Note on the tasks of a critical legal theory

The last sophisticated, concerted effort of critical legal thinking goes under the name of Critical Legal Studies, or CLS. The most powerful expressions of this diverse “school” of thought can be found in the works of Duncan Kennedy (though the more recent A Critique of Adjudication: fin de siecle (1997) is an extension of his earlier work, it marks something of a break in a new direction, which I will probably take up at some point), Peter Gabel, Gary Peller, and, arguably, Roberto Mangabeira Unger (I say “arguably” because Unger is more properly a philosophical social theorist than a legal theorist – see, for instance, his ontological-metaphysical study, Knowledge & Politics). As an excrescence, of sorts, of the Frankfurt school (notably Herbert Marcuse), the crits were known for their neo-Marxian inflections. Additionally, the Sartre of Search for a Method (they seem never to have made it past this introductory essay to the proper work itself, Critique of Dialectical Reason) is especially important for many adherents. The central thematic is always the pivotal role of the law and the legal institution in a late capitalist regime, and the ways in which they oppress, repress, and compress the masses and the marginalized – the law as an apologetics for the status quo. Against this, the constructive effort is usually socialist in nature.

I’m becoming less and less satisfied with thinking in such categories as capitalism, socialism, the symbolic, and so on, at least with regard to legal theory. There is a hint of this in my comments on Law & Psychoanalysis. What is needed is a legal theory that takes seriously micropolitical analysis and its “flows of desire and belief,” group formation or collective individuation, and concrete problems of exploitation or expropriation, legal and political. This came to a head when I thought about contemporary music via Einstürzende Neubauten, where the earliest compositions are direct assaults upon “capitalism” – which in reality has little content. Perhaps this is the mark of the failure of that earlier work, not, as I initially suggested, the incomplete character of its critique. Complete critique may be a fantasy. Perhaps it ought to be traversed.

It seems to me that a pragmatic analytic will refrain from making capital judgments, condemnations on “capitalism” tout court, straight-up condemnations of the law as collapsed into the political, and the rest. Rather, such a course of study would center on the conditions required for real social change and the details (and details of details) describing the present status of the elements of those conditions – for instance, what intensive factors (types of rhetoric, methods of goal-setting both internal and external, economic phenomena such as interest rate fluctuations, interactions between markets, the widening of the gap between haves and have-nots, legal fictions such as those embodied in contract law, corporate law, etc.) coordinate to bring about the individuation of collectivities and help organize their functions?

The flipside of this is the imperative to keep in close communication with the “big problems” of legal-cultural studies. We need to continue to thematize the role of law in a control society. We need to continue to study the paradigm of the state of exception and the biopolitical. My proposal is that these things can only be really gotten to if we move away from allowing our representations and reifications to determine our inquiries. A chain of inferences can always be traced from a given instance of social or economic oppression or expropriation all the way back to the “capitalist regime.” And I don’t exactly dispute the validity of such a chain. What I challenge is its use. Isn’t it more productive to direct our attention to the present status of the elements conditioning real social change, i.e., not the overwhelming autonomy of capital but its emissions, the leaks in its plaster?

I’ll end this very brief reflection with another quote from one of the most polarizing figures in 20th century thought, Arendt:

“At the moment, one prerequisite for a coming revolution is lacking: a group of real revolutionaries. Just what the students on the left would most like to be – revolutionaries – that is just what they are not. Nor are they organized as revolutionaries: they have no inkling of what power means, and if power were lying in the street and they knew it was lying there, they are certainly the last to be ready to stoop down and pick it up. That is precisely what revolutionaries do. Revolutionaries do not make revolutions! The revolutionaries are those who know when power is lying in the street and when they can pick it up.”

“Thoughts on Politics and Revolution,” in Crises of the Republic, 206.

Outliers, flows, and micropolitics

Hannah Arendt once complained about the methodology of statistics in use in studies such as political science, economics, sociology in this way:

“The laws of statistics are valid only where large numbers or long periods are involved, and acts or events can statistically appear only as deviations or fluctuations. The justification of statistics is that deeds and events are rare occurrences in everyday life and in history. Yet the meaningfulness of everyday relationships is disclosed not in everyday life but in rare deeds, just as the significance of a historical period shows itself only in the few events that illuminate it. The application of the law of large numbers and long periods to politics or history signifies nothing less than the willful obliteration of their very subject matter, and it is a hopeless enterprise to search for meaning in politics or significance in history when everything that is not everyday behavior or automatic trends has been ruled out as immaterial.”

Arendt, The Human Condition, 42-43.

(As will be seen, there are points of both profound agreement and profound disagreement between Arendt and contemporary theory.)

According to this view, which has only gained currency with the theme of the exception in thinkers such as Badiou, Agamben, and Zizek, the outlier is that which eludes the counting procedure of a knowledge-situation, that element which denies its elemental status, which subtracts itself from presentation. Statistics can, thus, only grasp the molar fluctions in a terrain of study and does not register the subjacent molecular flows determining those fluctions. The outlier, in a very real sense, orients the structuration of the as-one, and yet appears (to the counting procedure, the statistician) as nothing, as a scientifically uninteresting, marginal datum. Agrammaticality, infinitesimal asignifying particle, the outlier escapes the overcoding of representation and “microdetermines” the macrodecisions of actual political work, that done by legislators and politicians.

The outlier is understood by the statistician as an individual, a mere anomalous individual deviating from the distribution of the general population studied. However true this may be from the molar-representational standpoint, the essential is lost if the analysis stops here. Hence the need for a micropolitics, a microstatistics, a subrepresentational study of details, of desires and beliefs, of quantum flows. For instance, Fernand Braudel’s three-volume history of capitalism up to the 18th century follows social phenomena such as trends in clothing, edibles, spending, and so on, to formulate a theory of the formation of market and antimarket economies, general and restricted economies. Braudel is a micropolitical theorist for this reason: he follows flows and waves operating at the level of the productive unconscious, using statistics only for their cutting edges, their outliers.

In what is arguably the most important plateau (noting the irony of such a contention – it has meaning only with reference to its closest cousins, the “Treatise on Nomadology,” “The Smooth and the Striated,” and so on), Deleuze & Guattari write:

“What…is a flow? It is belief or desire (the two aspects of every assemblage); a flow is always of belief and of desire. Beliefs and desires are the basis of every society, because they are flows and as such are ‘quantifiable’; they are veritable social Quantities, whereas sensations are qualitative and representations are simple resultants. Infinitesimal imitation, opposition, and invention are therefore like flow quanta marking a propagation, binarization, or conjugation of beliefs and desires. Hence the importance of statistics, providing it concerns itself with the cutting edges and not only with the ’stationary’ zone of representations. For in the end, the difference is not at all between the social and the individual (or interindividual), but between the molar realm of representations, individual or collective, and the molecular realm of beliefs and desires in which the distinction between the social and the individual loses all meaning since flows are neither attributable to individuals nor overcodable by collective signifiers. Representations already define large-scale aggregates, or determine segments on a line; beliefs and desires, on the other hand, are flows marked by quanta, flows that are created, exhausted, or transformed, added to one another, subtracted or combined. [...]
This is how you tell the difference between the segmented line and the quantum flow. A mutant flow always implies something tending to elude or escape the codes; quanta are precisely signs or degrees of deterritorialization in the decoded flow. The rigid line, on the other hand, implies an overcoding that substitutes itself for the faltering codes; its segments are like reterritorializations on the overcoding or overcoded line.”

Deleuze & Guattari, “Micropolitics and Segmentarity,” A Thousand Plateaus, 219.

These mutant flows, emitters of asignifying sign-particles, literally “make or break” the macropolitical decisions of policymakers, legislators, and so on. If, as Deleuze & Guattari hypothesize, beliefs and desires are the basis of a modern State society (they seem to think this is true for any society), an evaluation of flows and their quanta ought to reveal the variable, fluid ‘architecture’ subtending politics and judgment in the popular sense; that is, in this realm of inquiry, we ought to find the distributions, nomadic or sedentary, of singularities organizing the macropolitical field. Perhaps the most difficult aspect of initiating such an analysis, however, is finding the correct, “molecular” means of ingress into the mass. This is the role of the outlier for minor statistics.

I wonder what the relation might be between the figure of the outlier and of what Deleuze & Guattari call power centers or central black holes. The latter function as switches in the economy of quantum flows and segmentarities, translating one into the other in a ceaseless perpetuum mobile. Power centers are chambers of resonance, causing communication between the microflows and macrosegments to commence. Every power center is thus molar and molecular, centralizing and decentralizing, coordinating and reshuffling. This is termed the “zone of indiscernibility” between flows and segmentations, the becoming-flow of segmentation and becoming-segmentation of flows – the operative microtexture of a black hole. As elsewhere, smooth and striated, mutation and overcoding, flow and segment cannot but analytically be separated. Hence, a power center is the entre-deux in the economy. As such:

“[T]he texture [of a power center] lies between the line of overcoding with rigid segments and the ultimate quantum line. It continually swings between the two, now channeling the quantum line back into the segmented line, now causing flows and quanta to escape from the segmented line. This is [the limit of power centers]. For the only purpose these centers have is to translate as best they can flow quanta into line segments (only segments are totalizable, in one way or another). But this is both the principle of their power and the basis of their impotence. Far from being opposites, power and impotence complement and reinforce each other….”

“Micropolitics and Segmentarity,” 225.

We might suspect that the figure of the outlier is a product of the impotency of power. But this is probably not accurate. The outlier rather functions as a removal from the power center, a soft subversion of the regime of signs, precisely an asignifying particle, a line of flight. The scheme produced by the statistician crosses over into, or rather opens the space of possibility for the drawing of a map from the perspective of its silent datum. The outlier is included in the scheme but excepted from the general curve. The latter sees the former as hostile – here again, Draussen ist feindlich, outside is hostile. But we receive a new image of the curve itself when we stand in the place of the outlier: perhaps that of a mountain peak, an unscalable height. Our map becomes a diagram for action, a system of creative evasion: the outlier becomes a war machine (in truth, it has never been anything but).

The space of an outlier is, in Arendt’s language, uncivilized (see her Origins of Totalitarianism, 297) or, in Deleuze & Guattari’s language, smooth. A war machine creates smoothness, seizes upon agrammaticalities, paves over striations and rigidifications. The task is always to carve out uncivilized spaces. In this sense, a war machine is universal, a stateless assemblage of universals (i.e., flows: desires, beliefs). The virtual universalism of flows is only ever embodied in particular outliers; however, it is in this way that the outlier determines the curve, curves the curve. The interactions between flows enact redistributions of singularities and relations between singularities in the universal Open (the Whole, the ungivable antitotality, connective thread), and are the objects of study, by way of the outlier, for the positive science of micropolitics – the positive science of discerning potentialities in a given historical situation.