Reformism fails—even laws that supposedly serve the public good are designed for biopolitical ends

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.