Antinomian Flesh, Part 1 (David Kline)

The following is the first of a three-part series.

In this essay I explore the idea of what I call an “antinomian flesh.” Looking to the concept of nomos theorized by sociologists, political and legal theorists, and biopolitical thought, I argue for a broad understanding of nomos encompassing the spheres of religion, politics, law, economy, and normative descriptions of the human. Following the work of Sylvia Wynter, Hortense Spillers, and various theorists of an enfleshed “poetics,” I suggest that any modern “nomos of the earth” must also be understood as a “nomos of being human.”

By engaging Spillers’ distinction between body and flesh within colonial modernity’s nomos of being human (or as Wynter calls it, “Man”), I also argue that the flesh not only grounds the brutal operations of nomos, it also names the site in which new forms of life strive for actualization through the flesh’s resistance against that which targets it. Both before nomos and therefore its condition of enactment, the flesh is theorized as the antinomian material undercurrent of living resistance that adheres in every apparatus of capture.

The Sociogenic Principle and Nomos

The production of western Man is an act of transcendence, a world-making story about origins and essence that has taken on the power of self-evident Truth. We all live in the world of Man to varying intensities depending on our racial, gendered, or class position, and its global power is manifest in the fact that we are completely conditioned to internalize and believe that no matter our desire or attempt to make a difference, there is no alternative of a different world. Riffing on a famous phrase usually attributed to Fred Jameson, for many of us it is easier to imagine the literal end of the world than the end of the capitalist, white supremacist, and anti-black order of Man, the description of the west’s (first Christian, and then “secular”) figure of human being and its accompanying philosophical, political, economic, scientific, and institutional categories that overdetermines itself as if it were the human being itself.

As Sylvia Wynter has theorized it, Man’s overdetermination was in part implemented by Western intellectuals through a secularizing process in which the west’s theo-centric and explicitly Christian mode of being human was reinvented through the new “descriptive statement” of rational and biocentric modern Man.[1] By “descriptive statement,” which she gets from Gregory Bateson, Wynter is alluding to a systems theoretical framework in which “autopoiesis,” or self-creation, is the key category for understanding the evolutionary emergence of diverse forms of life, of which human forms are referred to as “genres of being human.” Since their evolutionary emergence during the upper-paleolithic period, complex human societies, or social systems, have spread out over the earth and manifested in highly diverse forms of these autopoietic descriptive statements.

Each genre of being human produces its own “reality” through the same processes of autopoiesis while creating distinct and relatively autonomous forms of life through particular languages, rituals, kinship and gender systems, political orders, and other forms of social organization and meaning. Self-organizing and self-regulating, autopoietic systems create themselves by way of themselves; they produce “the elements that they interrelate by the elements that they interrelate,” as Niklas Luhmann describes.[2]

 Like all other forms of life, human beings are subject to autopoietic processes of biological (re-) production and evolutionary adaption and development. But while biological evolution is an essential aspects of human existence, and while non-human animals certainly possess social capacities, it is cultural production that makes the specifically human difference of world-making and highly complex forms of social ordering.

Drawing from Franz Fanon’s phenomenological observation that “alongside phylogeny and ontogeny there is also sociogeny,” Wynter identifies a “sociogenic principle” that foregrounds the governing force that society and culture have on the development and enforcement of human consciousness and behavior.[3] She describes the force of sociogeny as “law-like,” but it might as well just be “law”: human beings experience their self-referential and recursive social and cultural realities as if they were of the same determinative power as biological and evolutionary laws of autopoietic organization.

Human beings are born into a certain social world that, as far as their experience goes, simply is the world. Human beings experience the social need to fit into their given worlds of meaning and order the same way they experience the biological need for oxygen. Just like the air we breathe, our social worlds are taken for granted because our sociogenic constructions make it simply inconceivable to think that “reality” could be arranged in any other way.

Another way to describe the sociogenic principle is to link it to the concept of nomos. Nomos has been interpreted in many ways, ranging from a sociological category of general human order to a specific political-juridical category with etymological roots in ancient Greek conceptions of political community, economy, and law. In The Sacred Canopy: Elements of a Sociological Theory of Religion, sociologist Peter Berger elaborates the former and defines nomos in similar terms to Wynter’s sociogenic principle. Nomos is “a meaningful order … imposed upon the discrete experiences and meanings of individuals.”

Spanning linguistic, religious, institutional, economic, and political spheres that “nominize” activity and impose a given order of distinctions and relations, nomos names the basic social reality that gives meaning and stability to an otherwise chaotic environment. Language itself, as Berger notes, is the foundational form of nomos that imposes “differentiation and structure upon the ongoing flux of experience,” allowing for the possibility of saying “this” and not “that.” On this foundation, an ordered world of meaning and knowledge is created and expanded so as to capture and account for ever broader areas of activity.[4]

To deny or seriously transgress the order and boundaries of the social reality is tantamount to denying being itself and to work against the grain of the universe. “Nomos and cosmos appear to be co-extensive,” Berger notes, “whatever the historical variations, the tendency is for the meanings of the humanly constructed order to be projected into the universe as such.”[5] 

Religion plays an important role for the production of nomos in this sociogenic sense. Stories of cosmic transcendence, of Gods and other “extra-human agents of determination,”[6] are the wellspring of nomosas they provide powerful mechanisms of creating an order that is utterly taken for granted because assumed as divinely given. Niklas Luhmann’s systems theoretical account of religion as the social sub-system that produces a point of transcendent observation of immanence gets at this religious nomos. Religion is a powerful social system able “to transfer infinite burdens of information into finite ones,”[7] providing a “contingency formula” that allows for the indeterminacy of an ultimately unobservable universe to be made determinate and observable.

Origin stories and salvation myths ground societies in a nomos of social reproduction and predictability, providing a powerful and stabilizing mechanism to account for environmental “perturbations” to the social system’s normative order. Social theodicies are built on the experience of positing a distinction between the social system and its (self-referential) outside environment that poses a threat to the health and stability of the community and therefore must be managed and controlled. Religious distinctions between ultimate good and evil, for example, provide powerful codes for the social system’s identification of “others” that pose potential threats to its form of life.

Every social system produces its own self-referential environment of “chaos” against which it articulates and justifies its identity. As Berger notes, “nomos is an edifice erected in the face of the potent and alien force of chaos. This chaos must be kept at bay at all cost.”[8] Here we find a kind of socio-religious “immune system” that operates around the “master code of symbolic life (the name of what is good) and death (the name of what is evil).”[9] In producing this distinction and developing mechanisms of its enforcement and reproduction, the specific form of life and its grounding stories and myths are secured against any other that would threaten their coherence.

Nomos and Political Economy   

If nomos signifies this kind of general social and religious order of sacred boundaries and meaningful codes of life and death, it is also deeply (and more familiarly) connected to law and politics. In its original Greek meaning derived from neimen (“to distribute”), nomos signifies a deeper and antecedent force of separation and distinction that makes possible a political community. Just as language and religion impose differentiation and structure upon the “flux of experience,” nomos imposes division and order on the earth and life itself.[10]

Nomos is conceived as that which makes possible a political existence beyond the bare necessities of mere biological survival, constituting conditions of social order, distribution, and deliberation. The appropriation of land as territory and resource is the original act that makes this possible. Emile Benveniste locates the ancient Greek meaning of nomos as referring to “pasture land which has been shared out according to customary law ... The meaning of nomós ‘the law’ goes back to ‘legal apportionment.’”[11] In The Nomos of the Earth, Carl Schmitt describes nomos as  “the first measure of all subsequent measure … the first-land appropriation understood as the first partition and classification of space … the primeval division and distribution.”[12]

As the measure by which land is cut up across political, social, and religious spheres, nomos is the “immediate form in which the political and social order of a people becomes spatially visible.”[13] Working with this same etymology and genealogy, in her discussion of the distinction between public and private realms in The Human Condition, Hannah Arendt frames nomos around the relationships between order, distribution, and dwelling within a city-state. Nomos is a kind of originary boundary line that separates the public sphere from the private, political life (bios politikos) from the economic life of the household. Arendt points out that in ancient Greece, this boundary line was conceived as the literal space between dwellings that upheld the distinctions of public/private and political/economic through an imposed spatial order.

In contrast to certain modern understandings of the term that equate it with positive law, nomos was neither legislation nor a legal catalogue of prohibitions; it was “quite literally a wall, without which there might have been an agglomeration of houses, a town (atsy), but not a city, a political community.”[14]

Nomos, then, is the general law—a “law of law”—of an established spatial division that makes possible a political identity standing above the economic sphere of biological necessity. Both realms are conditions of the city, of the political community, but must be separated in their specific functions. As the spacial threshold that holds the two sides together, nomos produces a wedge down the middle of life, bifurcating it into the politically qualified versus the merely living (“bios” vs. “zoe,” or “political life” vs. “bare life” in Giorgio Agamben’s famous formulations).

For Arendt, it is the former that is the mark of specifically human life in distinction from all other living beings. Bios is essentially a sociogenic account of life that translates its into a coherent story, giving measure and meaning to what otherwise would simply be part of the undifferentiated sphere of natural phenomena. It is “mere” biological life that has been a problem for political thought. Biological life is the source of political life and therefore must be both protected by and excluded from the political realm: “this wall-like law was sacred, but only the inclosure was political. Without it a public realm could no more exist than a piece of property without a fence to hedge it in; the one harbored and inclosed political life as the other sheltered and protected the biological life process of the family.”[15]

The last part about protecting the family is an important qualifier, and as so much work in biopolitical thought has demonstrated, it is the sphere of mere biological life, even beyond the family or household, that marks the threshold of the political’s violent inclusions and exclusions. As Agamben’s classic formulation of bare life’s haunting of modern sovereignty shows, the figure of homo sacer is the one simultaneously banned from the politically qualified community of full human beings while also being included as the political’s constitutional referent. Caught in a “zone of indistinction” where political and bare life fold into each other, biological existence comes to signify the ever-present risk of being exposed to the state’s sovereign decision to strip life of the law’s protections, able to be killed, just like any non-human animal, without it being considered murder.[16]

While Schmitt and Arendt foreground and prioritize nomos’ relation to political constitution, for many scholars it is precisely the privileging of economy that has shaped the nomos of late modernity. Following Schmitt but through a Marxist framework, Maurizzio Lazzarato frames nomos within a capitalist and neoliberal framework and defines it as a process of economic capture, division, and production. “The three concepts of nomos,” as he puts it, “are contained in and encompassed by what is called economy, the sphere of differentiation which one would prefer remain distinct from politics.”[17]

It is primitive accumulation, or appropriation as an economic act, Lazzarato argues, that defines nomos’ original conditions for ownership and law: “what is acquired through conquest, discovery, and appropriation must be measured, counted, and divided.”[18] Whereas in the pre-modern period this was undertaken as “plunder” and land appropriation, modernity’s economic nomos has consisted of “industry appropriation” and is undertaken on a global scale that substitutes for the old land-based national sovereignties.[19] Schmitt knew this well in his own reactionary way, lamentably characterizing the modern “nomos of the earth” as the “non-state sphere of economy permeating everything: a global economy.”[20] For Schmitt, the global fall into economism and liberal “rule of law” neutralizing the power of the sovereign decision had meant the collapse of the European cosmopolitan and colonial order of relative peace held together around legitimate political conflict into a free-for-all of competing global class interests.

Without a nomos centered on political legitimacy and the power balance of equally sovereign state entities, the global economic blurring of nation-state boundaries had led to a situation where “reversions to civil war” are always right there below the surface of liberal and democratic discourse.[21] Also known as “neoliberalism,” it is this nomic eclipse of the political by the economic that has been the defining feature of the late modern capitalist world order. In this neoliberal global order, “society” is conceived primarily as an economic reality and targeted as a living organism that must be controlled and harnessed towards economic productivity.

Nomos, Autopoiesis, and Biopolitics

Michel Foucault’s genealogy of biopolitics in the lectures collected under the titles Security, Territory, Population and The Birth of Biopolitics illuminates this modern nomos of liberal and neoliberal economy as deeply tied to the emergence of a “governmentality” that has eclipsed the old order of medieval sovereignty. As Foucault is commonly interpreted, governmentality seeks to substitute the market and “the norm” (as social regulation) for the paradigm of sovereignty as the “legal command.”

In contrast to sovereignty, governmentality operates not primarily around the law as an arbiter of justice but through political economy where the market and its natural production of order exemplifies the site of truth for all governmental practice. It is the market’s “role of veridiction that will command, dictate, and prescribe the jurisdictional mechanisms, or absence of such mechanisms, on which [the market] must be articulated.”[22] While this substitution of market for law is often posed in terms of Foucault’s focus on norms at the exclusion of attention to positive law, Miguel Vatter argues that Foucault’s genealogy should actually be read in terms of a recovery of the category of nomos that holds together the two sides in a kind of productive tension.[23]

Vatter interprets biopolitical and neoliberal nomos as one that “integrates the sphere of law into the sphere of order” as the basis of a biopolitics that targets the body (individual and collective) as a living organism by imposing a normative order upon it meant to control and harness it, or, in Foucauldian terms, “make it live.” Foucault, drawing on Canguilhem, defines the norm within this frame as the form of social regulation conceived precisely around the idea of biological normativity, which is to say, an autopoietically regulated distinction between the normal and the pathological.[24] The neoliberal nomos gathers law, order, and life under this autopoietic distinction, framing it in terms of an internally regulated body of norms.

The norm, Foucault writes, seeks “an ordered maximization of collective and individual forces,”[25] amounting to a “biologization of the law,” or the “modeling of law onto the internal normativity of [autopoietic] life, which gives rise to the phenomenon of a ‘civil society’ that appears ‘self-regulated’ and thus endowed with a ‘nature’ of its own.”[26] In this way, the neoliberal nomos is consistent with its original meaning of appropriation and spacialization, now with a biological and autopoietic inflection of natural and self-regulating order rooted in the appropriation of life itself toward a normative order.

Here, the (neo)liberal “rule of law” is not so much about prohibition or even legislation, but rather providing an ordered economic space (i.e. the market) in which life as autopoietic normalization can be placed. “Neoliberalism,” Vatter writes, “is impossible without this creative reappropriation of the idea of nomos or substantive ‘normative order.’”[27]

Within this biopolitical and neoliberal frame of the economic cultivation and normalization of life itself, the immunitary function of nomos takes on a particularly important discursive role. An immune system is a mechanism that responds to a system’s encounter with its environment, identifying that which poses a risk to the system’s autopoiesis. Immune systems reject, manage, or filter anything foreign to the internal elements and processes essential to the system’s nomos. In Donna Haraway’s “The Biopolitics of Postmodern Bodies,” she outlines how immune system discourse has deeply shaped modern politics and the individualization of liberal subjectivity.

In modern pluralistic societies, the figure of the immune system dominates the contemporary social and political imagination as a paradigmatic model for managing difference. As she puts it, “the immune system is an elaborate icon for principal systems of symbolic and material ‘difference’ in late capitalism” and is a “plan for meaningful action to construct and maintain the boundaries for what may count as self and other in the crucial realms of the normal and the pathological.”[28] Discourses of immunity produce conceptual, political, medical, and legal boundaries that measure and distribute the proper against the improper, that which belongs and that which does not.

Consider, for example, the extent to which the massive proliferation of surveillance, security, and policing in the contemporary state reflects a fear-based political response to a growing perception of an uncontrollable and dangerous outside world made up of everything from the specter of the AIDS virus (and, more recently, the COVID-19 virus) to the endless influx of non-white refugees and immigrants penetrating American border states to the proliferation of forms of organized anti-racist and anti-capitalist resistance. What is feared above all else within these contexts is not so much the basic reality of these “threats” (they will always exist, they are already here) but rather their proliferation to the point of an uncontrollable dispersion throughout the whole of the “proper” political community. Here, political sovereignty is articulated as a political body that has clearly demarcated borders of identity that face an outside world of danger increasingly seen as encroaching its nomos.

Rather than fully eradicate its threats, however, nomos rests on the immunitary principle of taking in the very thing it excludes in order to manage it. This is where the distinction and distribution of the political and economic comes in, firmly maintaining the boundary between the constituted political community and the economic sphere that provides for the needs of its biopolitical life. For example, consider the contradiction between the American politics of “illegal, undocumented” workers, which rests on a general political demonization and exclusion of such people as threats to American security and identity, and the economics of those same workers, which rests on the widely held acceptance that without them the American economy would basically collapse.

The economics of undocumented laborers provides the means to maintain the nomos of American political order as well as provide a kind of immunitary easing of the threat that illegal immigrants pose to the politics of representation and governing power. As long as these political outsiders (who are also inside) remain politically excluded and controlled by their economic necessity, all the while providing the economic sustenance of the true and qualified life of the political community, the risk they pose is both manageable and further productive towards maintaining its order of distinctions.

David Kline is Lecturer in American Religion and Modernity in the Department of Religious Studies at the University of Tennessee, Knoxville. He is the author of Racism and the Weakness of Christian Identity (Routledge, 2020). He holds a Ph.D. from Rice University.

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[1] Sylvia Wynter, “Unsettling the Coloniality of Being / Power / Truth / Freedom: Towards the Human, after Man, Its Overrepresentation—An Argument” CR: The New Centennial Review, no. 3, (2003), 263-264.

[2] Niklas Luhmann, “Society, Meaning, Religion” in Essays on Self-Reference (New York: Columbia University Press, 1990), in Essays in Self-Reference, 145

[3] Franz Fanon, Black Skin White Masks (New York: Grove Press, 2008), xv; Sylvia Wynter, “Towards the Sociogenic Principle: Fanon, Identity, the Puzzle of Conscious Experience, and What it is like to be ‘Black’” in National Identities and Socio- political Changes in Latin America, Ed. Mercedes F. Durán-Cogan and Antonio Gómez-Moriana. (New York: Routledge, 2001).

[4] Peter Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion (New York: Anchor, 1990), 19.

[5] Ibid., 25.

[6] Wynter, “Unsettling the Coloniality of Being,” 273. 

[7] Niklas Luhmann,  A Systems theory of Religion (Stanford: Stanford University Press 2013), 105.

[8] Berger, Sacred Canopy, 24.

[9] Wynter, “Unsettling the Coloniality of Being,” 287.

[10] Nomos originally derives “from nemein, which means to distribute, to possess (what has been distributed), and to dwell. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 64 n. 62

[11] Emile Benveniste, Indo-European Language and Society (Miami: University of Miami Press, 1973), 69.

[12] Carl Schmitt, Nomos of the Earth: in the International Law of the Jus Publicum Euroaeum (New York: Telos Press, 2003), 68.

[13] Ibid., 70.

[14] Arendt, Human condition, 64.

[15] Ibid,, 64.

[16] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998), 6.

[17] Maurizzio Lazzarato, Governing by Debt (South Pasadina: Semiotext(e), 2013), 48.

[18] Ibid.,  48.

[19] Ibid., 49.

[20] Schmitt, Nomos of the Earth, 235.

[21] Schmitt, Nomos of the Earth, 246; also see Liane Tanguay, “Governmentality in Crisis: Debt and the Illusion of Liberalism” symplokē , Vol. 23, No. 1-2, Posthumanisms (2015).

[22] Michel Foucault, Birth of Biopolitics, Lectures at the College de France, 1978-1979 (New York: Picador, 2010), 32 (brackets in text).

[23] Miguel Vatter, The Republic of the Living: Biopolitics and the Critique of Civil Society (New York: Fordham University Press, 2014), 200.

[24] Ibid., 198.

[25] Michel Foucault, Vol. 1 (New York: Vintage, 1990),, 24-25.

[26] Vatter, Republic of the Living, 206.

[27] Ibid., 213.

[28] Donna Harraway, “The Biopolitics of Postmodern Bodies,” in Simians, Cyborgs, and Women: The Reinvention of Nature (London: Routledge, 1990),204.

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