Biopolitical modes of property organization cause desubjectification—as property law attempts to make intangible objects legible, our own bodies become more easily commodified

Matthew, University of Essex, UK. “Roberto Esposito and the Biopolitics of Property Rights.” Social & Legal Studies 2015, Vol. 24(3) 381–398. LJS

The reason for an excursus on Kant in particular here is not merely because Kant expresses most fundamentally the liberal bond between property and freedom. It is also because Kant understood that the ontological essence of modern property is its separa- tion from the proprietor (as discussed previously in the ‘Property and Subjectivity in Lib- eral Theory’ section). The true condition of such property is being able to own something that is not in one’s physical possession; this is the principle of rightful possession. Once this is acknowledged, as Esposito (2008: 69) puts it, ‘the contradiction implicit in proprietary logic fully emerges’. It is this contradiction, examined in the subsequent section, which sets the liberal property-owning subject upon a trajectory of its own unravelling. Property and Immunity In the initial balance between communitas and immunitas described thus far, one can appreciate how the subject is protected in its proprietary separation from others, that is, its identity is dependent upon itself in a self-referential relation that enables its pos- sessory characteristic. The subject is because it has. Ownership defines a principal status of individuals’ presence in modern political community, and this veneer of liberal equality is capable of fulfilling its underlying protective agenda so long as there is some assurance of proportionality and balance in the dichotomy of subject and object (Esposito, 2008: 68). This is the balance between the individual as subjective possessor on the one hand and its objective property on the other, both poles being mutually constitutive of the modern proprietary subject. However, the balance of this structure begins to weaken with the advent of two phenomena that flow from property’s immunitary basis. One, which is explicitly described in Esposito’s analysis, is the increasing distance between subject and object. This distance is ultimately the consequence of what Kant saw as rightful possession (that which does not require physical dominion) being the true measure of property, as it delineates ownership from mere control and enables property to take on an entirely incorporeal nature (Esposito, 2008: 68–69). The other phenomenon, which is not as explicit in Esposito’s analysis but which is a natural elaboration of his argument, is the proliferation of new forms of property. This is of course most evident in the advent of money as an abstract, substitutable signifier for property, but also includes the extension of our horizons of ownership further, notably in the burgeoning realm of intellectual property. It is inevitable that the two phenomena coincide. New taxonomies of property are intrinsically likely to operate at greater separation from the subject than old (e.g. an intangible investment property such as a shareholding operates at a greater ontological distance to its owner than, say, their house). The impact of these trends in property has an unequivocal effect, which Esposito describes as desubjectification. As will be explained, the increasing separation of the subject and their property inverts the effect of the protective immunitary structure, such that subject begins to dissolve into object. The culmination of this progression is unavoidably an affirmation of Marx’s diagnosis: Esposito (2008: 67) sees Marx’s description of people’s objectification in property as an immunitary consequence of the common claim that property is an extension of the subject. In Esposito’s (2008: 69) words, it marks ‘the reification of the person, disembodied of its subjective substance’. As such, the very subjectivity produced by the immunitary apparatus of modernity begins to weaken once its proprietary character is realized and intensified. By affirming itself in property, with its immunitary structure, the individual is advanced on a path of its own negation. The qualities we associate with the liberal individual, such as self-possession, personal sovereignty, autonomy, etc, find their expression to be diminished as the property upon which such expression is predicated becomes increasingly distanced and diffuse. What is stretched apart in this process is, ultimately, the individual’s relation with itself, the separation of its subjective possessory character and the objective property it needs to support its status as a property owner. This, of course, is the very struc- ture that constituted modern proprietary subjectivity in the first place. What previously manifested as subjective capacities become appropriated by the objective realm, such that identity, choice and expression become determined through a world of objects, a world that also happens to be governed, principally, by the market. In order to consider these trajectories of property, it is worth initially considering the processes of juridification that arose at the time that Esposito identifies the most forceful ascendance of immunitary practices. In particular, one should be mindful of the enclosure movement, which saw the rationalization of land rights and the shift from a feudal model to one resembling liberal, market-compatible holdings. From very early in English legal history, the structure of land law had a determining influence on people’s political subjectivity. The precursor to the recognizably modern landowner, the feudal tenant, was a product of the late Anglo-Saxon, pre-common law relation between a person and their lord. As observed in Digby’s (1875: 15) legal history, this bond developed into ‘a tie of mutual service, responsibility, and protection in every relation of life, and is regarded as one of the principal bases of social order’. That this duty was attached to territory ensured that one’s political being – in this case determined by servitude – was constitutively linked to the control of property by another. The processes of land enclosure, by which land was separated and tied to individual owners both geographically and through the construction of new legal concepts, was a consequence of a burgeoning socio-economic individualism. The most apparent losers in the process of enclosure were those whose landholdings were so small that they depended on the advantages of common land rights and who were subsequently forced to take up wage labour to make a living; ‘it would transform them and the labourers from upright members of a community, with a distinct set of rights, into inferiors dependent on the rich’ (Hobsbawm, 1999: 80). What ought to be added to this analysis of Eric Hobsbawm’s is that the rights lacked among this class are specifically land rights. If, as many argue, enclosure entailed significant social division between propertied and ‘unpropertied’ people, it is important to observe how parallel processes of individualization (which both include a proprietary logic) occur on either side of the rift. On the one hand, private ownership becomes the principal manner of holding land; on the other, for those without real property, one’s enfranchisement within society is achieved by the sale of one’s individual labour. In both cases, the construction of property rights holds an immunitary effect, in that the link between the subject and community is mediated through a form of self-referential pos session (ownership of one’s land and ownership of one’s labour). By contrast, the idea of common rights over a single resource is gradually eroded (although not erased) in law. Thompson (1976: 341) interpreted this as a transition from common rights to use property, which imply mutualism and indeterminacy, to property being a determinate, own- able entity and one which can be rationally exposed to market principles. It is important to note that, as is often the case, law tends to be a reflector rather than a cause of social change. As Daunton (1995: 104) claims, enclosure was not, in itself, ‘a dramatic shift from communal to individual ownership so much as the emergence of a more precise definition of what constituted an individual’s property’. Reinterpreted in the light of Esposito’s work, land enclosure should be recognized as a paradigmatic process of immunitary property relations, as it represents a seismic example of that crucial moment in any appropriation of private property, in which ‘the negative clearly begins to prevail over the positive’ (Esposito, 2008: 68). This represents the way in which the possessory act allows for social identity to be determined autonomously and individually and furthermore by the act of excluding other people. The twin trajectories of property, its proliferation and distancing, find their continued expression in what has been termed by some as a second movement of enclosure, in which there has been a similar effort to rationalize and individualize the ownership of new types of property (Boyle, 2002, 2003; Hunter, 2003). Primarily, such new property is intangible, intellectual property, but it could also cover the recognition of new interests in tangible matter, such as private property rights in isolated human body tissue. Recalling that the immunitary subject is one that is folded back to constitute itself self-referentially, it becomes apparent that these new technologies of property provide an explosion of channels through which such subjectivity can express itself – and ultimately negate itself. The ‘commons’ that is at risk of, or is in the process of, becoming enclosed should be familiar to us all in the way that the Internet has opened an entire new realm of virtual spaces, dwellings and marketplaces. (Although still resisting the pressure of enclosure are crowdsourced information resources such as Wikipedia, open-source software and ‘peer-to-peer’ methods of data sharing, for instance.) For some these spaces represent knowledge resources (Hess and Ostrom, 2007); others prefer to think of them as intangible places (McBeath and Webb, 2007) – understandable given the common semantics of the Internet, such as ‘cyberspace’, ‘to go online’ and web‘sites’. Whilst there are arguments against conceiving of digital communications networks through spatial and proprietary metaphors, our reality is of their relentless popular adoption (Lemley, 2003). Just as digital data is conceived as an ownable entity, networks for data transfer have been instantly understood as places which can be enclosed as property. A specific example to be considered is social media and the role it plays in the construction of identity. Newly ubiquitous online services such as Facebook and Twitter do consid- erably more than offer a repository of photographs and the means of communicating with others. More significantly, they operate as avatars that allow the subject to have a form of existence in a virtual space online, in which identity is performed through a choice of words and images (Jones and Holmes, 2011; Thomas, 2007). This allows users to refine their iden- tity deliberately, concealing some aspects whilst promoting or inventing others, but it also entails that identity construction can be conditioned through social norms (e.g. surrounding gender and sexuality; see Thomas, 2007: 35). Furthermore, it is necessary to recognize how online identities tend to be packaged for ‘public consumption’ (Gardner and Davis, 2013: 71) in a way that mirrors commercial content. Some services, such as YouTube, allow a platform to monetize one’s profile, facilitating a direct commodification of one’s online persona. Whilst some might be optimistic about the generation of new and creative forms of virtual subjectivity, it is also crucial to note that whilst such sites provide a place for the subject, they are ultimately owned and controlled by typically large commercial entities, who police the spaces according to their own rules and scatter them with revenue- generating advertisements. Therefore, whilst such new forms of subjectivity appear self-authored, it would be naive to think that the subject has their unfettered ownership. The line of analysis pursued here demands a cynicism about the utopianism that accompanied much of the hype around cyberspace as an emancipatory social platform. Whilst there are clear opportunities for creative self-expression here that are harder to find in the offline world, the freedom presented to the subject is typically quite narrow, principally, freedom to be a consumer. The almost limitless potential for enclosing objects of virtual property is set to enable their increasing supremacy in how we under- stand ourselves as subjects. Rather than operating as the basis of politically enfranchised subjective capacity, this trajectory leads to an imbalance in the mechanics of modern proprietary self-representation, such that the subject’s objective counterpart becomes distorted and distanced in a realm that is not only separated from the body but which is also entirely intangible and entwined with the interests of the market. This is an exam- ple of what Esposito (2008: 68) calls the breakdown in the proportionality ‘which unites the owner of property to himself’, weakening our sense of selfhood and capacity within political community, creating increasing reliance on these new enclosures to effectuate ever more fragile experiences of social and political identity. A further example of the trajectories under analysis is the proprietary status of body matter, such as cells for use in medical research, organs for transplants or reproductive body materials. Traditionally this has posed a problem for the law as humans are not nor- mally treated as legal property (slavery being an obvious historical counterexample), meaning that isolated body matter take on a necessarily peculiar status. As such, special rules have arisen to govern property interests in such cases (see Hardcastle, 2009), and there is nevertheless a discernible trend towards the assertion of rights in human mate- rial, increasingly for commercial gain. For example, the landmark Moore v. Regents P 2d 479 (Cal SC 1990) case, in which an American leukaemia patient entered into a legal battle over ownership of cells taken from his body during hospital treatment. The Supreme Court of California held that whilst a third party can assert rights in body mate- rials, these rights are available upon the excision of the material, not through a transfer of ownership from one owner to the next. In other words, the first point at which such mate- rial becomes property is the point at which it is alienated from the host. As Dickenson (2007: 37–38) has observed, arguments that individuals should have more pervasive rights over their own body material, in response to cases like Moore v. Regents, tend to be articu- lated from a liberal contortion of the Lockean principle of self-ownership (Locke argues that we own ourselves in the sense of agency, not simply as a material body). Despite the evident commercialization of human body tissue, the line between human and property, between subject and object, still lacks full clarity in law. Identifying a clear threshold of separability is discussed by some, such as Penner (1997), Harris (2003) and Hardcastle (2009), as a possible way through this area of ambiguity (Quigly, 2012). Such separation evokes a crucial aspect of Kant’s idea of property discussed earlier; it is only rightful possession, not physical possession, which represents property’s necessary condi- tion. But such separation, which suggests that anything that can be isolated from the body becomes just another object of property whose ownership may be contested,8 inevitably entails the alienation of the very thing our legal subjectivity holds dominium over. Insofar as such subjectivity is a product of this proprietary relation, such intensified separation is, again, entwined with what Esposito (2008: 69) calls desubjectification, which is the shift in the power dynamic between subject and object, such that the market-orientated domain of objects determines our ever diminishing sphere of subjecthood. This is most marked in this example of body materials, in which the individual not only loses a position of mastery over the realm of objects but is also subjugated by that realm, which turns to appropriate – quite literally – part of the body and absorb it into the market. The ethical debate about the commodification of body matter is of course already well established (see e.g. Munzer, 1994; Phillips, 2013; Radin, 1996). There are myriad reasons as to why one might object to the marketization of human tissue and data, from con- cern about unequal access to medical procedures, to principled worries about the sanctity of human dignity, to dystopian anxieties of people harvesting their own body parts – or worse, being harvested by others – for financial reward. But what is also crucial for the purposes of this article is the impact this commodification has on our subjecthood. Instead of the objective body providing a secure platform for the subjective agency of the individual, it provides the material for much more insecure relations in the market. On the one hand, it might require people to reconceptualize themselves as economic agents of their own bodily commodities. For those who hold extreme faith in the market and who are less morally squeamish about this prospect, there might appear something empowering about this. But on the other hand, as already evinced in cases like Moore v. Regents, it means that this platform is also to be increasingly contested with third parties. Where such battles are lost, when third parties gain legal ownership of individuals’ bodily materials and data, not only do we see an obvious disempowerment of that person’s eco- nomic agency over their body but also a partial loss of the very grounds of their subjectivity. Esposito’s insights therefore demand that we question the ‘separability thesis’, that is, the claim that we can arrive at a legitimate means of identifying ‘ownable’ body materials by focusing on their capacity to be separated from the person. The theoretical and practical coherence of this position has already been critiqued sharply (Quigly, 2012), and Esposito lends further weight to such criticism, prompting us to question the neat separability of owner and owned as well as our ability to determine and comprehend each independently of the other. Instead, we ought to understand that our proprietary subjectivity stands to be continually drawn, manipulated and ultimately potentially dis- solved in response to property claims over the body. What Esposito also allows us to appreciate is that this commodification of the body is not a relatively recent invention of late capitalism but is part of a ‘general transition of humankind towards thingness’ (Esposito, 2012: 96) determined in advance by the contra- dictory structure of property itself. In the liberal model, the world of ownable objects pro- vides a terrain upon which we can achieve the individualizing experience of being a proprietor. A negative relationship not merely exists with respect to other people (my subjectivity is affirmed by my property not belonging to others) but also more fundamentally within the proprietary fold itself: my identity is determined by the dichotomous relation between proprietor and property. However, as the realm of objects proliferates outwards into new virtual technologies and back inwards through the body, one sees an ever decreas- ing scope for the subject to differentiate itself from the objects upon which it depends. Between these two sets of examples we therefore see a twin effect. First, we see the subject extending itself into the virtual world and ending up increasingly reliant upon its new enclosures of property to give itself an enfeebled sense of identity and capacity in the modern world. Second, in the body parts example, we see a movement in the other direction, that is, the world of objects pushes back into the domain of the subject, appropriating what was previously thought to be an inalienable part of the human. Both can be drawn back to Esposito’s (2012: 95) concern about ‘the gradual reification of life’, the manner in which the living element of the human species is increasingly colonized by a proprietary logic. For the pragmatist, resisting these processes of desubjectification entails seeking to restore a sense of proportionality between property and person. This might involve, for instance, pushing back against the increasing colonization of the body by property claims and joining those who ask that we actively seek to limit by law what can be absorbed into market relations. Practically speaking, this argument could lend tentative support to the promotion of inalienable categories of property, for example, in the work of Radin (1982, 1987, 1993) (whilst being mindful of the critique signposted earlier in the article). But a more radical agenda involves recognizing that what is at stake here is not merely economic disparity caused by the virulent work of capitalism but also the very parameters of subjectivity. This position prompts us not simply to reappraise what objects we see as property but also how we see ourselves and how we understand the original forms of community that immunitary structures have inverted. Challenging this trajectory of property at its root means questioning the most basic Lockean conflation of having and being and asking ourselves of the ways our personhood might be delineated not by self- possession but by the ethical and moral responsibilities of existing as part of a community. This is to ask how a more meaningful subjectivity might not be defined by what we have but by the way the very proprietary boundaries of the self, the boundaries that make sense of having, are continually undone in our relations with others.