Genomic governmentality only magnifies the “make live or let die” paradigm of modern biopolitics—what counts as “life” and “good” are contingent on biopolitical paradigms

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 65-70. LJS

In his books and lectures at the end of seventies, Foucault famously argued that from the seventeenth century onwards, “the ancient right to take life or let live was replaced by a power to foster life or disallow it to the point of death” (Foucault 1978, 138, emphases in original). He traced the increasing turn of the art of governing towards the life of populations in a fostering or productive9 manner, and charted the historical emergence of this logic in the development of the liberal system and the later neoliberal variant. This ‘productive’ way of governing stood in opposition to the restrictive character of sovereign power exercises, which mainly governed by directly imposing punishments for undesirable behaviour. In this process of change, medical and technical knowledges became crucial sources of information for the formulation of governmental strategies. However, this connection entailed a wider “problematization” of conceptions of life, meaning that it gave rise to “the development of a domain of acts, practices, and thoughts that […] pose problems for politics” (Foucault 1994, 114): life became a political problem. This chapter argues that the relevance of knowledge over life for questions of governing was even more intensified by the emergence of the informationalised and molecularised vision of life. Laws establishing property over these forms of knowledge gained in significance as a result. A better understanding of the changing role of law in a new way of governing thus can highlight intellectual property’s complex engagement with a politics produced by a molecular conception of life. 1.1. Governmentality’s productive relation to ‘life’ Foucault’s fragmentary conceptions of governmentality and biopolitics were based on his analysis of the emerging bureaucratic state apparatus of the 18th century, in which advances in medical science and statistical method coalesced with newly centralised state power. This opened up an entirely new field of political intervention: the population. Foucault argues that the new emphasis on the life of populations, a biopolitics, was part of the emergence of a new art of governing, or “governmentality”, which “has as its purpose not the act of government itself, but the welfare of the population, the improvement of its condition, the increase of its wealth”, which is achieved by means of “[direct] large-scale campaigns” or “[indirect] techniques that will make possible, without the full awareness of the people, the stimulation of birthrates, the directing of the flow of population into certain regions and activities” (Foucault 2000, 217; see also Dean 2010; 2013; N. Rose, O’Malley, and Valverde 2006; Lemke 2007; 2011; Elbe 2005; 2009; T. C. Campbell and Sitze 2013; Muhle 2008; N. Rose 2007b; Rabinow and Rose 2006; Dillon and Reid 2001; 2009; Dillon and Lobo-Guerrero 2008; 2009). In this sense, the art of governing sought to put into place parameters that would ‘produce’ improved conditions of life – in a sense, “produce what you need to be free” (Foucault 2008, 63). But this very need to produce the conditions of freedom “entails the establishment of limitations, controls, forms of coercion, and obligations” (Ibid., 64). Direct interventions consisted for example of the developments of new norms for the construction of cities (Foucault 2007, 18), and indirect interventions consisted of new social norms for the individual’s responsible and healthy conduct, enforced not centrally, but in a decentralised “capillary” manner (Foucault 1977, 198). In this new art of governing, the population is directly and indirectly incited to contribute to the improvement of two different yet increasingly intertwined priorities of governing – life and the market. Instead of intervening with direct force, government rather “conducts the conduct of men” indirectly (Foucault 2008, 186), thus puts into place arrangements that “govern at a distance” – for example through the intermediary function of the expert translating the goals of government to the individual and incorporating individual demands into advice to policy makers (Miller and Rose 1992; 2008). The epistemological conditions according to which conduct is judged to be appropriate, or conducive to the “right disposition of things” (Foucault 2000, 208), are influenced by the notion of an “economical way of governing”, in which the “constitution of knowledge [savoir] of government is absolutely inseparable from that of knowledge of all the processes related to population in its larger sense – that is, what we now call the economy” (Ibid., 217). This meaning of the term economy 10 encompasses and presupposes the production of different knowledges as basis for appropriate actions of government. Rose, O’Malley & Valverde point out that “[t]o govern […] it was necessary to know that which was to be governed, and to govern in the light of that knowledge” (2006, 87). Scientific knowledge of the ‘nature’ of life became increasingly important, as biopolitical priorities began to determine the “border between the too much and too little […]” of governmental intervention according to “the nature of things” (Foucault 2008, 19). ‘Economic’ governing thus had to adapt to appear appropriate according to the scientific knowledges of life. However, knowledge “of all the processes related to population in its larger sense” (Foucault 2000, 217) also enabled an evaluation of potential strategies according to “the principle of the self-limitation of government” (Foucault 2008, 19). The neoliberal economic critique thus poses a limit to biopolitical strategies emphasising the welfare of populations, as governmentality “will not be content to derive norms of the optimal conditions for the population to expand and prosper. It will balance these considerations against another set of norms […] derived from the delicate, unstable disequilibrium between the population and the resources necessary for its maintenance” (Dean 2010, 137). In this sense, Dean points out that “[a]t one level, liberalism is a version of bio-politics; at another, it exists in a kind of permanent tension with bio-political imperatives” (Ibid., 133). The two priorities of governmentality – life and the market – are exerting challenges to and act as limiting critiques on each other (Ibid., 120). The ‘market’ acts as a central site of this economic critique of governance, acting as “a site of veridiction, […] a site of verification-falsification for governmental practice” (Foucault 2008, 32). Here, an economic calculus replaces the (moral) determination of true and false made by the previous “juridico-disciplinary model” (see for example Foucault 2007, 37 ff.) with “the question of the too much and the too little” of governmental intervention (Foucault 2008, 28). The influence of this calculus on the realisation of biopolitical strategies means that “[population phenomena] are considered as natural phenomena in relation to which one needs to calculate the costs, the required level of expenditure to manage these costs, and the likelihood that the expenditure will achieve the desired ends” (Elbe 2009, 67). This highlights that in governmentality, life is understood in economically contingent ways – and that particular biopolitical strategies are not necessarily primarily beneficial for health as such.11 While a greater priority is placed on the promotion of life and health through governing, any definitions of life are also increasingly understood in terms of economic “cost-benefit” calculations (Ibid.).12 Furthermore, what is judged to be ‘good’ for the population is also extremely contingent on social context and the value judgements made within this context – which is also the underlying argument of Foucault’s explorations of the foundations of contemporary power structures. Scientific knowledge of ‘life’ thus became decisive to the determination of appropriate interventions, which were based on the knowledge of the “regularities” within the population (Foucault 2000, 216). The original conception of life of the population arose from the close study of the individual in the institutions of the penal system and the clinic – where individuals were physically re-educated or disciplined into new modes of conduct (see for example Foucault 1963; 1977). This knowledge of the individual was 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’” (1977 Ibid., 190). These observations of the physical body created the notion of the population, and opened up the processes of life to the intervention of politics on the physical level. In this way, the definition of life became “problematised” for questions of governing – resulting in an ongoing process of definition and contestation that continues to raise new questions for political interventions. Foucault highlights similar ongoing problematizations concerning the issue of madness, sexuality, and crime and punishment, and argues that these can never be resolved “completely” by government (Foucault 1994, 114). Governmental interventions in the area of life and the body comprise an individualizing and a collectivizing method (Muhle 2008, 27; Foucault 1978, 139). Two series of power technologies operate “in a double mechanism” on the human body: as a “thorough administration of the individual body as machine” in the case of “the body-organism-discipline-institutions series” of “anatomo-politics”, and in “a planning of life as a biological process according to calculations” in the case of the “population-biological processes-regulatory mechanisms-State” series of “biopolitics” (Muhle 2008, 27 emphasis in original, my translation; Foucault 1997, 250; originally taken from Foucault 1978, 139). Importantly, both levels remain tied to the new logic of “power that has a positive relation to life, that fosters and protects it” (Muhle 2008, 27, my translation). It is argued below that these methods, which address either the body of the individual or the biological processes of the population, are intensified by the new molecular ‘truth’ about life. The genetic code of the individual contains information that can only be interpreted with reference to databases of knowledge compiled from large numbers of people – thus with reference to a new “apparatus of writing” in the language of DNA – but address the body of the individual on the sub-cellular, molecular level, which goes beyond Foucault’s original analysis of the disciplined bodies of soldiers. It is argued that genetic knowledge thus has a more profound effect on the conduct of the individual and also on interventions on the collective body of the population, producing new norms for behaviour but also new problems for governing in the process. Before this chapter turns to this reinterpretation of Foucault’s ideas in the light of the influence of the genetic dispositif, it first sets out how ‘governmentalisation’ manages tensions in an unfolding process of accommodation, and briefly explores the limits of this productive way of governing.