Jurisdiction in Deleuze: The Expression and Representation of Law

Jurisdiction in Deleuze

Jurisdiction in Deleuze: The Expression and Representation of Law explores an affinity between the philosophy of Gilles Deleuze and jurisprudence as a tradition of technical legal thought. The author addresses and reopens a central aesthetic problem in jurisprudence: the difference between the expression and the representation of law. Deleuze is taken as offering not just an important methodological recovery of an ‘expressionism’ in philosophy— specifically through Nietzsche and Spinoza—but also a surprisingly practical jurisprudence which recasts the major technical terms of jurisdiction (persons, things and actions) in terms of their distinctively expressive or performative modalities. In paying attention to law’s expression, Deleuze is thus shown to offer an account of how meaning may attach to the instrument and medium of law and how legal desire may be registered within the texture and technology of jurisdiction. Contributing both to a renewed transposition of Deleuze into contemporary legal theory, as well as to an emerging interest in law’s technology, institution and instrumentality in critical legal studies, Jurisdiction in Deleuze will be of considerable interest. Edward Mussawir is based at Griffith Law School, Brisbane, Australia.

Jurisdiction in Deleuze

The Expression and Representation of Law

Edward Mussawir

First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue New York, NY 10017 A GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2011 Edward Mussawir The right of Edward Mussawir to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. Typeset in Times New Roman by Graphicraft Limited, Hong Kong Printed and bound in Great Britain by CPI Antony Rowe, Chippenham, Wiltshire All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data Mussawir, Edward. Jurisdiction in Deleuze : the expression and representation of law / Edward Mussawir. p. cm. ISBN 978-0-415-58996-3 (hbk) — ISBN 978-0-203-82962-2 (ebk) 1. Deleuze, Gilles, 1925–1995. 2. Law—Philosophy. I. Title. K230.D439M87 2011 340′.1—dc22 2010037053 ISBN13: 978-0-415-58996-3 (hbk) ISBN13: 978-0-203-82962-2 (ebk)

Contents

Table of cases Table of statutes Preface Acknowledgements 1

Deleuze and jurisdiction: expressionism in jurisprudence

vii ix x xv

1

PART I

Masks and personal jurisdiction 2 3 4

19

Personal jurisdiction: the ‘method of dramatization’ in the ‘law of persons’

21

Minority and personal jurisdiction: judging sex in Re Alex

38

Persons of animal law

56

PART II

Rights and subject-matter jurisdiction 5 6

73

Deleuze, the ‘law of things’ and subject-matter jurisdiction

75

To put to flight: the right of possession

93

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PART III

Actions and procedure 7 8 9

113

The activity of judgment: ‘law of actions’ and the procedural genre of jurisprudence

115

The jurisdiction of control: judgment and procedural forms in Thomas v Mowbray

138

The locality of law: jurisdiction in Deleuze

159

Bibliography Index

162 171

Table of cases

Attorney-General of the Commonwealth v Kevin and Jennifer and the Human Rights and Equal Opportunity Commission [2003] FamCA 94 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

155

B and B v Minister for Immigration and Ethnic Affairs (2003) 30 Fam LR 181 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1

53 70

52

Commonwealth, The v Grunseit (1943) 67 CLR 58 Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33

156 55

DPP v Thomas (Ruling No 3: Reasons for Ruling) [2006] VSC 243 (7 April 2006)

157

Hamps v Darby [1948] 2 KB 311 Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649

69 70

Minister for Immigration and Multicultural and Indigenous Affairs and B (No 3) (2004) FLC ¶ 93–174

53

Queen, The v Tang [2008] HCA 39

36

Re: Alex [2009] FamCA 1292 (6 May 2009) Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 Fam LR 503 Re GWW and CMW (1997) 21 Fam LR 612 Re Kevin (Validity of Marriage of Transsexual) (2001) 28 Fam LR 158 Re Marion (1992) 175 CLR 218 Re P and P (1995) FLC 92–615

52 52 52 52 53 52

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Re the welfare of A (a child) (1993) 16 Fam LR 715 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 R v Thomas (No 1) [2006] VSCA 165 (18 August 2006) R v Thomas (No 3) [2006] VSCA 300 (20 December 2006) R v Wei Tang [2007] VSCA 134 Reg v Gallears 3 New Sess Cas 704

154 157 154 36 69

Secretary, Department of Health and Community Services v JWB and SMB (‘Re Marion’) (1992) 175 CLR 218

52

Thomas v Mowbray [2007] HCA 33 (2 August 2007) Thomas v The Queen [2008] HCA Trans 258 (17 July 2008)

52

154 157

Wellesley v Duke of Beaufort (1827) 4 ER 1078

53

ZP and PS (1994) FLC 92–480

53

Table of statutes

Animal Care and Protection Act 2001 (Qld) Animal Welfare Act 2002 (WA) Animal Welfare Act 1999 (NT) Animal Welfare Act 1993 (Tas) Animal Welfare Act 1992 (ACT) Animals Act 1977 (NSW) Civil Liability (Animals) Act 1984 (ACT) Criminal Code Act 1995 (Cth) Criminal Code Amendment (Terrorism) Act 2003 (Cth)

70 70 70 70 70 70 70 139 154

Family Law Act 1975 (Cth) Family Law Reform Act 1995 (Cth)

38 52

Prevention of Cruelty to Animals Act 1986 (Vic) Prevention of Cruelty to Animals Act 1985 (SA) Prevention of Cruelty to Animals Act 1979 (NSW)

70 70 70

Wrongs Act 1936 (SA)

70

International Conventions International Covenant on Civil and Political Rights International Convention to Suppress the Slave Trade and Slavery

55 36

Preface

Most authors, I imagine, must feel that their work is somewhat belated by the time it appears in print. The work is already a sign of old ideas, a catalogue of yesterday’s imaginations, even when it presents something new each time to whoever reads it. In the case of this book, the sense of belatedness is accentuated by a few factors. The reception of the work of Gilles Deleuze has in recent years grown considerably within the scene of Anglo-American critical legal scholarship and jurisprudence. The present work now finds itself within a dialogue about Deleuze and jurisprudence which, at the time of its writing was far less central and consolidated as a major topic of analysis. Deleuze’s philosophy of course has been previously influential in critical legal studies. His influence is found lurking in the footnotes, for instance, of works by writers like Yifat Hachamovitch and Peter Goodrich to whom Deleuze was one ally for thinking about the repetitive texture of a common law aesthetic and authority. But the notion of a specifically ‘Deleuzian jurisprudence’, on the other hand—something approaching a philosophy or theory of law based primarily upon Deleuze’s work—is something quite different and a much more recent phenomenon. I have had the advantage of being able to follow the works of both Nathan Moore and Alexandre Lefebvre from an antipodean distance during my own period of study, both of whom had been concerned to give Deleuze an ambitiously systematic treatment in legal theory. I was able to share some of their optimism about the relevance of Deleuze to the study of jurisprudence, even if the ways of understanding that relevance were not exactly unified. Keeping one’s distance from intellectual ‘debate’, on the other hand, may also have been not without its necessity and advantage. Moore’s unsympathetic review of Lefebvre’s The Image of Law in Volume 5 of Law, Culture and the Humanities is indicative of a much broader territorialism within an academic terrain heavily invested in securing and guarding the proper names of its key theorists and the right to interpret them. With the present work then, one of the background concerns of mine had been as much as possible to avoid repeating the kind of critical gesture that

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would turn the thought of an author one loves into another schema or another law for whichever field one wants to participate in: taking it upon oneself to institute, enforce and police the legitimate and illegitimate interpretations of the work and thereby truly ensuring that no one else may even begin to enjoy it for themselves. It is always stupid, for instance, to bother to tell someone that they have got the interpretation ‘wrong’ or ‘off the mark’, to point out the contradictions or, as Moore does to Lefebvre’s reading of Deleuze, to simply note the supposed ‘error which [he] has fallen into’.1 Much better to say, ‘. . . and here’s another thing while we’re at it . . . !’, ‘what’s more . . . !’ or ‘go-on—take it further!’ with genuine amusement or fascination. This attitude might go for friends as well as enemies. Deleuze is fond of suggesting that interpretation (or misinterpretation) always has an impeccability and an unmistakable virtuosity in relation to the interpreter’s manner of being. A particular interpretation is not so much true or false, well-founded or baseless; rather it always has as much value given the style of living, the modality of expression, the kind of interpretive creature it presupposes. There is thus a great humour and generosity to his philosophy, even if there is not necessarily an unqualified ‘permissivism’. For instance, in offering this generous hand of legitimacy to all kinds of odd misinterpretation, it does not follow that ‘just anything goes’ per se for Deleuze. There are particular interpretations that would be decidedly illegitimate—satirical, dialectical, moralistic, rational-administrative, etc.—interpretations that do not survive within that perspective of humour and generosity that nevertheless marvels at the moralist, the pedant, the satyr, the administrator, the dialectician and affirms openheartedly all of their remarkable acrobatics, affects, capabilities. This book is not the first to acknowledge the affinity that Deleuze’s theory and practice of reading might have with the tradition of reading we call jurisprudence. But precisely how to characterize that affinity has not at all been clear-cut. Even during the course of my own study, the values I attributed to critical legal scholarship and jurisprudence evolved considerably. I began, for example, with an attraction to those who were engaged in criticism, in a ‘radical’ critique of law and in the broader reception of continental theory to legal studies and was left with a much different affinity: one reserved for those who just seemed to have an interest in local jurisprudence; those whose investment in the study of law was less than critical but just practical, vocational or personal. Jurisprudence is not necessarily suited to great theorists or grand thinkers who have a taste for speaking of the predicaments of ‘humankind’, of truth and justice, of ‘the subject’ and its relation to law, any more than it is suited to clever professional lawyers who have the knack when it comes to describing rights and interests and how to have them protected in law and public institutional discourse. Instead, it seemed to me that jurisprudence might be suited to a collection of individuals who find only the most tenuous justification for their own existence in ‘law’ and

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who therefore have the most immediate and vital investment in its technicaltheoretical description. ‘If you don’t admire something’, says Deleuze, ‘if you don’t love it, you have no reason to write a word about it’.2 Jurisprudence does not need to grapple with law in the abstract; it can afford to make it the subject of a more material and local encounter. And what becomes truly surprising is that, while the theory of law is really being produced everywhere, on every street corner so to speak, and with a practical necessity that belongs to these local situations, in the face of this fact, our major schools of law and legal thought have not yet become purely dumbstruck! The subject for this book is, therefore, one that may still hold some currency inside legal institutions. Jurisdiction may be a relatively major term in the technical discourse of legal practice, but its centrality as a concept within jurisprudence is something that is still worthy of some elaboration and recovery. The hypothesis for this book was that Deleuze’s philosophical method might do some of this recuperation. Even though jurisdiction is not an explicitly ‘Deleuzian’ concept, one can read aspects of Deleuze’s style and method as a recovery of certain jurisdictional arts: a jurisdiction of persons or legal personae, for instance, which provides us with a set of methods capable of critiquing the still too abstract ‘subject of rights’ and the still too central place it occupies in legal and moral philosophy. Deleuze tells us that the ‘subject of rights’ is a meaningless concept for jurisprudence: what matters are the techniques in fashioning a ‘legal person’. And indeed, when philosophy discovers (along with Nietzsche) how to pose the question ‘Who?’ rather than ‘What is . . . ?’ in relation to concepts—such that philosophy might be composed purely of certain ‘conceptual personae’3 rather than of transcendental ideas—it reveals its affinity with the discipline of jurisprudence which at times also learns to compose rights and their expression in terms of legal personae; as a relation of personal jurisdiction. It is hoped that by reading certain ‘jurisdictions’ in Deleuze, legal scholarship might rediscover some of its disused theoretical languages for addressing law’s technical contrivances and innovations, but also that a new perspective on Deleuze’s philosophy as a form of jurisprudential thought might be made more accessible. This book owes quite a lot to those who introduced me to the possibilities of thinking about law through its jurisdictions. In this regard, I wish to thank two people especially at the University of Melbourne Law School. I have been lucky enough to follow the far deeper footsteps of Shaun McVeigh, whose insight into the jurisprudence and problematics of jurisdiction I continue to find outrageously masterful and intensely unique. From Shaun, this work borrows something of the idea of approaching law’s performative or expressive registers as an explicit question of jurisdiction. Secondly, I owe an even greater gratitude to Peter Rush whose guidance throughout the length of this project and beyond it, allowed me to see life’s practices as a continuing apprenticeship in jurisprudence. I

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xiii

have Peter to thank as a teacher for first demonstrating to me that law could be studied and grappled with as an artistic, creative as well as a scientific vocation. His encouragement has at times been truly indispensable. For the time spent discussing this work, lending me those key texts in his literary archive, and for the countless drafts of the parts of this work which he has read through meticulously, generously and critically, I am enormously grateful. I also want to acknowledge and thank Peter Goodrich and Keith AnsellPearson who examined and offered insightful criticism of my work. This book attempts to incorporate the perspectives that they each brought in different ways to my reading of Deleuze and jurisdiction. In relation to the jurisprudential treatments of jurisdiction in particular, Peter has provided me with much inspiration and food for thought over a number of years. I am grateful too for the many others who commented upon, encouraged and challenged my thinking at conferences and workshops over the course of this project and influenced its development; they are too many to be named here. I also want to acknowledge my appreciation of those who additionally have had a long-standing commitment toward fostering a collegial critical legal community in Australia. Lastly, I would like to also thank the many colleagues and friends and family who have made the study of jurisprudence in Melbourne something more necessary, more humorous and more collective. Yoriko Otomo, Connal Parsley, Cressida Limon and Jothie Rajah for sharing their creative energies with me, their intellectual trepidations and for making the life of law and its theory less lonely and more multiplicitous. Luis Eslava who manages (much to my admiration) to share an endless and genuine goodhumour in the study of law, as well as Olivia Barr, James Parker and also Bec Goodbourn who I similarly admire for bringing a cheerfulness of interpretation to more than just Deleuze. Juliet Rogers for her consistently incisive engagements with my work amongst many others at the Melbourne Law School over a long period. And Marc Trabsky not least for helping many of the ideas in this book to be either born, altered, assaulted or just sacrificed. Finally, and of course most of all to Marika with whom law might afford not to be just a conversation but a long experimentation, a fellow-traveling, a navigation: We’re in the same boat: a sort of lifeboat, bombs falling on every side, the lifeboat drifts toward subterranean rivers of ice, or toward rivers of fire, the Orenoco, the Amazon, everyone is pulling an oar, and we’re not even supposed to like one another, we fight, we eat each other. Everyone pulling an oar is sharing, sharing something, beyond any law, any contract, any institution. Drifting, a drifting movement of ‘deterritorialization’: I say all this in a vague, confused way . . .4

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Notes 1 Nathan Moore, ‘Book Review: The Image of Law: Deleuze, Bergson, Spinoza’ (2009) 5 Law, Culture and the Humanities 462, at 463. 2 Gilles Deleuze, ‘Gilles Deleuze Talks Philosophy’ in David Lapoujade (ed.), Desert Islands and Other Texts 1953 –1974, Trans. Michael Taormina (New York, NY: Semiotext(e), 2004), pp. 143 –145, at 144. 3 See Gilles Deleuze and Felix Guattari, What is Philosophy?, Trans. Hugh Tomlinson and Graham Burchill (London: Verso, 1994). 4 Gilles Deleuze, ‘Nomadic Thought’ in David Lapoujade (ed.), Desert Islands and Other Texts 1953–1974, Trans. Michael Taormina (New York, NY: Semiotext(e), 2004), pp. 252–261, at 255.

Acknowledgements

Versions of two of the chapters in this book are published elsewhere as articles. Chapter 7 incorporates ‘The Activity of Judgment: Deleuze, Jurisdiction and the Procedural Genre of Jurisprudence’ in Law, Culture and the Humanities, 10.1177/1743872110379697 and Chapter 8 ‘Jurisdiction of Control: Judgment and Procedural Forms in Thomas v Mowbray’ (2010) 19(2) Griffith Law Review. I would like to thank Sage Publications and Griffith University for kindly granting the permission to reprint this material 307–329.

Chapter 1

Deleuze and jurisdiction: expressionism in jurisprudence

Modern legal theory is beginning to reconnect with the language and conceptuality of ‘jurisdiction’. Gilles Deleuze’s philosophy of expression also enjoys a renewed relevance in legal theory and offers a unique perspective on the thematics of jurisdiction. This chapter traces the development of both the thematic of jurisdiction as well as the reception of the work of Deleuze in contemporary jurisprudence. It proposes that Deleuze’s method may be read as recovering certain technical genres of jurisprudence relating to persons, rights and actions.

It is a difficult thing to try to navigate the law without an idea of jurisdiction. This it seems is one piece of knowledge over which lawyers in particular may have no special claim. It is true that jurisdiction on the one hand concerns very technical matters of law. For this reason, it is assumed to be a problem confined to the discourse of the legal profession who are thought to negotiate the problem of how laws work in practice, when and where they should apply, over whom and with what authority. The techniques of law in this sense might be equivalent to the techniques of cooking, mechanics or music: the imperative is to ‘know your craft’. Yet on the other hand, to be concerned about problems of jurisdiction, one does not necessarily need to have any special knowledge of the law: to be able to represent the law to oneself or to others. It may, in fact, be more advantageous not to know the law all that well; to really know it a little less perfectly than most and therefore to make of one’s description of it more of an expression than a representation. This book discovers an unlikely ally for thinking about the concept of jurisdiction: Gilles Deleuze. It may seem curious at first glance to invoke the work of Deleuze for a study of jurisdiction. Deleuze has had a broad influence in philosophical, artistic, cinematic, linguistic and cultural theory; but his work (and in particular that conducted with Felix Guattari) has often appeared too unruly to have anything but an oblique and random presence in jurisprudential writing. While recent studies have attempted in some measure to redress this lack of systematic treatment of Deleuze’s thought in

2

Jurisdiction in Deleuze

jurisprudence, they have not necessarily employed the thematic of jurisdiction in doing so.1 The reason for this is not difficult to imagine: jurisdiction is not explicitly a ‘Deleuzian’ concept; indeed, it is a concept linked in a conventional way to an institutionality from which theorists interested in Deleuze have typically distanced themselves in a critical sense. There is a sobriety to the legal conceptuality of jurisdiction that seems to cut against the grain of most of the Deleuzian interjections in legal theory; interjections which have typically attempted only to extrapolate certain of his concepts ‘invented’ within other fields, in an attempt to radicalize our critical relation to law. Yet it may be precisely this sobriety and this non-figurative technicality that gives jurisdiction an ideal candidacy as a concept describing Deleuze’s encounter with jurisprudence. Speaking about ‘style’ in literature, Deleuze notes that, ‘The secret of great literature is to move toward increasing sobriety . . .’ through which ‘the ease of figuration falls away’.2 Legal writing too has this kind of literary effect. And if the form of literature that we call law has not so much a figurative as a technical and instrumental value, then the increasingly sober questions of jurisdiction may be, for legal scholars, something worth re-examining. The concept of jurisdiction implies a certain relation between expression and representation in jurisprudence.3 On the one hand, theories of legal power in modern jurisprudence have tended to focus upon the metaphysical problematic of sovereignty and its relation to the origin, foundation and purpose of State authority. Questions of jurisdiction on the other hand, which continue to order the local, technical and technological languages of law, the modalities of legal speech, institution and the aesthetics of judgment, have remained relatively unaddressed by modern theoretical discourse. Thus, while the major critical philosophies of law can be characterized by surveying a distinctly ‘representational’ aesthetic of legal authority, the matter of the ‘expression’ of this authority has increasingly become abandoned to a narrow juridico-institutional technicism. The consequences of this are not necessarily easy to translate. It is difficult, for instance, to note precisely what is at stake when legal institutions find it useful to continue to frame as an arrangement of ‘jurisdiction’, relations of power that theorists have typically been concerned to present in more totalizing or universalizing terms. Conversely, it is also hard to account for what might be at stake when the traditionally technological and jurisprudential knowledge of jurisdiction is removed from its theoretical treatment and gets left to the technicaladministrative domain of law. Deleuze’s work nevertheless provides, through a commitment to a certain ‘expressionism’ in philosophy, a way of also addressing the ‘expressive’ jurisdictional practice of jurisprudence. Deleuze never felt the need to write a book explicitly on jurisprudence despite the fact that he left us with some brief clues on why it might have been crucially important to his outlook in philosophy.4 Deleuze, of course, was not a lawyer and so could not claim to have had a technical, professional or vocational knowledge of law but this same non-expertise in relation to

Expressionism in jurisprudence

3

other disciplines such as cinema, art and music did not prevent him from tracing his own fantastic philosophical modifications and encounters within those fields. Out of all the various arts and disciplines that interest Deleuze, nevertheless, it is possible that jurisprudence might have been capable of competing with philosophy as the subject of a kind of ‘life-work’. ‘If I hadn’t done philosophy’, he reminds us in an interview with Claire Parnet, ‘I would have done law . . . I would have done jurisprudence. Because that’s life’.5 In one way, all of Deleuze’s work may be read as a jurisprudence: a creative negotiation of the technical field of law that is co-extensive with life. As legal scholars we might take some pleasure in imagining then that ‘jurisdiction’ might have played a key conceptual role in it, not just because it seems to reveal certain affinities with Deleuze’s theoretical apparatus in general (including the idea of ‘expression’ in philosophy), but also at a more practical level because it refuses to transcendentalize our analysis of law or judgment through terms that are foreign or superior to its own idiom. When Deleuze writes books on cinema, on the work of a certain author or painter or on a particular academic area of study, etc. all of the concepts he employs in these studies are drawn from the field or the medium in which he becomes embedded. He does not apply semiotic, linguistic or psychoanalytic theory to cinematic study for example; he draws from cinema the theoretical concepts adequate to the practical and creative dimensions of that medium, so that the work becomes a kind of toolkit for film-makers, etc. rather than film-critics. What jurisdiction gives us then is a way of working within law’s medium. It gives us a method for analyzing power in a language that maintains a descriptive relation to matters of ‘legality’. As legal scholars, we cannot ignore the fact that what we are (or are meant to be) engaging with are questions of law. And yet we usually become acutely aware as critical theorists that the technical languages of law are limiting to the creative scope of our intellectual analyses. Jurisdiction may act as a kind of challenge in this respect: it challenges us from one perspective to invent certain ways of ‘making do’ without a law, without higher values (values superior to one’s jurisdiction) and yet from a different perspective this might also challenge us to develop a way of being with law, a style of existing with law and with its languages, technologies and practices. The only way in which one can make do without law, Deleuze suggests, is through a ‘jurisprudence’—a practical creativity that belongs to cases and local situations—and yet jurisprudence does not work outside of laws in some sphere abstracted from the custom of legal principle. It requires all of these laws, legal principles, judgments, etc. to constitute the desert of its immanent mode of navigation.

Theories of jurisdiction The development of a theory and an analytical language of jurisdiction can be said to have become more essential in recent years to the techniques of

4

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legal scholarship.6 The reasons for this are not necessarily straightforward. On the one hand, critical theory in law has for some time negotiated its plural ideological roots by surveying the metaphysical contingencies in law: reminding us of the difficulty of overcoming the structures of legality without simply repeating them.7 And yet the textures and contours that make up this very repetitive and non-representational terrain of law—textures which define the practical arts of legal technical and technological knowledge—remain relatively makeshift and unaccounted for in an analytical sense. This has meant that those theoretical studies of jurisdiction concerned with the minor, local techniques and practices of law more than with the major politico-theological representations of legal power, have now come to present an important (if still marginal) movement in legal studies. There are two recent examples of extended studies of jurisdiction that deserve to be mentioned by way of an introduction to the place that this book has within contemporary legal scholarship. The first is a collection of essays edited by Shaun McVeigh titled Jurisprudence of Jurisdiction and in particular the contributions to this work by McVeigh himself.8 The second is a study by Bradin Cormack examining the place of jurisdiction in early modern legal and literary culture in England titled A Power to do Justice: Jurisdiction, English Literature, and the rise of Common Law, 1509–1625.9 The impetus behind both of these works tends to arise at least in part through an engagement with the theoretical and legal-historiographical work of Peter Goodrich and Pierre Legendre.10 Goodrich and Legendre have each sought to interpret the authority of law through its relations of desire: an interest that has implied in both cases an attention to the problematic and texture of jurisdiction. For Goodrich, this problematic is related to the speech and affect of legal enunciation. Goodrich has attended, on the one hand, to the relation of the rhetorical field of legal speech to the unconscious dynamics or attachments of authority that this field puts to work11 and, on the other hand, to the minor or repressed genres of legal knowledge which, in being marginalized or forgotten, have reduced law’s plural sites of authority to a supposedly coherent or unified system.12 Legendre has understood legal desire and jurisdiction as a more structural relation. Legendre sees jurisdiction as referring to the inaugural relations of attachment of a subject to the categories of legal judgment.13 The terms of his analysis are accordingly symbolic and historical: an analysis of jurisdiction allows us to account for the various forums of judgment through which desire has become an object of political order. For Legendre, law’s hold on life is primarily a relation of faith, and jurisdiction problematizes the Christian inheritances of a structural articulation of judgment and subjectivity in the West. In McVeigh’s and Cormack’s recent works, the critical language of jurisdiction has become more self-reflective. These works are now more attentive to the significance that a theoretical project focusing upon jurisdiction has within the various directions of critical legal studies. They have an acute

Expressionism in jurisprudence

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self-awareness not only of the place that these studies of jurisdiction have in relation to the technical and institutional languages of law but also in relation to the critical theoretical engagements with a political problematic of power and sovereignty. Responding to the kind of philosophical bind with law and sovereignty that theorists like Giorgio Agamben are seen to fixate upon, Cormack sees jurisdiction ‘as one symbol of the possibility of finding within law the mobility that, subject as we are to a narrowed conception of sovereignty, we may too easily locate only in the phantasm of a “life” beyond law’.14 For Cormack, a focus on jurisdiction represents a relatively unnoticed alternative to the terms of a debate on legal power that has only tended to stabilize our attention on the paradoxical conditions of law. It does this through a closer consideration of the idiomatic processes and technical productions of normative order specifically within literary and legal culture. McVeigh similarly attempts to make the theoretical impetus behind jurisdiction and behind approaching questions of legal power and normative social ordering through a thematic of jurisdiction more explicit. Part of McVeigh’s project in Jurisprudence of Jurisdiction is to garner a response within critical legal studies to the question of what it means to return jurisprudence and legal theory to a problematic of jurisdiction.15 It has become clearer with the aim of McVeigh’s book just what is at stake with refocusing our critical analyses upon questions of jurisdiction: a concern ‘not so much [with] a critique of the form of law, but [with] an investigation of the modes or manners of coming into law and of being with law’.16 This represents an important consolidation in the understanding of the conceptual place and significance that jurisdiction occupies in the theorization of legal power.17 Jurisdiction may refer us to matters of judgment, institution and address but also for McVeigh to matters of decorum. This is because, far from organizing our critique of law upon a broadly litigious model of thought and judgment, a consideration of jurisdiction asks us to account for the styles and manners of being before the law and of having a life instituted, judged or addressed before the law.18 Both Cormack and McVeigh are concerned to emphasize that jurisdiction shifts the gesture of our critique in an important way: no longer simply to the fact that there is law (which one can afford to take as given) but to the manners by which law engages us in terms of its processes, technologies, expressions, forums, etc. If normative relations of power can still be substantially addressed through matters of legality, then it might be appropriate for legal studies to acknowledge and attend to the technical questions of jurisdiction. My own approach to jurisdiction in this book is sympathetic to the intellectual impetus behind these particular projects; notably, their attempt to re-situate the analytical accounts of legal power within the institutional languages immanent to its exercise. I seek to add to them in a general sense by offering a theoretical analytic borrowed from Deleuze. The point of giving my analysis of jurisdiction this inflection is not necessarily to provide a unified

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theoretical basis to the study, not least in the sense that this might be taken to exhaust the many different critical perspectives that can be brought to interpretive accounts of jurisdiction; nor is it to provide a supposedly more ‘radical’ extrapolation of its scope within jurisprudential thought. Instead, it is hoped that in bringing Deleuze toward jurisprudence and to the concept of jurisdiction in particular, that this encounter might produce a number of unsuspected affects.

Gilles Deleuze and jurisprudence There is always a danger in approaching the work of a major author that one will become too enamoured with the system of their thought and therefore make it into another substitute for law; refusing to entertain that essentially humorous plurality of perspectives which belongs to interpretation. Despite the popularity of Deleuze’s work in a range of critical disciplines today, it is still rare to find a clear consideration of his influence with respect to law and jurisprudence. Until recently, discussion of Deleuze’s work in terms of legal philosophy and critical legal theory has remained relatively cursory.19 One exception to this is a contribution by Yifat Hachamovitch titled ‘In Emulation of the Clouds’ in which Deleuze provides the tools to a critique of the phenomenology of legal judgment.20 Other systematic attempts to introduce Deleuze’s philosophical project to the domain of legal theory have had to wait. Nathan Moore and Alexandre Lefebvre have both in recent years attempted to give a methodical account of Deleuze’s significance within critical legal studies and analytical jurisprudence.21 Their projects are relatively ambitious, not least of all because of their insistence and their capacity to keep to a distinctively Deleuzian conceptual language that may not necessarily transpose itself comfortably into a jurisprudential idiom. Very broadly speaking, Moore focuses his analysis through a Deleuzian account of regimes of signs and their relation to the structural orders of legality, while Lefebvre gives Deleuze a centrality most significantly to the ways of approaching analytical accounts of ethics and adjudication. In these works, the possibility of tracing the contours of a Deleuzian jurisprudence has become the object of increasing reflection. For Lefebvre, the insight behind this reflection comes ‘tantalizingly’ from Deleuze himself. Deleuze never devoted a written work to the topic of jurisprudence, but he did hint in a number of interviews that it held a particular significance to his philosophy.22 When he speaks about jurisprudence it is always to distinguish and privilege it in relation to something more abstract such as law, justice and human rights. Jurisprudence engages a particular relation with law, but a relation that is immanent, practical and ‘lived’ rather than a relation of appeal, codification or representation. As Lefebvre paraphrases: Deleuze recommends jurisprudence to address specific user groups that negotiate how to live with a problem. Instead of a general and transcendent

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rights-bearing subject, we have life and the problems of life that proceed only case-by-case, something for jurisprudence to unravel and honor. Jurisprudence addresses the situation to make it livable, it resists coding it with transcendent evaluations of abuse. Justice and Rights do not exist. Only jurisprudence exists and it alone is capable of creating law [droit].23 Both Lefebvre and Moore address the possibility of a specific Deleuzian meaning to ‘jurisprudence’. Moore is concerned with ‘Deleuze’s distinction between . . . [the law and laws] on the one hand, and jurisprudence on the other’,24 and notes that jurisprudence is a ‘creative action of legal practice, the process by which it is forced to think constructively and anew’.25 Lefebvre similarly posits a Deleuzian jurisprudence as a ‘new image of law’26 or as ‘a positive escape from the strictures of law’.27 The tendency to present Deleuze as a kind of iconoclast and as a thinker of radical novelty in the context of legal theory, however, has in some respects served only to further distance his philosophy from the technical, aesthetic and theoretical concerns attending to jurisprudence as a tradition. As legal scholars we may take Deleuze at his word when he tells us that what matters practically is not law but jurisprudence. He is not necessarily suggesting that his own work offers a new kind of model for jurisprudential thought but that (like within any medium or activity) the theory and practice of law must always be approached concurrently, which is what it means for a legal discipline to follow its lines of creativity. We might say that Deleuze offers us a philosophy attuned toward life: and it is life as a kind of jurisprudence that goes ‘case by case’. Jurisprudence is not a purely intellectual or abstract critique of law but a trade-practice, a technical activity and an art of juridical innovation co-extensive with the practice of living. Jurisprudence turns law and rights toward the matter of their invention and expression: replacing judgment with a casuistry of affects, legislation with an empiricism of relations and subjectivity with a method of ‘dramatization’. It manages our modes of being with law and our creative resources for making-do within its medium. This is why interpreting Deleuze as offering us a philosophy that in any way ‘escapes’ from law or radically overturns the structures of legality and power runs the risk of losing sight of the implications that his work may have within the more institutional genres of legal practice and knowledge. Had Deleuze studied jurisprudence rather than philosophy (a possibility he entertains in an interview with Claire Parnet),28 his intervention in this field may have perhaps been more technical, procedural and practical but also potentially more humorous than what we might have at first expected. As it is with other kinds of art, having a style in jurisprudence would be a matter of taking the side of ‘increasing sobriety’:29 pushing the technical resources, the procedural repertoires and institutional logics of law to their limit; producing certain functional juristic monstrosities that in fact belong all the more precisely to the technicalities of legal knowledge; a kind of expressionism in jurisprudence.

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These kinds of affects are probably beyond the scope of this work. But to read Deleuze as a thinker of jurisdiction and to read certain jurisdictional genres through a Deleuzian aesthetic implies to some degree following the active or expressive lines that push a seemingly stable representational system beyond the simple terms of its representation. Law is undoubtedly an interesting medium to put into the vicinity of Deleuze’s thought. One of the main reasons for this is that it has become increasingly difficult, from many contemporary theoretical perspectives, to be convinced that law is either a necessarily creative discipline or that it plays anything like the practical role it once did in the productive sphere of socio-cultural relations. It is a challenge for us to see, in other words, and as Tim Murphy has pointed out, ‘What is it that law does?’, that is, beyond the relatively banal act of recognizing and registering our movements or activities.30 The challenge for a Deleuzian approach to jurisprudence is to read into the fabric of law a dimension of expression; to follow, out of law’s many simple reactions to social and cultural activity, the matter that is itself active, creative, productive, etc. And this active line can be followed all the more intensively not necessarily by appealing toward other more cohesive or critical systems of knowledge, but by inhabiting and attending to the instabilities in law’s procedural and institutional idiom itself. The emergent attempt within critical legal studies to extrapolate and pursue a specifically Deleuzian concept of jurisprudence has so far left this aesthetic, performative or stylistic problem somewhat to the side. Deleuze is sometimes taken as offering a radical critique of the form of law but as leaving problems to do with the performances, languages and creative resources that tie us to our roles as legal scholars, relatively unchanged. This book seeks to add to the work on Deleuze and jurisprudence then by noting that the institutional languages and technologies that we hold onto and work with in a legal discipline may be more important than the ones we seek to import from other fields. A Deleuzian aesthetic of expression in particular helps us to understand the potentiality that may still belong to the peculiar styles by which law is processed, acted and arranged. Given that we belong to a technical discipline of law, Deleuze invites us to find certain practical ways around this discipline; ways to engage creatively with the texture and medium of law.

The expression and representation of law Reading Deleuze as a philosopher of expression or as a surveyor of the aesthetic relation between expression and representation is not new.31 Deleuze is commonly considered among the philosophers of ‘difference’ and within these to have given difference an immanent and expressive theorization. One of Deleuze’s key arguments—and one that continued to shape his subsequent studies—was that part of Western philosophy bungled its theory of difference by relating it to an image of thought based upon ‘representation’.32

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It is as though, by imagining the act of thought to be nothing more than a principle of ‘representing’ or ‘recognizing’, philosophy completely reduced its account of difference to certain transcendent frames of reference: identity, similarity, opposition and analogy, and thereby also secured its own complicity with a moral or dogmatic gesture that was essentially non-philosophical. What Deleuze sets up against this representational image is a dynamic of ‘expression’. His tracing of a philosophical aesthetic of expression or an ‘expressionism in philosophy’ comes specifically through an appropriation of Spinoza and Nietzsche and a commitment to the vitalism in their styles of thought. Both Spinoza and Nietzsche are celebrated by Deleuze as formidable counterparts to a representational image of thought in the history of philosophy: Spinoza in founding a truly post-Cartesian ethical ontology and Nietzsche similarly in following an authentic post-Kantian and anti-Hegelian critique of values.33 Both provide Deleuze with a method, a manner and a tone that appear all the more uniquely ‘Deleuzian’ the more meticulously he follows them. What is unique and consistent about this method is that it wagers heavily on the side of life: it refuses to let the mode of any ‘lived experience’ fall back upon or be replaced by the terms of representation or recognition. For Deleuze, the elegance in the idea of expression is that it addresses a segment of experience or mode of existence by always requiring it to be pushed further down the side of being lived rather than being returned or ‘cashed-in’ to the narrative of those who only want to speak on its behalf. In Nietzsche, this belongs to a certain ‘method of dramatization’ according to which one does not ask, regarding a phenomenon for instance, ‘What is this?’ but ‘Who interprets it?’ or ‘From the perspective of the one who lives in which kind of way?’, etc. In Spinoza, it comes through the co-ordinates of an ethics addressed toward an ontology of affect, power and styles of living. The only ontological question of ethics is, ‘What can a body do?’—a question that involves, in Deleuze’s reading of Spinoza, ‘no devaluation of Thought relative to Extension, but merely a devaluation of consciousness relative to thought’.34 Deleuze finds in Spinoza and in Nietzsche alike the systematic refusal to reduce the intensity of a thought, the tonality of a passion or the affectivity in a mode of existence to a mere form of ‘consciousness’, representation or signification. Within the field of jurisprudence, nevertheless, the importance of such a theory of expression has not been given its full significance. The idea of expression in Deleuze’s work obviously has a specific relation to a juridical field at least in the sense that what it opposes is a distinctly moral image of thought and to a complicity between morality and representation. Deleuze is careful not to equate juridicism and morality. Juridicism has both a moral and an ethical vision of the world corresponding to a representational and expressive arrangement of its power.35 But the opposition between a moral and an ethical vision in jurisprudence is perhaps starker than it is in philosophy since

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jurisprudence has never maintained the pretense (as philosophy has) of an inaugural ‘friendship’ which ensures a common ground for dialogue and ties the possibility of thought to a goodwill on the part of the thinker. Jurisprudence on the contrary, if it ‘thinks’ at all, does so within a combatzone where friendship is precisely assumed to offer no common ground for thought. To address an expressive philosophy of law or to address the form of juridicism that might be implicated by an expressionism in philosophy is therefore one way to understand the place of jurisprudence in relation both to the aesthetic and the moral domains of law. Representing the law is a very different gesture than expressing it, even when the law itself, in its content, remains substantially the same in both cases.36 This is why, read as a representational genre, jurisprudence appears like a simple history of moral philosophy; and yet if it is possible to read it from the side of its expression on the other hand, this same tradition appears in fact—as the technical instrument of law—better than any other to rival moral thought to its core. Given this complexity, nevertheless, an expressive genre of law is not necessarily something new or even something progressive in jurisprudence. Deleuze notes that a theory of expression in Spinoza ‘already had behind it a long philosophical history. But a rather hidden, and a rather forbidden history’.37 If there is something supremely elegant about the gesture of expressionism there is also something gauche and ‘off-beat’ about it that makes it difficult to trace in the altogether ‘respectable’ narrative of history. Contrary to a common contemporary estimation, expression in Deleuze’s thought does not represent any major radicalism in relation to law or jurisprudence. If anything, by taking the side of empiricism and ‘jurisprudence’ against the rational complicity between law, self-legislation and moral philosophy, he is following a line of thought that provides him with non-revolutionary allies in the likes of David Hume and Friedrich Carl von Savigny. Deleuze affirms with them, for example, the importance of jurisprudence as a local and practical legal creativity against those who would seek to reduce it either to a code, a theology or to a system of metaphysics; those, in other words, who would be content to substitute an existing field of legal wisdom with an abstraction of juridico-philosophical ‘consciousness’. One of the central propositions of this work is that the matter of law’s expression in Deleuze’s sense might be approached in terms of certain genres of jurisdiction. Not only, in other words, does a theory of expression in the work of Deleuze give us a rich account of the textures and technical practices of jurisdiction but jurisdiction as a concept itself gives us a way of reading the innovation that belongs to Deleuze’s philosophical style in particular as an innovation within the field of jurisprudence.

Genres of law’s expression: persons, rights, actions The expression of law is concerned not so much with the subjects and objects of legal knowledge but with law’s medium, technology, performance

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and articulation. One way in which Western jurisprudence has arranged its genres of knowledge is according to the Roman civil law division between persons, things and actions. This tertiary division continues to inform the structures of jurisdictional arrangement in modern legal systems. Yet how deeply it also continues to organize the possible categories of modern social and political thought more broadly has been the topic of recent speculation, particularly among those who have been inclined to pose the question of the anthropological bases behind the abstraction of the legal ‘person’ and ‘thing’ of liberal ideology.38 Another way to address this problem may also be to question the extent to which these categories have constituted distinct genres of jurisprudential analysis. Personal jurisdiction, subject-matter jurisdiction and procedural jurisdiction are areas of legal knowledge that in contemporary institutional discourse do not reach the intellectual or theoretical significance they once did in the historical modes of jurisprudence. The tendency is to treat them as categories of an otherwise unified system of legal representation or administration rather than as distinct and non-subsumable methodologies belonging to the technical knowledges of jurisprudence. The three parts of this book correspond to the schematic of persons, things (or ‘rights’) and actions as elements of both a theoretical account of jurisdiction and as particular styles to Deleuze’s expressionism in jurisprudence. The contours of this connection are no doubt complex. But it is not a stretch, I believe, to read Deleuze as attempting to recast three particular representational categories of juridical knowledge toward the equivalent genres and modalities of their expression. Persons, rights and actions thus give us three separate sites for thinking the distinction between the expression and the representation of law; and these sites correspond to certain central methodologies in Deleuze’s form of philosophical expressionism. The first is a methodology based upon the question ‘Who?’. Questions of ‘personal jurisdiction’ for instance do not refer us to a representational relation between an abstract legal subject and the transcendent terms of its authority, but rather to an aesthetic of masks in which the question ‘Who?’ functions as a fundamental element irreducible for instance to the problematic of ‘What is?’.39 For Deleuze, this method is distinctly pluralist, empirical and anti-dialectical. Dialectics makes the empirical kind of questions such as ‘Who?’ or ‘Which one?’ something lowly and unintelligent in relation to the supposedly proper philosophical form of question—‘What is this?’—which is meant to bring us toward a dialogue on essences. This is one reason why a ‘Law of Persons’—which constitutes a key genre in the history of Western jurisprudence—can be treated by positivist thought simply as a law of ‘status’. Deleuze provides the means of treating it rather as a technical genre of masking. Why is it, he asks, that the question ‘Who?’ should not be worthy of a true philosophical method? From the perspective of this method, the ‘person’ does not just bear or possess value by way of his or her status but constitutes, as a mask, a particular means of ‘evaluating’. When one reads the distinction between ‘free’ and ‘slave’ for instance in the

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Roman ‘Law of Persons’, one gets a different picture of jurisprudence than when one reads it in terms of status. It is a jurisprudence which does not just reflect the stable social reality of the time but one which ‘dramatizes’ it. ‘Free’ and ‘slave’ do not define the pre-judged statuses of individuals in a particular society: they are themselves the persons, the perspectives or the ways of living of the one who judges. ‘Evaluations’, Deleuze writes, ‘. . . are not values but ways of being, modes of existence of those who judge and evaluate, serving as principles for the values on the basis of which they judge’.40 This is the sense of Nietzsche’s opposition between noble and base which never refer to ‘classes’ as such but to instincts or forces. Personal jurisdiction is one way of devolving the ‘subject’ of rights and the subjective conditions of judgment upon the immanent evaluation of the one who ‘lives’ or performs it. The fashioning of discrete ‘legal persons’ is thus a key art of jurisdictional knowledge that can do without the ‘subject’ of rights. Part I of this book explores this theme of masks and personal jurisdiction. Chapter 2 examines the connection between personal jurisdiction and the ‘method of dramatization’ in Deleuze’s work and aims to approach the jurisprudence of persons as a technical genre rivaling the dominant moral and philosophical accounts of subjectivity. This chapter is followed by two case studies which explore the techniques involved in such a conception of legal personality. Chapter 3, for instance, addresses a normative problem of the sex of a minor in a case before the Family Court of Australia, while Chapter 4 explores the emergent discipline of ‘animal law’ through a description of its ‘persons’. The focus on these case studies is not so much a focus on ‘excluded’ minorities, but an attempt to show how the concept of personality in jurisprudence, and in Deleuze’s work, serves as a critique of the major form of subjectivity itself and the ‘rights of man’. The second method in Deleuze’s jurisprudential thought constitutes not just a separate thematic but also a separate ontology and genre of analysis. The methodology mentioned above develops a unity to the senses of ‘person’ and ‘mask’ and gives us a way of thinking personal jurisdiction as an expressive aesthetic of masks. The second, however, refers instead to a unity to the senses of ‘thing’ and ‘right’. In a lecture from a series delivered on Spinoza in 1980 titled ‘Power and Classical Natural Right’, Deleuze comes close to appropriating a jurisprudential schematic to define the contours of his thought on ethics.41 Deleuze is concerned to show how Spinoza takes an important cue from Hobbes in interpreting the classical notion of ‘natural right’ as a relation of power rather than a relation of essence—whence the ethical and ontological question ‘What can a body do?’ Spinoza follows Hobbes in making natural right include the idea of everything that a thing can do; so that the being of a thing will thus be defined by its affects, its action and its intensity rather than its ‘essence’. In terms of jurisprudence, this means an attention to a certain genre of legal expression. In the place of the positive realms of property, ownership and legal objectivity, Deleuze presents us

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with an ontology of rights as a ‘Law of Things’, that is, not an inquiry into the rights of persons over things, but an analysis or interpretation of the rights that things are—the being of things defined by their rights or powers. This method presents us with a purely quantitative and intensive appraisal of being as well as a way to approach that historical genre of jurisprudence named a ‘Law of Things’ ( jus rerum) through a distinctly empirical, casuistic and expressive schema. The two chapters that comprise Part II of the book approach Deleuze’s relation to jurisprudence through the lens of a jurisdiction of ‘rights’. The key thematic in Chapter 5 is the relation between ‘subject-matter jurisdiction’ and a ‘Law of Things’. Deleuze is shown to have an interest in the kind of situations that can be a ‘matter’ for jurisprudence as opposed to a mere abstract ‘subject’ of law and directs him toward tracing the distinctly humorous style to jurisprudential thinking as the invention of rights. Chapter 6, by contrast, aims to analyze just one particular right: that of possession. Deleuze’s anti-Hegelianism is staged in this chapter through a dialogue between Savigny and Hegel on the problem of rights, jurisprudence and possession. Finally, Deleuze’s work is shown in Part III to develop a unique connection to jurisdiction as a procedural genre of jurisprudence. What is notable about procedural jurisprudence today is that it has become progressively centralized and reduced to a highly technical language. The genre in which these technical matters of procedure also held a highly theoretical importance is difficult to reconstruct. Knowledge of the procedure that was to attach to various ‘actions’ no longer constitutes the obvious core or bulk of jurisprudential thought. What is lost in this way—despite the appearance of a progress toward simplification and uniformity—is an account of the relation of procedure to the ‘activity’ of judgment. Far from denouncing judgment, Deleuze invites us to consider how it becomes, on the one hand, something internalized and reactive and, on the other hand, how it also becomes something ‘acted’ or ‘performed’. Thus, if judgment and its reasoning appear from one perspective to constitute only types of reaction, then procedure or a procedural genre of jurisprudence attends to its activity and its instrumentality: to the performance or procedural form of judgment. Procedure is not, in other words, a mere adjunct to judgment but the technicism of its performance. Chapters 7 and 8 of this book extrapolate this aspect to Deleuze’s relation to jurisdiction. Chapter 7 presents Deleuze’s critique of judgment as a return to the techniques of procedural jurisprudence and a ‘Law of Actions’, while Chapter 8 extends this theoretical analysis to a case involving the validity of a particular procedural form of judgment: the ‘interim control order’—a device introduced to the anti-terrorism provisions in Australia. Through these studies, Deleuze’s treatment of a ‘Law of Actions’ seems to turn a familiar problem of reading or interpretation somewhat off-centre: we are concerned not necessarily with drawing principles that might serve

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as the basis of judgments from what we read but with sketching the styles of living that are required of us in order to be placed in the vicinity of the text and its system of judgment. What matters, in other words, is less the judgment and its conditions than the procedural forum of action, the instrument through which it becomes lived and livable. We can say that each of these maneuvers that Deleuze introduces to the traditions of jurisprudence are maneuvers that privilege a relation to law’s expression and also therefore a relation to the techniques of jurisdiction. Far from offering a general, unified or transcendental schematic to legal knowledge or certain ‘grounds’ of legal power; the rubrics of persons, rights and actions can themselves be shown to constitute specific practical genres of juristic innovation whose methodologies and techniques correspond only to the nature of their jurisdictional devices. Questions of jurisdiction for example can be said to concern the matter of certain technical contrivances: how to fashion or craft a legal person; how to ‘invent’ rights; and how to choreograph judgment, each of which expresses ways in which jurisprudence navigates, configures and dramatizes local or immediate situations of power. Deleuze’s contribution to jurisprudence is thus far from being either abstract or idealized. It, indeed, calls for the kind of conceptuality that allows us to take a more active or creative involvement within the very sober technical resources that limit us to the medium of law; not necessarily by opening it onto other figurative fields of knowledge but by pushing it only further along the line of its peculiar technicality. This is why, even when law seems like an ill-adapted intellectual tool for addressing certain contemporary social, ethical or political problems, this deficiency does not necessarily mean an end to legal knowledge. Rather, it requires one to inhabit law in an even stricter sense than before in order to discover the movements of expression and the lines of innovation that still connect it to a practice of jurisprudence.

Notes 1 See, especially, Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford, CA: Stanford University Press, 2008). See, also, Nathan Moore, ‘A Distant Hand Fell From His Shoulder’ (2000) 11(2) Law and Critique 185–200; Nathan Moore, ‘So You Love Me’ (2004) 15(1) Law and Critique 45–64; Nathan Moore, ‘Icons of Control: Deleuze, Signs, Law’ (2007) 20 International Journal for the Semiotics of Law 33 –54; Alexandre Lefebvre, ‘A New Image of Law: Deleuze and Jurisprudence’ (2005) 130 Telos 103–126; Alexandre Lefebvre, ‘We Do Not Yet Know What the Law Can Do’ (2006) 5(1) Contemporary Political Theory 52– 67; Alexandre Lefebvre, ‘Critique of Teleology in Kant and Dworkin: The Law Without Organs (LwO)’ (2007) 33(2) Philosophy & Social Criticism 179 –201. 2 Gilles Deleuze, ‘Painting Sets Writing Ablaze’ in David Lapoujade (ed.), Two Regimes of Madness: Texts and Interviews 1975–1995, Trans. Ames Hodges and Mike Taormina (New York, NY: Semiotext(e), 2006), pp. 181–187, at 182 and 186.

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3 The theoretical and etymological connection of jurisdiction with speech and expression is clear. Jean-Luc Nancy writes that ‘Jurisdiction is the fact of saying right . . . such, indeed, is the logical duty, office, and right of “saying” . . .’: JeanLuc Nancy, ‘Lapsus Judicii’, Trans. Simon Sparkes in Simon Sparks (ed.), A Finite Thinking (Stanford, CA: Stanford University Press, 2003), pp. 152–171, at 154. Shaun McVeigh and Shaunnagh Dorsett note similarly that the ‘Latin jurisdictio links the Latin noun ius with the verb dictio. Ius is usually translated as “law”, and refers to the adjectival situation of conforming to law (iustus). Linked to the verb dicere—the saying or speech of law—ius becomes performative (and adverbial)’: Shaun McVeigh and Shaunnagh Dorsett, ‘Questions of Jurisdiction’ in Shaun McVeigh (ed.), Jurisprudence of Jurisdiction (Oxford: RoutledgeCavendish, 2007), pp. 3 –17, at 3. 4 See Gilles Deleuze, Negotiations, 1972–1990, Trans. Martin Joughin (New York, NY: Columbia University Press, 1995), p. 153; Gilles Deleuze, L’Abécédaire de Gilles Deleuze, avec Claire Parnet (Paris: DVD Editions Montparnasse, 2004). 5 Deleuze, L’Abécédaire. 6 For important works belonging to a tradition interested in returning legal theory to problems of jurisdiction, see Shaun McVeigh (ed.), Jurisprudence of Jurisdiction (Oxford: Routledge-Cavendish, 2007); Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of the Common Law, 1509 –1625 (Chicago, IL: University of Chicago Press, 2007); Piyel Haldar, Law, Orientalism and Postcolonialism: The Jurisdiction of the Lotus-Eaters (Abingdon: Routledge-Cavendish, 2007); Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990); Peter Goodrich, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London: Routledge, 1996); Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley, CA: University of California Press, 1995); Pierre Legendre, Law and the Unconscious: A Legendre Reader, Trans. Peter Goodrich, Alain Pottage and Anton Schütz (New York, NY: St Martin’s Press, 1997); Shaun McVeigh, Peter Rush and Alison Young, ‘A Judgment Dwelling in Law: Violence and the Relations of Legal Thought’ in Austin Sarat (ed.), Law, Violence and the Possibility of Justice (Princeton, NJ: Princeton University Press, 2001), pp. 101–141; Peter Rush, ‘An Altered Jurisdiction: Corporeal Traces of Law’ (1998) 6 Griffith Law Review 144 –165; Peter Rush, ‘Deathbound Doctrine: Scenes of Murder and its Inheritance’ (1997) 16 Studies in Law Politics and Society 71–99; Peter Rush, ‘Surviving Common Law: Silence and the Violence Internal to the Legal Sign’ (2005) 27(2) Cardozo Law Review 753 –766. See, also, Jean-Luc Nancy, ‘Lapsus Judicii’ for a rich take on jurisdiction as operating the boundaries of right and philosophy, Rome and Greece. The institutionally based material addressing jurisdiction as a theme is not surprisingly diverse and difficult to limit. For extensive contemporary analytical studies of jurisdiction, see, in particular, Richard T. Ford, ‘Law’s Territory (A History of Jurisdiction)’ (1999) 97(4) Michigan Law Review 843–930 and Paul Schiff Berman, ‘The Globalization of Jurisdiction’ (2002) 151(2) University of Pennsylvania Law Review 311–545. Broadly, the literature dealing with jurisdiction as an explicit subject of analysis tends to fall within four distinct categories: (1) texts which provide an overview of judicial bodies and their powers; describing for example, the powers conferred on special and appellate courts, federal and state bodies and criminal and civil jurisdictions; (2) studies which account for the differing dimensions of legal powers and legal systems either historically or cross-culturally, e.g. secular and religious or ecclesiastical jurisdictions, customary laws and tribal laws; (3) studies that deal with jurisdictional issues in contemporary international law, particularly universal jurisdiction in international criminal law, human rights, the establishment of international criminal tribunals

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28 29 30

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Jurisdiction in Deleuze and sovereign immunity; and (4) literature that deals with ‘conflict of laws’ such as topics to do with extra-territoriality in ‘cyberlaw’, choice of law rules, ‘forum shopping’, the doctrine of forum non conveniens, cross-frontier offences and the recognition of indigenous customary law. See, e.g. Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority” ’, Trans. Mary Quaintance (1990) 11 Cardozo Law Review 919–1045. McVeigh and Dorsett, ‘Questions of Jurisdiction’; Shaun McVeigh, ‘Subjects of Jurisdiction: The Dying, Northern Territory, Australia, 1995–1997’ in Shaun McVeigh (ed.), Jurisprudence of Jurisdiction (Oxford: Routledge-Cavendish, 2007), pp. 202–221. Cormack, A Power to Do Justice. See, in particular, Goodrich, Languages of Law; Goodrich, Law in the Courts of Love; Goodrich, Oedipus Lex; Legendre, Law and the Unconscious. Goodich, Languages of Law. Goodrich, Law in the Courts of Love; Goodrich, Oedipus Lex. Legendre, Law and the Unconscious. Cormack, A Power to Do Justice, p. 2. McVeigh, Jurisprudence of Jurisdiction, p. i. Ibid, p. iv. Compare, McVeigh, Rush and Young, ‘A Judgment Dwelling in Law’. Compare Gillian Rose, Dialectic of Nihilism: Post-structuralism and Law (Oxford: Basil Blackwell, 1984). See, e.g. Rose, Dialectic of Nihilism; Paul Patton, Deleuze and the Political (New York, NY: Routledge, 2000); Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Oxford: Hart Publishing, 2005). Yifat Hachamovitch, ‘In Emulation of the Clouds: An Essay on the Obscure Object of Judgment’ in Costas Douzinas, Peter Goodrich and Yifat Hachamovitch (eds), Politics, Postmodernity and Critical Legal Studies (London: Routledge, 1994), pp. 35 – 68. See above n. 1 for a list of works by Moore and Lefebvre on Deleuze and jurisprudence. A collection of additional Deleuzian interjections in legal theory can also be found in (2007) 20(1) International Journal for the Semiotics of Law. See Deleuze, L’Abécédaire; Deleuze, Negotiations. For a detailed discussion of these instances, see Lefebvre, The Image of Law, especially Chapter 4. Lefebvre, ‘A New Image of Law: Deleuze and Jurisprudence’, pp. 111–112. Moore, ‘Icons of Control: Deleuze, Signs, Law’, p. 33. Translation added. Ibid. Lefebvre, ‘A New Image of Law’, p. 105. Ibid, p. 104. In The Image of Law however, Lefebvre interestingly drops this more radical interpretation, preferring to emphasize the importance of case law in Deleuze’s notion of jurisprudence, and in particular as the creative element in adjudication. This is one reason why in this later work, an ‘image of law’ can no longer be accurately ascribed to Deleuze’s thought and is also no longer described as ‘new’. Deleuze, L’Abécédaire. Deleuze, ‘Painting Sets Writing Ablaze’, p. 182. Tim Murphy, ‘Legal Fabrications and the Case of “Cultural Property” ’ in Alain Pottage and Martha Mundy (eds), Law, Anthropology and the Constitution of the Social: Making Persons and Things (New York, NY: Cambridge University Press, 2004), pp. 116 –117. See, e.g. Dorothea Olkowski, Gilles Deleuze and the Ruin of Representation (Berkeley, CA: University of California Press, 1999).

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32 See Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (London: Continuum, 2004). 33 See Gilles Deleuze, Expressionism in Philosophy: Spinoza, Trans. Martin Joughlin (New York, NY: Zone Books, 1990); Gilles Deleuze, Nietzsche and Philosophy, Trans. Hugh Tomlinson (London: Continuum, 2002). 34 Deleuze, Expressionism in Philosophy, p. 257. 35 Ibid, pp. 255 –271. This section is a discussion of Hobbes and the concept of ‘natural right’. 36 Expression for instance, according to Deleuze, ‘involves’ and ‘explicates’ (enfolds and unfolds) while representation ‘implicates’ and ‘extrapolates’ (projects inward and outward). See Deleuze, Expressionism in Philosophy. The representation of law constitutes a gesture then that projects law both within and beyond life; while the expression of law is to be involved in and to be unfolded as life. 37 Deleuze, Expressionism in Philosophy, p. 322. 38 See Alain Pottage and Martha Mundy (eds), Law, Anthropology and the Constitution of the Social: Making Persons and Things (New York, NY: Cambridge University Press, 2004). 39 Deleuze, ‘Preface to English Translation’ in Nietzsche and Philosophy, p. xi. ‘One of the most original characteristics of Nietzsche’s philosophy is the transformation of the question “what is . . . ?” into “which one is . . . ?” For example, for any given proposition he asks “which one is capable of uttering it?” ’. 40 Deleuze, Nietzsche and Philosophy, p. 1. 41 Gilles Deleuze, ‘Power and Classical Natural Right’, Lecture delivered at Vincennes, 9 December 1980, Trans. Simon Duffy, available at <www.webdeleuze.com> (accessed 1 May 2008).

Part I

Masks and personal jurisdiction

Chapter 2

Personal jurisdiction: the ‘method of dramatization’ in the ‘law of persons’

The ‘method of dramatization’ that Deleuze finds in Nietszsche’s philosophy presents a unique turn from grounding thought upon the form of the question ‘What is . . . ?’ to evaluating it according to the question ‘Who . . . ?’ or ‘Which one . . . ?’. In this chapter, the connection between Deleuze’s work and the problem of legal personality and personal jurisdiction is introduced. Far from requiring an abstract ‘subject of rights’ in order to think about law, Deleuze shows that jurisprudence is invested in the techniques of fashioning legal ‘persons’ as the modes of existence by which one evaluates rights and their performative value.

It is normal to note in a technical sense that jurisdiction is not a power over events or disputes per se but typically a power over persons. For lawyers, this means nothing more than the fact that jurisdiction is supposed to be given by the valid service of a writ or originating process on a defendant. It remains a practical problem of bringing your adversary before a particular court. But for philosophers and legal theorists the problem is often of a separate order altogether. What constitutes a legal person? What are the foundations of personal responsibility? What is legal personhood? In a sense, the questions that scholars pose about a ‘Law of Persons’ are no less litigious than those which belong to juridical institutions themselves. In fact, one could suggest that they become litigious on a different scale—not content to have authority staged and exercised in a discrete forum and over a definite opponent, philosophical questioning seeks to enact its authority in a transcendent register and in the order of ‘truth’. It is possible to suggest then that matters of personal jurisdiction have remained limited to a technical legal idiom for a reason. What the broader theoretical approaches to personal jurisdiction, legal personality and moral personhood have lacked in comparison to their institutional counterparts is a mode of questioning appropriate to its genre. It is as though, in the same way that legal practice tends to devalue the methodical form of doubt that theory brings to the terms of its activity, legal or moral philosophers are in turn incapable of taking seriously the simplest forms of practical questioning.

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Whenever practitioners, litigants, administrators, judges for instance pose the questions ‘Who?’ or ‘In what capacity?’ in the course of a proceeding, critical philosophy is there to replace this form of question with another type: a ‘What is . . . ?’ aimed at supposedly raising the matter to the level of moralphilosophical significance. What is it to be a legal person? What is legal subjectivity? Why are some entities recognized as legal persons and others not? Philosophers are not meant to simply ask ‘Who is responsible?’ but ‘What is responsibility?’: not simply ‘Who is just?’ but ‘What is justice?’. It is possible that these inquiries, however, neglect the largely technical and creative use that jurisprudence makes of personal jurisdiction and legal personality. Deleuze’s work provides an important contribution to the theoretical field of personal jurisdiction. ‘Personae’ for instance play a key conceptual role in Deleuze’s philosophy, but not in a traditionally philosophical way.1 Deleuze, for instance, is interested in displacing the privilege accorded in philosophy to the question ‘What is?’ in favour of raising other forms of question to a philosophical level. What does it mean for instance when the question ‘Who?’ is given a theoretical privilege equal to that traditionally accorded to the question ‘What is?’ in philosophy? In the first place, rather than organizing certain intellectual methods for investigating the truth of what is (such as the Cartesian method of doubt), we have the task of assigning to a particular truth or a particular formation of thought, certain ‘persons’ who dramatize and express it. Deleuze notes that when we pose the question of who wants the truth, or when and where and in which situations, we are charged with imagining certain modes of existence or ‘larval subjects’—the jealous man, etc.—through which the will to truth may become livable as such and becomes part of an actual (rather than simply abstract or possible) experience.2 In jurisprudence notably enough, the question ‘Who?’ has not always been as secondary as it has been in philosophy or which it has become for a modern ethical and legal dialogue in which the metaphysics of ‘subjectivity’ has become commonplace. In the classical and medieval European civil law and jurisprudence for example, a significant proportion of the textual representation of normative legal order was contained under the rubric of a ‘Law of Persons’ as a genre of knowledge involving a consideration of persons in law; their attributes, condition and rank.3 Knowing how to pose legal problematics in terms of certain personae was an important aspect to jurisprudential thought. In the 13th-century account of English jurisprudence, Bracton’s De Legibus et Consuetudinibus Angliae, for example, the problem of how one acquires and loses possession of land occupies a significant part. But in addressing this problem the text does not first of all ask by what actions or by what rights a person may acquire possession, rather it asks by what persons we acquire possession: the freeman, the bondsman, etc.4 Persons are described precisely as the means, the masks or the instruments by which one takes possession of land. The person is not a ‘subject’ but a device or

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contrivance for making livable a certain political situation and the jurisprudential genre of ‘persons’ defines a theoretical mode of questioning strikingly adapted to this practical concern. Personal jurisdiction in this way concerns a profoundly aesthetic account of the masks that define civil and juridical existence somewhat closer to the technicality which it gets afforded in modern legal institutions than to the universality it receives in moral and metaphysical philosophy. This chapter aims to introduce a connection between a ‘method of dramatization’ in Deleuze’s philosophy and the somewhat neglected techniques of personal jurisdiction within jurisprudence.

Legal persons as a critique of the ‘subject’ of rights In a short piece titled ‘Response to a Question on the Subject’, Gilles Deleuze postulates that the universalizing concept of ‘the subject’ might be one that philosophy can afford to do without. In discussing how one might go about thinking without the concept of ‘the subject’, however, he appeals not to philosophy but to law and jurisprudence as an example of a discipline accustomed to dealing in cases and singularities. ‘A conception of law as founded on jurisprudence can do without any “subject” of rights’, Deleuze observes. ‘Conversely, a philosophy without the subject presents a conception of law founded on jurisprudence’.5 What jurisprudence itself means for Deleuze here (in comparison to ‘law’) is clearly not an easy nor a conventional notion,6 particularly considering that so much that goes under the name of ‘jurisprudence’ in modern terms has in fact precisely seemed to be based in an attempt to resurrect the form of a ‘subject of rights’ as a ground or substrate for legal relations (whether this is understood in a natural, positive or normative sense). What we can take from this quote at least is that the philosophies grounded in the ‘subject’—in particular the post-Kantian philosophies of law or morality—have tended to separate the idea of law from the practice or vocation of jurisprudence. For Deleuze, jurisprudence means something different, and also something far more important, than just legal theory or the philosophy of law. It is more like the pragmatic, active and immanent plane on which law navigates its groundlessness. As soon as one places a ‘subject’ outside and transcendent to the terms of law or rights (that is, as that to which rights are singularly applied to or invested in) then one loses the perspective by which rights are uniquely connected to concrete situations. It is not enough to simply acknowledge the distinction between ‘legal person’ and ‘subject of rights’ in order to pose the problem as one of jurisprudence; rather, one must be prepared to survey a plane actively devoid of the transcendent terms of subjectivity in the context of which the person becomes a practical tool or technical instrument. If jurisprudence can

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do without the subject rights, it cannot necessarily do without ‘legal persons’. ‘Legal persons’ in this way belong precisely to the technology or craft by which jurisprudence makes-do without a ‘subject’; in other words, without any guarantee or ground for the existence or exercise of rights. The jurisprudential creativity involved in fashioning a ‘legal person’ or ‘juristic person’, however, is something not commonly acknowledged in modern accounts of jurisdiction. From the perspective of legal theory, it is not hard to see why. Today, the theory concerning the technical construction of persons has an especially narrow focus which does not typically extend beyond the personality of corporations. Contemporary scholarship may have a well-developed language capable of elaborating the technicism and innovation which belongs to the personality of corporations, but this same development does not extend to the discourses of moral personality, ‘natural’ persons and legal personality more generally. This might be explained by the centrality that the philosophies of the ‘subject’ have had in relation to modern jurisprudence. An interest in mapping the theoretical dimensions of an abstract ‘subject of rights’ as the basis of legal knowledge has meant that the problem of ‘who’ can be someone adequate to bear or take possession of rights is left relatively stale in law’s imagination. Thus, while legal instruments have not ceased to proliferate the many different kinds of legal person in their normative repertoires, jurisprudence (for as long as it has been centred upon the concept of an abstract ‘subject of rights’) has notably lacked a theoretical language in which to address these differences.7 The dimensions of personal jurisdiction and the techniques of fashioning ‘legal persons’ may therefore provide a way of conceptualizing the sort of critique of subjectivity that Deleuze identifies in jurisprudence. It does this in a few ways. In the first place, as mentioned, the critique is not metaphysical but technical and pragmatic. It does not provide an inquiry into the philosophical conditions of legal subjectivity but devolves the relatively ordinary fact of legal subjectivity onto a plane of non-totalized, civilly oriented personae. Legal persons, as the formalized roles in the technology of civil governance in other words, are related to rights in a very different way than the ‘legal subject’ is. As an element in analytical legal philosophy, the legal subject is able to be related to rights in a universalized and abstract way. It is capable simply of ‘bearing’ rights—or indeed capable of bearing any imaginable right— and thus retains only the potential of acting. The legal person, on the other hand, has a determinate relation to a set of rights and capacities which it performs. If we are capable of considering the juridical technology of legal personality independently of the deployment of the concept of a ‘subject of rights’, we notice that the legal person continues to be constructed precisely through crafting a non-universalized set of rights linked definitively to a particular office. The person in this sense remains a device invented in law to make a certain set of rights livable in and through a definite role, but— since the role does not exist outside of the rights that it is designed to

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institute—it is without any abstract, transcendental or confessional relation to moral responsibility. Personal jurisdiction takes on a more direct meaning then when we consider the fact that the specifically ‘personal’ relation of its authority does not refer to a power over individual legal subjects but to an authority borne through the plural articulation of civil roles as ‘persons’ or personae. To the extent that legal systems have maintained a discursive power in relation to persons, it has not been through the systematic abstraction of the legal entity or subject of rights; it has been through an art of differentiating and distributing persons according to their respective powers or authorities. Not only must the creation of distinct legal persons express some meaningful difference in the order of authority if it is to constitute a form of legal power, but the power referred to by the term ‘personal jurisdiction’ must also be accounted for by more than the form of an authority over legal subjects, or a jurisdiction over the subject, but by the form of an authority that dictates and describes the being of particular persons before the law.

Deleuze, Nietzsche and the ‘method of dramatization’ If personality in jurisprudence offers us a critique of subjectivity and the ‘subject of rights’ for Deleuze, the sense of this critique is distinctly dramatic. How is this dramatization constructed? First of all, the etymology of the term ‘person’—from the Greek prosopon and the Latin persona: a dramatic mask—has often given a clue as to what function the ‘legal person’ serves in a jurisprudential sense. It is typical to note the condensation of the meanings of mask and subject inhering in the word person. John Austin for instance echoed Hobbes8 when he wrote of the origins of the idea of the legal person: It signified originally, a mask worn by a player, and distinguishing the character which he represented from the other characters in the piece. From the mask which expressed the character, it was extended to the character itself. From characters represented by players, or from dramatic characters, it was further extended by a metaphor to conditions or status. For men, as subjects of law, are distinguished by the respective conditions; just as players, performing a play, are distinguished by the several persons which they respectively enact or sustain.9 For Austin, the dramatic meaning to the term person meant that the area of jurisprudence known as the ‘Law of Persons’ could by analogy indicate a way of treating of the status or condition of legal subjects. His view was that all law applied essentially to persons as legal subjects and that the ‘Law of Persons’ was a merely convenient category for organizing the material of law on status rather than necessarily bearing a distinct jurisprudential

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aesthetic of ‘persons’ on its own.10 Pierre Legendre challenges this view when he seeks to indicate a possibly deeper principle or methodology of masking behind the jurisprudence of persons; a methodology which necessarily displaces the centrality of the ‘subject’ within the theories of jurisdiction: Note that one of the central constructions of civil law, that which, following Justinian’s terminology, we call the law of persons, literally derives from persona—referring initially to an actor’s mask—and authorizes me to translate the formula de iure personarum by ‘of the law of masks’. In all institutional systems the political subject is reproduced through masks.11 Legendre indicates that political subjectivity is clearly not something abstract but something performed: and it is the ‘Law of Persons’ which speaks to the masked performances that reproduce legal subjectivity. The importance of the mask (and its use in Greek theatre in particular) to an account of legal personality may in part be because it is most notably in Greek theatre that the mask is employed in a way that does not just repeat authority but ‘dramatizes’ (legal) thought for its audience.12 In Greek tragedy, as Jean-Pierre Vernant notes, the mask is something more than mere costume. ‘It is a human mask not an animal disguise. Its role is not a ritual but an aesthetic one’.13 For Nietzsche in The Birth of Tragedy, this aesthetic of masking was also bound up with the forces of existence in a particular way.14 Modern thought finds it difficult to imagine a mask as anything but subordinate to the genuineness of ‘identity’, and the perspective by which it is the aesthetics of masking that comes prior to identity and confers on identity an authentication derived from its play of differences is not easy to call upon especially within a modern juridical discipline which is accustomed to seeing the grounds of its authority reflected in the stability of representation.15 Nietzsche saw existence as an aesthetic experience that had both a representational and an expressive force, an Apolline and Dionysiac resonance.16 For Nietzsche, it is Dionysus who is ‘the only theatrical hero . . .’ since ‘all the celebrated characters of the Greek stage—Prometheus, Oedipus and so on—are merely masks of that original hero, Dionysus’.17 The Birth of Tragedy foreshadowed a more systematic method relating to the ‘mask’ in Nietzsche’s thought and which may be useful for conceptualizing a ‘Law of Persons’ as itself a jurisprudential method and genre. One of the ways in which Deleuze described Nietzsche’s unique insight in philosophy was as a ‘method of dramatization’.18 This method was not just an acknowledgement of the irreducibility of Apolline and Dionysiac forces in the aesthetic nature of existence, it attempted to raise the function of the mask to the level of a philosophical method or mode of questioning. Deleuze, for example, notes that the ‘Idea’ in philosophy traditionally denoted a privilege for a certain major form of questioning. By asking questions in the form ‘What

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is X?’, one is supposed to address the nature of things or concepts in terms of their essences. This could be opposed to the minor, vulgar and empirical forms of questioning: Who?, When?, Where?, etc. which are content to address only accidents or cases. But the form of the question ‘What is?’—Deleuze suggests—ends with philosophy pondering nothing but structural aporias and contradictories. It is a purely impractical and self-indulgent question. On the other hand, when one is capable of raising the empirical question ‘Who?’ or ‘Which one?’ to a properly methodological level—as Deleuze sees exemplified in Nietzsche’s work—then one reaches a typology or casuistry, a ‘transcendental empiricism’ (one could say also a ‘jurisprudence’) rivaling the kind of impracticality in philosophy’s earnest attention to ‘essences’: In my view, the two kinds of questions imply irreconcilable methods. For example, when Nietzsche asks who, or from what perspective, instead of what, he is not trying to complete the question what is this?, he is criticizing the form of this question and all its possible responses. When I ask what is this?, I assume there is an essence behind appearances, or at least something ultimate behind the masks. The other kind of question, however, always discovers other masks behind the mask, displacements behind every place, other ‘cases’ stacked up in a case.19 The method of dramatization is a philosophy of masking that takes the place of a logic or conceptual reasoning: it wants to know what kind of characters dramatize a particular logic or what persons are capable of ‘living’ it. It involves a significant methodological inflection. When Nietzsche, for example, in On the Genealogy of Morality uses the determinants ‘slave’ and ‘master’ to describe the various personae of morality; it is a very different thing to take these as stable determinants of status or condition in persons rather than as themselves masks or persons: as answers to the question ‘Who or which one wants morality?’; the lived or dramatized personae that confer value on an interminable dialogue on moral judgment and reasoning. One encounters an equivalent problem of interpretation in the classical and feudal treatments of the ‘Law of Persons’. When the texts speak of the division between free and unfree persons, freeman and bondsman, it is one thing to take these as describing the statuses that apply to persons who would be otherwise equal, but quite another to take ‘free’ and ‘unfree’ as themselves the persons, who—being fashioned by jurisprudence—offer certain dramatized perspectives on value and authority: different ways of taking possession of and ‘living’ a certain problem. The free may not simply have more authority than the unfree in the order of persons; it is authority itself that may become something greater in the hands of the ‘free’ (in their evaluation of authority and in their style of living it) and something infinitely baser in the hands of the ‘unfree’. We have not sufficiently ‘dramatized’ a concept, a logic or a form of reasoning until we have fashioned the persons who are capable of living

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it; and this method has also informed jurisprudence when it has attempted to address its problems in the language of persons and personality.

Co-ordinates to a ‘law of persons’ I: free and unfree persons If the ‘Law of Persons’ and personal jurisdiction belong to the practical techniques of jurisprudence, then just as its critique of ‘subjectivity’ is not metaphysical but ‘dramatic’, its critique of identity or selfhood is also not dialectical but ‘dramatized’. For Deleuze, ‘dramatized’ means plural and the pluralism that he reads in Nietzsche’s work is distinctly anti-dialectical. Relations between ‘self’ and ‘Other’ become dialectical in a Hegelian sense when the relation is deemed to be essentially negative and representational. In this way, one is said to be capable of affirming oneself only by denying the ‘Other’ or that which one is not. From the perspective of pluralism on the contrary, the ‘self’ is not a negation or denial of the ‘Other’ but an active affirmation of its difference. ‘In its essential relation with the “other” a will makes its difference an object of affirmation’.20 In pluralism, therefore, according to Deleuze’s reading of Nietzsche, difference is positive and multiplicitous rather than negative and contradictory. In the context of a ‘Law of Persons’, dialectical thinking replaces an order of authority constructed through masks with an order of authority interested in status. Status is a personal power or authority in so far as it is recognized or represented. Nietzsche’s master and slave in this way have a completely different power than Hegel’s lord and bondsman. The latter are persons whose power extends as far as their status and their ability to be recognized,21 whereas the former are dramatizations of power, modes of evaluation, masks through which to evaluate. Jurisprudence as a tradition is subtended by these different uses for ‘persons’. On the one hand in common law, status is a concept inseparable from the doctrine of estates or tenure: a doctrine that arose in a time when the question of rights (in particular rights over land) was also explicitly a question of personal rank and standing.22 Legal positivism sought to downgrade the privilege accorded in law to persons in favour of formal right; therefore, it was compelled to reduce the genre of a ‘Law of Persons’ in jurisprudence to a commentary on status.23 To view personal differences in law as a question of status, however, was to obscure the technical, aesthetic and innovative problem that still attended the construction of juristic personality. Status in general was thought simply to apply to a person or to be held by a person, and the problematic of personality itself could be left relatively implicit and vestigial within the terms of this discussion—a problem that was perhaps left visible to most only in the problem of the corporation which could still be said to differ in terms of the nature of its personality and not just its personal ‘status’. In the place of a dialectics of the ‘self’ and the reduction of legal personality to status, Nietzsche often speaks in The Will to Power of an ‘order of

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rank’ amongst the impulses.24 Certain impulses are aristocratic, ‘noble’, born for ruling; others are born for obeying. Nietzsche addresses a problematic of rank as a non-totalized and non-representational problem of power. Whoever he calls ‘noble’ or ‘strong’ do not rule by their status (social or otherwise) but by their ‘person’, their mode of existence. The noble, as a personal type, interpret all phenomena from the perspective of strength; they are ‘strong enough’ for many kinds of phenomena and many kinds of affect. Similarly, it is only the base or the weak who, whatever their political status, simply want to see their power recognized or who indeed see to it that it is recognized. ‘In the age of suffrage universel’, Nietzsche writes, ‘i.e., when everyone may sit in judgment on everyone and everything, I feel impelled to re-establish order of rank’.25 But a plural ‘order of rank’ is opposed both to equality and to status since both seek to reduce the hierarchy to a single ‘scheme’. Its principle is one of personal jurisdiction in the sense that jurisdiction functions not to universalize judgment but to limit it to an ever more discrete forum and an ever more specific type of person.26 Deleuze enjoys noting that for Nietzsche it is ‘the strong [who] always have to be defended against the weak’.27 This is because it is not the strong who would be the victors in a struggle for status. Rather, as an answer to the question ‘Who . . . ?’ or ‘Which one . . . ?’ in the method of dramatization, the strong describe the mode of existence of those who evaluate life from the perspective of strength. There are certain privileged pairs to the texture of personal jurisdiction in the history of Western jurisprudence. In Roman civil law, for instance, the chief opposition in the ‘Law of Persons’ is between ‘free’ and ‘unfree’ persons. The Institutes of Gaius and Justinian begin their description of the ‘Law of Persons’ by noting that all persons are either ‘free’ or ‘unfree’.28 If one takes this distinction to be simply a descriptive account of a dominant regime of status, however, we find that the text offers only some technical administrative rules for assessing how one passes from any of the various conditions of freedom and servitude to another. Yet jurisprudence for the Romans constituted clearly far more than a language of administrative ordering. When we acknowledge that the description of persons in Roman jurisprudence has a more significant cultural and theoretical import, then we can no longer take the distinction between ‘free’ and ‘unfree’ persons as a mere reflection on political status rather than also a tool for evaluating and critiquing the moral reactions of a particular age. Under the ‘Law of Persons’ in Bracton’s De Legibus et Consuetudinibus Angliae, to take a later example, ‘freemen’ and ‘bondsmen’ from one perspective describe the condition of persons in a legal or political sense for feudal England29—just as ‘free’ and ‘slave’ did for Roman society—but from another perspective these persons are jurisprudentially used in a certain immanent method of evaluating the quality of rights. One does not necessarily ask what the right of this or that freeman or bondsman is to possess land, rather one offers an assessment of the right to possess land by way of the various persons who

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are capable of doing so: the free and the bond. The freeman constitutes a type that must be ‘played’ and this type, like any other person sculpted in jurisprudence, can be deployed as a means of gauging rights in a field devoid of ‘higher values’.30 Read in this way, the various historical manifestations of a ‘Law of Persons’—which typically reflect the reactive political hierarchies, inequalities and subordinations of particular eras—may, in fact, also offer us a legal methodology that addresses difference and inequality from an asubjective and decentralized perspective. The inequalities that interest us today are no doubt different to what interested the cultures of other ages, but the matter of dealing with these inequalities remains a concern for jurisprudence. The personality of ‘slaves’ might not seem important to contemporary determinations of legal thought, for instance,31 yet the ways in which Western jurisprudence might have considered the texture of freedom and slavery in the authority attached to its persons may still be important. It is true that slavery remained a harsh and imperfect political institution, but the purpose of Roman jurisprudence to describe a ‘Law of Persons’ centred on the distinction between free and unfree was not simply to reinforce slavery as a political reality. Leaving politics to a separate sphere, jurisprudence rather addressed the task of inventing certain rights sufficient to navigate and make livable the harshness of the political condition. From this perspective—a perspective in which rights themselves could not be assessed outside of the kind of persons who lived through them—one would have to attend not to the political condition of slavery under which persons would have fewer rights but to the fact that there are people who really live their lives as slaves, who need to play the role of a slave, and who interpret every right that they have from a remarkable perspective of slavery. And the fact, moreover, that slavery is no longer a dominant contemporary social or political form does not stop us from posing the question: Who are today’s slaves? or ‘Which one’ interprets our present political condition from the perspective of a slave? The answer will have very little to do with what we understand as a contemporary organization of status.

Co-ordinates to a ‘law of persons’ II: natural and artificial persons For jurisprudence, the method of dramatization comes with dealing with the rights that attach to persons in certain cases and situations. The ‘legal’ or ‘juristic’ person which jurisprudence crafts as a response to these situations is neither a metaphysical ground or ‘subject of rights’ nor a status or condition in which this subject bears personal differences that belong to a stabilized order of authority. For contemporary critical theories in law (such as feminist legal theory and critical race theory) this factor is not readily taken advantage of, and the problem remains how to reconcile the problematic of

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subjectivity with that of identity. Today it is relatively conventional in these critical disciplines, for example, to show how becoming a ‘subject’ in law involves losing or effacing those minor personal characteristics (such as race or sex) that may have meaningfully designated the history of one’s place or identity before the law. It is common with these analyses, however, to get the picture of minorities who not only have a nostalgia for holding on to their historically imposed ‘identity’ or ‘status’ but also covet a form of subjectivity and legitimacy which can only take the previous system as its model of power. ‘Personhood’ like subjectivity is itself taken as a kind of status which can be fought for. And it is not impossible for legal critics and theorists to wonder such things as: Can women be legal persons?32 What is less conventional to acknowledge, nevertheless, is the fact that the function of legal persons is to construct neither identity nor subjectivity in an absolute sense—both of which remain entirely transcendent to the field of civil relations that ‘persons’ sketch or map out in jurisprudence. The legal person does not hide a ‘true’ identity or an internal subjectivity, but offers only a fragmented or non-totalized identity linked to a discrete civic function. In approaching the historical genre of a ‘Law of Persons’ and the forums of personal jurisdiction, one must take this into account. Whenever this genre gives us a legal person seemingly moulded in the image of a certain political identity, for instance, this identity must be taken in the sense of a mask or a role that is used only as a means of evaluation in response to the kind of question: Who or which one is worthy of rights, or takes possession of rights? It is not so much the concern of this genre that certain identities or classes of person have greater or lesser rights in a political sense, nor from the perspective of a dominant scheme of value. Rather, the ‘Law of Persons’ concerns itself with the idea that rights derive their value through the plurality of persons who take possession of them. From the perspective of jurisprudence, it is relatively immaterial whether or not you recognize yourself as a person: free or slave, husband or wife, citizen or alien, Aborigine, corporation, minor, etc. and in this way see that your rights differ from others under a legal system. It is the person itself that is constructed in jurisprudence in order to get something through at the level of rights. The modern ‘Law of Persons’ typically does not divide persons into ‘unfree’ and ‘free’, but rather into ‘natural persons’ and ‘corporations’.33 This shift in perspective was accompanied also by a renewal in the theoretical approaches to legal personality as well as with a metaphysical emphasis on two categories: the human and the subject.34 Only in modern jurisprudence does it become important to note that the legal person is normally a human or at least in a ‘natural’ sense and that legal personality is co-extensive with a principle of legal subjectivity.35 Marcel Mauss contemplated that the Roman persona or Greek πρóσωπον, which he considered a basic fact of law, involved two separate movements or constructions of subjectivity which he associated with the ideas of ‘nature’ and ‘artifice’:

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The word πρóσωπον is extended to the individual, with his nature laid bare and every mask torn away, and, nevertheless, there is retained the sense of the artificial: the sense of what is the innermost nature of this ‘person’ (personne), and the sense of what is the ‘role-player’ (personnage).36 With persons understood as being either ‘natural’ or ‘artificial’, the theories of personality also became centred upon the ideas of fiction and realism rather than freedom. The proponents of a fiction theory emphasized that the true ground of legal rights was that of the human subject: every other ground of juristic personality constituting a convenient ‘fiction’. Those, on the other hand, who favoured a realist theory of legal personality maintained that the personality of corporations or collectivities could be as organic as that of the human individual. Influenced by the European political theories of the Middle Ages, realists maintained the idea that juristic personality could be formed to describe a non-fictional collective living entity.37 Both the fiction and the realist theories of legal personality, however, were in fact expressions of a more common and dominant perspective which assigned both a naturalness to the ‘human’ and an anthropomorphism to the corporation, as subjects of rights.38 If it is true that with modernity it is no longer meaningful to speak of freedom and unfreedom as essential qualities of legal personality but rather of ‘legal personality’ itself as a simple attribute validating the (natural or artificial) subjectivity of a being before the law, then recovering an aesthetic knowledge of persons particular to this context and language may be more difficult than ever. On the one hand, we are biased far more toward problems that imply a moral rather than a technological or artistic investment in law; problems such as why legal personality or ‘personhood’ is conferred on some and not on others. On the other hand, it may be harder for jurisprudence to hold on to the method of dramatization in relation to persons: how a multiplicity of legal personae may act or dramatize the logic and modes of judgment of law rather than just occupying its structural co-ordinates. Ian Hunter has noted convincingly that the more important theoretical rivals to the early modern jurisprudence on persons, rather than the fiction and realist theories, may have actually been those belonging to the separate ‘enlightenments’ of university metaphysics, on the one hand, and civil philosophy or civil jurisprudence, on the other hand. In contrast to the metaphysical approaches of Leibniz and Kant which linked humanity and personhood in a ‘redemptive’ gesture of transcendent moral self-governance, the civil jurisprudence of Samuel Pufendorf as Hunter describes, constituted a ‘relegation of moral personality in favour of civil personae’.39 By linking and limiting duties to a constructed civil person and not to a rational and natural human being, Pufendorf’s civil philosophy was capable of ‘deny[ing] that there is any transcendent moral personality anchored in the nature of man’.40 This philosophy thus offered modern legal

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theory a functional alternative to the view of legal personality advanced by what would become a dominant metaphysical interpretation associated with ‘the Enlightenment’. It attempted to empty the essentially technological and institutional knowledge of ‘persons’ in terms of civil governance of any moral, transcendent and unifying register of value. A modern account of a ‘Law of Persons’ should take these theoretical configurations into consideration. Civil jurisprudence may have been, according to Hunter’s analysis, a more worthy inheritor of a tradition and genre of persons for modern law by the fact that it remained capable of basing a theoretical account of rights as being maintained through a plural and non-totalized arrangement of ‘civil personae’ rather than being based upon the ground of a moral freedom and responsibility inherent to human existence or to the coherence of an abstract rights-and-duties bearing unit. The construction of legal personality through ‘civil personae’ according to Hunter offered modern civil jurisprudence a non-structural, plural arrangement of status, on the one hand, and a non-transcendent, de-sacralized image of legal subjectivity, on the other hand. In this way it constituted an important link to the technological knowledge belonging to a ‘Law of Persons’ otherwise in decline. Civil and legal personality, as a technology of masking, addressed neither the whole individual nor the sum total of a group— each of which could be taken as an abstract ground or moral subject of rights—but rather instituted a plural order of roles defined and constituted by their discrete civil power. As a genre of jurisprudence then, personality can be seen to give an acute form to the knowledge and know-how of the juridical ordering of civil and normative relations and it does so entirely independently of, and as a rival to, the terms of moral philosophy. This genre of legal knowledge, in other words, forms an important element within an ‘expressive’ arrangement of jurisdiction framed within what Deleuze called a ‘method of dramatization’. When legal instruments today define the elements, characteristics or roles of certain personae, these are not designed either to represent, reflect or recognize something that supposedly exists—or exists more fundamentally—outside of the discursive domain of these instruments. Instead, they involve a particular relation to the techniques of jurisprudence—a relation that includes an attention to the problematics of ‘Who?’ can be capable of certain rights and actions—and a distribution of what aspects of that person can be made subject to a jurisdiction or forum of judgment. Legal personality then might be seen from within a less litigious perspective: a perspective that needs persons less in order to ‘hold responsible’ (according to transcendental values) than to make livable a certain set of rights (according to what Deleuze describes as ‘life criteria’ or an ‘intrinsic aesthetics of modes of existence’).41 The contours to this problem might be better explored in relation to cases. The following two chapters offer particular examples in which the language

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of personal jurisdiction provides an important medium to the critical dialogues surrounding the politics of sexual difference and the ethics of animal rights respectively. My attempt in focusing on these two examples is to locate and give texture to the problematic of personality in contemporary jurisprudence. In the first case, the encounter is with the problem of the sex or gender of legal persons. While much critical scholarship in recent times has tried to give the problems of gender and sexuality ‘performative’ rather than simply natural or essentialized determinations, this work has not necessarily been easy to translate into a juridical idiom. This next chapter therefore seeks to elaborate upon the performative or dramatized genre of ‘persons’ explored in Deleuze’s philosophy, and addresses a very specific question of personal jurisdiction relating to a legal case involving the sex of a young person.

Notes 1 On the idea of ‘conceptual personae’, see Gilles Deleuze and Felix Guattari, What is Philosophy?, Trans. Hugh Tomlinson and Graham Burchill (London: Verso, 1994), pp. 61–83. 2 See Gilles Deleuze, ‘The Method of Dramatization’ in David Lapoujade (ed.), Desert Islands and Other Texts, 1953 –1974, Trans. Michael Taormina (New York, NY: Semiotext(e), 2004), pp. 94 –116. 3 In contemporary legal scholarship the ‘Law of Persons’ is typically treated as a genre of legal knowledge from an historical perspective in Western civil law. See, e.g. Thomas Glynn Watkin, An Historical Introduction to Modern Civil Law (Aldershot: Ashgate, 1999), pp. 155 –191. Watkin describes the ‘Law of Persons’ as addressing ‘questions of who may be the subjects of rights and duties within a legal system’, at p. 155. 4 Henry de Bracton, Bracton on the Laws and Customs of England, Vol II, Trans. Samuel E. Thorne (Cambridge, MA: Harvard University Press, 1968). 5 Gilles Deleuze, ‘Response to a Question on the Subject’ in David Lapoujade (ed.), Two Regimes of Madness: Texts and Interviews 1975–1995, Trans. Ames Hodges and Mike Taormina (New York, NY: Semiotext(e), 2006), pp. 349–351, at 350. This essay was previously published under the title ‘A Philosophical Concept . . .’. See Gilles Deleuze, ‘A Philosophical Concept . . .’ (1988) 7(2) Topoi 111–112. 6 For discussions on this point, see Nathan Moore, ‘Icons of Control: Deleuze, Signs, Law’ (2007) 20 International Journal for the Semiotics of Law 33–54; Alexandre Lefebvre, ‘A New Image of Law: Deleuze and Jurisprudence’ (2005) 130 Telos 103 –126. 7 For a collection of contemporary works which address this problematic in relation to the persons of philosophical thought, see Conal Condren, Stephen Gaukroger and Ian Hunter, The Philosopher in Early Modern Europe: The Nature of a Contested Identity (Cambridge: Cambridge University Press, 2006). These works have attempted to shift the emphasis of philosophical and legal thought from the idea of a ‘universal subject’ of reason to the problematic of deportment and decorum attending to the offices and personae of the institutions of ‘reason’. For the same turn in jurisprudence, see, especially, Shaun McVeigh and Shaunnagh Dorsett, ‘The Persona of the Jurist in Salmond’s Jurisprudence: On the Exposition of “What Law Is . . . ?” ’ (2007) 38 Victoria University of Wellington Law Review 771–796.

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8 See Thomas Hobbes, Leviathan: or, the Matter, Forme and Power of a Commonwealth, Ecclesiastical and Civil (New York, NY: Collier Books, 1962), p. 125, ‘The word person is Latin: instead whereof the Greeks have [prosopon], which signifies the face, as persona in Latin signifies the disguise, or outward appearance of a man, counterfeited on the stage; and sometimes more particularly that part of it, which disguiseth the face, as a mask or vizard: and from the stage hath been translated to any representer of speech and action, as well in tribunals, as theaters’. 9 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (Bristol: Thoemmes, 2002), p. 363. Marcel Mauss perhaps offers the most well-known etymological analysis of ‘person’, although this etymology clearly traces its transformation as a category in metaphysics rather than jurisprudence. ‘From a simple masquerade to the mask, from a “role” (personnage) to a “person” (personne), to a name, to an individual; from the latter to a being possessing metaphysical and moral value; from a moral consciousness to a sacred being; from the latter to a fundamental form of thought and action . . .’, Marcel Mauss, ‘A Category of the Human Mind: The Notion of Person; the Notion of Self’, Trans. W.D. Halls in Michael Carrithers, Steven Collins and Steven Lukes (eds), The Category of the Person: Anthropology, Philosophy, History (New York, NY: Cambridge University Press, 1985), pp. 1–25, at 22. 10 See Austin, Lectures on Jurisprudence, p. 719. 11 Pierre Legendre quoted in Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990), pp. 263–264. 12 See, especially, Jean-Pierre Vernant and Pierre Vidal-Naquet, Myth and Tragedy in Ancient Greece, Trans. Janet Lloyd (New York, NY: Zone Books, 1988); David Wiles, Mask and Performance in Greek Tragedy: From Ancient Festival to Modern Experimentation (Cambridge: Cambridge University Press, 2007). 13 Jean-Pierre Vernant, ‘The Historical Moment of Tragedy in Greece: Some of the Social and Psychological Conditions’ in Vernant and Vidal-Naquet, Myth and Tragedy in Ancient Greece, pp. 23 –24. 14 Friedrich Nietzsche, The Birth of Tragedy: Out of the Spirit of Music, Trans. Shaun Whiteside (London: Penguin Books, 2003). 15 August Schlegel, for example, noted in 1808 on the use of masks by the ancient Greeks that, ‘Fidelity of representation was less their object than beauty; with us it is exactly the reverse. On this principle, the use of masks, which appears astonishing to us, was not only justifiable but absolutely essential; far from considering them as a makeshift, the Greeks would certainly, and with justice too, have looked upon it as a makeshift to be obliged to allow a player with vulgar, ignoble, or strongly marked features, to represent an Apollo or a Hercules; nay rather they would have deemed it downright profanation’, August Schlegel quoted in Wiles, Mask and Performance in Greek Tragedy, p. 74. 16 Nietzsche, The Birth of Tragedy, p. 19. In Greek tragedy, the coupling of the Apolline and Dionysiac reaches a significant moment. Apolline art attends to the beauty of masking and producing the individuated aesthetic presence of great heroes on stage as though in a dream, while the Dionysiac conversely is precisely that which always and necessarily comes masked by these forms; affirming under the ‘oneness’ of the mask the presence of that which is essentially fragmented, multiplicitous, dismembered, tonal. 17 Ibid, p. 51. 18 See Deleuze, ‘The Method of Dramatization’. See, also, Gilles Deleuze, Nietzsche and Philosophy, Trans. Hugh Tomlinson (London: Continuum, 2002). 19 Deleuze, ‘The Method of Dramatization’, pp. 113–114.

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20 Deleuze, Nietzsche and Philosophy, p. 9. 21 For a discussion of the concepts of person and status in Hegel’s work, see Robert Bernasconi, ‘Persons and Masks: The Phenomenology of Spirit and its Laws’ in Drucilla Cornell, Michel Rosenfeld and David Gray Carlson (eds), Hegel and Legal Theory (New York, NY: Routledge, 1991), pp. 78–93. 22 See R.H. Gravesen, Status in the Common Law (London: The Athlone Press, 1953). 23 See, in particular, Austin, Lectures on Jurisprudence, pp. 705–749. 24 See, especially, Friedrich Nietzsche, The Will to Power, Trans. Walter Kaufmann and R.J. Hollingdale (New York, NY: Vintage Books, 1968), pp. 457–519. 25 Ibid, p. 457. 26 The relation between rank, judgment and the creation of distinct personal jurisdictions has occasionally been treated in a genealogical sense in legal discourse. Pierre du Ponceau, for example, noted that the origins of personal jurisdiction were not to be found in the established institutions of legal judgment, but rather in the spirit of resistance with which a class of person established itself as no longer liable to be judged by the ordinary institutions—hence requiring the establishment of an order of various forums of judgment distinct to those classes. ‘Jurisdiction in personam’, he explained ‘. . . is to be traced, in Europe, to the pride and ambition of the privileged orders. The ecclesiastics and nobles, disdaining to submit to the authority of the ordinary tribunals of their country, claimed the right of being amenable only to special Judges, generally taken from their own body’, Pierre du Ponceau, ‘A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, being a Valedictory Address Delivered to the Students of the Law Academy of Philadelphia, at the Close of the Academical Year, on the 22nd April, 1824’, available at <www.constitution.org/cmt/psdp/ juris.txt> (accessed 4 May 2006). 27 Deleuze, Nietzsche and Philosophy, p. 58. 28 See, e.g. Gaius, The Institutes of Gaius (Oxford: Clarendon Press, 1946); Justinian, Justinian’s Institutes, Trans. Peter Birks and Grant McLeod (London: Duckworth, 1987). 29 de Bracton, Bracton on the Laws and Customs of England, pp. 29–32. 30 On the free man and slave as philosophical ‘types’, see Gilles Deleuze, Expressionism in Philosophy: Spinoza, Trans. Martin Joughlin (New York, NY: Zone Books, 1990), pp. 261–262. 31 For a rare explicit consideration of the meaning of slavery in Australian jurisprudence, see R v Wei Tang [2007] VSCA 134. The definition of slavery considered in that case is the one contained in the 1926 International Convention to Suppress the Slave Trade and Slavery and adopted in Australia under Criminal Code Act 1995 (Cth), s. 270.1: ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. For the High Court appeal, see The Queen v Tang [2008] HCA 39. 32 See, e.g. Ngaire Naffine, ‘Can Women be Legal Persons?’ in Susan James and Stephanie Palmer (eds), Visible Women: Essays on Feminist Legal Theory and Political Philosophy (Oxford: Hart Publishing, 2002), pp. 69–90. 33 Corporations themselves were not a modern legal invention; but the idea of their legal personality certainly became problematic for modern law. The universitas in Roman law, for instance, was a corporation in the full sense that we understand it, but it was not suggested to be a ‘persona’ until much later. According to Otto Gierke, the first to do this was Sinnibald Fieschi (later Pope Innocent IV) in the 13th century, thus becoming the first proponent of a ‘fiction theory’. See Frederick William Maitland, ‘Introduction’ in Otto Gierke, Political Theories of the Middle Ages (Cambridge: Cambridge University Press, 1900),

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36 37 38

39 40 41

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pp. xviii–xix. See, also, John Dewey, ‘Historic Background to Corporate Legal Personality’ (1926) 35 Yale Law Journal 655–673, at 663. In fact, the distinction between natural and artificial persons (or between real and fictitious persons) was not generally significant or meaningful in legal discourse until around the 16th or 17th centuries. Coke at least gave it a central position in the English ‘Law of Persons’, suggesting that all persons were either natural or corporate and of those which were corporate, they were either sole or aggregate of many. See Edward Coke, The First Part of the Institutes of the Lawes of England: or, A Commentary Upon Littleton. Not the Name of the Author Only, But of the Law Itself (London: J. and W.T. Clarke, 1823), p. ccxix. See Dewey, ‘Historic Background to Corporate Legal Personality’. Thus, the difference between freedom and unfreedom in the ‘Law of Persons’ is also sometimes translated into modern terms by the distinction between ‘sovereign’ and ‘subject’. See David Nasmith, The Institutes of English Private Law: Embracing an Outline of the Substantive Branch of the Law of Persons and Things, Vol. 1 (London: Butterworths, 1875), p. 4. Marcel Mauss, ‘A Category of the Human Mind’, p. 18. On the fiction and realist theories of legal personality, see W.M. Geldart, ‘Legal Personality’ (1911) 27 Law Quarterly Review 90 –108. Maitland offers an ingenious account of this indifference between the fiction and realist theories through an analysis of the ‘corporation sole’. The corporation sole, as opposed to the corporation aggregate, was characterized by the fact that it had at any given time only a single member rather than a plurality of members. The fact, however, that when this sole member died, the property held by the corporation sole still fell into abeyance, suggested peculiarly that in fact the corporation sole served no real purpose at all. It could not cause the rights invested in it to subsist beyond the life of the real human being who was its member. Maitland was therefore impelled to remark that the corporation sole was ‘either a natural man or a juristic abortion’, Frederic William Maitland, ‘The Corporation Sole’ in The Collected Papers of Frederic William Maitland, Downing Professor of the Laws of England, Vol. III (Cambridge: Cambridge University Press, 1911), pp. 210 –243. Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), p. 166. Ibid, p. 167. Gilles Deleuze, ‘What is a Dispositif ?’ in David Lapoujade (ed.), Two Regimes of Madness: Texts and Interviews 1975 –1995, Trans. Ames Hodges and Michael Taormina (New York, NY: Semiotext(e), 2006), pp. 338–348, at 344.

Chapter 3

Minority and personal jurisdiction: judging sex in Re Alex

In 2004 and 2007, the Family Court of Australia was required to determine whether special medical procedures affecting the gender of a particular young individual named ‘Alex’ could be authorized. Reading a theory of sexual difference in Deleuze’s Proust and Signs alongside the judgments in these cases, this chapter argues that the connection between gender and legal judgment can be approached through an attention to the problem of personal jurisdiction. Rather than establishing the gender of a person according to an inquisitorial dialogue and by reference to binary categories of judgment, the legal personality of a ‘child’ under the Family Law Act 1975 (Cth) is shown to sustain a gender more specific than that determined for Alex by the judgment of the court.

How ‘personal’ does a court’s jurisdiction get? Relations of personal jurisdiction frame a question of who exactly the law can be applied to. To know the ‘persons’ of law is not simply to name and identify those before the law, however; it is to dramatize and institute the character of their being before the law and the authority with which they speak before the law. In this chapter, the problematic of personal jurisdiction is taken up in relation to two discursive sites related to the issue of gender. The first is a particular legal state of affairs concerning the transsexuality of a young person.1 This situation is recorded in two cases heard before the Family Court of Australia in 2004 and 2007 titled respectively Re Alex: Hormonal Treatment for Gender Identity Dysphoria (‘Re Alex (No 1)’)2 and Re: Alex (‘Re Alex (No 2)’).3 At issue in these cases is the authority of a court to consent on behalf of ‘Alex’ to a series of special medical procedures altering that person’s gendered appearance, subject to the jurisdiction of the Family Law Act 1975 (Cth). The second discursive site continues the theoretical engagement with Deleuze and focuses upon the presentation of the relation between law, jurisdiction and sexual difference in his Proust and Signs. The overarching problem for these two sites is one of judgment: What are the ways in which law and sexuality are configured in judgment? From a jurisprudential perspective, this question points toward an attention to the relations of jurisdiction that construct the powers, authorities and competencies in relation to the subject of gender.

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One of the things that the Family Court comes to recognize in the cases of Re Alex (No 1) and Re Alex (No 2) is that the legal incompetence of a child is not unconnected to the determination of the sex of the person. However, it is one thing to make a legal determination of sex a choice between ‘naturalized’ binary identities (male and female) and quite another thing to link it to an account of the difference attending to the civil institution of ‘masks’. Modern conceptions of personal jurisdiction have treated sex as a kind of natural attribute—something inherent to the ‘natural person’—rather than as something borne much more immanently by the very play of masking and artifice that constitutes the aesthetic dimension of legal personality itself. The broader question for this chapter then may be put in this way: If the mask is not just a representation of sexed identity before the law but itself the substance and texture of sexuality, what does this mean for the ‘law of masks’ as a genre of jurisprudence—particularly in the situation of a court which attempts to determine the sex of a person deemed by virtue of their age to be legally unqualified to do so? The sex of a person no longer influences the formal determination of legal status and capacity that it may have once done. Yet it is apparent to more than just critical theorists of law today that this ‘formal’ equality misses the mark regarding the problem of gender in jurisprudence by a long stretch. Alex’s case concerns an individual whose legal person (as a child) places his sexuate and gendered rights in an uncertain position. While the court finds itself capable of filling-in this incompetence by speaking on behalf of the ‘best interests’ of the child in being recognized as one sex or the other, what gets notably lost in this dynamic is an account of the sexed legal personality of the child itself: the sex specific to the person of the child under the court’s jurisdiction. In the judgments in Re Alex (No 1) and Re Alex (No 2), the court experiences a difficulty in limiting its determination of Alex’s sex to the personal jurisdiction conferred on it by the Family Law Act 1975 (Cth). This chapter outlines the problematic institutional jurisdictions operating in the cases of Re Alex (No 1) and Re Alex (No 2), and then analyses how Deleuze’s account of sexual difference in Proust and Signs might offer one way of attending closely to this jurisdictional arrangement.

Re Alex: before the law of genders What are the contours to the jurisdiction in Alex’s case? Alex’s case involved two separate applications to the Family Court of Australia. Re Alex (No 1) was heard in 2004 when Alex was 13 years old. In this case, Alex with the support of his guardian, sought legal approval for a course of hormonal treatment that would constitute the initial stages of a ‘sex-change’. Since neither Alex, nor his guardian, were legally capable of consenting to the procedure, Nicholson CJ was called upon to authorize whether immediate hormonal treatment would be in Alex’s best interests under the jurisdiction defined by Family Law Act 1975 (Cth), s. 67ZC. Re Alex (No 2)

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concerned a subsequent application in 2007 for the same person to undergo a further stage of the medical procedure. This case was decided by Bryant CJ of the Family Court and raised for renewed consideration many recurrent problems examined in the original hearing particularly regarding Alex’s capacity to consent, his sexed identification and the court’s jurisdiction to determine the case. The original decision was one which had quickly received widespread attention in the Australian media and particularly within legal scholarship.4 The main interest in the case appeared to stem from a public concern over the kind of medical procedures that the Family Court was willing to authorize in relation to children as well as with the capacities and responsibilities attending the sex of children. In doctrinal terms, the cases were considered important as part of a series of cases involving the welfare jurisdiction of the Family Court to approve or refuse special medical procedures for minors who are unable to legally consent to such procedures either in their own right or through the power of a guardian.5 Its unique place within the case law was the fact that the proposed procedure was a procedure designed to affect the sexual characteristics of the person.6 The cases also provoked a cultural imagination of the dimensions of gender in its relation to law, legitimacy and truth. Alex’s case presents a legal dialogue regarding the authority and competence of the Family Court to describe the ‘sex’ of a particular person for the purposes of determining what can be considered legally within that person’s ‘best interests’. On the one hand, the cases are part of a personal story that is essentially singular and difficult to judge, while on the other hand, they are also part of the jurisprudential story that we normally identify in reported judgments. The judgments are concerned with two inter-related problematics of competence: firstly, the question of the court’s own jurisdiction and, secondly, the arrangement of the expert evidence regarding Alex’s condition and the proposed treatment. A significant part of each of the judgments consists in recounting evidence regarding Alex’s gendered experience and identifications. This evidence appears to place the problem of competence largely within the discourse of the medical or psychiatric profession.7 The reader’s understanding of Alex’s person is predominantly mediated through these sources and is therefore an understanding based significantly in the description of certain gendered characteristics and their relation to a diagnosis of ‘gender identity dysphoria’. In both cases, the concern is to present Alex’s condition as one of severe frustration within the normative world of gender which is expressed as a desire to be a ‘normal male’. In Re Alex (No 1), what we get to know from the professional accounts is that Alex has the body of a 13year-old girl and that this body places Alex in a socially marginal position since it means that his experiences of being male are socially disavowed. It is reported that Alex ‘feels angry and cheated that [his] body is female’ and especially feels this way ‘when it is reinforced to [him] that [he] is a girl’.8 Between Re Alex (No 1) and Re Alex (No 2), nevertheless, the Family Court

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appears to watch the inauguration of Alex into both the categories of gender and legal ‘majority’. Nicholson CJ begins in Re Alex (No 1) by noting that ‘[a]natomically, and in the eyes of the law, Alex is a girl’. However, by Re Alex (No 2), the person that comes back to the court is not necessarily of the same gender. Bryant CJ notes that ‘Alex was 13 years old at the time of the first application. He is now 16 years old . . . In my view it is abundantly clear that Alex is an extremely mature and considered young man’.9 There is a close connection between the medical and the legal problematizations of Alex’s gender in both cases. The legal narrative follows the medical and social narrative to the extent that it takes the problem of Alex’s sex as a welfare concern and links this concern to the stability of his ‘identity’. As such, the evidence tendered to the court coheres as a juridico-evidentiary discourse regarding the problem of Alex’s gendered self-identification. While it is true that on the one hand the court does not directly require Alex to frame his problem in terms of his seeking a ‘change of sex’ or even one of gender, but simply in terms of having a certain treatment approved, the court cannot address this legal issue without first organizing an inquiry into the bases of Alex’s gendered identification. The reason for this depends on the court’s view of its own jurisdiction. Alex’s ‘best interests’ were considered to be dependent upon a coherence of identity which would affirm his sexed legal status in relation to being either male or female. For the most part then, the court (along with the other experts) viewed Alex as being either a female who ‘thinks’ she is male, or as a male trapped in a female body. Both of these positions posed difficulties for the court to situate the significance of the ‘change’ implicated by the hormonal and proposed subsequent treatment within the dimensions of Alex’s gender. The logic of the court’s legal constructions of gender in both cases—a logic which attempts to reconcile Alex’s ‘interests’ with his ‘identity’—is only partly useful for describing the personal jurisdiction of the court in this instance. Although the court requires Alex to have interests only as either male or female, these determinations have to be momentarily suspended so that the hormonal treatment can be seen as a legitimate and logical remedy to Alex’s condition. If Alex is seen as a male, the treatment or ‘change’ becomes redundant, yet if he is seen as a female, on the other hand, it becomes simply outside Alex’s interests. The court seeks then to characterize the treatment not as a ‘change’ of Alex’s sex per se, but as a necessary measure to harmonize and make coherent Alex’s identity. The logic not only inscribes gendered existence in an ideally unchangeable state but also figures the truth of gender as something to be attained by way of certain mechanisms of inquisition with respect to ‘the legal subject’. The personal jurisdiction exercised by the Family Court in the two cases concerning Alex is linked to the Family Law Act 1975 (Cth). According to this Act, the Family Court of Australia has jurisdiction with respect to the persons of marriage. It has an authority therefore, from one perspective, to

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determine disputes between parties to marriage and enforce orders upon those parties in matrimonial causes. It also has the task of instituting the persons or characters of matrimony: as husband, wife, parent, guardian, child welfare officer, etc. and manages their powers, authorities, rights, interests and duties. The jurisdiction that the court has in relation to children, however, is affected and complicated by the fact that the ‘person’ of the child in the Family Law Act 1975 (Cth) does not have interests apparently separate from those which may be determined for it by the State.10 The court in Re Alex (No 1) is thus said to exercise a jurisdiction with respect to children similar to the ancient parens patriae or ‘wardship’ jurisdiction of the English Court of Chancery.11 Parens patriae meaning ‘father of the state’ is a residual and prerogative power exercised by the courts on behalf of the Crown over persons considered unable to care for themselves in their own right.12 In Re Alex (No 1), this form of jurisdiction was limited only by the terms of the Family Law Act 1975 (Cth), s. 67ZC, which provides for a court to make orders regarding the welfare of children and that, in assessing whether to make such an order, the best interests of the child is to be the paramount consideration.13 The existence of this residual and supplementary power over a child in the Act implies that the more regular jurisdiction of the court over the ‘parents’ of a child and over the determination of causes relating to the interests and responsibilities of ‘parenting’14 (including the rights of custody, access and guardianship) are intended ultimately as public delegatory powers of the State. The State supervises the exercise of the rights of parenthood or guardianship and is capable of making decisions regarding the child that would otherwise be without legal authorization. This point was decisive in the case of Minister for Immigration and Multicultural and Indigenous Affairs and B (No 3) (‘MIMIA v B’),15 which was determined by the High Court of Australia very shortly after the judgment in Re Alex (No 1). In that case, the Family Law Act 1975 (Cth), and particularly Pt VII of the Act, was deemed to be a law directed at managing the sexuate rights and roles specifically of parties to a marriage. This is why the attempt to invoke an order of the Family Court pursuant to s. 67ZC in the situation of MIMIA v B—in which the welfare jurisdiction had been used to argue for the release of the child from immigration detention on the basis that it was against the child’s best interests—was deemed inappropriate by the High Court. The matter in that case was thought not to be one concerning the jurisdiction over ‘parents’ or parenting. It would be inappropriate to use s. 67ZC to challenge the decision of the Minister to place a child in immigration detention, unless the Minister is also a ‘parent’ of the child and placing in detention is an exercise of ‘parental responsibility’. In the cases of special medical procedures then, the court’s jurisdiction is similarly deemed to be limited by the terms of parental responsibility, for instance in the power that would ordinarily vest in a child’s parent to consent to a medical procedure for their child. In Re Alex (No 2), Bryant CJ responded

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to the High Court’s delimiting of its jurisdiction pursuant to s. 67ZC by construing Alex’s guardian (the Secretary of the government department) as a person responsible for exercising parental duties and assuming parental obligations in relation to Alex, and as therefore a ‘parent’ for the purposes of the Act. Since the jurisdiction over the person of the child in s. 67ZC is constructed out of a relation of parentage or filiation, it may not be surprising that the court itself organizes its jurisdiction to make orders in Alex’s best interests (quite explicitly) according to an inquisitorial rather than a typically adversarial forum of legal dialogue. The evidentiary background to the case mimics in other words the moral discourse of paternalism. For Alex this means, firstly, that within the structure of the hearing it is difficult to dramatize or personalize the arguments for or against receiving the treatment. The Family Law Act 1975 (Cth) dictates that Alex’s interests must take paramount precedence in any judgment of the court, yet precisely because of this fact, his interests cannot be afforded a definitive or decisive presence ‘in person’ before the judge (notwithstanding the position of the ‘independent children’s lawyer’). This constructs a difficulty in locating Alex’s interests among the many who take it upon themselves to speak on behalf of those interests. One further consequence of this is that the court is directed toward addressing the legal relation to Alex’s gender as an internal, confessional or penitential relation (that is, as one concerning conscience and subjectivity) rather than as an external or civil relation concerned with managing the conflicts and discordances attending normative sexed categories.16 The Family Court arranges and directs its analytic interest toward Alex’s gender as a question of identity and to his subjective gender identification rather than toward the rights, obligations and privileges that attach to different gendered personalities and modes of existence. As such, the drama involved in the problem of gender becomes internalized and ‘subjectivised’. These factors frame the institutional scene in which Alex’s gender becomes the subject of legal judgment.

Law and sexual difference in Deleuze’s Proust and Signs What is striking about the judgments in Re Alex (No 1) as well as Re Alex (No 2) is that, in deciding whether to authorize particular ‘special medical procedures’, the court also appears to want to judge Alex’s sex; to make sex itself the object of legal judgment. The jurisdiction to do so is supposedly drawn from the terms of the Family Law Act 1975 (Cth), however, the interpretation brought to this somewhat limited piece of legislation for this purpose, interestingly draws little from the contemporary philosophies and jurisprudences based upon sex and gender and more upon the sociological, psychological and juridico-psychiatric discourses present to the hearing. On

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the one hand, there is an inability to approach jurisprudence within a logic specific to sexuate existence.17 Law can at best be seen to guide the determination of the sexes and to construct sexed categories from the outside and at worst to remain an entirely abstract and sexually disinterested form of knowledge: as though sex were an inessential complication within the logic of law. On the other hand, there is the immediate necessity of attending to the jurisdiction conferred by the (clearly sexed) Family Law Act 1975 (Cth) itself: to judge only that which is justiciable under the terms of this law. Here, the problem faced by the court is whether the legal determination of Alex’s sex need necessarily address the whole person per se or only that part designated for the purpose of exercising rights and duties under the Act. A jurisprudence which does not insist on searching for a person’s ‘true’ sex or to arrange sexed legal identity according to any natural or essentialist criteria, nevertheless, must find an analytic appropriate to the form of this non-essentiality. As mentioned in the previous chapter, the problematic of legal personality is useful within this kind of analytic because it organizes a treatment of identity around the non-transcendent action of the ‘mask’. In Chapter 2, this expressive element of personal jurisdiction was presented as distinctly Deleuzian. Deleuze is often thought of as a philosopher of difference rather than as a theorist of sexuality. Yet, in fact, Deleuze’s primary themes of difference, immanence and expression were developed early on in two works that took the subject of sexuality as their basis18 and which would be brought together more fully in his essay titled Proust and Signs. In Proust and Signs—a work which among many things offers a reading of Marcel Proust’s In Search of Lost Time as a particular apprenticeship in signs (worldly, erotic, sensuous)—the problems of law, jurisprudence and sex are taken up in a philosophically striking way.19 Central to this work is an attempt to rescue philosophy from the ‘Platonic’ friendship or goodwill that has traditionally served as its ground and guarantee. For Deleuze it is the worldly, erotic and sensuous affects—the everyday pain of love and jealousy in Proust’s work—which have a philosophical richness that is capable of rivaling the friendship that has also seemed to form the condition and foundation of Western philosophical thought. Part of what Deleuze attempts to do in Proust and Signs is return ‘sex’ from the philosophies of the ‘subject’ to the affective domain of interpretation; jurisprudence. Deleuze studies Proust’s In Search of Lost Time as the narrative of an apprenticeship in signs, of which the relationship between the cruel signs of love or sexuality and the enigmatic signs of law and punishment form a major theme. In the chapter of Deleuze’s text entitled ‘Levels of the Search’, the problem of sexual difference is identified with two particular modern consciousnesses of the law.20 Ancient Greek jurisprudence was one in which law and laws were seen as secondary in relation to the logos which determined their validity by referring them to a concept of the Good. This meant that the value of laws could be knowable by reference to a form of reason—as a universal

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concordance of the faculties upon the ‘same’ object—which related whole to part and part to whole. Modern consciousness of the law and modern jurisprudence, however, begin for Deleuze with an appreciation of what he describes as an ‘anti-logos’; an appreciation of a fragmented universe in which none of the pieces are referred to any ‘whole’ in time or space. Thus, the law is no longer qualified or validated by Reason or some other transcendent term but becomes a purely empty formal determination. It does not join, unite or adapt the parts under a conception of the whole, but acts to partition or set them apart and addresses each part as a fragment constitutive of a whole world in itself. Deleuze identifies two separate literary constructions or consciousnesses of this modern problematic of law. The first is depressive and associated with Franz Kafka, while the second is schizoid and associated with Proust. Both share a certain logic of the body. The depressive consciousness refers, for example, to the fact that absent a transcendent reference such as the logos, the law is unknowable outside of the body which receives punishment. The law cannot be given any content or determination without already being actualized in a punishment and an a priori guilt. It is Kafka’s The Great Wall of China that describes for Deleuze this acute moment in juridical consciousness in which ‘we find the fundamental link between the fragmentary character of the wall, the fragmentary mode of its construction, and the unknowable character of the law, its determination identical to a punishment of guilt’.21 On the other hand, the schizoid consciousness of the law that is provided by Proust appreciates that this a priori guilt—which from one perspective appears as the fundamental condition of sexed experience—is merely ‘apparent’, and that the body in fact enters a truly fragmentary dimension with respect to its sexes, beyond assigned static identities and in which the prescriptions of the law are formally redundant and superficial. The relation of this jurisprudential problematic to that of sexual difference is key to Deleuze’s reading of Proust. The Proustian theory of sexual difference for Deleuze is established at the intersection of three separate levels. These levels concern the play of masks that make up the games of a normative ordering of sexuality. They concern the relation of bodies and organs, entities and signs, codes and flux. How are our sexes and sexualities born by signs or masks? What kind of dramatization do they give rise to? The first and simplest level of this problematic is that of heterosexual loves. This level of sexuality is social, public and superficial. To function properly in a sexed society on this level is to appear to be heterosexual, and to believe in or affirm everyone else’s worldly heterosexual appearances. Males and females meet, therefore, on this first level within an institution which, through its regimentation of signs and appearances, makes the sex of individuals completely ‘readable’. Obviously, this first level raises a certain problem of interpretation which for Proust is connected with the ‘search’ as the subject of his novel. What is the truth behind these appearances, or

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behind these worldly ‘masks’ of heterosexuality? There may, in fact, be no such underlying truth, but the search itself which makes up the narrative, introduces the reader to the possibility of surveying another secret or hypothetical level of sexual relations. For the one who searches for the truth— which according to Deleuze, Proust develops through the character of jealousy—all the superficial signs of heterosexuality and their interpretation become deceptive and converge upon a ‘secret’ homosexual world that excludes the member of the other sex. On this second more profound ‘secret’ and ‘accursed’ level, the sexes shall never meet or communicate because they each express a homosexual world, or belong to a homosexual series, that ultimately excludes the other. Belonging to separate worlds, the sexes enter into relation only indirectly and through disguise: a man who really loves other men, for example, will have to play the role of a woman in order to be an object for the woman who really loves other women, and so on. It is at this level of signs, Deleuze contends—in which there is no longer any essential coherence or correspondence between the entity and its statistically determined sex—that the reality of guilt prevails in sexual desire and the laws of love. Just as there is no true or transparent sex or sexuality of any individual, the sexes address one another only through a block of mutual deception and becoming. If the homosexual level of signs is more profound than the transparent signs of heterosexuality, Deleuze nevertheless introduces an even more complex and concealed third level which is neither homosexual nor heterosexual but which he names transsexual. The second level already hinted at a certain transsexual ethic in which one should not enter into a sexual relation other than by undergoing some kind of ‘change’ or by a mutual ‘becoming’ of each individual. The sexes themselves, however, remained statistical, aggregate or ‘molar’ on this level as on the first (since each individual belongs to either one series or the other at any given time). The ‘transsexual’ level, however, is one which cannot sustain the form of individual sexual identities, since for Deleuze it ‘transcends the individual as well as the entity: it designates in the individual the coexistence of fragments of both sexes, [as] partial objects that do not communicate’.22 This is why—in making sense of the previous two levels—the third is also figured as an ‘initial hermaphroditism’,23 because rather than either being united in the conventional world of heterosexuality, or consigned to secret fragmented homosexual worlds, the two sexes remain disjunct and non-communicating; but disjoined on the one body.24 The Proustian theory of sexuality for Deleuze ‘will assume its entire meaning only if we consider that the two sexes are both present and separate in the same individual’.25 This transsexual level of sexuality thus refers to a transverse dimension reminiscent of the hermaphroditic sexuality of plants, in which one always requires a third party or species—a bird or an insect or the wind— in order to make possible ‘[i]ntersexual loves’ or a ‘vegetal innocence’26 more profound than the guilt inscribed by the law.

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Erotic aspects to the legal personality of the child In his earliest work on sexuality originally published in 1945, Deleuze had wanted to present a ‘philosophy of the sexed Other’.27 The philosophies of the ‘Other’—like the philosophies of the subject—are for Deleuze decidedly ‘strange’ and for a specific reason: that they present us with an essentially ‘asexual world’; a world inhabited by mere consciousnesses, beings with whom one can only ‘think’ of making love: We find here the classic illusion of a reciprocity of consciousnesses: the Other would simply be another ‘I’ that has its own structures only in the sense that it is itself a subject. But this is to dissolve the problem of the Other. It is as if the lover alone were sexed, as if it were the lover who conferred the opposite sex on the beloved . . . Such a vision is contrary to any sincere description, in which it is the Other as such – and not another ‘I’ – that would be revealed in its sex . . .28 Deleuze affirms that the ‘beloved’ needs a philosophical or a phenomenological status of its own. The beloved is not just another lover of this or that sex: she is sexed precisely as ‘loved’ as the ‘Other’. Deleuze will remain relatively ambivalent toward using the language of the ‘Other’ in his writing, other than to explicate the solitary figure of Robinson on his island in the work of author Michel Tournier,29 and to explore the philosophy of sex. What he will retain from his early work in particular is that sex is not a relation of consciousness or representation but one of expression. For Deleuze, the ‘Other’ is neither an object nor a subject but just the ‘expression of a possible world’; an external world expressed as a ‘structure-Other’. ‘Tiredness’ as an immanent quality of the world for instance, requires this ‘structure-Other’ in order to transform into my being tired, ‘to make me realize that this time it is really me who is tired’.30 Similarly ‘joy’ might be a mere lightness or bouyancy were it not for the ‘structure-Other’ which means that we almost imperceptibly begin to bear the responsibility for the fact that it is now me who is experiencing it. The significance of this philosophical endeavour for surveying the juridical and jurisdictional construction of sexual difference in Alex’s case may not be immediately obvious. One can start, nevertheless, with a small part. In one of the reports tendered to the Family Court in Re Alex (No 1), Alex is described as having not only thought that he was male, but also as having ‘thought that the whole world was male’.31 It is not clear whether the participants in the case—the judge, the psychiatrists, teachers, etc. who give evidence—attend to this ‘thought’ with much specificity, for they each persist to speak as though Alex still has to be either male or female, masculine or feminine in a world which is neither; in a world that itself has no gender.

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Alex seems to be simply taken to have misunderstood the laws of gender and the whole situation can barely move forward until the statement is rephrased.32 On the other hand, it is doubtful that the situation is helped when, in reading this case, we try and account for what the court is structurally incapable of recognizing, or when we turn the scales on law’s system by making the ‘Other’ ethically prior to the ‘self’. Deleuze insists that the philosophies of the ‘Other’ in this way threaten to treat thought as a kind of advocacy for which marginal figures provide us with the most disingenuous ammunition. And, indeed, when the court finds itself confronted simply with philosophical ‘Others’, one can hardly complain that its technical language of ‘minority’ becomes redundant and loses a certain touch. The ‘Other’ becomes a transcendental form of the language of diminished capacity. If for Alex, however, there was, firstly, no ‘Other’ sex as such but just this male world, it is the ‘structure-Other’ which forces this male world to ‘stick in the throat’,33 and for Alex to say eventually that now it is really me who is male! The problem for the court might not necessarily be to measure the validity and truth of the statement—nor even to valorize its ‘Otherness’—but to describe and concede the minority before the law of the person who states it. This task is clearly not simple. As the judges of Alex’s legal person, both Nicholson CJ and Bryant CJ cannot help but to take particular heed of Alex’s desire—in the words of his case manager Ms M—to ‘live a normal life as a male’ and which may include such things as ‘going to the beach and playing sport; and to be able to have a girlfriend’.34 It is worth noting that there is a tension here between a set of rights (whether legal or otherwise) that do not necessarily have an essential relation to one’s gender, and on the other hand the ability to adequately ‘play’ the gender of these rights as a determinate sexuate mode of living. Bryant CJ notes that, ‘Alex is an intelligent, sensitive, thoughtful and good-humoured young man of considerable maturity and perception. [He] identified himself as male from a very young age and has shown great determination, and no little ingenuity, in maintaining his commitment to living as a man’.35 It is here that one notices that the personal jurisdiction of the court is not simply a power over the rights, responsibilities and duties attached to the roles of ‘parents’, but also one over the staging of gender in relation to a child: a concern with describing the legal ethic, aesthetic and capacity of ‘a life’ lived as ‘a man’ or ‘a girl’. As already discussed, the legal person is not a supposed ground or bearer of rights as a legal ‘subject’ but rather a way of ‘dramatizing’ the value and existence of rights. The fashioning of discrete legal persons therefore has various registers. On the one hand, it creates the masks which will define the legally oriented life of the individual and which will usher him or her toward their civil death. By making rights the matter of a discrete life that must be ‘lived’, it affirms the discontinuity of a living being and therefore also ties this living being to the order of its deaths (as opposed to its reproduction).36 On the other hand, it crafts the partial and non-essentialized roles that define

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the drama of lawful existence beyond the guilt attached to the ‘subject’ of law and its alienation in the categories of gender. It is in this sense that legal personae serve an essentially ‘erotic’ function. The mask does not reveal a ‘complete’ sex. However, there is also nothing complete lying behind the mask itself. Instead of the reproduction of sexual identities and statuses then being understood as a precondition for sexuate rights, personal jurisdiction attends precisely to the element of ‘role’ or ‘performance’ in the dimensions of legal personality and should therefore reframe the transformation and the capacity to transform as themselves constitutive of the reality of sex, in relation to which identity would become understood as simply a partitioned moment. In Proust and Signs, Deleuze presents the task for modern jurisprudence as that of addressing the fragmentary or incomplete nature of sexed experience without referring it to a transcendent term which judges it, to a logos which organizes it, or to a ‘whole’ to which it could be restored. The Family Court’s jurisdiction over the sex of Alex’s person should itself be seen as partial or incomplete. It does not extend to the whole of Alex’s sexed existence, but only that part which is directed toward the exercise of certain civil functions and which serves as the basis for rights exercised with respect to the authorizing legislation. One can finish then with making a number of technical points regarding the law of gender in Alex’s case. Firstly, since the legislation does not require Alex’s sex to be either male or female but only a ‘child’ within the meaning of Family Law Act 1975 (Cth), s. 67ZC, the court faces the challenge of limiting its judgment and the determination of its personal jurisdiction to the terms of this meaning. It does not necessarily mean, for instance, that this specific form of legal personality of a ‘child’ (and its sculpted set of rights under the Act) is without a determinate sex. Indeed, sex may be more precisely defined by the rights one assumes in playing the role and adopting the legal persona of a child than it is by a set of externally constructed criteria: biological, psychological or juridico-inquisitive. It is not so much a question, for instance, of how the categories of gender might apply juridically to the competencies and capacities belonging to the person of a child—such that the simple incapacity to consent to a special medical procedure may render one’s ‘sex’ liable to be determined by legal judgment. Rather, it is a question of how the jurisdiction of being a child for the purposes of the Act distributes or arranges the categories of gender and addresses their civil and juridical coexistence. It is not the judge which determines the sex of a child for the purposes of the Act, but the person of the child under the Act which interprets and evaluates the rights of sex in a determinate way. A good example of this distinction can be drawn by a comparison of the cases concerning Alex with the earlier case of Re Kevin (Validity of Marriage of Transsexual).37 In Re Kevin, the Family Court of Australia affirmed that the determination of the sex of a person for the purpose of

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marriage was not a determination of the person’s ‘natural’ or biological sex as it had been in the English case of Corbett v Corbett (otherwise Ashley),38 but a determination with respect to the capacity of the person to fulfill the rights, duties and characteristics of the particular gendered role within the legal and civil relationship of marriage.39 Being a ‘man’ or a ‘woman’ for the purposes of marriage and matrimonial causes, therefore, may be thought as a performative rather than a natural attribute and relates to legal capacity in the strict sense. While the court in Re Kevin preferred to give the ‘ordinary meaning’ to the terms ‘male’ and ‘female’ as applicable to the person at the time of marriage, the criteria for such an application more strictly could have been drawn from the sexed roles as determined within the legal institution of marriage itself. To the extent that the judgment takes into account factors beyond the laws governing this relationship, for instance, including the court’s somewhat absurd interest in Kevin’s boyish childhood, his engagement in typically male activities or behaviour, his decision to undergo sexual reassignment/affirmation surgery (an interest which itself tends to simply repeat the broader prejudice regarding transsexualism, that is, the need to prove one’s gender by removing clothes), this should also raise problems with regard to the jurisdiction conferred by the Family Law Act 1975 (Cth).40 The point is that the jurisdiction over the persons of matrimony, while clearly gendered, is not accordingly a jurisdiction to determine the gender of an individual for the purposes of entering into marriage, but to determine the gendered rights arising in relation to controversies between parties to a marriage. In the cases regarding Alex, by comparison, the institutional forum within which the problem of the gender of an individual becomes relevant—that is, under the court’s welfare jurisdiction—is less clearly demarcated owing to the fact that the rights and capacities of a child are defined by tautological reference to their ‘best interests’. The relevant forum is not one organized to mediate between the genders attached to the institution of marriage for instance but rather between those attached to the legal institution of parenting or ‘parental responsibility’. From this perspective, the person of the child itself is engendered by the welfare jurisdiction in neither a subjective nor objective sense but according to the eroticism attaching to parental rights and interests, capacities and incapacities. For example, being a person with limited legal autonomy in relation to paternal and maternal decision-making; or being a person who can have decisions made for oneself in one’s best interests regarding special medical procedures—these are, indeed, not altogether asexual or non-erotic aspects of the legal personality of a child under s. 67ZC. The court should attend not so much to the rights that may guarantee for Alex the capacity to live a ‘normal’ life as a man, but to those which properly describe the sexuate condition and power of a child under the terms of family law. There is a more general point that may be appropriate to finish this discussion. The point of limiting its personal jurisdiction to the specific terms

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of the Act is also to ensure that the court’s representation of gender should itself not get too personal. Whether or not measures are used to protect Alex’s identity as well as some other participants in the cases of Re Alex (No 1) and Re Alex (No 2), there remains something both legally imprudent and ethically uncomfortable about the situation of having one’s sex or gender, the particular ways of thinking about one’s own sex, the insecurities regarding the sexed characteristics of one’s body, the practices of finding one’s way around the laws of gender, etc. laid bare and evaluated before a public tribunal. In no other situation would this be necessary or appropriate in a legal forum. In no other situation would it be necessary to convince a judge that one really belongs to this or that sex or to display a kind of commitment or devotion toward ‘living life’ as a male or a female. It may be typically assumed that there is nothing more central, intimate or irrefutable about one’s ‘person’ than sex. But personal jurisdiction is not universal, even with respect to gender. It places limits on who can be judged in law, where and in which capacity.41 It also prevents judgment from being brought to bear on the whole person—from having one’s innermost being or entire existence brought before a tribunal of judgment—limiting it rather to a set of legally constructed rights constituting a discrete civil function. In this chapter, the relation between gender and legal personality has demonstrated certain dimensions to the concept of personal jurisdiction. For Deleuze, personal jurisdiction is a key element of jurisprudence and jurisprudence is understood as that discipline of legal thought capable of having done with the ‘rights of man’, ‘human rights’, universal rights, etc. When applied to the question of gender, it is clear that the rights of man have not just alienated women but all sexes in so far as the sexuate rights themselves are tied to a negotiation of gendered juridical institutions. What has been noticed in this chapter is that as soon as one starts to consider the technicalities of an institutional field like family law, one realizes that ‘human rights’ are singularly impractical, and moreover that jurisprudence must quickly dispense with a whole set of abstractions in order to pay closer attention to the practical rights and conduct that attach to gender and its performance; with, for instance, the rights of ‘spouses’, ‘parents’, ‘children’ and the set of legal modes of existence that attend to the civil institution of sex and reproduction. In the next chapter, the thematic of personal jurisdiction is taken up again in relation to a related set of jurisprudential reference points. The ‘rights of man’ have not only been subject, as they have in this chapter, to a critique in the name of ‘gender’ and in relation to the persons that constitute the legal domain of gender. They are also subject to a critique of the privilege afforded to the ‘human’ in the modern treatment of the connection between rights and persons. This, in particular, has an implication for the way in which the concept of personal jurisdiction might be thought in relation to a relatively new field of legal study: the jurisprudence of animal law.

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Notes 1 For an extensive engagement with the jurisprudence relating to transsexual and transgender persons before the law, see, in particular, Andrew N. Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law (London: Cavendish Publishing, 2002). 2 Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 Fam LR 503. 3 Re: Alex [2009] FamCA 1292 (6 May 2009). 4 See Gemma Edgar, ‘Re Alex/Real Alex: Transsexual Narratives and their Possibilities for Resistance’ (2005) 23 Australian Feminist Law Journal 79–97; Paula Baron, ‘The Web of Desire and the Narcissistic Trap: A Psychoanalytical Reading of Re Alex’ (2005) 14(1) Griffith Law Review 17–33; Kim Atkins, ‘Re Alex: Narrative Identity and the Case of Gender Dysphoria’ (2005) 14(1) Griffith Law Review 1–16; Rachael Wallbank, ‘Re Kevin in Perspective’ (2004) 9 Deakin Law Review 461–502; Kate Parlett and Kylie-Maree Weston-Scheuber, ‘Consent to Treatment for Transgender and Intersex Children’ (2004) 9 Deakin Law Review 375 –397; Eithne Mills, ‘Re Alex: Adolescent Gender Identity Disorder and the Family Court of Australia’ (2004) 9 Deakin Law Review 365–373. For an overview of the media response to the case, see Danny Sandor, ‘Sex and Drugs and Media Roll: The Family Court’s Decision in Re Alex’ (2004) 37 Australian Children’s Rights News 21–27. 5 See, e.g. Secretary, Department of Health and Community Services v JWB and SMB (‘Re Marion’) (1992) 175 CLR 218; Re the welfare of A (a child) (1993) 16 Fam LR 715; Re P and P (1995) FLC 92– 615; Re GWW and CMW (1997) 21 Fam LR 612. 6 Compare Re the welfare of A (a child) (1993) 16 Fam LR 715. In that case the child A, a 14 year old had been diagnosed at birth with congenital, adrenal hyperplasia—a form of intersex—for which he had been given genital reconstruction surgery and hormone replacement treatment as an infant to make him appear female. The application was therefore similar to that in Re Alex (No 1) except for the fact that Alex did not have an intersex condition. In the case of AttorneyGeneral of the Commonwealth v Kevin and Jennifer and the Human Rights and Equal Opportunity Commission [2003] FamCA 94, para. [235], Chisholm J noted that in Australia, a transsexual person may have an equivalent status to an intersex person, at least for the purposes of marriage law. 7 The breadth and organization of the expert evidence on transsexualism in Re Alex is compared disfavourably with that in the case of Re Kevin (Validity of Marriage of Transsexual) (2001) 28 Fam LR 158 by Rachael Wallbank, see Wallbank, ‘Re Kevin in Perspective’, p. 488. Wallbank argues that this evidence contributes to a particular ‘psychiatric/disorder model or explanation of transsexualism’. 8 Re Alex (No 1), p. 519 (report by Professor P). 9 Re Alex (No 2), para. [143]. 10 This is the effect of the paramountcy principle which, before the enactment of the Family Law Reform Act 1995 (Cth), guided the jurisdiction of the Family Court in relation to children by requiring the court to take their welfare into account as the paramount consideration. The current Family Law Act 1975 (Cth) incorporates this principle variably in respect to particular types of orders. The relevant section in the case of Re Alex (No 1) was s. 67ZC(2) which requires the court—in relation to the exercise of its welfare jurisdiction of children—to ‘regard the best interests of the child as the paramount consideration’.

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11 Re Alex (No 1), p. 506. See, also, B and B v Minister for Immigration and Ethnic Affairs (2003) 30 Fam LR 181, at 218–220; ZP and PS (1994) FLC 92–480, at 80,999. 12 Lord Eldon described the jurisdiction in these terms in Wellesley v Duke of Beaufort (1827) 4 ER 1078, at 1081, ‘[It] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them’. 13 Family Law Act 1975 (Cth), s. 67ZC. For considerations on how the court is to determine the ‘best interests’ of a child and how a child’s views are taken into account in making such determinations, see ss. 60CC–60CG. See, also, Re Marion (1992) 175 CLR 218. 14 See Family Law Act 1975 (Cth), Pt VII, Divs 2, 4, 5 and 6. 15 Minister for Immigration and Multicultural and Indigenous Affairs and B (No 3) (2004) FLC ¶ 93 –174 (‘MIMIA v B’). 16 On the jurisdictions of ‘internal’ and ‘external’ forums, see Pierre Legendre, ‘The Judge Amongst the Interpreters’, in Goodrich, P. (ed.) Law and the Unconscious: A Legendre Reader, Trans. Peter Goodrich, Alain Pottage and Anton Schütz (New York, NY: St Martin’s Press, 1997). 17 On the concept of sexuate rights as a philosophy of family law, see Luce Irigaray, ‘The Necessity For Sexuate Rights’ and ‘How to Define Sexuate Rights’ in Margaret Whitford (ed.), The Irigaray Reader (Oxford: Blackwell, 1991), pp. 198–203 and pp. 204 –212 respectively. 18 See Gilles Deleuze, ‘Description of Woman: For a Philosophy of the Sexed Other’, Trans. Keith W. Faulkner (2002) 7(3) Angelaki 17–24; Gilles Deleuze, ‘Statements and Profiles’, Trans. Keith W. Faulkner (2003) 8(3) Angelaki 85–93. These two texts were originally published in 1945 and 1946 respectively in the journal Poésie while Deleuze was still in his early twenties. 19 This piece would also prefigure his later and more popular thoughts on sexuality with Felix Guattari in A Thousand Plateaus. See, in particular, Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, Trans. Brian Massumi (London: Continuum, 2002), pp. 275–279. The concept of ‘becoming-woman’ is a key figure in this work. This concept was useful with respect to two aspects of Deleuze’s philosophy: first, that the structure of Being be treated not in a categorical or dialectical manner but according to an immanent logic of becoming and ‘flight’; and, secondly, that difference be regarded as absolute rather than reducible to any form identity or consensus. It was therefore necessary to think ‘woman’ (as a minor genre as opposed to the major genre of ‘Man’) in terms of a becoming of sex itself rather than as simply one of its categories. ‘Becomingwoman’, a figure indeed suggestive of transsexualism, links ‘minor’ politics with an ontology of movement. Deleuze’s theory of difference more generally, however, received criticism from within feminist academia for decentralizing or molecularizing the problem of gender and subjectivity. See, especially, Rosi Braidotti, Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (New York, NY: Columbia University Press, 1994), pp. 111–123. The question of sexual difference in Deleuze’s work has nevertheless been revisited, the challenge largely being to understand the foundational status that sex may have in the metaphysics of difference. See, e.g. Claire Colebrook, ‘Is Sexual Difference a Problem?’ in Ian Buchanan and Claire Colebrook (eds), Deleuze and Feminist Theory (Edinburgh: Edinburgh University Press, 2000), pp. 110–127; Rosi Braidotti, Transpositions: On Nomadic Ethics (Cambridge: Polity Press, 2006), pp. 182–189.

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20 See Gilles Deleuze, Proust and Signs, Trans. Richard Howard (Minneapolis, MN: University of Minnesota Press, 2000), Chapter 10. 21 Ibid, p. 132. 22 Ibid, p. 136. 23 Ibid, p. 135. 24 If the hermaphrodite operates as this disjunctive synthesis in Deleuze’s theory of sexuality, we should also incidentally expect her/his physical and historical existence to mark a problematic juncture in legality. Indeed, Michel Foucault writes some important passages on the legal and historical status of hermaphrodites in the middle and classical ages in which the question of a ‘true sex’ became a problem of institutional judgment historically related to judgments concerning the physical constitution of a ‘monster’. Foucault maps an historical shift from a legal problematization of bodies to a normative problematization of behaviour. The hermaphrodite enters legal discourse, first, for the simple fact of having ‘two sexes’ which disrupts the juridical order; while, secondly—having formally only one ‘true sex’—he or she is prosecuted for the act of making use of their non-dominant sex. See Michel Foucault, ‘Introduction’, in Herculine Barbin: Being the Recently Discovered Memoirs of a Nineteenth Century French Hermaphrodite, Trans. Richard McDougall (Brighton: Harvester Press, 1980), pp. vii–xvii; Michel Foucault, Abnormal: Lectures at the College de France, 1975–1975, Trans. Graham Burchell (New York, NY: Picador, 2003). 25 Deleuze, Proust and Signs, p. 135. Although Keith W. Faulkner suggests that in ‘Proust and Signs Deleuze determines that it is the law that divides the sexes’, this overlooks the importance of the hermaphrodite within Deleuze’s account of law and sexual difference. The hermaphrodite makes sense of the two noncommunicating series, see Keith W. Faulkner, ‘Deleuze in Utero: Deleuze-Sartre and the Essence of Woman’ (2002) 7(3) Angelaki 25–43, at 37; Deleuze, Proust and Signs, pp. 10 –11. 26 Gilles Deleuze, Proust and Signs, pp. 176 –7. 27 See Deleuze, ‘Description of Woman: For a Philosophy of the Sexed Other’. 28 Ibid, p. 17. 29 See Gilles Deleuze, ‘Michel Tournier and the World Without Others’ in The Logic of Sense, Trans. Mark Lester (London: Continuum, 2004), pp. 341–359. 30 Deleuze, ‘Description of Woman: For a Philosophy of the Sexed Other’, 18. 31 Re Alex (No 1), p. 518 (report by Professor P) (emphasis added). 32 The necessity to rephrase things appears a pattern of Alex’s predicament. In 2001, for instance, when he asked to see a doctor to confirm that he was male, he was required to reformulate the problem in different terms, e.g. that he ‘knows that [he] is a girl but would like to be a boy’. Re Alex (No 1), p. 518 (report by Ms R). 33 Deleuze, ‘Description of Woman: For a Philosophy of the Sexed Other’, p. 18. 34 Re Alex (No 2), para. [64] (report by Ms M) (emphasis added). 35 Ibid, para. [174] (emphasis added). 36 See George Bataille, Erotism: Death and Sensuality, Trans. Mary Dalwood (San Francisco, CA: City Lights Books, 1986). On the normative institution of life relating to the places and housing of the dead, see, in particular, Robert Poque Harrison, The Dominion of the Dead (Chicago, IL: University of Chicago Press, 2003); see, also, Yan Thomas, ‘Res Religiosae: On the Categories of Religion and Commerce in Roman Law’ in Alain Pottage and Martha Mundy (eds), Law, Anthropology and the Constitution of the Social: Making Persons and Things (New York, NY: Cambridge University Press, 2004), pp. 40–72. 37 (2001) 28 Fam LR 158. For a discussion of these two cases in context, see Wallbank, ‘Re Kevin in Perspective’.

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38 In the English case of Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33, the validity of marriage was said to depend on the sex of the parties for the purposes of fulfilling the ‘essential’ functions of marriage. Ormrod J, however, at p. 48, confuses the problem of sexed performance with reproduction: ‘. . . the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male . . . cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage’. 39 Although the court itself describes this in terms of the ‘ordinary meaning’ of the term ‘male’ or ‘female’ as applicable to the person at the time of marriage, it is clear that the criteria for such an application must be drawn strictly from the sexed roles as determined within the legal institution of marriage itself. The extent to which the judgment takes into account factors beyond the laws governing this relationship should raise problems with regard to the jurisdiction conferred by the Family Law Act 1975 (Cth), see ss. 31 and 33. 40 See Family Law Act 1975 (Cth), ss. 31 and 33. 41 This is what makes a declaration such as International Covenant on Civil and Political Rights, Art. 16 cited by Bryant CJ obviously nihilistic, that ‘[e]veryone shall have the right to recognition everywhere as a person before the law’, dangerously vacuous in the context of Alex’s case. See Re Alex (No 2), para. [179]. Taken as law, such a declaration would render libraries of jurisprudence on legal personality obsolete.

Chapter 4

Persons of animal law

‘Animal law’ is a new and growing field of legal education in the AngloAmerican tradition. The modification that this field of study, however, reveals to the jurisprudential domains of legal personality and personal jurisdiction have not yet been fully explored. This chapter attempts to describe certain contours to the personal jurisdiction defined by the field of ‘animal law’. Deleuze’s method of dramatization is used to show that animals may be more than just subjects or objects of legal knowledge under this jurisdiction, but masks within a particular style of jurisprudence.

The ‘Law of Persons’ does not necessarily have a clear delimitation in contemporary legal theory. It is not easily imagined what it might mean to construct a legal person, what function it has in jurisprudence or how it might exist independently of more abstract concepts such as the legal subject. Modern jurisprudence typically maintains that the key distinction for personal jurisdiction is that between ‘natural persons’ and ‘corporations’. But since the ‘natural person’ has been increasingly traced onto the notion of the ‘human’, jurisprudence is left with a few problems. Firstly, how does one account for the variety of legal personae which are neither natural nor unnatural and their distinct constructed functions and capacities at law—the personal status of minors, incompetent persons, gendered personae, etc? What can one make of the localized and discrete forums of judgment which may still address them? Secondly, where does it leave the status of the many jurisdictions exercised with respect to non-human (and non-corporate) subjects of law? Today, the jurisdiction with respect to the rights of ‘humans’, has become an overarching and universalizing forum. Given this fact, it is not surprising that a vast array of minor entities that do not qualify as human should find themselves, not just in uncertain positions within legal institutions, but also in an increasingly privileged position with respect to the contours of a jurisprudence of ‘personality’. In relation to the many legal forums set up to judge and measure the nature of ‘man’ then, a contemporary jurisprudence of persons may, on the contrary, find itself elaborated within a somewhat narrower setting. The techniques

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for constructing ‘legal persons’ in jurisprudence have always been a more honed set of practices than those which seek to define rights under the universal category of man. When Deleuze and Guattari, for example, counter the major ontology based on ‘man’ with various minor ‘becomings’—becoming-woman, becoming-animal, becoming-molecular1—part of the point is to show that rights are not borne from attaining for oneself a certain status, but from pushing status itself toward the side of its minority and minorization. Hence, to invent rights for oneself, to create rights in jurisprudence, does not mean remaining a ‘man’; rather it requires the fashioning of a somewhat more incomplete, minor ‘person’ to make the situation livable. These are factors that legal discourse has its own way of taking into account. The increasing importance and interest in the jurisprudence relating to ‘animal law’, for instance, is no anomaly.2 What exactly is ‘animal law’? First of all, laws relating to animals have been important in virtually all legal systems since antiquity. A jurisprudence relating to animals is therefore certainly not something new. Nor is it a field lacking a defined or traditional basis. What may be relatively new, however, is the fact that animal law is increasingly becoming a recognized subject of study within the organization of university legal education.3 The appeal of the study of ‘animal law’ in contemporary legal education may have something to do with the uncertain space occupied by the question of persons and personal jurisdiction in jurisprudence. This does not necessarily need to be reduced to the common perspective among some scholars in the area, that the recognition of animal rights in law implies a reconsideration of the moral ‘personhood’ of certain animals. This perspective takes personal jurisdiction as something that need only be extended to certain lesser beings by analogy with humans and disregards the question of forum and performance within which legal personality itself is constructed. Nevertheless, animal law as a subject addresses the problem of personal jurisdiction for contemporary jurisprudence in a very definite way. As soon as the ‘person’ (or ‘natural person’) in law, for example, becomes equated with the ‘human’ to the point where law becomes uniquely invested in the description of human rights, a whole body of legal knowledge concerning animals at the same time becomes peculiarly problematic. Animals might be the first type of legal entity one attributes a significance to the fact of being not human,4 and since only humans are naturally legal persons, the personal status of animals before the law becomes a field of distinct problematization. Animal law comes forth, for instance, in contemporary jurisprudence as more than just a set of laws and legal relations concerning animals, but as a part of that body of law regarding natural beings who fall short of the status accorded to ‘humans’. This chapter attempts to consider the jurisprudence of ‘animal law’ from the perspective of a jurisdiction of persons. Its aim is not so much to consider whether or to what extent animals can have standing before courts of law, but rather to address an ordering of authority as a question of the persons or masks in the law relating to animals. This approach, in some

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measure, attempts to provide a language within current theoretical and juridical debates over animal rights and animal welfare that does not remain attached to a transcendent anthropocentric model of ‘recognition’. While the status of animals has been given renewed attention and interpretation within continental theory and philosophy,5 a translation of the theoretical complexity and creativity within these disciplines to a legal institutional idiom has proved more difficult.6 Part of an approach which might attempt to bridge this gap requires an attention to the different arrangements to the relation between the legal subject and the legal person, the two most significant of which we have named (in a Deleuzian sense) ‘representational’ and ‘expressive’. What this means, in a more specific sense, is that at stake within a discipline of animal law is a particular art of addressing ethical relations to animals as questions of law and jurisdiction. This has been a challenge for many animal rights scholars who—even when they are arguing for the legal recognition of animal interests—tend to clothe these arguments in either a moral or phenomenological aesthetic. Concerns about the forms of consciousness, autonomy or capacity to suffer of various animals is thus said to place demands of justice upon a system of juridical rights and interests relating to animals. Furthermore, while legal settings are often invoked as authoritative forums in which to raise, discuss and enforce animal rights, the discipline of law itself is usually regarded as the locus of moral ‘reform’. This chapter attempts to explore certain jurisdictions in which legal authority is described in terms of animals and through which the forms of animal life are instituted and addressed as law. The focus is on the jurisdictions of property law, civil liability and criminal law. It assesses these jurisdictions by way of the ‘persons’ that compose these fields. Deleuze’s ‘method of dramatization’ in this context is taken to offer a new perspective on the ethical, legal and moral dimensions to this field of jurisprudence.

The jurisdiction and property over wild and domestic animals A jurisdiction of animal law, as mentioned, is concerned simply with what it means to have an existence as an animal instituted and addressed through law. If this is the case, then an attention to the specifically juridical modes of addressing and instituting animal rights and animal life will be more important than a focus upon the many other disciplines (moral and scientific for example) which claim to provide an authoritative account of the value of animals and their rights and interests. Oddly, what ‘animal rights’ discourses have tended to lack is a ‘jurisprudence’: a technical discipline of rights. It is difficult to describe the rights of animals (let alone human rights), for instance, without simply invoking a grand apparatus of advocacy: a need to speak on behalf, to represent, to profess what belongs to someone’s interests, what should be in their interests and how these can be protected in law.

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Legal forums may not be the wrong place to look for a description of animal rights. But animal rights discourse, in discovering that it may need to trace a newly defined internal consistency to ‘animal law’ or animal jurisprudence before it can confer upon animal rights any real authority, need not turn this discourse into an even more litigious one in the process. The advantage of a legal analytical approach to the ethical and ontological questions that relate humans and animals, is that the interests of animals need not be presented either as inferior nor as transcendent to human interests. Jurisprudence has a particular advantage in this regard. As a discipline which concerns itself with problems of evaluating the interests that belong to cases: far from ignoring or subordinating animal interests to human interests, jurisprudence necessarily involves a texture of describing the value of animal interests in the context of resolving disputes between ‘persons’. The rights of animals in relation to one another in a ‘case’, for example, raises a question of value; and the problem of jurisdiction is to know which forum this question gets referred to or in which it gets staged as such. Common law organizes its jurisdiction of animals and their interests around the primary distinction between wild animals ( ferae naturae) and domestic animals (domitae naturae). This is obviously not the only way animals are divided discursively in law, but its centrality to a legal problematic of animal relations, particularly in the context of property law, remains important. Whether an animal is considered wild or domestic is not just a semantic distinction; it is a question of law and will affect most of the legal relations of persons with respect to the animal, for example in what situations it can be owned and whether an owner will be liable for damage caused by the animal to another’s person or property.7 For the present purpose at least we can say that this categorization of animal natures into wild and domestic correlates with an analytic interest of legal institutions regarding the capacity or suitability of an animal to be the subject of ownership. While the legality or at least morality of treating certain animals as property or ‘things’ has been debated by many writers on animal rights, an analysis of the jurisdiction of animal law at a minimum needs to account for the arrangement of property relations as part of the legal discourse concerning animals. From this perspective, whether an animal is wild or domestic will affect that animal’s legal rights and interests including those with respect to the institution of ownership and possession. What is at stake in the discipline of animal law is not necessarily whether animals in general may be considered property or not, but rather whether a part of the jurisprudence relating to property law more generally rests upon the specific description and representation of animals as a matter of law. For many purposes, an animal may be treated like any other piece of property in terms of the laws governing inheritance, transfer, bailment, theft, etc. And yet, within all of these fields, there remains an element that cannot do without describing the animal itself and how its animality introduces an

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alteration to the nature of the rights that attach to it. These rights are more than simply powers exercised by humans over animals: they also outline how the powers and authorities of animals are mediated and judged according to law with respect to one another. In this way ‘domestic’ and ‘wild’ are qualities not just of animals but also of rights and those who take possession of rights. For example, while a domestic animal can be owned and is a typical subject of ownership, a wild animal may only be possessed and cannot be owned as such. For a domestic animal this means, firstly, that you can be possessed by one person while still having a separate and ‘true’ owner elsewhere; and, secondly, that you remain in this relation of ownership no matter how far you stray from this owner’s possession. On the other hand, for a wild animal it means simply that you can have only various relations of possession and flight without any absolute relation of ownership per se. A wild animal may find itself in the position of being captured or confined but it cannot ‘belong’ as such. The creation of property in animals is essentially a territorial problem. Domestic animals are subject to ownership by the fact of having a typically ‘plotted’ distribution and having an instinct for inhabiting plots, pens, paddocks, etc. Wild animals have an instinct on the other hand for fleeing, swarming, etc. This is why a wild animal can be owned only by being itself divided and distributed. ‘The very circumstance of cutting the animal up makes it property’.8 The co-ordinates of ‘wild’ and ‘domestic’ nevertheless express this aspect to the jurisdiction of property law in the terms of the nature of animals. Just as the rights of animals are arranged according to relations of property; the rights that make up property law can themselves be arranged in accordance with certain animal relations and animal ‘types’. Which perspectives of evaluation, for instance, imply living as a domestic animal, and which as a wild animal? The ‘domestic animal’ as a type does not just refer to an animal in the class of those which can be owned, etc.—it also describes a certain mode of owning or possessing; one which is highly sedentary. Those intrinsic or ‘instinctual’ elements that make a domestic animal ‘ownable’ in a juridical sense then are the same elements that make property-ownership itself an affair of domesticity and domestication.9 This is opposed to the mode in which a wild animal arranges its proprietary relations and interests. While the domestic animal considered within property law is content to possess or inhabit simply by being at home and in an absolute relation to the stability of a form of ownership, the wild animal on the other hand makes all relations of possession those of capturing and being captured which it in turn opposes to an absolute and underlying movement of escape. There is an aspect to property law then that cannot be expressed other than by a description of certain animals. The difficulty with much animal rights discourse is that, in seeking to go beyond a model of proprietary interest in animals, it proposes to have a value for animals recognized in law that would be based on a distinctly anthropocentric standard of personality (such as

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‘autonomy’),10 or in a universalized standard according to which we are capable of valuing only that in an animal which is essentially valuable in another person or the nature of fellow man. The jurisdiction of animal law on the other hand provides for property rights themselves to be valued according to various animals. It therefore does not seek to reduce the many ways of finding value in animals to a single scheme.

Liability for one’s animals: the law of scienter and the law of animal cruelty Apart from the relations of property and possession in animals and the rights described by these relations, concern for the civil and criminal liability for damage caused by the actions of animals themselves has also occupied an important place in the history of animal law. In some sense, these particular jurisdictions may appear to bring a sharper focus to the problem of legal personality at least to the extent that they are associated with the representation of animals as direct agents of legal action. Each is predicated on a concern for the proper place, nature and condition of animals kept in one’s possession. In civil liability, animals have been included by way of a standard of knowledge regarding the particular character of the harmful or dangerous instincts of one’s animal; a relation which in common law is termed ‘scienter’. The ancient codes of Mesopotamia and Israel described some of the earliest recorded jurisprudence regarding ‘wrongs’ committed by animals. The best example of this was the teachings concerning the ‘goring ox’.11 If an ox was to kill a human or another ox, it was taught that the consequences for the owner were different if the ox was a reputed or habitual gorer compared to if it had not been known to have such tendencies. In the Covenent Code of Exodus, for example, it is prescribed that the ox that kills a human must be punished by stoning and its flesh remain not eaten, while if the owner had been warned by previous actions that his ox was a habitual gorer, then he must suffer the punishment of death himself along with the ox. In medieval Europe, animals were not uncommonly put on trial before either the royal courts or the ecclesiastical courts for wrongs they had committed or in which they were somehow involved,12 while in England the law of deodand covered situations in which animals or inanimate objects had become tainted by their involvement in the event of the death of some person for which they became forfeited or literally ‘given to god’ (deo dandum).13 The scienter action developed the law regarding civil liability for the actions of animals in the 14th century and has retained its existence in common law despite significant overlap with other subsequently developed civil actions such as the tort of negligence. The basis for the action of scienter was not so much a failure to take reasonable care in respect of the control of animals but rather literally having ‘knowingly kept’ (scienter retinuit) the offending animal.14 The wrongful act, significantly enough therefore, was

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simply one of keeping an animal and the problematic of liability related to the nature of the animal kept. For the purposes of the current law of scienter, animals are classified as either ‘wild’ (ferae naturae) or ‘tame’ (mansuetae naturae). This classification is a matter of the general dangerousness of the animal and is not determined with respect to the particular habit of the offending animal but rather with respect to the habits of the species to which the animal belongs.15 The matter determines whether there is strict liability for damage or rather a form of liability qualified by knowledge. Keepers of wild animals, for example, are held strictly liable for all damage caused by these animals and are therefore said to keep them at their own peril so to speak; while in the case of tame animals it is necessary to show that there was a prior knowledge (scienter) of the animal’s harmful tendency on behalf of the keeper before liability will accrue. The obvious criticism of the law of scienter from a contemporary perspective is that its classification with regard to animals strictly on the basis of their species membership does not take into account the complex differences in the habits and tendencies of individual animals of a particular species. Thus, for example, because elephants as a species belong in common law to the category of ferae naturae, a keeper of an individual trained elephant which may happen to be particularly tame for all other intents and purposes will still be held strictly liable for damage caused by that elephant. It is on the basis of these kinds of anomalies that some Australian legislatures have completely abrogated the law of scienter, effectively leaving cases of these kinds to be dealt with under the more general approaches of the torts of negligence, nuisance, etc. for which the nature of the animal may only be one relevant factual issue in determining the form of a civil duty or standard of care.16 From the perspective of a discipline of ‘animal law’, however, this may pose an interesting dilemma. In particular, if the abolition of the law of scienter means that the characterization of animal instincts, modes of existence and the capacities of animals to act in law are determined as questions of fact rather than as questions of law, then a field of legal knowledge which attempts to address the institution of animal lives will in turn struggle with developing a language appropriate to this subject matter. It is not that the representation and classification of animals will be a matter of lesser concern in general, for example, but that this concern will be less a matter of law. On the other hand, the specific difference between a law of negligence (which addresses liability as a standard of care) and an overlapping law of scienter (which addresses it as a question of the nature of one’s animal) may be one way of characterizing the field in which juridical institutions imagine and represent the specificity of the legal status of animals. If the juridical distinction between ‘wild’ and ‘tame’ and the deployment of this distinction in the law of scienter has, from some perspectives, been more meaningful for the purpose of determining liability than the problematic of ‘reasonable

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foreseeability’ and ‘duty of care’ in negligence, then a reconstruction of these particular perspectives may give animal law one basis upon which to establish itself as more than just an area or subject of law but also a particular discipline of jurisprudence. Clearly, ‘reasonableness’ as a standard of action or behaviour has little purchase in a discipline which attempts to address the lives of animals. This makes the organization of contemporary criminal and welfare jurisdictions concerning animals far more difficult to unravel jurisprudentially and to locate within the jurisdictions concerning animals. The laws of scienter and deodands and even those governing the staged criminal jurisdictions over animals in the Middle Ages, each construct a language concerning the rights and values inherent to certain animal characters and relations. By contrast, the laws which in current Australian jurisdictions for example attempt to deal with the problem of animal cruelty, explicitly attempt to determine liability with respect to animals by an abstract criterion of ‘reasonableness’ or ‘necessity’. The various regimes in Australia at a State and Territory level aimed at the care, welfare, protection or prevention of cruelty to animals, organize not just a system for determining criminal liability with respect to prohibited actions involving animals but also a system of surveillance and the creation of certain qualified powers of prosecution and for the seizure or destruction of abandoned or neglected animals.17 As mentioned, the criminal liability for cruelty to animals is determined largely according to the standard criterion of having caused unnecessary, unreasonable or unjustifiable pain or suffering.18 This formulation is odd for a jurisdiction which attempts to address a form of animal life for which reasonableness is a conspicuously ill-adapted feature and may in part explain its perceived ineffectiveness as a legal tool for the protection of animal rights. None of the State or Territory legislation in Australia addresses the legal rights and capacities of animals other than by describing certain acts, states or conditions that may constitute or indicate ‘cruelty’. Furthermore, the prohibitions on cruelty apply simply to ‘animals’ as a general category defined within the legislation,19 without acknowledgement of how specific powers or vulnerabilities of certain animals may be important to the value of their legal protection. It is not clear, in other words, how the prohibition of cruelty relates specifically to the lives of animals other than in a purely nominal way. The more important part of these statutory regimes then is that part which addresses the particular arrangement of legal personality and procedural authority pertaining to a practice of animal welfare. The main technique in this regard is the statutory construction of the specific character, rights and duties of the owner, keeper or ‘person in charge’ of an animal. This is largely put into action by way of establishing a system of qualification and disqualification for owning or keeping animals. The problem of animal welfare is therefore addressed as a question of who can be authorized as a keeper and hence entrusted with the State care of an animal. Additionally, the

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legislation in each of the States and Territories create certain offices occupied by those who are legally invested with powers of inspection, seizure, treatment, destruction, etc. Whether these personae have a unique hold in relation to the jurisdictions of animal law—in comparison for instance to other kinds of welfare jurisdiction—is not immediately obvious. While the crafting of a set of rights and duties in relation to inspection etc. and the linking of these to a discrete persona in the legislation may reveal an attempt to describe one particular area of animal law, the fact that almost all of these rights, duties and discretions are again qualified by the criterion of ‘reasonableness’ makes it difficult to imagine how this form of authority might actually attach to the lives of animals. Might it not be possible to frame the rights of inspection, seizure, destruction in relation to criteria that are drawn from the instinctual medium that it attempts to engage with, so that one’s dealing with an animal need no longer be ‘reasonable’ but simply ‘lawful’ according to the genre established by the jurisprudence of animal law?

Jurisdiction and the persons of animal law What are the masks of animal law? Who are the persons of animal law? These questions have been approached so far in this chapter from a few different perspectives. On the one hand, if one is inclined to see legal persons purely as human beings, then it means, firstly, knowing how to address the specific roles undertaken in their legal relationship with animals (for example, as owners, keepers, caretakers, welfare inspectors, etc.); and, secondly, it means knowing how to address the roles that animals themselves play in the construction of legal personality—a construction for instance based not upon ‘reason’ but upon certain instincts, propensities, affects, natures and so forth. Similarly, if one accepts that animals can and do appear in person before the law, the question remains how these personified animals occupy positions within a particular dramatization of legal authority and value; or through what kinds of masks their presence within legal forums and institutions is mediated and staged. Legal persons, as masks, are the means by which jurisprudence evaluates rights. But rights cannot be assessed merely from perspectives that simply ‘hold’ or ‘have’ pre-conceived values. On the contrary, rights must be ‘lived’ in order to be evaluated and the person in jurisprudence is the technical or aesthetic innovation that contemplates how a discrete set of rights might constitute ‘a life’. Whether animals have the capacity or authority to speak within legal forums will remain a poorly considered question as long as one frames it in the terms of recognition and representation. In doing so, as we have seen, we either prejudge what constitutes ‘speech’ from an overly human perspective and therefore ‘excommunicate’ our animals from the forms of legal expression; or else in order to make them speak to us in a more familiar or recognizable way, we dress them up in clothes, over-ceremonialize and sentimentalize

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their legal existence, overburden them with signification. In this way, certain strands of ‘rights’ discourse cannot imagine the relation that animals might have in law without genuinely wanting a chimpanzee or some other being to be recognized as a ‘subject’ of rights in the strict sense and to thereby become a truly more litigious sort of creature. What seems to matter is only the inclusion or exclusion of animals (or certain kinds of animals) in relation to an abstract category of legal ‘personhood’ understood as the means of recognition.20 A modern concern about ‘personhood’—as the status of being legally recognized as a person—or about who ‘counts as a “person” in law and who does not’,21 affects much of the modern and contemporary idiom of animal rights. For Deleuze, however, it is precisely the opposite. The model of recognition, resemblance, imitation identity and analogy in representation, not only completely denatures the animal and its ethics but also the concept of ‘person’ in jurisprudence. Animal rights discourse risks solemnizing those lives of animals that play at being human, for the reason that they present to us a face in which we recognize our own frailty before the law. Deleuze suggests not just that animals are authorized to speak in many ways that are not reducible to systems of signification and representation, but in fact that all speech undergoes certain animal movements and affects that constitute its very authority. ‘The animal does not speak “like” a man but pulls from the language tonalities lacking in signification; the words themselves are not “like” the animals but in their own way climb about, bark and roam around, being properly linguistic dogs, insects, or mice’.22 For Deleuze and Guattari, an animal is not a subject but itself a ‘becoming’ of the language system and of the system of subjectification. In relation to the universal speaking subject named ‘man’, the animal (like the woman and the child) is a minor becoming, a movement, a modification, an intensity, a metamorphosis—all asubjective.23 The critique of subjectivity which Deleuze—following Nietzsche—names a ‘method of dramatization’, is central to his characterization of the being and personification of animals. The personification of animal types in Nietzsche’s pluralist and perspectivist philosophy follows a distinctive aesthetic.24 Alphonso Lingis, for example, shows how, in Nietzsche’s work the method of addressing the drama and hence personae of animals and animal instincts, serves as a means for evaluating the nobility and baseness; the health and sickness of a species. From an anthropological background he affirms that the rights of animals prefigure the creation of normative and ethical systems of value for humans: ‘The sharing of traits’, he writes, ‘is the most ancient ethics . . .’: What humans looked up to, what they admired and sought for was the sensibility of eagles and wolves, the strength and endurance of elands and bears, the sacrificial loyalty of small birds defending their offspring . . . Sedentary and gregarious humans came to acquire the restricted

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and monotonous diet of their domesticated herds and flocks, became dependent on one another and on herd leaders, came to prize security, regularity, predictability, conformity, came to value wariness, prudence, nonaggression.25 Lingis reverses the logic in which animals traditionally serve only to allegorize and metaphorize human attributes and values. It is not humans who personify, represent or rationalize animal rights or animal strengths and weaknesses. Rather it is animal rights which dramatize and critique the rational values that remain decidedly ‘all too human’ in legal institutions. According to Lingis, Nietzsche does not challenge the subordination of animals to human interests and values, he challenges the system of value that sees domestication as a virtue in both man and animal. Animal instincts can be noble or servile. And men who (as representatives of the law) need their fellow animals to be similarly domesticated and tame, in this way reveal their rank and authority in the order of animal rights. The legal categories of ‘wild’ and ‘domestic’, etc. take on new significance when associated with the method of dramatization. Accepting that animals appear within legal institutions under the specific guises and personae of ‘wild’ and ‘domestic’ or ‘wild’ and ‘tame’, etc.—we can seek to understand how these personae qualify the expression of rights differently or according to a differentiated system of legal value. For example, the question in animal cruelty law whether the punishment or suffering of an animal is justified or necessary can always be answered from a human perspective and according to human values, but if within a jurisdiction of animal law the only valid speaking positions available to us are those of the wild animal and the domestic animal, for instance, then we see that each of these evaluates the problem in fundamentally different ways. The perspectives on cruelty may become differentiated in the mouths of the dangerous animal in comparison to the tame animal in person. For example, the tame, harmless, domestic animal in person gives punishment and suffering a certain inward and negative sense—‘What is the point of punishing us animals?’ they say, ‘we could never have done anything to deserve it!’. This is their means of evaluating life, ‘Since we are powerless to do any harm, then you who nevertheless harm and punish us are cruel and unjust for not having held back your dangerous natures’. The wild, prey or dangerous animal in person on the contrary gives punishment a positive and outward sense, ‘All pain is the necessary and just consequence of our nature, our rights and virtues; it is a stimulant to life and action. Thus, our suffering can mean only this: that it provides pleasure and health to a new, even more dangerous kind of animal’.26 We can follow this same method in relation to the questions of property law. How do domestic animals evaluate the institution of property? Undoubtedly, their instincts are always to seek an owner and a home. A domestic animal will always consider it appropriate that its rights are limited

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by the ideal of ownership since it survives as a domestic animal only by forming a herd with other domestic animals (man) and subjecting each other to a rule of the herd, ‘It is good for me not to stray beyond our common bounds!’. The wild animal, on the other hand, has no use for property relations. Property and ownership are the instruments solely of domestic animals who thrive in the security of being both an owner as well as something owned. The wild animal thrives instead solely upon relations of escape and capture. Thus the concept of ownership is offensive to the wild animal’s mode of being, ‘Everything is good for me which resists the forces of belonging! Ownership separates me from my modes of taking possession’. It is in this way that the treatment of animals in law rehearses all of the relations that we noticed in the previous chapters as belonging to a jurisprudence of persons: the dramatization of values, the detotalization of legal capacity and moral personality, the jurisdiction with regard to the ‘mask’. In some respects, jurisdiction as a concept becomes less mediated or universal when it concerns animals, since we usually find it ludicrous to assume that animals might be judgable within the same forums as humans, notwithstanding the realm of natural law and its rejuvenated theorizations. There is an ethics belonging to the common sensibility that sees it as pointless to make animals an object of moral judgment even if it is not so pointless to subject them to certain techniques of ‘training’. What is surprising is that this sensibility toward animals does not necessarily get extended also to other less obviously ‘minor’ kinds of creatures whose natures, affects and instincts also vary in the most extreme way. And while it might have been common to have put animals on trial before the law in the Christian Middle Ages, as E.P. Evans chronicled, this was not necessarily because they were to be judged in the same way as humans were in these times, but because trials themselves in general had the vestigial quality of administering an oath, adjuration or exorcism, and animals were sometimes thought to personify the same demons that could possess anybody to act contrary to their legal nature. This chapter has sought to show that animals do not enter law or legal discourse without altering its jurisdiction in a notable way. The contemporary interest in treating the subject of ‘animal law’ as a discrete area of legal education or discipline of jurisprudence therefore highlights some significant tensions and problems within the directions of the theories of jurisdiction more generally. In the first place, one can only treat animals from a properly jurisprudential perspective by dispensing with humanity as a model for the ‘naturalness’ of the legal person. To do so, however, requires some conceptual maneuvering. The juridical and ethical language of ‘persons’ suffers from a least two distortions: firstly, when it remains content to evaluate rights and interests from a mere ‘human’ or at least an anthropocentric position, and, secondly, when it remains accustomed to seeing legal personality or ‘personhood’ as something sufficient in itself to confer value and legitimacy upon beings of any kind. Instead, by taking the persons of animal law—the

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roles that are constructed as part of the legal relations of animals—as themselves the modes of being through which to evaluate and appraise rights, one approaches a style of theory closely connected with the technical use of the ‘person’ in jurisprudence. Personal jurisdiction provides a method to address rights or interests in a non-anthropomorphic genre because it relates rights not to a ‘subject’ but to the masks through which they become something lived. What becomes of rights; rights in themselves; any right, when played by the wild animal, or by the domestic animal? A somewhat different type of question finally arises in relation to this method of analysis and which this chapter has touched upon briefly. In producing a set of questions of law, the jurisdiction over animals does not just have an accidental relation to legal relations more generally but introduces something quite specific to their broader systemization. It is true, for instance, that animals may be treated as ‘things’ for the purposes of property law and criminal law, but this does not mean that they have an equivalent status to any other thing that can be owned, appropriated, stolen, etc. within these systems. The jurisdiction of animal law presents a certain problem concerning the aspect to the existence of animals that may itself become a matter, a ‘thing’ of law. What, for instance, is at stake when the determination of particular cases in property, criminal or tort law cannot be framed other than in relation to the kind of question that asks: What type of animal is it that you have or that you are? Why does the nature of ownership change when it is over a bird rather than a cow, or a homing pigeon rather than an eagle? Why does it matter if law frames liability for damage in terms of one keeping a wild or a tame animal rather than in the more general terms of the foreseeability of the harm? These questions are far from trivial or semantic; they form the practical knowledge of jurisprudence or the science of cases without which the discourse of rights would remain a pure abstraction. This is a subject which will inform the direction of the chapters in Part II of this book.

Notes 1 See Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, Trans. Brian Massumi (London: Continuum, 2002), Chapter 10, pp. 233 –309. 2 For examples of this scholarship in Australia, see, especially, Peter Sankoff and Steven White (eds), Animal Law in Australasia: A New Dialogue (Annandale: The Federation Press, 2009); David Glasgow, ‘The Law of the Jungle: Advocating for Animals in Australia’ (2008) 13(1) Deakin Law Review 181–210; Steven White, ‘Animals and the Law: A New Legal Frontier?’ (2005) 29(1) Melbourne University Law Review 298–316. Despite this emergence as a discipline, textbooks dealing with animal law in Australia remain scarce, while a majority of those which examine English law remain dated. For examples of the latter, see Margaret E. Cooper, An Introduction to Animal Law (London: Academic Press, 1987); Peter Machin North, The Modern Law of Animals (London: Butterworths, 1972); Godfrey Sandys-Winsch, Animal Law (London: Shaw and Sons, 1978). See, also, Glanville Williams, Liability for Animals. An Account of the Development and Present

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3

4 5

6

7

8 9

10 11 12

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Law of Tortious Liability for Animals, Distress Damage Feasant and the Duty to Fence, in Great Britain, Northern Ireland and the Common Law Dominions (Cambridge: Cambridge University Press, 1939); John H. Ingham, The Law of Animals: A Treatise on Property in Animals, Wild and Domestic and the Rights and Responsibilities Arising Therefrom (Clark: The Lawbook Exchange, 2003). For a more recent textbook, see Simon Brooman and Debbie Legge, Law Relating to Animals (London: Cavendish Publishing, 1997). While animal law has been taught in the United States since 1990 and has subsequently enjoyed a burgeoning attention there, the corresponding trend in Australia and the UK has been more recent. Since 2005, at least six Australian universities have for the first time held, or are scheduled to hold, subjects devoted to ‘animal law’, a trend no doubt connected with the growing popularity of the ‘animal rights’ and also the ‘human rights’ movements. While corporations might not be ‘natural’ persons, they remain nevertheless a distinctly human artifice. See, e.g. Matthew Calarco and Peter Atterton (eds), Animal Philosophy: Essential Readings in Continental Thought (London: Continuum, 2004); H. Peter Steeves (ed.), Animal Others: On Ethics, Ontology, and Animal Life (Albany, NY: State University of New York Press, 1999); Cary Wolfe (ed.), Zoontologies: The Question of the Animal (Minneapolis, MN: University of Minnesota Press, 2003). For a contemporary collection of essays which attempt to address both the theory and practice of animal law and animal rights, see Cass R. Sunstein and Martha C. Nussbaum (eds), Animal Rights: Current Debates and New Directions (New York, NY: Oxford University Press, 2004). Common law holds that animals are domestic if they belong to a class which is ordinarily kept in a state of confinement or for domestic purposes. Hamps v Darby [1948] 2 KB 311, at 321. However, the definitions and classifications of ‘domestic’ and ‘wild’ in scienter instead concern the ‘dangerousness’ of the particular species, irrespective of individual differences between members of a species. This differs again from interpretations of the definitions used in animal cruelty legislation in Australia which emphasize generally that it is the nature of the use to which the particular animal is put rather than its belonging to a particular class or species that counts. Reg v Gallears 3 New Sess Cas 704, quoted in Ingham, The Law of Animals, p. 5. Consider, for example, Alphonso Lingis’s note on the question of animality in Nietzsche’s work, ‘Humans in whom gregarious impulses dominate have made humans a self-domesticated species. For it is not the independent, solitary individuals who have imposed a herd leader on them; their own deepest instinct is to subject themselves to one another’, Alphonso Lingis, ‘Nietzsche and Animals’ in Matthew Calarco and Peter Atterton (eds), Animal Philosophy: Essential Readings in Continental Thought (London: Continuum, 2004), pp. 7–14, at 9. See, e.g. Steven M. Wise, Drawing the Line: Science and the Case for Animal Rights (Cambridge: Perseus Publishing, 2002). See, also, Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (Cambridge: Perseus Publishing, 2000). See Jacob J. Finkelstein, ‘The Ox that Gored’ (1981) 7(2) Transactions of the American Philosophical Society 1– 89. See E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals: The Lost History of Europe’s Animal Trials (London: Faber and Faber Ltd, 1987). The kinds of animals prosecuted during this period in the history of continental Europe ranged from pigs and horses to rats and locusts. The practice of putting animals on trial and according them procedural rights may not have been limited to medieval Europe. Although there is debate about whether these trials were considered properly ‘legal’, they are more instructive of the unstable purposes

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14

15 16

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Jurisdiction in Deleuze attributed to the form of the ‘trial’ across different periods of Western legal history than they are indicative of purely anomalous procedural situations. See Walter Woodburn Hyde, ‘The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times’ (1915) 64 University of Pennsylvania Law Review 696 –730; Finkelstein, ‘The Ox that Gored’, pp. 58–73. For further discussion on the practice of animal trials, see Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France (Leiden: E.J. Brill, 1993); Paul Schiff Berman, ‘An Observation and a Strange but True “Tale”: What Might the Historical Trials of Animals Tell Us About the Transformative Potential of Law in American Culture?’ (2000) 52(1) Hastings Law Review 123–180; Paul Schiff Berman, ‘Rats, Pigs and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects’ (1994) 69 New York University Law Review 288–326; Anila Srivastava, ‘ “Mean Dangerous and Uncontrollable Beasts”: Medieval Animal Trials’ (2007) 40(1) Mosaic (Winnipeg) 127–143; Jen Girgen, ‘The Historical and Contemporary Prosecution and Capital Punishment of Animals’ (2003) 9 Animal Law 97–133. Edward Coke, for example, describes deodands as ‘. . . when any moveable thing inanimate or beast animate, doe move to, or cause the untimely death of any reasonable creature by mischance . . . without the will, offence or fault of himself, or of any person’, Edward Coke, Third Part of the Institutes of the Laws of England: Concerning High Treason and Other Pleas of the Crown and Criminal Causes (London: W. Clarke & Sons, 1817), p. 57. See, also, Teresa Sutton, ‘The Deodand and Responsibility for Death’ (1997) 18(3) Journal of Legal History 44–55. See Williams, Liability for Animals. For a discussion of the law of scienter which also addresses the ambiguities in the boundaries between animals and humans, see Erica Fudge, Perceiving Animals: Humans and Beasts in Early Modern English Culture (Basingstoke: MacMillan Press, 2000), pp. 115–142. See Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1. The common law scienter action has been abrogated by legislation in New South Wales, South Australia and the Australian Capital Territory effectively requiring liability for damage caused by animals to be determined using the other principles of tort law. See Animals Act 1977 (NSW); Wrongs Act 1936 (SA), Pt IA; Civil Liability (Animals) Act 1984 (ACT). For the background behind these changes in New South Wales, see New South Wales Law Reform Commission, Report of the Law Reform Commission on Civil Liability for Animals, Report No 8 (1970). See, also, Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649. See, e.g. Animal Welfare Act 1992 (ACT); Animal Welfare Act 1999 (NT); Animal Welfare Act 1993 (Tas); Animal Welfare Act 2002 (WA); Prevention of Cruelty to Animals Act 1979 (NSW); Prevention of Cruelty to Animals Act 1985 (SA); Prevention of Cruelty to Animals Act 1986 (Vic); Animal Care and Protection Act 2001 (Qld). These terms are used either in combination or singly in each of the Australian statutes concerning cruelty to animals. Since the definition of what constitutes cruelty on its face is quite broad, determination usually become meaningful by way of exceptions or defenses for which reasonableness or necessity offer the main framework. Compliance with codes of practice for various livestock also become important as exceptions to what will constitute cruelty. ‘Animal’ is commonly defined as any non-human vertebrate. See Animal Welfare Act 1992 (ACT), s. 4; Prevention of Cruelty to Animals Act 1985 (SA), s. 3; Animal Welfare Act 1993 (Tas), s. 3. In New South Wales, Victoria and Northern Territory, this extends also to crustaceans, and in Queensland also to cephalapods. See Prevention of Cruelty to Animals Act 1979 (NSW), s. 4(1); Prevention of Cruelty to Animals Act 1986 (Vic), s. 3; Animal Welfare Act 1999 (NT), s. 4;

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21 22 23 24

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Animal Care and Protection Act 2001 (Qld), s. 11. In Western Australia, fish are excluded from the definition. See Animal Welfare Act 2002 (WA), s. 5. The classification of certain animals as domestic may still be relevant for determining whether an animal can be ‘abandoned’. Examples of this debate are widespread in the literature on animal rights and cannot be listed. For two competing instances, see Gary L. Francione, ‘Animals— Property or Persons?’ in Cass R. Sunstein and Martha C. Nussbaum (eds), Animal Rights: Current Debates and New Directions (New York, NY: Oxford University Press, 2004), pp. 108–142, and Richard A. Epstein, ‘Animals as Objects, or Subjects of Rights’ in Cass R. Sunstein and Martha C. Nussbaum (eds), Animal Rights: Current Debates and New Directions (New York, NY: Oxford University Press, 2004), pp. 143 –161. See, e.g. Ngaire Naffine, ‘Who are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66(3) The Modern Law Review 346–367, at 346. Gilles Deleuze and Felix Guattari, Kafka: Toward a Minor Literature, Trans. Dana Polan (Minneapolis, MN: University of Minnesota Press, 1986), p. 22. See Deleuze and Guattari, A Thousand Plateaus. See, especially, Friedrich Nietzsche, Thus Spake Zarathustra, Trans. A. Tille (London: J.M. Dent & Sons Ltd, 1933). For certain analyses of the centrality of animals to Nietzsche’s work, see Lingis, ‘Nietzsche and Animals’; Christa Davis Acampora and Ralph R. Acampora (eds), A Nietzschean Bestiary: Becoming Animal Beyond Docile and Brutal (Lanham, MD: Rowman and Littlefield Publishers, 2004). For other key interpretations which develop Nietzsche’s conception of personality, see, especially, Gilles Deleuze, ‘The Method of Dramatization’ in David Lapoujade (ed.), Desert Islands and Other Texts, 1953–1974, Trans. Michael Taormina (New York, NY: Semiotext(e), 2004); Gilles Deleuze, Nietzsche and Philosophy, Trans. Hugh Tomlinson (London: Continuum, 2002); Pierre Klossowski, Nietzsche and the Vicious Circle, Trans. Daniel W. Smith (London: Continuum, 2005). Lingis, ‘Nietzsche and Animals’, pp. 11–12. As mentioned previously, this method of ‘dramatizing’ the problem of the legal personality of animals, particularly regarding the meaning of suffering and cruelty, belongs to a Nietzschean aesthetic. See, especially, Deleuze, Nietzsche and Philosophy, pp. 129 –130.

Part II

Rights and subject-matter jurisdiction

Chapter 5

Deleuze, the ‘law of things’ and subject-matter jurisdiction

Deleuze’s philosophy has a close connection with a discipline of ‘jurisprudence’, but what is the meaning attributed to jurisprudence as a mode of thought for Deleuze? This chapter begins by exploring the difference between a ‘Law of Persons’ according to Nietzsche and a ‘Law of Things’ according to Spinoza as distinct methodological genres closely connected to Deleuze’s thought. The texture to a law of things and ‘subject-matter jurisdiction’ is shown to have an expressive modality irreducible to the representational domain of property law. The result is a view of jurisprudence as involving the invention of rights within concrete cases or situations or as a distinctive ‘casuistry of relations’.

Within the legal traditions of the West, those interested in understanding the authority of law in terms of the order of its jurisdictions have often had an interest in the legacy of Roman law. This is at least partly because Roman law provides an historical and textual nexus between classical and Christian codifications of European sociality.1 The jurisprudence of Rome forms an enduring model for disparate ages of Western legal and moral thought. It is thus convincingly suggested that the structures and arrangements of Roman civil law continue to form part of the grounds of modern social science more generally, such that the rubrics of ‘persons’ and ‘things’ which in the early jurisprudence appear part of a creative and pedagogical textual arrangement, form something far more implicit and structural in relation to contemporary social and political thought. As Alain Pottage summarizes: There is a powerful argument that the institutional architecture of Roman law still structures our apprehension of society, and that sociology and political theory are far more ‘juridical’ than they imagine themselves to be, precisely because they presuppose a basic division between persons and things.2 These jurisdictions, in other words, continue to order and delimit the dimensions of social thought in the Western tradition. This, however, is not

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merely a structural phenomenon but also a technical one. The heritage of Roman law may be related not only through its logic and schema, but also its rhetoric and procedure. Thus, while the argument may be raised on the one hand that contemporary social theory tends to ignore the Roman juridical roots to its assumed categories of knowledge, on the other hand, juridicism itself may be accused of failing to construct a sufficiently sociological or theoretical method to its employment of the technical genres of persons and things. It is true that one of the recurrent ways in which jurisdiction, as a legal institutional concept, is distributed is between persons and things. Jurisdiction is a jurisdiction over the person (personal jurisdiction) and it is a jurisdiction over the thing (subject-matter jurisdiction). The power of legal speech as jurisdiction is accordingly understood in two relations: a relation of authority in and over the person who speaks and a relation of authority in and over the thing spoken or expressed. Jurisprudence has thus also come to address these relations of jurisdiction under the genres of a ‘Law of Persons’ and a ‘Law of Things’. The ‘Law of Things’, however, is a somewhat unfashionable heading under which to discuss contemporary issues in law and society. This of course has not always been the case.3 The sense in which a ‘Law of Things’ might have meant more than, and also something more specific than, simply a ‘law in general’, or law concerning ‘rights in general’— to which Austin reduced it for positive jurisprudence4—is one which may seem foreign to modern lawyers. Just as the problem of personal jurisdiction tends to be subsumed by the philosophies of ‘the subject’ and the ‘subject of rights’ in modern social theory, the style and method belonging to the jurisdiction of ‘things’ also tends to get subsumed on one side by metaphysics and on the other by the doctrinal field of property law. Gilles Deleuze, nevertheless, has a unique way of recovering the elements to a jurisprudential treatment of persons and things. As we saw in the previous chapters, the ‘Law of Persons’ offers, from a Deleuzian perspective, a certain critique of subjectivity, the subject of rights and the coherence of the ‘self’ in the name of an ontology of masks. It displaces the imperial centrality to the question ‘What is . . . ?’ in philosophy toward the more local, plural and empirical problem of ‘Who . . . ?’, ‘Which one . . . ?’ or ‘In what capacity?’. The ‘Law of Things’, however, offers a different and completely incommensurate style of question. Deleuze does not explicitly frame his analysis under this particular rubric of Roman law. Not being a ‘jurist’, he goes only as far as to note his interest in ‘jurisprudence’ as a tradition of thought and its fundamental disassociation with human rights, with the abstraction and universalism that plagues these grand theories of law and inflated codifications of rights. So just because Deleuze does not have a detailed technical knowledge of jurisprudence, this does not preclude him from seeing the distinctly technical use that jurisprudence makes of concepts like law or justice: concepts which philosophy has for too long tried to treat within a universal or

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interiorized sense. He sees the danger that metaphysics and morality pose for legal theory and will seek to plot a separate course. If a ‘Law of Persons’ can be characterized as a ‘method of dramatization’ in Deleuze’s work, in what way does Deleuze encounter a ‘Law of Things’? In his engagement with the empiricism of David Hume, Deleuze is struck by a peculiar juristic style of questioning: Science or theory is an inquiry, which is to say, a practice: a practice of the seemingly fictive world that empiricism describes; a study of the conditions of legitimacy of practices in this empirical world that is in fact our own . . . Hume raises unexpected questions that seem nevertheless familiar: To establish possession of an abandoned city, does a javelin thrown against the door suffice, or must the door be touched by a finger? To what extent can we be owners of the seas? Why is the ground more important than the surface in a juridical system, whereas in painting, the paint is more important than the canvas?5 These may be considered, in Deleuze’s terms, ‘cases for jurisprudence’. But it is notable that they are also problems more specifically within the style of questioning belonging to what Roman jurisprudence named a ‘Law of Things’. This mode of inquiry is not reducible to a scheme of property or of philosophy: even when it concerns the theories of how to establish ownership over something. The cases always remain crucial. In Deleuze’s estimation, cases are important for jurisprudence not because they involve serious issues, major problems, big concepts, but because they highlight a possibly minor technical problem of juristic invention, a problem that raises the creative instincts of legal thought. If there is any possible theory of rights, then this theory belongs to cases, ‘matters’, concrete situations: the jurisdiction established by the ‘Law of Things’. This chapter aims to elaborate the contours to a distinction between these treatments of persons and things in what could be called Deleuze’s jurisprudential method. Deleuze has a fondness for certain old and unfashionable problems in the history of philosophy. He warns us that, even as specialists, we pass over many of these interesting problems too quickly and therefore unduly consign them to mere historical curiosity. In this way, it is not by being an expert in law or the history of jurisprudence that Deleuze finds a way of offering a creative recuperation of certain juristic methods that may truly have fallen into disuse in modern thought, since law is a cultural innovation inseparable from the creative movements traced by a number of different disciplines. A unique way of approaching the jurisdictional genres of persons and things is present in many of Deleuze’s more notable engagements, especially with regard to his two chief philosophical influences: Nietzsche and Spinoza. Through this, Deleuze has the means of basing two unexpected jurisprudential ideas: a ‘Law of Persons’

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according to Nietzsche against Hegel and a ‘Law of Things’ according to Spinoza.

A ‘law of persons’ according to Nietzsche contra Hegel In the previous chapters, a certain ‘method of dramatization’ in Deleuze’s philosophy was taken to provide the terms to a conception of personal jurisdiction and a ‘Law of Persons’ centred upon the mask. This method was associated with the pluralism and perspectivism in Nietzsche’s work, yet it was not necessarily elaborated against whose method this conception might be directed. In Hegel, the ‘Law of Persons’ forms a central figure to a dialectical method: that is, as a ‘master-slave’ or ‘lord-bondsman’ dialectic.6 The master and the slave or the lord and the bondsman in Hegel’s dialectical arrangement are persons understood as different ‘forms’ or ‘shapes’ of consciousness. Consciousness involves a certain relation of ‘self’ and ‘Other’. With Kant, subjectivity and consciousness had still been held together in a speculative phenomenological relation—what matters specifically for Kant are the conditions of possible experience under which something in the world addresses ‘me’ alone. There are forms of exteriority and interiority in consciousness; the external world and what conditions it to consciousness. It is Hegel however, who introduces the idea that self-consciousness is rather inherently split by the fact that the ‘Other’ indeed constitutes another self-consciousness whose independence stands in the way of my full selfdetermination. Since the ‘Other’ is, in other words, another ‘self’; consciousness always exists as a kind of struggle: historical, political, ideological, metaphysical. ‘Lord’ and ‘bondsman’ or ‘free’ and ‘unfree’, as a principal difference in status and personality, thus come to describe the terms in a certain struggle or tension: lord means the shape that consciousness takes when it exists essentially ‘for itself’, bond means the shape taken when it exists essentially ‘for another’.7 This arrangement reflects a certain internal meaning for status in the ‘Law of Persons’: status as the manifestation of a pure relation between ‘self’ and ‘Other’. So for Hegel while the ‘free’ are those who are capable of doing what they want, the ‘unfree’ are correlatively those who do (and make) what others want. This is why the bondsman’s work or activity is characterized by alienation; the lord’s by satisfaction or consumption. Each is defined by what the other cannot destroy or negate in their attempt to render themselves fully self-conscious. Nietzsche’s attack on this negative dialectic is picked up in a particular way by Deleuze. According to Deleuze, what Nietzsche requires is that the dialectical method itself be ‘dramatized’ in order to reveal the mode of living of the one capable of thinking it. This is the fundamental difference in the sense given to the concepts of ‘master’ and ‘slave’ for Nietzsche:

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Nietzsche shows that what is negative in the master is always a secondary and derivative product of his existence. Moreover the relation of master and slave is not, in itself, dialectical. Who is the dialectician, who dialectises the relationship? It is the slave, the slave’s perspective, the way of thinking belonging to the slave’s perspective. The famous dialectical aspect of the master-slave relationship depends on the fact that power is conceived not as will to power but as representation of power, representation of superiority, recognition by ‘the one’ of the superiority of ‘the other’ . . . The slave only conceives of power as the object of a recognition, the content of a representation, the stake in a competition, and therefore makes it depend, at the end of a fight, on a simple attribution of established values.8 If the free are distinguished as being capable of doing what they want, then it means nothing more to say that the unfree do what others want. This formulation in other words can tell us nothing about freedom or unfreedom as specific qualities or conditions of the will. Nietzsche affirms that the unfree are indeed characterized by a particular style of wanting: unlike the free who simply do what they want, the unfree on the other hand always want what they cannot do.9 The figures of master and slave in Nietzsche’s work are consequently not descriptive of different reflexive forms of consciousness but of different styles of wanting or different modes of evaluating: a slave-morality which interprets everything from a petty perspective and which reduces everything to the lowest, commonest value; and a master or noble-morality which confers value by way of a profound affirmation of existence. The Nietzschean arrangement which Deleuze draws upon allows us to account more fully for the connection between the ‘Law of Persons’ and the notions of legal capacity and incapacity it organizes. If the unfree status does not consist in doing what others want, but in wanting what one cannot do, it involves far more directly the very concept of an incapacity. Legal incapacity is better understood, in others words, not as a lack or falling-short of some standard of legal competence—since freedom would become a fairly empty or rather ‘average’ concept politically if it were merely to supply some yardstick—but strictly as the product of a negative and unfree will; the ‘cannot do . . .’ as an object of wanting or desiring. If all incapacity has to be willed in some sense, then it is the slaves or the unfree who do this with the greatest passion; with all of their being. Their problem is always one of the capacity to act—‘whether I can do it or not’— as opposed to the free whose problem is of a different nature altogether; not whether one can act, but whether one can will (a problem of the capacity to ‘want’, which as Nietzsche would have it, is a problem adequate for the nobility).

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A ‘law of things’ according to Spinoza Deleuze conceives of the ‘Law of Persons’ in terms of qualitative modes of existence; the modes of existence or the ways of living through which alone an existence according to law can be evaluated. Legal and moral institutions try to judge life from the outside, but in jurisprudence (as also with Nietzsche’s philosophy) there is no judgment from the outside: there are the fabrication of various ‘persons’ through which the lawful life can be examined. On the other hand, however, Deleuze will have to distinguish this conception of personality and a ‘Law of Persons’ derived from Nietzsche from a different method belonging to a ‘Law of Things’. The ‘Law of Things’ poses a very different question than the ‘Law of Persons’. In the ‘Law of Persons’ the questions ‘Who?’ or ‘As whom?’ or ‘In what capacity’ are paramount and the answers to these questions can be characterized as different qualities of the will; free or slave, etc. The ‘Law of Persons’ is thereby abstracted from a ‘Law of Things’ or rights. Personality is not a problem of rights such that the free would have simply greater rights than the unfree. Instead, whatever formally is within your right, whatever is your object or your ‘thing’ as such— a ‘Law of Persons’ diagnoses the various qualities of the will in pursuing these rights and things. The ‘Law of Persons’ does not ask what rights characterize a particular class or personal legal status, but rather what are the statuses or persons or masks—as qualities of the will—through which one takes possession of a right or a thing: noble or base, joyful or sad, strong or weak, free or slave, etc.? Existence is in this way fundamentally hierarchical: connected to a kind of ‘aristocratic principle’.10 In terms of a ‘Law of Things’, on the other hand, the distinctions of rank make little sense or hold little weight. One cannot distinguish between a ‘free’ or ‘unfree’ thing per se. The aristocratic principle is null and void: everything participates equally in existence from the perspective of a ‘Law of Things’. How then does one reconcile these two perspectives: the fundamental hierarchy between masks or modes of existence and the fundamental equality or equivocity of discrete beings or things? Deleuze explores this problem through his study of Spinoza. There are no free or unfree things because, from the perspective of Spinoza’s ontology and also from a ‘Law of Things’, the power of each thing necessarily extends to the limit of what it can do and includes all of its being. Things thus correspond to powers or quantities of power. Deleuze conceives of things not as objects of rights, but as rights themselves. They endure. This is what he adopts from Spinoza in order to get beyond a simple representational problematic of existence and toward an intensive and expressive one. A thing should be defined not by a quality or essence, but by its intensity or power. He explains this idea in a lecture on Spinoza from 1980 in which he discusses the Latinate word ‘possest’, invented by Nicolas of Cusa as a unique combination of the verbs ‘to be able to’ and ‘he is’:11

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What does this mean? It means that things are powers. It is not only that they have power but that they come down to the power that they have as much in action as in passion . . . Power is not a quality, but neither are they so-called extensive quantities. Thus, even if they are intensive quantities, it is a very special quantitative scale, an intensive scale. This would mean: things have more or less intensity, it would be the intensity of the thing which would be, which would replace its essence, which would define the thing in itself, it would be its intensity. You understand perhaps the link to Ontology. The more intense a thing is, [the] more precisely is that intensity its relation to being: the intensity of the thing is its relation with being.12 The idea is significant if we are to categorize Deleuze’s thought in terms of a jurisprudence of things, since this jurisprudence has conventionally been understood in terms of a law relating to rights and to property rights in particular. The attempt to think the being of ‘things’ in terms of quantity and intensity rather than in terms of quality and essence is an attempt to undo a certain ‘property bias’ in the jurisprudence of things. Deleuze follows this idea through a discussion of Hobbes’ and Spinoza’s reformulation of the classical notion of natural right.13 ‘Natural right’ comes to mean something fundamentally different in Hobbes and Spinoza as what it had up to then through classical thought and this shift in meaning hints at a particular theoretical gesture Deleuze is interested in. The classical conception of natural right, which gave preference to essences and duties in terms of the natural ordering of society, which defined the right of a thing in terms of its conformity with realizing its essence, is contrasted with Hobbes’ conception of natural right which sees it completely in terms of power.14 Hobbes’ gesture is to have ventured to replace the idea of essence within classical natural right with the idea of ‘whatever a thing can do’. For Hobbes (and for Spinoza) the natural validation of sociality could no longer be situated as action conforming to an essence, but precisely in terms of an immanent concept of power. With this philosophical gesture in mind, we can see how Deleuze can conceptualize a ‘Law of Things’ as not just being a separate category but also a separate genre of jurisprudence distinct from a ‘Law of Persons’. From the perspective of a ‘Law of Things’—in which each thing is defined by its quantity of power—there is a certain equal participation of being. Each being goes to the limit of what it can do, since it is precisely what it can do: its ‘being able to’ is precisely its relation to being. Each thing then, as a right, expresses necessarily all of its power. This is the sense in which the distinctions of ‘free’ and ‘unfree’, characteristic of a ‘Law of Persons’, cannot change anything under a ‘Law of Things’. From the perspective of a ‘Law of Things’—or from Spinoza’s view of conatus or ‘natural right’—the free man and the slave are strictly the same since each one necessarily endures, expresses all of its power and goes to the limit of what it can do. Deleuze

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thus describes how, in terms of Spinoza’s philosophy, the difference between free man and slave has a significance at the level of ethics which operates separately to the level of the existence of ‘rights’: [The] ethical difference does not relate to conatus, since fools and the weak, no less than reasonable men and the strong, strive to persevere in their being . . . Before coming into full possession of his power, the strong free man may be recognized by his joyful passions, by affections that increase his power of action; the slave or weak man may be recognized by his sad passions, by affections based on sadness which diminish his power of action.15 So while from the point of view of personae, the slave and the free man are opposed fundamentally and compose separate ethical visions of the world, from the point of view of the rights or powers that define their relation to being, they are exactly the same. Each one expresses the quantity of power which is their existence. ‘Freedom’ in relation to things then would have to take on an entirely different quantitative sense, such as, for example, the thing’s ‘degrees of freedom’,16 as a measurement of the movements and transformations any entity is capable of bearing or undergoing. The thing, for Deleuze, is defined by its affects, its power of acting, its right; in other words, all that it can do; while the person is defined by the quality of the will which evaluates and takes possession of this power of acting.

Expression and representation in the ‘law of things’ The expressive and the representational sides to jurisdiction give rise not just to separate orderings of legal speech but also to separate arrangements of persons and things. For Deleuze, representation is characterized by a relation of recognition. It is this relation that reduces difference to the terms of the identical, analogous, similar, etc. in judgment.17 Representation captures differences only from the side of petty comparisons: through the frame established by the abstract presupposition of unity and sameness and the empty interiority of essences. Expression, on the other hand, involves a relation of difference and repetition. It is true that repetition, like recognition, implies sameness and identity, since nothing changes in the object repeated. And yet, as Deleuze muses, ‘given that repetition disappears even as it occurs, how can we say “the second”, “the third” and “it is the same”?’.18 It is not identity which returns in repetition, it is repetition or return which constitutes the only identity of all of that which differs fundamentally. So even if there is no difference in the object repeated, there is nevertheless a difference in the one who lives it and thinks it. Expression, according to Deleuze, belongs

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to this relation of immanence in repetition.19 Being is something that may be spoken. ‘A single voice raises the clamour of being’.20 Being and right are expressed as ‘jurisdiction’, and it is this which outdoes the schemes of representation that philosophy (just as much as law) has used to reduce thinking to mere recognition and render it thereby strictly dogmatic. In relation to persons as well as in relation to things or rights, jurisdiction serves as a means of authentication—it is jurisdiction which authenticates a particular social role as well as a particular set of civil capacities. This sense of ‘authentication’, however, differs when we view it from the perspective of representation as compared with expression. The representational side to a ‘Law of Things’, for instance, is what we familiarly call ‘property law’. This is because representation in itself orders things according to a relation of belonging. There is no ‘thing’ without also having its place in representation, its ‘representative value’, its property attribute. With representation, things do not make sense outside of our asking ‘Where does it belong?’, ‘Whose is it?’, etc. The thing can be evaluated only according to its proper place within an established system of rights. Moreover, judgment only tends to bear upon ‘whose side’ a certain right over the thing lies. Modern jurisprudence finds it difficult, according to this perspective, to account for what might constitute the ‘rights of things’, the rights which constitute the thing or how the existence of the thing can be a function of its rights. Blackstone was thus countenanced by Austin for having translated jus personarum and jus rerum as ‘rights of persons’ and ‘rights of things’,21 supposedly confusing the obvious fact that all rights in a legal system were to be for the sake of persons over things (first assuming their guarantee in a figure of power such as ‘sovereignty’). But, for Blackstone the elision that seems to separate the senses of ‘right’ and ‘thing’—let alone the one that conflates ‘man’ and ‘person’— must not have been quite so complete.22 Just as the persona of Roman law appears to the perspective of Marcel Mauss, for example, as a strange amalgam of the senses of ‘subject’ and ‘mask’,23 the thing likewise appears within its jurisprudential genre as a strange amalgam of the senses of ‘object’ and ‘right’. To treat the thing simply as an object is to neglect the sense in which it also has a legal and ethical significance and activity; while to treat it simply as a right, in the ordinary sense, seems to pass over the fundamental relation, as Deleuze understands, that a right has in terms of Being—in terms of an ontology of ‘things’.24 There is a style or a particular juridical aesthetic to the ‘Law of Things’ that is entirely incommensurable to the world of property. Deleuze has a sense for this field of jurisprudence in an acute way with his encounter with the empiricism of David Hume. In property law, propositions are always related to general rules: stability of possession, occupation, prescription, succession, etc. according to which things in general get distributed, allotted and entrusted. We get the sense with such general rules of property however, that the thing itself is of small significance. What matters is not that the thing is

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a bicycle for instance, or a cup, but that it belongs to some person who has the capacity to exclude others from it and that this relation is recognized by an established system of rights. The more abstract one imagines the ‘thing’ to be under the laws of property (for example, Blackacre, object = x etc.), the more clearly we are supposed to picture the general rules that make up the rights with respect to it. With the ‘Law of Things’, on the other hand, the cases and specificities of things become paramount. It is not the rights of persons over things that matter so much as the rights of the things themselves. One does not ask: Who has the right of ownership or possession over the thing, or how does one display ownership over a thing? Instead, one asks: Which part of the thing wins out over the other parts, or becomes more vivid with respect to ownership or possession? Or to what degree and in which situations? Are there parts that cannot be owned—publicly or privately, tangibly or intangibly? The Roman Institutes describe things or matters in this way. Concerning the ownership of a garden, for example, does the soil outrank the flowers (such that the owner of the soil will be privileged above the owner or planter of the flowers)?25 And yet with a painting, does the picture nevertheless outrank the canvas?26 How far away does a bird have to fly for it to no longer be in one’s possession? Does it matter whether it is a duck or a pigeon?27 The cases are always paramount. They are non-subsumable fragments of legal experience. It is along with this kind of refrain that Deleuze finds a source of inspiration in the work of Hume. ‘Hume is the first’, Deleuze says, ‘to have posed the problem of power in terms not of representativity but of credibility . . .’: [He] shows in detail how, by being reflected in the imagination, the passion of possession discovers in the principles of association the means to determine the general rules that constitute the factors of property or the world of law. A whole study of the variations of relations, a whole calculus of relations, is involved, which allows one to respond in each case to the question: Does there exist, between a given person and a given object, a relation of a nature such as to have us believe (or our imagination believe) in an appropriation of one by the other.28 Hume will raise in this way certain problems and dilemmas that repeat the style of questioning in Roman civil jurisprudence; problems which he does not lament in handing over to the fanciful determinations of popular sentiment and moral inventiveness. And there is moreover a great humour according to Deleuze in this casuistry of relations or practice of jurisprudence that Hume elicits: an aptitude for the humour that belongs to cases. ‘Suppose a German, a Frenchman, and a Spaniard to come into a room, where there are placed upon the table three bottles of wine, Rhenish, Burgundy and Port . . .’.29 One anticipates the kind of laughter and good humour toward which the principles of justice will be headed within cases:

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The superficies yields to the soil, says the civil law; the writing to the paper; the canvas to the picture. These decisions do not well agree together, and are a proof of the contrariety of those principles, from which they are derived . . . Suppose a person should make a cup from the metal of another, or a ship from his wood . . . the question is, whether he acquires a title to the cup or ship . . . For my part, I know not from what principles such a controversy can be certainly determined. I shall therefore content myself with observing, that the decision of Trebonian seems to me pretty ingenious; that the cup belongs to the proprietor of the metal, because it can be brought back to its first form; but that the ship belongs to the author of its form for a contrary reason. But however ingenious this reason may seem, it plainly depends upon the fancy, which by the possibility of such a reduction, finds a closer connection and relation betwixt a cup and the proprietor of its metal, than betwixt a ship and the proprietor of its wood . . .30 Property law seems to coincide with a ‘Law of Things’ only from a representational perspective. From another perspective, however—and a perspective which Deleuze imagines to be minor and less exalted in the history of philosophy—the two remain entirely separate genres. The ‘Law of Things’ is not the law of property; nor is property simply a sub-category of the ‘Law of Things’. Property concerns a distribution of legal possession and possession concerns a mode of legal attachment to things. But it is a jurisprudence of things which creates the value and rights in certain ‘matters’ or ‘cases’ without which possession and property would remain abstract and token gestures of proximity. Only metaphysics and property law can remain disaffected by the ‘thing’; whether what one has is a ship or a cup. This is why Deleuze, along with Hume, takes law from the side of its practical wisdom, its innovation, its expression—as an adventure or apprenticeship in jurisprudence. How does one find one’s way around in the universe of property and possession? ‘A person, who has hunted a hare to the last degree of weariness, would look upon it as an injustice for another to rush in before him, and seize his prey. But the same person, advancing to pluck an apple, that hangs within his reach, has no reason to complain, if another, more alert, passes him, and takes possession’.31 The rules of property explain nothing about situations: what explicates or unfolds them is a ‘Law of Things’; a jurisdiction of things as a genre of jurisprudence.

Subject-matter jurisdiction: the res or matter of jurisprudence In a television interview with Claire Parnet from L’Abécédaire, a series conducted from 1988 to 1989, Deleuze notes that along with philosophy, he has a close affinity with law and legal studies, but that what interests him with

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respect to law more specifically is ‘jurisprudence’, not human rights.32 The term ‘jurisprudence’ seems in this discussion to have both an ordinary and an extraordinary sense for Deleuze. On the one hand, he associates it with terms that appear radical at first glance: ‘fighting for freedom’, ‘becomingrevolutionary’, ‘being on the left’. On the other hand, it is linked to a perspective that is not radical at all, but nonetheless rare or overlooked. He acknowledges that in cases or situations there is a question regarding the source of rights. The source of rights, however, is not something that can be appealed to from outside the situation: for instance, either in positive law (codes and declarations) or in the universal discourse of reason and natural law. It is a territorial problem of how to make the situation livable. Deleuze will link up here with a somewhat unfashionable tradition of legal thought when he insists that there really is only one source of rights: jurisprudence.33 He has a particular anecdote to relate what he means by jurisprudence: a story about the right to smoke in a taxi. Somehow it does not seem accidental that the example is highly mundane and commonplace, nor that it is something that was quite probably intimate to Deleuze’s everyday life: I remember the time when it was forbidden to smoke in taxis. The first taxi drivers who forbade smoking in their taxis—that made a lot of noise, because there were smokers. And among them was a lawyer . . . There was this guy who didn’t want to be forbidden from smoking in a taxi. So he took the taxi driver to court. I remember it very well: the taxi driver was ruled guilty. If the trial were to take place today, the taxi driver wouldn’t be guilty, it would be the passenger who’d be the guilty party. But back then, the taxi driver was found guilty. Under what pretext? That, when someone took a taxi, he was the tenant. So the taxi passenger was likened to a tenant; the tenant is allowed to smoke in his own home under the right of use and support. It’s as though he was an actual tenant, as though my landlord told me: no, you may not smoke in my home. And I’d say: yes, if I am the tenant, I can smoke in my own home. So the taxi was made out to be a sort of mobile apartment in which the passenger was the tenant. Ten years later, it’s become almost universal: there is almost no taxi in which one can smoke, period. The taxi is no longer made out to be like renting an apartment, it’s a public service. In a public service, forbidding smoking is permitted. All that is jurisprudence.34 It is not in accordance with abstract notions of reason or public policy, for example, that one can move between these different configurations of rights. It is not as though the shift is between two societies with different attitudes toward smokers, different awarenesses of the risks of passive smoking or different ideas of the value of workplace health and safety. One cannot appeal to any abstract right to breathe non-smoky air. The situation calls for a kind

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of juristic invention or contrivance that appeals to the ‘fancy’ or the imagination to use Hume’s language, and makes it livable. Deleuze admires these different solutions to the problem in so far as they constitute purely technical innovations of law. Judges may like to tell us that in law words first of all have their ‘ordinary’ or ‘common’ meaning and it is only in the more exceptional situations where they must resort to what we call ‘legal fictions’. Bentham took a more extreme position on this—‘Fictions of use to justice? Exactly as swindling is to trade’.35 But Deleuze says no: the ordinary meaning, this ‘everybody knows . . .’ in representation, this is what is truly poisonous to the activity of thought, and we need jurisprudence to remind us that all meaning is not necessarily fictional but technical; it is a contrivance or a makeshift way of getting around in the law.36 It matters therefore what law supposes it can rule over: which situations, what kind of subject-matter might constitute its jurisdiction. There is a close relation between the notions of subject-matter jurisdiction and the ‘Law of Things’ because the ‘Law of Things’, as suggested previously, is not necessarily concerned with the general rules of property, for instance (in a more primitive form), but with the aesthetic question of: What can be a matter for jurisprudence, what things are worth treating as matters of law? Today, jurisprudence as a discipline is threatened primarily by the fact that an almost universal faculty of legislation can be invoked everywhere as a response to changing situations of politics and social order. It is no coincidence that, in modern society, laws have proliferated in quantity at the same rate as legislators have come to see themselves essentially as reformers: of economies, values, systems. It is difficult to picture the sense in which Roman jurisprudence as a comparison was concerned with attending to the matter or res that would compose its power as a juridical science and distinguish it from the sphere of mere ‘prohibition’ or religious taboo. Yan Thomas, for instance, notes the inventive modification that the ‘Law of Things’ made to the organization of Roman society.37 For Thomas, the ‘Law of Things’ in Roman law was linked intimately with funerary law, that is, with the legal status of structures ‘housing’ the dead. Civil life was accordingly subtended by the exclusion of tombs and other religious sites or objects from the order of ownership and exchange. However, the jurisprudence of Roman law remained distinct from this particular religious custom, even when this custom related specifically to the ownership of certain objects. It was not the civil law and its jurisprudence which instituted the prohibition or taboo on owning religious objects as such; rather it made of this particular reaction against ownership some creative way of structuring a proprietary economy in things: In Rome, law and legal rules were not the expression of . . . taboos. Rather, they were the instruments by which taboos were transformed into a set of techniques for the management of inheritance funds. Attention was

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focused on the res comprised in religious status, within which the religious cult of the dead had been converted into a regime of property law, and in particular into a concern for the body as a subject of the law of things . . . Roman law was a powerful tool for the management of death in the domain of inheritance transactions; or, in other words, for moving from religion into an entirely different realm.38 The ‘thing’ or res is clearly much more than an ‘object’, but a technical jurisprudential modification. What is the res in the religious status—the element that will bring it into the mode of jurisprudential treatment? It is in a similar sense that a ‘Law of Things’ gives to property law some thing per se on the one hand, and on the other the way what we call subject-matter jurisdiction limits judgment and moral reaction to a ‘matter of law’ in order to affirm a corresponding positive field of rights. Cases always involve multiple problems, yet not all of these problems require determining as a matter of law. The determination of subject-matter jurisdiction then, includes a certain art of finding the sense of a problem which will minimize the scope and extension of judgment or transfer it to a separate sphere of activity. We find that this means different things from the perspective of legislators compared to the perspective of judges. From the point of view of judges, subject-matter jurisdiction means simply limiting one’s judgment to the matter of law; diagnosing the ‘controversy’ of law, etc. Accordingly, a judge attentive to a problem of subject-matter jurisdiction will interpret the law in such a way as to give it not a ‘common’ or ‘ordinary’ meaning—according to which judgment would proliferate and hence obscure the seat of judgment— but a ‘singular’ technical meaning that relates what is new in a case to the authority to judge. Subject-matter jurisdiction finds a meaning within judgment as something which still appeals to the taste of legal science; and the judge affirms the limits set by the legislator over judgment as the cause for a creative movement in jurisprudence—for the invention and creation of rights. It is not error or misinterpretation of the law, in other words, which threatens the legitimacy of the seat of judgment, but an imprudence with what constitutes the ‘matter of law’ such that misinterpretation (which belongs necessarily to judgment) becomes amorphous, solemn and weighty. For the legislator, on the other hand, subject-matter jurisdiction involves a description of the subject of law under which a system of judgment will bear minimally on activity or will confine itself to a narrow or definite forum of judgment. This does not mean offering a simplicity of judgment or a minimum of discretion as is common in legislation which seeks to make its meaning ‘plain’ and hence reduce the judge to a mere administrator of law. Nor does it mean an art of diagnosing and reflecting a societal consensus, such that the matter of law would be designed merely to give rise to a minimum degree of controversy. It means rather—by establishing the subject-matter of adjudication—giving to the judge who will decide disputes concerning this subject-matter, the creative terms with which to hone or limit the technical

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aspect to the activity of judgment. There are legal or legislative subjectmatters, for example—such as ‘genocide’ or ‘animal cruelty’—which may be poorly framed because they appeal to and reflect strong judgments without necessarily facilitating or instituting any rights that might function in those situations. Deleuze opposes jurisprudence to the thinking that surrounds ‘human rights’, the ‘rights of man’, etc.—all of the ways in which legal thought is made solemn and weighty. These ways of thinking attest not only to an impoverished form of politics but also to an imprudent form of juridicism. It is impoverished politically because it needs to sadden life in order to respond to its cases, and it is imprudent juridically because it attempts to render justiciable rights which remain nevertheless purely abstract. Of course, human rights law has its own jurisprudence. But what ‘human rights’ discourse is waiting to respond to are increasingly remarkable State atrocities that will raise our international indignation; whereas jurisprudence would rather respond instead to increasingly remarkable local ‘situations’; situations that force a modification to even our most highly tuned systems of laws. However awful these situations get, jurisprudence seeks to address that aspect which can still be a matter for juridical innovation. Despite having drawn the picture in this way, jurisprudence for Deleuze remains not so much a court scene as a street scene. Jurisprudence invents rights. One might ask: In which situations will it be necessary to invent a right, a way of doing something or a way of making-do? It is never in front of a judge, Deleuze says. ‘It is jurisprudence, ultimately, that creates law; and we mustn’t go on leaving this to judges’.39 He is not saying (like many others we are familiar with) that judges should not create law—they should just interpret it, apply it, etc. Deleuze could have added that we must not go on leaving it to legislators either—those who would simply want to lay down the law. We can be sure that whenever law or rights need ‘policing’, ‘enforcement’, ‘upholding’, ‘protection’, etc. (let alone ‘representation’), jurisprudentially they have become bankrupt; that they have been set up as superior to the situations of life and hence miss the mark as juridical inventions. Right for Deleuze is purely a matter of expression, and this is what makes his philosophy a kind of expressionism in jurisprudence. In this chapter, this expressionism was presented within what was called a genre of ‘things’, as something irreducible to the ‘method of dramatization’ that was characteristic of Deleuze’s conception of personae and personal jurisdiction. In the next chapter, the theme of expression with respect to jurisdiction and ‘rights’ is pursued in more detail through an analysis of the place and significance that one particular right has within Deleuze’s philosophy: the right of possession.

Notes 1 See Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1990), Chapters 3–5.

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2 Alain Pottage, ‘Introduction’ in Alain Pottage and Martha Mundy (eds), Law, Anthropology and the Constitution of the Social: Making Persons and Things (New York, NY: Cambridge University Press, 2004), pp. 1–39, at 4. See, also, Alain Pottage, ‘Persons and Things: An Ethnographic Analogy’ (2001) 30(1) Economy and Society 112–138. 3 See Kelley, The Human Measure. Kelley traces the history of modern social science through the traditions of Western jurisprudence. Within many of these pre-modern traditions, the ‘Law of Things’ as a category in the ordering of Roman law served as a co-ordinate with which to conceptualize sociological reasoning. 4 See, especially, John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (Bristol: Thoemmes, 2002). 5 Gilles Deleuze, Pure Immanence: Essays on a Life, Trans. Anne Boyman (New York, NY: Zone Books, 2001), p. 36. 6 See Georg Wilhelm Friedrich Hegel, Phenomenology of Spirit, Trans. A.V. Miller (Dehli: Motilal Banarsidass Publishing, 1998), pp. 111–119. 7 Ibid. 8 Gilles Deleuze, Nietzsche and Philosophy, Trans. Hugh Tomlinson (London: Continuum, 2002), p. 10. 9 This is characteristic of a key theoretical move in Nietzsche to substitute for the metaphysical opposition between ‘being’ and ‘nothingness’, a question of the quality of the will such that one asks: ‘Which one wills nothingness?’ ‘[L]et us dare to grasp this—a will to nothingness, an aversion to life, a rebellion against the most fundamental presuppositions of life; but it is and remains a will! . . . man would much rather will nothingness than not will . . .’, Friedrich Nietzsche, On the Genealogy of Morality, Trans. Maudemarie Clark and Alan J. Swensen (Indianapolis, IN: Hackett Publishing, 1998), p. 118. 10 See D.H. Lawrence, Kangaroo (Camberwell: Penguin Books, 2009), p. 19. ‘Europe is really established upon the aristocratic principle. Remove the sense of class distinction, of higher and lower, and you have anarchy in Europe. Only nihilists aim at the removal of all class distinction, in Europe. But in Australia . . . the distinction was already gone. There was really no class distinction. There was a difference of money and of “smartness”. But nobody felt better than anybody else, or higher; only better off. And there is all the difference in the world between feeling better than your fellow man, and merely feeling better off ’. 11 See Nicholas of Cusa, ‘On Actualized-Possibility (De Possest)’ in Jasper Hopkins (ed.), A Concise Introduction to the Philosophy of Nicholas of Cusa (Minneapolis, MN: The Arthur J. Banning Press, 1986), pp. 914–962. 12 Gilles Deleuze, ‘Power and Classical Natural Right’, Lecture delivered at Vincennes 9 December 1980, Trans. Simon Duffy, available at <www.webdeleuze.com> (accessed 1 May 2008). 13 See, also, Gilles Deleuze, Expressionism in Philosophy: Spinoza, Trans. Martin Joughlin (New York, NY: Zone Books, 1990), pp. 255–262. 14 Deleuze refers to Cicero’s De officiis (‘Of Duties’) as the classical text which exemplifies the conception of natural right opposed to Hobbes and Spinoza, since it frames the discourse of power in terms of functional duties. Deleuze, ‘Power and Classical Natural Right’. 15 Deleuze, Expressionism in Philospohy, p. 262. 16 On the scientific concept of manifolds and degrees of freedom in relation to an interpretation of Deleuze’s concept of multiplicity, see Manuel DeLanda, Intensive Science and Virtual Philosophy (London: Continuum, 2002). 17 See Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (London: Continuum, 2004), p. 174. 18 Ibid, p. 90.

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19 Deleuze treats the concept of expression in most detail in Expressionism in Philosophy. It is there that expression is linked to the immanence in Spinoza’s ontological thought. The unity, infinity and univocity of Spinoza’s ‘substance’ interests Deleuze less than the ‘expressionism’ that constitutes his style and which makes substance ‘turn’ around the finite modes—or ‘to realize univocity in the form of repetition’, Deleuze, Difference and Repetition, p. 377. See, also, Deleuze, Expressionism in Philosophy, p. 11. 20 Deleuze, Difference and Repetition, p. 44. 21 Austin, Lectures on Jurisprudence, p. 363. 22 Blackstone describes the jura rerum as, ‘those rights which a man may acquire in and to such external things as are unconnected with his person . . . [as] what the writers on natural law style the rights of dominion, or property . . .’, William Blackstone, Commentaries on the Laws of England Vol II, W. Morrison (ed.) (London: Cavendish Publishing, 2001), p. 3. 23 See Marcel Mauss, ‘A Category of the Human Mind: The Notion of Person; the Notion of Self’, Trans. W.D. Halls in Michael Carrithers, Steven Collins and Steven Lukes (eds), The Category of the Person: Anthropology, Philosophy, History (New York, NY: Cambridge University Press, 1985), pp. 1–25. 24 For Deleuze, things are so-called ‘objects’ of desire only in a petty and litigious sense—firstly, they are ‘desiring-machines’ or ‘machinic-assemblages’: cogs and devices in the productive flows and forces of desire. The right which belongs to ‘a bicycle’ for instance is not simply contained by the meaning in which it is an object of property. It involves a particular composition of relations, having an existence intimately caught up with the rights ‘to ride’ or ‘to cycle’ such that the thing does not have an existence per se outside of its modes of expression. One can imagine not just that a bicycle (as a thing or assemblage) is a certain kind of legal instrument capable of interpreting and instituting the rights of movement as a ‘cycling’, but also that ‘cycling’ as such—outside of the need to own or possess the object in law—invents for itself a bicycle sufficient to bear and express the right. It is possible to admire in those who have lost a bicycle, for instance, how they may recreate and invent within some other everyday activity so many intensive bicycles, like certain stylistic modifications. 25 The clarity of the question is assisted or made more vivid in Roman law by the idea of ‘taking root’. Justinian, Justinian’s Institutes, Trans. Peter Birks and Grant McLeod (London: Duckworth, 1987), p. 59. ‘If Titius puts someone else’s plants into his land, they become his. And, the other way around, his own plants placed in Maevius’s land vest in Maevius. But they must have rooted. Until then they continue to be owned by their original owner. Roots are critical’. 26 Ibid. ‘If someone paints on another person’s board, some jurists think the board’s identity is absorbed by the picture, others the picture’s by the board. It would be ridiculous for a picture by Apelles or Parrhasius to accede to a board worth almost nothing’. 27 Justinian’s Institutes, p. 57. ‘Peacock’s and pigeons are wild by nature. It is immaterial that their habit is usually to keep flying off and coming back . . . There is a special rule for these animals which come and go: they stay yours so long as they keep their homing instinct. It is only when they lose it that they stop being yours . . . They are judged to have lost the homing instinct when they stop coming back. Ducks and geese are not wild by nature . . . If your ducks or geese are disturbed and fly off, they stay yours wherever they are, even when out of your sight’. 28 Deleuze, Pure Immanence, p. 50. See, also, Gilles Deleuze, Empiricism and Subjectivity: An Essay on Hume’s Theory of Human Nature, Trans. Constantin V. Boundas (New York, NY: Columbia University Press, 1991), pp. 46–54.

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29 David Hume, Treatise on Human Nature Books II and III (London: Fontana, 1972), p. 238. 30 Ibid, pp. 235 and 241–242. 31 Ibid, p. 235. 32 Gilles Deleuze, L’Abécédaire de Gilles Deleuze, avec Claire Parnet (Paris: DVD Editions Montparnasse, 2004). 33 See, e.g. Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence, Trans. A. Hayward (Clark, NJ: The Lawbook Exchange, 2002). 34 Deleuze, L’Abécédaire. 35 Jeremy Bentham quoted in Lon Fuller, ‘Legal Fictions’ (1930) 25(4) Illinois Law Review 363–399, at 364. 36 See Gilles Deleuze, Foucault, Trans. Seán Hand (London: Continuum, 2006), p. 114. Deleuze quotes Foucault from an interview in Le Monde, 21 February 1975. ‘Illegalism is not an accident, or a more or less inevitable imperfection . . . At a pinch, I’d say that law is not made in order to forbid any particular kind of behaviour, but in order to distinguish between the different ways of getting around the law itself’. 37 See Yan Thomas, ‘Res Religiosae: On the Categories of Religion and Commerce in Roman Law’ in Alain Pottage and Martha Mundy (eds), Law, Anthropology and the Constitution of the Social: Making Persons and Things (New York, NY: Cambridge University Press, 2004), pp. 40 –72. 38 Ibid, p. 72. 39 Gilles Deleuze, Negotiations, 1972–1990, Trans. Martin Joughlin (New York, NY: Columbia University Press, 1995), p. 169.

Chapter 6

To put to flight: the right of possession

Critical legal theory has an uncertain relation to the language and discourse of rights. This chapter attempts to return this uncertainty to two dialogues on the question of possession: the first between Hegel and his contemporary Savigny and the second between Deleuze and psychoanalysis. These dialogues reveal that what has been worthy of critique within rights discourse are not necessarily rights themselves but the value of their possession. Deleuze and Savigny can be interpreted as attempting, within different historical contexts, to restore a specifically jurisprudential meaning for ‘rights’ and possession against the abstraction of their metaphysical treatment.

What can we still make of ‘rights’ discourse from the perspective of jurisprudence? Critical legal theory may have been put on a false track by having denounced rights as simply the ideological operators of legal liberalism and therefore as limiting political analysis to the terms of ‘individual’ freedom. This becomes more apparent the more that certain critical approaches to legal studies find the need to speak on behalf of the very minorities for whom the language of ‘rights’ remains a necessary and practical tool, particularly for finding their way around the social institutions of liberal democracies. By neglecting the various senses of ‘rights’ in jurisprudence we may have deprived ourselves of an approach suitable for addressing the kind of power that operates in these institutions. It is not the language of rights, for instance, which necessarily places law’s ideology in question under democratic states. The democratic state has made rights a dominant idiom of law; it has reduced legal rights to the matter of their representation and codification in law, and in doing so has left in relative disrepair the jurisprudential techniques that have evaluated their juridical expression. It is in this sense primarily that rights remain as what they have traditionally been for liberalism: the mere tokens or relative ‘trump cards’ in the drama of litigation, but also as the simple means of having oneself ‘recognized’ within the dominant system of legal order. Much of the difficulty, the inadequacy, the disingenuousness then with which the language of ‘rights’ enters into contemporary legal theory is connected

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not so much with a resistance to liberalism—which is already a tired project —but with a difficulty surrounding a more specific juridical problem: that of possession. This is because, whether or not one accepts the legitimacy of rights represented within liberal constitutions, international declarations and so forth—and despite the observation that these declarations are rarely made by those whose interests seem to be most at stake with respect to the possession of rights—it remains uncertain first of all how one might assess the value attached to possession itself as a right. Why is it that what we seem to value with respect to rights is simply their possession? And what is this right of possession? In the previous chapter, it was argued that Deleuze’s philosophy presents a certain ontology of ‘rights’ closely related to a jurisprudential genre or jurisdiction of ‘things’. According to this analysis, it is less important what rights one has in law compared to the rights that one invents in jurisprudence. Deleuze attempts to construct an account of the being of ‘things’ in terms of their right; to gauge existence according to a question of what ‘can do’. In this way, he re-interprets, along with Spinoza, the traditional domain of ‘natural right’ as well as the style of problem belonging to the ‘Law of Things’ in Roman jurisprudence. This has an important implication for the way in which possession is approached in legal theory. What property law attempts to represent for instance are not ‘things’ per se but relations of possession. However, the modern theories of possession have often been content to take property or ownership itself as a model. By reducing relations of possession to a representational and stable relation between person and thing, an account of the ‘thing’, the res or the right of possession itself has remained relatively obscure. What is it that possession can do? What kind of right is possession? What is the matter of possession? For Deleuze, the idea of a ‘right’ is worthless if it does not invent a way of doing something: a way of navigating a situation. But since the value of rights in general becomes reduced to the relation of simply possessing them, it is difficult to imagine how law might be thought to do anything more than codify or formalize these relations. The problem of possession is, in the Deleuzian sense then, above all a problem for jurisprudence. In Australia, in particular, this kind of problem has a distinctive basis. One of the peculiar elements of the colonial jurisprudence in Australia is the fact that it developed a very detailed account of the ownership of the country before it had the slightest juridical concept of its possession. We have thus had to work backwards in a sense—not being able to build a system of property and ownership from the local relations of possession from the ‘ground up’ so to speak, we have had to find ways conversely in which to ‘loosen’ our transposed proprietary systems so as to recreate the sense of a space of possession. The fact that ownership necessarily entails a ‘right to possess’ has not meant that we have thereby inherited an account of possession itself along with a system of property; instead, it has meant that our accounts of property in this country so far constitute only

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a continued experience of dispossession. This, however, is not necessarily something that would simply require a remedy in property law: the problem is not one of how to raise our local modes of possession into a coherent or even ‘reconciled’ system of property and ownership—since our ways of owning the land come to us preformed—but a problem of how to still manage to ‘possess’ the land given the persistence of this transposed system of property. The concept of an indigenous right of possession thus occupies a very critical place in Australian jurisprudence for instance, and which cannot be reduced to the various mechanisms (legislative, adjudicative, etc.) by which this right has been attempted to be codified as ‘native title’.1 The aim here is not to explore this specific issue in depth—an issue which deserves a much more attentive treatment beyond the limitations to the scope of this work. The aim, rather, is to further explore the problematic of jurisdiction in legal theory through two particular dialogues on the jurisprudence of possession. The first of these dialogues is between Hegel and Savigny, while the second is one between Deleuze and psychoanalysis. The anti-Hegelian stance of Deleuze’s work is readily acknowledged by contemporary philosophical commentators. But while it is true that Deleuze held a unique and deeply felt antipathy toward the Hegelian dialectic, to situate his work directly in relation or opposition to Hegel’s, even within a so-called philosophical ‘encounter’,2 runs the risk of being disingenuous to both authors. By treating Deleuze’s thought, implicitly or otherwise, as simply one of the many ‘reactions’ against Hegel that qualifies and defines French poststructuralism, contemporary theory might also tend to pass over the traditions of thought that rivaled Hegel directly within his own period of influence. It is easy in this way to make Hegel’s thought into something more monumental in the history of philosophy that it deserves to be. In this chapter, the attempt is to reconstruct a jurisprudential problem of possession within two limited theoretical controversies. By placing Hegel next to one contemporary counterpart in Savigny on the question of possession, it is hoped that the nature of Deleuze’s particular anti-Hegelianism might be approached through a more productive lens, revealing a possibly deeper connection between Deleuze’s innovation in philosophy and Savigny’s legacy in jurisprudence. The chapter finishes with an assessment of the significance of Deleuze’s critique of psychoanalysis to contemporary critical legal theory: a critique that may be presented as relating to its model of possession and jurisdiction.

Hegel and Savigny I: the historical source of right In a particular overview of the work and influence of Carl Schmitt within continental philosophy, G.L. Ulmen notes that the German theorist of law ‘considered one of the failures of his life that he had not pursued “the great theme of the deeper relation between Savigny and Hegel” ’.3 Schmitt had in mind a certain crisis of European law and jurisprudence as a crisis in the

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reception of Roman law. The reception of Roman law in Europe was for Schmitt not so much the reception of a law as much as it was a reception of a science or jurisprudence.4 Jurisprudence was for many centuries a problem of the continuing connection and relevance of Roman law as a system to the indigenous and regional developments of law and custom. The positivistic relation of jurisprudence to the practice of modern legislation that grew ubiquitous during the 19th century, however, seemed for Schmitt to describe a serious and exceptional situation for legal thought—the danger of ‘an empty legalitarian technicism’5 that posed a threat to the science and discipline of jurisprudence. Savigny, the great jurist of the time, would come to perceive this condition and feel the need to respond to it. On the one side, Roman law was no longer seen to supply Europe with a jurisprudence but only a kind of abstract legislative template. From the other side, this threat also manifested itself at the level of faculties: jurisprudence was in jeopardy of being subsumed by the university disciplines of theology, metaphysics and philosophy. Schmitt notes that: Savigny defended jurisprudence against this side, in that he recognized a danger to its inner autonomy in the philosophical natural law of the secularized theology of the 17th and 18th centuries as well as in Hegel’s philosophy . . . Jurisprudence would cease to be an autonomous science with its own specific character if it surrendered of its own volition to theology and philosophy; it would be merged with the other faculties, and the achievement of half a millennium would be lost.6 The ‘deeper relation’ between Hegel and Savigny then, for Schmitt concerns the possible continuing status of jurisprudence as a vocation and a discipline independent of philosophy and theology. Donald Kelley notes that Savigny’s thought was a defense of legal wisdom and science on two fronts: against the pretensions of sovereign law-making on the one hand as well as against the ‘abstract “philosophical” approaches to law’,7 on the other. Hegel’s philosophy (and especially its influence on the study of Roman law8 ) presented a unique component to this kind of crisis in European legal thought. With Hegel, one can no longer treat jurisprudence as a form of ‘civil science’. The science of ‘right’ becomes merely ‘one section of philosophy’,9 and the old connection of theoretical jurisprudence with the practical wisdom of legal science appears in Hegel’s thought peculiarly and suddenly obsolete. What seems to arrive on the scene and replace the hard won independence of jurisprudential knowledge from theological and metaphysical speculation, is the idea of totalizing the sphere of social, political and moral relations with a theologically inspired science of consciousness. Hegel manages to subordinate the power of jurisprudential thought (as the practical connection of legal and social science) to an abstract predominance of social, political and historical consciousness.

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This broader context highlights the importance with which both Hegel and Savigny might have felt the uniqueness to the respective ways they were posing the question of the historical source of law and ‘right’ in early 19thcentury Germany. Hegel’s approach to this question built upon the critical philosophy of Kant. The Kantian critique was based upon a speculative method that sought to understand a certain faculty (for example, reason or judgment) by raising it to its transcendental exercise or by elaborating its superior conditions of possibility. We cannot critique judgment as a faculty, for example— or the validity of judgment—by merely subjecting it to further specific or determinate judgments, but only by revealing the very conditions under which judgment bears upon all of its possible objects or under which it is valid in itself (that is, independent of experience). Critique means elaborating the transcendental conditions according to which a faculty can be exercised upon any object whatever. Thus, Hegel’s starting point in Philosophy of Right— and according to which he tries to downplay the theoretical importance of the historical school associated with Savigny—was also to address a purely philosophical or conceptual notion of right as transcendent to the determinate ‘rights’ of historical legal systems. ‘To consider the emergence and development of determinations of right as they appear in time is a purely historical task’, he writes: This task, like that of recognizing the logical consistency of such determinations by comparing them with previously existing legal relations, is meritorious and praiseworthy within its own sphere, and bears no relation to the philosophical approach – unless that is to say, development from historical grounds is confused with development from the concept, and the significance of historical explanation and justification is extended to include a justification which is valid in and for itself.10 For Hegel, the concept of right has to be addressed in a dialectical manner: as a purely conceptual dynamic of consciousness between ‘self’ and ‘Other’ or as a struggle for recognition that may be played out as history but not determined by it. This supplies Hegel with a particular style of legal critique that opposes itself to historical jurisprudence but also takes him beyond the abstract philosophy of right pursued by Kantianism. What Hegel retains from Kant, for example, is the idea that legal critique is not a critique of specific ‘laws’ or their validity as they are determined at particular times and places, but a critique of the logical or categorical forms proper to the universality of ‘right’. But where he departs from Kant is with a certain introspective move. Whereas Kant had treated universal right as only that which is independent of any experience of determinate ‘rights’ and hence also that which may be uniquely applied (as a condition) to the whole gamut of this experience, with Hegel the idea takes on a renewed interiority such that the concept of right is in itself reflected back within the terms of a dialectical

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movement of contradiction. For Hegel then, it is not just a question of raising legal critique to a so-called ‘transcendental’ or universal level independent of determinate laws in experience, it is also reciprocally a question of showing how universal and abstract right becomes something objective in its positing and determination as established law (as family, property, contract, the State, etc.). One can notice in Hegel an attempt to ‘complete’ the sense of critique initiated by Kant, but on an interiorized ground that simply recuperates the established grounds of legal determination: Only when it becomes law does what is right take on both the form of its universality and its true determinacy. Thus, the process of legislation should not be represented merely by that one of its moments whereby something is declared to be a rule of behaviour valid for everyone; more important than this is the inner and essential moment, namely cognition of the content in its determinate universality.11 This is what Hegel makes of the Kantian categorical imperative: it can speak only of formal universality in the faculty of legislation without going all the way to a real or objective universality.12 Hegel repeats variations of this formula in his Philosophy of Right, ‘Right is realized in the first instance as constituted law . . . In the civic society what is intrinsically right becomes law . . . In law what is in itself right is constituted’.13 He is himself conscious of the originality and perhaps also the unusualness to this conception of ‘right’. It is as though right no longer really needs to be concerned with what a thing can do, what its affects, passions, capacities, etc.—as it had always at least partly been in the history of jurisprudence—but only now whether it becomes conscious of itself through being constituted in and as law. ‘The sun and planets have laws but they do not know them. Barbarians are ruled by impulses, customs, feelings, but have no consciousness of them’.14 We do not go far enough in Hegel’s estimation when we say that laws describe and protect certain rights whether or not the majority are conscious of them, since it is right itself that becomes conscious of itself not only as the form of law but in its determination. Right takes on its reality, its validity and force by no other means than by becoming conscious (of itself) as law. And it is only in the fact of becoming constituted, determinate law that right finally realizes its true essence. This is why Hegel—in stark contrast to Savigny—sees it as a situation of unwarranted confusion to have had numerous lawful authorities regarding the one problem (a situation exemplified in Roman jurisprudence), whereas to refuse to a nation its capacity to make for itself a determinate code of laws seems to him to be a ‘flagrant insult’.15 This latter remark can be taken to be directed especially toward Savigny whose On the Vocation of our Our Age for Legislation and Jurisprudence had famously critiqued the basis for then contemporary European nations for legislating or codifying their laws. Such an activity would have to be

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reserved for a people at the summit of their jurisprudential culture which Germany was certainly not. The 1814 work was a defense of the historical and cultural importance of jurisprudence in relation to the propensity toward positive state codification of law. Schmitt notes about Savigny that his conception of right offered a rigorous critique of the impending positivism in modern legal theory: a critique that pivoted upon a unique meaning for the concept of ‘source’. Positivism was beginning to place into question the status of law or jurisprudence as a science of right. The idea that laws need only be posited in order to define what constitutes ‘right’, meant the invention of a new, more mechanical function for the process of legislation. But according to Schmitt, however, Savigny himself invented a unique response to this situation by questioning what kind of source was implied by the theory of positive law. Positivism is not simply a rupture in the historical discipline of jurisprudence; on the contrary, as Schmitt describes, ‘the jurisprudential concept of the positive is bound to a particular type of “source” protected by jurists. Law emerges from this “source” in a specific way, as something not merely legislated but given’.16 Savigny’s theoretical interest in law was not concerned with a ‘philosophy of right’, which would submit law-making to the systematic rigours of abstract rationality, but rather in jurisprudence as the creative expression of a thought that was essentially inherited or genital and which therefore always had to trace its sources.17 He has an interest in two of these sources in particular: Roman law and local customary law. ‘The Roman law . . .’, he notes, ‘has the advantage of being able, by reason of its high state of cultivation, to serve as a pattern and model for scientific labours. This advantage is wanting to the Germanic law; but this law possesses another not inferior advantage. It is directly and popularly connected with us . . .’.18 Savigny did not want to preserve the old letter of the law, he wanted to re-encounter the intensity with which the thought of jurisprudence was produced as a practical creative necessity; an intensity he admired in the juristic style of the Romans and which he empathized with in the customary law of the Germanic provinces. Thus, what the systematicity of Roman law calls on jurisprudence for is a creative energy that links it to the practices of a people; while what the fragments of ‘peoples-law’ or ‘folk-lore’ require is an adequate idea of their immanent systematic unity. Savigny’s idea of right was inseparable from an historical method in jurisprudence, whose character, as he noted: does not consist, as some recent opponents have strangely maintained, in an exclusive admiration of the Roman law; nor in desiring the unqualified preservation of any one established system, to which, indeed, it is directly opposed . . . On the contrary, its object is to trace every established system to its root, and thus discover an organic principle, whereby that which still has life, may be separated from that which is lifeless and only belongs to history.19

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In this way, Savigny developed a methodology which not only rivaled Hegelian dialectics in a way that foreshadowed his much later critics, but also sought to preserve what had for several centuries been a distinctive discipline or science of ‘right’ from the serious assault of metaphysics and theology.

Hegel and Savigny II: the right of possession Today’s discourse of rights is one that generally lacks a scientific treatment. This poses a problem for modern jurisprudence which has to work with the most disconnected arrangements and declarations of rights—of which it clearly has no shortage—but without the means necessarily of addressing their connection to local conditions and situations. It is characteristic of a present legal predicament that rights are everywhere capable of being declared, asserted, appealed to, codified, etc. but in a way that discovers the relative absence of any practical knowledge for how they might be crafted, invented and assembled in jurisprudence. For both Hegel and Savigny, the problem of a science of right could be connected in some sense to a theory of possession, since it is the concept of possession that accounts for the force by which right might be appropriated by a people. The difference to their respective approaches to this question however reveals a tension that frames the continuing importance of rights to the discourse of law. Whether or not we still need to speak the language of rights anymore in legal scholarship, juridical thinking more broadly rehearses the perspectives that have made rights turn on the question of their possession. In 1803, Savigny’s Das Recht des Besitzes (The Right of Possession) presented a unique and influential thesis on the right of possession.20 Savigny’s work changed both the significance attributed to possession in the civil law of Europe as well as the theory of right on which this significance had rested. It managed to overturn, through a rigorous study of possession and possessory actions in Roman law, a number of long persisting generalizations and assumptions regarding the nature of rights and their connection to the discipline of jurisprudence. Das Recht des Besitzes pursues a jurisprudential method that would aim to distil the historical, local and genealogical ‘right’ of possession from its abstraction, subsumption and obfuscation under the contemporary laws of property and ownership. Savigny appears to pre-empt the objections of Hegel when he notes that the centrality of a model or principle of ownership for describing the legal relation of possession in fact leaves us devoid of a juridical theory of possession itself as a right: [A]s property consists in the legal power of dealing with the thing at will, and of excluding everyone else from its enjoyment, the exercise of property takes place by means of detention, which thus is the condition of fact, corresponding to property as the condition of law. If this juridical

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relation of Possession were the only one, all that need be predicated of it in juridical terms might be comprehended in the following proposition:—The owner has the right to possess; he also, whom the owner permits to possess, has the same right; no-one else has this right. But the Roman law defines the modes of acquiring and of losing possession, as well as of property; it treats Possession therefore, not merely as the consequence of a right, but as the foundation of rights. We have therefore in a juridical theory of Possession to consider only the rights of Possession ( jus possessionis) not the right to possess ( jus possidendi of modern jurists) which forms part of the theory of property.21 The first innovative move by Savigny belongs simply to the choice of the subject for his treatise: the jus possessionis. We find that property law provides us with absolutely no knowledge of what constitutes a ‘right of possession’ since it remains content to describe the elements of a ‘right to possess’ without explaining how possession can itself be the foundation of specific rights or rights in general. To approach this question Savigny developed a strikingly original method: the only way one can grasp the status of possession as a right in itself (without reverting to either ‘factual’ possession or the ‘right to possess’ described by property law) is by approaching and addressing the specifically jurisprudential meaning that possession as a sources of rights takes on in Roman law. Savigny’s real interest is not simply the concept of possession, but jurisprudence. He is seeking to unravel that uniquely jurisprudential sense that the Romans cultivated and which would confer on possession the quality of a right rather than simply a fact. He outlines the two sides to his method for approaching this specifically juridical notion of possession: . . . in form by describing the rights which require possession for their foundation, and thus giving the meaning which the non-juridical notion of detention acquires in jurisprudence, so as to allow it to be understood as a legal entity—as Possession; in substance, by enumerating the conditions which the Roman law itself prescribes for the existence of Possession, and thus pointing out the precise modifications under which detention operates as Possession.22 Savigny seeks to attend very strictly to that element which describes the transition of a mere factual or conceptual relation into the realm of law and jurisprudence. The close attention on the jurisprudence of Roman law for Savigny in this regard, constitutes more than a merely historical interest, but an interest in the practical modes of attachment of people in relation to European soil. Roman law is not treated as a model of law but as a legal heritage, certain systems of which still animate the local expressions of German juridical custom. This is why the historical method which bears

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Savigny’s signature requires the sobriety and meticulousness of an analysis which, by attending most closely to that which can today be accurately ‘consigned’ to legal history as we have seen, is aimed at recovering, on the other hand, something which still lives on in the expression of its tradition. We repeat the forms of our ancient law too seriously but also too carelessly or imprudently when we are content to separate the science of right from historical method, and we therefore forget how to appropriate, inhabit and receive the legal creativity shown by the ancient jurists in adapting them to our local situations. When Hegel published his Grundlinien der Philosophie des Rechts (Elements of the Philosophy of Right) in 1820, he was already a well-known philosopher with a significant student following in Germany. He had also recently taken a chair at the University of Berlin where his philosophical influence vied directly and fervently with Savigny’s historical school of jurisprudence.23 How much of The Philosophy of Right may have been an immediate critique of or attack on Savigny’s work is debatable, however, what is striking about Hegel’s text is the method with which it at least managed to ignore Savigny’s elegant thesis on possession. The Philosophy of Right builds upon Hegel’s earlier dialectical method. But what is distinctive about the concept of ‘right’ which he pursues through this method is its disregard for the specifically jurisprudential meaning in favour of a purely metaphysical treatment. Hegel has no interest in cases, let alone the rights that require evaluating in cases. He takes ‘right’ firstly in its abstract concept and only secondarily towards the conditions of its objective institutional determination. For Hegel the science of right is not a practical or technical form of knowledge. We are unscientific in our approach to the question of rights not necessarily by lacking the technical skill for dealing with a matter of law passed down to us, but when we propose to treat ‘right’ in anything less than its universal or transcendental concept. There is nothing more improper then to the science of right than having to rummage around in old laws like an archaeologist. The concept of right has an internal, dialectical development and those many local, contingent, historical laws can do no more than divert our scientific orientation within this development. Hegel’s observations on the nature of possession sometimes seem counter-intuitive. This more than anything is a measure of the kind of distinctive system that he brings to bear on his subject-matter. ‘That a thing belongs to the person who happens to be the first to take possession of it is an immediately self-evident and superfluous determination’, he writes, ‘because a second party cannot take possession of what is already the property of someone else . . . [since] the personality must have existence in property’.24 For Hegel to be able to say such things, he must have a quite unique idea about property and possession. In jurisprudence, property and possession have been treated as mere external relations to one another. What matters for jurisprudence is the kind of solution one can invent to situations

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and cases: for example, the ordinary situation in which there are equally legitimate claims made over a thing by various parties. Hegel, on the other hand, takes seriously the philosophical attempt to make property something internal to itself: to make the relation between a person and thing something internal to one or other of its terms. If a person possesses a thing: How does one make this relation something internal to the essence of personality or the concept of the thing in itself? A person does not just come in and out of possession of a thing; it is the very idea of personality (as free will) which must find some degree of objectivity in possession. This is why for Hegel, freedom and subjectivity must move beyond their ‘abstract right’: they must actualize, embody or objectify themselves in some way and this way of objectifying and making freedom into something real is what he calls property: To have even external power over something constitutes possession, just as the particular circumstances that I make something my own out of natural need, drive and arbitrary will is the particular interest of possession. But the circumstance that I, as free will, am an object to myself in what I possess and only become an actual will by this means constitutes the genuine and rightful element in possession, the determination of property.25 The element of possession that constitutes a right according to Hegel corresponds identically with the determination of property. ‘Right is in the first place the immediate embodiment which freedom gives itself in an immediate way, i.e. . . . possession, which is property-ownership’.26 One can imagine how Savigny might have seen this idea as truly bankrupt in a jurisprudential sense. The difference between a representational scheme of property and an expressive or indigenous relation of possession—which Savigny had tried to study the juridical subtlety of in Europe through an attention to the Roman law—had certainly often been treated in a much more careless and confused manner (property taken in certain situations as the sole foundation for a ‘right of possession’ and possession itself seen as one kind of property right). But it is Hegel who audaciously drives this confusion all the way to a logical and conceptual interiority or internalized redundancy. There is, indeed, no distance to measure, no unique sense to give to the juridical notion of possession for Hegel; it is simply an incomplete image of what has its essential relation in the determination and development of its true concept: property—that is, not just a relation between subject and object, person and thing, but the abstract will become objective through a system of ‘mutual recognition’.27

Nomadic and sedentary distributions: possession in Deleuze and psychoanalysis What significance does this dialogue between Savigny and Hegel have for the directions of contemporary legal theory and their presentation of possession?

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Today, the fate of jurisprudence as a discipline can hardly be considered separate from that of philosophy and ‘theory’. As legal scholars, we no longer seem to have an interest in defending our particular faculty of jurisprudence against the encroachments of philosophy, theology, moral and political science. On the contrary, we wonder in what sense we might be able to become truly ‘interdisciplinary’; as the only means to avoid making law a closed-off system of thought. One of the most important of these interdisciplinary encounters has been that between law and psychoanalysis.28 Legal scholarship has not yet found a more ideally interdisciplinary domain than that supplied by psychoanalysis, since like no other discipline it purports to scientifically diagnose the subject of desire through its relations to authority, guilt, prohibition, etc. While psychoanalysis might provide a systematic way of viewing and critiquing legal relations then, what is perhaps more surprising is that it is not also taken as a serious rival to jurisprudence as a tradition of legal thought. The turn toward psychoanalysis and interdisciplinary study more broadly in legal scholarship expresses a loss of faith that jurisprudence still offers us a contemporary critique of law. The significance of Deleuze’s critical relation to psychoanalytic theory and, indeed, his resolute anti-Hegelianism might be better understood from within this institutional context than from the perspective of an abstract philosophical dialogue. Deleuze’s opposition to psychoanalysis is commonly understood in terms of a rejection of the presentation of desire as a ‘lack’ and of the theory of the unconscious as a theatre; and hence with a concern to replace this with a corresponding theorization of a ‘productive’ conception of the unconscious and a ‘machinic’ or ‘fluid’ conception of desire.29 In fact, Deleuze’s position with regard to psychoanalysis developed from a much more immediate political concern over the organization and transmission of psychoanalytic intellectualism. Deleuze did not necessarily criticize psychoanalysis for being misplaced or unsophisticated in its theoretical account of social and psychical phenomena; but rather for the kind of ‘school’ and political organization it had constituted for itself. Deleuze’s relation to psychoanalysis becomes more unsympathetic the more the latter arranges itself into a centralized dogmatic tradition: a system of knowledge that has to be guarded and recharged by its intellectual apparatchiks.30 The critique is also therefore a criticism of the pretension of psychoanalysis to be another substitute for law: to reduce expression to the contract and the institution. The ‘therapeutic exchange’ in psychoanalysis, the power relation which forms equally part of its theory as its practice, is one that does not stop stifling legitimate modes of expression according to Deleuze: [Y]ou can’t say ‘Mouth [mouths] of the Rhône’ (Bouches du Rhône) without them firing back ‘mouth of the mother’ (bouche de la mère), or ‘hippy group’ (groupe hippy) without being corrected: ‘big weenie’ (gros pipi). Whether structural or not, personology replaces every assemblage of desire

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. . . You can be analyzed for ten years, a hundred years: the longer it continues, the less there will be any opportunity to speak. That’s the whole point.31 Psychoanalysis cannot seem to take a statement or utterance at its face value. It can accept all kinds of expression but only by translating them into contradictions, ironies, little significations that have unintended meanings. Deleuze invites us to consider the meanness to this system of interpretation. The analysis keeps trying to block the avenues to the creation of minor political modes of expression. In the place of this, Deleuze insists on theoretical analysis necessarily being borne by an immediate political situation rather than the reverse. Analysis as the invention of a ‘way out’ or which extends the conditions of legitimate expression is very different from that form of analysis which serves to reduce, understand and organize the legitimacy of our thought and experience. This then is the task for legal scholarship and jurisprudence which precisely has no need for making itself a grand theory, let alone a law-substitute. Of all disciplines, it is perhaps jurisprudence which can today afford to pass itself off as something less than a science of ‘subjectivity’. Both Deleuze’s antipathy toward the Hegelian dialectic and his critique of psychoanalysis proceed on this basis. It is less an intellectual critique than a defense of the kind of intensity that belongs to a mode of thought; a defense, for example, of the specifically jurisprudential discipline of thought which the ‘philosophy of law’ puts into peril by tending toward a certain theoretical aggrandizement. For Deleuze, what Hegel tends to destroy and disconnect us from is the kind of ‘right’ and laughter that has always been a matter for jurisprudence: the right which constitutes the humour rather than the irony of legal critique. Zizek, for instance, uses this irony imperiously when he tries to redeem Hegel for Deleuze: needing to convert all his ‘jurisprudences’ back into the currency of ‘law’ in order to be able to critique it and to laugh a little at the expense of things. So Zizek can make Hegel and Deleuze equal one another in a sort of philosophical way, but only by rendering insignificant the vastly different ways in which they laugh: their vastly different jurisprudences.32 Nevertheless, none of this is to discount the fact that a turn to psychoanalysis in legal theory contributes something distinctive even regarding a traditionally jurisprudential concept such as possession. Lacanian psychoanalytic theory has been used in legal studies to understand the structure or language of law. Psychoanalysis is primarily a study of dynamics or dynamisms in so far as these constitute the differential elements of ‘unconscious’ life as a structure or investment of energy. By analyzing law as a language and attempting to understand the dynamic nature of this language, psychoanalysis provides a unique way of addressing the form and the ‘forgotten scenes’ of law’s authority.33 This has meant, in legal theory, a move away from legislative and rule-oriented accounts of legal authority and

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toward an aesthetic attention to the emotional and affective dynamics in the textuality of authority.34 In psychoanalysis, law is thought as a ‘symbolic’ order. This does not just mean that legal texts fundamentally operate through symbolization, but also that law is structured as an initiation into the realm of speech, language and desire. ‘Symbolic’ means neither imaginary nor real but ‘structural’. It has neither resemblances nor identities but only relational elements and structural dynamisms. It is not objects in general then that simply enter into the structure and are determined by it—the idea of structure implicates the invention of a special kind of object: the ‘phallus’ or the objet petit a (which exists only as a paradoxically displaced or mobile element—an object without a place); as well as the invention of a special kind of place: the empty square (which exists only as a lack or negative—a place without an occupier). Although one cannot really possess the phallus strictly speaking, for example, nor occupy the empty square: the play of social and psychical relations always appear to function or circulate according to who is assumed to possess or occupy it. Psychoanalysis in this way provides legal theory—whether or not the latter chooses to make use of the same images or examples such as the ‘Oedipus complex’35—with a structural, symbolic or dynamic account of the right and authority of possession. The authority of possession is never simply a real or an imaginary authority but a so-called symbolic authority. Possession is grounded in ‘signification’ and cannot do anything more than circulate on something ‘real’. One of the more explicit attempts at studying a juridico-psychoanalytical account of possession is in Jeanne Schroeder’s The Vestal and the Fasces. Schroeder provides a Hegelian-Lacanian account of property law attuned to a particular feminist ethic in which she traces and develops two overarching metaphors for property in legal studies: the masculine fasces (an axe or a bundle of sticks—that is, as something that can be wielded but not retained) and the feminine vestal (the virgin or inviolate body—that is, as that which can be lost but not acquired).36 These two figures of property also imply two ‘structural’ modes of possession; two different ways of possessing (or really two ways of ‘failing to possess’ an object). According to the first, one cannot strictly be in possession (for example, of the phallus, the object of power or of libidinal investment) because this possession is only an empty fiction or a displacement of meaning. According to the second, however, one still cannot strictly be in possession, but for a different reason—because one is oneself the object, the phallus. To understand the authority of possession as ‘symbolic’ is to understand the structural dynamism that operates between these two forms of lack, negativity or displacement: the action of absence and the action of loss. While psychoanalysis conceives the authority of possession then within two functional forms of lack: as an absence-displacement and as a loss-attachment; Deleuze conceives it rather within two distributive territorial paradigms:

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nomadic and sedentary. ‘Lack’ is thus shown to be meaningful and effective only within a particular kind of allotted distribution which he calls sedentary. The sedentary model of possession is a model of stable or territorialized relations which recalls the sense of the juridical term ‘seisin’37 for possession— not that of actively ‘seizing’ but of ‘being-seated’, ‘set down’, ‘sitting down’; hence ‘presiding’ in relation to office or ‘established’ in terms of values.38 Under a sedentary model, one cannot possess without dividing up a field into plots as closed or exclusionary spaces. Under the nomadic model, however, possession implies a very different kind of relation that cannot sustain any of these elements of establishment, exclusion and lack. Since possession does not imply division, exclusion or stable territoriality, one requires other factors or concepts altogether such as ‘flight’, ‘intensity’, ‘population’, etc. to describe or explain its authority. We can oppose the two territorial models schematically on four points: Sedentary model 1. 2. 3. 4.

Space is divided in order to be possessed. What you possess is always a plot/lot/portion (closed space), for example, a house. You possess only by remaining the same person (that is, as an individual). Possession implies exclusion and displacement.

Nomadic model 1. 2. 3. 4.

Space is possessed without being divided. What you possess is always flows/movements/intensities (open space), for example, the ocean or the desert. You possess only by being plural (that is, as a multiplicity or a pack). Possession implies population and flight.

Deleuze and Guattari use the examples of the games of chess and Go as descriptive of these two opposed modes of possession.39 The two games describe different ways in which space can be inhabited and arranged. From the perspective of the game pieces, for instance, chess is highly structured and coded— the pieces each have intrinsic individual properties and characterizations of movement (a knight can move in L-shapes, a rook in straight lines, etc.) that define which squares each one can possess and guard and in which positions each piece will possess the greater sphere of influence; whereas Go pieces are simple anonymous pellets or units that can function only strategically as a pack or within nebulous tactical arrangements in space. Thus from the perspective of the space itself, in chess ‘it is a question of arranging a closed space for oneself . . . of occupying the maximum number of squares with the minimum number of pieces’; whereas in Go ‘it is a question of arraying

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oneself in an open space, of holding space, of maintaining the possibility of springing up at any point’.40 Nomadic and sedentary modes of possession thus constitute a certain danger for one another. The sedentary community possesses plots, establishes boundaries, ‘striates’ space, but in doing so opens itself up locally to the threat of dispossession from the outside and globally by a nomadic catastrophe in which its territory is undone and shattered from within. Nomads, however, are not at all threatened by dispossession since their mode of relating to the land or a body is by means of flight or fleeing rather than by means of exclusion. The nomad does not flee the territory; it is a question rather—in order not to have to flee or to become displaced—of putting the territories themselves ‘to flight’, making the territory itself flee.41 While it is always in the interest of the sedentary to be ‘governed’ since government guarantees its protection from the threat and instability of dispossession, it is not in the interest of the nomad for whom it serves simply to block all of the movements which constitute its only mode of possession. The sedentary subjects all movement to the fixed criteria and boundaries of a single territory, it makes ownership the only true guarantee of possession, the right to possess; whereas the nomad makes its movement constitute the only boundary, as so many ‘escape routes’ and territories of flight.42 For the nomad, ownership is precisely the only true threat to its right of possession. In summary, the jurisprudences of possession may be reserved for certain local juridical movements not addressed under the universalizing texture of the philosophy of law. For Deleuze, nomadism is not just a model of possession but an aesthetic account of reading: a jurisprudence and a cultural creativity of law adapted to native situations. Nomadism, for example, is what we have when we no longer find it necessary to trace the meaning and signification of a text—restoring its conceptual or representational interiority, etc.—and instead find a way of hooking the text up to an outside and to the field of its expression.43 This is why we can afford to be genuinely attentive as legal scholars to certain local problems of law and possession. For example, in Australia, the sources of local jurisprudence are not obvious. Looking for these sources has not purely been an historical exercise, it has been necessary, for example, to problematize the basis for an indigenous right of possession. Mentioned previously, the indigenous right of possession in Australia gets subsumed under the rubric of native title. But if possession is a concept that the common law in Australia was never able to accurately transpose from England in the first place, then it seems all the more important to address and unravel what might constitute the specifically native development to the common law of possession in this country. This, it seems, would map very closely to that local jurisprudence that continues to singularly negotiate common law’s adaptation to Australian conditions and ‘puts to flight’ every grounded right of possession. Jurisprudence for Deleuze is never a question of improving the law. It may be a question of describing law but only in the sense of getting something

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through at the level of rights: finding the intensity with which law might be connected with the rights or activity of a people. It expresses the necessity of inventing a way of desiring: a way of being with law that is outside judgment. ‘We desire . . . we find ourselves in situations: all these are cases for jurisprudence’,44 he says. And Deleuze may be close to Savigny according at least to the strength and consistency with which he insists that it is jurisprudence that fundamentally creates rights; that the source of all rights is jurisprudence. In the following two chapters, a third and final jurisdiction is explored in Deleuze’s philosophy: that of the procedural knowledge of jurisprudence. While Deleuze has been shown in the foregoing to recast the technical elements of persons and things as jurisdictional devices in terms of their expressive constructions, the problem of ‘actions’ as a third genre of jurisprudential thought also constitutes an important recovery in Deleuze’s philosophy. The invention of rights in jurisprudence involves more than just a casuistry of relations in the mode of a ‘Law of Things’; it also constitutes a particular procedural critique of judgment.

Notes 1 For a reading of Deleuze’s work in relation to the problem of aboriginal title and indigenous rights of possession in the colonial context, see Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford, CA: Stanford University Press, 2008). See, also, Paul Patton, Deleuze and the Political (New York, NY: Routledge, 2000). 2 See Slavoj Zizek, Organs Without Bodies: On Deleuze and Consequences (New York, NY: Routledge, 2004). 3 G.L. Ulmen, ‘Schmitt’ in Simon Critchley and William R. Schroeder (eds), A Companion to Continental Philosophy (Oxford: Blackwell Publishing, 1999), pp. 469 – 478, at 472. 4 Carl Schmitt, ‘The Plight of European Jurisprudence’ (1990) 83 Telos 35–70, at 40. 5 Ibid, p. 69. 6 Ibid, p. 65. 7 Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1990), p. 253. 8 See, especially, Michael H. Hoffheimer, Eduard Gans and the Hegelian Philosophy of Law (Dordrecht: Kluwer, 1995). 9 Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right, Trans. H.B. Nisbett (Cambridge: Cambridge University Press, 1991), p. 26 (§ 2). 10 Ibid, p. 29 (§ 3). 11 Ibid, p. 241 (§ 211). 12 Ibid, pp. 162–163 (§ 135). 13 See Georg Wilhelm Friedrich Hegel, Philosophy of Right, Trans. S.W. Dyde (New York, NY: Cosimo Classics, 2008), pp. 110–115 (§§ 211–217). The wordplay in this repetition is with the German terms ‘Gesetz’ (law) and ‘Gesetzt’ (constituted, established, posited). 14 Ibid, p. 111 (§ 211). 15 Ibid. Hegel very explicitly attacks Savigny in the following remark, ‘Very recently, the vocation of making laws has been abolished. This is not only an affront, but also implies the absurdity that to no individual has been given the capacity

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to systematize the infinite multitude of existing laws, and expose the universal contained in them, when this task is the most pressing need of the day. Similarly, it has been held that a digest of decisions, such as the Corpus juris, is preferable to a statute-book giving a detailed exhibition of the universal. A certain particularity and reminiscence of the historical is supposed to be contained in the decisions, and in a statute-book it is thought that these advantages would be wanting. But the mischievous nature of a mere collection is clearly manifest in the practice of the English law’, ibid, pp. 111–112 (§ 211). Schmitt, ‘The Plight of European Jurisprudence’, p. 56. Yifat Hachamovitch notes the importance of Savigny to the theories of ‘affect’, ‘seduction’, ‘heredity’ and ‘genitality’ that inhabit law as a tradition of judgment. ‘This seduction marks what Artaud calls the “genitality of thought”. It aligns thought to the genealogy of the body, to the material of heredity as such, to the entire set of practices, intuitions, customs, traditions, animal instincts, and relationships which bind a historical community to its past. Historical jurisprudence, which maps out the dialectic logic of “the people” as an organic unity is in a sense the history of this seduction. Thus, for Savigny, for example, this seduction takes the form of an organic principle, a Volksgeist, which makes itself felt through a people’s law’, Yifat Hachamovitch, ‘In Emulation of the Clouds: An Essay on the Obscure Object of Judgment’ in Costas Douzinas, Peter Goodrich and Yifat Hachamovitch (eds), Politics, Postmodernity and Critical Legal Studies (London: Routledge, 1994), pp. 35 – 68, at 59. Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence, Trans. A. Hayward (Clark, NJ: The Lawbook Exchange, 2002), p. 137. Ibid, p. 137. Das Recht des Besitzes (‘The Right of Possession’) was Savigny’s earliest major work, written at the age of 23 in less than seven months, and was extraordinarily influential on 19th-century European jurisprudence. See Hermann Kantorowicz, ‘Savigny and the Historical School of Law’ (1937) 53 The Law Quarterly Review 326 –343, at 328–329. English positivist John Austin described Recht des Besitzes as ‘of all the books upon law the most consummate and masterly’, John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (Bristol: Thoemmes, 2002), p. 55. Friedrich Carl von Savigny, Von Savigny’s Treatise on Possession: or, the Jus Possessionis of the Civil Law, Trans. Erskine Perry (London: S. Sweet, 1848), p. 3. Ibid, pp. 3 – 4. On the place of Hegel and Savigny within the faculties of philosophy and law at the University of Berlin, see Theodore Ziolkowski, Clio the Romantic Muse: Historicizing the Faculties in Germany (Ithaca, NY: Cornell University Press, 2004); Donald R. Kelley, The Human Measure. See, also, Donald R. Kelley, ‘Book Review. Alle Origini del Dirrito Borghese: Hegel contro Savigny’ (1986) 58(3) The Journal of Modern History 708 –709. Hegel, Elements of the Philosophy of Right, p. 81 (§ 50). Ibid, p. 77 (§ 45). Georg Wilhelm Friedrich Hegel, Hegel’s Philosophy of Right, Trans. T.M. Knox (Oxford: Clarendon Press, 1942), p. 38 (§ 40). See Alan Brudner, The Unity of the Common Law: Studies in Hegelian Jurisprudence (Berkeley, CA: University of California Press, 1995), p. 49. See, especially, Peter Goodrich and David Gray Carlson (eds), Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence (Ann Arbor, MI: University of Michigan Press, 1998).

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29 See, especially, Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia (New York, NY: Viking Press, 1977). 30 See, e.g. Gilles Deleuze, ‘On the Vincennes Department of Psychoanalysis’ in David Lapoujade (ed.), Two Regimes of Madness: Texts and Interviews 1975–1995, Trans. Ames Hodges and Michael Taormina (New York, NY: Semiotext(e), 2006), pp. 61– 62, at 62, ‘The Freudian School of Paris is not only a group with a leader; it is a very centralized association with a clientele . . .’. 31 Gilles Deleuze, ‘Four Propositions on Psychoanalysis’ in David Lapoujade (ed.), Two Regimes of Madness: Texts and Interviews 1975–1995, Trans. Ames Hodges and Michael Taormina (New York, NY: Semiotext(e), 2006), pp. 79–88, at 85. 32 See, e.g. Zizek, Organs Without Bodies. 33 On the place of psychoanalysis in critical legal theory, see Peter Goodrich and David Gray Carlson, ‘Introduction’ in Peter Goodrich and David Gray Carlson (eds), Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence (Ann Arbor, MI: University of Michigan Press, 1998), pp. 1–12. 34 See, especially, Pierre Legendre, Law and the Unconscious: A Legendre Reader, Trans. Peter Goodrich, Alain Pottage and Anton Schütz (New York, NY: St Martin’s Press, 1997). See, also, Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley, CA: University of California Press, 1995). 35 On the use of psychoanalytic theory and imagery in contemporary jurisprudence, see, especially, Adam Sitze, ‘The Question of Law Analysis’ (2007) 64(3) American Imago 381– 411. 36 Jeanne Schroeder, The Vestal and the Fasces: Hegel, Lacan, Property, and the Feminine (Berkeley, CA: University of California Press, 1998). 37 On the importance of the sense of ‘seisin’ to common law conceptions of possession, see Frederic William Maitland, The Collected Papers of Frederic William Maitland, Downing Professor of the Laws of England, Vol I (Cambridge: Cambridge University Press, 1911), pp. 358–384, 407–457; see, also, S.F.C. Milsom, Historical Foundations of the Common Law (London: Butterworths, 1981). Seisin is also related etymologically to the common law ‘assizes’ which were itinerant courts that ‘sat down’ at certain places to deliver justice. 38 See Yifat Hachamovitch, ‘The Dummy: An Essay on Malice Prepensed’ in Peter Rush, Shaun McVeigh and Alison Young (eds), Criminal Legal Doctrine (Aldershot: Ashgate, 1997), pp. 28 – 62, at 36, ‘The subject of recognition is first of all a tenant: a settled, seated, sitting duck’. 39 See Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, Trans. Brian Massumi (London: Continuum, 2002), pp. 352–353. 40 Ibid, p. 353. 41 See Gilles Deleuze, ‘Nomadic Thought’ in David Lapoujade (ed.), Desert Islands and Other Texts 1953 –1974, Trans. Michael Taormina (New York, NY: Semiotext(e), 2004), pp. 252–261, at 259 – 60, ‘[T]he nomad is not necessarily someone who moves around: some journeys take place in the same place, they’re journeys in intensity, and even historically speaking, nomads don’t move around like migrants. On the contrary, nomads are motionless, and the nomadic adventure begins when they seek to stay in the same place by escaping the codes’. 42 Deleuze derives an important literary basis for his conception of nomadic possession from the work of Franz Kafka and Kafka’s ‘animal’ stories in particular; stories in which the animal protagonists occupy their territories through constant movement of flight and a pure repetitive modulation of language. See Gilles Deleuze and Felix Guattari, Kafka: Toward a Minor Literature, Trans. Dana Polan (Minneapolis, MN: University of Minnesota Press, 1986). Kafka’s short story titled ‘An Old Manuscript’ also provides an explicit reference to nomads and their peculiar mode of possessing. The narrator notes, ‘Whatever they need,

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they take. You cannot call it taking by force. They grab at something and you simply stand aside and leave them to it’, Franz Kafka, ‘An Old Manuscript’, Trans. Willa Muir and Edwin Muir, in Franz Kafka: Collected Stories (New York, NY: Everyman’s Library, 1993), pp. 171–173. 43 See, especially, Deleuze, ‘Nomadic Thought’. 44 Gilles Deleuze, L’Abécédaire de Gilles Deleuze, avec Claire Parnet (Paris: DVD Editions Montparnasse, 2004).

Part III

Actions and procedure

Chapter 7

The activity of judgment: ‘law of actions’ and the procedural genre of jurisprudence

The concept of jurisdiction typically has a more dominant meaning in institutional than theoretical discourse. Contemporary legal theory, however, is rediscovering its connection with the technical and technological parameters of law that imply a closer attention to problems of jurisdiction and procedure. This chapter analyses the ‘law of actions’ as a procedural genre of jurisprudence. It shows that Deleuze’s philosophical critique of judgment recovers a jurisprudential interest in the dimensions of the activity or performance of judgment. The contours to a contemporary jurisprudence of actions is found also in the works of Pierre Legendre and Michel Foucault.

The language of jurisdiction today still occupies a much larger place in the procedural domain of law than in its theory or jurisprudence. Jurisdiction refers to technical and procedural matters of law’s institutions and forums of judgment. It also concerns an introspective language with which the courts and other institutions address the modes and forms of their own power without necessarily meaning to open anything of this language up to either a non-specialized or a socio-political treatment. Matters of jurisdiction are thought to be safely left to lawyers without much concern, while political and legal theory concern themselves with a set of other co-ordinates with which to engage with the specific problematic of social and normative life. As Bradin Cormack notes: Jurisdiction belongs to law less as a substantive problem for jurisprudential investigation than as the principle and force that makes the investigation possible but which, for that reason rarely indexes its own potential as an order at law: either we ignore it and get on with the case at hand or we discover, usually at the hands of the legal expert, that the arcana of jurisdiction somehow, here or now, preempt the possibility of justice in the case at hand.1 As critics, problems of jurisdiction tend to bypass our attention. We tend to dismiss them as overly technical, as merely institutional, critically unreflective

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or as in some way minor to the overarching social thematics of power in a case or problem. As a consequence, not only does it become more difficult to consider law as a distinct technical discipline of social inquiry, but it also remains in general an under-theorized question just what forms of authority the particular languages and procedural techniques of jurisdiction make possible in contemporary society—how jurisdictional arrangements continue to order the possible modes of our scientific analysis and experience. It may be difficult, on the one hand, for social theory to find the theoretical languages in which to address technical and technological problems of law’s institution and performance. And yet it may also be equally difficult to understand, on the other hand, whether the technicism and formalism with which procedural matters are dealt with in modern juridical discourse, misstate the continuing connection these matters have with any contemporary genre of jurisprudential thought. These difficulties are no doubt important if we are to consider whether a certain theoretical language of legal procedure, a so-called ‘Law of Actions’, or an account of the instrumentality of legal procedural forms is something which can be safely consigned to the history of jurisprudence or whether it also has a contemporary living form. Jurisprudence may be characterized today at least in part by a struggle to come to terms with the modern separation of customary institutional ‘know-how’ from the typically ideological and revolutionary bases for a critical theoretical engagement with legal order. Not only do our critical theoretical perspectives on law often remain political, disjointed, competing, etc. but what they share with one another is just a generalized aversion to the weightiness of a languid culture of legal dogmatism. As a consequence, we are not sure any more that law has an intellectual discipline of its own and not just a relatively abstract propensity and aptitude for issuing institutionalized decrees.2 It remains uncertain, in other words, whether law and jurisprudence—more so perhaps than speculative metaphysics—hold for us the kind language or system with which to construct an adequate critique of judgment. Deleuze may offer a unique response to this kind of problem. For Deleuze, it is not just law and jurisprudence that is threatened by a culture of dogmatism, but thought itself.3 Our capacity to think is haunted by an image that would reduce it to the function of recognition or representation. The ‘expressionism’ that Deleuze traces in the shadow of this philosophical image therefore also presents a distinct critique of judgment. Yet, rather than building upon the metaphysical critiques of judgment, Deleuze connects with a jurisprudential tradition of thought concerned to critique judgment through its procedural jurisdictions. Deleuze attempts to problematize judgment not through its transcendental conditions of possibility, but through the procedural forums in which it becomes something acted. A jurisprudential treatment of procedure through Deleuze may be staged as a relation between ‘active’ and ‘reactive’ force within judgment: an account of how judgment

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stops being a sentiment or afterthought and becomes something capable of performance. Having a theoretical account of the procedural forms of judgment then may prove to be an important aspect to the contemporary methodological directions of critical legal studies, not only because critical legal studies may still need paradigms of judgment which differ from the dominant metaphysical and transcendental strains of philosophical critique, but also because of the stakes involved in leaving the technological and performative problems of judgment to the technocratic orthodoxy of legal institutional language.

The ‘law of actions’ and procedural jurisprudence Where does one look for a contemporary account of jurisdiction and procedural jurisprudence? Today, consideration of a ‘Law of Actions’ in legal scholarship can usually be found as part of the historical introductions to the Roman foundations of Western civil law categories,4 but its connection to a genre of jurisprudential thought which takes the procedures of judgment as its basis is less commonly acknowledged or explored. The fact, for instance, that the rubric of a ‘Law of Actions’ for a long time constituted the greater portion of jurisprudential writing in classical and medieval Europe, and that the technical problematics of juridical procedure clearly occupied a large space in the minds of its legal scholars and theorists, is not often acknowledged with regard to the contemporary state of jurisprudence. It has been legal historians generally who have noted the peculiar centrality of procedural matters to the early arrangements of systems of justice. Henry Sumner Maine famously remarked, for instance, that, ‘So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms’.5 This particular connection between juridical procedure and jurisprudence is difficult to reconstruct for modern thought. The sense with which procedural matters of law—matters to do with the instrument or technical form of judgment—were more than just administrative problems in relation to justice but, indeed, had the more central task of focusing our substantive sentiments of ‘right’ and ‘wrong’ and giving them a certain palpableness and intensity, gets somewhat lost in positive jurisprudence.6 Legal thought has for some time tended to separate the technical craft from the metaphysics and moral philosophies of judgment. And as such, the rehearsed relationship between the practices of judgment, the institution of legal subjectivity and the orders of social truth is remitted either to a transcendental forum or to the functioning of an entirely mechanical State apparatus. The codes of civil procedure in modern democracies exemplify this jurisprudential schism. By pursuing an ideology of centralization and uniformity, modern juridical systems attempt as much as possible to abstract

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the procedural from the substantive element of law and legality. Hence, the procedural differences that the modern codes organize, as Frederic William Maitland noted, are thought as ‘mere variations of one general theme— procedure in an action in the High Court of Justice. It was entirely otherwise in the Middle Ages’, he adds, ‘then lawyers say very little of the procedure in an action, very much of the procedure in some action of a particular kind . . . Knowledge of the procedure in the various forms of action is the core of English medieval jurisprudence’.7 This is to say that medieval legal thinking was to a large extent a jurisprudence of jurisdiction. And by totalizing and unifying the jurisdictional organization of actions, modern law unwittingly obscures the relation of its procedure to the particular forms of authority and categories of judgment and subjectivity that it inaugurates. The local knowledge or science of the various forms of procedure is today a relatively unassuming science. Civil procedure is meant to offer only the merely logistical rules for accessing a single ‘justice system’ rather than describing radically discrete and plural forums of justice—the knowledge of which was the basis for a practical and theoretical critique of judgment. Juridical apparatuses of procedure then do more than manage the functioning of a justice system: they also describe forms, structures and ‘actions’ through which particular logics of judgment come to be performed. One contemporary author who has attempted to pursue a certain procedural genre of analysis in the Western philosophies of judgment is Ian Hunter. In his Rival Enlightenments, Hunter draws a distinction between two procedural orders of philosophical and socio-political judgment—a confessionalsacramental order and a civil, State-centred order—and uses these to describe two competing intellectual cultures in early modern Germany. Hunter identifies not a single ‘Enlightenment’ but two: one influenced by university metaphysics and exemplified by the work of Kant, Leibniz and Wolff and the other by the ‘civil philosophy’ of Pufendorf and Thomasius. The ‘rival’ enlightenments could be characterized by the conflicting ways in which they negotiated the relation between civil and sacramental jurisdictions: the former seeking to have them ‘co-administered’ so to speak in a unified tribunal of moral self-governance, while the latter seeking to keep them in fundamentally separate domains. By describing the ‘civil philosophy’ of Pufendorf and Thomasius as competing with the metaphysical enlightenment normally associated with Kant, Hunter succeeds in showing that contemporary critical theory finds its roots in a more theological and religious ethic than is normally acknowledged: an ethic that he terms a ‘resacralization of politics’.8 The supposed secularism of an enlightenment aesthetic of subjectivity and truth in modern critical thought has not been matched by a non-transcendent, non-confessional or ‘desacralized’ development in its legal and political theory. Hunter’s analysis is important for the study of a procedural genre of jurisprudence because it describes a major philosophical trend in Western thought in terms of the distinct procedural apparatuses that continue to ‘perform’ it.

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On the one hand, a sacramental order of judgment establishes a realm of ‘truth’ through the attachment to a purely transcendent justice and is aimed at governing ‘absolute’ moral relations and relations of conscience. The civil order of judgment on the contrary concerns a realm of social power aimed instead at managing matters of civic behaviour, office and decorum. By seeking to amalgamate these orders of jurisdiction however, modern jurisprudence has attempted to co-ordinate for itself a unified moral and political centre of judgment. This serves, as Hunter puts it, to radically collapse what might have alternatively been a ‘hard-won separation of the pursuit of moral regeneration and the exercise of civil authority’.9 An aborted concern to keep the institutions and procedures of civil adjudication distinct from the theological, transcendental and sacramental arrangement of judgment in Western political and legal theory, may still affect the contemporary directions of critical studies of law.

Representation and expression: the action and reaction of judgment in Deleuze If one can locate a jurisprudential account of procedure within the methodologies of ‘critical’ theory, then this may be located most clearly in relation to the critiques of judgment. As mentioned above, the philosophical critiques of judgment reached an acute form during the enlightenment period when renewed stakes were raised for reconciling the civil and ecclesiastical constructions of subjectivity and adjudication within a secularized philosophy. The success of Kant’s organization of a transcendental and metaphysical critical philosophy,10 meant in part that the civil and procedural critiques of judgment languished in a largely technical language disconnected from their traditional theoretical source in jurisprudence. The Kantian form of critique as a result was taken to be the only—or at least the most exemplary—way of organizing the competing intellectual claims on subjectivity made by jurisprudence and theology, and the local procedural knowledges of judgment languished according to their growing dependence upon a secular State moral philosophy.11 What was contested here essentially was an appropriate genre in which to construct a critique of judgment. And what the Kantian critique achieved—and university metaphysics more generally as Hunter suggests—was to remove this problem from the domain of procedural or civil prudence: rendering the latter an empty domain of legal technicism. The performativity or choreography of judgment traditionally addressed by a ‘Law of Actions’ could be deferred to an abstract transcendental register in philosophy. It is in this context that contemporary critical legal theory encounters and inherits its intellectual accounts of the activity of judgment. We are faced with a question of whether it is possible to still construct within our technical knowledges of legal procedure a critique of judgment rivaling that of

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critical philosophy. The work of Deleuze adds a useful counterpoint to this problem. Deleuze’s critical account of judgment introduces us to the necessity for addressing a central aesthetic question in jurisprudence: the difference between the representation and expression of law. It is this difference which refers judgment to the terms of its ‘activity’ and its ‘reactivity’.12 By following a specifically Nietzschean method, Deleuze is capable of emphasizing that the Kantian philosophies remain limited to critiquing only the ‘reactivity’ in the faculty of judgment, leaving the question of its ‘activity’ entirely unanswered. ‘Kant did not invent a true critique of judgment’, Deleuze writes in the essay titled ‘To Have Done with Judgment’ in Essays Critical and Clinical, ‘on the contrary, what the book of this title established was a fantastic subjective tribunal’.13 Deleuze’s theoretical contribution to the critical and aesthetic analyses of judgment might be slightly misstated, however, by locating it solely in this short essay. ‘To Have Done with Judgment’ was a note on the styles and politics that seemed to tie together the works of four diverse authors—Friedrich Nietzsche, Antonin Artaud, D.H. Lawrence and Franz Kafka. The title is thus misleadingly prescriptive and analytic. In fact, ‘to have done with judgment’ describes a certain style or ‘literary effect’ that Deleuze admires in each of the authors he recalls in this essay rather than constituting anything more universal or all-encompassing in a critical, political or philosophical sense. In order to appreciate the kind of project expressed in the works of Nietzsche, Artaud, Lawrence and Kafka—and to appreciate what it is that makes their projects resonate with his own—Deleuze finds it necessary to postulate a so-called ‘doctrine of judgment’ to which each of their styles can be opposed. The doctrine of judgment for Deleuze works by introducing the concept of ‘infinity’ in relation to the debts and relations that constitute existence. In judgment, debts are raised to the infinite (as a being in debt to ‘God’), just as existence is immortalized in an infinite ‘time’ of judgment. This doctrine runs counter then, according to Deleuze, to a far less malicious system based on a rehearsal of affect, cruelty and becoming. In this system: Existing beings confront each other, and obtain redress by means of finite relations that merely constitute the course of time . . . One begins by promising, and becomes indebted not to a god but to a partner, depending on the forces that pass between the parties, which provoke a change of state and create something new in them: an affect . . . [T]here exists a justice that is opposed to all judgment, according to which bodies are marked by each other, and the debt is inscribed directly on the body following the finite blocks that circulate in a territory.14 This is what Deleuze calls the ‘system of cruelty’ which expresses the aversion to judgment in the styles of Kafka, Nietzsche, Artaud and Lawrence. Judgment, for instance, goes beyond the drama of enmity and cruelty. It is

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not enough to simply have enemies and to find the means of making them pay for their offences—judgment seeks individuals who are fundamentally ‘guilty’ and whose debts have become infinite before the instance of higher values, in a transcendent register and according to pre-existing criteria. It is not content in other words merely to do violence to others: judgment needs instead to render life deeply shameful and responsible. If the ‘system of cruelty’ is a system of violence against resentment, the doctrine of judgment maintains a system of resentment through the suspension and postponement of violence. Thus, to write as though one is engaged in combat rather than embroiled in war-politics; or as though one is a kind of intoxicated insomniac rather than a ‘dreamer’; to make affects rather than judgments: this is the stylistic rehearsal that Deleuze admires in his favourite authors. The critique of judgment for Deleuze is, therefore, a critique of doctrine or the critique of a certain dogmatic imagery.15 One of the central theses of Deleuze’s work is that the history of philosophy is weighed down by a dogmatic image of thought—a subordination of the power of thought to the moral forms of the ‘true’ and the ‘good’ and also a subordination of differences of thought to an abstract form of representation. Where he speaks of a ‘doctrine of judgment’ then, it is situated within the terms of this project: it is this moral doctrine which ‘[f]rom Greek tragedy to modern philosophy’16 has needed to bring thought before a tribunal in order to determine its proper orientation. The significance of Deleuze’s thesis, however, for the legal and jurisprudential accounts of judgment is more complex. Firstly, the relationship between judgment and jurisprudence is not the same as that between judgment and philosophy. If philosophy is an art of thinking for which the mode or modality we call judgment may be too ‘moral’ in its determinations; jurisprudence, on the other hand—being concerned professionally with the arts and practices of judgment itself—necessarily has different orientations and limitations to contend with. Moral thought and moral doctrine may not threaten the activity of jurisprudence in the same way that they do philosophy. If the morality of a so-called ‘doctrine of judgment’, for instance, threatens our very possibility to ‘think’ in philosophy according to Deleuze, jurisprudence, on the other hand, instead seeks to give judgment and moral sentiment a certain locus, limitation or jurisdiction. This is why Deleuze himself has not necessarily ‘done with’ judgment in the essay of the same name, but has posed the problem of its power in a new way: a way which attempts to address the relation of representation and expression in the aesthetic of judgment. The reactivity of judgment: justice represented Deleuze’s critique of judgment can be seen as an ‘expressive’ account of its forces and its power. Judgment and its values become something very different when viewed from the side of their expression as opposed to their

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representation. To understand judgment as a kind of power or expression is to take it as more than a mere subjective faculty. For Deleuze it is not primarily ‘us’ who judge existing beings according to preordained criteria of representation, but rather judgment itself which constitutes the invention of a particular style of existing, a particular arrangement of forces, a ‘machinic assemblage’ of desire and expression, that in effect describes a type of power not foreign to Western systems of value. ‘Christianity’, Deleuze writes, ‘did not renounce power, but rather invented a new form of power as the Power to judge . . .’.17 If judgment then is first of all the invention of a kind of power rather than a more or less intrinsic faculty, the problem to be posed of it is not so much formal but procedural: How has it been set up, performed, acted? In Nietzsche and Philosophy, Deleuze describes a method of interpretation which takes force—and in particular ‘active’ and ‘reactive’ force—as the source of values.18 If the power of judgment is an arrangement of values then it is given by the interaction of its active and its reactive forces—active force gives value to that which goes to the limit of what it can do while reactive force arranges value by seeking to separate active force from what it can do.19 The critique is thus situated at the level where we ask what kind of phenomenon active and reactive forces make of judgment. It is clear that judgment makes itself known much more easily and familiarly in its reactivity than its activity. Whenever we understand judgment as the application of pre-given criteria, as a moral determination or as an ‘appeal’ to certain values, we understand the connection or the affinity it has with reactive forces. Similarly, when we ascribe a ‘purpose’ to judgment, this purpose is also an expression of judgment’s reactivity: its mode of reacting and separating active force from what it can do. The fact that judgment also has an activity and expresses an active sense is something that is easily passed over within the critiques of judgment, even though—as has been suggested—the matter of judgment’s activity and performance has been the subject of a vast jurisprudential discourse on procedure. To address the subject of judgment’s reactivity is thus to address the ways in which it becomes a psychological, emotional and ‘inner’ phenomenon separated from its external modes of performance, procedure and ritualization. Deleuze describes Nietzsche’s On the Genealogy of Morality as an inventory of the inner psychological types of reactivity or of the various ways in which reactive force triumphs over active force in judgment: that is, as the forms of ressentiment, bad conscience, and the ascetic ideal.20 One of the more creative aspects to Deleuze’s interpretation of Nietzsche’s work in Nietzsche and Philosophy is the linking of these three themes with certain typological and topological formations of consciousness directly conversant with and rivaling Freud’s theory of the unconscious. Ressentiment, for instance, follows a certain reversed dynamism of repression. As a topological principle it is a kind of indigestion; an inability to have done with anything; a state in which only the reaction to traces and memories can enter consciousness.

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Thus, ressentiment is defined as ‘a reaction which simultaneously becomes perceptible and ceases to be acted’.21 As a typological principle, on the other hand, this inability to repress or forget anything describes a ‘spirit of revenge’ in the one who judges. It constitutes an endless need to blame and accuse. The man of ressentiment cannot respect or admire his enemies or his friends: unable to obtain redress, he is content to hate everything which affects him. One can see the ‘reactive’ and ‘inner’ sense this type of individual gives to the phenomenon of judgment. He does not just make judgment bear on certain individuals or groups, he makes it a necessary and fundamental part of all existence; he cannot localize judgment; he cannot give judgment its institutional locus or its locality of performance: its jurisdiction.22 How then does judgment become something ‘acted’, ‘performed’ or ‘expressed’ rather than remaining extended upon ‘perception’, ‘feeling’ and ‘sentiment’? Deleuze poses the problem of justice in Nietzsche’s work in these terms. If judgment seems to have an innate communion with reactive feeling— with ressentiment and the spirit of revenge—then the question would not necessarily be how to suppress these reactive forces but rather how in fact to ‘act’ them: to prevent them from forming the kind of community or association with other reactive forces that leaves judgment in an interior and representational dimension. In order to ‘have done with’ that social resentment of one another in the name of justice, critique must give judgment certain localizations and powers of performance; it must make judgment something capable of being acted, here and now, in this or that forum. On the other hand, when judgment is left to its reactive forces—when it becomes perceptible and ceases to be acted—justice in turn can only become an object of representation. Not only do reactive forces always work simply to represent justice (to themselves and to others); but whenever justice becomes a matter of representation it is not without the resentful sting of a deeply reactive sentiment. Part of the implication of this for Deleuze is that an art of judgment would necessarily have to take something other than the representation of justice as its object. The activity of judgment: justice expressed For Deleuze, ‘activity’ and ‘expression’ constitute a key to the relation between justice and judgment. In so far as we are content to let our judgments be a mere representation of justice and in so far as we also take the reaction and reactivity of judgment as being at the origins of a spirit of justice, then we neglect the truly active and expressive sense that gives judgment a certain power and authority. Deleuze notes that: On the one hand, revenge and ressentiment are not the origin of justice. Moralists, even socialist ones, make justice derive from a reactive feeling, from deeply felt offence, a spirit of revenge or justiciary reaction.

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But such a derivation explains nothing it would have to show how the pain of others can be a satisfaction of revenge, a reparation for revenge . . . Justice is the generic activity that trains man’s reactive forces, that makes them suitable for being acted and holds man responsible for this suitability itself. To justice we can oppose the way in which ressentiment and then bad conscience are formed: by the triumph of reactive forces, through their unsuitability for being acted, through their hatred for everything that is active . . . Thus ressentiment, far from being at the origin of justice, is ‘the last sphere to be conquered by the spirit of justice . . . The active, aggressive, arrogant man is still a hundred steps closer to justice than the reactive man.’23 What constitutes the activity and performance of judgment? The problem is a delicate one because when we recognize judgment’s activity in history Deleuze notes, it appears decidedly unjust, stupid, brutal, inverted. The history of judgment’s performances, as we have seen, is the history of a cruel and morbid arrangement of torture, ordeal and inquisition. This, however, would not be an inadequacy inherent to the performance of judgment itself but an inadequacy of history for thinking this performance. History attaches judgment to the reactive ends pursued by States, churches, empires, etc. The real activity of judgment, on the other hand—according to Deleuze—does not have an historic meaning but at most a ‘pre-historic’ meaning and a ‘post-historic’ meaning. In its pre-historic meaning, judgment’s activity is exercised on the reactive forces themselves, to train them and to render them capable of being acted. Judgment’s activity is in this sense ‘the labour performed by man upon himself during the greater part of the existence of the human race, his entire prehistoric labour . . . notwithstanding the severity, tyranny, stupidity and idiocy involved in it’.24 We must imagine the activity of judgment as having been selective and ruthless, but ruthless only in relation to humanity’s reactive forces and with regard to the pettiness of human sentiment and ill-disposition— aimed at creating an individual who can finally act his or her reactive forces. This briefly is the ‘post-historic’ sense: the activity of judgment is usurped by the product of the activity—an ‘autonomous and supramoral’25 individual who, being no longer responsible to any tribunal, is fit to be authentically irresponsible. The activity of judgment is indeed aimed at ‘holding responsible’, but whereas history gives us individuals held responsible for their actions by institutions that set down petty laws designed at self-preservation, the activity of judgment holds the human species responsible on the contrary for its reactions, for its ‘established values’, for its resentments and morality. Nietzsche indeed invites us to consider the kind of shame involved for noble peoples in obeying and submitting to the ‘law’.26 The activity of judgment ‘shames’ but shames humanity for all of its reactive states: its ‘reason’, its ‘obedience’, its ‘peace’, its ‘compassion’, etc. These, Nietzsche imagines, are the forms

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under which judgment would become something simultaneously perceptible and yet cease to be acted or performed. Judgment must be given its jurisdiction or its forum of performance: it must have a certain dramatic localization in order for it to remain an activity rather than just a reactive sentiment. And justice lies not in the general functioning of these forums as tribunals of judgment—giving the sovereign force of expression to reactive and ‘popular’ sentiment—but in the selective movement by which such reactivity is forced to pass into the field of its dramatization and becoming held thereby responsible for its reactivity. The aesthetic relation between justice and judgment is styled by Deleuze therefore as a relation of expression. To say that the activity of judgment makes justice something ‘expressed’ does not just mean that justice has to be said or spoken in judgment, it also means that if there is a relation between judgment and justice—or if there is a relation of justice within judgment— it is not a relation of representation but a relation of expression. We can be sure that when judgment becomes simply the means of representing what is just; when we are content to make ‘just’ judgments which please us in consciousness, then we have also botched the problem of how simply to act judgment, how to invent an activity for judgment—an activity which, however cruel, may still be ‘one hundred paces nearer to justice’.27 It does not concern the authority of what is said, its rationale, signification and its analogy with other judgments, etc; it concerns the staged authority of saying it, the intensity in becoming the one who says it, the ‘tonality of the soul’, to borrow Pierre Klossowski’s phrase, of the one who does it.28 If justice is, in this way, a fundamental affect in the art of judgment, then it does not belong to judgment’s various outcomes, remedies, rationalizations and representations— it belongs simply to the process by which judgment becomes an object of performance. All of this places a renewed importance on the jurisprudential accounts of procedure; not so much in terms of the rules for accessing a particular ‘justice system’ but rather in the way in which it is procedure which addresses the problem of the legality of judgment in terms of its expression. The ‘Law of Actions’ is not concerned with the philosophical question: ‘What is the truth or logic of this or that case/drama?’ but with the jurisprudential question which asks conversely: ‘What are the cases which dramatize this or that logic or truth?’.

Judgment, critique and procedural forms The source of an answer to this form of question in modern jurisprudence remains difficult to unravel. In large part, the significance of particular procedural forms of legality to the critical analyses of judgment has been methodological rather than substantive. On the one side, as previously noted, the metaphysical accounts of judgment—by transcendentalizing and internalizing the conditions of judgment and subjectivity—in turn relegated

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the civil procedural and jurisdictional matters of judgment to a relatively nontheoretical technicism. The result is that the genres of jurisprudence which traditionally attended to the theory and technology of procedure are now usurped by on the one hand a modern legal-institutional technicism and on the other hand an increasingly metaphysical theoretical critique of the faculty of judgment. The fact that procedural matters continue to organize and modify the local, authoritative and institutional limits of judgment means that to deny them a more methodological place in the theory and critique of law would be relatively fatal for a discipline of jurisprudence which would not simply be reduced to the function of rationalizing mechanical State law-making. This discipline can afford to have a renewed interest in the technical invention and innovation behind various forms of juridical procedure and their connection to pragmatic limitations in the activity of judgment. Deleuze’s contribution to this field is to have highlighted the stakes involved in treating judgment from the side of its activity rather than its reactivity. The specificities of this method, however, no doubt have a more local and fragmented determination. In the following sections, the works of two further French theorists of law are enlisted to build upon Deleuze’s critique of judgment. Both Pierre Legendre and Michel Foucault show an interest in addressing the connection between judgment and the formation of subjectivity through an analysis of juridical procedure. The differences between their approaches may therefore trace further contours to what might be seen as a modern procedural genre of jurisprudence.

Internal and external jurisdictions in the work of Legendre Jurisdiction may be said to limit judgment to a particular forum in which it is ‘acted’. For Pierre Legendre, however, the language of jurisdiction has become relatively disconnected from an account of the office and site of judgment in modern sociological discourse. This has posed a deep-seated problem for the scholarship regarding the institutional transmission of forms of authority. A diffusion in the function, role and procedure of ‘judgment’ in modern scientific and social disciplines, for instance, has corresponded to a weakening and neglect in the technical and aesthetic dimensions of jurisdiction, putting us in a precarious intellectual position regarding law’s places of articulation.29 This problem for Legendre, as he puts it, ‘concerns an issue of considerable political importance: how does one discern the position of the judge amongst all those who contemporarily seek to invest ultra-modern society with the function of judging’.30 It is a difficulty that Foucault also associates with an attempt to situate the activity of judgment in contemporary society. The fact that ‘the activity of judging has increased precisely to the extent that the normalizing power has spread . . .’31 means for Foucault that it is at the same time easier to locate and yet more difficult to localize

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our judges. ‘The judges of normality are present everywhere. We are in the society of the teacher-judge, the doctor-judge, the educator-judge, the “social worker”-judge; it is on them that the universal reign of the normative is based . . .’.32 For Legendre, this problem concerns the theoretical work of jurisdiction, since it is jurisdiction that describes and analyzes the arrangement of forums through which judgment takes place. Legendre understands the concept of jurisdiction in the Latin Christian sense of ‘interdiction’—the ritual connection between the institution of normative categories of judgment and the ‘structuration of the subject’.33 This understanding of the importance of the work of interdiction to socio-normative arrangements is also therefore broadly psychoanalytic and structuralist in its method.34 Jurisdiction—as the ‘act of stating the law’35—addresses the terms of the subject’s attachment to, and authentication within the affective montage of State authority. Recounting the particular arrangement of jurisdiction in canon law of European Catholicism, Legendre divides this jurisdictional montage into two forums or tribunals: ‘one jurisdiction is exercised by what is called the external tribunal (for externe), and the other by an internal tribunal (for interne)’.36 The difference between internal and external tribunals is a difference that does more than describe the way religious and civil powers were ordered in European juridical procedure. It also serves as a hinge that reveals the common root to both the (European) form of ‘State’ jurisdiction that has come to dominate the contemporary account of social and juridical competence as well as the modern philosophical accounts of subjectivity. The internal tribunal, to start with, is a confessional and penitential forum. This means that its action and procedure is directed toward the staging and management of an internal relationship of guilt and the production of a ‘penitential dialogue’. The judge in the internal tribunal occupies a sacramental position with respect to the penitent and plays the role of a confessor: a mediator of the debt of a subject in her or his relationship to God. The internal tribunal is thus a forum of attachment and authentication of the ‘self’ through the foundational discourse of a transcendent or unpayable debt. It is also a forum for the judgment and investigation of the ‘soul’: a court of conscience. The purpose of the internal tribunal is to articulate and introduce the subject into the heritage of original sin and therefore stage the dimensions of its attachment to the forms of truth and justice. The external tribunal on the other hand is a social and civil forum. The judge in the external tribunal occupies an ‘official’ position rather than a ‘sacramental’ position. Whereas the sacramental position of judgment is aimed at articulating the debt owed by the subject in its relation to God and truth, as a confessional management of guilt, the office of judge in the external tribunal is characterized by a duty to mediate the debts owed between adversaries. The external tribunal is typified therefore by the dramatic structure of a public, civil and adversarial dialogue. According to Legendre this

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procedural dramatization follows—in modern States—the form of the ‘ritualized trial as an “act with three persons” ’.37 The judge acts, in other words, to triangulate the structure of social and political interaction, introducing a ‘third’ mediating term in relation to which the adversaries in this field will appear to be dealt with on equal footing. The external tribunal manages law and normativity as the outward forms of socio-political tension rather than the inward tensions of subjective conscience. Legendre insists that these two tribunals exercise two fundamentally different kinds of jurisdiction. The internal forum exercises a jurisdiction over the subject and its relations of filiation (parent–child relations); the external forum exercises a so-called ‘social jurisdiction’ and manages relations of alliance (friend–enemy relations). If in modern secular States, therefore, the juridical notion of jurisdiction is given a relatively clear definition only in relation to social or civil forums, the problem of what happens to the internal tribunal, the confessor-judge and the institution of his jurisdiction over the subject remains relatively abstract. We find that the secular State has not abolished the penitential tribunal but has rendered it more diffuse, more difficult to pin-down within particular State apparatuses. Far from being liberating or secularizing in any sense then, Legendre argues that the loss of an intellectual account of the penitential jurisdiction and its ritual staging of conscience in secular modernism is more politically totalitarian than what might first appear. It threatens to leave the function and position of interpretation and judgment regarding the matter of the subject’s relation to guilt unmanaged and unlimited: The idea of jurisdiction, which we have glimpsed in its two historical branches . . . created a common basis for all those concepts which relate to the regulation of the subject of speech in the civil law ‘civilisations’. The kind of problem which this history poses is not that of comprehending the future or fate of confession, but is rather and more significantly that of circumscribing the elements of the following question: in so far as he is called to manage the power of life and death over the subject, what has become of the office of the judge?38 If the meaning of jurisdiction has been weakened in contemporary society, Legendre suggests that it has been because we have a poor understanding of the connection of the subjectivity of judgment to the offices that circumscribe its social performance. This lack of attention to the formal genres of jurisdiction—genres which fashion or style the various dramatizations of judgment—puts us in an impoverished position as legal scholars and as social scientists. Legendre’s analysis of the two classical branches of jurisdiction in Christian medieval Europe highlights an important tension, therefore, in the relation between the ritual and procedural dimensions of judgment and subjectivity and provides the framework for addressing this tension within

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the technical idiom of jurisdiction. It becomes clearer to what degree the theoretical interest in the historical and technological powers of judgment can be brought to bear on the contemporary description of jurisdictional forms: forms which respond to the strictures of legality and its performance. The technical legal field of jurisdiction remains abstract without an account of how the power to judge may be staged and reinvented.

The procedures of the test and the inquiry for Foucault Legendre’s concern with jurisdiction and the technicalities of procedure is a concern about the function and office of the judge with respect to the structuration of subjectivity. Procedural jurisdictional forms thus describe for Legendre the technical outline to a classical seat of judgment that is essentially inviolable and which modern jurisprudence should attend to. Judgment is reconstructed according to a jurisdictional template since ‘[i]t is not the content of a decision which makes the decision, but rather its inscription in the forms, which gives it an oracular status’.39 Michel Foucault’s particular engagement with procedural jurisprudence nevertheless had already taken an important turn away from the interpretive, speculative or symbolic theories of legal meaning. His approach was concerned not necessarily with the procedures that define the traditional office of judgment, but with the procedural devices through which judgment becomes performed as well as negotiated or constructed. In a series of lectures titled ‘Truth and Juridical Forms’, Michel Foucault outlines the direction of a certain kind of critical project regarding judgment and subjectivity.40 The project takes aim at the transcendental philosophies of the subject—in the philosophical legacies, for instance, of Descartes and Kant—seeking to critique the proper orientation to the history of institutions that the idea of a ‘universal subject’ has constructed in Western thought. The means of this critique is to offer an historicization and genealogy of specific formations of subjectivity itself. One of the sites for witnessing how different forms of subjectivity have arisen is through analyzing the history of juridical practices and procedures. Thus, rather than attaching historical specificities to an otherwise stable, abstract and rational subject of truth and judgment, Foucault’s task is to show how particular procedural forms of law function as the unstable arrangements defining the various ‘games’ and ‘practices’ of judgment and truth: Judicial practices, the manner in which wrongs and responsibilities are settled between men, the mode by which, in the history of the West, society conceived and defined the way men could be judged in terms of wrongs committed, the way in which compensation for some actions and punishment for others were imposed on specific individuals—all these rules or, if you will, all these practices . . . seem to me to be one of the

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forms by which our society defined types of subjectivity, forms of knowledge, and, consequently, relations between man and truth which deserve to be studied.41 Foucault does not suggest that an historical analysis of juridical procedure is anything like a new genre of academic study. The modern English legal academic tradition, for example, already had its own sophisticated historical accounts of procedure such as Frederic William Maitland’s ‘The Forms of Action at Common Law’ which sought to recover and describe the dimensions to a recently abrogated organization to procedural jurisprudence.42 But just as Maitland’s interest in the history of procedure was more than a simply historical curiosity but more fundamentally an interest in the immediate fate and crisis of common law knowledge, Foucault’s is an attempt to situate the historical analysis of juridical procedure firmly in the context of the problematical philosophical critiques of judgment. Foucault invites us to consider that before one can make use of a philosophical concept of judgment—and before we have the kind of judgments that attest to philosophical truth—one first has the invention of certain procedural forms. And the history of procedural juridical techniques speaks to the active dimensions to the institution of forms of subjectivity and knowledge. Like Deleuze, Foucault’s interest in procedure is not primarily historical. There is something in the history of procedural forms that subverts our appreciation of the way in which these forms constitute the invention of a particular activity for judgment. Foucault wants to salvage this ‘active’ element to local procedural juridical knowledge from the historical discourses that would subordinate this element to the ends made of procedure by reactive State institutions. Foucault’s historical analysis speaks less then to academic historians who have an interest in safeguarding the truth to a ‘version of events’, than to those for whom judgment itself (backed by the force of history) forms a sort of technical impediment or stumbling-block in relation to a simple practice of living. This is why Foucault does not tire of or lose fascination with the minor, cruel and ‘mean’ juridical procedures which he nevertheless describes with the meticulousness of a technician: We see the meanness, then, of all these small beginnings as compared with the solemnity of their origin as conceived by philosophers. The historian should not be afraid of the meanness of things, for it was out of the sequence of mean and little things that, finally, great things were formed. Good historical method requires us to counterpose the meticulous and unavowable meanness of these fabrications and inventions, to the solemnity of origins.43 In ‘Truth and Juridical Forms’, Foucault identifies two crucial forms of procedure in the juridical practices of Europe: the ‘test’ and the ‘inquiry’; and relates these to the production of certain kinds of subjectivity. These two

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forms do not necessarily follow a certain historical progression such that the test would simply be a more ‘archaic’ procedural mechanism than the so-called system of inquiry. In effect, both forms have to be invented and re-invented and neither of them expresses the development of a more or less advanced technology. The significance of their distinction for Foucault is strictly pragmatic. It may also be important philosophically, but foremost it is a practical procedural distinction, the kind which lawyers are often required to set out for their clients when they suggest that ‘there are two kinds of procedure one can pursue’ or ‘two tactical avenues of proceeding’. The test is a way of resolving disputes over rights by way of a certain game of ‘strength’. To choose the procedure of the test then is to ‘wager’ one’s right; risk one’s authority or one’s strength in combat. The Germanic customs of trial by battle, ordeal and wager of law for instance implicate something of this form of procedure.44 The test is not aimed at finding out the ‘truth’ per se of what happened, but simply doing justice to a situation of conflict through staging the local dimensions of authority. Foucault says that judgment in the test does not separate truth from untruth, but only victory from defeat. Its invention was a means of confining and limiting the violence of retribution to a privileged ‘dramatic’ instance: The judicial test was a way of ritualizing war or of transposing it symbolically. It was a way of giving it a certain number of secondary, theatrical forms, so that the stronger would be designated thereby as the one who was right . . . The test was a mechanical executor of the law, a commutator of force into law, a sort of gearing that enabled the shift from force to law . . . [I]t didn’t have the function of designating or manifesting or discovering the truth. It was a legal device, and not a truth device . . .45 It is not necessary to speculate on whether or to what extent the parties to these forms of trials actually believed the procedures to accurately represent truth and justice. The procedure itself has a use, a function and it operates a kind of selection on those who come before it. The selection is in other words not that of the just from the unjust, the right from the wrong, but of those willing to take the test from those who are unwilling. The test is of the strength of one’s oath, of one’s conviction, authority and authenticity. It therefore follows the formula that whoever is right is the one who has greater authority and the subject finds his or her relation to authority staged within this kind of ‘ordering’—the stronger for instance in the order of the test coincides with the more just in the order of rights. The inquiry, on the other hand, constitutes a very different procedural mechanism than the test. With the inquiry it is no longer a matter of gauging the relative strength of the parties and their oaths but of getting to the bottom of a public matter. The inquiry seeks the objective ‘truth’ of a situation by

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calling forth witnesses with special or specialist knowledge regarding an event rather than those who can personally ‘vouch’ for the standing of the participants. It also shifts the office of judgment to a more ‘popular’ or common tribunal. Matters that were simply private wrongs or disputes between conflicting parties under the procedure of the test for instance, become with the inquiry matters of purely public and sovereign concern. The procedure of the inquiry has the task not just of resolving the issue between the parties themselves but of resolving the issue for the entire inquisitive apparatus of public power. As a consequence, with the inquiry one becomes interested in new kinds of wrongs: ‘infractions’ or ‘transgressions’ of the law, which are no longer just wrongs against individuals but wrongs against power itself; against the State and against law. Foucault notes, however, that the procedure of the inquiry did not begin with Christian thought and, indeed, does not just have a single historical time of invention. Along with its development out of medieval juridical practices, he also locates it in the dramatic literature of ancient Greece. The tragedy of Oedipus the King, for instance, is for Foucault one of the chief works in the (re-)invention of the procedural form of the inquiry. What Sophocles’ play did for the people of Athens, for example, was to present back to them the idea of a kind of truth that was not assimilated to or calibrated with political power or authority. While it was not customary for the ancient Greeks to distinguish between the determination of truth, on the one hand, and the power, authority and standing of the one who declares it, on the other hand, in Oedipus the King Sophocles presents a theatrical inversion of this principle. Instead of political power being co-extensive with the determination of ‘right’, the play makes it apparent that the strongest and most powerful can be ‘cut down’ by a kernel of truth that may exist as a missing fragment of evidence in the narrative of power. There is an ‘other half’ of the story— that accursed fact that Oedipus is the son of Laius and Jocasta—which is borne by the fortuitous memory of certain politically insignificant characters but which can nevertheless by ‘coming to light’ dethrone the most powerful individual. The form of the inquiry addresses ‘truth’ not in relation to political authority but as a matter of recovering the fragments of narrative, fitting the missing parts together, etc; and this form is, according to Foucault ‘one of the great conquests of Athenian democracy: the story of the process through which people took possession of the right to judge, of the right to tell the truth, to set the truth against their own masters, to judge those who governed them’.46

Procedural tactics: combat, protraction . . . Foucault and Deleuze are united in the particular way in which they are interested in jurisprudence, juridical procedure and the ‘activity’ of judgment. Judgment does not have a universal meaning or value—nor does it have even

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a classical or traditional faculty. There are no origins to judgment (whether metaphysical or phantasmatic); only its ‘invention’ as a kind of power; as a technical contrivance. ‘It was only gradually that the gods and men together raised themselves to the activity of judging—for better or for worse, as can be seen in Sophocles’ plays’.47 This is why procedural jurisprudence is essentially—as it was in the ‘Law of Actions’—a survey, a theory and a technical knowledge of certain tactics that, rather than constituting the function of judgment, reveal to us the various ways of getting-around it. ‘There is knowledge’, Foucault supposes, ‘only insofar as something like a single combat, a tête-à-tête, a duel is set up, contrived, between man what he knows’.48 Tactics, if they are the subject of jurisprudence, are not ‘official’ or formal procedures. They belong, as one author puts it, to the ‘knowledge or science of maneuvering’.49 What characterizes a procedural tactic is not necessarily that it is based outside of the official rules of procedure but that it defines a locally practiced way of managing and navigating one’s path within these rules. A tactic is a way of proceeding that does not refer to or constitute a complete procedural ‘forum’ or ‘tribunal’ as such. This area of juridical knowledge, as mentioned, no longer has the same centrality to the genres of jurisprudence as it once did. Procedure nowadays refers to a simple efficiency and regularity of proceeding in the courts; while ‘tactics’ commonly refers to the various lawyerly ways of diverting or frustrating what would otherwise be a proper ‘course of justice’. All of this has meant that a tactical procedural basis of modern jurisprudence is conspicuously underdeveloped or that problems of tactics do not often get raised today to the level of theoretical significance. For this reason, the directions in which to seek out a jurisprudential treatment of procedural tactics need not be obvious or conventional. Deleuze is fond of noting, for instance, how a modern theoretical arrangement of procedure is set out in Franz Kafka’s The Trial according to two tactical juridical concepts: apparent acquittal and protraction.50 What makes these concepts ‘tactical’ rather than formal is that both mechanisms are aimed only at managing the procedural apparatus itself and do not concern the matter of its outcomes or objects: its verdicts. The procedures are equally opposed to reaching an acquittal as they are to reaching a conviction. ‘Apparent acquittal’, for example, according to one advocate trying to explain the functioning of the mysterious court system in Kafka’s novel, is a tactic of having the trial end and begin again repeatedly—instead of being actually acquitted, one might follow the tactic of an ‘apparent’ acquittal which brings the trial to an end but in the certainty that it will start up again at some stage without notice. ‘Protraction’, on the other hand, is the tactic of keeping the trial always in its preliminary stages: drawing it out, managing its small performative elements, etc. It is in this sense that both tactics are situated not as structures or forums of judgment but as the avenues by which one maneuvers around judgment, ‘de-totalizing’ its verdicts and keeping it constantly at arm’s length.

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In ‘To Have Done with Judgment’, Deleuze describes this texture of procedural tactics in Kafka as a kind of ‘combat’. It is combat which ultimately serves as a counter to the doctrine of judgment. ‘Thus, all of Kafka’s works could be entitled “Description of a Combat” . . . All gestures are defenses or even attacks, evasions, ripostes, anticipations of a blow one does not always see coming, or of an enemy one is not always able to identify’.51 Deleuze cautions not to confuse the procedural tactic of combat with the form of a ‘judgment of God’. As with the Germanic procedures: the battle, the combat, oath or ordeal are not reducible to the judgment of God which would apportion the resulting victory and defeat, since for Deleuze the procedural set-up is itself devised precisely as a means of excluding judgment as well as God. Combat is in this sense always nothing more than a tactic, a maneuver, a mere posturing in relation to the procedures of judgment. It is a figure for the tactical arrangements of power one garners as a pure counter-system of judgment: jurisprudence. In summary, the ‘Law of Actions’ and civil procedure are important elements in a theoretical account of legal power, jurisdiction and judgment. This importance, however, has not been commonly acknowledged within either legal or critical theory. As a consequence, the genres of jurisprudence attending to the procedural domain of law have remained largely technical, while the theoretical critiques of judgment and subjectivity—and critical theory more generally—have become only increasingly metaphysical. The reading of Deleuze in this chapter has suggested that a reconciliation of critical theory with its somewhat ‘discontinued’ genres of procedural jurisprudence would call for a renewed attention to the dramas and activities of judgment. In the following chapter, this mode of analysis is taken up again in relation to a specific case study relating to one particular procedural form of judgment. Rather than speaking to the ‘reasons’ or ‘rationality’ of judgment, the concluding chapter in this part of the book attempts to recover its procedural techniques and ‘know-how’ as part of a jurisprudence of actions.

Notes 1 Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of the Common Law, 1509 –1625 (Chicago, IL: University of Chicago Press, 2007), p. 11. 2 See Carl Schmitt, ‘The Plight of European Jurisprudence’ (1990) 83 Telos 35–70. 3 See Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (London: Continuum, 2004). 4 See, e.g. Thomas Glynn Watkin, An Historical Introduction to Modern Civil Law (Aldershot: Ashgate, 1999); Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 1999). 5 Henry Sumner Maine, Dissertations On Early Law and Custom, Chiefly Selected From Lectures Delivered at Oxford (New York, NY: H. Holt and Co., 1883), p. 389.

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6 Consider, for instance, the historical development of the procedures in the determination of law and of fact in the common law and their merging together into a single moral perspective of authority. See S.F.C. Milsom, ‘Law and Fact in Legal Development’ in Studies in the History of the Common Law (London: Hambledon Press, 1985), pp. 171–189. 7 Frederic William Maitland, The Forms of Action at Common Law: A Course of Lectures by F. W. Maitland (Cambridge: Cambridge University Press, 1936), p. 9. 8 Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), p. 366. 9 Ibid, p. 376. 10 See Immanuel Kant, Critique of Pure Reason, Trans. Marcus Weigelt (London: Penguin Books, 2007); Immanuel Kant, Critique of Practical Reason, Trans. Werner S. Pluhar (Indianapolis, IN: Hackett Publishing, 2002); Immanuel Kant, Critique of Judgment, Trans. James Creed Meredith (Oxford: Oxford University Press, 2007). 11 See, especially, Ian Hunter, Rival Enlightenments. 12 These terms are brought to the fore in Deleuze’s interpretation of Nietzsche’s work in Gilles Deleuze, Nietzsche and Philosophy, Trans. Hugh Tomlinson (London: Continuum, 2002). The particular critique of judgment explored in this section follows the schematic developed in this study. 13 Gilles Deleuze, ‘To Have Done With Judgment’ in Essays Critical and Clinical, Trans. Daniel W. Smith and Michael A. Greco (Minneapolis, MN: University of Minnesota Press, 1997), pp. 126 –135, at 126. 14 Ibid, pp. 127–128. 15 See, also, Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (London: Continuum, 2004), Chapter 3, pp. 164 –213. 16 Deleuze, ‘To Have Done with Judgment’, p. 126. 17 Ibid, p. 127. 18 Deleuze, Nietzsche and Philosophy. 19 Ibid, p. 57. 20 Ibid. Deleuze writes, ‘Nietzsche devotes a whole book to the analysis of the figures of reactive triumph in the human world – ressentiment, bad conscience and the ascetic ideal’. Elsewhere, Deleuze will describe these psychological types as the slave, the tyrant and the priest. See Gilles Deleuze, ‘Power and Classical Natural Right’, Lecture delivered at Vincennes, 9 December 1980, Trans. Simon Duffy, available at <www.webdeleuze.com> (accessed 1 May 2008). 21 Deleuze, Nietzsche and Philosophy, p. 114. 22 ‘Bad conscience’ and the ‘ascetic ideal’ are for Nietzsche the other two ways of dealing with the reactivity of judgment. Bad conscience is the ‘turning back’ of the reactive force of ressentiment against oneself: the hyper-production of pain and guilt feeling, while the ascetic ideal relates the reactive force of judgment to its proper sphere of power: that is, as nihilism or the will to nothingness. The story of the reactivity of judgment is therefore the story of nihilism; a story of the poisonously inventive ways in which humans would prefer to will nothingness than to not will. See, especially, Friedrich Nietzsche, On the Genealogy of Morality, Trans. Maudemarie Clark and Alan J. Swensen (Indianapolis, IN: Hackett Publishing, 1998). 23 Deleuze, Nietzsche and Philosophy, pp. 135 –136. 24 Nietzsche quoted in ibid, p. 133. 25 Ibid, p. 137. 26 See Nietzsche, On the Genealogy of Morality, p. 81, ‘For a long time the “law” appeared . . . as [a] force, to which one could not yield without feeling ashamed

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of oneself . . . [I]t is now becoming almost impossible for us to empathize with those enormous stretches of time characterized by the “morality of custom,” which lie before “world history” as the real and decisive principal history that established the character of humankind: when suffering counted everywhere as virtue, cruelty as virtue, dissimulation as virtue . . . on the other hand well-being as danger, desire for knowledge as danger, peace as danger, compassion as danger . . .’. Ibid, p. 49. See Pierre Klossowski, Nietzsche and the Vicious Circle, Trans. Daniel W. Smith (London: Continuum, 2005), p. 47. See, especially, Pierre Legendre, ‘The Judge Amongst the Interpreters: Psychoanalysis and Legal Judgment’ in Pierre Legendre, Law and the Unconscious: A Legendre Reader, Trans. Peter Goodrich, Alain Pottage and Anton Schütz (New York, NY: St Martin’s Press, 1997), pp. 164–210. Ibid, p. 177. Michel Foucault, Discipline and Punish: The Birth of the Prison, Trans. Alan Sheridan (London: Penguin Books, 1991), p. 304. Ibid. Legendre provides another slant to this sentiment when he notes, ‘It is necessary initially to recognize the extent to which multiple interferences between classes of interpreters who contemporarily practise law or claim as a matter of fact . . . to exercise the function of judging, has weakened the meaning of jurisdiction. It is a question of deciphering this world of interpreters, that of Justice (in its legal sense), but also that of the various psychological disciplines, the practitioners of Social Action and the various interventionist agencies of the Welfare State. How are we to place ourselves amongst these forms and dismemberments of the classical function of Justice?’, Legendre, Law and the Unconscious, p. 169. Legendre, Law and the Unconscious, p. 166. For a reading of Legendre’s work in relation to psychoanalytic theory, see Peter Goodrich, ‘Introduction: Psychoanalysis and Law’ in ibid. Note, however, Legendre’s criticism of the dogmatization of Lacan’s work in France. Ibid, p. 170. Ibid. Ibid, p. 172. Ibid, p. 177. Ibid, p. 202. Michel Foucault, ‘Truth and Juridical Forms’ in James D. Faubion (ed.), Power: Essential Works of Foucault 1954 –1984, Vol. 3 (London: Penguin Books, 1994). Ibid, p. 4. Maitland, The Forms of Action at Common Law. On the history of procedural law in England, see, also, Melville Madison Bigelow, History of Procedure in England from the Norman Conquest: The Norman Period (1066–1204) (South Hackensack, NJ: Rothman Reprints Inc., 1972); Robert Wyness Millar, Civil Procedure of the Trial Court in Historical Perspective (New York, NY: The Law Center of New York University, 1952). Foucault, ‘Truth and Juridical Forms’, p. 7. On trials by battle, ordeal and jury, see, especially, Piyel Haldar, ‘Words With the Shaman: On the Sacrifice in Criminal Evidence’ in Shaun McVeigh, Peter Rush and Alison Young (eds), Criminal Legal Doctrine (Aldershot: Ashgate, 1997), pp. 104 –126. Foucault, ‘Truth and Juridical Forms’, p. 39. Ibid, p. 33. Deleuze, ‘To Have Done With Judgment’, p. 128. Foucault, ‘Truth and Juridical Forms’, p. 14.

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49 Alain Frécon, ‘Delaying Tactics in Arbitration’ (2004) 59 Dispute Resolution Journal 40 –52, at 52. 50 See Franz Kafka, The Trial, Trans. Idris Parry (London, Penguin Books, 1994), pp. 120 –129. The introduction of these concepts in Kafka’s novel is in the setting of K’s meeting with the painter. The painter informs K of the various procedural avenues he can pursue in relation to his trial which he names: actual acquittal, apparent acquittal and prolongation. 51 Deleuze, ‘To Have Done with Judgment’, p. 132.

Chapter 8

The jurisdiction of control: judgment and procedural forms in Thomas v Mowbray

This chapter begins by asking the question: whether it is possible to read legal judgment through the lens of its procedural forms. In the case of Thomas v Mowbray, the High Court of Australia deemed the procedural form constituting an ‘interim control order’ under the Criminal Code to be constitutionally valid. The jurisdictional issues in this case are analyzed alongside a history of the practices and instrumentality of legal judgment. The form of the interim control order is shown to modify the jurisdiction of the court in a significant way.

Common law scholarship often takes the interpretation, commentary and analysis of judgments as a central mode of its science. Judgment provides not just the subject but also the texture of legal knowledge and knowing how to make use of the genres and categories of judgment is part of the practical terrain of juridical authority. It is relatively surprising then that legal scholarship in common law jurisdictions—while treating the text of judgment as a privileged source of law—has been content to leave the procedural accounts of legal judgment and its performance to a relatively non-theoretical discourse. Judgment remains a primary representational form of common law for instance, yet an account of its modes, functions, practices, technologies and ‘instrumentality’ has had a relatively limited place in the field of modern jurisprudence. As a result, legal scholarship finds itself increasingly attuned to reading the moral philosophies of judgment while often passing over its technical or procedural jurisdictions. This chapter continues with a hypothesis that was developed in the previous one: that Deleuze’s philosophy implicates an approach to judgment and case law that renews a critical knowledge of their procedures or procedural forms. To read the text of judgment in terms of procedure means acknowledging the practices and ‘games’ according to which judgment becomes something capable of being performed or expressed. The authority that attaches to legal judgment then is composed of more than its reasons, logics and outcomes. More importantly, there is the instrument or technical envelope that mediates its force and authority in the social terrain. From this perspective,

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judgment and its reasoning might still constitute only types of reaction while it is procedure which constitutes the activity, the creativity and the innovation in its form.1 We may be capable of making a more creative use of law then, if we acknowledge that legal judgment is not just a representation of certain moral or ethical sentiments, but that it also has an ‘instrumentality’ and it is this instrumentality that speaks to the modes of law’s authorization. The case study which informs the analysis in this chapter concerns one particular contemporary procedural form of judgment: the ‘interim control order’. Interim control orders were introduced into the procedural repertoire of legal governance in Australia by the Federal government as instruments designed to regiment, organize and track the day-to-day lives of those whose existence could be said to pose a threat to the public with respect to the possibility of a ‘terrorist act’. The validity of the statutory basis for these orders was contested before the High Court of Australia in the case of Thomas v Mowbray.2 In reading the judgment in Thomas v Mowbray, the aim in this chapter is not to provide an exhaustive analysis of the normative constitutional issues raised by that case, but to present a relatively alternative narrative concerning judgment and its textual practices. This analysis aims to highlight a jurisprudential issue that the court finds somewhat difficult to address, that is: What kind of authority does the form of the instrument of ‘control’ carry within the repertoires of judgment or how might one describe the procedural element to the art of completing and authorizing an ‘interim control order’? Deleuze’s work is again drawn upon in this context to implicate the contours of a society for which ‘control’ as a procedure might describe a broader or deeper structure of jurisdictional relations. This analysis presents a theoretical account of how the procedural form or instrument described by the ‘interim control order’ alters the jurisdiction of common law and its practices of judgment.

‘Judicial power’, jurisdiction and procedural form in Thomas v Mowbray In 2003, the Australian Federal parliament enacted amendments to the Criminal Code Act 1995 (Cth) (‘Criminal Code’) intended to deal more effectively with what was perceived to be a growing threat of ‘terrorist’ activity.3 These laws included a number of specific conventional offences such as directing,4 being a member,5 recruiting,6 financing,7 receiving training or funds from a listed terrorist organization,8 etc. In addition to these, however, the amendment gave the Federal Magistrates Court—upon the application of a member of the Australian Federal Police—power to directly issue ‘interim control orders’ on individuals for the purpose of ‘protecting the public from a terrorist act’.9 This provision for the issuing of ‘control orders’—which was specified under Criminal Code, Division 104—created a particular form of federal judicial procedure the aim of which was neither the determination of

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criminal guilt nor civil liability, but the temporary determination of a juridicized relation of surveillance and control. As part of the procedural technologies of State power, the ‘interim control order’ purported to institute a form of life and to address a form of activity which the more traditional juridical procedures were apparently ill-equipped to deal with. The only stipulated criteria for the issuing of such an order required the Federal Magistrate to assess whether the obligations, prohibitions and restrictions of the order were ‘reasonably necessary, and reasonably appropriate and adapted’, on a balance of probabilities, for achieving the particular purpose of protecting the public from a terrorist act.10 The kinds of restrictions and requirements imagined in the amendment were diverse and included such things as: restrictions on being at specified areas or places or obligations to remain at specified premises at certain times;11 communicating with certain individuals;12 accessing particular forms of technology such as the internet;13 and carrying out specified activities (including those in respect of the person’s occupation).14 Other possibilities included the requirement of wearing a tracking device;15 of reporting to specified persons at certain times;16 and of allowing oneself to be photographed and fingerprinted.17 As a formal instrument in the jurisdiction of Australian federal criminal law, an interim control order could contain any combination of these ongoing requirements irrespective of the existence or stage in the development of other formal civil or criminal proceedings. Joseph ‘Jack’ Thomas was issued with an ‘interim control order’ on 27 August 2006. Without having been convicted of any offence, he had already been imprisoned three times in the previous four years: once in Pakistan without charge and twice in Australia awaiting trial on charges of receiving funds from and providing resources to a terrorist organization. A Supreme Court jury had earlier that year acquitted him of these more serious charges. The minor convictions for receiving funds from a terrorist organization and falsifying a passport were quashed on appeal in August 2006 on the basis that the evidence used at trial—evidence elicited from Thomas under interrogation in Pakistan—was inadmissible.18 New evidence supposedly arising from a television interview screened a few days later, however19—and a week before he was issued with the control order—subsequently resulted in the ordering of a retrial.20 In the meantime nevertheless, the control order took force alongside this process, instituting a particular day-to-day relationship between Thomas and the Australian Federal Police no longer necessarily subtended by the process of investigation, arrest, prosecution, verdict, etc. but organized around routine reports and encounters. The interim control order issued against Thomas included most of the restrictions and duties mentioned in the legislation,21 the notable exception being the requirement of wearing a tracking device. These forms of surveillance and regulation represented in Thomas’s order were not necessarily new forms of State individual control, however, their validity together as a procedure and

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formal jurisdiction of the Federal Magistrates Court under the Criminal Code was subject to constitutional review and was contested by Thomas before the High Court of Australia in Thomas v Mowbray in 2007. The case of Thomas v Mowbray raised a number of points of significance in Australian constitutional jurisprudence.22 The validity of the issuing of the interim control order against Thomas was challenged on two legal fronts. Apart from the question of whether Criminal Code, Division 104 was made with a relevant source of legislative power under section 51 of the Constitution, the case rested primarily upon the problem of whether the procedure instituted by interim control orders (and formalized by Division 104) characterized a proper institutional exercise of judicial power.23 In particular, the court was called upon to determine whether the interim control order proceedings constituted an exercise of judicial power consistent with the jurisdiction of the Federal Magistrates Court as defined by chapter III of the Constitution. By a 5:2 majority, the High Court upheld the validity of this procedure under Australian law.24 While the outcome of Thomas’s case rested then upon whether the High Court could characterize the interim control order procedure as a type of legal judgment or recognize it as part of the exercise of federal ‘judicial power’, what is interesting about the case is not so much the analogical reasoning behind these various determinations by the judges—determinations regarding the validity or invalidity of the procedure—but the way in which the procedure itself functions to alter the jurisdiction of common law and its practices of judgment. This problem is only partly addressed by the judgments themselves. Take, for instance, the problem addressed regarding the construction of a legal standard in Division 104. One way in which the nature of constitutional ‘judicial power’ was to be defined in Thomas v Mowbray was as a power to apply ascertainable juridical standards in the determination of cases or justiciable controversies. Courts must not be left to engage in abstract policy-making or be required, as Hayne J notes, ‘to apply its own idiosyncratic notion as to what is just’.25 The High Court focuses then, with respect to Thomas, on the meaning of the sole standard of adjudication stipulated in the control order legislation: namely that each of the measures of the control order must be deemed by the Federal Magistrate as ‘reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act’.26 The judges then consider (with varying conclusions) whether this standard is sufficient to confer a judicial power consistent with the role of a court exercising federal jurisdiction under the Constitution.27 What is interesting about this approach is that the court is drawn to read the ‘standard’ of the interim control order and its procedure into a somewhat narrow location. By focusing attention on the particular terms used in the legislation such as ‘reasonably necessary’ and their familiarity within the juridical lexicon, the High Court appears to bypass any close analysis of

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the form of the control order itself and the kind of standardization that, as a procedural instrument, it institutes upon the traditional function of ‘judging’. Kirby and Hayne JJ, for instance, both reject the validity of the legislation on the basis that it does not afford an ascertainable juridical standard particularly in requiring the Federal Magistrate to arbitrarily decide what is reasonably necessary to protect the public from a terrorist act.28 It is as though this would reduce the function of the judge to a kind of passive receiver of essentially executive governmental information or advice. But what their approaches share essentially with the judges in the majority is the same assumption about where to look for the articulation of legal standards within texts.29 While the discussion in Thomas v Mowbray offers a relatively studious analysis of the words of the legislation and wonders whether they might accurately represent an appropriate standard or criteria of legal judgment, an analysis, on the other hand, of the problem of whether the control order itself maintains the form of a ‘standard’—or in what sense it arranges a certain legal technology of standardization—is left relatively underdeveloped. Beyond the content of the order and the decision to issue or authorize it, lies the innovation that the instrument brings to the typical function of standardization in judgment. The argument more precisely here is that the particular approach of the High Court can be characterized by a jurisprudence that relegates the ‘know how’ of procedural forms to the moral philosophies of legal and constitutional judgment. In this way, the validity or justification of the control order is sought outside of any attempt to account for what it can do. One consequence of this approach is that the validity of the order tends to be assessed by way of its conformity with contemporary and historical legal forms of procedure. As mentioned already, the validity of the procedure instituted against Thomas rested heavily upon whether the High Court could characterize this procedure as part of the practices of governmental power traditionally exercised by the judiciary. Formulated in these terms, the drawing of comparisons between the procedure instituted by Criminal Code, Division 104 and other procedures or functions which have been legitimately conferred upon the judicial branch made up a significant part of the judgment. The task was to situate the power represented by control orders within the typical practices of legal judgment and according to certain historical analogues of juridical procedure. Gleeson CJ, for instance, compares the form of the control order to that of bail and apprehended violence orders while situating its jurisprudential basis in the established history of ‘preventive justice’.30 Gummow and Crennan JJ also locate the control order within the traditional history of a ‘preventative jurisdiction’31 which is commonly based on an assessment or adjudication of ‘risk’ rather than on a determination of criminal ‘guilt’. But while Kirby and Hayne JJ remain less willing to pass over the differences between the control order and other forms of procedure, their method nevertheless follows a similar analogical pattern to the majority. Kirby J, for

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example, works diligently to distinguish the form of the interim control order from each of the practices mentioned by the majority.32 In doing so, however, rather than identifying an alternative procedural template in which it might participate, he simply concludes that it involves ‘an attempt to break new legislative ground’.33 This use of analogy by both the majority and minority judgments in Thomas v Mowbray follows a schema that tends to obscure the relation between the procedural form of the control order and the forum of judgment it makes possible. Can one still give an account of the relation between the action and the authority of the control order—what the power of this instrument is— if the problem of jurisdiction is reduced to a comparison of pre-existing forms of procedure? If the procedural form of the control order is said to do nothing more than what has been achieved through previous analogous forms of judicial practice, then what one does not have is precisely an account of what gives this particular procedural device its ‘activity’, its cultural and technological currency or what makes it ‘come into its own’ at a particular time and place. A way of describing what is new, innovative and active within the procedure inaugurated by Criminal Code, Division 104 then, requires an attention to more than just the analogous models on which it might be based. It calls for an attention to the history of textual and procedural manipulations that have attempted to bring the changing dimensions of existence under the sign of legal judgment. The following section attempts to map some of these manipulations.

Documents of law’s transmission: scholastic and bureaucratic technologies of legal interpretation Understanding the transmission of law and the modes of law’s transmissibility has been important in accounting for how textual systems of authority are renewed and passed on in time and space.34 The sites for an analysis of law’s transmission can be related, firstly, to the study of various practices that have surrounded the use and interpretation of juridical texts and, secondly, to the means of instituting law through the variety of legal devices and instruments employed in any given society. In both of these cases, the question of the transmission of law is not a question of communication but one of institution: How does the authority of a text and its tradition come to pass into the vicinity of a new or remote generation and animate it? The modes by which this has been pursued vary historically and culturally. To situate some of these historical and cultural moments will be useful here to try and orient the discussion of Thomas v Mowbray—in particular to contextualize the kind of difference introduced to the mode of law’s transmission by the form of law implicated by the so-called ‘interim control order’. One way to analyze law’s modes of transmission involves an attention to the interplay between ‘original’ and ‘copy’ within the production of particular

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forms of documentation. The sign of authority in a legal document may be linked on the one hand to its authenticity as an artifact and on the other to the modes by which it becomes transmitted and reproduced as an object of faith. It is not that there is a necessary originality to the text of law as such, but that the relation between original and copy in the transmission of texts in general describes a form of authority that is not alien to the practices of legal interpretation. The authority of law must be maintained or passed on in a form which also allows for its reception and inscription in new places and in new generations of interpreters. How a new generation of juridical interpreter inherits the law and constructs a space within it for new orderings of expression is therefore paramount to any understanding of the continuing currency of dominant forms of legal authority. In his essay ‘The Work of Art in the Age of Mechanical Reproduction’, Walter Benjamin articulates a striking insight into the modern conditions of appreciating and valuing works of art and artistic texts. With the mechanical reproducibility of images in modern society, Benjamin notices that an interpreter no longer engages in the same ritual way to the feeling attached to being in the presence of an ‘original’ text: Even the most perfect reproduction of a work of art is lacking in one element: its presence in time and space, its unique existence at the place where it happens to be. The unique existence of the work of art determined the history to which it was subject throughout the time of its existence . . . The presence of the original is the pre-requisite to the concept of authenticity [and] [t]he whole sphere of authenticity is outside technical—and, of course, not only technical—reproducibility.35 Techniques for the reproduction and re-inscription of texts therefore have a profound influence on the historical modes of constructing and transmitting legal authority. If the authority of artistic texts is linked to the authenticity of its form of documentation, then it always involves the double matter of on the one hand holding the reader or interpreter before the ‘aura’ of an original, while on the other hand inventing (within the form of this original) a certain ‘blank space’ appropriate to a mode of expression, repetition, iteration, etc. An act of writing, for example, must always involve a great technical leap in re-inventing and subordinating an otherwise fully expressive fragment of the world, such as a piece of clay or stone, as a blank ‘substrate’ for the inscription of a more novel and ‘pressing’ form of enunciation. Not only this, but the inscription must also borrow its authority from the qualities of the substrate itself: for instance the permanency and immutability of writing on stone compared to sand. As a textual tradition, the law is not immune or separate from the technologies involved in its production and dissemination. Read from the perspective of these technologies, the text takes part in broader technical and

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procedural arrangements that define its action and authority as an instrument. The impulse for having the law rewritten for a contemporary generation of users has no doubt been an important one. In modern jurisprudence, this impulse might be best noticed in the relatively continuous drive to the processes of ‘law reform’. The legislative apparatus of the State is today invoked to respond to any kind of social or juridical problem. But for a much longer period it seems, ‘the law’ was not contemplated as something that could simply be changed or reformed at will. At most, it could be revealed, declared, interpreted, even codified in various ways. Legal change over time might have been guaranteed given the inherent erroneousness involved in the process of transcription or iteration, but purposeful change to the law itself would have been unthinkable or at least entirely imprudent. Jurisprudence as a tradition did not so much demand the creation of new laws to respond to new situations, but demanded rather a more prudent way of relating to the text of law. As employing one of these ways of relating to the text of law, the glossators in European Medieval jurisprudence invented a particular method of relating the authenticity and originality of Roman juridicism.36 The mode of transmission of the authority of this tradition involved a manual skill in the fidelity of reproducing and transcribing texts. The converse to this practice, however, was that a new space had to be opened up for the reception of the authenticity of the classical texts within a practical culture of legal interpretation specific to the time. The glossators, having the documents of Roman civil law before them for instance, also invented a method of jurisprudence which attempted to explain, systematize and interpret these texts by way of a technique of annotation. Producing ‘glosses’ of the texts meant writing notes in the margins and between the lines of the original and these glosses were not just interpretive markers or educational notes: they constituted an annotative apparatus of ‘captions’ produced for a textual image which in itself no longer fully held its ritual effect as the ‘presence’ of a cultural artifact. The original text becomes an insignia attached to a new cultural form of jurisprudential expression. Having a technique which held the reader before these two texts at once then—on the one hand, an authentic and authoritative text such as the Corpus Iuris Civilis, the value of which was becoming increasingly emblematic; and, on the other hand, a crafted annotative text which served as its key—was clearly a large part of the activity of scholastic modes of legal documentation. The appeal of this method was that it was capable of maintaining a documented form of authority as an ‘authentic transcription’, for example, while conferring this textual authority onto an art and style of scholastic jurisprudence constructed in the margins and within the proximal space of the received text. The decline of the glossatorial tradition as a practice of legal interpretation, on the other hand—a decline which marks a shift from an age of annotation to that of commentary—is the result of a tendency toward the redundancy of this original text. Firstly, the

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establishment of a ‘standard’ or ‘ordinary’ gloss: in particular, the Glossa Ordinaria of Accursius in the 13th century, which became a standard apparatus of interpretation as an assemblage of many glosses from the previous century and a half.37 Secondly, in a more organic sense, the progressive importance of the apparatus of the gloss and the greater space it demanded in relation to the original text over time, served to push the latter into an ever smaller, more vestigial position; eventually to become a pure ‘marker’ or ‘stamp’ of authority. In contrast to the technology of annotation in the scholastic tradition, the tradition which perfected the form of authority and authenticity characterized by the ‘stamp’ or the ‘mould’ we can conventionally call bureaucratic society. The bureaucratic activity of documentation is, for instance, largely an activity of standardization and the use of the standard form. The standard form is the instrument most obviously adapted to governing a society dominated by the form of mass-production (of objects, images, texts, etc.).38 Mass-production pursued a particular ideal characterized by infinite replicability—it sought to make ‘universal’ and ‘generic’ products which could belong identically in each and every situation. Within legal culture then, this generic product was the standard form. As a text and instrument the standard form had at least three important characteristics: (1) it could be infinitely replicated but no longer ‘imitated’ as such; (2) it was to be available to everyone in an identical form; and (3) it was capable of ordering and processing ‘mass’ actions or expressions. With the standard form as a legal text (and with modern, positive law more generally), one no longer requires the authority attached to the presence of an original; it is the empty mould or template and its mode of replicability which takes its place.39 Standard forms therefore constitute a unique tool in the bureaucratic techniques of modern judgment and normativity. The standard form governs by making the template of a document or instrument available to any person whatever, who can fill it in according to the particularity of their individual interests, so long as these interests coincide with the ‘standard’ of the document itself. To be authenticated as an actor in accordance with this instrument is no longer to be in the presence of the original artifact—or only in an extremely vestigial way—but to be authenticated in the very form of being a reproducible, replicable and regulated element. This is what bureaucratic society gives to the meaning of judgment. One is authenticated as an actor not according to the relative privilege in one’s proximity to a canonical text, but by the constructed fact of being in precisely the same textual position as everyone else, that is, as a replicable individual defined within the action of a mass. What is not lost from the glossatorial tradition here is that one still has the task of ‘filling in the blanks’ so to speak, although the blanks in the bureaucratic form have to be produced and reproduced according to the logic of the document itself and have the compelling effect of standardization in the very action of authentication. The form works as a social

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instrument because it relegates to a standard template all of the anxieties of privilege and status that continued to prevent and inhibit ‘the masses’ from engaging in the textual and cultural activity of jurisprudence. But it also supervises and manages the ‘space’ of interpretation of such cultural activity to a much more stringent degree.

Deleuze and the dimensions to a jurisdiction of control If the procedures of form-filling seem relatively insignificant within the context of the legal and constitutional problematic discussed in Thomas v Mowbray, this may be to ignore the unique development to the technology of legal judgment represented by the use of standard forms or instruments. Amongst the various procedures of adjudication developed within the modern history of legal practice, the action of standard forms figures prominently. Procedural jurisprudence in common law may have been dominated until the 19th century by a strict knowledge of ‘Forms of Action’ which defined the discrete procedural avenues around which judgment in the royal courts was occasioned.40 But the abolishment of this formulary system, while leaving an increasingly broader array of procedural devices at the disposal of judicial institutions, also resulted in a decline in the jurisprudential significance attributed to these differences of procedure. It is more difficult to imagine, with the abolishment of the Forms of Action, exactly what the procedural form of common law changes with respect to the judgment it makes performable. It may be worth noting, then, that ‘interim control orders’ do not have the same action and do not facilitate the same kind of judgment that standard forms do. Despite the obvious fact that the greater practical aspect to the issuing of a control order involves the action of completing and ‘rubberstamping’ a bureaucratic instrument, the action and innovation of this kind of instrument is nevertheless no longer directed purely at instituting a ‘standardization’. As a procedure of the federal courts of Australia, interim control orders alter the jurisdiction of those courts. How it alters that jurisdiction can be described in part by considering the kind of society for which it becomes a tool—one, for instance, no longer content to govern by instituting the action of masses and individuals but by something else again. In an essay titled, ‘Postscript on the Societies of Control’, Deleuze introduces a series of theoretical terms for acknowledging the transition between what Foucault called ‘disciplinary society’ and that which Deleuze himself terms a ‘society of control’. For Deleuze a certain kind of society can be defined by its instruments, weapons and machines: tools for the production of particular kinds of ‘affect’. Foucault invoked a concept of the ‘disciplinary’ society to distinguish it from the ‘sovereign’ or ‘juridical’ societies in which power and governance were typically exercised in a negative and decisive form

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of ruling over life and death. Disciplinary society constituted on the contrary the invention of a certain positive administrative power over life. It devised or at least made dominant certain techniques of power in which judgment could subsist within life as a standard or norm rather than essentially in the form of a sovereign privilege or fiat.41 The procedural apparatus of disciplinary society therefore was uniquely ‘normalizing’: its function, as Francois Ewald puts it, was not necessarily to confine or compartmentalize but ‘to create a homogeneous social space’.42 Disciplinary society governed through the action and production of standards immanent to the normative relations of statistical populations. For Deleuze, the procedures of discipline described by Foucault follow a certain model of power that can be expressed in multiple settings. The school, the factory, the prison, the military battalion etc., each have their productive forces mobilized and organized according to a largely analogous relation of instituting ‘masses’ and addressing individuals in terms of their statistical place within the mass. The tools of disciplinary society accordingly constitute prototypes of uniformity and individualization: Disciplinary societies have two poles: signatures standing for individuals, and numbers or places in a register standing for their position in a mass. Disciplines see no incompatibility between these two aspects, and their power both amasses and individuates, that is, it fashions those over whom it’s exerted into a body of people and molds the individuality of each member of that body . . .43 This model of power was already becoming something antiquated within the kind of technological milieu of the second half of the 20th century according to Deleuze. ‘Disciplinary’ forces in this sense were being replaced by forces of another type. Deleuze calls this relation of forces ‘control’. A society of control constitutes a separate paradigm of power for itself than disciplinary society. Deleuze draws distinctions between them on a number of levels: 1.

2.

3.

4.

What disciplinary society produces essentially through the ‘mould’ or ‘cast’ (as factory-production or mass-production), control society produces through ‘modulation’ (as the production peculiar to the corporation: its need for ‘a product’). Where disciplinary society organizes uniform and discontinuous institutions in which one is always starting afresh (for example, school then factory then hospital), control society organizes continuous and specialized programs that one is never finished with (for example, continuing education, health regimes). Where disciplinary society authorizes through the signature (as a technical sign of individuality), control society authorizes through codes or sequences (as password and bar-code). Where disciplinary society judges according to the norm (life assessed through the lens of prison-surveillance), control society judges according

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to a more immanent principle—one that can possibly do without prisons by making use of the ‘tracking device’ or ‘electronic tagging’.44 We are animals, for example, moved on from the ‘disciplinary’ zoo to a ‘controlled’ open game reserve. These are not just two differently shaped societies with different sets of technologies, but two differently shaped spaces. If the space of disciplinary society, for example, is ideally and analytically homogeneous and uniform, then that of control society is ideally ‘folded’.45 Its ideal is no longer an action or product expressed in as many places at the same time, but one expressed at any place at any time.46 From a jurisprudential perspective, the procedures of control describe a particular system and forum of judgment even as they attempt to open up and trace certain tactical spaces outside of the action of norms and common rules of standardization. What was characteristic of the rise of disciplinary arrangements of power is also true of control procedures: at first glance, they have the appearance of giving to a certain form of life an independence from the systems that previously claimed the right to ‘judge’ them. They give the characteristic impression, as Ewald notes of normative systems, as though ‘anything were possible’.47 Control society, for instance, seems to afford individuals a certain free leash compared to the previous model-institutions of uniformity and standardization within which they had been addressed and measured; just as prisons had previously appeared to liberate us from the gallows. And yet the mechanism of control constitutes at another level an even more insidious system of judgment. If the legal instrument of the ‘interim control order’, furthermore, is already one of the textual artifacts designed from the perspective of power invented by a control society, then a jurisprudential analysis of its legal authority must take the dimensions of this perspective into account. How does the procedural form of control constitute the dimensions of a jurisdiction? For the majority in the case of Thomas v Mowbray, the ‘control order’ specified under Criminal Code, Division 104 is to be considered part of the procedural jurisdiction of Federal courts in Australia. But, as has been mentioned above, the judgment in Thomas v Mowbray tends to address what is involved in the exercise of this kind of authority with only a very limited specificity. It is as though the court sees itself capable of authorizing a procedural form of law, the precise activity of which it no longer has much interest in giving a descriptive account of. What is clear is that the action of control within the procedures of judgment—notwithstanding the specificity of Criminal Code, Division 104—is one not limited to the project of anti-terrorism. The power in a judgment belongs to the innovation in its procedural form and the procedural form of control, like that of the ‘standard form’, cannot be defined in relation to what State agencies seek to invoke as their social purpose from time to time. The instrument of a control order is, firstly, a type of technical contrivance designed to address a particular

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segment of existence and to bring it under a jurisdiction: to render it judgable. Jack Thomas becomes the subject of legal judgment according to at least two parallel procedures. One, for example, is defined by the criminal jurisdictions of the Supreme Court of Victoria and which holds him as an individual between discrete State institutions. According to this particular procedural set-up, Thomas is judgable only in relation to definite charges which are the subject of investigation, trial, verdict, etc.48 From the point of view of the court itself, this may have constituted the whole process—being charged, tried, acquitted and re-charged. And whether or not there is new evidence for which he can be re-charged or whether perhaps there will be new allegations, etc.—Thomas knows that at a certain level he will never be done with the authorities. It is not a question of not being caught or charged by the authorities any more, more a question of managing their involvement in the life of one’s criminal tribulations. This is the basis behind the alternative parallel procedural set-up which the control order seeks to formalize. The control order procedure does not have a verdict as a culmination of the procedure; on the contrary it seeks to ward off any definite verdict in order to keep the matter (in one form or another) constantly at its preliminary stages of investigation. Such a situation resembles, as Deleuze notes in ‘Postscript on Control Societies’, that of Franz Kafka’s protagonist K in his novel The Trial. Legal judgment moves between the two key procedural tactics of ‘apparent acquittal’ (a temporary reprieve) and ‘indefinite postponement’ (a protraction of the process itself).49 The ‘interim control order’ is precisely the kind of document or form of judgment designed to register and formalize this latter tactic as a matter of law. The tactic is like a ‘minor’ treatment (in the musical sense) of a major or orthodox procedural arrangement: a different set of emphases. For example, what you may have been investigated, charged, tried, convicted for, etc. takes on a lesser importance in relation to the procedure which had in the meantime simply regulated your continuing or recurring contact with the authorities. Control therefore seeks to calibrate itself toward judging a certain aspect of existence that the discrete and major criminal procedural institutions had left unjudged. One might further situate the significance of such a procedural set-up in relation to what was noted in Chapter 7 regarding Foucault’s opposition between two juridical forms of procedure.50 In ‘Truth and Juridical Forms’, what Foucault is concerned to show is that judgment, truth and subjectivity are not universalizable concepts in history but are dependent on the invention of certain ‘games’ of truth or performances of knowledge.51 As specific ways of performing judgment then, the particular juridical forms of the ‘test’ and the ‘inquiry’ are taken to define very different structurations between society and its will to know. For Foucault, the procedure of the ‘test’ constituted variously a ritual, a formula, an ordeal, a combat, etc. which as a formal procedure was ‘a way of proving not the truth, but the strength, the

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weight, the importance of the one who spoke’.52 It was a way of doing justice to a situation of conflict through staging the local and hierarchical dimensions of authority. With the procedure of the inquiry on the other hand, as noted previously, what one gauges is something quite different. The inquiry as a juridical method is aimed at reconstructing the truth by commissioning and piecing together evidence. This model, Foucault argues, borrowed from the ecclesiastical procedure of inquisition.53 It was no longer a matter of ritualizing the plural dimensions of authority in conflict, but of contemplating pure violations of the law and presenting them to a unified perspective of authority. The result was a melding of religious transgression and legal infraction—the State itself was an injured party and demanded compensation for crimes that it had a new interest in uncovering within the population.54 This genealogy of juridical procedure tends to explain, for Foucault, the persistence in modern society of a more diffuse crimino-inquisitorial impulse, and the instrument of the ‘control order’—as one authorized performance of judgment—can be looked upon from the perspective this particular history. At one level, it clearly authorizes a juridical form of surveillance typical of normative modes of governance. But what it also adds to the procedural techniques of legal judgment, possibly beyond their merely normative register, is worth iterating: 1.

Firstly, the temporal organization of the procedure is unorthodox. Interim control orders appear to define a procedure which is structurally antecedent to the particular event they aim to investigate. In this way, the proceedings themselves maintain the general form of an inquiry but it is as though this juridical inquiry does not have to wait for the event in order to be mobilized into action. This is not the same as the so-called ‘preventive jurisdiction’ associated with binding over orders, bail measures and apprehended violence orders (AVOs) which are organized basically either in the form of security or an injunction regarding future behaviour. Control orders do not just aim at preventing a particular kind of wrongdoing, they organize an inquiry antecedently into the elements and conditions of an event that has never happened and cannot yet be imagined. Unlike AVOs, control orders do pose a deeply criminoinquisitorial problem: the authorities want to know how to bring something to light. Just as the invention of the inquiry which, as Foucault notes, sought to find out how to bring a person before a judicial authority when one did not know yet who was responsible for the crime,55 the question for the procedure of the control order is: How does one run an investigation when the event you want to investigate has not yet occurred? The answer—which is the innovation in this form—is: to proceduralize the ‘everyday’; to bring juridical procedure down to the level of ‘ordinary’ events or to that level of life previously thought unworthy of being judged within a legal forum.

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The second dimension which follows from this arrangement of jurisdiction concerns the mode of its address. Address involves the destination of the letter of the law and the envelope by which it comes to apply to its object.56 Modern legal instruments typically address actions performed by individuals within groups. We become authorized in a legal sense typically through forms which, in their uniformity, address us as individuals and which allow a statistical identification of individual actions. The exercise of jurisdiction under Criminal Code, Division 104, however, is no longer a jurisdiction solely addressed to the individual and the determination of the ‘statistical’ threats or risks that they pose. The fact that an individual is addressed as the subject of a control order is merely an incident to the form of power which really seeks to address what could be called ‘non-statistical’ and ‘pre-individual’ threats.57 For this reason, an interim control order can theoretically be imposed on an individual who may in fact pose no threat at all in a statistical and normative sense and yet may nevertheless constitute a singularly governable and pivotal element in relation to the maneuvers that attempt to oversee the dimensions of a serious crime. The problem is: how best to address as an individual (for example, Jack Thomas) a set of threats that remain otherwise non-individual; structurally unpredictable, etc. This is one reason why judgment under the jurisdiction instituted by Criminal Code, Division 104 involves more than a probabilistic assessment of ‘risk’.58 Thomas does not have to be the one likely to commit or be involved in a terrorist act but only the one through which such a threat can be most effectively controlled. Control is thus an attempt at making these subterranean co-ordinates of an event come under the determination of a jurisdiction. A final way to describe the action belonging to a jurisdiction of control is the change that it introduces to the procedures of standardization. The power of standard forms, as mentioned earlier, is that they create a space of uniformity in which normative legal relations and legal expressions can occur. It is not that judgment needs to conform to a standard arrangement in order to have authority, but that the standard form performs the judgment and authority of standardization. Its authority is precisely that of producing a normative register. The interim control order, on the other hand, retains the basic shape of a standard form in that it is technically reproducible for a large number of individuals, but its action and power is no longer linked to this replicability and standardization. Rather than being reproducible, it is the very fact of its suitability for being modified, personalized, tailored, customized and so forth, that seems to give the control order a procedural utility.59 We can call the action of control a ‘simulation’ rather than a standardization. Whereas standardization offers a criterion of judgment drawn—not from a superior or original form—but from the sheer regularity of distinct cases;

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simulation in turn offers it purely as an ‘effect’. Judgment is therefore no longer normalizing but seductive. It does not use a sedentary table or ‘frame’ of reference but a simulated reference of movements, resonances and codifications. Its measure is not discrete and scalar but indefinite and planar. Reading a legal judgment through its procedures and its procedural forms offers one way of posing the problem of its authority within the terms of jurisdiction. If a ‘Law of Actions’ or procedure remains one of the central genres of Western jurisprudential thought—a genre which attempts to address the performative, active and expressive element of judgment—then finding a way to account for the ‘instrumentality’ of law’s textual apparatuses of judgment and the forms of judgment inaugurated by particular regimes of legal procedure and documentation may be an important aspect to develop within contemporary legal scholarship. This is particularly so given the fact that procedural matters in jurisprudence occupy a much smaller intellectual space than they once did. Modern methodologies in legal analysis are often more accustomed to the patterns of moral philosophy than they are to the procedural aesthetics of jurisdiction. Legal discourse, as a result, tends to lack the means of addressing its own authority in anything but vague or technical language. The procedural form of ‘control’ inaugurated specifically by the interim control order regime in Criminal Code, Division 104 offers in this chapter one example of the importance that a jurisprudential account of procedure has within contemporary political and juridical dialogues. The consideration and appraisal of this form of procedure in Thomas v Mowbray also reveals the institutional limitations to these dialogues. The High Court in that case attempts to give an account of the form of judgment, ‘judicial power’ or jurisdiction described by the control order legislation and its compatibility with that form of federal jurisdiction conferred under the Constitution. However, by framing this assessment of procedural authority through the invocation of certain historical analogues to the interim control order, the judges tend to forego a more descriptive analysis of the kind of perspective of power and mode of existence that the instrument of the control order may be designed to institute and render justiciable. For this reason, this chapter has attempted to situate the practice of procedural innovation involved with control orders within an historical context. An analysis of the action of forms of legal documentation and transmission in scholastic and bureaucratic traditions is intended to provide an outline and perspective on the instrumentality of forms of authority and authenticity. It also allows for a consideration of what the apparatus of control orders might add to that mode of power instituted by standard forms in particular and the project of standardization and uniformity in general pursued by societies of mass-production. In this sense, it becomes possible to describe the

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contours to a ‘jurisdiction of control’ with the assistance of Deleuze’s theoretical note on ‘societies of control’. The control order can be seen as one of the tools of a society pre-occupied with the attempt to judge the dimensions of an event beyond its statistical, individual and ‘actuarial’ determinations.

Notes 1 The terms ‘activity’ and ‘reactivity’ are used here in the sense employed by Deleuze in his study of Nietzsche. See Gilles Deleuze, Nietzsche and Philosophy, Trans. Hugh Tomlinson (London: Continuum, 2002). For a fuller account of Deleuze’s work in relation to the ‘creativity’ of judgment, see, especially, Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford, CA: Stanford University Press, 2008). 2 Thomas v Mowbray [2007] HCA 33 (2 August 2007). 3 See Criminal Code Amendment (Terrorism) Act 2003 (Cth), Sch. 1. 4 Criminal Code Act 1995 (Cth), s. 102.2 (‘Criminal Code’). 5 Ibid, s. 102.3. 6 Ibid, s. 102.4. 7 Ibid, s. 103.1. 8 Ibid, ss. 102.5 and 102.6. 9 Ibid, s. 104.1. ‘Terrorist act’ is defined by ibid, s. 100.1. 10 Ibid, s. 104.4(1)(d). 11 Ibid, s. 104.5(3)(a) and (c). 12 Ibid, s. 104.5(3)(e). 13 Ibid, s. 104.5(3)(f ). 14 Ibid, s. 104.5(3)(h). 15 Ibid, s. 104.5(3)(d). 16 Ibid, s. 104.5(3)(i). 17 Ibid, s. 104.5(3)( j) and (k). 18 See R v Thomas (No 3) [2006] VSCA 300 (20 December 2006). 19 The text of the Australian Broadcasting Corporation’s ‘Four Corners’ interview conducted by Sally Neighbour was accessed from website of The Australian at <www.theaustralian.news.com.au/story/0,20867,20199530-601,00.html> (accessed 17 August 2007). 20 The retrial concluded in October 2008. Thomas was cleared of receiving funds from a terrorist organization and convicted for the lesser charge of possessing a falsified passport. See Kate Hagan, ‘Jack Thomas Goes Free After Six-Year Battle Against Terrorism Charges’, The Age, 24 October 2008. 21 Federal Magistrates Court of Australia, Interim Control Order made in relation to Jack Thomas (27 August 2006), available at (accessed 1 October 2007). Copy on file with author. An interim control order was also issued against former Guantanamo Bay detainee David Hicks which ran from December 2007 (upon his release from prison) until December 2008. 22 For an overview of these issues and the individual judgments, see Andrew Lynch, ‘Thomas v Mowbray: Australia’s “War on Terror” Reaches the High Court’ (2008) 32(3) Melbourne University Law Review 1182. 23 The relevant doctrine is that established in R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (‘Boilermakers’). This principle reads into the structure of the Constitution an implied limitation on the jurisdiction of Australian federal courts. The courts cannot be invested with a power or authority that would

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24 25 26 27 28

29

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be inconsistent with their exercise of the ‘judicial power’ (as opposed to executive or legislative power) of the Commonwealth. In Thomas v Mowbray, the approach taken by the High Court in ascertaining the authority and validity of the control order was to acknowledge the necessity first to characterize the kind of power being conferred by Criminal Code, Division 104, and then to adjudicate upon whether or not this power was one typically or appropriately exercised by the judiciary. Gleeson CJ, for instance, does not describe the problem in terms of whether the arrangement in the exercise of powers imagined by the ‘control order’ is consistent with the constitutional arrangement of governmental powers, but rather, ‘whether the essential nature of control orders is such that the power to make them cannot be conferred by the legislature upon the judicial branch of government for the reason that such orders are distinctively legislative or executive’, Thomas v Mowbray, at para. [14]. Kirby J notes that, ‘It is the duty of this Court . . . to characterize Div 104 so as to determine whether it confers power that is neither part of “the judicial power of the Commonwealth” nor ancillary or incidental to that power’, Thomas v Mowbray, at para. [303]. By abstracting power from its various institutions, the constitutional approach taken in the case therefore tends, firstly, to obscure the fact that the judicature itself constitutes the invention of a certain kind of power (i.e. the power to judge); and, secondly, to treat the textual and technological history of that invention as unaffected by the procedural form of control orders. The majority consisted of Gleeson CJ, Callinan, Heydon, Gummow and Crennan JJ (the latter two issuing a joint judgment). Kirby and Hayne JJ dissented. Thomas v Mowbray, at para. [516] (Hayne J), citing the reasons of Gaudron J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, at 231. Criminal Code, s. 104.4(1)(d). See Thomas v Mowbray, at paras [20]–[27] (Gleeson CJ), at paras [312]–[322] (Kirby J), at paras [94] –[103] (Gummow and Crennan JJ) and at paras [475]– [499] (Hayne J). Kirby J, for instance, notes the arbitrary and potentially tyrannous nature of power conferred on the court, ‘The court would be required to make its decision without the benefit of a stated, pre-existing criterion of law afforded by the legislature . . . [T]he stated criteria attempt to confer on federal judges powers and discretions that, in their nebulous generality, are unchecked and unguided. In matters affecting individual liberty, this is to condone a form of judicial tyranny alien to federal judicial office in this country’, Thomas v Mowbray, at para. [322]. Hayne J adds at para. [499] that a series of cases pursued under Criminal Code, Division 104 may give rise to certain fact-finding predictions but not any juridical standard. If an ascertainable principle of law did happen to emerge over time on the other hand, this principle would no longer be that of the Criminal Code itself. While each of the majority judges, Gleeson, Callinan find the standard expressed in s. 104.4 to confer a consistently judicial form of power it is worth noting that Gummow and Crennan JJ express a skepticism that the mere absence of judicial criteria or standards in legislation should be necessarily fatal at all to its validity in conferring power upon a federal court. They were the only members of the High Court therefore to offer an alternative formulation of this problem notably framed within the language of jurisdiction; that is, ‘whether s. 104.4 . . . is a law which is adequate to “define” what is “the jurisdiction” of the issuing courts, within the sense of s. 77(i) of the Constitution, or whether it fails to do so because it is an attempt to delegate to the issuing courts the essentially legislative task of determining “the content of a law as a rule of conduct or a declaration as to power,

156

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33 34 35 36

37 38

39

40

41

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right or duty” ’, Thomas v Mowbray, at para. [71], the final quotation from The Commonwealth v Grunseit (1943) 67 CLR 58, at 82. Thomas v Mowbray, at para. [16]. Ibid, at para. [120]. Ibid, at paras [330]–[338]. Kirby J distinguishes the control order from the other orders said to be analogous on four points: (1) such orders are generally ancillary to other proceedings; (2) they are directly related to the past conduct of the person; (3) they are often aimed at protecting specified persons rather than society in general; and (4) they are based on evidence of what the particular person is likely to do rather than on what third parties might do. Ibid, at para. [331]. On the metaphysics of transmission in relation to a logic of inheritance and instrumentality, see Yifat Hachamovitch, ‘The Ideal Object of Transmission: An Essay on the Faith Which Attaches to Instruments’ (1991) 2(1) Law and Critique 85. Walter Benjamin, ‘The Work of Art in the Age of Mechanical Reproduction’ in Hannah Arendt (ed.), Illuminations, Trans. Harry Zohn (New York, NY: Schocken Books, 1968), pp. 217–251, at 220. On this tradition of jurisprudence, see Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1990), pp. 109 –118; Hermann Kantorowicz, Studies in the Glossators of the Roman Law: Newly Discovered Writings of the Twelfth Century (Cambridge: Cambridge University Press, 1938); Walter Ullmann, Law and Politics in the Middle Ages: An Introduction to the Sources of Medieval Political Ideas (Ithaca, NY: Cornell University Press, 1975); Gaines Post, Studies in Medieval Legal and Political Thought: Public Law and the State 1100–1322 (Princeton, NJ: Princeton University Press, 1964); Paul Vinogradoff, Roman Law in Medieval Europe (Oxford: Clarendon Press, 1929). See Kelley, The Human Measure, p. 113. On the concept of mass-production in the context of legal technologies of adjudication, see Tim Murphy, ‘Legal Fabrications and the Case of “Cultural Property” ’ in Alain Pottage and Martha Mundy (eds), Law, Anthropology and the Constitution of the Social: Making Persons and Things (New York, NY: Cambridge University Press, 2004), pp. 115 –141. Walter Benjamin considered this process to lead to a ‘tremendous shattering of tradition’. ‘[T]he technique of reproduction detaches the reproduced object from the domain of tradition. By making many reproductions it substitutes a plurality of copies for a unique existence’. See Benjamin, ‘The Work of Art in the Age of Mechanical Reproduction’, p. 221. Until the 19th century, for instance, the procedures of common law judgment were governed by the use of certain types of standard form. The ‘Forms of Action’ at common law came to be passed on as particular areas of legal doctrine; but they originated as purely procedural documents which authenticated the form in which rights were to be contested. See Frederic William Maitland, The Forms of Action at Common Law: A Course of Lectures by F. W. Maitland (Cambridge: Cambridge University Press, 1936). ‘Discipline increases the forces of the body (in the economic terms of utility) and diminishes these same forces (in political terms of obedience)’, Michel Foucault, Discipline and Punish: The Birth of the Prison, Trans. Alan Sheridan (London: Penguin Books, 1991), p. 138. Francois Ewald, ‘Norms, Discipline, and the Law’ in Robert Post (ed.), Law and the Order of Culture (Berkeley, CA: University of California Press, 1991), pp. 138 –160, at 141. Ewald highlights the normative, probabilistic and actuarial forms of legal knowledge which attach to disciplinary as opposed to sovereign

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43 44 45

46

47 48 49 50 51 52 53 54 55 56

57

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society: the importance in the calculation and deployment of the concept of risk within uniform or homogeneous spaces and the determination of the concept of the ‘least arbitrary’ (at p. 158) in relation to the rules of adjudication. Gilles Deleuze, ‘Postscript on Control Societies’ in Negotiations, 1972–1990, Trans. Martin Joughlin (New York, NY: Columbia University Press, 1995), pp. 177–182, at 179 –180. Ibid, p. 181. Take, for instance, the kind of folding of personal space effected by contemporary mass-produced technology with the aim of making all one’s personal objects accessible wherever one goes, as well as making oneself locatable at any point at any particular time. This effect is a purely topological (rather than a statistical) manipulation: a nullification of the distances navigated in everyday life through the construction of a system of ‘portals’. Limitation to the speed of transmission is overcome by the power of folding space and making any point or any event occurring in the world theoretically accessible at any other point in the network. It is unnecessary, moreover, to insist that these developments are essentially either liberating or oppressive. In the same way that we never have to leave the home in a control society, we also in a sense never escape from work, or from education, conscription, incarceration, etc. Deleuze describes this arrangement of a control mechanism as being capable of determining ‘the position of any element at any given moment—an animal in a game reserve, a man in a business’, tracking in other words the movement of an element in an open space by means of an electronic collar. Deleuze, ‘Postscript on Control Societies’, p. 181. Ewald, ‘Norms, Discipline and the Law’, p. 158. See, in particular, R v Thomas (No 3); R v Thomas (No 1) [2006] VSCA 165 (18 August 2006); Thomas v The Queen [2008] HCA Trans 258 (17 July 2008); DPP v Thomas (Ruling No 3: Reasons for Ruling) [2006] VSC 243 (7 April 2006). See Franz Kafka, The Trial, Trans. Idris Parry (London: Penguin Books, 1994); Deleuze, ‘Postscript on Control Societies’, p. 179. See Michel Foucault, ‘Truth and Juridical Forms’ in James D. Faubion (ed.), Power: Essential Works of Foucault 1954–1984, Vol. 3 (London: Penguin Books, 1994), pp. 1–89. Ibid, pp. 2–3. Ibid, p. 37. Ibid, pp. 46 – 47. Ibid, pp. 42– 43. Ibid, p. 47. See Shaun McVeigh, Peter Rush and Alison Young, ‘A Judgment Dwelling in Law: Violence and the Relations of Legal Thought’ in Austin Sarat (ed.), Law, Violence and the Possibility of Justice (Princeton, NJ: Princeton University Press, 2001), pp. 101–141. Deleuze has addressed the theme of ‘pre-individual singularities’ in his major theses. See Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (London: Continuum, 2004); Gilles Deleuze, The Logic of Sense, Trans. Mark Lester (London: Continuum, 2004). In The Logic of Sense he writes at p. 118, ‘What is neither individual nor personal are . . . emissions of singularities insofar as they occur on an unconscious surface and possess a mobile, immanent principle of auto-unification through a nomadic distribution . . . Singularities are the true transcendental events, and Ferlinghetti calls them “the fourth person singular.” ’. And in Difference and Repetition he notes at p. 223 that, ‘[Ideas] subsume the distribution of distinctive or singular points; their distinctive character . . . consists precisely in the distribution of the ordinary and the distinctive, the singular

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and the regular, and in the extension of the singular across regular points into the vicinity of another singularity. There is no abstract universal beyond the individual or beyond the particular and the general: it is singularity itself which is “pre-individual” ’. 58 Compare with Gummow and Crennan JJ in Thomas v Mowbray, at para. [79], ‘In assessing whether the courts have adequate legal standards or criteria “for the purpose of protecting the public from a terrorist act” it is relevant to note, not only that a judicial procedure has been laid down, but also that the orders which may be made are a familiar part of judicial power to make orders restraining the liberty of the subject, for the purposes of keeping the peace or preserving property. Orders, which are not orders for punishment following conviction, but which involve restraints upon the person to whom they are directed, can be made after a judicial assessment of a future risk’. 59 Note that the terminology of ‘tailoring’ is used by Gummow and Crennan JJ in Thomas v Mowbray, at para. [79] to describe the ordinary powers associated with preventative judicial orders.

Chapter 9

The locality of law: jurisdiction in Deleuze

Deleuze’s philosophy presents a unique recovery of certain modes of thought belonging to the practical critique of law one calls ‘jurisprudence’. Deleuze’s jurisprudence is linked with three jurisdictions: persons, rights and actions. This chapter summarizes the key aspects to these jurisdictions as explored throughout the book.

This book began with a claim that jurisdiction offers legal scholarship a language with which to navigate law and to engage creatively within its medium. In the foregoing chapters, I have attempted to explore some of the textures of this medium, in particular by showing that certain technical elements of jurisprudence (persons, things, actions) afford both a representational and an expressive construction. The aim of this has been in part to show not just that the technicism belonging to the professional-institutional deployment of jurisdiction has been the subject of a relatively discontinued theoretical tradition, but also that the continuation of a ‘metaphysics of law’ in contemporary legal theory—which attempts to speak to the origins and structural limits of law—often tends only to separate us from the jurisdictional techniques and innovations that make up the practical field of jurisprudence. I have argued that it is Deleuze who, perhaps, goes furthest in this direction of recovering the modes of thought belonging to that practical critique of law we call jurisprudence. This critique, above all, is imbued with a humour that, far from philosophically mocking or satirizing our being with law and judgment, our proclivity and aptitude for moral sentiment, in fact encourages it, baits it, even if in a cruel way. Deleuze invites us to return to a jurisprudence composed of humorous intensities, creative juristic innovations, concrete situations. And it is this which sets him apart as a philosopher. He wants to affirm for philosophy a mode of thinking not necessarily reduced to an empty conceptual ‘dialogue’; a respectable discussion about ‘What is Justice?’, for instance, or ‘What is the Good?’ that presupposes an original friendship and goodwill on the part of the thinker. For Deleuze, the discipline of law or jurisprudence does not borrow from philosophy a measure of truth based upon a form of questioning capable of approaching abstract

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‘essences’. Rather, it is jurisprudence which, outside of this amicable gesture which disposes thought toward truth, offers philosophy the possibility of still finding its way around in thought as in a minefield. Jurisdiction in Deleuze is a practical as well as a theoretical concept. It refers to that field of devices or technical contrivances that makes law ‘livable’ in one way or another. It is the matter of law’s expression: a problem of right in so far as it is said rather than represented, performed rather than enforced, acted rather than established, etc. The expression of law is what we do in ‘jurisprudence’ and this is the reason why a theorization of jurisdiction is useful in the context of a present movement of critical scholarship concerned not simply to replace one law with another but to take an active possession of its creative resources. Beyond the systems of rationality that support representational juridical forms of authority, expression on the contrary permeates law’s practices, its repetitions and refrains—elements that form the matter, substance and style of jurisprudence. It has been argued here that jurisdiction provides us with a knowledge of the ways of navigating law and judgment and limiting them to particular forums. If it is possible to describe Deleuze’s method in relation to law, this book has done so with the help of three conventional jurisdictions: 1.

2.

3.

In the first place, the fashioning of legal ‘persons’ as a critique of the subject of rights. For jurisprudence as well as for Deleuze, the person is not an abstract foundation or substrate for rights: it is a technical element, the crafting of a discrete mask adequate to evaluate a set of rights by ‘living’ them. Hence, there is the remarkable technique of evaluating law and concepts through personae essential to Deleuze’s work: the ‘method of dramatization’ which assesses being by way of the question ‘Who . . . ?’ rather than ‘What is . . . ?’. Secondly, the discipline belonging to the ‘right of things’ which connects Deleuze’s ethics with his ontology: the right that all things necessarily ‘are’ in jurisprudence for instance beyond the reactive dimension that establishes only the realm of property as the right that things have, or the right that persons have to things. The complex notion of ‘right’ has been shown to be, for Deleuze, that particular meaning that a ‘thing’ takes on in jurisprudence; the sense that it acquires within that humorous, inventive and practiced genre of legal thought. This is the sense in which Deleuze can agree with a jurist such as Savigny that right has only one source: jurisprudence, and this is a popular, local and technical affair. Thirdly, there is the connection of Deleuze’s thought to a procedural jurisprudence, the jurisdiction attending to a ‘Law of Actions’ as that neglected tradition of theory which has alone purported to critique judgment through its performance: offering an account of the delimitation of judgment in terms of its forum and jurisdiction. For Deleuze, life is the discovery and invention of so many ways around judgment;

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ways of eluding, detotalizing, dramatizing and performing it. One encounters in Deleuze’s work not a grand edifice against judgment, but a connection to a technical knowledge of its forums; a type of legal knowledge that theory has typically been content to leave to a narrowly institutional discourse.

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Index

Accursius: 146 Action(s): Forms of Action 130, 147; As genre of jurisprudence 10 –11, 13 –14; Law of Actions 13, 113 –119, 125, 133 – 4, 153; Performance, ‘acted’ 13, 116, 122– 6, 160; Possessory actions 100; As power 81–2; Procedure 109, 116 –119, 127, 143 –9, 151– 4; And rights 22, 33; Scienter action 61–3, 70 (n16) Active, activity: Active force 116, 122; Activity of judgment (see Judgment); Activity of jurisprudence 121, 147; Creativity 8, 14, 139, 160; And justice 123 –5; And procedure 130, 143, 145 Aesthetics: Of life, existence 26, 33, 48, 64; Judgment 120 –121, 125 – 6; Jurisprudence 108, 120; Mask, persona 11–12, 23, 26, 28, 32, 35 (n16), 39, 48, 64; Performance 8; Procedure 126, 153; Representation, expression 2, 9 –10, 26, 120; Law of Things 83, 87 Agamben, Giorgio: 5 Animal(s): Animal law 12, 51, 56 –71; Animal rights 34, 57– 60, 63, 65 – 6; Becoming-animal 57; Cruelty to 63 – 4, 66, 69 (n 7), 70 (n 18), 89; Deodands 61; Kafka, Franz 111–12 (n 42); Mask, persona 26, 56 – 8, 63 – 8; Scienter action (see Action(s)) Austin, John: 25, 76, 83, 110 (n 20) Benjamin, Walter: 144, 156 (n 39) Blackstone, William: 83, 91 (n 22) Bracton, Henri de: 22, 29

Capacity (legal): 22, 39–40, 48–51, 67, 76, 79 –80 Casuistry: 7, 13, 27, 84, 109 Cormack, Bradin: 4–5, 115 Christianity: 4, 75, 122, 127–8, 132 Child, children: Becoming 65; Filiation 128; Person of (see Person, persona) Civil law: 11, 22, 26, 29, 34 (n 3), 75, 85, 87, 100, 117, 128, 145 Civil philosophy, civil jurisprudence: 32–3, 84, 87, 118–119 Civil procedure (see Procedure) Combat, combat-zone: 10, 121, 131– 4, 150 Common law: Judgment 138–9, 141, 156 (n 40); Jurisdiction over animals 59, 69 (n 7); Possession 108, 111 (n 37); Procedure 130, 135 (n 6), 147, 156 (n 40); Scienter action 61–62, 70 (n 16); Status 28 Control order (interim): 13, 138–143, 147, 149–154, 154 (n 21), 154–5 (n 23), 156 (n 32) Criminal Code: 36 (n 31), 139, 141–3, 149, 152–3, 154–5 (n 23), 155 (n 28) Critical legal studies: 4–6, 8, 93, 95, 117, 119 Cruelty: To animals (see Animals); Contra Doctrine of judgment 120 –121, 135–6 (n 26) Cusa, Nicholas: 80 Deleuze, Gilles: Control 13, 139, 147–150, 154, 157 (n 46); Difference 8–9, 28, 53 (n 19), 82, 121; Expression 2–3, 7–12, 14, 17 (n 36), 44, 47, 82–3, 85, 89, 91 (n 19), 104–5,

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108, 116, 119 –123, 138, 160; Foucault, Michel 54 (n 24), 92 (n 36), 126, 130, 132–3, 147; Guattari, Felix 1, 65, 107; Hume, David 10, 77, 83 –5; Jurisdiction 1–2, 5, 8, 13, 22–4, 33 – 4, 38–9, 51, 77–8, 89, 94–5, 109, 116, 159–161; Jurisprudence 3, 6 – 8, 10–14, 23 –5, 44–5, 49, 51, 57– 8, 65, 76–7, 80–1, 83 –7, 89, 94–5, 105, 108–9, 116, 120 –1, 126, 138–9, 159 –161; Kafka, Franz 45, 111–12 (n 42), 120, 133– 4, 150; Method of dramatization 9, 12, 22–23, 25–30, 32–3, 58, 65– 6, 77– 8, 89, 160; Moral, dogmatic image of thought 8–9, 83, 116, 121; Nietzsche, Friedrich 9, 12, 25–9, 65, 77–80, 120, 122–4, 135 (n 20), 154 (n 1); Nietzsche and Philosophy 122; Proust and Signs 38–9, 43 –46, 54 (n 25); Psychoanalysis 103–106, 111 (n 30); Repetition 82–3, 91 (n 19); Sedentary, Nomadic 107–8, 111 (n 41), 111–12 (n 42), 157 (n 57); Spinoza, Baruch 9 –10, 12, 77–8, 80–2, 90 (n 14), 91 (n 19), 94; ‘To Have Done With Judgment’ 120–121, 134 Dialectics: 11, 28, 53 (n 19), 78–9, 95, 97, 99, 102, 105 Difference: In Deleuze (see Deleuze); Mask, persona 28, 30, 39, 78, 82; And procedure 142–3, 147; Sexual difference 34, 38–9, 43– 46, 53 (n 19), 54 (n 24, n 25) Discipline: Disciplinary society 148, 156 (n 41); Law, jurisprudence 7–8, 23, 26, 51, 58–9, 62–3, 67, 77, 87, 96, 99 –100, 103, 105, 116, 126, 159–60 Drama: And dialectics 78; Dramatization (method of ) (see Deleuze); Gender 43, 49; Greek theatre 26; Judgment, jurisdiction 125, 127–8, 131–2, 134, 160 –161; And person, persona 25–8, 32, 34, 38, 48–9, 64–7, 71 (n 26) Eroticism: 44, 47–50 Evans, E. P.: 67 Ewald, Francois: 148–9, 156 (n 42) Expression: Deleuze, Gilles (see Deleuze); Expressionism 2, 7, 9 –11,

89, 91 (n 19), 116; Representation 1–2, 8–11, 17 (n 36), 47, 82–3, 89, 103, 116, 119–123, 125, 159; Right(s) 89, 93; Speech 15 (n 3), 65, 82–3; Text/Judgment 144–5, 153 Family Law Act 1975: 38–9, 41–4, 49 –50, 52 (n 10), 55 (n 39) Foucault, Michel: 54 (n 24), 92 (n 36), 126 –133, 147–8, 150–1 Gaius: 29 Gender: 34, 38–43, 47–51, 56 Genre: Of jurisprudence, legal knowledge 4, 7, 10–14, 26, 28, 33, 39, 83, 85, 109, 115 –117, 126, 133– 4, 138, 153, 160; Personal jurisdiction, Law of Persons 11, 21–3, 26, 28, 31, 33 – 4, 39, 64, 68, 76–7; Things, Law of Things 76–7, 81, 83, 85, 89, 94, 160; Procedure 13, 109, 115–119, 126, 128, 130, 133– 4, 153; Sex 53– 4 (n 19) Glossators: 145– 6 Goodrich, Peter: 4 Hachamovitch, Yifat: 6, 110 (n 17) Hegel, Georg Wilhelm Friedrich: 9, 13, 28, 78, 95–100, 102–106, 109 (n 15) Hobbes, Thomas: 12, 25, 81, 90 (n 14) Human rights: 6, 12, 15 (n 6), 51, 57–8, 69 (n 3), 76, 86, 89 Hume, David: 10, 77, 83–5, 87 Humour: 84, 105, 159 Hunter, Ian: 32–3, 118–119 Inquiry, inquisition (see Procedure) Instrument, instrumentality: 2, 10, 13 –14, 22–4, 33, 87, 91 (n 24), 116 –117, 138–40, 142–4, 146–7, 149, 151–3, 156 (n 34) Interpretation: Affective domain of in Proust 44 –6; Legal 143–7; Legitmacy of 88; And pluralism 6 Judgment: Activity of 13, 89, 115–116, 119 –126, 130, 132–3, 139; Christianity 4, 122; Critique of 97, 116 –117, 119–123, 126–7, 130, 134, 159 – 60; Doctrine of judgment 120 –1, 134; And Evaluation, mode

Index of existence 12, 14, 27; Jurisdiction 5, 29, 33, 36 (n 26), 39, 49, 51, 55 (n 39), 56, 88–9, 115, 118, 123, 125, 127–9, 150, 152, 160–1; Kant, Immanuel 97, 120, 129; Law/common law judgment 3 –7, 36 (n 26), 38, 43, 49, 80, 108–9, 110 (n 17), 138, 141–3, 147, 150–1, 154–5 (n 23), 156 (n 40), 160; Morality 27, 67, 80, 121; Procedure, procedural form of 13–14, 109, 115, 117–134, 138–9, 142, 146 –154; Subjectivity 43, 117–118, 125, 127–9, 134; ‘To Have Done with Judgment’ (see Deleuze) Judicial power: 139, 141, 153, 154–5 (n 23), 158 (n 58) Justice: 6 –7, 22, 76, 84 –5, 87, 115, 117–121, 123 –5, 127, 131, 133, 136 (n 32), 151, 159 Justinian: 26, 29 Jurisdiction: Animal law 56– 61, 63– 4, 66, 68; Criminal Code Act 1995, Division 104 139 –141, 147, 149, 152, 154 –5 (n 23), 155 (n 29); Control 147, 149–50, 152– 4; Deleuze, Gilles (see Deleuze); Expression, representation 2, 10–11, 82–3; External, civil forum 118, 126–8; Family Law Act 1975 (Cth) s 67ZC 38– 42, 49–50, 52 (n 10), 55 (n 39); Interdiction 127; Internal, confessional, sacramental forum 43, 118, 126– 8; Judgment (see Judgment); Locality, localization 121, 123, 125; Parens patriae, wardship, welfare 42, 50, 52 (n 10), 53 (n 12), 63– 4; Personal jurisdiction 11–12, 21– 6, 29, 31, 33 – 4, 36 (n 26), 38–9, 41– 44, 48–51, 56–9, 67–8, 76 –8, 89; Preventive jurisdiction 142, 151; Procedure 11, 13, 109, 115–118, 126, 129, 134, 138–9, 143, 149, 153, 160; Roman law 75; Speech 15 (n 3), 76, 83, 127–8; Subject-matter jurisdiction 11, 13, 76 –7, 85, 87–8; Technicism, technical contrivance 10, 14, 115–116, 126, 129, 149 –50, 153, 159 – 60; Theory of 3 – 6, 15–16 (n 6), 67, 95, 127, 159– 60 Jurisprudence: Aesthetics and (see Aesthetics); Case(s) 3, 7, 59, 68, 77, 85, 88, 102; Civil jurisprudence

173

(see civil philosophy); Critical legal studies 5–6, 93; Deleuze (see Deleuze); Expression, representation 2, 7, 9 –11, 13, 89, 120, 160; Greek 44 –5; Human rights 6, 51, 86, 89; Humour 6–7, 13, 84, 105, 159– 60; Innovation, invention 7, 14, 64, 77, 84 –5, 87–9, 94–5, 100, 102, 108–9, 159 –60; Law of persons, jus personarum (See Person, persona); Law of things, jus rerum (See Thing, res); Life 3, 6–7, 9, 64, 80; Natural law 67, 86, 91 (n 22), 96; And Philosophy 3, 7, 10, 22–3, 44, 80–1, 89, 96 –7, 103–5, 108, 119, 121, 159 –60; Positivism 76, 86, 99, 117; Procedural genre of 13, 115–119, 126, 129 –30, 132–4, 138, 142, 145, 147, 160; Roman law 11–12, 29–30, 75 –7, 84, 87, 94–6, 98–101, 145; Smoking 86; Subject of rights 12, 23 –6, 30, 160; Technical knowledge of 11–12, 22, 24, 33, 58, 64, 76, 87, 159 Kafka, Franz: 45, 111–112 (n 42), 120, 133 –4, 137 (n 50), 150 Kant, Immanuel: 9, 23, 32, 78, 97–8, 118–120, 129 Klossowski, Pierre: 125 Law of actions (See Action) Law of persons, jus personarum (See Person, persona) Law of things, jus rerum (See Thing, res) Lawrence, D. H.: 90 (n 10), 120 Lefebvre, Alexandre: 6–7, 16 (n 27) Leibniz, Gottfried: 32, 118 Legendre, Pierre: 4, 26, 126–9, 136 (n 32) Lingis, Alphonso: 65–6, 69 (n 9) Maitland, Frederic William: 37 (n 38), 118, 130 Maine, Henry Sumner: 117 Mask: Animals, animal law (see Animals); Drama, theatre 25–7, 35 (n 8), 45– 6; Greeks 25– 6, 35 (n 8), 35 (n 15), 35 (n 16); Law of persons, jus personarum 11, 26, 28, 33, 76, 78, 80, 83; Metaphysics 35 (n 9); As mode of evaluation 11, 28, 31, 64, 160; Nietzsche, Friedrich 26–8; Personal

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jurisdiction 11–12, 23, 39, 44, 48, 67–8; Possession 11, 22; Status 11, 28; Sex, sexuality 39, 44– 6, 49 Masses, mass-production: 146 –8, 153, 157 (n 45) Mauss, Marcel: 31, 35 (n 9), 83 McVeigh, Shaun: 4 –5, 15 (n 3) Metaphysics: Critical legal studies, critical theory 4, 119, 134, 159; Hegel, Georg Wilhelm Friedrich 78, 96, 100, 102; And Jurisprudence 2, 22, 24, 28, 32–3, 35 (n 9), 76–7, 102, 116, 125 –6, 133; Kant, Immanuel 32, 78, 118–119; Nietzsche, Friedrich 90 (n 9); Philosophy 10, 23, 32–3, 96, 117–118; Subjectivity, subject of rights 22, 30–31; Theology 10, 96, 100 Method of dramatization (see Deleuze) Minor, minority: And ‘becoming’ 53 (n 19), 57, 65; Legal personality 12, 31, 40, 56–7; Minor legal knowledge 4; Minorities 93; Music 150; Against the ‘Other’ 48 Moore, Nathan: 6 –7 Moral philosophy (see Philosophy) Murphy, Tim: 8 Natural law (see Jurisprudence) Natural right (see Right(s)) Nietzsche, Friedrich: Against dialectic 78–9; Deleuze, Gilles (see Deleuze); Expression, expressionism 9, 123; Law of persons 12, 26, 28–9, 78–80; Mask, masking (see Mask); Metaphysics (see Metaphysics); Method of dramatization 9, 25–8, 65– 6, 71 (n 26), 78; ‘Order of rank’ 29; On the Genealogy of Morality 27, 122; Philosophy 77–8, 80, 120; Pluralism 28, 65, 78; Ressentiment 122–4, 135 (n 22); The Birth of Tragedy 26; The Will to Power 28 Nomad, nomadism (see Possession) Ontology: 9, 12–13, 53 (n 19), 57, 76, 80 –81, 83, 94, 160 Parnet, Claire: 3, 7, 85 Performance, performative: Judgment 13, 116 –119, 122–5, 128–9, 133, 138, 147, 150 –3, 160–161; Jurisdiction 15

(n 3), 57, 116–117, 123, 129, 160; Legal studies 8, 10; Person, role 12, 24, 26, 34, 49, 57; Sex, gender 49–51, 55 (n 38) Person, persona: Aesthetics of (see Aesthetics); Animals (see Animals); Capacity, competence 22, 39–40, 48–51, 56, 67, 76, 79– 80; Civil person, civil persona 32–3; Drama, method of dramatization (see Drama); Of the child 39, 42–3, 47–51; Gender, sex, sexual identity 12, 31, 34, 38–44, 48–51, 52 (n 6), 55 (n 38, n 39); Free/unfree, master/slave 11–12, 27–31, 78–82; Law of persons, jus personarum 11–12, 21–2, 25–31, 33, 34 (n 3), 36 –7 (n 33), 37 (n 35), 56, 76–81, 83; Legal personality 12, 21–24, 26, 28, 31–3, 36 (n 33), 39, 44, 47–51, 55 (n 41), 57, 61, 63–4, 68, 71 (n 26); Lord/bond 28, 78; As mask (see Mask); Natural/artificial 30–32, 36–7 (n 33), 39, 69 (n 4); Status 11–12, 25, 27–31, 33, 39, 41, 49, 52 (n 6), 56–7, 65, 78–80; As critique of subjectivity, subject of rights 12, 23–5, 30, 33, 76, 160 Personal jurisdiction (see Jurisdiction) Philosophy: Civil philosophy (see Civil jurisprudence); Critique, critical 22, 97, 119–120; Deleuze, Gilles 2–3, 7–9, 22–3, 26–7, 34, 47, 53 (n 19), 76 – 8, 85, 89, 94–5, 109, 121, 138, 159 – 60; Expression, representation 2–3, 8–9, 83, 85, 89, 121; Friendship 10, 44; Jurisprudence (see Jurisprudence); Life 3; Metaphysics (see Metaphysics); Moral philosophy 10, 33, 104, 119, 153; Nietzsche, Friedrich (see Nietzsche); Of the ‘Other’ 47; Spinoza, Baruch (see Spinoza); Theology 96, 104 Possession: Australia, native title 94–5, 108; Common law (see Common law); Flight 60, 107–108; Hegel 13, 100, 102–103; And Law of persons 22, 29, 31, 80, 82; Mask, persona (see Mask); Nomadic 107–108, 111–112 (n 42), 157 (n 57); And Property, ownership 59–61, 67, 77, 83–5, 94–5, 100 –103, 106; Psychoanalysis

Index 105–106; Right of (see Right(s)); Savigny 13, 100–101, 103; Sedentary 60, 107–108 Procedure: Action, Law of actions (see Action(s)); Civil procedure 117–118, 134; Forms of action (see Action(s)); Inquiry/inquisition 41, 43, 49, 124, 129–132, 150 –151; As genre of jurisprudence (see Genre, see also Jurisprudence); Judgment (see Judgment); Procedural form 13, 116–117, 125, 129 –30, 132, 134, 138–9, 142–3, 147, 149, 153, 154 –5 (n 23); Tactics 131–4, 149 –50; Test 129 –32, 150 Proust, Marcel: 44 – 6 Psychoanalysis: 95, 103–106, 127 Pufendorf, Samuel: 32, 118 Reaction, reactivity: Against Hegel 95; Judgment 13, 88, 116, 119–126, 135 (n 22), 139; Of law 8; Morality 29, 88; Reactive force (Nietzsche) 116, 122, 124, 135 (n 22); Taboo 87 Re Alex [No. 1] and [No. 2]: 38–43, 47, 49, 51, 51 (n 10) Recognition: Dialectics 79, 97, 103; Person, persona 22, 28–9, 31, 33, 55 (n 41), 57–8, 65; Representation 8–9, 28, 33, 65, 79, 82–3, 116; Subject of 111 (n 38) Repetition: 82–3, 91 (n 19), 144, 160 Representation: And Expression 1–2, 8–11, 17 (n 36), 58, 80, 82–5, 89, 93 – 4, 103, 108, 116, 119–123, 125, 159 – 60; Mask, persona 25 – 6, 33, 35 (n 8, n 15), 39; Dialectics 28–9, 79; Legal status of animals 59, 61–2, 64 – 6 Right(s): Animal rights (see Animal(s)); Contest, dispute 131, 156 (n 40); Cycling 91 (n 24); Discourse, language of 59, 65, 68, 93, 100; Evaluation of 29–31, 33, 49, 64, 67–8, 160; Expression (see Expression); As genre of jurisprudence 10–11, 14; Human rights (see Human rights); Humour 84, 105; Invention, creation of 7, 13 –14, 30, 57, 86, 88–9, 94, 109; To judge 132, 149; Jurisdiction, ‘saying’ 15 (n 3), 83, 160; And thing, res,

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‘Law of things’ 12–13, 76–7, 80–85, 88, 94, 98, 160; Natural right 12, 81, 90 (n 14), 94; Of Possession 13, 22, 60, 84 –5, 89, 94–5, 100–101, 103, 106, 108; Sexuate, gendered 39, 42–3, 48–51, 53 (n 17); Science/Philosophy of 96–100, 102–103; Status 28; Subject of (see Subject); And ‘wrong’ 117, 131 Roman law: 36 (n 33), 75–6, 83, 87–8, 90 (n 3), 91 (n 25), 95–6, 99–101, 103 Savigny, Friedrich Carl: 10, 13, 95–103, 109, 109 –110 (n 15), 110 (n 17, n 20), 160 Schmitt, Carl: 95– 6, 98–9 Schroeder, Jeanne: 106 Secularism, secularization: 96, 118–119, 128 Sedentary (see Possession) Sex (see Gender) Sophocles: 132–3 Sovereignty: 2, 5, 37 (n 35), 83, 96, 125, 132, 147–8, 156–7 (n 42) Spinoza, Baruch: 9–10, 12, 77–8, 80 –82, 90 (n 14), 91 (n 19), 94 Subject, subjectivity: Of desire 104; Of gender, sex 38, 43–4, 53 (n 19); Of judgment, adjudication, truth 4, 43, 117–119, 122, 125–131, 134, 150; ‘Larval’ 22; Philosophy of the 47; Of recognition (see Recognition); Of rights, legal subject 7, 11–13, 23– 8, 30–33, 37 (n 35), 41, 48–9, 56, 58, 64–5, 68, 76, 160 Subject-matter (see Jurisdiction, see also Thing, res) Technique: Legal technicality, technicism 1–8, 10–14, 21–4, 28–9, 33, 48–9, 51, 56, 58, 76–7, 96, 109, 116, 118–119, 126, 159, 161; Technical contrivance, innovation 7, 24, 28, 64, 77, 87–8, 126, 133–4, 149, 159 –60; Technical form of judgment 115 –117, 129, 138, 148, 151–3; And writing, inscription 144– 6 Technology: Judgment, adjudication 117, 129, 131, 138; Law, jurisdiction 2–5, 8, 10, 116, 140, 142–4, 147, 154 –5 (n 23); Personality, masking 24, 32–3; Procedure 126

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Test (see Procedure) Thing, res: Law of Things, jus rerum 13, 76–8, 80– 85, 87– 8, 90 (n 3), 94, 109; Matter, subject-matter 68, 76, 88; And person, persona 11, 13, 75 –7, 80, 82–3, 89, 94, 103, 109, 159; And property, ownership 59, 68, 81, 83 –5, 87, 91 (n 22, n 24), 100, 102; And religious status 88; As right (see Right(s)); Thing in itself 81, 83, 103 Thomasius: 118 Thomas v Mowbray: 139, 141–3, 147, 149, 153, 154–5 (n 23), 158 (n 59)

Thomas, Joseph ‘Jack’: 140–142, 150, 152, 154 (n 20) Thomas, Yan: 87 Transsexual, transsexuality: 38, 46, 49 –50, 52 (n 1, n 6, n 7), 53 (n 19), 55 (n 38) Ulmen, G. L.: 95 Vernant, Jean-Pierre: 26 Wolff, Christian: 118 Zˇizˇek, Slavoj: 105