Home > Uncategorized > Muhammad Ali Nasir “Biopolitics, Thanatopolitics and the Right to Life”

Muhammad Ali Nasir “Biopolitics, Thanatopolitics and the Right to Life”

Nasir, Muhammad Ali 2016. Biopolitics, Thanatopolitics and the Right to Life. Theory, Culture & Society 0(0): 1-21. DOI: 10.1177/0263276416657881

 

  1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
  2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
  3. in defense of any person from unlawful violence;
  4. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
  5. in action lawfully taken for the purpose of quelling a riot or insurrection. (Article 2: Right to Life) (3)

 

[…] 1) Article 2 orients governmental techniques to lives in order to ensure that both deprivation and protection of lives is lawful; 2) A proper application of Article 2 grounds itself on a proper discrimination of lives. This causes Article 2 to be applied universally but not uniformly to all juridical subjects. (3)

 

In order to impose positive and negative obligations on the state authorities, Article 2 cannot be but governmental. It is by drawing on a diversity of strategies (arms and aims, rescue operations, planning and control), personnel (soldiers, special squads, doctors) and institutions (crisis cells, health committees, hospitals) that the right to life shapes the way they have to operate. Thus, legal rules have to insert themselves into these governmental practices, even if they maintain a certain distinctiveness. It is because of this functionality that the right to life both requires such investments of power to become concrete and goes on to constrict their operation as they come under its purview. It is on the basis of this twofold force that it can be legally determined whether Article 2 has been complied with or not. It also means that the legal decision bases itself on certain truth mechanisms involving knowledge (medical discourse, statistics, psychology), techniques (autopsy, cross-examinations, documentations, photos and videos, testimonies), and expertise (expert reports, fact finding missions, investigations bodies). These are then measured in view of the objectives (minimum human loss, effective action, upholding law and territorial integrity). It is correct to say that the right to life connects life to law both for its protection and exceptions. It would nevertheless be hasty to say that the deprivation, or even protection, of a life is solely a legal question. This is because legal regulation of lives remains connected with specific processes of knowledge and governmental techniques, and the role of legal rules is to ensure a proper management of lives through its force of legitimate violence. (7)

 

This section argues that: 1) The jurisprudence of Article 2 is theoretically appreciable only in a ‘politics of life’, as this legal right orients governmental techniques to lives. 2) The focus of such a politics is not simply protection and deprivation but more importantly optimization. (10)

 

The applicant argued that her circumstances and the possible difficulties she would have to face in future necessitated that she approach the question of her life autonomously (Pretty, para. 8). Further, in the calculus of pain where her ‘life expectancy was poor’ vis-a`-vis the ‘undignified’ final stages of disease, a question of Article 3 prohibiting inhuman and degrading suffering also arose (Pretty, para. 8, para. 44–46). Reading the text of Article 2, she also argued that it protects the right to life and not ‘life’ per se, which meant that Article 2 did not protect a life from the threats that may come from that life itself (Pretty, para. 35). (11)

 

In those countries where euthanasia is permitted, the governmental problematic is to supervise closely the medical and hospital practices, determine the form of legally acceptable consents to terminate lives, identify the possible stakeholders that are to be engaged with in the end-of-life decisions, redraw criminal codes, preempt and account for potential negligence and malpractice, identify in what manner clinicians are to give larger doses to the patients, ensuring slower and painless transition towards death, and draw out the list of diseases where euthanasia is  permissible, among others. In those countries where euthanasia is not permitted, the governmental problematic is to provide psychological care and therapy to incurable patients, determine the way their expenses are to be allotted to hospitals, prevent criminal ‘private’ practices to the contrary, arrange for the methods falling in line with honourable deaths, and insert the prolonged sustenance of lives and their traumatic ends as categories into the health insurance framework, among others. In both cases, Article 2 regulates the situations in such a way that its legal dictates are not violated. (12)

 

Then, the room to wage lawful violence is not only reserved for specific historically established nation-states that are politically recognized, but for those political bodies that bear certain administrative structures, the focus of which is on both protection and optimization of life. And it is only because of this capacity in which those states can be held accountable both for inaction (positive obligations) and action (negative obligations) that they are given a margin of discretion in the implementation of human rights, and may be offered a margin of error in certain cases where they legitimately lag lest they be overburdened (Osman, para. 116). (13)

 

Logically, it is not the meaning of lives that is legal per se (Esposito, 2008: 28); it is their regulation, tied as it is to legal concepts and rules. It means that the governmental practices surrounding different lives operate differently depending on their specific subject positions, such as, for example, incarcerated convict or soldier, war prisoner or on-the-ground combatant, the mentally unstable or terminally ill. Similarly, once legal rules constrain regulatory frameworks in line with their standards, those regulatory frameworks are backed with a threat of legitimate violence. (14)

 

Importantly, it entails that subjects are neither simply constituted by law (since power is not simply localized as law) nor solely governed by it (since power is diffused). This fact – that law is connected with differential governmental practices which articulate it – makes any ontological interpretation as to the nature of law untenable. (15)

 

[…] human rights function by requiring from a politico-legal guarantor that it protect humans by putting in place appropriate regulatory frameworks. The concept of biopolitical governmentality thus focuses on the way normative claims of rights function, that is, the way they remain sensitive to the differential meanings accorded to lives and the construction of practices around those lives that consequently makes rights effective. (17)

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