Key Concept

The relationship between law and the thought of the French philosopher, Gilles Deleuze, is an interesting one. Throughout his work, Deleuze, often, manifested his contempt for judgment and representation –  undeniably, two fundamental characteristics of law and legal thought more generally.[1] Despite that, in an interview with Claire Parnet, he states that “I have always been fascinated about jurisprudence, about law… If I hadn’t studied philosophy, I would have studied law[…].”[2] Yet, he was quite clear that this interest in law and jurisprudence is not one that aims towards ‘the discovery’ of fundamental truths or the Truth about law’s essence or nature – issues that he considered to be empty abstractions, that fail to engage with the particularities and singularities of life. Deleuze’s understanding of jurisprudence becomes then quite enigmatic. Yet, as I argue, it is worth examining because it, potentially, opens up different, non-juridical, an-archic ways of (re)thinking about jurisprudence and law in general terms.

Jurisprudence: A multiplicity of meanings

Jurisprudence is a notion or concept that has a multiplicity of meanings and it is used in an inconsistent manner. For instance, within the current Anglo-American legal milieu, jurisprudence is understood as a science or a discipline.[3] To that extent, the notion tends to signify the science or a discipline “which contains the art of science of legislation.”[4] In other words, it is defined as the science of the legislative process taken by ‘legal experts’ (e.g. legislators) in order to establish laws. In addition, the term can be used to signify a legal system, more broadly.[5] Within the (legal) academic milieu of this Anglo-American tradition, jurisprudence’s meaning tends to be equivalent to the study of the philosophy of law/legal philosophy or legal theory. For example, Adam Smith defines the term as “the theory of the rules by which civil governments ought to be directed’, otherwise, the theory of the general principles of law and government.” ^[6] Thus, the academic discussions within this tradition revolve around certain questions on the nature or the validity of law (e.g. ‘what law is’ or ‘how it should be’) or an investigation of the connection(s) between law and morality. As a result, a ‘jurisprudent’ – that is a person operating through or who engages with jurisprudence – is, usually, understood as someone who possesses a high level of scientific expertise on purely theoretical aspects, concerning legal thought. The jurisprudent then becomes the legal theorist or philosopher – a person who contemplates or reflects upon (theoretical) legal principles and norms.

The meaning of jurisprudence becomes even more perplexing when we turn our attention to its continental meaning. The French term la jurisprudence signifies a mode of operating through case-law rather than a synonymous for legal theory or philosophy. More specifically, and according to Larousse, Dictionnaire Français, “la jurisprudence est l’ ensemble des décisions judiciaires et administratives, qui constitue une source du droit [jurisprudence is the set of judicial and administrative decisions, which constitute a source of law or rights].^[7] While, the continental sense, at least, at first sight, manifests a practical element, as opposed to the predominant theoretical sense of the Anglo-American use of jurisprudence this is not the case. In broad terms, this ‘operation through cases’ of la jurisprudence is not very distinct to the understanding of common law and as such it is nothing more than “case-law, or that part of the positive or actual law built up by judicial decision rather than enacted and laid down in statutes or code: what Bentham called ‘judge-made law.’”^[8]

To that extent, it seems that, and despite their differences, the ‘modern’ understandings of jurisprudence share the view that the term refers to an operation that takes place within, the often narrow (-minded) boundaries of the discipline of law either as a purely theoretical exercise of contemplating or reflecting upon identifying ‘a higher Truth’ about law’s nature or a process which is bound ‘on precedent’s authority’ set out by judicial decisions and it is based upon a hierarchical structure (either based on state rules and/or those of courts). These understandings of jurisprudence though seem to have shifted, significantly, from the practical wisdom and engagement that the etymology of ancient jurisprudentia tended to signify. The word is the synthesis of the Latin words ius (law) and prudentia (wisdom). Hence, jurisprudence is law’s wisdom. But its wisdom is of a special kind. Prudentia deriving from the Ancient Greek word phronesis signifies a kind of practical wisdom or skill. According, to Aristotle such wisdom is something that is gained through constant and close engagement with something and it is a matter of thorough and deep knowledge of the particularity of a situation that we encounter.[9] Hence, phronesis calls for care and attentiveness for the singular. As such, phronesis manifests a certain ethos – that is a mode of life – which describes the person who can be considered as practically wise. This ethos, as mentioned above, seems to become secondary or even completely lost from jurisprudence’s modern understanding. This detachment from the ethical or practical element renders jurisprudence a merely theoretical exercise, which is also hierarchical as it is widely considered as a science for very few, supposedly ‘wise men’ and one which is focused on identifying so-called ‘higher principles or truth(s) about legal thought.

Deleuze’s jurisprudence as a creative, an-archic ‘philosophy of law.’

Deleuze’s description of jurisprudence remains an enigma as he did not expand on it. Yet, as I argue, he manages to revitalise and to give a new impetus to this ethical aspect of the jurisprudential mode of operation. As I argue below, Deleuze, effectively, combines both the Anglo-American, analytic meaning of jurisprudence as a philosophy of law – yet, he does so in his own idiosyncratic way of understanding what philosophy is – and its continental signification as a mode of operating through cases. Such cases, however, should not be reduced to what is understood as purely legal ones but they are rather cases that manifest a life that is not subordinated to the abstractions of supposedly higher values, causes or norms. For example, Deleuze states that:

The judicial notion of ‘case’ or ‘jurisprudence’ dismisses the universal to the benefit of emissions of singularities and functions of prolongation. A conception of law based upon jurisprudence does not need any ‘subject’ of rights. Conversely, a philosophy without subject has a conception of law based on jurisprudence.[10]

It seems then that jurisprudence, here, signifies a mode of ‘working through cases,’ but, as mentioned above, this operation should not and cannot be reduced solely to the Anglo-American or common law understanding of precedence. The jurisprudential procedure is not a mere interpretation of the facts of a case and an application of ready-made legal rules, as it, usually, happens in courts and the sum of the national and supranational so-called ‘official legal entities’. This operation is a matter of great sophistication and care which is characterised by a certain ethos – an ethos that is a matter of someone who possesses a deep knowledge of the law and he or she is ready to assess and practically apply this knowledge on the specificity and particularities of each case that must be addressed.

Further to that, Deleuze does not reduce the meaning of jurisprudence only in the above way. As it was mentioned above, what he offers is rather a combination of both Anglo-American and continental meanings. This combination is what manages to, effectively, restore this ethical aspect of the term. More specifically, in other instances, Deleuze refers to jurisprudence as ‘the philosophy of law.’ For example, in a conversation with Raymond Bellour and François Ewald, Deleuze states the following: “Rights aren’t created by codes and pronouncements but by jurisprudence. Jurisprudence is the philosophy of law, and deals with singularities, it advances by working out from singularities. All this may, of course, involve taking particular positions to make some particular point.”[11] So, here we have the combination of the two dominant understandings of the term jurisprudence: 1) a philosophy of law and 2) a working through singular cases. This understanding of the philosophy of law, should not be confused with the common Anglo-American understanding of what it means to philosophise with or about the law. Instead, it should be read in the same, idiosyncratic, way that Deleuze and Félix Guattari understand philosophy, namely as “the discipline that involves creating concepts.”^[12] Thus, in equivalent terms, jurisprudence as the philosophy of law becomes now the process for creating law or rights.

Thus, this creation of law does not rely upon established norms and rules and it is not a matter of ‘expertise’ – at least in the way we tend to understand this term. When law is understood as a discipline for the selected few, what we usually witness is “the application [of] universal rules to singular situations, thus often doing a real injustice to them.”[13] The operation of law then becomes a sort of Procrustes’ bed of this abstract and universal rules and values. On the other hand, Deleuze’s understanding of philosophy (of law) as a creative operation, takes into account the particularities of each case, and thus it operates through the singular rather than the abstract and universal. It is also a philosophy of life because it demands deep learning of the situation and the way(s) of operating through a jurisprudential mode of being – that is a specific ethos. Jurisprudential ethos then – an ethos or law’s phronesis which was present in the ancient understanding of the term but, as I argued, is, fundamentally, lost in modern times – is restored with a new and unprecedented dynamism, which comes to defy any form of dogmatism and hierarchies, found in legalistic modes of thinking.

This ethical aspect of Deleuze’s understanding of jurisprudence becomes more evident, in the interview ‘Control and Becoming’ with Toni Negri, where Deleuze, explicit, states that:

What interests me isn’t the law or laws (the former being an empty notion, the latter uncritical notions), nor even law or rights, but jurisprudence. It’s jurisprudence, ultimately, that creates law, and we mustn’t go on leaving this to judges [and, we can also add here, to the so-called ‘legal experts’ in general terms].^[14]

To that extent, Deleuze departs from the usual understanding of law as a form of authority or ‘a ground’ (an arche).

“it is a nomos very different from the law.”[15]

Deleuze’s understanding of jurisprudence paves the way for a non-juridical, an-archic understanding of a nomos rather than law. Following the remarks on the meaning of the word by the French linguist Emmanuel Laroche, Deleuze explains that nomos for Homeric society has a pastoral sense. However, this meaning of allocation or distribution was not a matter of land distribution, because as the philosopher states the understanding of nomos as land-distribution was “only belatedly implied.”^[16] Instead, as Deleuze remarks:

Homeric society had neither enclosures nor property in pastures: it was not a question of distributing the land among the beasts but, on the contrary, of distributing the beasts themselves and dividing them up here and there across an unlimited space, forest or mountainside. The nomos designated first of all an occupied space, but one without precise limits (for example, the expanse around a town) – whence, too, the theme of the ‘nomad.’^[17]

Here the figure of the nomad comes to counter the enclosed space provided by the official laws of a society based on a so-called ‘sophisticated’ legal system and rights, for example, a figure of a state apparatus. The nomad then is affiliated with a notion of an an-archic and constant movement in an open space without a beginning nor an end. To that extent, we can say that a nomad proceeds in a mode of becoming, that refuses to be limited by any form of transcendent, moral, fixed and eternal rules, norms or identities. According to Deleuze, the nomads follow a nomos, or we can say a jurisprudence which is based on a principle – and not an arche– of a ‘nomadic distribution,’^[18] which is “a sort of crowned an-archy, that overturned hierarchy […].”^[19]

In these terms, then, a ‘nomadic’ jurisprudence is an ethical action that aims to break the boundaries of this dogmatic mode of thinking and existing promoted by law, It is then a way to “disturb the state and the law from the outside.”^[20] In that sense, it is in constant opposition and strife against the dogmas and hierarchies of any state apparatus, and thus it should be ready to respond adequately to any assault coming from them. It has to possess then a lethal instinct ready to destroy any form of dogmatism and to ‘break the wheel’ of the current state of affairs, refusing to compromise and to be ‘pacified’ by any call for pseudo-progress and consensus.^[21] Such jurisprudence is an-archic because it refuses to be subordinated by any form of hierarchies and it also refuses to prioritise a mode of being or a style of life over another. Despite its anarchism, however, a jurisprudence of a becoming-human is consistent in the sense that it functions and (re)organises itself through institutions or through nomoi, that are ever-changing and expressive (as opposed to representational) of a certain situation in question.

Its ethos is an-archic but in a sort of a crowned-an-archy, because it is a mode of being that is ‘noble’ – in Nietzschean terms – because anyone who operates through this jurisprudential mode is ready,

to become worthy of what happens to [them], and thus to will and release the event, to become the offspring of one’s own events, and thereby to be reborn, to have one more birth, and to break with one’s carnal birth—to become the offspring of one’s events and not of one’s actions, for the action is itself produced in the offspring of the event.^[22]

Christos Marneros is an Assistant Lecturer and a PhD Candidate at Kent Law School, University of Kent.

Bibliography

-Aristotle, Nicomachean Ethics. Trans. Robert Crisp (Cambridge University Press, 2004).
-Austin John, The Province of Jurisprudence Determined (Cambridge University Press, 1995).
-Benjamin Walter, ‘Critique of Violence.’ Trans. Edmund Jephcott in Peter Demetz (ed.) Reflections: Essays, Aphorisms, Autobiographical Writings(Schocken Books, 1986).
-Bentham Jeremy, Introduction to the Principle of Morals and Legislation (Batoche Books, 2000).
-Deleuze Gilles and Guattari Félix, Nomadology: The War Machine. Trans. Brian Massumi (Semiotext(e), 1986).
-Deleuze Gilles and Guattari Félix, What Is Philosophy? Trans. Graham Burchell and Hugh Tomlinson (Verso 1994).
-Deleuze Gilles and Parnet Claire, ‘What it means to be on the Left’ in Gilles Deleuze A to Z (Semiotext(e) DVD, 2004).
-Deleuze Gilles, ‘A Philosophical Concept…’ in Eduardo Cadava, Peter Connor and Jean-Luc Nancy (ed.)Who Comes After the Subject? (Routledge, 1993).
-Deleuze Gilles, ‘To Have Done with Judgment’ in Essays Critical and Clinical, Trans. Daniel Smith and Michael Greco, (Verso, 1998).
-Deleuze Gilles, Difference and Repetition, Trans. Paul Patton (Columbia University Press, 1994).
-Deleuze Gilles, Expressionism in Philosophy: Spinoza. Trans. Martin Joughin (Zone Books, 1992).
-Deleuze Gilles, Logic of Sense, Trans. Constantin V. Boundas, Mark Lester and Charles J. Stivale (Bloomsbury 2015).
-Deleuze Gilles, Nietzsche and Philosophy. Trans. Hugh Tomlinson (Columbia University Press, 2006).
-Deleuze Gilles, Spinoza: Practical Philosophy. Trans. Robert Hurley (City Lights Publishers 2001).
-Deleuze Gilles, Negotiations Trans. Martin Joughin (Columbia University Press, 1995).
–Larousse Dictionnaire Français https://www.larousse.fr/dictionnaires/francais/jurisprudence/45213
-Newman Saul, ‘Anarchism and Law’ (2012) 21(2) Griffith Law Review 307.
–Oxford English Dictionary https://www.lexico.com/en/definition/jurisprudence
-Smith Adam, ‘Lectures on the Province of Jurisprudence 1762,’ cited in Scott Veitch, Emilios Christodoulidis and Marco Goldoni, Jurisprudence: Themes and Concepts (3^rd ed. Routledge, 2018).
-Tur R.H.S., ‘What is Jurisprudence?’ (1978) 28(111) The Philosophical Quarterly 149.
-Zartaloudis Thanos, The Birth of Nomos (Edinburgh University Press, 2018).

Notes

[1] The most striking examples are, possibly, Deleuze’s two books on Spinoza; Expressionism in Philosophy: Spinoza. Trans. Martin Joughin (Zone Books, 1992); Spinoza: Practical Philosophy. Trans. Robert Hurley (City Lights Publishers 2001), his book on Nietzsche; Nietzsche and Philosophy. Trans. Hugh Tomlinson (Columbia University Press, 2006); and the essay ‘To Have Done with Judgment’ in Essays Critical and Clinical, Trans. Daniel Smith and Michael Greco, (Verso, 1998).
[2] Gilles Deleuze and Claire Parnet ‘What it means to be on the Left’ in Gilles Deleuze A to Z (Semiotext(e) DVD, 2004).
[3] John Austin, The Province of Jurisprudence Determined (Cambridge University Press, 1995), 161-162.
[4] Jeremy Bentham, Introduction to the Principle of Morals and Legislation (Batoche Books, 2000), 233-234.
[5] Oxford English Dictionary https://www.lexico.com/en/definition/jurisprudence [Accessed 20 October 2019].
[6] Adam Smith, ‘Lectures on the Province of Jurisprudence 1762,’ cited in Scott Veitch, Emilios Christodoulidis and Marco Goldoni, Jurisprudence: Themes and Concepts (3^rd ed. Routledge, 2018), 1.
[7] Larousse, Dictionnaire Français https://www.larousse.fr/dictionnaires/francais/jurisprudence/45213 [Accessed 24 October 2019]. English translation is mine.
[8] R.H.S. Tur, ‘What is Jurisprudence?’ (1978) 28(111) The Philosophical Quarterly 149, 149.
[9] Aristotle, Nicomachean Ethics. Trans. Robert Crisp (Cambridge University Press, 2004) Book VI Chapter 5, 111.
[10] Gilles Deleuze, ‘A Philosophical Concept…’ in Eduardo Cadava, Peter Connor and Jean-Luc Nancy (ed.) Who Comes After the Subject? (Routledge, 1993), 95.
[11] Gilles Deleuze in Conversation with Raymond Bellour and François Ewald, ‘On Philosophy’ in Negotiations Trans. Martin Joughin (Columbia University Press, 1995), 153.
^[12] Gilles Deleuze and Félix Guattari, What Is Philosophy? Trans. Graham Burchell and Hugh Tomlinson (Verso 1994), 5.
[13] Saul Newman, ‘Anarchism and Law’ (2012) 21(2) Griffith Law Review 307, 311.
^[14] Gilles Deleuze and Antonio Negri, ‘Control and Becoming’ in Negotiations Trans. Martin Joughin (Columbia University Press, 1995),169.
[15] Gilles Deleuze and Félix Guattari, Nomadology: The War Machine. Trans. Brian Massumi (Semiotext(e), 1986), 16.
[16] Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (Columbia University Press, 1994), 309. See also Thanos Zartaloudis, The Birth of Nomos (Edinburgh University Press, 2018), 140-144.
[17] Ibid.
[18] Ibid., 36.
[19] Ibid., 41.
[20] Saul Newman, ‘Anarchism and Law’ (2012) 21(2) Griffith Law Review 307, 327.
[21] I am using here lethal and ‘destruction’ in similar terms to Walter Benjamin, ‘Critique of Violence.’ Trans. Edmund Jephcott in Peter Demetz (ed.) Reflections: Essays, Aphorisms, Autobiographical Writings (Schocken Books, 1986), esp. 297.
[22] Gilles Deleuze, Logic of Sense, Trans. Constantin V. Boundas, Mark Lester and Charles J. Stivale (Bloomsbury 2015), 149.