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Julian Stallabrass

Response to Harvey 103

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The Sahel: a cognitive map

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Kheya Bag and Susan Watkins Structures of Oppression Edgerton's Great Britain 45

A new literary criticism

The warring souls of liberalism

Foucault's error

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Machine Translated by Google 1 Jan Schröder, Recht als Wissenschaft. Geschichte der Juristischen Methode vom Humanismus bis Historischen Schule, Munich, 2001. 2 See Michel Foucault, La volonté de savoir, Paris, 1976, chap. 5, "Droit de mort et pouvoir sur la vie", pp. 177 et seq.; Il faut défendre la société: Cours au Collège de France 1976, Paris, 1997, pp. 213-235; ed. cast.: History of sexuality, vol. 1, The will to know, Madrid, 2019; Society must be defended. Course at the College of France (1975-1976), Madrid, 2003.

The

The division of law into branches, as it has progressively developed since the 16th century, is dogmatic in nature and has a weak heuristic value1 . If we follow, however, the branches of law to their common trunk, we always arrive at the question that irrigates all of them: that of the preservation of human life. The covid-19 pandemic has reminded us of this, since the measures adopted to overcome it have affected all countries on the planet and have equally affected national law and international law, public law and private law. social law. Some commentators consider this to illustrate the influence of biopower, which, according to Foucault, characterizes the modern age2 . This interpretation is hasty if not inaccurate.

new left review 132 Jan Feb 2022 143

Without worrying much about consistency, these same commentators have often noted the "medieval" character of the confinement and quarantine measures imposed against the pandemic, which political leaders had resorted to many centuries before the supposed birth of "biopower." .

For Foucault, the term biopower refers to the transit, from the 19th century, of a right of sovereignty –consisting of «making death

alain supiot

Biopolitics, scientism and the rule of law

FOUCAULT'S ERROR

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Summarized in Roman law with the formula vitam instituere, the preservation of a properly human life throughout successive generations is, therefore, not the distinctive feature of contemporary forms of government, but rather a constitutive fact of the institutional phenomenon in general. and of law in particular5 . To understand this anthropological function, it is necessary that law and institutions are not reduced to mere techniques of power, nor life to its only biological dimension. For Louis Dumont, this reduction is a product of modern ideology, which views society as a collection of individuals who compete with each other6. Contrary to popular belief, Dumont maintained, Nazism was the poisonous fruit of this individualism: if institutions are in fact artifices, if only force reigns among individuals fighting for life, only biological identity can hold people together. human communities:

people” or “let them live” – to “an exact opposite power […] of “making people live” and “letting them die”»3 . But long before the idea of a secular and sovereign power crystallized in the sixteenth century, princes and cities have adopted legal provisions aimed at "make live" instead of "let live", not only to deal with pandemics, but also, more generally, to preserve the health of their populations. Herodotus, for example, marvels at the following rule in force among the Babylonians in the fifth century B.C. C.:

4 Herodotus, Herodotus i, Books i-ii, §197, London, 1975, p. 251.

6 Louis Dumont, Essais sur l'individualisme: Une perspective anthropologique sur l'ideologie moderne, Paris, 1983; and by the same author, Homo æqualis, vol. i, Génèse et épanouissement de l'ideologie économique, Paris, 1977, p. 19; ed. cast.: Essays on individualism: an anthropological perspective on modern ideology, Madrid, 1987; Homo aequalis: genesis and apogee of economic ideology, Madrid, 1999.

Holding doctors in low esteem, they transport the sick to market; then those who have suffered the same illness as the patient, or have seen others in a similar case, come and advise him of his illness and comfort him, telling him by what means they have recovered or have seen others recover from it. No one can pass by the patient without talking to him and asking him what ails him4 .

3 M. Foucault, Il faut défendre la société: Cours aux Collège de France 1976, cit., p. 214.

5 Digest (i,3,2); see, respectively, Pierre Legendre, Sur la question dogmati que en Occident, Paris, 1999, pp. 106-108; and Alain Supiot, Homo Juridicus, London, 2007; ed. orig: Homo juridicus: essai sur la fonction anthropologique du droit, Paris, 2005; ed. cast.: Homo juridicus: essay on the anthropological function of law, Buenos Aires, 2012.

Machine Translated by Google supiot: Law 145

Giorgio Agamben's work offers one of the most complete expressions of this reductio ad potestam. Agamben has used the Roman legal category of homo sacer to depart from Foucault's dating of biopower and affirm that sovereign power has always had life as its object8 . This thesis has the merit of recognizing that the links between human life and institutions are structural and do not date from the 19th century, but it gives the idea of sovereignty a timelessness lacking in historical basis. Roman law ignores it and the feudal order

is based on lordship, not sovereignty. Agamben defines, above all, sovereign power as the power to decide on the state of exception in which life can be outlawed, that is, captured and exposed to death. Based on Carl Schmitt, this definition was certainly appropriate for Nazism, whose legal practice was perfectly summarized by Göring: «Recht ist das, was uns gefällt» [law is what pleases us]9. But it dispenses with the historical experience of sovereignty conceived as self-limitation of power10, which provided a lasting base for the rule of law11, while the Nazi state of exception quickly found its catastrophic limit.

This reduction of politics to power and laws to mere techniques of domination is a common feature of postwar authors, who have lost the perception that their great predecessors –Durkheim, Mauss, Weber or Bergson– had of institutions.

Hitler only carried out to their ultimate consequences certain representations

that are very common in our time, whether the "fight of all against all", a kind of commonplace of lack of culture, or its more refined equivalent, the reduction of politics to power. But once these premises are accepted, it is difficult to see, with the help of Hitler, what can prevent those who have the means to do so from exterminating whomever they please, and the horror of the conclusion demonstrates the falsity of the premises. Universal disapproval demonstrates agreement on values and political power must be subordinated to values. The essence of human life is not the struggle of all against all and political theory cannot be a theory of power, but rather a theory of legitimate authority7 .

9 Quoted in Rush Rhees, "Wittgenstein's Lectures on Ethics," Philosophical Review, vol. 74, no. 1, January 1965, p. 25.

11 Cf. Georg Jellinek, Allgemeine Staatslehre, Berlin, 1921, pp. 435-489.

7 L. Dumont, Essais sur l'individualisme: Une perspective anthropologique sur l'ideologie moderne, cit., p. 186. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Stanford, 1998, p. 93; ed. orig. Homo sacer. Il potere sovrano e la nuda vita, Turin, 1995; ed. cast.: Homo sacer: sovereign power and bare life, Valencia, 2006.

10 Cf. A. Supiot, «La souveraineté de la limite», in Alain Supiot (ed.), Mondialisation ou globalisation ? Les leçons de Simone Weil, Paris, 2019, pp. 221 et seq.

8

Machine Translated by Google Confusing sovereignty with omnipotence in this way leads to the same dead ends that medieval scholasticism had to deal with. In the face of omnipotence, nothing stands: two and two can be five, the past may not have existed and the law is completely swallowed up by the black hole of "power." Thus, according to Agamben, only "outside all law" would a free life be conceivable12. From this point of view, institutions merely mask the reality of "power" of which the concentration camp would today be the secret paradigm; the departure lounges of the Roissy-Charles-de-Gaulle airport would therefore be declinations of Auschwitz13. Asylum seekers, however, are not yet gassed or subjected to medical experiments. Agamben begins by reminding us that the Hitler government was careful to place the concentration camps outside the legal sphere14.

(Schutzhaft), which had its direct source in the will of the Führer. In the blunt words of a Gestapo chief quoted by Agamben, "the camps were not instituted, one day they were there" (sie wurden nicht gegründet, sie waren eines Tages da). It could not be said more clearly that the fields belonged to the pure domain of fact. But this does not prevent Agamben from holding two pages after in the fields "law and fact merge", which endows them with a "particular legal structure"15. The fields do not have a legal existence, but do they have a legal structure?

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The deportation to the camps was a measure of "protective retention"

Legitimately concerned with shedding light on the phenomenon of totalitarianism, Agamben thus falls into the trap that Nazism left behind: subsuming any type of institution under the figure of "power", an eternal and never-defined principle that he transposes into politics. the notion of "strength" in physical terms or "survival of the fittest" in biological terms. Agamben contrasts two facets of human life: political life, or bios, and «naked life», or zôê, whose capture would be the main objective of «sovereign power»16. But anthropological knowledge

16

12 See G. Agamben, Homo Sacer: Sovereign Power and Bare Life, cit., p. 69. These affirmations are a symptom of the decomposition of democracy, already detected by Montesquieu in The Spirit of the Laws: "One was free under the laws, one wants to be free against them", in The Spirit of the Laws, Cambridge, 1989. , p. 23; ed. cast.: The spirit of the laws, Madrid, 2015.

14 Ibid., p. 182. Regarding the Schutzhaft, see Olivier Jouanjan, Justifier l'injustifiable: l'ordre du discours juridique nazi, Paris, 2017, pp. 148 et seq.

The importance of this distinction from the Greek sources has been criticized by Laurent Dubreuil in "De la vie dans la vie: sur une étrange opposition entre zôê et bios", in Labyrinthe, vol. 22, no. 3, 2005, p. 47-52.

13 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, cit., p. 188.

15 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, cit., p. 184.

Machine Translated by Google 18

Simone Weill:

supiot: Law 147

It would be unfair, however, to reduce Foucault's thought to the notion of biopolitics. We are indebted to him for his astuteness in noting that since the nineteenth century there has been a general retreat in law in favor of 'standardization techniques'. Unlike law, which places obedience to general and abstract rules under the control

Agamben's terrifying description of the murder of a young Jewish woman in Dachau for the purpose of "medical" experimentation testifies to the powerful sense of injustice that the author of Homo Sacer shares with his readers. If one were to describe the Nazi regime in the terms of those who confuse sovereignty with omnipotence, one would be inclined to see in the industrial policy of extermination pursued by that regime a paroxysmal form of power to "make people die" rather than "kill people." exactly opposite power” of “making people live” which, according to Foucault, defines biopower.

suggests otherwise, characterizing homo sapiens as a "symbolic animal" for whom these two dimensions of life are inseparable17. Even the wolf child, the closest manifestation to a "bare life," manifests a feeling of justice. Treating humans like animals has been a feature of scientism in general and of Nazism in particular,18 but it is a singular contradiction to claim that this is the hidden truth of any institution. as he observed

17 See Ernst Cassirer, An Essay on Man: An Introduction to a Philosophy of Human Culture, New Haven (ct), 1944, p. 44.

If force is absolutely sovereign, justice is absolutely unreal. But is not. We know it from experience. It is real in the hearts of men. The structure of a human heart is one more reality of the universe, just like the trajectory of a star. It is not in man's power to exclude entirely any kind of justice from the ends that man assigns to his actions. Not even the Nazis could. If it had been possible for men, they probably could have done it19.

19 Simone Weil, L'enracinement: prélude à une declaration des devoirs envers l'être humain [1949], in Œuvres, Paris, 1999, p. 179.

According to Carl Schmitt, the abstractions of law are the masks used by the Jews to hide their parasitic relationship with the German people, Carl Schmitt, "Die deutsche Rechtswissenschaft in Kampf gegen den jüdischen Geist", Berlin, 1936 .

20 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, cit., pp. 167 et seq.

Normalization techniques

Machine Translated by Google This displacement of the legal norm in favor of technical regulations was a common factor in totalitarian regimes. The notion of

of a judge, these techniques resort to surveillance and training21.

This "legitimate claim" implies that, as science advances in its interpretation of the "true laws" of human society, legal legality should be replaced by a normalization of behaviors. The task of leaders would be similar to that of engineers, who apply the laws of physics to make machines work, or of doctors, who restore health thanks to the discoveries of biology. The figures of the engineer and the doctor were explicitly presented as models by promoters of «scientific socialism» such as Pashukanis to illustrate the purely technical regulations that would govern in a communist society as soon as the progressive disappearance of the State was completed26.

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In recent years, they have experienced spectacular growth made possible by the progress of computing and cognitive sciences22. The novelty of the «normalization society», whose advent Foucault perceived, does not lie, therefore, as he believed, in its having «life as its object and objective»23, but, on the contrary, in its find it governed by a normality discovered by science and no longer by the legality referred to an ideal of justice. The standardization society was born with the rise of quantitative techniques, which since the end of the eighteenth century They led to interpret human societies, following the model of physics or biology, as measurable and manipulable objects that could be examined to understand and control their functioning24. This evolution in the social sciences has undoubtedly been the source of important progress in knowledge, but it has also given rise to what Renan called "the bold but legitimate claim to organize society scientifically"25.

22 See Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future and the New Frontier of Power, London, 2019; ed. eng.: The era of surveillance capitalism, Barcelona, 2020. 23 M. Foucault, Il faut defendre la société, cit., pp. 225-226.

25 Ernest Renan, L'avenir de la science: Pensees de 1848 [1890], Paris, 1995, p. 104.

24 See Alain Desrosières, La politique des grands nombres: histoire de la raison sta tistique, Paris, 1993; Lorraine Daston, Classical Probability in the Enlightenment, Princeton (NJ), 1988.

21 M. Foucault, La volonté de savoir, cit., pp. 116-118.

p. 71; ed. cast.: The general theory of law and Marxism, Barcelona, 1976. Evgeny Pashukanis, La théorie générale du droit et le marxisme [1924], Paris, 1970, 26

Machine Translated by Google supiot: Law 149

The situation was formally different in the Soviet Union, which did have a

constitution; but neither was the State the institutional touchstone there. As

in Germany, it became an administrative machine under the control of a

single party, which was responsible, among other things, for implementing plans based on calculations of economic utility. The fact that it was not characterized by a "regime of law" in the sense indicated by the Universal Declaration of Human Rights, does not mean that the Soviet Union was devoid of norms; but they were not legal norms, that is, general and abstract rules applied by independent judicial bodies31 . The rule of law gave way there to the rule by law32.

This change in the type of normativity characterized the turning point

perceived by Foucault and not the appearance of a power that aspired to

"make live" instead of limiting itself to "let live". To understand the

"normalization society" whose emergence he diagnosed, we need to

remember that not all normative orders are legal. Ritual or morality can be

sources of non-legal rules. Similarly, the Sadian order, in which DanyRobert Dufour has rightly seen

The Nazi State is effectively an oxymoron, since it concerns a regime that

knew no other State than that of exception27. Subjected to the tutelage of a single party, the Nazi State was a tool for the domination of the superior race and no longer occupied the place of "third party" guarantor that characterizes the legal phenomenon28. This position would make no sense in the totalitarian universe, and it was not held by Hitler either. The structure of the Nazi regime was not legal, but managerial29. The Führer was not the source of the law that should be applied, but rather the model to which to adapt, acting based on how he acted in each specific situation30.

28 Alexandre Kojève, Esquisse d'une phénoménologie du droit [1943], Paris, 1982, pp. 73 et seq.

30 Lion Murard and Patrick Zylberman (eds.), Le soldat du travail: guerre, fascisme et taylorisme, Recherches, no. 32/33, 1978, p. 518; O. Jouanjan, Justifier l'unjustifiable: l'ordre du discours juridique nazi, cit., pp. 285 et seq. 31 Alexandre Zinoviev, Le commune comme realité, Paris, 1981, pp. 170-171.

29 Johann Chapoutot, Libres d'obéir: Le management, du Nazisme à aujourd'hui, Paris,

27 Proclaimed by the Law of March 24, 1933 (Gesetz zur behebung der Not von Volk und Reich), the state of emergency only ended with the fall of the Reich in May 1945.

32 Harold Berman, Law and Revolution, 2 vols., vol. 1, The Formation of the Western Legal Tradition, Cambridge (ma), 1985; vol. 2: The Impact of the Protestant Reformation on the Western Legal Tradition, Cambridge (ma), 2003, p. 19.

Machine Translated by Google This normalizing ambition did not disappear along with the totalitarianisms of the 20th century. Today it takes the form of governance by numbers, extending to all aspects of human life and all scales of its organization34. It inspires the ideology of the "total market", which constitutes the realm of a "spontaneous order" that would animate the action of each and every one of us, if necessary through artificial intelligence and training techniques such as "nudges" . » [pushes] from behavioral economics or compliance [compliance norm]35. In fact, people are forced to assimilate this immanent order, purged of all heteronomous references, of which they are the agents and not the owners. Perpetual peace should soon reign in a flat world, free from the figure of an impartial and disinterested "third party," populated by human beings programmed like computers or trained like pets, thanks to progress in behavioral techniques and, it seems, , of the block chain technology36. The promise of this radiant future would make the law obsolete, as witnessed by the semantic changes registered in the shifts from law to program, from regulation to regulation, from government to governance, or from morality to ethics. In all these cases, the objective is to eliminate the distance between the norm and the subject who in this way is not required to observe it, but to incorporate it.

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Like previous vicissitudes of scientism, governance by numbers is doomed to find its catastrophic limit. The regulation of society, as Canguilhem has shown, is not a fact of the same nature as biological regulation. In the case of a living organism, "the norm or rule of its existence is given by

the vanishing point of economic ideology,33 it may be saturated with norms, but it can hardly be considered a legal order. On the other hand, the Sadian order, as a sphere of sovereign power in the sense given to this term by Foucault or Agamben, perfectly prefigures the concentrationary universes of the 20th century, extreme forms of the «normalization society » .

36 Katrin Becker, “Blockchain technology et la promise crypto-divine d'en finir avec les tiers”, in Religiosité technologique, Études digitales, no. 6, 2018.

34 Alain Supiot, Governance by Numbers: The Making of a Legal Model of Allegiance, Oxford, 2017; ed. orig.: Gouvernance by names, Paris, 2015. 35 Pablo Jensen, Deep Earnings: le neoliberalism au coeur des réseaux de neurones, Caen, 2021.

33 Dany-Robert Dufour, La cité perverse: libéralisme et pornographie, Paris, 2009.

Machine Translated by Google Biped whose head moves in the sky of ideas, cannot have or preserve reason if it is not instituted, that is, if it is not inscribed in an order that relates the infinity of its mental universe with the finite form of its experience. physics to exercise his reason, giving his mortal life a place and meaning. This always fragile advance of reason is threatened by two contemporary forms of deinstitutionalization.

The human being is a denatured animal,40 a two-part creature that cannot

be intelligibly reduced to organic life or mental life. supiot: Law 151

We would return to the era of fact, but of scientific fact»42.

On the one hand, biologism, which by retaining only the feet and dispensing with the head, completely assimilates it to the animal part; and on the other, post-modernism, which only retains its head, losing its foothold in reality. Based on these two forms, what Vico called the "barbarism of reflection" threatens the legal mechanisms aimed at preserving a properly human life41. Valéry observed that the conquest of things by positive science would lead to “an elaborate and rigorous form of barbarism, much more formidable than the ancient barbarities because it was more exact, more uniform and infinitely more powerful.

its very existence”, but human society “is not an end in itself”; "There is no

spontaneous social justice, that is, there is no social self-regulation." As Canguilhem next observes, "justice must come from somewhere else"37. A society cannot last without a reference that is heteronomous to it and neither can it be deduced from the observation of the facts, but rather is, on the contrary, the result of what Bergson called the «fabulous function»38 and Leroi-Gourhan the «apparent function» . symbolic moment»39, which are typical of the human species. Our life unfolds not only in the world as it is, but also in a world that could or should be.

38 Henri Bergson, Les deux sources de la morale et de la religion [1932], Paris, 1988, pp. 111 et seq.; ed. cast.: The two sources of morality and religion, Madrid, 2020. 39 André Leroi-Gourhan, Gesture and Speech, Cambridge (MA), 1993, pp. 313 et seq.; ed. orig.: Le gesture et la parole, vol. 2, La mémoire et les rythmes, Paris, 1964, p. 107.

41 Cf. on the «barbarism of reflection», Giambattista Vico, Principes d'une science nouvelle relative à la nature commune des nations [1744], Paris, 2001, pp. 536-537; see, Alain Pons, Vie et mort des nations: lecture de la Science nouvelle de Giambattista Vico, Paris, 2015, pp. 315 et seq.

40 Vercors, Les animaux dénaturés [1952], translated into English as You Shall Know Them, Boston, 1953; ed. cast.: Denatured Animals, Buenos Aires, 1953 (trans. Rosa Chacel).

37 Georges Canguilhem, Writings on Medicine, New York, 2012, pp. 67-78.

42 Paul Valéry, «Préface aux Lettres persanes» [1930], in Montesquieu, Lettres persanes: édition du tricentenaire, Paris, 2021, pp. 373-374; ed. cast.: Persian letters, Madrid, 1997.

Machine Translated by Google The experience of Nazi barbarism gave rise to a legal and institutional leap without precedent in human history. In the face of the senseless massacres of World War II, the unsustainability of a world completely subjected to power relations was confirmed. Given that "the disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind" , the Organization of the United Nations considered "essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law" [essential that human rights be protected by a rule of law, so that the human being is not compelled to the supreme recourse of rebellion against tyranny and oppression]43. Already in 1944 the member States of the International Labor Organization had agreed that «experience has fully demonstrated the truth of the statement in the Constitution of the International Labor Organization that lasting peace can be established only if it is based on social justice» [ experience has fully demonstrated how true is the statement contained in its charter, according to which permanent peace can only be based on social justice]44. It is impossible to overestimate the importance of the experience of the two world wars. Social justice is not only affirmed as an ideal, a moral duty that should weigh on nations and counteract political and economic realism, but it constituted in itself a sample of realism or, more precisely, it would mean the awareness of the historical experience that had seen humiliation and poverty give rise to hatred, violence and war "which twice in our lifetime has brought untold sorrow to mankind" [which twice during our lifetime has inflicted untold suffering on humanity ]Four. Five. A novelty in this flurry of declarations of principle was the affirmation that justice and peace could only be based on "the faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women." and of nations large and small»

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[ faith in fundamental human rights, in the dignity of the human person and in the equal rights of men and women and of

43 Preamble to the Universal Declaration of Human Rights (1948). 44 Preamble to the Declaration of Philadelphia (1944). 45 Preamble to the Charter of the United Nations (June 1945).

A leap forward

Machine Translated by Google nations large and small]46. Starting from experience – that is, from facts – these fundamental texts thus affirm the fiduciary character of a legal order that, according to Valéry's words, could not be based on "la seule contrainte des corps par les corps". [the exclusive coercion of bodies by bodies]47.

It was that they accommodated the physical dimension of human life by proclaiming that “the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” [the recognition of the inherent dignity and equal and inalienable rights of all members of the human family constitutes the foundation of freedom, justice and peace in the world]48. This new principle of dignity, solemnly affirmed in the Preamble and in Article 1 of the Universal Declaration of Human Rights, only appears, significantly, in relation to economic, social and cultural rights, beginning with the right to social security ( Article 22). Recognizing dignity means attributing immeasurable value to the life of each person. This non-mer cantizable value – regardless of price, to use Kant's term – encompasses the body and the mind and therefore requires covering physical needs.

supiot: Law 153

The novelty of these declarations, however, did not lie in the fact that they affirmed the primacy of legal relations over power relations.

These had been largely brushed aside in the statements of the Enlightenment, which aimed at a completely dematerialized "man"; This is why economic and social rights were said to be "second generation" rights. This chronology is, however, misleading, because the right of the hungry to receive help from the rich was in the Middle Ages the original object of the doctrine of natural rights49. The principle of dignity was expressed for the first time in fact regarding the duties towards the men and women most exposed to physical misfortune, the poor50. It is therefore understandable that dignity, the founding principle of social justice and of economic and social rights, has been attacked by defenders of neoliberalism since the early 1980s.

50 That is why Bossuet recognized his “eminent dignity”: Jacques-Bénigne Bossuet, De l'éminente dignité des pauvres [1659], Paris, 2015.

49 Brian Tierney, The Idea of Natural Rights: Natural Law and Church Law, 1150-1625 47 P. Valéry, «Preface aux Lettres persanes», cit. 46 Ibid.; see also the preamble to the Universal Declaration of Human Rights

[1997], second edition, Grand Rapids (mi), 2001, pp. 70 et seq.

Humans.

48 Preamble to the Universal Declaration of Human Rights.

Machine Translated by Google 154 nlr 132

The hallmark of the “society of normalization” is not – as Foucault erroneously claimed – biopower, but scientism, which erects fetishized science in the “new universal church”51. Like its predecessors, this church aspires to subject all human beings to identical laws that are beyond its deliberation. These immanent laws, inscribed in human nature, occupy the place previously granted to the transcendent laws revealed by God. As Alexander Grothendieck observed, scientism "is just as irrational and emotional in its motivations, and just as intolerant in its daily practice, as any of the traditional religions it has supplanted." Governments should not boycott the laws of such scientism, but, on the contrary, facilitate its action like a watchmaker "oils a watch or in any other way ensures the condition of a mechanism so that it functions permanently and correctly"52. The perimeter of democracy is thus reduced as the progress of knowledge of these laws advances, which are imposed without discussion as technical norms through pedagogy or constriction, so that "the government of the people gives way to the administration of things»53. The laws and the State have no other function than to grease the wheels of the self-regulated market. As Polanyi observed: "The mechanism set in motion by the principle of profit had an effectiveness comparable only to the most violent outburst of religious fervor in history"54. But this mechanism claims to be an experimental science, whose statements, like those of religion, are by their nature removed from all democratic deliberation. Again, this time through neoliberal reason, it is about replacing the rule of law with the rule by law and reducing law and the State to the function of an "oil placed in the gears" of the immanent laws discovered by the economic science, whose imposition is carried out outside the conscience of human beings and independently of the rationality or irrationality of their behaviors (principle of maximization, self-regulation of the market, stability

52 Friedrich Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, vol. 2: The Mirage of Social Justice, Abingdon and New York, 1982, p. 128; ed. cast.: Law, legislation and freedom, Madrid, 2018.

54 Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Times [1944], Boston, 2001, p. 31; ed. cast.: The great transformation, Barcelona, 2016.

53 Fredric Engels, Anti-Dühring [1878], Paris, 1971, p. 317; cast ed.: Anti-Dühring,

51 Alexander Grothendieck, “La nouvelle église universelle”, Survivre… et vivre, no. 9, August-September 1971, pp. 3-7.

Madrid, 2014.

The reign of scientism

Machine Translated by Google Under the "Washington Consensus", the submission of law and states to this "spontaneous order" of the market was entrusted to international or regional organizations (wto, imf, eu), which worked methodically to dismantle labor law, social security systems and public services, the three pillars of the social state

This search for scientific recognition was crowned in 1969 with the creation of the Bank of Sweden Prize in Economic Sciences in

memory of Alfred Nobel. Achieved plagiarism of the other Nobel prize winners, this consecration places economic studies at the same level as physics and biology, whose statements are by nature exempt from any democratic deliberation57. According to one of its winners, Gary Becker, the laws of economics derive in fact from those of genetics and natural selection, the only ones capable of explaining the dialectic of egoism and altruism observed in human behavior58. Hayek, one of the most famous "Nobel-winning economists", devoted his early research to the biophysical conditions of emergence of consciousness and conceived the "spontaneous order of the market" from the Darwinian model of natural selection59. This search for an anchorage in biology continues today in behavioral economics, which borrows the technique of randomized studies from medicine with the aim of getting the poor to behave well in the world as it is instead of questioning themselves. about his justice60.

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of human inclinations, etc.)55, which delimits the field of democracy now assimilated to a «market of ideas»56.

59 Friedrich Hayek, The Sensory Order, Chicago, 1952 [ed. cast.: The sensory order, Madrid, 2011]; Law, Legislation and Liberty, vol. 3, The Political Order of a Free People, London, 1982, p. 154.

  1. See Alain Supiot, "Democracy Laid Low by the Market," Jurisprudence, vol. 9, no. 3, 2018, pp. 449-460.

56 Ronald Coase, "The Economics of the First Amendment: The Market for Goods and the Market for Ideas," American Economic Review, vol. 64, no. 2, 1974, p.

58 G. Becker, The Economic Approach to Human Behaviour, cit., p. 282.

For a critical analysis of these approaches, see Jean-Michel Servet, L'économie comportementale en question, Paris, 2018; and Arthur Jatteau, Faire preuve par le chiffre: le cas des expérimentations aléatoires en économie, Paris, 2020.

55 Cf. Gary Becker, The Economic Approach to Human Behavior, Chicago, 1976.

On these promises, see World Bank, World Development Report 2015: Mind, Society, Behavior; Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth and Happiness, New Haven (CT) and London, 2008.

57 Patrick Moynot, "Nobel d'économie: coup de maître", Le Monde, October 15, 2008.

60

Machine Translated by Google The fight for patents

cit., pp. 138 et seq.; and FA Hayek, The miracle of Social Justice, cit., pp. 104-105.

63 Interview with Robert Bono in Sécurité sociale: L'enjeu, Paris, 1983, p. 60.

See, for example, G. Agamben, Homo Sacer: Sovereign Power and Bare Life,

62 M. Foucault, Naissance de la biopolitique, cit., pp. 196-197. The theme of law is omnipresent in Foucault's writings, who, however, did not address his theorization (cf. Márcio Alves da Fonseca, Michel Foucault eo direito, São Paulo, 2002).

World War have not been repealed, but they are contradicted by the rules imposed by "the spontaneous order" of a market

The scientific faith in the spontaneous order of the market clashes with the legal mechanisms of the social State, but even more so with the realities of the crises it generates. The covid-19 pandemic has reaffirmed for a time the fundamental importance of the preservation of human life, the core of legal and social institutions, and States have briefly recovered their role as guarantors of last resort for physical security in their territory. The legal vector of this resurgence is the «right to health»64, whose priority requires us to question some of the «structural reforms» imposed in the name of the market. The pandemic has consequently revealed the degradation of the healthcare system due to governance by numbers, as well as the inability of private insurance companies to shoulder the financial burden of vaccination and work interruptions.

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We live today in a schizophrenic regulatory order in which the legal principles and values that emerged from the crisis caused by the Second

built to apply the principles of social justice proclaimed in the great international Declarations and in the constitutions adopted after the Second World War. During the last decades, it has become somewhat of a good tone to mock the humanist emphasis or denounce the perversity of these Declarations, which would be nothing more than the mask of the imposition of the political on life61. Foucault never opted for this nonsense. Instead, he denounced the "inflationary critique of the state" and declared that "everyone participating in the great statephobia" was "going with the flow." He was not only one of the rare philosophers to perceive the crucial importance of social security, but also defended it against "the savage liberalism, which would lead to individual coverage for those with the necessary resources and to the absence of coverage for the rest»63.

61

64 «The enjoyment of the highest level of health that can be achieved is one of the fundamental rights of every human being without distinction of race, religion, political ideology or economic or social condition», «Preamble» to the Constitution of the WHO .

Machine Translated by Google 65 Rudolf von Ihering, Der Kampf ums Recht, 1872. 66 See Clotilde Jourdain-Fortier, Santé et commerce international: contribution à l'étude de la protection des valeurs non marchandes par le droit du commerce international, Paris, 2006. 67 Samira Guennif and Julien Chaisse, “L'économie politique du brevet au sud: variations Indiennes sur le brevet pharmaceutique”, Revue internationale de droit économique, vol. 21, no. 2, 2007, pp. 185-210; Maurice Cassier and Marilena Correa, “Brevets de médicament, luttes pur l'accès et intérêt public au Brésil et en Inde”, Innovations, no. 32, 2012, p. 109-127.

The creators of the World Health Organization, perceiving the objective solidarity that unites the planet's inhabitants in the face of health-related risks, sought to mobilize it in 1946 with the intention of avoiding such threats. One of the primary impulses of this active solidarity in the face of illness is – as it was among the

On the one hand, the "Preamble" of the Constitution of the WHO establishes that: "The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to achieve the highest degree of health." But, on the other, since the creation of the World Trade Organization in 1994, this knowledge has become the object of private property, which is precisely opposed to its "extension to all peoples", according to the Agreement on the Aspects of Trade-Related Intellectual Property Rights (TRIPS) 66. Until then, international law accepted that the protection of public health interests prevailed over the interests of patent owners. The TRIPS Agreement reversed this hierarchy and gave primacy to the protection of industrial property.

with claims of totality. The "struggle for the right", which the German jurist Rudolf von Ihering considered a task that had to be endlessly recommenced, is today more topical than ever65. Proof of this is the pressing issue of the right to health in times of global pandemic.

Babylonians – the sharing of knowledge related to it. This pooling, however, currently confronts the prevailing order on intellectual property rights, which assumes forms that illustrate the schizophrenic nature of the international legal order, torn as we indicated between the principles of social justice characteristic of the period. postwar and the free market.

The principle of protecting public health had led many countries, including Brazil, South Africa, Turkey and India, to exclude medicines from the patentable scope. The case of India is particularly instructive67. After the achievement of independence, its

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Machine Translated by Google 69 Manish Panchal, Charu Kapoor and Mansi Mahajan, “Success strategies for Indian pharma industry in an uncertain world”, Business Standard, Mumbai, February 17, 2014. 70 Institute of Medicine, "America's Vital Interest in Global Health: Protecting Our People, Enhancing Our Economy and Advancing Our International Interest", Washington dc, 1997.

68 Vandana Shiva, "Democracy Wins Patents Laws Debate in Indian Parliament," twr, no. 57, May 1995, p. 12.

71 The possibility of such compulsory licensing was introduced in 1925 in the Paris Convention for the Protection of Industrial Property.

The Indian Patent Act passed in 1911 was amended in 1970 to exclude from

its scope of application public health products and agricultural products "in the

interests of health, nutrition and existence of Indian citizens"68. From there, a

powerful Indian pharmaceutical industry emerged, which provided low-cost

generic drugs to meet the country's needs and enable exports to other countries

in the South. In the early 1990s, the price of AIDS treatment was around $700

a month; In 1993, after making use of the rights provided for in the Patent Act

of 1970, the Indian company Cipla began to manufacture generic medicines at

a price of $300 per month, which significantly reduced its cost. India, which was

a net importer of medicines until the early 1980s, has become a major

exporter69. This strategy has provoked strong reactions in the West. The

American Academy of Sciences, closely related to the American pharmaceutical

industry, was alarmed at the risk of losing its dominance in emerging markets.

In 1997 he asked the Clinton administration to enforce the intellectual property rights of the US pharmaceutical industry around the world under the Agreement

on

At the beginning of the new millennium, this emphasis on intellectual property

caused a major dispute between the United States and South Africa over the

granting of "compulsory licenses" to combat the AIDS pandemic, that is, the

South African government granted licenses without consent. of the patent

owner. These US lawsuits triggered a wave of international solidarity

Leaders concluded that the intellectual property regime inherited from British

colonialism had failed to ensure innovation and health protection for its

population and had given a de facto monopoly to Western companies, which

charged prohibitive prices.

TRIPS signed shortly before70.

on a large scale with South Africa, forcing the WTO to soften its position

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Machine Translated by Google 73 WHO-WTO, The WTO agreements and public health, Geneva, 2002. 74 com (2009) 351 final. This position was slightly modified in a new Commission Communication adopted in the middle of the pandemic, which refers to the "common European values" absent in the 2009 Communication: "universal access to quality care, equity and solidarity»: com (2020) 761 final, November 25, 2020.

76 Joseph Stiglitz and Adam Hersch, "The Transpacific Free-Trade Charade," Project Syndicate, October 2, 2015.

72 C. Jourdain-Fortier, Santé et commerce international: Contribution à l'étude de la protection des valeurs non marchandes par le droit du commerce international, cit., pp. 541-547.

75 Philippe Aghion et al., “Innovation and Top Income Inequality”, Bank of France, June 2015.

77 “South Africa and India push for covid-19 patents ban”, The Lancet, December 5, 2020.

The main argument in favor of patenting medicines was that it is essential for innovation. Reinforced by the European Commission in its Communication 351 of 2009 on the pharmaceutical sector74, this argument is also used by some economists, who base their quantification of technological innovation on the number of patents applied for75. In view of the enormous therapeutic progress made before

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The multinationals that developed them with the help of massive public funds try, however, to obtain the greatest possible benefit from them. In October 2020, South Africa and India asked the WTO to repeal intellectual property rules on these vaccines to allow their mass production77. Endorsed by the who and approximately 60 countries, this request was well received

of the adoption of the TRIPS Agreements , is not very convincing. It has been harshly criticized by other economists, such as Joseph Stiglitz, who maintain that, on the contrary, limiting intellectual property would reopen this field to competition76. The covid-19 pandemic has brought this conflict between rules to the fore. Global health security means that everyone in the world should have access to vaccines, according to the WHO Constitution .

in the Doha Declaration (2001) and to admit that public health imperatives fell within the scope of the derogations established in the TRIPS Agreement72 . The episode demonstrated that international collective action can stop the process of extending market logic to all aspects of human life. At the same time, however, the Doha Declaration accepted the change in the principle governing international health law, which is now based on the patentability of medicines73.

Machine Translated by Google Cf. Emilios Christodoulidis, The Redress of Law: Globalisation, Constitutionalism 2021.

78 “Waive Covid vaccine patents to put world on war jogging”, who/oms, March 7, 2021.

and Market Capture, Cambridge, 2021.

Cf. Carlos Lopes and Dirk Willem te Velde, “Structural Transformation, Economic Development and Industrialization in Post-Covid-19 Africa”, Institute for New Economic Thinking, January 14, 2021; Dinesh Abrol and Thomas Franco, “How Can India Expand covid Vaccine Production Quickly?”, The Wire, May 26,

80

81

79 This is notably the position of the Swiss and German governments: Agence France Presse, May 6, 2021.

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by the director general of the WTO and even by Biden, at that time recently elected president of the United States78. Without daring to contradict him head-on, European politicians have been very reluctant towards the proposal and have defended a policy of charitable donations from rich countries to poor ones, now maintaining that "developing" countries are incapable of producing these vaccines79. But countries like India and South Africa are demanding the release of patents, precisely because they already have large pharmaceutical industries80. As an actor in the market order, the European Union constantly presses for the establishment of "structural reforms" that reduce the obligations of employers with social security and public services, although both serve to "make people live." At the same time, he defends the high level of mandatory fees that favor multinational pharmaceutical companies, despite the fact that such fees lead to "letting people die." Faith in the total market, the most recent avatar of scientism, considers human life as a means and not an end. We observe here the conflict between a legal logic based on the imperatives of social justice and solidarity and a normalizing logic intended to grease the mechanisms of the "spontaneous market order." As we indicated previously, the "fight for rights", claimed by von Ihering, has become more urgent than ever81.

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