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.

Small steps toward a theory of practical ensembles

The following post is the first in a rather unorganized series, an endeavor that will undoubtedly take several attempts and will certainly produce several false starts. Having just finished the recently translated lecture series on The Century by Badiou, I’m excited to put some ideas down, even in very rough fashion, regarding a development Badiou’s text produced in my thinking about such problems as community, (political, artistic, scientific, amorous) movements, and groups and the subjectivities of groups. This is something I’d been thinking about for quite some time, and so this is perhaps something I sought out in Badiou, something that many readers would find uninteresting or peripheral with respect to Badiou’s real thematic foci. Of course these readers are correct. Nevertheless.

What is a group? The aim of a micropolitical inquiry into group-formation is to propose a typology of qualitatively different groups classified by genetic history, and then to study the dynamics between the group types. Groups or we-subjects can be broadly divided into three inconsistent types on the basis of their comportment toward the real of their subjectivities: I. those that maintain a representational relation with the real (parties and states, for instance); II. those that maintain a material or presentational relation with the real (microscopic assemblages, revolutionary/inventive subjectivities); III. those that maintain an ambiguous relation with the real – and this cannot be an intermittent ambiguity, but is instead a necessary ambiguity (e.g., art movements which adhere to the principles of a manifesto or other imaginary identificatory device but at the same time continually effectuate revolutionary changes in what it is possible to do in terms of thought, praxis, etc.).

The real is inconsistent, discontinuous, fragmented multiplicity. Badiou claims that “[t]he real may be encountered, manifested, or constructed, but it is not represented.” The Century, 108. Presentational groups reflect this character of the real: they only exist in particularity, in moments of dissonance (political, artistic, etc.), leaping up from and out of the cold representationalist sea like warm-blooded, iridescent flashes. There is probably no such thing as a “presentational-group manifesto.” There is no possibility of following a pathbreaking leader, no chance of adhering to a doctrine. There is only a spark in search of a powder keg, Breton said. There where the real avails itself of an encounter stands the presentational group. The Idea itself is action, and it has, as Idea, a materiality all its own.

“A demonstration or an insurrection, and more broadly a political sequence, or even an artistic creation seized in the violence of its gesture, are in no way representable. Fraternity is not representable. As I’ve already suggested, the unwarranted appeal to large, inert, macroscopic – and therefore supposedly ‘objective’ – sets (class-in-itself, race, nation…) infects subjectivation by way of its presumed representative legitimacy. But only inertia can be represented.”

Badiou, The Century, ibid.

This is, moreover, one reason why presentational and ambiguous groups are not subject to discussion as such: by the time they’ve become “household names,” by the time it becomes possible to trade opinions about them, they’ve already become inert, qualitatively different. Deleuze, for instance, abhors discussion for this very reason.

Each typological variant has traits unique to it, insofar as some relations resist representation but acquiesce to presentation, or resist presentation but acquiesce to representation, and some cannot be pigeonholed in this way due to a constitutive ambi-valence (ambi = both, multiple; valence = capacity, power).

Badiou gives us a way of thinking about group formation, drawing from Sartre and Lacan:

“Since the being of the subject is the lack-of-being, it is only by dissolving itself into a project that exceeds him that an individual can hope to attain some subjective real. Thenceforth, the ‘we’ constructed in and by this project is the only thing that is truly real…. The individual is thus, in its very essence, the nothing that must be dissolved into a we-subject.”

Badiou, The Century, 100-101.

According to Badiou, a subject is such only insofar as a process of truth authorizes him to say ‘we.’ One can say ‘I’ only so long as one can say ‘we.’ The truth procedure to which the subject attaches and which constitutes the subject presents or represents some real, namely, the real of the we-subjectivity. The party, the state, the faith becomes worth dying for; indeed, it would be an honor. Can we not see in this a valuable insight for thinking about political and religious organizations and the ways in which power is inflected in their operations? Perhaps it is not, as Foucault prophesied, or not only, the law which has taken over the management of decisions over life and death (the quintessential function of biopower); perhaps, instead, the we-subjectivities of representational groups have usurped this responsibility. The legitimacy of saying ‘we’ is guaranteed in the real of the group; after this is secured, after the real has been accessed, the we-subject has a stake in Honor, in upholding the Law of the real, and its very identity is placed in peril in the slightest manifestation of doubt vis-a-vis the veracity of the real of the group; death becomes a way into immortality, a solidification of identity. (It might be possible to move this argument out of the general “ideology critiques” we’re so familiar with. The rudiments of the schema are only taking root.)

This line of inquiry has a history. Micropolitics (Deleuze & Guattari’s word in A Thousand Plateaus) or the politics of collective desire would probably be the correct moniker, though in the framework of the latter thinkers, this name is redundant. We see plenty of precedents in the history of modern thought: Gabriel Tarde’s micro-sociological and -criminological inquiries; Gilbert Simondon’s notion of collective individuation, however underdeveloped; Sartre’s late investigations into the praxis of practical ensembles, in the Critique of Dialectical Reason; Foucault and the microphysics of power; Jacques Donzelot in The Policing of Families, a central micropolitical text; perhaps Bourdieu, Stiegler, and DeLanda today, not to mention Badiou’s lectures here cited and undoubtedly in Logiques des mondes (my French isn’t near strong enough, so I eagerly anticipate the translation). This is a sort of offhand list of resources; I would venture the claim that a micropolitical approach to group-formation and group-activity is not a determinative focus of any of the above figures or works.

I would like to end this rather scattered, allusive, and no doubt disappointing post with a constructive, and revealing, excerpt from Badiou, once again. He writes: “From the end of the seventies onwards, the century has bequeathed to us the following question: What is a ‘we’ that is not subject to the ideal of an ‘I,’ a ‘we’ that does not pretend to be a subject?” (Badiou, The Century, 96.) He concludes this quite central essay, “Anabasis,”:

“[T]oday, everything that is not already mired in corruption raises the question of where a ‘we’ could originate that would not be prey to the ideal of the fusional, quasi-military ‘I’ that dominated the century’s adventure; a ‘we’ that would freely convey its own immanent disparity without thereby dissolving itself. What does ‘we’ mean in times of peace rather than war? How are we to move from the fraternal ‘we’ of the epic [note: where alterity is recognized only as the alterity of the adversary] to the disparate ‘we’ of togetherness [note: in Paul Celan's sense, perhaps closer to an alterity of impossible friendship], of the set, without ever giving up on the demand that there be a ‘we’? I too exist within this question.”

Badiou, The Century, 96-97.