I recently had an enjoyable day at Lancaster House, chatting to members of the TTAC21 reading group on subjects including drone theory, armed conflict, the Prevent strategy, and the International Court of Human Rights.
As most of the participants were drawn from law departments, it was interesting as a relative ‘outsider’ to get a view on how those in the law discipline view issues such as life, death and sovereign power. One particularly interesting question that cropped up was ‘Is killing the ultimate form of control?’
Unfortunately we didn’t really have time to explore the question during the course of the day, so I thought it useful to gather a few thoughts here to open up some discussion…
A biopolitical background
According to Michel Foucault, ‘biopolitics’ emerged around the second half of the 18th century, as a new form of non-disciplinary power ‘applied not to man-as-body but to the living man, to man-as-living-being; ultimately, if you like, to man-as-species’. This ‘massifying’ effect as he calls it is concerned with ‘control over relations between the human race, or human beings insofar as they are a species, insofar as they are living beings, and their environment, the milieu in which they live’.
In this respect biopolitics represents a shift away from traditional sovereign power as exerted through a sovereign king or queen, and is rather exercised through power structures associated with the State and the operation of what Foucault has referred to as ‘governmentality’. According to Foucault:
The art of government […] is essentially concerned with answering the question of how to introduce economy—that is to say, the correct way of managing individuals, goods, and wealth within the family […] and of making family fortunes prosper
Foucault contrasts his definition with that of sovereignty, for he argues that:
In contrast to sovereignty, government has as its purpose not the act of government itself, but the welfare of the population, the improvement of its condition
For Foucault then, ‘biopolitics’ is very much about managing people, and runs alongside the progress he charts away from the traditional sovereign power of feudal times to a dispersed form that cannot be located to a single point. In this new biopolitics, we move away from a concept of the sovereign as one who can take life or let live, but rather a power to ‘foster life or disallow it to the point of death’.
In the biopolitical State, life is the central objective, and power is not exercised necessarily through the taking of life, but in the way life itself is fostered, and subjects are constituted in power structures that render their lives meaningful and worthwhile. Control here is not so much exercised through the threat of the State killing a citizen subject, but through the threat of danger posed outside the State, and the biopolitical power to promote and foster life that the State is able to exert. People obey not because they are afraid of death, but because they want to live.
To kill or not to kill…
We come then to the question of killing and control. From Foucault’s interpretation of biopolitical power, it would seem self-evident that killing in itself is not and cannot be an effective form of control in the modern (Western) world. Even if we put Foucault’s arguments to one side for a moment there are a number of logical inconsistencies in the argument that equates killing with effective control, especially in the context of controlling a civilian population:
- To kill a subject is to render them no longer able to act on behalf of the State, beyond the memory of their death.
- There are only ever a finite number of members of a State: every death renders the State that little bit weaker.
- Killing is a form of violence that can incite further violence and the possibility of retaliation.
- Killing promotes a culture of rule by fear over rule by consent.
This is not to say I am making an argument against the death penalty per se. I do in fact believe there are certain instances in which the death penalty should be performed (humanely and without the performative element). However for the majority of cases within any given population, killing itself is not an effective means of control. It can only ever incite to further violence while at the same time stripping the State of its fundamental resource: human subjects.
The heart of the problem
Building on the work of Foucault, Gilles Deleuze and Félix Guattari expand upon the concept of biopolitics in their examination of micropolitics and segmentarity. In A Thousand Plateaus the philosophers put desire at the heart of the problem, citing ‘microfascism’ as the reason why ‘desire desires its own repression’:
Only microfascism provides an answer to the global question: Why does desire desire its own repression? The masses certainly do not passively submit to power; nor do they ‘want’ to be repressed, in a kind of masochistic hysteria; nor are they tricked by an ideological lure. Desire is never separable from complex assemblages that necessarily tie into molecular levels, from micro-formations already shaping postures, attitudes, perceptions, expectations, semiotic systems, etc. Desire is never an undifferentiated instinctual energy, but itself results from a highly developed, engineered setup rich in interactions: a whole supple segmentarity that processes molecular energies and potentially gives desire a fascist determination.
By taking Foucault, and expanding his argument with an analysis of the ‘micro-physics’ of power that Foucault occasionally refers to, Deleuze and Guattari provide what is for me, one of the most interesting chapters in critical theory. From this argument, the most effective form of control is not direct control as such, but rather the subtle power structures that make subjects wilfully compliant: that gives desire what Deleuze and Guattari refer to as a ‘fascist determination’. We submit not through any single direct power structure as such, but rather through our own desire to submit and obey – to essentially ‘fit in’. This desire is shaped and honed from birth such that for the most part we don’t even realise we have succumbed to it. Such power doesn’t just make us compliant, it makes us compliant to the point where we don’t even realise we are compliant, and wilfully replicate these same structures without the need for bloodshed and death.
We are less human than we like to think
This leads us then to ask: has the law got it all wrong? In many respects, we are stuck in a paradox – and it is a paradox of our own making. We are constituted as ostensibly ‘individual’ subjects, yet truly singular existence (beyond language) remains forever out of reach.
The law is certainly problematic, for is fundamentally built on the flawed notion of independent, autonomous human behaviour. It constitutes us as individuals rendered such by our irreplaceability and the (flawed) notion of killing as the ultimate form of control – yet all the while there remains the unspoken admission that any general universal law can never account for the infinity of singular cases. In this sense the law is a contradiction, but a contradiction that we all accept, for there remains no better solution. Either we are humans or we are robots, and because we’d all like to think we are humans, killing and the prospect of death will forever remain (in the law at least) the ultimate form of control.
 Michel Foucault, Society Must Be Defended, trans. by David Macey (London: Penguin Books, 2003), p. 242.
 Michel Foucault, Society Must Be Defended, trans. by David Macey (London: Penguin Books, 2003), p. 243–245.
 Michel Foucault, Power, ed. by James D. Faubion, trans. by Robert Hurley et al (London: Penguin Books, 2000), p. 207.
 Michel Foucault, Power, ed. by James D. Faubion, trans. by Robert Hurley et al (London: Penguin Books, 2000), pp. 216–217.
 Michel Foucault, The History of Sexuality: An Introduction, trans. by Robert Hurley (London: Penguin Books, 1978), p. 138.
 Gilles Deleuze and Félix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, trans. by Brian Massumi (London: Bloomsburg, 1987), p. 251.
 Derrida is particularly interesting in this area. See: Jacques Derrida, The Gift of Death, trans. by David Wills (Chicago: The University of Chicago Press, 1995). A new second edition will be published in the UK in September.