The Law of the Living: Material for Hypothesizing the Biojuridical

People are already thinking about establishing a system of law for modern biology; but everything in modern biology and the new situations it creates, the new courses of events it makes possible is a matter for jurisprudence. ¹

Roberto Esposito’s theoretical itinerary isn’t easily translated into the traditional categories of legal thought. This doesn’t mean of course that the legal scholar should remain indifferent to Esposito’s thinking. It almost seems as if with each new work Esposito is increasingly concerned with the concept of law. Significantly, Bios: Biopolitics and Philosophy ends with a section entitled “The Norm of Life,” where, perhaps for the first time, Esposito decisively examines the problems of legal philosophy, indeed with what we might call the tradition of a philosophy of law itself. ² Esposito’s more recent Terza persona. Politica della vita e filosofia dell’impersonale [Third Person: The Politics of Life and the Philosophy of the Impersonal] exercises its deconstructive force on a term, “person,” whose function as a juridical apparatus [dispositivo] seems obvious. ³ Nor is it by chance that, beginning with Terza persona, an important debate began between Esposito and the Italian jurist Stefano Rodotà. ⁴ In fact Rodotà too is interested in thinking the relation of law and life in ways that parallel Esposito’s own. Where Esposito’s itinerary appears, therefore, to involve more than ever the law, legal scholars for their part have been forced to reconsider profoundly their own categories. The juridical lexicon, born and elaborated above all in Continental Europe within the specific territorialization marked by the modern state and by the grand tradition of jus publicum europaeum, bears witness, perhaps more traumatically than almost any other disciplinary discourse, to the shock brought on by globalization and by the complex, deeply stratified new geography of law. Research therefore can do little else except push beyond disciplinary certainties to seek out areas that would until recently have been seen as profoundly outside law’s purview. Today it is possible to bring together problems of contemporary juridical theory with philosophical investigations such as those of Esposito’s. Such an attempt might begin with Esposito’s elaboration of the research paradigm of biopolitics. In this essay I will attempt to mark how in Esposito’s more recent work, materials capable of elaborating a biojuridical approach can be uncovered and then, thanks once again to the reading that Esposito will give of that paradigm, we can properly weigh the “juridical” in Esposito’s perspective.

A preliminary clarification. By “biojuridical” I mean something different from what we commonly understand today. The usage of “biojuridical” is of course already well-established, but it seems (much as in the case of “bioethics” for instance) to mark more than anything else the modes by which positive law tackles issues related to questions of life, that is life’s beginning and end, and by extension questions of environmental ethics, the rights of animals, etc. In this essay I will be probing rather a different possibility, namely that of a biojuridical norm understood as an approach that is capable of incorporating the perspective that biopolitics provides on the relation of norm and life; an approach developed in the current moment of crises surrounding the fundamental categories of juridical theory. Law, in other words, will function here as a testing ground for the “toolbox” that Michel Foucault evoked as the theoretical armory most suitable for probing and understanding our contemporary moment. ⁵ Esposito’s theoretical itinerary offers materials of great interest for a reflection of this sort, specifically because of his choice of method, which he sets out decisively in Immunitas. La difesa e la protezione della vita [Immunitas: The Defense and Protection of Life] and in more recent works. ⁶ Here he brings together philosophical reflection with texts and discourses from different disciplines within which the juridical as well as that of medical and biological language play a central role.

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At first glance, however, Esposito’s thought seems to take up only indirectly the problem of law. If in Categorie dell’impolitico [Categories of the Unpolitical] Esposito grapples with juridical themes, he does so only as the effect of a broader theoretical project of the deconstruction of sovereignty that the discourse of the unpolitical entails. ⁷ In the ambiguous game played between the affirmation of the political and the neutralization and depoliticization that comes undone via the concept of sovereignty (and which the unpolitical aims at deconstructing), law appears as the intrinsically contradictory instrument of a modern demand to reproduce a “universal” form, even when the effectiveness of the authentically formal capacity of Catholic-Roman representation has disappeared.

Changeable, contingent, irremediably positive and yet at the same time “constrained by a law that, to count as effective, has to be presented as universal, unchanging, transcendent” – this is the law. ⁸ Within this critical-deconstructive framework, law is be found exactly in the place where the demands of modern uprooting [sradicamento] to put down its own roots so to speak takes hold. The law is essentially one of the privileged instruments of the re-theologization that develops out of the very same modern movement of de-theologization. In law is revealed the relation between the “personal” representation of Good and Value (the venerated, dense and substantial political form preserved by Catholicism) and the technicized “representation” of interests, which is the sole order available to the modern. The latter isn’t one of simple separation and succession, as the paradigm of increasing secularization demands, but rather involves the paradoxical, desubstantialized survival of the first in the second. In the demand of modern law to formal obedience, in its imposition as norm (even as a norm that is by now merely positive), there appears the necessity of an appeal to the form of theological representation on the part of the by now “secular” representation of interests as well. In the modern period the law is erected in a privileged site of this theological paradox, to make itself the foundation where no foundation is available; the contradiction of creating juridical form precisely on the basis of the eclipse of every established form; in the creation of a demand for justice based on the declaration of the impossibility of founding every and any form of justice and value.

In the realm of this deconstructive force, the position of the unpolitical, of that gaze that makes it “the critique of political theology in its double Catholic-Roman sense of representation [la rappresentazione] and the Modern Hobbesian one of representation [la rappresentanza]” cannot therefore keep itself symmetrically at the same distance from the “political” and from the “juridical.” ⁹ With respect to the political paradigm (and the conflictual dimension that characterizes it), the unpolitical, as the critique of the theological-political paradigm, plays the role of neutralizer, forcing the political outside the confines of civil order and indeed of conflict itself. For good reason then the unpolitical can proclaim itself not only extraneous or merely opposed to the political, but indeed as perfectly co-extensive with the political itself, even when analyzed in a deconstructive and non positive-productive mode: “The unpolitical is the political seen from its external border. It is the measurement of the political in the literal sense that the terms of the political are sketched, ones that coincide with the entire reality of relations among mankind.” ¹⁰ With respect to law, however, the unpolitical gaze cannot be limited to the border. Law, or at least modern law, cannot be singled out as one of the cornerstones of the political, but rather as the principal foundation of a secularized and technicized political theology that both constitutes and traverses all modern depoliticization. All juridical language testifies to the tension created by the depoliticization and neutralization that occurs in the modern period. Thus, when facing the law, the unpolitical gaze can do little else except denounce, as Simone Weil does, the idolatrous demand to be the form of justice in the functionalist and desubstantialized form that it takes on in late modernity. The unpolitical is the internal critique and the deconstruction of modern politics, beginning with, as was previously noted, the decisive category of sovereignty. That is the place of maximum tension and at the same time of greatest overlap between the traditional theological-political lexicon and the technical and artificial nature of the order generated by modern neutralization. Yet the unpolitical, when faced with the juridical norm (which modern sovereignty winds up incorporating albeit only its neutralizing side) cannot but remain an externalcritique. It denounces the constitutive idolatry of law and of law’s every claim, no matter how inevitable it might appear, to be presented again as representative of justice and value.

From the point of view of the strictly unpolitical, the only possible discourse on law is the one offered by Simone Weil in “Human Personality.” There Weil, according to Esposito, “forces the law to submit to a critical ‘bombardment’ so as to dissolve every ‘aura’ that had been conferred on it by Western juridical tradition.” ¹¹ Law is radically returned to an unbreakable knot of force, violence, and property; indeed law is the regime of proprium that inextricably links the character of violence to the personal character of law. The centrality of the person in the juridical lexicon has, from the time of Roman law onwards, testified to the irremediably subjectivist, incomplete and violent matrix of any law: the centrality of the person is nothing other than the centrality of property, a centrality that characterizes the juridical form as such. One cannot oppose therefore the semantics of the person to the juridical (and therefore to the irremediably theological-political) except by introducing the idea of the “impersonal.” Yet the impersonal in turn cannot be designated except as negative, by which I mean with regard to “the rigorously unpolitical fold of the critique of the political,” taken on by Weil’s discourse; a fold that “excludes any external affirmative declension to the critique of the triad of person-law-violence.” ¹² Still if the unpolitical fold allows a critique of the political to emerge that isn’t external to the political itself, but rather, is as we saw, co-extensive with the political’s own space, then the unpolitical blocks from the outset any thinking of the law that does not consist in a radical critique of the law’s own intrinsic and inevitable idolatry. In fact the only justice that Weil can evoke is precisely the one which, once freed from every supposed connection with law, now coincides precisely with force as its intrinsic limit. On the one hand, the unpolitical pins law to its necessary violence, to its mythic and theological-political demand to return every contingency to the norm (this despite the fact that law itself is contingency and mere positivity, which is to say one that renders juridically normalizable any becoming). On the other hand, in this context of a deconstructive and unpolitical discourse, one cannot even imagine an “other” law that can be freed from the lexicon of the proprium and of the person, or from the normalizing violence that such a lexicon imposes. What happens beyond the limit sketched by the critique of the unpolitical cannot be shown except negatively. It cannot take on any figure least of all as is by now obvious a juridical one. In other words, no law exists outside of a neutralizing, theological-political law, which the unpolitical critiques. A law, a juridical norm (or a norm of any sort) of the impersonal would in such a context be literally unthinkable. The impersonal has only the face of necessity and justice. It cannot be separated from juridical representation, which in its feigning theologically an impossible justice, would continually lapse into idolatry.

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Concisely then: in the context opened by the unpolitical, the critique/deconstruction within the political is no way co-extensive with a critique of the political as such. Ultimately, the juridical critique cannot stem from anything but a critique that is external to law; that limits law to its inextricable belonging to the theological-political; to the neutralizing drift of modernity.

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Yet Esposito quickly brings alongside the deconstructive intentio of the political categories of modernity that give life to unpolitical reflection another perspective that is both affirmative and constructive, one that at least partially alters his earlier stance in Categorie dell’impolitico. In the following pages I will attempt to summarize the philosophical panorama opened by his thinking of community and immunity, especially for how his reading alters the specificity of the juridical and possible avenues for elaborating a biojuridical hypothesis.

Esposito’s post-unpolitical research zigzags between two basic concepts, which are related etymologically and correlated theoretically: these are of course communitas and immunitas. The first allows us to re-elaborate the theme of community, freeing it from the weighty organicism that characterizes American communitarians, without dispersing its critical force vis-à-vis liberal individualism. The 1998 volume Communitas. Origine e destino della comunità [Communitas: The Origin and Destiny of Community] appeared in a period in which the debate was still ongoing, principally between liberals and communitarians in the Anglo-American context. ¹³ Esposito wrote the book with the explicit goal in mind of thinking the “unthought” of community well beyond the temptation to reduce community to a common “property” of a subject who belongs to the same totality [insieme]; a temptation shared, according to Esposito, by the organicistic sociology of the Gemeinschaft, American neo-communitarianism and the various ethics of communication. ¹⁴ Drawing upon French elaborations of the theme of communauté inavouable (the unavowable community as in Maurice Blanchot’s thought) as well as of désoeuvrée (the inoperative according to Jean-Luc Nancy), while offering his own elaboration of community, Esposito returns the concept of communitas back to its sharing of a munus; of an onus and debt. The community is made a community by the sharing of a lack, a limit, and not a fullness, which is to say some essence that belongs in the same way to all. ¹⁵ The communitas is the sharing of a pledge, a tribute and is characterized by an impropriety that dislocates every futile dwelling of every subject in its propriety; of the community to itself as well as to things. The paradigm that emerges from communitas is that of immunitas, which from this point on Esposito will utilize as the overall interpretive paradigm of all modern political experience (or at least of its most dominant tradition). Immunization has as its goal the protection of the organism from risks and dangers, but above all from the danger of contagion: the protection that immunization insures, however, enjoys a singular relation with the “sickness” [male] from which it intends to protect the organism. Immunization occurs through the partial incorporation of an element that the organism intends to protect itself from. As in Jacques Derrida’s analysis of the figure of the pharmakòn, immunization is both the cure and the poison simultaneously. ¹⁶ This particular function places communitas and immunitas in a relation that isn’t one of simple opposition and even less so of mere separateness. Instead, a relation of “contrasting co-implication” is set up between the terms. The danger that immunitas aims to protect communitas from isn’t a risk that originates from outside the communitas, but is precisely that munus, that debt, that exposure of subjects to otherness that makes the communitas what it is. The immune names who is separated from his or her proper munus; who has been exonerated from responding to the obligation that the munus refers to. This is strictly speaking the first meaning by which one can say that immunitas presupposes communitas. Immunitas is reactive and assumes the presence of the disease [male] that it aims to fight.

Yet in a second and more profound sense, immunitas presupposes its own “sickness” in so far as was previously noted, immunitas functions not by pushing the disease outside itself but by incorporating it. ¹⁷ If the risk to which the community is exposed is precisely the loss of its own identity, which is to say the destabilizing of identity produced by the sharing of the originary munus, immunitas cannot protect against this threat by relieving the subject of his or her onus [onere]; by breaking the relation which is simultaneously negative and constitutive of communitas itself. In other words, immunitas protects only by depriving the communitas of what is its most proper sense. The disintegration that communitas aims to defend itself from through the immunitary mechanism thus risks becoming what the mechanism itself tends to produce: defending communitas from immanent danger winds up depriving the communitas proper of what makes it possible.

As we can see, singling out the antinomical as well as reciprocal relation that steadfastly links communitas and immunitas proper while seeming to oppose them, allows if not the abandonment of the unpolitical, then the appearance of distance to emerge with respect to the merely deconstructive intention that animates the unpolitical. While there we were attempting to mark the constitutive limits of the process of neutralization and depoliticization that characterize the modern, namely the inevitable reproduction of the forms of political theology at the center of an apparent process of secularization and rationalization of power [potere], here instead we have the possibility of reading modernity differently by using a category, immunization, which always lets its constitutive link with an “otherness” show through, that is with that of communitas. However, there is another mode for conceiving the relations of social life. Such a mode cannot be affirmed except paradoxically in the very same act through which, while claiming to protect the communitas, it negates the communitas. The thought of communitas and the construction of immunitas as the negation of a negation, in which however “the negative non only survives the cure but constitutes the condition of its efficacy,” allows us to see another possible starting point: the defense of another hypothesis of sociality and relationality, that one preserved by the communitarian relation. ¹⁸ This occurs when the constitutive aporie of the immunitarian movement has been analyzed and its deadly results diagnosed, namely the negation of communitas. Obviously here I’m not speaking of the banal and simple opposition between an absolute positivity infected from the outside by a dangerous immunitarian mechanism (the communitas is itself constituted around the inappropriability, the disorientation and dislocation of subjectivity with respect to itself). Rather I have in mind the irrepressible presence of a relationality that is constituted, that can be positively constituted even beyond the obsession of protection and of reappropriation; and therefore beyond the inevitable reproduction of immunitarian mechanisms.

Furthermore, it is clear that the tone of immunity shifts from the merely deconstructive when we compare it to the results produced by immunology in Derrida’s thought. Those results are unrelentingly deconstructive and only apparently parallel those of Esposito. Indeed, Derrida devotes much space to immunization. His intention rather is to employ immunization as a key for understanding the political forms of modernity. For Derrida as well as for Esposito, immunitarian mechanisms work to construct the principal categories of modern politics, beginning with that of sovereignty. The logic of the One with which sovereignty aims to exercise its power (and what every political experience refers back to) is precisely an immunitary mechanism, the protection of the proprium of the subject, of the body politic, from any risk of external modification. However, for Derrida every immunitary process risks generating auto-immunitary reactions, when, thanks to an excess of protection, the organism no longer recognizes its own antibodies and begins to destroy its own defenses. It is in this auto-immunitary space that a possible opening to an indefinite otherness can be created, in the waiting for an event, in the possibility of hospitality. It is the decisively suicidal logic of auto-immunity that allows us to pass from immunization to political friendship. ¹⁹

Esposito will also linger over auto-immunitary mechanisms, the obvious sign of the contradictory nature that is intrinsic to immunitas and to the relation between the protection and negation of life that immunitas establishes. Yet auto-immunity and its exclusively negative and suicidal tonality isn’t the final word. The destructive reading, indeed the self-destructive reading of the immunitary system, is not the only possible one. Rather the search is to be directed towards “a philosophy of immunity which, negating its intrinsically contradictory nature and instead intensifying the contradictions even further, reverses the semantics in a communitarian direction.” ²⁰ Our attention is brought to bear therefore much less on auto-immunity and more on those moments in which immunization is suspended, or better those moments in which the immunitary system is revealed as an open process, one that doesn’t merely take place within its own borders but rather is “always permeable to its relation with what from the beginning crosses and alters it despite being located outside it.” ²¹ This is what happens in pregnancy, when the immunitary system “discovers” that difference and contrast are not necessarily destructive; when the fight to the “death” between immunity and the risk of change is transformed into a struggle for “life.” Or to say it philosophically: in the lexicon of radical otherness and protection, “a lexicon of difference and of possible productive relations between differences now supplants it.” ²² Yet the transition to the immunitary system that modifies its borders and places in doubt the systems’ impenetrability and absoluteness (without which it must necessarily have recourse in the utterly negative and suicidal instance of auto-immunity) can be understood by Esposito precisely because from the outset a nexus of co-implication is established, however disjunctive, between immunitas and communitas. It is communitas that becomes not the absolute and unspeakable outside of immunitas, but rather the motor that drives the immunitary mechanism (despite the fact that it is also negative).

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We can now pose our problem. In the complex picture Esposito sketches of the co-implication of communitas and immunitas and of the no longer merely deconstructive tonality of his discourse, what are we to make of the law? If the unpolitical can do little else as Simone Weil writes except “bombard” the inevitable theological-political aura of law and launch against it a merciless critique from outside in the name of a gaze that cuts at the root every presumed link with justice, does the new optic then produce in some fashion a replacement for law itself?

Certainly, the juridical moment in this more recent stage of Esposito’s thought acquires an original and profound centrality. The references to law and to those more properly juridical thematics increase exponentially as well thanks to the effect of the decisive opening, which Esposito’s work manifests from Immunitas on, with respect to the materials, texts and discourses originating from other disciplines (a work it should be said that remains eminently philosophical). However, that this new centrality also signals as well a substantial revision of that perspective on law thought exclusively in terms of neutralization and depoliticization that emerged from Esposito’s “unpolitical” phase remains, even in Immunitas, doubtful. It is true that Esposito is engaged at length with the knot of the “juridical,” but he does so based on the fact that juridical discourse is seen along with medical and biological discourses (it’s no accident that they meet up in the most problematic moments when not finally being superimposed one over the other) as an essential pillar of the construction of the immunitary paradigm in its specifically modern form. Indeed if one can speak of a juridical-political modernity, one can do so precisely beginning with the creation of an immunitary mechanism through law. All of modern law is immunitary. Its primary task is to protect the community from risks and dangers, or better from the risk and danger constitutive of the community itself. In the case of Hobbes, law is presented as justified by the demand of protection from the risk and violence that is innate to the community, whose effect is to dissolve the community itself. As in every immunitary mechanism, law cannot but incorporate within itself the same element from which law aims to protect the community. To protect from violence, law organizes and systematizes the very same violence: “a violence against violence for the control of violence.” ²³ This we recall was the case in Walter Benjamin’s analysis and in René Girard’s discussion of the sacrificial mechanism. ²⁴ The history of law is thus the history of the attempt to protect the community from violence that winds up being superimposed perfectly over violence itself. Certainly in this reading of law Esposito doesn’t miss registering the elements of normativization and more essentially the normalization of violence itself that the law contains. The passage over which Foucault notoriously lingers – at least his discussions of juridical-political sovereignty that protects through prohibition and interdiction, as well as in his examination of normalizing disciplines on the body of the subject – Esposito will now join to the internal workings of the apparatus [dispositivo] of immunization, one that protects life at the price of subtracting a force that is both expansive and risky from life. From the Hobbesian sovereign to the increasing prevalence of the properly normative feature of law, there are obviously important intervening steps, but all are to be understood within the immunitary role that law practices. Thus, even with regard to the historical moment in which the aporie of immunization are deployed catastrophically, namely in Nazism, one doesn’t find anything in Esposito’s reading that is properly “anti-juridical.” Quite the contrary. Nazism is characterized by an absolute normativization of life that is tragically superimposed over an equally absolute biologization of the norm. If Nazism produces an intense biologization of law through its racial connotations, that is still to be linked in Esposito’s view, to a preceding juridicalization of life: “In order that life can constitute the objective, concrete, and factitious reference of law, it must have already been previously normativized according to precise juridical-political caesuras.” ²⁵ Far from constituting a break in modern juridification, Nazism pushes juridical demands to their limit. The consequences are constitutively immunitary, namely protecting the community by incorporating violence. Nazism demonstrates more the madness of the entire juridicalization of violence that began under the modern with Hobbes, and less the invasion of the juridical by a radically anti-juridical element. Lethal because it was juridical, Nazism brought to completion (by distorting it) the juridical-immunizing project of modernity.

In addition, the extreme functionalization of law, by which I mean the progressive diluting of that element utterly linked to the sovereign, appears in Hobbes in the communicative element, one that is central to systemic sociology and so influential in the area of juridical studies. Doesn’t this demonstrate, ultimately, that the law cannot be read outside of the immunitary paradigm, even when the law appears to completely hide its violent origin? And if we don’t adopt Benjamin’s line of argumentation, one that superimposes law and violence in order to disclose the juridical face of the very same Nazi violence, and follow instead a different line of inquiry such as the one offered by Niklas Luhmann? Luhmann, far from making law refer to conflicts waged against order, sees law as managing conflicts and contradictions, transforming them from an external object of the law’s own proper work of containment, into a kind of internal motor of the law’s own auto-poietic and self-reflexive functioning. ²⁶ Yet doesn’t such a reading confirm and intensify even more the immunitary nature of law itself? The communicative and apparently non-violent law of contemporary social systems, Esposito will note, “is not marked and will no longer be marked by blood because there is nothing and no one outside the system over which or whom it can be exercised: the system cannot communicate, immunizing them, except by using its own components.” ²⁷ It is precisely this line of thinking the law, seemingly opposed toto coelo to what in Weil, Benjamin, and Girard (in admittedly different ways), is meant to unveil the innate violence of the juridical mechanism, that Esposito refers back to the same result: unbinding the originary violence of the immunitary paradigm that claims to save the community from violence by introjecting it, rendering it internal to the functioning of the immunitary mechanism? And regardless of whether one examines it from the side of the violence of the origin or from the side of the technical functionalization of the same violence, the law remains one of the keys of the immunitary structure within which modernity is constructed.

If law is completely restored to the immunitary paradigm, one can say therefore that despite the new context of thought inaugurated by the conceptual couple of communitas-immunitas, there continues to persist in Esposito’s thinking the idea that law is completely identifiable with the most problematic part of Western political experience, namely that part most exposed to the risk of tragic reversals. In other words, the impression that remains perhaps is of a thought that, yes, can take leave of a simply deconstructive mindset, and that can point to a path that escapes the lethal aporie of the modern (as happens for example when the possible opening to a communal immunity is identified in the internal workings of the immunitary system), but that continues to keep at bay any positive re-reading of the juridical. As we recall, the juridical was initially linked to a necessary, perpetual, reproduction of a neutralizing of and by the theological-political. Now the juridical is crushed by the intricate co-implication of communitas and immunitas, ultimately siding with only one term: immunitas. In Esposito’s analysis law is cemented to its Hobbesian origin, that is to the neutralizing, theological-political origin on the one hand, and on the other hand to the immunitary. Just as the unpolitical cannot be anything except an external critique of law, so too immunization, understood as the key to reading modernity, shows us fundamentally only one law, one that is always compelled to be a part of the lexicon of immunitas. If, however, other problematic paths for rethinking the common in a non-immunitary form are possible, surely these do not move through the law, which safeguards the proprium and that antithetical root of any and all dislocations/exposition of subjectivity (which is the terrain of the immune and never of the common). As I noted above, beginning with Immunitas, Esposito’s perspective would seem to be that there corresponds to the great centrality assumed by the law (and by disciplinary discourses on law), another one equally absolute when considering the law, and that is the immunitary moment.

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This impression merits a second look. If it is true that the function of law is seen as strictly connected to the immunitary lexicon, it is also true that Esposito’s thought, in particular in the transition from Immunitas to Bios: Biopolitics and Philosophy increasingly opens more explicitly to thinking the law outside of the immunitary grip, which in Immunitas still appeared to be closed to it. We are concerned with an opening, in a matter of speaking, to the “good reasons” behind the law. These appear for at least two reasons to be profoundly connected to the same theory. The first we have already discussed at length: the contrastive co-implication between immunitas and communitas makes it impossible to distinguish the two concepts and to establish a simple relation of opposition between them. As we saw, this allows us to observe possible non-immunitary behavior of the very same immunitary system, its possible opening to a logic of difference and not of simple otherness. In works up to and including Immunitas, Esposito attends to these possible non-immunitary declensions of the same immunitary system in the theme of pregnancy and in a possible common immunity (as we shall see the tone Esposito adopts vis-à-vis the discourse of law changes significantly). At the same time Esposito does not identify other possibilities for non-immunitary moments within that grand immunitary system which is modern law. Despite the complex nature of the relation established between the immune and the common, this doesn’t mean that his discourse conceptually blocks us from doing so. Ultimately, the question of a possible suspension of the immunitary function of the juridical system is thus a legitimate one. It is the very same co-implication between immunitas and communitas that leads us to imagine possible declensions of law that weaken the grip holding together the protection of the community and the negation of community. It leads us to glimpse, in other words, the lines of a possible law of the common, which is other with regard to the traditional, appropriating, immunitarian inflection of the juridical lexicon.

A second reason for opening to possible non-immunitary functions of the juridical system is to be sought in that different torsion that begins to be felt within the same couple of immunitas/communitas. This occurs when Esposito explicitly thematizes the nexus between “his” conceptual couple and the thought of biopolitics introduced by Foucault. It is in Foucault, who analyzes the process of governmentalization of life, that Esposito will find elements for re-reading the disjunctive co-implication of communitas/immunitas in such a way as to make it work in one sense as a key for bringing together what the Foucauldian discourse seemed to have, at times, separated; and in another sense as the instrument for revisiting the very same representation of the immunitary paradigm so as to highlight those heuristic possibilities that had remained unsaid or perhaps were not completely evident before. What Esposito underlines in Foucauldian biopolitics is what follows the phase in which the modern relation between life and politics is constituted through a series of categories (sovereignty, state, law, freedom, etc.) that are capable of modulating and filtering that very same relation. In this successive phase “these partitions are broken and life enters directly into the mechanisms and dispositifs of governing human beings.” ²⁸ In overcoming what are typically modern filters, a complex and immediate overlapping of politics and life occurs, which is to say a profound zone of indistinction appears in which life and politics act as two contrasting vectors, mutually reinforcing each other. ²⁹ On the one hand, power directly takes on life, no longer addressing it in a subtractive mode as it did in the ancient sovereign power of putting to death, but now does so productively. “To strengthen itself, power is forced at the same time into strengthening the object on which power discharges itself.” ³⁰ At this point the productive and positive slant of Foucauldian biopolitics enters clearly into view: if power cannot but strengthen [potenziare] the life on which it acts, life – the object of continuous strengthening – can always resist and outstrip what continually enhances it. Yet, along with this productive politics of life, there is a politics over life (though it ought to be noted that we are dealing with a single, antinomic and exceedingly taut movement between the two). The power that develops and sustains is also a power, which, for that very reason, takes hold more than ever before without mediation on life itself. Affirmative biopolitics is turned inside out or at least can be reversed in a negative biopolitics, the thanatopolitics of which Nazism is the last example. As Esposito notes, in Foucault the two aspects of biopolitics, the affirmative-productive and the negative-destructive, are arranged in a zone of undecidable tension, “according to a divergence that seems not to admit of any mediation: it is either one or the other.” ³¹ The choice is subjectivization, the productive and affirmative effect of power. Or death. Without either it is impossible to recompose in any way the framework that emerges from that indistinctive ambivalence marked by the concept of biopolitics.

Therefore Esposito can have the concept of immunization work as an interpretive key for joining together the two sides that in Foucault seem destined to co-exist as irreparably broken apart. As we saw in immunity, preservation and the negation of life are held inseparably together: it is life that is immunized so as to survive its own proper surplus [eccesso] which winds up destroying life. Thus biopolitics and thanatopolitics can enjoy the possibility of a unitary reading precisely through the immunitary paradigm. Every life, to strengthen itself, has recourse to immunization and therefore it is within the same productive moment, one that is not outside or against it, where also lurks the risk of that symmetrical excess of protection that generates the drifting towards the thanatopolitical. Having immunization act in the zone opened by biopolitics works, however, not only thanks to the tensions of biopolitical discourse found in Foucault, but also on the same conceptual couple of communitas and immunitas that Esposito deploys. More so than say was the case in Immunitas, immunization in Bios not only presupposes communitas, which still negates it, but, when seen as a feature of the same apparatus [dispositivo], that is of the strengthening and development of life, immunization can now be presented not as a “defensive apparatus superimposed on the community” but rather “as its internal mechanism.” ³² Immunization is a mode of life just as immunitas is a mode of communitas (albeit privative). If we now return to our initial juridical concerns after this foray into the biopolitical, we can now see how considerably we need to revise our earlier impressions.

It’s true that in modernity the law is correlated to the immunitary paradigm. In some ways it is the same normativity that has to do with immunization. Yet, if immunization isn’t simply an apparatus [apparato] for preserving and negating life, but is to be seen once again from the perspective of life itself, that is as a modality, albeit protective, of life’s productivity, then the fact that normativity concerns immunization can take on another meaning different from the one that promptly linking norm to normalization and in parallel fashion joining juridical immunization to thanatopolitical risk. If immunization links bios and nomos not only in the subtractive mode between life and power but also in the sense that it is the expression of the same power to preserve life, then the relation of life and norm is to be reread using a new key, made possible precisely by the individuation of the inseparability of the affirmative and negatives features of biopolitics. In other words, a possibility emerges for thinking a semantics of the norm apart from the mere normativization of life. If this latter relation in which life is captured and subsumed, lined up and enclosed within the confines of the norm is carried to its extreme limit, that is to the complete superimposition of norm and life enacted by Nazism – then after that tragic point of no-return, a space opens for thinking a norm of life that rather than demanding the absolute normativization of life, marks instead the vitalization of the norm. ³³ And this doesn’t only concern relations between life and the erecting of norms generally, but more specifically the juridical norm itself. As space is opened thanks to the exhaustion of that transcendental mechanism of the norm over life, exemplified in the juridical-sovereign mechanism of protection (which at this point appears as only one of the possible modes in which the strengthening of life and of its immunization can take place), this allows for the thinking of law that is finally immanent to forms of life. This occurred in fact in that rigid capacity for dividing between facticity and normativity that enjoyed so much good fortune in traditional philosophical-juridical thought. Such a thought depends profoundly on those transcendental modalities in which the sovereign command is given. If the law has until now been only “Hobbesian” law, completely situated in an immunitary mechanism that is given as transcendental (or if such a law is inscribed within a transcendence technicized and itself made immanent), then the process of the governmentalization of life, which opens up the possibility for an affirmative biopolitics, also gestures to the constitution of what we might call an affirmative biojuridical moment, pushing forward Esposito’s intentions (though not by much). It is no accident that Esposito now finds himself correcting his earlier temptation to emphasize only the “sovereign” immunization side of law. Now he will sketch the image of a possible law of “reciprocal immanence” between norm and life, emphasizing another feature, the one vanquished perhaps but still dominant in modern juridical thought as an alternate to Hobbesian sovereignty. It is to Spinoza, now Esposito can finally say, to whom we need to look to in order to imagine a law deanchored from its immunitarian excesses that had made the law a vehicle for thanatopolitics. Reading Spinoza not only in order to provide a political alternative to Hobbesian modernity, but also as an example of a non-Hobbesian juridical conception, Esposito shows decisively how one can, thanks to the ambivalence that inheres in norm/life, mark the post-sovereign and governmental context; to pass from the critique of law in so far as it is an immunitary apparatus [dispositivo] to the construction of a law of the living capable of identifying, within the very same juridical norm (and not only that biological or generically social norm), a positive potentiality capable of moving beyond the lexicon of simple immunitarian normalization: a law that does not homologize or neutralize, but instead incorporates and defends that infinite production of difference and singularity that is bios.

The biopolitical reading of immunization, therefore, frees Esposito’s thinking from the risk of reading law only as an expression of the specific, transcendental and “sovereign” modality of the modern immunitas. It is what sets his thought apart, precisely in so far as he looks for a modality different from the relation norm/life, and beyond the mere normalization and juridicalization “from above” of life; the search for a law that isn’t imposed on subjects or that creates them artificially (as law did in ancient Rome through the key concept of person, the object of Esposito’s deconstruction in Terza persona), but that might be produced together with the same processes of subjectivization through which subjectivities as such are formed. ³⁴ This affirmative biojuridical moment, the juridical mirror of the productive and affirmative side of biopolitics) can open to a reading of the same juridical normativization as a process that isn’t superimposed abstractly over conflicts (and so neutralizing them). What is produced rather isn’t an abstract neutralization of these same conflicts but their pacification through the conflicts themselves, as a modality of equilibrium. Therefore, a path can be opened, a bumpy one admittedly, though not impassable, from a law of the immune to a law of the common.

….

This doesn’t mean that an eventual connection between an affirmative biopolitics and an affirmative biojuridical moment fails to raise serious problems. The first is that this perspective immanent to plural and pluralistic forms of life of law can appear, when compared to the contemporary drift of law, to be simply a contra-factual, philosophical exercise; that of simply waiting for a new mode of thinking to emerge. Reality demonstrates that there can be a law that is much more immanent to forms of life, but in the sense that such a law selects, differentiates, and hierarchizes more and more its own proper subjects. An affirmative biojuridical form pushes rather, in the incessant modality of prevention that the obsession for securing life takes on in juridical interventions, to construct its own subjects; elaborating continual, actuarial images of “carriers of risk,” to be neutralized before they can do any damage. This is a singular reality in which the demand of prevention becomes so intense as to put into doubt the fundamental pillars of the state of law (such as individual responsibility) and which now appears to correspond rather to a decisive thanatopolitical drift of law itself, turning every idea of law freed from immunitarian excesses and immanent to forms of life to a mere philosophical dream. Or better, as I noted earlier: in this new immanence of the norm to life, everything and everyone is included, but the outcome seems to consist in an even greater capturing of the life of subjects by the juridical norm. This is why it is essential that in the same way in which the ambivalence between a politics of life and a politics over life (that is between an affirmative and a negative biopolitics) is held together, juridical thought does something similar. It learns how to hold together, in the ambivalence that ensues with the end of the classic equilibrium produced by sovereignty, as well as in the new immanence between juridical norm and life that produces the hyper-immunitarian drift towards greater security, those aspects with another which within the same movement of making immanent, and declares instead a new possible relation between subject and law both outside the traditional Hobbesian transcendence and the traditional individualistic appropriating lexicon of modern law. An elaboration of a paradigm is needed to explain how global law can appear both as an apparatus directed towards anticipation and preventive control, one that is more and more incisive with regard to the lives of all, as well as how this new space in which singularity “in a network” continuously contributes to the creation of a new, polycentric and equally flexible “living law” (all the while never losing sight that neither of the two sides can be elided). We need to know how to look at the ways in which law overcomes its traditional reference to the “personal” and how to descend into the molecular, into the biological, into the psychical constitution of the living.

In this regard the discussion as well as the struggle regarding the patenting of genome sequencing is only the most well-known aspect of this tendency. We need to be cognizant of the risks and opportunities of bringing together a “law of the living” into an indistinguishable non-ambivalence. Without giving ground to the abstract absolutization of either the deadly or the vitalistic side of such an ambivalence, we need to find room in the jurist’s toolbox for these new instances of “biological citizenship,” avoiding at the same time nostalgic laments about the dehumanization of law; knowing that, effectively speaking, global law has already clearly entered into the era of the posthuman. If a note were to be attached to Esposito’s most recent elaborations, it wouldn’t concern his excessive optimism in keeping open the path towards an affirmative biopolitics, that is a politics of life that moves beyond a politics over life. Rather the problem is if anything that his elaboration runs the risk of sometimes offering new possibilities in the relation between the norm and the living that aren’t normalizing; moving outside the juridical, immunizing and personal apparatus only as the possible product of the event of new modalities of thought, tracing almost a purely “philosophical” line for resisting contemporary thanatopolitics. It behooves us instead to bring into view (also from within single disciplines) how the thought of immanence or that of the impersonal are already at work today in making societies of control function effectively. They might rather appear at the center of those features that are to be assimilated, apparently, to great extent to the triumph of a thanatopolitical drift. It is within the contemporary juridical modalities of control, however, that even when they seem to grab hold of the lives of subjects, that other possibilities for “vitalizing” the juridical norm are offered. The new relation between norm and life, that is the new “norm of life” finally comes into view albeit in an ambiguous and contradictory manner against the backdrop of the effectiveness of contemporary juridical apparatuses [dispositivi]. It even emerges, paradoxically from the very same modality through which the preventive ideology of security [securitarismo] deforms the traditional paradigm of the state of law. A future affirmative biojuridical moment is rooted therefore at the heart of contemporary law’s effectiveness, notwithstanding a possible drift towards calls of emergency and heightened security. Undoubtedly, it might equally be effective and derive instead from the identical movement of deformalization. Can we not glimpse here in the same obsessive and loud calls for security another image, admittedly deformed and elaborated in hyper-immunitary terms, of the desire for a social dimension, one that isn’t simply individualist; of a different experience of the social bond? And in the very same actuarial and preventive dimension that dominates contemporary law – even when on one side the thanatopolitical hold has grown tighter – doesn’t this also reveal a new level of dependence on claims of legitimacy, on the law’s ultimate social effectiveness? It is precisely a law besieged by the demand of preventing and anticipating risk, which is finally a law exposed as never before to the possibility of being traversed and challenged from below by new forms of subjectivization that the law itself evokes and produces.

Finally, the biopolitical optic can teach the jurist that the relation between norm and life exists outside of the formal logic that has characterized modern law. This deformalization is the conceptual ground in which both contemporary securitization with its increasing identification of preventive apparatuses [apparati] of control moves, and also the new chance that is given for a law not to be pinned down by formalized abstraction, one more sensitive to new modalities of subjectivization and to the surplus that is able to fold on occasion the juridical norm onto itself. It seems to me that Esposito provides an important contribution in his most recent work. With the increasing outlines of a proper juridical dimension, his work iss without a doubt helping to free radical thinking from being merely a critique of law; as always presenting the juridical norm as an instrument of neutralization or as an ideological abstraction of the materiality of conflicts. Instead radical thought can begin to move towards a possible internal critique both of the different modalities in which the juridical norm functions and of different possible relations that the juridical norm maintains with the living and with the infinitely different modalities of life’s givenness.