The following is the second of a three-part series. The first can be found here.
The Nomos of Being Human: Body and Flesh
The above descriptions of nomos encapsulate general sociological, political, economic, and legal structures of order, distribution, governance, and normativity. While interpretations of nomos drawing from Schmitt, Arendt, Lazzarato, Foucault, and Vatter provide a useful set of concepts around modern politics, economy, and law, what is missing is a conception of nomos that is able to account for the specifically racial, gendered, and colonial aspects of modernity and its “descriptive statements” of the human.
While the figure of the human is certainly in the background of these descriptions, especially in terms of Foucauldian accounts of shifting epistemological productions of the subject, traditional readings of nomos tend to view “the human” a kind of deracialized and homogenous object that is placed within a particular political, economic, and legal nomos. Following Wynter’s sociogenic principle, however, if the social order always carries within a specific descriptive statement and concomitant “imperative of human experience,” nomos will necessarily be grounded in a particular knowledge and praxis of being human that cannot be separated from its broader political, economic, and legal measures and distributions.
What Wynter’s writing make clear is that any modern “nomos of the earth” must also be understood as a “nomos of being human.” In her account of the colonial, racial, and capitalist production of the figure of the human in modernity, she shows that “human being” is produced by and cannot be separated from its entanglement with various power-knowledges of gender, religion, politics, economics, and juridical forms. To be human, or rather, to be made human, is to be imbricated with systems of power that together produce the human as an object of nomos.
Tracing Wynter’s genealogy of Man, the modern western nomos of being human is assembled in three historical movements correlating to three successive power-knowledges of human existence. First, by way of western European Christianity’s foundational universalization of itself as the one true religious identity vis a vis all other “pagan” or “idolatrous” faiths; second, through the European humanist revolution spanning the 15th through 18th centuries that posited a single rational human subject whose universal authenticity was reflected in the political order of a Christendom-cum-secular Europe and its colonial territories; and third, through the late 18th and 19th century revolutions in the biological science and economics that produced a fully “biocentric” and biopolitical understanding of the human and its evolution-produced racial hierarchy managed and ordered by the immutable laws of the liberal and neoliberal market economy.
What happens in Man’s tripartite ascendency to its self-created throne of colonial sovereignty over the “discovered” worlds of west Africa and the Americas is that the multiplicity of genres of being human that populate the earth are violently subsumed into a single descriptive statement that imposed a vision of universally normative rational, political, economic, and biological human existence. Through this process, the colonial relation between white European Christians and their subordinated others were naturalized into a global racial nomos of being human measuring out and distributing the species into fully human, not quite human, and non-human.
The knowledge of racial order occurs within the ongoing history of colonial modernity’s founding stories of exploration, conquest, and domination. European Man’s insatiable appetite for territory, both real and psychological, and its self-appointed right of appropriation and domination are natural outgrowths of its claims of Christian universality and its God-ordained mission of converting the world into, first, “one Christian flock,” and second, a secularized global capitalist economy. If the earth and everything in it has been made to the measure of European Christianity, and if there is a single figure of authentic humanity that is realized in European Man, then the modern nomos of being human is fully organized around the fantasy of Man’s absolute sovereignty over the earth and all forms of life within it.
Such a fantasy is most intensely worked out and performed within modernity’s most primal colonial and biopolitical dispositif: racial slavery. Generally ignored or relegated to a secondary history in critical theory and biopolitical thought, the order of racial slavery functions as a “measure of all measure” for colonial Man and its nomos. Emerging as a profoundly productive world-making institution spanning multiple spheres, racial slavery provides modern Man a unified constellation of wealth production and trade, cultural and religious discourses, and a biopolitical imagination foregrounding the fact that Man’s story of a singularly authentic human being and its global order rests on a brutal and paradoxical founding distinction between the biological life of the slave and the human life of Man with all of its cultural, economic, legal, and political qualifications.
The production of the slave as bare life is both an operation of Man’s identity constitution and one of control and exploitation. Man-as-the-human also produces the non-human, and the outside is always already on the inside. While Agamben’s biopolitical formulation of the included exclusion of bare life has provided a key theoretical platform from which to conceive the west’s regime of political sovereignty, it has failed to see the site of racial slavery as a crucial model of the “biopolitical nomos” of modernity and therefore has fundamentally misunderstood how the modern racial nomos of being human rests as the touchstone of the global order of western politics and economy.
Discussing the traditional erasure of racial slavery from genealogies of modern biopolitics, usually through the foregrounding of the Holocaust as the key threshold of bare life’s “zone of indistinction,” which is a zone ostensibly bereft of racial signifiers, Alexander Weheliye writes, racial slavery, by virtue of spanning a much greater historical period than the Shoah, and, more importantly, by not seeming as great an abnormality both in its historical context and in the way it is retroactively narrativized, reveals the manifold modes in which extreme brutality and directed killing frequently and peacefully coexist with other forms of coercion and noncoercion within the scope of the normal juridico-political order. This is what invents the homo sacer as homo sacer, for bare life must be measured against something, otherwise it just appears as life; life stripped of its bareness, as it were.”
The measurement of bare life against the fully human life represented paradigmatically in the white male slave owner provided the formal poles of a racial nomos of being human that was neither remarkable nor scandalous in its own context. The slave was simply not conceived as a human being and therefore could neither lose its humanity nor ascend to its representational position. Its existence was coded only as a living and yet disposable object that could be used and discarded without any obligation to a qualified humanity.
In her seminal essay, “Mamas Baby, Papas Maybe: An American Grammar Book,” Hortense Spillers describes the symbolic racial order of New World slavery built on the deracination of African human beings through their “thingification” into a “being for the captor.” While there are significant points of resonance between Spillers’ theorization of this racial nomosand Agamben’s zone of indistinction, the difference is that hers is a thoroughly enfleshed and historicized conceptualization of the material processes through which a human life stripped of all meaningful social and political qualifications is produced.
While Agamben tends toward an abstracted, disembodied, and deracialized figure of the homo sacer, Spillers shows “how bare life is transmitted historically so as to become affixed to certain bodies” through “the visual, fleshly distinctions that comprise the nexus of racialization and/as bare life.” In contrast with Agamben’s ancient Greco-Roman framework of zoe and bios, Spillers’ distinction between the flesh and the body serves a more precise and materially grounded analysis of Man and its subordinated others. Within the middle passage and the plantation, two entirely normative sites of the longue durée of colonial modernity, the flesh is conjured as that antecedent element upon which bodies are produced as the referent of modern “personhood.”
A body is a material effect of power arrangements, a self-possessed legal, political, gendered, and economic unit. Bodies can be counted and represented, fit into constructed categories of identity. Bodies find their being by marking a (self-referential) distinction against the flesh, which, for Spillers, is not a biological category inherent in living beings, but rather a kind of social and material threshold (the “zero degree of social conceptualization”) emerging through the violence of discursive and political dispositifs. The flesh, in this way, is also a sociogenic category. Or, to be more precise, the flesh is the observed materiality from which the sociogenic production of a body is extracted. Such an operation occurs as the base of a whole range of socio-cultural production and assemblage, creating the conditions for various points of identity and meaning.
Within this framework, gender marks a particularly important site for the flesh/body relation. “The body,” as Judith Butler describes, is a “mode of enacting and reenacting received gender norms which surface as so many styles of the flesh.” While gender norms and other markers of normativity are a crucial part of Man’s sociogeny, they remain bodily categories given to those qualified to exist in a transcendent relation to the flesh, however minimally this means for certain bodies. In colonial modernity’s nomos of being human, it is the slave that marks the real and precise threshold of distinction between body and flesh, gender and sex.
As Spillers argues, the nomos of the New World is founded on “high crimes against the flesh,” enacting a “theft of the body—a willful and violent … severing of the captive body from its motive will, its active desire. Under these conditions, we lose at least gender difference in the outcome, and the female body and the male body become a territory of cultural and political maneuver, not at all gender-related, gender-specific.” In this theft, the territory of the flesh is brutally conjured and appropriated through the “calculated work of iron, whips, chains, knives, the canine patrol, the bullet,” creating a “distance between … a cultural vestibularity and the culture, whose state apparatuses, including judges, attorneys, ‘owners,’ overseers,’ and ‘men of God,’ apparently colludes with a protocol of ‘search and destroy.’”
What remains in this transformation is a life reduced to sheer use, spanning across economic, political, and social spheres; the living object of the slave becomes a source of sensual pleasure as its racial status as “black body” signifies the sheer availability of its flesh to the master without the need for consent. In the middle passage, gendered African bodies, informed by entirely different sociogenic genres of being human from the one they were being violently thrust into, are transformed into sheer male or female flesh, flattening out or outright annihilating the gendered distinctions that give these anatomical sexual differences cultural meaning and sociogenic “symbolic integrity.”
As Spillers describes, the gendered African female body is stolen and thrust into an ungendered status of “unprotected female flesh” excluded from the “female body in western culture.” While this egregiously violent ungendering within the context of American slavery does not necessarily mean that “gender” is a descriptive category totally denied to black people, the operation of ungendering as a key part of the transformation of bodies into flesh remains a constitutive aspect of Man’s sociogeny. This is born out, for example, in the remarkably mobile and fungible categorizations of black genders and sexualities (as “so many styles of the flesh”) that do not fit into Man’s normative gender configurations.
As Weheliye puts it, “black people appear as either nonhuman or magically hyperhuman within the universe of Man, black subjects are imbued with either a surplus (hyperfeminitity or hypermasculinity) of gender and sexuality or a complete lack thereof (desexualization).” It is around these productions of abnormal gender and sexualities that an otherness is established as the environmental reference of Man’s sociogenic systems of racial identity and normativity. Flesh (in particular, black flesh) is that which is at the same time violently banned from the identity-culture-genre of Man’s range of bodily identities while providing its key constitutional outside, without which there is no inside. This logic of the included exclusion permeates all spheres of Man’s operations. Flesh is the unity of distinction, the “ether that holds together the world of Man.”
If Man’s sociogenic distinction of body/flesh produces a nomos of real master-slave relations, there is also always a contingency escaping its enforcement. Man produces the slave as flesh, but Man’s control does not exhaust the possibility adhering within it. This has to do with the limitations of any power-system, not least those within the biopolitical frame, which can never be exhaustive of all the fleshly elements and contingencies that make up the system’s targeted living environment. Power, as Foucault describes, is “blind and weak,” and the “grounding force” that makes possible modes of domination is not found on the side of the system but rather on the antecedent side of its target.
The flesh not only grounds the brutal operations of Man’s desire for universality and total mastery, it also names the site in which new forms of life strive for actualization through the flesh’s “motive will,” its resistance against that which targets it. “When power becomes biopower,” Deleuze tells us, “resistance becomes the power of life.” As the “zero degree of social conceptualization,” the flesh is living possibility itself. Man obtains and harnesses this possibility by producing power-knowledges that both feed off the flesh while policing and preventing it from escaping its nomos of governance. To these ends, legal, political, economic, and religious apparatuses of control are produced toward the end of maintaining the distinction between Man’s own human body and the flesh of the slave through its reproduction of the fiction that the slave does not and cannot possess the rational and biological capacities ascribed to the fully human.
This brutal enforcement, however, poses a point of danger to Man, as the flesh remains an aleatory counter-force that can never be totally controlled precisely because if this were the case it would eliminate its living potential for production. Much like the neoliberal logic of the market creating the space in which “normative life” can be harnessed and set loose toward a productive end, the life of the slave, as the original and baseline object of productive life totally subsumed into economy and thus stripped of all political qualifications, must be given at least minimal conditions of movement, rest, nourishment, and contact with others. This is an important point for pinpointing Man’s biopolitical nomos in terms of its relation to economic production.
Despite the undeniable necropolitics of the plantation, one could say that the slave was firstly not within a power relation of “making die and letting live,” to use Foucault’s terminology for political-juridical sovereign power, but rather a biopolitical one of “making live and letting die.” In other words, unlike the classic biopolitical examples of genocide, in which killing was the first objective, the slave was not something that the slave master had a vested interest in killing, even though this was so often the outcome and even though the sovereignty of the master did hinge upon his “right to kill.” As Saidiya Hartman describes in Lose Your Mother,
impossible to fathom was that [all the death within Atlantic slavery] had been incidental to the acquisition of profit and to the rise of capitalism. Today we might describe it as collateral damage. The unavoidable losses created in pursuit of the greater objective. Death wasn’t the goal of its own but just a by-product of commerce, which has had the lasting effect of making negligible all the millions of lives lost. Incidental death occurs when life has no normative value, when no humans are involved, when the population is, in effect, seen as already dead. Unlike the concentration camp, the gulag, and the killing field, which had as their intended end the extermination of a population, the Atlantic trade created millions of corpses, but as a corollary to the making of commodities.
If the death of slave bodies is simply a by-product of economic commerce, it is the flesh that signifies the general and desired substrate that the master really is after and against which individual slave bodies are measured and calculated. The economic nomos of racial capitalism is firstly invested in harnessing and making productive the biopower of an abstracted and general sphere of living potential that is racialized (and therefore measurable and distributable within a racial hierarchy of being) through its application to particular bodies.
This is where the flesh marks a threshold or liminal space between death and living potential, between absolute abjection and an always present opening toward an unrealized possibility. Because the flesh always eludes absolute and total control, there is always a living remainder. While Man pathologizes this remainder as a threat to its nomos, as Weheliye notes, “Spiller’s conceptualization of flesh shines a spotlight on slavery’s alternate passages to the formation of bare life. In other words, the flesh is not an abject zone of exclusion that culminates in death but an alternative instantiation of humanity that does not rest on the mirage of western Man as the mirror image of human life as such.”
The flesh, then, provides an alternative ground for conceiving human life not as a noun, and not as a universal position standing above the realm of enfleshed particularity, but as a verb, as the “insurgent ground” upon which a “radically different text” of being human might be written within a given nomos of identity and power.
The contingency of the flesh gets us back to autopoiesis. Looking at the distinction between what Maturana and Varela call the autopoietic system’s organization and its structure, we find a parallel with Spillers’ body/flesh distinction that allows us to conceptualize an aleatory opening in which the flesh moves in and out of the sociogenic nomos. As Maturana and Varela describe, while organization “denotes those relations that must exist among the components of a system for it to be a member of a specific class,” structure “denotes the components and relations that actually constitute a particular unity and makes its organization real.”
If the identification of an object’s organization as a specific type is a “basic cognitive act, which consists no more and no less than in generating classes of any type” (i.e. what sociogeny does), it is the object’s structure that makes it a material reality. Here we would find Spiller’s conception of the body as signifying the sociogenic system’s autopoietic organization of its necessary relations. In the case of Man’s body, Man-as-the-human is organized around the unified relations of free/slave, Christian/non-Christian, rational/irrational, evolutionarily selected/deselected, and other distinctions of identity/non-identity.
Man’s body is a transcendent, phantasmal body that both feeds off the flesh as its constitutional source while producing the theodical fantasy that it can remain immune from its aleatory contaminations of the flesh. Yet within the organization of Man’s sociogenic nomos there is a whole material substrate of actual living flesh, which, as Cary Wolfe describes, “obtains at the level of ‘structure,’ opening the autopoietic unity to the flows of energy and organic material that both sustain [the body-organization] and potentially threaten it.” The flesh is the structural threshold against which the possibility of Man’s organizational fantasies of universality find their limits and are exposed to structural contingencies that keep it open to both new manifestations as well as the possibility of its own destruction.
Wynter would call this the “demonic ground” of forms of life emerging within the liminal spaces of Man’s present governing and symbolic system of meaning. For every attempt to fully capture it through bodies of governance, the flesh keeps the body open and thus leaves it available for new assemblages and contingent relations. While in a different, more post-humanist key than Spiller’s and Wynter’s trans-humanistic concept of the flesh, Roberto Esposito makes a very similar move in pointing out that the flesh is the element that actually defers the possibility of the individual body as it marks a common unity of difference between each and every living being.
The flesh is “nothing but the unitary weave of the difference between bodies. It is the non-belonging, or rather the intra-belonging which allows what is different to not hermetically seal itself up within itself, but rather, to remain in contact with the outside.” In this sense, flesh is the material of a kind of virtual intra-being that is the condition of any connection, the materialiality of a generalized “living common” marking an aporia for all systems of bodily identity: as the body is produced in the distinction with the flesh and by the attempted enclosure and control of it, it opens the possibility of the production of new forms of life in resistance to such attempted closure.
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.
 Wynter, “Towards the Sociogenic Principle,” 31.
 Alexander Weheliye, Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human (Durham: Duke University Press, 2014), 24.
 Weheliye, Habeas Viscus, 38.
 Ibid., 37.
 Hortense Spillers, “Mama’s Baby, Papa’s Maybe: An American Grammar Book” Diacritics Vol. 17 no. 2 (1987), 67; “thingification” is Aime Cesaire’s term from Discourse on Colonialism (New York: Monthly Review, 2000), 42.
 Weheliye, Habeas Viscus, 38.
 Judith Butler, “Sex and Gender in Simone De Beauvoir’s Second Sex,” Yale French Studies 72, (1986), 48.
 Spillers, “Mamas Baby,” 67.
 Ibid., 68.
 Weheliye, Habeas Viscus, 40.
 Maurizio Lazzarato, “From Biopower to Biopolitics,” Pli 13 (2002), 104.
 Gilles Deleuze, Foucault (Minneapolis: University of Minnesota, 1988), 92.
 Saidya Hartman, Lose your Mother: A Journey Along the Atlantic Slave Route (New York: Farrar, Straus, and Giroux, 2007), 31.
 Weheliye, Habeas Viscus, 43.
 Spillers, Mamas Baby, 80.
 Humberto Maturana and Fransico Varela, Tree of Knowledge: The Biological Roots of Human Understanding (Bolder: Shambhala, 1992), 47.
 Ibid., 43.
 Cary Wolfe, Before the Law: Humans and other Animals in a Biopolitical Frame (Chicago: University of Chicago Press, 2012), 50.
 Wynter, “Beyond Miranda’s Meanings: Un/silencing the ‘Demonic Ground’ of Caliban’s Women,” in Carole Boyce Davies and Elaine Savory Fido, eds., Out of the Kumbla: Caribbean Women and Literature (Trenton: Africa World Press, 1990), 356.
 Roberto Esposito, Immunitas: The Protection and Negation of Life (Cambridge: Polity Press, 2011), 141.