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Violence, (Auto-) Immunity, Law: Death, Non-nationals and Deportation

by Peter Langford
18 May 2012 • Comment (0) • Print
Posted: Im-possible Derrida [8] | Article
 

The Death of Jimmy Mubenga within the Framework of Positive Law Orientated by the Primacy of the Nation-State

Within the framework of positive law, as law whose distinct identity as law rests upon its separation from morality and religion, the death of Jimmy Mubenga, is intelligible as the death of a non-national defined, by the relevant administrative and judicial institutions of the national legal order, as a ‘failed’ asylum seeker. This death results from the application of force to enable the implementation of the sanction – deportation – arising from a legal judgment that this individual did not satisfy the evidential conditions necessary for the State to be required to comply with its obligations, under international legal instrument – here, the Geneva Convention for the Status of Refugees 1951 & The Protocol of 1967.1

The application of the sanction – deportation – is then the legally valid (non-arbitrary) removal of the individual from the territory of the state (as an integral part of the exercise, maintenance and reproduction of state sovereignty). This removal necessarily entails that the physical body of the individual concerned is excluded from the territorial space of the state, and this exclusion, therefore, always involves the application of a certain degree of external physical force upon that body in order to displace it from its position within that territorial space.

From within the (positive) law, as a valid procedure moving from the legal norm to the application of the sanction, the death of Jimmy Mubenga is only illegal, that is, itself the potential subject of continued legal regulation, if the force involved in the application of the sanction moves beyond that conceived to be an integral part of the effectuation of the sanction of deportation. The question here is the determination of the point at which the force of law (i.e. the application of a sanction which is legally valid as it flows from the violation/lack of conformity with a norm) becomes the law of force (i.e. the use of a degree of force which is such as to detach it from this conformity and, hence, to deprive it of legal validity). The law of force, here, becomes the application of arbitrary, illegal, physical force whose consequences for the individual to whom it is applied creates the potential for those involved in its application to have committed an offence under substantive criminal law, and, if established, to be subject to the sanction of a form of criminal punishment.

In relation to the determination of this point of divergence and, with it, the designation of those who have applied force as having done so beyond that envisaged by the force of law, the recent history of the instances in which the legal system has been called upon to engage in this determination have failed to clearly and transparently define this boundary.

Rather, if one commences this recent history from the death of Joy Gardner,2 during the process of the application of the sanction of deportation, then a double movement is evident. At the moment of the application of this sanction, and its attendant force, upon Joy Gardner, those individuals who held delegated authority to undertake it were representatives of the then Metropolitan Police Special Immigration Unit (SO1(3) squad). The death of Joy Gardner led to the initiation of a criminal prosecution against these particular public law enforcement officials – the consideration of whether this death represented the result of the law of force rather than the force of law. This criminal prosecution did not result in a finding that any of the public law enforcement officials involved were guilty of a substantive criminal offence. This legal determination was then accompanied by the state ordering that the unit be disbanded, and that the application of the sanction be undertaken through a contractual relationship between the state and a particular private security firm.

This privatization of the application of the sanction, while maintaining the state’s responsibility for its conformity to the legal instrument of international law, modifies the character of its responsibility for the application of the sanction of deportation. Its responsibility is now indirect through the form and provisions of the contract which it agrees with the particular private security firm. The rendering indirect of its responsibility entails that the contract with the particular private security firm constitutes its employees as vested with authority to implement the sanction of deportation. The particular practices of the private security firm then come to define the methods through which the force involved in the sanction of deportation is applied.

In this double movement, the question of the determination of the definition of the boundary between the force of law and the law of force remains unchanged, but its potential to involve the state, through the actions of its public law enforcement officials, in this question has been removed. With this removal, the particular practices utilised in the application of the sanction of deportation also remain unchanged. For, the decision to privatize is never accompanied by the direct specification, by the state, of those practices which represent the law of force.

These continuities within this double movement are preserved by the introduction of the contractual form itself. For, the contract, between the state and the particular private security firm, is the culmination of a process of tendering in which a number of private security firms offer a sum of money to the state in return for the right, conferred by contract, to provide functions previously fulfilled by state institutions. In this tendering process, the particular functions of the state are transmuted into monetary terms, and the state assesses each potential private firm upon the financial viability of its particular bid. It is the successful bid which confers the particular private security firm with legitimacy to undertake these functions; and the particular practices and methods which the successful firm will utilise in the fulfilment of these functions becomes a secondary concern.

These only have the potential to become of primary concern if, in the exercise of this particular state function, the private security firm engages in an application of the sanction of deportation which raises the question of this boundary. In this situation, that, most recently, of Jimmy Mubenga, the potential for individual criminal liability remains despite the replacement of public law enforcement officials by employees of the private security firm. In addition, the potential corporate criminal liability of the private security firm itself arises. However, the state has replaced its direct liability with the regulation, through the form of a civil contract, of the continued use of the particular security firm to undertake these particular functions of the state.

This transformation of the state’s role is not one in which it simply ceases to involve itself directly in the application of the sanction, because it accords itself, through the form of the civil law of contract, the freedom to terminate the capacity of the private security firm to undertake these state functions. This then creates the impression that it has provided a more effective regulatory regime. This seemingly increased effectiveness also diminishes the attention which is accorded to the question of the state’s degree of conformity with the norm created by the international legal instrument of the Geneva Convention on the Status of Refugees. The primacy which the state accords to the provisions of this international legal instrument ceases to be the manner in which this conformity is posed.

The state’s compliance with the Convention – the granting of refugee status to non-nationals who apply for asylum – has come to be reinterpreted as the formal recognition of the Convention combined with the implementation of a set of administrative and legal procedures which actively reduce the number of successful applications for asylum. In this reinterpretation, the primacy of state sovereignty is asserted as the basis for the recognition of the norms of international law contained in the Convention.3 This process is one in which the recognition of these norms is subordinated to the maintenance of the state’s control over the entry, residence and expulsion of non-nationals. The primacy of the dynamics of state immigration policy replace the primacy accorded to the conferral of the status of refugees upon non-nationals within a state.4

The dynamics of this state immigration become intertwined, at another level, with the dynamics of privatization, as not only does the enforcement of the sanction of deportation entail the application of force by employees of a private security firm, but the transfer of the non-national is now undertaken by private airlines. This has the effect, as with the presence of Jimmy Mubenga on the British Airways flight, of rendering this question of the limit between the force of law and the law of force, more visible. The contractual form of relationship between the private airline and the state constitutes Jimmy Mubenga as one passenger among a number of other passengers on a flight. This formal equality, though already undermined by the presence of the accompanying plain-clothes or uniformed private security guards, disappears once this passenger’s continued potential to be subjected to the use of force emerges in the course of the flight.

The moment of the application of force invokes the question of this limit for the other passengers on the plane through the visibility and character of its application. It is in this moment that the passengers are confronted with the question of the validity of this sanction, and their proximity to its enactment. In the case of Jimmy Mubenga, having been seated with accompanying security guards, prior to take-off, a confrontation broke out between Mubenga and the private security guards, after he began to say that he did not want to return to Angola and became agitated, applied force to restrain him. During this application of force, he cried out that he could not breathe,5 before losing consciousness. The plane returned to the Airport Terminal at Heathrow for the arrival of medical assistance (and the police), which, when it arrived, declared Jimmy Mubenga to be dead. The visibility of this application of force, and, in this case, the resulting death, constitutes these passengers as spectators in the application of this force.

Their role as spectators enables this question of the limit between law and force, embedded within positive law, to remain within the purview of the institutions of the state. The state alone will determine, through the use of criminal law and the law of contract, whether this death marks the passage beyond the force of law to the law of force. The passengers will simply provide evidence, as potential witnesses, in any future criminal trial, that this marks an instance of this passage.

The essential passivity of this role, if challenged, reveals its less than clearly voluntary nature. For, where passengers seek to intervene because they consider that the type of force used represents an instance of the law of force, the private companies will seek to actively dissuade this intervention. These passengers are seen to have themselves passed beyond the framework of contractual duties and obligations which the purchase of their air ticket creates between them and the airline. Their intervention is then defined as itself being an interference with the safety and security of other passengers and aircraft crew. Once classified in this way, they can be removed from the flight, and this may be accompanied by having to be questioned by police after their removal.6 In this manner, the primacy of the state, through the framework of both systems of civil and criminal positive law, reproduces the subordination of the right of the non-national to apply for asylum, and its attendant legal status of a refugee, to the logic of an immigration policy which is now enacted by amalgam of public and private entities.

From Positive Law to the Post-Colonial

The dynamics of this state immigration policy, which has asserted its primacy over the question of the determination of a non-national’s claim of asylum, provide the connection between a national system of positive law, an international legal instrument, and the question of the post-colonial. Immigration policy – the state’s control over the entry, residence and expulsion of non-nationals – is necessarily affected by the state’s perception of its position in relation to other states and to international legal instruments.

The phenomenon of the post-colonial manifests itself within this immigration policy by the effective withdrawal of European states, from the end of World War II onwards, from the majority of the overseas territory which they had previously regarded as part of their national legal order. This withdrawal was accompanied by the ‘granting of independence’ to these territories which now became states, with their own national legal systems, within an international legal order composed of a significantly increased number of states.

The previously colonized peoples in these territories then became the inhabitants of formally independent states whose legal identity and status was now determined by the national legal order of this state. It is this which now detached a national, as part of a national legal order, from an immediate connection with the previously colonized territories of the former colonial powers. In this process of detachment, a post-colonial international system emerged in which each of these newly independent states was constituted by its formally equal legal status with all other states under international law.

This formal legal equality was to become increasingly tenuous, and the addition of the 1967 Protocol to the 1951 Geneva Convention for the Status of Refugees, was an early international recognition that population displacements and migration produced by conflict and persecution – the basis for a claim of asylum by a non-national in another state – would be caused by events after 1951. The prevalence of conflict and disorder within the post-colonial international system affects the relationship of formal legal equality between its states and the degree to which the primacy of international law is achieved.

The fragility of the post-colonial international system, indicated by this redefinition of the 1951 Geneva Convention for the Status of Refugees, rests upon the character of the development of the internal legal order of the newly independent states and the influence, upon this, of other states. This process of development concerns both the configuration of the post-colonial state, in these newly independent territories, and the definition of the population within them. It is the configuration of this dual process which establishes the parameters and degree of fragility within and among these newly independent states.7

This configuration, from the perspective of positive law, is itself the reflection of the wider relationship of development and underdevelopment between the states within this post-colonial international system. Within this wider relationship, the formal equality of states, under international law, is accompanied by a process of differentiation in which states are marked by an unequal capacity to provide the same socio-legal and economic framework for their populations. This, in turn, creates a divergence between this formal equality and the inequality of this wider framework. The periodization of the post-colonial international system is then constituted by the alterations in the relationship between this formal equality and the inequality of this wider framework.

An integral element of this relationship is represented by migration between states within the post-colonial international system.8 The patterns of migration have come to be an expression of this inequality, and have presented those states which they seek to enter, as non-nationals, with the question of their definition and treatment under national and international law. This expression is, however, itself intertwined with the practices of developed states, international institutions and non-governmental organisations within the system of international development. In this system, this underlying divergence and inequality has been sought to be addressed by various forms of assistance to these states recognised as less developed.

This system of international development has also undergone a process of alteration, and  provides a further periodization of the conception of this relationship between the formal equality of states and their wider inequalities. In this periodization, the death of Jimmy Mubenga, is situated within the most recent period characterised by the intertwining of notions of development, security and containment. This constellation has formed through the slow displacement of a notion of development in which underdevelopment represented a temporary stage upon a path towards development.9 It entailed the active encouragement and assistance of state institutions of underdeveloped states to engage in programmes of economic development. These were also part of the dynamics of the Cold War, in which development, and the projected reduction in poverty and other forms of socio-economic inequality, existed as an extension of the geo-political superpower rivalry.10 The end of the Cold War led to the gradual redefinition of the notion of development, through the concomitant redefinition of the notion of security, and the reconfiguration of the relationship between developed and underdeveloped states.

In this reconfiguration, underdevelopment has now become an essentially enduring framework which is more strictly and clearly demarcated from that of development. The demarcation rests upon the installation of the increased permanence of a fundamental precariousness, and its associated inequalities, within these underdeveloped states.11 In this process of demarcation, whose emergence can be situated at the end of the Cold War, with the imposition of policies of structural adjustment in conformity with the Washington Consensus,12 the forms of inequality, while measurable in terms of global income inequality,13 involve an effective divergence in forms of existence.

The divergence involves the shaping of existence in underdeveloped states, by two overlapping teleologies without end:14 the precariousness inherent in the reproduction of uninsured life combined with the proliferation of forms of violence. Uninsured life is that form of existence which remains unaffected by the insured life created by state-funded programmes of social welfare.15 It becomes, with the imposition of structural adjustment and the Washington Consensus, an increasingly generalized form of life. From the perspective of developed states, and the international institutions, this uninsured life, is now the form of existence which development seeks to maintain rather than to transform. It is presumed that what is being maintained is “an essentially ‘self-reproducing natural economy’”16 distinguished by its essential resilience and flexibility. Poverty reduction is no longer centrally associated with a state engaged in programmes of social welfare and industrial and infrastructural development guided by “a single, unified measure of economic growth”.17 This, in turn, weakens an already fragile sense of the presence of this form of life as a responsibility of the state; and this weakening is accompanied by the increasing absence of the expression of this responsibility in the juridical form of reciprocal rights and duties between the underdeveloped state and the population within its territory. It thereby

suppress[es] or minimize[s] the forms and possibilities of representation of the subaltern within the state apparatus itself, or, if you prefer, the possibilities of a more or less effective counter-power.18

In this reversal of the object of poverty reduction from the underdeveloped state to that of its people, the people, as a population within this ‘natural economy’, are constituted by the relativism of their basic needs.19

In relation to these basic needs, it is the framework of this natural economy which alone is to provide the possibility of their fulfilment. The continued gap between these needs and their fulfilment is now naturalized, and the precariousness created by this gap becomes merely unremarkable risk and contingency. From this background of risk and contingency, the population become redefined as

social entrepreneurs operating at the level of the household and the community. Development interventions create enabling choices and opportunities for such entrepreneurs to prove themselves by bettering their individual and collective self-reliance. Sustainable development is a security technology that attempts to contain non-insured population flow by putting the onus on potential migrants to adjust their expectations while improving their self-reliance in situ.20

This projection of the continued adaptability and viability of this natural economy of households and communities into the uninsured life of developing states is belied by the significant presence of violence. The “adaptive self-reliance”21 of this population of social entrepreneurs, to which this type of development aspires, can never achieve the projected equilibrium of a natural economy. The proliferation of conflict, in the form of internal war, effectively undermines the foundations of semi-subsistence economies onto which this adaptability and flexibility is projected.22 Internal conflict, and the violence which it unleashes, is itself the reflection of the lack of adaptability and viability of these ‘natural economies’ of semi-subsistence.

This conflict, in underdeveloped states, is accompanied by “a number of heterogeneous methods or processes of extermination…[which] produce cumulative effects”:23

communal rioting, with ethnic and/or religious ideologies of “cleansing”; famines and other kinds of “absolute” poverty produced by the ruin of traditional or non-traditional economies; seemingly “natural” catastrophes which in fact are killing on a mass scale because they are overdetermined by social, economic, and political structures, such as pandemics (think of the difference in the distribution of AIDS and the possibilities of treatment between Europe and North America on one side, and Africa and some parts of Asia on the other), draught, floods, or earthquakes in the absence of developed civil protection…24

Uninsured life exists in a realm in which the precariousness of a semi-subsistence economy is overlain with the unequal distribution of the potential for death from these heterogeneous methods or processes of extreme violence. This generalization and unequal distribution then intervenes in the very definition of life itself. For, the previous distinction between uninsured and insured life now becomes the division of life into “life-zones and death-zones”.25

It is from this particular configuration of forms of life in underdeveloped states that the phenomenon of mixed migration emerges in which the purportedly clear juridical distinction between economic (migrants) and political (refugees) becomes blurred. This, in turn, affects the legal distinctiveness of both groups and their respective regimes of international legal protection.26 The increased permanence of underdevelopment, and the fundamental precariousness shaping the conditions of existence, has removed the distinction between voluntary (economic) and forced (political) migration from underdeveloped states.

Mixed migration is a term used to describe the phenomenon whereby refugees and asylum-seekers move alongside different categories of persons across international borders, usually in an irregular manner, using the same channels and routes and means of transport, often with the assistance of migrant smugglers, and which may also involve human trafficking.27

It is the containment of these migratory movements, through the national legal systems of the States which these migrants seek to enter, that leads to the remarking and re-categorization of these migrants as economic and political in accordance with the dynamics of their immigration policies. This containment intersects with the notions of development and security to maintain the division between insured and uninsured life and to reproduce the distribution of zones of life and death.28 The project of containment – the definition and enforcement of the boundary between legal (regular) and illegal (irregular) entry and residence to restrict international migration – then contributes to the reinforcement of smuggling and trafficking as predominant forms of international migration.29

Thinking the Juridical Otherwise I: The Initial Approach to Derrida

The constellation of development, containment and security results in an intertwining of positive law and the post-colonial. With this intertwining, the immigration policies of developed States contain within them the latent potential for the violent inscription or remarking of the boundary between legal and illegal entry and residence. It is this violence, applied to the body of Jimmy Mubenga, which accompanies his definition as a non-national whose continued residence, due to the failure of his application for asylum, is illegal.

The event of his death, if it is to be thought and, thereby, acquire a meaning and a sense which places the juridical into question, seeks a meaning or a sense which is other than that conferred upon it by law. This thought of the event confronts a meaning or sense which, as legal, presents itself as that which fully and completely circumscribes the intelligibility of this event. In this confrontation, it strives to prevent the meaning of this event from disappearing without remainder into the meaning or sense of law.

It seeks, in this questioning, to displace the self-regulation of the juridical – the contraction of the parameters of the consideration of this event to the degree of separation between law (norm) and application (force) – as the sole locus for the generation of the meaning of this event. This displacement is initiated through the assumption of a responsibility for this event which precedes, and cannot be exhausted by, the juridical. In this assumption, the meaning and sense of this event gestures towards, and seeks to intervene in, the philosophical and political exigencies of Derrida’s work. In this gesture, and this search, the opening onto Derrida’s work is not the exegesis of a stable interpretative horizon in which this responsibility would be resolved, but the far more contingent and fragile community constituted by the question of this responsibility.

The question of this responsibility concerns a thinking otherwise of the juridical and the framework of positive law. This thinking is not simply one which seeks to qualify the primacy of an exclusively legal definition of responsibility, but also one which seeks, in the identification of the locus or origin of the possibility of this death of Jimmy Mubenga, a responsibility which is more, or other than, simply guilt. It is a responsibility which contains, or is marked by, both the insistent singularity of this death and the acknowledgement that this death is equally the result of a certain politico-juridical conception of state sovereignty. Hence, it is also a questioning of the very shape or contours of responsibility itself.

This mode of questioning opens the passage onto Derrida’s texts and, within them, the translation of this question of responsibility into Derrida’s work. This translation is, however, the initial encounter with the im-possible understood here in a different register from Derrida’s articulation of it as that which displaces the utopian.30 Rather, the im-possible would be a questioning which, while acknowledging a sharing of the question, cannot simply reiterate this work as the substitute for this responsibility.

This initial encounter enables the first ‘protocol’ for this engagement to be elaborated in which this engagement will be both direct and partial, central and oblique to Derrida’s work. For, it assumes the path, logic and rhythm of a question as partial. It takes the decision, through this question, to intervene in this work; and this decision can only be singular. In its singularity, it is, therefore, a question among others which could be directed at this work. Yet, in this singularity, it articulates a demand which nonetheless resonates in this work: it seeks to think the juridical otherwise.

From this first ‘protocol’ there then emerges a second which, in this questioning, retains a caution or a reserve in relation to this work’s articulation of a response to this question of responsibility, and its particular displacement of the primacy of the juridical. It is a caution or a reserve in relation to the adequacy of the figure or form of the aporia in this thinking otherwise of the juridical. This figure or form of the aporia specifies a particular thinking of the relation between the ethical and the juridical (normative). The particularity is distinguished by the primacy which it accords to the ethical in this relation whilst simultaneously insisting upon the distinctiveness of the juridical.

Thinking the Juridical Otherwise II: The Question of Aporia

This question of aporia, as the relation between the ethical and the juridical, is also the relation between deconstruction and justice. The thinking of this relation is a thinking of incompleteness and “inadequation”.31 This is both the presentation, through thought, of the incompleteness of the past and present relation between the ethical and the juridical – the existence of injustice – and the understanding of the incompleteness of this relation as one which cannot be dissolved in thought.

In this thinking, the presentation of injustice extends ‘backwards’32 to encompass the ‘economy’ of sacrifice and ‘forwards’ to the “ten-word telegram” naming the “plagues of the ‘new world order’”.33 This movement of comprehension is one which is also a tracing of the contours of responsibility: “the enabling condition of questioning, action and decision – of resistance to fate, providence, or teleology”.34 These contours then become the experience of this aporia between the ethical and the juridical.

It is an experience, however, in which the ethical itself is to be understood as having undergone, and been shaped by, the particular interrogation of a philosophical tradition which one could characterize as Derrida’s double-reading of Levinas.35 In this double-reading, which is, in each instance, also singular, it is the singularity of Derrida’s double-reading in Adieu, and, in particular, that contained in ‘A Word of Welcome’ which is most pertinent.36 For here, the ethical assumes the form of hospitality, and is situated in relation to the juridical.

This reading, in ‘A Word of Welcome’, involves an affirmation of Levinas’s philosophy which is simultaneously a re-thematization of certain concepts of Levinas’s philosophy. The re-thematization involves the reading of Levinas’s concepts of fraternity, and humanity and hospitality, through the designation of hospitality as both concept and

the figural schema that gathers or collects these three concepts together, fraternity, humanity, hospitality: the welcome of the other or of the face as neighbour and as stranger, as neighbour insofar as he is stranger, man and brother.37

In this gathering, there is the expression of a hospitality which is prior to the existence and constitution of nation-states, national legal systems and nation citizenships. This priority is not the substitution of an origin, but the articulation of a pure hospitality: the interruption of origin.38 This pure hospitality is at once deterritorialised and transcendent. It interrupts the space of the home and the nation, as rootedness and possession, by making the earth co-terminus with this pure hospitality.39 Hence, “the earth gives hospitality before all else”,40 and hospitality, therefore, is prior to occupation. This, in turn, constitutes the experience of occupation – “[t]he at-home-with-oneself of dwelling”41 – as “a response to a wandering, to the phenomenon of wandering it brings to a halt”.42 This halting, occupation flowing from this pure hospitality, is the “hospitality already offered to the initial occupant”.43

Within this “hospitable peace and uprooted wandering”44 is inscribed “a historicity without a particular and empirically determinable incarnation”.45 It is a historicity as “a structural or a priori messianicity”46 in which pure hospitality – a “hospitality beyond all revelation”47 – “opens a wholly other space: before, beyond, outside the State.”48 The historicity is the primacy of the ethical, but it is a primacy which recognises the necessity of its relation with the juridical in the form of the national legal system of a nation-state. This necessity is, however, always the necessity of an aporia, a relationship of generalized incommensurability.

This incommensurability entails that the nation-state, and its sovereignty, is deficient with regard to pure hospitality: it is conditioned by pure hospitality. The assertion of the primacy of the nation-state, and its sovereignty, can only, therefore, be articulated against pure hospitality. It entails the substitution of the moment of the nation-state’s foundation for the historicity of ‘a priori messianicity’; and the presentation of itself as the condition of hospitality. In this presentation, dwelling becomes occupation of a portion of the territory demarcated by the borders of the nation-state. Entry and occupation are themselves conditional upon the national legal system of the nation-state: ‘uprooted wandering’ is replaced with the conditional and limited juridical norms of citizenship within a national legal system.49

The aporetic character of this incommensurability prevents the realization of pure hospitality within the juridical norms of a national legal system. For, this would be to assume that the nation-state, and the national legal system, is simply a defective form of pure hospitality, namely, that the historicity of ‘a priori messianicity’ can be revealed or incarnated in the form of the nation-state. It is this impossibility – the separation of the ethical and the juridical – which is simultaneously the necessity of their relationship.

This relation is necessary, it must exist, it is necessary to deduce a politics and a law from ethics. This deduction is necessary in order to determine the “better” or the “less” bad, with all the requisite quotation marks: democracy is “better” than tyranny. Even in its “hypocritical” nature, “political civilization” remains “better” than barbarism.50

This necessary deduction is, therefore, an always qualified and relative determination of the relationship between the ethical and the juridical. It is a categorisation of political forms, in which the juridical is defined and constructed, marked by the simultaneous impossibility and necessity of the relationship between the ethical and the juridical.

This qualified categorisation contains Derrida’s singular relation to the tradition of the Enlightenment: a “yes, although, however”.51 It affirms, through the determination of the “better”, that, while this categorisation entails a certain form of progress, it is one in which democracy, as the contemporary and predominant definition of the political form of nation-states52, is not the culmination of progress, but the form in which the aporia finds its freest expression.53 This, in turn, is not the preference for a particular form of democracy – the internal ranking of types of representation (of the people) and their associated institutions – but for the combination of historicity and perfectibility which the concept of democracy expresses.54

This combination, as the “two openings”55 constitutive of the concept of democracy, becomes the “unstable and unlocatable border between law and justice”.56 It is then within the space of these ‘two openings’ that the thinking of the juridical otherwise is articulated. At the level of the nation-state, it is a thinking which is the experience of an aporetic demand. It is a demand for the fullest extension of citizenship to those within the territory of a nation-state which acknowledges that this demand remains within the logic of the nation-state and its sovereignty.

[W]hen we fight on behalf of ‘paperless’ people, when we support them today in their struggle, we still demand that they be issued with papers. We have to remain within this logic. What else could we do? We are not – at least in this context, I stress – calling for the disqualification of identity papers or the link between documentation and legality. As with bank address details and as with names, ‘home’ presupposes ‘papers’…[T]he law is guaranteed by the holding of a ‘paper’ or document, and identity card (ID), by the bearing or carrying of a driving permit or a passport that you keep on your person, that can be shown and that guarantees the ‘self’, the juridical personality of ‘here I am’.57

This experience, as the demand for “two hospitalities [which] are at once heterogeneous and indissociable”58 does not exclude the possibility of ‘civil disobedience’ “in the name of this higher law” of pure hospitality.59 This ‘civil disobedience’ is itself, however, one which does not seek to exceed the context of the nation-state. It merely seeks, through ‘civil disobedience’, to call into question certain juridical norms which fail or refuse to express the possibility of a conditional hospitality.

The experience of this failure of the passage from the unconditional to the conditional is the experience of auto-immunity. It is the interruption or perversion of this passage in which the conditional element of the relation – democracy within the context of the nation-state – seeks to protect itself from its conditional relationship with the unconditional. Yet, this interruption is an integral aspect of democracy understood as the intersection of historicity and perfectibility. This intersection

consists always in a renvoi, a referral or a deferral, a sending or a putting off. The figure of the renvoi belongs to the schema of space and time, …under the name spacing as the becoming-space of time or the becoming-time of space. The values of the trace or of the renvoi, like those of différance, are inseparable from it. Here, the democratic renvoi spaces and diffracts more than one logic and more than one semantic schema.

(a) Operating in space, the autoimmune topology always dictates that democracy be sent off elsewhere, that it be excluded or rejected, expelled under the pretext of protecting it on the inside by expelling, rejecting, or sending off to the outside the domestic enemies of democracy…
(b)But since the renvoi operates in time as well, autoimmunity also calls for putting off until later the elections and the advent of democracy. This double renvoi (sending off – or to – the other and putting off, adjournment) is an autoimmune necessity inscribed right onto democracy, right onto the concept of democracy without concept… Democracy is defined, as is the very ideal of democracy, by this lack of the proper and the selfsame.60

In this experience of auto-immunity, there remains a thinking which simultaneously exceeds the context of the nation-state, but it does not and cannot, exceed the experience of aporia. For, it simply displaces the context in which the aporetic experience is lodged.

Hence, the limits of the nation-state – its auto-immunity in relation to non-nationals – will not simply be overcome by the insistence upon the primacy of the international – the cosmopolitical – over the national. This insistence is itself marked by the continued presence of the national within the international in both the configuration of international institutions61 and the concepts through which the cosmopolitical has, and continues to be, thought.62

From this experience of aporia, the thinking otherwise of the juridical is its resituation in relation to the ethical. It is, at once, the assertion of the primacy of the ethical, as justice, and the retention of the juridical, in its independence, as an integral element of this aporetic structure. The disjunction between the ethical and the juridical interrupts the capacity of a system of positive law to establish an autonomous and independent existence founded solely upon legal norms. Yet, this interruption is not the substitution of another foundation for the juridical, but a qualification of the process of differentiation of a system of positive law, composed of legal norms, from the ethical, as justice. In this qualification, it is the possibility of passage between the ethical and the juridical which constitutes its central nexus.

The possibility of passage between two domains constituted by their non-identity is, at the level of the relationship between deconstruction and justice, the affirmation of an adherence to the “classical emancipatory ideal”.63 This adherence is the presentation of this ideal as an aporetic experience in which it is the disjunction between the ethical and the juridical which generates “the demand for an increase in or supplement to justice, and so in the experience of an inadequation or an incalculable disproportion”.64 The demand then becomes a process of negotiation65 between the ethical and the juridical which, in turn, is the process of negotiation between the incalculable and the calculable. It is through this process of negotiation that the passage from the ethical to the juridical is effected, and a new or modified legal norm (or norms) is created, within an existing system of positive law. This passage is, however, one where the legal norm can never be more than partial and deficient expression of the ethical. The openness of a system of positive law to the creation or modification of legal norms is maintained, but it is now an openness which expresses the essential primacy of the ethical.

The reserve or caution which arises in regard to this aporetic experience commences from a hesitation concerning whether it involves a sufficient interruption of the capacity of positive law to assert its control over the meaning and determination of the status and treatment of non-nationals. The question of sufficiency relates to the permeability of positive law by the dynamics of national immigration policies which, in turn, becomes the question of the character and limits of legal norms. In particular, it concerns both the definition and internal differentiation of legal personality and its essential openness to modification and change.

The qualification of the juridical by the ethical introduces an essential instability and incompletion to a system of positive law. This instability and incompletion is the experience of a negotiation which is not a practice of technical reformism applied to the existing set of legal norms. It is always one which is motivated to push beyond this existing set.66 Each particular modification or creation of legal norms is itself experienced, within this aporetic framework, as one which “obliges one to reconsider, and so to reinterpret the very foundations of law such as they had previously been calculated or delimited”.67 In this thinking otherwise of the juridical, it is the question of passage, or what Derrida will later term the “threshold”68, between the ethical and the juridical which performs this interruption of a system of positive law.

It remains uncertain, however, beyond the possibility of passage, in what manner the ethical effectively shapes the juridical at the level of the character and limits of legal norms. This lack of certainty flows from the constitution of the juridical as the realm of the calculable. Within this realm, composed of a set of legal norms, the legal subject is then the point of attribution for the prescriptions contained in a set of legal norms. This status, as a point of attribution, has its necessary corollary in a non-aporetic experience of knowledge of, and decisions in conformity with, the particular prescriptions contained in legal norms attributable to this particular legal subject.69 The realm of the calculable, apart from its continued openness to the possibility of passage, is one in which, once the particular ethical decision has been translated into legal norms, the ethical, as the incalculable, has ceased to inhere in the juridical.

It is this constitution of the juridical, as the calculable, which, while articulating a certain aspect of positive law, does not, even with the introduction of the addition of Derrida’s notion of auto-immunity, fully comprehend the parameters of a system of positive law. In relation to the very possibility of a legal subject distinguished as a non-national, one has to confront both the capacity of positive law to create and reproduce a distinction between nationals and non-nationals. This is then accompanied by the creation of a spectrum of legal subjects which range from ‘illegal entrant’ and ‘failed asylum seeker’ to those which are situated on the boundary of the conferral of the status of fully national legal subject. It is the particular position on this spectrum which defines the manner in which entry, residence and expulsion is to be determined within the national legal system of a state.

From this perspective, national sovereignty is the origin of both the absolute and indivisible power to divide nationals from non-nationals and that of the internal differentiation of categories of non-nationals. This origin, when attached to a system of positive law, entails that its power necessarily exceeds the particular configuration constituted by this division and internal differentiation. Hence, it is always equally possible for a part or a whole of this configuration to become more or less restrictive. This system of positive law then contains not merely the division between nationals and non-nationals, but the creation of a category or repository, in the form of the ‘illegal entrant’ or the ‘failed asylum seeker’, which is an essentially empty legal subject. For, these are legal definitions which confer upon the state the entitlement to exercise its power of expulsion or deportation. It is this entitlement which then entwines positive law with violence in the form of the application of a sanction (coercion/force) in conformity with a legal definition (norm).

Thinking Beyond Derrida: The Contribution of Esposito

This caution or reserve, in relation to Derrida’s thinking otherwise of the juridical, is also a questioning of Derrida’s own caution or reserve in relation to a thinking which, as biopolitical, considers the juridical in relation to a notion of life rather than the ethical. For, Derrida this thinking of the biopolitical, as initiated by Foucault70, and later resumed and reworked by Agamben71, is to be approached with a double precaution. It must commence from an engagement with both Aristotle and Heidegger which dissociates the biopolitical from a notion of the modern or modernity.72 The biopolitical is, then, rather “an arch-ancient thing and bound up with the very idea of sovereignty”.73 The division between life (the animal) and the human is the determination and installation of a threshold which is itself the effect of a sovereign decision. This decision is, however, for Derrida, beyond a periodization of biopolitics.

This reticence, in regard to biopolitics, contains, from another route, the difficulty of a rethinking of the system of positive law. For, it is not simply the division within life, but the determination of contingent legal statuses, within a hierarchy, which is a central aspect of a system of positive law. Hence, the differentiation and separation of the legal subject from human life is not accorded a central position in this archi-original conception of biopolitics.

In order to displace this marginal position of the relationship between legal subject and human life, Derrida’s reserve would then, in regard to this particular aspect of positive law, become a limit which it is then necessary to think beyond. This, in turn, leads to a rethinking of this approach to biopolitics and, with it, a shift in the thinking otherwise of the juridical from Derrida to Esposito. In this rethinking, the legal subject or legal personality is at once an attempt to separate and to unify in which the moment of unification is always deficient. The effect is to separate a legal personality from a human personality and, in this separation, to constitute the legal subject, as legal personality, as the external point of unity for a human personality which, as attached to a life which is shaped by the dynamics of the natural world, is itself merely a compound of drives and desires. The emergence of the legal subject is the attribution of this legal personality, but it is an external attribution and, as such, is situated within the unity of a system of positive law rather than the identity and autonomy of human life.

The system of positive law is then a system of subjection to law, through this process of attribution, which detached from any necessary connection with the human personality or human life, holds within it an inherent capacity for the production of a hierarchy of unequal legal statuses. For Esposito, the genealogy of this separation – the locus of its emergence – is contained in Roman Law.

From this perspective, the Roman apparatus of the person clarifies not only the role of a certain juridical figure, but also something that pertains to the general functioning of law, that is to say, the power to include by means of exclusion. As far as it can be enlarged, the category of those who enjoy a certain right is defined only by contrast with those who, not falling within it, are excluded from it. If it belonged to everyone, like a biological characteristic, language or the ability to walk, for example, a right would not be a right, but simply a fact with no need for specific juridical denomination. In the same way, if the category of person coincided with that of human being, there would have been no need for it. Ever since its original juridical performance, personhood is valuable exactly to the extent that it is not applicable to all, and finds its meaning precisely in the principled difference between those to whom it is, from time to time, attributed and those to whom it is not, or from  whom, at a certain point, it is subtracted. Only if there are men (and women) who are not completely, or not at all, considered persons, can others be or become such. From this point of view, to return to the paradox we began with, the process of personalization coincides, looking from the other side of the mirror, with the depersonalization or reification of others. In Rome, persona means whoever can reduce others to the condition of the thing. Just as, correspondingly, a man can be pushed into the status of a thing only in the presence of an other who is proclaimed to be a person.74

It is this genealogy which would then have to be traced in the nineteenth century German debate, within the emergence of a discipline of legal science, in particular, in the domain of public law, over the separation and respective scientific importance accorded to the legal and natural person. For, it is this tradition from which the later tradition of legal positivism, in its initial formulation and development in the work of Hans Kelsen, commences.75

However, beyond the question of a further critical genealogy, this form of legal positivism76 constitutes itself by its separation from the natural person who is relegated to the domain of psychology and the causal laws of natural science. In its delimitation of a domain of autonomous legal cognition, “focused on the law alone”, it seeks to detach this cognition from its entanglement “in psychology and biology, in ethics and theology”.77 It is Kelsen’s characterisation of this entanglement, as “methodological syncretism”, 78 that Esposito’s thought of the biopolitical would both challenge and reinterpret.

It would challenge, from this genealogical approach, the separation of positive law from a life characterised, by Kelsen, exclusively in terms of its theoretical cognition as either psychology or biology. This challenge, however, is not merely the reassertion of this ‘methodological syncretism’, but rather a rethinking of the notion of life in which the norm is to be considered as immanent to life itself.79 In this rethinking, a tradition of philosophical engagement with the life sciences is itself drawn upon80, in which the notion of life is reinterpreted beyond an exclusive and determining concern with causality and mechanism. This reinterpretation involves the comprehension of human subjectivity as the product of a process of individuation which is co-extensive with a notion of life. It is then from within this process that the normative itself arises: “not over life nor beginning from life, but in life, which is to say in the biological constitution of the living organism.”81

From this reinterpretation, the understanding of legal personality, and the juridical itself, relinquishes its superiority and power over life, as it becomes merely an element of this process of individuation in which the norm is immanent to life.

What a biopolitics that is finally affirmative can and must signal is, rather, the reversal of their relations of force. It cannot be law, the ancient ius personarum, that imposes its laws from without and from high on a life separated from itself; but both the corporeal and immaterial grain of life must make its own norms the law’s constant reference, always increasing its consistency with the needs of all and of each.82

This affirmative biopolitics, however, confronts, through a process of individuation which entails the preservation and enhancement of life, the question of how life is to be preserved. It is here that this rethinking of the juridical, from a biopolitical perspective, leads to the introduction of the notions of immunity and community. These flow from the immanent relation of the norm to life which “rather than circumscribing life within the limits of the norm, opens the norm to the infinite unpredictability of life”.83 From this, the process of individuation can, at a certain point, either limit and obstruct its continued affectability by the unpredictability of life or it can remain in a position of affectability. This limitation or obstruction then becomes the basis for the emergence of a type of closure or turning of this norm in upon itself “forcing into infinite repetition”84 in relation to a life whose unpredictability is now considered a risk. In contrast, the fully immanent relation between the process of individuation and life concerns the maintenance of an openness in which the norm which operates as the “connecting and diverging point between the life and precisely a life”.85 These two contrasting forms of the process of individuation then indicate two wider logics of “the immunitary normalization of life” and the “logic of the living”86 which, in turn, become the divergence between immunity and community.

It is here that Esposito breaks most directly with Derrida’s insistence upon the archi-original character of the biopolitical, as, for Esposito, it is the increasing prevalence and generalization of immunity or immunization which “becomes the coagulating point, both real and symbolic, of contemporary experience”.87 The generalization is accompanied by an intensification of the limit and effect of preservation in which the protection of life becomes the negation of life.

[T]he fact that the growing flux of immigrants is seen, completely without reason, as one of the major dangers for our societies shows as well from another side the centrality that the immunitary question has taken on. Wherever new barriers and checkpoints are set up, new lines of separation appear with respect to something threatening or at least that appears to threaten, our biological, social, and environmental identity. It is as if that fear which Elias Canetti singled out as the origin of our modernity in a perverse short-circuit between touch, contact and contagion has grown more acute. The contact, the relation, being in common, immediately appears as crushed by the risk of contamination.88

This intensification entails not merely the immunitary process of separation and division – expulsion and deportation as the protection from risk –, but the relation between risk and protection is itself reversed: “one would adjust the perception of risk to the growing demand for protection – as if one would artificially create a risk, in order to be able to control it…”89 Through this intensification the violence involved in this reproduction of this immunitary process, immunization has the potential to pass over into auto-immunization. The violence of separation and division turns in upon itself and becomes “the violence of interiorization – the abrogation of the outside, of the negative would be reversed into an absolute exteriorization, in a complete negativity”.90

The impasse of the generalization of immunitary leads to the alternative logic of community. This then marks an even greater divergence between Derrida and Esposito, as Derrida never thinks with or through this notion of community.91 The aporetic experience of the relationship between the ethical and the juridical is displaced by a thinking of the relationship with others as an exposure to the “common” – that which is not “one’s own”.92 It is the manner of this exposure, either through the logic of immunity or of community, which then determines the character of democracy. Hence, democracy becomes the reflection of the dynamics of immunity and community; and, to the extent that “it has introjected ever more into it a demand for immunization”93, it then separates itself from community. In its reflection of these dynamics, it assumes a biopolitical meaning in which it is transposed from the context of political philosophy to that of socio-anthropology. It is a transposition in which the site of the question of representation and institutions is shifted to that centred upon the relation to the “common”.

In this biopolitical thinking, there is, in place of the experience of aporia, a relinquishing of both the reproduction of the “Westphalian model” of state sovereignty and the reconstruction of broader, enduring alliances or blocks among states.94 This is accompanied by a thinking, which substitutes the “relation between singular and world”95 for the conventional distinction between global and local. The thinking otherwise of the juridical, as a system of positive law encompassing both the level of the national and the international, becomes the thinking of the “common” in this form of relationship between singular (a life) and world (the life). The creation of the distinction between nationals and non-nationals and, with it, the creation of the spectrum of contingent legal statuses, is then situated within the logic of immunity. The “common” is, therefore, undifferentiated or divided by the distinction between nationals and non-nationals. It is, instead, traversed by a “subtraction of subjectivity”96 as the point of a continuous relationship which “brings them into relation with others to the degree to which it separates them from themselves”.97 This is a thinking of the “common” as intimately intertwined with nihilism – a relation as “the transit between [an] immense devastation of meaning and the necessity that every singularity, every event, every fragment of existence make sense to itself”.98

This thinking otherwise of the juridical involves not the experience of an aporia, but “an operation of radical conversion”.99 It is the full assumption of this permeation of the “common” by the negative that enables the critique of positive law, and the situation of the distinction between nationals and non-nationals within the logic of immunity.

Conclusion

The interconnection between sovereignty, positive law and violence in the definition and treatment of non-nationals harbours the continuing potential for their death. These attempts to think the juridical otherwise, in the approaches of both Derrida and Esposito, are both centred upon the interruption of this nexus. They diverge, however, in the manner or mode in which this thinking otherwise is to be initiated – the aporetic experience of the relation between the ethical and the juridical in contrast to the radical conversion of biopolitics. While the experience of aporia would seem to effectively interrupt certain elements of this nexus, this thinking also encounters a limit in its thinking otherwise of the juridical. This centres upon its insufficiently complex grasp of the character and operation of a system of positive law within this nexus. The move beyond this aporetic experience to a thinking of the biopolitical would seem to divert a thinking otherwise of the juridical from this limit.

However, what remains to be thought by biopolitics is the specificity of the post-colonial insofar as it complicates the logic of immunity and community. For, the notion of post-colonialism, conceived biopolitically, involves the capacity, through underdevelopment, to produce a heightened logic of immunization, within developed states, coupled with the installation of a continually precarious differentiation between a life and the life in underdeveloped states.

References

1. On the more general phenomenon of States avoiding the requirements of human rights norms created by international legal instruments, see Ed Bates, “Avoiding Legal Obligations Created by Human Rights Treaties” International and Comparative Law Quarterly, vol.57, no.4 (2008): 751-788.

2. Joy Gardner was killed on 28 July 1993, in the course of the application of force by Metropolitan police officers, to commence her process of deportation. The application of force, in this instance, initially involved hand cuffs and the use of a body belt, and then the wrapping of 13 feet of adhesive tape around her head which led to her fall into a coma, due to suffocation. She died later in hospital. The three Metropolitan police officers were prosecuted for the substantive criminal offence of manslaughter, but were found not guilty, in 1995. The Police Complaints Authority, upon investigation of the actions of the officers, found no evidence of activity justifying internal disciplinary measures against the officers by the Metropolitan Police itself. While evidence was found to proceed against the supervisory officer, the disciplinary hearing did not find that any wrong-doing had taken place. The use of gags and adhesive tape was subsequently removed, through a joint Home Office and Metropolitan Police Review, from the available techniques for the application of sanction of deportation. Although Joy Gardner’s deportation was not related to the rejection of an application for asylum, but to the rejection of an application to extend the period of a visa, it marks the commencement of this recent history because, in the implementation of the sanction of deportation, the type of application of force, leads to her death. On the wider prevalence of death among non-nationals who have sought asylum or who are irregular/undocumented migrants, see Harmit Athwal, Driven to Desperate Measures: 2006-2010 (London: Institute of Race Relations, 2010)

3. From the extensive academic discussion of this reinterpretation, see, for example, Stephen Castles and Mark J. Miller, The Age of Migration: International Population Movements in the Modern World 4th ed. (Cambridge: Cambridge University Press, 2009), Wayne A. Cornelius, Controlling Immigration: A Global Perspective 2nd ed. (Stanford: Stanford University Press, 2003), Catherine Dauvergne, Making People Illegal: What Globalisation Means for Migration and Law (Cambridge: Cambridge University Press, 2008), Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), Elspeth Guild, Security and Migration in the 21st Century (Cambridge: Polity Press, 2009), Emma Haddad, The Refugee in International Society. Between Sovereigns (Cambridge: Cambridge University Press, 2008), Anthony M. Messina, The Logics and Politics of Post-WWII Migration to Western Europe (CUP, 2007).

4. This is what Derrida identifies as the control of the juridical tradition by the “demographic-economic interest – that is, the interest of the nation state that regulates asylum”. Jacques Derrida, “On Cosmopolitanism” in Jacques Derrida, Cosmopolitanism and Forgiveness (London: Routledge, 2005): 3-24, 12.

5. This description of events, is based upon the statements of witnesses collected and presented in Paul Lewis, “Jimmy Mubenga death: Witness accounts”, The Guardian Newspaper, October 15, 2010. Accessed April 14, 2011. http://www.guardian.co.uk/uk/2010/oct/15/jimmy-mubenga-death-witness accounts?INTCMP=SRCH.
These statements await examination, within a potential criminal trial, of either the private security guards or of their employer Group Four Security.

6. This was exactly the situation which two passengers encountered on a Virgin Airlines flight from Heathrow to Nairobi, Kenya. They sought to intervene to complain about the use of force, by private security guards from Group Four Security, against an individual being deported to Kenya. They initially approached the security guards themselves, but it was indicated to them that their inquiry was inappropriate, and that they should return to their seats. Their demand to speak to the captain of the aircraft was initially refused, and when he subsequently appeared, he rejected their concerns. The cabin crew then advised the passengers that they could change their seats to sit at the front of the plane in order that they would no longer be able to hear the deportee’s screaming. When they refused to do this, and continued to express their concerns, the captain took the decision to return the plane to the airport terminal. Here, the two passengers were confronted by armed police, who indicated that they had the ‘option’ of leaving the plane. When they did so, they were questioned by, under UK anti-terrorist legislation, before being escorted to the London Underground station at Heathrow. See Matthew Taylor and Paul Lewis, “Witnesses ‘thrown off plane’ during deportation flight”, The Guardian, October 31, 2010. Accessed April 14, 2011. http://www.guardian.co.uk/uk/2010/oct/31/witnesses-thrown-off-deportation-flight?INTCMP=SRCH.

7. On the particular character of this process in states of sub-Saharan Africa, see Christopher Clapham, African and the International System: The Politics of State Survival (Cambridge: Cambridge University Press, 1996).

8. For an overview of international migration, at the beginning of the twenty-first century see Stephen Castles, “International migration at the beginning of the twenty-first century: global trends and issues” International Social Science Journal, vol.165 (2000): 269-281.

9. For Duffield, this is accompanied by a shift away from “earlier preoccupations with framing underdevelopment through economic and state-based models of development-security” which were predicated upon “modernization and economic catch-up strategies…” Mark Duffield, “The Liberal Way of Development and the Development-Security Impasse: Exploring the Global Life-Chance Divide” Security Dialogue, Vol.41, No.1 (2010): 53-76, 55.

10. Duffield, ibid, 58-62.

11. This division is characterised, by Duffield, as that between insured (developed) and uninsured (underdeveloped) life. See Mark Duffield, ‘Global Civil War: The Non-Insured, International Containment and Post-Interventionary Society’, Journal of Refugee Studies, vol. 21, no. 2(2008): 145-165.

12. The Washington Consensus consists of defining development as co-terminus with the enactment and maintenance of a project of societal ‘reform’ centred upon three main areas: “liberalization, deregulation and privatization” (Robin Broad, “The Washington Consensus Meets The Global Backlash: Shifting Debates and Policies”, Globalizations, Vol.1, No.2 (2004):129-154,131.

13. See, for example, Glen Firebaugh, The New Geography of Global Income Inequality (Cambridge, MA: Harvard University Press, 2003); Branko Milanovic, Worlds Apart: Measuring International and Global Inequality (Princeton: Princeton University Press, 2005); Melinda Mills, “Globalization and Inequality” European Sociological Review, Vol.25, No.1 (2009): 1-8, François Bourguigon, Victoria Levin and David Rosenblatt, “International Redistribution of Income”, World Development, Vol.37, No.1 (2009):1-10. This debate over measurement is itself part of the debate over the link between the concept of globalisation, as the condensed expression of certain forms of global transformation, and the phenomena of poverty and inequality.

14. The phrase is taken, and adapted, from Etienne Balibar, “Outlines of a Topography of Cruelty: Citizenship and Civility in the Era of Global Violence” Constellations, Vol.8, No.1 (2001): 15-29, 26.

15. For Duffield, “[p]erhaps the larger part of humanity – those that exist beyond the perimeter fence of immigration and asylum control – lives outside such regimes of social protection. Viewed internationally, conventional contributory approaches to social welfare fall significantly short of universal reach.” (Mark Duffield, “Global Civil War: The Non-Insured, International Containment and Post-Interventionary Society” Journal of Refugee Studies, Vol.21, No.2 (2008):145-165, 149.

16. Duffield, 150.

17. Mark Duffield, “Racism, Migration and Development: the foundations of planetary order” Progress in Development Studies, Vol.6, No.1 (2006):68-79, 74.

18. Balibar, Outlines, 25.

19. Duffield, Racism, 74.

20. Duffield, Racism,75

21. Mark Duffield, “The Liberal Way of Development and the Development-Security Impasse: Exploring the Global Life-Chance Divide” Security Dialogue, Vol.41, No.1 (2010):53-76, 56.

22. See Mark Duffield, War and Famine in Africa, Oxfam Research Reports, 5 (Oxford: Oxfam/Practical Action Publishing, 1991).

23. Balibar, Outlines, 23

24. Balibar, Outlines, 23-4.

25. Balibar, Outlines, 24.

26. For Johannes van der Klaauw, the most important international legal instruments containing a definition of the legal status to afforded to migrants are the Protocols on Migrant Smuggling and Trafficking in Persons to the Convention against Transnational Organised Crime (Palermo Convention) 2000, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990(entered into force 2003), the International Covenant on Social and Political Rights 1966, Conventions No.97 (1949) and No. 143 (1975) of the International Labour Organisation. (Johannes van der Klaauw, “Refugee Rights In Times of Mixed Migration: Evolving Status and Protection Issues”, Refugee Survey Quarterly, Vol.28, No.4, (2010): 59-86, 61-2). The recognition and protection of this legal status remains, as with all international legal instruments in the form of treaties, dependent upon their ratification by States and the form of their implementation within each particular national legal system (see note 1 above).

27. Ryszard Cholewinski and Patrick Taran, “Migration, Governance and Human Rights: Contemporary Dilemmas In The Era Of Globalization” Refugee Survey Quarterly, Vol.28, No.4, (2010): 1-33, 4.

28. Mark Duffield, Duffield, MR. ‘Global Civil War: The Non-Insured, International Containment and Post-Interventionary Society’, Journal of Refugee Studies, vol.21, No. 2, (2008):145-165, 146-7.

29. Maggy Lee, “Human trade and the criminalization of irregular migration” International Journal of the Sociology of Law 33 (2005):1-15.

30. See Jacques Derrida, “Not Utopia, the Im-possible”, in Jacques Derrida, Paper Machine (Stanford: Stanford University Press, 2005), 121-35, 130-1.

31. Derrida, “Not Utopia”, 130.

32. Jacques Derrida, The Gift of Death (Chicago: Chicago University Press, 1995).

33. Jacques Derrida, Spectres of Marx. The State of Debt, the Work of Mourning and the New International (London: Routledge, 1994), 81.

34. Derrida, “Not Utopia”, 129.

35. This reading is contained in, and composed of, Jacques Derrida, “Violence and Metaphysics”, in Writing and Difference, 97-192 (London: Routledge, 1978/2001); “At This Very Momentin This Work Here I Am’, in Re-Reading Levinas, ed. Robert Bernasconi and Simon Critchley (Bloomington: Indiana University Press, 1991), 11-48 and Adieu. To Emmanuel Levinas (Stanford: Stanford University Press, 1999).

36. Jacques Derrida, “A Word of Welcome”, in Adieu, 15-123.

37. Derrida, “A Word of Welcome”, 68.

38. “(since this is not fortuitous, there is no concept of nature or reference to a state of nature in Levinas, it seems to me, and this is of the utmost importance: before nature, before the originarity of the archē, there is what works always to interrupt it, the pre-orginary anachrony of an-archy)”, Derrida, “A Word of Welcome”, 90.

39. Derrida, “A Word of Welcome”, 92-3.

40. Derrida, “A Word of Welcome”, 93.

41. Derrida, “A Word of Welcome”, 92.

42. Derrida, “A Word of Welcome”, 92.

43. Derrida, “A Word of Welcome”, 92.

44. Derrida, “A Word of Welcome”, 93.

45. Derrida, “A Word of Welcome”, 67.

46. Derrida, “A Word of Welcome”, 67.

47. Derrida, “A Word of Welcome”, 66.

48. Derrida, “A Word of Welcome”, 93.

49. Derrida, “A Word of Welcome”, 89-90.

50. Derrida, “A Word of Welcome”, 115.

51. “A Dialogue with Jacques Derrida”, in Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas And Jacques Derrida (Chicago: Chicago University Press, 2003), 85-136, 126.

52. Jacques Derrida, Rogues. Two Essays on Reason (Stanford: Stanford University Press, 2005), 28.

53. Barradori, Philosophy in a Time of Terror, 120-1.

54. Jacques Derrida, “Not Utopia”, 130.

55. Jacques Derrida, “Not Utopia”, 130.

56. Jacques Derrida, Rogues, 39.

57. Jacques Derrida, “Paper or Me, You Know…(New Speculations on a Luxury of the Poor)” in Jacques Derrida, Paper Machine (Stanford: Stanford University Press, 2005),41-65 ,60-1.

58. Borradori, Philosophy In A Time of Terror, 129.

59. Jacques Derrida, “Not Utopia”, 132

60. Jacques Derrida, Rogues, 35-7.

61. This is made clear in Derrida’s interview with Borradori in which these international institutions receive aporetic acknowledgement. See, Borradori, Philosophy In A Time of Terror, 114-5.

62. The cosmopolitical project which, for Derrida, finds its most insistent articulation in Kant, remains caught in conditional hospitality: “A Nation-State, indeed a community of Nation-States, can only condition peace, just as it can only limit hospitality, refuge, or asylum. And the first – indeed the only – concern of Kant is to define limitations and conditions” (Derrida, “A Word of Welcome”, 89-90). Hence, “ [i]t is this limitation on the right of residence, as that which is to be made dependent upon treaties between states, that perhaps, amongst other things, is what remains for us debatable” (Derrida, “On Cosmopolitanism”, 22.

63. Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority’”, in Deconstruction and the Possibility of Justice eds. Drucilla Cornell, Michael Rosenfeld and David Gray Carlson, (London: Routledge, 1992), 3-67, 28.

64. Jacques Derrida, “Force of Law”, 20.

65. Jacques Derrida, “Force of Law”, 28.

66. Jacques Derrida, “Force of Law”, 28.

67. Jacques Derrida, “Force of Law”, 28.

68. See the Twelfth and Thirteenth Sessions in Jacques Derrida, The Beast and the Sovereign. Volume I (Chicago: Chicago University Press, 2009), 305-349.

69. See Jacques Derrida, “As If It Were Possible, ‘Within Such Limits’” in in Jacques Derrida, Paper Machine (Stanford: Stanford University Press, 2005), 73-99, 91-2; Jacques Derrida, “Not Utopia, the Im-possible”, Paper Machine (Stanford: Stanford University Press, 2005), 121-135, 128-9; Borradori, Philosophy In A Time of Terror, 132-35; Jacques Derrida, “Performative Powerlessness – A Response to Simon Critchley”, Constellations, Vol.7, No.4 (2000):466-468.

70. Michel Foucault, Society Must Be Defended. Lectures at the Collège de France 1976-7 (London: Penguin, 2005); Michel Foucault, Security, Territory, Population. Lectures at the Collège de France 1977-8 (London: Palgrave Macmillan, 2009); Michel Foucault, The Birth of Biopolitics. Lectures at the Collège de France 1978-9 (London: Palgrave Macmillan, 2010).

71. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press,1998).

72. Jacques Derrida, The Beast and the Sovereign, 330.

73. This is, from another perspective, the “semi-citizenship” of liberalism. See Elizabeth F. Cohen, Semi-Citizenship in Democratic Politics (Cambridge: Cambridge University Press, 2009).

74. Roberto Esposito, “The Person and Human Life” in Theory After ‘Theory eds. Janet Elliot and Derek Attridge (London: Routledge, 2011), 205-219, 209.

75. For an excellent account of this discussion, and Hans Kelsen’s initial interpretative stance in relation to this debate, see Stanley L. Paulson, “Hans Kelsen’s Earliest Legal Theory: Critical Constructivism”, Modern Law Review, Vol.59, No.6 (1996):797-812.

76. This form is to be contrasted with the later Anglo-American tradition of legal positivism which originates in the work of H.L.A. Hart, especially, The Concept of Law.

77. Hans Kelsen, Introduction to the Problems of Legal Theory (Oxford: Oxford University Press, 2002), 7-8.

78. HansKelsen, Introduction, 8.

79. Esposito initiates this rethinking with “an attempt to vitalize the norm” which involves a rejection of the conceptual resources of legal philosophy: “[T]he theoretical key of this passage cannot be traced to any of the grand modern juridical philosophies; nor will it be found in positivism, in jus-naturalism, in normativism, or decisionism (or at least in one of those philosophies that modernity together brought to completion and then did away with). From this point of view, not only Kelsen and Schmitt, but also Hobbes and Kant, emerge as unhelpful for thinking biopolitics affirmatively. Either they are constitutively outside its lexicon, as Kant and Kelsen are, or they are within its negative fold, as Hobbes and Schmitt are.” Roberto Esposito, Bíos.Biopolitics and Philosophy (Minneapolis: Minnesota University Press, 2008), 184.

80. Esposito defines this tradition as encompassing, in Bíos, Spinoza, Merleau-Ponty,Canguilhem, Simondon and Deleuze and, in “The Person and Human Life”, Bergson, Merleau-Ponty, Simondon, Canguilhem, Foucault and Deleuze.

81. Esposito, Bíos, 186.

82. Roberto Esposito, “The Person in Human Life”, 218.

83. Esposito, Bíos, 190.

84. Esposito, Bíos, 190.

85. Esposito, Bíos, 192.

86. Esposito, Bíos, 191.

87. Roberto Esposito, “Immunization and Violence”. Accessed June 28, 2011. http://www.biopolitica.cl/docs/Esposito_Immunization_violence.pdf. This discussion of immunity and immunization is developed from Esposito’s Immunitas (Cambridge: Polity Press, 2011).

88. Esposito, “Immunization and Violence”, 4-5 (English version lightly modified by reference to the French translation in Roberto Esposito, Communauté, Immunauté, Biopolitique. Repenser Les Termes De La Politique (Paris: Les Prairies Ordinaires, 2010). The reference to Canetti is to Crowds and Power (London: Penguin Books, 1992).

89. Esposito, “Immunization and Violence”, 8 (English version lightly modified).

90. Esposito, “Immunization and Violence”, 11 (English version lightly modified).

91. See the discussion between Roberto Esposito and Jean-Luc Nancy, “Dialogue on the Philosophy to Come”, The Minnesota Review, Vol.75 (Fall 2010), 71-87, 79-83.

92. Roberto Esposito, “Immunitarian Democracy”. Accessed June 28, 2011. http:www.biopolitica.cl/docs/Esposito_immunitarian_democracy.pdf, 14.

93. Esposito, “Immunitarian Democracy”, 4.

94. Esposito, “Immunization and Violence”, 12.

95. Esposito, “Immunization and Violence”, 12.

96. Esposito, Communitas. The Origin and Destiny of Community (Stanford: Stanford University Press, 2010), 138.

97. Esposito, Communitas, 139.

98. Esposito, Communitas, 149.

99. Esposito, “Immunization and Violence”, 13.

Senior Lecturer in Law Department of Law and Criminology, Edge Hill University, UK
All posts by: Peter Langford | Email

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