Animals, Biopolitics, Law

Lively Legalities

Irus Braverman, Irus Braverman

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317374046
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Typically, the legal investigation of nonhuman life, and of animal life in particular, is conducted through the discourse of animal rights. Within this discourse, legal rights are extended to certain nonhuman animals through the same liberal framework that has afforded human rights before it. Animals, Biopolitics, Law envisions the possibility of lively legalities that move beyond the humanist perspective. Drawing on an array of expertise—from law, geography, and anthropology, through animal studies and posthumanism, to science and technology studies—this interdisciplinary collection asks what, in legal terms, it means to be human and nonhuman, what it means to govern and to be governed, and what are the ethical and political concerns that emerge in the project of governing not only human but also more-than-human life.

Chapter 1

The Regulatory Life of Threatened Species Lists

Irus Braverman

[A]nimals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) suckling pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camelhair brush, (1) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies.

—Michel Foucault, The Order of Things, quoting from Borges’ “a ‘certain Chinese encyclopedia,’” p. xv

It is with the whimsy and wonder of the above quote that Foucault begins his great expedition into the order of things. “Out of the laughter that shattered,” Foucault says, “all the familiar landmarks of my thought—our thought, the thought that bears the stamp of our age and our geography—breaking up all the ordered surfaces and all the planes with which we are accustomed to tame the wild profusion of existing things, and continuing long afterwards to disturb and threaten with collapse our age-old distinction between the Same and the Other” (1970, xv). It is not incidental, I shall argue here, that Foucault began his study of order with the project of classifying nonhuman animals in the form of a list. The divide between the “human” and the “animal” is foundational for identifying and distinguishing “us” from “them.” As such, it provides the basis for the most fundamental classification of all—that between human and animal—and for the regulation of this classification through legal institutions that utilize listing technologies.

The age-old capacity of lists to make and resist order has become a topic of renewed attention as of late. A growing literature on lists describes their power to create and organize global connectivities (Staeheli 2012, 234), emphasizing their role in security regimes in particular (Amoore 2011; Leyshon and Thrift 1999). What has been overlooked in this wave of renewed attention, however, is the role of the list as a regulatory device for ordering human–nonhuman relations. This chapter will diverge from the anthropocentric focus of the existing literature on lists to explore the legal project of listing nonhuman species as “threatened” and “endangered.” “All kinds of things become more interesting once we stop assuming that ‘we’ are the only place to begin and end our analysis,” offer Hinchliffe and Bingham along these lines (2008, 1541). It is precisely toward such interesting valences around the seemingly dry and technical performance of the list that this chapter intends to direct attention. I will highlight the regulatory power of lists and their role in the grand project of ordering life: both human and nonhuman.

The last two decades have witnessed an explosion of national and global lists of threatened and endangered species (see, e.g., de Grammont and Cuarón 2006, 22). In 2010, at least 109 countries had produced a national red data book, national red list, or other national lists of threatened species (Miller 2013, 198) and more than 25 listing systems of threatened species were used across North America alone (2013, 192). The International Union for Conservation of Nature (IUCN) Red List for Threatened Species^TM (hereafter, the Red List) is the “mother” of all threatened species lists, the first and most comprehensive attempt at the global listing of all threatened species. According to a prominent IUCN official, for the last five decades, the Red List has provided “a map of how to do conservation” (Lamoreux, interview).

Drawing on my previous work on the biopolitical dimensions of the Red List (2015a; 2015b), this chapter will explore the more and the less visible regulatory frameworks for listing threatened species through the Red List. Such explorations illuminate a number of common themes between human- and nonhuman-focused lists: visibility, translatability, comparability, inexhaustibility, simplicity, flexibility, credibility, objectivity, neutrality, technicality, and contagion. At the same time, these explorations also illuminate some of the differences between human and nonhuman lists: whereas various security lists (such as the secret drone “kill list,” no-fly lists, and terrorist lists) identify humans who risk or threaten, threatened species lists typically identify nonhumans who are threatened.

The source of the differences between human- and nonhuman-focused lists is evident when examining them through a biopolitical lens: according to Foucault, only (certain) humans are privileged with political life. Animals and plants, along with all that is considered natural or wild, are relegated to the realm of biological life—namely, that which is killable. By contrast, this chapter applies the distinction between biological and political life also to the nonhuman context. Through their listing as threatened, certain species’ lives are elevated to a political status, while the rest (initially, at least, the unlisted) remain biological, or mere, life (Braverman 2015c). In other words, whereas the rule for nonhumans is biological life and the threatened list is the exception, the situation is reversed in the case of humans, where the general rule is political life, and the list exceptionalizes and reduces such life to the biological realm.

Threatened species lists are thus both biopolitical and regulatory technologies: they (re)produce and reinforce underlying species ontologies by creating, calculating, and governing the boundary between the human and the nonhuman. Indeed, alongside their reinforcement of the biopolitical differentiation between various nonhuman species, threatened species lists also distinguish human from nonhuman species. Such a differentiated treatment of the life and death of nonhuman species through their en-listing, down- and up-listing, multi-listing, and de-listing translate into the positive protection and active governance of such species. Listing threatened species thus becomes a way to affirm—and to justify—which lives are more and most important to save, thereby reifying the distinction between those who save (humans) and those who can only be saved (nonhumans).

Despite their significant differences, the bulk of this chapter will examine several aspects of the nonhuman list that are highly applicable in the context of the human list, too. This exploration will utilize an empirical and ethnographic methodology to illuminate characteristics of the list that travel across the human-nonhuman divide but that may not be as obvious or visible when observed only in the human context. I will start by introducing the list in general, and the Red List in particular, and will then proceed to examine the biopolitical aspects of the Red List as well as its global, regulatory, scientific, and seductive powers.

The List

The word “list” originates from border, edge, boundary (from Old High German lîsta; OED 2013), but it also means lust and desire, or inclination. Dating back to Old English from before the twelfth century, hlyst also means “to listen” (OED 2013). “List-making is frequently seen as one of the fundamental activities of advanced human society,” offer Bowker and Star (1994, 188), while Goody (1977) suggests that the first written records to exist were lists of kings and equipment. Belknap adds along these lines: “Lists have been used for varied purposes throughout history. Among other things, they serve to enumerate, account, remind, memorialize, order. Lists abound in various sizes, shapes, and functions” (2000, 40).

A grocery list, kill lists, sex offender lists, and lists of threatened species—all are consecutive configurations of discrete items linked by a common goal that assigns them meaning and functionality. Lists name, classify, document, and simplify; they aspire to comprehensiveness, comparability, consistency, and uniformity, and are structured to delineate boundaries, produce authority, and promote visibility. Making a list is a way of making something apparent (or heard, recall hlyst) that is not otherwise so. Related to and drawing upon these functions, certain lists also standardize and regulate. Whereas all lists rely on various forms of classification, effectively “sorting things out” (Bowker and Star 1999)—some also prioritize. With such lists, not only the listed items but also their particular order is significant. Threatened species lists are a good example of this dual function. Such lists also typically share the following characteristics: they are a scientific method for highlighting those species under higher extinction risk with the explicit or implicit goal of focusing attention on conservation measures designed to protect them (Possingham et al. 2002, 503; emphasis added).

The IUCN Red List of Threatened Species is by far the most influential and widely used method for evaluating global extinction risks. The IUCN has been producing red data books and red lists since 1963 (Lamoreux et al. 2003, 215). During the five decades of its use, the Red List of Threatened Species has evolved from a subjective expert-based system lacking standardized criteria to a uniform and global rule-based system (Miller 2013, 195; Mace et al. 2008). Despite (or as a result of) the insistence by many IUCN scientists on the Red List’s non-prescriptive and apolitical character (Hoffmann, interview), it has had a profound influence on conservation laws and practices around the world (Possingham et al. 2002; Rodrigues et al. 2006). Specifically, the Red List has inspired the development of numerous national and regional red lists and has functioned as an important source for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)—a powerful international convention on trade that determines whether and how commercial trade in certain species will be regulated. Why does the Red List have such enormous normative power, and how does it work in the world? To answer these questions, I will first explore the biopolitical properties of the Red List.

The Biopolitical List

Beyond their descriptive and declarative functions, threatened species lists normalize and regulate conservation and related actions; they also prescribe a series of material effects on specific animal bodies (Braverman 2015a). While recognizing these functions and their effects on the individual level, the power of threatened species lists emanates from their capacity to order life at the level of the biological species—what Foucault refers to as biopolitics (Foucault 1990). Thinking and governing through species regimes, and through compiling lists of threatened species in particular, enables both an abstraction—a grid over the Linnaean kingdoms (Foucault 1970)—and an embodiment: a personification of ecosystems, habitats, and populations. Since humans understand themselves primarily as an exceptional species and therefore both relate to, and differentiate themselves from, other species—it is important to critically examine the species lens and the work that it performs in the world.

For conservation scientists, the species is the foundational ontological unit through which life can be calculated and known (Braverman 2015c; Sandler 2012). Biermann and Mansfield reflect on the perspective of conservation experts that: “Managing individual nonhuman lives is meaningless in responding to the crisis of biodiversity loss; individual lives acquire meaning only when they advance the long-term well being of the broader population or are essential to sustaining key biological processes, especially evolution” (2014, 264). According to this way of thinking, the death of an individual gains meaning based on the level of endangerment of her or his species: once on the brink of extinction, the individual becomes larger than a singular life, and her or his death is therefore more than a singular death—it becomes the death of a life form, the death of nature (Braverman 2015c). Nonhuman life is measured numerically and valued according to its placement in the scheme of the threatened list.

At the same time, the deaths of so many other life forms who are not rare, charismatic, or visible enough to warrant the threatened designation fall outside the range of legal protections established by the list, or outside the list altogether. Such life forms are effectively “list-less”: incalculable, unmemorable, and thus killable. Toward the end of this chapter, I argue that the conservation value of a species is defined through its inclusion and ranking in an ever-proliferating number of lists and that the regulatory power of such lists is constantly eroded as new lists take their place in defining what is even more threatened, endangered, or extinct.

While much recent biopolitical work emphasizes thanatopolitics or necropolitics, this chapter brings into focus an affirmative biopolitics (Rutherford and Rutherford 2013, 426), namely “the ways in which biopolitics can be more about life than death, about inclusion rather than exclusion” (429). What happens to those listless lives that fall outside the realm of the threatened list does not configure into this account, which focuses instead on the viability of the listed. But such a focus on the affirmative does not entail a disavowal of death. Quite the contrary, “to make live does not mean to avoid death altogether but to manage death at the level of the population. In a biopolitical regime, death is transformed into a rate of mortality, which is open to intervention and management. This transformation erases the fact that not all life is equally promoted” (Biermann and Mansfield 2014, 259). I will discuss such erasures later, in the context of the scientific powers of the list.

The Global List

In its aspiration for a totalizing regime, the Red List illuminates the utility of the list form for furthering global classification schemes. “The IUCN Red List assesses the status of species at a global level because this is the scale at which extinction occurs,” explain Mace and other prominent architects of the Red List (Mace et al. 2008, 1437). Lists are not only a way of channeling communication flows; they also “do the global” in their work as boundary objects that operate across time and space in an attempt at universal standardization.

The Red List “does the global” in a number of ways. First, it produces simple and visible links between otherwise loosely connected species, geographies, temporalities, and risks. “A global list deals with the global by adding, combining, and possibly ordering items—without the obligation to create a totalizing signifier of the global” (Staeheli 2012, 234). The use of species as the foundational unit of threatened lists—effectively rendering them the “currency of conservation” (Lamoreux, interview)—is not only ideological, as emphasized earlier, but also pragmatic. Species are the most common, visible, and easily measured unit for assessing the state of biodiversity. The Red List’s visibility is an important factor in its global efficiency. Indeed, threatened species are “among the most visible and easily understood symbols of the rising tide of extinctions,” making them an “emotive and politically powerful measurement of biodiversity loss” (Miller 2013, 192; see also Wilcove 2010).

In addition to utilizing species units, the Red List’s visibility is enhanced through the list’s color-coded visualization of danger (the red list) and its clear topology of endangerment, as well as through its adoption of “catastrophe-governance” that focuses on raising alarm by identifying and quantifying threats and extinction (Aradau and van Munster 2011, 85–106). John Lamoreux of the National Fish and Wildlife Foundation is a member of the IUCN and actively engaged in the red list assessments. He argues that “birders are famous for making lists: you have to be able to see what you saw. There’s almost a listing mentality” (interview). Beyond these apparent functions, Lamoreux points out that the Red List is also important as a “rallying cry.” “As an organization, you know what you stand for if you make a list of what’s important,” he tells me. The Red List, and threatened lists more generally, are thus a technology for the identification, differentiation, and visualization of certain forms of life with the goal of mobilizing universal support and political and legal action that aim to prevent (certain) nonhuman extinctions.

To serve as an effective technology for mobilization, the Red List must be easily translatable into various contexts—a “pan-linguistic device” (Staeheli 2012, 240). Red List Unit Programme Officer Rebecca Miller focuses on the broad functionality of lists as she writes: “The principle aim of a threatened species assessment is to estimate a species’ risk of extinction in a comparable, repeatable, transparent, and objectiv...