The topic’s very theory of property is antithetical to social bonds—biopolitical imperatives break apart via immunitary structuring logics

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

The importance of theories of property and the subject for legal theorists tends to be presented as a philosophical justification for legal rights of ownership. If, as many have argued, the structure of subjectivity justifies a particular model of property relations, then the concept of the subject provides a frame of reference by which questions of property rights can be validated or critiqued (consider the way that Locke’s metaphysical position on freedom allows him to analyze the practice of slavery, e.g. Locke, 2003: 109–110). Esposito allows us to frame the matter in slightly different terms. His intervention is not so much interested in whether an abstract understanding of subjectivity accords with the reality of private ownership claims but rather in the way in which relationships and processes of ownership within society construct our political and legal subjecthood. In other words, one can draw from his approach a reversal in the chain of logic, from the idea of the subject grounding the law of property to the law of property producing some of the constitutive elements of our political and legal embodiment. Of course, such an approach demands that we reject the notion of a subject preceding its engagement with property relations. It is therefore a theory that responds to critiques of the likes of Radin, which point out that her analysis fails to fully appreciate the extent to which personal claims to property (e.g. the way in which ownership of housing supports one’s personhood) are already socially determined, thus lending her theory a pervasive conservatism (Schnably, 1993). Esposito’s work on biopolitics – principally contained in his three books Communitas (2010), Bios (2008) and Immunitas (2011) – is predicated on a study of a tension within political society, which he traces to the etymology of community. Esposito (2010: 3–4) focuses on the Latin word communitas and its relation to the adjective communis, denoting that which is shared or public, as well as the term munus, which is traceable to the notion of obligation. His philosophical starting point with community is therefore its ideational heritage. He begins tracing this lineage by describing a collective bound not by a positive unifying element but by an unreciprocated duty or debt. In drawing out the philosophical implications of this association of community and debt, Esposito avoids the familiar Hobbesean and Hegelian configurations of polity and identity. This constitutive duty is not the rationalization of community’s incorporation into a sovereign, nor a process of intersubjective self-realization. Instead, duty delineates lack because it is precisely pure duty, that is, what is given is not to be replenished through contractual reciprocity or reconciled within an economy of exchange. Community is instead determined by alterity, because it is founded not on reciprocal rights and entitlements but on non- reciprocal duties to others. Community does not grant the subject autonomy and identity, but instead ‘that void, that distance, that extraneousness that constitutes them as being missing from themselves’ (Esposito, 2010: 7). Here, the subject is not moulded and protected but is displaced at its very inception. So any basis of the proprietary subject, and thus of property itself, is decentred in the radical impropriety of community, its underlying lack of property and possession (Esposito, 2010: 6–7). This is not, however, a romantic picture of community. It is unstable and uncertain. The impropriety of community denotes danger, as without proprietary boundaries the subject is vulnerable to its own dissolution, ‘the idea of community is felt as a risk, a threat to the individual identity of the subject’ (Esposito, 2013: 49). Esposito proceeds to identify the response to this tendency towards disintegration and does so with a sustained study of communitas’ negative, that is, immunitas. Immunitas refers to a protective structure that exhibits precisely the opposite characteristics of communitas, such as autonomy, determinacy and independence. Many of the features of modern political and legal philosophy can be seen as expressions of immunitas. The rule of law, the ascen- dance of the individual and the rationality of sovereignty are all expressions of a protective immunitary logic predicated on the absence of constitutive debt or duty. This does not entail the addition of protective apparatuses being assembled ‘on top’ of community but instead a contortion of the structure of community itself, whereby it constitutes itself by incorporating the characteristics of its own negative (Esposito, 2008: 52). There is, therefore, a curious structure of constitutive self-reference here, in which an entity expresses its own opposite as a way of solidifying its autonomy and ensuring that its identity is not determined extrinsically. For example, to take sovereignty as a paradigmatic example of a modern political con- cept carrying an immunitary function, one can appreciate that its underlying essence and purpose as a concept is as the entity that owes nothing, that is not determined by or depen- dent upon something other. Moreover, the function of sovereignty is to preserve (natural) life against its inevitable self-destruction by separating out a transcendent, constitutive site of its negative, the (political) sovereign, thus constituting the modern state (Esposito, 2008: 58). We can therefore understand Esposito’s (2011: 9) seemingly counterintuitive claim that ‘immunity constitutes or reconstitutes community precisely by negating it’. As well as operating at the level of the state, the same logic is also apparent in the modern rights-bearing individual (Esposito, 2011: 24). 4 The structure of the legal subject enables it to be situated in society in a manner that is distinctly self-referential; the individual is constituted by the rights that entrench his/her autonomy and at the same time the individual is doubled back such that he/she can possess those rights. In other words, it is constituted precisely by the fold between a subjective element that exercises ‘dominium’ over its objective counterpart (Esposito, 2012: 11). This immunitary logic manages to empty the property–subjectivity relation of any sort of constitutive duty. It is here that we begin to encounter the crucial significance of property to modern, immunitary politics, and in particular, one sees a clear reflection of Locke. Along with sovereignty and liberty, property is a key category that embodies an immunitary logic within modern political philosophy. In fact, it plays a special role in this respect, as it signals the location of immunitary principle internally within the subject itself. This immunitary subject is determined by its folding back over itself, that is, its capacity to ‘own’ itself and consequently to fortify its sense of self through the ownership of exterior objects. Furthermore, just as sovereignty allows a political community to isolate itself from its outside, property allows the individual to isolate himself/herself from other people. This claim is not merely empirical, in the sense that private property holdings physically separate us from each other but is, moreover, ontological. The logic of prop- erty allows the subject to understand itself as its own autonomous entity. Whilst this conflation of ‘being and having’5 articulates a broadly Lockean variant of property rights, an inversion of part of Locke’s logic must be noted. Whereas in Locke, the privatization of property is a natural consequence of the subject’s autonomy, what is clear from Esposito’s analysis is a reversal of these terms: the subject is an effect of prop- erty. It is the immunitary logic of private property that separates the individual and allows for the experience of freedom and selfhood. Describing subjectivity through empty tautologies such as ‘I am myself’ is symptomatic of subjectivity being constructed through subject and object, person and thing, at once. It is also important to understand that these immunitary practices do not exist to replace prior expressions of the munus. Immunization is instead a protection of community from its own dissolution, ‘preserv[ing] it through the negation of its original horizon of sense’ (Esposito, 2008: 52). What unifies the immunized community is common separation, resulting from the law’s general protection of individuals’ possessive capacity, whether exercised over their intangible rights or, by extension, their material property (Esposito, 2011: 25). Finally, whilst this split structure of the subject is posited as essential to modernity (Esposito, 2008: 55), it is important to understand that its exis- tence is by no means exclusive to the period. For instance, in his recent work, Third Per- son, Esposito (2012: 76) traces the Christian and Roman origins of a notion of personhood defined by ‘the irreducible difference that separates the living being from itself’. What is particular to modernity, however, is the ascendance of immunitary mechanisms to the centre of political and legal ideas.