Deleuze and Law

23
This is a preview which allows selected pages of this ebook to be viewed without a current Palgrave Connect subscription. If you would like access the full ebook for your institution please contact your librarian or use our Library Recommendation Form (www.palgraveconnect.com/pc/connect/info/recommend.html), or you can use the 'Purchase Copy' button to buy a print copy of the title. If you believe you should have subscriber access to the full ebook please check you are accessing Palgrave Connect from within your institution's network or you may need to login via our Institution / Athens Login page (www.palgraveconnect.com/pc/nams/svc/institutelogin?target=/index.html). Deleuze and Law Forensic Futures Rosi Braidotti; Patrick Hanafin; Claire Colebrook ISBN: 9780230244771 DOI: 10.1057/9780230244771preview Palgrave Macmillan Please respect intellectual property rights This material is copyright and its use is restricted by our standard site license terms and conditions (see palgraveconnect.com/pc/connect/info/terms_conditions.html). If you plan to copy, distribute or share in any format, including, for the avoidance of doubt, posting on websites, you need the express prior permission of Palgrave Macmillan. To request permission please contact [email protected].

Transcript of Deleuze and Law

Page 1: Deleuze and Law

This is a preview which allows selected pages of this ebook to be viewed without a current Palgrave Connect subscription. If you would like access the full ebook for your institution please contact your librarian or use our Library Recommendation Form (www.palgraveconnect.com/pc/connect/info/recommend.html), or you can use the 'Purchase Copy' button to buy a print copy of the title.

If you believe you should have subscriber access to the full ebook please check you are accessing Palgrave Connect from within your institution's network or you may need to login via our Institution / Athens Login page (www.palgraveconnect.com/pc/nams/svc/institutelogin?target=/index.html).

Deleuze and LawForensic FuturesRosi Braidotti; Patrick Hanafin; Claire ColebrookISBN: 9780230244771DOI: 10.1057/9780230244771previewPalgrave MacmillanPlease respect intellectual property rights

This material is copyright and its use is restricted by our standard site license terms and conditions (see palgraveconnect.com/pc/connect/info/terms_conditions.html). If you plan to copy, distribute or share in any format, including, for the avoidanceof doubt, posting on websites, you need the express prior permission of PalgraveMacmillan. To request permission please contact [email protected].

Page 2: Deleuze and Law

Deleuze and Law

Forensic Futures

Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Edited by

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 3: Deleuze and Law

Deleuze and Law

PPL-UK_DL-Braidotti_Fm.indd iPPL-UK_DL-Braidotti_Fm.indd i 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 4: Deleuze and Law

This page intentionally left blank

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 5: Deleuze and Law

Deleuze and LawForensic Futures

Edited by

Rosi BraidottiUtrecht University, The Netherlands

Claire ColebrookPennsylvania State University, USA

Patrick HanafinBirkbeck College, School of Law, University of London, UK

PPL-UK_DL-Braidotti_Fm.indd iiiPPL-UK_DL-Braidotti_Fm.indd iii 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 6: Deleuze and Law

Selection and editorial matter © Rosi Braidotti, Claire Colebrook and PatrickHanafin 2009Chapters © their individual authors

All rights reserved. No reproduction, copy or transmission of thispublication may be made without written permission.

No portion of this publication may be reproduced, copied or transmittedsave with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS.

Any person who does any unauthorized act in relation to this publicationmay be liable to criminal prosecution and civil claims for damages.

The authors have asserted their rights to be identifi ed as the authors of thiswork in accordance with the Copyright, Designs and Patents Act 1988.

First published 2009 byPALGRAVE MACMILLAN

Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS.

Palgrave Macmillan in the US is a division of St Martin’s Press LLC,175 Fifth Avenue, New York, NY 10010.

Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world.

Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries

ISBN-13: 978-0-230-21017-2 hardback

This book is printed on paper suitable for recycling and made from fullymanaged and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin.

A catalogue record for this book is available from the British Library.

A catalog record for this book is available from the Library of Congress.

10 9 8 7 6 5 4 3 2 118 17 16 15 14 13 12 11 10 09

Printed and bound in Great Britain byCPI Antony Rowe, Chippenham and Eastbourne

PPL-UK_DL-Braidotti_Fm.indd ivPPL-UK_DL-Braidotti_Fm.indd iv 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 7: Deleuze and Law

v

Contents

Acknowledgements vi

Notes on Editors vii

Notes on Contributors viii

1 Introduction: Deleuze and Law – Forensic Futures 1 Rosi Braidotti, Claire Colebrook and Patrick Hanafin

2 Legal Theory after Deleuze 6 Claire Colebrook

3 The Time of Law: Evolution in Holmes and Bergson 24 Alexandre Lefebvre

4 Rights of Passage: Law and the Biopolitics of Dying 47 Patrick Hanafin

5 The Terri Schiavo Case: Biopolitics, Biopower, and Privacy as Singularity 59

John Protevi

6 Vitalistic Feminethics: Materiality, Mediation and the End of Necrophilosophy 73

Patricia MacCormack

7 Locating Deleuze’s Eco-Philosophy between Bio/Zoe-Power and Necro-Politics 96

Rosi Braidotti

8 Is There Life in Cybernetics? Designing a Post-Humanist Bioethics 117

Joanna Zylinska

9 The Silent Scream – Agamben, Deleuze and the Politics of the Unborn 142

Melinda Cooper

10 Points of Departure: The Culture of US Airport Screening 163 Lisa Parks

11 The Spectacle of War: Security, Legitimacy and Profit Post–9/11 179

Ian Buchanan and Laura Guillaume

Index 198

PPL-UK_DL-Braidotti_Fm.indd vPPL-UK_DL-Braidotti_Fm.indd v 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 8: Deleuze and Law

vi

Acknowledgements

We wish to thank the Leverhulme Trust for its support of the project out of which this book emerged. We would like to thank Birkbeck Law School for its support of the conferences and workshops where many of the ideas contained in the collection were first aired. Special thanks are due to Valerie Kelley at Birkbeck Law School who prepared the manuscript for publication.

PPL-UK_DL-Braidotti_Fm.indd viPPL-UK_DL-Braidotti_Fm.indd vi 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 9: Deleuze and Law

vii

Notes on Editors

Rosi Braidotti is Distinguished Professor in the Humanities at Utrecht University in the Netherlands, founding director of the Centre for the Humanities at Utrecht University and Honorary Visiting Professor in the Law School of Birkbeck College, University of London. She has published extensively in continental philosophy, post-structuralism and feminist theory, epistemology, social theory and cultural studies. Her books include Patterns of Dissonance (1991), Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (1994), Metamorphoses: Towards a Materialist Theory of Becoming (2002), Transpositions: On Nomadic Ethics (2006). She has co-edited Between Monsters, Goddesses and Cyborgs (with Nina Lykke, 1996); Thinking Differently: A European Women’s Studies Reader (with Gabriele Griffin, 2002). She is a member of the edito-rial board of Signs, differences, Theory, Culture & Society, and The European Journal of Women’s Studies.

Claire Colebrook is the Edwin Earle Sparks Professor of English at Pennsylvania State University, USA. She was Professor of Modern Literary Theory at the University of Edinburgh from 2000 to 2008. She has published articles on contemporary European philosophy, feminist theory, literary theory, contemporary music, dance, visual culture and political theory. Her books include New Literary Histories (1997), Ethics and Representation (1999), Gilles Deleuze (2002), Understanding Deleuze (2003), Irony in the Work of Philosophy (2002), Irony: The New Critical Idiom (2003), Gender (2004), Deleuze: A Guide for the Perplexed (2006) and Milton, Evil and Literary History (2008). She is currently completing two book-length studies, one on vitalism and another on William Blake and aesthetics.

Patrick Hanafin is Professor of Law at Birkbeck College, University of London, UK. He has been a visiting professor at the School of Law at the University of Porto, Portugal, and at the Law Faculty at the University of Pretoria in South Africa. He has held research fellowships at the European University Institute in Florence and at the Human Rights Program at Harvard Law School. His books include Conceiving Life: Reproductive Politics and the Law in Contemporary Italy (2007); Constituting Identity: Political Identity Formation and the Constitution in Post-Independence Ireland (2001); Identity, Rights and Constitutional Transformation (with Melissa Williams, 1999) and Last Rights: Death, Dying and the Law in Ireland (1997).

PPL-UK_DL-Braidotti_Fm.indd viiPPL-UK_DL-Braidotti_Fm.indd vii 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 10: Deleuze and Law

viii

Notes on Contributors

Ian Buchanan is Professor of Critical and Cultural Theory at the University of Cardiff, UK. His research interests centre on the attempt to understand or at least find the means of articulating what is peculiar about the everyday. He has written on topics as diverse as film, litera-ture, popular music, reality TV and, more recently, war. His publications include Fredric Jameson: Live Theory (2006), Deleuzism: A Metacommentary (2002) and Michel de Certeau (2000).

Melinda Cooper is Lecturer in the Department of Sociology and Social Policy at the University of Sydney, Australia. She has published widely in the fields of science and technology studies, biopolitics and political theory. Her current research interests include biopolitics and biosecu-rity, new theories of labour, economic sociology and financialization, revolutionary conservatism and religious revival, critical race and gender studies, philosophies and politics of the ‘event’. Her publications include Life as Surplus: Biotechnology and Capitalism in the Neoliberal Era (2008).

Laura Guillaume is a doctoral candidate in the School of International Relations at Aberystwyth University, UK. Her research interests include post-structuralist theories of International Politics, theories of embodi-ment and corporeality (especially with respect to resistance), War and the Revolution in Military Affairs and theories of military transforma-tion and technical development.

Alexandre Lefebvre is Lecturer in the School of History and Philosophy at the University of New South Wales. He is author of The Image of Law: Deleuze, Bergson, Spinoza (Stanford University Press, 2008). Alex’s cur-rent project, tentatively titled “Law and the Ordinary”, develops themes from the jurisprudence of the philosopher H. L. A. Hart (excuses and responsibility, rule following and the open texture of law, morality and moralism, causation and the temptation towards skepticism) through ordinary language philosophy.

Patricia MacCormack is Senior Lecturer in Communication and Film at Anglia Ruskin University, UK. Her principal research interests are in con-tinental philosophy, particularly the works of Deleuze, Guattari, Irigaray, Foucault, Bataille, Lyotard and Blanchot and she has published exten-sively in these areas. She has also written on a diverse range of issues such

PPL-UK_DL-Braidotti_Fm.indd viiiPPL-UK_DL-Braidotti_Fm.indd viii 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 11: Deleuze and Law

as body modification, performance art, monster theory and particularly Italian horror film. Her publications include Cinesexuality (2008), and The Schizoanalysis of Cinema, edited with Ian Buchanan (2008).

Lisa Parks is Associate Professor of Film and Media Studies at University of California, Santa Barbara, USA, where she is also an affiliate of the Departments of Art and Women’s Studies. Her research explores uses of satellite, computer and television technologies in a transnational context. She is the author of Cultures in Orbit: Satellites and the Televisual (2005) and co-editor of Planet TV: A Global Television Reader (2003) and Undead TV: Essays on Buffy the Vampire Slayer (2007). She is also co-producer of media arts projects such as Experiments in Satellite Media Arts (with Ursula Biemann, 2002), Loom (with Miha Vipotnik, 2003), Postwar Footprints (2005) and Roaming (2008).

John Protevi is Associate Professor in the Department of French Studies, Louisiana State University, USA. His publications include Deleuze and Geophilosophy: A Guide and Glossary (with Mark Bonta, 2004); Political Physics: Deleuze, Derrida and the Body Politic (2001) and Time and Exteriority: Aristotle, Heidegger, Derrida (1994). He is also the editor of The Edinburgh Dictionary of Continental Philosophy (2005) and co-editor (with Paul Patton) of Between Derrida and Deleuze (2003).

Joanna Zylinska is Reader in New Media and Communications at Goldsmiths College, University of London, UK. She is currently work-ing on a new conceptualisation of bioethics, conducted via an engage-ment with the work of Levinas, Derrida, Stiegler, Agamben and feminist ‘science and culture’ studies. She is also looking at different forms of bioart, and the aesthetic and ethical issues it brings up. Her publications include Imaginary Neighbors: Mediating Polish-Jewish Relations after the Holocaust (co-edited with Dorota Glowacka, 2007), The Ethics of Cultural Studies (2005), The Cyborg Experiments: The Extensions of the Body in the Media Age (2002), On Spiders, Cyborgs and Being Scared: The Feminine and the Sublime (2001).

Notes on Contributors ix

PPL-UK_DL-Braidotti_Fm.indd ixPPL-UK_DL-Braidotti_Fm.indd ix 7/3/2009 1:07:00 PM7/3/2009 1:07:00 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 12: Deleuze and Law

This page intentionally left blank

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 13: Deleuze and Law

1Introduction: Deleuze and Law – Forensic FuturesRosi Braidotti, Claire Colebrook and Patrick Hanafin

This volume engages with the impact of a thinking of law with Gilles Deleuze. It is an attempt to engage in another mode of doing jurispru-dence, which places the emphasis on the material bodies of citizens and their interests rather than the abstract formless subject of law. It is, as Claire Colebrook observes in her essay in this volume, a reconsidera-tion of law and legal theory as a differential jurisprudence. In such a jurisprudence the emphasis would be placed on how the claims of some bodies might transform the relation between what counts as a speak-ing subject for law and what is silenced. This shift in the way we view the manner in which individual bodies are formed and subjugated by law provides an opening to another thinking of law, which emerges in the essays in this collection. In this regard the collection attempts to perform what one might term a vitalist jurisprudence or one in which the body obtains primacy over what Deleuze and Guattari termed the terror of the signifier.

In doing so the essays in this volume explore the relation between law and life following the demise of the “linguistic paradigm” in criti-cal theory and the advent of a politics of “life.” How have recent events focused social, political and cultural attention on the living body and its maintenance and management? The central concept, through which the embodiment of the subject is examined, is that of “biopower.” Articulated by Michel Foucault, but brought to attention more recently in the work of Giorgio Agamben, this concept recognizes that the relation between life and law is both historical and necessary in that the law must operate on bodies but can only do so by establishing a border between the body of the polity, and the mere life excepted from political concern. For both Foucault and Agamben the contemporary advent of biopolitics occurs when the polity increasingly and invasively

1

PPL-UK_DL-Braidotti_Ch001.indd 1PPL-UK_DL-Braidotti_Ch001.indd 1 7/3/2009 8:48:32 AM7/3/2009 8:48:32 AM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 14: Deleuze and Law

2 Introduction

operates on this “mere” life, and the body or organism – rather than the self – becomes the object of political management. The manner in which the body, in its “mere life” (or what Agamben refers to as ‘zoe’) becomes the focus of contemporary power has led legal theory to explore new questions of the threshold between life and death and has led social theory to question the new extensions of the law and the polity into embodied life.

In Alexandre Lefebvre’s contribution to this volume the possibilities of a differential jurisprudence are considered. Lefebvre reads the work of Oliver Wendell Holmes, the American legal realist jurist, through Bergson’s conception of the creativity of life in order to propose a read-ing of Holmes’ work on the notion of legal judgment as one which sees judgment as inescapably inventive. In doing so he attempts to develop a new image of jurisprudence that can appreciate the inventiveness of adjudication insofar as it is in time. In looking at Holmes’ work The Common Law, Lefebvre argues that the key theme animating this work is the notion that adjudication is based on the desire of a society insofar as desire changes in time. As such, the work of the judge can-not be assimilated to the straightforward recognition and application of rules to cases; instead, it has an inherently creative power. In their essays in this volume both Patrick Hanafin and John Protevi expand on what a jurisprudence of differentials might look like in analyzing a number of US court decisions on the right to die. These essays look at how in practice rights jurisprudence could be reconceived if analyzed in a manner, which moved beyond the liberal model of a deathbound jurisprudence. One of the cases discussed by Hanafin in his essay con-cerns the right of a body to decide its own death. As Hanafin points out, the state has taken over the calculation of such decisions and has done so according to an axiomatic: is the individual’s ongoing life capable of being managed and ordered by the social machine (in which case there can be no cessation of life) or is the body criminalized and thereby rendered capable of being put to death? A differential jurisprudence is already, Hanafin suggests, visible at the margins of this case, where various legal voices enter into debate to decide the points at which a life ceases to be liveable. John Protevi in his essay also demonstrates that we need to look beyond abstract and discursive conceptions of “the subject” to an ontology of singularities. At what point does a body’s corporeal relations – that is, the various relations among its organic and nervous potentialities – undergo a sufficiently major configuration to produce an incorporeal event? That is, we cannot reduce a person to mere physical and organic functions, for in addition to the breathing,

PPL-UK_DL-Braidotti_Ch001.indd 2PPL-UK_DL-Braidotti_Ch001.indd 2 7/3/2009 8:48:32 AM7/3/2009 8:48:32 AM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 15: Deleuze and Law

Rosi Braidotti, Claire Colebrook and Patrick Hanafin 3

speaking, moving and interacting body, selves are also capacities for perception, affection, memory and imagination. However, certain cor-poreal events – such as the state’s capacity to refuse a woman’s desire to terminate a pregnancy – will produce incorporeal events; that woman will now become a “mother.” That latter incorporeal event is not simply caused by a change in body, for it requires other – political – relations, such as the social institutions of parenting, the norms of gender bina-ries and the notion of the private nuclear family. For Hanafin cases that concern the border between life and death demand an inclusion of vari-ous voices that would go beyond the simple opposition between a state power that must preserve and maintain viable life. Protevi argues that Deleuze’s ontology gives us tools to examine thresholds of viability.

In her diagnosis of contemporary necrophilosophy, Patricia MacCormack not only argues that the move beyond a life/death dichotomy has implications for the “subject” who can no longer be defined against death as some constitutive limit; she also argues that a Deleuzian attention to thresholds has implications for sexual difference. Deleuze’s concept of “becoming woman” indicates a new vitalist pos-sibility for thinking, where we attend less to “man” who defines himself against a field of death, and more to those whose bodies have always been precarious and subject to minor deaths – not only women and ani-mals, but those populations who have less access to the means of life. In Rosi Braidotti’s essay in this volume the theme that only a liberal and humanistic view of the subject can guarantee basic elements of politi-cal agency and ethical probity is further interrogated. Braidotti argues for a politics of “life itself” as a form of active bioethical citizenship. In order to counter the strong “biopower” of political and technological discourses Braidotti calls for a thinking which focuses on processes and interconnections, a post-anthropocentric approach to the analysis of “life itself,” as a way of broadening the sense of community. Her essay elaborates sets of criteria for a new social and political theory. She argues that political practices that take life itself as the point of reference need not aim at the restoration of unitary norms, or the celebration of the master-narrative of global profit, but rather respect for diversity and sustainable growth at the heart of which lies an ethics that respects vulnerability while actively constructing social horizons of hope.

Joanna Zylinska’s contribution to this volume develops this theme by looking at how the transformation of the very notion of life and of the accompanying idea of the human, as well as the promises and threats to human and animal health posed by science and technology, have evoked particular hopes and anxieties among the public in Western

PPL-UK_DL-Braidotti_Ch001.indd 3PPL-UK_DL-Braidotti_Ch001.indd 3 7/3/2009 8:48:32 AM7/3/2009 8:48:32 AM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 16: Deleuze and Law

4 Introduction

liberal democracies. For her bioethics has been given the task of having to arbitrate over life, death and the nature of the human in the age of biotechnology. She suggests that its response to this task has so far been conservative, in the sense that the foundational humanism of the theories and practices upon which traditional bioethical discourses have been based – be it in their religious or secular guises – has remained intact even though recent advances in scientific technology have called into question not only humans’ ontological status as skin-bound, sovereign beings but also their kinship with, and dependency on, other species and material forms. She engages with the inherent humanism of bioethics and considers the possibility of thinking bioethics other-wise – beyond the belief in the intrinsic dignity and superior value of the human, and beyond the rules and procedures rooted in this belief. Melinda Cooper in her essay also engages in a critical rereading of life in its current biocapitalist mode. She questions why it is that we have inher-ited a philosophy of life that seems to affirm – indeed ontologize – the contemporary forms of biocapitalist production without offering a cor-responding critique of its political economy and modes of capture? Her concern is to find a way in which we can intervene in and contest such regimes of biological production without resorting to something like a nostalgic politics of life, a politics in which the potential human all too often comes to figure the messianic horizon of a foundation to come?

In the domain of domestic and international politics contemporary modes of law as biopower are clearly exhibited in what has been termed the “war on terror” where individual bodies and entire populations become the targets of a heightened desire to impose order and control on the part of governments. As can be seen in Lisa Parks’ essay in this volume, certain procedures have been effected in the war on terror that produce a direct image of the lawless. It is through processes of airport monitoring, immigration control and restrictions placed on individual rights that the terrorist is produced as the bomb wielding, border transgressing, hate-inducing and fundamentalist other of law. It is also the case that those bodies who are engaged in process of moni-toring also make up the power of the law. Indeed as Ian Buchanan and Laura Guillaume argue in their essay in this volume the spectacle of the “war on terror” is what enables what Deleuze and Guattari term una-vowable politics to function. It gives desire something to invest in even as it derides our need to believe in something. For Buchanan and Guillaume war has not only lost legitimacy, but lost the need for legitimation. The discourse is such that the public will to war can be assumed without being tested. The political will to use military force,

PPL-UK_DL-Braidotti_Ch001.indd 4PPL-UK_DL-Braidotti_Ch001.indd 4 7/3/2009 8:48:32 AM7/3/2009 8:48:32 AM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 17: Deleuze and Law

Rosi Braidotti, Claire Colebrook and Patrick Hanafin 5

undoubtedly strong in the immediate aftermath of 9/11, has become a foundational reality which is unthreatened by actual manifestations of discontent about the course of the war in Iraq, making war seem ever more eternal as it becomes ever more useless.

This collection calls for another thinking of the relation of law and politics to the bodies of individual citizens and to the environment in which they are located. In our role as either citizens or rights-claiming subjects in contemporary liberal democracies the efficacy of our speech is limited because, to paraphrase Foucault, we as speaking subjects are also the subject matter of legal and political discourse. The interlocutor (in this case the political elite or the judiciary) is always in the position of authority.

What the essays in this collection perform is a rethinking of the manner in which the subject of law and politics is defined. In this other jurisprudence, a renewed emphasis on the shifting boundaries between living and dying, surviving and becoming extinct, can be dis-tinguished. As is demonstrated in several of the essays, the resurgence of vitalism can be seen as profoundly regressive, with the invocation of “life” in pro-life politics operating as a way of silencing political debate. On the other hand, an attention to the vital forces that are the very basis of politics; the living bodies that are the basis of terror, rights and exclusions requires a thinking that goes beyond the notion of the subject as a speaking/knowing being. In this thinking one can detect the instantiation of a thinking of legal subjectivity as embodied exist-ence, which subsists beyond the biopolitical traps of territory, nation state and identity. This relational encounter of the individual with the law, as Deleuze reminds us “threatens to bring what’s been established back into question” (Deleuze, 1995, p. 153). What is at stake here is a politics beyond the bureaucratic rights-giving or rights-depriving state, which remains after the word has been said. This is the self declaring itself not in response to the call of the state or as the subject matter of rights, but as an active participant in political affairs. It is a self which exceeds fixing.

Bibliography

G. Deleuze (1995) Negotiations: 1972–1990 (New York: Columbia University Press).

PPL-UK_DL-Braidotti_Ch001.indd 5PPL-UK_DL-Braidotti_Ch001.indd 5 7/3/2009 8:48:32 AM7/3/2009 8:48:32 AM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 18: Deleuze and Law

6

2Legal Theory after DeleuzeClaire Colebrook

Introduction

If Deleuze, and Deleuze and Guattari, appear to have re-shaped the very meaning of what it means to be theoretical, then what consequences does such a transformation of the critical paradigm have for legal theory? To begin with we might make a preliminary remark regarding theoria, with its emphasis on a distanced, elevated and self-consciously critical relation to everyday knowledge, opinion or doxa. Recently there has been much talk of an ‘end’ of or ‘death’ or indeed epoch ‘after’ theory, with the post-theoretical being defined as a return to life and history (Docherty, 1990; Eagleton, 2003). Part of the reason for this perceived opposition between theory and life results from a certain reading of theory in the 1980s and 1990s that was dominated by the linguistic paradigm. That is, theory was often assumed to be an inter-rogation into the ways in which life, experience and the world in gen-eral were mediated or constructed through systems such as language.1 In terms of legal theory this resulted in a highly specific reading of twentieth-century French thought: ‘law’ was taken to be not only the positive laws and traditions of the legal system but a condition for the possibility of experience in general. This expansion of the concept of law can be discerned in the uptake of the works of Jacques Derrida and Jacques Lacan (Cornell, 1991), where it was assumed that ‘law’ could refer both to the general condition of being subjected to some system of order, and to social normativity and legality. It is this concept of law as an enabling and constitutive condition for subjectivity (and that is also anterior and transcendent to living subjects) that can be contrasted with the critique of the primacy of law by Gilles Deleuze and Félix Guattari.

PPL-UK_DL-Braidotti_Ch002.indd 6PPL-UK_DL-Braidotti_Ch002.indd 6 7/16/2009 12:28:48 PM7/16/2009 12:28:48 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 19: Deleuze and Law

Claire Colebrook 7

In what follows I will outline the ways in which law has been theorised from the point of view of what Deleuze and Guattari refer to as the ‘despotism of the signifier’, or the assumption that life is necessarily experienced as mediated or constituted through a symbolic system of language. We can then see the ways in which Deleuze and Guattari offer a theory – or an account of the emergence of relations and subjects – that is also committed to the possibility of intuiting the very genesis of law in history.

Deconstructing law

Not surprisingly one of the great events of late twentieth-century ‘theory’ – the deconstructive turn taken by Jacques Derrida – has had a profound impact on the very notion of critical thinking and, in turn, the very possibility of law. Derrida’s claims that justice is undecon-structible, and that deconstruction is justice, rely on a highly formal-ised concept of law (Derrida, 1992). Law is always an articulation or prescription of what ought to be the case, and therefore makes a claim or appeal to justice in general. At the same time, no law in its singular articulation or execution ever achieves the ideal or truth of justice. If justice is that which remains the same, regardless of context, force or interest then it must transcend any particular will, intent or concrete instance, for the very meaning of concepts such as truth and justice is their radical difference from the locality of force and particularity.

Deconstruction, which Derrida will constantly differentiate from some system or method applied to meaning and thinking, takes the very possibility of thought, sense and truth seriously, and from the very conditions that make truth and justice possible discloses a necessary impossibility. A concept (such as justice) can operate within a context only if its utterance ‘intends’ some sense that would be repeatable beyond that specific context. While meaning and experience neces-sarily ‘intend’ or open up to that which goes beyond the pure given or immanence of finite experience, that which is beyond experience is never given or never arrives. It always remains ‘to come’. In this regard Derridean deconstruction is perhaps the most stringent and serious commitment to the possibility of theory, allowing for an equally radi-cal commitment to theory’s concomitant concepts of law and justice. Theoria does not remain within the given but asks how the given is pos-sible. How is it, for instance, that we possess concepts such as ‘law’ and ‘justice’? Theory is therefore essentially tied to the transcendental. It does not accept the simple presence of the transcendent, but asks how – from

PPL-UK_DL-Braidotti_Ch002.indd 7PPL-UK_DL-Braidotti_Ch002.indd 7 7/16/2009 12:28:48 PM7/16/2009 12:28:48 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 20: Deleuze and Law

8 Legal Theory after Deleuze

the finitude of experience – we encounter the thought of that which would go beyond any particular or finite experience: law in general, truth in general or justice in general. Theory is tied in two senses to law: for theory accepts that if we experience a world as having a certain being that is other than ourselves, then there must be some lawful proc-ess through which such a world is constituted.

It is just this structure of acknowledging that there must have been some way in which the subject opens out to a world that is not its own, that gives us a moral idea of law. If it is possible for me to experience this world as an ordered and causal realm, it is also possible for me to think (but not know) of a subject who would be a pure example of the process-ing of ordering. How would such a subject give a law to itself? It could not appeal to any law in the world, but would be required to imagine itself as one who legislated a world. Derrida is at once indebted to the Kantian tradition of considering the possibility or genesis of law – how it is that we can think law as such, independent of its particular instances and inscriptions – and, at the same time, Derrida is critical of the idea that we can achieve a grasp of the idea or purity of the justice that would be beyond any single law.

The Kantian critical turn occurred with the demonstration that while we can think of concepts that would transcend any empirical instance, we can never intuit or be given knowledge of these concepts in their completion (Kant, 1998). For Kant, then, such concepts can only have a practical, never a theoretical, fulfilment. We can only know that which is given to us, and so in this respect all theoretical knowledge is relational, and relies upon transcendental categories and forms through which the world is ordered or given. We know the world as lawfully ordered, but we never experience the law-giving power itself. We know ourselves as subjects, because our world is subjectively formed, but we never experience subjectivity as such. For Kant, the subject is just this necessarily presupposed (but unknowable) forming power, and it is this structure of subjectivity that makes law thinkable, but not intuitable. We cannot intuit the law as an object of possible experience, and this is because the very nature of law (and the lawful in general) is that which remains the same and has universal force above and beyond any particular empirical instance.

This idea of law has a weak and strong sense. We perceive a world that is ‘lawful’ and our enquiry into this ordered world presup-poses that the world will follow the laws we have discerned. In this sense of natural or given law we rely on reflective judgement. We can never know a law of nature but we presuppose it in all our enquiry,

PPL-UK_DL-Braidotti_Ch002.indd 8PPL-UK_DL-Braidotti_Ch002.indd 8 7/16/2009 12:28:48 PM7/16/2009 12:28:48 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 21: Deleuze and Law

Claire Colebrook 9

and assume lawfulness not just for ourselves but also for others (Kant, 2000). In a much stronger and moral sense, law is possible to be thought but not known. If I can think of myself, not as a being determined by worldly interests and pleasures, but as a being capable of acting justly as such, regardless of who is before me, then I am not given knowledge of the law, but have an idea of law: that there can be law (Kant, 1996). Given that law cannot be known, then I am left with the idea that one must give a law to oneself without being able to rely upon any normal or normative notion of human life.

Derrida’s deconstruction is both an extension of Kant’s rigorous critique of the possibility of theoretical knowledge and – through the very fidelity of that extension – a disclosure of the aporetic relation of law and justice. Kant makes a strict distinction between theoretical and practical possibilities for thinking. Theoretical knowledge follows from the relations we bear towards an intuited world, a world that we know only as it is given to us. Practical judgement is based on what we can think. We can imagine a law that would refer to subjects not as they are given in the world but as they would be as purely autonomous. Kant therefore relies upon a transcendental subject. This subject cannot be known but must be presupposed as being the same for all. Such laws are the subject’s own and cannot be experienced because they make experi-ence possible. When reason is practical, it is the idea of pure law – a law that would command me to act as if I were an absolutely free subject concerned only for law as such – that allows me to think of myself and others as pure ends in themselves (Derrida, 1981).

Derrida extends this idea of the purely formal, both generally in his theory of concepts, and specifically in his meditations on law. Whereas Kant has recourse to a transcendental subject whose concepts would provide a lawfulness for the world, and whose practical and moral freedom would enable a pure decision of duty and law, Derrida can appeal to no such transcendental ground of purity. On the contrary, we can only have concepts, subjects, discourses, laws and acts of jus-tice through différance. Law requires inscription, articulation, tracing or the marking out of its terms through time. There are not subjects who institute law, for the very experience of oneself as a subject fol-lows on from a genesis of structures that the subject himself has neither authored nor experienced. Once there has been structure or the produc-tion of some differential system, it is possible, indeed necessary, to con-sider the origin or emergence of that system of law, but such an origin is only known after the event. Derrida recognises that while justice is that which must transcend and govern any context, it is also the case

PPL-UK_DL-Braidotti_Ch002.indd 9PPL-UK_DL-Braidotti_Ch002.indd 9 7/16/2009 12:28:48 PM7/16/2009 12:28:48 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 22: Deleuze and Law

10 Legal Theory after Deleuze

that we only know justice as given in positive and less-than-pure laws. Because law is always located in a language, context, series of claims and presuppositions, it is always deconstructible.

It is the concept of justice that is at once diminished by the law, for a law must always respond to this problem, this other person and this claim, thereby precluding any pure or purely abstract law (Derrida, 1995). While law violates the absolute singularity of individuals it is only the appeal beyond individuals to a truth of justice in general that opens up a responsibility beyond mere force. The deconstructive intervention in law requires us at once to acknowledge that we must be responsible and lawful always with attention to that which cannot be universalised, at the same time as law calls upon us as law to think of the other or the singular as wholly other (as worthy of a justice that can never be given, that can never arrive and that would in this sense be always ‘to come’). It is only through the claims of justice, which for Derrida cannot be deconstructed, that one can solicit and challenge laws. At the same time it is only through the singularity, inscription and practice of law that one can appeal to the pure law or justice that transcends any law as such.

Derrida insists that deconstruction is affirmative, and that it is the affirmation of justice, for it opens up any positive law to an idea of an undeconstructible force that precludes any resting secure with law as its stands. It is this futural dimension which Derrida emphasises to radi-calise Kantian ethics. For Kant it was the idea of the human personality that enabled the subject to think of himself as a practical power capable of thinking of a pure duty. Derrida refuses the possibility that we might ever arrive at this pure subject who could maintain a critical distance from all given and determined laws. Without that appeal to an original, if purely formal, subjective ground, Derrida’s deconstruction can never arrive at justice or pure law, but can only regard any positive law as necessarily haunted by the possibility of a justice that resists full conceptualisation and actualisation.

One way of thinking the concrete implications of such a decon-structive theorisation of the law would be through the relation between law and terror. The relation between law and terror has come to the fore in the ‘war on terror’, where we are increasingly presented with com-promises, exceptions or diminutions of the law for the sake of politi-cal expediency. If we want to protect and secure ‘our’ lawful world we may need to act unlawfully to protect ourselves from those who would destroy the institutions of law. For Derrida, law is possible only through what he refers to as ‘auto-immunity’: a social body can protect itself or

PPL-UK_DL-Braidotti_Ch002.indd 10PPL-UK_DL-Braidotti_Ch002.indd 10 7/16/2009 12:28:48 PM7/16/2009 12:28:48 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09

Page 23: Deleuze and Law

Claire Colebrook 11

give a law to itself only if it also accepts the risk of a destruction to itself (Derrida, 2005, p. 18). In the ‘war on terror’, for example, we see the process of the protection of the social and legal body occurring only with the very possibility of that body’s attack. Such an attack takes the form of anticipated others, whose exclusion from the state requires a certain damage the state must make upon itself (both through going to war, and through being at war with its own legal body). We can also think of Giorgio Agamben’s theorisation of the ‘state of exception’ (Agamben, 1998). For Agamben, it is in the state of exception that we see the pure potentiality for law, or at least the actualisation of law in sovereignty. When law is suspended we can see that law has force only if it is instituted. This means that law as actualised relies on a force that is not itself subject to law. It is not the case that we can reduce law to the lawful, for the lawful sovereign body is the actualisation of law in force, while law itself (the pure potentiality of a ‘law without force’) is witnessed as possibility only with the law’s violation or suspension.

In the ‘war on terror’ it is precisely in the violence of Guantanámo, renditions, Abu Ghraib and a series of violations in the name of a provisional need to maintain the force of law that we can witness the potential of law as that which must be other than any instituting violence. For both Derrida and Agamben, law is other than the violence of institution – other than terror – at the same time as it requires a cer-tain terror or violence for its concrete institution. For Derrida this is the ‘opposition’ – which is never a pure distinction – between law and jus-tice, while for Agamben it is this pure potentiality of law without force that can only be discerned in those moments when law is suspended by force. There is always, for Derrida, the contamination of justice (or pure law) with terror. While the thought of justice opens us up to the idea of that which would give response to the integrity and singularity of every other, we all know that laws must – by their generality – miss the singularity of the other and therefore commit a certain violence or injustice. Law can only act or have force if it is particularised in institutions and practices, but this means that it always fails to be just, for it will always in its practical workings miss the radical singularity of claims and the purity of truth.

Deleuze and thinking law otherwise

How does the Deleuzian turn in ‘theory’ provoke a shift in the pos-sibility of thinking law otherwise? Deleuze’s ‘theory of theory’ seems at first to be anti-theoretical. Far from opening up a thought or idea of

PPL-UK_DL-Braidotti_Ch002.indd 11PPL-UK_DL-Braidotti_Ch002.indd 11 7/16/2009 12:28:48 PM7/16/2009 12:28:48 PM

10.1057/9780230244771preview - Deleuze and Law, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin

Co

pyr

igh

t m

ater

ial f

rom

ww

w.p

alg

rave

con

nec

t.co

m -

lice

nse

d t

o n

pg

- P

alg

rave

Co

nn

ect

- 20

14-0

7-09