Habeas corpus e pluribus unum

Abstract This paper examines the legal-political subject that is called forth by habeas corpus and the biopolitical terrain that it assumes as both precondition and task.

Habeas corpus (meaning: 'you shall have the body') has been routinely associated with the defence of individual rights against the right and force of the state. In austere legal terms, a writ of habeas corpus obliges the presentation of the body of the detained before the court, so that the court might ascertain the legality of that detention. It is commonly regarded as an index of the distinction between democracy and tyranny.

Habeas corpus has featured prominently in court cases relating to the internment of undocumented migrants by the Australian Government and those incarcerated by the US Government in Guantanamo Bay. As habeas corpus has unravelled in the course of those proceedings, as attempts to give it effect have become more compelling, it--along with similar codifications of rights that are customarily associated with it--has assumed an exemplary political status beyond the courts.

That is, beyond the anticipated proposals from self-declared liberals for a more ample application of habeas corpus, a palpable sense of catastrophe--which is to say: the so-called 'War on Terrorism,' the seemingly endless war in Iraq, and the ever-widening scope of Australia's concentration camps--has, perhaps not surprisingly, prompted others to resort to similar prescriptions. For instance: Judith Butler has called for an extension of the Geneva Convention to recognise 'non-state' actors; Antonio Negri and Michael Hardt have called for a new Magna Carta; and recent Mayday events in Europe emphasised the need for a more adequate code of rights for precarious, immaterial and undocumented labour.

However, the initial and important question to be asked here is precisely how those writs of habeas corpus have thus far been rendered inoperable. For instance, how did the Australian Government evade the legally successful writ of habeas corpus when its commandos took those aboard the Tampa hostage? In each case, the jurisdiction of the courts has been "found wanting". Given that inoperability, the question becomes: precisely what do calls for the expansion of rights such as habeas corpus facilitate?

Exploring the subsequent and related questions that arise from this is the main focus of this paper. Questions such as: What subjects are being composed (or decomposed) here? What diagrams of action, work, resistance, sovereignty and jurisdiction are being assembled and disassembled? What is the relationship between the increasing preponderance of precarious, immaterial and undocumented forms of labour and calls for habeas corpus to have a more expansive and satisfactory reach? What are the protean but nevertheless tangible historical coincidences of the habeas corpus of jurisdiction, the habeas mentis of General Intellect, the habeas mutatis of 'flexible production systems', the habeas data of cyberspace? What kind of body--indeed, what kind of life--is being summoned before the court, and what might this court look like? In the course of this paper, the works and concepts of various Italian writers--such as Agamben, Negri, Bologna, Lazzarato, Berardi--will be used to bring to the fore what is at stake in those writings and in discussions around them, considering them for, but also beyond, their theoretical appeal.

I’d like to begin by posing a couple of questions. What is jurisdiction and how is it changing? And: What are the forms of subjectivity that are elicited in the process?

These two questions underscore what is at stake in considerations of habeas corpus and its current troubles. So, what is the current predicament of habeas corpus, that ‘Great Writ of Liberty’ as it has been called since Blackstone? To put it as briefly as possible: while this ‘Great Writ of Liberty’ has featured prominently in almost every legal proceeding relating to the internment camps and so-called Border Protection, it has yet to deliver anything that might look remotely like, well, liberty.

Which is not, for a moment, to identify the circumstances of a legal writ with the situation of those who are interned. It is, I think, a condition of radical practice and theory to not invite a confusion of the two, the identification of bodies with and through the law’s apprehension of them, or rather: of us. That way lie too many disasters. To put it more acutely: this paper is, in one sense, an argument against the law’s apprehension of us, including what ‘us’ or ‘we’ might mean.

Because in confronting what may well seem to be a state of permanent war, a normalisation of a state of emergency, the rapid erosion of protections against the arbitrary powers of the state in the so-called War on Terror—there is simply no way to calculate the extent of this injustice, and nor should there be—in this terrible context, it becomes all too easy to assume that justice can be served by the law and that our task is therefore to serve the cause of the law, its more adequate or sufficient elaboration.

Franco Berardi has spoken eloquently on another occasion of “panic war”, of the ways in which this panic produces the aspiration for the return to the general rule, that the greatest danger in this panic is the militarisation of the intellect. This return to the general rule and the militarisation of the intellect can take many forms. E pluribus unum, which translates as ‘from the many into the one’ is not simply the motto of Hobbesian sovereignty, although it is that as well. But more on that later.

To return to habeas corpus: As Agamben argues, habeas corpus is not at all the guarantor of freedom it is assumed to be in liberal-democratic politics. Rather it is, the presentation of the body before the court—the staging of the law’s authority to decide in relation to that body, in relation to life—that is put to work in the procedural writ of habeas corpus.

What habeas corpus ratifies in its procedures is jurisdiction. Whether it results in the release of people from internment—which has yet to be the case—or not, it is jurisdiction that is at issue, and the recognition of bodies therein. Jurisdiction refers not simply to the scope or reach of the law’s authority, as is well-known, but also to the declaration that constitutes this authority. It’s no coincidence I think that in discussing the processes of interpellation, the processes by which people are rendered into and recognised as subjects, Althusser opted for a scene in which a cop yells, ‘Hey, you there!”

In other words: juris-diction is also the language—the diction—of law and of right, of juris. To put it another way: it is the language through which power is translated into law. The monopolisation of violence by the state—its constitution—becomes established as norm, habit.

Consider the events around the Tampa. While the Australian court upheld the writ of habeas corpus, the Australian Government and military rendered that decision obsolete. That is, less than 48 hours prior to the Court’s judgement, those aboard the Tampa had been moved to a military vessel, removed from Australian territorial waters and thereby beyond the jurisdictional reach of the courts.

Therefore, for much of this period—let’s say between 1989 and 2003—habeas corpus has been rendered inoperable by a discrepancy between the law and the military. During that time, US Courts have routinely ruled against writs of habeas corpus, in their terms, “for want of jurisdiction.” The same has been the case in Australia, given particular effect by the so-called “Pacific Solution,” the excision of parts of the continent from the migration zone, and so on.

That is, an inconsistency between violence and norm. That inconsistency has come about not because of some inherent tendency on the part of states toward extra-legal violence—although that tendency exists and is inherent. Rather, it has come about because prior structures of nation-states (and the international system erected during the Cold War) have been rendered insufficient to the task of controlling the movements of people by the extent and scope of those movements since the late 1970s.

In any case, that discrepancy is now in the process of being surmounted, and it does not bode at all well.

Before going into that, it might be useful at this point to indicate just how important inconsistency has been in the exercise of habeas corpus as a protection, as well as in the very possibility of asylum, refugee policy and so forth. To be very clear on this point, this is not the same kind of discrepancy just noted, that between violence and law. But it is a discrepancy nevertheless which takes the form of a conflict over and between jurisdictions.

Habeas corpus gets its reputation for being a “writ of liberty” from those historical occasions when it functioned as an expression of conflicts between Kings and barons, or between different levels of jurisdiction. Asylum too emerges in the context of a conflict between Church and State; leaving aside the fact that the very possibility of flight is premised on there being different jurisdictions. Without these conflicts, neither habeas corpus nor refugee provisions function as the possibility for flight, let alone the chance at freedom. Without such conflicts over jurisdiction, these policies become, as has been the case since the end of the Cold War and with the ‘War on Terror,’ a device in the organisation of labour markets. The particular form of the Tempororay Protection Visa is but one example of this device.

But, as mentioned, those inconsistencies are already in the process of being overcome. The most recent instance of this is, of course, the ruling by the High Court that it is perfectly legal to keep people in indefinite detention. The law has indeed caught up with violence, and far from resulting in any increase in protections against that violence, it has instead normalised it. Contrary to William Pitt, tyranny does not begin where law ends. Rather, tyranny becomes normalised where it becomes codified as law.

Given this, calls by Judith Butler for the inclusion of “non-state actors” in the Geneva Convention, or those by Antonio Negri and Michael Hardt for global citizenship are not simply dubious, but actually and politically redundant.

Extensions to the scope of recognition or citizenship are nothing other than arguments for the extension of jurisdiction, if not simply for the diffusion of a juridical subjectivity whose precise corollary is that of abstract labour.

First, it is all too easy to render the processes of internment, border policing and war according to a motif of inclusion-exclusion. But this is really not what happens. As Sandro Mezzadra has argued with regard to Fortress Europe: “policies on migration, despite their rhetoric, do not aim to hermetically seal … borders. Their objective, and their effect, is the establishment of a system of dams and eventually the production of an active process of inclusion of migrant labour by means of its criminalisation.”

Secondly, the reach of particular states has already extended well beyond the putative territorial borders of those states. For instance, the Australian Government has “airport liaison officers” around the world, as well as Just-In-Time paramilitary squads, bureaucratic and legal personnel running other states in the Pacific and South Asia. Not to mention the extent and scope of similar arrangements by US and European Governments, or the rise of a militaristic humanitarianism which has already resulted in the conjunction of a global juridical rights discourse with violence on a global scale.

And thirdly, all of the above and more besides, indicate something broader on the horizon. As noted before, E pluribus unum—from the many to the one—is not simply the motto of a Hobbesian sovereignty, although it will likely be most familiar as that. In this motto resides the whole limit-point of political philosophy—Plato, Rousseau, Hobbes, Spinoza, Hegel. The problematic, as it is construed here, is in one sense quite simple: how to unify multiplicity?

More often than not, the particular answers given to this question are deemed worthy of criticism only to the extent that they deploy a project of unification based on homogenisation or transcendence. Most of us here are well-acquainted with a critique of those, and rightly so.

But e pluribus unum does not simply circulate as political philosophy. In its more common manifestation it circulates as the slogan on US dollar, the de facto global currency.

Which is to raise, in quite explicit terms, the fact that capitalist forms of subjectivity—and subjection—do not require recourse to either a transcendental plane or homogeneity to function. Money unites, in its fashion, through the general rule of abstraction, measure, calculability.

Capitalism operates through, as Deleuze and Guattari argued, the axiomatic, the “differential relation between abstract and quantitative flows.” Capital produces an indifference to and abstraction of concrete labours, the qualitative differences between the creation of this or that. This synthetic-pluralism is perpetually flexible. Codes can be added and exploited in an infinite categorical and innovative expansion. This is the very meaning of a flexible production system.

This is the micro-physics of the multitude, of immaterial labour—in their subjection. It is time to take some distance from Negri’s fantasies about the multitude which present it as a better, more adequate vanguard, replete with its own destiny in global citizenship as if this amounts to freedom. There is nothing destinal about freedom, as Jean-Luc Nancy has pointed out. It is always about physics, the movements of bodies.

The citizen-commodity is cynical and opportunistic, but that ability to circulate cynically and opportunistically is safeguarded by reworking the distinction between public and private space. Antagonism is deemed impolite, ruled out by procedures which privatise difference, rendering its intractable moments as being ‘beyond the pale’. Flexible productions systems allow for competition, but not antagonism. Antagonism draws attention to the rules of relation, exchange and communication through which the market operates. Competition abides by those rules.

As Augusto Illuminati wrote some time ago: “the individuation of the citizen-individual brought about by the rights State, the rule of law, … administratively distributed legality so as to reintegrate the underprivileged classes within the fiction of a guaranteed community in exchange for renouncing the virtual subversiveness of difference.”

The absolutisation of democracy which Negri and Hardt propose—and which Sylvere Lotringer has called (in the introduction to Virno’s Grammar of the Multitude) their “strategic embrace of Empire”—expresses nothing more than the universalisation of abstract labour in its globally juridical form. In this global factory, antagonism cannot be nurtured by a habitatution to or aspiration for the general rule, recognition or inclusion. Divested of its critique of capital, money and the wage form, celebrations of the common risk being nothing more than consolatory forms of belonging, a temporary respite, if not simply another idealised and idyllic version of the marketplace which apparently functions with neither violence nor exclusivity. Human capital plus the internalisation of the law as habit.

Panics are of no help here. Panics promote the etatisation of subjectivity, in one form or another. As Augusto Illuminati also wrote, “after the excesses of the emergency, one goes back to work, better than before.” Autonomy, if it is taken to mean a project rather than somewhere—like a brand name—one has already arrived at, means the rigorous subtraction of time, energy and affect from wage work, antagonism to the forms of subjectivity that the capital-labour relationship gives rise to. Without this, the ‘War on Terror’ will continue to be mirrored by panics that find temporary refuge in the juridical, in the desire for a justice which is always calculable and therefore inherently unjust—and the terrorism of money will continue.

Angela Mitropoulos Paper given (with thanks to Aren Aizura) at Italian Effect: Radical Thought, Biopolitics, Cultural Subversion (Sydney) September 2004

Note: this is a companion piece to "Habeas Corpus"here.

1. Italian Effect Conference 2. Franco Berardi on Panic War 3. Sandro Mezzadra on citizenship in motion 4. Jean-Luc Nancy 5. Augusto Illuminati on Unreprepresentable Citizenship 6. Antonio Negri and Michael Hardt on a new Magna Carta 7. Brett Neilson on Giorgio Agamben’s latest book, State of Exception 8. Sylvere Lotringer / Paolo Virno 9. Judith Butler, The Nation (2002)