Jurisdiction in Deleuze: The Expression and Representation of Law

Edward Mussawir

• Publisher: Taylor & Francis
• Year: 2011
• eBook ISBN: 9781136816628
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

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.

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 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 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 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 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 lo...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of cases
• Table of statutes
• Preface
• Acknowledgements
• 1. Deleuze and jurisdiction: expressionism in jurisprudence
• PART I Masks and personal jurisdiction
• PART II Rights and subject-matter jurisdiction
• PART III. Actions and procedure
• Bibliography
• Index