Materialism DA—Marxist analysis gets the causality between law and economics backwards

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 92-95. LJS

In his work, Foucault specifically proposed a different type of analysis to Marxist theory’s overwhelming focus on the power effects of economic relations23, or, the “‘economic functionality’ of power” (Foucault 1997, 14). With regards to law, Foucault intentionally reversed the analysis, arguing that “the juridical is clearly not part of the superstructure” (2008, 162), instead “the juridical gives form to the economic” in “an economic-juridical order” (Ibid., 163). The functioning market is no longer understood as a product of nature but as a deliberately constituted system that is being kept in its desired form by means of a juridical order. For example, the conditions for competition in the market are put in place by “formal privileges”: “[t]he beneficial effects of competition are not due to a pre-existing nature, to a natural given that it brings with it. They are due to a formal privilege. [….] [C]ompetition as an essential economic logic will only appear and produce its effects under certain conditions which have to be carefully and artificially constructed” (Ibid., 120, emphasis added). In similar way, IPRs are formal privileges conferring property rights necessary for creating value in a market economy. For a functioning market, the objects of property need to be stable and clearly identifiable – even more so in the case of scientific knowledge objects, which need to be artificially constructed in the form of exclusive monopolies in order to gain particular economic value. Without this, the dissemination of knowledge would remain “nonrivalrous”, as the sharing of knowledge does not diminish the value of the information itself (see for example Boyle 2008, 3). Emphasising the constitutive role of law for the market, especially in the technical field of law comprising the rules of property and trust, consequently shows: “that the relation between an economy of competition and a state can no longer be one of the reciprocal delimitation of different domains. [….] Government must accompany the market economy from start to finish. The market economy does not take something away from government. [….] One must govern for the market, rather than because of the market.” (Foucault 2008, 121, emphasis added) This understanding reverses Marxist theory’s analysis of the relation between the forces of the market and of government, and instead stresses that the economy is a product of law. Connecting this point of reference for law with an understanding of law’s changes towards the norm shows that especially technical fields of law such as IP law are governing for the market – and in this function also increasingly contributing to the governing of the problematization of life. IP’s growing relevance thus confronts this field of law with tensions between two aims of governing, which need to be resolved incrementally by IP policy and jurisprudence. Law’s constitutive relation to the economy emphasises the political relevance of the field of law, and highlights that it also constitutes an important site for resistance: “we must be able to act on this ensemble and intervene in such a way as to invent a different capitalism” states Foucault, and stresses that instead of “economic interventionism”, interventions need to take the shape of “maximum legal interventionism” (Ibid., 167). This makes a clear case for renewed attention to economic law, understanding tensions within this sector as modes of resistance that can influence the constitution of the economy. Law therefore ceases to be an afterthought for political analysis, and rather becomes a central site of analysis. The change towards a norm thus entails more than a change in status, it is rather a change towards becoming a site of contestation at which law is acting as a tactics governing challenges. Golder and Fitzpatrick show that law operates in two different modalities in governmentality, as a norm and also “in a constitutive engagement […][with] resistance and transgression”, in which it “extends itself illimitably in its attempt to encompass and respond to what lies outside its definite content” (Golder and Fitzpatrick 2009, 71). In this responsive mode, law can even “[disrupt] itself through becoming receptive of resistances that constantly challenge its position, its content, its being” (Ibid.). Using this understanding of law’s responsiveness to challenges sheds light on the role of law as a “tactics” determining “the right disposition of things” (Foucault 2000, 211). At the intersection of governing for the market and governing for life, tensions are growing around the influence of genetic conceptions of life (the ‘genetic dispositif’) and the rising importance of IPRs for deriving economic value from life. Here, IPRs begin to respond to challenges regarding their relation to life while maintaining their economic function – thus becoming operative in the determination of the “right disposition of things”, as a tactics that accommodates challenges while maintaining order. Golder and Fitzpatrick’s understanding of law’s responsiveness towards challenges highlights that this accommodation of resistance can even lead to a disruption of law. The analysis of contestations surrounding IP’s relation to life in the coming chapters shows how engaging with different ‘truths’ of life could very quickly disrupt the economic function of IPRs, and how challenges relying on human rights and the notion of ‘market failure’ could contest IP’s legitimacy even on a fundamental economic level. However, it is also shown that as a tactics of government, IPs continue to play a variety of roles that maintain the function of the economy by limiting the participation of donors in the further use of their donated material, transferring ownership to other participants in the bioeconomy, and by normalising scientific knowledge that ensures certainty and predictability instead of a complex genetic conception of life. As IPRs negotiate these pressures and roles, they change from a “mundane” form of technical knowledge to an important site of contestation in an unfolding governmentality.