When Guenther Jakobs introduced the concept of “enemy criminal law” (Feindstrafrecht), or enemy penology, into the legal debate, this was due to a concern with the increasingly anticipatory nature of criminalization in German legislation in the last decades of the 20th century. Against the backdrop of a series of terror attacks in the West and the ensuing debates on how to deal with the dangers and threats of the new millennium, Jakobs’s theory gained new momentum in Germany’s public discourse and beyond. As it seems, the author himself turned the concept into a device for political intervention, declaring the notion of the enemy as indispensable for dealing with certain extreme crimes and notorious offenders, not only to prevent future crime and avert harm from society but also, and most notably, to preserve the established “citizen criminal law” (Bürgerstrafrecht): the enemy is the one to be isolated and excluded from the system. Enemy criminal law may be a peculiar legal concept. The logic of enemy penology, however, leads us to some more fundamental insights into the conundrums of liberal political thinking and attendant legal conceptions. It requires us to think about the enemy as a liminal figure that points to the preconditions and the paradoxes of our legal system. The history of criminology attests to the discipline’s struggle with penal law’s inherent limitations. And if we live today in times where exception and rule, internal security and external security, and military and police concerns increasingly overlap and intermingle in the face of ever new threats, the notion of enemy penology helps us to critically reflect on the mechanisms that drive these transformations.
It has been an ongoing issue within generative linguistics how to properly analyze morpho-phonological processes. Morpho-phonological processes typically have exceptions, but nonetheless they are often productive. Such productive, but exceptionful, processes are difficult to analyze, since grammatical rules or constraints are normally invoked in the analysis of a productive pattern, whereas exceptions undermine the validity of the rules and constraints. In addition, productivity of a morpho-phonological process may be gradient, possibly reflecting the relative frequency of the relevant pattern in the lexicon. Simple lexical listing of exceptions as suppletive forms would not be sufficient to capture such gradient productivity of a process with exceptions. It is then necessary to posit grammatical rules or constraints even for exceptionful processes as long as they are at least in part productive. Moreover, the productivity can be correctly estimated only when the domain of rule application is correctly identified. Consequently, a morpho-phonological process cannot be properly analyzed unless we possess both the correct description of its application conditions and the appropriate stochastic grammatical mechanisms to capture its productivity. The same issues arise in the analysis of morpho-phonological processes in Korean, in particular, n-insertion, sai-siot, and vowel harmony. Those morpho-phonological processes have many exceptions and variations, which make them look quite irregular and unpredictable. However, they have at least a certain degree of productivity. Moreover, the variable application of each process is still systematic in that various factors, phonological, morphosyntactic, sociolinguistic, and processing, contribute to the overall probability of rule application. Crucially, grammatical rules and constraints, which have been proposed within generative linguistics to analyze categorical and exceptionless phenomena, may form an essential part of the analysis of the morpho-phonological processes in Korean. For an optimal analysis of each of the morpho-phonological processes in Korean, the correct conditions and domains for its application need to be identified first, and its exact productivity can then be measured. Finally, the appropriate stochastic grammatical mechanisms need to be found or developed in order to capture the measured productivity.
Despite scholarly disagreements over the meanings of both the rule of law and emergency, there is broad agreement that emergencies often invite and justify departures from the formal requirements and substantive values identified with the rule of law as a normative ideal. It is often argued that strict adherence to existing laws, which are typically enacted during periods of normalcy in order to prevent arbitrary forms of rule associated with tyranny, could inhibit the government’s ability to respond quickly and effectively to the often unexpected and extraordinary challenges posed by an emergency such as war or natural disaster. Consequently, the temporary use of extraordinary measures outside the law has been widely accepted both in theory and in practice as long as such measures aim to restore the normal legal and political order. However, understandings of the tension between emergency and the rule of law have undergone a significant shift during the 20th century as emergency powers increasingly get codified into law. The use of extralegal measures that violate the formal and procedural requirements of the rule of law is still considered a dangerous possibility. However, as governments have come to rely increasingly on expansions of power that technically comport with standards of legality to deal with a growing list of situations characterized as emergencies, there is concern that extraordinary exercises of power intended to be temporary are becoming part of the permanent legal and political order.
Biopolitics, unlike other conceptual rubrics such as psychoanalysis, Marxism, or the subaltern, does not contain a singular theoretical origin. While Michel Foucault is often cited as the progenitor of contemporary biopolitical thought, a number of other theorists and philosophers have also been credited with significantly shaping its critical lineage, from Hannah Arendt to Giorgio Agamben, Roberto Esposito, and Achille Mbembe. By extension, the relation between biopolitics and Asian America is an open-ended one, insofar as no one set of theoretical terms or axioms grounds this relation. Moreover, insofar as biopolitics in its widest sense encompasses the intersection of politics and life, including the inverse of life, its domain is potentially infinite. The conjunctions between biopolitics and Asian America, then, can be defined tactically through the following questions: what are some prominent motifs and concerns within Asian American history, culture, and scholarship that may be illuminatingly narrated within a biopolitical framework? Conversely, how have Asian American writers and scholars themselves analyzed these nexuses, and in what directions have they developed their inquiries? Finally, what does an Asian Americanist criticism bring to the study of biopolitics? These questions can be usefully pursued via three thematics that have formed core concerns for Asian American studies: orientalist exoticism and exhibitions of the Asian body, associations of the Asian body with pollution and disease, and structures of US governmental power over Asian bodies and populations. Asian Americanist criticism has often centered on analyses of the body as a site for the production of racial difference, whether or not they explicitly adopt a biopolitical theoretical lexicon. What Asian Americanist engagements with biopolitics bring to biopolitical thought is a spotlighting of intersectional politics—the insight that the politics of life never simply operates in relation to abstract bodies but always occurs within power economies of race, gender, sexuality, class, nationality, and other forms of social difference and stratification. Conversely, biopolitical theories allow Asian Americanist criticism to develop in multiple new directions, from medical humanities and disability studies to science and technology studies, from animal studies to post-human feminisms, from diaspora studies to surveillance studies. Ultimately, an ethical impetus and an orientation toward justice continue to animate Asian Americanist critical practices, which hold out the promise of a positive biopolitics within prevailing paradigms of negative biopower.
Oliver W. Lembcke
The core of Giorgio Agamben’s political theory is his analysis of the ambivalence of politics and its ill-fated relationship with law. The key figure of this relationship, the biopolitical product of it, is the homo sacer, a figure that dates back to ancient Roman law. For Agamben, the homo sacer is the perfect manifestation of the sovereign power that has created this figure by banning it as an outlaw who can be harmed or even killed with impunity—all in the name of law. Agamben’s political theory aims at revealing the inherent logic of the sovereign power and its effects in determining the legal subjects of law (inclusion) and, by the same token, in imposing the pending option of separating these very legal subjects (or parts of them) from the legal order (exclusion). According to Agamben, this “exclusionary inclusion” illustrates not only the logic of biopolitics but also the destructive power of sovereignty that has accumulated the capacity to “form life” at its own interest by binding politics and law together. Historically, this kind of sovereignty has ancient origins, but politically its real power has been unleashed in modern times. For Agamben, homo sacer has become the cipher of modern societies, regardless of the manifold differences between democratic and autocratic political systems; and for this reason, he has dubbed his central project in the field of political theory Homo Sacer. Agamben started his Homo Sacer project with his widely received study, programmatically of the same title, in 1995. Much of what he has written in the years after can be interpreted as elaborations of the impact and consequences of the juridification of politics that he despises so much. For him, contrary to modern constitutionalism’s understanding, juridification is not a process of civilizing the political order; it produces ready-made legal instruments at the disposal of any sovereign anytime. Therefore, according to Agamben, it is a myth, typically told by proponents of liberal democracy, that law has the power to constrain sovereignty; instead, it enables sovereignty. Against this background, it does not come as a surprise that Agamben connects with a wide range of critics of the liberal concept of democracy and tries to make use of their arguments for his own project. For instance, Agamben shares the concept of biopolitics with Foucault but understands it (unlike Foucault) as a general phenomenon of law and politics; moreover, he borrows from Carl Schmitt the theory of the state of exception while transforming it into a permanent structure turning all humans into potential homines sacri; and picks up on Hannah Arendt’s analysis of the concentration camps during the Nazi reign, stressing that the scope of sovereign power is almost unlimited, especially if it is based on an impersonal reign of arbitrariness and uncertainty that enable the production of forms of bare life that can hardly be called human anymore. Taken together, Agamben presents a radical critique of the history and development of the political orders from the Greek origins to modern-day democratic governance. Is there any reason for hope? In some of his studies after the State of Exception (original, 2003), Agamben picks up on this topic, at least indirectly. In The Kingdom and the Glory (2011), for instance, he deals with the industry of hope by discussing the distribution of labor within the holy trinity as the blueprint for the interplay between active, powerful parts of government (governing administration) and the passive, symbolic parts of it (ruling sovereigns). However, this interplay, with the help of “angels” (bureaucrats), produces only spectacular (but empty) glorification for the purpose of self-justification. The cure, if there is any, can only come from a radical detachment that liberates politics from law and, moreover, from any meaningful purpose, so that politics can become a form of pure means: a messianic form, inspired by Benjamin’s idea of divine violence, that has the power of a total rupture without being violent. Following Benjamin, Agamben envisions a “real” state of exception in which sovereignty becomes meaningless. Agamben’s Homo Sacer project has triggered various forms of criticism, which can be divided roughly into two lines of arguments. The first line is directed against the dark side of his theory that all individuals are captured in a seemingly never-ending state of exception. Critics have claimed that this perspective results mainly from Agamben’s strategy of concept stretching, starting with the concept of the state of exception itself. A second line of critique questions Agamben’s concept of politics beyond biopolitics. Because his argument is rather vague when it comes to the prospect of a future political process, it has been suspected that his ideas on the alternative options compared to the current disastrous state of affairs are ultimately apolitical ideas of the political, based on the nonpolitical myth of a fully reconciled society. Despite of these kinds of criticism Agamben has insisted that liberation from the ongoing process of biopolitics will not be brought about by revolutionary actions, but by subversive thinking. Agamben notes that in this messianic concept everything will be more or less the same—“just a little different” (Agamben, 2007b, p. 53). And the difference that he seems to mean is that the potentiality is not determined by the sovereign any longer, but by the individual.
Kerry A. Chase
Government policies to protect and promote national culture are a perennial issue in the trading system. Controversy over trade and culture, in almost every instance, swirls around entertainment media—mainly movies, television, video, and music. The object of contention is that many states employ an assortment of financial, trade, and regulatory measures to subsidize locally produced entertainment, restrict imports, and favor national content over foreign content. Such measures often impede trade, pitting commercial interests in open markets and free choice against calls for state action to mitigate trade’s social repercussions. Differing perspectives on the motives behind these policies typify disputes over trade and culture. In one view, state regulation of entertainment media is cultural policy, an essential means of preserving a nation’s identity, culture, and way of life. From another vantage point, these policies are backdoor protectionism, a handout to local business and labor under the guise of cultural preservation. The problem of trade and culture therefore raises basic questions about politics: Why do states subsidize production and restrict imports? What drives political demands for trade protection and government aid? How can variation in policy responses be understood? In the World Trade Organization (WTO), disputes over trade and culture center on two related issues. The first is inclusion of a “cultural exception” in trade rules to green-light, on cultural grounds, state actions that interfere with trade in entertainment media. Although there is no cultural exception in the WTO, pressure to accommodate the “specificity” of entertainment media as a cultural phenomenon has complicated trade negotiations and at times required give and take to placate the opposing sides. The second issue is policy liberalization in entertainment media, which has lagged behind market opening in many other goods and services. Deadlock over trade and culture has inspired some WTO members to explore other options: the European Union (EU) and Canada spearheaded the push for a Convention on Cultural Diversity, and the United States has pursued policy liberalization in a series of free trade agreements. Important political questions again crop up: Why has culture stalemated the WTO, and why haven’t trade linkages like those for health safety standards been institutionalized for trade and culture? Why do international political alignments on this problem form as they do? What explains the design of trade rules for entertainment media, and what is the trade regime’s impact on state policy? The age-old conflict over trade and culture continues to play out and shows no signs of abating.
Copyright exceptions and limitations in the United States have experienced dynamic evolution in light of new technological developments. There has been significant legal debate in the courts and in the United States Congress about the scope of the defense of fair use. The copyright litigation over Google Books has been a landmark development in the modern history of copyright law. The victory by Google, Inc., over the Authors Guild in the decade-long copyright dispute is an important milestone for copyright law. The ruling of Leval J emphasizes that the defense of fair use in the United States plays a critical role in promoting transformative creativity, freedom of speech, and innovation. The Supreme Court of the United States was decisive in its rejection of the Authors Guild’s efforts to challenge the decision of Leval J. There has been significant debate in the United States Copyright Office and United States Congress over the development of “the Next Great Copyright Act.” Hearings have taken place within the United States Congressional system about the history, nature, and future of the defense of fair use under United States copyright law. There remains much debate about the internationalization of the defense of fair use, and the need for the trading partners of the United States to enjoy similar flexibilities with respect to copyright exceptions. There has been concern about the impact of mega-regional trade agreements—such as the Trans-Pacific Partnership—upon copyright exceptions, such as the defense of fair use.