Search the archive.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 107-111. LJS

Rather than enabling further instances of commodification, the Myriad decision’s changed view of the ‘truth’ about life is attempting to reconcile the informational understanding of the genetic code with a continued existence of IPRs on information derived from human genetic materials. The result is a compromise predicated on an enduring finding of “marked difference” between cDNA and isolated DNA. This rendered some of Myriad Genetics’ patent claims void, however, it also held up others. This chapter argues that this accommodation shows that the Court is navigating the overwhelming scientific and social influence of an informational genetic conception of life (the ‘genetic dispositif’) while at the same time seeking to maintain IPRs as a tool for the bioeconomy, and for the normalisation of knowledge. In responding to the challenge of the move of knowledge over life onto the genetic level, law as a “tactics” of government is re-adjusting the “right disposition of things” (Foucault 2000, 208). At stake in this adjustment is nothing less than the continued existence of the IP regime in the area of genetic materials, and its important functions regarding the maintenance of a central canon of knowledge (see this chapter), and as an area of expert knowledge enabling the conduct of “governing at a distance” (Miller and Rose 2008, see next chapter). Knowledge is crucial for governing according to the right disposition of things, and the change towards the informational-genetic conception of life intensified the utility of knowledge of “the nature of things” (Foucault 2008, 28) by seamlessly integrating knowledge of the individual with that of the population, and also – through the medium of information - with further use in the bioeconomy. 2.1. Governing the normalisation of technical knowledge Foucault’s account of the emergence of the new art of governing emphasized the central role of scientific method and medical knowledge, in particular with regards to strategies aimed at the fostering of life and health of the population. These “include forecasts, statistical estimates, and overall measures” and involve “a set of processes such as the ratio of births to deaths, the rate of reproduction, the fertility of a population, and so on” (Foucault 1997, 243 and 246). These sources of information then gave rise to potential biopolitical strategies. Initially this knowledge was gathered from observations of individuals, compiled in an “apparatus of writing” and analysed according to a new comparative system “that made possible the measurement of overall phenomena, […] the calculation of the gaps between individuals, their distribution in a given ‘population’” (Foucault 1977, 190). The notion of a “population” for the purposes of governing could only emerge as a result of this collection of individual cases. Knowledge is thus one of the central factors that ensure the appropriate operation of government. Foucault points out “[t]he constitution of knowledge [savoir] of government is absolutely inseparable from that of a knowledge of all the processes related to population in its larger sense – that is, what we now call the economy” (Foucault 2000, 217). This points to a contingency of ‘truth’ upon measurements of processes in the population – identifying “the nature of things”, and upon an economic way of governing – determined by “the question of the too much and the too little” of governmental intervention (Foucault 2008, 28). However, Foucault asks “[h]ow can the phenomena of ‘population’, with its specific effects and problems, be taken into account in a system concerned about respect for legal subjects and individual fee enterprise?” (Ibid., 317, quoted also in Dean 2010). A fault line of potential conflict thus runs between the notion of “political economy” and governing for “the optimization of the life of the population” according to the nature of things (Dean 2010, 120). This underlying tension between priorities of governing is governed by laws in the mode of a responsive “tactics” of governing (Foucault 2000, 211), navigating demands made on the basis of technical knowledge while also still ensuring the economy (i.e. appropriateness in economic terms) of this disposition of things. This perspective sheds new light on the uneasy compromise in the Myriad decision, reinterpreting it as the product of a confluence of two different dynamics prioritising on the one hand the continued existence of IPRs on knowledge derived from human genetic materials, and on the other hand seeking to contribute to the normalization of the genetic-informational conception of life. In managing this tension, IP law is becoming governmentalised. Previously, “the life/nature-is-nothingmore-than-chemistry argument” (Carolan 2010, 117) effectively “closed down” debates about the patenting of genetic sequences, and settled definitional arguments as predominantly “technical” issues (Calvert and Joly 2011, 13 f.). In this, patent law provided specific rules that enabled the patenting of genetic sequences, and turned these otherwise “fuzzy and uncertain objects” into tradeable entities (Ibid., 16). Genes are fundamentally “uncertain” and hybrid objects, as they “[consist] not in a structure but in the process that ‘expresses’ or actualises a given molecular strand” (Pottage 1998, 747). As long as IP law provided clear patentability criteria for these objects, it succeeded in normalising an understanding of DNA that ‘governed’ for the market. However, the Myriad judgement’s turn complicated this function considerably, and showed that the adoption of the informational-genetic paradigm causes tensions that could seriously overstretch IP law’s parameters. The Myriad decision reflects the emergence of a new scientific paradigm. Changing paradigms of (scientific) knowledge are closely connected to changes in paradigms of governance (Foucault 1970). Within a paradigm38 of knowledge, an apparatus or a dispositif of knowledge connects the various sites of decision-making at the macro and micro level of governing, containing a particular constellation or congruency of understandings of “labour, life, language” (Ibid., 250 ff.) – a shared basic epistemology39 making the development of sciences like biology, economics, and linguistics possible. These elements contain an epistemology that shaped for example the modern system – and within this system, knowledge derived in accordance with this epistemology needs to be seen as a central concern of power relations, or “power-knowledge”. Information science has emerged as the predominant paradigm of the twenty-first century and given rise to a dispositif that connects the life sciences with computer science and the economy. Within this paradigm, technical scientific knowledge needs to be understood as “power-knowledge”, which is the result of a deeply politicized process of contestations between different forms of knowledge. 40 A normalised canon of scientific knowledge is a result of a struggle between different forms of knowledge, and is constantly threatened by “insurrections” of other formerly “disqualified” or marginalised knowledges (Foucault 1997, 9). Here, a battle “not […] between knowledge and ignorance, but an immense and multiple battle between knowledges in the plural [took place] – knowledges that are in conflict because of their very morphology, because they are in the possession of enemies, and because they have intrinsic power-effects” (Ibid., 179, emphasis added). These power effects, especially on the level of control and ownership of knowledge, are founded “in a society where knowing the secret behind technological knowledge was a source of wealth” (Ibid.). IPRs are thus immersed in a political sphere at the intersection of economic governing and the determination of the nature of things, at the centre of “an immense struggle over the economic inductions and power-effects that were bound up with the exclusive ownership of a knowledge, its dispersal and its secret” (Ibid., 180, emphasis added). IP fulfils different functions within these struggles between competing knowledges. It establishes control over knowledge and research agendas, and enshrines a particular ‘normalised’ version of scientific truth in an officially recognised instrument such as a patent – assigning and amplifying science’s “intrinsic power-effects”. The Myriad decision’s turn towards an informational-genetic conception of DNA can be interpreted as a continued fulfilment of these important functions of the IP regime, which go beyond the sheer commodification of DNA sequences. Instead of prioritising patentability, the decision inscribed or normalised the informational-genetic paradigm in IP law, thus conferring power-effects on this type of knowledge. It contributes to the governing of ‘life’ by further normalising the genetic dispositif. As already pointed out in the previous chapter, genetic knowledge seamlessly integrates knowledge over the individual and the population within one code. The knowledge and ownership of this code is thus a particularly significant power-effect, crucial for questions of research projects, grants, publications, assessments of profitability, and also for personal insurance, questions of identities, and personal life choices. In the process of this normalisation, IP law also marginalises other competing understandings of life and the role of DNA, such as epigenetics and systems biology (see below). In this way, IP promotes research agendas that generate a type of ‘predictable’ knowledge over life.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 151-155. LJS

While MRCs’ IP strategies stay within the economic system, their strategic approach to IP management emphasises control and is more flexible and context dependent, as for example the case of a one-dose oral typhoid vaccine shows: “the Trust has funded a company to further develop a proprietary technology for application to a disease area that was not attractive to commercial investors. The Trust has structured the IP management arrangements to encourage the company to exploit Trust-funded research itself, but retains rights to intervene if the IP is not exploited for the benefit of the developing world.” (Wellcome Trust 2006) But the use of IP also highlights that this remains an adjustment within the existing economic system’s parameters, not the introduction of a radical alternative. Patent pools and PPPs are using similar flexible IP management strategies in the sector of global health, addressing the needs of populations in developing countries in particular. 4.2. Patent Pools and Public Private Partnerships – Prioritising global health? Within the sector of global health, new patent pools seek to address public health for the benefit of patients in developing countries, who are usually excluded from pharmaceutical companies’ considerations. Patent pools bring together available patents regarding one particular disease, making information about existing patents accessible and negotiating voluntary or reduced licenses on existing medicines, thus making research and distribution of knowledge in the pharmaceutical sector more effective and flexible - especially where it comes to patents covering pharmaceuticals that are needed in developing countries. In general terms, patent pools address the “anticommons effect” of “the existence of multiple patents, held by multiple patent owners (a patent thicket)” (Verbeure 2009, 3, emphasis added) – but they do not contest the existence of IP in general. In contrast with the situation regarding software patents, “[a] principal argument for patenting biomedical inventions is the fact that typically, post-invention development costs far exceed pre-invention research expenditures, and firms are unable to make this substantial investment without protection from competition” (Ibid., 15). Patent pools seek solutions to the exclusionary effects of IP within existing international economic structures, especially in situations “when the IP rights necessary to arrive at a commercial end product such as a kit for diagnostic testing are held by patentees too numerous or heterogeneous to agree on licensing terms” (Ibid., 15f.). The recently established international Medicines Patent Pool is an example of a single-issue international patent pool focusing on HIV/AIDS medication. Their aim is to “[make] patents work for public health, while giving pharmaceutical innovators compensation for their work” (Medicines Patent Pool 2011).80 Lobbying on behalf of HIV/AIDS patients in developing countries, this patent pool successfully negotiated a range of voluntary licenses with pharmaceutical companies. This may have been particularly successful due to the international focus on HIV/AIDS (see for example Elbe 2005), increasing the pressure on companies to make their treatments available to patients in developing countries in particular. The combination of this pressure with a relative “failure” of the market in developing countries makes a compelling case for voluntary licences in these cases without a significant loss of profits (see next chapter). The use of voluntary licenses by patent pools shows that this approach can only work in specific contexts, limited geographically to mainly least-developed countries. The executive director of the Drugs for Neglected Diseases initiative (DNDi) criticises WIPO’s patent pool Re:Search (WIPO 2012b) because of its limited geographical reach: “it currently aims to improve access to neglected disease medicines in just the 49 least-developed countries, [whereas] he thinks it should aim to increase access for all developing countries” (quoted after Frantz 2012). But many PPPs also use tailored IPRs strategies within geographically limited exemptions granted by the pharmaceutical industry. PPPs have become significant partners of international organisations in the implementation of framework aims in the field of global health, and have specialised on particular diseases and local contexts in the process (see Rushton and Williams 2011). These targeted projects can be very effective but are more difficult to replicate on a larger scale, as the Medicines Patent Pool had to discover. An idea of the sheer number of emerging PPPs can be gleaned from the Health Partnerships Database, which seeks to “systemically [sic.] collect data about a new breed of PPPs coalesced around the health needs of the poor” (ESRC Innogen Centre 2008).81 In the best case, “[t]his relatively new trend in global health cooperation is demonstrating significant possibilities for tackling problems that formerly seemed intractable, particularly those requiring increased research and development (R&D) on drugs and vaccines for diseases disproportionately affecting the poor” (Buse and Waxman 2001, 748). PPPs and Product Development Partnerships (PDPs) make strategic use of IP by deriving income from the products they developed (Brooke et al. 2007, 1757). The licensing regime employed by PPPs can be flexible and take into account the relative economic positions of the licensees – as in the example of the licensing regime of FIND Diagnostics: “When research has the potential to result in an invention (patentable or not), we negotiate with the partner(s) in advance to ensure that the IP rights generated by the project will be managed in such a way that the benefits are passed on to patients in resource poor settings. Industry partners assign all rights to FIND for royalty-free use of their technology in the public and private non-profit sectors in high endemic countries, while the industry partner retains distribution rights for developed countries and the private sector in developing countries. This enables the partner to recover R&D costs and to create the returns needed to develop new technologies.” (FIND Diagnostics 2015) Just as in the case of patent pools, this strategy counteracts IP’s exclusionary function in a particular geographical and social context. This limitation is intentional, as a group of PDPs points out in a position paper for the EU’s Horizon 2020 Framework: “PDPs were created specifically to address the research gap present in the development of products for diseases that lack viable commercial markets. PDPs use different models of IP management and licensing arrangements in their partnerships with academic institutions and private companies, aiming to de-link the costs of R&D from the cost of final products” (AERAS et al. 2012). Lezaun & Montgomery note that PPPs have begun to share IP, and use it “as a lever to attract others into risky collaborative ventures” (Lezaun and Montgomery 2015, 3; see also Williams 2012). This is contrary to the usual exclusionary function of IP, and gives rise to “a new moral economy of R&D” emphasising collaborations (Lezaun and Montgomery 2015, 5). However, PPPs combine priorities set by public sector organisations such as the WHO with the mechanisms of the private sector. This approach contains both the potential for more targeted and efficient implementation efforts and the unpredictable consequences of introducing the private sector’s economic rationale to the area of ‘public’ health. This has given rise to fears “that new partnerships are leading down a slippery slope towards the partial privatization and commercialization of the UN system” and “that partnership enables nation states to abdicate their responsibilities for the promotion and protection of their citizens’ health”, as for example “it is charged that the independent setting of standards was jeopardized during the elaboration of the guidelines for the management of hypertension because of the influence of a firm that stood to benefit from them” (Buse and Waxman 2001, 750). Despite these concerns, PPPs are increasingly involved in global health policies, and the WHO sees PPPs and PDPs as central to the future financing and facilitation of research and development of medicines (CEWG 2012a, 31). Thus neither patent pools nor PPPs/ PDPs are intending to challenge the notion of IP in general. They rather address the needs of certain patients from within the parameters of the international economic system. In this way they acknowledge the increasing demands of patients while they are at the same time reinforcing the general function of IP – from which they derive income. However, the emerging “moral economy” surrounding the financing of R&D in global health projects combines the use of IP with a politics of health, in which PPPs can be seen to be “governed at a distance” as they implement centrally defined priorities in small-scale private projects. Instead of focusing on IP’s economic function, it is argued in this thesis that PPPs are becoming involved in a version of somatic ethics developing within international organisations operating at the intersection of global health and the economy. The result is an ongoing process of accommodation between biopolitical and economic priorities, on the national and international level. The next chapter explores particular challenges to the IP system arising from this ethics, which even include frank debates on the introduction of alternatives to IP. Examples of human rights challenges and an increasing focus on the argument of ‘market failure’ could have radically unsettling effects on IP’s legitimation.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 147-148. LJS

This strong desire to contribute to research, and the fact that in this particular case it was strong enough to raise over three times the originally required amount of money, shows how much the responsibility to optimise health has become a powerful motivator for voluntary contributions to genetic research.76 In the example of the microbiome project, individual contributions go far beyond the involvement needed for traditional biobanks. But in contrast to these well-developed responsibilities, definitive rights of participation connected to the notion of citizenship are not as pronounced – even in the microbiome project, which is far more open than other projects. The rhetoric of citizens’ science presents knowledge and research as a form of general empowerment, which enables individuals to understand the ‘truth’ about their bodies. Its relation to IP is still largely untested, as projects are still relatively new. While these participatory structures can challenge IP’s exclusionary function, the empowered citizens in these projects fail to challenge the new responsibilities of the subject. Instead, as the identity of the genetic citizen is based on knowledge of their genetic condition, this ‘empowerment’ of the subject automatically reinforces the validity of genetic truth discourses, and the responsibilities arising from them. Healthcare practitioners and national health services also tap into this notion of empowerment without actual rights by promoting personalised medicine (for instance based on pharmacogenetics77). This vision of personalised medicine hopes for example that “in the future, we will all carry SMART cards, which will contain our genetic information. Using these SMART cards, a GP will able to prescribe the right drug at the right dose at the right time” (Institute of Translational Medicine 2015b). This is also part of the UK’s new life sciences strategy, harnessing “three quite fundamental shifts in the practice of modern medicine: a coming revolution in biomedicine, in data for quality and proactive care, [and] in the role that patients play in controlling their own health and care” (D. Campbell 2014). Importantly, a national programme of “personalised medicine” would formally impose new obligations on the individual patient to know and to disclose their own genome. This form of inclusion, however, would still fall short of the participatory rights implied by the notion of citizenship – especially when faced with exclusion from control over information by means of blanket transfer of IP. IP’s affinity with this notion of limited empowerment thus ‘manages’ biopolitical challenges by active genetic patients, deflecting demands for participation in the further usage of information. Citizens’ science challenges the exclusion of patients from control over expert knowledge by IPRs to some extent, yet simultaneously reinforces somatic responsibilities of the self-actualising subject. The emergence of notions of the ‘research patient’ stressing subject’s empowerment through contributions to research can be read as evidence of processes of accommodation folding the active patient’s demands into the existing system without disruption. By excluding participation by anyone but the IP holder, the IP system plays a central role in ensuring control over the bioeconomy’s further use of information derived from donations and national medical health records. This exclusionary function of IPRs has thus far managed challenges from a “biopolitics from below” (Raman and Tutton 2010, 722, see above), which however in the long run could fundamentally question the economic utility of IPRs as a whole. The analysis highlighted how new forms of IP strategies put pressure on the economic and biopolitical legitimacy of this exclusionary regime. Alternative IP strategies are also emerging in the sector of global health, reflecting a growing influence of patients’ concerns. The last section points out how juridical subjects such as medical research charities and public-private-partnerships (PPPs) are challenging IP in a “biopolitics from above”, strategically employing IP with the aim of improving the life and health of populations.

As introduced above, biopiracy discourses challenge the normative version of nature, knowledge and society and how these are alternatively brought together but also forced apart when passed through IPR systems in the bioeconomy. This has been done by presenting two overlapping critiques of the IPR system’s treatment of the natural and cultural aspects of particular “inventions”, and this has been a key component to the discourse around various instances of biopiracy that have become problematic over the last several decades. The first of these critiques suggests that there is too much “nature” in the inventions claimed, and as such in the relevant aspects of living things themselves, for them to be eligible to be considered as invented rather than merely “discovered”. The second suggests that there is also too much “culture” in these “inventions” for them to be considered as new or novel, and thus eligible creations for patentability. The allegation that this knowledge is “too cultural” is made in two ways, first by invoking specific instances of prior human influence in the shaping of these organisms (such as in the case of patent claims on traditional medicines or on agricultural products such as seed strains), and also by invoking a much more holistic perspective on the relationship between humans and nature at the most general which put humans squarely back into a nature that they are actively participating in. The particular artefacts being challenged by the allegation of biopiracy are thus positioned uniquely at the nexus of nature/culture – they are at once profoundly “natural” as they are derived from plants, animals, or even people themselves, but are also profoundly cultural, because they speak to how these particular natural artefacts have come about as part of, are shaped by, and exist in relation to culture. The next section will examine the nature and cultural aspects of the biopiracy discourse more closely. Too natural – discovery as invention In their study of anti-GMO campaigns, Heller and Escobar explain that, “biodiversity activists emphasize preserving the natural co-evolution of organisms and cultures, and thus, embed human beings and culture inside natural systems.”34 Later in that same analysis they expand: for the [biodiversity] activists, as they theorize local practices, nature is not an entity ‘out there’ but is produced through the collective practices of humans integrated with it (Descola & Palsson, 1996).[ 35] From this perspective, the reductive view of biodiversity in terms of genetic resources to be protected through intellectual property rights is incoherent and untenable. The position of Heller and Escobar’s activists is also echoed in much of the biopiracy discourse, with many of the biopiracy activists taking issue with, to use Haraway’s formulation, “who gets to count as nature’s author”.37 Much of the rhetoric invoked in this regard relies heavily on a certain principle of self-evidence and a deliberately essentialist reading of patent law. By this logic, if the invention derives from nature in any way it must therefore be a product of nature, ergo it is not patentable. For instance, the text of the Treaty Initiative to Share the Genetic Commons, which was spearheaded by Jeremy Rifkin and his organization, the Foundation on Economic Trends states: That the intrinsic value of the Earth’s gene pool, in all of its biological forms and manifestations, precedes its utility and commercial value, and therefore must be respected and safeguarded by all political, commercial and social institutions, That the Earth’s gene pool, in all of its biological forms and manifestations, exists in nature and, therefore, must not be claimed as intellectual property even if purified and synthesized in the laboratory, That the global gene pool, in all of its biological forms and manifestations, is a shared legacy and, therefore, a collective responsibility More than simply relating the ownership of nature via IPR to a point of legal interpretation (ie, the product of nature doctrine), the activists that contest biopiracy do so in ways that call this system of property itself into question. As seen in the excerpt quoted above, many of these groups often invoke an essentialized version of nature which posits that there is something inalienably “natural” about nature that renders its ownership unethical, or even impossible. There are a number of justifications on which this rests, many of which speak to the social embroiling(s) of nature, where nature as such is understood to have coevolved with society’s understandings of it. As RAFI explains in a press release related to a particularly acrimonious “biopiracy” debate regarding an International Consultative Biodiversity Group39 project in the Chiapas region of Mexico: No "Wild Kingdoms": Bioprospectors must assume - unless there is proof otherwise - that all materials they encounter have been nurtured and enhanced by communities. [In the Maya-ICBG case a] large community garden was mistaken for a "natural" forest. Similarly, soils, insects, and fungi first assumed to be unused upon closer scrutiny have been found to have longstanding medicinal or other purposes. 40 Other actors who attempt to draw attention to biopiracy present nature’s creative and reproductive capacity to serve as self-evidence of the futility and hubris of attempting to “own” nature. This logic is carried forward by Vandana Shiva, in much of her writing on biopiracy. In Biopiracy: The plunder of nature and knowledge, for example, she writes that “biotechnology, as the handmaiden of capital in the postindustrial era, makes it possible to colonize and control that which is autonomous, free, and self-regenerative”.41 Later in the same account, she explains: Certainly, the idea of owning life is not new; people own their pets and farmers own their livestock. Yet IPRs create a new concept of ownership. It is not just the implanted gene, or one generation of animals, that is being claimed as intellectual property, but the reproduction of the entire organism, including future generations covered by the life of the patent. 42 Shiva’s point here presents IPRs as the tool through which seeds, in this case, are denied their “naturalness” and become patentable, and thus commodifiable at what she sees as the most intimate of levels. For her, the IPR system is an ill-equipped and inappropriate mechanism for deciding what constitutes something which is “from nature”. Further, the distinction which is currently made between the natural and the invented does not go nearly far enough in recognizing nature’s own inventive capacity and thereby imposes a false notion of human invention onto the natural. In these cases, though Shiva knows well that there is a time limit to patents, these particular patents cross over into a more symbolic realm, and do so on behalf of the IPR system more generally. When considered in terms of nature’s perceived self-evidence as “natural” and its autonomy, including its autonomy to reproduce, then the limits that would be placed upon these organisms by seeing them as patentable would make them “too natural” to be considered invented. Too cultural – public domain or private ownership? Along with arguing that these contentious inventions are “too natural” to be patented, those alleging biopiracy also see the place of culture/society in this system as problematic. These critiques challenge the logic behind a perceived separation of the public and the private domains as they pertain to ownership and control over inventions that can be seen to have some form of prior cultural basis, such as in the case of TK. In brief, the problem in these instances appears to be that there is a claim that there is too much knowledge already there, albeit unrecognized by the system, to allow these “inventions” to be patented. Much of the thrust of this “too cultural” aspect of the biopiracy discourse thus takes issue with the recognition of prior art in patent claims. In many of the cases where biopiracy has been alleged, one of the claims made is that prior art has not been adequately taken into account by the patent system. This is often explained away by those in favour of robust IPR regimes as simply untrue, or, at worst, as a case of a “bad patent” being issued, where prior art was indeed not recognized. Biopiracy activists, however, often present this as a more fundamental, systemic problem with what is allowed to “count” as prior art within the IPR system. Specifically, it is claimed that Euro-American IPR systems are blind to types of prior art that might not exist in immediately accessible formats. For example, this was a major point of contention in both the neem and turmeric biopiracy challenge cases. The neem case refers to a patent granted to WR Grace and Co. for an insecticide/fungicide derived from the neem tree, which was subject to a very public patent challenge.43 The turmeric case refers to US patent 5, 401, 504, granted initially to two scientists from the University of Mississippi for the use of turmeric for healing wounds. As Genetic Resources Action International (GRAIN) explains: “The Indian government challenged the patent as blatant theft, and provided endless research papers predating the patent providing that turmeric has long been used in India to heal wounds. In the face of this overwhelming evidence, the US Patent and Trademark office rejected all 6 patent claims”.44 With specific reference to the turmeric case, Shiva takes issue with those that would attempt to dismiss biopiracy as merely a slight systematic oversight that allowed for “bad” patents to be issued: This indigenous knowledge and use consists of "prior art". No patent should be given where prior art exists since patents are supposed to be granted only for new inventions on the basis of novelty and nonobviousness. These criteria establish inventiveness, and patents are exclusive rights granted for inventions. […] If there were only one or two cases of such false claims to invention on the basis of Biopiracy, they could be called an error. However, Biopiracy is an epidemic. […] The problem is not, as was made out to be in the case of turmeric, an error made by a patent clerk. The problem is deep and systemic. And it calls for a systemic change, not a case by case challenge. If a patent system which is supposed to reward inventiveness and creativity systematically rewards piracy, if a patent system fails to honestly apply criteria of novelty and non-obviousness in the granting of patents related to indigenous knowledge, then the system is flawed, and it needs to change. It cannot be the basis of granting patents or establishing exclusive marketing rights. The problem of Biopiracy is a result of western style IPR systems, not the absence of such IPR systems in India.45 Recalling the argument from the previous section that suggests that it is the movement of these contested objects out of the realm of nature into a separate realm of culture which makes them patentable, the claim here is that there is also too much culture, albeit rendered invisible and unrecognized, in these inventions for them to count as sufficiently inventive enough to be patentable. In many ways, this can also be seen to be an issue about what is allowed to count as a sufficient means through which to make the requisite movement from the natural to the knowledge-based. It is clear that in the dominant paradigm, which suggests that cases of biopiracy are simply “bad patents”, the biosciences are seen to be sufficient enough interlocutors to facilitate this transition. If one can demonstrate that the specific product of nature which enables their invention has been sufficiently removed from nature - for instance, a particular gene sequence has been isolated and purified - then the invention is rendered patentable. However, in many of the cases where biopiracy is being alleged, there is a question as to whether TK is able to count as fulfilling a similar function. In the last sentence of the passage quoted above, Shiva strikes out at this deficit model of IPR protection, which suggests that biopiracy only occurs where the IPR system is not evolved or robust enough to provide sufficient protection. Here, she links this claim with a critique of the IPR system itself, suggesting that the IPR system is, in fact, instrumental in causing biopiracy. The point where biopiracy interjects here is in claiming that TK is either invisible to the system, or is wilfully ignored by it. In these cases, if TK were recognized as a suitable enough interlocutor to make this nature-to-culture movement, then the claimed inventions would not be able to demonstrate that they have moved their invention far enough out of culture so as to make it patentable. Put another way, if TK were recognized as a suitable enough way to intervene on “products of nature” so as to make them useful for humans, then the inventions or discovery projects that are alleged to be engaged in biopiracy would already be part of the public domain, and hence unpatentable. One of the most confusing aspects of the biopiracy discourse has been the issue of what is to be done to address the relationship between TK and the IPR system. If the “too cultural” critique were understood as being solely about a claim for reparations, or about laying the groundwork for the future profitability of TK as it appears to be for many who have used the term46, then it would not move the debate too far from merely adjusting the parameters of the IPR system to include TK in some way. For many of the biopiracy activists, simply adjusting the IPR system to include TK would be an incomplete version of biopiracy. For them, advocating this position side-by-side with one which suggests that the system itself is fatally flawed in its treatment of living things is unproblematic. It would be misleading, however, to attempt to portray this as a way in which “biopiracy” as a whole has betrayed itself. Conversely, the wide take-up of the term is a reminder that, once deployed into the charged atmosphere around IPR and biotechnology, these terms are constantly in flux and come to mean different things to different actors across the spectrum. This is also further evidenced in how the terms have been used by developing world governments, who have widely used the term biopiracy in some of their submissions to international forums such as the WTO and the CBD(c.f. Peru’s explanation of its National Anti-Biopiracy Commission47). Many of these submissions focus on developing some system for a “declaration of origin” for genetic material, with the idea being that the benefits from the exploitation of genetic resources would flow back to those countries from where the material “originated”. Of course, this does not converge with many of the biopiracy activists, who suggest that IPR-based systems of ownership are themselves largely at fault for biopiracy48. Again, the way in which the term itself has shown an ability to lend itself to related but quite different applications, demonstrates ultimately how effective a “political” term it can be.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 90-92. LJS

Ewald thus argues that Foucault’s notion of “the juridical” does not equate to all legislation (see also Golder and Fitzpatrick 2009, 35), and particularly addresses the different relation of biopower to law. Here the role of law is not yet fully understood: “Foucault’s analysis leaves open two questions: first, if the juridical is an inappropriate category to use in interpreting bio-power, how do we make sense of all those ‘instruments of the law’ (codes, constitutions, laws, regulations) that have developed and expanded during the era of bio-power? Second, if the actions of norms replaces the juridical system of law as the code and language of power, what role remains for law?” (Ewald 2010, 146; quoted also in N. Rose and Valverde 2010, 179) Ewald’s questions raise the problem of a practical interpretation of the law’s turn towards the norm in the promotion of biopolitical priorities. As Foucault’s statements above point out, the “dominant characteristic” or “correlation” of power exercises is undergoing change in governmentality. In this turn towards new priorities for governing, such as the life of populations, law becomes enmeshed with the operation of biopolitics and starts to be framed as a norm that translates biopolitical priorities. Elbe puts this change of direction, as part of a governmentalisation of power exercises, thus: “For example, the much older institution of law (sovereign power) is increasingly used not just to augment the powers of the sovereign or the state but also to improve the welfare of populations by drafting new regulations – such as making it compulsory to wear seat belts, levying taxes on alcohol […] The older forms of sovereign and disciplinary power […] begin to play a much more subservient and “supporting” role for the wider purposes of managing the welfare of populations – giving rise to a complex ‘triangle’ of sovereignty, discipline, and governmental management.” (Elbe 2009, 12) This statement already refers to a much wider, and more contemporary, interpretation of the content of ‘law’, and highlights how the change towards the norm relegates more traditional forms of law to a supporting role. Instead of an emphasis on traditional fields of law, Rose and Valverde also argue that the emergence of the norm entails an overall “[…] turn towards the minor, the mundane, the grey, meticulous and detailed work of regulatory apparatuses, of the control of streets, of the government of transport, of the law of health and hygiene […], of the laws of property and trust, […] of all the places where, in the bureaucratic working of our over-governed existence, laws, rules and standards shape our ways of going on, and all the little judges of conduct exercise their petty powers of adjudication and enforcement.” (N. Rose and Valverde 2010, 546, originally published 1998) This highlights the increasing relevance of previously “mundane” sectors of law in a process of governmentalisation of law containing a turn to biopolitical priorities – drawing attention to areas such as health and hygiene, but also the administration of property and trust. This chapter already set out the increasing relevance of technical knowledge and the control of such knowledge for biopolitical strategies. This finds its correlate in an increased importance of laws administrating technical sectors – which are now centrally involved in the realisation of governmental priorities. However, Ewald states “the language of bio-power is purely technical and has almost nothing to do with the law as such” (Ewald 2010, 146), thus arguing that biopower’s mechanisms are not what Foucault considered ‘law’ in the first place. The distinction between technical types of law, norms, and “regulatory apparatuses” remains difficult, as not all fulfill the function of a norm in the same way. A law making seatbelts obligatory clearly introduces a new norm containing biopolitical priorities, but a system addressing the laws of property and trust does not establish norms as straightforwardly as that. In the case of IP, law introduces a method of normalising ‘accepted’ and ‘novel’ scientific knowledge and assigning clear ownership over this knowledge. IP is a technical area of law that is engaged in classifying technical knowledge – thus doubly relevant for the new art of governing. A predominantly US-American version of IPRs also became a global norm for IP by virtue of the global reach of the TRIPS agreement, which sought to introduce a uniform minimum standard of IPRs worldwide. These aspects of IP’s role as a norm have, however, first and foremost been analysed with reference to establishing property in an economic context – and not with reference to their relation to contestations over medical knowledge and the governing of life. At the intensifying intersection between governing of life and also of the market, IP’s function needs further attention, beyond declarations of law’s changed status as a norm. The normalisation of knowledge and the normalisation of participatory regimes in research and the bioeconomy involve a complex negotiation of tensions. Relying on Golder and Fitzpatrick’s instructive analysis of law within Foucault’s work, the next section argues that at the intersection of life and the economy, law operates in an “illimitable” manner, “[engaging] responsively with exteriority, with an outside made up of resistances and transgressions” (Golder and Fitzpatrick 2009, 56 and 71). In this way, law as a tactics of government contributes to the resolution of tensions arising from, in the present case, the governing of life while ensuring the functioning of an economic system. Foucault’s lectures specifically point out this constitutive function of law and thus turn the emphasis away from economic determinacy, highlighting the need to govern for the market for example by means of formal privileges.

Ideology ‘corresponds to a corruption of reality through signs’, argues Jean Baudrillard, and, therefore, ‘the goal of the ideological analysis [is] to restore the objective process’ (2008: 27). Simulation, on the other hand, ‘corresponds to a short circuit of reality and to its duplication through signs’ (Baudrillard 2008: 27). As such, Baudrillard claims, ‘it is always a false problem to wish to restore the truth beneath the simulacrum’ (2008: 27). Indeed, as I have demonstrated in previous chapters, simulation produces its own peculiar duty of truth, which re-anchors its functionaries in the coordinates of the former. In line with this, I would like to posit that post-truth, in and of itself, is not ideological; it is simulational. Post-truth, that is to say, is not so much a symptom of a corruption of our reality, but, rather, that of its progressive substitution with the order of simulacrum. Crucially in this context, simulation should not be conceived as an external force—one that swooped down upon us, as it were, violently snatching us up and unconsensually entrapping us in its forceful grip. Contrariwise, it would be far more accurate to consider simulation as something that we actively welcomed—and continue to do so, in an utter disregard for, and ongoing denial of, the reasons behind, and the consequences of, this act. Here, let us briefly return to the origins of the term ‘post-truth’. According to Oxford Languages, the contemporary definition of ‘post-truth’ can be traced back to a 1992 essay by Steve Tesich published in The Nation magazine (see 2016). In it, Tesich offers some reflections on the ‘Watergate symptom’, a term coined in reference to the Watergate scandal as a means of designating a wider shift in the North American mentality (1992). As Tesich expounds, [e]ither because the Watergate revelations were so wrenching and followed on the heels of the war in Vietnam, which was replete with crimes and revelations of its own, or because Nixon was so quickly pardoned, we began to shy away from the truth. We came to equate truth with bad news and we didn’t want bad news anymore, no matter how true or vital to our health as a nation. We looked to our government to protect us from the truth. […] We would see only what our government wanted us to see, and we saw nothing wrong with that. We liked it that way. Our government was looking after us. (1992: 12, 13) Both Tesich and Boorstin presented a damning diagnosis of the American culture, warning of the dangers of the denial of reality. ‘We are rapidly becoming prototypes of a people that totalitarian monsters could only drool about in their dreams’, proclaimed Tesich (1992: 13). All the dictators up to now have had to work hard at suppressing the truth. We, by our actions, are saying that this is no longer necessary, that we have acquired a spiritual mechanism that can denude truth of any significance. In a very fundamental way we, as a free people, have freely decided that we want to live in some post-truth world. (1992: 13) As this shows, the problem of post-truth was never a question of epistemology. Contrariwise, the post-truth problematique is rooted in a desperate attempt to hold on to the capitalist ‘happy consciousness’—that is, ‘the belief that the real is rational and that the system delivers the goods’ (Marcuse 2007: 84)—by any means available. And by the late twentieth century, the only such means were those of the abandonment of reality. What Mark Fisher refers to as a ‘depressive hedonia’, namely, ‘an inability to do anything else except pursue pleasure’ (2009: 22) [author’s emphasis], is thus fundamentally co-extensive with our post-truth condition. It follows that our contemporary duty of truth is the expression of the imperative to constant, unimpeded flow of an unsublimated desire for gratification. Simulation enables us to eliminate the obstructions to this flow, as such, facilitating an increasing automatization of desire. Crucially, simulation does not shelter us from the physical world and our daily troubles. This, however, should come as no surprise. After all, the delusions that it affords us were, from the very onset, geared towards the preservation of the capitalist imaginary. In effect, by their very design, they are bent on the protection of the existence of the status quo, not us. By guaranteeing our entrapment within private subjective orbits (cf: Mills 2000), simulation operationalizes and sustains our deference to the logic of economicization; it does not have any purchase on the effects of the latter. So far this has largely translated itself into ‘reflexive impotence’ (Fisher 2009: 21). That is to say, we lived in the awareness that things were bad, but we believed that there was nothing that we could do about it (see Fisher 2009: 21). Nothing apart from, that is, attempting to obtain ‘at least some gratification through identification with the existent’ (Adorno 1991: 150). Today, however, the escalating libidinal frustrations are driving many to action. Temporary gratifications offered by the digital enactment of simulation-powered delusions, in short, are no longer enough. Indeed, it would appear that the days of reflexive impotence are numbered, soon to be replaced with widespread physical insurgencies of the impotent. As Luke Mogelson, the author of The Storm is Here, demonstrates, the 2021 attack on the US Capitol was but a sample of what is to come (see 2022). He argues that the Americans are in imminent danger of ‘more frequent and larger-scale eruptions of gun violence’ and, that with so many ‘people with considerable influence and power’ now calling for a civil war, its prospect is far from outlandish (quoted in Fox 2022; see also Orth 2022). Likewise, Franco ‘Bifo’ Berardi warned us that if a radical change does not take place, the future of Europe will be that of ‘mass violence’ and ‘inter-ethnic civil war’ (see 2011: 122). With inflation in the eurozone at an all-time high (see Liboreiro 2022) and an intensifying energy crisis (see Horowitz 2022), there is no question that many are now alarmingly close to the boiling point. It is becoming blatantly clear that our unsublimated desires cannot be contained by the digital. To be sure, simulation no longer constitutes just an assault on the real; now it leads to real assaults. Such are its ‘true pleasures’: by automatizing our desires, by making ourselves neglectful of ourselves, others, and the world, we traded off our ability to meaningfully intervene into the present—all for an economic dreamworld that could never deliver on its promises. The perpetually accelerated play of simulation hence came to accelerate the demise of not only truth and politics, but that of our very existence. Let us make no mistake here: what we are losing today is more than critical agency; it is humanity.

Farkas and Schou argue that what is presently needed is ‘another way of understanding both the democratic tradition as well as politics and the political’ (2020: 142). Clearly, this task is both conceptual and normative. It is conceptual insofar as it requires us to create other vocabularies than those currently structuring post-truth worlds. To grasp the dynamics of politics, we need to move beyond existing premises. Doing so is, however, also an imminently normative endeavor, on two accounts. First, because it asks us—as people currently inhabiting post-truth worlds—to think and act differently. We are prompted to rethink what we are doing. Second, proposing a shift in our existing ideas of politics and the political is also normative in the sense that it can pave the way for other modes of doing politics and democracy in the future. If we shift how we think through questions of politics, then we will also come to see that the status quo does not suffice. (Farkas and Schou 2020: 142) Their ardent call for ‘the formulation of proper alternatives’ (Farkas and Schou 2020: 157) seems to, however, overlook the fact that social theorists have been proposing such alternatives for a very long time. Indeed, one does not need to look hard to find a plethora of alternative visions of the future (see, for instance, Gorz 1983). Hence, as much as I endorse the sentiments underpinning Farkas and Schou’s stance, I nevertheless see it as necessary to question the viability of their proposals. Indeed, in light of my analysis, a certain naïveté can be situated at the core of the impassioned accounts such as theirs, namely, the one concerning the actuality of what has happened and what is happening. Indeed, what my analysis suggests is that our post-truth predicament is the consequence of the unyielding pursuit of economic rationality, rather than a symptom of ‘genuine demands for breaking with the status quo’ (Farkas and Schou 2020: 126). A patent case in point here is the fact that the anti-capitalist social movements—such as, for instance, Extinction Rebellion—do not tend to utilize the post-truth frame. To be sure, post-truth tactics are the remit of the establishmentarian agents and alt-right conspiracists: the likes of Donald Trump, Brexiteers, and white supremacists—to name but a few. An argument could be, of course, made that such tactics are a response to the threat of systemic change posed by the anti-capitalist groups. Approaching post-truth as a tool of counter-critique (cf: Stypinska 2020), however, barely scratches the surface of its problematique, overlooking the deeper issue of the libidinal economy of which it is an expression. From this perspective, the call to keep reinventing the non-capitalist wheel ad infinitum, at the very best, smacks of poor strategy. Indeed, the problem is not the lack of viable alternatives. Alas, it seems to lay in the fact that the societies we live in seem to be more interested in ‘influencing’ and ‘trolling’—on- and offline—than paying any heed to structural solutions. This is not to imply that we ought to resign ourselves to the current state of affairs. Rather, I would suggest, it is to affirm the necessity of being cautious of the urge to purposiveness (cf: Agamben 2018). Being, as we are, the products of the Western paradigm that places action, rather than being, as the place of ethics, we are inadvertently positioned ‘in debt with respect to [our] own end’ (see Agamben 2018: 63). According to Giorgio Agamben, praxis ‘is the place where this debt is settled and incessantly rekindled’ (Agamben 2018: 63). As such, purposiveness is yet another trap. Or, to put this differently, it is another expression of the paradigm of efficacy that culminates in sheer functionality (cf: Heron 2018). Agamben argues that the way out of this logic is the embrace of ‘impotentiality’: ‘not simply the potential to do this or that thing but potential to not-do, potential not to pass into actuality’ (1999: 180). This, he asserts, constitutes the ‘possibility of privation’ (Agamben 1999: 181) [author’s emphasis]. The key, in short, is to deactivate the economic apparatus, making it inoperative. As Agamben explains, inoperativity is not another action alongside and in addition to all other actions, not another work beyond all works: It is the space—provisional and at the same time non-temporal, localized and at the same time extra-territorial—that is opened when the apparatuses that link human actions in the connection of means and ends, of imputation and fault, of merit and demerit, are rendered inoperative. (2018: 85) Such a space can be opened by thinking. However, following Miguel de Beistegui, I contend that the thinking that we need is not simply ‘a natural disposition’, ‘one we can decide to activate (or not)’ (2022: 2). It emerges, and does so slowly, at times painfully, whether individually or historically. It struggles to come to life, and it struggles to survive. It is constantly fighting off demons that continue to haunt it, perpetually rising from the mud that lies at the bottom of its pond. It is an effort, and it needs all the help it can get to get off the ground. (Beistegui 2022: 2) Such thinking is a matter of care—care unencumbered by urgency or, indeed, expediency. Care that begins with introspection and aims at the development of ‘a full, perfect, and complete relationship of oneself to oneself’ (Foucault 2005: 320). It is a thinking that understands its own process and is capable of resisting the imperative to the perpetual actualization of praxis. Thinking, that is, whose purpose exceeds purposiveness. I appreciate that this is not exactly the ‘practical solution’ that so many of us are after, and that the picture I paint in this book is gloomy. To that, I respond with the words of Theodor Adorno: [w]ithin absolutized praxis, only reaction is possible and for this reason the reaction is false. Only thinking could offer an escape, and then only that thinking, the results of which are not prescribed—as is so frequently in those discussions in which it is predetermined who is right and which therefore do not advance the cause—but rather degenerate without fail into tactics. When the doors are barricaded, it is doubly important that thought not be interrupted. It is rather the task of thought to analyse the reasons behind this situation and to draw the consequences from these reasons. It is the responsibility of thought not to accept the situation as finite. If there is any chance of changing the situation, it is only through undiminished thought. (1991: 200, 201) The surrendering of one’s thinking to the solutionist imperative implies its instrumentalization. Hence, in sooth, it is an act of resignation—and of neglect. Recall the ancient philosophical practices of the care of the self and others that I keep returning to throughout this book: the Socratic endeavours to induce a constant perplexity, the Cynics’ embraces of re-evaluation as a driving principle of the mode of life. These were the actions irreducible to their immediate effects. They agitated the sensibilities to unsettle the dominant rationality. They did not prescribe; they were an imperative to ‘open thinking’ that ‘points beyond itself’ (cf: Adorno 1991: 202). Consider also the Foucauldian conception of subjectivity as a point of tension between the self and the world, as something irreducible to the existing expectations and desires. Digital simulations pixelate this tension, turning it, and therefore our very (dis)positions, to mere code. With the news that metaverse is on its way (see Anderson and Rainie 2022), we ought to seriously consider the automatizing implications of the digital technologies of the subject. Further simulation will not save us; it will only intensify the neglect of that which makes us human. To care, and to transform, we must learn how to think openly.

While human beings do not unfold like a programmed mechanism, their subjectivities, as Agamben recognizes, are nevertheless shaped by social, political, and economic apparatuses (Prozorov, 2014, p.24). This is where the concept of inoperativity comes into play. For Agamben, “inoperativity” means to deactivate the functioning of the apparatuses, which does not mean that these apparatuses do not continue to operate or do not continue to have effects (pp.31-34). Put another way, inoperativity vis-à-vis the subject means that she is not captive to the grammar of the apparatuses, even if they continue to have their effects. Bartleby, for instance, rendered inoperative the capitalistic apparatuses by choosing not to actualize his potentiality (impotentiality), though the end result was tragic. I want to stress that inoperativity is, for Agamben (2004), not passive (p.134). That is, inoperativity or “preferring not” does not “affirm inertia, inactivity or apraxia…but [is] a form of praxis that is devoid of any telos or task, does not realize any essence and does not correspond to any nature” (p.33). Inoperativity, then, is any action of impotentiality that does not actualize what is expected by society’s apparatuses. Bartleby’s “I would prefer not” is one example. Martin Luther King’s (and others’) nonviolent protests is another illustration of rendering inoperative the violence of racist apparatuses. In other words, King’s nonviolent actions were acts of impotentiality in that he was not allowing racist apparatuses to determine his subjectivity; that is, to actualize or act on his fear and hatred. Other recent examples of the impotentiality of inoperativity, with regard to climate change, are eco-villages, where people prefer not to operate out of the apparatuses of neoliberal capitalism. While Agamben does not use the term “resistance,” it is possible to interpret inoperativity as a form of resistance that preserves, in the case of Bartleby, his potentiality by way of living out his impotentiality. Bartleby, in preferring not to, resists his employer and capitalist apparatuses. This said, Agamben’s philosophical discussion does not include addressing how people come to actualize potentiality or impotentiality, which leads me to turn to a developmental perspective that offers a way of thinking about the emergence of resistance as inoperativity.

By politicisation, I mean a process of political subjectification where subjects excluded from the institutional world direct attention to their situation and, through public action, bring visibility to the inequalities and injustices permeating this world (see Rancière, 1999). Politicisation, therefore, like the category of noncitizenship, confronts relations of power and inequality, presupposes agency and involves practice. In particular, subjects who politicise seek to challenge the established order. They bring into view the power dynamics behind this order – its closures, injustices and inequalities; and, in so doing, they openly unsettle these. Although it can be credibly objected here that the noncitizens (the poor, excluded, marginalised) are not always in a position to politicise and confront the power order – and this alone reveals the force of noncitizenship as an analytical category; it can be argued that noncitizenship, much like the concept of politicisation in this sense, promises something more than a comprehensive exposé of the inequalities perforating a given power order. It promises citizenisation. Citizenisation involves political subjectification – as is the case with politicisation. At the same time, politicisation, like citizenisation or noncitizenship for that matter, gains momentum through references to a variety of scripts, from ‘justice’ and ‘equality’ to even ‘citizenship’ – and this means that either sections of society politicise to give visibility to the position/demands of those who cannot, or the excluded and marginalised subjectify and politicise. Therefore, the point here is that there is significant overlap between the concepts of politicisation and noncitizenship when it comes to matters of subjectification and counter-power. There is also overlap with respect to practice. 15 Politicisation is practice, for subjects politicise against or for something– for example, by setting up a sit-in, a protest, an occupation etc. In fact, political protests (against the state) can be seen as exemplary moments of politicisation, where the binary citizen/noncitizen becomes redundant. In particular, what makes protests exemplary moments of politicisation (at least in the way I use the term here) is their public nature – the publicity, connection, openness and generality that they encase. Protests publicise exclusion X; they make it visible. They are public events and this means that they both reach out to the public and draw in (the support of) the public – broadly understood. At the same time, public protests are sites of assembling. They gather the people together and, in this gathering, it makes little difference who is the citizen and who is not, or who initiated the protest and who did not. What matters is that protests remain open and, as a result of this openness, demands flesh out, intermesh and expand. More than that, the openness of the protests compounded by the indeterminacy of the subject ‘people’ as a democratic actor has the additional effect of drawing sharper attention to the political demand or claim eliciting the protest. This is where, in the end, the greatest difference between the concepts of politicisation and noncitizenship lies: in their telos. Whereas the telos of politicisation, say in the case of public protests to stay with the same example, is to have the particular (series of) demands or claims met in the here and now – thus it has a rather limited, provisional, target that does not always or necessarily coincide with an expansion of rights; the telos of the category of noncitizenship is often, inadvertently, citizenship – and, this implicitly enfolds the aspiration to expand on existing rights.

Here it is appropriate to return to the question of engagement with both the human experience of the emotional life and the rational adherence to fact demanded by work in scientific and technological fields. The balance of both these aspects of modern life necessarily requires an equally active conversation with the ethical questions requisite to meaningful involvement in both spheres. One cannot ethically engage in the work of bringing technological children into the world without also engaging in educational projects. Any such project should engage with both historical and present structures into which technologies will be inserted. Can technology lead us into a utopian society if it is merely grafted onto the old foundations that have produced wealth and prosperity for some, but slavery, starvation, and death for others? Perhaps in responding, it is wisest to begin by requiring an answer to the question “How should one live?” The use of the ambiguous pronoun here leaves open the position of subjecthood; in this opening one can see past an ethic of autonomy—a concern for a personal, individualistic freedom— to something more inclusive. Bieber Lake enters into this conversation with Emerson and his ethic of individual freedom. She states that it is as if Emerson is saying, “what matters most is that I go forward with my freedom to change the world by starting with myself. Perhaps others have real claims on me, perhaps not, but let us go ahead and assume them to be real, and treat them well.” But in a world where biotechnology is giving us startling new powers to literally and permanently shape the next generation, what does it mean to treat people well now? If I value my personal freedom highest, what happens to my neighbor? Can we simply lay aside, as Emerson does here, the question of how real the other is? If we do, what in this philosophy will teach me what it means to treat someone well—to want for them the good life?30 Bieber Lake asserts that it is not autonomy that should act as the ethical rule by which to measure the technologies that we release into the world. The ethic of autonomy, unless purposefully extended to include the other, is myopically focused on the subject. It is this ethic, fixated on the power and affluence of Western economies, that drives the colonial project and any new colonialism to come. The higher ethic of love, on the other hand, engages both the I and the you, making subjects of both. Citing Habermas, Bieber Lake stresses that love as the guiding force of ethics has the ability to direct care and consideration toward the other. She stresses that “it is not genetic engineering that is the issue, but the attitude with which the interventions are carried out. In gene therapy, for instance, we have the correct attitude because we are thinking about the person the embryo will be. How we see the other person is the main thing that determines how we ascertain our duty to them.”31 Perhaps most importantly, the ability of the love ethic to consider the other allows for the considerations of other-selves and other-futures that we simply cannot know with any precision at this time. Derek Parfit, in “Personal Identity,” explored the idea that a person is comprised of multiple, separate selves and thus future selves take up the position of object rather than subject. This is a position that was confirmed in 2008 by Pronin et al. when experimental subjects committed their future selves to more arduous tasks in the name of science than they would commit to in the immediate present. This interesting quirk of human psychology suggests that it may be especially hard to consider future others in the projects we commit to today, as these are twice removed from our present selves. Adding to the difficulty are other factors such as the removals of geography, culture, religion, and sex that prevent an autonomy ethic from being an effective rule by which to measure the future of an increasingly globalized human experience. How, then, can love address the dangers that we may or may not face as we stand on the precipice of our biopolitical future? If, as Latour suggests, we must love our monsters and care for the technology we release into the world, we must also care for those whom our technology affects. This care demands that we exert ourselves today in examining and altering damaging social structures in preparation for our future children, technological or otherwise.

What is wrong with “a history of the past in terms of the present”? According to Foucault, this is the “presentist fallacy”; the historian takes “a model or a concept, an institution, a feeling, or a symbol from his present” and attempts to “find that it had a parallel meaning in the past”.41 Nor does a genealogical history attempt to discover the underlying laws of history, thereby falling in the trap of finalism. The latter holds that the present is the accomplishment of some latent goal in the past. Rather, a genealogical history begins with a diagnosis of the present. The genealogist-historian locates the manifestations of a given “meticulous ritual of power” to see where it arose and how it developed. Discipline and Punish examines the “Entstehung” of the human sciences (which Foucault calls “pseudo-sciences”) and their relation to the “Entstehung” of the prison. Foucault says: This book is intended as…a genealogy of the present scientific legal complex from which the power to punish derives its bases, justifications and rules, from which it extends its effects and by which it masks its exorbitant singularity.” A genealogical enquiry shows that “…power produces knowledge…that power and knowledge directly imply one another”. What is the relationship between the prison and the human sciences? It seems that Foucault does not clearly differentiate between the two Entstehungsgeschichten, despite the fact that he did not wish to reduce the one to the other. Notice: I am not saying that the human sciences emerged from the prison. But, if they have been able to be formed and to produce so many profound changes in the episteme, it is because they have been conveyed by a specific and new modality of power: a certain policy of the body, a certain way of rendering the group of men docile and useful. The connection that Foucault makes between “power” and “knowledge” is innovative. Foucault’s use of a hyphen between these two terms is meant to show the constitutive (or productive) aspect of knowledge.45 Power (relations) and knowledge (or truth) implicate each other,46 hence Foucault’s term “power-knowledge”47 («pouvoirsavoir»).48 The meaning of the composite term “pouvoir/savoir” is more complex than the English translation “power/knowledge” would at first sight suggest. In French there are different words for different forms of knowledge. In his archaeological works Foucault used the word “savoir” to refer to the “implicit knowledge” characteristic of an historical epoch, that is, to the “common sense” of a people at that time at a specific place; he was concerned with how the “savoir” shaped the “explicit knowledge” – what he called “connaissance” – “that is institutionalized in the disciplines that make up the human sciences”.49 Concerning “pouvoir”, although it is translated as “power”, one should not forget that in French it is also the infinitive form of the verb “to be able to”, i.e. “can”. Accordingly, as Ellen K. Feder says: In Foucault’s work, pouvoir must be understood in this dual sense, as both “power” as English speakers generally take it (which could also be rendered as puissance or force in French), but also as a kind of potentiality, capability or capacity. Power, Foucault tells us, must be understood to be more complex than a term like puissance conveys; it has multiple forms and can issue from “anywhere”.50 Additionally, it is difficult to translate the composite “power/knowledge”. Gayatri Spivak draws our attention to the “homely verbiness of savoir in savoirfaire [a ready and polished kind of ‘know-how’, in English], savoir-vivre [an understanding of social life and customs] into pouvoir”. So “pouvoir-savoir” could mean “being able to do something – only as you are able to make sense of it”.51 Foucault uses the composite term “power/knowledge” to refer to the relation between “power” and “knowledge” that genealogy unmasks. For example, a genealogical study shows that the explosion of discussion about sex in the Victorian age was due to a “type of power” that bourgeois society “brought to bear on the body and on sex”.52 It, thus, casts doubt on the “repressive hypothesis”.53 Genealogy demonstrates that “this power had neither the form of the law, nor the effects of the taboo”; rather, it operated by producing (different kinds of) sexuality and making it a defining characteristic of individuals. Consequently, there emerged four “figures” who were simultaneously “objects of knowledge”, namely, “the hysterical woman, the masturbating child, the Malthusian couple, and the perverse adult”.55 These were products of four strategies which “formed specific mechanisms of knowledge and power centering on sex”,56 to wit, the “hysterization of women’s bodies”, the “pedagogization of children’s sex”, the “socialization of procreative behavior” and the “psychiatrization of perverse pleasure”, respectively.57 So, far from being an historical fact, sexuality is “a historical construct”58 («un dispositif historique»)59. Therefore, the real questions are whether prohibition and censorship are not forms of power rather than repression and whether all this discourse on sex is not itself part of the power it criticizes as “repression”.

Foucault describes genealogy using one of Nietzsche’s well-known metaphors. Genealogy is “gray”, its task being to decipher the hieroglyphic script of humans’ past, a past that is neither black (i.e. totally unknown) nor white (i.e. transparent), but something in between (gray), that is, ambiguous and uncertain. Thus, a rigorous investigation is needed, if the meaning of the past is to be uncovered: “Genealogy, consequently, requires patience and a knowledge of details, and it depends on a vast accumulation of source material.” Due to its minuteness, genealogy may at first give us the impression that it deals with trivial, everyday things, rather than with important developments. However, genealogy acquires its character from recording “what we tend to feel is without history”, instances such as “sentiments, love, conscience, instincts”. Crucially, the writing of the human past by the genealogist is necessarily an interpretation, which itself is neither true nor false. For Foucault, the genealogist is an interpreter but not a hermeneutician. The genealogist as interpreter recognizes that the meaning he/she gives to history is doubtful (hence “gray”), “acknowledges its system of injustice”10 and the fact that his/her interpretation is subject to revision. The genealogist-interpreter has a sense of where he/she stands in history and does not ignore the fact that he/she is the product of historic and social circumstances; however, simultaneously he/she is able to distance him-/herself from his/her situation in order to examine things from afar. In doing so, the genealogist-interpreter ignores the actors’ own interpretation(s) of the meaning of their actions. Therefore, the genealogical approach is one of detachment. By contrast, the approach of the hermeneutician is one of engagement, as he/she attempts to grasp the significance of things from within them. As opposed to the interpreter-hermeneutician, the genealogist-interpreter “finds that the questions which are traditionally held to be the deepest and murkiest are truly and literally the most superficial”. Thus, “their meaning is to be discovered in surface practices, not in mysterious depths”. Accordingly, a genealogical interpretation is distinctly different from a hermeneutical approach. The claim that interpretation is not the uncovering of a hidden meaning has revolutionary implications for philosophy; or better, it is a direct attack against philosophy, as it traditionally has been understood. For Foucault’s genealogy undermines the belief in the existence of unchanging essences and truths. When he realized that there are no primordial verities in the world, Foucault shifted his emphasis from his early studies on madness to his work of the seventies and eighties. In his early work Foucault had pre-supposed an essence of madness, namely, an original truth. But in his genealogical writings Foucault engaged in a deconstructive exercise. Continuing Nietzsche’s tradition of “philosophizing with the hammer” Foucault sought to destroy all the metaphysical ideas that have dominated Western philosophy since Plato. Foucault was more conscious of genealogy as a method than Nietzsche was. Therefore, he set forth its objectives. To begin with, Foucault was more careful to define what genealogy as an history concerned with tracing origins meant. In examining Nietzsche’s genealogy, Foucault noted that Nietzsche used “Ursprung”, “Entstehung” and “Herkunft” interchangeably. Foucault argues that the problem of the term “Ursprung” is that it refers to “something that was already there” – viz. a deeper reality – before the search began. However, if the genealogist refuses to extend his faith in metaphysics, if he listens to history, he finds that there is “something altogether different” behind things: not a timeless and essential secret, but the secret that they have no essence or that their essence was fabricated in a piecemeal fashion from alien forms In other words, for Foucault, the idea of the “origin” is just a metaphysical truth that has dominated European thought for two thousand years. In Nietzschean terms, genealogy questions the “will to truth”: “…devotion to truth and the precision of scientific methods arose from the passion of scholars, their reciprocal hatred, their fanatical and ending discussions, and their spirit of competition – the personal conflicts that slowly forged the weapons of reason”. According to Foucault, “Herkunft” and “Entstehung” characterize the task of genealogy better. Herkunft is the equivalent of stock or descent; it is the ancient affiliation to a group, sustained by the bonds of blood, tradition, or social class. The analysis of Herkunft often involves a consideration of race or social type. But the traits it attempts to identify are not the exclusive generic characteristics of an individual, a sentiment, or an idea, which permit us to qualify them as “Greek” or “English”; rather, it seeks the subtle, singular, and subindividual marks that might possibly intersect in them to form a network that is difficult to unravel. Genealogy engages in deconstruction, for the analysis of “Herkunft” fragments what was considered unified; it does not merely challenge the linear conception of history but also identifies an underlying continuity, which is the product of “the accidents, the minute deviations – or conversely, the complete reversals – the errors, the false appraisals, and the faulty calculations that gave birth to those things that continue to exist and have value for us “As Foucault says, genealogy elaborates “a theory of discontinuous systematicities”. However, although these discontinuous series have their regularity, there are no links of mechanical causality or of ideal necessity between the elements that constitute them. Hence the significance of chance, accident or aléa.

Vito, Professor, Norwegian Centre for the Law of the Sea, Faculty of Law, University of Tromsø. “Rethinking the Encounter Between Law and Nature in the Anthropocene: From Biopolitical Sovereignty to Wonder.” Law and Critique (2020) 31:329–349 https://doi.org/10.1007/s10978-020-09281-9 LJS

As the body of the Earth is marked and reshaped, however, so is our conception of it. From a hostile territory to be subjugated and exploited through sovereign commands—an exploitation rationalized through philosophical and legal constructions—the Earth is now reframed as a vulnerable domain in need of protection (Fussel 2007, p. 156; Grear 2011; Ippolito and Sánchez 2015; Shindel 2016; Kotzé 2019).8 Indeed, the Anthropocene ‘makes clear the vulnerability of the living order’ (Kotzé 2019, p. 63). Reframing the Earth as vulnerable also provides a novel conceptual framework that, through the emerging ensemble of vulnerability theories, is used to map philosophical and legal problematics and to look for solutions (Grear 2011, p. 23; Brama and Grisólia 2012; Harris 2015; Kotzé 2019, p. 63). This theoretical approach is considered capable of embracing vulnerable beings both human and non-human, as it can ofer a ‘vision’ aligned with the notion of ‘Earth system vulnerability’, that is the recognition that ‘all human and non-human entities’ but also the ‘components and processes making up the entire Earth system’ at every scale, ‘are vulnerable’ (Grear 2011; Kotzé 2019, p. 64). Indeed, the sum of all particular vulnerabilities—of humans, of non-human entities, of components and processes of the Earth system—makes up what has been also called ‘planetary vulnerability’ (Kotzé 2019, p. 70). Climate Change is perhaps the central reference with regards to planetary vulnerability,9 but other global ecological problems, such as global biodiversity loss or the signifcant degradation of oceanic environments and resources, as well as the very framework of planetary boundaries, help construct this new image of planetary vulnerability (Rockström et al. 2009; Cuomo 2011). This reframing of the Earth as a vulnerable body, in turn, opens conceptual and theoretical space for rethinking and reimagining, among other things, law (Grear 2011; Kotzé 2019). As the human subject is reimagined as vulnerable in the context of the Anthropocene, something becomes evident: the very modern categories of knowledge and of action, including forms and modalities of operation of power that underpin the Anthropocene, faced with the socio-ecological consequences of their ‘success’, are in a state of crisis (De Lucia 2017a). The subject is suddenly simultaneously sovereign and vulnerable. The Anthropocene then signals simultaneously a deep ecological crisis and a deep cultural crisis. The mode of sovereignty, which has accompanied human and legal history and practice during modernity and has underpinned its project of mastery, appears no longer useful, nor suitable to face the problems raised by planetary vulnerability. Vulnerability is, obviously, a complex concept, whose theoretical sophistication, as well as internal tensions, cannot be done justice to here.10 What is relevant however, for the purposes of this paper, is its role in the discursive reframing of the Earth and by consequence, its role in the shift in the psychology and practices of power and law. If the Earth is vulnerable in fact, its body can be materially and visibly marked by human activity—and that is what geological and stratigraphic analyses seem to be telling us. This also means that its resources are fnite and exhaustible, a recognition that challenges some of the foundational concepts of law, premised on an imaginary of inexhaustibility.11 What then of the primary modality of operation of power, and of law, that of sovereignty?12 A necessarily cursory look at the genealogy of sovereignty will readily show how its conceptual core13 is constructed on the model of dominium as it emerged at the birth of modernity, in the debates frst occasioned by the so-called dispute on poverty (Grossi 1972; Tierney 1997; Parisoli 2010); as it developed in the context of the Salamanca school (Grossi 1972); and as it further developed into modernity proper (Tuck 1998), albeit already disjointed in private appropriation and public sovereignty, by Hobbes and Locke (MacPherson 1962; Esposito 2008). This conceptual core refects the relation between the public and private dimensions of a singular concept, whose relation, even if not exhausting either dimension in a complete mutual assimilation, presents a common underlying feature, particularly as regards the mechanics of subjugation of nature which are of interest for this paper. As observed in relation to the colonial appropriation of the Americas, in fact, ‘absence of property signals absence of sovereignty’ (Kuehls 1998, p. 43). This connection between dominium and sovereignty is indeed widely recognized,14 and it has been observed how ‘sovereignty and property, as legal institutions, follow the same logic’ (Mattei 2013; Lee 2012, p. 81; Urueña 2006; Grotius 1625). This conceptual core also relates to what is usually identifed as the fundamental faw of the current paradigm: anthropocentrism (Grear 2011; Curry 2011; Grear 2015; Philippopoulos-Mihalopoulos 2015; De Lucia 2017b). The core of this sovereign paradigm is premised on the centrality of the ‘invulnerable’ subject (Grear 2010; Fineman and Grear 2013; Kotzé 2019, p. 79), and on a framework of conceptual mastery and material domination over nature (Cannavò 2019) 15 which organizes the extraction and exploitation of natural resources according to a well ordained project underpinned by an appropriate legal framework (Merchant 1990; Sargent and Bacon 1999). Through sovereignty, the body of Earth has been materially and legally appropriated, has been distributed, and has been wounded. However, this sovereign mode of power, with its anthropocentric, extractive outlook, is no longer functional in the Anthropocene. It has rather become ‘counterproductive’ (Illich 1976).16 Law must refect this new situation by taking ‘anthropocenic responsibility’ (Cloutier de Repentigny 2020, p. 180) for the well-being of the vulnerable planet. As increasingly recognized and urged, in fact, ‘to ensure responsible human geological agency, law must be used strategically to destabilise the dominant paradigm and reform it in something that recognises our responsibility towards the oceans and the biosphere’ (ibid, pp. 180, 181). After Sovereignty: The Biopolitics of Earth‑Care As the Earth is reconfgured and re-imagined discursively as a vulnerable body, power and law must no longer focus, nor can they build their legitimacy, on appropriation and extraction. They must focus on care. In order to accommodate the need to transform the operations of law, from a modality of exploitation to one of care, sovereign power thus morphs into biopower, and more specifcally biopolitics. Biopolitics ofers in this respect an answer, as it shifts the focus of power, changes its modalities of interventions, and rearticulates its legitimacy on the idea of taking responsibility for the Earth, for nature. Biopolitics is one of two modes of operation of a new biological form of power (biopower) that seizes life under its purview (Foucault 1978, 2004). Biopower refects a shift in discursive and operative emphasis. While sovereign power entails the right to let live which is ultimately exercised through the power to kill (or, rather, through its restraint), biopower is a power to ‘make live and let die’ (Foucault 1978, p. 144). Unlike sovereign power, biopower qualifes, measures, appraises and hierarchizes, with the ultimate aim of fostering life. This is achieved at two levels. At the level of the individual body, through disciplinary interventions; and at the level of populations, through interventions aimed at controlling life as a set of biological processes. The goal of biopolitics is thus to foster life, insofar as it can be regularized and its processes predicted and optimized. With particular respect to the environment, nature is no longer simply an object of sovereign exploitation, but becomes subjected to a series of positive interventions that aim at its care, at fostering and optimizing its processes, and at the same time at the enhancement of its productive forces. Biopolitics enfolds nature in its logic in two distinct but complementary ways: frstly, as a set of processes central to human well-being, to the extent that human populations are afected in multiple ways by the environment they live in and by natural processes; secondly, as the immediate focus of concern. From this second perspective, biopolitics aims at the protection, regularization and optimization of nature itself (De Lucia 2019a). Furthermore, and in line with Foucault’s insight into the co-implicated relation between power and forms of knowledge, the expansion of biopolitical regimes to the natural environment is historically contingent on the development of a number of scientifc disciplines such as biology and ecology, on key conservation concepts such as biodiversity or sustainable development, as well as on a number of technologies and techniques that allow the continuous monitoring of ecosystem processes (De Lucia 2017a). Ecology in particular plays a crucial part, as it ‘provided the political technology for new forms of regulatory intervention in the management of the population and resources’ (Rutherford 2000, p. 4). Environmental law, from this perspective, becomes a crucial juncture where knowledge and power intersect and coalesce into a regulatory framework aimed precisely at classifying, protecting, regularizing and optimizing nature, particularly through the double goal of conservation and sustainable use of biological diversity (De Lucia 2017b, 2019a). Power governs no longer through sovereign command, but through technical norms and scientifc regimes of knowledge (though always through law!).17 Power, through biopolitics, becomes equivalent with Earth-care. Care and Subjugation: Biopolitical Sovereignty Yet, to achieve its purposes, biopolitics must engulf nature in its entirety under a conceptual and regulatory framework where care and subjugation, vulnerability and productivity, life and death are constantly entangled in a reciprocal and inevitable relation. Sovereignty thus returns inevitably as a key modality of biopolitical intervention, when nature is recalcitrant, wild, spontaneous, unpredictable, violent or dangerous. Biopolitics remains caught in an undecidable dilemma, where in order to care for and protect the Earth, it must subjugate it, thus determining simultaneously the displacement of sovereignty and its eternal return, in a continuous oscillation between a positive biopolitics and a negative thanatopolitics (that is, a politics of death) (Agamben 1998; Esposito 2008). This oscillatory, aporetic entanglement can be made immediately visible through two examples: ecosystem monitoring programs and the regulation of invasive alien species. With regards to ecosystem monitoring programs, for power to care proactively for the Earth through biopolitical interventions, it must frst know. To know, and to keep this knowledge up to date, it must enfold each ecosystem, each ecological and biological process with extensive, penetrating and comprehensive assessment, monitoring and mapping programs. These are indeed key tactics and methods of the relevant sciences such as conservation, biology and ecology. For example, the global biodiversity census proposed by famous conservation biologist Edward Wilson is a tactic that can be understood biopolitically as a form of Foucauldian ‘panopticism’ (Foucault 1977) aimed at subsuming life/nature under a comprehensive ‘modality of intervention’ (Rutherford 2000, p. 140). Through its processes of ‘identifcation, collection of specimens, and subsequent research’, the global biodiversity census aims at ‘neatly packaging’ nonhuman nature into a set of designations which, in turn, facilitate both ‘conservation and commodifcation’ (Youatt 2008). This panopticist program of biopolitical surveillance is operationalized through the intersection of knowledge and power, of science and law, whose collaborative efort gives rise and shape to an ecological regime of truth enacted precisely through such intense and comprehensive monitoring programs—including the International Biological Program,18 the Global Census of Marine Life19 and the Global Taxonomy Initiative (GTI).20 From the biopolitical perspective embodied in such tactics and practices, ‘nonhumans are [ultimately] regulated and rationalised in matrices of knowledge and science, through which they are readied as productive resources for capitalism and mined as repositories of genetic information’ (Youatt 2008, p. 394). These programs refect the key biopolitical goal of ‘planetary management’ enacted through the establishment of surveillance mechanisms aimed at monitoring ‘the vital signs of the planet’ so as to ‘aid humans in protecting its health’ and care for planetary vulnerability (WCED 1987, para 56; De Lucia 2015).21 With regards to the regulation of invasive alien species, this oscillation is a central operational logic, given that in the same gesture life is protected and destroyed, fostered and killed, as the conservation of biodiversity must be ensured through the eradication of invasive alien species which are, literally, killed (for example via snipers or through poisoned pellets) (De Lucia 2018). This is precisely a biopolitical command which not only classifes ‘life into species and populations’, as part of its taxonomic eforts, but also decides ‘who shall live and who shall die, what life-forms will be promoted and which will be terminated’ (Biermann and Mansfeld 2014, p. 261; see also Braverman 2018). This illustrates vividly how biopolitics is fully intertwined with sovereign power. Its interventions, enacted through legal regulation, create a seamless matrix of care and control that efectively rests on a biopolitical sovereignty. This in turn ofers a concrete example of the continuity between sovereignty and biopolitics that makes perhaps more explicit what has been described as a ‘hidden point of intersection’ (Agamben 1998, p. 11), or as a ‘secret and essential’ relation that signals a fundamental ‘logic of copresence’ between the two (Esposito 2008, pp. 39–40). In this respect, biopolitics remains utterly modern, or as argued by Roberto Esposito, modernity has always been biopolitical, insofar as modernity has emerged as a framework for the protection of life against life’s own excesses (Esposito 2008).

Environmental incentives are used to control the behavior of farmers as “rational actors,” squeeze productivity out of them and make them live bare life—their agency is controlled by the state controlling what their “self interest” is

Fletcher et. al 19 (Robert Fletcher, Sociology of Development and Change, Wageningen University, Wageningen, Netherlands; Wolfram H. Dressler, School of Geography, The University of Melbourne, Melbourne, Australia; Zachary R. Anderson, Department of Geography and Planning,University of Toronto, Toronto, Canada; Bram Büsch. “Natural capital must be defended: green growth as neoliberal biopolitics,” THE JOURNAL OF PEASANT STUDIES. 2019. https://www.tandfonline.com/doi/epdf/10.1080/03066150.2018.1428953?needAccess=true&role=button) @ehatt

For some time now, scholars in science and technology studies and geography have analyzed how infrastructures mediate exchange over distance, bringing different people, objects, and spaces into interaction and forming the base on which to operate modern economic and social systems (Graham & Marvin 1996, 2001; Lefebvre 1991). Graham & Marvin (1996) have written a series of influential works examining how new systems of telecommunications are reconfiguring urban space and how infrastructures bundle together water, energy, people, and streets into a series of networked infrastructures that define modern life (2001). The emphasis here is on the formation of what Hughes (1987, 1993) terms large-scale technical systems, the massive infrastructural networks that have come to organize everyday life. Hughes (1987, 1993) and those coming in his wake (Bijker 1997; Bijker et al. 1987; Bowker & Star 2000; Edwards 1997, 2003; Edwards et al. 2009; Hecht 2011; Jackson et al. 2007; Star & Ruhleder 1996; Yates 1993) argue that infrastructures typically begin as a series of small, independent technologies with widely varying technical standards. They become infrastructures when either one technological system comes to dominate over others or when independent systems converge into a network. For Hughes, as a systems thinker, the ontology of a technology is composed of elements internal to the object itself but is formed as part of a system. The invention of the Edison light bulb, for instance, simultaneously involved the invention of the Edison Jumbo Generator and the Edison Main and Feeder. It innovated financial instruments and management structures necessary to accommodate a rapidly expanding corporation. The light bulb in this conception does not develop from an unfolding of elements internal to the technology itself—an assemblage of glass, filament, and vacuum—as some theories of technics would have it. Rather, as an infrastructure it is an amalgam of technical, administrative, and financial techniques. Two major insights that emerge from this work are of central importance to anthropology. Placing the system at the center of analysis decenters a focus on technology and offers a more synthetic perspective, bringing into our conception of machines all sorts of nontechnological elements. For Hughes, a holding company or an accounting practice is as much a technical invention as is a dynamo or a telephone, and all are essential to producing an infrastructural system. Second, the focus is on system building. A technical system originates in one place, growing in response to particular ecological, legal, political, and industrial techniques native to that area. But as it grows into a networked infrastructure, it must move to other places with differing conditions, technological standards, and legal regulations, elaborating techniques of adaptation and translation. This conception places focus on practices of routinization and extension, requiring an account of translation (which can be technical, but also managerial and financial) as a process inherent to system building. It is no surprise that the scholars coming after Hughes (Bowker & Star 2000, Edwards et al. 2009) drew heavily on actor-network theory and its emphasis on tracing associations between heterogeneous networks (Latour 1996, 2007) and on the necessity of accounting for how translation occurs (Callon 1986, 1998; Latour 1993). This work has been extremely productive for recent anthropological research (Appel 2012a,b; Anand 2011, 2012; Carse 2012; Collier 2011; Collier & Lakoff 2008; Von Schnitzler 2008), as one can see in two excellent recent studies on water supply in Mumbai (Anand 2011, 2012) and Soweto (Von Schnitzler 2008). Anand’s ethnography draws together engineers, political fixers, slum dwellers, politicians, activists, and bureaucrats into a single system through the technical operation of water supply (see also Gandy 2008, Graham et al. 2013). In Mumbai, the density of the population causes water supply to be scarce and periodic. Municipal engineers account for this limitation in technical terms (locating slums on a hilltop, the pressure required to move water great distances), but for slum residents it is an issue of political mobilization. Slums without water engage dadas, powerful patrons who use their connections to pressure elected officials to provide infrastructural connection. In return, the dada rewards those representatives by delivering electoral support. In Anand’s analysis, essentially two infrastructural systems interact: water delivery, with its systems of pipes, engineers, and bureaucracy that make up the technical end of water provision (the aspect of infrastructural supply that constitutes the entire large-scale system for Hughes and others); and the social networks, forms of patron-clientship, and “phatic labor” (Elyachar 2010) that are as important to water delivery as are pumps and pipes. Infrastructure in this sense is a kind of mentality and way of living in the world (Hansen & Verkaaik 2009, Simmel 1972, Simone 2001), and Anand (2011) brings together these two differing conceptions of infrastructure not, in the final instance, to analyze water supply but to reveal the production of what he terms “hydraulic citizenship, a form of belonging to the city enabled by social and material claims made to the city’s water infrastructure” (p. 545). Von Schnitzler (2008), like Anand, sees water supply as revealing a larger logic of citizenship in the postapartheid state in South Africa. But her approach differs by focusing analysis on a specific technology, the water meter, which was introduced as a technical device to monitor water usage and end the problem of wastage in townships. Von Schnitzler traces the technical history of the water meter back to its invention in Britain but then examines how its introduction to South Africa was intended not just to regulate water use but to produce a new sort of citizen. This citizen was one who was responsible, self-monitored his or her own actions, and engaged in practices of calculation. Taking a more biopolitical turn, Von Schnitzler argues that meters do not just regulate water provision; they reveal a strategy of government and, ultimately, produce an ethics. “[C]ouched in a moral-pedagogical language” (Von Schnitzler 2008, p. 906) city officials aimed to reform the culture of township residents (who wasted water) by producing a “calculating subject,” one who switches the tap off when brushing teeth or reuses bath water when flushing the toilet (see also Fennell 2011). The meter, Von Schnitzler argues, delivered moral behavior as well as water. Both Von Schnitzler and Anand demonstrate how the operation of technologies, ostensibly a neutral practice, becomes the grounds around which forms of citizenship are contested (Barry 2001; Joyce 2003; Mitchell 2002, 2011; Otter 2008) and where technological systems are entangled with other religious and political domains. Collier (2011) adds a twist to this literature by organizing his analysis of infrastructures entirely around the question of the biopolitical (Foucault 2010, 2011). Infrastructures, for Collier, are a mixture of political rationality, administrative techniques, and material systems, and his interest is not in infrastructure per se but in what it tells us about practices of government. Soviet electricity provision, through this lens, is analyzed for how it reveals a system of total planning in a command economy rather than for what it tells us about the effects of electricity on users in Russia. Unlike in the West, electricity supply in Soviet Russia was not regulated by user demand but was an allocation to a particular area decided in advance by technocrats as part of a total system of electricity planning. The post-Soviet transition required a dismantling of this idea of government and a reconceptualizing of society as organized around an individual consumer and his or her demands rather than around a collective assigned a fixed amount of units.

Biopolitics and Geopolitics Biopower is a term coined by Michel Foucault, referring to the practice of modern nation states by "an explosion of numerous and diverse techniques for achieving the subjugations of bodies and the control of populations". (Foucault 1990, 140) Foucault used the term to refer specifically to public health practices, among other regulatory mechanisms. Biopower control people in large groups, through an anatomo-politics of the human body, and biopolitics of the population through social institutions of discipline. Power is codified in both social practices and human behavior, as the human subject gradually accepts subtle regulations and expectations of the social order, (Policante 2010) "an explosion of many and varied techniques for achieving the subjugation of bodies and the control of populations": (Foucault 1990, 140) "By this I mean a number of phenomena that seem to me to be quite significant, namely, the set of mechanisms through which the basic biological features of the human species became the object of a political strategy, of a general strategy of power, or, in other words, how, starting from the 18th century, modern Western societies took on board the fundamental biological fact that human beings are a species. This is what I have called biopower." (Foucault et al. 2009, 1) A specific way of applying biopower is what Foucault calls “massifying”, (Foucault et al. 2009, 55–86) which uses scientific apparatus and equipment. This anatomo-politics of the human body correlates with the new knowledge of science and technology under the guise of a liberal democracy, where life itself becomes a deliberate political strategy and an economic, political and scientific problem, to which the nation state is coupled. (Foucault et al. 2009) Foucault argues that while the stated purpose of biopower is to maximize life, it also has a dark side: when the stakes are life itself, anything can be justified by the state, thus being able to easily eliminate groups identified as threatening the life of the nation, or of humanity. (Foucault 1990, 137) Foucault draws attention to what he calls the major political and social project, namely the "milieu intérieur" (inner environment), as a support for the truths uttered by the authorities. In the modern version, the government is thus presented to the population in the media as a means of efficiency, fiscal optimization, political responsibility and rigor, forming a public discourse of government solidarity and social consensus. (Foucault et al. 2009, 283) Biopolitics is a concept that takes into account the management of the life and populations of a governed region. According to Foucault, biopolitics is "to ensure, sustain, and multiply life, to put this life in order." (Foucault 1990) In political science, the term has two different meanings: a poststructuralist one identical to the meaning attributed by Michel Foucault (denoting social and political power over life), and another that refers to biological studies and political science. (Liesen and Walsh 2011) Foucault speaks of a style of government that regulates populations through "biopower" in all aspects of human life. (Foucault et al. 2009, 1)

The history of biopolitics in social and political advocacy—∂ both as a term and as a set of concerns raised by∂ developments in the life sciences and the biotechnology∂ industry—has been less frequently discussed than has its∂ academic genealogy. A full discussion of this history∂ would be an important contribution to understanding the∂ current landscape of biopolitics. This entry provides just a∂ few landmarks on a rather sketchy map.∂ Emergence of Issues. Several events in the mid-1970s∂ presaged the emergence of biopolitics in the United States∂ and around the world. The publication in 1975 of∂ Edward O. Wilson’s Sociobiology: The New Synthesis, which argued that genetics rather than social and∂ environmental conditions are determinant in individual∂ human behavior and in social formations, sparked heated∂ controversy about the politics of biology. Also in 1975∂ some 140 biologists, physicians, lawyers, and others∂ gathered in California at the “Asilomar Conference on∂ Recombinant DNA” to discuss the potential hazards of∂ biotechnology and to draw up voluntary safety guidelines∂ that many believe were designed to fend off calls for∂ enforceable regulation. The conference and its recommendations∂ pushed the emerging field of biotechnology∂ into public awareness (Berg et al. 1975). In 1976 venture∂ capitalist Robert Swanson and biochemist Herbert Boyer∂ launched a company called Genentech, an event often said∂ to mark the founding of the biotechnology industry.∂ In 1980, still during the prehistory of biopolitics, a US Supreme Court case, Diamond v. Chakrabarty, and a∂ piece of congressional legislation, the Bayh-Dole Act,∂ encouraged the development of the private-sector biotechnology∂ industry and set in motion some of the∂ important economic and political dynamics underlying∂ the emergence of biopolitics. In Diamond v. Chakrabarty,∂ the court ruled that genetically engineered organisms∂ could be patented, and the Bayh-Dole Act allowed∂ universities and individual scientists to patent and∂ commercialize technical inventions. In 1983 the first US∂ public-interest organization focusing on the social, ethical,∂ and environmental implications of modern genetic∂ technologies was established in Cambridge, Massachusetts.∂ Called the Council for Responsible Genetics (CRG),∂ the organization has examined biological weapons, worker∂ and community safety in biotechnology laboratories,∂ agricultural biotechnologies, and biomedical developments.∂ It has also developed critiques of genetic∂ reductionism, genetic determinism, and germ-line genetic∂ interventions (Council for Responsible Genetics 2013a).∂ By the late 1980s and early 1990s a different∂ approach to human biotechnologies in general—and to∂ inheritable genetic modification and other enhancement∂ technologies in particular—began to take shape. This was∂ the futurist ideology, today known as transhumanism,∂ which advocates using genetic and other technologies to∂ enhance (as adherents see it) human capacities and to take∂ control of human evolution. An early transhumanist∂ organization, the libertarian Extropy Institute, was∂ founded in 1990; in 1998 the World Transhumanist∂ Association was established (Hughes 2004). starkly different political and ethical commitments. In∂ 2002 the environmental writer and activist Jeremy Rifkin∂ published “Fusion Biopolitics” in The Nation, a leftleaning∂ journal of opinion. Rifkin’s news hook was thenpending∂ federal legislation about a research cloning∂ technique, but he went on to note that opposition to∂ creating cloned human beings was found among both∂ progressives and social conservatives. The latter, he said,∂ were motivated by “what they regard as the rights of the∂ unborn,” whereas many progressives “argue that with∂ cloning the new progeny become the ultimate shopping∂ experience—designed in advance, produced to specification∂ and purchased in the biological marketplace. … The∂ left also warns that cloning opens the way to a commercial∂ eugenics civilization.” Rifkin went on to predict that new∂ and emerging biotechnologies would rearrange traditional political affiliations: “The current debate over cloning∂ human embryos and stem cell research is already∂ loosening the old alliances and categories. It is just the∂ beginning of the new biopolitics.”∂ Transhumanists also began using the term biopolitics.∂ According to the World Transhumanist Association∂ founder James Hughes (2004, 55), “at one end of the∂ biopolitical spectrum are the bioLuddites, defending∂ humanity from enhancement technologies, and at the∂ other the transhumanists, advocating for our right to∂ become more than human.” Like Rifkin, Hughes argues∂ that biopolitics is becoming “a new dimension” of the∂ “political terrain of the twenty-first century,” cutting∂ “across the existing political lines.” Hughes distinguishes∂ between what he calls “right bioconservatives” and “left∂ bioconservatives” and describes a “polarization between∂ the transhumanist and bioconservative positions within∂ biopolitics” (Hughes 2011, 165).∂ The Center for Genetics and Society (CGS), with∂ which both authors of this entry are or have been∂ affiliated, was founded in 2001. Its initial focus was the∂ threat to social justice and equality raised by the prospect∂ of inheritable genetic modifications that could be enabled∂ by cloning, gene transfer, and assisted reproductive∂ technologies. CGS’s mission statement, published on∂ the organization’s website, signaled its commitments to∂ fundamental progressive principles, including “the equitable∂ provision of health technologies,” reproductive∂ rights, disability rights, and a precautionary approach to∂ new technologies (Center for Genetics and Society∂ 2013a). The organization soon adopted the term∂ biopolitics; in 2006 it established a blog called Biopolitical∂ Times, accessible through its website. For CGS the term∂ progressive biopolitics and the phrase a new biopolitics∂ connote a commitment to social justice, human rights,∂ and public-interest values. CGS has worked with scholars∂ across a range of disciplines, including law, sociology,∂ anthropology, public health, biology, and science and technology studies, and with advocates promoting various∂ issues, including reproductive health, rights, and justice;∂ racial justice; disability rights; and environmentalism∂ (Center for Genetics and Society 2013b).∂ BIOPOLITICAL CONTROVERSIES∂ What does biopolitics look like on the contemporary∂ political landscape? This section offers several brief∂ comments on selected biopolitical issues that have∂ emerged as politically or socially significant in the∂ twenty-first century. This is far from an exhaustive list;∂ the issues discussed here have been chosen because they∂ are widely recognized as politically salient, have triggered∂ legislation or judicial decisions, or have been engaged∂ by public-interest organizations and civil-society∂ constituencies.

The informational-genetic conception of life gives rise to value within a neoliberal economy – but it also intensifies the problematization of the governing of life. This thesis argued that the resulting tensions could be better understood from an analytic perspective that can grasp the wider social influence of the notion of the genetic code, which gave rise to a new system of truth over human existence, inscribed on the molecular level of the body – and which opened up the body to interventions on the molecular level. The analysis of IP’s encounter with a genetic dispositif was conducted on three different levels, reflecting a confrontation with the constituent elements of biopower: truth, the subject, and power exercised in the name of life (Rabinow and Rose 2006, 212). In this way, the analysis of IP’s treatment of genetic knowledge over life moved beyond previous critiques of the ‘commodification’ of life by means of IP. Instead of placing overwhelming emphasis on the determination of social relations by economic exchange processes, this analysis can account for a wider range of incentives and responsibilities for participation in the creation of knowledge. An adapted understanding of the role of law in a governmental system highlighted IP law’s contribution to the governing of life in an otherwise perplexing series of judgements on the definition of DNA and in strategic uses of IP ensuring open access to knowledge in a new somatic ethics. It argued that IP law is instrumental in setting up and ensuring the functioning of the market, but also begins to respond tactically to resistances created by the pervasive influence of the genetic dispositif. The increasing significance of the intersection between genetic conceptions of life and the IP regime intensified these tensions. An analysis of these tensions highlighted IP’s role in establishing control over knowledge for the purpose of participation in the bioeconomy, and its role in the normalisation of knowledge. In this reading, two trajectories of challenge were identified as significant sites of IP’s responsive engagement with exteriority (Golder and Fitzpatrick 2009, 56): the question of participation in the bioeconomy, and tensions surrounding the normalisation of knowledge. These were explored as unfolding contestations over truth discourses over life, responses to demands made by “genetic” subjects relating to control over genetic truth, and in new strategic interventions challenging IP’s relation to life. The analysis of these trajectories highlighted the particular processes of development within a “governmental” rationality, confronted with changing conceptions of life. This contributed to an understanding of governmentality by stressing the role of law as a tactics of the government of life, to an understanding of biopolitics by underlining adjustments to a rise of a new genetic and informational conception of life, and to the study of international relations by showing that international legal frameworks and institutions are integral to emerging key areas of political contestation based on the pursuit of life and health.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 116-119. LJS

In particular, epigenetics and systems biology are competing ‘truths’ over life, which are undermining the predominance of the genetic determinist’ view in a power struggle between knowledges. The IP system cannot connect to these complex notions in the same way as to the genetic-reductionist paradigm – which was given “economic strength” in particular by the IP system’s previous chemical-molecular definition of genetics. It is argued that the delayed turn towards the informational-genetic view weakened this strength, while other scientific conceptions emphasising ‘complexity’ would certainly reduce it even more. While the patenting of aspects of genetic interactions (for example biomarkers, SNPs, HAPs) has been on the rise, there are some indications that the patenting of genetic sequences alone has been declining (see for example Mills and Tereskerz 2011, 712; Hopkins et al. 2007; Gaisser et al. 2009). The patenting of complex post-genomic interactions cannot be achieved in the same way, as this section explains. IP’s problematic relation to more complex accounts of life thus highlights the power exercised in the field of knowledge by the Myriad judgement’s turn to an informational-genetic concept, preferring and further normalising one ‘truth’ over other competing scientific knowledges. 3.1. New (old) truths: Systemic Biology and Epigenetics IP law has only recently adopted the informational-genetic dispositif, which had been the determining force of developments over the course of the 20th century. However, in the life sciences, Francis Crick’s “central dogma” of the unidirectional mechanism of “DNA makes RNA makes protein makes us” (H. Rose and Rose 2012, 31) has been increasingly called into question. A recent resurgence of different approaches to life can be traced back to other fields of research that were side-lined when funding focused on the establishment of molecular biology by the Rockefeller Institute and other funding institutions (Kay 1993; 2000; H. Rose and Rose 2012, 66). This paradigm of molecular biology was promoted over and above any other contemporary scientific discourses, and drew funding away from competing programmes such as systems biology, which “was dealt a devastating blow when the Rockefeller Foundation, committed to a reductionist approach, rejected their proposal for a research institute in Cambridge […] in favour of a major investment in what was to become molecular biology” (H. Rose and Rose, Ibid., 66). Recently, systems biology has again drawn attention away from the ‘blueprint’ of life and focused instead on the overwhelming importance of complex interactions between biological systems and their environment. According to this school of thought, the potential for disease contained in the DNA code does not necessarily manifest itself in any case, only in particular circumstances – often depending on wider systemic factors. Rose finds that as “[a] genetic style of thought is giving way to a postgenomic emphasis on complexities (….) informational epistemologies seem to have reached their limit” (N. Rose 2007b, 47). Similarly, the field of epigenetics looks beyond the genetic code towards interactions with environmental factors for explanations of the emergence of particular conditions. Here, “[g]enes are no longer thought of as acting independently but rather in constant interaction both with each other and with the multiple levels of the environment in which they are embedded. […] DNA is no longer seen as an ‘informational macromolecule’ controlling the cell but rather as part of the web of molecules and their interactions that the cell employs during development.” (H. Rose and Rose 2012, 73; see also McAfee 2003, 204 f.)46 The (re)emergence of epigenetics highlights the underlying assumptions built into the reductionist view of genetics. Rosenow terms this the “‘static-linear’ instead of ‘complex-dynamic’ understanding of life”, which “is inextricably bound to a particular episteme that assumes the sovereignty of the subject and the latter’s control over the world as object, and that is deeply at odds with the episteme that is advanced in significant strands of scientific complexity theory” (Rosenow 2012, 532; see also Wynne 2005, 70).47 Braun also points to assumptions of control and sovereignty on the level of the bounded individual body containing molecular information. He contrasts this view with that of the “post-genomic body” immersed in “a global economy of exchange and circulation, where the body is thrown into a chaotic and unpredictable molecular world filled with emergent yet unspecifiable risks” (Braun 2007, 7). The informational-genetic conception of life thus accentuates predictability and control instead of focusing on the unpredictability and complexity characteristic of a novel and experimental research agenda (see Wynne 2005, 69). In the field of agriculture, studies conducted on the performance of transgenic crops provide an example of this imprecision and unpredictability, finding “patterns of mediocre and inconsistent crop performance and unpredicted effects that contrasts with the idealized image of agricultural genetic engineering as capable of increasing food production in an exact, ecologically safe, and economically sustainable manner” (McAfee 2003, 207). McAfee states that “[o]nly a narrowly molecular-genetic reductionist view, in which organisms are advanced Cartesian machines that can be understood by calculating the total of reactions among their molecules and atoms, would lead one to expect anything else” (Ibid., 209). IP’s normalised scientific accounts emphasise predictability and control – in line with the IP regime’s need for stable patentable objects. Here, reductionist “negotiations” and processes of abstraction give rise to an “apparently stable object” (Calvert 2008, 385), thus concealing an inherent ambiguity of genetic conceptions of life (Pellizzoni 2011; Carolan 2008; 2010; Rosenow 2012, 534; McAfee 2003; Pottage 1998). Carolan points out “[t]here are no purified sequences of DNA in the world of genetic testing; no isolated protein-encoding DNA sequences in a field of engineered canola plants” (Carolan 2010, 122, he refers to the infamous Monsanto cases). Without the mental processes of abstraction needed to imagine the existence of isolated DNA sequences in a living plant in a field, patent enforcement against farmers’ use of seed material would be impossible. This “interpretive flexibility” is necessary for the maintenance of IP claims, however, “too much flexibility would […] threaten the patent regime” (Ibid.). IPRs on human genetic materials thus exert power through a “double reductionism” (McAfee 2003, 203), reducing scientific accounts of life to genetic code, and reducing the interactions and uncertainties contained in this evolving field of research to stable and predictable objects that can be traded in the economy. Importantly, the Myriad decision maintains both these reductionist conceptions. Despite the limitation of patentability incurred by a turn towards informational genetic conceptions of DNA, Myriad still continues the normalisation of genetic reductionist knowledge. In this way, the Myriad compromise governs scientific research paradigms in a way that supports the market and provides predictable knowledge for questions of governing life by preferring informational-reductionist knowledges to competing complex accounts. An opening towards more complex understandings of life could have profoundly unsettling effects on IP, resulting in a loss of stable and easily definable patentable entities – which would be even more difficult to negotiate and significantly complicate the circulation of value in the economy and the strategic use of genetic knowledge for the governing of life.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 134-136. LJS

Analyses of governmentality look at the constitution of the subject as a part of the reproduction of relations of power. This raises questions about the relation between norms for the conduct of the individual and the subject’s freedom of action within governmentality. Rose, O’Malley & Valverde draw attention to the particular connection between “techniques of the self”, freedom, and forms of governmentality: “[...] technologies of the self were formed alongside the technologies of domination such as discipline. The subjects so created would produce the ends of government by fulfilling themselves rather than being merely obedient, and in Rose’s phrase (Rose 1989) would be obliged to be free in specific ways.” (N. Rose, O’Malley, and Valverde 2006, 89) This highlights the way in which the ‘fulfillment’ of the self becomes conducive to the maintenance of governmental goals, incited by processes that “govern at a distance” (Miller and Rose 1992) through “regulated self-responsibility” (McNay 2009, 62).64 As Foucault points out, the analysis of governmentality is fundamentally concerned with “the way in which one conducts the conduct of men” (Foucault 2008, 186) – showing how power is exercised in order to produce subjects that are “open and amenable to governmental interventions and techniques” (Odysseos 2011, 445). The economic subject, homo oeconomicus, constitutes “the interface of government and the individual” in governmentality (Foucault 2008, 253), and is an “entrepreneur of himself, being for himself his own capital, being for himself his own producer, being for himself the source of [his] earnings” (Ibid., 226). This individualisation of the subject and the transfer of responsibility to this individual for conducting itself in a responsible, approved (or ‘normal’) manner is a marker of a specifically neoliberal form of governmentality, as McNay points out. The transfer of responsibility to the individual gives rise to the notion of the “self as enterprise” (McNay 2009). Foucault points out that, besides participation in the economy, governing increasingly takes the health and well-being of the population as its aim, and the conduct of conduct on the level of populations is increasingly fostered and directed accordingly (in the “population-biological processes-regulatory mechanisms-State” series of “biopolitics”, Foucault 1997, 250; see also Foucault 1978, 139). In this conduct, “maintenance of the healthy body became central to the self management of many individuals and families” (N. Rose 2007a, 4). Responsible patients were “[e]ncouraged by health educators to take an active interest in their own health, and ‘activated’ by the new cultures of active citizenship, many refused to remain merely ‘passive’ recipients of medical expertise. ‘Patients’ became ‘consumers’ actively choosing, and using medicine, biosciences, pharmaceuticals and ‘alternative medicine’ in order [sic] maximize and enhance their own vitality, demanding information from their doctors, expecting successful therapies, and liable to complain or even go to law if they are disappointed.” (Ibid., 11) This process is not one of unidirectional domination, but rather a diffuse exercise of power that has the potential to sustain and also to challenge existing regimes. Within governmental networks, Miller and Rose point out that “[e]ach actor, each locale, is the point of intersection between forces, and hence a point of potential resistance to any one way of thinking and acting, or a point of organization and promulgation of a different or oppositional programme” (N. Rose and Miller 2010, 208, first published 1992). While the exercise of power makes individuals into subjects, this does not necessarily imply a top-down imposition of a normalising strategy on the individual by the state: “biopower […] [was] consentingly invoked by many social groups […]. The health of all […] became a priority of all” (Elbe 2005, 407). Normalising power is thus exercised by various actors, including the individual or “active” citizen, and always contains the potential for a subversion of existing power relations. But the power of active patients to challenge healthcare provisions in order to enhance their vitality is also accompanied by emerging responsibilities. Rose argues that the conduct of “active patients” is conducted by a “new somatic ethics” governing the political sphere of life and health, which shares an “elective affinity” with the bioeconomy (N. Rose 2007a; 2008a). The previous chapter of this thesis argued that the operation of this elective affinity could be traced in IP’s production of truth discourses of ‘life’, which normalised the informational-genetic view of life (the genetic dispositif) at the expense of other more complex accounts of ‘life’. This informational-genetic conception combines knowledge of the individual and the population in one code, which enables the integration of this information into the bioeconomy. This chapter argues that this genetic dispositif influences the formation of identities, conducting the conduct of subjects according to genetic ‘truths’ in a new somatic ethics, which also transfers healthcare responsibilities onto the subject. The increasing integration of genetic information into the bioeconomy further intensifies the exposure of the subject to this truth – thus amplifying the tensions between exclusive IPRs and new rights and responsibilities of ‘active patients’. Before this chapter turns to an exploration of IP’s role in the maintenance of the division between patent holders and patients/donors, the next section sets out new rights and responsibilities affecting the conduct of “active patients” in a “new somatic ethics”.