Rethinking biopolitics: COVID-19,differential vulnerabilities and biopolitical rights

Abstract

In this article, I develop a critique of the forms of differential vulnerability produced by biopolitical technologies of power which became particularly salient during the COVID-19 pandemic. First, I address some conceptual and methodological questions linked to Foucault’s work on biopolitics, and I argue that one of his most promising insights is the claim that biopolitics necessarily entails a politics of differential vulnerability. I then develop an immanent critique of this politics of differential vulnerability and show that it should be construed as a form of injustice. Finally, I argue that some of the most fundamental human rights can be conceived as ‘biopolitical rights’, that is, as rights whose normativity stems from the biopolitical mechanisms of power that manage our biological lives. I conclude by suggesting that a critical theory of biopolitical rights constitutes an effective strategic response to the current injustices created – before, during and after the peak of the COVID-19 pandemic – by the biopolitical production of the differential exposure of citizens to health, social and environmental risks.

Introduction

Predictably, the COVID-19 pandemic contributed to the emergence of a panoply of analyses centred on Michel Foucault’s notions of biopower and biopolitics (see, among dozens of papers, Arminjon and Marion-Veyron, 2021; Cohen et al., 2022; Ioakimidis, 2020; Ristić and Marinković, 2022; Schubert, 2022; Taşkale, 2022; Van den Berge, 2020). In this article, I will not draw a distinction between the two notions, ¹ and use them interchangeably to indicate the political rationalities and power mechanisms that aim to protect, manage and enhance the biological life of a population. Yet, the appropriation of these notions by politicians, journalists and public intellectuals during the COVID-19 pandemic also gave rise to many misunderstandings and misreadings of Foucault. One of the aims of this article is to shed some light on what these uses of Foucault’s notions of biopower and biopolitics misunderstand and overlook. However, I will not limit myself to this mere hermeneutical or philological task. Offering a reading of Foucault’s work on biopolitics that is as faithful as possible to his original aims is for me just the premise for a further, and more relevant, endeavour: raising the question of whether or not his analyses are still relevant today, and exploring ways in which they can be amended and redeployed in order to address problems that, in the wake of the COVID-19 pandemic, are different from those that Foucault was addressing almost 50 years ago.

What was striking to me in the first series of contributions that, in early Spring 2020, drew from Foucault’s concept of biopolitics to address the COVID-19 pandemic (see, for example, Esposito, 2020; Sarasin, 2020; Schubert, 2020; Sotiris, 2020) was the almost complete lack of discussion of what I consider to be the most interesting and relevant insights of Foucault’s work on biopower and biopolitics. The main focus of most of those contributions was on disciplinary measures such as quarantine and lockdowns, the obligatory use of face coverings, the increased surveillance of the population and the ensuing risk of fascist or totalitarian drifts of our democracies. Giorgio Agamben’s (2020a, 2020b, 2020c) infamous blog posts, in particular, kept drawing from the Schmittian notion of the ‘state of exception’ to denounce what people would later commonly refer to as dictature sanitaire, sanitary dictatorship, and suggest questionable analogies with Nazi Germany. Foucault’s analyses of biopolitics, however, are more complex, rich and compelling than they appear under the pen of those who, on the right or on the left, too quickly reduced them to a series of anathemas against disciplinary confinement and mass surveillance, or use them to justify their fear of new states of exception. Agamben’s (1998 [1995]) well-known thesis in Homo Sacer: Sovereign Power and Bare Life is that the decisive event of modern politics is not the inclusion of zoē (human beings’ biological life) into politics, but the fact that, in modern times, the exception has become the rule, and the realm of bare life has therefore been made to coincide with the political realm tout court. Thus, zoē and bios (human beings’ qualified, socio-political and cultural life) have entered into a zone of irreducible indistinction, and as a consequence, modern democracies face an unsurmountable dilemma insofar as they construe the freedom and happiness of their citizens as dependent on the very element that, on the contrary, marks their subjection: their ‘bare life’ (Agamben, 1998 [1995]: 1–12). Today, Agamben (1998 [1995]: 10) claims, ‘politics knows no value [ . . . ] other than life’, and according to him, the risk of a resurgence of fascism and totalitarianism will remain salient until the contradictions that this entails are resolved. Unsurprisingly, he saw in governmental responses to the COVID-19 pandemic a blatant confirmation of these ideas.

I am not denying that some of these risks might exist, or claiming that worrying about them is a priori illegitimate. If one adopts what Foucault once described as ‘hyper- and pessimistic activism’ (Foucault, 1997a [1983]: 256), according to which, since everything is potentially dangerous (pessimistic activism), one always finds oneself with something to do (hyper-activism), one may even venture to suggest that making room for these extreme critical positions in the public debate can be somewhat helpful. ² However, Foucauldian critique relies on a diagnostic – and not on a prophetic – endeavour: the point is, at any given moment, to determine the main dangers that one is facing, the truly intolerable aspects of the way(s) in which one is governed, and to focus our efforts on struggling against them (Foucault, 1997a [1983]: 256). In this article, I argue that one of the most intolerable aspects of the way in which we (and by ‘we’, in this context, I mean citizens of contemporary liberal democracies) are currently governed that the COVID-19 pandemic has made plain and magnified is the differential and unjust character of biopolitical technologies of power, one that, in the aftermath of the pandemic, is still operative, including in the ways in which governments, pharmaceutical companies and media are now addressing (or better, largely refusing to address) the experience of patients suffering from long COVID (see, for example, Miller, 2023; Yong, 2023).

In order to develop a critique of the differential forms of vulnerability produced by biopolitical technologies of power, however, one needs to go beyond Foucault’s own analyses and construe the notion of biopolitics not merely as a descriptive one (as Foucault does most of the time), but also as a normative one. Indeed, biopolitics necessarily relies on and contributes to the organisation of an unjust system of differential vulnerabilities. Since, right now, trying to get rid of biopolitics tout court seems to be merely a chimera, I argue that, to address its most intolerable and unjust effects, one should start by elaborating a critical theory of ‘biopolitical rights’, that is, rights whose normativity stems precisely from the biopolitical technologies of power that manage our biological lives under specific economic, social and political circumstances.

In the second section (‘Refusing the blackmail of biopolitics’), I address some conceptual and methodological questions linked to Foucault’s work on biopolitics and what I call the ‘blackmail’ of biopolitics. In the third section (‘The political production of differential vulnerabilities’), I argue that one of Foucault’s most promising insights in this regard is his claim that biopolitics necessarily entails (and by that I mean: both produces and relies on) a politics of differential vulnerability. In the fourth section (‘Biopolitics as a normative notion’), I develop an immanent critique of this politics of differential vulnerability, and show that it should be construed as a form of injustice. Finally, in the fifth section (‘Towards a critical theory of biopolitical rights’), I suggest that a helpful strategic move to make in order to fight against the injustice entailed by biopolitical mechanisms of power consists in developing and implementing the notion of biopolitical rights. Of course, this move still remains within the normative framework of biopolitics – and as such is limited in scope. Yet, as Foucault (2018) often remarks, there are also advantages in focusing on specific, limited and partial transformations, or on what he sometimes calls ‘counter-conducts’ (Foucault, 2007: 201–202), ³ before – or while also – embarking in radical global projects that attempt to give birth to another society and another world. A critical theory of biopolitical rights is therefore a tactical response to the current situation, and a strategic tool in the hands of the citizens of contemporary liberal democracies, rather than a definitive solution to the problems I raise in this article.

Refusing the blackmail of biopolitics

The notion of biopolitics, as Foucault (1978 [1976], 2003) develops it in 1976 in his lecture course at the Collège de France, ‘Society Must Be Defended’, as well as in the first volume of his History of Sexuality, was not meant to indicate just how evil this form of power is. Yet, of course, Foucault did not mean to praise biopolitics either. In coining this notion, his aim was first and foremost to point to the historical crossing of a threshold, and more specifically of what he calls a society’s ‘threshold of biological modernity’ (Foucault, 1978 [1976]: 143; trans. mod.). According to Foucault, Western societies crossed such a threshold when the biological processes characterising the life of human beings as a species became a fundamental issue for political decision-making and a new problem to be addressed by governmental rationality – and this, importantly, not only in exceptional or extraordinary circumstances (e.g. during a pandemic), but in normal or ordinary circumstances as well. Especially in normal, everyday circumstances: protecting, managing and enhancing the life of the population has become a permanent concern for governments and other non-governmental actors that defines what Foucault also calls the ‘nationalisation of the biological’ (Foucault, 2003: 240; trans. mod.).

To remain faithful to Foucault’s (1997a [1983]: 256) crucial methodological principle according to which power is not good or bad in itself but is nevertheless always dangerous – especially if accepted blindly, that is, without raising the question of its tolerability – we can say that this ‘paradigm shift’ in governmental rationality gives rise at the very least to a dangerous extension of the domain of intervention of power mechanisms. We are now not only governed as citizens or legal subjects, endowed with a set of liberties and rights (and a corresponding set of duties), but also as living beings who, collectively, form a global mass – a ‘population’ – with a natality rate, a mortality rate, a morbidity rate, an average life expectancy, and so on. Hence, Foucault’s work on biopolitics points to a constitutive tension between (at least) two ways in which we are currently governed: as citizens and subjects of rights, on the one hand, and as living beings and biological subjects, on the other. This tension is at the roots of the clash we witnessed at the peak of the COVID-19 pandemic between biosecurity imperatives and the protection of the citizens’ individual liberties, as well as of the difficulties we experienced – and are arguably still experiencing – in making sense of and deal with such a clash. ⁴ Indeed, these two imperatives (the protection of the citizens’ individual liberties, on the one hand, and the protection of the life of the population as a whole, on the other) are deeply ingrained in our political tradition, even though they seem to stem from two different kinds of governmental rationality: what Foucault (1978 [1976]: 135–145) calls sovereign power and biopower, respectively.

In his 1984 essay, ‘What is Enlightenment?’, implicitly responding to Jürgen Habermas, Foucault famously claims that we must refuse what he calls the ‘“blackmail” of Enlightenment’ – that is, the idea that we have to be either ‘for’ or ‘against’ the Enlightenment – and instead address the Enlightenment as a historical event that still characterises, at least to a certain extent, who we are today (Foucault, 1997c [1984]: 312–313). Foucault’s approach to biopolitics is, I claim, very similar. From a Foucauldian perspective, it seems that we must refuse what we could call the ‘“blackmail” of biopolitics’: we do not have to be ‘for’ or ‘against’ biopolitics, but rather address it as a historical event that still defines, at least in part, ⁵ the way(s) in which we are governed. One of the things that I found really striking during the COVID-19 pandemic was how scrupulously so many of us respected rules connected to obligatory face coverings, social distancing, quarantines and lockdowns, even when the risk of sanctions, in most situations and countries, was after all minimal. Consequently, the COVID-19 pandemic and our response to it emphasised that we already are, for the most part, biopolitical subjects, and that far from being exercised on our lives from the ‘outside’, as it were, biopolitical power has been an aspect of who we are, of our historical form of subjectivity, for at least the past two centuries.

This is why Foucault’s remarks about a ‘critical ontology of ourselves’, defined as ‘a historico-practical test of the limits we may go beyond, and thus as work carried out by ourselves upon ourselves as free beings’ (Foucault, 1997c [1984]: 316), may turn out to be helpful for us today: in a sense, it is the very fabric of our being that is at stake here, much more than any given set of repressive measures. Of course, from a Foucauldian perspective, it is never possible to simply get rid of our historical form of being in the blink of an eye. Yet, what we can do is to at least become aware that our forms of subjectivity are historically, politically and socially constructed, and therefore that they constitute one of the main ‘battlefields’ where technologies of power and practices of freedom incessantly confront each other. Foucault’s critical ontology of ourselves is therefore an eminently political endeavour through which we are incited to consider our form(s) of subjectivity and of life as political enjeux, and the effort to transform them as a political task (Lorenzini, 2015, 2023).

The political production of differential vulnerabilities

In addition to construing biopolitics as a dimension of our own form(s) of subjectivity, Foucault’s work is also helpful in that it sheds light on the inextricable link that exists between biopower and racism, and more generally between biopower and oppression. This insight is, unfortunately, rarely mentioned in connection to Foucault and virtually ignored by the contributions that mobilised the notion of biopolitics to address the COVID-19 pandemic. In a piece published in March 2020, Judith Butler (2020) aptly emphasised ‘the rapidity with which radical inequality, nationalism and capitalist exploitation find ways to reproduce and strengthen themselves within the pandemic zones’. This came as a healthy reminder in a moment in which other public intellectuals, such as Jean-Luc Nancy (2020), were defending the opposite thesis, namely that COVID-19 ‘puts us on a basis of equality, bringing us together in the need to make a common stand’. The discourse on the alleged ‘democratic’ character of the pandemic can still be widely heard today, even though it is clear that our shared biological vulnerability vis-à-vis the virus was – and still is – socially and politically modulated: in other words, there is very little ‘democracy’ in the ways in which people get sick and die from COVID-19. Indeed, it is now clear that the incidence of the virus, both in terms of number of contagions and of number of deaths, was disproportionally higher in certain social and ethnic groups: essential/front-line workers, low-income workers, people of colour, people with chronic illnesses, the elderly – especially those living in nursing homes and long-term care facilities (Backman, 2022; Walubita et al., 2021). The reasons for this differential incidence of COVID-19 infections within a society are multiple and complex, but it is important to emphasise that there is hardly anything natural or necessary in it. This differential distribution of vulnerability is the product of the biopolitical rationality according to which we are currently governed.

In the final lecture of ‘Society Must Be Defended’, Foucault famously argues that racism is ‘a way of introducing a break into the domain of life taken over by power: the break between what must live and what must die’ (Foucault, 2003: 254). In other words, racism is, among other things, a tool that is used to fragment the biological continuum of the population (we all are living beings with roughly the same biological needs) in order to create hierarchies among different social and ethnic groups, thus also introducing disparities in the ways in which different individuals and groups are exposed to the risk of illness and death. What is particularly relevant here is that Foucault presents this differential exposure of individuals and groups to health, social and environmental risks as an intrinsic feature of biopolitical governmentality; and that he construes racism – to which one must add all other forms of oppression and social discrimination, such as class inequality, forced mobility, gender discrimination, and so on – as the ‘condition of acceptability’ of such a differential exposure of human lives to risks in a society where, paradoxically, one of the main functions of the exercise of power is supposed to be to protect and enhance the biological life of the entire population.

Thus, biopolitics cannot be reduced to the formula ‘making live (faire vivre) or letting die (rejeter dans la mort)’, derived from the inversion of the formula that characterises sovereign power, ‘taking life (faire mourir) or letting live (laisser vivre)’ (Foucault, 1978 [1976]: 138). Indeed, biopolitics does not function by drawing a clear-cut opposition of life and death, but is better understood as an effort to differentially organise the grey area between them. The current government of migration is an excellent example of this fact, as Martina Tazzioli (2019: 106) convincingly argues when talking of ‘biopolitics through mobility’ and reminding us that biopolitics is also, and crucially, a matter of differentially governing people’s mobility and immobility.

In short, biopolitics is always a politics of differential vulnerability, one that relies on already-existing biological, social and political vulnerabilities, but one that also, at the same time, produces politically useful vulnerabilities – in other words, one that transforms these existing vulnerabilities into political tools for the government of the population. Far from being a political rationality that aims to erase or at least to correct social, economic, gender and racial inequalities by underscoring our common belonging to the same biological species, biopolitics therefore systematically establishes hierarchies in the value of lives, producing and multiplying differential vulnerabilities as a means of governing individuals and groups.

‘The population must be defended!’ Sure, but not à tout prix and not in its entirety: biopolitical governmentality does not protect biological life a priori, but transforms it into the object of a political and economic calculation whose unstable, changing results introduce significant differences in the biological continuum of the population and among different individuals and social groups. If we may well be all equal in the face of illness or death, we are certainly not all equal in the face of the risk of illness and death – and it is precisely our exposure to this risk that biopolitical mechanisms of power increase or decrease as a way to govern us. Besides, this production of differential vulnerabilities on the basis of old and new social and economic inequalities does not only take place at the peak of pandemics or other health or environmental ‘crises’. On the contrary, it is something that goes on uninterruptedly and characterises the ordinary, everyday exercise of biopolitics. Thus, our ‘post-COVID-19’ reality is currently marked by a staggering number of individuals suffering from ME/CFS (Myalgic Encephalomyelitis/Chronic Fatigue Syndrome) as a consequence of COVID-19 infection (Jason and Dorri, 2023). Judging by the lack of government and media attention, and of substantial investments in drug trials, it seems that biopolitical mechanisms of power are currently producing and sustaining the systematic marginalisation of those suffering from long COVID and considering their lives expendable.

Biopolitics as a normative notion

Yet one could ask: Why criticise the biopolitical production of differential vulnerabilities? Isn’t it, at least in part, inevitable? During the peak of the COVID-19 pandemic, it has been suggested that the uneven impact of the virus on different groups within the population just reflected their ‘natural’ characteristics: those groups, for instance the elderly, are necessarily more fragile, and therefore, in a context where the available medical resources are limited, their situation might be unfortunate, but it is not unjust. Foucault’s work is not very helpful in dealing with this delicate issue. His genealogical approach aims first and foremost to show us that biopolitical governmentality is not natural nor necessary, but historically contingent and the fruit of a series of specific political, social and economic factors (Lorenzini, 2023). And even though Foucault clearly wanted to emphasise the dangers connected to this way of governing people, and point to its intolerable aspects, he always refused to explicitly present the biopolitical production of hierarchies in the value of lives, and the political multiplication of vulnerabilities, as an injustice. This is coherent with his well-known rejection of the language of justice and injustice (Chomsky and Foucault, 1971) and his refusal to ‘tell people what they should do’ (Foucault, 1977). In his interviews and writings about prisons in the early 1970s, especially in connection with his activism within the Prisons Information Group, Foucault claims that it is paramount to focus attention on what people find intolerable at any given time (Thompson and Zurn, 2021). ⁶ However, during the COVID-19 pandemic, many people found lockdowns to be intolerable, while others thought that what was intolerable was the idea that one could just let the virus run through the population to achieve some sort of herd immunity at the expense of the most fragile individuals; some people found intolerable the prescription to wear face coverings, whereas others found intolerable the obstinate refusal of many individuals to do so in the name of their freedom. How can one adjudicate between these different claims, referring either to the intolerability of exposing already vulnerable people to an even greater risk of illness and death, or of making certain individuals and groups more vulnerable specifically to COVID-19, and the intolerability of forcing young and healthy people to accept greater and greater limitations of their individual freedom?

Even though Foucault does not provide us with normative tools to directly address this question, in his work on biopolitics he does emphasise a tension that turns out to be helpful to solve this conundrum: the tension between the life and health of the population as a whole and the protection of a set of fundamental rights (including the right to life) of its most vulnerable parts. Building on this tension, I argue that biopolitics should be construed as a normative notion – that is, as a notion indicating a political rationality and a set of power mechanisms that necessarily entail forms of injustice, and as such must be criticised. Indeed, it does not seem possible to conceive of biopolitics merely as a descriptive notion that indicates a specific form of power aiming to protect, manage and optimise the biological life of a population. As I argued above, this protection, management and optimisation rely on the systematic organisation and production of forms of differential exposure of the life of individuals and groups to health, social and environmental risks. Far from being an unfortunate historical accident that one could hope to be rid of in order to build a ‘democratic biopolitics’ (Prozorov, 2019; Schubert, 2019), everything in the functioning of biopolitics suggests that it just is the government of human beings through their differential exposure to the risk of illness and death.

Biopolitics essentially relies on statistics and probability, thus constituting a significant break vis-à-vis Medieval pastoral power or modern disciplines, which are both individualising, as Foucault (2007: 12, 128, 184) convincingly argues. By contrast, biopolitics relies on the distribution of probabilities and risk-benefit analyses – in other words, its rationality ignores the individual, or better, it addresses it only as a ‘case’. In his 1978 lecture course at the Collège de France, Security, Territory, Population, Foucault traces the emergence of the notion of case which, he argues, ‘is not the individual case, but a way of individualising the collective phenomenon of the disease, or of collectivising the phenomena, integrating individual phenomena within a collective field’ (Foucault, 2007: 60). Indeed, biopolitical governmentality does not care about each individual case, but addresses instead the overall distribution of cases within a given population. The analysis of such distribution along certain variables allows one to calculate the risk that each category of people (not necessarily each social group) is exposed to (the risk, for instance, of dying from COVID-19 infection), and since risks are not equal for every individual or group in every circumstance, biopolitical rationality develops the notion of ‘danger’ (Foucault, 2007: 61). For instance, during the COVID-19 pandemic, it was more dangerous to live in a city than in the countryside; it was more dangerous to be old than to be young; it was more dangerous to be a low-income worker who has to work in direct contact with other people than the CEO of a company who can schedule their meetings virtually, and so on. Yet this differential distribution of risks and dangers is itself the object of political choices. Not all individuals and groups who are in greater danger will be protected in the same way: some groups will be more carefully protected, while other groups will be exposed to even greater risks – the point here being to govern the population as a whole in the most effective way, not to equally protect each and everyone of its members.

This is the key to understanding why biopolitics is a normative notion. The distribution of risks among different individuals and groups within a given population has nothing natural to it. It relies, on the one hand, on the structure of society as such and the pre-existing social, economic, racial and gender inequalities that exist within it; and, on the other hand, it is the product of political choices made in order to manage the population as a whole with the tools available at any given moment, with specific political and economic objectives in mind, and with different incentives or pressures coming from different groups within society and whose voices matter in uneven ways. Consequently, biopolitical governmentality is indifferent to questions of social, racial or economic justice. It relies on and maintains the structural inequalities that are generated and sustained by our liberal and neoliberal societies, and it does not care about the social, political or economic reasons that make certain individuals and groups more vulnerable than others. Moreover, to manage the population as a whole, it necessarily produces and organises a system of differential exposure to the risk of illness and death – indeed, at bottom, it consists in such a production and organisation.

But why should this (bio)politics of differential vulnerability, and its indifference to questions of justice and injustice, be itself construed as a form of injustice? I will refrain from appealing to any universal or trans-historical principle of justice, and emphasise instead the contradiction that characterises our modern political rationality and the way(s) in which we are governed – both as citizens, that is, as subjects of rights and as living beings. On the one hand, biopower is supposed to protect the life of the entire population – to be as ‘biopolitically effective’ as possible. Yet, as I argued above, either it does not actually care about whose lives it saves and whose lives it sacrifices (because it relies on purely statistical calculations), or if it does, biopower actually reaffirms existing social, political and economic inequalities, so that in fact its aim becomes to save the ‘right’ lives while diminishing useless sacrifices to avoid social and political unrest. On the other hand, however, as citizens or legal subjects and not just living beings, our current normative framework endows all of us with equal dignity and rights that the state must recognise, protect and implement (United Nations, 1948: Article 1); more specifically, each and every one of us ‘has the right to life, liberty and security of person’ (United Nations, 1948: Article 3) and is entitled to this right ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (United Nations, 1948: Article 2). The tension between these two aspects of the way in which we are governed today is clear, and therefore, at a basic level, it is the normative framework of our own society that provides us with the resources to criticise biopolitical technologies of power as contradicting the right to life and security that we are all endowed with. As long as we are still (also) governed as citizens or subjects of rights, we can thus rely on the immanent contradiction that exists between biopolitical mechanisms of power and the protection of human rights to argue that the biopolitical production of differential forms of vulnerability is not only potentially dangerous or intolerable, but constitutes an injustice.

Towards a critical theory of biopolitical rights

The advantage of developing this kind of immanent critique of biopolitics is that it does not force us to positively endorse any specific normative framework, such as political or juridical liberalism: for my purposes, it is enough to show that biopolitics, defined as the government of human beings through the political production and organisation of their differential exposure to the risk of illness and death, stands in contradiction with the current normative framework characterising our society, and is therefore unjust according to it (see Honneth, 2023: 14). In this final section of my article, however, I take a step further and argue that a helpful strategic move at our disposal to limit the most pernicious effects of biopolitics consists in redefining some of the basic human rights in terms of ‘biopolitical rights’, and in elaborating a critical theory of biopolitical rights as a response to the current form taken by biopolitical mechanisms of power and their unjust production of differential forms of vulnerability.

As I argued above, biopolitical mechanisms of power systematically produce (and rely on) differential forms of exposure of individuals and groups to health, social and environmental risks, thus violating many people’s right to life and security – a right that our juridical framework endows every human being with. But there is more: this clash between the functioning and effects of biopolitics and the juridical framework currently characterising our society should not be construed as the clash between two completely independent elements. On the contrary, it can be argued that at least some of the basic human rights defined in the 1948 Universal Declaration of Human Rights are rights whose normativity stems directly from the biopolitical technologies that manage our lives under specific historical circumstances. In other words, we are endowed with those rights because our lives are concretely invested, produced and governed by biopolitical technologies of power, and thereby differentially exposed to various health, social and environmental risks.

In a paper published in 2014, Pheng Cheah (2014) argues that, to better account for the normativity of second- and third-generation human rights (i.e. economic, social and cultural rights), one must conceive of them as ‘biopolitical rights’. Here, Cheah draws directly from Foucault. Indeed, in the first volume of his History of Sexuality, Foucault emphasises the ironic fact that struggles against power in the last two centuries have taken the form of the defence of the rights of human beings as concrete living beings, even though these very rights – such as the right to life, to health, to the satisfaction of one’s basic needs, and so on – are actually nothing else than the juridical codification of human life’s capacities produced by biopower. Foucault writes:

[A]gainst this power that was still new in the nineteenth century [that is, biopower], the forces that resisted relied for support on the very thing it invested, that is, on life and human being as a living being. [ . . . ] [W]hat we have seen has been a very real process of struggle; life as a political object was in a sense taken at face value and turned back against the system that was bent on controlling it. It was life more than the law that became the issue of political struggles, even if the latter were formulated through affirmations concerning rights. The ‘right’ to life, to one’s body, to health, to happiness, to the satisfaction of needs [ . . . ] – which the classical juridical system was utterly incapable of comprehending – was the political response to all these new procedures of power which did not derive, either, from the traditional right of sovereignty. (Foucault, 1978 [1976]: 144–145; trans. mod.)

Thus, Cheah argues that the actual normative basis of these rights, many of which are now understood as economic, social and cultural rights, stems from the biopolitical technologies of power that produce and regulate human life. Indeed, drawing from Foucault’s genealogical account of the emergence of these rights, Cheah (2014: 227–228) shows that their normativity stems from the capacities and needs of individual bodies and populations as they have been fabricated by biopolitical mechanisms of power in the past two centuries – hence his suggestion to call them ‘biopolitical rights’. I would like to add that there is a connection between biopolitical rights and what Foucault calls the ‘rights of the governed’ (Foucault, 2001 [1977]: 361–365, 2014 [1981]: 266), that is, the set of rights that citizens possess because they are governed in a specific way: these rights are not grounded in an a-historical understanding of human nature, but derive their normativity from the specific mechanisms of power that invest the individuals and groups who are then entitled to (re)claim them.

In his book, Foucault and the Politics of Rights, Ben Golder convincingly shows that Foucault’s later engagement with the topic of individual and human rights does not entail a break vis-à-vis his analytic of power, nor is it the result of a purely contingent appropriation or a symptom of his alleged fascination with neoliberalism. Instead, the increased attention that Foucault pays to rights in the last years of his life constitutes a thoroughly worked-out contribution to an original way of conceiving of a ‘politics of rights’ (Golder, 2015: 3). Golder construes the latter as a ‘critical counter-conduct of rights’ (Golder, 2015: 5) that relies on the ambivalent function of law and rights in modernity: on the one hand, rights can actually ‘enlarge, expand or protect the sphere of action of subjects (as well as performatively bring new worlds and communities into being)’; on the other hand, and simultaneously, they ‘constitute those very subjects and communities in particular ways and hence reinscribe them within existing forms of power, often recuperating and domesticating the political challenges they might pose’ (Golder, 2015: 91). Foucault’s politics of rights points precisely to this ambivalence, emphasising individual and human rights’ capacity to produce both new spaces of freedom and new forms of subjection. The discourse of rights in Foucault’s (1997b [1984]: 282–283) later work can thus be considered as a tactical deployment and a strategic intervention aimed not at satisfying political demands within the extant liberal or neoliberal frameworks, but at implementing a series of contingent but indispensable ‘practices of freedom’. In short, Foucault conceives of rights as potentially useful critical instruments ‘immanent and not exterior to the field of political combat’ (Golder, 2015: 6).

My suggestion here is to (re)define some of the most fundamental human rights – and especially those I was referring to above, such as the right to life and security – in an analogous way: we are endowed with those rights because we are governed by (bio)power mechanisms that invest our lives, take our health and security in charge, shape and enhance our biological capacities, and so on. Thus, rather than as an a-historical datum, life should be conceived in this context as the product of mechanisms of power investing and reshaping a complex biological-social object, and the struggle over the equal protection of it in each and every individual as a ‘critical counter-conduct of rights’ opposed to the current functioning of biopolitical mechanisms of power. Talking about biopolitical rights instead of human rights would therefore allow us to explicitly conceive of those rights as strategic tools to counteract the differential vulnerabilisation of individuals and groups that has constituted an intrinsic aspect of the functioning of biopolitics for the past two centuries.

Conclusion

What I hope to have shown in this article is that construing biopolitics as a normative notion allows us to emphasise an immanent contradiction in our societies – in current political discourses and governmental strategies. Biopolitics, defined as a political rationality that produces differential forms of vulnerability as a means of governing individuals and groups, can thus be a helpful diagnostic and critical notion to be used to shed light on specific forms of injustice at play in our society. To fight against these forms of injustice, I suggested that we (re)conceive some basic human rights in terms of biopolitical rights, and we use them to make demands on governments when it comes to how we are concretely governed – both as citizens, that is, as subjects of rights, and as living beings. Of course, this is not enough: we also need to be inventive and create new normative frameworks if we want to radically oppose the most dangerous aspects of biopower – as I emphasised above by referring to Foucault’s idea of a critical ontology of ourselves. In the meantime, however, fighting to make sure that our biopolitical rights are more systematically implemented seems to be an effective strategic move that will hopefully help us avoid both the risk of the disciplinary dream – or nightmare – of a perfectly ‘immune’ society (Esposito, 2011 [2002]), and the biopolitical-eugenic dream – or nightmare – of a society that produces differential forms of vulnerability in order to get rid of the individuals and groups that are deemed expendable.