I had been interested in writing about necropolitics for a long while. So, when Thomas Giddens and Luca Siliquini-Cinelli sent out a call to papers for the Biopolitics of Legal Education collection, it could only be described as exceedingly timely. This gave me an opportunity to write about the nature and role of the legal education in the (re)production of the current state of the world. The resulting chapter was: “Educating for the End of a Necropolitical World: What Happens Beyond Decolonisation in Legal Education?” In Biopolitics and Resistance in Legal Education, pp. 9-23. Routledge, 2023. In this blog post, I recount and contextualise some of the arguments in that chapter. If you would like a copy of the chapter, please let me know.

What I am arguing in this chapter and highlighting in this post is the fact that legal education can often feel like a field of pain and death. In its adherence to Eurocentric method, legal education unequally protects, not the presence of life (human or otherwise), but the presence of structures (persons). In essence, property receives more protection than life. Actions that are aimed at accumulating profit and property are legitimised more than actions that seek to preserve life. We see this keenly in the trade in kidnapped and enslaved Africans, the brutal colonisation and dispossession of indigenous spaces, as well as the overexploitation of land and resources that follow on from that. So, while what we insist on calling “decolonisation of the curriculum” may provide a way for the field to operate in a way that can preserve life better, what matters more than performative decolonisation (e.g. adding a few authors to a few reading lists) is that the field of law be able to offer a means for students and staff to together imagine, craft and bring to life, worlds beyond this necropolitical one. This is important not just to members of the university, but all of the inhabitants of the planet, especially those who have (through the above processes) been placed in extreme proximity to premature and brutal death. If you constantly live in the shadow of death, an extra valley may be a valley too much.

How We Can No Longer Breathe and Run (in vain) to the Law for Air

While writing this chapter, three overarching global ‘events’ demonstrated the perdition in which the earth and humanity exists. The first was the global pandemic which has had a devastating effect on individual and collective ways of living. Within that general impact, lines of inequality have been exacerbated, and government responses have increased the vulnerability of those already living in proximity to premature death.  The filming of the killing of George Floyd in 2020 led to a global outcry that highlighted continuing structural and direct racism as a significant harm to people racialised “below the line of the human“. Many institutional promises to change and repair historically and contemporarily unjust systems were made and remain unfulfilled. Finally, the danger of climate change has become increasingly evident in environmental devastation and unusual weather patterns around the world. These three global challenges are intertwined through the restriction of breath—the very essence of life. COVID-19 attacks the lungs’ ability to breathe; George Floyd could not breathe as Derek Chauvin placed a knee on Floyd’s neck. Many cannot breathe in rising temperatures and waters. These three issues are also entangled in how they have been produced and who they most affect, as well as those whose voices and experiences are most silenced.

Yet, many Indigenous people, people from colonised states, and people from underrepresented populations choose to enter into the field of law because they seek liberation within it. This sadly often turns out to be an empty promise because law and legal education are implicated in historic and systemic reproduction or maintenance of the challenges listed above, especially in leftovers of colonial logics of profit, dispossession, despair and dehumanisation. In other words, Euro-modern law, as a tool of global and local order is implicated in creating and maintaining a world system that produces unequal pain and death.

On Law, Racialised Bodies, Coloniality, and this Enduring Necropolitical Space

One of the ways this system is produced and maintained is through the existence/creation of racial-gender categories, for example, but also particularly. These categories produce the life-death dichotomy that marks the necropolitics of a world perpetually suffused in colonial thinking and ways of doing. Notably Gilmore defines racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death“.  This definition recognises the structural effects of racialisation as well as the entrenchment of state-power (and thus law) in race’s emergence as category and reproduction as harm/privilege. In other words, being artificially drafted into a contrived but materially effective lower scale of humanity systemically places those so drafted closer to death. The counterpoint is also true—those drafted into the higher scale of humanity are placed further away from vulnerability to premature death. In the constitution of the human-subject in law—and the subject’s relationship to bordered space—legal knowledge reproduces differential proximities to death. So, it is suggested that the colonial difference in conceptualisation of, for example, Wynter’s ‘Man’, may attempt to be diluted by inclusive representation, but unless entirely dismantled, this colonial difference is structurally self-reproductive. The legal concept of the human is already contingent on artificed categorisation, thus representation still operates on the norms of the system—new norms are needed for new systems that will not produce proximity to death for more and more people.

One would think that this conundrum should be unpacked as a matter of course within legal education. Closer attention should be paid within it to the actual social-historical construction of this human subject beyond its presumption as a biological organism. However, this is not usually the case. In contrast with the legal person, the human, the human body and their (mis)uses are under-theorised as legal agents/topics within the main corpus of legal knowledge. It is often difficult for our students to see why justice remains a forlorn hope and despair a standard. One way we can unpack this dilemma in class and in our work, is an examination of necropolitics, especially when understood as a derivative of Foucauldian biopolitics.

Foucault, in his reflections on the concept of biopolitics, was concerned with the functional and legitimated power of the sovereign to regulate the life of the legitimate population.  So, he describes the population as to the sovereign a political, scientific, and biological problem.  Thus, questions of law and governance manifest themselves in multifaceted modes of control. The law is necessary to control all spheres of life—housing, education, health, work, order, etc. Foucault recognises this as an extension of logics from the battlefield into the domestic sphere—an effective reduction of human interaction to appearing only in the starkness of either death or life. On the battlefield, the living soldier is fighting for the sovereign; the dead/wounded soldier has no impact on the war. By extending this death/life frame to civil “peacetime”, the concern of the sovereign in the domestic sphere is reduced to only the same concerns that pervade the warscape—some will live, and some will die. Bodies become merely functional – our fears, feelings, emotions, needs, wants and desires have no relevance to the goals of the state. The civil warscape is the economy—the accumulation of capital. The goals of the state are its maintenance. Citizens either contribute to the economy or they are dead/dying. There is no in-between space. Some will die.

Expanding on Foucault’s biopolitical thesis, Mbembé introduces “necropolitics”—sovereign death-power. He asserts, that “the ultimate expression of sovereignty largely resides in the power and capacity to dictate who is able to live and who must die“.  Mbembé’s treatise recognises the limits of a biopolitical analysis that fails to account for extreme situations that arise therein where “life was not so much being governed, as much as death itself was being sanctioned“. The survival of necropolitical spheres as such is contingent on death being, not just a possible outcome, but the definite outcome for certain members of its population. Some must die. It should be noted then, that the logics of Foucauldian biopolitics are not divorced from necropolitical orders but exacerbated within them. In the biopolis, for survival of the sovereign-economy, the death of some is possible, while in the necropolis, the death of some is inevitable. Some. MUST. Die.

Mbembé describes the necropolis as emerging through “the generalized instrumentalization of human existence and the material destruction of human bodies and populations“. Thus, this unfolding destruction began with identifying populations who are marked “must die”, and can be found in the colonial matrix of power’s appropriation-led creation of “zones of non-being” predicated on gendered racialisation.  In regulation in response to the global pandemic, in enduring racial injustice, in disproportionate vulnerability to the violence of climate change, in the maintenance of apartheid zones—some have been labelled “must die” for the survival of colonialism’s power. And so, this process continues with the overexploitation of appropriated and commodified land as well as the enclosure of unfree labour, the untrammelled extraction of resources, and their entrapment behind and within colonially devised borders. In essence, both Foucault and Mbembé recognise structural or state-sanctioned racism as not just one example of sovereign death-power, but THE example. Legal education’s narrow boundaries have been unable to describe this continuum and so the hopes of students seeking liberation within them are often dashed.

Oh, That We Could Breathe Again!

In summary, the chapter argues that Euro-modern legal education in its dedication to preserving each current social order, allies itself with political and economic power and thus contributes to the enduring emergence of a necropolitical (death)world. This is evidenced not just in the current destructive structure of the world, but also in the discipline’s rigid adherence to its own method. Colonialism, (here described as the primary logic of global domination in the present), then, is a major obstacle in reversing our necropolis. Decolonisation is, seemingly, the most suitable response to colonialism. However, it must be understood beyond curricular innovation, as an epistemology for a world in which humanity and the earth may be preserved. Therefore, imagining the end of necropolis requires multifaceted academic action which “offers the paradox of loving, by virtue of action, anonymous generations to come.”  And so, in our teaching, together with our students, we can seek to imagine new worlds in whose fabric the injustices of the past and present will not be persistently interwoven and recreated. This radical imagination reminds us to “imagine and craft the worlds all of us cannot live without, just as we imagine the undoing of the world many on this planet, cannot move, cannot live, cannot breathe, within” (Quotation paraphrased from Ruha Benjamin). We need new systems. We need alternative ways of being, doing and living in the world. We need new ways of imagining. And then maybe, hopefully, someday… we can all breathe again.

“Indigenous Knowledge Has Value”, talk by Curtis Bristowe

Bibliography

Foucault, Michel. “Society must be defended”: lectures at the Collège de France 1975-1976, trans.” David Macey (New York: Picador, 2003) 242 (2003).

Lee, Christopher, J. “The necropolitics of COVID-19” Africa is a Country

Mbembe, Achille. Necropolitics. Duke University Press, 2019.

Mbembé, J-A., and Libby Meintjes. “Necropolitics.” Public culture 15, no. 1 (2003): 11-40.

Indigenous Knowledge Has Value | Curtis Bristowe | TEDxRuakura 

Weheliye, Alexander G. Habeas viscus: Racializing assemblages, biopolitics, and black feminist theories of the human. Duke University Press, 2014.

Wynter, Sylvia. “Unsettling the coloniality of being/power/truth/freedom: Towards the human, after man, its overrepresentation—An argument.” CR: The new centennial review 3, no. 3 (2003): 257-337.

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