Vulnerability link—the aff’s framing of climate changes through a lens of responsibility extends the power to make live and let die

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).