severe and painful for subjects. Less often, experiments were also conducted on
limb transplants, cellular inflammations, and so on.
5.2. Reading the testimony of VPs who survived, in some cases the testimony
of the very subjects described in the extant records, is such an atrocious experi-
ence that it is very tempting to consider the experiments as merely sadocriminal
acts with no relation to scientific research. But unfortunately this cannot be
done. To begin with, some (certainly not all) of the physicians who conducted
the experiments were quite well respected by the scientific community for their
research. Professor Clauberg, for example, who was responsible for the steril-
ization program, was the inventor of the “Clauberg test” on progesterone ac-
tion, which was commonly used in gynecology until a few years ago. Professors
Schröder, Becker-Freyting, and Bergblöck, who directed the experiments on the
potability of salt water, enjoyed such a good scientific reputation that after they
were convicted, a group of scientists from various countries submitted a petition
to an international congress of medicine in 1948 so that these scientists “might
not be confused with other criminal physicians sentenced in Nuremberg.” And
during their trial, Professor Vollardt, a professor of chemistry at the University
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129
of Frankfurt, who was not considered to have sympathies for the Nazi regime,
testified before the court that “from the scientific point of view, the preparation
of these experiments was splendid”—a curious adjective, if one considers that
the VPs reached such a level of prostration in the course of the experiment that
they twice tried to suck fresh water from a rag on the floor.
What is decisively more disquieting is the fact (which is unequivocally
shown by the scientific literature put forward by the defense and confirmed by
the expert witnesses appointed by the court) that experiments on prisoners and
persons sentenced to death had been performed several times and on a large
scale in our century, in particular in the United States (the very country from
which most of the Nuremberg judges came). Thus in the 1920s, 8oo people held
in United States prisons were infected with malaria plasmodia in an attempt to
find an antidote to paludism. There were also the experiments—widely held to
be exemplary in the scientific literature on pellagra—conducted by Goldberg on
twelve prisoners sentenced to death, who were promised the remission of their
penalty if they survived experimentation. Outside the United States, the first
experiments with cultures of the beriberi bacillus were conducted by R. P. Strong
in Manila on persons sentenced to death (the records of the experiment do not
mention whether participation in the experiment was voluntary). In addition,
the defense cited the case of Keanu (Hawaii), who was infected with leprosy in
order to be promised pardon, and who died following the experiment.
Confronted with this documentation, the judges were forced to dedicate
interminable discussions to the identification of criteria that might render sci-
entific experiments on human guinea pigs admissible. The final criterion, which
elicited general agreement, was the necessity of an explicit and voluntary consent
on the part of the subject who was to be submitted to the experiment. The con-
sistent practice in the United States was (as shown by a form in use in the state
of Illinois which was displayed before the judges) to have the sentenced person
sign a declaration in which the following, among other things, is stated:
I assume all the risks of this experiment and declare that I absolve the University
of Chicago and all the technicians and researchers who take part in the experi-
ment, as well as the government of Illinois, the directory of the State penitentiary
and every other official, even as concerns my heirs and representatives, of any
responsibility. I therefore renounce every claim to any damage or disease, even
fatal, which may be caused by the experiment.
The obvious hypocrisy of such documents cannot fail to leave one perplexed.
To speak of free will and consent in the case of a person sentenced to death or
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of a detained person who must pay serious penalties is, at the very least, ques-
tionable. And it is certain that even if similar declarations had been signed by
the people detained in the camps, the experiments that took place would not
have been considered ethically admissible. What the well-meaning emphasis
on the free will of the individual refuses to recognize here is that the concept
of “ voluntary consent” is simply meaningless for someone interned at Dachau,
even if he or she is promised an improvement in living conditions. From this
point of view, the inhumanity of the experiments in the United States and in the
camps is, therefore, substantially equivalent.
Nor was it possible to invoke a difference of ends in order to evaluate the
different and specific responsibilities in the cases at issue. An observation by
Alexander Mitscherlich, the doctor who, together with F. Mielke, published the
first account of the physicians’ trials in Nuremberg in 1947, bears witness to
the difficulty of admitting that the experiments in the camps were not with-
out medico-scientific precedent. When Professor Rose was tried for experiments
with vaccination against petechial fever (which had brought death to 97 of 392
VPs), he defended himself by citing the analogous experiments conducted by
Strong in Manila on persons sentenced to death. Rose compared the German
soldiers who died of petechial fever to the people with beriberi for whose benefit
Strong’s research was intended. At this point Mitscherlich, who otherwise dis-
tinguishes himself by the sobriety of his comments, objects: “While Strong was
trying to fight against the misery and death caused by a scourge of the natural
order, researchers like the accused Professor Rose worked, in the confusion of a
dictatorship’s inhuman methods, to maintain and justify cruelty” ( Mitscherlich
and Mielke, Wissenschaft, pp. 11–12). As a historico-political judgment, the observation is exact. It is clear, however, that the ethico-juridical admissibility of
the experiments could not in any way depend on either the nationality of the
people for whom the vaccine was destined or the circumstances in which they
had contracted the disease.
The only ethically correct position would have been to recognize that the
precedents cited by the defense were pertinent, but that they did not diminish
the responsibility of the accused in the slightest. But this would have meant
throwing a sinister shadow on common practices of the medical profession.
(Since the time of the trial, even more sensational cases of mass experiments
conducted on citizens have come to light, for example, in the study of the
effects of nuclear radiation.) If it was theoretically comprehensible that such
experiments would not raise ethical problems for officials and researchers inside
a totalitarian regime that moved in an openly biopolitical horizon, how could
HOMO SACER
experiments that were, in a certain sense, analogous have been conducted in a
democratic country?
The only possible answer is that in both contexts the particular status of the
VPs was decisive; they were persons sentenced to death or detained in a camp,
the entry into which meant the definitive exclusion from the political commu-
nity. Precisely because they were lacking almost all the rights and expectations
that we customarily attribute to human existence, and yet were still biologically
alive, they came to be situated in a limit zone between life and death, inside and
outside, in which they were no longer anything but bare life. Those who are
sentenced to death and those who dwelt in the camps are thus in some way un-
consciously assimilated to homines sacres, to a life that may be killed without the commission of homicide. Like the fence of the camp, the interval between death
sentence and execution delimits an extratemporal and extraterritorial threshold
in which the human body is separated from its normal political status and aban-
doned, in a state of exception, to the most extreme misfortunes. In such a space
of exception, subjection to experimentation can, like an expiation rite, either
return the human body to life (pardon and the remission of a penalty are, it is
worth remembering, manifestations of the sovereign power over life and death)
or definitively consign it to the death to which it already belongs. What concerns
us most of all here, however, is that in the biopolitical horizon that characterizes
modernity, the physician and the scientist move in the no-man’s-land into which
at one point the sovereign alone could penetrate.
6
Politicizing Death
6.1. In 1959, P. Mollaret and M. Goulon, two French neurophysiologists,
published a brief study in the Revue neurologique in which they added
the new and extreme figure of what they called coma dépassé (“overcoma,” it could
be rendered) to the known phenomenology of the coma. In addition to the classical
coma, which is characterized by the loss of relational life functions (consciousness,
mobility, sensibility, reflexes), the medical literature of the time also distinguished
an alert coma, in which the loss of relational functions was not complete, and a
carus coma, in which the preservation of vegetative life functions was seriously
threatened. “To these three traditional degrees of coma,” Mollaret and Goulon
provocatively wrote, “we would like to add a fourth degree, coma dépassé . . . , i.e., a coma in which the total abolition of relational life functions corresponds to an
equally total abolition of vegetative life functions” (“Le coma dépassé,” p. 4).
The deliberately paradoxical formulation—a stage of life beyond the cessa-
tion of all vital functions—suggests that overcoma is the full fruit (the rançon,
the authors call it, using the term that indicates the ransom or excessive price
paid for something) of new life-support technology: artificial respiration, main-
tenance of cardiac circulation through intravenous perfusion of adrenaline,
technologies of body temperature control, and so on. The survival of the over-
comatose person automatically ended as soon as the life-support system was
interrupted: the complete absence of any reaction to stimuli characteristic of
deep coma was followed by immediate cardiovascular collapse and the cessation
of all respiratory movement. Yet if life support continued, survival could be pro-
longed to the point at which the myocardium, by now independent of all affer-
ent nerves, was once again capable of contracting with a rhythm and an energy
sufficient to assure the vascularization of the other visceral arteries (normally not
for more than a few days). But was this really “survival”? What was the zone of
life beyond coma? Who or what is the overcomatose person? “Confronted with
the unfortunate people who embody the state we have defined with the term
coma dépassé,” the authors write, “when the heart continues to beat day after 132
HOMO SACER
133
day without producing even the smallest revival of life functions, desperation
finally wins out over pity, and the temptation to push the liberating interruption
button grows piercing” (“Le coma dépassé,” p. 14).
6.2. Mollaret and Goulon immediately realized that the significance of coma
dépassé far exceeded the technico-scientific problem of resuscitation: at stake was nothing less than a redefinition of death. Until then, the task of determining
death was given over to the physician, who made use of the traditional criteria
that had remained substantially the same throughout the centuries: the stopping
of the heartbeat and the cessation of breathing. Overcoma rendered obsolete
precisely these two ancient categories for the assessment of death and, opening
a no-man’s-land between coma and death, made it necessary to identify new
criteria and establish new definitions. As the two neurophysiologists wrote, the
problem expands “to the point of putting the final borders of life in question,
and even further, to the determination of a right to establish the hour of legal
death” (“Le coma dépassé,” p. 4).
The problem became even more urgent and complicated by virtue of a his-
torical coincidence that was perhaps accidental: the progress of life-support tech-
nology that made the coma dépassé possible occurred at the very same time as the
development and refinement of transplant technologies. The state of the over-
comatose person was the ideal condition for the removal of organs, but an exact
definition of the moment of death was required in order for the surgeon responsi-
ble for the transplant not to be liable for homicide. In 1968, the report of a special
Harvard University committee (“The Ad Hoc Committee of the Harvard Medical
School”) determined new criteria of death and inaugurated the concept of “brain
death,” which was to impress itself more and more (if not without lively opposi-
tion) upon the international scientific community, until it finally penetrated the
legislation of many American and European states. The dark zone beyond coma,
which Mollaret and Goulon had left wavering uncertainly between life and death,
now furnishes precisely the new criterion of death. (“Our first objective,” the Har-
vard report begins, “is to define irreversible coma as a new criterion of death.”)*
Once adequate medical tests had confirmed the death of the entire brain (not
only of the neocortex but also of the brain stem), the patient was to be considered
dead, even if, thanks to life-support technology, he continued breathing.
6.3. Obviously it is not our intention to enter into the scientific debate on
whether brain death constitutes a necessary and sufficient criterion for the dec-
* Harvard University Medical School, “A Definition of Irreversible Coma,” p. 85. Cited hereafter as Harvard report.
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laration of death or whether the final word must be left to traditional criteria.
It is impossible, however, to avoid the impression that the entire discussion is
wrapped up in inextricable logical contradictions, and that the concept “death,”
with the greatest indeterminacy, describing a vicious circle that is truly exem-
plary. On the one hand, brain death is taken to be the only rigorous criterion of
death and is, accordingly, substituted for systematic or somatic death, which is
now considered to be insufficient. But on the other hand, systematic or somatic
death is still, with more or less self-consciousness, called in to furnish the deci-
sive criterion. It is, in other words, surprising that the champions of brain death
can candidly write that brain death “inevitably leads quite quickly to death”
(Walton, Brain Death, p. 51), or, as in the report of the Finnish Department of Health, that “these patients [who had been diagnosed as brain dead and who
were, therefore, already dead] died within a day’’ (quoted in Lamb, Death, p. 56).
David Lamb, an advocate of the concept of brain death who has himself noted
these contradictions, writes the following, after citing a series of studies that
show that heart failure comes within a few days of the diagnosis of brain death:
“In most of these studies there are minor variations in the clinical tests, but
all nevertheless demonstrated the inevitability of somatic death following brain
death’’ (ibid., p. 63). According to a clear logical inconsistency, heart failure—
which was just rejected as a valid criterion of death—reappears to prove the
exactness of the criterion that is to substitute for it.
This wavering of death in a shadowy zone beyond coma is also reflected in
an analogous oscillation between medicine and law, medical decision and legal
decision. In 1974, Andrew D. Lyons’s defense lawyer, whose client was accused
before a California court of having killed a man with a gunshot, objected that the
cause of the victim’s death was not the bullet shot by his client but rather the sur-
geon Norman Shumway’s removal of the brain-dead patient’s heart for the sake
of performing a transplant. Dr. Shumway was not charged, but one can only read
with unease the declaration with which he convinced the court of his own inno-
cence: “I’m saying anyone whose brain is dead is dead. It is the one determinant
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