The right to life: Human life,bio-power and the performativity of law

Life, bio-power and law

Michel Foucault (1970) has observed that the emergence of the modern concept of life was tied to the rise of modernity and power/knowledge (Franklin, 2000: 193). Until the creation of modern biology, Foucault suggests that ‘life’ did not exist. As Foucault states:

Historians want to write histories of biology in the nineteenth century; but they do not realise that biology did not exist then, and that the pattern of knowledge that has been familiar to us for a hundred and fifty years is not valid for a previous period. And that, if biology was unknown, there was a very simple reason for it: that life itself did not exist. All that existed was living beings, which were viewed through a grid of knowledge constituted by natural history (Foucault, 1970: 128 cited in Franklin, 2000: 193).

Foucault’s subsequent insistence that the history of the definition of life cannot be separated from power/knowledge is best illustrated by his dualistic conceptualisation of bio-power. Foucault (1978) observed that since the 17th century Western Europe had undergone a profound transformation in terms of mechanisms of power. Sovereign power was subsumed increasingly by bio-power. Bio-power was ‘no longer a matter of bringing death into play in the field of sovereignty, but of distributing the living in the domain of value and utility’ (Ojakangas, 2005: 6). According to Foucault (1978: 139) the power over life evolved in two basic overlapping forms, the anatomo-politics of the human body and the bio-politics of the population, together they were devoted to the administration of bodies and the calculated management of life.

Bio-power subsumed the sovereign right to ‘take [life] and let live’ with that of a power to foster life or disallow it to the point of death (Foucault, 1978). Instead of being exercised by means of law and violence, bio-power is exercised through the normalising biological, psychological and social technologies, through ‘the methods of power capable of optimising forces, aptitudes, and life in general’ (Ojakangas, 2005: 6–7; see also Foucault, 1978: 141). It is this aspect of the production of bio-power that is intimately connected to performativity and which I explain in more detail later in this article.

For Foucault (1978), life within bio-politics no longer involves the Aristotelian differentiation between the various levels of life (e.g. Agamben’s [1998] zoē, bios). Rather, life is a synthetic notion, unifying bio-power both at the levels of the body and of populations. Thus life is the object and the subject of bio-power – life is everywhere, a multiplicity of the forms of life. The ultimate aim of bio-power is to multiply life to produce extra life. A synthetic notion of life enables bio-power to ‘invest life through and through’ and to ‘optimize forces, aptitudes, and life in general without at the same time making them more difficult to govern’ (Foucault, 1978: 39, 141). Therefore, bio-power multiplies and optimises life, it does so by multiplying and optimising potentialities of life, by fostering and generating ‘forms of life’ (Ojakangas, 2005: 15).

The development of bio-power has meant the growing significance of the norm ² ‘at the expense of the juridical system of law’ (Foucault, 1978: 144). Thus a power whose task is to control life needs continuous regulation and corrective mechanisms. Therefore within bio-power, the law operates more as a norm which represses the juridical institution and creates it increasingly as a regulatory mechanism (Foucault, 1978: 144). Foucault (1978: 145) suggests that this does not mean that the law is not relevant or that the realm of juridico-institutional power has disappeared, but rather that the law operates more as a tool of bio-power; ‘as a technique whose task … is to regulate and correct the development of life in general. In other words, the law operates as a norm’ (Ojakangas, 2005: 15).

Foucault’s view of bio-power as the power of life and the relation to life and law are contrasted with Agamben’s (1998) conceptualisation of bio-power. It is not possible to examine all the complexity of Agamben’s (1998) contrasting vision of bio-power. However, it is important to highlight the difference between Foucault and Agamben, and how Agamben understands the relation between life and law.

Agamben (1998) refers to three interpretations of life that intersect within bio-power: zoē – a basic state of natural living common to all (animals, man, etc.); bios – a qualified sense of human life, for example a ‘proper way of living to an individual or a group’; bare life – life that is neither zoē nor bios and is produced whenever zoē is separated from bios or when bios calls zoē into question (Agamben, 1998: 1; De Boever, 2011: 38).

Both Foucault and Agamben argue that bio-power entails a tight integration between life and law, but both approaches differ in the role given to sovereignty in bio-power (Mills, 2007). Agamben (1998) argues for a greater role of sovereign power within bio-politics. For Agamben (1998: 6) bio-power is at least as old as the sovereign exception and the ‘production of a bio-political body is the original activity of sovereign power’. This means that bio-power has operated in conjunction with sovereign power from the very beginning of human existence. Consequently, there is no rise in bio-power (which subsumes sovereign power) within modern politics (as Foucault suggests) ‘but merely the coming to light of this “secret tie” between sovereignty and bio-power in bare life’ (Mills, 2007: 190). Critics of Agamben have argued that such an overbearing concern for all power to ultimately rest on the ability of one to take the life of another, is a power over life grounded in the possibility of enforcing death (Rabinow and Rose, 2006: 200). This contrasts with Foucault’s conceptualisation in which bio-power multiplies and optimises life.

For Agamben (1998), sovereignty possess an almost sacred form – the declaration of homo sacer – a figure of Roman law whose crimes made his sacrifice impossible, but could be killed with impunity. Thus, this figure of bios (someone leading a proper life within the polity) is reduced to zoē - bare biological life (Rabinow and Rose, 2006: 200). For Agamben (1998), homo sacer remains present today in the capacity of the sovereign state to establish the zone of exception; to reduce the status of bios to zoē without legal restraint. Within our contemporary period, sovereign power is no longer restricted solely to agents of the state, but is also exercised by those who have control over vital processes, such as doctors and scientists, who have an alliance with the sovereign and wittingly/unwittingly do the sovereign’s will (Rabinow and Rose, 2006: 202).

Therefore the relation to life and law within Agamben’s (1998: 9) conceptualisation of bio-power is understood as an external relation, a ‘state of exception’. To live in the state of exception does not mean life is excluded from the law or legal system; rather, life is still included in the law, but only in the form of the exception. By this Agamben paradoxically means that the law applies in no longer applying (Ojakangas, 2005: 16). This conceptualisation again contrasts with Foucault (1978) who argues that the norms relating to life are not external, but rather internal: ‘“the norm or normative space, know no outside”, as Foucault’s disciple, Franҫois Ewald puts it’ (Ewald, 1992: 173 cited in Ojakangas, 2005: 16). The norm integrates anything which might attempt to go beyond it; nothing or nobody can be exterior to it. So for Foucault the law operates as a norm. It is no longer an expression of a legislator’s will, but rather an expression of life within that field of knowledge. The laws within the field define the content of the formless norm. Therefore, the relation to life and law is not solely the subject of political decisions, but of power/knowledge; an administrative power of experts and interpreters of life (Foucault, 1995: 95, cited in Ojakangas, 2005: 17). Foucault is not concerned with elaborating an internal normativity in natural life, but rather with the ways in which norms are themselves imposed upon the living body of the subject and are subsequently taken inside that body (Mills, 2007: 183). Performativity is a method that can illuminate the norm, and is important in highlighting how the human is articulated within life, law and sociality.

Performativity of law

Performativity as a paradigm for meaningful action has been a focus of many scholars, such as Austin (1962), Butler (1995, 1997) and Callon (2007). MacKenzie (2004) outlines two forms of performativity. The first, he refers to as ‘generic performativity’. Performativity in this sense is non-linguistic and suggests that the categories of social life are not natural or taken for granted, but are the result of endless performances and practices by human beings and non-human entities and artefacts (MacKenzie, 2004: 305). It is in this sense that Callon (2007) observed that the economy is performed by practices such as marketing and accounting.

The second kind of performativity is often referred to as ‘Austinian performativity’, due to its connection to the work of J.L. Austin (1962). Austin poses the question of performativity ‘as what it means to say that things might be done with words’ (Butler, 1995: 199). Austin distinguishes between illocutionary and perlocutionary acts of speech, between actions that are performed by virtue of words, and those that are performed as a consequence of words (Butler, 1995: 199). Thus words in this sense might be said to ‘do’ something: the word not only signifies a thing but this signification will also be an enactment of the thing (Butler, 1995: 200); for example, when a sovereign declares someone an outlaw or a priest declares a couple to be husband and wife (MacKenzie, 2004).

The focus of this article is the performativity of law (Race, 2012; Schuster, 1999) and how it shapes non-linguistic and linguistic practices. To ask about the performativity of law (in both a linguistic and non-linguistic sense) compels us to ask questions about the relation of law to life and whether the law does what it says it does (Race, 2012: 330). Certain statements or enactments of law may be successful in bringing about the social reality that they name or create. However, certain enactments or statements of the law might also be seen to ‘misfire’, in creating circumstances in which the law does not do what it says or may create processes that undermine some of its expressed aims (Race, 2012: 330). Austin suggests that these instances of performativity are perlocutionary instances; they do no play out in expected ways (Race, 2012: 330). Therefore tracking what the law does or does not do and how the law is implicated in ascribing humanness, and the rights that come with the status of being human is important for the practice of a human rights approach to a sociology of bio-knowledge. Thus the examination of the performativity of law, and how law is operationalised within social and linguistic practices, can reveal circumstances and conditions in which the law is effective or counterproductive, especially since regulation can have unintended/unforseen consequences. But also more generally within Foucault’s (1978) conceptualisation of bio-power, the performativity of the law can demonstrate how the law is implicated in the norm and the utility of bio-power to multiply and optimise life. As Foucault (1977, 1978) has also shown, law can be a disciplining technology, but within the context of bio-power, law can also be a productive power of life.

Within the law two legal categories are made in relation to human life: natural and juridical. A ‘natural person’ is a term used to refer to the legal rights of a human upon their birth (Berg, 2007). However, not all ‘natural persons’ have the same rights; for example children under the age of 18 have fewer rights than adults (Berg, 2007). A ‘juridical person’ is used to refer to an entity that is not a human being, but which for some purposes society chooses to afford some of the same legal protections and rights as ‘natural persons’ (Berg, 2007). The designations of ‘natural’ and ‘juridical’ both signify legal personhood as opposed to moral personhood (Berg, 2007).

Distinguishing between human embryos and human foetuses as ‘natural’ or ‘juridical’ persons has been a contested topic. This is because the classification of when a human embryo or foetus comes into being is a socially negotiated process (Conklin and Morgan, 1996). One of the main features of the Australian human embryonic stem cell and cloning debate (as elsewhere) was contestation over when a human embryo could be considered a socially ‘marginal’ form of tissue (Harvey, 2008; Marks, 2012). For some sections of Australian society the human embryo should be considered a ‘natural person’ with social and legal rights from the moment sperm and egg fuse; for others these rights begin at 24 weeks; and, in the common law definition, ‘natural’ personhood in Australia is attained when a child is born (MacGregor, 2013).

The Australian human embryo stem cell public debate highlighted the social, emotional and political contestation over the human embryo and foetus (MacGregor, 2013). Within the public debate three social and linguistic positions on the human embryo/foetus can be outlined (Commonwealth of Australia, 2006). The first position is that the human embryo is human life and therefore entitled to full human rights. This position was most likely to be expressed by religious and community groups. The second position is that the development of personhood is a gradual process, but the human embryo is entitled to some protection. Within this partial inscription of personhood it is emphasised that the human embryo possesses a unique human genome, but is not yet a human being with full human rights. The third position sees the human embryo as no more than a collection of cells with the potential to develop into a human being. Those who hold this view tend to support human embryo experimentation in the early stages, generally up to 14 days post-conception. This position is more likely to be expressed by scientists. These three general positions were the main social positions expressed by the Australian public over the personhood of the human embryo. Yet these three ‘moral’ positions on the status of the human embryo/foetus overlook a significant issue: the determination of law in policing the social and legal boundaries of humanness. By focusing on the margins of ‘human’ life, we can gain an understanding of the performativity of law and how the construction of the human is a central aspect of conceptualising and practising a human rights approach to a sociology of bio-knowledge.

Animal/human hybrid embryos – what is human?

In 2004 an application was made to the Australian Patent Office by Professor Woo-Suk Hwang to patent within Australia a technical method that produces a chimeric or hybrid embryo by using inter-species somatic cell nuclear transfer. In Hwang’s application this meant specially creating a hybrid embryo by using a transferred nucleus of a human cell into a bovine ovum and activating the ovum. Hwang’s application was refused because of provisions in the Prohibition of Human Cloning Act 2002 and the Patents Act 1990 that classified the practice as a method of generating a human being. The creation of hybrid or chimeric embryos was eventually made illegal in Australia because of widespread political pressure to do so, although it was not illegal at the time of the application. I want to examine an issue that was at the centre of this application; the classification of a cross-species bovine and human embryo as human within the eyes of patent law. How could an inter-species embryo, combining both bovine and human DNA, be considered human?

In attempting to answer this question I will turn to the Deputy Commissioner of Patents’ judicial observation of the case that the embryo possessed both human and bovine DNA, but that the hybrid embryo’s nuclear DNA was entirely human DNA. The mitochondrial DNA, which essentially is relevant to the energy use of the cell, was entirely bovine. From a scientific point of view, the primary physical characteristics of mammals are governed by the nuclear DNA of the cells (Woo-Suk Hwang vs Australian Patent Office 2004). The Deputy Commissioner of Patents continues:

In my view, the presence of the bovine mitochondrial DNA does not take away the essentially human characteristic of the embryo that is determined by the nuclear DNA. That is, the embryo that is produced by this method – while being hybrid – is properly described as human.… Accordingly, I am satisfied that the … method falls within the exclusion (of the Patents Act 1990) [as] a method for the generation of a human being.

Trans-biological entities, such as the hybrid embryo, are described as trans to describe the shape-shifting categories by which new hybrid entities transcend the fashioning process of nature (Franklin, 2006: 170; Taussig, 2009: 159). Susan Squier (1998), in her analysis of the trans-species debate in Britain and the USA, examined the fantasies and monstrosity of this trans-biology. Squier (1998: 361) outlines that some scientists advocated for the use of trans-species research in the name of science, while opponents invoked monstrous images, such as inter-species pregnancy, in order to paint this scientific technique in a negative light.

The Australian patent case above, however, outlines a different objection. From this patent law case, we see that it is not the monstrosity that is under question or debate, but the apparent humanness of the hybrid embryo. The law in this instance designated the hybrid embryo as human; an inter-species embryo is ascribed a human status through the speech act. Its claim to humanness within this case was not the attributes of humanness, such as cognition, sociality or spirituality, but merely its biological and physiological composition (Campbell et al., 1998). In this example the performativity of the law ascribed human status to the hybrid embryo and designated the embryo as ‘human’ through a speech act, because its nuclear DNA was human. This understanding places nuclear DNA as a clear sign of humanness and was considered definitive enough within the law to define the hybrid embryo as human. This performativity of the law is a normative one that seeks to use scientific assessment of biological life to answer a normative question; namely, what is human? The law, through a speech act, gives human life to a hybrid embryo, but in giving the hybrid embryo life, especially human life, it is also paradoxically disallowing it life due to the law, a point I will examine in greater detail later in this article.

Brown (2009: 148) has observed in the case of the British debate over hybrid embryos that these embryos illustrated biological and cultural zones of in-distinction. According to Brown (2009) the British debate centred on two issues. The first issue was the paradoxical position in which the law simultaneously bans and permits the creation of hybrid embryos (Brown, 2009: 147). The second issue related to arguments between key stakeholders, some sought to distinguish between different types of embryos, while others sought to treat all embryos as morally equal (Brown, 2009: 147). The Australian case is different from the British experience. As I have mentioned, the performativity of the law was normative, but this performativity also highlighted a similar paradoxical position of how the hybrid embryo was included/excluded within the law. Ascribing a human status to this hybrid embryo created not a zone of in-distinction but a clear boundary of its legal being. The speech act of designating the hybrid embryo as human differentiated it from other forms of embryos. By making the hybrid embryo human, the law had the contradictory effect of rendering this hybrid embryo a non-legal and material entity. But this speech act also meant that all embryos were not created equal, as the enforcement of the norm meant that the humanness of the embryos was the basis of judgement of their moral worth. Humanness was the outcome of power/knowledge, and something I wish to explore in my next example.

A human being or medical waste?

In this section I want to examine the contradictions in the performativity of law in social and legal understandings of when a human foetus is considered human, especially regarding the point at which in its development personhood comes to be invoked. To do this I will examine the case of a 17-week-old foetus that was considered medical waste in Perth, Western Australia. Within this legal and social context, how can a 17-week-old foetus be considered ‘non-human’, compared to the humanness of the human–animal hybrid embryo, as we saw in my previous section?

As recorded in the local newspaper Perth Now, a mother of two, Lisa, and her husband Charlie, were left distraught after Lisa presented herself at Swan District Hospital and suffered a miscarriage at 17 weeks (Prestipino, 2011). The hospital staff looking after Lisa informed her that she had miscarried and that the aborted foetus would be transferred to King Edward Memorial Hospital for genetic testing to determine the reason for the miscarriage. The couple contacted the hospital as they wanted to take their baby’s body home to bury. However, they were told by a nurse that their ‘baby’ was not a baby but a foetus and had been disposed of with the medical waste, understandably invoking a distraught response (Prestipino, 2011). The hospital claimed that they had not done anything ‘wrong’, as the hospital is only obligated to report the death of a foetus to the Western Australian Registry of Birth and Deaths after 20 weeks (Prestipino, 2011). Despite the clear legal requirements outlining when to formally report the death of a foetus, it is also clear that the family’s interpretation of life and kinship challenged this definition and raised questions about consent and the eventual fate of the ‘baby’.

The dispute over the social and existential boundaries of what constitutes humanness demonstrate the contradictions in law. The performativity of the law and the enforcement of the norm of human life with regard to disposal of aborted foetuses fails to take into account the social and emotional meanings and value of life. Public responses published in relation to the news story on the Perth Now website (quoted below) highlight the strong linguistic and non-linguistic performativity of the law in relation to the status of the human foetus within Australian society.

As a respondent commented:

How dare that HORRIBLE nurse tell the mother, ‘it’s not a baby just a foetus’. To the mother it WAS her baby, much loved.… If she wanted the baby and wanted the right to bury it the hospital should have been more careful and not said such awful things to her. The baby may not have been considered real to the staff, but it was real to this family!!!!

Another female respondent added:

How truly awful! As a mother of 7, my heart really goes out to the grieving couple and their children. What a callous way for anyone to behave, let alone a hospital! How inhuman is our society? They think that ‘sorry’ is good enough for this family? For the loss of their baby’s body? Sorry?! Part of the problem is that society can’t decide if this is ‘just a foetus’ and should be thrown out with the garbage, or this family’s baby. Having had seven, I can tell you, that thing that moves in my tummy is not me, but a separate human life that has its own separate DNA etc., and as such deserves treatment as a human person, not ‘just a foetus’. (emphasis added)

A contributor said in response to a posted comment:

The truth is, there isn’t a great deal to bury at 17 weeks and it is technically still a foetus.… After miscarrying at this stage yourself, how could you say that? I had a late miscarriage, 20 weeks (‘foetus’ named Angel had died at 16–18 weeks). I gave birth in the same manner as a live, full term child, he was perfectly formed, he had arms, legs, fingers, toes, nails even! Though he may have been tiny … nothing much to bury! Bah! Small yes, but the use of the word ‘nothing’ is incredibly insensitive and ‘technically still a foetus’ – well who cares what the technical term is for it! That child is STILL a child!

These responses point out clearly that the foetus was considered by many people to be a human despite the legal determination that classified it as hospital waste. These comments express a strong emotional power to humanise the foetus. The foetus’s social identity came from its recognition as being human and its connection to humanness. However, it was the performativity of the law that determined whether the human foetus was a human or medical waste and shaped the actions of the medical staff in determining the fate of the foetus. From a legal perspective, for a foetus to attain legal ‘personhood’ it must be of at least 20 weeks gestation, or if less than 20 weeks to have a body mass of a least 400 grams (Eburn, 1997: 374).

But as we saw with the earlier patent law case, a hybrid embryo can be considered human. From this we can observe both a vagueness and precision in the performativity and policing of law and its determination of humanness. By stressing the personhood of the foetus in this context (people’s comments about this news story) there is a strong emotional connection in relation to the social meaning of the foetus and the use of language to capture this meaning. The emotive use of language did not bring the foetus into legal being, but rather the language used to talk about the human foetus by those involved interpellated ³ the human foetus as a social being of personhood. The talk of the human foetus emphasised its social existence and enabled it to be viewed in such a way within the public discursive field (Butler, 1997: 5). The re-signification of the foetus as either a human or as possessing personhood either socially or legally is connected to broader social and political fields which give them meaning and legitimacy within public discourses and are at odds with the legal determination.

Other comments in relation to this news story often pointed to society’s indecision as to when a foetus is legally a person or not. Some respondents took the position that a foetus was not a person and stressed this use of language in reference to legal or medical terms. Within the performativity of legal or medical discourses there were fixed boundaries as to when a foetus becomes a baby or when a human embryo becomes a human life. In these circumstances the performativity of the law is used to deny humanness. As other comments about the story reveal:

The foetus is not considered an entity until 23 weeks. No foetus is given a funeral under this period in Western Australia. That’s the law. This might be emotionally tough on the parents and we have to feel for their loss, but why do people think that the answer is in litigation. Dr Smith ⁴ has apologised, but no law was broken. I think we all need to toughen up a bit. The pioneering toughness made this state what it is today; it’s a shame we are too quick to turn our backs on that.

Another female respondent stated:

I’ve had three miscarriages after having 3 healthy babies and each time hospital staff were AMAZING and very caring. The sad fact is the law HAS to draw a line somewhere about when a foetus is viable and given a burial and when it is not.

A respondent posted in relation to what Angel’s mother had written that:

@Angel’s mum – I didn’t determine the medical terms, I am simply stating a fact. It seems you are all a little emotional in your reaction. I am not excusing the insensitivity of the nurse, I am simply suggesting that just because you don’t like the truth doesn’t actually mean the facts change. Truth be told I am currently 16 weeks pregnant again – while it is my ‘baby’ – medically it is a foetus. That’s a fact. It’s not a personal insult and I certainly don’t take it that way. I cremated my stillborn baby and the grief has never left me. You may have had a perfectly formed child at this time – but not all miscarriages produce a recognisable human form. Again, this is not a personal insult. Just a fact.

These comments achieve a de-personalisation of the foetus, as when one of the respondents stated, ‘the sad fact is the law HAS to the draw a line somewhere’, or one mentions that ‘medically it is a foetus. That’s a fact’, or as another respondent also expressed, ‘no foetus [under 23 weeks] is given a funeral in Western Australia. That’s the law.’ These comments may stress their own thoughts, but they are deeply tied to the performativity of law, by invoking the depersonalising discourses of law and medicine and their reliance on the performative reference points of legal and medical categories. Stressing the performativity of law within this context of linguistic and non-linguistic practice serves to minimise the meanings and values society places upon human life.

The invoking of the performativity of law and medicine in linguistic and non-linguistic practice when referring to either the humanness/un-humanness or personhood/non-personhood of the human foetus alludes to the changing power/knowledge relations at the boundaries between social meaning and legal classification within bio-power and bio-knowledge (Butler, 1997: 14). Rhetorically stating that something is a legal or medical fact is an attempt to objectify the subject, or at the very least an attempt to euphemise emotive social meanings of life in relation to the powerful standardised authoritative discourses of law and medicine. Michael Jackson (1998) would suggest that it is also an existential strategy in order to gain control over those domains. To say that something is ‘medical fact’ implies that one is invoking something that is held to be objectively true in an orthodox way rather than accepting the vagueness, emotion and contradictions of social meanings. By this I mean that rather than the human embryo and foetus being given a marginal status socially and legally, they are spoken about as fully defined and as having a governable status within authoritative discourses. What then is the significance of the performativity of law in constituting humanness for the practice of a human rights approach to a sociology of bio-knowledge?

The sociology of bio-knowledge at the limits of life

My two examples of the performativity of law have highlighted how the relation between biological life, law and sociality is subject to bio-power. The nature of humanness is tightly articulated with power/knowledge. Therefore the constituting of humanness, as my examples have highlighted, suggests that the practice of a human rights approach to a sociology of bio-knowledge needs to take into account three elements. First, the creation and bearing of rights especially the right to life, is elemental to being human. Second, the configuration between biological life and sociality presents what Rabinow (1996) has termed biosociality; new subjectivities, collectivities and relationships that are reconceptualising the relationship between life and society. Third and finally, that human life is paradoxically included and excluded by law, therefore law is a key aspect of bio-power, and is a central performative political technology that needs to be understood and conceptualised within the practice of a human rights approach to a sociology of bio-knowledge.

My examination of the case involving the hybrid embryo highlighted the connection between life and law. Within this example, we saw that the power of a speech act through linguistic practice could confer human status on biological life; to make a human-bovine embryo human in the eyes of the law. In this example, the power of the speech act to designate humanness was an important source of power that gave meaning, value and language to a life. This legal case also highlighted how speech acts not only conferred humanness on a hybrid embryo, but also in comparison to the human foetus as medical waste example, highlighted that even if life is designated human, life as a subject/object of bio-power is subject to contestation and confusion (as we can see from designating the human foetus or the hybrid embryo as either a human or non-human).

Agamben (1998: 128) suggests that birth becomes the immediate bearer of sovereignty, but as my examples have highlighted, and as Foucault (1978) would have argued, life is tightly intertwined with power/knowledge, therefore the distinction of humanness ascribed through the performativity of law within the context of bio-power is about facilitating the power of life. The distinction between human/non-human is a key element in defining life within bio-power, not only through speech acts but also through other means, such as the metaphors or symbolism regarding the status of the human within human societies. Therefore the practice of a human rights approach to a sociology of bio-knowledge needs to take into account the power of life and how life is articulated with bio-power and becomes a subject/object of power/knowledge. My example of the performativity of law has shown how law can give power to life, but also misfire and be used to limit life. Therefore, when utilising a human rights approach to a sociology of bio-knowledge, scholars need to attend not only to the bio-political meanings and value of life, but also the creation and bearing of rights; the right to life. As Robertson (2008: 174) has observed, social and civil rights are important, but they are always secondary to the ‘right to life’; without life there are no rights. This is what I am suggesting in this article: that the ‘right to life’ needs to be a key conceptualisation for the practice of a human rights focused sociology of bio-knowledge.

My second example – of the conflict and performativity of law with regard to the human foetus – suggests that biological life ceases to be understood solely in a biological sense, and should be viewed as an example of biosociality, that is, an articulation between life, law and sociality. Biosociality is not merely the entanglement of nature/culture in a technical sense, but the formation of social identities, groups, citizens and rights based upon the configuration of nature/culture (Rabinow, 1996). For the practice of a human rights approach to a sociology of bio-knowledge to achieve its emancipatory agenda, as Petersen (2013) outlined, a core aim should be to advance biosociality within contemporary bio-politics. A human rights approach that merely focuses on civil and political rights misses a central aspect of being human; the right to life.

However, I also suggest that the practice of a human rights approach to a sociology of bio-knowledge must also examine the paradoxical relation between life and law – how life is included/excluded within law. This is because life within bio-politics is not solely the power over life or the optimisation of the conditions of life. Within bio-power, life is constantly being redefined. Therefore, within the performativity of law, a human rights approach to a sociology of bio-knowledge may conceal from us those ‘life forms’, individuals and groups who are not represented by these rights, that is to say life forms or people whose legal status has not fully been resolved. Human life within the performativity of the law has a paradoxical existence as it is both included and excluded or has the status of ‘being-outside and yet belonging’ (Mills, 2007: 191). This paradoxical nature of law is described by Benjamin (1986) as a ‘rotten ambiguity’. According to Benjamin (1986), within the ambiguity of law, the law justifies, say, its use of violence as means to a legitimate end; however, such an end can never be fully separated from the means. This creates a perpetual slippage between law as a means to preserve the end of human dignity and law as means whose justification lies in the self-preservation of the very sovereignty of law – its capacity to determine justice and to exercise its ‘force’ accordingly (Jenkins, 2004). Jenkins (original emphasis) observes that:

the principle of respect for humanity as end in itself can provide a ‘minimal programme’ for the critique of a legal order, in the end it is unable to address the specific problem posed by the self-affirmation of that legal order…[as power/knowledge]. This problem is exhibited particularly in ‘police actions’ that enforce the law in a way that can as well be understood as lying outside as within the legal order (Benjamin, 1986: 287 cited in Jenkins, 2004: 86).

A similar situation pertains to the performativity of law in regard to the treatment of the human foetus as medical waste. In this case, performativity has ‘misfired’, as the law both allowed life (my first example) and denied life (my second example). The performativity of law showed that the norm is not necessarily internal as Foucault suggests, but is also impacted by external factors. My example of the performativity of the law highlighted how life at the limits of its existence is contingent on its humanness. The right to life is a powerful discourse, but it is also contingent on external factors – the political capacity to actualise those rights – the ‘right to have rights’ (Arendt, 1951 cited in Jenkins, 2004:87).

As we can observe from the legal contradictions over the human foetus as being positioned either as a human being or medical waste, these contested views are tightly grounded in the reality of social and emotional meanings. The contradictions between law and life, as we have seen from the two aforementioned examples of the hybrid embryo and the designation of a human foetus as a human or medical waste, highlights that a ‘right to life’ may be elemental in the sense there are no rights without life, but also there is no life without social and civil rights; the ‘right to have rights’. With this idea in mind, it is therefore central when utilising a human rights approach to a sociology of bio-knowledge that we attend to law as a tool of bio-power; as a political technology whose task it is to regulate the development and optimisation of life, but also to limit life.

The contestation over life, especially the ‘right to life’ and the ‘right to have rights’ within power/knowledge, means that human life within the practice of a human rights approach to a sociology of bio-knowledge should examine the maintenance of physical existence on one hand and the defence of human dignity on the other. My two examples, of the hybrid embryo and the human foetus also highlight that dignity is not inherent but, in a sense, is performed by culture through techniques such as the law. A human rights based sociology of bio-knowledge needs to have at its core the meanings and values of biological life, especially its biosociality, as this promotes a form of reflexivity toward deconstructing power/knowledge. By finding the conditions for a discussion about human rights, ethics, politics and action within the present, we can bring to light and recognise what is at stake for the meaning and value of human life in our contemporary society (Redfield, 2005).

The meanings and value we attach to the ‘right to life’ and the ‘right to have rights’ are central to our ability to understand bio-knowledge within our contemporary era of bio-power. The law is a powerful performative political technology central to our age, especially in determining who or what lives or dies or what forms of life can come into being. As human life becomes entangled within bioscience, politics and economics, life is a valued quality no matter how we conceive of it legally, socially or emotionally.