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.

Natural right, immanent power

I attended a presentation tonight given by the Federalists and which featured a talk by a noted Constitutional law scholar. Throughout his discussion of originalism and formalism as doctrinal forces operating conjunctively (sometimes in tandem, sometimes in tension) in contemporary Supreme Court jurisprudence with respect to questions of criminal procedure, I kept coming back to an observation made by Deleuze in a lecture he gave on Spinoza, Hobbes, and natural right, which goes,

“[W]hat is this history of power, and of defining things by power[?] I say: there was a very important moment, a very important tradition, where it is very difficult, historically, to get one’s bearings, if you don’t have some schemas and reference marks, some points of recognition. It is a history which concerns natural right, and this history concerning natural right, it is necessary that you understand this: today this appears to us at first glance very out of date, as much juridically as politically. The theories of natural right, in the manuals of law, or in the manuals of sociology, we always see a chapter on natural right, and we treat it as a theory which lasted until Rousseau, including Rousseau, up until the 18th century, but today no one is interested in it, in the problem of natural right.”

Deleuze, “Power and Classical Natural Right,” 9/12/1980, 2-3.

And Deleuze goes on to revitalize the question of natural right in political theory, inflected with his distinctive idea of quantitative distribution as power. But what I want to call attention to in quoting this passage is that Deleuze quite rightly locates the end of rights discourse in Rousseau. Chronologically perhaps this is not quite accurate, but this is not what is at issue: Rousseau is the culmination of rights discourse, the pinnacle of the pyramid. Rousseau has some beautiful – “romantic” – writings on the question of fundamental rights and their role in structuring social organizations. What is fascinating for an American in such a state of affairs is that Rousseau has a remarkable presence in the Federalist Papers (tonight someone called these documents “ratification propaganda,” to the chagrin of many in the room) as well as the Declaration of Independence, the Constitution, and other utterly central items of national interest. In civil law countries (continental Europe), Rousseau and the discourse of rights are not determining forces, at least not in the same way he and it are here in America. Libertarianism and other conservative ideologies would be impossible without this discourse; and such brands of thought and praxis are trademarked Americana by now. Moreover, if not merely the “end” / culmination of natural rights discourse appears with Rousseau but also its death, from Deleuze’s vantage point, it is evident that a sort of metempsychosis has brought it across the Atlantic and localized it at the very heart of American law and politics.

Natural right theory, or natural law, has as its core maxim the notion that innate and naturally-determined (or, more typically, theistically-determined), “inalienable rights” exist, and marks as the function of such regional sciences as jurisprudence and ethics the defense and upholding of such rights. As naturally-determined, these rights enjoy Universality. There is more to say on this peculiar Universality. But it is enough to note that, like Husserl’s Bedeutungen in the Logical Investigations, Vol. II, Inv. I, § 35, rights are not created, but discovered; they have no genetic history, but rather exist in their own particular ideal realm as analytic unities. Doctrine serves to “translate” these ideal unities into empirical rules.

Such metaphysical (literally onto-theological) obscurities should give us reason to pause. This Thomistic (not Aristotelian!) theory has survived legal realism (despite its transparent status as “transcendental nonsense,” in Felix Cohen’s words, however imprecise from a philosophical standpoint) and critical legal assault. In a sense. Battered and bruised, for sure, but nevertheless still breathing. Isn’t this astonishing?

In a future post, I will take up the question of the genesis of practical ensembles in order to try to account for social phenomena like this. But for now, let me limit my inquiry to the role of natural right theory in American Constitutional jurisprudence, and gesture toward a Deleuzian critique.

Originalism, a critical commentator at tonight’s talk said, is largely absent in all other Constitutional discourses in the world today. It is, in sum, a distinctly American juridical phenomenon. It demonstrates the fondness with which our culture relates to origins, traditions, and so on. Appeal to the original intent of the framers of the Constitution in order to resolve contemporary issues of law – which, of course, no soothsaying framer could have possibly foreseen – is a relatively uncontroversial approach (in Constitutional Law courses, in undergrad as in law school, students are told that “original intent” is one of the five major categories of argument the proponent or opponent of a particular position can make). Originalist arguments are frequently, notably by conservative Justices such as Scalia and an army of lesser federal judges in Circuit Courts, granted what amounts to a default status, as if divining the original intent of the framers automatically resolves the matter at hand. Of course this is reductionistic, but I think it is generally accurate. Critics often complain that originalism has no such claim to default status, that the Constitution is not an inert artifact but a “living document” changing with the social conditions of a particular time, or various other similar arguments of varying degrees of sophistication, all hinging on the notion that the original intent of the framers is more or less irrelevant. In a cultural sense, what is revealed in this phenomenon (and the degree of radicality attributed to the otherwise typical commentators attacking this appeal to historical authority) is the American fetish of the arche.

The Constitutional law scholar presenting tonight formulated a distinction under the proper names “Scalia” and “Breyer” and identified these names with two approaches to Constitutional jurisprudence: archaeological and architectural, respectively. The archeaological or ex post, retrospective approach is fundamentally conservative (in a broad sense) while the architectural or ex ante, prospective approach is fundamentally progressive and pragmatic. The archaeological jurisprudence of Scalia features an emphasis on originalism and formalism and seeks to find the delicate balance between the two notions that will generate “just results,” i.e., clear, bright-line rules in accord with the original intent of the framers. Though the speaker did not suggest as much, the architectural approach of Breyer could just as easily be splintered into a dichotomy featuring an appeal to origins as one part, though no default status is thereby attributed (rather, original intent assists in the decision insofar as it is pragmatically and efficiently possible to allow it to do so). Both of these approaches, then, manifest this fetish of the arche in the properly juridical sphere, indeed, in the highest court in that sphere (for Americans).

Isn’t there some tertium quid, some third way? Some way that does not privilege the arche and which nevertheless attains justice, inasmuch as that is possible? Yes, there is, if we are able to recognize the dividuality, in Deleuzian terms, of the nation-state: original intent (assuming completely arguendo that this is both possible and desirable to divine) loses its status as authority or legitimating ground insofar as the nation has qualitatively changed since the ratification of the Constitution, by way of a redistribution of intensive quanta. Intensive factors such as populations and socio-cultural pluralities and processes of pluralization, the immaterialization of labor, and so forth have operated to constitute a new field of cultural individuation, one that is qualitatively different from that at work in 1787 (or 1819, 1865, 1929, 1945, 2001…).

And this is what allows me to say fetish: such a situation is manifestly symptomatic of a sort of political delirium.

The appeal to origins can be refashioned, Deleuze tells us, as long as we recognize that it is not essence, not “nature” in this sense, that gives “rights” (useless representations, he tells us elsewhere) – no, “natural right” must be understood on the basis of a conception of “essence” as power, as what a body can do, what relations it can enter into and which will work for the heightening of capacity of that body. A Deleuzian natural (immanent, not innate) right (power) theory! It is worth thinking about.

Hearsay: A Note on a Lacanian Question

According to Federal Rule of Evidence 802, hearsay is not admissible as evidence in a court proceeding except as provided in the FRE (or other legislation). “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). The hearsay exceptions are legion (for instance, excited utterances, assertions made during the course of a present sense impression, various types of records, and so on are all admissible to prove the truth of the matter therein asserted – and these examples come from only one of many categories of such exceptions). A case often turns on whether or not some key piece of potential evidence can be admitted for its truth-value or probativeness with respect to the fact or set of facts to be proven in the claim. The court must decide whether to hear, to take into consideration in formulating its decision, the item in question; this requires an analysis of the merits of a hearsay objection (by opposing counsel) and, concomitantly, whether a hearsay exception applies (assuming we are dealing with an out-of-court statement offered against a party, etc.). That is to say, what is at issue is always whether or not the court will register the out-of-court utterance; we would not be remiss in suggesting that the court masquerades in the garb of the Other in a hearsay question, par excellence. The supplicative desire (an impoverished desire) of the party offering the evidence is, in a Lacanian reading, a demand (demande, appeal, request) addressed to the Other from which the party-Subject can expect a symbolic response, a coded articulation. This particular reintroduction to the juridico-Symbolic realm raises a question about the reproduction of the imaginary order of things, namely, when or in what circumstances will the discursive structure admit a foreign element? A second question, though of decisively greater importance, quickly follows the first: If we can assume (as I think we can) that the structure grants admittance only to those elements capable of re-encoding, capable of being neutralized, is it ever possible to subvert this reproductive process, to elude the symbols of (imaginary, “consistent” in Badiou’s terminology) justice?

I would like to follow this thread for a bit, using the hearsay rules as a launching pad only (they are quite elastic, after all).

According to Lacan, Freud (in Totem and Taboo)

“link[s] the appearance of the signifier of the Father, as author of Law, with death, even to the murder of the Father – thus showing that if this murder is the fruitful moment of debt through which the subject binds himself for life to the Law, the symbolic Father is, in so far as he signifies this Law, the dead Father.”

“On a Question Preliminary to Any Possible Treatment of Psychosis,” Écrits: A Selection, 199.

The monopoly over sexual gratification held by the primal Father, in Freud’s myth, is an originary social formation in itself. The violent overthrow of that regime – the parricide executed by the band of brothers – is the dialectical response produced by that originary formation; that is, the father’s “monarchy” created the conditions for its own dissolution precisely insofar as it operated smoothly, though in truth the tonality of this dissolution was predetermined in that it comes to pass through a process of negation. (One sees, therefore, an important precedent to Walter Benjamin’s “Critique of Violence” in Freud.) This new regime, prospectively one of liberation and freedom, turns out to be quite different than expected (though not, of course, from a dialectician’s point of view): it is the founding site for the event of repression (we might thus say, “Repression”). The guilt that emerges in the killing – more accurately, in the aftermath of the killing – is the kernel of the Other abstracted from its “property” and internalized, such that, henceforth, we can say that the Other resides in each subject (though not, of course, completely – whatever that might mean). This “fruitful moment of debt” is the true (Lacanian) constitution of the subject, properly its subjection. The Law, the Name-of-the-Father, operates as the ultimate anchorage point for the entirety of social / symbolic life, which is to say, as the superegoic thrust in ideal form.

Law & Psychoanalysis takes this extremely panoramic view of law – law as culture, law as society – as its point of departure. Moreover, Law & Psychoanalysis is not exactly a marginal-marginalized approach any longer – it has developed into a rather sophisticated mode of legal critique, with adherents from all intrajuridical disciplines or practice backgrounds and from all styles of legal academy. I would like to discuss the psychoanalytical approach to law and, in relatively short order, raise some fundamental questions.

For Lacan, according to noted Lacanian legal theorist David Caudill,

“no one is ever outside the Law – people stand in relationships of vassalage and crime, honor and dishonor, with the Law. Already, of course, ‘the Law’ is the symbolic order consisting of ‘chains’ that bind and orient and transform without regard to consciousness. We enter the symbolic order with language, in place, and it assigns us our places.”

Caudill, Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory, 63.

All this is vintage Lacan, so the potential holdup is not with Caudill per se. The stumbling block is that the law, as evidenced in the quotation from Lacan’s discussion of Schreber posted above, the object of study or at least the means of ingress into larger social theory problems, is in such an approach the symbolic order as such (the Name-of-the-Father as pure “grounding” signifier, ultimate point of reference), while legal theory, at least in the Liberal tradition (in which American jurisprudence is anchored), wants to focus on questions of judicial decisionmaking, doctrinal analysis, and so forth, and this holds even for radical legal theorists in this tradition (I am thinking of the “radical realists” of the 1930s and 40s in particular, but also the more recent CLS movement, a revival and even an excrescence of that earlier mode of attack known as realism). It seems a Lacanian approach might broaden the field a bit too much, bite off a bit more than an American scholarly audience (which is not to suggest the opposite for, e.g., a European scholarly audience, a Canadian scholarly audience, etc.) cares to chew through. These are concerns near to the hearts of critical theorists in general, of course, because they want/need an audience that is greater in number than they themselves (otherwise they are writing to themselves alone) yet, and perhaps this is despite protestations, there is a certain “critical pride” in minority, a certain seduction in moving against the mainstream, and in assaulting said mainstream with allegations such as that these strands of work “naturalize the status quo” (this is Peller), “contribute to the reproduction of hierarchy” (this is Kennedy), and so on. I point this out not because I want to neutralize these claims (indeed, I wholeheartedly endorse the Peller and Kennedy critiques of mainstream sociolegal thinking), but because I wish to highlight the “critical anxiety” or ambivalence in a reflexive manner, as a way to engage it productively.

Is this stumbling block fatal to such an approach? Hardly! But it is real, and must be grappled with (like any real). The minority of an approach is sometimes its strength, as we know. Delivered unto us thereby is often a new set of percepts, a new structure of affect, a whole new potentiality or singularity awaiting actualization. These percepts and affects appear, from the molar standpoint, as, e.g., trivialities, non-sensical, or bits of paradox. The real, as Lacan claims, is essentially misrecognized. Yet the redistributions and condensations they bring in being carried out lead us to look back on them as events, defining, earth-shattering (some will say: “volcanic”) events.

What is really at stake here is the content of the set of potentials available for actualization in a Lacanian critical jurisprudence. The courts and the legal institution in sum play a distinctive part in the perpetuation of a particular symbolic order or regime of signs. Given this, we are required to follow up: Is there a potential for liberation in the virtual sphere of a Lacanian approach? Psychoanalysis may run up against its limit here, or, for more sympathetic folks, may force the realization upon us that there is no such thing as liberation. Schopenhauerian as it sounds, we may be condemned to the particular brands of oppression brought out by our representational-democratic (i.e., pseudo-democratic) regime of signs. All we can hope for is to “traverse the fantasy,” to become docile with respect to the order of things through acceptance. But if this is the case, why did we bother with a psychoanalytical critique of law in the first place? (Zizek has some interesting things to say on this question, but I can’t discuss them now – certainly, I will return to Zizek’s role in developing a psychoanalytic critique of law, revisiting this question with a new immediacy; Zizek is able to discern in the law, in an institutional as well as cultural sense, a sort of de-limitation, a restriction that nevertheless enables, and so the possibility of a truly constructive psychoanalysis of law becomes real.) For my part, here is where I think the possibility of a Deleuzian, not to say “schizoanalytical,” approach to law becomes necessary. I’ll merely light the path here but will return in a series of future posts to begin actually following it, as I work out some details.

A central theme of the Anti-Oedipus is that social formations generate their own lines of escape, that laissez-faire capitalism, for instance, breeds marginal subjects that sense the means of egress, the “leaky spots,” made available by the functioning of the system itself. And this is its “proper” functioning: Deleuze & Guattari continually note, in that text, that capitalism “works,” there is no reason for it not to work; in “working,” however, variegated flows of labor (minor sciences, war machines of various types, and so on) come into being as a sort of remainder, in the form of a hold-over – and then it becomes a matter of seizing this liberatory potential in some constructive way, or, as Deleuze will say, “to be carried off elsewhere, the beyond, on a crazy vector, a tangent of deterritorialization” (“Two Regimes of Madness” in Two Regimes of Madness, 15). Does it become possible to follow such a tangent in a Deleuzian mode?