Desiring and Acting Differently: A Sketch Towards a Critique of Consent (Redux)

 

2022 Introductory note: This overly long and convoluted essay was originally published in 2016 on a different platform, which is sadly no longer online. I think it’s worth republishing here as my opinions have not changed much in the interim. Two things do come to mind as I’m reading this back.

1 – The almost feverish manner in which I repeatedly try to reassure the reader that I take consent seriously, and that the occasion of my critique isn’t some awful prelude to a full-on exultation of manosphere values. It’s amusing to see these little summaries at the end of each section, which I’ve put into italics, as if I’m saying to the reader ‘No matter if you skimmed the rest, at least concentrate on this!’, all of them couched in defensive terms, “it is important to be very clear”, “Let me emphasise again that in no way…”, etc. There was a lot of pick-up-artist, manosphere attention on consent at the time and to not be enthusiastic for Leftist consent discourse was to risk being lumped in with some very unsavoury individuals.

2 – Quite soon after I wrote this it dawned on me that the ridiculously convoluted route I’ve taken here to make what were at the time a series of unfashionable arguments could be summed up quite straightforwardly with the following: Consent does not turn violence into non-violence, it merely turns it into legal violence. I should caveat this by drawing attention to the very timely We Can’t Consent to This campaign which has done much to push back against the defence of “consensual violence” in cases where women have suffered serious injury or been killed at the hands of men. Nevertheless, the fact that such a campaign group needs to exist proves my basic point.

 That I made such effort to construct a series of arguments - some more plausible than others – reflects my inability at the time to take what would have been the short route, straight through values. For if violence is the actual matter at hand, then all that is needed is to point out the empty formal quality of consent as it is used in the contemporary legal/social context, and demand an ethic of substantial values set against the normalisation of violence. This, of course, is the illiberal path, but it is the one that was quite obviously signposted, which is borne out by the fact that in turning away from that path I was driven to take these colourful extended detours through everything from speech-act theory to Medieval law.  

I think section 5, which revolves around Jennifer Doyle’s book Campus Sex, Campus Security, has some of the strongest material, not least as little did I know that in thinking about risk management and the bolstering of State paternalistic authority I was sketching what would become the central mode of power during the pandemic. It is a short step from risk management around sexual freedom to risk management around freedom in toto. This passage, which quotes Doyle, is especially suggestive:

  The appearance of consent classes as well as safe spaces is "shaped by the affective economy of a security culture in which a sense of injury and exposure revolves around sexual possibility - a possibility with the organizing force of a black hole" (Doyle 2015 pg28). This discourse of protection Doyle claims not only re-enforces but actually produces the subjectivities it claims to protect. Ultimately it constitutes a particularly insidious apparatus for normalising and inscribing both the essential fragility of the student-subject and the policing power of the university in its Neoliberal phase. Within these regimes of risk management sex appears as a thing, as a dangerous property possessed by "sexual sovereigns" that someone else might try to take away, or that we may misuse, and which we demand the state and university protect.

Risk management is in the second rank – behind Decline – as an interpretive key for the present. As for understanding the metastasis of authoritarian yearning among the administrative classes, it is indispensable.

 

2016 Text

1.

As I write, the verdict in the retrial of footballer Ched Evans has just recently been announced. The verdict itself is a shock but what is even more disheartening are the facts of the trial; that the complainant's personal sexual history was used against her after the judge made a rare exception to allow it as evidence, and that the family and partner of Evans was known to have offered a cash reward for information leading to his acquittal. The repercussions of this verdict and the precedent that the judge's exception may set will undoubtedly be felt for years to come and is a huge blow for women who seek to bring their attackers to justice. Once again bringing prejudice to bear against the sexual history of women who report rape has become a legitimate line of defence. To put it simply, this trial in the way it was allowed to be conducted has made women less safe and men more secure in their ability to rape without fear of conviction.

Currently then a critique of the use of consent as an effective concept within the discourse of rape prevention seems inopportune. Shouldn't we be defending the sanctity of the notion of consent, since it was precisely the autonomy of the victim and her right to deny consent that was being undermined in the Evans retrial? On the other hand, the trial also demonstrates the fragility of consent as a legal principle which enables us to identify harm in sexual matters. Given the right conditions, the right amount of prejudice, enough money, and a legal system that still fails women time after time, a person's right to give or deny consent can be overthrown. 

It is for this reason that a critique of consent - and in the case of this article - of the development of so called 'sexual consent classes' in universities, is worthwhile. It is meant to be a sketch so my lines of argumentation are multiple but do not reach the depth that they would deserve in a fuller exposition. Also, given the climate, it will unavoidably appear as a provocation. What I wish to argue is that the concept of consent is inadequate due to its being imported from the legal discourse of property and contract and that as such it imprints a highly abstract and alienating form onto sexual relations that erodes the aspects of mutuality and reciprocal gift-giving which are at the heart of all worthwhile human intimacy.

2a.

"Not everyone has the privilege to feel enthusiastic about sexual consent but that doesn't necessarily mean that they lack the freedom and capacity to make that choice..." (NUS Women, I Heart Consent Workshop Guide 2015) - Link no longer available

Sexual consent classes are a phenomenon that began in universities in the United States, but have over the last two or three years become increasingly prevalent in the UK. Their implementation has been spearheaded by the NUS as one approach to tackling the high rates of reported sexual harassment on university campuses. Depending on the source those rates range from one in five to over 50% of female students experiencing some kind of sexual harassment or assault while at university in the UK. The NUS conceive of consent classes as part of the standard induction package all new students should receive along with more general health and safety material, and information about IT and library recourses. This mirrors the reception of such measures in the US where they have been integrated into universities as part of their obligations under Title IX of the US Higher Education Act. Title IX is an amendment that covers safeguarding and how universities deal with accusations of discrimination and assault. To this end the UK NUS have produced a standardised guide for those organising consent classes.

Their introduction has not gone unnoticed and there have been several stories picked up by the mainstream media over the last two rounds of admissions. Last year we had George Lawlor at Warwick (http://www.bbc.co.uk/news/blogs-trending-34615631) who took offense at having attend the classes. He argued a common criticism of the classes that they imply all men are potentially rapists: "It's just that I feel if you need to be taught what consent is and what consent isn't, then you don't have respect for other human beings." This year as more student unions around the country introduced the classes there were even minor protests and walk-outs such as at York where third-year accounting student Ben Froughi encouraged a boycott arguing that the classes encouraged men and women to identify with the respective roles of potential victim and rapist. Interestingly the irked accountant also took issue with the implied contractual form of sexual bargaining: "There is no correct way to negotiate getting someone into bed with you. In suggesting that there is, consent talks encourage women to interpret sexual experiences that have not been preceded by a lengthy, formal, and sober contractual discussion as rape".

Despite increasing numbers of universities hosting such classes there is scant data either here or in the US, where they have run for many years, that the classes are effective in reducing the incidence of sexual assault. In fact, judging by the stats put out by the NUS, the reported rates seem to be increasing; although like such data produced by the police and government, this is often explained away by putting any increase down to the willingness of victims to come forward, and thus something in part to be celebrated. However, this is also an admission that there is no reliable data pertaining to the reality of the situation on the ground, or as yet any empirical means to assess the impact of the classes. Like those mysterious proclamations on the invisible war put out by security services we can well imagine NUS officers proudly counting up the number of potential rapists neutralised by their programs of prevention and countermeasures. It is important however to be very clear; my argument is not that the problem of sexual assault at Britain’s universities is trivial or overstated, nor is it that these techniques of management could never be effective (although as yet there is no evidence that they are). My claim is that their potential effectiveness carries with it a problematic discourse which undermines the good intentions from within.

2b.

The starting point for the NUS guide is the definition of consent from current UK legislation. In England and Wales a person consents if they agree "by choice, and has the freedom and capacity to make that choice". And in the Scottish sexual offenses act of 2009 consent is defined simply as "free agreement". Both these definitions are highly abstract renderings of basic principles from contract law emphasising notions of free agreement and the absence of force and fraud. Immediately in its legal form sexual relations are taken in part to be an instance of the exchange of goods or services involving the free contracting of the parties involved. 

Consent classes, the principal subjects of which are rape and rape culture, begin by reproducing this juridical and legalistic framework of sex crime legislation, as well as the vagueness of some clauses within those definitions. The classes tend however to expand on the legal definition to include examples of additional clauses while maintaining the contractual style already inherent in the legal definition. For instance, the NUS consent workshop guide includes “active, on-going conversation, and retractable” as attributes of consent while including “assumed, and previous consent” as examples of what genuine consent is not. Taken in isolation and as general pointers towards avoiding harm none of these examples is especially vexatious, although in practice some may be difficult to implement. Taken together they flesh out the vagueness of the current UK definition of sexual consent into a more concrete contractual form.

One of the difficulties both in the UK and US legal definition is that it admits the possibility of non-verbal consent, though the US code excludes that as a possibility in cases resulting from the use of force, threat of force, or placing another person in fear. Although the NUS consent class guide does not state consent should be explicit and verbal, the additional glosses on the UK and US legislation (especially that consent should never be assumed) and the overall contractual framework make the implication clear. Transparency and predictability of outcomes are key.

The clearest indicator of the abstract contractual nature of consent being put forward in the NUS guide is that it is explicitly separated from any notion of enthusiasm or enjoyment; surely the prime reason all things considered for having sex besides purely reproductive motivations. For the authors of the guide, consent functions seemingly as a purely formalistic concept within an exchange between two parties. The guide even goes so far as to describe enthusiastic consent (which we might translate as anticipating the possibility of actually enjoying the act) as a "privilege" and draws comparisons with the exchange between sex workers and their clients. This is a particularly striking comparison considering the continued "workerisation of sex" that I have drawn attention to elsewhere. 

In that case, guided by Neoliberal notions of entrepreneurship and human/erotic capital, advocates from the sex industry have argued against distinguishing sex-work from work in general, using a similar set of conceptual tools around consent and personal bargaining that they argue would reduce the dangers to sex-workers and combat prejudice. Paul Mason has argued in his book Post-Capitalism that this reflects a trend of contemporary Neoliberalism to capture "externalities"; aspects of our social lives that do not obviously conform to market or value generating transactions. (2022 note: In the wake of the pandemic this distinction has now almost entirely collapsed)

The direction this is heading in seems clear; human sexual relations are just like any other form of exchange within the economy. The fact that money may not actually change hands does not mean sexual exchange should be excluded from regimes of management where pleasure is rarely a significant factor. Ultimately sex is just another instance of one party wishing to obtain goods or services from another, fitting squarely within prevailing legal discourses of property and contract. Lovers become contracted partners in an amorous exchange and the estrangement of immanent human relations into the legal/juridical framework is further normalised. As so often in the most developed societies, security and risk management are the banners under which we are rapidly burying all possibility of a joyful form-of-life. Consent classes are potentially then a correlate to the reimagining of sex-work through the logic of work, contract, and entrepreneurship. And as such the sex-worker becomes the vector through which all sexual relations are being reconfigured along economic lines.

The consent classes, which would presumably be appropriate for anyone, are in fact part of a package from the US which includes the notions of “safe-spaces” and “trigger warnings” (both present in the NUS literature) which opponents argue have together contributed to infantilising an entire generation of students across the pond and is threatening to make relations between young people just as miserable and estranged over here. There has also been criticism of the use of safe spaces by some universities and interest groups to shut down legitimate criticism of Israel on the grounds that Jewish students felt threatened. This is however another issue entirely. Let me emphasise again that in no way am I suggesting that consent is an irrelevance for sexual relations (quite the opposite) or that one should casually reject the discourse around consent purely on the basis that it brings with it unforeseen consequences or types of language. Nevertheless, it is all too often forgotten that life and Law are fundamentally distinct realms and the assumption that the former might be contained and safeguarded by the later is a mistake that Western society in the modern period never ceases to repeat.

3.

"Our suggestion is that the presuppositions introduced by the pornographic conversations persist in the conversations with real women" (Langton 2009 pg187)

Consent, when referring to a verbal or other sign form of agreement is an example of a type of speech act called performative. Performatives are not like regular descriptive speech that report something about the world; the cat is on the mat, etc. Performatives do not merely describe a state of affairs but actually bring that state of affairs into being through their saying. When someone says "I promise" those words are not representing a promise but constitute the promise itself. Performatives do what they say. Similarly, J.L. Austin who first developed speech act theory in the 1960s uses the example of an umpire in tennis who when shouting "out" constitutes the ball 'as' out within the context of the game regardless of whether it actually was or not. Saying so 'makes it so'. This reality constituting aspect of performatives is central to American philosopher Judith Butler's queer theory and the possibility she sees of undermining prevalent norms of gender and sexuality; notably through the use of Drag.

Consent classes are not the first example of performatives being brought into issues around rape and sexual violence. Second wave feminists in the 1970s and 80s found Austin's work on performatives invaluable in building their case against pornography on the grounds that it depicted women in ways that caused "illocutionary disablement" of women in general. In short, the argument goes that the depiction of women in pornography as enjoying domination, as always available, as always saying yes - and critically when they do say no not really meaning it - meant that a women's capacity outside of pornography to refuse sex (refusal is also a performative) was negatively affected. Just as was the case during the Ched Evans retrial, consent is for all intents and purposes assumed. 

As Catherine MacKinnon put it in an influential essay: “pornography brings its conditions of production to the consumer, … establishing what woman are said to exist as, are seen as, are treated as, constructing the social reality of what a women is and can be in terms of what can be done to her, and what a man is in terms of doing it”(MacKinnon 1993 pg25). Pornography is said to make comparable pronouncements on the status of women as an umpire in tennis calling the ball out or a jury ruling a defendant guilty. As such it does not simply describe a state of affairs but continually constitutes and re-enforces that state of affairs.

Saying no is a refusal and like utterances of consent are speech acts that aim at a particular effect and are as such dependent on factors Austin called felicity conditions. These are particular conventions and references that allow a performative to actually have the effect it is intended to have, such as promising, accepting, etc. If, however, the one whom the refusal is directed to believes that women enjoy being coerced into sex, that for a woman to drink and enjoy herself is itself an invitation for sex, and that even when they say no they sometimes mean yes, the act of refusal can fail to count as an effective speech act. The felicity condition whereby the speaker’s refusal is taken to reflect genuine intention is absent or disputed, as such it fails to count as an effective illocution. Between the speakers, as Jennifer Hornsby has argued, there is a lack of reciprocity (Hornsby in Dwyer 1995 pg224).    

Although much of what MacKinnon and others argued about pornography at this time has been challenged, not least on the claim that it has a so-called power of 'divine performatives' that can socially construct women unchallenged, there was a sophistication to their critique that brought in ideas of how the wider discourse on sex within a society impacted an individual's sexual relations at a fundamental level. Consent classes however appear something of a step back from this insofar as they take the concept of consent in a more or less uncritical way, as if it were not also dependent on particular conventions and subject to the vagaries and dominant interests within the wider discursive environment in which it is used. 

Although these classes do address the influence of rape culture (a term retained from MacKinnon's era) it could well be argued that the claims made about refusal by second wave feminists apply equally to consent and that wider societal and ideological factors have a part to play in how such speech acts function and the sort of social relations they entail. The question we need to then ask is what are the felicity conditions that make consent intelligible in its contemporary form? I have already drawn attention to the legal economic influence which brings sexual consent into the realm of contract and exchange, but what about other historical sources?

4.

"When the ethical - and not simply cognitive - connection that unites words, things, and human actions is broken, this in fact promotes a spectacular and unprecedented proliferation of vain words on the one hand and, on the other, of legislative apparatuses that seek obstinately to legislate on every aspect of that life on which they seem no longer to have any hold" (Agamben 2011 pg70-71)

The etymology of consent leads back to the Latin consentio/consentire; literally to ‘feel-together’ or to be of the same mind. For the ancient Romans however the word never had the status of a technicus terminus in legal or economic writing and is instead found across the literature in numerous contexts evoking the sense of being of common mind or shared sentiment. The development of consent as a concept in modern legal discourse and the caveat in the NUS literature excluding enthusiastic consent makes clear however that sentiment or mutual feeling are not significant factors in its contemporary use. The sex worker does not feel the same about the act as the client. It should not surprise us that the etymological shift towards an increasingly abstract form of agreement took place during the 13^th century when so much of the basic framework of modern systems of Law were being worked out across Europe.

In English law it makes a prominent appearance near the end of that century in the Statutes of Westminster where for the first time the notion of sexual consent is developed independently of whether a girl (such laws dealt solely with girls) were married. In Roman and Cannon law a girl's perceived capacity to consent was tied entirely to the age of womanhood and marriage. Consenting to marriage necessarily implied consent to sex and the two were more or less indexed to the onset of puberty and as such the physical capacity to bear children. As Victoria Bates writes recently "Consent in itself was not the focus of these laws, in which a man’s right to take a girl’s chastity – ideally, but not necessarily, with her consent – came with marriage". The marriage agreement was taken to give the husband a right in the use of the wife's body, ostensibly for child rearing; a perspective on the institution of marriage that lived on well into the 20th century.  

Bates also draws attention to the 1885 Criminal Law Amendment Act which gave us our modern two tier system of consent laws which set the felony age at 13 and misdemeanour age at 16. What is essential for our discussion is how the setting of the two ages reflected concerns about unruly sexual desire in young girls. "Before full maturity – physical and mental – girls were thought to need protection not only from men, but also from their own new and disorderly sexual feelings. This question of ‘capacity’ was a double-edged one: it complemented a child protection agenda, but also supported those who feared that girls (especially working-class girls) would ‘fall’ early and should not be given the opportunity to do so. 

This balance between protection and control ran throughout much Victorian legislation" (Ibid). In effect the raising of the age of consent to 16 reflected as much a desire to control young women as to protect children. I don't believe it is too much to suggest that today's discourse of consent as it plays out in the courts and social media and in particular how a woman's clothing, her choice to drink, her choice of company and lifestyle retain the signature of this desire to control and condemn female sexuality.   

Leading into modernity there have then been two distinct but interrelated discourses on consent which now find themselves united in the contemporary concept. On the one hand a notion tied to the institutions of marriage, childbirth and ethico/religious obligations; on the other an increasingly general and abstract notion tied to the development of the law of property and contract, and of the human being as an economic subject. It is clear that many aspects of the first discourse continue to influence the moral landscape around consent, with women bearing most of the negative consequences. 

It is also clear however that with the detraditionalisation of established sources of ethical norms, such as the church, the family and the local community, that it is the economic discourse of consent which now holds sway over the field. More broadly, as the aspect of reciprocal feeling inherent in the ancient usage has receded, the concept of consent has increasingly come to be associated with individuals embroiled in some form of negotiation. Its fate is like many other concepts in the Western metaphysical tradition; its character as an emblem of singular being-together, of common life, is hollowed out, abstracted and finally marooned as a mere statement representing the ascent of an individual to a matter present-at-hand.

5.

"Making oneself vulnerable: Is that not what we do in friendship, and in desire?" (Doyle pg49)

The continued failure of the judiciary to properly protect women, instead perpetuating prejudice; and the proliferation of discourses collapsing the distinction between sex and other forms of economic activity are not phenomena opposed to each other. Both rely on the efficacy of the performative ‘consent’ as a means to constitute harmless relations or identify harmful ones. As such consent relies on certain conditions of intelligibility, which Austin called felicity conditions, in order to function. These include the distribution of roles, responsibilities and rights, and obligations drawn from prevailing social relations. Or as Italian philosopher Maurizio Lazzarato put it in a recent critique of the emancipatory potential of speech act theory: "Just as the performative codifies enunciations, utterances, and their effects, it also institutionalises speakers and listeners, their respective roles and ranks, and the public space of their acts. The "subjects" that emerge here take no risks and do not engage themselves "personally""(Lazzarato pg174).

As we have seen, the discourse of sexual consent is inseparable from its history as a means of managing female sexuality either in association with marriage and child rearing or the supposed dangers of precocious and disorderly female desire. Consent more generally is also inseparable from its development as a key concept in the history of property and contract law, and in the present era the generalisation of those discourses as models for all human activity as life continues to be marketized. It is for these reasons that I argue that making consent the foundational concept of any discourse dealing with sex will not help produce healthy, flourishing relations between people, nor ultimately prevent harm.

The situation in the courts and the continued prevalence of prejudice against women remain a salient example of how this historical baggage combined with legal exactitude are ensuring the failure to prevent or even identify that harm. Victoria Bates' reflections on the 19th century consent laws and their ambivalent motivation similarly allow us to understand this strange dual view of women as simultaneously 'at risk' and 'a risk'.

Returning to the situation in the universities Jennifer Doyle's recent book Campus Sex Campus Security (Doyle 2016) describes how concerns around sexual harassment have articulated with the university security apparatus in the US. Doyle claims that outmoded paternalistic myths about female vulnerability have been generalised in the contemporary era and are now captured within the ubiquitous discourse of risk management. The appearance of consent classes as well as safe spaces is "shaped by the affective economy of a security culture in which a sense of injury and exposure revolves around sexual possibility - a possibility with the organizing force of a black hole" (Doyle 2015 pg28). This discourse of protection Doyle claims not only re-enforces but actually produces the subjectivities it claims to protect. Ultimately it constitutes a particularly insidious apparatus for normalising and inscribing both the essential fragility of the student-subject and the policing power of the university in its Neoliberal phase. 

Within these regimes of risk management sex appears as a thing, as a dangerous property possessed by "sexual sovereigns" that someone else might try to take away, or that we may misuse, and which we demand the state and university protect. Just as pre-nuptial agreements were meant to protect the property of the rich in acrimonious divorce settlements, and modern sugar daddy agencies seek to formalise that type of relationship outside of marriage, here the juridical framework of contract is again called upon to smooth over precarious interpersonal relations, which in an atmosphere of cultural anomie and litigious anxiety, increasingly lack any other grounding. The historical unfolding of contract and consent, while always carrying with it the mark of freedom and individualism, has also - and always been - a way for life to be captured in Law.

6.

"We must think that what exists is far from filling all possible spaces. To make a truly unavoidable challenge of the question: What can be played?" (Foucault 1997 pg140)

This is meant to be a sketch for a critique, and I make no claim to any magic bullet for the problems of sexual violence and how Western societies are addressing them. However, to bring this to some sort of conclusion it may be worth reflecting on one kind of utterance that Lazzarato opposes to the performative. Michel Foucault's late work included extended reflections on the ancient Greek practice of parrhesia, a word with no direct translation but which is to do with truth telling or true speech. This is however not the kind of speech that merely describes a state of affairs. 

As Foucault put it in almost tautological fashion: "parrhesia involves the way in which by asserting the truth, and in the very act of this assertion, one constitutes oneself as the person who tells the truth, who has told the truth, and who recognises oneself in and as the person who has told the truth" (Foucault 2011 pg68). In such speech it is the speakers themselves who appear rather than in the case of performatives like consent, where what appears is merely the matter present at hand. The latter case brings in nothing that is not already decided upon or pre-assigned to accepted roles and responsibilities, of what can and cannot be said. Whereas in parrhesia it is the speaker’s freedom that appears and their courage.

In his writing on this "courage of truth" Foucault describes different situations where parrhesia is in play, several of which are political in nature such as Pericles speech to the Athenians during the Peloponnesian war. Indeed, at times it is as if for the French philosopher the function of parrhesia takes on a significance for the wellbeing of a political community that surpasses even that argued by Cicero for classical rhetoric. For our purposes, on the interpersonal level it is also crucial to emphasise that this openness in truth is a deeply ethical one that always demands a reciprocal openness on the part of the other which Foucault describes as the "parrhesiastic pact". This is especially the case as the question of the free and moral subject “comes back to the question of the true discourse in which this moral subject constitutes itself, and the question of the relation of power in which this subject is formed“ (Foucault 2011 pg68). What is crucial to this argument is that for Foucault this kind of truth telling is the highest exercise of freedom, albeit a dangerous one.

Dangerous perhaps because unlike with performatives parrhesia does not produce a codified effect, rather it opens up an unspecified risk (Foucault 2011 pg62). As such it is entirely opposed to the contractual logic animating the contemporary discourse of consent with its emphasis on predetermined, predictable outcomes and risk management. Parrhesia as an eruption of truth means that the situation between the partners is open, no longer predictable and that consequences cannot be known in advance. A declaration of love or desire always carries with it great risk for both parties. 

However, clarity is essential here; parrhesia is not opposed to consent. On the contrary, at the very fundamental level (the level of not forcing people to do things they do not wish to) consent is presupposed by parrhesia. Within a parrhesiastic situation the will to dominate the other must be entirely absent for the play of risk and openness to function, and it is only through such an interplay that a break with the predictable, with the closed and cold logic of sexual exchange can be made, that love and sex might reach the level of an event.

This is admittedly a somewhat vague and certainly more difficult form of relationship to think compared to the familiarity of legal terms that increasing guide our public and personal lives. I hold however that it and other similar notions constitute a far better starting point for ethical sexual relationships than the limited and tainted discourse of consent. If there is any desire left in this world to resist the transformation of all social life into market transactions; any desire to resist human intimacy being subsumed under economic categories; or any imagination left to conceive of a break with the conditions of the past, then it will involve re-thinking sexual relations and sex education along these kind of lines.

References

Agamben,Giorgio 2011 - The Sacrament of Language (Cambridge, Polity Press)

Doyle,Jennifer  2015 - Campus Sex, Campus Security (Semiotext, California)

Dwyer, Susan (Ed.) 1995 - The Problem of Pornography (Belmont, Calif.:Wadsworth Publishing Company)

Foucault, Michel 1997 – Ethics:Essential Works of Foucault 1954-1984 Vol 1 (London Penguin Books)

Foucault,Michel 2011 - The Government of Self and Others (New York, Palgrave Macmillan)

Langton, Rae - Sexual Solipsism (2009) (Oxford University Press, London)

MacKinnon, Catharine 1993 - Only Words (Cambridge, Mass: Harvard University Press)

Lazzarato,Maurizio - Signs and Machines: Capitalism and Production of Subjectvity 2014 (Semiotext, California)

Plague Power #2: States of Exception and the Demobilised Zoon Politikon

1.

Total mobilisation was one of the key military concepts bequeathed to us from the war experience of the 20th century. It finds its counterpart today under conditions of pandemic in the notion of total confinement. If, as Ernst Jünger puts it, total mobilisation is the conversion of life into energy at the level of the society, then total confinement must be the withdrawal of energy from that same social life. What is essential to note is that in both instances it is life which is the object of conversion or diminution. But the life targeted here is not the mere biological life of the human animal but the life particular to homo sapiens as the zoon politikon, the political animal of Aristotle's philosophy.

Under conditions of total mobilisation the energy of an entire population is harnessed as projective force to secure its survival in wars, which thanks to the reign of destructive technology, have become equally total. Thus, contrary to the rhetoric of "defending our way of life", which we still hear from politicians today, the life being secured in such cases is not that of the zoon politikon - the qualified form-of-life which the Greeks called bios - but rather it is the bare biological life of the population, which is the life common to all living things. We thus have a paradox of sorts, where the form-of-life that is most particular to humans is being sacrificed, converted by the great war machine of modern states for the sake of saving, or preserving its biological life.

At this level the two concepts, total mobilisation and total confinement, are entirely aligned. In both cases power sacrifices what is most proper to the human in order to conserve (and in the process capture) its biological existence.

This process is a familiar theme in the political writings of Giorgio Agamben, for whom the State of Exception (which total mobilisation and total confinement are extreme iterations) is the moment when the otherwise regulated relationship between power, life and Law is broken, and power (specifically sovereign power) appears in its most arbitrary and potentially murderous form.

We have got used to thinking of power under neoliberalism in that "capillary" model that Foucault described so well in the 1970s; reaching down to the smallest quanta of human activity; monitoring, recording, governing and conducting; and usually coupled - in his account - with a corresponding loss of the sovereign or charismatic mode of governing. As the entropy of government increases, power and authority become diffuse, unlocalisable to a central point. "Central government" then becomes little more than a clearing house. This is the type of elite technocratic governance caricatured by modern populists like Donald Trump, Bolsonaro, Salvini and the rest.

Now, what we're observing under conditions of contagion is the blood being drawn back from the extremities, back into the major arteries of state and police functions. The current pandemic has confirmed much of what we knew or at least suspected was always in the arsenal of modern states in the era of smart phones, big data and the complete interpenetration of civil and security technologies.

2.

In February you'd be forgiven in Europe for watching with a wry smile as the Chinese deployed drones to track individuals suspected of carrying the virus, and even confronting people deemed outside unnecessarily, sometimes following them back to their homes. Only a few short weeks later the tactics we'd like to palm off onto undemocratic states like China appeared in Spain and in the UK, where in Derbyshire the police (in a typically English display of pettiness) used a drone to film people walking their dogs or driving to secluded country spots to take their exercise, neither of which are prohibited under the new "guidelines". 

A similar functional adaptation has been seen with the use of smart phone tracking and card transactions to monitor where infected persons have been and who they may have come into contact with. In Israel and elsewhere all that has been needed to achieve this is the generalising of already existing anti-terror legislation to cover all citizens; an age old slippage that has been repeated throughout modern history where provisions originally designed for criminals get migrated over to the general population. Bertillon cards, the precursor to the modern biometric ID card developed by Alphonse Bertillon in the late 19th century is exemplary in this regard. It should not surprise us that early biometrics were pioneered by the son of a statistician working as a clerk for the Parisian police. Google have now weighed in, helpfully offering to make mobility data from tracking your phone available to help governments "manage the outbreak".

As well as enabling extrapolitical measures likes these, governments around the world have been passing emergency legislation giving them bold new powers over everything from speeding up burials, to closing down schools, shops and business, to detaining those suspected of being infected with the virus. In France where an especially severe lockdown has been implemented, individuals need to fill out a form before they can leave their own homes and present it to any police officer who challenges them. Tens of thousands of fines have already been issued to people deemed to be outside unnecessarily.

Throughout continental Europe only food shopping for essential items is now permitted, though there is no advice on what precisely these essential items are. One might well ask, if only the essentials should be purchased why are supermarkets still selling anything else? In the UK there have been incidents of police searching through shopping bags, with Easter eggs falling foul of the restrictions. In wartime, essential food items were defined and allocated through the rationing system. Inessential items were more or less unavailable. Bananas were one item that vanished from shop shelves entirely during the 1940s.

Without a transparent and properly defined system the police have effectively been given arbitrary powers, and worryingly have had to be reminded that they should be sticking within the guidelines rather than adopting the interpretations of ministers given during press conferences as instructions. At the bottom of that particular slippery slope lies fuhrerprinzip and Nomos Empsychos (living Law).

The Hungarian Prime Minister Viktor Orban is never one to let a crisis go to waste. Last week, as a response to the pandemic his country's parliament voted to give him the power to rule by decree indefinitely. Hungary thus becomes the EUs first bona fide dictatorship; though as yet there is no talk of kicking them out of that accommodating club. Orban's powers arrived with additional legislation outlawing "fake news" about the government's response to the virus. Anyone deemed by the State to be spreading misinformation could be jailed for up to five years. Orban's power grab, as well as punitive measures and emergency powers adopted by governments across the world amplifies an authoritarian trend which was already in process long before the current crisis.

It's important however not to overstate the totalitarian potential at work in these events. Jünger's total mobilisation is more of a regulating ideal than an actually achieved state of affairs, and the same goes for total confinement. In the UK the memory of the riots in the summer of 2011 is still strong, and with police numbers having fallen by 20,000 over the intervening period the capacity for law enforcement in the case of widespread civil disobedience is limited.

Despite briefings to the contrary there is widespread belief that the UK's relatively mild lockdown conditions reflect the Conservative government's continued commitment to a strategy of "herd immunity". Hardly constituting a strategy at all, it is in effect allowing the virus to tear through the country so that enough people contract, survive, and build immunity that in great enough numbers would act like a firebreak against further epidemics. The cost of this strategy would be tens of thousands of preventable deaths, not only from Covid-19 but from other medical conditions that an overwhelmed health service could not properly treat. Formally such planed negligence would be the opposite of an authoritarian response, but it is no less destructive, no less biopolitical in its cold economic calculation of mass death and suffering.

There is undoubtedly a danger in all this is that once the pandemic passes we will be faced with years of struggle to roll back the sweeping powers assumed by the State, which will likely be redeployed to serve other purposes and other "emergencies", depending on their perceived utility. Fears over the disappearance of cash, the further erosion of privacy, and the integration of big data across government and corporate institutions are all valid concerns under circumstances where oversight is limited and the normal rules don't apply.

3.

The last few weeks have seen states take actions that we had been led to believe were impossible; massive injections into the economy for the sake of safeguarding workers, the debt of the NHS written off, railway and airline companies renationalised, hospitals constructed in days. All these things that in the UK were propagandised against by the Conservative party during the general election of December 2019. Thinking back to Thomas Hobbes, it’s as if the miraculous power which Western politics has for centuries thought it had cast out from the concept of sovereignty has returned, with the Leviathan revealing itself once more as “that mortal God” to which we owe, under the immortal God, our peace and defence.

There is an intense need for awareness and scrutiny of the decisions being taken in the present circumstances, and to resist the urge - in a situation of understandable fear and uncertainty - of collapsing all social and political life into the management of the (biological) life of the people. Dark undertones have already been glimpsed, such as 'do not resuscitate' (DNR) forms being sent out to disabled people by some GPs in the UK as part of the Coronavirus response. Battlefield triage is the paradigm being reached for to describe the extremely tough decisions having to be made by doctors allocating scarce resources to so many critically ill people. It is one of the very few scenarios where a strict application of the utilitarian principle of maximising quality of life outcomes for the greatest number of people is the most appropriate ethical response. However, generalised to public policy and welfare it very quickly turns into eugenics. 

Italian philosopher Giorgio Agamben, who has done more than anyone in warning of the dangers of a generalised state of exception, has been accused of downplaying the significance of the Coronavirus pandemic and the need for drastic action in a piece for Quodlibet. 

The piece, written at the end of February, does indeed seem naive in its assessment of the impact of the outbreak and the Italian government's measures which he describes as "frenetic, irrational and entirely unfounded".  However in a clarification issued shortly afterwards the properly ethical philosophical core of his position is clearer:  

"The first thing that the wave of panic that has paralyzed the country obviously shows is that our society no longer believes in anything but bare life. ... Bare life - and the danger of losing it - is not something that unites people, but blinds and separates them. ... People have been so habituated to live in conditions of perennial crisis and perennial emergency that they don’t seem to notice that their life has been reduced to a purely biological condition, as has not only every social and political dimension, but also human and affective. A society that lives in a perennial state of emergency cannot be a free society. We in fact live in a society that has sacrificed freedom to so-called “reasons of security” and has therefore condemned itself to live in a perennial state of fear and insecurity".

The point to make here is that this is not a moral condemnation of the emergency measures taken by governments; it would be foolish to suggest that the "virtue" of the governing class should somehow form a bulwark against the despotism of technicity, or that there was some other obvious response to the pandemic that should have been adopted. What we are seeing now has always been there as a capacity and a real possibility. As Agamben has repeatedly argued - following the insight of Walter Benjamin - the state of exception in which we now live has become the rule. The Coronavirus pandemic functions like a moment of concentration in which political, governmental, and also ethical and social forms are revealed to be shot through with an already existing weight of fear and anxiety. We were already afraid, and were already habituated to sacrificing our freedom to health and security, to the empty city depicted on the frontispiece to Hobbes' Leviathan. What is happening now - while far from an authoritarian takeover - is an acceleration of a process that has been underway for decades.

The Dance of Death - 16th Century German, annonymous artist

Finally, it is worth bearing in mind that there is another side to the "dream" of plague uncovered by Foucault's researches, one pregnant with images of individuals throwing off their masks (metaphorically but may as well be literally) and abandoning their social status to the great debauchery of those who know they are going to die. "Plague overcomes the law just as it overcomes the body". An overcoming of Law and the contiguity between a state of exception and a state of festive anomie is similarly evoked in Agamben's extensive writings. If there is a deeper meaning to the pandemic, one that might point the way towards a different kind of world and a different kind of life in the aftermath, then it may be found here.

Plague Power #1: Soldiers and Plague Doctors in the Political Imaginary of the State

1.

 The plague town is a zone of indistinction, a place where boundaries are set-up and undermined. The logic of contagion challenges divisions between individuals, dissolving separateness into a mass of intermingling and potentially contaminated bodies; while at the same time lockdown suspends life and "social distancing" turns every stranger one encounters into a possible killer.

As I write, nearly one half of the world's population is under a lockdown of one sort or another. It's striking reading over the methods by which plague was controlled in centuries past to see that so little has changed. Stop the spread, control the disorderly flow of bodies and the invisible evil passing between them. Separate, isolate, create distance, but also totalise by way of an analysis that takes in the whole population and characterises it down to the finest grain; infection rates broken down into boroughs and wards, death rates, age and "underlying conditions". 

On that latter point, never has hearing of a deceased person's underlying conditions (which we should remember can include everything from high blood pressure to terminal cancer) given so much relief to so many of the living. Everyone is now getting a crash course in epidemiology and virology; modern perspectives on contagion which produce demands quite different from the theory of miasmas. Few people are desperately perfuming their homes in an attempt to avoid infection, but in the stretched queues outside supermarkets the red raw marks of excessive hand washing are plainly visible.

Although the pandemic is being given the window dressing of a state of war the analogy is in fact quite insufficient. "Send Coronavirus packing!" was Boris Johnson's half hearted attempt to conjure a Churchillian moment from out of his bag of bluster and incoherence, just before he contracted the disease himself. He had little hope of success as the paradigm of plague doesn't lend itself well to the kind of jingoism and will-to-heroics that military conflicts do. In the first instance the "enemy" has no face and so cannot be propagandised against. So much of the get-up-and-go which characterises mobilisation for war is made off the back of leveraged prejudices; "send the Krauts packing!" 

This hasn't, however, stopped Donald Trump from calling it the "Chinese virus"; an act inspired by racialised economic warfare, repeated by many of his officials and which has done nothing but contribute to a rise in attacks on Asian looking people in the US. Infantry and air power are futile against a microscopic army, but he'll send the troops and fire off the Tweets anyway. The image Trump was hoping to evoke (it is the only one he knows)  is that of an external threat; the barbarian at the gates, and the necessity to mobilise to defend the homeland.

All this is useless when the threat is within the body of the people itself, an internal contagion for which an analogy with rebellion or civil war is more apt. As in the case of insurrection and "risings", a strict disciplinary regime is imposed in order to divide the sick from the well, the loyal from the seditious, isolate the infection and characterise the nature of its spread. By what means does it move across the land? through what disorderly conduct? We are by now familiar with the biopolitical implications of all this; the hot-house of modern disciplinary power that is implicit in the politically operationalised concept of population, and the management of its health. 

Only with the rise of statistics and the developing sciences of microbiology and pathology did it become possible to visualise the biological life of a population and make of it an object of political rationality. But even before the advent of those sciences, the plague and its management was an event where the bare-life of a whole community was made palpable and open to capture. Now, in this unprecedented moment the same rupture appears on a world scale. The coronavirus pandemic marks the appearance of bare-life elevated under the rubric of a generalised state of emergency to the life of the entire global population.

2.

"The plague-stricken town, traversed through-out with hierarchy, surveillance, observation, writing; the town immobilized by the functioning of an extensive power that bears in a distinct way over all individual bodies - this is the utopia of the perfectly governed city". Michel Foucault - Discipline and Punish

No image speaks to the authentic core of State power more than the famous frontispiece to Thomas Hobbes' Leviathan. The engraving shows the crowned figure of Leviathan towering over a land speckled with churches and villages. Its torso and limbs are composed of the people (or dissolved multitude as Hobbes puts it) who are turned towards the face of the giant figure, each having agreed to enter a covenant to give up their Right to the sovereign in exchange for peace and security within the body of the State. This is the well known contractual side to Hobbes political ontology. The frontispiece also contains many mysteries and much symbolism that has contributed to its notoriety.

The depiction of the city in the foreground is of special interest to us. Several scholars have noted how the city appears devoid of inhabitants, including the figure of the sovereign itself which seems to hover beyond the horizon of the territory over which it reigns. One explanation for this paradox offered by Italian philosopher Giorgio Agamben is that it reflects the non-political status of the people in Hobbes' philosophy. As a "dissolved" multitude within the body of the State the people do not have autonomy apart from their representation by the sovereign. They cannot take back the agreement they have made, nor limit the extent of the power they have engendered. Conversely, prior to them giving up their Right to the sovereign the people are a "disunited" multitude within the state of nature, a pre-political state according to Hobbes. So although the multitude - which made the original covenant - continues to exist dissolved in the body of Leviathan, the people (as that collective will) no longer has any independence apart from the State. The people appear only in the moment the sovereign State is constituted before vanishing again. It is for this reason the city appears to be empty. Empty that is apart from two sets of figures, soldiers and what some scholars have identified as plague doctors.

The presence of soldiers, who in the image patrol outside a fort, neatly ties in with the symmetry of the frontispiece, the left side of which is given over to symbols representing the temporal power, the most visceral of which being the sword of justice held in the right hand of the giant figure. The plague doctors can be seen outside the cathedral on the opposite side, which  predominantly features symbols of the spiritual or ecclesiastical power. The significance of the inclusion of plague doctors is not immediately obvious, and the interpretation is admittedly a little incongruous with the overall symmetry of the symbolic scheme (could they not be wearing ecclesiastical vestments; the elongated "nose" rather meant to depict a hood?). It becomes more plausible when we consider the political significance of plague more generally.

3.

Agamben in his interpretation is I think drawing on Michel Foucault's description of the management of the plague town as a step towards modern forms of surveillance and rationalised systems of power based on division of labour and authority. The term Foucault identifies from the archives is quadrillage a word without direct translation into English but which has connotations of ordering, division and management of a territory. As he writes in Abnormal (1975): "from the sentries who kept watch over the doors of the houses from the end of the street, up to those responsible for the quarters, those responsible for the districts and those responsible for the town, there is a kind of pyramid of uninterrupted power. It was a power that was continuous not only in this pyramidal, hierarchical structure, but also in its exercise, since surveillance had to be exercised uninterruptedly".

This disciplinary mode of power over a population (which he would later go on to call biopolitics), based on inclusion, ordering and observation was opposed in Foucault's account  to the treatment of lepers, who were excluded from the community, almost as an act of purification, and who were stigmatised rather than monitored and categorised. Indeed he even goes so far as to suggest that the management of plague and of lepers represent the only two major models for the control of individuals in the West. We can perhaps distil this claim to its most basic characteristic, that each model is based on either inclusion or exclusion of individuals. Even so, this opposition is perhaps a little too black and white, especially in the light of modern state run health and welfare systems which are often the site of exclusions, albeit by way of nationwide bureaucratic decision making.

Following Agamben's logic we might evoke the liminal or threshold concept of the inclusion/exclusion dyad, which would help us understand how a form of organisation that takes in every individual through observing, recording and monitoring, is also capable of asserting a right over life and death in a manner we associate with the Medieval sovereign. That is after all what large scale healthcare systems and governments are now in the process of doing, deciding where resources are allocated, who gets tested and who is left to die alone without treatment. It is for this reason that I think Agamben likes to pair the soldiers in Hobbes' frontispiece with plague doctors. 

The plague doctor symbolises the extreme moment (like a state of war) when the bare-life of the population appears most clearly as an object of political decision making. This is when the power over life and death that we associate with pre-modern rulers appears clearly as an ever present part of our nominally modern and rational systems of government. Foucault describes this as the political "dream" of the plague, "in which the plague is the marvellous moment when political power is exercised to the full". It is a dream inextricably linked to the dream of a military society.

According to this reading Hobbes' frontispiece suggests a powerful and dark vision of political life. The ultimate expression of sovereign power is a city entirely given over to the management of health and security. It is this paradigm we are now undoubtedly seeing unfolding across the globe. We are living through a time where the power of the State looms large over an empty city, and where the only people permitted to walk the streets are security personnel and health workers.