. What
will surprise readers the most? I think the thing that will surprise them is it's not the "me decade."
This is not a period where nothing happened, where Americans retreated and kind of hunkered down
and tried to ride out difficult economic times or at most looked to conservative politicians who
promised to get government off their back. There's an enormous scale of protest and activism, and
that's something we seem to have totally missed in the historical profession.
2nc alt – prozorov
Refuse attempts to reform the system and doom it to its own nihilistic destruction—
we must refuse all conceptual apparatuses of capture
Prozorov 10 (Sergei Prozorov, professor of political and economic studies at the University of Helsinki, “Why Giorgio Agamben is an
optimist,” Philosophy Social Criticism 2010 36: pg. 1065)
In a later work, Agamben generalizes this logic and transforms it into a basic ethical imperative of his work: ‘[There]
is often nothing
reprehensible about the individual behavior in itself, and it can, indeed, express a liberatory intent.
What is disgraceful – both politically and morally – are the apparatuses which have diverted it from
their possible use. We must always wrest from the apparatuses – from all apparatuses – the possibility of
use that they have captured .’32 As we shall discuss in the following section, this is to be achieved by a subtraction
of ourselves from these apparatuses, which leaves them in a jammed, inoperative state . What is crucial at
this point is that the apparatuses of nihilism themselves prepare their demise by emptying out all positive
content of the forms-of-life they govern and increasingly running on ‘empty’, capable only of (inflicting) Death or (doing) Nothing. On the other hand, this degradation of the apparatuses illuminates the ‘inoperosity’ (worklessness)
of the human condition, whose originary status Agamben has affirmed from his earliest works onwards.33 By rendering void all historical
forms-of-life, nihi- lism brings to light the absence of work that characterizes human existence, which, as irreducibly potential, logically
presupposes the lack of any destiny, vocation, or task that it must be subjected to: ‘Politics is that which corresponds to the essential
inoperability of humankind, to the radical being-without-work of human communities.
There is pol- itics because human
beings are argos-beings that cannot be defined by any proper oper- ation, that is, beings of pure potentiality
that no identity or vocation can possibly exhaust.’34 Having been concealed for centuries by religion
or ideology, this originary inoperos- ity is fully unveiled in the contemporary crisis , in which it is manifest
in the inoperative character of the biopolitical apparatuses themselves, which succeed only in
capturing the sheer existence of their subjects without being capable of transforming it into a positive
form-of-life: [T]oday, it is clear for anyone who is not in absolutely bad faith that there are no longer historical tasks that can be taken on
by, or even simply assigned to, men. It was evident start- ing with the end of the First World War that the European
nation-states were no longer capa- ble of taking on historical tasks and that peoples themselves were bound to disappear.35
Agamben’s metaphor for this condition is bankruptcy: ‘One of the few things that can be declared with certainty is
that all the peoples of Europe (and, perhaps, all the peoples of the Earth) have gone bankrupt’ .36 Thus, the
destructive nihilistic drive of the biopolitical machine and the capitalist spectacle has itself done all
the work of emptying out positive forms-of-life, identities and vocations, leaving humanity in the
state of destitution that Agamben famously terms ‘bare life’. Yet, this bare life, whose essence is
entirely con- tained in its existence, is precisely what conditions the emergence of the subject of the
coming politics : ‘this biopolitical body that is bare life must itself be transformed into the site for the
constitution and installation of a form-of-life that is wholly exhausted in bare life and a bios that is
only its own zoe .’37 The ‘happy’ form-of-life, a ‘life that cannot be segregated from its form’, is
nothing but bare life that has reappropriated itself as its own form and for this reason is no longer
separated between the (degraded) bios of the apparatuses and the (endangered) zoe that functions
as their foundation.38 Thus, what the nihilistic self-destruction of the appara- tuses of biopolitics leaves
as its residue turns out to be the entire content of a new form-of-life . Bare life, which is, as we recall,
‘nothing
reprehensible’ aside from its con- finement within the apparatuses, is reappropriated as a
‘whatever singularity’ , a being that is only its manner of being, its own ‘thus’.39 It is the dwelling of
humanity in this irreducibly potential ‘whatever being’ that makes possible the emergence of a
generic non-exclusive community without presuppositions, in which Agamben finds the possi- bility
of a happy life . [If] instead of continuing to search for a proper identity in the already improper and
sense- less form of individuality, humans were to succeed in belonging to this impropriety as such, in making of the
proper being-thus not an identity and individual property but a singularity without identity, a
common and absolutely exposed singularity, then they would for the first time enter into a
community without presuppositions and without subjects.40 Thus, rather than seek to reform the
apparatuses, we should simply leave them to their self-destruction and only try to reclaim the bare
life that they feed on . This is to be achieved by the practice of subtraction that we address in the following section.
2nc alt – schlanger
Rejecting liberal reforms is a necessary starting point – alternative forms of political
organization are necessary to counter legalism.
Margo Schlanger, 15 (is a Professor of Law at the University of Michigan Law School, and the founder
and director of the Civil Rights Litigation Clearinghouse) “Intelligence Legalism and the National Security
Agency's Civil Liberties Gap”
A significant benefit of traditional, repressive authoritarian mechanisms is their efficiency. For
example, subjecting civil society organizations to intense regulatory oversight to impede their
operation is likely to be less efficient and more costly than immediately shutting them down.
Likewise, imprisoning a journalist for critical commentary may also be more efficient at chilling speech
than a protracted libel lawsuit. A decision to adopt these openly authoritarian practices may increase
today's payoff, but it will also generate significant costs that may reduce tomorrow's. 395 [*1732] As
discussed above, maintaining an openly authoritarian regime can be a costly proposition given the
international crackdown on authoritarian practices in the post-Cold War era 396 and the domestic overthrow of
authoritarian leaders in the aftermath of the Color Revolutions and the Arab Spring. Stealth authoritarianism provides an optimal decoy by
manipulating information output about anti-democratic practices and modifying the perceptions of the relevant actors. 397 Practices that
appear clearly repressive in a transparently authoritarian regime appear more ambiguous in a regime that employs stealth authoritarian
practices. Stealth authoritarianism raises the actual or apparent costs of detecting and eliminating authoritarian practices for both domestic
and global actors, which generates significant payoffs. As to domestic actors, opposition becomes more costly if the governing regime
utilizes mechanisms that exist in regimes with favorable democratic credentials to perpetuate its rule. As an initial matter, detection of antidemocratic measures can be more difficult than in a transparently authoritarian regime. Repressive practices, masked by the rule of law,
may go undetected by significant segments of the polity, which, in turn, can raise the costs of mobilization against the incumbents. For
example, where a criminal prosecution (backed with sufficient evidence) or a libel lawsuit is employed against a political dissident, it can be
difficult to differentiate between legitimate application and abuse, at least compared to transparently authoritarian practices. For
similar reasons, as Christopher Schmidt explains, segregationists in the Southern United States
abandoned costly direct legal methods of oppression, such as expressly legalized discrimination, in
favor of indirect, less transparent, and race-neutral legal methods to defend white supremacy. 398
Even where detected, stealth authoritarian practices may be less objectionable to segments of the
domestic polity than direct repression. Stealth authoritarianism becomes even more palatable where
the regime couples stealth authoritarian practices with desirable democratic reforms. In addition, the
existence of a limited space for political opposition and discontent can create the illusion of political
competition and meaningful electoral choice among competing political actors. The illusion of choice
can pacify the polity by allowing citizens to experience participation in the democratic process,
without providing a meaningful opportunity to displace the incumbents. Especially in fully authoritarian regimes,
the use of stealth [*1733] authoritarian practices can also be praised as signs of democracy since
these practices rely on formal legal mechanisms that exist in regimes with favorable democratic
credentials. The ability to challenge the incumbents, raise political arguments, and establish
reputations may justify participation in the electoral marketplace by opposition activists. 399 As a
result, the public incentive to oppose a regime that applies stealth mechanisms of control may be less
than an openly repressive one. That, in turn, may impede the opposition's mobilization efforts.
Without participation by broad segments of the population, the opposition movement runs the
serious risk of being disregarded as an unrepresentative fringe faction . 400 As Adam Przeworski explains, "[a]
regime does not collapse unless and until some alternative is organized in such a way as to present a
real choice for isolated individuals." 401 In a regime that perpetuates its power through the same
mechanisms that exist in democratic regimes, constructing that alternative reality often presents a
costlier proposition.
2nc alt - rejection
Voting neg is the only choice – rejection alone solves – the 1ac can’t be validated
because it is dedicated to effacing their own subject positions within the system of
power
Salter 85. M.G. Salter, lecturer in criminal law at the University of Birmingham, “The Rule of Power in
the Language of Law,” The Liverpool Law Review Vol.VII(1) [1985] pg. 36
Through such codes of discipline language itself lays down the forms of discourse which are judged
appropriate and inappropriate. For their continued vigour, these codes actually depend upon the
multiplicity of points of resistance by those - including the staff - who are subject to them. Resistances
actively serve as footholds, targets, supports and adversaries for power. Power relations
here are
not then attributable to, or owned by a single group or class, but arise in an apparently
anonymous manner from interactions within the local situations in which they first appear. Now if this
is true, it has real consequences for the common sense of legal culture. It suggests that its truth- claims
concerning the power/truth relation are themselves possible and comprehensible only because power
operates within their own discourse, productively excluding some interpretations, attitudes and actions as
"inappropriate" and therefore creating a possible common ground for their intelligibility as such. (4) This
productivity of power appears in the mutual implication of positive and negative determinations of all
legal meaning over time and through productive disowning. For example, during a contract law tutorial
the tedious determination of what an "offer" is for Contract law, involves the progressive unfolding of all
that it does not mean, i.e. invitation to treat, continuing negotiations etc. Thus the limiting process of
disowning - the self-exercise of the power of exclusion in meaning- determination - presents itself to be
ultimately productive of truth. Further we can see that all claims to a truthful critique - including those of
this text - are "positive" and productive of truth only through their power of disowning the overall
position that is successfully criticised. The experience of a continually disowned/re-owned world of law is
then the pre-condition for the production of insight and truth-claims about its workings - including common
sense views about the unproductivity of power. Thus at both the level of particular explication of
meanings and that of the overall development within the "discipline" of law, the juxta-position of truth
and power now appears no longer to be sustainable. Our discursive knowledge of the power/truth
connection is, by virtue of its discursive character, implicated in that which it examines. This appears when
we consider the derivation of much of the "knowledge" imparted by "criminology" courses from
languages of punishment. Here not only does such "academic knowledge" emanate from the exercise of
this form of state power, but by largely treating crime as about the explanation of criminal behaviour, this
"knowledge" returns to support and legitimate the institutional exercise
of criminalising power. It does this partly by reducing intellectual and theoretical
problems to social policy ones. This leaves the whole exercise quite untroubled by critical thought.
Therefore the implication of power, knowledge and legal discourse goes far deeper than simple
encouragement or application. Instead legal discourse and power relations mutually imply one another to
the extent that they cannot be conceived of without each other. For example, the power relations at work
in the court room between the judge, jury, public, media, court officers, advocates, witnesses and
accused give rise to a distinctive "knowledge" available for "Legal Methods" courses. It becomes available
through a hierarchy of relations between and among law- reporters, publishers, lecturers, students, college
traditions and government administrators. Here power demarcates what is sayable, to whom, in what
manner, about what and when; yet the consequences of this demarcation is to open up and temporalise a
common historical world of law and "legal education". We shall examine later how it produces a domain
of legal subjects, objects and rituals for determining their truth through an ever-proliferating discourse on
law.
Impact
2nc impact – gulli
The impact is the sovereign’s ability to exploit fundamental flaws in the legal system
and continue the global biopolitical war
Gulli 13 (Bruno Gulli, professor of history, philosophy, and political science @ Kingsborough College, “For the critique of sovereignty and
violence,” http://academia.edu/2527260/For_the_Critique_of_Sovereignty_and_Violence, pg1 – pg5)
We live in an unprecedented time of crisis. The violence that characterized the twentieth century , and
virtually all known human history before that, seems to have entered the twenty-first century with exceptional force and
singularity. True, this century opened with the terrible events of September 11. However, September 11
is not the beginning of history. Nor are the histories of more forgotten places and people, the events that shape those
histories, less terrible and violent – though they may often be less spectacular. The singularity of this
violence, this paradigm of terror, does not even simply lie in its globality, for that is something that
our century shares with the whole history of capitalism and empire, of which it is a part. Rather, it must be seen in
the fact that terror as a global phenomenon has now become self-conscious. Today, the struggle is for
global dominance in a singularly new way, and war –regardless of where it happens— is also always
global . Moreover, in its self-awareness, terror has become, more than it has ever been, an instrument of racism . Indeed,
what is new in the singularity of this violent struggle, this racist and terrifying war , is that in the usual attempt to
neutralize the enemy, there
is a cleansing of immense proportion going on . To use a word which has become popular since Michel Foucault, it is
a biopolitical cleansing . This is not the traditional ethnic cleansing, where one ethnic group is targeted by a state power – though that is also part of the general paradigm
of racism and violence. It is rather a global cleansing, where the sovereign elites, the global sovereigns in the
political and financial arenas (capital and the political institutions), in all kinds of ways target those who do not belong
with them on account of their race, class, gender, and so on, but above all, on account of their way of
life and way of thinking. These are the multitudes of people who, for one reason or the other, are liable for scrutiny and
surveillance, extortion (typically, in the form of overtaxation and fines) and arrest, brutality, torture, and violent death. The
sovereigns target anyone who , as Giorgio Agamben (1998) shows with the figure of homo sacer, can be killed without being
sacrificed – anyone who can be reduced to the paradoxical and ultimately impossible condition of bare life, whose only horizon
is death itself. In this sense, the biopolitical cleansing is also immediately a thanatopolitical instrument. The
biopolitical struggle for dominance is a fight to the death . Those who wage the struggle to begin with, those who
want to dominate, will not rest until they have prevailed. Their fanatical and self-serving drive is also very much
the source of the crisis investing all others. The point of this essay is to show that the present crisis, which is systemic and permanent and
thus something more than a mere crisis, cannot be solved unless the struggle for dominance is eliminated. The
elimination of such struggle implies the demise of the global sovereigns, the global elites – and this
will not happen without a global revolution, a “restructuring of the world” (Fanon 1967: 82). This must be a
revolution against the paradigm of violence and terror typical of the global sovereigns . It is not a
movement that uses violence and terror, but rather one that counters the primordial terror and violence
of the sovereign elites by living up to the vision of a new world already worked out and cherished by multitudes of people. This is
the nature of counter-violence: not to use violence in one’s own turn, but to deactivate and destroy
its mechanism. At the beginning of the modern era, Niccolò Machiavelli saw the main distinction is society in terms of dominance, the will to dominate, or the lack thereof.
Freedom, Machiavelli says, is obviously on the side of those who reject the paradigm of domination: [A]nd doubtless, if we
consider the objects of the nobles and of the people, we must see that the first have a great desire to
dominate, whilst the latter have only the wish not to be dominated, and consequently a greater desire to live in the enjoyment of
liberty (Discourses, I, V). Who can resist applying this amazing insight to the many situations of resistance and revolt that have been happening in the world for the last two years? From
Tahrir Square to Bahrain, from Syntagma Square and Plaza Mayor to the streets of New York and
Oakland, ‘the people’ speak with one voice against ‘the nobles;’ the 99% all face the same enemy: the
same 1%; courage and freedom face the same police and military machine of cowardice and deceit, brutality and repression.
Those who do not want to be dominated, and do not need to be governed, are ontologically on the terrain of
freedom, always-already turned toward a poetic desire for the common good, the ethics of a just world. The point here is not to distinguish
between good and evil, but rather to understand the twofold nature of power – as domination or as
care. The biopolitical (and thanatopolitical) struggle for dominance is unilateral, for there is only one side that wants to
dominate. The other side –ontologically, if not circumstantially, free and certainly wiser—does not want to dominate; rather, it wants not to be dominated.
This means that it rejects domination as such. The rejection of domination also implies the rejection of violence , and I have already
spoken above of the meaning of counter-violence in this sense. To put it another way, with Melville’s (2012) Bartleby, this other side “would prefer not to”
be dominated, and it “would prefer not to” be forced into the paradigm of violence. Yet, for this preference, this
desire, to pass from potentiality into actuality, action must be taken – an action which is a return and a going under, an uprising and a hurricane. Revolution is
to turn oneself away from the terror and violence of the sovereign elites toward the horizon of
freedom and care, which is the preexisting ontological ground of the difference mentioned by Machiavelli between the nobles
and the people, the 1% (to use a terminology different from Machiavelli’s) and the 99%. What is important is that the sovereign elite and its
war machine, its police apparatuses, its false sense of the law, be done with. It is important that the
sovereigns be shown, as Agamben says, in “their original proximity to the criminal” (2000: 107) and that they be dealt with accordingly.
For this to happen, a true sense of the law must be recuperated, one whereby the law is also
immediately ethics. The sovereigns will be brought to justice. The process is long, but it is in many ways already
underway. The recent news that a human rights lawyer will lead a UN investigation into the question
of drone strikes and other forms of targeted killing (The New York Times, January 24, 2013) is an indication of the fact that the
movement of those who do not want to be dominated is not without effect. An initiative such as this is perhaps necessarily
timid at the outset and it may be sidetracked in many ways by powerful interests in its course. Yet, even positing, at that institutional level , the possibility
that drone strikes be a form of unlawful killing and war crime is a clear indication of what common reason
(one is tempted to say, the General Intellect) already understands and knows. The hope of those who “would prefer not to”
be involved in a violent practice such as this, is that those responsible for it be held accountable and that the
horizon of terror be canceled and overcome. Indeed, the earth needs care. And when instead of caring for it,
resources are dangerously wasted and abused, it is imperative that those who know and understand
revolt –and what they must revolt against is the squandering and irresponsible elites, the sovereign discourse,
whose authority , beyond all nice rhetoric, ultimately rests on the threat of military violence and police brutality .
2nc impact – militarism
The impact is militarism
Smith 2 – prof of phil @ U of South Florida (Thomas, International Studies Quarterly 46, The New Law
of War: Legitimizing Hi-Tech and Infrastructural Violence)
The role of military lawyers in all this has, according to one study, “changed irrevocably” ~Keeva, 1991:59!. Although liberal theorists point to the broad
normative contours that law lends to international relations, the
Pentagon wields law with technical precision. During the
Gulf War and the Kosovo campaign, JAGs opined on the legal status of multinational forces, the U.S. War Powers Resolution, rules of
engagement and targeting, country fly-overs, maritime interceptions, treatment of prisoners, hostages and “human
shields,” and methods used to gather intelligence. Long before the bombing began, lawyers had joined in
the development and acquisition of weapons systems, tactical planning, and troop training. In the
Gulf War, the U.S. deployed approximately 430 military lawyers, the allies far fewer, leading to some amusing but perhaps apposite observations about
the legalistic culture of America ~Garratt, 1993!. Many lawyers reviewed daily Air Tasking Orders as well as land tactics. Others found themselves on
the ground and at the front. According to Colonel Rup- pert, the idea was to “put the lawyer as far forward as possible” ~Myrow, 1996–97!. During the
Kosovo campaign, lawyers based at the Combined Allied Operations Center in Vicenza, Italy, and at NATO headquarters in Brussels approved every
single targeting decision. We do not know precisely how decisions were taken in either Iraq or Kosovo or the extent to which the lawyers reined in their
masters. Some “corrections and adjustments” to the target lists were made ~Shot- well, 1993:26!, but by all accounts the lawyers—and the law—were
extremely accommodating. The exigencies of war invite professional hazards as military lawyers seek to “find the law” and to determine their own
responsibilities as legal counselors. A 1990 article in Military Law Review admonished judge advocates not to neglect their duty to point out breaches of
the law, but not to become military ombuds- men either. The article acknowledged that the JAG faces pressure to demonstrate that he can be a “force
multiplier” who can “show the tactical and political soundness of his interpretation of the law” ~Winter, 1990:8–9!. Some
tension between
law and necessity is inevitable, but over the past decade the focus has shifted visibly from
restraining violence to legitimizing it. The Vietnam-era perception that law was a drag on
operations has been replaced by a zealous “client culture” among judge advocates. Commanding
officers “have come to realize that, as in the relationship of corporate counsel to CEO, the JAG’s role is not to create
obstacles, but to find legal ways to achieve his client’s goals—even when those goals are to blow
things up and kill people” ~Keeva, 1991:59!. Lt. Col. Tony Montgomery, the JAG who approved the bombing
of the Belgrade television studios, said recently that “judges don’t lay down the law. We take
guidance from our government on how much of the consequences they are willing to accept” ~The
Guardian, 2001!. Military necessity is undeterred. In a permissive legal atmosphere, hi-tech states can meet their
goals and remain within the letter of the law. As noted, humanitarian law is firmest in areas of marginal military utility.
When opera- tional demands intrude, however, even fundamental rules begin to erode. The Defense Department’s final report to Congress on the Gulf
War ~DOD, 1992! found nothing in the principle of noncombatant immunity to curb necessity. Heartened by the knowledge that civilian discrimination
is “one of the least codified portions” of the law of war ~p. 611!, the authors argued that “to the degree possible and consistent with allowable risk to
aircraft and aircrews,” muni- tions and delivery systems were chosen to reduce collateral damage ~p. 612!. “An attacker must exercise reasonable
precautions to minimize incidental or collat- eral injury to the civilian population or damage to civilian objects, consistent with mission
accomplishments and allowable risk to the attacking forces” ~p. 615!. The report notes that planners targeted “specific military objects in populated
areas which the law of war permits” and acknowledges the “commingling” of civilian and military objects, yet the authors maintain that “at no time
were civilian areas as such attacked” ~p. 613!. The report carefully constructed a precedent for future conflicts in which human shields might be
deployed, noting “the presence of civilians will not render a target immune from attack” ~p. 615!. The report insisted ~pp. 606–607! that Protocol I as
well as the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons “were not legally applicable” to the Gulf War
because Iraq as well as some Coalition members had not ratified them. More to the point that law follows practice, the report claimed that certain
provisions of Protocol I “are not a codification of the customary practice of nations,” and thus “ignore the realities of war” ~p. 616!. Nor can there be
any doubt that a more elaborate legal regime has kept pace with evolving strategy and technology. Michael Ignatieff details in Virtual War ~2000! how
targets were “developed” in 72-hour cycles that involved collecting and reviewing aerial reconnaissance, gauging military necessity, and coding anticipated collateral damage down to the directional spray of bomb debris. A judge advocate then vetted each target in light of the Geneva Conventions and
calcu- lated whether or not the overall advantage to be gained outweighed any expected civilian spillover. Ignatieff argues ~2000:198–199! that this
elaborate symbiosis of law and technology has given birth to a “veritable casuistry of war.” Legal
fine print, hand-in-hand with
new technology, replaced deeper deliberation about the use of violence in war. The law
provided “harried decision-makers with a critical guarantee of legal coverage, turning
complex issues of morality into technical issues of legality.” Astonishingly fine discrimination also
meant that unintentional civilian casualties were assumed to have been unintentional, not foreseen tragedies to be justified under the rule of double
effect or the fog of war. The crowning irony is that NATO went to such lengths to justify its targets and limit collateral damage, even as it assured longterm civilian harm by destroy- ing the country’s infrastructure. Perhaps the
most powerful justification was provided by
law itself. War is often dressed up in patriotic abstractions—Periclean oratory, jingoistic newsreels, or
heroic memorials. Bellum Americanum is cloaked in the stylized language of law. The DOD
report is padded with references to treaty law, some of it obscure, that was “applicable” to the Gulf War, as if a surfeit of
legal citation would convince skeptics of the propriety of the war. Instances of humane restraint invariably were
presented as the rule of law in action. Thus the Allies did not gas Iraqi troops, torture POWs, or commit acts of perfidy. Most striking is the
use of legal language to justify the erosion of noncombatant immunity. Hewing to the legal- isms of double
effect, the Allies never intentionally targeted civilians as such. As noted, by codifying double effect the law artificially bifurcates intentions. Har- vard
theologian Bryan Hehir ~1996:7! marveled at the Coalition’s legalistic word- play, noting that the “briefers out of Riyadh sounded like Jesuits as they
sought to defend the policy from any charge of attempting to directly attack civilians.” The Pentagon’s legal
narrative is certainly
detached from the carnage on the ground, but it also oversimplifies and even
actively obscures the moral choices involved in aerial bombing. Lawyers and tacticians made very deliberate
decisions about aircraft, flight altitudes, time of day, ordnance dropped, confidence in intelligence, and so forth. By expanding military necessity to
encompass an extremely prudential reading of “force protection,” these choices were calculated to protect pilots and planes at the expense of civilians
on the ground, departing from the just war tradition that combatants assume greater risks than civilians. While it is tempting to blame collateral
damage on the fog of war, much of that uncertainty has been lifted by technology and precision law. Similarly, in Iraq and in Yugoslavia the focus was
on “degrading” military capabilities, yet a loose view of dual use spelled the destruction of what were essentially social, economic, and political targets.
Coalition and NATO officials were quick to apologize for accidental civilian casualties, but in hi-tech war most noncombatant suffering is by design.
Does the law of war reduce death and destruction? International law certainly has helped to delegitimize, and in rare cases effectively criminalize, direct
attacks on civilians. But in general humanitarian law has mirrored wartime practice. On the ad bellum side, the erosion of right authority and just cause
has eased the path toward war. Today, foreign offices rarely even bother with formal declara- tions of war. Under the United
Nations system it is the responsibility of the Security Council to denounce illegal war, but for a number of reasons its mem- bers have been extremely
reluctant to brand states as aggressors. If the law were less accommodating, greater effort might be devoted to diplomacy and war might be averted. On
the in bello side the ban on direct civilian strikes remains intact, but double effect and military demands have been contrived to justify unnecessary
civilian deaths. Dual use law
has been stretched to sanction new forms of violence against civilians.
Though not as spectacular as the obliteration bombing to which it so often is favorably compared, infrastructural
war is far deadlier than the rhetoric of a “clean and legal” conflict suggests. It is true that rough
estimates of the ratio of bomb tonnage to civilian deaths in air attacks show remarkable reductions in immediate collateral damage. There were some
40.83 deaths per ton in the bombing of Guernica in 1937 and 50.33 deaths per ton in the bombing of Tokyo in 1945. In the Kosovo campaign, by
contrast, there were between .077 and .084 deaths per ton. In Iraq there were a mere .034 ~Thomas, 2001:169!. According to the classical definition of
collateral damage, civilian protection has improved dramatically, but if one takes into account the staggering long-term effects of the war in Iraq, for
example, aerial bombing looks anything but humane. For aerial bombers themselves modern war does live up to its clean and legal image. While war
and intervention have few steadfast constituents, the
myth of immaculate warfare has eased fears that
intervening soldiers may come to harm, which polls in the U.S., at least, rank as being of great public concern, and even greater military
concern. A new survey of U.S. civilian and military attitudes found that soldiers were two to four times more casualty-averse than civilians thought they
should be ~Feaver and Kohn, 2001!. By
removing what is perhaps the greatest restraint on the use of force—
the possibility of soldiers dying—law and technology have given rise to the novel moral hazards of a
“postmodern, risk-free, painless war” ~Woollacott, 1999!. “We’ve come to expect the immacu- late,” notes Martin Cook, who
teaches ethics at the U.S. Army War College in Carlisle, PA. “Precision-guided munitions make it very much easier to go to war than it ever has been
historically.” Albert Pierce, director of the Center for the Study of Professional Military Ethics at the U.S. Naval Academy argues, “standoff precision
weapons give you the option to lower costs and risks . . . but you might be tempted to do things that you might otherwise not do” ~Belsie, 1999!.
Conclusion The
utility of law to legitimize modern warfare should not be
underestimated. Even in the midst of war, legal arguments retain an aura of legitimacy that
is missing in “political” justifications. The aspirations of humanitarian law are sound. Rather, it is the instrumental use of law that
has oiled the skids of hi-tech violence. Not only does the law defer to military necessity, even when very broadly
defined, but more importantly it bestows on those same military demands all the moral and psychological
trappings of legality. The result has been to legalize and thus to justify in the public mind “inhumane
military methods and their consequences,” as violence against civilians is carried out “behind
the protective veil of justice” ~af Jochnick and Normand, 1994a:50!. Hi-tech states can defend hugely
destructive, essentially unopposed, aerial bombardment by citing the authority of
seemingly secular and universal legal standards. The growing gap between hi- and low-tech
means may exacerbate inequalities in moral capital as well, as the sheer barbarism of “premodern”
violence committed by ethnic cleansers or atavistic warlords makes the methods employed by hi-tech
warriors seem all the more clean and legal by contrast. This fusion of law and technology is
likely to propel future American interventions. Despite assurances that the campaign against terrorism would
differ from past conflicts, the allied air war in Afghanistan, marked by record numbers of unmanned drones and bomber flights at up to 35,000 feet, or
nearly 7 miles aloft, rarely strayed from the hi-tech and legalistic script. While the attack on the World Trade Center confirmed a thousand times over
the illegality and inhu- manity of terrorism, the U.S. response has raised further issues of legality and inhumanity in conventional warfare. Civilian
deaths in the campaign have been substantial because “military objects” have been targeted on the basis of extremely low-confidence intelligence. In
several cases targets appear to have been chosen based on misinformation and even rank rumor. A liberal reading of dual use and the authorization of
bombers to strike unvetted “targets of opportunity” also increased collateral damage. Although 10,000 of the 18,000 bombs, missiles, and other
ordnance used in Afghanistan were precision-guided munitions, the war resulted in roughly 1000 to 4000 direct civilian deaths, and, according to the
UNHCR, produced 900,000 new refugees and displaced persons. The Pentagon has nevertheless viewed the campaign as “a more antiseptic air war
even than the one waged in Kosovo” ~Dao, 2001!. General Tommy Franks, who commanded the campaign, called it “the most accurate war ever fought
Governments continue to justify collateral
damage by citing the marvels of technology and the authority of international law. One does see a widening rift between
in this nation’s history” ~Schmitt, 2002!.9 No fundamental change is in sight.
governments and independent human rights and humanitarian relief groups over the interpretation of targeting and dual-use law. But these disputes
have only underscored the ambiguities of human- itarian law. As
long as interventionist states dominate the way that
the rules of war are crafted and construed, hopes of rescuing law from politics will be dim indeed.
2nc impact – racism
If we win our links, vote negative – racism must be rejected in every instance
Albert Memmi 2k, Professor Emeritus of Sociology @ U of Paris, Naiteire, Racism, Translated by Steve
Martinot, p. 163-165
The struggle against racism will be long, difficult, without intermission, without remission, probably
never achieved. Yet, for this very reason, it is a struggle to be undertaken without surcease and without
concessions. One cannot be indulgent toward racism; one must not even let the monster in the house,
especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in
other people, which is to diminish what is human. To accept the racist universe to the slightest degree is
to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still
largely live. it is to agree that the outsider will always be a possible victim (and which man is not
himself an outsider relative to someone else?. Racism illustrates, in sum, the inevitable negativity of the
condition of the dominated that is, it illuminates in a certain sense the entire human condition. The antiracist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the
ultimate passage from animosity to humanity . In that sense, we cannot fail to rise to the racist challenge.
However, it remains true that one’s moral conduit only emerges from a choice: one has to want it. It is a
choice among other choices, and always debatable in its foundations and its consequences. Let us say,
broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a
human order, for which racism is the very negation. This is almost a redundancy. One cannot found a
moral order, let alone a legislative order, on racism, because racism signifies the exclusion of the other,
and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious
language, racism is ‘the truly capital sin. It is not an accident that almost all of humanity’s spiritual
traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical
morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such
sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death .
Of course, this is debatable. There are those who think that if one is strong enough, the assault on and
oppression of others is permissible. Bur no one is ever sure of remaining the strongest. One day, perhaps, the roles will
be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat
others with respect so that they treat you with respect. “Recall.” says the Bible, “that you were once a stranger in Egypt,” which means both
that you ought to respect the stranger because you were a stranger yourself and that you risk becoming one again someday. It is an ethical and
a practical appeal—indeed, it is a contract, however implicit it might be. In
short, the refusal of racism is the condition for all
theoretical and practical morality because, in the end, the ethical choice commands the political choice,
a just society must be a society accepted by all. If this contractual principle is not accepted, then only
conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace.
True, it is a wager, but the stakes are irresistible.
2nc impact – extinction
The system of statist biopolitics makes extinction inevitable – we must reject the
dynamic as a whole
Duarte 5 (André Duarte, professor of Philosophy at Universidade Federal do Paraná “Biopolitics and the dissemination of violence: the
Arendtian critique of the present,” April 2005, http://works.bepress.com/cgi/viewcontent.cgi?article=1017&context=andre_duarte)
These historic transformations have not only brought more violence to the core of the political but have also redefined its character by giving
rise to biopolitical violence. As stated, what characterizes
biopolitics is a dynamic of both protecting and
abandoning life through its inclusion and exclusion from the political and economic community . In
Arendtian terms, the biopolitical danger is best described as the risk of converting animal laborans into
Agamben’s homo sacer, the human being who can be put to death by anyone and whose killing does
not imply any crime whatsoever 13). When politics is conceived of as biopolitics, as the task of increasing the life
and happiness of the national animal laborans, the nation-state becomes ever more violent and murderous. If we link
Arendt’s thesis from The Human Condition to those of The Origins of Totalitarianism, we can see the Nazi and Stalinist extermination
camps as the most refined experiments in annihilating the “bare life” of animal laborans (although these are by no
means the only instances in which the modern state has devoted itself to human slaughter). Arendt is not concerned only with the process of
the extermination itself, but also the historical situation in which large-scale exterminations were made possible – above all, the emergence of
‘uprooted’ and ‘superfluous’ modern masses, what we might describe as animal laborans balanced on the knife-edge of ‘bare life.’ Compare her
words in ‘Ideology and Terror’ (1953), which became the conclusion of later editions of The Origins of Totalitarianism: Isolation is that impasse
into which men [humans] are driven when the political sphere of their lives… is destroyed… Isolated man who lost his place in the political
realm of action is deserted by the world of things as well, if he is no longer recognized as homo faber but treated as an animal laborans whose
necessary ‘metabolism with nature’ is of concern to no one. Isolation then become loneliness… Loneliness, the common ground for terror, the
essence of totalitarian government, and for ideology or logicality, the preparation of its executioners and victims, is closely connected with
uprootedness and superfluousness which have been the curse of modern masses since the beginning of the industrial revolution and have
become acute with the rise of imperialism at the end of the last century and the break-down of political institutions and social traditions in our
own time. To be uprooted means to have no place in the world, recognized and guaranteed by others; to be superfluous means not to belong
to the world at all 14). The
conversion of homo faber, the human being as creator of durable objects and
institutions, into animal laborans and, later on, into homo sacer, can be traced in Arendt’s account of
nineteenth century imperialism. As argued in the second volume of The Origins of Totalitarianism, European colonialism combined
racism and bureaucracy to perpetrate the “most terrible massacres in recent history, the Boers’ extermination of Hottentot tribes, the wild
murdering by Carl Peters in German Southeast Africa, the decimation of the peaceful Congo population – from 20 to 40 million reduced to 8
million people; and finally, perhaps worst of all, it resulted in the triumphant introduction of such means of pacification into ordinary,
respectable foreign policies.” 15) This simultaneous
protection and destruction of life was also at the core of the
two World Wars, as well as in many other more local conflicts, during which whole populations have
become stateless or deprived of a public realm. In spite of all their political differences, the United States of Roosevelt, the
Soviet Russia of Stalin, the Nazi Germany of Hitler and the Fascist Italy of Mussolini were all conceived of as states devoted to the needs of the
national animal laborans. According to Agamben, since
our contemporary politics recognizes no other value than life,
Nazism and fascism, that is, regimes which have taken bare life as their supreme political criterion are bound
to remain standing temptations 16). Finally, it is obvious that this same logic of promoting and annihilating life
persists both in post-industrial and in underdeveloped countries, inasmuch as economic growth depends on the increase
of unemployment and on many forms of political exclusion. When politics is reduced to the tasks of
administering, preserving and promoting the life and happiness of animal laborans it ceases to matter
that those objectives require increasingly violent acts, both in national and international arenas. Therefore, we should not
be surprised that the legality of state violence has become a secondary aspect in political discussions, since what really matters is to protect and
stimulate the life of the national (or, as the case may be, Western) animal laborans. In order to maintain sacrosanct ideals of increased mass
production and mass consumerism, developed countries ignore the finite character of natural reserves and refuse to sign International
Protocols regarding natural resource conservation or pollution reduction, thereby jeopardising future humanity. They also launch preventive
attacks and wars, disregard basic human rights, for instance in extra-legal detention camps such as Guantánamo,27) and multiply refugee
camps. Some countries have even imprisoned whole populations, physically isolating them from other communities, in a new form of social,
political and economic apartheid. In short, states
permit themselves to impose physical and structural violence
against individuals and regimes (‘rogue states’ 18) ) that supposedly interfere with the security and growth
of their national ‘life process.’ If, according to Arendt, the common world consists of an institutional in-between meant to outlast
both human natality and mortality, in modern mass societies we find the progressive abolition of the institutional artifice that separates and
protects our world from the forces of nature 19). This explains the contemporary feeling of disorientation and unhappiness, likewise the
political impossibility we find in combining stability and novelty 20). In the context of a “waste economy, in which things must be almost as
it is
not only possible, but also necessary, that people themselves become raw material to be consumed,
discarded, annihilated. In other words, when Arendt announces the “grave danger that eventually no object of the world will be safe
from consumption and annihilation through consumption,” 22) we should also remember that human annihilation, once
elevated to the status of an ‘end-in-itself’ in totalitarian regimes, still continues to occur – albeit in different
quickly devoured and discarded as they have appeared in the world, if the process itself is not to come to a sudden catastrophic end,” 21)
degrees and by different methods, in contemporary ‘holes of oblivion’ such as miserably poor Third World neighbourhoods 23) and
penitentiaries, underpaid and slave labour camps, in the name of protecting the vital interests of animal laborans. To talk about a process of
human consumption is not to speak metaphorically but literally. Heidegger had realized this in his notes written during the late thirties,
later published under the title of Overcoming Metaphysics. He claimed that
the difference between war and peace had
already been blurred in a society in which “metaphysical man [human], the animal rationale, gets fixed as the labouring animal,”
so that “labour is now reaching the metaphysical rank of the unconditional objectification of everything present.” 24) Heidegger argued that
once the world becomes fully determined by the “circularity of consumption for the sake of
consumption” it is at the brink of becoming an ‘unworld’ (Unwelt), since ‘man [human], who no longer conceals his
character of being the most important raw material, is also drawn into the process. Man is “the most important raw material” because he
remains the subject of all consumption.’ 25) After the Second World War and the release of detailed information concerning the death
factories Heidegger took his critique even further, acknowledging that to understand man as both subject and object of the consumption
process would still not comprehend the process of deliberate mass extermination. He saw this, instead, in terms of the conversion of man into
no more than an “item of the reserve fund for the fabrication of corpses” (Bestandestücke eines Bestandes der Fabrikation von Leichen).
According to Heidegger, what happened in the extermination camps was that death became meaningless, and the existential importance of our
anxiety in the face of death was lost; instead, people were robbed of the essential possibility of dying, so that they merely “passed away” in the
The human being as animal laborans (Arendt), as homo
sacer (Agamben), as an ‘item of the reserve fund’ (Heidegger) – all describe the same process of dehumanisation whereby
humankind is reduced to the bare fact of being alive, with no further qualifications. As argued by Agamben,
when it becomes impossible to differentiate between biós and zóe, that is, when bare life is transformed
into a qualified or specific ‘form of life,’ we face the emergence of a biopolitical epoch 27). When states
process of being “inconspicuously liquidated” (unauffällig liquidiert). 26)
promote the animalisation of man by policies that aim at both protecting and destroying human life, we can interpret this in terms of the
widespread presence of the homo sacer in our world: “If
it is true that the figure proposed by our age is that of an
unsacrificeable life that has nevertheless become capable of being killed to an unprecedented degree,
then the bare life of homo sacer concerns us in a special way… If today there is no longer any one clear figure of the sacred man, it is
perhaps because we are all virtually homines sacri.” 28) Investigating changes in the way power was conceived of and
exercised at the turn of the nineteenth century, Foucault realized that when life turned out to be a constitutive
political element, managed, calculated, and normalized by means of biopolitics, political strategies
soon became murderous. Paradoxically, when the Sovereign’s prerogative ceased to be simply that of
imposing violent death, and became a matter of promoting the growth of life, wars became more and
more bloody, mass killing more frequent. Political conflicts now aimed at preserving and intensifying the life of the winners, so
that enmity ceased to be political and came to be seen biologically: it is not enough to defeat the
enemy; it must be exterminated as a danger to the health of the race, people or community. Thus Foucault
on the formation of the modern biopolitical paradigm at the end of the nineteenth century:… death that was based on the right
of the sovereign is now manifested as simply the reverse of the right of the social body to ensure,
maintain or develop its life. Yet wars were never as bloody as they have been since the nineteenth century, and all things being
equal, never before did regimes visit such holocausts on their own populations. But this formidable power of death… now presents itself as the
counterpart of a power that exerts a positive influence on life that endeavours to administer, optimise, and multiply it, subjecting it to precise
controls and comprehensive regulations. 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 . It is
as managers of life and survival, of bodies and the race, that so many regimes have been able to wage so many wars, causing so many men
[humans] to be killed. And through a turn that closes the circle, as
the technology of wars have caused them to tend
increasingly toward all-out destruction, the decision that initiates them and the one that terminates them are in
fact increasingly informed by the naked question of survival. The atomic situation is now at the end of
point of this process: the power to expose a whole population to death is the underside of the power
to guarantee an individual’s continued existence. The principle underlying the tactics of battle – that
one has to be capable of killing in order to go on living – has become the principle that defines the
strategy of states. But the existence in question is no longer the juridical existence of sovereignty; at stake is the biological existence of a
population. If genocide is indeed the dream of modern powers, this is not because of a recent return of the ancient right to kill; it is because
power is situated and exercised at the level of life, the species, the race, and the large-scale phenomena of population. 29) Arendt proposed no
political utopias, but she remained convinced that our political dilemmas have no necessary outcome, that history has not and will not come to
a tragic end. Neither a pessimist nor an optimist, she wanted only to understand the world in which she lived in and to stimulate our thinking
and acting in the present. It is always possible that radically new political constellations will come into our world, and responsibility for them
will always be ours. If we wish to remain faithful to the spirit of Arendt’s political thinking, then we
must think and act politically
without constraining our thinking and acting in terms of some pre-defined understanding of what
politics ‘is’ or ‘should’ be. In other words, I believe that the political challenge of the present is to multiply the
forms, possibilities and spaces in which we can act politically . These may be strategic actions destined to further the
agendas of political parties concerned with social justice. They can also be discrete, subversive actions favoured by small groups at the margins
of the bureaucratised party machines, promoting political interventions free of particular strategic intentions, since their goal is to invite radical
politicisation of existence. Finally, there
are also actions in which ethical openness towards otherness becomes
political: small and rather inconspicuous actions of acknowledging and welcoming, of extending
hospitality and solidarity towards others.
2nc impact – colonialism
Western legal institutions foster colonialism and violence
Mattei 9, Ugo Mattei is a professor at Hastings College of the Law and University of Turin, nearest date given is
2009, “GLOBAL LAW & PLUNDER: THE DARK SIDE OF THE RULE OF LAW,”
http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=bocconi_legal_papers
Within this framework, Western
law has constantly enjoyed a dominant position during the past centuries and today, thus
being in the position to shape and bend the evolution of other legal systems worldwide. During the colonial
era, continental-European powers have systematically exported their own legal systems to the colonized lands. During the past decades and
today, the
United States have been dominating the international arena as the most powerful economic
power, exporting their own legal system to the ‘periphery’ , both by itself and through a set of
international institutions, behaving as a neo-colonialist within the ideology known as neoliberalism .
Western countries identify themselves as law-abiding and civilized no matter what their actual history
reveals. Such identification is acquired by false knowledge and false comparison with other peoples ,
those who
were said to ‘lack’ the rule of law , such as China, Japan, India, and the Islamic world more
generally. In a similar fashion today, according
to some leading economists, Third World developing countries
‘lack’ the minimal institutional systems necessary for the unfolding of a market economy. The theory
of ‘lack’ and the rhetoric of the rule of law have justified aggressive interventions from Western
countries into non-Western ones. The policy of corporatization and open markets, supported today globally by the
so-called Washington consensus3, was used by Western bankers and the business community in Latin America
as the main vehicle to ‘open the veins’ of the continent—to borrow Eduardo Galeano’s metaphor4—with no solution of
continuity between colonial and post-colonial times. Similar policy was used in Africa to facilitate the forced transfer of slaves to
America, and today to facilitate the extraction of agricultural products, oil, minerals, ideas and cultural
artefacts in the same countries. The policy of opening markets for free trade, used today in Afghanistan and Iraq, was used in China during
the nineteenth century Opium War, in which free trade was interpreted as an obligation to buy drugs from British dealers. The policy of forcing
local industries to compete on open markets was used by the British empire in Bengal, as it is today by the WTO in Asia, Africa, and Latin
America.
Foreign-imposed privatization laws that facilitate unconscionable bargains at the expense of
the people have been vehicles of plunder, not of legality . In all these settings the tragic human suffering
produced by such plunder is simply ignored . In this context law played a major role in legalizing such
practices of powerful actors against the powerless.5 Yet, this use of power is scarcely explored in the
study of Western law . The exportation of Western legal institutions from the West to the ‘rest’ has
systematically been justified through the ideological use of the extremely politically strong and
technically weak concept of ‘rule of law’. The notion of ‘rule of law’ is an extremely ambiguous one. Notwithstanding, within
any public discussion its
positive connotations have always been taken for granted. The dominant image of
the rule of law is false both historically and in the present, because it does not fully acknowledge its
dark side. The false representation starts from the idea that good law ( which others ‘lack’ ) is
autonomous, separate from society and its institutions, technical, non-political, non-distributive and
reactive rather than proactive: more succinctly, a technological framework for an ‘efficient’ market. The
rule of law has a bright and a dark side, with the latter progressively conquering new ground whenever the
the rule of law becomes a cold technology .
Moreover, when large corporate actors dominate states (affected by a declining regulatory role), law becomes a
product of the economy, and economy governs the law rather than being governed by it.
former is not empowered by a political soul. In the absence of such political life,
2nc
2nc – overview (biopolitics)
Frame the debate around the Agamben evidence – the only way to resolve legal
oppression is to completely depose the law – anything else only renews its coercive
power the aff furthers biopolitical domination – that outweighs – endless wars are
imposed to save the population while people are converted into material to be
annihilated – that’s Duarte
The alternative solves the aff – deposing the law ends the propensity for violent
surveillance – does away with the biopolitical roots of its authority and creates a new
politics outside of sovereign domination
2nc - at: perm do both (biopower)
Any link is a reason to vote neg – ethical compromises further the control of the
sovereign and ensure violence
Edkins and Pin-Fat 05 (Jenny Edkins, professor of international politics at Prifysgol Aberystwyth University (in Wales) and
Veronique Pin-Fat, senior lecturer in politics at Manchester Universit, “Through the Wire: Relations of Power and Relations of Violence,”
Millennium - Journal of International Studies 2005 34: pg. 14)
One potential form of challenge to sovereign power consists of a refusal to draw any lines between
zoe- and bios, inside and outside .59 As we have shown, sovereign power does not involve a power relation
in Foucauldian terms. It is more appropriately considered to have become a form of governance or
technique of administration through relationships of violence that reduce political subjects to mere
bare or naked life. In asking for a refusal to draw lines as a possibility of challenge, then, we are not
asking for the elimination of power relations and consequently, we are not asking for the erasure of
the possibility of a mode of political being that is empowered and empowering, is free and that
speaks: quite the opposite . Following Agamben, we are suggesting that it is only through a refusal to draw any
lines at all between forms of life (and indeed, nothing less will do) that sovereign power as a form of
violence can be contested and a properly political power relation (a life of power as potenza) reinstated . We
could call this challenging the logic of sovereign power through refusal . Our argument is that we can evade
sovereign power and reinstate a form of power relation by contesting sovereign power’s assumption
of the right to draw lines, that is, by contesting the sovereign ban. Any other challenge always
inevitably remains within this relationship of violence . To move outside it (and return to a power relation) we need
not only to contest its right to draw lines in particular places, but also to resist the call to draw any
lines of the sort sovereign power demands. The grammar of sovereign power cannot be resisted by
challenging or fighting over where the lines are drawn . Whilst, of course, this is a strategy that can be
deployed, it is not a challenge to sovereign power per se as it still tacitly or even explicitly accepts
that lines must be drawn somewhere (and preferably more inclusively). Although such strategies contest
the violence of sovereign power’s drawing of a particular line, they risk replicating such violence in
demanding the line be drawn differently . This is because such forms of challenge fail to refuse sovereign
power’s line-drawing ‘ethos’, an ethos which , as Agamben points out, renders us all now homines sacri or
bare life . Taking Agamben’s conclusion on board, we now turn to look at how the assumption of bare life can
produce forms of challenge. Agamben puts it in terms of a transformation: This biopolitical body that
is bare life must itself instead be transformed into the site for the constitution and installation of a
form of life that is wholly exhausted in bare life and a bios that is only its own zoe-.... If we give the
name form-of-life to this being that is only its own bare existence and to this life that, being its own
form, remains inseparable from it we will witness the emergence of a field of research beyond the
terrain defined by the intersection of politics and philosophy, medico-biological sciences and
jurisprudence .60
2nc - at: fw
We should analyze solutions beyond the law – pure emphasis on pragmatism lock in
the squo
Craig Jones 13, PhD student at the University of British Columbia, Vancouver. Department of
Geography. Scholar at the Liu Institute for Global Issues at UBC. Research update – method in
the madness?, warlawspace.com/2013/09/30/research-update-method-in-the-madness/
Steven Keeva called the First Gulf War the first ‘lawyers war’, though in fact this isn’t quite correct
because lawyers were involved in Panama a couple of years earlier and – albeit in a very different way –
in Vietnam too; but that’s for a later post. While the last two decades have witnessed an unprecedented
rise in the provision of legal advice in operational decision making, crucial questions still remain about
what military lawyers do and how they contribute to the targeting process, and I’ll get to these
questions in a moment. Before asking the more theoretical questions that interest me, I have found it
more useful to begin with seemingly straightforward and pragmatic questions. I use ‘seemingly’
advisedly: targeting is a very technical process and to understand the role that the lawyer plays, one first
has to understand how targeting works. There is a lot of jargon; there are many different types of
targeting; many different ‘phases’ and ‘rhythms’; many different rules; endless information feeds;
numerous intelligence (re)sources and analyses; countless technicalities and calibrations; and, I could go
on. My point is that, just as the military lawyer must learn the technical specifics of military operations
(and I mean everything from RoE and ‘place-based’ knowledge to munitions and weaponeering), we, as
scholars and publics, too must understand how the thing gets done if we want write and think
responsibly and – I hope – critically and authoritatively about the role of the lawyer in targeting and
(more broadly) the role of law in war. Of course, such proximity requires extra vigilance, else
understanding quickly turns on empathizing and with it comes an apology for pragmatism – what
Costas Douzinas once called the ideology of Empire. Research update – method in the madness? September 30, 2013 by
jonescraig After a long radio silence – my apologies – I’m back in the UK (although whether I’m back ‘home’, I’m not so sure…). I’m here for a number
of reasons, and want to thank Peter Adey and the Department of Geography at Royal Holloway University of London for hosting me as a visiting scholar
for the semester. It has been an action-packed first week, and I’m glad to confirm that I’ll be giving a departmental talk, ‘The War Lawyers & The
Targeting Machine’, later in the semester and will be leading a one-off guest seminar, ‘war/law/space’ (!), for the MSc Geopolitics & Security group, a
bright and diverse bunch who I had the pleasure of meeting last week. The other reason I’m here is to conduct the final component of my research: to
try to figure out how the Royal Air Force approaches and executes its targeting missions in Afghanistan and Iraq. For those who are new to the blog, my
study is a multi-site investigation of the role that legal advice and operational law play in the conduct of lethal targeting operations. So far my focus has
been on Israel and the U.S. and I have been busy (hence the silence, I think) interviewing former and current legal advisors on their practical and often
nail-biting role in what is a tremendously complicated and variegated targeting process. It is impossible to condense the lawyers role into a few
sentences, not least because it changes from one state/air force to another and is a highly contextual practice which also varies from one operation to
the next. I have written very some preliminary notes on the U.S. and Israeli cases here and here and I promise to fill in the U.K. blanks shortly. Steven
Keeva called the First Gulf War the first ‘lawyers war’, though in fact this isn’t quite correct because lawyers were involved in Panama a couple of years
earlier and – albeit in a very different way – in Vietnam too; but that’s for a later post. While the last two decades have witnessed an unprecedented rise
in the provision of legal advice in operational decision making, crucial questions still remain about what military lawyers do and how they contribute to
the targeting process, and I’ll get to these questions in a moment. Before asking the more theoretical questions that interest me, I have found it more
useful to begin with seemingly straightforward and pragmatic questions. I use ‘seemingly’ advisedly: targeting is a very technical process and to
understand the role that the lawyer plays, one first has to understand how targeting works. There is a lot of jargon; there are many different types of
targeting; many different ‘phases’ and ‘rhythms’; many different rules; endless information feeds; numerous intelligence (re)sources and analyses;
countless technicalities and calibrations; and, I could go on. My point is that, just as the military lawyer must learn the technical specifics of military
operations (and I mean everything from RoE and ‘place-based’ knowledge to munitions and weaponeering), we, as scholars and publics, too must
understand how the thing gets done if we want write and think responsibly and – I hope – critically and authoritatively about the role of the lawyer in
targeting and (more broadly) the role of law in war. Of course, such proximity requires extra vigilance, else understanding quickly turns on empathizing
and with it comes an apology for pragmatism – what Costas Douzinas once called the ideology of Empire. Fortunately, the airforces in my study are
more open and frank than is frequently assumed, and I am only repeating what my supervisor Derek Gregory first told me years ago when I say that the
U.S. armed forces are prolific publishers on these matters (for the tip of the ice-berg see here). CIA and secret and classified operations are, of course,
something else entirely and often so too are the RAF and Israeli Air Force. Anyhow, I am slowly reconstructing and understanding the targeting process
and will be sharing any new material that I find over the coming months. In the meantime, Derek Gregory remains our best source for a critical
understanding of the kill-chain (at the very least see his ‘drones’ tab here). I should also say that targeting/military language is not the only lexicon I
have had to learn – or at least have tried to learn – in this project; I am also trying my best to become conversational in law and legalese. Needless to
say, one wouldn’t get very far with a military lawyer who has 30 years service under his/her belt without at least some knowledge of the relevant law. As
one former military lawyer for the IDF told me, “you’d have no chance; they’d eat you for breakfast”. But as it was, one or two of the lawyers invited me
to breakfast not to eat (me) but to talk, and it is through such discussions that I have been realising that – surprise surprise – the text is not the practice
and that what happens in the manual is one thing; the real world of military operations and legal advice, quite another. Having nearly completed the
Israeli and U.S. components of my study I am now better placed to understand what the pertinent questions are. Now that I am in the U.K., I’ll be
asking questions which will help me to compare the different approaches taken by the U.S., Israel and the U.K. toward legal advice and targeting. The
following are some tensions which have arisen thus far: a) What is the formal and non-formal (by which I mean unspoken, implicit and de facto) role of
the legal advisor? Does s/he merely (sic) advise and leave it for the commander to decide, or has the legal advisor gained an effective veto power as to
whether a strike goes ahead? Many lawyers have been reticent to admit the latter, though others have assured me that it frequently takes place and that
they have been personally responsible for giving the effective final word on life and death operations. b) Where should the lawyer be located? Should
s/he accompany troops on potentially life-threatening missions (as is common in the U.S. Army) or should s/he stay at the military base or the Air
Operations Centre (AOC) (as is common in the U.S. Air Forces)? It may be surprising to some – it certainly was to me – that U.S. legal advisors die on
the battlefield while on active duty. Not in Israel, because they are not forward deployed. One U.S. lawyer spoke of going out on multiple IED deactivation missions as a way of gaining respect from soldiers whose daily life and death was marked by ‘tours’ outside of the green zone in Baghdad.
There are many commentators who think lawyers have no place at what the military call the ‘tip of the spear’, but the commanders who rely on their
legal advice beg to differ; to them the lawyer has been likened to a priest bringing redemption. Not quite ‘forgive me Lord for I have sinned’, but ‘advise
me Lawyer so that I may not’, perhaps? c) When should the lawyer be involved? Few in the respective military establishments now doubt that military
lawyers perform an important role in operations; they provide a clear legal analysis as to whether this or that action is legal and thus serve as a safety
valve for the commander who is not so sure. This may or may not be a good thing and many question whether the power to decide has not been
delegated away from the commander, only to be taken by a lawyer who may have little experience in military operations. But the crux of the issue here
is whether legal advisors should be involved only in the planning part of the targeting process, or whether they should also be involved in time-sensitive
decision making where legal calls are required in seconds, not hours and days. The cartoon parable of this, which I can’t find now, is of the military
lawyer, rule book in hand ,running after the soldier onto the battlefield and the soldier asks “can I…” I
am putting all of this (and much more)
together to ask a different kind of question at once practical yet also political and philosophical: what
effects do the military lawyer and operational law have on the targeting process? This Foucauldian inspired
question seeks to understand the functioning of a legal practice and of certain legal experts in the
production of a discourse which we might broadly characterize as the ‘judicialization of war’. As legal
questions have come, more and more, to dominate discussions about war, I think it is worth pausing to reflect on
the consequences and to ask at what cost have legal questions come to the fore? The problem with law
(though clearly not everyone sees it as a problem) is that it confers legitimacy and at the political level, this legallegitimate amalgam has come to stand in for the other questions we might be asking about war; not
‘is it legal?’ but rather ‘is it right?’ or more simply, ‘why war?’ Military lawyers are not stupid people and modern militaries are not the buffoons
they may once have been; both are attuned to and tune into how publics perceive what they do, hence why the Israeli military have become social media fanatics.
To paraphrase Foucault, and to borrow from Derek Gregory, modern
militaries have become obsessed with the ‘conduct of
their conduct’. This means that they are surprisingly reflective and reflexive about what they do and how it is represented. Representing war –
or targeted killing – as legal provides lethal action with a skein of legitimacy, but what difference does
the law make, and on what difference is international law founded? For, and at my most provocative I ask, what
difference does it make to the victim of a drone strike whether or not the strike was legal? The answer
for a legalistic discourse of war is that many never stop to consider that there is something beyond
the law.
Reducing politics to simple yes/no legal questions forecloses on extra-legal solutions –
our fw is key to foster effective decisionmaking
Shampa Biswas 7 Prof of Politics @ Whitman “Empire and Global Public Intellectuals: Reading Edward
Said as an International Relations Theorist” Millennium 36 (1) p. 117-125
The recent resuscitation of the project of Empire should give International Relations scholars particular
pause.1 For a discipline long premised on a triumphant Westphalian sovereignty, there should be
something remarkable about the ease with which the case for brute force, regime change and empirebuilding is being formulated in widespread commentary spanning the political spectrum. Writing after
the 1991 Gulf War, Edward Said notes the US hesitance to use the word ‘empire’ despite its long
imperial history.2 This hesitance too is increasingly under attack as even self-designated liberal
commentators such as Michael Ignatieff urge the US to overcome its unease with the ‘e-word’ and
selfconsciously don the mantle of imperial power, contravening the limits of sovereign authority and
remaking the world in its universalist image of ‘democracy’ and ‘freedom’.3 Rashid Khalidi has argued
that the US invasion and occupation of Iraq does indeed mark a new stage in American world
hegemony, replacing the indirect and proxy forms of Cold War domination with a regime much more
reminiscent of European colonial empires in the Middle East.4 The ease with which a defence of empire
has been mounted and a colonial project so unabashedly resurrected makes this a particularly
opportune, if not necessary, moment, as scholars of ‘the global’, to take stock of our disciplinary
complicities with power, to account for colonialist imaginaries that are lodged at the heart of a discipline
ostensibly interested in power but perhaps far too deluded by the formal equality of state sovereignty and
overly concerned with security and order. Perhaps more than any other scholar, Edward Said’s
groundbreaking work in Orientalism has argued and demonstrated the long and deep complicity of academic
scholarship with colonial domination.5 In addition to spawning whole new areas of scholarship such as
postcolonial studies, Said’s writings have had considerable influence in his own discipline of comparative
literature but also in such varied disciplines as anthropology, geography and history, all of which have
taken serious and sustained stock of their own participation in imperial projects and in fact regrouped
around that consciousness in a way that has simply not happened with International Relations.6 It has
been 30 years since Stanley Hoffman accused IR of being an ‘American social science’ and noted its too close
connections to US foreign policy elites and US preoccupations of the Cold War to be able to make any
universal claims,7 yet there seems to be a curious amnesia and lack of curiosity about the political history of
the discipline, and in particular its own complicities in the production of empire.8 Through what discourses the
imperial gets reproduced, resurrected and re-energised is a question that should be very much at the heart of
a discipline whose task it is to examine the contours of global power. Thinking this failure of IR through some
of Edward Said’s critical scholarly work from his long distinguished career as an intellectual and activist,
this article is an attempt to politicise and hence render questionable the disciplinary traps that have,
ironically, circumscribed the ability of scholars whose very business it is to think about global politics
to actually think globally and politically. What Edward Said has to offer IR scholars, I believe, is a certain
kind of global sensibility, a critical but sympathetic and felt awareness of an inhabited and cohabited
world. Furthermore, it is a profoundly political sensibility whose globalism is predicated on a cognisance
of the imperial and a firm non-imperial ethic in its formulation. I make this argument by travelling
through a couple of Said’s thematic foci in his enormous corpus of writing. Using a lot of Said’s
reflections on the role of public intellectuals, I argue in this article that IR scholars need to develop what I
call a ‘global intellectual posture’. In the 1993 Reith Lectures delivered on BBC channels, Said outlines
three positions for public intellectuals to assume – as an outsider/exile/marginal, as an ‘amateur’, and as
a disturber of the status quo speaking ‘truth to power’ and self-consciously siding with those who are
underrepresented and disadvantaged.9 Beginning with a discussion of Said’s critique of ‘professionalism’
and the ‘cult of expertise’ as it applies to International Relations, I first argue the importance, for
scholars of global politics, of taking politics seriously. Second, I turn to Said’s comments on the posture
of exile and his critique of identity politics, particularly in its nationalist formulations, to ask what it
means for students of global politics to take the global seriously. Finally, I attend to some of Said’s
comments on humanism and contrapuntality to examine what IR scholars can learn from Said about
feeling and thinking globally concretely, thoroughly and carefully. IR Professionals in an Age of Empire:
From ‘International Experts’ to ‘Global Public Intellectuals’ One of the profound effects of the war on
terror initiated by the Bush administration has been a significant constriction of a democratic public
sphere, which has included the active and aggressive curtailment of intellectual and political dissent and a sharp
delineation of national boundaries along with concentration of state power. The academy in this
context has become a particularly embattled site with some highly disturbing onslaughts on academic freedom.
At the most obvious level, this has involved fairly well-calibrated neoconservative attacks on US higher
education that have invoked the mantra of ‘liberal bias’ and demanded legislative regulation and
reform10, an onslaught supported by a well-funded network of conservative think tanks, centres, institutes
and ‘concerned citizen groups’ within and outside the higher education establishment11 and with
considerable reach among sitting legislators, jurists and policy-makers as well as the media. But what has
in part made possible the encroachment of such nationalist and statist agendas has been a larger history of the
corporatisation of the university and the accompanying ‘professionalisation’ that goes with it. Expressing
concern with ‘academic acquiescence in the decline of public discourse in the United States’, Herbert Reid has
examined the ways in which the university is beginning to operate as another transnational
corporation12, and critiqued the consolidation of a ‘culture of professionalism’ where academic bureaucrats
engage in bureaucratic role-playing, minor academic turf battles mask the larger managerial power
play on campuses and the increasing influence of a relatively autonomous administrative elite and the rise of
insular ‘expert cultures’ have led to academics relinquishing their claims to public space and authority.13
While it is no surprise that the US academy should find itself too at that uneasy confluence of neoliberal
globalising dynamics and exclusivist nationalist agendas that is the predicament of many contemporary
institutions around the world, there is much reason for concern and an urgent need to rethink the role and
place of intellectual labour in the democratic process. This is especially true for scholars of the global writing
in this age of globalisation and empire. Edward Said has written extensively on the place of the academy as
one of the few and increasingly precarious spaces for democratic deliberation and argued the necessity for
public intellectuals immured from the seductions of power.14 Defending the US academy as one of the last
remaining utopian spaces, ‘the one public space available to real alternative intellectual practices : no other
institution like it on such a scale exists anywhere else in the world today’15, and lauding the remarkable
critical theoretical and historical work of many academic intellectuals in a lot of his work, Said also
complains that ‘the American University, with its munificence, utopian sanctuary, and remarkable
diversity, has defanged (intellectuals)’16. The most serious threat to the ‘intellectual vocation’, he argues, is
‘professionalism’ and mounts a pointed attack on the proliferation of ‘specializations’ and the ‘cult of
expertise’ with their focus on ‘relatively narrow areas of knowledge’, ‘technical formalism’, ‘impersonal theories
and methodologies’, and most worrisome of all, their ability and willingness to be seduced by power.17 Said
mentions in this context the funding of academic programmes and research which came out of the
exigencies of the Cold War18, an area in which there was considerable traffic of political scientists
(largely trained as IR and comparative politics scholars) with institutions of policy-making. Looking at
various influential US academics as ‘organic intellectuals’ involved in a dialectical relationship with
foreign policy-makers and examining the institutional relationships at and among numerous think tanks
and universities that create convergent perspectives and interests, Christopher Clement has studied US
intervention in the Third World both during and after the Cold War made possible and justified through
various forms of ‘intellectual articulation’.19 This is not simply a matter of scholars working for the
state, but indeed a larger question of intellectual orientation. It is not uncommon for IR scholars to feel the
need to formulate their scholarly conclusions in terms of its relevance for global politics, where ‘relevance’
is measured entirely in terms of policy wisdom. Edward Said’s searing indictment of US intellectuals –
policy-experts and Middle East experts - in the context of the first Gulf War20 is certainly even more
resonant in the contemporary context preceding and following the 2003 invasion of Iraq. The space for a
critical appraisal of the motivations and conduct of this war has been considerably diminished by the
expertise-framed national debate wherein certain kinds of ethical questions irreducible to formulaic ‘for
or against’ and ‘costs and benefits’ analysis can simply not be raised. In effect, what Said argues for,
and IR scholars need to pay particular heed to, is an understanding of ‘intellectual relevance’ that is larger and
more worthwhile, that is about the posing of critical, historical, ethical and perhaps unanswerable questions
rather than the offering of recipes and solutions, that is about politics (rather than techno-expertise) in the
most fundamental and important senses of the vocation.21
You should be an informed citizen, not the government – they shut down critical
thinking and deliberation
Steele, 10 (Brent Steele, Associate Professor of Political Science at the University of Kansas, Defacing Power: The Aesthetics of Insecurity
in Global Politics pg 130-132) *Edited for gendered language
When facing these dire warnings regarding the manner in which academic-intellectuals are seduced
by power, what prospects exist for parrhesia? How can academic-intellectuals speak “truth to power”? It should be
noted, first, that the academic-intellectual’s primary purpose should not be to re-create a program to
replace power or even to develop a “research program that could be employed by students of world
politics,” as Robert Keohane (1989: 173) once advised the legions of the International Studies Association. Because academics are denied the
“full truth” from the powerful, Foucault states, we must avoid a trap into which governments would want
intellectuals to fall (and often they do): “Put yourself in our place and tell us what you would do.” This is not
a question in which one has to answer. To make a decision on any matter requires a knowledge of the
facts refused us, an analysis of the situation we aren’t allowed to make. There’s the trap. (2001: 453) 27 This
means that any alternative order we might provide, this hypothetical “research program of our own,” will also become
imbued with authority and used for mechanisms of control, a matter I return to in the concluding chapter of this book.
When linked to a theme of counterpower, academic-intellectual parrhesia suggests, instead, that the academic
should use his or her pulpit, their position in society, to be a “friend” “who plays the role of a
parrhesiastes, of a truth-teller” (2001: 134). 28 When speaking of then-president Lyndon Johnson, Morgenthau gave a bit more
dramatic and less amiable take that contained the same sense of urgency. What the President needs, then, is an intellectual
father-confessor, who dares to remind him of the brittleness of power, of its arrogance and blindness [ignorance],
of its limits and pitfalls; who tells him how empires rise, decline and fall, how power turns to folly,
empires to ashes. He ought to listen to that voice and tremble. (1970: 28) The primary purpose of the
academic-intellectual is therefore not to just effect a moment of counterpower through parrhesia, let
alone stimulate that heroic process whereby power realizes the error of its ways. So those who are skeptical that academics
ever really, regarding the social sciences, make “that big of a difference” are missing the point. As we bear witness to
what unfolds in front of us and collectively analyze the testimony of that which happened before us, the purpose of the academic is
to “tell the story” of what actually happens, to document and faithfully capture both history’s events
and context. “The intellectuals of America,” Morgenthau wrote, “can do only one thing: live by the standard
of truth that is their peculiar responsibility as intellectuals and by which men of power will ultimately be judged as well”
(1970: 28). This will take time, 29 but if this happens, if we seek to uncover and practice telling the truth free from the
“tact,” “rules,” and seduction that constrain its telling, then, as Arendt notes, “humanly speaking, no more is
required, and no more can reasonably be asked, for this planet to remain a place fit for human habitation”
([1964] 2006: 233).
Grassroots movements are the best way to resolve biopower
David Lyon, July 30, 2007, David Lyon is an author, “Surveillance Studies: An Overview”, pg 64-67,
https://books.google.com/books?id=_dTHJgh3f0C&pg=PA65&lpg=PA65&dq=agamben+and+surveillance&source=bl&ots=JntOMpvYK9&sig=1-
hjgXlOIuWCT6VL0KErzrb2_AY&hl=en&sa=X&ved=0CCoQ6AEwAWoVChMIp8vJzaTvxgIVC6CACh2SfgDR#v
=onepage&q=agamben%20and%20surveillance&f=false
Another way of learning from but also building upon the work of Foucault is to consider the relation
between structured power and ordinary everyday life. Giorgio Agamben's work, in particular, offers
fresh insights on what he calls 'sovereign power' and 'bare life', ideas that relate closely to new
surveillance regimes of categorizing and exclusion (Agamben 1998, 2005). In this work, however,
surveillance studies come full circle, once again to focus on the activities of the state and on citizens or
non-citizens. Starkly, Agamben sees the world from the point of view of concentration camps, where
death was adju- dicated and life directed (for a current application see French 2007). Agamben argues
that Foucault and others have never succeeded in bringing together ideas about the sovereign state
and institutions such as the prison (as in Discipline and Punish) with notions of every- day bio-power
(as in The History of Sexuality). In a new sense, says Agamben, totalitarianism and democracy have
certain things in common. In State of Exception, Agamben argues a contemporary case that the
declaration by President George W. Bush that he is 'com- mander-in-chief in a 'war on terror' has a
longer history, in which, as it were, the exception has become the rule (Agamben 2005). In the 'state of
emergency' after 9/11 the Bush administration authorized the indefinite detention of non-citizens
suspected of terrorist activities and their subsequent trials by a military commission. Agamben claims
that the state of exception, which was meant to be a provisional measure, became in the course of
the twentieth century a normal mode of government, and was accented after 9/11. For Didier Bigo,
Agamben's analysis of the 'ban' that systematically excludes some groups (Agamben 1997) invites
consideration of a further post-Foucault neologism, the 'ban-opticon' (Bigo 2005). While the majority of
citizens of the global North are normalized through their involvement in consumer capitalism in the
kinds of ways men- tioned earlier, a focused surveillance is reserved for the sans-papiers, the
potential terrorist, the refugee - those 'trapped in the imperative of mobility'. Police, military and other
professionals combine their efforts to become the new 'in-security professionals'. The 'opticon' has a
spe- cific purpose, to 'ban' some, to exclude. Mixing files from different sources leads to new
classifications. Thus for Agamben a genealogical line may be drawn from Nazi camps of the Second
World War, through camps for Japanese detainees in the USA and Canada in the same period, to offshore facilities such as Guantanamo Bay in Cuba (used for post-9/11 'terrorism suspects') or Australian
detention centres for unprocessed refugees- It could be argued, of course, that these are just the
obvious, sharply defined 'camps' for excluded persons, and that many indeterminate statuses are
maintained through the use of Gastarbeiter permits, permanent resident cards, and the like. But to
explore these would be to go beyond the point of this excursus, which is to show that while
surveillance studies may benefit from the insights of governmentality scholars, there is also a place for
detailing the actual conditions produced by spe- cific regimes of governance, for examining the politics
of surveillance, and for understanding the ways in which those who are subjects of those regimes
respond and react to their circumstances. Theory and counter-surveillance If surveillance studies
needs a theoretical companion, I have sug- gested, better choose a general approach such as
governance than spe- cific all-embracing concepts such as the Panopticon. Even with such a companion,
surveillance studies should try to retain its own integrity by allowing for the contributions of more
realist analysis that concern themselves with theorizing actual conditions, processes and subjectivities of surveillance. These will pay attention to crucial dimensions such as socio-economic class, race
and gender which today must be applied in areas of literal (CCTV) as well as literary (data-mining)
'watching'. This is not to mention 'watch lists', those constructions of multiple networked databases,
data-mining and cross-departmental memos that play such a role in today's 'ban-opticons'. Recall, too,
that Foucault himself saw power as productive and as calling forth countervailing power. Many studies
of resistance suggest the need for theory that includes how people engage with surveillance. This can
be at the level of movements, specific anti-surveillance orga- nizations (such as the International Civil
Liberties Monitoring Group or the New York Camera Players) or everyday apparently ad hoc negotiation and resistance (seeGilliom 2001).Theorists such as Kirstie Ball (2003), Hille Koskela (2003) or John
McGrath (2004) show how in ordi- nary life people raise questions, refuse to cooperate ('I ain't going to
pee in no jar'), limit their exposure or comply cautiously as a means of challenging surveillance powers.
And of course the resistance may indicate an element of some other kind of related movement (civil
lib- erties, feminism, anti-racism, freedom of movement and identifica- tion, etc.). In the end, then,
surveillance studies has to go beyond general (even totalizing) theories of discipline or control to look
at specific ways in which this or that institution is involved in surveillance and how the surveillance is
modified by the compliance or refusal of its subjects. This may itself be met by counter-measures, of
course. Border resistance by 'undesirable' groups of would-be entrants into national domains has, for
example, prompted professionals to move the checking upstream, as witness the advance passenger
information and passenger name record system at airports. This becomes part of the narrative
approach to theory that I am advocating here. Alongside this lies a theoretical thread, indeed, one
might say a commitment, that I believe is centrally important: that is, to some notion of embodied
personhood. The kinds of subjectivities that have to be stressed over against the overly structural or
technical approaches of some theorists are based in social realist views of mat- eriality that are
neither ex-carnate (downplaying the body) nor hyper- carnate (making it central to social explanation)
(see Lyon 2006a). It is embodied persons who are affected by surveillance, positively or neg- atively, and
embodied persons who engage with it, again, for better or for worse. Thus the contributions of Michel
de Certeau (1986) become highly significant for surveillance studies, as do those of Paul Ricoeur, which
stress the story told by the self - for instance, in 'self-identity' - as the complement to the 'body' (Ricoeur
1992; see also Lyon 2001: 72). This is especially relevant to ID card systems. Care for the self and for the
other is also germane as a motive for engaging research on sur- veillance in the first place, especially
in the world of the 'ban' that affects most deeply and cruelly those whose 'otherness' is negatively
construed (see Lyon 2003a: 149-55). ___________________ "at the same time...." to wherever you
need this arent there because theres no page 68 on google books
The role of the judge is to be part of a new generation of revolutionary attorneys—
instead of asking, what to do with the law, ask why is this law? Anything else
replicates the crisis inherent in the meaning of the law.
Agamben 05 (Giorgio Agamben, famous philosopher, The State of Exception, pg. 63)
In the Kafka essay, the enigmatic image of a law that is studied but no longer practiced corresponds, as a sort of remnant, to the unmasking of
mythico-juridical violence effected by pure violence. There
is, therefore, still a possible figure of law after its nexus
with violence and power has been deposed, but it is a law that no longer has force or application, like
the one in which the “new attorney,” leafing through “our old books,” buries himself in study, or like
the one that Foucault may have had in mind when he spoke of a “new law” that has been freed from
all disci- pline and all relation to sovereignty.
What can be the meaning of a law that survives its deposition in such a way?
The difficulty Benjamin faces here corresponds to a problem that can be formulated (and it was effectively formulated for the first time in
primitive Christianity and then later in the Marxian tradition) in these terms: What
becomes of the law after its messianic
fulfillment? (This is the controversy that opposes Paul to the Jews of his time.) And what becomes of the law in a society
without classes? (This is precisely the de- bate between Vyshinsky and Pashukanis.) These are the questions that Benjamin seeks to
answer with his reading of the “new attorney.” Obvi- ously, it is not a question here of a transitional phase that
never achieves its end, nor of a process of infinite deconstruction that, in maintain- ing the law in a
spectral life, can no longer get to the bottom of it . The decisive point here is that the law—no longer
practiced, but studied— is not justice, but only the gate that leads to it . What opens a passage toward
justice is not the erasure of law, but its deactivation and inactivity [inoperosità]— that is, another use of
the law . This is precisely what the force-of-law (whichkeepsthelawworking[inopera]beyonditsformal suspension) seeks to prevent.
Kafka’s characters—and this is why they interest us—have to do with this spectral figure of the law in
the state of exception; they seek, each one following his or her own strategy, to “study” and
deactivate it, to “play” with it. One day humanity will play with law just as children play with disused objects, not in order to restore them to their canonical use but to free them from it for good .
What is found after the law is not a more proper and original use value that precedes the law, but a
new use that is born only after it . And use, which has been contaminated by law, must also be freed
from its own value. This liberation is the task of study, or of play . And this studious play is the passage
that allows us to arrive at that justice that one of Benjamin’s posthumous fragments defines as a state
of the world in which the world appears as a good that absolutely cannot be appropriated or made
juridical (Benjamin 1992, 41).
Representations and exposition are the organizing principles behind the debate which
we can challenge to alter power
Agamben, 2000 – professor of philosophy at the College International de Philosophie in Paris
(Giorgio, Means Without End: Notes on Politics, p. 93-95)
Exposition is the location of politics. If there is no animal politics, that is perhaps because animals are always already in the open and do not try
to take possession of their own exposition; they simply live in it without caring about it. That is why they are not interested in mirrors, in the
image as image. Human
beings, on the other hand, separate images from things and give them a name
precisely because they want to recognize themselves, that is, they want to take possession of their
own very appearance. Human beings thus transform the open into a world, that is, into the battlefield
of a political struggle without quarter. This struggle, whose object is truth, goes by the name of History. It is happening more
and more often that in pornographic photographs the portrayed subjects, by a calculated stratagem, look into the camera, thereby exhibiting
the awareness of being exposed to the gaze. This unexpected gesture violently belies the fiction that is implicit in the consumption of such
images, according to which the one who looks surprises the actors while remaining unseen by them: the latter, rather, knowingly challenge the
voyeur’s gaze and force him to look them in the eyes. In that precise moment, the insubstantial nature of the human face suddenly comes to
light. The fact that the actors look into the camera means that they show that they are simulating; nevertheless, they paradoxically appear
more real precisely to the extent to which they exhibit this falsification. The same procedure is used today in advertising: the image appears
more convincing if it shows openly its own artifice. In both cases, the one who looks is confronted with something that concerns unequivocally
the essence of the face, the very structure of truth. We may call tragicomedy of appearance the fact that the face uncovers only and precisely
inasmuch as it hides, and hides to the extent to which it uncovers. In this way, the appearance that ought to have manifested human beings
becomes for them instead a resemblance that betrays them and in which they can no longer recognize themselves. Precisely because the face is
solely the location of truth, it is also and immediately the location of simulation and of an irreducible impropriety. This does not mean,
however, that appearance dissimulares what it uncovers by making it look like what in reality it is not: rather, what human beings truly are is
nothing other than this dissimulation and this disquietude within the appearance. Because
human beings neither are nor have
to be any essence, any nature, or any specific destiny, their condition is the most empty and the most
insubstantial of all: it is the truth. What remains hidden from them is not something behind appearance, but rather appearing
itself, that is, their being nothing other than a face. The
task of politics is to return appearance itself to appearance,
to cause appearance itself to appear. The face, truth, and exposition are today the objects of a global
civil war, whose battlefield is social life in its entirety, whose storm troopers are the media, whose
victims are all the peoples of the Earth. Politicians, the media establishment, and the advertising industry have understood the
insubstantial character of the face and of the community it opens up, and thus they transform it into a miserable secret that they must make
sure to control at all costs. State
power today is no longer founded on the monopoly of the legitimate use of
violence — a monopoly that states share increasingly willingly with other nonsovereign organizations
such as the United Nations and terrorist organizations; rather, it is founded above all on the control of
appearance (of doxa). The fact that politics constitutes itself as an autonomous sphere goes hand in
hand with the separation of the face in the world of spectacle — a world in which human
communication is being separated from itself. Exposition thus transforms itself into a value that is
accumulated in images and in the media, while a new class of bureaucrats jealously watches over its
management.
2nc – at: aff solves surveillance
Surveillance is written into the biopolitical state and legal processes themselves – no
single legal action can contain it
Fitzpatrick 15 (Peter Fitzpatrick, Professor of Law @ University of London, Philipp Kender Graduate student @ University of London,
“Foucault, Surveillance and the Law of the Outside”, Surveillance & Society 13(2), 2015, SMahajan)
Biopower, along with its sustaining scientism, enabled a
comprehensive “science of government” of whole “populations” thereby bringing a
“governmentality” to bear on the entire social body, a social that “is the effect not of a consensus but of
the materiality of power operating on the bodies of individuals” (1980a: 55; 2007: 104, 108-9; 2008: 15-16). Whilst this biopower,
projected as co-extensive with “life”, operated “in a different scale” to “individualizing yet normalizing disciplinary powers”, it itself does mark off and serves to constitute the subjects of
disciplinary power (2008: 184, 194). It “dovetail[s] into” the disciplines so that they “and the regulating of the
population constituted the two poles around which the organization of power over life was deployed” (1981: 139; 2003a: 242).
In turn, “discipline was never more important or more valorized than at the moment when it became
important to manage a population”, and that “implies management of population in its depths and its details” (2001b: 219). Disciplinary power itself in
its “mechanisms” not only disciplined individuals but could “penetrate the social body in its totality” (2003b: 87). Through that comprehension,
disciplinary powers penetrate and effect the very constitution of the individual. As Foucault has it, this individual
is “a reality fabricated by this specific technology of power that I have called ‘discipline’ ” (1979: 194): “in
himself the effect of a subjection much more profound than himself” (1979: 30). Such powers are for Foucault
Foucault often attributed something like a completeness to the range and purchase of the conglomerate of biopower and disciplinary powers.
exercised ... through permanent mechanisms of surveillance and control ” (2003b: 87). And in the realm of biopower,
surveillance would inhabit those “apparatuses of security” which were the “essential mechanism” of
“
governing: “the essential function of security … is to respond to a reality in such a way that this response
cancels out the reality to which it responds —nullifies it, or limits, checks or regulates it”—“the delimitation of phenomena within acceptable limits” (2007: 47, 108; and 2003a:
242-3). “We live” thence “in…a panoptic society, a society where panopticism reigns” (2001a: 70). The idea and efficacy of Foucault’s panopticism can be readily
extended beyond Bentham’s institutional model in that Foucault understood the Panopticon “as a generalizable model of
functioning; a way of defining power relations in terms of the everyday life of men” (1979: 205). As such, it can
accommodate those tentacular technologies of information gathering, which have become more
profuse since Foucault’s time (see Simon 2005). The force of its current defining effect can be instanced in the operation of US
drones where individuals can become targets for killing where their behaviour conforms to a perceived
“signature” suggesting suspicious activity (Chamayou 2015: chapter 5). In all, with the determining completeness of the
conglomerate of powers in general and of surveillance in particular, Foucault may readily be understood as expelling
law from modernity or, more precisely, as marginalising law in its relation to the conglomerate, or as subsuming law to it (e.g. 1979: 222). This abject law is denied any
autonomous efficacy. So, taking surveillance as a telling instance, Foucault sees it as coming to saturate and even
appropriate legal processes (2001a: 57, 71). There is, however, an intimation of ambivalence in this abject relation
between law and the powers of the conglomerate. Closer observation may render a saturation of law as a saturation by law. So, Foucault finds that “[a]t the
heart of all disciplinary systems functions a small penal mechanism. It enjoys a kind of judicial privilege with its
own laws, its specific offenses, its particular forms of judgement” (1979: 177- 178). These systems, furthermore, mete out a
“justice”, enforce “an ‘artificial’ order, explicitly laid down by a law” and import “a double juridico-natural reference”, this particular mix comprising “a
new form of ‘law’” (1979: 179, 304). Still more, the operation of a normalising disciplinary power involves a “judging”: we are “in the society of the teacher-judge, the doctor-judge, the educator-judge, the
‘social worker’-judge” (1979: 304). And indeed, the doctor as thaumaturge “could only exert his absolute authority over the world of the asylum insofar as he was...Father and Judge, Family and Law...” (2009: 506). Indeed “the
activity of judging has increased precisely to the extent that the normalizing power has spread” (1979: 304). In sum, what we have here is “a single process of ‘epistemologico-juridical’ formation”, a “scientifico-legal complex”
(1979: 23). Evidently more is involved than the simple subjection of law. Law’s Outside Whilst Foucault did affirm a comprehensive, even constitutive, hold of the conglomerate on subjects and populations, he was also emphatic
whilst biopower would seek to “invest life through and through”, life still “constantly
escapes”—life as a “living in complete mobility” (1981: 139, 143; and see 1980b; 138): “[w]hen power becomes bio-power, resistance becomes
about its limits. So,
the power of life, a vital power that cannot be confined…” (Deleuze 1999: 77). Conversely, then, power “depends” on an
uncontainable, resistant “life” that is insistently intrinsic to it (1981: 95, 144). The individual likewise escapes—the
individual as the erstwhile normalised subject created by an encompassing disciplinary power. The subject is an “enslaved
sovereign” but a sovereign nonetheless, not only an effect of disciplinary power but a being who
effects it (1970: 312). Surveillance plays a positive part in the efficacy of this individual “subjected to” it; and so
the individual who “knows it”, or perceives its possibility, assumes responsibility for the constraints of power; he makes them play
spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he
becomes the principle of his own subjection. The comprehensive claims of, or associated with, the conglomerate powers now exhibit an aporetic gap. On one side of the
divide, these powers exhibit an embedded positivity , a scientism, a “materiality” of which “nothing could be
more real” (1980a: 55, 57). Yet, on the other, these powers would claim to “govern and administer” life, to encompass a
“universality” (1979: 178, 304; 1981: 143). To do so, such powers have to meet an “ideal” of being “indefinite”, “without limit”, “never closed” (1979: 227). Thus it could be said of
Panoptic power that it is “a machinery that no one owns”, a power “detached from any specific use” (1980c: 156;
1979: 145). In sum, the universality of conglomerate powers is advanced as consonant with their positivity . But this would
be to make the illimitable immanent to the determinate, thence ramping up the determinate, a “Something”, to the status of the transcendent (Deleuze and Guattari 1994: 45). In a “modern” secular world a resolving resort to the
potential resolution is always impelled from within, impelled immanently,
in that the advance of knowledge continually uncovers new facts that resolve the disparity between a
present manifestation of a power and challenges to it. Quite apart from this competence being too occasional and serendipitous to meet the needs of powers
brought constantly to bear on labile and changeful populations and individuals, it would also import an openness, a reaching to a constituent outside that cannot be made immanent to the extant. The resulting
transcendent is not available. It could however be argued that
impasse , this inherent limiting of a putatively positive illimitability, is a clouded call for law to move from being dependent on
conglomerate powers to their being dependent on it, a call for the exclusion thesis to be complemented by an inclusion thesis. And here we could return to that insinuate law
abundantly instanced towards the end of the last section—
a law coupled in “a single process of ‘epistemologico-juridical’ formation ”, in a
Law cannot be contained in or by such couplings . The recalcitrant, the transgressive, the demands
of a sheer and constant being otherwise, all would call for a responsive openness ever beyond the
positivity of the “epistemologico” or the “scientifico”. Tellingly, “without the possibility of recalcitrance power would be equivalent to a physical determination” (2001c: 342). So, the
“scientifico-legal complex” (1979: 23).
subject , encountered earlier escaping an encompassing disciplinary power, would include the legal subject . And the “life”
that escapes biopower would include the life of “the social body ”, a “social” in which law is innate (1980b: 138; Golder
and Fitzpatrick 2009: 124-30). Which leaves a puzzle and a provocation: if law, like the conglomerate powers, has a determinate existence in the world, an existence which adopts nonetheless a situated illimitability casting its
law’s posited existence is
explicitly and always contingent on its being otherwise and as such escapes an encompassing
decrees as “universal norms” (1979: 223), how can it avoid assuming a transcendence intrinsically incompatible with a modern ethos? The brief answer is that
positivity . A somewhat longer answer involves Foucault’s law of the outside. Perhaps the most striking affirmation of this law comes from Foucault’s beautiful engagement with Blanchot in the chapter “Where Is the
Law/And What Does It Do?”: How could one know the law and truly experience it, how could one force it to come into view, to exercise its powers clearly, to speak, without provoking it, without pursuing it into its recesses, without
there is “the silent and infinitely
accommodating welcome of the law” in which law becomes of “the outside that envelops conduct,
thereby removing it from all interiority” (1987: 34, 38). Yet there is also a counter-movement, as it were. This infinitely
trajected law is “placed under restraint”, put “beside itself”, as it separates itself “via the very separation that
institutes it as form, in the very movement by which it formulates...exteriority as law”, whence “the law takes place (has found its place)” (1987: 35, 36; Blanchot 1993: 434). In
taking place , in taking on formed content “beside itself”, “ the presence of the law” is still “its concealment ”, and that elusive
resolutely going ever farther into the outside into which it is always receding? Along with its “going ever farther into the outside”
presence “haunts cities, institutions, conduct, and gestures ” (1987: 33). Law is not “self-evident” (1987: 33). It “has no existence on its own” (Savigny in
Rahmatian 2007: 6). Having to eschew being an enduringly posited “Something”, law does not endow any
transcendent claim with content: to law “alone, pure transcendence”, as Blanchot has it (1992: 25). In the absence of materiality, law derives its content
from elsewhere —an elsewhere that would include, as Foucault observed and in so many ways, a normalising “continuum of apparatuses (medical,
whose functions are for the most part regulatory ” (1981: 144). Law’s Conclusion The outcome then would be an appositive and mutual relation, but the further
outcome could be a confirmation of law’s ultimate dependence on conglomerate powers, including
administrative, and so on)
surveillance. Such a further outcome would be the obverse of what is imported by Foucault’s law. Whilst this law takes on the likeness of a vulnerable vacuity, a void, this is a void that has affect: there is still a
“fullness of the void, something one cannot silence” (1987: 23). Law shares with other exemplars of the outside a fullness that “ envelops conduct ”, that enfolds an inside, rendering it
as an “ operation of the outside ” (1987: 34; Deleuze 2006: 81). In so doing, law can create any reality, or unreality, it chooses
(Dayan 2011). In “the forgetting of its origin” law alienates its derived content, its incipient inside, recreating that content as entirely its own—a “drying up” of “the source from which...it
sprang” (Blanchot 1992: 25). Law is not ultimately dependent on any reference apart from self-reference. Law, then, ever provokes and
awaits radical realisation.
2nc – at: biopolitics impact d
No link – we are a criticism of sovereign power, which is distinct – sovereign power is
the power to decide between life and death, while biopower seeks to promote and
protect life
Roldan 12 (Yolanda Roldan, B.A. in Criminology and Sociology from the University of Illinois, “Sovereign Power and Biopower – Foucault,”
http://uicsocialtheory.weebly.com/13/post/2012/12/sovereign-power-and-biopower-foucault-yolanda-roldan.html)
Foucault explains power in depth to his readers. There are five things that he says about power. He says that power is not an
object, power is relational, power is productive, and power is intentional. He explains that power can be gained and one way to gain power is
by having knowledge. Foucault explains that power is continual and varies. Power is always changing over time. It has matrices of
transformation and power is also persuasive. Foucault also says that power operates in a way that helps it reproduce itself. In
his piece
titled “History of Sexuality,” he tells us about sovereign power. This is the power that gives you the
right over the ability to decide between life and death. He also explains that this has turned into the
power to expose someone’s life to death. For example, sovereign power could be the power that a president has to send
someone to war. He also talks about direct power and indirect power. Direct power is the punishment that a sovereign
power is able to enforce. The indirect power is the power that the sovereign power has to expose
someone’s life to death. Basically it is the right to take life or let live. One example that I thought of when reading this
was our justice system and the death or life sentence. There are some states in our government that have the death sentence. This is the
sentence that one receives when they commit a crime so horrible that the judge of that case believes that the criminal deserves to be put to
death. In a way, that judge holds sovereign power. He is exercising his right to take a life when he sentences someone to death. He can also
exercise his power to let live by sentencing someone to life in prison instead of death. A life sentence is when someone who commits a crime
bad enough gets sentenced to spend the rest of their life in prison. Another
type of power that Foucault talks about is
Biopower. While sovereign power was a way that people in power would take lives, biopower was the
exact opposite of that. Biopower is a way that someone can exert complete and total power over
someone else. The reason for doing this would be to better promote life. Foucault explains that biopower is
needed to protect lives instead of taking them. This transformed the system from the right to take life or let live to the right
to foster life. An example that I thought of when reading this was universal health care. Universal healthcare is when a government supplies
their whole country with healthcare. With universal health care no one has to pay for health care and no one has to pay for medical services.
This is, in a way, the government exercising its right to promote life. If everyone has healthcare and is being taken care of all their medical
issues, and the government is paying for it then they are promoting the life of their citizens.
2nc - at: courts comply
No way – lawyers suck – especially FISA lawyers
Margo Schlanger,15 (is a Professor of Law at the University of Michigan Law School, and the founder and
director of the Civil Rights Litigation Clearinghouse) “Intelligence Legalism and the National Security
Agency's Civil Liberties Gap”
Stepping back a bit to evaluate all of this, NSD lawyers bring to their FISA and oversight work several
key characteristics. One is the lawyerly mindset, which merges careful textual analysis and a keen eye
for helpful ambiguity. Another is a commitment to their client's operational success. A third is a
natural desire, as repeat players in front of the FISA court, to safeguard their own credibility. And
perhaps a fourth is the embracing of rule of law values--the ideas of intelligence legalism, that law
should matter in the realm of intelligence. All four characteristics are reinforced by NSD lawyers' role, reference group, and
career aspirations. All four inform their approach to being both counsel to the government and officers of the FISA court, exhibiting candor
and care but pressing aggressive pro-government positions unless those positions are rejected by the court or are likely to be rejected.
Recent accounts suggest that within the Department of Justice, NSD at least occasionally takes aggressive pro-surveillance positions. Just to
cite one example, until the Solicitor General directed a more defendantfriendly reading, "the division . . . long used a narrow understanding
of what 'derived from' means in terms of when it must disclose specifics to defendants" explaining that evidence in their criminal case had
its origin in warrantless wiretaps. 193 The point is not that NSD's lawyers were right or wrong about this position. It is that if a credible
argument can be made in support of their clients' proposals, and the FISA judges have not rejected that argument, one would expect NSD
And just as it is wrong to expect neutrality from NSD, it would be foolish to expect
a more thorough-going civil liberties orientation. NSD's lawyers are not civil rights or civil liberties
lawyers to make it. [*157]
lawyers: they are not hired for their civil liberties experience or orientation towards civil liberties;
they are not asked to perform a civil liberties function; and their next jobs are rarely, if ever, civil
liberties jobs. It is unsurprising that when the FISA judges were building the now-dismantled "wall," those Department of Justice
intelligence lawyers who frequently appeared before them would respect and even support that approach. But
unlike with civil
liberties lawyers, there is every reason to predict that NSD lawyers would avoid pro-civil liberties
positions in the face of court indifference to the individual interests at stake--and no evidence to the
contrary has thus far been disclosed.
2nc - at: legal education good
Framing politics around the law ensures violence and abdicates political responsibility
Rozo 4, Diego Rozo is an MA in philosophy and cultural analysis, “Forgiving the Unforgivable: On Violence,
Power, and the Possibility of Justice”
Within the legal order the relations between individuals will resemble this logic where suffering is
exchanged for more, but ‘legal’ suffering, because these relations are no longer regulated by the
“culture of the heart” [Kultur des Herzens]. (CV 245) As Benjamin describes it, the “legal system tries to
erect, in all areas where individual ends could be usefully pursued by violence, legal ends that can be
realized only by legal power.” (CV 238) The individual is not to take law in his own hands; no conflict
should be susceptible of being solved without the direct intervention of law, lest its authority will be
undermined. Law has to present itself as indispensable for any kind of conflict to be solved. The
consequence of this infiltration of law throughout the whole of human life is paradoxical: the more
inescapable the rule of law is, the less responsible the individual becomes. Legal and judicial institutions
act as avengers in the name of the individual. Even the possibility of forgiveness is monopolized by the
state under the ‘right of mercy’. Hence the responsibility of the person toward the others is now
delegated on the authority and justness of the law. The legal institutions, the very agents of (legal)
vengeance exonerate me from my essential responsibility towards the others, breaking the moral
proximity that makes every ethics possible.20 Thus I am no longer obliged to an other that by his/her
very presence would demand me to be worthy of the occasion (of every occasion), because law, by
seeking to regulate affairs between individuals, makes this other anonymous, virtual: his otherness is
equaled to that of every possible other. The Other becomes faceless, making it all too easy for me to
ignore his demands of justice, and even to exert on him violence just for the sake of legality. The logic of
evil, then, becomes not a means but an end in itself:21 state violence for the sake of the state’s survival.
Hence, the ever-present possibility of the worst takes the form of my unconditional responsibility
towards the other being delegated on the ideological and totalitarian institutions of a law gone astray in
the (its) logic of self- preserving vengeance. The undecidability of the origin of law, and its consequent
meddling all across human affairs makes it possible that the worst could be exerted in the name of law.
Even the very notion of crimes against humanity, which seeks to protect the life of the population, can
be overlooked by the state if it feels threatened by other states or by its own population.22 From now
on, my responsibility towards the Other is taken from me, at the price of my own existence being
constantly threatened by the imminent and fatal possibility of being signaled as guilty of an (for me)
indeterminate offence. In this picture, the modern state protects my existence while bringing on the
terror of state violence – the law infiltrates into and seeks to rule our most private conflicts
2nc – at: legal reform possible
Intelligence legalism fails – lawyering and no motive
Margo Schlanger,15 (is a Professor of Law at the University of Michigan Law School, and the founder
and director of the Civil Rights Litigation Clearinghouse) “Intelligence Legalism and the National Security
Agency's Civil Liberties Gap”
A recent book by long-time CIA career lawyer (and, at one time, its acting General Counsel) John Rizzo encapsulates agency lawyers' position in
its title: Company Man. 155 Rizzo's book,
in which he simultaneously touts his own influence and his
disinclination to use it, demonstrates several times over that intelligence lawyers are not likely to shut
down programs dear to their clients. Writing, for example, about the illegal arms-for-hostages deal of Iran-Contra, Rizzo
ruminates: [*149] Perhaps things might have turned out differently if I had been given a say--for a time I
was pleased to believe that--but the truth is they probably wouldn't have. The arms-for hostages
initiative was conceived and approved at the highest levels [and] in all likelihood I would have gone
along, whatever my private misgivings might have been." 156 Similarly, describing his part in signing off
on "enhanced interrogation techniques" for captured terrorists, such as waterboarding, Rizzo states,
"My experience gave me confidence that I could squelch at least the more aggressive proposed EITs
[enhanced interrogation techniques], then and there, if I wanted to. It would have been a relatively
easy thing to do, actually." 157 But Rizzo did not say no. The public record does not allow comprehensive assessment of
how high stakes legal advice has played out at the NSA. When asked not simply about application of rules within a
program but about that program's permissibility altogether, it may be that one of NSA's General
Counsels has said no, counseling the agency that it cannot undertake some program or activity to
which NSA's Director or even more senior executive officials are committed. No such situations,
however, have yet been disclosed. Rather, w e have abundant evidence that NSA's lawyers are--as any
organization's lawyers would likely be-professionally disposed against even plausible--though not
iron-clad--legal challenges to their agency's authority . Recounting a day spent at the NSA, Steve Vladeck summarizes:
[W]hat became increasingly clear as the day wore on is how unable the NSA is to appreciate the
possibility that the rules themselves might be legally or constitutionally invalid. . . . Several of the
officials bristled at any suggestion that the agency was actually exceeding its legal authority, even
though there are good arguments on both statutory and constitutional grounds. We heard several
times how frivolous the Fourth Amendment challenge to the metadata program must be. Yet, just
four days after the visit, the district court in Washington issued a decision to the contrary . 158 Probably,
agency counsel lack the perspectival distance-and perhaps the stature--to veto important agency initiatives. We saw this dynamic in effect in
the case of the brief 2004 shutdown of the "President's Surveillance Program" internet metadata collection. "NSA leadership, including OGC
lawyers and the IG," had ratified the program as lawful based on the [*150] stretched argument that "NSA did not actually 'acquire'
communications until specific communications were selected" for analysis--that is, until communications "hit" on a search. not NSA career
lawyers or their political appointee boss, NSA General Counsel Robert Dietz, 160 who triggered the hospital-bed confrontation that led to the
temporary shutdown, or who then led the way in persuading the FISA Court to allow this aspect of the President's Surveillance Program to be
squeezed into FISA's Pen Register title. 161 The lawyers who first concluded that the program was illegal as constituted and then stood up to
the President's counsel and Chief of Staff, and to Vice President Cheney and his counsel, 162 were higherranked, and worked at the more
prestigious and bureaucratically separate Department of Justice Office of Legal Counsel, 163 where they were, in the end, supported by Deputy
Attorney General James Comey, himself supported by the ill Attorney General John Ashcroft. Putting aside high ranking Department of Justice
lawyers, federal agency counsel typically lack the stature to flout the views of White House lawyers. And this may be particularly true for the
NSA. Consider that when the NSA's General Counsel asked to see the first Office of Legal Counsel opinion ratifying the initial internet metadata
program, the White House declined even to share it. 164 Even if NSA's lawyers, up to the General Counsel, wanted to find a given program
unlawful, their legal opinion could be less influential than that of similarly placed counsel in other agencies, because the extremely
comprehensive involvement
of the Department of Justice's National Security Division depresses the agency
lawyers' ultimate authority: NSA OGC functions as something of a junior partner to the NSD and its
leadership. (On the other hand, NSA OGC's position as the NSA's ordinary point of contact with the Department of Justice, following the
bureaucratic logic that likes should link to like, simultaneously augments the bureaucratic influence of NSA OGC in more run-of-the-mill
situations.) And
so it seems most likely that NSA OGC's advice in legally ambiguous, high-stakes situations
poses little obstacle to proposed agency activities. The practical reality that lawyers are not very
constraining goes hand in glove with their growing numbers and dockets inside intelligence [*151]
agencies. In an article two decades ago, intelligence official Dorian Greene repeated Richard Willard's earlier description of the IC's negative
views of lawyers--"enormous pent-up hostility in the intelligence community toward lawyers and legalistic restrictions." 165 Greene attested in
1994 that "ten years later this general attitude has not shown any remarkable change." 166 Switching to the perspective of the lawyers
themselves, he described theirs as an "uncomfortable position," because "[s]imultaneously the lawyer is both a servant for the [intelligence]
community during the course of its relations with the remainder of the federal government and an oversight functionary within the community
itself." 167 But over the past two decades, and particularly the latter of them, much has shifted. Lawyers--with their interpretive skills
combined with their client commitments--have grown to be attractive advisors for operators and policymakers, 168 and their numbers have
multiplied accordingly. identifies has been substantially reduced; intelligence community lawyers now navigate their oversight and counseling
roles with little evident internal conflict. 169 The discussion above demonstrates that the basic method for bringing the two roles into
alignment is that the oversight function focuses on errors and the counseling function focuses on clarity and risk. Neither asks the NSA's lawyers
to assume a judge-like neutral stance: this is legal interpretation within a role of client-service and under significant bureaucratic limits. And
neither the oversight function nor the counseling function asks lawyers to assess, not merely interpret and apply, the rules. Neither, that is,
The NSA's OGC thus exemplifies the limited, though
important, impact of intelligence legalism. Taken together, these offices instantiate NSA's strong
prompts lawyers to ask the should rather than the can question.
commitment to intelligence legalism--and its strong, although perhaps lessening, disinclination to
itself weighing interests and evaluating policy. Former NSA [*152] (and CIA) Director Michael
Hayden put the point clearly when he said in July 2013: "Give me the box you will allow me to
operate in. I'm going to play to the very edges of that box; I'm going to be very aggressive. . . . I'll get
chalk-dust on my cleats, I'll be so close to the out-of-bounds markers." 170 More recently, former
NSA Deputy Director Chris Inglis framed the point in terms of NSA's orientation not just towards civil
liberties but more generally, describing the NSA as "an operational not a policy shop." 171
No chance of effective legal action – even if the law is well written, vagueness is the
letter of the law itself – it will be exploited
Margo Schlanger, 15 (is a Professor of Law at the University of Michigan Law School, and the founder
and director of the Civil Rights Litigation Clearinghouse) “Intelligence Legalism and the National Security
Agency's Civil Liberties Gap”
Bureaucratic subordinates often exercise discretion in the exercise of stealth authoritarian
mechanisms. For example, it is often a police officer who decides whether to make an arrest and a
prosecutor who decides whether to bring charges. For stealth authoritarianism to work effectively,
the regime must possess sufficient mechanisms for controlling the behavior of these lower-level
regime actors and mitigating the principal-agent problem, which may arise when the bureaucratic
agents fail to act in the best interests of the principal, the regime leaders. In other words, a system
must be in place for ensuring that the relevant legal mechanisms are enforced only against political
dissidents. With sufficient tools for punishing or rewarding agents - such as by firing, reassigning, or
promoting them - the regime can ensure that the agents exercise their discretion in conformity with
the principal's interests. Judicial review, as discussed above, can also provide the incumbents with the
opportunity to monitor and sanction the behavior of bureaucratic agents. 320 In democracies, the
discretion of the relevant actors tends to be more tightly constrained than in nondemocracies. In the
United States, for example, sentencing guidelines constrain the discretion of judges, district policies
constrain the discretion of police officers and prosecutors, and statutes restrict agency discretion. In
addition to these formal mechanisms, informal mechanisms may also impose restraints. Repeated
discretionary decision-making may accumulate in a set of informal norms or precedents that help
inform, if not constrain, discretion. 321 Calculations related to self-interest, such as a desire to retain
employment or political office, may also constrain the exercise of discretion. For example, a
prosecutor or a police officer who selectively enforces criminal laws may be fired. Other checks on the
exercise of discretion in democracies include judicial review of discretionary decision-making by a
neutral arbiter and political leaders from opposition parties with an interest in revealing arbitrary or
self-interested uses of discretion by the incumbents. 322 The abuse of discretion by public decisionmakers is also more likely to be detected and sanctioned in democracies with [*1721] an independent
press and active civil society, which further constrains discretion. In nondemocracies, there are
relatively fewer formal and informal restraints on discretion. That, in turn, permits more latitude for
selective enforcement of laws, which explains in part why stealth authoritarian strategies are more
prevalent in hybrid or fully authoritarian regimes. In nondemocracies, due to restrictions on political
opposition and public watchdogs such as the media, the informational asymmetry between the public
and the incumbents tends to be greater. 323 That, in turn, makes detection and sanction of selective
enforcement more difficult. Discretionary decision-making in nondemocracies is also amplified by the
use of vagueness in the relevant laws that serve as the foundation of stealth authoritarian practices.
Vague laws are those "that have indefinite application to particular cases," which can create
indeterminacies in legal rights and obligations. 324 Vagueness, in turn, fuels discretion and stealth
authoritarianism. For example, legislation regulating civil society organizations in Russia has been
criticized as "impossibly vague." 325 Similar objections have been lodged against laws in Turkey, 326
Hungary, 327 Algeria, Azerbaijan, and Ethiopia 328 that have been used as mechanisms of stealth
authoritarianism. These laws function like the sword of Damocles, leaving relevant actors uncertain
and anxious about the legality of their actions and exposing them to threats of punitive measures
should they overstep poorly defined or undefined boundaries. 329 Even in democracies, however,
some level of vagueness is inevitable in crafting statutes of general applicability. 330 In drafting
statutes, legislatures cannot address all of the unforeseen circumstances that can come up in their
application or resolve all instances of vagueness or ambiguity that might permit discretionary
decision-making. 331 In addition, statutes that shun all [*1722] discretion would also prevent
individualized justice that tailors results according to the unique circumstances of each case. 332 The
prevalence of discretion across different legal regimes renders its abuse more difficult to detect. For
example, where there is sufficient evidence to support a criminal conviction of a dissident for a nonpolitical crime, it becomes more difficult to determine whether the motive for the prosecution is
political, absent any direct evidence. In other words, the motive for the conviction appears more
ambiguous than the transparently repressive case of a political opponent jailed without due process.
It might be possible to establish a case for selective prosecution if there is a strong enforcement trend
of the relevant norms only against political dissidents, but evidence of such trends are often difficult
to develop. Even in the United States, where constitutional claims based on selective prosecution
remain theoretically available, it is extraordinarily difficult for a defendant to prevail on such claims.
333
2nc - at: rejecting law bad
We turn this – legalism produces passive subjects – the alts approach to the law
breaks from traditional notions of rulemaking which solves
West 3, Robin West is a professor of law at Georgetown University, nearest date given is 2003, “Reconsidering
Legalism,” http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1274&context=facpub, NN
About forty years ago, in 1964, the political philosopher∂ Judith Shklar published a remarkable book,
Legalism,' in∂ which she put forward two propositions: first, that an ideological∂ commitment to
"legalism" unites the legal profession, including∂ academy, bar, and bench,2 and second, that what
"legalism"∂ consists of is "the ethical attitude that holds moral conduct∂ to be a matter of rule
following, and moral relationships to consist∂ of duties and rights determined by rules."3 Thus,
putting∂ the two together, being a lawyer means that one is committed∂ to the ideological proposition
that moral conduct is a matter of∂ following rules.4 In the first of two extended essays in the book,∂
Professor Shklar went on to make a number of arguments∂ about this attitude, and its relation to
academic jurisprudence∂ and politics. First, with respect to legal philosophy, she argued∂ that "legalism,"
so understood, underlies natural law and legal∂ positivism both, so that at least from an outsider's
perspective,∂ these two warring jurisprudential stances have far more in∂ common than either is inclined
to suppose.5 Second, she argued,∂ legalism can be found in a "more or less" state in a wide range∂ of
political, social, and cultural institutions and practices, and not just in those institutions dubbed "legal."
Therefore, barriers∂ generally drawn by professional legal philosophers between∂ "jurisprudence"
and political and moral philosophy are artificial∂ and unjustified.6 Third, she argued that legalism,
because of its∂ insistence on the morality of conduct that conforms with rules∂ laid down in the past,
indirectly commits lawyers of all stripes ∂ to the proposition that law is simply there-if one has a
moral∂ duty to obey rules, it must be the case that the rules are∂ there 7∂ -and accordingly, legalism
commits lawyers to the formalist∂ claim (which she clearly finds dubious) that existing law∂ fully
determines all questions posed by conflicting rights and∂ duties.8 Law, then, in the empire of
legalism, has a static,∂ given, autonomous, seamless, and complete nature, not only for∂ formalists,
who hold this thesis quite explicitly, but in some∂ fashion, for virtually all lawyers.9 Lastly, Shklar argued,
legalism,∂ and hence the profession that defines itself by reference to∂ it, has a distinctively and
unmistakably conservative hue. The∂ rules that define rights, and to which we are morally obligated∂ to
conform, were by definition laid down in the past. Legalism,∂ she concluded, is committed to the
preservation of that past,∂ and is virtually by definition a conservative ideological worldview.'
Aff
2ac – law good
Pragmatic legal solutions are key – anything else devolves into theoretical abstraction
which never actualizes material change
Cohen 15 — Julie E. Cohen, Mark Claster Mamolen Professor of Law and Technology at the
Georgetown University Law Center, Member of the Advisory Board of the Electronic Privacy Information
Center, holds a J.D. from Harvard University, 2015 (“Studying Law Studying Surveillance,” Surveillance &
Society, Volume 13, Issue 1, Available Online at http://library.queensu.ca/ojs/index.php/surveillanceand-society/article/viewFile/law/lawsurv, Accessed 07-21-2015, p. 96-97)
Surveillance Studies and Law
Relative to legal scholarship, work in Surveillance Studies is more likely to build from a solid
foundation in contemporary social theory. Even so, such work often reflects both an insufficient grasp
of the complexity of the legal system in action and lack of interest in the ways that legal and
regulatory actors understand, conduct, and contest surveillance. By this I don’t mean to suggest that
Surveillance Studies scholars need law degrees, but only to point out what ought to be obvious but
often isn’t: legal processes are social processes, too, and in overlooking these processes, Surveillance
Studies scholars also engage in a form of black-boxing that treats law as monolithic and surveillance
and government as interchangeable. Legal actors engage in a variety of discursive and normative
strategies by which institutions and resources are mobilized around surveillance, and understanding
those strategies is essential to the development of an archaeology of surveillance practices. Work in
Surveillance Studies also favors a type of theoretical jargon that can seem impenetrable and, more
importantly, unrewarding to those in law and policy communities. As I’ve written elsewhere (Cohen
2012a: 29), “[t]oo many such works find power everywhere and hope nowhere, and seem to offer
well-meaning policy makers little more than a prescription for despair.” Returning to the topics
already discussed, let us consider some ways in which Surveillance Studies might benefit from dialogue
with law. Let us return first to the problem of digitally-enhanced surveillance by law enforcement—the
problem of the high-resolution mosaic. As discussed in the section above, works by Surveillance Studies
scholars exploring issues of mobility and control offer profound insights into the ways in which
continual observation shapes spaces and subjectivities—the precise questions about which, as we have
already seen, [end page 96] judges and legal scholars alike are skeptical. Such works reveal the extent to
which pervasive surveillance of public spaces is emerging as a new and powerful mode of ordering the
public and social life of civil society. They offer rich food for thought—but not for action. Networked
surveillance is increasingly a fact of contemporary public life, and totalizing theories about its power
don’t take us very far toward gaining regulatory traction on it. That enterprise is, moreover, essential
even if it entails an inevitable quantum of self-delusion. Acknowledgment of pervasive social shaping by
networked surveillance need not preclude legal protection for socially-shaped subjects, but that project
requires attention to detail. To put the point a different way, the networked democratic society and the
totalitarian state may be points on a continuum rather than binary opposites, but the fact that the
continuum exists is still worth something. If so, one needs tools for assessment and differentiation
that Surveillance Studies does not seem to provide. As an example of this sort of approach within legal
scholarship, consider a recent article by legal scholars Danielle Citron and David Gray (2013), which
proposes that courts and legislators undertake what they term a technology-centered approach to
regulating surveillance. They would have courts and legislators ask whether particular technologies
facilitate total surveillance and, if so, act to put in place comprehensive procedures for approving and
overseeing their use. From a Surveillance Studies perspective, this approach lacks theoretical purity
because its technology-specific focus appears to ignore the fact that total surveillance also can emerge
via the fusion of data streams originating from various sources. But the proposal is pragmatic; it does
not so much ignore that risk as bracket it while pursuing the narrower goal of gaining a regulatory
foothold within the data streams. And because it focuses on the data streams themselves, it is
administrable in a way that schemes based on linear timelines and artificial distinctions between
different types of surveillance are not. One can envision both courts and legislatures implementing
the Citron and Gray proposal in a way that enables far better oversight of what law enforcement is
doing.
2ac – perm – generic
Perm do both – fostering a productive legislative environment is key to broad scale
social reform – individual and grassroots action require legal change
Lee 14 — Ashlin Lee, Ph.D. Candidate and Associate Lecturer in Sociology at the School of Social
Sciences at the University of Tasmania, Member of The Australian Sociological Association, The
Surveillance Studies Network, and the Asia-Pacific Science Technology Studies Network, 2014 (“A
Question of Momentum: Critical Reflections on Individual Options for Surveillance Resistance,” Revista
Teknokultura—Journal of Digital Culture and Social Movements, Volume 11, Issue 2, Available Online at
http://dialnet.unirioja.es/descarga/articulo/4820459.pdf, Accessed 07-12-2015, p. 434-436)
Concluding Remarks and Future Directions
Is resistance to global surveillance then pointless for an individual? Perhaps in some current
iterations, but that does not mean abandoning resistance is helpful. Global surveillance presents a
pressing moral, legal, and social issue for all members of contemporary society. Ignoring surveillance,
and allowing global surveillance regimes to go unchallenged and unopposed perpetuates a growing
asymmetry between those conducting surveillance and the subject(s) of surveillance. It is therefore
important that surveillance and its subsequent asymmetries do not go unquestioned or unopposed,
whether this be through resistance or alternative means. But any suggested opposition to
surveillance, especially for individuals, needs to recognise the current context of surveillance,
including issues of technological momentum and surveillance's role in everyday life, which
complicates opposition. Because of these points, future discussion on resistance, especially for
individuals, may benefit from looking beyond confrontational resistance towards ideas more attuned
to dealing with the context. One possible angle for this might be considering ideas around how
surveillance can be controlled or engaged with, to facilitate a positive outcome for individuals. It is
unlikely global surveillance systems will be reversed or halted given the momentum developed so far
and the gains these systems have had for those in power. Additionally, this momentum is set to
continue to build as a new generation of technologies such as drones (Wall & Monahan, 2011), wearable
devices (Whitson, 2013), and algorithmic and intelligent surveillance (Introna & Wood, 2004), are
developed and deployed. An individual can never hope to resist, avoid, or destroy all these measures
of surveillance. However if Marx's (2013) assertion that surveillance holds no inherent moral character
and is contextually determined holds true, then [end page 434] considering how individuals can
engage with surveillance and determine its course could be a good next step. Such an approach
would sidestep the idea of confrontation as the basis for resistance, avoiding problems of
technological momentum, while acknowledging the role of surveillance in everyday life. Positive
change would occur through participation, engagement, and control, instead of fighting, destroying,
or hiding from surveillance. This is not an entirely new idea, with Mann (2013) suggesting that all
individuals should adopt veillance (or watching) technologies to address the current asymmetries of a
surveillance society (where watching occurs only from above). He suggests harnessing the technological
momentum of surveillance to allow all individuals to watch each other and the authorities. Individual
thus do not have to resist surveillance when they are able to conduct their own veillance,
demonstrating how participating and engaging might be positive for individuals. Through this Mann
believes that society "will tend to be more balanced, just, prosperous and 'livable'" (Mann, 2013, p. 11),
in comparison to where there is surveillance only. However any such notion of engagement or control
would still need to overcome significant hurdles. While new generations of devices, such as Google
Glass, may offer a feasible platform for this, there is no guarantee that uptake will be high enough to
create a veillance society. All individuals need equal access and opportunity to engage for a veillance
society to work. As a social measure, it would also require a supportive legislative and political
environment, a difficult proposition given that governments and corporations benefit from the
current asymmetries. It also begs the question of how individuals would be able to generate enough
momentum, whether this be technological, social, political, or economic, to create and maintain such
a radical social arrangement. Consequently, this would mean a shift in focus from individual to group
forms of participation and resistance. An obvious counterpoint to much of the above discussion is that
it has not engaged with these kinds of group forms of resistance. As Martin, van Brakel, and Burnhard
(2009) state resistance to surveillance is best understood as occurring in relation to multiple actors
and groups. It has been well demonstrated that it is possible for individual's to come together in
collectives or communities to resist or challenge surveillance in these contexts (see Monahan, 2006a).
These facts and the necessity to consider groups in the analysis of resistance is not in question, and
indeed may offer individuals a way of engaging in resistance. But this should not obscure the fact that
surveillance occurs in a world that is increasingly individualised and fragmented (Bauman, 2000)
especially for those living in the developed West, and individual options for resistance should still be
explored. This article has sought to directly engage with this notion and critique it without at all
devaluing or detracting from group options for resistance. Surveillance must be considered as a part
of the political economic [end page 435] patterns of society (Lyon, 2007), with individualisation
existing as an important factor in these patterns. With traditional forms of sociality and community
evolving towards an individually directed project (Bauman, 2000), and surveillance being increasingly
ubiquitous to these projects (Lyon, 2001), it is left in the individual's hands how this risk is negotiated.
Therefore a consideration of the individual and their capacity to act is important and necessary, as it
compliments existing understandings of group resistance. The importance of having options for
enacting positive change upon surveillance is enormous, whether these options come from
individuals or groups. But any such notion must be pragmatic and open for development. It is hoped
this article will encourage further discussion in this vein, for the good of all the subjects under
surveillance.
Perm is key to materialize the neg’s theory
Cohen 15 — Julie E. Cohen, Mark Claster Mamolen Professor of Law and Technology at the
Georgetown University Law Center, Member of the Advisory Board of the Electronic Privacy Information
Center, holds a J.D. from Harvard University, 2015 (“Studying Law Studying Surveillance,” Surveillance &
Society, Volume 13, Issue 1, Available Online at http://library.queensu.ca/ojs/index.php/surveillanceand-society/article/viewFile/law/lawsurv, Accessed 07-21-2015, p. 99)
Conclusion: Doing Law-and-Surveillance-Studies Differently The prospects for fruitful interchange and
collaboration between legal scholars and Surveillance Studies scholars are likely to remain
complicated by pronounced differences in underlying theoretical orientation. But since Surveillance
Studies is itself an interdiscipline (Garber 2001), and since legal scholarship has thrived on
interdisciplinary exploration, the prospects for effective communication also seem reasonably good.
Bridging the gaps requires, first and foremost, efforts by emissaries from both traditions to foster a
more tolerant and curious dialogue directed toward improved understanding and, ultimately, toward
methodological hybridization. Within one’s own academic community, it can become too easy to
mistake consensus on methodological conventions for epistemological rigor, and to forget that
methodological strength also derives from refusal to be hemmed in by disciplinary boundaries. From
the standpoint of theory, a more sustained dialogue between law and Surveillance Studies would
count as a success if it produced a mode of inquiry about surveillance that melded the theoretical
sophistication of Surveillance Studies with lawyerly attention to the details, mechanisms, and
interests that constitute surveillance practices as legal practices, and to the kinds of framing that
mobilize legal and policy communities. To do Surveillance Studies better, legal scholars need to
challenge their own preference for putting problems in categories that fit neatly within the liberal model
of human nature and behavior, and Surveillance Studies scholars can help by calling attention to the
social and cultural processes within which surveillance practices are embedded. Surveillance Studies
scholars need to do more to resist their own penchant for totalizing dystopian narratives, and should
delve more deeply into the legal and regulatory realpolitik that surrounds the administration of
surveillance systems; legal scholars can help by demystifying legal and regulatory processes. From a
legal scholar’s perspective, however, theory achieves its highest value when it becomes a tool for
forcing productive confrontations about how to respond to real problems. And so I think it would
count as an even bigger success if dialogue between law and Surveillance Studies generated not only a
hybridized theoretical discourse of law-and-Surveillance-Studies but also the beginnings of a more
accessible policy discourse about surveillance and privacy, along with reform proposals designed to
put the animating concepts behind such a discourse into practice. Here the goal would be a
hybridization between law’s ingrained pragmatism and Surveillance Studies’ attentiveness to the
social and cultural processes through which surveillance is experienced and assimilated. Working
together, legal scholars and Surveillance Studies scholars might advance the project of formulating
working definitions of privacy interests and harms, and might develop more sophisticated projections
of the likely effects of different policy levers that could be brought to bear on systems of surveillance.
We can work within the system to solve their impacts
Charles W. Mills, 2012, Charles W. Mills is a John Evans Professor of Moral and Intellectual Philosophy,
“Occupy Liberalism! Or, Ten Reasons Why Liberalism Cannot Be Retrieved for Radicalism (And Why
They’re All Wrong),” Radical Philosophy Review, Volume 15 number 2 (2012): 305–323
Few lines in the anti-colonial and anti-racist traditions of the last few decades or so have been as often
quoted as Audre Lorde's (1984) celebrated dictum: "The master's tools can never be used to dismantle
the master's house." The reason for its popularity is obvious: it sums up so well, in such a neat
epigrammatical form, a seemingly radical and uncompromising metatheoretical position. But with all
due respect to my late fellow Caribbean- American, the multiple oppressions she had to suffer in the
racist, sexist, and heterosexist United States, and her courage in resisting her subordination, affirming
her identity, and making such an invaluable contribution to the distinctive feminism of women of color,
this celebrated dictum is just false. It's not itself pretending to be an argument, of course—it's just an
assertion. But one does try to come up with a (good) argument for its truth, one quickly finds oneself
floundering. Lorde is not saying: "The masters tools sometimes can, and sometimes cannot, be used to
dismantle the masters house." Such a qualification, while having the happy virtue of making the claim
true, would have the unhappy vice of reducing it to banality—not what one wants in a good aphorism
or epigram. Moreover, it would be a banality that nullifies its impact, since, of course, it gets its force
precisely from its implicit uncompromisingness: "The master's tools can never be used to dismantle the
master's house." But only a few seconds' thought—more than most of its reciters have apparently ever
given to it—should be sufficient to demonstrate the obvious falseness of this claim. Take it, to begin
with, at the most literal level, since if an aphorism is untrue in the concrete it is hardly any more likely
to be true at the abstract level meant to be figured and represented by the concrete. Imagine we're a
group of escaped slaves who have begun by dismanding the master (presumably using our own tools)
and now wish to move on to his house. Hunting around the plantation, we come across a tool-shed of
hammers, pickaxes, saws, barrels of gunpowder, and so forth. Cannot we take these tools and—
hammering, digging, sawing in half, blowing up—demolish the master's house? Of course we can—
^you just watch. So the moment one examines the maxim, it falls apart. Only if it could plausibly be
demonstrated that there is something intrinsic in the tool itself that prohibits any such emancipatory
use of it would the dictum be true. But obviously there will be many tools, like hammers, which can
be used for a wide variety of ends, so that even if the master has used them, inter alia, to build his
plantation mansion (with our forced labor, of course), this does not mean that we cannot use them
for different purposes once he is no longer with us. Appropriating the master's tools—after all, we
figure he owes us a lot of back pay—^we head out West, where we construct freedmen's towns with
them. Who will refuse to move into these houses because they were built with the master's tools?
Consider now the abstract level of conceptual tools and theoretical frameworks that the material
tools are supposed to represent. I suggest that Lorde's dictum is no truer here. Some tools, such as
racism, will be intrinsically oppressive, so that one should be dubious about—to cite a famous
example—Jean-Paul Sartre's claim in "Black Orpheus" that an "antiracist racism" is possible. But
liberalism and contract theory, I would claim, are different. Admittedly, liberalism and contractarianism
have historically been racialized—this was the whole burden of The Racial Contract. But the crucial
disanalogy as "tools" between racism on the one hand, and liberalism and contractarianism, on the
other hand, is that once you purge racism of its scientific errors and moral viciousness there is nothing
left:, while for liberalism and contractarianism, this is not the case. Racism as an ideology about the
natural differentiation of humanity into discrete, hierarchically ordered biological groups, or racism as
moral disregard for people because of their race, collapses into nothingness once it is realized that not
only are the groups historically taken to be races not in a hierarchy, but that in fact they do not even
exist as discrete biological entities in the first place, and that racially based disregard for people is
morally unconscionable. But liberalism and contractarianism as descriptive and normative claims about
how we should think of the formation of society and the rights that morally equal humans should have
within that society can survive the removal of racist conceptions of who should be counted as fully
human and fully equal. The latter "tools," unlike the former, have other dimensions beside the goal of
subordination, and so can be reclaimed. An anti-contractarian contractarianism is possible in a way
that an anti-racist racism is not.
2ac – link – at: Fitzpatrick/Agamben
Pervasive surveillance isn’t all that bad – prefer localized instances of violent
surveillance – the plan solves
William H. Simon, October 2014, William H. Simon is a Professor of Law at Columbia University, “In
Defense of the Panopticon,” https://www.google.com/search?q=william+h.+simon&ie=utf-8&oe=utf-8
In urban areas, most people’s activity outdoors and in the common spaces of buildings is recorded
most of the time. Surveillance cameras are everywhere. When people move around, their paths are
registered on building access cards or subway fare cards or automobile toll devices. Their telephone
and e-mail communications, internet searches, and movements are tracked by telephone companies
and other intermediaries. All their credit card transactions – which for many people, means nearly all
of their transactions -- are documented by time, place, and substance. The health system extracts and
records detailed information about their psychic and bodily functions. Anyone arrested, and many who
fear arrest, in the criminal justice system typically surrender a variety of personal information and often
have to submit to ongoing monitoring. Even within the home, water and energy consumption is
monitored, and some people choose to install cameras to monitor children or protect against
burglars. To many people, this society looks like the Panopticon – a prison designed as a circular tower
so that the inmates can be easily observed by a centrally located authority figure. Jeremy Bentham
originated the Panopticon idea as a low-cost form of subjugation for convicted criminals. Michel
Foucault adopted it as a metaphor for what he regarded as the insidiously pervasive forms of social
control in contemporary society. To him, schools, hospitals, workplaces, and government agencies all
engaged in repressive forms of surveillance analogous to the Panopticon. In the United States,
paranoid political style has been associated traditionally with the right and the less educated. But
Foucault helped made it attractive to liberal intellectuals. His contribution was largely a matter of style.
Foucault was the most moralistic of social theorists, but he purported to disdain morality
(“normativity”) and refused to acknowledge, much less defend, the moral implications of his
arguments. He gave intellectual respectability to the three principal tropes of the paranoid style. First,
there is the idea of guilt by association. The resemblance between some feature of a strikingly cruel or
crackpot regime of the past or in fiction (especially in 1984) and a more ambiguous contemporary one
is emphasized in order to condemn the latter. Thus, the elaborate individualized calibration of
tortures in 18th and 19th century penology is used to make us feel uncomfortable about the
graduated responses to noncompliance in contemporary drug treatment courts. Orwell’s image of
television cameras transmitting images from inside the home to the political police is used to induce
anxiety about devices that monitor electricity usage so that the hot water tank will re-heat during offpeak hours. The second trope of the paranoid style is the portrayal of virtually all tacit social pressure as
insidious. What people experience as voluntary choice is substantially conditioned by unconscious
internalized dispositions to conform to norms, and a key mechanism of such conformity is the actual,
imagined, or anticipated gaze of others. Almost everyone who thinks about it recognizes that such
pressures are potentially benign, but people differ in their rhetorical predispositions toward them.
The individualist streak in American culture tends to exalt individual choice in a way that makes social
influence suspect. Foucault disdained individualism, but he introduced a conception of “power” that
was so vague and sinister that it could be applied to make almost any social force seem creepy. When
Neil Richards writes in the Harvard Law Review that surveillance “affects the power dynamic between
the watcher and the watched, giving the watcher greater power to influence or direct the subject of
surveillance,” he is channeling Foucault. So is Julie Cohen, when she writes in the Stanford Law Review:
“Pervasive monitoring of every first move or false start will, at the margin, incline choices toward the
bland and the mainstream.” We have come a far cry from Jane Jacobs’s idea of “eyes on the street” as
the critical foundation of urban vibrancy. For Jacobs, the experience of being observed by diverse
strangers induces, not anxiety or timidity, but an empowering sense of security and stimulation. It
makes people willing to go out into new situations and to experiment with new behaviors. Eyes-onthe-street implies a tacit social pact that people will intervene to protect each other’s safety but that
they will refrain from judging their peers’ non-dangerous behavior. Electronic surveillance is not
precisely the same thing as Jacobean eyes-on-the-street, but it does offer the combination of
potentially benign intervention and the absence of censorious judgment that Jacobs saw as conducive
to autonomy.
2ac – link – at: liberalism link//liberalism good
Liberalism solves biopower
Danny Lacombe, 1996, Danny Lacombe is a Criminology Simon Fraser U, “Reforming Foucault: A
Critique of the Social Control Thesis,” The British Journal of Sociology, Vol. 47, No. 2 Jstor
The nature of the relation between the individual and the political order concerned Foucault in his
studies of 'bio-power' and 'bio-politics'. In this work, he implicitly negates his earlier claims that rights
in the West were unequivocally linked to the sovereign (1980b, 1988, 199 1). Foucault introduced the
notion of 'bio-power' in his work on sexuality to designate the proliferation of a technology of powerknowledge primarily concerned with life. Bio-power was a mechanism that took charge of life by
'investing the body, health, modes of subsistence and habitation, living conditions, the whole space of
existence' (Foucault 1980b: 14344, emphasis added). The notion of bio-power is useful for our
understanding of the phenomenon of resistance because while it represents a totalizing or universal
mechanism -one that interpellates the subject as a member of a population - it also contains the seed
for a counter-power or a counter-politics because that mechanism individualizes the subject of a
population. It is this aspect of bio-power, its simultaneous totalizing and individual-izing tendencies,
that is of importance in understanding the strategies by which individual subjects can claim the right
to self-determination. Foucault explains that against this [bio-]power that was still new in the
nineteenth century, the forces that resisted relied for support on the very thing it invested, that is, on
life and man as a living being. Since the last century, the great struggles that have challenged the
general system of power were not guided by the belief in a return to former rights, or by the age-old
dream of a cycle of time or a Golden Age. (. . .) [Wlhat was demanded and what served as an objective
was life, understood as the basic needs, man's concrete essence, the realization of his potential, a
plentitude of the possible. Whether or not it was Utopia that was wanted is of little importance; what
we have seen has been a very real process of struggle; life as a political object was in a sense taken at
face value and turned back against the system that was bent on controlling it. It was life more than
the law that became the issue of political struggles, even if the latter were formulated through
affirmations concerningrights. The 'right' tolife, to one's body, to health, to happiness, to the
satisfaction of needs, and beyond all the oppressions or 'alienations,' the 'right' to rediscover what one
is and all that one can be, this 'right' (. . .) was the political response to all these new procedures of
power which did not derive, either, from the traditional right of sovereignty. (Foucault 1980b: 144-5) If
life, understood here as 'man's concrete essence', is affirmed through rights claims, then, like Foucault
we can no longer conceive law as necessarily linked to the sovereign. It must be linked to a different
political rationality, one I believe, in which human rights are at the centre. While Foucault never
specifically addressed the question of human rights, his lectures on 'bio-politics' (at the College de
France between 1978 and 1979) suggest that struggles for life and for self-determination are to be
understood in the context of liberalism. In his lectures, he explores the relation between bio-power the mechanisms taking charge of life -and the emergence of bio-politics, by which he means the way
in which a rationalization was attempted, dating from the eighteenth century, for the problems posed
to governmental practice by the phenomena specific to an ensemble of living beings: health, hygiene,
birthrate, longevity, races . . .(198 1 :353) Foucault's statement is significant because it suggests that
we cannot dissociate the problems posed by the question of population (bio-power) from the political
rationality within which they emerged, liberalism. Far from conceiving it as a political theory or a
representation of society, Foucault understands liberalism as an 'art of government', that is, as a
particular practice, activity and rationality used to administer, shape, and direct the conduct of people
(1981 :358). As a rationality of government - a 'governmentality' -liberalism, towards the beginning of
the eighteenth century, breaks from reason of state (la raison d'e'tat) which since the sixteenth century
had sought to 'justify the growing exercise of government' (Foucault 198 1 :354). What distinguishes
liberalism from reason of state as an art of government is that for liberalism 'there is always too much
government' (Foucault 1981: 354-5). In fact, far from being organized around the principle of a strong
state, liberalism upholds the principle of maximal economy with minimal government (Foucault 1981:
354). The question of liberalism, that of 'too much governing,' regulates itself, according to Foucault,
'by means of a continuing reflection' (1 98 1: 354). The idea of reflexivity here is significant because it
refers to a mechanism of self-critique, and self-limitation, inherent in liberalism. Foucault claims that
Liberalism (. . .) constitutes - and this is the reason both for its polymorphous character and for its
recurrences - an instrument for the criticism of reality. Liberalism criticizes an earlier functioning
government from which one tries to escape; it examines an actual practice of government that one
attempts to reform and to rationalize by a fundamental analysis; it criticizes a practice of government
to which one is opposed and whose abuses one wishes to curb. As a result of this, one can discover
liberalism under different but simultaneous forms, both as a schema for the regulation of governmental
practice and as a theme for sometimes radical opposition to such practice. (Foucault 198 1 : 356) What
allows liberalism to oppose state power, then, is not the principle of sovereignty or the idea of a
natural right external to the state; rather it is a rationality, a governmentality of life that takes on 'the
character of a challenge' (Foucault 1981 :353). People resist the conditions under which they live, they
make claims for or against the state, because they have been submitted to government. In other
words, the political technologies that seek to render us governable as a population (bio-power and biopolitics) simultaneously make possible the critique of these same technologies.'
Liberal ideas can shift with times – means it solves the impact
Charles W. Mills, 2012, Charles W. Mills is a John Evans Professor of Moral and Intellectual Philosophy,
“Occupy Liberalism! Or, Ten Reasons Why Liberalism Cannot Be Retrieved for Radicalism (And Why
They’re All Wrong),” Radical Philosophy Review, Volume 15 number 2 (2012): 305–323
Here is a characterization of liberalism from a very respectable source, the British political theorist, John
Gray: Common to all variants of the liberal tradition is a definite conception, distinctively modern in
character, of man and society.... It is individualist, in that it asserts the moral primacy of the person
against the claims of any social collectivity; egalitarian, inasmuch as it confers on all men the same
moral status and denies the relevance to legal or political order of differences in moral worth among
human beings; universalist, affirming the moral unity of the human species and according a secondary
importance to specific historic associations and cultural forms; and meliorist in its affirmation of the
corrigibility and improvability of all social institutions and political arrangements. It is this conception
of man and society which gives liberalism a definite identity which transcends its vast internal variety
and complexity.2 What generate the different varieties of liberalism are different concepts of
individualism, different claims about how egalitarianism should be construed or realized, more or less
inclusionary readings of universalism (Gray’s characterization sanitizes liberalism’s actual sexist and
racist history), different views of what count as desirable improvements, conflicting normative
balancings of liberal values (freedom, equality) and competing theoretical prognoses about how best
they can be realized in the light of (contested) socio-historical facts. The huge potential for
disagreement about all of these explains how a common liberal core can produce such a wide range of
variants. Moreover, we need to take into account not merely the spectrum of actual liberalisms but
also hypothetical liberalisms that could be generated through novel framings of some or all of the
above. So one would need to differentiate dominant versions of liberalism from oppositional versions,
and actual from possible variants. Once the breadth of the range of liberalisms is appreciated—
dominant and subordinate, actual and potential—the obvious question then raised is: Even if actual
dominant liberalisms have been conservative in various ways (corporate, patriarchal, racist) why does
this rule out the development of emancipatory, radical liberalisms? One kind of answer is the following
(call this the internalist answer): Because there is an immanent conceptual/normative logic to
liberalism as a political ideology that precludes any emancipatory development of it. Another kind of
answer is the following (call this the externalist answer): It doesn’t. The historic domination of
conservative exclusionary liberalisms is the result of group interests, group power, and successful group
political projects. Apparent internal conceptual/normative barriers to an emancipatory liberalism can be
successfully negotiated by drawing on the conceptual/normative resources of liberalism itself, in
conjunction with a revisionist socio-historical picture of modernity. Most self-described radicals would
endorse—indeed, reflexively, as an obvious truth—the first answer. But as indicated from the
beginning, I think the second answer is actually the correct one. The obstacles to developing a “radical
liberalism” are, in my opinion, primarily externalist in nature: material group interests, and the way they
have shaped hegemonic varieties of liberalism. So I think we need to try to justify a radical agenda with
the normative resources of liberalism rather than writing off liberalism. Since liberalism has always
been the dominant ideology in the United States, and is now globally hegemonic, such a project would
have the great ideological advantage of appealing to values and principles that most people already
endorse. All projects of egalitarian social transformation are going to face a combination of material,
political, and ideological obstacles, but this strategy would at least reduce somewhat the dimensions of
the last. One would be trying to win mass support for policies that—and the challenge will, of course,
be to demonstrate this—are justifiable by majoritarian norms, once reconceived and put in
conjunction with facts not always familiar to the majority. Material barriers (vested group interests)
and political barriers (organizational difficulties) will of course remain. But they will constitute a general
obstacle for all egalitarian political programs, and as such cannot be claimed to be peculiar problems
for an emancipatory liberalism.
Liberalism is key to political reform
Nick Smith, 2008, Nick Smith works at the University of New Hampshire Department of Philosophy,
“Questions for a Reluctant Jurisprudence of Alterity,”
http://pubpages.unh.edu/~nicks/pdf/Levinas%20and%20Law%20Questions%20for%20a%20Reluctant%
20Jurisprudence.pdf
These are sobering questions for me. I find the challenges that Levinas and Adorno pose to modernity
and the history of philosophy quite powerful, yet their resistance to practical philosophy is deeply
frustrating. Surely not all philosophers must satisfy our desire to put philosophy to use, but Levinas and
Adorno seem to have relinquished their ability to judge legal and political activity. This seems far from
an apolitical, pre-political, or meta-political position. I cannot help but think that no politics is bad
politics—politics stripped of evaluative thought. This worries Fraser as well because such a position is
tantamount to surrendering any possibility of distinguishing emancipatory and oppressive identity
claims, benign and pernicious differences. Thus, deconstructive antiessentialists evade political
questions of the day: Which identity claims are rooted in the defense of social relations of inequality
and domination? And which are rooted in a challenge to such relations? Which identity claims carry
the potential to expand actually existing democracy? And which, in contrast, work against
democratization? Which differences, finally, should a democratic society seek to foster, and which, on
the contrary, should it aim to abolish?48 Although “we are not now in a position to envision a fullscale successor to socialism,” Fraser encourages us to “try nevertheless to conceive provisional
alternatives to the present order that could supply a basis for a progressive politics.”49 There may be no
leftist utopia, and all campaigns claiming otherwise should be treated with deep suspicion. We will
not overcome identity thinking in grand political reformations, but we can fight it in the minutiae of
each conflict, policy, and practice. Laws do identify and categorize, but they do not all do so with
equal violence and disregard for particularity. Levinas and Adorno, however, deny us any means of
drawing comfortable distinctions between the justifiable and unjustifiable. Given the current state of
law and politics, the prospects of achieving reform through non-identity thinking seem quite grim. Even
if we could—against Levinas and Adorno’s spirit—activate a coherent program of reform around
theories of alterity, I doubt they could match the powers promoting their antithesis. Prevailing
instrumental institutions gain momentum and crush or integrate theories of alterity, and the strategy
of abstaining from political life in order to preserve the protest against instrumentality seems more
desperate than ever. Our objective should not merely be to use thought to remember the
nonidentical, but rather to safeguard the thought of the non-identical while acting to release it from
blind domination. Without both a practical orientation toward transforming material conditions and a
tolerance for the organizational categories necessary to implement such reform, deconstruction and
critical theory seem severed from their radical traditions. Pretending that these critiques provide a
form of resistance when they live harmlessly in their academic niche only reinforces the status quo. As
Adorno and Marx recognized, reason struggles to navigate a course that gives it effect in the concrete
world without sacrificing it to the instrumentalities of that world. I like to think that law is an ally in this
project, but I now wonder if there is any practical upshot for a jurisprudence of alterity. Any attempt to
discover legal praxis in Levinas and Adorno will traverse such heights that the reformer, if not forced
to turn back, will ultimately find herself in air so theoretically rarified that one might doubt if any
community could survive at its altitude. From this perspective, a jurisprudence of alterity seems most
relevant as a regulative ideal for all legal activity. Yet for those of us inclined to seek guidance for law in
Levinas or Adorno because we are moved by the threats of authoritarianism and consumerism, we find
ourselves on strangely familiar ground as we stand on this summit. Though separated by miles of
conceptual elevation, we arrive at the familiar practical values recognized by the traditions we seek to
overcome: dignity, respect, difference, non-violence, dialogue, participation, etc. Did we find these
practical principles at the height of Levinas and Adorno’s works, or did we bring them with us
interpretive biases? It seems odd, for instance, to rely on a radical critique of Western metaphysics to
support rather pedestrian arguments against racial profiling, capital punishment, violations of human
rights, or the recent wars in Iraq. We can make such arguments with much less controversial premises,
and hence I am suspicious of myself. Am I, as Adorno accused Lukács, “guilty of smuggl[ing] back the
most pitiful clichés of the conformism to which the critique had once been directed?”50 Can law ever be
more than such a cliché?
Current liberalism is good
Charles W. Mills, 2012, Charles W. Mills is a John Evans Professor of Moral and Intellectual Philosophy,
“Occupy Liberalism! Or, Ten Reasons Why Liberalism Cannot Be Retrieved for Radicalism (And Why
They’re All Wrong),” Radical Philosophy Review, Volume 15 number 2 (2012): 305–323
We have encountered the bad intentions argument already. It rests on the assumption that if some tool,
T (a term meant to be very broad in its scope, from physical things to conceptual systems), has been
devised for the sole or primary purpose of doing X, then it cannot be used for other purposes, such as
the opposite of X (Bogues 1998, 178: "[T]he social contract story was constructed and implemented in a
conscious manner to exclude blacks.") As earlier indicated, the argument is multiply vulnerable. To
begin with, in the specific examples under consideration of liberalism and contract theory, it cannot
plausibly be claimed that they were solely or primarily devised for the goal of subordinating nonEuropeans. Rather, their primary purpose (except for Hobbes) was the undermining of absolutism and
the articulation of norms of good governance for a particular population. That population was, of
course, a white (and male) one, because they were thinking of themselves. But it is misleading to
characterize this exclusivity in terms of a setting out to subordinate blacks, or nonwhites in general,
who, certainly in the early medieval phases of the contracts formulation, were (unlike white women)
marginal to their thought. In his book on social contract theory, Michael Lessnoff (1986, chapter 2), for
instance, cites Manegold of Lautenbach (writing around 1080) and Engelbert of Volkersdorf (writing
around 1310) as examples of medieval theorists who are important forerunners of the contractarianism
of the modern period. Would white racism and the imperatives of white exclusionary politics have
been intellectual motivators in such a period, a time before whiteness and race had even come into
existence as established and pervasive social categories? Obviously not. But even in the modern
period, the nature of the "exclusion" is not always comprehensive and not necessarily such as to preempt repair. It is noteworthy that Hobbes’s negative racial remarks in Leviathan are limited to Native
Americans, with nothing said about blacks. And it is famously the case for Locke that (rightly or wrongly)
one has to infer from his practical role in investment in African slavery and helping to write the Carolina
constitution that he did not intend blacks to be covered by the Second Treatises prohibitions against
slavery, since it is not actually there in the text itself So if it is a matter of blacks being seen as subpersons not included in the rules for full persons, then all we need to do is to deracialize the scope of
"man"/"person" and extend it to Africans to produce a "Lockean" proscription against African slavery, as
I have argued elsewhere (Mills 2006). Correcting for his anti-black racism (assuming this analysis is
correct) does not require any fundamental change in the terms and norms of the theory itself, just their
scope. (Admittedly, this is not the case for Native Americans, where his derogatory view of their
putative lack of industriousness is more integrally related to his theoretical framework of legitimate
property acquisition itself, so that deracializing here would require more radical theoretical changes.)
And that brings us to the second point: that there will be many tools whose very nature is such that,
like hammers, they lend themselves to a wide variety of ends, so that the original intention of the
maker, whatever it might have been, is largely irrelevant. A hammer can be used to construct a
punishment cage for slaves; a hammer can also be used to knock the cage apart. What would have to
be demonstrated (which would really be the third argument) is that something in the makeup of T
itself precludes alternative usages. So even if white social contract theorists self-consciously had this
goal in mind when they were constructing their theories, that does not ensure that the apparatus,
with suitable modifications, cannot be used for other ends. Even if a schedule of rights has been
devised whose main intention is the privileging of bourgeois white males, it does not follow, given the
human commonalities between bourgeois white males and, say, working-class black women, that this
schedule cannot be extended to others also. Do working-class black women not have persons, not have
lives and liberties and property they would like to see protected by natural rights?
2ac – link – at: reform link
Reformism is good and solves
Richard Delgado, 2009, Richard Delgado is a elf-appointed Minority scholar, Chair of Law at the
University of Alabama Law School, J.D. from the University of California, Berkeley, his books have won
eight national book prizes, including six Gustavus Myers awards for outstanding book on human rights in
North America, the American Library Association’s Outstanding Academic Book, and a Pulitzer Prize
nomination. Professor Delgado’s teaching and writing focus on race, the legal profession, and social
change, “Does Critical Legal Studies Have What Minorities Want, Arguing about Law,” p. 588-590
2. The CLS critique of piecemeal reform Critical scholars reject the idea of piecemeal reform.
Incremental change, they argue, merely postpones the wholesale reformation that must occur to create
a decent society. Even worse, an unfair social system survives by using piecemeal reform to disguise
and legitimize oppression. Those who control the system weaken resistance by pointing to the
occasional concession to, or periodic court victory of, a black plaintiff or worker as evidence that the
system is fair and just. In fact, Crits believe that teaching the common law or using the case method in
law school is a disguised means of preaching incrementalism and thereby maintaining the current
power structure.“ To avoid this, CLS scholars urge law professors to abandon the case method, give up
the effort to find rationality and order in the case law, and teach in an unabashedly political fashion.
The CLS critique of piecemeal reform is familiar, imperialistic and wrong. Minorities know from bitter
experience that occasional court victories do not mean the Promised Land is at hand. The critique is
imperialistic in that it tells minorities and other oppressed peoples how they should interpret events
affecting them. A court order directing a housing authority to disburse funds for heating in subsidized
housing may postpone the revolution, or it may not. In the meantime, the order keeps a number of poor
families warm. This may mean more to them than it does to a comfortable academic working in a warm
office. It smacks of paternalism to assert that the possibility of revolution later outweighs the certainty
of heat now, unless there is evidence for that possibility. The Crits do not offer such evidence. Indeed,
some incremental changes may bring revolutionary changes closer, not push them further away. Not
all small reforms induce complacency; some may whet the appetite for further combat. The welfare
family may hold a tenants‘ union meeting in their heated living room. CLS scholars‘ critique of
piecemeal reform often misses these possibilities, and neglects the question of whether total change,
when it comes, will be what we want.
2ac – alt – kills movements (biopower)
The alt results in policing movements
Michael Karlberg, 2003, Michael Karlberg is an Assistant Professor of Communication at Western
Washington University, PEACE & CHANGE, v28, n3, July, p. 339-41
Granted, social activists do "win" occasional “battles” in these adversarial arenas, but the root causes
of their concerns largely remain unaddressed and the larger "wars" arguably are not going well.
Consider the case of environmental activism. Countless environmental protests, lobbies, and lawsuits
mounted in recent generations throughout the Western world. Many small victories have been won.
Yet environmental degradation continues to accelerate at a rate that far outpaces the highly
circumscribed advances made in these limited battles the most committed environmentalists
acknowledge things are not going well. In addition, adversarial strategies of social change embody
assumptions that have internal consequences for social movements, such as internal factionalization.
For instance, virtually all of the social projects of the "left” throughout the 20th century have suffered
from recurrent internal factionalization. The opening decades of the century were marked by political
infighting among vanguard communist revolutionaries. The middle decades of the century were
marked by theoretical disputes among leftist intellectuals. The century's closing decades have been
marked by the fracturing of the a new left** under the centrifugal pressures of identity politics.
Underlying this pattern of infighting and factionalization is the tendency to interpret differences—of
class, race, gender, perspective, or strategy—as sources of antagonism and conflict. In this regard, the
political "left" and "right" both define themselves in terms at a common adversary—the "other"—
defined by political differences. Not surprisingly, advocates of both the left and right frequently invoke
the need for internal unity in order to prevail over their adversaries on the other side of the alleged
political spectrum. However, because the terms left and right axe both artificial and reified categories
that do not reflect the complexity of actual social relations, values, or beliefs, there is no way to
achieve lasting unity within either camp because there are no actual boundaries between them. In
reality, social relations, values, and beliefs are infinitely complex and variable. Yet once an adversarial
posture is adopted by assuming that differences are sources at conflict, initial distinctions between
the left and the right inevitably are followed by subsequent distinctions within the left and the right.
Once this centrifugal process is set in motion, it is difficult, if not impossible, to restrain. For all of
these reasons, adversarial strategies have reached a point of diminishing returns even if such strategies
were necessary and viable in the past when human populations were less socially and ecologically
interdependent those conditions no longer exist. Our reproductive and technological success as a
species has led to conditions of unprecedented interdependence, and no group on the planet is isolated
any longer. Under these new conditions, new strategies not only are possible but are essential.
Humanity has become a single interdependent social body. In order to meet the complex social and
environmental challenges now facng us, we must learn to coordinate our collective actions. Yet a
body cannot coordinate its actions as long as its "left" and is "right," or its "north" and its "south," or
its "east" and its "west" are locked in adversarial relationships.
2ac – alt – grassroots
Extralegal reform results in cooptation by the right – failure to define goals in concrete
terms.
Orly Lobel 2007, University of San Diego Assistant Professor of Law, “The Paradox of Extralegal
Activism: Critical Legal Consciousness and Transformative Politics,” 120 HARV. L. REV. 937,
http://www.harvardlawreview.org/media/pdf/lobel.pdf
A basic structure of cooptation arguments as developed in relation to the labor and civil rights
movements has been to show how, in the move from theory to practice, the ideal that was promoted
by a social group takes on unintended content, and the group thus fails to realize the original vision.
This risk is particularly high when ideals are framed in broad terms that are open to multiple
interpretations. Moreover, the pitfalls of the potential risks presented under the umbrella of cooptation
are in fact accentuated in current proposals. Paradoxically, as the extralegal movement is framed by
way of opposition to formal legal reform paths, without sufficiently defining its goals, it runs the very
risks it sought to avoid by working outside the legal system. Extralegal paths are depicted mostly in
negative terms and as resorting to new alternative forms of action rather than established models.
Accordingly, because the ideas of social organizing, civil society, and legal pluralism are framed in openended contrarian terms, they do not translate into specific visions of social justice reform. The idea of
civil society, which has been embraced by people from a broad array of often conflicting ideological
commitments, is particularly demonstrative. Critics argue that “[s]ome ideas fail because they never
make the light of day. The idea of civil society . . . failed because it became too popular.”164 Such a
broadly conceived ideal as civil society sows the seeds of its own destruction. In former eras, the
claims about the legal cooptation of the transformative visions of workplace justice and racial equality
suggested that through legal strategies the visions became stripped of their initial depth and fragmented
and framed in ways that were narrow and often merely symbolic. This observation seems accurate in
the contemporary political arena; the idea of civil society revivalism evoked by progressive activists
has been reduced to symbolic acts with very little substance. On the left, progressive advocates
envision decentralized activism in a third, nongovernmental sphere as a way of reviving democratic
participation and rebuilding the state from the bottom up. By contrast, the idea of civil society has
been embraced by conservative politicians as a means for replacing government-funded programs and
steering away from state intervention. As a result, recent political uses of civil society have subverted
the ideals of progressive social reform and replaced them with conservative agendas that reject
egalitarian views of social provision. In particular, recent calls to strengthen civil society have been
advanced by politicians interested in dismantling the modern welfare system. Conservative civil society
revivalism often equates the idea of self-help through extralegal means with traditional family
structures, and blames the breakdown of those structures (for example, the rise of the single parent
family) for the increase in reliance and dependency on government aid.165 This recent depiction of the
third sphere of civic life works against legal reform precisely because state intervention may support
newer, nontraditional social structures. For conservative thinkers, legal reform also risks increasing
dependency on social services by groups who have traditionally been marginalized, including
disproportionate reliance on public funds by people of color and single mothers. Indeed, the end of
welfare as we knew it,166 as well as the transformation of work as we knew it,167 is closely related to
the quest of thinkers from all sides of the political spectrum for a third space that could replace the
traditional functions of work and welfare. Strikingly, a range of liberal and conservative visions have
thus converged into the same agenda, such as the recent welfare-to-work reforms, which rely on
myriad non-governmental institutions and activities to support them.
Grassroots activism creates the illusion of change while maintaining the structures it
claims to oppose.
Orly Lobel 2007, University of San Diego Assistant Professor of Law, “The Paradox of Extralegal
Activism: Critical Legal Consciousness and Transformative Politics,” 120 HARV. L. REV. 937,
http://www.harvardlawreview.org/media/pdf/lobel.pdf
Both the practical failures and the fallacy of rigid boundaries generated by extralegal activism rhetoric
permit us to broaden our inquiry to the underlying assumptions of current proposals regarding
transformative politics — that is, attempts to produce meaningful changes in the political and
socioeconomic landscapes. The suggested alternatives produce a new image of social and political
action. This vision rejects a shared theory of social reform, rejects formal programmatic agendas, and
embraces a multiplicity of forms and practices. Thus, it is described in such terms as a plan of no plan,
“a project of pro- jects,” “anti-theory theory,” politics rather than goals, presence rather than power,
“practice over theory,” and chaos and openness over order and formality. As a result, the
contemporary message rarely includes a comprehensive vision of common social claims, but rather
engages in the description of fragmented efforts. As Professor Joel Handler argues, the commonality of
struggle and social vision that existed during the civil rights movement has disappeared.217 There is
no unifying discourse or set of values, but rather an aversion to any metanarrative and a resignation
from theory. Professor Handler warns that this move away from grand narratives is self-defeating
precisely because only certain parts of the political spectrum have accepted this new stance: “[T]he
opposition is not playing that game . . . . [E]veryone else is operating as if there were Grand Narratives . .
. .”218 Intertwined with the resignation from law and policy, the new bromide of “neither left nor
right” has become axiomatic only for some.219 The contemporary critical legal consciousness informs
the scholarship of those who are interested in progressive social activism, but less so that of those
who are interested, for example, in a more competitive securities market. Indeed, an interesting recent
development has been the rise of “conservative public interest lawyer[ing].”220 Although “public
interest law” was originally associated exclusively with liberal projects, in the past three decades
conservative advocacy groups have rapidly grown both in number and in their vigorous use of
traditional legal strategies to promote their causes.221 This growth in conservative ad- vocacy is
particularly salient in juxtaposition to the decline of traditional progressive advocacy. Most recently,
some thinkers have even suggested that there may be “something inherent in the left’s conception of
social change — focused as it is on participation and empowerment — that produces a unique distrust
of legal expertise.”222 Once again, this conclusion reveals flaws parallel to the original disenchantment
with legal reform. Although the new extralegal frames present themselves as apt alternatives to legal
reform models and as capable of producing significant changes to the social map, in practice they
generate very limited improvement in existing social arrangements. Most strikingly, the cooptation
effect here can be explained in terms of the most profound risk of the typology — that of legitimation.
The common pattern of extralegal scholarship is to describe an inherent instability in dominant
structures by pointing, for example, to grassroots strategies,223 and then to assume that specific
instances of counterhegemonic activities translate into a more complete transformation. This
celebration of multiple micro-resistances seems to rely on an aggregate approach — an idea that the
multiplication of practices will evolve into something substantial. In fact, the myth of engagement
obscures the actual lack of change being produced, while the broader pattern of equating extralegal
activism with social reform produces a false belief in the potential of change. There are few instances
of meaningful reordering of social and economic arrangements and macro-redistribution. Scholars
write about decoding what is really happening, as though the scholarly narrative has the power to
unpack more than the actual conventional experience will admit.224 Unrelated efforts become related
and part of a whole through mere reframing. At the same time, the elephant in the room — the rising
level of economic inequality — is left unaddressed and comes to be understood as natural and
inevitable.225 This is precisely the problematic process that critical theorists decry as losers’ selfmystification, through which marginalized groups come to see systemic losses as the product of their
own actions and thereby begin to focus on minor achievements as representing the boundaries of
their willed reality. The explorations of micro-instances of activism are often fundamentally
performative, obscuring the distance between the descriptive and the prescriptive. The
manifestations of extralegal activism — the law and organizing model; the proliferation of informal,
soft norms and norm-generating actors; and the celebrated, separate nongovernmental sphere of action
— all produce a fantasy that change can be brought about through small-scale, decentralized
transformation. The emphasis is local, but the locality is described as a microcosm of the whole and
the audience is national and global. In the context of the humanities, Professor Carol Greenhouse poses
a comparable challenge to ethnographic studies from the 1990s, which utilized the genres of narrative
and community studies, the latter including works on American cities and neighborhoods in trouble.226
The aspiration of these genres was that each individual story could translate into a “time of the nation”
body of knowledge and motivation.227 In contemporary legal thought, a corresponding gap opens
between the local scale and the larger, translocal one. In reality, although there has been a recent
proliferation of associations and grassroots groups, few new local-statenational federations have
emerged in the United States since the 1960s and 1970s, and many of the existing voluntary federations
that flourished in the mid-twentieth century are in decline.228 There is, therefore, an absence of links
between the local and the national, an absent intermediate public sphere, which has been termed “the
missing middle” by Professor Theda Skocpol.229 New social movements have for the most part failed in
sustaining coalitions or producing significant institutional change through grassroots activism.
Professor Handler concludes that this failure is due in part to the ideas of contingency, pluralism, and
localism that are so embedded in current activism.230 Is the focus on small-scale dynamics simply an
evasion of the need to engage in broader substantive debate? It is important for next-generation
progressive legal scholars, while maintaining a critical legal consciousness, to recognize that not all
extralegal associational life is transformative. We must differentiate, for example, between inwardlooking groups, which tend to be self- regarding and depoliticized, and social movements that
participate in political activities, engage the public debate, and aim to challenge and reform existing
realities.231 We must differentiate between professional associations and more inclusive forms of
institutions that act as trustees for larger segments of the community.232 As described above,
extralegal activism tends to operate on a more divided and hence a smaller scale than earlier social
movements, which had national reform agendas. Consequently, within critical discourse there is a need
to recognize the limited capacity of small-scale action. We should question the narrative that imagines
consciousness-raising as directly translating into action and action as directly translating into change.
Certainly not every cultural description is political. Indeed, it is questionable whether forms of activism
that are opposed to programmatic reconstruction of a social agenda should even be understood as
social movements. In fact, when groups are situated in opposition to any form of institutionalized
power, they may be simply mirroring what they are fighting against and merely producing moot
activism that settles for what seems possible within the narrow space that is left in a rising
convergence of ideologies. The original vision is consequently coopted, and contemporary discontent
is legitimated through a process of self-mystification.
Extralegal reform fails – too limited and reinforces the structures they oppose.
Orly Lobel 2007, University of San Diego Assistant Professor of Law, “The Paradox of Extralegal
Activism: Critical Legal Consciousness and Transformative Politics,” 120 HARV. L. REV. 937,
http://www.harvardlawreview.org/media/pdf/lobel.pdf
At this point, the paradox of extralegal activism unfolds. While public interest thinkers increasingly
embrace an axiomatic rejection of law as the primary form of progress, their preferred form of
activism presents the very risks they seek to avoid. The rejected “myth of the law” is replaced by a
“myth of activism” or a “myth of exit,” romanticizing a distinct sphere that can better solve social
conflict. Yet these myths, like other myths, come complete with their own perpetual perils. The myth
of exit exemplifies the myriad concerns of cooptation. For feminist agendas, for example, the
separation of the world into distinct spheres of action has been a continuous impediment to meaningful
reform. Efforts to create better possibilities for women to balance work and family responsibilities,
including relaxing home work rules and supporting stay-at-home parents through federal child care
legislation, have been couched in terms of support for individual choice and private
decisionmaking.173 Indeed, recent initiatives in federal child care legislation to support stay-at-home
parents have been clouded by preconceptions of the separation of spheres and the need to make
oneor-the-other life choices. Most importantly, the emergence of a sphereoriented discourse abandons
a critical perspective that distinguishes between valuing traditional gender-based characteristics and
celebrating feminine difference in a universalist and essentialist manner.174 Not surprisingly then,
some feminist writers have responded to civil society revivalism with great skepticism, arguing that
efforts to align feminine values and agendas with classic republican theory of civil society activism
should be understood, at least in part, as a way of legitimizing historical social structures that
subordinated women.175 The feminist lesson on the law/exit pendulum reveals a broader pattern. In a
classic example of cooptation, activists should be concerned about the infusion (or indeed confusion)
of nonlegal strategies with conservative privatization agendas. Indeed, in significant social policy
contexts, legal scholarship oriented toward the exploration of extralegal paths reinforces the exact
narrative that it originally resisted — that the state cannot and should not be accountable for
sustaining and improving the lifeworld of individuals in the twenty-first-century economy and that we
must seek alternative ways to bring about social reform. Whether using the terminology of a pathdependent process, an inevitable downward spiral, a transnational prisoner’s dilemma, or a global race
to the bottom, current analyses often suggest a lack of control over the forces of new economic
realities. Rather than countering the story of lack of control, pointing to the ongoing role of
government and showing the contradictions between that which is being kept regulated and that
which is privatized, alternative extralegal scholarship accepts these developments as natural and
inevitable. Similar to the arguments developed in relation to the labor movement — in which focusing
on a limited right to collective bargaining demobilized workers and stripped them of their voice,
participation, and decisionmaking power — contemporary extralegal agendas are limited to very
narrow and patterned sets of reforms.
Grassroots fail – exclude marginalized groups, cooptation, and diffusion.
Orly Lobel 2007, University of San Diego Assistant Professor of Law, “The Paradox of Extralegal
Activism: Critical Legal Consciousness and Transformative Politics,” 120 HARV. L. REV. 937,
http://www.harvardlawreview.org/media/pdf/lobel.pdf
Similarly, at the local level, grassroots politics often lack a clear agenda and are particularly ripe for
cooptation resulting in far lesser achievements than what may have been expected by the groups
involved. In a critical introduction to the law and organizing model, Professor Scott Cummings and Ingrid
Eagly describe the ways in which new community-based approaches to progressive lawyering privilege
grassroots activism over legal reform efforts and the facilitation of community mobilization over
conventional lawyering.181 After carefully unpacking the ways in which community lawyers embrace
law and organizing, Professor Cummings and Eagly rightfully warn against “exaggerating the
ineffectiveness of traditional legal interventions” and “closing off potential avenues for redress.”182
Significantly, the strategies embraced by new public interest lawyers have not been shown to produce
effective change in communities, and certainly there has been no assurance that these strategies fare
comparatively better than legal reform. Moreover, what are meant to be progressive projects of
community action and community economic development frequently can have a hidden effect of
excluding worse-off groups, such as migrant workers, because of the geographical scope and zoning
restrictions of the project.183 In the same way that the labor and corporate social responsibility
movements have failed because of their embrace of a legal framework, the community economic
development movement — so diverse in its ideological appeal yet so prominent since the early 1990s as
a major approach to poverty relief — may bring about its own destruction by fracture and
diffusion.184 In all of these cases, it is the act of engagement, not law, that holds the risks of
cooptation and the politics of compromise. It is not the particularities of lawyers as a professional
group that create dependency. Rather, it is the dynamics between skilled, networked, and resourced
components and those who need them that may submerge goals and create reliance. It is not the
particularities of the structural limitations of the judiciary that threaten to limit the progressive vision
of social movements. Rather, it is the essential difficulties of implementing theory into practice. Life is
simply messier than abstract ideals. Cooptation analysis exposes the broad, general risk of assuming
ownership over a rhetorical and conceptual framework of a movement for change. Subsequently,
when, in practice, other factions in the political debate embrace the language and frame their projects
in similar terms, groups experience a sense of loss of control or possession of “their” vision. In sum, in
the contemporary context, in the absence of a more programmatic and concrete vision of what
alternative models of social reform activism need to achieve, the conclusions and rhetoric of the
contemporary critical legal consciousness are appropriated by advocates representing a wide range of
political commitments. Under- stood from this perspective, cooptation is not the result of the turn to a
particular reform strategy. Rather, cooptation occurs when imagined ideals are left unchecked and
seemingly progressive rhetoric is reproduced by a conservative agenda. Dominant interpretations
such as privatization and market competitiveness come out ahead, whereas other values, such as
group empowerment and redistributive justice, receive only symbolic recognition, and in turn serve to
facilitate and stabilize the process.
State action is key to avoid fragmentation, institutional limitations, and
professionalism.
Orly Lobel 2007, University of San Diego Assistant Professor of Law, “The Paradox of Extralegal
Activism: Critical Legal Consciousness and Transformative Politics,” 120 HARV. L. REV. 937,
http://www.harvardlawreview.org/media/pdf/lobel.pdf
The focus on action in a separate sphere broadly defined as civil society can be self-defeating precisely
because it conceals the many ways in which law continues to play a crucial role in all spheres of life.
Today, the lines between private and public functions are increasingly blurred, forming what Professor
Gunther Teubner terms “polycorporatist regimes,” a symbiosis between private and public sectors.187
Similarly, new economic partnerships and structures blur the lines between for-profit and nonprofit
entities.188 Yet much of the current literature on the limits of legal reform and the crisis of
government action is built upon a privatization/regulation binary, particularly with regard to social
commitments, paying little attention to how the background conditions of a privatized market can
sustain or curtail new conceptions of the public good.189 In the same way, legal scholars often
emphasize sharp shifts between regulation and deregulation, overlooking the continuing presence of
legal norms that shape and inform these shifts.190 These false dichotomies should resonate well with
classic cooptation analysis, which shows how social reformers overestimate the possibilities of one
channel for reform while crowding out other paths and more complex alternatives. Indeed, in the
contemporary extralegal climate, and contrary to the conservative portrayal of federal social policies as
harmful to the nonprofit sector, voluntary associations have flourished in mutually beneficial
relationships with federal regulations.191 A dichotomized notion of a shift between spheres —
between law and informalization, and between regulatory and nonregulatory schemes — therefore
neglects the ongoing possibilities within the legal system to develop and sustain desired outcomes
and to eliminate others. The challenge for social reform groups and for policymakers today is to
identify the diverse ways in which some legal regulations and formal structures contribute to socially
responsible practices while others produce new forms of exclusion and inequality. Community
empowerment requires ongoing government commitment.192 In fact, the most successful
community based projects have been those which were not only supported by public funds, but in
which public administration also continued to play some coordination role.193 At both the global and
local levels, with the growing enthusiasm around the proliferation of new norm-generating actors, many
envision a nonprofit, nongovernmental organization–led democratization of new informal processes.194
Yet this Article has begun to explore the problems with some of the assumptions underlying the
potential of these new actors. Recalling the unbundled taxonomy of the cooptation critique, it becomes
easier to identify the ways extralegal activism is prone to problems of fragmentation, institutional
limitation, and professionalization. Private associations, even when structured as nonprofit entities,
are frequently undemocratic institutions whose legitimacy is often questionable.195 There are
problematic structural differences among NGOs, for example between Northern and Southern NGOs in
international fora, stemming from asymmetrical resources and funding,196 and between large
foundations and struggling organizations at the national level. Moreover, direct regulation of private
associations is becoming particularly important as the roles of nonprofits increase in the new political
economy. Scholars have pointed to the fact that nonprofit organizations operate in many of the same
areas as for-profit corporations and government bureaucracies.197 This phenomenon raises a wide
variety of difficulties, which range from ordinary financial corruption to the misrepresentation of certain
partnerships as “nonprofit” or “private.”198 Incidents of corruption within nongovernmental
organizations, as well as reports that these organizations serve merely as covers for either for-profit or
governmental institutions, have increasingly come to the attention of the government and the
public.199 Recently, for example, the IRS revoked the tax-exempt nonprofit status of countless “credit
counseling services” because these firms were in fact motivated primarily by profit and not by the
notfor-profit cause of helping consumers get out of debt.200 Courts have long recognized that the mere
fact that an entity is a nonprofit does not preclude it from being concerned about raising cash
revenues and maximizing profits or affecting competition in the market.201 In the application of
antitrust laws, for example, almost every court has rejected the “pure motives” argument when it has
been put forth in defense of nonprofits.202 Moreover, akin to other sectors and arenas,
nongovernmental organizations — even when they do not operate within the formal legal system —
frequently report both the need to fit their arguments into the contemporary dominant rhetoric and
strong pressures to subjugate themselves in the service of other negotiating interests. This is often the
case when they appear before international fora, such as the World Bank and the World Trade
Organization, and each of the parties in a given debate attempts to look as though it has formed a wellrounded team by enlisting the support of local voluntary associations.203 One NGO member observes
that “when so many different actors are drawn into the process, there is a danger that our demands
may be blunted . . . . Consequently, we may end up with a ‘lowest common denominator’ which is no
better than the kind of compromises the officials and diplomats engage in.”204 Finally, local NGOs
that begin to receive funding for their projects from private investors report the limitations of binding
themselves to other interests. Funding is rarely unaccompanied by requirements as to the nature and
types of uses to which it is put.205 These concessions to those who have the authority and resources to
recognize some social demands but not others are indicative of the sorts of institutional and structural
limitations that have been part of the traditional critique of cooptation. In this situation, local NGOs
become dependent on players with greater repeat access and are induced to compromise their initial
vision in return for limited victories. The concerns about the nature of both civil society and
nongovernmental actors illuminate the need to reject the notion of avoiding the legal system and
opting into a nonregulated sphere of alternative social activism. When we understand these different
realities and processes as also being formed and sustained by law, we can explore new ways in which
legality relates to social reform. Some of these ways include efforts to design mechanisms of
accountability that address the concerns of the new political economy. Such efforts include treating
private entities as state actors by revising the tests of joint participation and public function that are
employed in the state action doctrine; extending public requirements such as nondiscrimination, due
process, and transparency to private actors; and developing procedural rules for such activities as
standard-setting and certification by private groups.206 They may also include using the nondelegation
doctrine to prevent certain processes of privatization and rethinking the tax exemption criteria for
nonprofits.207 All of these avenues understand the law as performing significant roles in the quest for
reform and accountability while recognizing that new realities require creative rethinking of existing
courses of action. Rather than opting out of the legal arena, it is possible to accept the need to
diversify modes of activism and legal categories while using legal reform in ways that are responsive
to new realities. Focusing on function and architecture, rather than on labels or distinct sectors,
requires legal scholars to consider the desirability of new legal models of governmental and
nongovernmental partnerships and of the direct regulation of nonstate actors. In recent years, scholars
and policymakers have produced a body of literature, rooted primarily in administrative law, describing
ways in which the government can harness the potential of private individuals to contribute to the
project of governance.208 These new insights develop the idea that administrative agencies must be
cognizant of, and actively involve, the private actors that they are charged with regulating. These
studies, in fields ranging from occupational risk prevention to environmental policy to financial
regulation, draw on the idea that groups and individuals will better comply with state norms once they
internalize them.209 For example, in the context of occupational safety, there is a growing body of
evidence that focusing on the implementation of a culture of safety, rather than on the promulgation of
rules, can enhance compliance and induce effective self-monitoring by private firms.210 Consequently,
social activists interested in improving the conditions of safety and health for workers should advocate
for the involvement of employees in cooperative compliance regimes that involve both top-down
agency regulation and firm- and industry-wide risk-management techniques. Importantly, in all of these
new models of governance, the government agency and the courts must preserve their authority to
discipline those who lack the willingness or the capacity to participate actively and dynamically in
collaborative governance. Thus, unlike the contemporary message regarding extralegal activism that
privileges private actors and nonlegal techniques to promote social goals, the new governance
scholarship is engaged in developing a broad menu of legal reform strategies that involve private
industry and nongovernmental actors in a variety of ways while maintaining the necessary role of the
state to aid weaker groups in order to promote overall welfare and equity. A responsive legal
architecture has the potential to generate new forms of accountability and social responsibility and to
link hard law with “softer” practices and normativities. Reformers can potentially use law to increase
the power and access of vulnerable individuals and groups and to develop tools to increase fair
practices and knowledge building within the new market.
2ac - alt – no alternative to biopower
There’s no alternative to our current system
Jerold S. Auerbach, 1983, Jerold S. Auerbach is a Professor of History at Wellesley, “Justice Without
Law?,” p. 144-146
As cynicism about the legal system increases, so does enthusiasm for alternative dispute-settlement
institutions. The search for alternatives accelerates, as Richard Abel has suggested, "when some fairly
powerful interest is threatened by an increase in the number or magnitude of legal rights.*'6
Alternatives are designed to provide a safety valve, to siphon discontent from courts. With the danger
of political confrontation reduced, the ruling power of legal institutions is preserved, and the stability
of the social system reinforced. Not incidentally, alternatives prevent the use of courts for
redistributive purposes in the interest of equality, by consigning the rights of disadvantaged citizens
to institutions with minimal power to enforce or protect them. It is, therefore, necessary to beware of
the seductive appeal of alternative institutions. They may deflect energy from political organization by
groups of people with common grievances; or discourage effective litigation strategies that could
provide substantial benefits. They may, in the end, create a two-track justice system that dispenses
informal "justice" to poor people with "small" claims and "minor" disputes, who cannot afford legal
services, and who are denied access to courts. (Bar associations do not recommend that corporate law
firms divert their clients to mediation, or that business deductions for legal expenses—a gigantic
government subsidy for litigation—be eliminated.) Justice according to law will be reserved for the
affluent, hardly a novel development in American history but one that needs little encouragement from
the spread of alternative dispute-settlement institutions. It is social context and political choice that
determine whether courts, or alternative institutions, can render justice more or less accessible—and to
whom. Both can be discretionary, arbitrary, domineering—and unjust. Law can symbolize justice, or
conceal repression. It can reduce exploitation, or facilitate it. It can prohibit the abuse of power, or
disguise abuse in procedural forms. It can promote equality, or sustain inequality. Despite the
resiliency and power of law, it seems unable to eradicate the tension between legality and justice:
even in a society of (legal) equals, some still remain more equal than others. But diversion from the
legal system is likely to accentuate that inequality. Without legal power the imbalance between
aggrieved individuals and corporations, or government agencies, cannot be redressed. In American
society, as Laura Nader has observed, "disputing without the force of law ... [is| doomed to fail."7
Instructive examples document the deleterious effect of coerced informality (even if others
demonstrate the creative possibilities of indigenous experimentation). Freed slaves after the Civil War
and factory workers at the turn of the century, like inner-city poor people now, have all been assigned
places in informal proceedings that offer substantially weaker safeguards than law can provide. Legal
institutions may not provide equal justice under law, but in a society ruled by law it is their
responsibility. It is chimerical to believe that mediation or arbitration can now accomplish what law
seems powerless to achieve. The American deification of individual rights requires an accessible legal
system for their protection. Understandably, diminished faith in its capacities will encourage the
yearning for alternatives. But the rhetoric of "community" and "justice" should not be permitted to
conceal the deterioration of community life and the unraveling of substantive notions of justice that
has accompanied its demise. There is every reason why the values that historically are associated with
informal justice should remain compelling: especially the preference for trust, harmony, and
reciprocity within a communal setting. These are not, however, the values that American society
encourages or sustains; in their absence there is no effective alternative to legal institutions. The quest
for community may indeed be "timeless and universal."8 In this century, however, the communitarian
search for justice without law has deteriorated beyond recognition into a stunted off-shoot of the legal
system. The historical progression is clear: from community justice without formal legal institutions to
the rule of law, all too often without justice. But injustice without law is an even worse possibility,
which misguided enthusiasm for alternative dispute settlement now seems likely to encourage. Our
legal culture too accurately expresses the individualistic and materialistic values that most Americans
deeply cherish to inspire optimism about the imminent restoration of communitarian purpose. For
law to be less conspicuous Americans would have to moderate their expansive freedom to compete,
to acquire, and to possess, while simultaneously elevating shared responsibilities above individual
rights. That is an unlikely prospect unless Americans become, in effect, un-American. Until then, the
pursuit of justice without law does incalculable harm to the prospect of equal justice.
2ac – impact - generic
There’s no impact
Z Al—Mwajeh, 2005, Z Al—Mwajeh works Indiana University of Pennsylvania The School of Graduate
Studies and Research Department of English, “CRITIQUE OF POSTMODERN ETHICS OF ALTERITY VERSUS
EMBODIED (MUSLIM) OTHERS,” https://dspace.iup.edu/bitstream/handle/2069/23/Ziad%20AlMwajeh.pdf?sequence=1
However, I also think that key postmodernism tenets of radical alterity, incommensurability and
undecidability cannot be easily thematized in writing, nor can they be realized in praxis. They are
aporiatic. The only way to explicate their meanings and possibilities is through using modernist
vocabulary they initially oppose and deconstruct. Sometimes, thematizing these aporiatic concepts,
one lapses into cryptic and even incantational figurative language, a practice that exposes the
practical limitation and limited accessibility of such cherished concepts (or non-concepts). As a result,
their translation into, or coextension with, lived realities become basically hypothetical, too.
Consequently, the abstract and idealized postmodern concepts verge on, and intersect with, mystic,
(sometimes Biblical) allusions and traditions, a situation that problematizes their political value and
descriptive power in the realm of action. For example, in Levinasian thought, knowing the other is
incompatible with preserving its alterity. All representational endeavors reduce, or fail to capture,
what they supposedly represent not only due to imperfect linguistic mediums, but also due to the fact
that representation itself is a logocentric institution. It represents the other or the object from the
perspective of the Same, usually a priori reducing its uniqueness or sublimity to the known,
quantifiable and predictable. To curb such modernist reductive practices, Levinas’s alterity escapes all
modernist categories as it is an Other not in a relational or quantifiable way. Rather, it is an Other in the
sense of eliding comprehension and representation. Such Other resembles Levinas’s (Biblical)
conception of God as absolute Alterity where our epistemological categories or mind cannot contain or
represent Him. More important, the ethics of alterity usually soars above urgent concrete issues that
involve politically and economically charged self-other transactions. Levinas’s other is ‘disembodied,’ not
in Dr. Laing’s sense (e.g. The Divided Self). Rather, Levinas’s alterity cannot be substantiated. Defining or
embodying the other violates its alterity and sublimity. Hence, any grand appeal such ethics may
initially spark becomes questionable when juxtaposed to our existing realities and the factors that
regulate self/other different modes of relations. 6 Statement of the Problem, Limitations of the Study
and Methods In this study, I attempt to dislodge postmodern ethics from its speculative and elitist
tendencies through turning to self-other ethical relations in various literary, discursive and political
situations. I focus on bridging the gaps between theory and practice in order to expose the rifts and
blind spots in postmodern ethics of alterity. I think that the demands that ‘alterity’ as a generalized
abstract term exert differ from those raised by placed and temporalized others. For example, there is
an urgent need to know how well Levinas’s concept of ‘absolute alterity’ or Derrida’s concept of
‘undecidability’ fares in political situations. In other words, to argue for prioritizing alterity as a new
ethical turn is not the same as to motivate and effect such prioritization. While I agree that Levinas’s
“infinite obligation to the other” sounds uplifting, realizing/effecting such a formula is a different story.
Theoretically speaking, alterity is embraceable, but in lived realities, others fall on a spectrum of
difference (sometimes opposition) from self according to various criteria. Actually, there is a general
tendency to posit self and others in terms of difference and opposition, when in fact these are relative
and operational terms. Polarizing self and other risks ossifying them into rigid negatively defining
entities at the expense of their interdependence and mutual constitution. The terms other and self do
not only designate metaphysical figures or linguistic relations, they also describe ontological realities.
The metaphor of the ‘embrace’ may in it turn conceal a whole repertoire of idealism, philanthropy, and
logocentrism/humanism. Worse, sometimes Levinasian ethics seems so good to be true or realizable, at
least if taken literally. For the demand to meet the other on a neutral ground, pre-ontologically, looks
more like an aesthetic ideal/condition that cannot be achieved as we always meet the other in
context with our conceptions, motivations and values. Blaming Western Metaphysics, or ontology, for
the imbalanced self-other relations somehow brackets subject’s role and agency in the self-other
various equations.7 Moreover, we may indulge alterity ethics in closed and limited contexts that
favor our train of thought and take that for a sufficient action. We may embrace the other or theorize
about embracing and preserving alterity as ethics per se, but we may still live according to dialectical
‘alterity-blind’ institutions and practices. In such cases, we are either, consciously or subconsciously,
acknowledging and maintaining theory/practice divisions, or we know that acting ethically toward the
other entails more than theorizing about what form the most ethical relation should take. Acting
ethically demands sharing power and taking risks. More problematically, the theoretical formulas may
not function in the first place as the roots of ‘unethical’ self-other relations cannot be automatically
corrected by theoretically replacing modernist self-centered by alterity-centered ethics. Furthermore,
most of the writings about postmodernism—engage strenuous debates and often deploy elitist
jargon, a practice that limits their accessibility and descriptive value. Very often philosophical and
theoretical elitist debates alienate larger audiences and may even thrive at the expense of addressing
concrete self-other transactions. To a certain degree, these debates are inflated and divorced from the
stakes involved in political self-other lived transactions. Once one crosses the threshold of speculating
about self-other relations into considering them in light of indispensable concrete constituencies of
race, gender, nationality, power grid, and other variables, cherished postmodern key terms—such as
undecidability, alterity, and non-judgmentalism—become anomalous. Hard lived realities demand
resolutions and involve recalcitrant stakes. To solely dwell on the linguistic/discursive as the origin of
self/other imbalance is to overlook the complex and intricate relations among discourses and actions. To
put it differently, there has to be some mutual trafficking between metaphysics and lived realities, but
one cannot be reduced to the other in any straight predictable manner. Nor are their relations reducible
to cause-effect ones where Western Metaphysics’ privileging the subject and reducing the other/object
is the causer, while racism, sexism, and colonial exploitation are the effects. This does not deny that
there exists a ‘cause-effect’ relation between thought and lived realities, however. Alterity-centered
postmodernism shows how modernist epistemology has failed to establish self-other relations as
basically ethical by relegating the other to the status of a hierarchically inferior object or difference.
But the downside to such critique is the transformation of the modernist individual/self into
postmodernist subject. The postmodernist subject may not be more than a node or a surface/cite
constructed by linguistic, economic and media systems. Thus, the ethical turn toward alterity loses its
halo when one considers the diminutive role played by human agency and intentionality. Emphasizing
the negative side of constructivism—being constructed by external or upper systems—postmodernism
glosses over the subjects’ other various roles in sustaining and continuing, sometimes disrupting,
dominant epistemological, economic and political systems. In other words, modernist subjects are
primarily products of metaphysically pre-ordained itineraries sidestepping other senses such as being a
subject by initiating and performing actions by choice. If subject primarily means subjected to, the
ethics, responsibility and obligations, all become paradoxical. Furthermore, Levinas’s dictum to pre-
ontologically encounter alterity makes sense; he thinks that the ethical should, or actually does, precede
the ontological. But practically, such divisions may be divisions of convenience rather than of actuality as
if the political and ethical belonged to different modes of living. I think that we do not need to submit to
modernist disciplinary divisions of convenience nor do we need to separate the ethical from the political
or from the ontological. I believe that ethics is not a formula or a prescription we choose to apply or
we choose to leave behind. Ethics is intrinsic to action. Levinas’s move, however, has to be
contextualized. It is his desire to remove self other relations from under modernist epistemological
reductions and pragmatic/utilitarian arrangements that he wants to go back to a pure self-other
encounter—before self-other dialectics. He wants to encounter the other before reductive logic
moves in. Yet such a move ends in an impasse. Leaping back into the pre-ontological stems from
Levinas’s ontological or epistemological consciousness. The irony is that one just cannot exit the
ontological and still use its structures and vocabularies. Still, Levinas’s ethical dictum exposes the
working of unconscious ethnocentrism or conscious bias in our self-other relations, systems and
existence, unless we always foreground alterity. Consequently, alterity ethics is both a meta-ethical
argument, or for some it constitutes a ‘moral principle,’ or a basic revelation about our human
conditions: We are always in relation to—indebted to—the other. We may choose to elide such a
realization, but we cannot change it.
2ac – impact - biopower
Biopower is not harmful now
Mika Ojakangus, 2005, Mika Ojakangus is a worker for Helsinki Collegium for Advanced Studies,
“Impossible Dialogue on Bio-power,” http://www.foucault-studies.com/no2/ojakangas1.pdf
In fact, the history of modern Western societies would be quite incomprehensible without taking into
account that there exists a form o power which refrains from killing but which nevertheless is capable
of directing people’s lives. The effectiveness of biopower can be seen lying precisely in that it refrains
and withdraws before every demand of killing, even though these demands would derive from the
demand of justice. In bio-political societies, according to Foucault, capital punishment could not be
maintained except by invoking less the enormity of the crime itself than the monstrosity of the
criminal: “One had the right to kill those who represented a kind of biological danger to others.”112
However, given that the “right to kill” is precisely a sovereign right, it can be argued that the biopolitical
societies analyzed by Foucault were not entirely bio-political. Perhaps, there neither has been nor can
be a society that is entirely bio-political. Nevertheless, the fact is that present-day European societies
have abolished capital punishment. In them, there are no longer exceptions. It is the very “right to kill”
that has been called into question. However, it is not called into question because of enlightened moral
sentiments, but rather because of the deployment of bio-political thinking and practice. For all these
reasons, Agamben’s thesis, according to which the concentration camp is the fundamental bio-political
paradigm of the West, has to be corrected.113 The bio-political paradigm of the West is not the
concentration camp, but, rather, the present-day welfare society and, instead of homo sacer, the
paradigmatic figure of the bio-political society can be seen, for example, in the middle-class Swedish
social democrat. Although this figure is an object – and a product – of the huge bio-political
machinery, it does not mean that he is permitted to kill without committing homicide. Actually, the
fact that he eventually dies, seems to be his greatest “crime” against the machinery. (In bio-political
societies, death is not only “something to be hidden away,” but, also, as Foucault stresses, the most
“shameful thing of all”.114) Therefore, he is not exposed to an unconditional threat of death, but
rather to an unconditional retreat of all dying. In fact, the bio-political machinery does not want to
threaten him, but to encourage him, with all its material and spiritual capacities, to live healthily, to
live long and to live happily – even when, in biological terms, he “should have been dead long
ago”.115 This is because bio-power is not bloody power over bare life for its own sake but pure power
over all life for the sake of the living. It is not power but the living, the condition of all life – individual as
well as collective – that is the measure of the success of bio-power.
1ar – impact - biopower
Foucault is outdated – nice try
Carole Smith, 2000, Carole Smith is a Professor of Social Policy and Social Work at University of
Manchester, “The sovereign state v Foucault: law and disciplinary power,” The Editorial Board of The
Sociological Review, p. 291-2
Foucault's analysis has much to offer in terms of his creative and radical thinking about the nature of
power, the relationship between power and knowledge, the role of disciplinary power as it works to
regulate the subject from without and to constrain the subject from within, and forms of modern
government. The rise of liberal democracy, the thrust of welfare policy, government by administrative
regulation and the enormous influence of expert knowledge and therapeutic intervention (Giddens.
1991; Rose. 1990; Miller and Rose. 1994) have all had an impact on law and operations of the juridical
field. I would argue, however, that Foucault's characterisation of law, in the context of the modern
liberal state, does not reflect our everyday experience of the means through which power and
government are exercised. Similarly, the role played by expert knowledge and discursive power
relations in Foucault's conceptualisation of modernity, such that law is fated to justify its operations
by 'perpetual reference to something other than itself* and to 'be redefined by knowledge' (Foucault,
1991: 22), does not accord with the world of mundane practice. In their sympathetic critique of his
work. Hunt and Wickham (1998) point to the way in which Foucault's treatment of sovereignty and law
must necessarily lead him to neglect two related possibilities. First, that law may effectively re-define
forms of disciplinary power in its own terms and second, that law and legal rights may act to protect
the subject from the coercive influence of such power. Reported judgments on sterilisation and
caesarean interventions, without consent, show how law can achieve both of these reversals of
power. They also demonstrate law's ability to turn the 'normalizing gaze*, as the production of expert
knowledge, back upon the normative behaviour of experts themselves.
Biopolitics is wrong
Jan Selby, March 13, 2013, Jan Selby is a Senior Lecturer of IR at the University of Sussex, “The myth of
liberal peace—building,” Conflict, Security & Development, Volume 13, Issue 1
Most of the above features are shared right across the liberal peace-building debate and have been
advanced from any number of theoretical perspectives. Thus it has been claimed from a constructivist
perspective that contemporary peace-building is rooted in liberal ‘international norms’.36 Invoking
Foucault, it has been argued that the liberal peace-building project is an exercise in global bio-politics
or governmentality, which aims to govern and construct liberal populations and subjectivities.37 From
a post-colonial perspective, liberal peace-building has been described as a colonial project, ‘cast in the
mould of colonialism’, and aiming to restructure Southern societies in accordance with Northern
metropolitan ideology.38And in neo-Gramscian terms, peace-building has been critiqued as part of a
transnational neo-liberal project, ‘reflecting the hegemony of liberal values that reigns in global
politics’.39 Right across this variegated theoretical terrain, peace-building is represented as a liberal
project, founded on liberal ideas, pushed forward by a decentralised plurality of institutions
irrespective of the particularity of war-endings and peace agreements, in which global consensus is
counterposed by local dissensus or disorder. Yet for all this trans-theoretical consensus, these shared
emphases within liberal peace- building discourse constitute a questionable foundation for the analysis
of contemporary peacemaking. Again, this is not to suggest that the liberal peace-building literature is
without merit: the critical literature, in particular, provides much compelling evidence of the hubris of
liberal internationalism, of the destruction wrought by World Bank-IMF policies and of the frequent
complicity of peace-building projects in coercive processes of state-building, dispossession and
subjugation. My contention is not that liberal peace- building research is without value, but that the
above parameters are unnecessarily limiting, and can generate significant interpretive errors. To
advance this case, my focus in the remainder of this paper is on the relations between post-conflict
peace-building on the one hand, and peace agreements and their negotiation on the other. What this
will reveal is that peace-building is neither a discrete sphere of action, nor the dominant element within
contemporary peace processes; that states, strategy and geopolitics continue, as ever, to be crucial
determinants of these processes; and that the influence of liberalism, and the degree of global
consensus over the liberal peace, are significantly overstated within liberal peace- building discourse.
We start by considering one
Biopolitical control is no longer a problem
Jonathan Short, 2005, Jonathan, Ph.D. candidate in the Graduate Programme in Social & Political
Thought, York University, “Life and Law: Agamben and Foucault on Governmentality and Sovereignty,”
Journal for the Arts, Sciences and Technology, Vol. 3, No. 1
Adding to the dangerousness of this logic of control, however, is that while there is a crisis of
undecidability in the domain of life, it corresponds to a similar crisis at the level of law and the
national state. It should be noted here that despite the new forms of biopolitical control in operation
today, Rose believes that bio-politics has become generally less dangerous in recent times than even in
the early part of the last century. At that time, bio- politics was linked to the project of the expanding
national state in his opinion. In disciplinary-pastoral society, bio-politics involved a process of social
selection of those characteristics thought useful to the nationalist project. Hence, according to Rose,
"once each life has a value which may be calculated, and some lives have less value than others, such
a politics has the obligation to exercise this judgement in the name of the race or the nation" (2001:
3). Disciplinary-pastoral bio- politics sets itself the task of eliminating "differences coded as defects",
and in pursuit of this goal the most horrible programs of eugenics, forced sterilization, and outright
extermination, were enacted (ibid.: 3). If Rose is more optimistic about bio-politics in 'advanced liberal'
societies, it is because this notion of 'national fitness', in terms of bio- political competition among
nation-states, has suffered a precipitous decline thanks in large part to a crisis of the perceived unity of
the national state as a viable political project (ibid.: 5). To quote Rose once again, "the idea of 'society'
as a single, if heterogeneous, domain with a national culture, a national population, a national
destiny, co-extensive with a national territory and the powers of a national political government" no
longer serves as premises of state policy (ibid.: 5). Drawing on a sequential reading of Foucault's theory
of the governmentalization of the state here, Rose claims that the territorial state, the primary
institution of enclosure, has become subject to fragmentation along a number of lines. National culture
has given way to cultural pluralism; national identity has been overshadowed by a diverse cluster of
identifications, many of them transcending the national territory on which they take place, while the
same pluralization has affected the once singular conception of community (ibid.: 5). Under these
conditions, Rose argues, the bio-political programmes of the molar enclosure known as the nation-state
have fallen into disrepute and have been all but abandoned.