Habermas and Deleuze on Law and Adjudication
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This article stages an encounter between Habermas and Deleuze on law, rights, and adjudication. Most of the article is spent developing Habermas’s concept of adjudication as the application of communicatively generated norms. This application, I argue, involves a complex temporality that is at once retrospective and non-creative. Deleuze is used to critique this concept of adjudication in favor of one based on concrete situations and the creation of new problems. In so doing, I will develop Deleuze’s notorious, and notoriously hostile, remarks on human rights and philosophies of communication by relating them to discourse ethics and to the positive conception of law and judgment that can be drawn from his work.
KeywordsAdjudication Deleuze Habermas Human rights Jurisprudence Law
I want to begin with interviews given by Habermas and Deleuze, both very late in their respective careers, on the subject of human rights. With this departure I establish an opposition in order to investigate the reasons for it.
In view of the limited functions of the United Nations, one must keep in mind that representatives in this parliament would be representing populations which of necessity would not be bound together, like the citizens of a political entity, by thick traditions. In place of the positive solidarity of a national citizenry, a negative consensus would suffice, to wit: a common outrage at the aggressive warmongering and human rights violations of criminal gangs and regimes, or a common horror over acts of ethnic cleansing and of genocide.3
Such an proposal would institutionalize a world public, perhaps unable to share a substantial ethical life, but capable of identifying egregious infractions of human rights and expressing properly universal – and universally shared – outrage. Although the universal outrage appears almost as aesthetic as it does discursive (we feel, as if through a shared aesthetic sense, a common horror), what we feel in common will doubtlessly be discursively expressed in common.
Deleuze’s Abécédaire, by contrast, has a very different tone. This interview, done in 1988–1989 on condition of posthumous release, was conducted by Claire Parnet. Perhaps it is this condition that lends an aggressive and polemical character to his remarks on human rights. In the section title ‘G – Gauche [political left]’ Deleuze declares himself unequivocally opposed to the philosophy of human rights and to its adherents. To cite only a few lines from his invective: human rights [les droits de l’homme] ‘belong to soft, impotent thought [cette pensée molle]’; ‘These are discourses for intellectuals, and for odious intellectuals at that, intellectuals who have no ideas of their own’; ‘Those who content themselves to recall human rights and the respect for human rights, well, they’re imbeciles [c’est des débiles].’4
The reasons for Deleuze’s condemnation of rights discourse is developed in this article. For now, we can say that his anathema is directed towards a discourse that annuls the basis both for political philosophy and for concrete interventions. In What is Philosophy? Deleuze and Guattari designate ‘political philosophy’ as that which connects the concept (that is, philosophy) ‘with the present milieu’.5 Discourses of human rights are, for Deleuze, ‘pure abstraction... empty’; they lack connection to concrete problem and multiplicities.6 But this is not to say that Deleuze does not advance any positive legal concepts: rather than human rights, Deleuze will recommend a concept of jurisprudence. Jurisprudence alone can honor and improve the singular situation; jurisprudence is a ‘philosophy of law’ – a properly political philosophy – that works case-by-case, ‘from singularities’.7
Let us look to an example that rejoins Habermas’s proposal. In the Abécédaire Deleuze points to the then unfolding situation in Armenia: Armenians in a Soviet enclave are attacked by Turks, the Armenians take refuge in their own republic, and then an earthquake strikes. This for Deleuze is an assemblage (agencement) – it is a case that requires juridical intervention to ameliorate it, to make it livable. Such a case does call for a universal identification of the infraction of right; these are problems ‘not of the rights of man, not of justice’. Such discourses, Deleuze continues, miss the specificity of the complex juridical situation before it, content only to declaim violations of null concepts: ‘Human rights... you invoke human rights... what does that mean? It means: Ah, the Turks have no right to massacre Armenians. Ok. The Turks don’t have the right to massacre Armenians, then what?’8 Obviously, a proposal for a world parliament of negative consensus has little purchase with Deleuze. What he advocates is a jurisprudence sensitive enough to appreciate this difficult case; he calls for a jurisprudence adequate to adapt and create concepts of right appropriate to the situation in order to improve it.
The basis on which I contrast Habermas and Deleuze is how they envisage the encounter between case and law in application discourses (Habermas) or jurisprudence (Deleuze). Although a case is encountered in adjudication, for Habermas this judgment is reached by anticipating what participants in democratic discourses would have thought of the case had they considered it. We will claim that adjudication in Habermas involves a sophisticated and retrospective temporality that secures continuity, and therefore legitimacy, between the application of norms in ‘adjudication discourses’ and the creation of norms in democratic ‘justification discourses’. This relationship between application and justification discourses allows us to conceive of judgment as communicatively achieved. In the conception, Habermas strictly – and as his express purpose – forecloses creativity within adjudication: judgments reached in application are assumed to have been accounted for in justification discourses. Deleuze’s jurisprudence, by contrast, does not allow for this kind of communication, and, therefore, law is generated in and through the encounter between case and law. I use Deleuze to argue that rights ought to be understood and actualized not through communication but by unavoidably concrete and creative juridical intervention.
Habermas: Communicative Kantian
We begin with Kant given that Habermas extensively develops Kantian concepts towards his own philosophy of law and right. One interpreter characterizes Habermas, especially as a legal theorist, as a ‘communicative Kantian’.9 And, moreover, not only is Habermas a strongly identified Kantian but as critics have pointed out, the discourse of human rights is dominated by a massive ‘return to Kant.’10
As Deleuze and Guattari claim, ‘If one can remain Platonist, Cartesian, or Kantian today, it is because one is justified [l’on est en droit] in thinking that their concepts can be reactivated in our problems and inspire those concepts that need to be created.’11 What is the nature of the Kantian reactivation? Theorists of discourse ethics perform a conceptual transposition of Kant’s practical philosophy into a dialogical conception of practical reason.12 This communicative turn reactivates Kant’s practical and political thought within postmetaphysical thinking.
The primary insight from Kant’s Doctrine of Right [Rechtslehre] is that our juridical laws are both rationally acceptable and valid, and, contrary to the moral law, enforceable and factual.13 In Kant’s political theory, the legitimacy of laws is rational but counterfactual: the legislator must frame the laws in such a way that these could be willed by each subject affected by them. Habermas takes this strong internal relationship between validity and facticity to formulate his concept of the ‘discourse principle’: ‘Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.’14 For Habermas, laws are action norms; indeed, they are the principle kind of action norms for modern societies. An action norm or a law, therefore, is both enforceable and rationally acceptable.
Although the discourse principle might appear counterfactual (‘possibly affected persons could agree...’), for Habermas we see that this is not the case: a legal-action norm is legitimate (valid) and effective (factual) once it has been dialogically agreed upon by all those affected. In other words, an enforceable law is always at the same time valid and rational by means of communicative agreement. This gives Kant a democratic turn: instead of law being rational and acceptable in principle, laws are created through communication that participants find rational and acceptable in fact. ‘We’, the authors of law are really and simultaneously the addressees of law. Legal norms are therefore relations that have their basis in dialogically achieved recognition and accord; they both presuppose and produce the first person plural, communicatively achieved.15
The discourse principle is intended to assume the shape of a principle of democracy only by way of legal institutionalization. The principle of democracy is what then confers legitimating force on the legislative process. The key idea is that the principle of democracy derives from the interpenetration of the discourse principle and the legal form. I understand this interpenetration as a logical genesis of rights... Hence the principle of democracy can only appear as the heart of a system of rights. The logical genesis of these rights comprise a circular process in which the legal code, or legal form, and the mechanism for producing legitimate law – hence the democratic principle – are co-originally constituted.17
Developing this text, we distinguish two levels of rights: Basic Rights and Derivative Rights.
Most fundamentally, we have basic human rights (Grundrechte) that guarantee citizens equal participation in determining the action norms that affect them. The institutionalization of the discourse principle establishes the procedures of communicative association necessary to legitimately legislate action norms: ‘The substance of human rights... resides in the formal conditions for the legal institutionalization of those discursive processes of opinion and will formation in which the sovereignty of the people assumes a binding character.’18 What is shared and reciprocally recognized in this instance is not any particular action norm or right but the very form of democratic participation and democratic communication; that is why Habermas can write that the substance of human rights is formal, that is, rights to equal participation in the determination of all future norms. In brief, ‘human rights institutionalize the communicative conditions for a reasonable political will-formation’.19
The institutionalization of the discourse principle is nothing other than the idealized genesis of the democratic legal medium; in other words, reciprocally accorded rights to participation in democratic discourse is eo ipso the founding act of the state as legal-administrative power.20 Now the universal consent requisite for valid and enforceable action norms is no longer counterfactually assumed as it was in Kant; rather, the state form itself is established to enable and protect – to proceduralize – the communicative activity generative of present and future action norms: ‘The sought-for relation between popular sovereignty and human rights consists in the fact that the system of rights states precisely the conditions under which the forms of communication necessary for the genesis of legitimate law can be legally institutionalized.’21 By virtue of this internal relation between sovereignty and human rights, Habermas argues that human rights are always already positive and juridical by nature; rights do not pre-exist the procedural democratic association of the state but are co-original with this formation.22 In this idealized democratic procedural state founded by the reciprocal recognition of basic rights of participation we can say in the manner of Seyla Benhabib, that ‘Les droits de l’homme et de citoyen do not contradict one another; quite to the contrary, they are complicated.’23 Finally, all constitutional democracies are iterations of the basic grounding of participative rights: ‘we can understand the catalogs of human civil rights found in our historic constitutions as context-dependent readings of the same system of rights’.24 There may be apparent differences to various constitutional democracies, but, at root, rights to will-formation underlie all historic instantiations.
With fundamental rights to participation anchored by the legal medium, citizens enter into deliberations to generate specific laws and rights beyond those basic rights of participation (for example, statutes, constitutional amendments, and so on). With the basic procedures of participation in place, justification discourses are enabled: ‘At the post-traditional level of justification, as we would say today, the only law that counts as legitimate is one that could be rationally accepted by all citizens in a discursive process of opinion- and will-formation.’25 Crucially, Habermas envisages a law’s legitimation on the basis of strongly universal accord – it is accepted for good reasons by all citizens. Justification requires a basis of universal rational consent: ‘we’ mutually convince one another that a law/right is valid by means of criticizable argument. Habermas calls this ‘moral’ argumentation after the cognitivist turn of Kant’s practical reason (that is, practical judgments that are not prudential but rational).26 Moral arguments are neither grounded in a shared substantial understanding of the good (ethical level), nor is a consensus achieved through a ‘bargaining’ process as in a balance of diverse interests (pragmatic level).27 A law is valid ‘if and only if equal consideration is given to the interests of all those who are possibly involved’ – that is, only if it can be impartially justified.28 In ethical argumentation a norm is valid for those who share a way of life, whereas pragmatic discourses promise an outcome that is acceptable to all on the basis of different and interested reasons; neither is impartial. These levels of justification lack universal and ever-expanding consensus. Impartial justification demands universally shared reasons.
We have seen that the principle of democracy presupposes the possibility of valid moral judgments: in fact, political democracy is co-original with the institutionalization of dialogical moral judgments. With these procedures in place (basic rights), legitimate laws and rights may be created (derivative rights): ‘the democratic principle states that only those statutes may claim legitimacy that can meet with the assent [Zustimmung] of all citizens in a discursive process of legislation that in turn has been legally constituted’.29 These are norms (law, statutes, rights) legitimately produced in and by a communicative legal medium. Because they are ‘moral’ these laws are not bound to a determinate group or interest; they are human in the strongly Kantian sense of respecting the humanity – the communicative reason – of all those affected by the norm.
Reply I (short): Abstract Rights
To introduce Deleuze, we briefly reconstruct the reasons for his famous distaste of philosophies of communication. If philosophy’s task is, as Deleuze consistently maintained, to create concepts, then a philosophy of communication must be criticized on two counts: (1) Its philosophical ambition is to establish the conditions for opinion (doxa) to be intersubjectively shared and sanctified; and (2) It is content to create ‘consensus’ and ‘exchange ideas’ which resolve into nothing but empty generalities. Because of these characteristics, the philosophy of communication ‘has not produced the least concept’.30
Critique of basic rights. It is evident that Habermas’s co-originality thesis provides a legal medium in which communicative exchanges backed by rights are at the core of democracy and political philosophy. In Deleuze’s terms, Habermas’s theory does not advance any particular doxa or dialogical truth, ‘not a particular this or that’ but, rather, thematizes ‘the form of representation or recognition in general’.31 Habermas primarily envisages human rights in the service of providing opportunity for intersubjective deliberation and consensus. Human rights exist to encode symmetrical relations of recognition.
Critique of derivative rights. With the communicative legal medium in place, citizens enter into deliberations to produce action norms. Thus, the formation of statutes and laws takes place entirely within an economy of criticizable opinions and exchanged ideas that are pitched at a necessarily high or indeterminate level.32 With Deleuze we can characterize moral discourses – the plane on which Habermas insists that derivative rights are legitimately secured by all those affected – as producing abstract and senseless propositions. All participants may indeed agree upon a rights proposition – for example, against arbitrary detention, equal protection of the law, and so on – but what they agree upon is abstract for it is without reference to a determinate situation or problem. For Deleuze, such agreement would be like a proposition arbitrarily detached from its context and void of sense.33 Shared moral discourses are propositions so abstract as to be empty and without sense. Therefore, not only are communicative discourses unable to create philosophical concepts, they are equally incapable of creating rights with determinacy, sense, or application.
Reply to Deleuze: Application Discourses
Let us take these two criticisms as an opportunity for Habermas (and his close ally, Klaus Günther34) to reply, especially to the second criticism, and introduce a crucial concept: application discourses as distinct from justification discourses.35
Such a ‘perfect’ norm could regulate its own application because each of those situations where an interest might be violated would have been taken into consideration beforehand. The participants of a discourse would be certain that there will be no situation where observance of a norm will violate a universalizable interest.37
In this situation all is given in the structure of anticipation. In a way, the perfect norm replies to the Deleuzian critique: the norm is not abstract but brims with content. As Günther observes, all citizens know precisely what they are agreeing upon and none of their expectations can be violated by unexpected events and encounters. The Discourse Principle for such a norm would read: ‘A norm is valid and in every case appropriate if the consequences and side effects arising for the interests of each individual as a result of this norm’s general observance in every particular situation can be anticipated by everyone.’38
Of course, as Günther quickly points out, perfect norms are a regulative ideal; our willed historical norms are always finite and limited and cannot anticipate all appropriate applications. Finite norms willed under conditions of limited knowledge and time can, however, foresee a range of cases in which their application would be appropriate: ‘In this way [the discourse principle] is equipped with an index that ties its application to the level of knowledge at the current point in time.’39 Correspondingly, the exigencies of the discourse principle become weaker, diminished to the expected possible cases of application at the time of our justification discourses: ‘Only those interests expected to be affected by the consequences and side effects of applying a norm can be considered.’40
Adoption of a strong discourse principle of norm justification is not only impossible – it presupposes the availability of perfect norms – but it is also ethically suspect. A strong justification discourse would spuriously reduce new experiences and situations to those anticipated in justification; a strong justification principle leads to insensitive applications and, therefore, inappropriateness.41 In light of finitude, Günther and Habermas recommend a weak version of the discourse principle: participants ‘examine contested norms in view of foreseeably typical cases... [that] can be applied directly only to the standard situations that have already been considered in their antecedent clause’.42 With this weaker principle, justification discourses leave open the potential for new and unanticipated situations, for which we will need a different kind of operation, application discourses.43
Except for those norms whose ‘if’ clauses specify application conditions in such detail that they apply only to a few highly typified and well-circumscribed standard-situations... all norms are inherently indeterminate.... [Norms] – and not just constitutional rights and principles that justify the legal system as a whole – remain indeterminate in their references to situations and have need of additional specifications in the individual case [emphasis added]. Because such norms are only prima facie candidates for application, one must first enter a discourse of application to test whether they apply to a given situation (whose details could not have been anticipated in the justification process) or whether, their validity notwithstanding, they must give way to another norm, namely, the ‘appropriate’ one. Only if a valid norm proves to be the single appropriate one in the case at hand does that norm ground a singular judgment that can claim to be right. That a norm is prima facie valid means merely that it has been impartially justified; only its impartial application leads to a valid decision about a case.44
Adjudication faithfully applies the norms that are deliberatively generated because these norms deserve legal obedience and respect: they are embodiments of universal communicative agreements.45 However, as Habermas observes, norms generated in justification discourses are indeterminate and make reference only to a few general application scenarios.46 Given this indeterminacy, several norms will be prima facie applicable, the role of application discourses therefore is to consider all features of a situation and examine whether the norm is appropriate for the situation. In an application discourse we describe each situation in all its features in order to select the exact norm appropriate to treat it. With both moments in mind, we say that ‘an action [is] right because it is the result of the right (appropriate) application of the right (valid) norm’.47
But what is the nature of this application? Does the norm treat the case in an application that leaves it unchanged, if only more determinate? Or does the application modify the norm in a creative application? In brief – though it is much more complicated – I argue that the first alternative represents Habermas and the second Deleuze.
Consider the line just cited – ‘[Norms] remain indeterminate in their reference to situations and have need of additional specifications in the individual case.’ What sort of specification is this? We find one model in Kant’s Critique of Judgment: a universal concept descends, through empirical application, to the particular by virtue of a division that contains and covers the cases subsumed under it (genus/species). Such a specification makes ‘the universal concept specific by indicating the diverse that falls under it’.48 For example, we do not encounter a ‘mammal’ in itself but this indeterminate concept is specified by various species that are explained through, but do not modify, the general concept. An indeterminate norm considered in this way is able to preserve its identity in all of its different cases: the cases are only appropriate specifications of that norm. Norms are able to express their difference while remaining substantially the same: they remain the same in themselves while subsuming the differences that specify them.49
In specification of this sort, impartial norm applications simply close the gap that remained open in justification: they adjudicate the case by full descriptions of situations as instances of this or that norm. The norm itself remains unaffected. The application discourse recontextualizes the norm that was cut off from its context in validity. In so doing, the ideal of the perfect norm is reached reconstructively: ‘The concepts of validity and appropriateness mean the same if and only if we could justify the consequences of the general following of the norm for each of all possible cases of application beforehand. So we have to apply a valid norm as if we could have foreseen this situation in a discourse under the conditions of unlimited knowledge and time.’50 This temporality is essential to what follows: an application of a norm to a situation is appropriate if it could have been foreseen in justification discourse. That is, to meet the standards of appropriateness for an application we must say – but this can only be done retrospectively – that it had already been anticipated in the communication discourses that established the norm.
While, on the one hand, we saw that the perfect norm was merely a regulative ideal, on the other hand it is imperative for discourse ethics to ensure its retrospective possibility. Without it, application threatens to annul the validity discourses that brought the norm into being. Application must not modify the norm in any substantial way, if it were to, new discourses of validity would be necessary to guarantee universal assent to the norm’s new sense. Application discourses must, therefore, always operate in the future perfect to honor the moral agreement that generated the norm in the first place: future cases shall have been considered in the very genesis of the norm at the level of justification. The decisive separation in discourse ethics between justification and application was necessitated by our finitude. The theory of appropriateness in norm application is an attempt to overcome our finitude and achieve perfect norms by other means: a specification of norms in application through cases that are retrospectively included in discourses of justification. This is exactly the Kantian specification: the differences of the concept are included within it, such that these differences do not modify the indeterminate genus concept itself.
If every norm must be coherently complemented by all other norms applicable in a situation, then the meaning of the norm (subtly) changes in every situation [Wenn jede gültige Norm auf eine kohärente Ergänzung durch alle anderen in einer Situation anwendbaren Normen angewiesen ist, ändert sich ihre Bedeutung in jeder Situation]. In this way we depend on history, since it alone provides us with the unforeseeable situations that compel us at each point a different interpretation of the set of all valid norms.51
No mention of the subtlety of the modification of the norm is indicated in the German text; this ‘subtly’ is Rehg’s intervention. But it is interpolated for good reasons: if ‘both guarantees, certainty and legitimacy, must be simultaneously redeemed at the level of judicial decision making’ then modification in the meaning of the norm must be subtle indeed to assure the certainty of the application and the legitimacy of the justification, and the continuity between the two.52
It is important to note why and how the norm changes – subtly or not – in application discourses. It has nothing to do with the case or circumstance directly modifying the norm. Instead, the inclusion and exclusion of appropriate cases within each norm varies the relationships between the norms, and, by consequence, (subtly) alters their meaning.
In justification discourses, norms are pitched at too indeterminate a level to conflict; however, norm collisions do occur in concrete situations.53 As Günther explains, hard cases are always cases of collision; they have nothing to do with validity, only appropriateness.54 We need application discourses to settle which particular norm is appropriate to treat the case at hand. With an appropriate application we retrospectively project back into the justification discourse afore-knowledge of the ‘new’ case at hand, as if it were already included within the norm; in this way, the norm has always reconstructively included this particular instantiation and can be counter-signed by all those affected by it. But this retrospective inclusion does not modify the substance of the norm itself – it could not for this would upset the consensus of justification – but instead alters relationships between the norms themselves.
In application, Günther writes (with Habermas citing approvingly), ‘every valid norm must be coherently complemented by all other norms applicable in a situation...’.55 This places the judge – the adjudicator – in a curious position. The impartial judge must place himself both within an accurately described concrete multiplicity and also situate his judgment retrospectively within the moral sphere of justification. In adjudication, a situation is fully described and this description is itself dispositive in that it clarifies which norm virtually includes this new situation according to the future perfect temporality of application discourses. The judge’s application must at once partake in a sensitive evaluation of the historically ‘new’ (the case) while at the same time retrospectively placing his norm-application as always already contained in the universally willed norm that he has just applied.
Jurisprudence in discourse ethics is therefore animated by the pursuit of perfect norms. We have seen that an appropriate application does not alter the norm; rather, this norm is seen to include the case at hand as if it has already been accounted for at the time of a justification. In this view, to say that the norm changes, even subtly, is uncertain. As Günther states, appropriate application attempt to anticipate ‘the end of history with the ideal of a coherent system of all valid norms which allows only one appropriate answer to each situation’.56 Not only do the norms not change in application but with the idea of the end of history the relations between the norms do not change either: each and every appropriate judgment will only fill in what we retrospectively knew at the time of justification – that this norm rightly treated this case. Adjudication is, therefore, absolutely non-creative. Judgments do not add to either the norm itself nor modify the relations between the norms. This non-creativity is fundamentally required for discourse ethics. Only in this way can we be certain that jurisprudence does not forfeit the communicative structure of our laws and of the legal medium itself.
Let us sum up this reply on the part of discourse ethics to Deleuze. The initial Deleuzian critique was that the norms agreed upon in justification discourses were too indeterminate and abstract to make any real sense. Communicatively envisaged rights were said to be null because they are formal, bearing only impossibly vague reference to problems they can neither appreciate nor improve. The reply of Habermas and Günther established the separation of adjudication and justification discourses. It laid out the ideal of the perfect norm, in which all future content is disclosed a priori. It continued by positing a mode of adjudication that acknowledges the finitude of our judgments, agreements, and law but in so doing endeavors, through the concept of appropriateness, to attain the perfect norm via indirecta. Appropriateness secures the ‘content’ of a moral decision in the very moment of impartial adjudication, an application that positions itself both in the concrete multiplicity at hand, and, throws itself back onto the plane of justification to ensure that it has content (cases under rights/statutes/laws) and that this content has been universally approved.
Reply II: Deleuze, Rights and Encounters
In a roundtable discussion at Warwick, Eric Alliez makes a remark that helps clarify the nature of a positive Deleuzian theory of rights: ‘What is funny is that whenever the question of political philosophy is dealt with institutionally, everything happens as if there was no link with any kind of ontological investigation.’57 In developing a theory of rights from Deleuze we must emphasize the ontological nature of both Deleuze’s critique and construction. On the one hand, the critique: discourse ethics fail to grasp the way in which rights come into being; this misunderstanding fatally compromises the sense and effectivity of rights. On the other hand, the construction: Deleuze provides us with an institutional ontology of rights and jurisprudence sensitive to the genesis of rights strictly within concrete jurisprudential situations, the differential repetition of rights, and the non-communicative creation of rights.
Deleuze is not against rights per se (whatever that would mean) but opposes their articulation in philosophies of communication. Telling in this respect is his reaction in the Abécédaire to Claire Parnet’s mention of ‘respect for human rights, so fashionable today’. Deleuze’s immediate reaction is both aggressive and halting: ‘This respect for human rights, it’s really... it makes one want to become... to take odious positions [Ce] respect des droits de l’homme, c’est vraiment... on a envie de devenir... de tenir des propos odieux, quoi, c’est....’58 It is as if discourses of human rights make one take, or bait one into taking, desperate positions. Deleuze’s ambivalence is revealing. On the one hand, who could oppose ‘rights’ in the sense of the protection of human faculties? On the other hand, how could Deleuze not strike out at a communicative discourse on rights that he perceives to have monopolized their sense (abstract senselessness), their ethics (prescriptive morality), their horizon (opinion-ridden, non-creative), and their actuality (axiomatic, abandonable)?
The major development of What is Philosophy? is to rigorously envisage philosophy as a creative activity: philosophy as constructivism. This is not primarily a claim as to what philosophy ought to be, but as the title indicates, what philosophy is. Here, I draw attention to a constitutive feature of this constructivism: the problem. For Deleuze and Guattari, philosophy is a constructive enterprise that lays out problems for itself and invents concepts as specific responses: ‘all concepts are connected to problems without which they would have no sense [sens], and which can themselves only be isolated or understood as their solution emerges’.59 Philosophical constructions are invigorated by problems proper to them; problems animate philosophy and the creation of concepts. Fundamentally, concept creation (which is to say, philosophy) does not occur through critique or discussion. Philosophical critique and discussion are impossible because the terms discussed never belong to the same set of problems. Discussion in fact nullifies the problem (and, by consequence, nullifies philosophy) by dissipating the singularity of a problem and its solutions in favor of communicable generality: ‘When philosophers criticize each other it is on the basis of problems and on a plane [plan] that is different from theirs.’60
In Difference and Repetition philosophy is given a properly Platonic vocation: to combat opinion (doxa). What does this mean? For Deleuze, ‘dogmatic thought’ wrongly holds that the misadventures of thought come from the outside (passions, corporeality, errors, and so on).61 By contrast, for Deleuze thought turns dogmatic when it suppresses constitutive encounters with the outside. In a word, dogmatism identifies thought with recognition.62 With this model thought finds itself betrayed and ‘left without means to realize its project of breaking with doxa. No doubt philosophy refuses every particular doxa; no doubt it upholds no particular propositions of good sense or common sense. No doubt it recognizes nothing in particular. Nevertheless, it retains the essential aspect of doxa – namely, the form; and the essential aspect of common sense – namely, the element; and the essential aspect of recognition – namely, the model itself...’.63 If thought seeks only to recognize, it thereby eliminates the potential for all encounters (the unrecognizable).
By holding together the constructive and critical elements, we indict Habermas and Günther’s philosophy of law as dogmatic: it establishes justification and adjudication as the very forms by which doxa – universally communicatively exchanged opinions and shared recognition of opinions – is instantiated within the heart of politics and democracy. Joining the constructivism from What is Philosophy? with the critique from Difference and Repetition we can say that the philosophy of law of discourse ethics is critiqued as dogmatic because it annuls the basis for appreciating the philosophy of law and rights as constructive, as creative. By suppressing the problem and encounter – that is, by converting it to an anticipated situation in, or strongly continuous with, justification discourses – discourse ethics fails to appreciate how rights come into being and act in conjunction with situations. By envisaging adjudication as the retrospective application of norms, discourse ethics eliminates the germinal quality of the encounter or concrete situation; it reduces the genetic nature of the novel problem or encounter in concrete cases to the instantiation of a pre-defined norm, applied ready-made. The concept of ‘appropriateness’ seeks to circumvent encounters whereas the concept of jurisprudence seeks to encounter encounters.
[Dogmatic concepts] lack the claws of absolute necessity – in other words, of an original violence inflicted upon thought... which alone would awaken it from its natural stupor or eternal possibility: there is only involuntary thought, aroused but constrained within thought, and all the more absolutely necessary for being born, illegitimately [qu’elle naît, par effraction], of fortuitousness in the world.... Do not count upon thought to ensure the relative necessity of what it thinks. Rather, count upon the contingency of an encounter with that which forces thought to raise up and educate the absolute necessity of an act of thought or a passion to think. The conditions of a true critique and a true creation are the same: the destruction of an image of thought which presupposes itself and the genesis of the act of thinking in thought itself.65
Deleuze’s comments in the Abécédaire become clearer if we take this discussion of ‘thought’ and ‘concepts’ into the domain of rights and adjudication. Cases are the outside, the encounter. Rights are actualized in case-specific situations; or, more precisely, a concrete situation and a legal right together form a singular problem, a singular creation. To form juridical problems is jurisprudence. Jurisprudence is not limited to describing a situation and selecting an appropriate norm that bears this description; this jurisprudence, as Deleuze states in Negotiations, ‘creates law’ in the very technical sense of his philosophy of the concept.66 Framed in this way, jurisprudence is pure political philosophy as the conjunction of the concept (for example, the right) with the present milieu.67
Doxa. The exchange of opinion is the linchpin of a philosophy of law that suppresses the creation of juridical concepts in adjudication in favor of norms generated by opinion. Basic rights establish the form for doxa; derivative rights are the content that result from doxa.
Recognition. All is given in the perfect norm, nothing is created. The norms we communicatively agree upon retrospectively collect all future cases for participants in justification discourses to recognize and affirm.
Reduction of encounter/outside. The outside is reduced to a retrospectively anticipated minimum: cases are said to have always inhered in a norm properly applied. Nothing is encountered, everything is anticipated.68
A dogmatic image of law leads us to miss the essential to the actualization of rights. Communicative forms of doxa have us believe that rights are created in universal justification discourses and not in juridical problems at the level of the case or encounter. Recognition prevents genuine creation of new rights and new juridical construction – for how can we ever hope to universally recognize what is genuinely new and innovative? Finally, the reduction of the encounter to anticipated applications refigures the case an opportunity for the instantiation, rather than creation, of norms.
In sum, Deleuze’s criticism leveled at Habermas and Günther’s philosophy of law is similar to the one Bergson made over and over in his critiques of psychology and evolutionism: all is not given it advance, the all can only be given retrospectively.69 As abstract proposition, Habermas and Günther would agree: indeed, all is not given but all cases are thrown back in appropriate application onto the plane of justification, which secures the perfect norm retrospectively. But here we are led into the type of false consensus Deleuze warns against when problems become general and confused. For Deleuze, rights cannot be secured communicatively because they are themselves created in conjunction with the case they treat.
To conclude, I sketch what a positive theory of rights and adjudication – one sensitive to differential repetition, singularity, and creativity – might represent for Deleuze. We say that the first principle of such a philosophy is that rights emerge from, are effective in, and take on sense only through concrete situations. I propose two examples to demonstrate the necessity of placing the encounter at the center of a theory of rights, as constitutive of rights themselves.
My first example is a documentary history of rights in and around the French revolution.70 This documentary history is a pure illustration of the encounter as crucial to an understanding of rights. Here, we observe a handful of concepts bearing the signature of human rights in its classical period – equality, fraternity, property, and so on – introduced into various social and political assemblages and endeavoring through their encounters to create their sense and power of intervention. For example, Article 10 of the 1789 Declaration of the Rights of Man and Citizen reads: ‘No one should be disturbed for his opinions, even in religion, provided that their manifestation does not trouble public order as established by law.’ But to this article correspond a series of debates and considerations about Jews and the extension of rights of religious worship to Jews. Should Jews be considered as a people and denied political (not civic) rights on the basis on their faith?71 Would granting them full economic and political rights constitute a disruption of public order?72 Ought Jews to receive special or equal economic rights on the basis of their faith?73 Or should rights apply only to individuals and be categorically denied to groups?74
Each of these alternatives is representative of a singular juridical problem in that they are conjunctions between the right to religious tolerance and a concrete multiplicity. And although these are not ‘jurisprudences’ in the adjudicative sense that Deleuze uses that term, these documents are illustrative of the encounter as creative of the sense, force, and scope of the right. Each instance renews (repeats) Article 10 within a different problem. These various problems are unrecognizable for they are an unforeseen modification (or, creation) of a right. Each problem actualizes the norm within its own specificity; as such, it is impossible to retrospectively recombine these various cases on a universal plane of justification.75
Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this [sui generis] type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.79
Therefore, human rights premises of equality before the law were connected to a concrete situation and resulted in a reconfiguration of evidentiary norms in Canadian law.
In this case, we can see that the right of ‘equality before the law’ is itself created and gains a new sense in each of its jurisprudential creations (of which Delgamuukw is only just one). We cannot say, with Habermas and Günther, that the concept of ‘equality before the law’ bore within itself, as an eternal possibility, the Supreme Court of Canada’s 1997 Delgamuukw decision. This is impossible not merely because it is utterly counterfactual (that is, a presumed rational and universal consensus at the time of the UN ratification of 1948 shall have considered the reversal of the Delgamuukw decision as inherent within Article 7 and therefore appropriate at the time of its actual citation). It is impossible because the right is not incarnated, instantiated, or applied in the concrete case; the right is created in the case. This decision is not continuous with or inherent within the right, it is inventive or creative of that right.80 This is not a semantic difference: if the concept of creativity is taken rigorously, then we cannot have a genesis of that right through recognition, doxa, or the withholding of the encounter. It is anathema to creativity to envisage putatively ‘new’ cases as retrospectively projected onto the plane of justification in recognition and anticipation. Deleuze never tires of repeating: the new is the non-recognizable that cannot be reduced to horizons of anticipation. The case does not inhere within a shared norm as an instance of its application; rather, the norm knows not what it states and creative and unforeseeable acts of jurisprudence must occur in their novelty for the right to take on the sense and power denied to it in the indeterminacy of communication.
A concrete situation breathes life into the right, giving it a creative evolution. It is an operation that makes sense of rights and situations through their connection, endeavors to ameliorate a situation, and creates a new sense to the right. The right lives only in its creations and, in turn, these creations are themselves re-created by being introduced into new situations and new encounters. This concept of jurisprudence we have sketched connects Deleuze’s commitment to creative evolution, differential repetition, and the genesis of sense with a philosophy of law and adjudication. This is why the concept of ‘institutional ontology’ is especially fruitful: it allows us to extend an ontological analysis into the very operation of political institutions and this extension enables us to understand how they work.81
J. Habermas, “America and the World: A Conversation with Jürgen Habermas”, Logos 3/3 (2004), 1–22, 18.
Ibid., at 19–20.
Ibid., at 20, emphasis added.
G. Deleuze, L'abécédaire de Gilles Deleuze, avec Claire Parnet. (Paris: DVD Editions Montparnasse, 2004), ‘G’.
G. Deleuze and F. Guattari, What Is Philosophy? trans. H. Tomlinson and G. Burchell (New York: Columbia University Press, 1994), 100.
Deleuze, supra n. 4, at G. See also his comments in Negotiations where he calls human rights an “eternal value”, a notion “everybody recognizes as very abstract”. G. Deleuze, Negotiations, 1972–1990 trans. M. Joughin (New York: Columbia University Press, 1995), 122.
Ibid., at 153. Variations of this contrast between jurisprudence (as positive, creative, effective) and law (abstract, negative, limiting) can, with astonishing consistency, be traced from Deleuze’s very earliest published writings to his very last interviews. In Empiricism and Subjectivity (1953) and his short text on the nature of institutions (1954) the opposition is established between institutions and law but this pairing is structured much in the same way as the jurisprudence/law split. See G. Deleuze, Empiricism and Subjectivity: An Essay on Hume's Theory of Human Nature trans. C. Boundas (New York: Columbia University Press, 1991), 37–54; and G. Deleuze, “Instincts and Institutions”, in D. Lapoujade, ed., Desert Islands and Other Texts: 1953–1974, (Los Angeles: Semiotext(e), 2004), 19–21.
Deleuze, supra n. 4, at G.
R. Bernstein, “The Retrieval of the Democratic Ethos”, Cardozo Law Review 17 (1996), 1127–46, 1140.
A. Badiou, Ethics: An Essay on the Understanding of Evil trans. P. Hallward (London: Verso, 2001), 8; C. Douzinas, “Human Rights and Postmodern Utopia”, Law and Critique 11/2 (2000), 219–240, 219–221.
Deleuze and Guattari, supra n. 5, at 28, translation modified.
See A. Wellmer, Endgames: The Irreconcilable Nature of Modernity, Essays and Lectures trans. D. Midgley (Cambridge: MIT, 1998) 85. For Habermas, see “An Alternative Way out of the Philosophy of the Subject: Communicative Versus Subject-Centered Reason”, in The Philosophical Discourse of Modernity: Twelve Lectures (Cambridge: MIT, 1987), 294–326.
I. Kant, The Metaphysics of Morals trans. M. Gregor (Cambridge: Cambridge University Press, 1996), Ak. 231–233.
J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy trans. W. Rehg (Cambridge: MIT Press, 1998), 107. Legal norms are, for Habermas, the fundamental type of action norm for modern artificial (i.e., de-traditional) societies that can no longer count on the integrative powers of a shared and unreflective substantial ethical life.
Ibid., at 88.
Ibid., at 121.
Ibid., at 121–122.
Ibid., at 108, emphasis added.
J. Habermas, “Remarks on Legitimation through Human Rights”, in M. Pensky, ed., The Postnational Constellation (Cambridge: MIT, 2001, 113–130), 117. Also, Habermas, supra n.14, at 127.
Habermas, supra n. 14, at 89. As commentators have pointed out, Between Facts and Norms is itself a massive argument for an institutional solution as to how communicative power may be transformed into, and protected by, administrative power. See W.E. Scheuerman, “Between Radicalism and Resignation: Democratic Theory in Habermas's Between Facts and Norms”, in R. Von Schomberg and K. Baynes, eds., Discourse and Democracy: Essays on Habermas's Between Facts and Norms (New York: SUNY, 2002), 61–85, 78–79.
Habermas, supra n. 14, at 104.
J. Habermas, “Kant's Idea of Perpetual Peace: At Two Hundred Years' Remove”, in C. Cronin and P. de Greiff, eds., The Inclusion of the Other: Studies in Political Theory (Cambridge: MIT, 1998), 165–202, 190.
S. Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge University Press: Cambridge, 2004), 43. It is in this specific sense – that sovereignty and human rights are co-original – that we can interpret Habermas’s call for Constitutional Patriotism [Verfassungspatriotismus]. See Habermas, supra n. 14, at 500; and G. Borradori, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: University of Chicago, 2003), 73–81.
Habermas, supra n. 14, at 128.
Ibid., at 135, emphasis added.
We do not claim a homology between law and morality. Habermas develops this point carefully: positive law provides a motivational structure (facticity) absent from moral law. Moral discourses in the law are moral because they assume a universal audience. For a detailed account of this relationship, see W. Rehg, “Against Subordination: Morality, Discourse, and Decision in the Legal Theory of Jürgen Habermas”, in M. Rosenfeld and A. Arato, eds., Habermas on Law and Democracy: Critical Exchanges (Berkeley: University of California, 1998), 257–271.
Habermas, supra n.14, at 108–109.
Ibid., at 108.
Ibid., at 110, emphasis added.
Deleuze and Guattari, supra n. 5, at 6, translation modified.
G. Deleuze, Difference and Repetition trans. P. Patton (New York: Columbia University Press, 1994), Deleuze, 131, emphasis added.
Habermas, supra n. 14, at 217.
Deleuze, supra n. 31, at 154.
In what follows, I move almost indiscriminately between Günther and Habermas’s theories of adjudication. Between Facts and Norms is deeply indebted to Günther (in fact, it could be argued that Günther’s dissertation The Sense of Appropriateness initiated a substantial turn in Habermas’s thought by separating out the two moments of justification and application, which I explain at length below) as is plainly indicated by its preface: “I [Habermas] am indebted to Klaus Günther’s legal expertise for so much instruction that I almost hesitate to relieve him of responsibility for my mistakes...” (xliii). More substantively, when Habermas preludes his theory of adjudication in Chapter 4 it exactly replicates Günther’s scheme (162). Moreover, in his main treatment of Application (Chapter 5), it is expressly Günther’s theory of appropriateness which is adopted as Habermas’s own. For these reasons, we cannot concur with Jacques Lenoble’s identification that “Habermas’s theory of legal judgment (his ‘theory of adjudication’) relies entirely on a procedural version of Dworkin’s coherence theory.” J. Lenoble, “Law and Undecidability: Toward a New Vision of the Proceduralization of Law”, in M. Rosenfeld and A. Arato, supra n. 26, 37–81, at 63.
Justification discourses are those discourses that seek to generate norms that are intersubjectively shared and affirmed for good reasons (e.g., the plane of legislation, where a law is accepted by all those affected). Application discourses are those discourses in which a norm is applied to a case in order to treat it (e.g., the plane of adjudication, where a judge decides which norm ought to apply to the case at hand).
A. Wellmer, The Persistence of Modernity: Essays on Aesthetics, Ethics and Postmodernism trans. D. Midgley (Cambridge: Polity, 1991), 130. Wellmer’s essay is very intriguing from our perspective as it tries to develop a situation-sensitive concept of practical judgment and action while remaining tenuously within the tradition of discourse ethics. There are, however, crucial points where our interpretations diverge (especially around his conception of law/legitimacy as set against morality/validity, and his conception of appropriate action and situational appreciation as the negation of nongeneralizable maxims).
K. Günther, “A Normative Conception of Coherence for a Discursive Theory of Legal Justification”, Ratio Juris 2/2 (1989), 155–66, 156.
K. Günther, The Sense of Appropriateness: Application Discourses in Morality and Law trans. J. Farrell (Albany: SUNY, 1993), 33, emphasis added.
Ibid., at 34.
Ibid., at 35, emphasis added.
Ibid., at 40.
Habermas, supra n. 14, 162.
Ibid., at 217.
Ibid., at 198.
“The principle of universalization compels the participants in discourse to examine contested norms in view of foreseeably typical cases, in order to determine whether the norms could meet with the considered agreement of all those affected. Moral rules pass this test directly only to the standard situations that have already been considered in their antecedent clause.” Ibid., at 162.
Günther, supra n. 38, at 53.
I. Kant, Critique of Judgment trans, W.S. Pluhar (Indianapolis: Hackett, 1987), First Introduction, Ak. 215.
For a similar treatment of Aristotelian categories, see Deleuze, supra n. 31, at 30–35.
Günther, supra n. 37, at 163.
Habermas, supra n. 14, at 219. In the original translation of Günther’s text, supra n. 37, there is no interpolated ‘subtly’.
Habermas, supra n. 14, at 198.
Günther is strict on the following: norms at the level of justification do not collide because practical reason is non-contradictory. They apparently collide in concrete situations where one norm must be suspended in favor of another. He is fond of the following example. We have the two following justified maxims: ‘Promises ought to be kept’, and ‘In case of emergency you ought to help your friend’. Prima facie they do not conflict, but say I had accepted a dinner-party invitation and just before I go my friend falls ill. We have a conflict. For reasons we won’t go into, application discourses determine that the second maxim is appropriate and appropriately suspends the first. Supra n.37, at 158–159, 161–162; and supra n. 38, at 207–219.
Günther, supra n. 37, at 158–159.
Habermas, supra n. 14, at 219; Günther, supra n. 37, at 163.
Günther, supra n. 37, at 163.
E. Alliez, E. Albert, K. Ansell-Pearson, A. Boyer, D. Toews, and A. Toscano, “The Contemporary: A Roundtable Discussion”, Pli 8 (1999), 119–137, 135.
Deleuze, supra n. 4, at G. The ellipses signal pauses and hesitations, not my textual amendments.
Deleuze and Guattari, supra n. 5, at 16, translation modified.
Ibid., at 28. The ‘problem’ is not a notion unique to What is Philosophy? (in fact, it is more extensively discussed in Difference and Repetition and The Logic of Sense); what is unique, however, is the connection of the problem with constructivism.
Deleuze, supra n. 31, 132, 148–151.
See F. Zourabichvili, Une philosophie de l’événement (PUF, Paris, 2004), 15–27.
Deleuze, supra n. 31, at 134. For this ‘critical’ strain of Deleuze’s thought see his Nietzsche and Philosophy trans. H. Tomlinson (New York: Columbia University Press, 1983), 106. “The use of philosophy is to sadden... [Philosophy] is useful for harming stupidity, for turning stupidity into something shameful.”
Deleuze, supra n. 31, at 139, emphasis added.
Ibid., emphasis added, translation slightly modified.
Deleuze, supra, n. 4, at 169.
See Deleuze and Guattari, supra n. 5, at 100.
A fascinating text in relation to the circumvention of the legal encounter is Habermas’s The Future of Human Nature (itself first delivered at a philosophy of law colloquium organized by Dworkin and Nagel). Here, Habermas takes a position against the use of genetic technologies insofar as they precipitate an unprecedented instrumentalization of the other, an instrumentalization that threatens, according to Habermas, to disrupt ethical horizons of understanding oneself as the unalloyed author of one’s life. What is tricky, however, is that Habermas acknowledges that certain genetic selections and modifications must be permitted insofar as these prevent debilitating diseases and suffering. This makes it very difficult to draw a determinate boundary between prevention and eugenics (21). How does Habermas propose to solve this difficulty? By projective speech-acts. What we must do is adopt a communicative attitude towards the embryo, as if this embryo were a communicative subject answerable in a criticizable sphere of reasons, to consent to the genetic intervention in advance and affirm the clinical (and not instrument) attitude of the persons intervening. “The presumption of informed consent transforms egocentric action into communicative action... what solely matters here is not the ontological status of the embryo but the clinical attitude of the first person toward another person – however virtual – who, for some time in the future, may encounter him in the role of a second person” (52). This performs a modification of the perfect norm to enable the preservation of its function: avoiding encounters. Here, the justification discourse is thrown into the future on the presumption of an interlocutor who would adopt our same moral reasons and therefore countersign the genetic intervention to be made upon his pre-consensual biology (astonishingly, this consent can include the destruction of the embryo – a euthanasia assumed counterfactually by means of dialogue before dialogue is ontogenetically possible (43)). With this move, Habermas avoids the specificity of jurisprudences around case specific problems of body/technology/ethics in favor of a projected speech act of virtual justification discourses. J. Habermas, The Future of Human Nature trans. H. Beister, W. Rehg and M. Pensky (Cambridge: Polity, 2003).
See H. Bergson, Time and Free Will: An Essay on the Immediate Date of Consciousness trans. F.L. Pogson (New York: Dover, 2001), 177–179; H. Bergson, Creative Evolution trans. A. Mitchell (New York: Dover, 1998), 58–59; and, most decisively, H. Bergson, The Creative Mind: An Introduction to Metaphysics trans. M. L. Andison (New York: Citadel Press, 1974), 91–106.
The French Revolution and Human Rights: A Brief Documentary History, ed., L. Hunt (Boston: Bedford, 1996).
Ibid., at Document 20, Abbé Maury, December 23 1789, 88–89.
Ibid., at Document 22, Prince De Broglie, December 24 1789, 91–92.
Ibid. Document 23, Petition of the Jews of Paris, Alsace, and Lorraine to the National Assembly, January 28 1790, 93–97.
Ibid., at Document 19, Count de Clermont Tonnerre, December 23 1789, 86–88.
Lynn Hunt’s editor’s introduction, however, betrays the richness of the texts she collects by coding its narrative through a vulgar historicism: “The French debates over citizenship and rights reveal a recurring clash between the ideals of human rights philosophy and the reality of eighteenth century prejudices.” And so, she rehearses a story of the enunciation of rights that slowly spreads and wears down pre-reflexive, prejudices blinders of the time (e.g., sexism, racism, slavery, religious intolerance, etc). But this exactly misses the point of her documents: these documents witness the endeavor to make sense of and to modify multiplicities given a new rights discourse, and to make sense of and modify rights discourse in light of those multiplicities. L. Hunt, “Introduction: The Revolutionary Origins of Human Rights”, in L. Hunt, ed., supra n. 74, 1–32, 18.
United Nations Universal Declaration of Human Rights, 1948, Article 7.
Deleuze, supra n. 4, at G.
In his brief but incisive consideration of law and Deleuze, Paul Patton also mentions this case but for different reasons than my own. He focuses on Mabo v. Queensland to develop a concept of smooth space between indigenous and colonial law. See P. Patton, Deleuze and the Political (London: Routledge, 2000), 129, 148.
Delgamuukw v. British Columbia, 1997, 3 S.C.R., at 87, emphasis added.
See A. Lefebvre, “A New Image of Law: Deleuze and Jurisprudence”, Telos 130 (2005), 152–175.
I would like to thank Jennifer Culbert, Hent de Vries, and Melanie White for their insightful comments.