As an occasional feature on TELOSscope, we highlight a past Telos article whose critical insights continue to illuminate our thinking and challenge our assumptions. Today, Charles Kollmer looks at Alexandre Lefebvre’s “A New Image of Law: Deleuze and Jurisprudence,” from Telos 130 (Spring 2005).
Even readers with a cursory familiarity with Gilles Deleuze’s work will have no trouble surmising his critical attitude toward the law. As an abstracting and generalizing social force, law seems to stand in stark opposition to watchwords like immanence and singularity that pervade Deleuze’s texts. In “A New Image of Law: Deleuze and Jurisprudence,” Alexandre Lefebvre offers a novel interpretation of this antagonism toward the law, starting by distinguishing between law and jurisprudence. As the philosophy that informs the practice of law, jurisprudence interrupts the stasis of the legal code by actively applying it to a case. In turn, a given case takes on a genetic role in future versions of the law (conventionally referred to as precedent). Jurisprudence liberates law from appeals to transcendent values by insisting on its relevance to the here-and-now, as well as its role in the genesis of the yet-to-come. In his article, Lefebvre elaborates on this dynamic, starting with a summary of Deleuzian critiques of law, then moving toward what he terms “a new image of law,” drawing on Henri Bergson’s metaphysics in the process.
Lefebvre enumerates the critiques of the “dogmatic image of law,” drawing heavily on Deleuze’s Difference and Repetition. The first critique indicates that law falsely transforms singularity into particularity, which entails a transition from a unique instantiation to an element subsumed within a general concept. Lefebvre titles the critique one of “false repetition,” insisting on the difference between repetition and equivocation; unlike equivocation, true repetition does not collapse into generality, but rather proliferates, with each repetition forming a genetic element of the next. The second critique, “critique of judgment,” addresses the process of categorization. Lefebvre writes: “Underlying judgment is the presupposition of existing categories that can adequately portion difference; it is precisely this presupposition that assures that judgment ‘can neither apprehend what is new in an existent being, nor even sense the creation of a mode of existence’.” Again, this critique reminds us of the present case’s genetic role in future cases, as the process of categorization necessarily affects our notion of the categories we employ in it. The third critique attacks “state form” and the moral law inherent to it; these transcendent concepts overdetermine their constituent subjects and reflect sedimented tradition rather than the universality they purport. The final critique addresses the abstraction inherent to the language of human rights, which generalizes situations to the point of contradiction (Lefebvre suggest an easily recognizable conflict between the right to property and the right to life, for example).
Given these issues with law, Lefebvre can outline two types of jurisprudent “encounters,” which he entitles the “easy case” and the “problematic case.” In that it relies on an unreflective application of “dogmatic law,” the easy encounter comes under fire from the critiques above, whereas the problematic encounter acknowledges both the singularity of the case and the complex interdependence of the present case and the law in toto. In order to better illustrate the creative jurisprudence that a problematic case demands, Lefebvre offers a concise summary of Bergson’s metaphysics, which greatly influence Deleuze’s work:
He imagines a world of pure matter, without perception, a world of present images and not represented images. For Bergson, perception is subtractive: we apprehend pragmatically and perceive only the aspects of the object that interest us. Unrepresented, therefore, an image presents all its sides at once. This image is without the narrowing function of perception: it is absolutely present in all of its qualities, aspects, and movements, both to itself and to other images. Each “point” of an image is available and acts upon each “point” of the universe. These fully present images “present each to the others all their sides at once [toutes leurs face à la fois]: which means that they act and react mutually by all their elements [parties élémentaires], and that none of them perceives or is perceived consciously.” Bergson’s actively spatial language—sides, points, parts—depicts the pure image of matter. As time/duration is not yet included at this stage of the theory, we can claim that the image is fully and totally actual, it reserves none of itself either in subtractive perception, nor does it gain in virtual duration. This is a field in which everything is given (but not to a subject) in infinite reciprocity. The legal case can be understood as an image in this strict sense, and preliminarily can be defined as a pure actual image insofar as it underlies and exceeds its representations. This helps us to see that the most basic operation of any judge or lawyer is to select points and qualities of a legal case and coordinate these into an argument or a judgment. Insofar as we exclude temporality and memory from the case (and at this point we do), the perception of a case and the process of presenting an argument is limiting and subtractive. Only certain crucial points are advanced and construed into legal argument, but underlying these points is the case-in-itself, unperceived, or giving to perception the part that interests the perceiving parties. The case-in-itself (the pure actual case) has an infinity of points and sides that go neglected, facts irrelevant to the interest at hand that exceed its particular legal construction. This case, then, will have infinite sides and points. Its actual present sides are infinite, there for possible selection, and yet the infinity of sides is sustained only insofar as these are unperceived. While a natural object is more readily conceivable as a pure actual image than a legal case (for the latter’s very definition as legal case reins it into perception and limitation), we hold that as an image the legal case exists more fully, with absolutely more sides, than a represented case. At this point of the investigation, the legal case as actual image is a discrete numerical multiplicity with infinite actual sides that bear no virtuality or perception. The unperceived case is a fully present actuality.
Having outlined the pure actuality of spatially present matter, I now sketch the pure virtuality of temporal memory. We shall see that the combination of these two—matter and memory—will provide the ground for a new image of law. For Bergson, the concept of the pure past emerges from three paradoxes of time. Deleuze analyzes these paradoxes with precise economy in Difference and Repetition. First of all, the past cannot be reconstituted by passing presents, by past presents. For the present to pass—for there to be a continuity of time rather than a series of juxtaposed and infinitely decomposable present instances—the present must be “past ‘at the same time’ as it is present.” This is the first paradox of time: the past as contemporaneous with the present that it was. This leads to a corollary paradox: coexistence. It is not a discrete past that coexists with the present; rather, all of the past is contemporaneous with the present (a present which is now also past given the first paradox). Finally, the third paradox is that of preexistence. Given that the past is “contemporaneous with the ‘present it was,'” we treat a past which was never present, it was not formed ‘after,’ it is already there. These three paradoxes lead to profound conclusions on the nature of time: There is therefore a “past in general” that is not the particular past of a particular present but that is like an ontological element, a past that is eternal and for all time, the condition of the “passage” of every particular present. It is the past in general that makes possible all past in general. . . . It is a case of an immemorial or ontological memory.
Within this metaphysical framework, Lefebvre clarifies his understanding of a creative, Deleuzian jurisprudence, one that insists that our legal heritage can only be actualized in the immanent case at hand and that we eschew the false repetition of easy habit. Asserting creativity’s potency as a political force, Lefebvre’s argument suggests a new approach to instilling change for the better via an approach that goes beyond the often empty rhetoric of human rights language.
Read the full version of Alexandre Lefebvre’s “A New Image of Law: Deleuze and Jurisprudence” at the TELOS Online website. If you are affiliated with an institution that is an online subscriber to Telos, you have free access to our complete online archive. If not, you can purchase 24-hour access to this and other Telos articles at the low rate of $5/article.
