Before the Law: Animals in a Biopolitical Context
Cary Wolfe

Law, Culture and the Humanities 6(1) 8–23 © The Author(s) 2010 Reprints and permission: http://www. DOI: 10.1177/1743872109348986

Department of English, Rice University, Houston

Using examples such as factory farming and the recent decision by the Spanish Parliament to grant fundamental rights to great apes, this commentary explores the extent to which our current legal frameworks (including the legal discourse of “rights”) provide satisfactory responses to the question of justice for non-human animals. After briefly sketching appeals to the rights model (both pro and con) for non-human animals in legal pragmatism and in animal rights philosophy, I turn to recent work in biopolitical theory to rearticulate not just the ethical but also the political status of our treatment of non-human animals.

animal ethics; animal rights; anthropocentrism; biopolitics; sovereignty; species.

On June 25 2008, the Environmental Committee of the Spanish Parliament approved resolutions to grant basic rights to Great Apes on the model of The Great Ape Project co-authored by philosophers Peter Singer and Paola Cavalieri. The three basic rights outlined for this new “community of equals” in their co-authored project are (1) ‘‘The Right to Life,” which means that “members of the community may not be killed except in very strictly defined circumstances” such as self-defense; (2) ‘‘The Protection of Individual Liberty,” which forbids imprisonment “without due process” and only where it can be shown to be “for their own good, or necessary to protect the public”; and (3) ‘‘The Prohibition of Torture,” which forbids “the deliberate infliction of severe pain on a member of the community.”1 The resolutions—which, according to major news services, are expected to pass into Spanish law within a year—would in practical terms forbid harmful experiments on great apes and
1. Paola Cavalieri and Peter Singer, eds. The Great Ape Project: Equality Beyond Humanity (New York: St. Martin’s Press, 1993), p. 4.
Corresponding author: Cary Wolfe, Bruce and Elizabeth Dunlevie Professor of English, Department of English, MS-30, Rice University, Houston TX 77215–1892. E-mail:

” in Animal Rights: Current Debates and New Directions. and Pragmatic Perspectives. Cass R. Richard A. Nussbaum (New York: Oxford University Press. or Subjects. and perhaps our desire. Posner. On one side. 158. Epstein. 2004). in its way.” he argues. . but also with the political status of how we treat them in and through material practices and dispositifs that are of a piece with biopolitics in its specifically modern form. continue to rely upon a speciesist (or better. He grounds his position in what he regards as a well-justified speciesism: “The root of our discontent. ‘‘Spanish Parliament to Extend Rights to Apes. emotional. p. Sunstein and Martha C. The roughly 315 great apes in Spanish zoos would remain there. 57. p. 3. anthropocentric) model of subjectivity in its criteria for determining which beings deserve rights. Martin Roberts. p.reuters. believes that we should continue to treat animals as property.Wolfe 9 keeping them in captivity for circuses. Cass Sunstein. 155. and Posthumanist Theory (Chicago: University of Chicago Press. Cass R.’’ Reuters News Service Web Site(http://www. 6. chapter one. 2008. not persons (even in some limited sense). filming. Unhappily but insistently. 4. Epstein. having the usual human capacities. the collective we is prepared to do just that. “is that in the end we have to separate ourselves from (the rest of) nature from which we evolved. The Discourse of Species. of Rights. See my Animal Rites: American Culture.” he writes.”3 And Posner holds that “the best approach to the question of animal rights is a humancentric one” that eschews “philosophical argument. and so make a poor fit with the needs and interests of animals. Posner. and argues that we should work to minimize harm to animals as long as it does not compromise human gains. as I will suggest later. June 25. “have been designed to serve the needs and interests of human beings. I think we can all agree. but supporters of the bill say that it would mandate improved conditions in about 70 percent of those situations. Richard A. ed. recent work in biopolitics and biophilosophy throws into striking relief the limitations of legal and political liberalism and its grounding philosophical assumptions for coming to terms not only with the ethical and legal status of non-human animals. esp. “Animals as Objects. does. Epstein. But even within the limited context of prevailing legal doctrine. has become more and more pressing as we have learned more and more about the richness and complexity of their mental. there is considerable disagreement about the satisfactoriness of the “rights” framework for protecting the ethical standing of non-humans.2 The extent to which the Spanish Parliament’s decision constitutes a satisfactory response to the problem of the ethical standing of (at least some) non-human animals—a problem that. 5. Sunstein and Martha C. and social lives—is one that will eventually push us in this essay well beyond the purview of current legal doctrine. and Richard Epstein. perhaps. who believe that the adaptation of the rights model to animals is fundamentally wrong-headed. and the like.”4 “Legal rights. in spite of itself. for example. 51. Such is our lot.” in Animal Rights: Current Debates and New Directions. Philosophical. “Animal Rights: Legal.6 And I think Posner is right that “there is a sad poverty of 2. as human beings. 2003). 2004). Nussbaum (New York: Oxford University Press. In fact. p. we find legal theorists such as Richard Posner.”5 I agree with Epstein about a point I have argued in some detail elsewhere: that animal rights philosophy.

Cavalieri. and legal scholars such as Steven M. 2004).’ which appear to be just as much a brute fact about human beings as a preference for our own species? Here is one example: ‘We must be honest. People will clamor for those tests. why should it not also be used to support other preferences for ‘our own. apart from that it does not interest me.. 2001). “Ethics Beyond Species and Beyond Instincts: A Response to Richard Posner. wholly subordinates the question of rights to economic utility and political expediency. Tom Regan. What happens to the Russians. 17. 8. It will not happen. decent. what happens to the Czechs. and it should not happen. 87.. The conventional rights bearers are with minor exceptions actual and potential voters and economic actors. a theory such as Posner’s “takes one’s moral breath away .”10 Such positions are easily disposed of. 10. In Regan’s words. .’” Peter Singer. p. and Tom Regan. He goes on to say. “The Case for Animal Rights. loyal. Cass R.” in In Defense of Animals. 157. 58. ‘Whether the other races live in comfort or perish of hunger interest me only insofar as we need them as slaves for our culture. for example. p. Animals do not fit this description. Posner. Nussbaum (New York: Oxford University Press. there would be nothing wrong with apartheid in South Africa if few white South Africans were upset by it. 9. ed.10 Law. ed. p. holding that “legal rights are instruments for securing the liberties that are necessary if a democratic system of government is to provide a workable framework for social order and prosperity. in my view. Wise and Gary Francione—that positions like Posner’s and Epstein’s rely upon a thoroughgoing ethnocentrism thinly disguised (and sometimes not disguised at all) as a hard-nosed legal pragmatism giving “straight talk” to the airy philosophers (such as Singer) or those overly influenced by them (such as Wise). Though Singer’s Animal Liberation and Regan’s The Case for Animal Rights are more wellknown—indeed.”11 As Singer rightly observes. Epstein. Posner. for adapting the rights framework to (at least some) non-human animals.8 Posner. p. is a matter of utter indifference to me. pp. 1985). Culture and the Humanities 6(1) imagination in an approach to animal protection that can think of it only on the model of the civil rights movement. and friendly to members of our blood and no one else. as Singer disposes of Posner’s in an exchange in the collection Animal Rights: Current Debates and New Directions from which I’ve been quoting—an exchange that continues a contretemps originally published in the online magazine Slate. within analytic philosophy. 7. that provides the most compelling argument. for example.’ The speaker is Heinrich Himmler. 11. An animal right to bodily integrity would stop that movement in its tracks. they are the founding philosophical texts of the animal rights movement—it is probably Cavalieri’s The Animal Question: Why Nonhuman Animals Deserve Human Rights (New York: Oxford University Press.. 57–8. Sunstein and Martha C..”7 But I would also agree with those at the other end of the animal rights argument–philosophers such as Singer.”9 Epstein is even more bald in his deployment of what Regan has called the “might makes right” position: “Let it be shown that the only way to develop an AIDS vaccine that would save thousands of lives is through painful or lethal tests on chimpanzees. as if.” in Animal Rights: Current Debates and New Directions.. Peter Singer (New York: Harper and Row. Singer zeroes in on Posner’s contention that “I believe that ethical argument is and should be powerless against tenacious moral instincts” and offers his version of Regan’s charge in the Slate reply: “If this supports our current treatment of animals.

2004). the killing of animals for consumption. 59. and the Law: A Modern American Fable. 15. law. While Derrida is “on principle sympathetic with those who .” and like Epstein he suggests that what we mainly need is more vigorous attention to and enforcement of laws that prevent “gratuitous cruelty. product testing. in that same collection. such anti-cruelty laws do not even apply to the overwhelming majority of animals used in biomedical research. to communicate. p. pp.17 As even this brief sketch suggests. explicitly excludes birds. the US Animal Welfare Act of 1966. at least it blocks some truly egregious practices without any real human gain.”12 As for the pragmatics of its “pragmatism. 59. mice. Singer. and rats— that is to say.Wolfe 11 “Posner’s pragmatism turns out to be an undefended and indefensible form of selective moral conservatism. have good reasons to rise up against the way animals are treated: in industrial production. because (as is commonly known). gory lust to one side. 162–3. Posner. 87. such as Jacques Derrida and Cora Diamond. like Epstein. Wolfson and Mariann Sullivan. one might well conclude that we find a growing disjunction between existing legal doctrine and the question of justice for (at least some) non-human animals. because people tend to protect what they own. the vast majority—easily several billion—spend their entire short lives in factory farming conditions that range from brutal to horrendous. then.” the Posner/Epstein line fares no better. and animals that I’ve just sketched all too briefly. Sunstein and Martha C. many philosophers..”15 for as Singer points out. Posner. “Drawing Lines.. 13.”13 In a similar vein. 90. 156. For a brief overview. Epstein argues that “it is of course pretty straightforward to pass and enforce a general statute that forbids cruelty to animals. to engage in complex forms of social behavior and bonding) increases dramatically every year. as it routinely does.” because we know that of the ten billion animals raised for food in the United States each year. Against what Posner calls “the liberating potential of commodification. have attempted to move beyond existing legal frameworks and their philosophical underpinnings in an effort to revisit and articulate anew the conversations about justice. factory farming. p. Posner. about 90 percent of the animals used in such research. “Foxes in the Hen House: Animals.” in Animal Rights: Current Debates and New Directions. 16. David J. Agribusiness. Cass R.”14 But Epstein’s contention only gives the lie to Posner’s insistence that few of us are “so indifferent to animal suffering. Not surprisingly. 17. and the like. see James Rachels. Epstein. 12.” pp. 205–233. that we are unwilling to incur at least modest costs to prevent cruelty to animals. ed. anticruelty laws do not apply to the case where the largest amount of animal suffering by far takes place—namely. as amended under the Senate leadership of Jesse Helms in 2002.” Singer points out that “we don’t have to wonder how many animals suffer and die because they are someone’s property. p. Nussbaum (New York: Oxford University Press. suggests that “one way to protect animals is to make them property. p. Even if cruelty is narrowly defined so as to exclude. For an excellent detailed discussion of current law and enforcement as it pertains to factory farming. even as our knowledge about their ethically relevant characteristics and capacities (to suffer. Singer. see.16 Indeed. p. . 14.

1–41. Cora Diamond. and Cary Wolfe. whose rights are without duty. subject.’ It’s the very concept of right that will have to be ‘rethought. Derrida and Roudinesco.”19 “It is within this philosophico-juridical space that the modern violence against animals is practiced. he argues. I don’t think this is a good solution. pp. For Diamond as for Derrida. in the positions of both Posner and Epstein on the rights-holding subject as both citizen and consumer–that very notion of the human subject “will have been the lever of the worse violence carried out against nonhuman living beings.. in experimentation. 2004). in consumption. my essay “Exposures. As Derrida observes.” (74). it seems to me. they are not for all that without a ‘right.” in Stanley Cavell. the kinds of argument it deploys (pro or con). Culture and the Humanities 6(1) in slaughter. .. and slaves. .”20 And so. 21. To be able to acknowledge it at all. On the French distinction between droit and loi. is wounding. Is there any difficulty in seeing why we should not prefer to return to 18. “In general. It is once again a matter of the inherited concepts of the subject. the sovereign self-determination of the subject of law. 64. 65. Derrida and Roudinesco. in the European philosophical tradition. it is our shared vulnerability and finitude as embodied beings that forms the foundation of our compassion and impulse toward justice for animals—a vulnerability that gets “deflected. p.” he nevertheless believes that “it is preferable not to introduce this problematic concerning the relations between humans and animals into the existing juridical framework” by extending some form of human rights to animals. Jeff Fort (Stanford: Stanford University Press. the citizen. “For the moment.’”21 A crucial point of emphasis for Derrida’s articulation of our ethical responsibility to animals is shared by Diamond.” as she puts it.. 212. the vulnerability we share with them. p. is capable not only of panicking one but also of isolating one. let alone as shared. 74. As Diamond puts it. in the presence of what we do to them. and its emphasis on agency. 74. Derrida and Roudinesco. trans.12 Law. Jacques Derrida and Elisabeth Roudinesco. sheer animal vulnerability. and it is one that she finds actively evaded by the rights model. n.. but acknowledging it as shared with other animals.” carries with it exposure to the bodily sense of vulnerability to death.19. pp. . Ian Hacking. consciousness linked with speech. 2008). 74. I have discussed the work of both Derrida and Diamond in greater detail elsewhere. there is no conception of a (finite) subject of law [droit] who is not a subject of duty (Kant sees only two exceptions to this law [loi]: God. Philosophy and Animal Life (New York: Columbia University Press. 20. for example. however much sympathy I may have for a declaration of animal rights that would protect them from human violence. John McDowell. 19. See. For What Tomorrow: A Dialogue.18 This is so. More importantly—and the point is confirmed. see p. by the rights model. etc. But it will eventually be necessary to reconsider the history of this law and to understand that although animals cannot be placed under concepts like citizen. reciprocity. the political subject. The awareness we each have of being a living body. and “that is why. who have duties but no rights). being “alive to the world. p. This vulnerability is capable of panicking us. and the like. we ought to limit ourselves to working out the rules of law [droit] such as they exist.” he continues. Derrida concludes. because “to confer or to recognize rights for ‘animals’ is a surreptitious or implicit way of confirming a certain interpretation of the human subject” that we then extend and retrench when we grant rights to animals.

pp. 2005).” in Stanley Cavell. say. our current legal structures for confronting such questions: namely. 1. the practice of torturing political prisoners). “The Difficulty of Reality and the Difficulty of Philosophy. ethics. to try to think about our ethical obligations to animals by deploying the rights model misses the point. much less endorse. and between the juridical order and life. the Posner version of legal pragmatism that views the law as that which insures the wellbeing of “us” and ours over and against “them” takes on much more ominous overtones—particularly in light of the more and more routine suspension of law by executive fiat. and community we find Posner’s legal pragmatism. p. and State of Exception. which grounds our horror at the brute subjection of the body that they so often endure. Philosophy and Animal Life (New York: Columbia University Press.”25 Against the conjugation of law. 2004). in which the livingness and death of animals enter as facts that we treat as relevant in this or that way. State of Exception. 23. 121.” Instead. p. Carl Elliott (Durham. trans. they are thereby distorted and trivialized”. the context of biopolitics. Cora Diamond.23 To put the question this way is to modulate the discussion of animals. 2001). she argues.: Duke University Press. is fundamental. Kevin Attell (Chicago: University of Chicago Press. 74.Wolfe 13 moral debate. but with how much he or she gets compared to other participants in the system. Here too. N. Ian Hacking. Kevin Attell (Chicago: University of Chicago Press. Medicine.24 In the immediate post-9/11 context in which Butler’s book was written and to which it responds. Butler asserts that the fundamental question 22. trans. trans. ed. Cora Diamond. or–to take a rather different example–in Judith Butler’s recent text Precarious Life: The Powers of Mourning and Violence. this is so. not with evil done to a person. the question of the body and embodiment. Cora Diamond. For Diamond. 136. but also because “when genuine issues of justice and injustice are framed in terms of rights. On Agamben. Homo Sacer: Sovereign Power and Bare Life. Daniel Heller-Roazen (Stanford: Stanford University Press. power. and Bioethics. . “Injustice and Animals. Giorgio Agamben. 25. because of “the underlying tie between rights and a system of entitlement that is concerned. The Open: Man and Animal. trans. and Cary Wolfe. and the political and juridical power over life itself. 24. 1998). one that does not take for granted. not as presences that may unseat our reason?22 From this vantage. see. Kevin Attell (Stanford: Stanford University Press. 2005). what is crucial to our sense of the injustice done to animals is the embodiment and vulnerability we share with them. the increasingly regularized declaration of a “state of exception” so well analyzed by Agamben. not just because the question is thicker and more profound than the thin if-P-then-Q propositions of a certain style of analytic philosophy. 2008). John McDowell.C. Diamond thinks. that establishes a “no-man’s land between public law and political fact.” in Slow Cures and Bad Philosophers: Essays on Wittgenstein. among others. as in a suite of works by Italian philosopher Giorgio Agamben devoted to the distinction (drawn from Aristotle) between bios (or political being) and zoe (usually translated as “bare life’’). and law into a different register. the “horror of the conceptualizing of animals as putting nothing in the way of their use as mere stuff” depends upon “a comparable horror at human relentlessness and pitilessness in the exercise of power” toward other human beings (in.

if we believe Derrida. and (2) that her notion of subjectivity—and this is a directly related point—remains too committed to the primacy of “agency” for ethical standing (whereas a crucial aspect of taking “embodiment” seriously.’” a community of those who deserve ethical consideration by virtue of their embodied vulnerability and exposure. runs aground precisely on the question of non-human beings. but only to thrust upon her the problem of a reciprocity model of ethics. why should the dangers and vulnerabilities that accrue from the fact of embodiment be limited to a “common human vulnerability?” Why shouldn’t non-human lives “count as grievable lives. Culture and the Humanities 6(1) that needs to be reopened in the current political context is “Whose lives count as lives? And finally. 26. 21–34. is that it subverts the overly-hasty association of subjectivity with agency).” she asks. After all. 26. that Butler’s effort (whose impulses I admire and share). opens up another kind of normative aspiration within the field of politics.” This is not so. 28. Butler.” particularly since (as is common knowledge) many millions of people grieve. the key problems seem to be (1) that Butler’s notion of ethics and of community remains tied to a “reciprocity” model.14 Law. her refutation of the charge that “I may seem to be positing a new basis for humanism. physically dependent on another. along the lines of Heidegger’s existential of “beingtoward-death” (which Derrida has convincingly critiqued. physically vulnerable to one another?”27 “From where. for their lost animal companions? (I will leave aside for the moment the even more complicated point that at least some non-human animals—elephants and great apes.” Hence “it follows that vulnerability is fundamentally dependent on existing norms of recognition if it is to be attributed to any human subject” (pp. in connection with the human/animal dichotomy). . 27. 42–3). if not from an apprehension of a common human vulnerability?”28 Yet it is precisely here. because “a vulnerability must be perceived and recognized in order to come into play in an ethical encounter. I think. as I am about to discuss.” she asks. “in which the place of the body . for example—apparently grieve over the loss of those close to them. Judith Butler. the perhaps expected one: that animals have an ontologically and existentially different relationship to their finitude than we do. but the problem is not.” she continues.30 Rather.29 In fact. pp.” and “when a vulnerability is recognized. What makes for a grievable life? Despite our differences in location and history. and grieve deeply. to my mind.” to “consider the demands that are imposed upon us by living in a world of beings who are. in any event. 27. p. I think.” esp. I discuss this matter in some detail in “Exposures. This exempts Butler from the Heideggerian humanism problem. Butler is at pains to separate herself from such an ontology in many of her key theoretical and methodological commitments. 21. Precarious Life: The Powers of Mourning and Violence (London: Verso. 29. by definition. whose extreme form would be the contractualism of John Rawls. See. 2004).26 “Is there a way.. pp. she argues. 30. for example.) The reasons for this lacuna in Butler’s text are complex.. “my guess is that it is possible to appeal to a ‘we. and I won’t be able to fully explore them in the confines of this commentary. 30. Butler. that recognition has the power to change the meaning and structure of the vulnerability itself. “might a principle emerge by which we vow to protect others from the kinds of violence we have suffered. p.

34.”33 But equating ethical standing with moral agents and not moral patients is. in different ways. precisely when we think that others have taken themselves out of the human community as we know it. pp. On moral agents vs. as I have argued in some detail elsewhere. or to brutality. if you like–of its own mortality. Such an act is freely given. is its underlying assumption about who can be party to an ethical relationship.” as Butler puts it. outside any model of reciprocity and exchange which easily eventuates in the sort of position enunciated earlier by Posner. and perhaps no hope. esp. in my view. 33.35 One might think that Butler’s invocation in the last section of her book of Levinas—whose model of ethics is not one of reciprocity but rather of being held “hostage” to the Other in an ethical debt that one can never meet–might mitigate against such a charge. it “requires that each partner in the exchange recognize not only that the other needs and deserves recognition. 35. pp. 44.”32 And yet her primary examples of vulnerable subjects—newborn infants. Butler. See my “Postmodern Ethics. 29–30. Butler. to be the defining feature of the human” (89–90). and others that the truly ethical act is one that is directed toward the moral patient from whom there is no expectation. by Singer. who can (to use Levinasian language) hear its “call. 31. and Posthumanist Theory.” if “we cannot recover the source of this 31. of course. Zygmunt Bauman. Butler. “with life itself. the Question of the Animal.. we might linger over Butler’s contention that “when we are speaking about the ‘subject’ we are not always speaking about an individual: we are speaking about a model for agency and intelligibility. But the problem with Butler’s position. the same requirement. We make a mistake.” In Levinas.” of “bodies given over to nothing. ever. and the Imperatives of Posthumanist Theory. see Cavalieri. but also that each.. . in a different way. This means that we are not separate identities in the struggle for recognition but are already involved in a reciprocal exchange . as we know. p. and Cavalieri.34 Indeed. Regan. of abandonment or violence or starvation.” and the animal has no face because it has no awareness—no concept.. 194–99. The closest that Butler comes to this position is her contention that ‘‘Whether or not we continue to enforce a universal conception of human rights at moments of outrage and incomprehension.. if we take a single definition of the human. or a single model of rationality. as in her contention that “primary vulnerability” is a “condition of being laid bare from the start and with which we cannot argue. striving for recognition. is compelled by the same need. p.” a “primary scene . or to no sustenance. as with Levinas’. a hallmark of the reciprocity model whose most ossified form is Rawlsian contractualism (whose limits have been convincingly critiqued. for example—have to do not with moral agents (those whose behavior is subject to moral evaluation) but with moral patients (those whose treatment is). moral patients. is a test of our very humanity. I would agree with Derrida. But if the embodied vulnerability that subtends all agency “emerges. of reciprocity. therefore.Wolfe 15 As for the first (the reciprocity model).”31 But what about those members of the community who aren’t striving for recognition but nevertheless should have standing? On the second point. 32. 45. the Discourse of Species.” the conclusion to Animal Rites: American Culture. and allows us to see that community itself requires the recognition that we are all. p. among others). such relations concern only those with a “Face.

such a dehumanization via animalization will be readily available for deployment against whatever body that happens to fall outside the ethnocentric “we. p. Bios: Biopolitics and Philosophy. the limitations of the “rights” model for recognizing our relations to non-human others ought to be clear enough because it forestalls. p. because biopolitics originates precisely in these political categories. Timothy Campbell (Minneapolis: University of Minnesota Press.” So when Butler calls for “a politics that seeks to recognize the sanctity of life. 37. “going beyond a semantics of the person that has been represented from the origin of our culture in its juridical status (at least insofar as the law was and continues to function in relation to the intangible individuality of the person).16 Law. it is simply to suggest that Butler’s own theoretical coordinates ought to compel an understanding that the ham-fisted distinction of “human” versus “animal” is of no use in drawing it. Butler. illegitimate.”40 In the three-volume sequence of which Bios is the third installment. by definition..” I believe she needs to expand her call across species lines. p. 39. Esposito. simply because that very question has been linked decisively with the deployment of the human/animal distinction as a crucial site for modern biopolitics by the very searching investigations of Agamben and the scholar to whom I now want to turn for the remainder of this discussion. I cannot possibly retrace here the intricacies of Esposito’s analysis in his book Bios: Biopolitics and Philosophy. as long as the automatic exclusion of animals from ethical standing remains intact simply because of their species. trans. 2008). she would need to move away from the centrality of reciprocity and agency to ethical and political standing that we find in Precarious Life. of all lives. Italian political philosopher Roberto Esposito.”37 But as I have argued in detail elsewhere. Roberto Esposito.38 This is not to offer any specific advice for the moment about “line drawing” with regard to membership in the moral community (a point I’ll return to later). to declare the human/animal distinction irrelevant. Esposito sets himself the task of trying to understand the relationship between biopolitics—which entails “a growing superimposition between the domain of power or of law [diritto] and that of 36. for example.”39 In this light. 91. Culture and the Humanities 6(1) vulnerability’’ that “precedes the formation of the ‘I. p.. before it rebels against them. The fundamental conflict in Butler’s position is underscored all the more by her focus in Precarious Life on the question of Jewish identity and anti-Semitism. 40. . 104. p. 38. but it nonetheless provides a perfect context in which to revisit the decision by the Spanish Parliament with which I opened this essay.’”—that is to say. if not dubiously human. Esposito insists that “contemporary thought cannot fool itself (as still happens today) in belatedly defending modern political categories that have been shaken and overturned . Butler. to such a call. if our finitude is radical precisely because it has no concept–then it is not clear why this does not entail non-human as well as human ethical standing. 31. Butler. but to do so.36 I agree completely with Butler that “dehumanization becomes the condition for the production of the human to the extent that a ‘Western’ civilization defines itself over and against a population understood as. 11. 194. strictly speaking.

nor is it that sovereign body of nations. legality and legitimacy.. and it. Esposito. 45.” and so on—“the body that experiences ever more intensely the indistinction between power and life is no longer that of the individual. man remained what he was for Aristotle: a living animal with the additional capacity for a political existence. one that derives canonically from Michel Foucault’s later work. but rather their subjugation at the same time to a specific juridical and political order.. the better to extend and consolidate political power. in which—because of globalization. but that body of the world that is both torn and unified” by virtue of its being “completely globalized. of course. democracy (or. p. the dialectic that up until a certain stage we have named with the terms of liberty. 46. p. Esposito. 1975–76. Qtd. and norm and exception finds its unity in the same regime of sense. Correspondingly. directing. ed. as he observes. and the rise of the various “health” professions under the broader regime of “governmentality” and its specifically modern techniques of managing. we find a key element of the contemporary political landscape—the “radical transformation of the idea of humanitas”–that escapes the very political and legal concepts inherited from modernity. “Society Must Be Defended”: Lectures at the Collège de France. Foucault also allows us to see that for biopolitics “what is in question is no longer the distribution of power or its subordination to the law. nuclear threat. the post 9/11 “war on terror. force. biopolitics “is the power to make live. modern man is an animal whose politics places his existence as a living being in question. p. 33. food sciences and so on. In this way.Wolfe 17 life”– and modernity. but something that precedes it because it pertains to its ‘primary material.” 46 Here.) Foucault’s insight has enormous resonance for our own moment. Esposito.”42 Moreover. Esposito. 26. madness. equality. as Esposito puts it. the sovereign can only dominate on the basis of the right that legitimates the whole operation. tyranny. “that of regulating relations between subjects or between them and power. 29. in contrast. David Macey.41 Foucault famously argues in The History of Sexuality that “for millennia. p.”43 Foucault’s insight is to see that the “real mechanism” by which sovereignty functions is not. global climate change. Mauro Bertani and Alessandro Fontana (New York: Picador. 42. Sovereignty took life and let live. Esposito. population sciences. rights will emerge as nothing other than the instrument that the sovereign uses for imposing his own domination. and domination)—Foucault’s analysis uncovers in bios the concrete power from which these terms originate and toward which they are directed. p. 43. what appeared as split in an alternative bipolarity between law and power. nor the kind of regime nor the consensus that is obtained.”45 (As is well known. consists in making live and letting die. trans. on the contrary. and enhancing the lives of populations via hygiene. Foucault’s main examples are medicine. And now we have the emergence of a power that I would call the power of regularization. 7. 44. 247. Michel Foucault. “Presumed for centuries as what places human beings [gli uomini] above the simple common life of other living species (and therefore charged 41.’ Behind . p. 2003). 11. On the one side.”44 In addition to articulating the real formal mechanism by which rights are related to sovereignty. .

49. Agamben’s well-known discussion of bios and zoe). in a single “immunitary” mechanism that. Esposito observes (rewriting Foucault’s genealogy of the “subject”). what is involved is the exposure of how that distinction simultaneously masks and makes possible the more fundamental operations of modern politics by means of what Agamben calls “the anthropological machine.’ but also that of the relation with its ‘post. pp. p. 53. a tear.. even as it seeks to protect life. Presented as the discovery and the implementation of the subject’s autonomy. Esposito. The Open. “if communitas is that relation. First. Agamben. Culture and the Humanities 6(1) with a political value).18 Law. 75. 42. on the contrary. 52. humanitas increasingly comes to adhere to its own biological material. not “a historical fact and an anomaly belonging to the past. which each time decides upon and recomposes the conflict between man and animal. individualism in reality functions as the immunitary ideologeme through which modern sovereignty implements the protection of life. 50. immunitas is the condition of dispensation from such an obligation and therefore the defense against the expropriating features of communitas. 4. What is involved here (to stay with Agamben’s terms for a moment more) is not so much the “animalization” of human populations but rather the entry of the human/animal distinction into what Agamben and Esposito will characterize as a “zone of indeterminacy. p. for example. p. emphasis added. Esposito. in light of whose concept of sovereignty “the real biopolitical function that modern individualism performs is made clear. From this vantage. Foucault never really settles on whether biopolitics is specifically modern or is only intensified in the modern period in relation to the paradigm of sovereignty. But once it is reduced to its pure vital substance and for that reason removed from every juridical-political form.”51 Such a paradigm can be traced to Hobbes. p. it revisits the question raised powerfully by Agamben’s work: are the Nazi death camps in fact the ur-form of modern biopolitics laid bare. a surplus in which the mechanism of biopower broke free .” but rather “the hidden matrix and nomos of the political space in which we are 47. 51. which raises “the question of the relation of modernity with its ‘pre. Esposito. also constantly threatens to take life. Foucault’s analysis leaves us with two main problems. p.’ What was twentieth-century totalitarianism with respect to the society that preceded it? Was it a limit. 50. Esposito. Esposito argues. Agamben. p. Esposito. it oscillates between an affirmative and a negative (or “thanatological”) sense of biopolitics—either “a politics of life or a politics over life”50—without being able to see that they are joined. 48. the humanity of man remains necessarily exposed to what both saves and annihilates it”47 (as in. 37. First. . or. The Open. as Esposito wants to argue. was it society’s sole and natural outcome?”53 It is at this juncture that Esposito’s brilliant analysis of Nazism opens a few crucial avenues for understanding the place of the animal in a biopolitical context.. 60–1. however. Esposito attempts to bring this question to a head specifically on the terrain of his analysis of Nazism. he argues. jeopardizes individual identity.”49 For Esposito. which in binding its members to an obligation of reciprocal donation. 32.”48 Or rather.”52 Secondly.

55. to heat. has characterized as the “Holocaust” visited upon animal life in ways unknown previously in history–in factory farming. this means that if those interned in the extermination camps had been considered to be only animals. . some animals (those we call “pets”) are so well cared for that the pet care industry in the US grew in total expenditures from 17 billion dollars in 1994 to nearly 36 billion dollars in 2005. n. who are to be killed.12. In our own moment. of course) Esposito’s analysis of the Nazis suggests that the mainspring of Nazi genocide cannot exactly be said to be the “animalization” pure and simple of the Jews and other victims: More than “bestializing” man.fetchpetcare. Statistics provided by American Pet Products Manufacturer’s Association.58 And as any owner of a companion animal will tell you. He who was the object of persecution and extreme violence wasn’t simply an animal (which was indeed respected and protected as such by one of the most advanced pieces of legislation of the entire world). [T]he regime promulgated a circular that prohibited any kind of cruelty to animals. but was an animal-man. Considering the zeal with which the Nazis respected their own laws. Esposito. the “animalization” of human populations. and to the inoculation of pathogenic germs. See in this connection Esposito’s adjacent observations about the extraordinary development of the field of anthropology in Germany at the end of the 19th century and beginning of the 20th.. 57. Singer. upon how we understand not just the ethical but also the political status of what Derrida (among others). p. 56. they would have been saved. in the sense that it is precisely the deaths of the latter that enable and authorize the survival of the former. and that more essential function of establishing a direct relation between the two conditions. Esposito’s immunitary paradigm moves beyond both Agamben and Foucault in arguing that “once racism has been inscribed in the practices of biopolitics. pp. and the Nazis routinely conducted painful and even brutal experiments on animals such as primates57–his analysis does have the virtue of complicating our understanding of the relationship between the human/animal distinction and the bios/zoe doublet of biopolitics. as is commonly thought. enlarging the definition of anthropos to the point where it also comprised animals of inferior species.Wolfe 19 still living”?54 How we address this question bears crucially. and how. Agamben. Esposito. www. the immediate intellectual context for the rise of Nazism. 2008. last visited September 10. . 110. meat-eating went on as usual under the Nazi regime. the analysis of Nazism is crucial in disclosing the central function of race in modern biopolitics in its thanatological declension. as we will see in a moment.”55 Third (and one could point to similar passages in Agamben. Homo Sacer. in particular with reference to cold.56 While Esposito overstates his case here—as Singer points out. it performs a double function: that of producing a separation within the biological continuum between those that need to remain alive and those. and so on. for example. culminating precisely in the 1930s and 1940s—that is to say. [Nazism] “anthropologized’’ the animal. p. Here. 91.. as Agamben has argued. 166. p. com website. the range of veterinary care 54. it is subtended by the human/animal distinction. medical and product testing. 58. Second. conversely. 129–30.

Marie-Louise Mallet. the camp was also the most absolute biopolitical space ever to have been realized. by Esposito’s analysis of the function of the Nazi holocaust within a specifically immunitary logic. emphasis added. It gets more complicated: the annihilation of certain species is indeed in process. we find those who never were members of the community nevertheless afforded at least some minimal protection (as in humane slaughter laws. virtually interminable survival. many of these animals flourish not in spite of the fact that they are animals but because they are animals. In the same abattoirs. 60.60 Derrida is well aware of the complexities of the analogy here. or extermination by gas or by fire. Moreover. The Animal That Therefore I Am. but it is occurring through the organization and exploitation of an artificial. instead of throwing a people into ovens and gas chambers (let’s say) Nazi doctors and geneticists had decided to organize the overproduction and overgeneration of Jews. in the Nazi camps. members of the community. p. for example. now stripped of every legal protection and right by means of the declaration of a “state of exception. p. outside of every presumed norm of a life proper to animals that are thus exterminated by means of their continued existence or even their overpopulation. trans. infernal.61 59. for example).20 Law.” whereas in the factory farm. as we have already discussed. animals in factory farms. . in conditions that previous generations would have judged monstrous. 61. have as horrible a life as one could imagine. and what Esposito’s analysis further discloses is that while the material practices of ruthless. of course. so that. Culture and the Humanities 6(1) available today. gypsies. where he pulls no punches in criticizing “this violence that some would compare to the worst cases of genocide”:59 One should neither abuse the figure of genocide nor too quickly consider it explained away. David Wills (New York: Fordham University Press. At the same time. p. for example). 26. the purposes they serve for the sovereign state are quite different—a fact brought into sharp focus. we find those who had been citizens. that of the imposition of genetic experimentation. industrialized killing in the two cases are very similar. ed. Derrida. As Agamben puts it. Esposito’s analysis of Nazism also helps us revisit the “animal Holocaust” analogy that has been widely used to describe our treatment of animals in factory farming and biomedical testing. As if.” in Foucault’s words–far outstrips what was possible even a decade ago. they could be destined in always increasing numbers for the same hell. “Insofar as its inhabitants were stripped of every political status and wholly reduced to bare life. 26. That is to say. 171). even if those laws are in fact minimally enforced. much of it highly specialized and expensive—the capacity to “make live. in which power confronts nothing but pure life. without any mediation” (Homo Sacer. who are very close to or indeed exceed cats and dogs and other companion animals in the capacities we take to be relevant to ethical standing (the ability to experience pain and suffering. and homosexuals by means of artificial insemination. Jacques Derrida. also because they are animals. 2008). Derrida is particularly forceful on this point in his late work. efficient. being continually more numerous and better fed.

not just in enabling us to honor the suffering in question by paying attention to its particularity. their bare life.. as Charles Patterson points out in his book Eternal Treblinka: Our Treatment of Animals and the Holocaust. 64. that is.65 62. eugenics. but also in allowing us to specify more precisely its political nature in the new context opened up by biopolitics.” In fact. 2008. the only task that still seems to retain some seriousness is the assumption of the burden—and the “total management”—of biological life.Wolfe 21 And in addition.. Indeed. It is not easy to say whether the humanity that has taken upon itself the mandate of the total management of its own animality is still human. The stakes are now different and much higher. Agamben.”62 This is not to say that the “animal Holocaust” is not horrible. 65.64 With regard to this “great task. its non-generic nature in every sense. in the last analysis. since the minimal conditions of genocide agreed upon by most scholars are “(1) that there exists a declared intention on the part of the sovereign state to kill a homogeneous group of persons. Esposito. part of what makes it even more horrible is that it cannot end. our current treatment of animals cannot be said to obey the logic of genocide per se.. Eternal Treblinka: Our Treatment of Animals and the Holocaust (New York: Lantern Books.” it hardly needs pointing out that the practices of modern biopolitics forged themselves in the common subjection and management of the “factical existence” of both humans and animals—not least. 77. 63. involves all its members. (2) that such killing is potentially complete. http://hfa. Humane Farming Association website. since 10 billion animals are raised for food each year in the US. but rather because of its biological constitution. not for economic or political motives. it is manufactured death. 53. as Derrida points out. pp. because they die first of stress. p. who reveals in his autobiography that the inspiration for his assembly-line method came from a visit to a Chicago slaughterhouse and witnessing its disassembly line. 2002). and high-efficiency killing. In fact. Rather than extermination pure and simple. disease. the assembly line processes used to kill Jews in Nazi Germany derived from production models developed by Henry Ford. And on the matter of sheer scale. Faced with this eclipse. 900 million of these animals each year never even make it to the slaughterhouse for their merciful end. 137. in the practices and disciplines of breeding. that is. 72. As Agamben writes in The Open: We completely misunderstand the nature of the great totalitarian experiments of the twentieth century if we see them only as a carrying out of the nineteenth-century nation-states’ last great tasks: nationalism and imperialism. last visited September 8. I think. or injury. that is.html. in the sense of that humanitas which the anthropological machine produced.. p. for it is a question of taking on as a task the very factical existence of peoples. there is no comparison between the two. Charles Patterson. The Open. “American eugenics and assembly-line slaughter crossed the Atlantic Ocean and found fertile ground in Nazi Germany.63 Such distinctions are the vast majority of them in factory farms. (3) that such a group is killed insofar as it is a group. indeed. of the very animality of man.. ..

is never separated from the living roots from which it originates in the form of a splitting between the somatic and psychic levels in which the first is never decided [risolve] in favor of the second. Culture and the Humanities 6(1) But Esposito’s key intervention is to move beyond this thanatological sense of the biopolitical. 180. not just Christian (vs. by reproducing instead. all their humanistic presuppositions. p. ed. Indeed. in turn. not just Aryan (vs. 68. p. . and therefore is not attributable to the form of the individual or of the person. and which can be well regulated by an adjacent set of anti-cruelty laws that do not intersect with politics as such in any fundamental way. Giovanna Borradori (Chicago: University of Chicago Press. Drawing upon both Simondon and Deleuze (which he sees sustaining a certain trajectory of Nietzsche’s work). Esposito writes. in a sense. be it a subject of knowledge.”68 This “preindividual” bios (to use Simondon’s term). will. “Autoimmunity: Real and Symbolic Suicides. Esposito argues. need not automatically reverse itself into the “autoimmune” deficiency critiqued by Derrida and played out in the Nazi treatment of the Jews. we can say that the subject. not only by all the anthropologisms.. Esposito.”69 If we take seriously Esposito’s affirmative biopolitics. at a different level. is that “there is a modality of bios that cannot be inscribed within the borders of the conscious subject. “rather than being imprisoned in the confines of the individual. practices such as factory farming are directly political not just in the sense of embodying a material dispositif that is central to the biopolitical power over life in its modern form. which would see. 69.67 And what this means. but also by the ontological philosophies that presumed to contest them. and insist on an affirmative biopolitics in which the immunitary logic.. Islamic) life—becomes the subject of immunitary protection. see Jacques Derrida. the practices 66. For Derrida’s discussion of the autoimmune paradigm.” in Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida. 192.66 In this new context. animal) life. Jewish) life.22 Law. we are forced to conclude that current practices of factory farming and the like—while crucially different from the logic of the Holocaust and of genocide in the ways I have just noted—constitute not just some embarrassing sideline of modern life that has nothing to do with politics proper. between the animal and the vegetal and between the vegetal and the natural object—the transition is rather more fluid than was imagined. 67. This means that between man and animal—but also. Esposito. opens those confines to an eccentric movement” that (in Deleuze’s words) “traverses men as well as plants and animals independently of the matter of their individuation and the forms of their personality. 2003). such practices must be seen not just as political but as in fact constitutively political for biopolitics in its modern form. . which protects what we used to call “the subject” from the appropriating demands of community. but also because—and more importantly–such a turn away from the thanatological and autoimmunitary logic of biopolitics can only take place. or action as modern philosophy commonly understands it. 194. the Nazi camps as the apotheosis of the modern biopolitical project itself. Esposito. p. Rather. with Agamben. if life as such—not just human (vs.

1992). across actual species lines. trans.” if you like—Esposito’s discussion of Spinoza’s concept of “natural right” in the final pages of Bios is worth revisiting. and instead confront “the biojuridical node between life and norm. while all around us a Holocaust against our other fellow creatures rages on and indeed accelerates. In this connection—as a kind of “answer.”71 As Esposito puts it. but is at a minimum its presupposition. but in another sense. “this is neither the content nor the final sense of biopolitics. Esposito. rev. Esposito’s “preindividual” sense of bios would seem to offer little with regard to how we handle specific cases regarding the legal protection of animals: should great apes be treated the same as mice. one might hope. it might well be seen. for which the secondary distinction between human and animal may be deployed. 70. even if it means the end of homo sapiens itself?70 But Esposito’s affirmative biopolitical turn does have the virtue of reframing our current legal and political norms to enable us to see the irony (if one wants to call it that) of the Spanish Parliament’s decision with which we began: that even as it constitutes a monumental step forward for our relations with non-human animals within the political purview of liberal democracy and its legal framework. Such practices are part of a matrix that takes as its political object planetary life itself. monumental. . foreword J. as necessary. in one sense. 71. For a brief discussion. innoculation. Young (Boston: Shambhala Press. 72. Esposito. It is for this reason that neither a fundamental norm from which all the other norms would derive as a consequence can exist nor a normative criterion upon which exclusionary measures vis-à-vis those deemed abnormal be stabilized” (187). and the like—all for the purposes of maximizing the efficient production of flesh—are on display in the modern factory farm as perhaps nowhere else in biopolitical history. p.. traversing what we now can recognize as a newly expanded community of the living. through the assembly lines developed by Ford. 22–32. as essentially a kind of tokenism in which non-humans “racially” similar enough to us to achieve recognition are protected. pp. as many of the thinkers with whom I began this essay would be the first to point out. dogs the same as carp? Or more bracingly—to recall earlier debates around Deep Ecology and the ethics of “biocentrism”—should anthrax or ebola virus enjoy the same Deleuzean right to creative flourishing as these other life forms. “considering that there are as many multiple individuals as there are infinite modes of the substance means that the norms will be multiplied by a corresponding number. Robert Paolucci. absolutely minimal. As Esposito puts it.”72 Such a shift is. artificial insemination and selective breeding. Of course. of “making live. p. through eugenics. pharmaceutical enhancement. The juridical order as a whole is the product of the plurality of norms and the provisional result of their mutable equilibrium.” recognizing that bios “crosses the entire extension of life without providing a continuous solution—that any thing that lives needs to be thought in the unity of life.Z. ed. they involve the exponential expansion and routinization of mechanisms and logics that extend from the Chicago slaughterhouses of the turn of the twentieth century. Esposito’s summary of Spinoza is indeed worth comparing with the closing pages of Humberto Maturana and Francisco Varela’s The Tree of Knowledge: The Biological Roots of Human Understanding. 194. perhaps.Wolfe 23 of maximizing life. it enables us to see that however we take up those cases. And most important of all. within the biopolitical context opened up by Esposito and others. 194. see my Animal Rites. Framed as a kind of precursor to autopoiesis theory. to the Nazi death camps and back again. we have to begin by abandoning the human/animal distinction altogether.” in Foucault’s words.

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