Thursday, April 26, 2012

The Biopolitical Ramifications of Law

As I indicated at the end of my last post, I have yet to address the problem of what differentiates law from other modern social institutions. All modern institutions employ a complex of ideologies that include positivism, social contract ideology and the ideology of progress. All are bureaucratically organized and proliferate written records. All, in some way or another, operate according to a governmental-technocratic logic. What, then, makes law “law”?

I would say that, in this regard, the primary characteristic of law is its access to the means of “legitimate” state violence. What differentiates law from, say, the institutional domain of public health is that legal institutions can actually force payments, define citizenship, imprison, and in some cases, sentence to death. And to the extent that other institutions can do any of those things, they are already entwined with legal processes (e.g. the IRS). If modern social formations may be viewed as a network of overlapping and interacting institutional domains, then law is the nexus between these domains and the means of violence and coercion (the police, the prison system, etc.). This gives law the dual property of being governmental (bureaucratic/ideological) as well as coercive.

In the scheme that distinguishes sovereignty (as a primarily negative, destructive force) and government (as a positive, productive form of power), law is where the two meet. For this reason, law should be an extremely important topic for critical analysis, as it could potentially illuminate the relationship among different forms of power in the modern world. Yet, sadly, I believe the sort of analysis that is needed is sorely lacking. Foucault lent his deconstructive lens to this field, yet was unable to account adequately for the coercive power of sovereignty. Many Marxists, on the other hand, focus too exclusively on coercion, blinding themselves to the importance of governmentality. Giorgio Agamben made some attempt to bring the two together, with his elaboration of the concept of biopower. Yet, in the end, his arguments are more tautological than historical. In some cases they seem to be mere contorted regurgitations of Foucault.

The real question is, how do the utility of violence/coercion and the desire for progress/productivity intersect? Once again, capitalism may provide a theoretical underpinning. Productivity, under capitalism, depends on exploitation (a form of coercion). At the same time, it relies on human labor power and creativity (technological innovation). Thus, one of the fundamental contradictions of capitalism comes to play in (though, does not reductively give rise to) this tension: the tendency to objectify and restrain human beings in order to exploit their capabilities versus the tendency to look for economic advancement and technological progress in a healthy, skilled workforce by promoting those capabilities.

One lesson that law should teach us is that the “legitimacy” of violence requires a strong ideological foundation, which the ideologies of progress and social contract, and the positivistic rationality in which it is embedded, provides. The legitimacy of violence, and hence sovereignty, was erected on an entirely different ideological plane prior to the modern era (for instance, with recourse to the divine). Thus, one cannot say that sovereignty is merely historically prior to governmentality (as Foucault does), that governmentality was sort of “added on” and has become more important. Both, as they exist in the modern world, are fully modern, emerged together, and are interdependent.

Likewise, it is not the case, as Agamben suggests, that life itself (zoe) has come to be a political concern more than in the past. The meaning of life itself is completely different in the modern era. Life is the basis of profit, the vehicle of a consciousness that can create technology and cultural productions, the interchangeable units that fill bureaucratic roles, a thing that is sacred above everything else and yet may be sacrificed for the common good (be that the “spread of democracy” or science or medical progress) – in other words, another subject of cost-benefit analysis. Life is, above all, both the means of progress and the intended end result – the sort of circular reasoning that justifies the entire ideology.

In this way, it may be said that sovereignty and governmental in the modern era are mutually constituting (though this relationship needs to be fleshed out more fully).  Government provides the ideological rationale that legitimizes violence, while sovereignty gives governmental projects some teeth.  Both simultaneously serve their own, independent ends:  one restrictive and self-serving, the other positive and life-affirming.  But it is law that holds them in relation to each another.

Finally, the discourses of law and its coercive resources are used to define who may be involved in governmental and economic projects, and in what ways. That is not to say that reformist ventures are confined to target people with full citizenship status and rights. To the contrary, people who are attributed the status of "criminal" or "insane," or other types of social deviance, are functionally not full citizens (not enjoying all the rights of citizenship) yet are the subjects of much institutional reformist activity. Likewise, services are often extended to people of different types of immigrant and refugee status, but frequently the status of their citizenship itself is the basis of the governmental "care" that they receive. On the other hand, people who cannot acquire full citizenship status all too often "slip through the cracks" and become invisible to the governmental-technocratic systems that seek to cultivate health and happiness. Just as, ideologically, the ability to exercise rights depends on one's citizenship status in relation to particular nation states, so does one's integration into the governmental matrix follow from this legally defined status. Of course, at the extreme, coercive forces sanctioned by law may be used to deport or detain people on the basis of their citizenship status.

It is clear, then, that law is more than ideology, more than a set of rules, and more than a basic form inhering in commodity exchange relationships. It is a type of practice (or rather, set of practices, including both violence and rational administration) by which modern society is organized as well as the rational/philosophical justification for those practices.

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