New APPS: Art, Politics, Philosophy, Science

Agency Biopower: The Juridical Force Awakens

One of the most prominent features of biopolitics is the emergence of administrative law.  Created by statutory authority, numerous governmental agencies engage in rulemaking at a very granular level to interpret and apply broad statutory provisions.  For example, if a statute says that “banks” are to be regulated in the context of lending, an administrative agency might be asked to issue rules on whether payday lenders should be considered “banks” under the statutory definition.  Or, to adopt an example well-known from philosophy of law, suppose a federal law were to say “no vehicles in parks.”  The Park Service would be tasked with deciding what, exactly, constitutes a “vehicle.”  Is a skateboard a vehicle?  How about an actual jeep, minus its engine, to be used as part of a sculpture to honor veterans?  As the example illustrates, most of the actual regulatory power the statute has arises not in its vague provisions, but in the rules that interpret and apply those provisions.

Perhaps the best-known, recent real-world examples concern the Clean Air Act (CAA).  In 2007, the Supreme Court ruled that the EPA had the authority to – and was required to – regulate greenhouse gas emissions under the CAA.  The core question was whether carbon dioxide was a pollutant as defined by the CAA, which stipulates that the EPA has rulemaking authority to regulate emission of “any air pollution agent ... , including any physical, chemical, ... substance ... emitted into ... the ambient air,” and ought to do so when the pollutant  “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.”  If the EPA decides not to regulate such a pollutant, it needs to come up with a good reason why not, which the Court in this case concluded it had not.  The EPA was thus required to come up with rules about carbon emission for new vehicles.  More recently, in 2015, the Supreme Court ruled that the EPA exceeded its regulatory authority in restricting various emissions from coal plants because it failed to consider the cost of implementing those regulations.  These cases point to the rise of biopower as a form of governance, as administrative agencies grow in power relative to other kinds of governance, and become the locus of the sorts of micro-regulations that Foucault identified as the “police” function.

Shameless Self-Promotion Dept: Papers on Foucault, and on Spinoza

I've just uploaded a (relatively minor) revision of my SPEP paper from this fall in Salt Lake City to SSRN.  The paper is ""Confessing Preferences: What Foucault’s Government of the Living can tell us about Neoliberalism and Big Data," and the abstract is:

Foucault’s 1979-80 Collège de France lectures, On the Government of the Living, offer one way to situate the development of his later work, and in particular to understand his supposed turn away from biopolitics and governmentality to ethics and subjectivity.  In this paper, I argue that (1) a unifying thread in most of Foucault’s work from the late 1970s onward is an increasing concern with the centrality of confession as a primary technology of power in the Christian West; and (2) Neoliberalism is deeply confessional, and therefore highly suspect from a Foucauldian standpoint.  (3) These connections are particularly evident in a Foucauldian reading of data analytics (“big data”).

 

I've also uploaded a somewhat older paper on Spinoza and finitude.  The  paper is "Of Suicide and Falling Stones: Finitude, Contingency, and Corporeal Vulnerability in (Judith Butler’s) Spinoza," and the abstract is:

This paper juxtaposes Judith Butler's reading of Spinoza with the commonly-received, originally Deleuzian, presentation of Spinoza as the "anti-Hegel" or as the presentation of "positivity" against Hegelian "negativity." Working via the key commentary by Pierre Macherey in Hegel ou Spinoza, I argue that, once we no longer are compelled to read Spinoza as Hegel's negation or opposite, the way is open to see a Spinoza who is profoundly concerned with human fragility and finitude. the Spinoza that emerges presents a more cautious, but also potentially more generous, approach to emancipatory politics.

To put the point too schematically, readings of the affirmative Spinoza tend to develop the importance of conatus as resistance, at the expense of developing an understanding of the importance of limitations imposed by our own finitude. It seems to me that much of Butler’s thought can be read as bringing those elements together. How do we understand conatus, and marshal it as resistance, given the inevitability of finitude and constraint as factors that structure the desires through which we actually live?

 

More on the Troubling Neoliberal Privatization of Health Care

Developments this week highlight the problems with the neoliberal decision to privatize medicine in the U.S.  Certainly the Affordable Care Act (ACA), which entrenches responsibility for access to healthcare to private insurance companies and then attempts to contrive a market for patients to shop between insurance plans as some sort of proxy for shopping for doctors, is the most famous recent example of this decision.  Never mind that in market terms medicine is a classic credence good: you may not know either before or after purchase whether you are getting a good deal, and the barriers to knowing this are nearly insuperable owing to the inherent complexity of medicine and the inherent uncertainty behind most medical judgment, even perfectly executed by brilliant practitioners.  Medical care just isn’t one of those things that works well as a market good. 

Meantime, this week, President Obama signed the 21^st Century Cures Act.  This bipartisan bill makes an enormous investment in research into urgent health problems from Alzheimer’s, to opiate addition, to cancer, and continues to fund the promising developments in “precision medicine.”  This is an obvious good.  What could be wrong?  The tradeoff, beyond the now stale point that there is no investment in the social determinants of health – like urban infrastructure – is that it loosens regulatory requirements for drug approval even further.  As the Washington Post reports:

Trump and Neoliberalism

What does the Trump election mean for neoliberalism as a doctrine?  Adam Kotsko over at An und für sich has some interesting thoughts on the matter; what follows is intended as a constructive engagement.  As I posted last week, I think Trump’s victory is inseparable from what Foucault calls state racism, and the appointment of Steve Bannon and nomination of Jeff Sessions certainly adds evidence to the theory that his will be a government of White Supremacy (I am not going to engage in the parlor game of distinguishing “white nationalism,” “white supremacy,” and so on.  It’s a parlor game that requires white privilege even to play, and all the iterations mean the same basic thing: white people should be in charge).  One of my points there is that the system is structurally rigged against cities and other places where non-Trump voters live.  At current count, Clinton - garden variety neoliberal - is up by nearly 1.7 million votes in the popular vote count, and that number is growing.  This means that more people who voted want neoliberalism than want Trumpism, for what that’s worth.  At the very least, it means that we need to think about neoliberalism as a dispositif of biopolitics, and how that intersects with the 1930s version that Foucault’s remarks on state racism address and that Trump seems to channel.

Kotsko thinks that we should grant that Trump isn’t a neoliberal, and think about the ramifications for neoliberalism.  All of this is thus necessarily a speculative exercise.  Still, I think a couple of points are worth noting, beyond the more general one that if neoliberalism can survive the financial crisis intact, then we should always be skeptical about reports of its death.  Here are two reasons I’m not convinced that Trump and Trumpism aren’t neoliberal in a fundamental way.

The 2016 Election and Racism, Soft and Structural

Foucault famously proposed that biopolitics - the power to foster life, or allow it to die - tended to produce its own outside in the form of state racism: not only might life be allowed to die, but there might be those who must die, literally or metaphorically, so an inside “we” could live. That is, it is primarily a way of introducing a break into the domain of life that is under power’s control: the break between what must live and what must die” (Society must be Defended, 254).  Note the subtle elision: there is life that is allowed to die, and then there is also life that must die.  Thus, “if you want to live, they must die” (255) becomes the message.  In other words, biopolitics produces two forms, almost simultaneously.  Foucault is thinking of 1930s fascism, where (for example), the German emphasis on the health of the ethnically-German population was coupled with the extermination of European Jews.

But there’s an analogue, however imprecise, in the Presidential election last week.  In it, we saw two versions of biopolitics.  On the one hand, Clinton ran on a campaign of building a better life together, with a particular emphasis on fostering the lives of children and families.  The Affordable Care Act would be improved.  Paid leave for working parents.  And so on.  Even her negative ads against Trump emphasized the positive biopolitics: our children are watching.  What kind of President do you want them to see? On the Trump side, we saw nothing but Herrenvolk biopolitics: Mexicans, Muslims, African-Americans and women were taking over, making America not great.  This had to stop.  Law and Order.  Our country is at its nadir, thanks to an ineffective, losing President who was probably born in deepest, darkest Kenya anyway.  He also somehow founded ISIS, which by the way is winning. China is winning.  Everyone but America is winning.  But if we keep the Mexican rapists out, and all the Muslims, maybe something good can happen.  We will be strong.  We will win again.  In Messianic tones that Masha Gessen reminds us (this piece is a must read) we should take very seriously, he proclaimed that “I alone” can save you.  That almost none of that narrative was true became irrelevant, in the same haunted house in which Clinton’s email server somehow became a darker mark against her character than his many business failings, tax evasions, failures to pay subcontractors, etc.

Two version of biopolitics.  In Foucauldian terms, Trump was advocating the return of state racism.  At one level, this is an obvious point, given his endless racist rhetoric about Mexicans and Muslims in particular.  But liberal commentators, including myself, have tried very hard to explain the Trump victory in other ways.  I have decided it can’t be done.  The Trump election is fundamentally about the maintenance of White Supremacy, something that women and people of color said a week ago.

Quiet Neoliberalism: K-12 Edition

One of the important parts in understanding neoliberalism as a particular dispositive of power (or perhaps a mode of biopower – that sort of distinction doesn’t matter here) lies in understanding the various techniques it deploys.  After all, there is no “neoliberalism” or “neoliberal power” existing in the abstract; as Foucault repeatedly demonstrates, power can only be fully understood by digging down to the mircro-level, to all the little practices and techniques that add up to a particular social regime of power.  Attention to these details has been one of my interests  for a while (for example, in the case of privacy notices, or the emergence of best practices).

 At least since Althusser, we’ve been accustomed to recognize the schools as part of the ideological state apparatus, and Foucault’s Discipline and Punish underscored the point.  The locus classicus of neoliberalism in K-12 education is of course the rise of standardized testing regimes such as those imposed by No Child Left Behind.  Another area of focus has been the rise of semi-privatized charter schools.  Here, I want to take note of another, more subtle: the use of online homework assignments.  Recall that one of the central aspects of neoliberalism at work is the erasure of the work/home boundary and the devolution of technological minutiae to employees; the result is what Ian Bogost calls “hyper-employment,” and the necessary parallel rise of what David Graeber calls “bullshit jobs,” a phenomenon brought about by the fact that we don’t actually have 24 hours of useful work a day to do. On the job, workers are subject to nearly unlimited surveillance, and things like employee wellness programs extend that surveillance into the home.  It is only to be expected that this surveillant, time-wasting product of the neoliberal thought collective will be visited on our children.

Issue Opinion Polls are Bad Biopolitics

I am not the first to say this (I believe Habermas critiqued opinion polls in Theory of Communicative Action, though I bet he didn’t use the Foucauldian language I’m about to), but I live in what is now considered a “purple” state, which means my vote might actually matter, and so I am inundated with opinion polls. So allow me my few minutes of ranting here. Don’t get me wrong: I am very happy to learn that the RCP polling average as of this moment has Trump down 1.7 points in North Carolina, and down 5 points nationally, with almost no path through the electoral college.  It helps me sleep at night, though whatever faith in humanity those polling numbers restore is quickly erased by the sadness that anyone could vote for someone so openly racist.  

I don’t mind being phoned and asked who I’d vote for if the election were held today.  What is more interesting and disturbing happens when the polls try to get at issues. It’s also an excellent example of the creation of a “population,” in the sense Foucault uses the term when he talks about biopolitics.  Today was the second time I’ve been polled by an outfit that clearly only works for Republicans – in both cases, I was presented with a list of things the candidates have done, and I was asked if I was more or less likely to vote for them on that basis.  The Republicans were presented as having done only things that they clearly thought I would say were good, and the Democrats were mainly associated with higher taxes and alleged scandals.  So that’s the first point: the poll often tries to push the voter in one direction or another, to create the reality it is ostensibly researching.

The more interesting point is the one about constructing a population, which it does extracting a series of “issues” and presenting them as a disconnected set of questions, with no attention to their context or how they might interconnect.

Regimes of Accumulation

In a new paper, Maximilian Fochler conducted a series of structured interviews with scientists to make an STS point: when we think of capitalism as a system that depends on “accumulation,” there are many different kinds of things that one can accumulate, many of them non-financial.  I think Fochler makes an important point, but I also think it should be pushed in a somewhat different, more critical direction.

First, though, the results of the interviews.  Fochler interviewed both academic and non-academic scientists in Austria.  On the academic side, he looked at those in charge of labs, and the post-docs who do most of the actual bench science.  Both are engaged in a race to accumulate.  The leaders have to produce peer-reviewed publications in order to get grants, which they need to then get more peer-reviewed publications (Fochler’s interview subjects were Austrian, but it should be noted that in this country, many of those scientists have to get grants to cover their salary.  No grant, no paycheck).  The post-docs are in perhaps the most dire situation: there are a lot more post-docs than there are positions for them, and so they have to engage in a competitive race to accumulate publications as well, in order to continue in their careers (or as Becker would say, adding a polite veneer, “invest in their human capital”), either by extending their current position or gaining another one.  Adding to the stress, postdoc positions typically last 2-3 years, which is not enough time to accumulate a significant publication record (I will leave it to readers to draw the connections between this situation and that faced by the humanities precariat).

On the corporate side, we find the CEO’s of start-ups trying to generate peer-reviewed publications, positive lab results, and other indicia that their particular research program – and its endpoint product – is worthy of continued venture capital funding, with the goal of (eventually) selling the start-up to a larger pharmaceutical company. Since the scientific process apparently takes about 10 years, and the VC funding cycle is two or three years, this is a continuous worry.  The scientists, on the other hand, much to their surprise (and mine, as I read the paper) work in a collaborative, non-competitive environment.  This is because successes and failures are attributable to the entire company.  Of course, the downside of this is that these scientists don’t accumulate anything they can use to parlay into their next job.

The simple point I would like to add is that, despite all of the accumulation, no one is making any real money.  Not the post-docs, especially, though a move into to a faculty position adds some salary and a little job security, but also adds to the need to publish. The CEO’s and employees of the start-ups aren’t likely to get rich either: 90% of start-ups fail generally; pharmaceuticals don’t do that much better; and one study reported  that “97% of drugs in preclinical tests never make it to market, and nor do 95% of the molecules in phase 1 clinical trials and 88% of molecules in phase 2. Not until phase 3 do their prospects get much better: Of the ones that make it that far, 56% are approved” (summative quote from here).

The Internet of Nature

Big Data theorists have, for a while, been warily eyeing the growth of the “Internet of Things” (IoT), which is when “smart” technology is integrated into ordinary household devices like refrigerators and toasters.  New fridges all have warning lights that remind you to change the water filter; IoT fridges will order the new filter for you.  “Smart” utility meters are another example: they can monitor your utility usage moment by moment, making adjustments, say, to the HVAC to optimize power (or to prevent brownouts by automatically raising the temperature of everybody’s house a degree or two during peak hours).  Such smart meters are obviously key if those with rooftop solar are going to sell their surplus capacity to the power company.  They also enable very detailed surveillance of people’s home lives: they apparently know when you’re using power for the dishwasher, the shower, the TV, and so on.

Capital knows opportunity when it arrives; if your dishwasher is using more power than the average dishwasher, expect advertising for a new, energy-efficient model.  If you routinely have lights on until very late at night, maybe you need some medicine to help you sleep, delivered to your web browser.  Your boss sees opportunity as well: if you routinely disarm the alarm, turn on the lights and open the fridge at 3:30am, maybe you’ve been out clubbing too late to be a good worker, and you need to have your desk cleared by 5:00 today.  This inference will be assisted by the fact that clubs now keep networked electronic records - ostensibly for security purposes - of who goes in and out (and who is banned: if you get thrown out of a club, all the other clubs on that network can refuse you entrance).  What if your boss buys the data from the club networks, and the utility company and crunches it to measure productivity?  Or, sells it to the insurance company, where you’re told that your new wellness initiative requires you to allow your devices to report that you come home and stay there by midnight every night, under penalty of punitive premiums?  Your auto insurance bill will almost certainly go up too, because you’ll have installed the vehicle tracking devices that will, by then, be necessary to avoid punitive insurance rates.

But all of that is about surveilling the human.  In a fascinating new paper, Kevin Haggerty and Daniel Trottier extend the study of surveillance to nature, noting that the practice is both pervasive and growing, on the one hand, and nearly completely ignored, on the other, with the partial exceptions of Latour and Haraway.  I suspect that this is a paper destined to have a big impact; Haggerty in particular is a very significant surveillance theorist, and in a 2000 paper, he and Richard Ericson made a very influential push to orient surveillance studies around the Deleuzian notion of an “assemblage,” arguing that the Foucauldian “panopticon” had become dated.  In the current paper, Haggerty and Trottier look at several ways that we now surveil nature that they expect to grow exponentially with developing technologies.  None of them are exactly new, but things like RFID tags will make them a lot cheaper, easier, and more commonplace: the representation of ever-more-remote aspects of nature, often turning it into spectacle; using animals as agents (for example, as the Germans did during WWI, attaching cameras to homing pigeons); the increased use of biosentinels (where we rely on an animal’s response to the environment to infer information about that environment.  The canary in the coal mine or the drug-sniffing dog are the textbook examples); and taking surveillance inspiration from nature (looking at insect eyes to develop cameras that can see a full 360 degrees, for example).  They then suggest three implications for research into surveillance: (1) there are non-technological aspects of surveillance that need highlighting and study; (2) not all surveillance is of humans (contrary to what most of the literature talks about); and (3) we need to look carefully at inspirations for surveillance.  They close by highlighting that the human/nature boundary has never been a particularly bright one, and it’s likely to get less so as we move on.

New paper: Parrhesia under Neoliberalism

(From the Dept. of Shameless Self-Promotion) I have just uploaded to ssrn a paper on Foucault's last two College de France lecture courses, On the Government of Self and Others and The Courage of Truth, looking at main concept Foucault analyzes there: parrhesia (roughly: frank speech).  Those of you who were at my SPEP paper last year will recognize that this is the much revised and expanded version of that paper.  The ultra-short version of my thesis is that I don't think that parrhesia as Foucault recounts in the ancient Cynics will get us anywhere today (that's going the opposite direction from the doxa on these lectures).  Here is the abstract:

Foucault’s account of parrhēsia shows why it would have little critical traction today.  In Foucault’s analysis, parrhēsia has both a political and an ethical phase; Cynicism is the most radical version of the ethical phase.  The primary characteristic of Cynical parrhēsia is full visibility, something which Foucault does not endorse but which neoliberal biopolitics actively demands.  More fundamentally, ethical parrhēsia fails as a resistance strategy because branding capital blurs the boundaries between affirmations of capital and its critique, enabling the full cooption of parrhēsia-as-visibility into the process of branding.  Our problem is a lack of politics.

In addition to more textual work, the main additions are probably to the section on capital and branding, where I use the pharmaceutical industry as an example (drawing from this book by Phillip Mirowski.  You should pour a stiff drink before starting).  I also engage in the conclusion with an important paper by Kelly Happe on OWS (I discuss a different aspect of that paper here).

HB2: Expressive Law and Bare Life

Today, the Fourth Circuit – which covers North Carolina – allowed to let stand its earlier ruling legitimating the Department of Education’s definition of “sex discrimination” to include “gender discrimination.”  The case was specifically about a Virginia trans* male high school student who was banished to the women’s room.  No doubt there will be an appeal to the Supreme Court, but for now, the law of the land here is that refusing to allow public school students to go to the bathroom that matches their gender identity puts states at risk of losing a lot of federal money.

Last week, there were two more noteworthy developments around North Carolina’s HB2 (the law that forces trans* people to go to the bathroom of their “biological sex” as listed on their birth certificate, bans cities from expanding anti-discrimination law to include protections for the LGBTQ, and which bans municipalities from raising their own minimum wage).  First, on Friday, the UNC System filed legal papers indicating that it will not enforce HB2 on system campuses.  The move seems to have been orchestrated by new system president Margaret Spellings, and the affidavit includes the statements that “there is nothing in the Act that prevents any transgender person from using the restroom consistent with his or her gender identity,” and that neither the system nor its member institutions has “changed any of its policies or practices regarding transgender students or employees,” since the act lacks any enforcement provision. UNC mainly wants off the defendant list, but Spellings’ leadership here – and I don’t say this sort of thing often – has been pretty good.  She hasn’t denounced the law in so many words, but she’s both protecting the system and our trans* students.  Second, the bad PR continues: the law made the New Yorker  (the op-ed draws the correct connection to racial integration, and how Southern states resisted that).

With all this news, maybe it’s time to point out some of the obvious problems in the arguments of the bill’s defenders, and what their theoretical assumptions seem to be.  Collectively, these demonstrate two, intertwined things. On the one hand, the law is mainly expressive: that is, it doesn’t actually do anything, except scream from the rooftops that the state of North Carolina does not like LGBTQ people.  And that, more than anything else, I suspect, is why the backlash against it has been so intense.  On the other hand, it shows that the North Carolina legislature operates according to a theory of sovereignty that finds its clearest expression in Carl Schmitt, and the law itself is an attempt to relegate trans* people to what Agamben calls homo sacer.  Here’s the arguments:

Zubik v. Burwell: out with a whimper, not a bang

The Supreme Court today issued a much-anticipated ruling in Zubik v. Burwell, the latest lawsuit against the Affordable Care Act's contraceptive provision.  The ACA requires that insurance plans offer contraceptive coverage at zero cost, and includes a clause that employers who object to providing such coverage can request exemption from it, in which case the insurance company provides the contraception coverage, and the government pays them.  In the current case, the nonprofit petitioners said that even being required to request exemption from the contraception mandate substantially burdened their religious freedom, since it would make them "complicit" in their employees' acquisition of contraception.  As I do every time someone mentions this case, I'll point out now that these employees also receive wages from the company, which could also be used to purchase contraception.  So that theory of the case would imply that wages are immoral.  Given the political climate in the U.S., I should probably add that I consider this argument a reductio. 

Now we know how the Hollow Claim ends. After oral argument the Court requested additional briefs to see, essentially, whether the parties could work things out themselves, providing both contraception and religious accommodati0n.  Both parties submitted supplemental briefs indicating they could, and so today the SCOTUS ordered them to get busy on that project:

"Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Post, p. ___. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Supplemental Brief for Respondents 14–15.

In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them."

In the meantime, it is worth pointing out that this is an exercise in the Courts ordering biopolitics to happen, and rejecting efforts to get out of that process through judicial fiat.  I mention that only because (shameless self-promotion), I think the logic, if not the language, is on the general same page as how the Courts handled school desegregation in its heyday: the Court sets the outer parameters, but basically they want a policy-making process to happen, if with juridical supervision.

Reading List: Wendy Brown, Undoing the Demos

In critical work on neoliberalism, there’s probably two or three main schools of thought.  One approaches the subject as a matter of political economy.  David Harvey, whose analysis is explicitly Marxian, is the most well-known figure in this approach; another prominent author in that camp is Philip Mirowksi.  The other major school is broadly Foucauldian, taking its cue from Foucault’s Birth of Biopolitics lectures.  A third group, represented by autonomist Marxists like Paolo Virno, Franco Berardi, and of course Michael Hardt and Antonio Negri, attempt a synthesis (I won’t have much to say about them here).  All sides have methodological critiques of the other; here I just want to note that the Foucauldians generally tend to be concerned with a topic that seems neglected in political economy: granted that neoliberalism expects us all to behave as homo economicus, defined as a risk-calculating, utility-maximizing investor in himself (gendered pronoun deliberate), how does neoliberalism get people to actually do this?  After all, it is not a natural human set of behaviors.  More specifically, not just how does neoliberalism get people to do this, but how does it get them to do so enthusiastically, treating the definition of the human as homo economicus as the true, correct and only way to be human?  In other words, Foucauldians insist that critiques of neoliberalism need an account of subjectification.

Wendy Brown’s new(ish) Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, 2015) makes a substantial contribution to the Foucauldian camp by focusing on “Foucault’s innovation in conceiving neoliberalism as a political rationality” (120).  The political rationality is “governance” as “the decentering of the state and other centers of rule and tracks in its place the specifically modern dispersal of socially organizing powers throughout the order and of powers ‘conducting’ and not only constraining or overtly regulating the subject” (125).

State Religious Freedom “Restoration” and the Confusion between Public and Private

In adding a clause to Hegel, Marx remarked once that the great world historical events occur twice: first as a tragedy, and then as a farce.  For a 21^st century version, I propose adding that it’s getting harder to tell the difference.  I am of course talking about North Carolina’s infamous HB2, which requires trans* individuals to go to the restroom of their “biological sex” as recorded on their birth certificate, AND makes several forms of discrimination (racial, etc.) illegal in the state (but not against the LGBTQ) AND bars local municipalities from extending further protections (it does more, but those are enough for one blogpost).  The clear intent, and the net effect, is to deprive gender non-conforming individuals from equal protection of the law, and to invite discrimination against them.

In defense of the inevitable firestorm this caused, most of the few state leaders who both support it and who have spoken on it have basically gone into a defensive crouch.  The governor claimed to be “blind-sided” by questions about the law, and unclear about its implications.  More generally, supporters busy themselves telling fairy tales about the danger to public safety that having “biological” men in the women’s room will cause, no matter how much those men have transitioned into being women.  Nevermind that there is zero evidence that there has ever been a problem in this regard, including in the hundreds of jurisdictions that have passed ordinances like Charlotte’s, and nevermind that transitioning is about the most difficult possible way to prey on people in public restrooms.  Oh, and nevermind that the law is without theoretical foundation unless you think that trans* individuals are sexual predators, and that cis folks are not.

On the farce side, this means that people who appear to be men will have to use the women’s room (and vice versa), which will almost certainly cause greater discomfort for more people than the previous status quo.  On the tragic side, the law is totally unenforceable, and so encourages vigilantism against all gender non-conforming individuals, since they are now all on a continuum that ends with “not being not manly enough to use the men’s room.”  As Mary Elizabeth Williams writes on Salon:

Big Data, Commodification and Original Accumulation

In an interesting new piece, Jim Thatcher, David O'Sullivan and Dillonn Mahmoudi propose that big data functions in the context of capital as “accumulation by dispossession,” which is David Harvey’s term for what Marx called “primitive accumulation,” the process by which capital adds to its wealth by taking goods from others and adding them to the system.  Marx: “so-called primitive accumulation, therefore, is nothing else than the historical process of divorcing the producer from the means of production” (Capital I, 875 [I am using the Penguin edition]).  Perhaps the best example of this is the one detailed by Marx: the enclosure movement in England involved the privatization of agricultural common spaces in England, such that it was no longer possible to graze sheep on lands held by the community in common; the result was that a lot of peasants, who ended up with no or inadequate amounts of private property, lost everything of value they had and became “free labor,” forced to sell themselves to the emerging factories.  As Marx sums up the process:

“The spoliation of the Church’s property, the fraudulent alienation of the state domains, the theft of the common lands, the usurpation of feudal and clan property and its transformation into modern private property under circumstances of ruthless terrorism, all these things were just so many idyllic methods of primitive accumulation.  They conquered the field for capitalist agriculture, incorporated the soil into capital, and created for the urban industries the necessary supplies of free and rightless proletarians” (895)

I am very sympathetic to the thesis, and there is something profoundly right about it, insofar as Thatcher et al. rely on the separation of the valued information from the person who produces it.  But I also think it needs tweaking, for reasons that emerge in the paper itself: the data trail that a person leaves is generally itself without value, and only becomes valuable when aggregated with a lot of other data.  In other words, as I tried to argue a while ago, data is itself without value; it is only when it becomes information that it realizes that value.

It seems to me that the accumulation processes of big data is involved in a much earlier stage, the commodification of data into information itself, which involves both the elevation of exchange value over use value, and the conversion of qualitatively different items of data into commensurable units of information.  These are, to an extent, equivalent processes, as Marx notes: “as use values, commodities differ above all in quality, while as exchange values, they can only differ in quantity, and therefore do not contain an atom of use-value” (128).  Still, I think it’s worth teasing the two threads apart here.

Gender, Sex and Heart Health

So we all know that there’s a difference between “sex,” taken as a biological characteristic, and “gender,” as a social one. Maybe the heuristic is overdrawn (put down the updated theory; that’s not where this is going), but it works pretty well as a heuristic. It also has just led to a (maybe not so surprising) study result (paywalled; for a quick video summary, see here, though you may get served an ad): among young people with premature Acute Coronary Syndrome (ACS; it’s an umbrella term for anything involving a sudden reduction or block of blood flow to the heart, such as a heart attack), being gendered female – of self-identifying with traits that are traditionally associated with women – increases the risk of recurrence over the next 12 months. Being a woman (i.e., biological sex) does not affect future risk. As the authors say:

“Gender-related characteristics like personality traits and social roles (psychosocial sex) may be as important as biological sex in predicting adverse cardiovascular outcomes in young patients with acute coronary syndromes. Both women and men with personality traits and social roles traditionally attributed to women are at increased risk of subsequent adverse events.”

I make no assessment of how robust this result is (I noticed that the cohort was fairly small).  I will note that the study did not take race into account, although everything we know about intersectionality says that young women of color are likely to have even worse outcomes.

Foucault, Descartes and Monastic Subjectivity

By Gordon Hull

We’ve known for a while, thanks to work by scholars such as Stephen Menn, that Descartes was in many ways a deeply religious and conservative thinker, one who took great care to try to align his work with Church doctrine, and who engaged scholastic thought with a good deal more precision than his dismissive comments suggest. One need only compare his assertions about the epistemic veracity of “ideas” as opposed to linguistic expression, to see the point. Indeed, as Tad Schmalz documents in detail, Descartes and his followers’ problem – and why he ended up on the banned books list – wasn’t any of the things that you might initially think, like the cogito, but the inability of his followers to explain the Eucharist (this shows up as early as Arnauld’s replies; in a way, the failure was inevitable, since the official explanatory apparatus of the Eucharist, as a product of the 1300s, presupposed Aristotelian physics, which Descartes rejected). Foucault’s lectures On the Government of the Living deepen that picture and apply it to the world we live in today.

In his Descartes and Augustine, Menn makes the case that Descartes is fundamentally an Augustinian thinker in many ways. The cogito (Descartes never says “cogito ergo sum” in his own voice, by the way, so really we are talking about the res cogitans) appears to be lifted straight from Augustine. Via Menn, then, here is the Augustine. I apologize for the length, but if you’re not familiar with it, the passage is worth it (for the TLDNR crowd, I’ve boldfaced the parts that get the point across most succinctly:

Bless Me Fitbit, for I have sinned…

By Gordon Hull

Since we’re in the interregnum between “sign up for health insurance” time and “eat yourself into a stupor” time, it’s appropriate to notice something about pastoral power and our healthcare system. First, we’ll go back in time. Foucault proposes that pastoral power under medieval Christianity:

“Gave rise to an art of conducting, directing, leading, guiding, taking in hand, and manipulating men, an art of monitoring them and urging them on step by step, an art with the function of taking charge of men collectively and individually throughout their life and every moment of their existence.” (Security, Territory, Population (=STP), 165)

He then urges that this is not the same as political power, the power used to educate children, nor is it persuasion (“in short, the pastorate does not coincide with politics, pedagogy, or rhetoric” (164)). The pastorate does not disappear with the rise of modern power forms, as he emphasizes in a couple of places (STP 148, 150). Indeed, he makes a much stronger claim: “I think this is where we should look for the origin, the point of formation, of crystallization, the embryonic point of the governmentality whose entry into politics … marks the threshold of the modern state” (165).

New Paper on Juridical and Biopower and School Desegregation Cases

by Gordon Hull

This is shameless self-promotion, but I've just posted "Equitable Biopolitics: What Federal School Desegregation Cases Can Teach us about Foucault, Law and Biopower" to SSRN.  This is my SPEP paper from 2014, and I've referenced it in a few blog posts here.  So here it (finally!) is.  The abstract is:

The present paper looks at the intersection of juridical and biopower in the U.S. Supreme Court’s school desegregation cases. These cases generally deploy “equitable relief” as a relay between the juridicially-specified injury of segregation and the biopolitical mandates of integration. This strategy is evident in the line of cases running from Brown to Swann v. Mecklenburg, and has its antecedents in pre-war economic regulation. Later cases have attempted to close this relay, confining equality and rejecting claims of equitable relief. Study of the school desegregation cases thus both shows an example of the intersection of biopower and law (which has been difficult on Foucauldian grounds), as an example of the biopolitical race war that Foucault identifies in Society must be Defended.

Gary Becker’s Deus ex Machina on Health Behaviors

By Gordon Hull

As Melinda Cooper notes (recall here), one of the reasons Gary Becker – as opposed to other neoliberal theorists – was interesting to Foucault because of his emphasis on microeconomics, particularly the quotidian institutions through which micropower functions, such as the family.  At the same time, Becker’s human capital theory has become increasingly important in neoliberal constructions of human nature.  In a late essay, Becker applies himself to health economics.  The result, I think, offers a very clear demonstration of neoliberal thinking and how it works nearly inexorably to distract from social problems, generally by constructing them as individual problems and ignoring the social determinants of an individual’s situation.

Cooper on Foucault on Iran and Neoliberalism

In her contribution to recent the Vatter/Lemm-edited collection of essays on biopolitics, Melinda Cooper argues that Foucault’s work on neoliberalism needs to be read in the context of his interest in the Iranian revolution.  If she’s right, this stands current complaints about Foucault’s engagement with neoliberalism on its head.  The standard complaint about the work on biopolitics is that Foucault ends up supporting (deliberately or otherwise) neoliberalism.  The merits of that claim have been debated ad nauseam, particularly in light of the Zamora book last year, and I have no interest in revisiting them here (plus, Vatter’s paper in the same book does a great job on the topic, and I think he ups the bar considerably for future discussions).  Cooper’s paper is of interest because she makes what is essentially the opposite claim: Foucault was so disturbed by the general diffusion of the oikos into the polis that defines neoliberalism (and really classical liberalism, too) that he found the Iranian revolution interesting precisely because it focused on restoring some sort of classic oikonomia.  There’s thus two main steps to the argument in its most condensed form: (a) The Iranian revolution was premised on getting women out of the public sphere after Shah Pahlevi introduced a number of reforms that greatly expanded their integration into the full economy; and (b) Foucault thought that it would be a good thing if there was some sort of restoration of the law of the household as a bulwark against neoliberalism.

Vatter on Foucault on Hayek

A while ago, Daniel Zamora’s (re)publication of a series of essays designed to say that Foucault ended up embracing neoliberalism caused quite a stir in the blogosphere.  As one of those invited to contribute to a forum in An und für sich), I argued that Foucault saw both that neoliberalism realized the need to create markets (as opposed to liberalism’s assumption that they just happened), as well as the need to create homo economicus as a form of subjectification.  As I put it then:

Why the Politics of Internet Flags Matters

By Gordon Hull

We don’t access the internet directly – it’s always through some sort of intermediary software.  For that reason, it matters – a lot – what the intermediary does, and what kind of interactivity it promotes.  Concern about this dates at least to a 1996 (published finally in 2000) paper by Lucas Introna and Helen Nissenbaum called “Why the Politics of Search Engines Matters.”  More recently, Tarleton Gillespie has emerged as a major voice in these debates: his book, Wired Shut, makes a strong case against Digital Rights Management techniques, and his more recent “Politics of Platforms” makes an argument analogous to Introna and Nissenbaum’s for programs like Facebook.  Indeed, internal FB studies seem to bear these concerns out: Facebook discovered that it could influence voter participation with simple “get out the vote” reminders sent to some users but not others. The results could easily swing a tight election.  Gillespie and Kate Crawford have a new paper out that makes the argument in the context of “flagging” content.

Where did Biopower Come From?

By Gordon Hull

Foucault made a big deal in the lectures contained in Security, Territory, Population of the linkage between medieval pastoral power and modern governmentality.  Although there have been skeptics – most notably Mika Ojakangas, who thinks Foucualt reads the ancient sources nearly backwards: it was the Greeks and Romans who practiced eugenics, and Jewish and Christian authors who opposed them – it’s certainly a narrative that has the feel of doxa.

What is pastoral power? According to Foucault, during the Middle Ages, Christianity “is a religion that … lays claim to the daily government of men in their real life on the grounds of their salvation and on the scale of humanity, and we have no other example of this in the history of societies” (STP 148).   Through an elaborate apparatus of confession, submission, and obedience, a “subtle economy of merit and fault” (STP 173), Christianity established a series of equivalences between the salvation of the pastor and that of his flock according to which the salvation of one was a function of the salvation of the other (STP 169-72).  Although these techniques of power were historically specific, Foucault argues that analysis of pastoral power shows it to be the “embryonic point” of modern governmentality (STP 165).  In sum:

"We can say that the idea of pastoral power is the idea of a power exercised on a multiplicity rather than on a territory.  It is a power that guides towards an end and functions on an intermediary towards this send.  It is therefore a power with a purpose for those on whom it is exercised, and not a purpose for some kind of superior unit like the city, territory, state or sovereign …. Finally, it is a power directed at all and each in their paradoxical equivalence, and not at the higher unity formed by the whole" (STP 129).

That’s the story.

The problem is that there is another Foucauldian narrative about governmentality.  You see it in his Rio lectures of 1973 (“Truth and Juridical Forms,” in the Power anthology).  But it’s even more evident in his “Lives of Infamous Men” (also in Power, the pagination to which I will refer) (these texts are both slightly before STP).

Substantive Equality and Juridical vs. Statistical Biopower

By Gordon Hull

The legal doctrine of substantive equality – roughly, that one look at not just the presence of stipulated, formal equality, but that one incorporate outcomes as relevant to whether or not equality has been reached – strikes me as a biopolitical concept, whereas its more formal counterpart is more juridical.  Consider the right to abortion: a formal declaration that a woman has the right to terminate a pregnancy prior to fetal viability exists whenever laws do not prohibit the termination.  Recent state laws that ban all abortions after a gestational age of 20 weeks run afoul of that right, because a fetus at 20 gestational weeks is not viable.  On the other hand, if the right is substantive, then it matters whether women can actually take advantage of the right.  State laws that require spousal consent, for example, were declared by the Court in Planned Parenthood v. Casey to place an “undue burden” on the exercise of that right.  That’s a decision based on substantive equality, and it treats women not (just) as juridical subjects possessing abstract rights, but as agents in the world trying to achieve the outcomes that such rights are (presumably) designed to allow.  Current rounds of state restrictions on abortion, such as forced transvaginal ultrasounds (on the pretext of ensuring the woman is “fully informed”) or the demand that clinics look like hospitals (for the “safety of women”) seem designed to limit the substantive right to abortion, while preserving it formally.  All of that is a rough-and-ready way of putting the distinction, and there may very well be any number of equality claims in particular where the substantive version doesn’t sound particularly biopolitical.  That’s ok – in what follows, I want to look at education, and to propose that claims of substantive equality, even biopolitically-oriented ones, can differ dramatically in what they claim and how they claim it.

One of the notable features of Brown v. Board of Education is its reliance on social science evidence indicating the psychological harm of segregation to black children (this is the famous “footnote 11,” which cited a number of recent studies).  In his reflections on Brown, Robert L. Carter, one of the attorneys who argued the case, noted that “we assumed … that educational equality in its strict educational connotations – with its emphasis on the quality of education – was the same as educational quality in its constitutional dimensions” and notes that, in a series of earlier cases, “we turned to expert testimony for the first time,” and supported the argument with two kinds of claims: by “measuring the physical facilities of the proposed black law schools against the existing university holdings and by taking into account the adverse psychological detriment that we contended segregation inflicted on blacks – all of which resulted in a denial of equal education” (Bell, ed., Shades of Brown, p. 22).  The three cases prior to Brown were Sweatt v. Painter, McLaurin v. Oklahoma, and Sipurel v. Oklahoma.  Let’s take them in reverse chronological order.

Permissions Culture: Copyright and complete subsumption

Publishing in general, and for the visual arts in particular, has moved to what’s called a “permission culture,” which basically means that nobody will publish your work unless you get explicit permission from the rights owner.  This is often an arduous process, since art often includes many copyrighted images or other materials.  A documentary film producer, for example, has to worry if an interview subject has the TV on in the background.  Permissions culture means that the producer has to either remove whatever is on the TV, or secure permission to use it.  It also means that scholars may not be able to publish articles that include images of the work they are discussing, either because the images are unavailable, or unaffordable.

On the surface of things, this seems odd: shouldn’t a lot of this fall under “fair use?’ The copyright statute, after all, cites education as an example.  An important paper in 2007 explained why fair use doesn’t matter in this context.  Basically, fair use is an affirmative defense against an infringement claim: you sue me for infringement, I claim fair use, and that’s the argument that litigation resolves.  Fair use guidelines are deliberately vague and left to a case-by-case judicial determination, and so it’s not always obvious what gets counted as fair use.  Litigation is very, very expensive, and publishers are risk averse.  They don’t want to pay for litigation, and if they lose, they lose not only all that money, but the work they were trying to publish gets enjoined.  So publishers won’t publish without prior permission (fair use thus systematically favors rich claimants and defendants).  In addition to the problems all of this directly creates, it indirectly creates a ratcheting effect, because one place courts look to see if use is fair, is industry practices.  So the more publishers seek permission for everything, the narrower fair use becomes.

The Return of Sovereign Shaming

In May, a 13-year-old named Izabel Laxamana took a selfie wearing a sports bra and some leggings, and sent it to a boy at her school.  When school administrators heard about the picture, they contacted her parents.  What happened next defies easy comprehension: delivering on a threatened punishment for breaking his social media rules, Izabel’s father cut off her hair.  He then made a video of Izabel with her hair (in a pile on the floor), demanding that she say breaking their rules hadn’t been worth it.  The video found its way to social media.  Two days later, Izabel jumped off an overpass, and a day later, she died from her injuries. The reasons why Laxamana committed suicide are of course complex, and may or may not be because of the shaming (and the father may or may not be the one who posted it to social media).*  But the videoed retaliatory haircut seems to be real.  In a recent piece in Slate, Amanda Hess catalogues the sudden re-emergence of this medieval phenomenon – literally medieval; women were punished by having their hair cut off, often in public – and situates it as part of a more general re-emergence of the public shaming of teenagers by their parents:

Occupy, Parrhesia, and (Virtual) Camps

In the current issue of Philosophy and Rhetoric, Kelly Happe has an interesting paper interpreting Occupy Wall Street (or at least the Zuccotti Park component) as an example of cynical parrhesia.  In a time when all expression is always already co-opted by neoliberal capital as a source of surplus value (this point has been canvassed extensively by the autonomist Marxists as “complete subsumption,” and I’m going to take it for granted here.  I summarize it here in my discussion of Hardt and Negri’s Empire), it becomes hard to know what kind of speech would count as protest.  Anyone who has seen the branding of Che Guevera T-Shirts has some idea what the problem is.  It’s also one that has been very difficult to address; in Empire, for example, which lays out the problem quite clearly, we are offered the somewhat discouraging example of Coetzee’s Michael K, a character who drops out and nearly starves to death in caves. 

Happe’s move is to suggest that Occupy succeeds in avoiding cooption by way of its rejection of politically expressive speech.  As she puts it, “what is striking is the time and space devoted to the material culture and everyday life of public, communal living.  Indeed, in the various accounts of the Zuccotti moment of Occupy, the radical imagination is inseparable from the otherwise unremarkable practices of day-to-day living in an encampment” (214).  That is, it is in the rejection of symbolic and explicitly “political” speech that Occupy evades neoliberal cooption.  Such speech, she proposes, is a good example of the sort of ethical parrhesia that Foucault recounts in the ancient Cynics.  For the Cynics, it is precisely the extent to which their speech is unintelligible to politics that makes it radical, suspends its subsumption into the political apparatus, and presents the contingency of a new way of life.  Happe writes:

School Desegregation, Biopower and the Cold War

One of my summer projects is to work up my SPEP paper from last year, which used the school desegregation decisions (like Brown v. Board) as a way to think about the relations between juridical power and biopower in the courts.  The role of the courts in the transition from hegemonic juridical power to hegemonic biopower hasn’t been studied a lot, and the tendency is to dismiss the courts as institutions along with juridical power.  The centrality of the judiciary in school desegregation convinced me that there’s more to be said, however.  Current litigation about whether corporate entities can use rights claims to deny contraceptive insurance coverage to their female employees seems to bear that intuition out.  So I’ve been reading, and one thing that didn’t particularly strike me until now is the complexity of the relation between school desegregation policy in the U.S. and what Foucault calls a “race war” at the end of Society must be Defended.

Facebook and the Ideology of Big Data Neutrality

It must be summer: Facebook has released a controversial study of its users.  Last year, it was the demonstration that the emotional contagion effect did not require direct contact, and could in fact spread across social networks without direct, face-to-face contact (the controversy wasn’t in the result, it was in the fact that FB did the study by manipulating its users’ Newsfeeds to present more happy content)   This time, Facebook’s research wing published a paper in Science purporting to demonstrate that Facebook wasn’t responsible for whatever online echo-chamber effect its users might demonstrate.  Or, at least, if the site did contribute to an echo-chamber, it wasn’t the main contributor.  From the FB blog discussing the paper: