ABSTRACT
Implied in this dispute is a fundamental question about late modern conceptions of the relation between law and life. The strongest and most principled argument against denialism is that it violates the right to life of poor people living with HIV/AIDS (Achmat 2004: 76-84). This argument remains imperative today – moral law obliges us to offer it in our own voice – yet it also entails a very definite risk. The claim to the right to life, when lodged in opposition to denialism, amounts to a claim to a right to have access to the means of health (or, more precisely, to antiretroviral treatments capable of supplementing the body’s immune system). This claim implies a specific concept of life, namely, that an intact immune system is a bare necessity of life itself. This concept of life is, in turn, adjacent to the main premise of human rights discourse, namely, that the preservation of human life is, at root, a sacred duty. To be immune is not only to be safe and sound, unscathed by any damage; it is also to be inviolable, sacrosanct, holy. Immunity marks the limit at which religious salvation and biological good health become indistinct (Derrida 1998: 49-51, 69-70, 72-3). But just as the concept of sacred human life is less the antidote to the sovereign power to kill with impunity than that power’s most productive biopolitical principle (Agamben 1998: 83), so too does the paradigm of immunity expose the right of life to its opposite. Insofar as claims to the right to life remain modeled on the right of immunity, those claims risk not only recapitulating but also capitulating to the principles of the same institutions of sovereign power that today so liberally exercise the power to let die. This risk may only be a risk, in that it is not an inexorable inevitability. But its fundamental status requires us to think carefully about the way in which we understand the theories and practices of civil disobedience that have characterized the struggle for access to HIV/AIDS treatments; and its adjacency to the problem of homo sacer obliges us to raise a number of questions that press the limits of contemporary human rights discourse. Is there a way to understand struggles over the right to life that would not be grounded in, modeled on, or derived from the privileges of sovereign power? What kind of living, and what kind of politics, might be at stake when the identity of life and immunity can no longer be presupposed?
