wolfe - animals in a biopolitical context

8/12/2019 Wolfe - Animals in a Biopolitical Context

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Before the Law: Animals in aBiopolitical Context

Cary WolfeDepartment of English, Rice University, Houston

AbstractUsing examples such as factory farming and the recent decision by the Spanish Parliament to

grant fundamental rights to great apes, this commentary explores the extent to which our current

legal frameworks (including the legal discourse of rights) provide satisfactory responses to the

question of justice for non-human animals. After briefly sketching appeals to the rights model

(both pro and con) for non-human animals in legal pragmatism and in animal rights philosophy, I

turn to recent work in biopolitical theory to rearticulate not just the ethical but also the political

status of our treatment of non-human animals.

Keywordsanimal ethics; animal rights; anthropocentrism; biopolitics; sovereignty; species.

On June 25 2008, the Environmental Committee of the Spanish Parliament approved resolu-

tions to grant basic rights to Great Apes on the model of The Great Ape Project co-authored

by philosophers Peter Singer and Paola Cavalieri. The three basic rights outlined for this

new community of equals in their co-authored project are (1) The Right to Life, which

means that members of the community may not be killed except in very strictly defined

circumstances such as self-defense; (2) The Protection of Individual Liberty, which for-bids imprisonment without due process and only where it can be shown to be for their

own good, or necessary to protect the public; and (3) The Prohibition of Torture, which

forbids the deliberate infliction of severe pain on a member of the community.1 The

resolutionswhich, according to major news services, are expected to pass into Spanish

law within a yearwould in practical terms forbid harmful experiments on great apes and

1. Paola Cavalieri and Peter Singer, eds. The Great Ape Project: Equality Beyond Humanity

(New York: St. Martins Press, 1993), p. 4.

Commentary

LAW, CULTURE

AND

THE HUMANITIES

Corresponding author:

Cary Wolfe,

Bruce and Elizabeth Dunlevie Professor of English, Department of English, MS-30, Rice University,

Houston TX 772151892.

E-mail: [email protected]

Law, Culture and the Humanities6(1) 823

The Author(s) 2010

Reprints and permission: http://www.

sagepub.co.uk/journalsPermission.navDOI: 10.1177/1743872109348986

http://lch.sagepub.com


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10 Law, Culture and the Humanities 6(1)

imagination in an approach to animal protection that can think of it only on the model of

the civil rights movement.7But I would also agree with those at the other end of the

animal rights argumentphilosophers such as Singer, Cavalieri, and Tom Regan, and

legal scholars such as Steven M. Wise and Gary Francionethat positions like Posnersand Epsteins rely upon a thoroughgoing ethnocentrism thinly disguised (and sometimes

not disguised at all) as a hard-nosed legal pragmatism giving straight talk to the airy

philosophers (such as Singer) or those overly influenced by them (such as Wise).8Posner,

for example, wholly subordinates the question of rights to economic utility and political

expediency, holding that legal rights are instruments for securing the liberties that are

necessary if a democratic system of government is to provide a workable framework for

social order and prosperity. The conventional rights bearers are with minor exceptions

actual and potential voters and economic actors. Animals do not fit this description.9

Epstein is even more bald in his deployment of what Regan has called the might makes

right position: Let it be shown that the only way to develop an AIDS vaccine that

would save thousands of lives is through painful or lethal tests on chimpanzees. People

will clamor for those tests.... An animal right to bodily integrity would stop that move-

ment in its tracks. It will not happen, and it should not happen.10

Such positions are easily disposed of, in my view, as Singer disposes of Posners in an

exchange in the collection Animal Rights: Current Debates and New Directions from

which Ive been quotingan exchangethat continues a contretemps originally published

in the online magazine Slate. In Regans words, a theory such as Posners takes ones

moral breath away ... as if, for example, there would be nothing wrong with apartheid in

South Africa if few white South Africans were upset by it.11As Singer rightly observes,

7. Posner, p. 58.

8. Though Singers Animal Liberationand Regans The Case for Animal Rightsare more well-

knownindeed, they are the founding philosophical texts of the animal rights movementit

is probably Cavalieris The Animal Question: Why Nonhuman Animals Deserve Human Rights

(New York: Oxford University Press, 2001), that provides the most compelling argument, within

analytic philosophy, for adapting the rights framework to (at least some) non-human animals.

9. Posner, pp. 578.

10. Epstein, p. 157.11. Tom Regan, The Case for Animal Rights, inIn Defense of Animals, ed. Peter Singer (New

York: Harper and Row, 1985), p. 17. Singer zeroes in on Posners contention that I believe

that ethical argument is and should be powerless against tenacious moral instincts and offers

his version of Regans charge in the Slate reply: If this supports our current treatment of ani-

mals, why should it not also be used to support other preferences for our own, which appear

to be just as much a brute fact about human beings as a preference for our own species? Here

is one example: We must be honest, decent, loyal, and friendly to members of our blood and

no one else. What happens to the Russians, what happens to the Czechs, is a matter of utter

indifference to me. The speaker is Heinrich Himmler. He goes on to say, Whether the other

races live in comfort or perish of hunger interest me only insofar as we need them as slavesfor our culture; apart from that it does not interest me. Peter Singer, Ethics Beyond Species

and Beyond Instincts: A Response to Richard Posner, in Animal Rights: Current Debates and

New Directions, ed. Cass R. Sunstein and Martha C. Nussbaum (New York: Oxford University

Press, 2004), p. 87.


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Wolfe 11

Posners pragmatism turns out to be an undefended and indefensible form of selective

moral conservatism.12As for the pragmatics of its pragmatism, the Posner/Epstein line

fares no better. Posner, like Epstein, suggests that one way to protect animals is to make

them property, because people tend to protect what they own, and like Epstein he sug-gests that what we mainly need is more vigorous attention to and enforcement of laws that

prevent gratuitous cruelty.13

In a similar vein, Epstein argues that it is of course pretty

straightforward to pass and enforce a general statute that forbids cruelty to animals. Even

if cruelty is narrowly defined so as to exclude, as it routinely does, the killing of animals

for consumption, at least it blocks some truly egregious practices without any real human

gain, gory lust to one side.14But Epsteins contention only gives the lie to Posners

insistence that few of us are so indifferent to animal suffering, that we are unwilling to

incur at least modest costs to prevent cruelty to animals,15for as Singer points out, anti-

cruelty laws do not apply to the case where the largest amount of animal suffering by far

takes placenamely, factory farming. Against what Posner calls the liberating potential

of commodification, Singer points out that we dont have to wonder how many animals

suffer and die because they are someones property, because we know that of the ten

billion animals raised for food in the United States each year, the vast majorityeasily

several billionspend their entire short lives in factory farming conditions that range

from brutal to horrendous.16

Indeed, such anti-cruelty laws do not even apply to the over-

whelming majority of animals used in biomedical research, product testing, and the like,

because (as is commonly known), the US Animal Welfare Act of 1966, as amended under

the Senate leadership of Jesse Helms in 2002, explicitly excludes birds, mice, and rats

that is to say, about 90 percent of the animals used in such research.17

As even this brief sketch suggests, one might well conclude that we find a growing

disjunction between existing legal doctrine and the question of justice for (at least some)

non-human animals, even as our knowledge about their ethically relevant characteristics

and capacities (to suffer, to communicate, to engage in complex forms of social behavior

and bonding) increases dramatically every year. Not surprisingly, then, many philoso-

phers, such as Jacques Derrida and Cora Diamond, have attempted to move beyond

existing legal frameworks and their philosophical underpinnings in an effort to revisit

and articulate anew the conversations about justice, law, and animals that Ive just

sketched all too briefly. While Derrida is on principle sympathetic with those who ...have good reasons to rise up against the way animals are treated: in industrial production,

12. Singer, p. 87.

13. Posner, p. 59.

14. Epstein, p. 156.

15. Posner, p. 59.

16. Singer, p. 90.

17. For a brief overview, see James Rachels, Drawing Lines, inAnimal Rights: Current Debates

and New Directions, ed. Cass R. Sunstein and Martha C. Nussbaum (New York: Oxford

University Press, 2004), pp. 1623. For an excellent detailed discussion of current law and

enforcement as it pertains to factory farming, see, in that same collection, David J. Wolfson

and Mariann Sullivan, Foxes in the Hen House: Animals, Agribusiness, and the Law: A

Modern American Fable, pp. 205233.


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in slaughter, in consumption, in experimentation, he nevertheless believes that it is

preferable not to introduce this problematic concerning the relations between humans

and animals into the existing juridical framework by extending some form of human

rights to animals.

18

This is so, he argues, because to confer or to recognize rights foranimals is a surreptitious or implicit way of confirming a certain interpretation of the

human subject that we then extend and retrench when we grant rights to animals. More

importantlyand the point is confirmed, it seems to me, in the positions of both Posner

and Epstein on the rights-holding subject as both citizen and consumerthat very notion

of the human subject will have been the lever of the worse violence carried out against

nonhuman living beings.19It is within this philosophico-juridical space that the mod-

ern violence against animals is practiced, he continues, and that is why, however much

sympathy I may have for a declaration of animal rights that would protect them from

human violence, I dont think this is a good solution.20And so, Derrida concludes, For

the moment, we ought to limit ourselves to working out the rules of law [droit] such as

they exist. But it will eventually be necessary to reconsider the history of this law and to

understand that although animals cannot be placed under concepts like citizen, con-

sciousness linked with speech, subject, etc., they are not for all that without a right. Its

the very concept of right that will have to be rethought.21

A crucial point of emphasis for Derridas articulation of our ethical responsibility to

animals is shared by Diamond, and it is one that she finds actively evaded by the rights

model. For Diamond as for Derrida, it is our shared vulnerability and finitude as embod-

ied beings that forms the foundation of our compassion and impulse toward justice for

animalsa vulnerability that gets deflected, as she puts it, by the rights model, thekinds of argument it deploys (pro or con), and its emphasis on agency, reciprocity, and

the like. As Diamond puts it,

The awareness we each have of being a living body, being alive to the world, carries with it

exposure to the bodily sense of vulnerability to death, sheer animal vulnerability, the

vulnerability we share with them. This vulnerability is capable of panicking us. To be able to

acknowledge it at all, let alone as shared, is wounding; but acknowledging it as shared with

other animals, in the presence of what we do to them, is capable not only of panicking one but

also of isolating one.... Is there any difficulty in seeing why we should not prefer to return to

18. Jacques Derrida and Elisabeth Roudinesco,For What Tomorrow: A Dialogue, trans. Jeff Fort

(Stanford: Stanford University Press, 2004), pp. 64, 74. I have discussed the work of both

Derrida and Diamond in greater detail elsewhere. See, for example, my essay Exposures,

in Stanley Cavell, Cora Diamond, John McDowell, Ian Hacking, and Cary Wolfe,Philosophy

and Animal Life (New York: Columbia University Press, 2008), pp. 141.

19. Derrida and Roudinesco, p. 65.

20. Derrida and Roudinesco, p. 74.

21. Derrida and Roudinesco, p. 74. As Derrida observes, In general, in the European philosophi-

cal tradition, there is no conception of a (finite) subject of law [droit] who is not a subject of

duty (Kant sees only two exceptions to this law [loi]: God, whose rights are without duty, and

slaves, who have duties but no rights). It is once again a matter of the inherited concepts of

the subject, the political subject, the citizen, the sovereign self-determination of the subject of

law. . . (74). On the French distinction between droit and loi, see p. 212, n.19.


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moral debate, in which the livingness and death of animals enter as facts that we treat as relevant

in this or that way, not as presences that may unseat our reason?22

From this vantage, to try to think about our ethical obligations to animals by deployingthe rights model misses the point, not just because the question is thicker and more

profound than the thin if-P-then-Q propositions of a certain style of analytic philoso-

phy, but also because when genuine issues of justice and injustice are framed in terms

of rights, they are thereby distorted and trivialized; this is so, Diamond thinks, because

of the underlying tie between rights and a system of entitlement that is concerned, not

with evil done to a person, but with how much he or she gets compared to other partici-

pants in the system. Instead, she argues, what is crucial to our sense of the injustice

done to animals is the embodiment and vulnerability we share with them, which grounds

our horror at the brute subjection of the body that they so often endure. For Diamond,

the horror of the conceptualizing of animals as putting nothing in the way of their use

as mere stuff depends upon a comparable horror at human relentlessness and pitiless-

ness in the exercise of power toward other human beings (in, say, the practice of tortur-

ing political prisoners).23

To put the question this way is to modulate the discussion of animals, ethics, and law

into a different register, one that does not take for granted, much less endorse, our current

legal structures for confronting such questions: namely, the context of biopolitics. Here

too, the question of the body and embodiment, and the political and juridical power over

life itself, is fundamental, as in a suite of works by Italian philosopher Giorgio Agamben

devoted to the distinction (drawn from Aristotle) between bios (or political being) andzoe (usually translated as bare life), orto take a rather different examplein Judith

Butlers recent text Precarious Life: The Powers of Mourning and Violence.24 In the

immediate post-9/11 context in which Butlers book was written and to which it responds,

the Posner version of legal pragmatism that views the law as that which insures the well-

being of us and ours over and against them takes on much more ominous over-

tonesparticularly in light of the more and more routine suspension of law by executive

fiat, the increasingly regularized declaration of a state of exception so well analyzed by

Agamben, that establishes a no-mans land between public law and political fact, and

between the juridical order and life.25Against the conjugation of law, power, and com-munity we find Posners legal pragmatism, Butler asserts that the fundamental question

22. Cora Diamond, The Difficulty of Reality and the Difficulty of Philosophy, in Stanley Cavell,

Cora Diamond, John McDowell, Ian Hacking, and Cary Wolfe, Philosophy and Animal Life

(New York: Columbia University Press, 2008), p. 74.

23. Cora Diamond, Injustice and Animals, in Slow Cures and Bad Philosophers: Essays on

Wittgenstein, Medicine, and Bioethics, ed. Carl Elliott (Durham, N.C.: Duke University Press,

2001), pp. 121, 136.

24. On Agamben, see, among others, The Open: Man and Animal, trans. Kevin Attell (Stanford:

Stanford University Press, 2004),Homo Sacer: Sovereign Power and Bare Life, trans. Daniel

Heller-Roazen (Stanford: Stanford University Press, 1998), and State of Exception, trans.

Kevin Attell (Chicago: University of Chicago Press, 2005).

25. Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago

Press, 2005), p. 1.


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that needs to be reopened in the current political context is Whose lives count as

lives? And finally, What makes for a grievable life? Despite our differences in location

and history, she continues, my guess is that it is possible to appeal to a we, a com-

munity of those who deserve ethical consideration by virtue of their embodied vulner-ability and exposure.26Is there a way, she asks, in which the place of the body ...

opens up another kind of normative aspiration within the field of politics, to consider

the demands that are imposed upon us by living in a world of beings who are, by defini-

tion, physically dependent on another, physically vulnerable to one another?27From

where, she asks, might a principle emerge by which we vow to protect others from

the kinds of violence we have suffered, if not from an apprehension of a common

human vulnerability?28

Yet it is precisely here, I think, that Butlers effort (whose impulses I admire and

share), runs aground precisely on the question of non-human beings. After all, why

should the dangers and vulnerabilities that accrue from the fact of embodiment be limited

to a common human vulnerability? Why shouldnt non-humanlives count as grieva-

ble lives, particularly since (as is common knowledge) many millions of people grieve,

and grieve deeply, for their lost animal companions? (I will leave aside for the moment

the even more complicated point that at least some non-human animalselephants and

great apes, for exampleapparently grieve over the loss of those close to them.) The

reasons for this lacuna in Butlers text are complex, I think, and I wont be able to fully

explore them in the confines of this commentary, but the problem is not, in any event, the

perhaps expected one: that animals have an ontologically and existentially different rela-

tionship to their finitude than we do, along the lines of Heideggers existential of being-toward-death (which Derrida has convincingly critiqued, to my mind, in connection

with the human/animal dichotomy).29In fact, Butler is at pains to separate herself from

such an ontology in many of her key theoretical and methodological commitments.30

Rather, the key problems seem to be (1) that Butlers notion of ethics and of community

remains tied to a reciprocity model, whose extreme form would be the contractualism

of John Rawls; and (2) that her notion of subjectivityand this is a directly related

pointremains too committed to the primacy of agency for ethical standing (whereas

a crucial aspect of taking embodiment seriously, if we believe Derrida, is that it sub-

verts the overly-hasty association of subjectivity with agency).

26. Judith Butler,Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004),

p. 21.

27. Butler, pp. 26, 27.

28. Butler, p. 30.

29. I discuss this matter in some detail in Exposures, esp. pp. 2134.

30. See, for example, her refutation of the charge that I may seem to be positing a new basis for

humanism. This is not so, she argues, because a vulnerability must be perceived and recog-

nized in order to come into play in an ethical encounter, and when a vulnerability is recog-

nized, that recognition has the power to change the meaning and structure of the vulnerability

itself. Hence it follows that vulnerability is fundamentally dependent on existing norms of

recognition if it is to be attributed to any human subject (pp. 423). This exempts Butler from

the Heideggerian humanism problem, but only to thrust upon her the problem of a reciprocity

model of ethics, as I am about to discuss.


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vulnerability that precedes the formation of the I,that is to say, if our finitude is

radical precisely because it has no conceptthen it is not clear why this does not entail

non-human as well as human ethical standing.36

I agree completely with Butler that dehumanization becomes the condition for theproduction of the human to the extent that a Western civilization defines itself over and

against a population understood as, by definition, illegitimate, if not dubiously human.37

But as I have argued in detail elsewhere, as long as the automatic exclusion of animals

from ethical standing remains intact simply because of their species, such a dehumaniza-

tion via animalization will be readily available for deployment against whateverbody

that happens to fall outside the ethnocentric we. So when Butler calls for a politics

that seeks to recognize the sanctity of life, of all lives, I believe she needs to expand her

call across species lines, to declare the human/animal distinction irrelevant, strictly

speaking, to such a call; but to do so, she would need to move away from the centrality

of reciprocity and agency to ethical and political standing that we find in Precarious

Life.38This is not to offer any specific advice for the moment about line drawing with

regard to membership in the moral community (a point Ill return to later); it is simply to

suggest that Butlers own theoretical coordinates ought to compel an understanding that

the ham-fisted distinction of human versus animal is of no use in drawing it.

The fundamental conflict in Butlers position is underscored all the more by her focus

inPrecarious Life on the question of Jewish identity and anti-Semitism, simply because

that very question has been linked decisively with the deployment of the human/animal

distinction as a crucial site for modern biopolitics by the very searching investigations of

Agamben and the scholar to whom I now want to turn for the remainder of this discussion,Italian political philosopher Roberto Esposito. I cannot possibly retrace here the intrica-

cies of Espositos analysis in his bookBios: Biopolitics and Philosophy, but it nonetheless

provides a perfect context in which to revisit the decision by the Spanish Parliament with

which I opened this essay. Esposito insists that contemporary thought cannot fool itself

(as still happens today) in belatedly defending modern political categories that have been

shaken and overturned ... because biopolitics originates precisely in these political catego-

ries, before it rebels against them.39In this light, the limitations of the rights model for

recognizing our relations to non-human others ought to be clear enough because it fore-

stalls, for example, going beyond a semantics of the person that has been representedfrom the origin of our culture in its juridical status (at least insofar as the law was and

continues to function in relation to the intangible individuality of the person).40

In the three-volume sequence of whichBios is the third installment, Esposito sets him-

self the task of trying to understand the relationship between biopoliticswhich entails a

growing superimposition between the domain of power or of law [diritto] and that of

36. Butler, p. 31.

37. Butler, p. 91.

38. Butler, p. 104.

39. Roberto Esposito,Bios: Biopolitics and Philosophy, trans. Timothy Campbell (Minneapolis:

University of Minnesota Press, 2008), p. 11.

40. Esposito, p. 194.


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Wolfe 17

life and modernity, one that derives canonically from Michel Foucaults later work.41

Foucault famously argues in The History of Sexualitythat for millennia, man remained

what he was for Aristotle: a living animal with the additional capacity for a political exist-

ence; modern man is an animal whose politics places his existence as a living being inquestion.42Moreover, as he observes, biopolitics is the power to make live. Sovereignty

took life and let live. And now we have the emergence of a power that I would call the

power of regularization, and it, in contrast, consists in making live and letting die.43

Foucaults insight is to see that the real mechanism by which sovereignty functions is

not, as Esposito puts it, that of regulating relations between subjects or between them and

power, but rather their subjugation at the same timeto a specific juridical and political

order. On the one side, rights will emerge as nothing other than the instrument that the

sovereign uses for imposing his own domination. Correspondingly, the sovereign can only

dominate on the basis of the right that legitimates the whole operation. In this way, what

appeared as split in an alternative bipolarity between law and power, legality and legiti-

macy, and norm and exception finds its unity in the same regime of sense.44

In addition to articulating the real formal mechanism by which rights are related to

sovereignty, Foucault also allows us to see that for biopolitics what is in question is no

longer the distribution of power or its subordination to the law, nor the kind of regime nor

the consensus that is obtained, but something that precedes it because it pertains to its pri-

mary material. Behind ... the dialectic that up until a certain stage we have named with the

terms of liberty, equality, democracy (or, on the contrary, tyranny, force, and domina-

tion)Foucaults analysis uncovers in bios the concrete power from which these terms

originate and toward which they are directed.45(As is well known, Foucaults main exam-ples are medicine, madness, and the rise of the various health professions under the

broader regime of governmentality and its specifically modern techniques of managing,

directing, and enhancing the lives of populations via hygiene, population sciences, food

sciences and so on, the better to extend and consolidate political power.) Foucaults insight

has enormous resonance for our own moment, of course, in whichbecause of globaliza-

tion, nuclear threat, global climate change, the post 9/11 war on terror, and so onthe

body that experiences ever more intensely the indistinction between power and life is no

longer that of the individual, nor is it that sovereign body of nations, but that body of the

world that is both torn and unified by virtue of its being completely globalized. 46Here, we find a key element of the contemporary political landscapethe radical

transformation of the idea of humanitasthat escapes the very political and legal con-

cepts inherited from modernity. Presumed for centuries as what places human beings

[gli uomini] above the simple common life of other living species (and therefore charged

41. Esposito, p. 7.

42. Qtd. Esposito, p. 33.

43. Michel Foucault, Society Must Be Defended: Lectures at the Collge de France, 197576,

trans. David Macey, ed. Mauro Bertani and Alessandro Fontana (New York: Picador, 2003),

p. 247.





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with a political value), humanitas increasingly comes to adhere to its own biological

material. But once it is reduced to its pure vital substance and for that reason removed

from every juridical-political form, the humanity of man remains necessarily exposed to

what both saves and annihilates it

47

(as in, for example, Agambens well-known discus-sion of bios andzoe).What is involved here (to stay with Agambens terms for a moment

more) is not so much the animalization of human populations but rather the entry of

the human/animal distinction into what Agamben and Esposito will characterize as a

zone of indeterminacy.48Or rather, what is involved is the exposure of how that dis-

tinction simultaneously masks and makes possible the more fundamental operations of

modern politics by means of what Agamben calls the anthropological machine, which

each time decides upon and recomposes the conflict between man and animal.49

For Esposito, however, Foucaults analysis leaves us with two main problems. First,

it oscillates between an affirmative and a negative (or thanatological) sense of biopoli-

ticseither a politics of life or a politics over life50without being able to see that

they are joined, as Esposito wants to argue, in a single immunitary mechanism that,

even as it seeks to protect life, also constantly threatens to takelife. From this vantage,

Esposito observes (rewriting Foucaults genealogy of the subject), if communitas is

that relation, which in binding its members to an obligation of reciprocal donation, jeop-

ardizes individual identity, immunitas is the condition of dispensation from such an obli-

gation and therefore the defense against the expropriating features of communitas.51

Such a paradigm can be traced to Hobbes, he argues, in light of whose concept of sover-

eignty the real biopolitical function that modern individualism performs is made clear.

Presented as the discovery and the implementation of the subjects autonomy, individual-ism in reality functions as the immunitary ideologeme through which modern sover-

eignty implements the protection of life.52Secondly, Esposito argues, Foucault never

really settles on whether biopolitics is specifically modern or is only intensified in the

modern period in relation to the paradigm of sovereignty. Esposito attempts to bring this

question to a head specifically on the terrain of his analysis of Nazism, which raises the

question of the relation of modernity with its pre, but also that of the relation with its

post. What was twentieth-century totalitarianism with respect to the society that pre-

ceded it? Was it a limit, a tear, a surplus in which the mechanism of biopower broke free

... or, on the contrary, was it societys sole and natural outcome?53It is at this juncture that Espositos brilliant analysis of Nazism opens a few crucial

avenues for understanding the place of the animal in a biopolitical context. First, it revisits

the question raised powerfully by Agambens work: are the Nazi death camps in fact the

ur-form of modern biopolitics laid bare, not a historical fact and an anomaly belonging to

the past, but rather the hidden matrix and nomos of the political space in which we are

47. Esposito, p. 4.

48. Agamben, The Open, p. 37.


50. Esposito, p. 32, emphasis added.


52. Esposito, pp. 601.



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Wolfe 19

still living?54

How we address this question bears crucially, as we will see in a moment,

upon how we understand not just the ethical but also thepolitical status of what Derrida

(among others), has characterized as the Holocaust visited upon animal life in ways

unknown previously in historyin factory farming, medical and product testing, and so on.Second, the analysis of Nazism is crucial in disclosing the central function of race in mod-

ern biopolitics in its thanatological declension, and how, as Agamben has argued, it is

subtended by the human/animal distinction, the animalization of human populations.

Here, Espositos immunitary paradigm moves beyond both Agamben and Foucault in

arguing that once racism has been inscribed in the practices of biopolitics, it performs a

double function: that of producing a separation within the biological continuumbetween

those that need to remain alive and those, conversely, who are to be killed; and that more

essential function of establishing a direct relation between the two conditions, in the sense

that it is precisely the deaths of the latter that enable and authorize the survival of the

former.55Third (and one could point to similar passages in Agamben, of course) Espositos

analysis of the Nazis suggests that the mainspring of Nazi genocide cannot exactly be said

to be the animalization pure and simple of the Jews and other victims:

More than bestializing man, as is commonly thought, [Nazism] anthropologized the

animal, enlarging the definition of anthropos to the point where it also comprised animals of

inferior species. He who was the object of persecution and extreme violence wasnt simply an

animal (which was indeed respected and protected as such by one of the most advanced pieces

of legislation of the entire world), but was an animal-man. ... [T]he regime promulgated a

circular that prohibited any kind of cruelty to animals, in particular with reference to cold, to

heat, and to the inoculation of pathogenic germs. Considering the zeal with which the Nazis

respected their own laws, this means that if those interned in the extermination camps had been

considered to be only animals, they would have been saved.56

While Esposito overstates his case hereas Singer points out, meat-eating went on as

usual under the Nazi regime, and the Nazis routinely conducted painful and even brutal

experiments on animals such as primates57his analysis does have the virtue of compli-

cating our understanding of the relationship between the human/animal distinction and

the bios/zoe doublet of biopolitics. In our own moment, for example, some animals(those we call pets) are so well cared for that the pet care industry in the US grew in

total expenditures from 17 billion dollars in 1994 to nearly 36 billion dollars in 2005.58

And as any owner of a companion animal will tell you, the range of veterinary care

54. Agamben,Homo Sacer, p. 166.


56. Esposito, pp. 12930. See in this connection Espositos adjacent observations about the

extraordinary development of the field of anthropology in Germany at the end of the 19th

century and beginning of the 20th, culminating precisely in the 1930s and 1940sthat is to

say, the immediate intellectual context for the rise of Nazism.

57. Singer, p. 91, n.12.

58. Statistics provided by American Pet Products Manufacturers Association, www.fetchpetcare.

com website, last visited September 10, 2008.


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Wolfe 21

And in addition, our current treatment of animals cannot be said to obey the logic of

genocideper se, since the minimal conditions of genocide agreed upon by most scholars

are (1) that there exists a declared intention on the part of the sovereign state to kill a

homogeneous group of persons; (2) that such killing is potentially complete, that is,involves all its members; (3) that such a group is killed insofar as it is a group, not for

economic or political motives, but rather because of its biological constitution.62

This is

not to say that the animal Holocaust is not horrible; indeed, as Derrida points out, part

of what makes it even more horrible is that it cannot end. Rather than extermination pure

and simple, it is manufactured death. And on the matter of sheer scale, there is no com-

parison between the two, since 10 billion animals are raised for food each year in the US,

the vast majority of them in factory farms. In fact, 900 million of these animals each year

never even make it to the slaughterhouse for their merciful end, because they die first of

stress, disease, or injury.63

Such distinctions are important, I think, not just in enabling us to honor the suffering

in question by paying attention to its particularity, its non-generic nature in every sense,

but also in allowing us to specify more precisely its political nature in the new context

opened up by biopolitics. As Agamben writes in The Open:

We completely misunderstand the nature of the great totalitarian experiments of the twentieth

century if we see them only as a carrying out of the nineteenth-century nation-states last great

tasks: nationalism and imperialism. The stakes are now different and much higher, for it is a

question of taking on as a task the very factical existence of peoples, that is, in the last analysis,

their bare life.... Faced with this eclipse, the only task that still seems to retain some seriousness

is the assumption of the burdenand the total managementof biological life, that is, of the

very animality of man.... It is not easy to say whether the humanity that has taken upon itself

the mandate of the total management of its own animality is still human, in the sense of that

humanitaswhich the anthropological machine produced.64

With regard to this great task, it hardly needs pointing out that the practices of modern

biopolitics forged themselves in the common subjection and management of the factical

existence of both humans and animalsnot least, in the practices and disciplines of

breeding, eugenics, and high-efficiency killing. Indeed, as Charles Patterson points outin his bookEternal Treblinka: Our Treatment of Animals and the Holocaust, American

eugenics and assembly-line slaughter crossed the Atlantic Ocean and found fertile ground

in Nazi Germany. In fact, the assembly line processes used to kill Jews in Nazi Germany

derived from production models developed by Henry Ford, who reveals in his autobiog-

raphy that the inspiration for his assembly-line method came from a visit to a Chicago

slaughterhouse and witnessing its disassembly line.65


63. Humane Farming Association website, http://hfa.org/factory/index.html, last visited September

8, 2008.


65. Charles Patterson, Eternal Treblinka: Our Treatment of Animals and the Holocaust (New

York: Lantern Books, 2002), pp. 53, 72.


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But Espositos key intervention is to move beyond this thanatological sense of the bio-

political, which would see, with Agamben, the Nazi camps as the apotheosis of the modern

biopolitical project itself, and insist on an affirmativebiopolitics in which the immunitary

logic, which protects what we used to call the subject from the appropriating demandsof community, need not automatically reverse itself into the autoimmune deficiency

critiqued by Derrida and played out in the Nazi treatment of the Jews.66

In this new con-

text, practices such as factory farming are directlypolitical not just in the sense of embod-

ying a material dispositifthat is central to the biopolitical power over life in its modern

form, but also becauseand more importantlysuch a turn away from the thanatological

and autoimmunitary logic of biopolitics can only take place, Esposito argues, if life as

suchnot just human (vs. animal) life, not just Aryan (vs. Jewish) life, not just Christian

(vs. Islamic) lifebecomes the subject of immunitary protection. Drawing upon both

Simondon and Deleuze (which he sees sustaining a certain trajectory of Nietzsches work),

Esposito writes,

we can say that the subject, be it a subject of knowledge, will, or action as modern philosophy

commonly understands it, is never separated from the living roots from which it originates in

the form of a splitting between the somatic and psychic levels in which the first is never decided

[risolve] in favor of the second. ... This means that between man and animalbut also, in a

sense, between the animal and the vegetal and between the vegetal and the natural objectthe

transition is rather more fluid than was imagined, not only by all the anthropologisms, but also

by the ontological philosophies that presumed to contest them, by reproducing instead, at a

different level, all their humanistic presuppositions.67

And what this means, in turn, is that there is a modality of bios that cannot be inscribed

within the borders of the conscious subject, and therefore is not attributable to the form of

the individual or of the person.68This preindividual bios (to use Simondons term),

rather than being imprisoned in the confines of the individual, opens those confines to an

eccentric movement that (in Deleuzes words) traverses men as well as plants and ani-

mals independently of the matter of their individuation and the forms of their personality.69

If we take seriously Espositos affirmative biopolitics, we are forced to conclude that

current practices of factory farming and the likewhile crucially different from the logicof the Holocaust and of genocide in the ways I have just notedconstitute not just some

embarrassing sideline of modern life that has nothing to do with politics proper, and which

can be well regulated by an adjacent set of anti-cruelty laws that do not intersect with poli-

tics as such in any fundamental way. Rather, such practices must be seen not just as political

but as in fact constitutivelypolitical for biopolitics in its modern form. Indeed, the practices

66. For Derridas discussion of the autoimmune paradigm, see Jacques Derrida, Autoimmunity:

Real and Symbolic Suicides, in Philosophy in a Time of Terror: Dialogues with Jurgen

Habermas and Jacques Derrida, ed. Giovanna Borradori (Chicago: University of Chicago

Press, 2003).





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Wolfe 23

of maximizing life, of making live, in Foucaults words, through eugenics, artificial

insemination and selective breeding, pharmaceutical enhancement, innoculation, and the

likeall for the purposes of maximizing the efficient production of fleshare on display

in the modern factory farm as perhaps nowhere else in biopolitical history. Such practicesare part of a matrix that takes as its political object planetary life itself, for which the sec-

ondary distinction between human and animal may be deployed, across actual species lines,

as necessary; they involve the exponential expansion and routinization of mechanisms and

logics that extend from the Chicago slaughterhouses of the turn of the twentieth century,

through the assembly lines developed by Ford, to the Nazi death camps and back again,

traversing what we now can recognize as a newly expanded community of the living.

Of course, as many of the thinkers with whom I began this essay would be the first to

point out, Espositos preindividual sense of bioswould seem to offer little with regard

to how we handlespecific cases regarding the legal protection of animals:should great

apes be treated the same as mice, dogs the same as carp? Or more bracinglyto recall

earlier debates around Deep Ecology and the ethics of biocentrismshould anthrax or

ebola virus enjoy the same Deleuzean right to creative flourishing as these other life

forms, even if it means the end of homo sapiens itself?70But Espositos affirmative bio-

political turn does have the virtue of reframing our current legal and political norms to

enable us to see the irony (if one wants to call it that) of the Spanish Parliaments deci-

sion with which we began: that even as it constitutes a monumental step forward for our

relations with non-human animals within the political purview of liberal democracy and

its legal framework, it might well be seen, within the biopolitical context opened up by

Esposito and others, as essentially a kind of tokenism in which non-humans raciallysimilar enough to us to achieve recognition are protected, while all around us a Holocaust

against our other fellow creatures rages on and indeed accelerates. And most important

of all, perhaps, it enables us to see that however we take up those cases, we have to begin

by abandoning the human/animal distinction altogether, and instead confront the bioju-

ridical node between life and norm, recognizing that bios crosses the entire extension

of life without providing a continuous solutionthat any thing that lives needs to be

thought in the unity of life.71As Esposito puts it, this is neither the content nor the final

sense of biopolitics, but is at a minimum its presupposition.72Such a shift is, in one

sense, absolutely minimal, but in another sense, one might hope, monumental.

70. For a brief discussion, see myAnimal Rites, pp. 2232. In this connectionas a kind of answer,

if you likeEspositos discussion of Spinozas concept of natural right in the final pages of

Bios is worth revisiting. Framed as a kind of precursor to autopoiesis theory, Espositos sum-

mary of Spinoza is indeed worth comparing with the closing pages of Humberto Maturana and

Francisco Varelas The Tree of Knowledge: The Biological Roots of Human Understanding, rev.

ed., trans. Robert Paolucci, foreword J.Z. Young (Boston: Shambhala Press, 1992). As Esposito

puts it, considering that there are as many multiple individuals as there are infinite modes of

the substance means that the norms will be multiplied by a corresponding number. The juridi-

cal order as a whole is the product of the plurality of norms and the provisional result of their

mutable equilibrium. It is for this reason that neither a fundamental norm from which all the

other norms would derive as a consequence can exist nor a normative criterion upon which

exclusionary measures vis--vis those deemed abnormal be stabilized (187).



wolfe - animals in a biopolitical context

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