[Duquesne Comments]
[CWs]: Ableist language, mention of the Holocaust/Nazism
[Freedom for Palestine and all those struggling against Empire.]
In 2014, a very small memorial opened in Berlin at Tiergartenstrasse 4, it was a simple blue glass pane. Parallel to the pane was a series of statistics about forced euthanasia of “life unworthy of life” during WWII and the Holocaust. When this monument was erected, the New York Times ran a story about it. Standing out in the piece were several interviewees who felt that the construction of such a monument was “excessive” (Eddy, 2014). This small comment has stuck with me for many years. When we look at the fact that the work of Peter Singer and Julien Suvalescu still sit at the end of syllabi for bioethical courses training future practitioners of health, one cannot help but feel the pervasiveness of a strange ableism that has persisted through modernity.
Between 1939-1945 300,000 people were euthanized through an order signed by Adolf Hitler, Aktion Tiergartenstrasse 4. The order was signed one month after the invasion of Poland, but backdated when the invasion began (something worth taking note of). Twenty years prior, an influential and widespread pamphlet was written by Jurist Karl Binding and Medical doctor Alfred Hoche, entitled “Allowing the Destruction of Life Unworthy of Life”. This text has been examined extensively, both by those trying to understand the history of Nazi Germany and those interested in an analysis of eugenics. Most analyses end up placing (rightfully) a remarkable amount of stress on how the politics of utility informed eugenics. I want to examine how disability and Sovereignty interact. It is important that this text is introduced by a Jurist and that his section takes the majority of the document.
First, we will go through Karl Binding’s juridical argument and theory of natural law. If Foucault is correct, that death was once the limit of sovereignty, then this argument by Binding is an interesting one. His theory of authorization follows, in an eerily similar fashion, the maneuvers taken by Hobbes in Leviathan regarding how the Sovereign is Authorized, and who this author can be. This presentation argues that, from the Crito to Leviathan and Spinoza’s Political Treatise, there is a eugenic exclusion that is paramount to the covenant itself – the exclusion of disability and madness.
Then, we will examine how the apparatus of disability (of abnormality) exposes key problems in how we understand sovereignty and “the state of exception”. Disability reveals the ontological function of the exclusion in a new way. It forces us to re-evaluate the concept of the Multitude that authorizes the sovereign. We will then show precisely how a conventional theory of authorization and exclusion is operating in this eugenic work by going step by step through Hobbes’s theory of authorization and treatment of the “natural fool” in both his work and Spinoza’s.
Finally, we will look further back – to Ancient Athens. In Plato’s Crito, there is a very crucial moment, when the “aphronon” (or those without phronesis) are removed from the theoretical dialogue about Athen’s right to kill Socrates. We will then close with how disability may short-circuit some of the assumptions we carry about the philosophy of Right and sovereignty, the formation of the Multitude, and the emptiness that may truly lie at the core of its claim over life.
BINDING:
Karl Binding’s juridical argument opens with an account of Natural Law and life. The human possesses a “life property” (we’re starting on somewhat classical libertarian grounds, don’t worry, this won’t stay Lockean for long). This life property is the complete sovereignty over one’s own life. But it also is the sovereignty over one’s death (Totungrecht) This makes suicide an unbannable offense, much more (somewhat close to the Hobbesian right to prevent own’s own harm) no one can interfere with this right. Since one has the Right to suicide because of this sovereignty one has the right to pursue the necessary means or assistance from others, Binding argues that those who assist cannot be criminally liable, as this right has simply been transferred to them, it has been authorized. Karl Binding lays out a multitude of inconsistencies in Germanic code that I will spare you from. Binding concludes that, given this sovereignty over life through a particular interpretation of Natural Law, there are 4 consequences: No one can hinder suicide, one has the right to self defense against interference, that it is a transferable right with consent, and that it must be codified as legal. Binding also argues that he finds a consistent thread in German and Prussian penal codes throughout history, “we clearly see an idea emerge, that such a life [one without worth] no longer deserves the fullest punishment protection”. These are lives that are not worth living, but more importantly for Binding have crucially “lost the quality of being an object of legal protection”.
Euthanasia is the unbannable healing work (uverbotenes Heilwerk) of the blessed. But these blessed angels face difficulties in providence. They must conceive of groups unworthy of life. Binding lays out three groups, the first group is made up of those who explicitly authorize their death. The second are “incurable idiots” they have apparently “neither the will to live, nor to die”. This accords with certain texts of the time on idiocy, Edouard Seguin who described the “idiot child” as possessing an anarchic will, or a will not to will. It is often an inability one’s will to be translated into a “command” of “movements of totality”. The idiot child “will not will firmly”, and Binding seems to carry forward the same definition (one which Rousseau also had of “idiocy”). Binding considers this a “misuse of life for its unworthy purpose” and must be “liberated from themselves” (once again, strangely echoing Lockean conceptions of property) The third group is comprised of the “unconscious” who are “mentally dead”.
Binding finally arrives at the problem, sometimes “the possible consent of the unsavable [..] is missing”. He cites German civil code and notes that the “consent of the ‘incompetent’ is never enough” to establish any form of authorization. A third party must enter between the blessed angels of deliverance and those “beyond salvation”. For these “justified killings” of unworthy life need a “legal option to let it go unpunished”. It is here where transference becomes the crucial problem at the core of the debate, later I will discuss how this is missed in some biopolitical accounts of this document. Binding’s argument does not rest on what makes a life “unworthy” of life, but what “allows” for its destruction. Suicide is outside the bounds of law (understood here as Gesetz, loi , lex) it must be viewed as a “legally unbannable action”. This, for Binding is deduced from the Natural Law of one’s own absolute sovereignty over their life property. this Right to death (Totungrecht), is also transferable. For Binding, the “incurables” do not have the capacity of consent, or to be more clear, authorization. They cannot authorize their death. For this entire chain, starting from one’s life property and complete sovereignty over it to the right to kill it (Totungrecht), to remain stable in the face of unworthy life – it needs to be transferrable by and to a third party. If suicide is outside the law, then the argument follows for binding that those who are “incompetent” and not “capable” of advocacy, a decision must be made. This entire schematic rests beyond the bounds of law, in the state of exception. The treatment of “incurables” is the unbannable Heilwerk of killing the already banned. Unbannable suicide, for Binding, sets the ground for the unbannability of killing “incurable idiots”, “mentally retarded” and those who the Third Reich would come to call “useless eaters”.
Giorgio Agamben, in his seminal text, Homo Sacer: Sovereign Power and Bare Life, examines the pamphlet. In one chapter, he guides his readers through Binding’s argument and explicitly ties sovereignty to the decision of “unworthiness” of life. This, of course, is in line with much of Agamben’s work, where the biopolitical threshold of modernity, rather than being the advent of the governance of populations (which is generally how his (and my) philosophical darling, Michel Foucault, is interpreted) is in-fact present at the very core of sovereignty itself. Agamben is certainly correct that the decision on unworthiness and the question of the “utility of life” play a key role in how the sovereign right to “let die” operated in Nazi Germany. But he may miss something more profoundly concerning about how sovereignty and the formation of a social body is quietly conceived of in this text and how it presents a certain exception that is actually ontologically prior to the decision by the personated sovereign. We need to take a closer examination here of Binding’s account of the Right and transference. This in no way is to reject the crucial commentary on bare life that is occurring in Agamben’s work. It is strange given the fact that it is Agamben who, only two years later would stress the importance of an analysis of the disunited Multitude in the works of Thomas Hobbes did not point our focus there. It is not just a question of the structure of the decision but the prior transference. It is what makes its “allowance” possible. Agamben may have benefitted from an account of Binding that took seriously his presentation of the transference of natural right and the exclusion of those unworthy of life.
Hobbes:
However, in order for this to move forward we have to quickly delineate a few overlooked elements in Hobbes’s theory of the formation of the Multitude and the Authoring of the personated Sovereign. Tiqqun, the anonymous radical journal, closely associated with Agamben, argued that we still truly haven’t grappled with Hobbes. I still think this is right. What I want to do now is show precisely how the composition of the body that authorizes the sovereign not only mirrors, but lends a signature of history to eugenic modernity. Doing this, I believe will elucidate how the transference of authorization within the disunited multitude actually prepares abnormality/madness/disability as a social danger and object of biopolitical management prior to the decision of the sovereign and the Schmittian invocation of a state of exception.
If one walks through chapter 16 of Hobbes’s magnum opus and watches how the logic of authorship articulates where natural fools and madmen are placed in regard to the law, it resonates directly with Binding. Beyond that, Hobbes’s construction of the exclusion of what he calls “irrationality” is fundamental to his account of the multitude in both Leviathan and De Cive. After, just to be thorough, we’ll briefly peek at Spinoza.
Chapter XVI of Hobbes’s Leviathan contains an extensive deliberation on who/what has the capacity to author actions or to personate (which is the process by which the sovereign manifests). Hobbes lays out his theory of authorization in a manner comparable to the process of playwriting. “Of persons artificial, some have their words and actions owned by those whom they represent. And then the person is the actor, and he that owneth his words and actions is the AUTHOR, in which case the actor acteth by authority” (Hobbes 1994, 101). Inanimate objects can be personated, be it by an “overseer” or a “rector” who has such authority. However, “things inanimate cannot be authors, nor therefore give authority to actors” (Hobbes 1994, 102-103). Hobbes extends this foundational political incapacity in the forging of a covenant to three other figures. “Likewise, children, fools and madmen that have no use of reason may be personated by guardians or curators can be no authors” (Hobbes 1994, 103). These figures are “irrational” and in order to constitute a covenant, they must be excluded. “Over natural fools, children, and madmen, there is no law, no more than over brute beasts.”
Then, we come to the famous contradiction in Hobbes’ account of the right to punish in chapter 27, one that he comfortably carries: the right of resistance. Even though the Sovereign has been given Ius puniendi, the Author (now subject) still has a Natural Right to prevent themselves from receiving bodily harm, even from the Sovereign. While this is a well-noted contradiction, a deeper contradiction resides here – one that reveals a kind of emptiness in the transference of authorization that takes place in the exclusion of those deemed Mad and abnormal. That right to defense, so crucial to Hobbes’s account of natural law, is NOT transferrable. These “irrational” subjects sit in a strange political ontological void. The sovereign is authorized on their behalf, but they are left outside the law and without any defense, they are in the state of exception.
Before the sovereign is even personated “before a multitude of men are made one person”, a decision about exclusion is made, one that is ontologically prior to the reduction to bare life that Agamben speaks of. This also occurs, though in cruder terms, in De Cive, in the chapter concerning the law of nature concerning contracts, just before giving us an account of “right reason”, the very basis of covenant, Hobbes attests that if the laws of Nature were not possible to be violated, then only “fools and children” could, because they are not endowed with reason. Reason and right comingle in Hobbes, but it is truly the moves by the multitude, and not by the Sovereign once personated that should be the focus here. In this way, the administration of life truly is the right of the population. The promise of becoming-exile lurks not in the sovereign, but in the multitude. In chapter sixteen of the theologico-political treatise by spinoza, we get a kind of Pauline description of these “weakwilled” in the state of nature. The wise man has the right to live in accordance with reason, and will, but in the state of nature, the ignorant “weakwilled” has the right to live in accordance to their appetites (they are outside law). Spinoza, always asking us to derive our answers not from the laws of reason but of nature, will in his unpublished Political Treatise, make clear the dangers of these weak willed. Explicitly when Spinoza takes up Hobbes’s contradictory account of self-defense he evokes the specter of “lunacy.” For Spinoza, “a fool or a madman cannot be induced by any rewards or threats or carry out orders,” they are among “those things which cannot be a part of the commonwealth’s right and from which human nature for the most part recoils” (Spinoza 2000, 52). The broad foundation of Spinoza’s philosophy of the right of the commonwealth and its offices, has one constituent exception: the “fool” and the “madmen”. Spinoza explicitly uses the apparatus of rationality to explain this discomfort away. A conatus must be faulty or something. Before there is a personated sovereign, there is this exclusion by the multitude.
Disability is defined in both the eugenic tradition and the history of the philosophy of right through an exclusion from the authorizing gesture, from the constituent act itself.
Athens:
Finally, I want to end with a speculative vignette of Ancient Athens. The trial and death of Socrates are about, among many other things, law and Right. When Socrates recounts the time he violated the will of the Thirty and voted against trying and executing generals that had failed to save survivors from a naval battle, he is using various forms of the “nomos”, of law. Once he is convicted, however, there is a subtle shift. In the Crito, Socrates is confronted with a deeply troubled Crito, he is all over the place in his arguments to Socrates. Socrates calms him and says that this conversation about whether he should accept Athens’ to punish him must proceed from a good “start” (archê). Socrates tells Crito what kind of man he is, his a man who follows only reasoning “logo” (peithesthai ē tō logō hos an moi logizomenō). And it is from this point, that the production of an exclusional rational community, one that will then take up the question of Athens’ right to kill him. The majority are to find themselves excluded from the discussion. However, it is not simply for a reason of argumentation alone, but the nature of the individual positing the argumentation. Socrates asks, “[T]he good opinions are those of wise men, the bad ones those of foolish men?” (47a). Crito replies “of course” (47a). It is in this exclusion, this setting aside of the foolish, that a properly constituent gesture is found. The “foolish”, aphronōn, is a complicated translation choice to make. Liddell and Scott translate aphrōn as “senseless” or “crazed”. Those without phronesis are to be excluded from the discourse of sovereignty before it even begins. This distinction in vocabulary, alongside the subsequent exclusion of the aphronon can give us a further hint about this intermingling of Reason and Right. As the political theologian Massimo Cacciari reminds us, “the term logos, it must imply both meanings,” Reason, law. In The Shape of Athenian Law, SC Todd informs readers that Athens had no Jurists. But one could argue Athens didn’t need them, because they had already established a relationship between the logos and the nomos – between the foundation of reason and the right to legislate. The cohabitation of reason and the exclusion of the mad prior to right is indicated in these differences between the language of the Crito and the Apology.
Foucault famously wrote in Madness and Civilization the Greek Logos had no contrary. I think my edgy graduate student reply would be “the logos has no contrary, but it may have an ancillary term: the nomos”. Disability operates beneath the foundation of sovereignty, in the disunited multitude. The disabled Subject haunts sovereignty because is it NOT gazing upon the face of Leviathan, and it is a decision the Sovereign did not make – an exclusion that is not the Sovereign’s own. Madness lurks quietly as a catalyst in the always dissolving multitude, pointing to the nullity of the covenant. It exposes the falseness of the totality that Authors the Sovereign. The naturall foole must be kept so close in the king’s court, as a jester, because all jokes carry a truth… one which Leviathan cannot help but stare at and desperately reach to unconceal it (naturalize it) so that their Right may be mended. But abnormality is always, ultimately, what has already gone astray. Disability is an apparatus of distinction that is ontologically prior to the personation of the sovereign.
When I think back to that comment in the New York Times about the “excessive” nature of the Aktion t4 monument, I notice my reaction has changed. When I was younger, I used to think “of course, disabled people are always considered an excess, a tolerance taken too far.” I now think a bit differently. Whatever form “disability” takes in any given epoch is always “excessive”, but not in the sense going beyond the bountiful. It is excessive in the sense that it always exceeds power. Excess is derived from the Latin “exedere“, the present infinitive of “excedo“: it means to go away, to withdraw, to disappear. It is this dejection that carries with it a kernel of that feared “real exception” that Benjamin spoke, and it stands beside and underneath the sovereign decision – mocking it. Disability is the apparatus erected against the practice of a politics of exile because disability reveals that certain forms-of-life are exiled from politics.
RevoltingBodies 