Are the Anglos Deleuzian?: Case-Laws and Repetition

Introduction

The Deleuzian spirit privileges process over identity, difference over identity, heterogeneity over homogeneity, nomadic over sedentary, liquid over solid, urine over feces. This spirit is an ethics, an impulse, a presupposition upon which Deleuze’s theories were articulated. I am not against any of said binary rankings per se, insofar as they are well argued, but I am annoyed by how him and his acolytes insist on that impulse on every occasion: it’s boorish and robotic. In that spirit, I will use the English common law system to illustrate Deleuze conception of “learning” and “ideas” in the third and fourth chapter of Difference and Repetition. I am doing this to not only piss off Deleuze’s specter, as the very word “law” blasphemes the holy potato, I am also doing this to sincerely engage with the text via an actual example, namely an actual field of practices. Also, I am tired of reading, let alone doing, another study that connects Deleuze’s verbiage to the media culture of late capitalism or some anarkid politics or whatever.

This essay argues that, viewing from Deleuze’s perspective, the emergence of the common law reflects a conceptual break from the civil law system. The common law system reflects an appreciation of or resonates with Deleuze’s opposition of “learning” and “knowing”—with knowing grounding the impulse of the civil law system. This essay begins with a brief description of what the common and civil law systems are (Part 1), then it describes Deleuze’s opposition of knowing and learning, which is one formulation of the central theme of the book (Part 2), and it concludes by illustrating the opposition with said practical example (Part 3).

Two preambles before I proceed with the essay. First, I am not reconstructing Deleuze’s theory of law, which he, according to some scholars, had some substantive takes on. For example, he and Guattari have theorized that what we know as law (and the legal system generally) is one of the modes of social assemblage that is oppressive and cringe (Colebrook 2019, p. 16). Second, it should be noted that no actual, existing legal regime is constituted exclusively by either civil or common law elements. The fact is, the current and previous territories of the British commonwealth involve civil law elements, and legal regimes of the rest of the world have common law ones. For instance, civil law systems frequently use case laws and common law judges follow statutes, and so on. I need to repeat the textbook ideal-types to illustrate Deleuze’s binary.

Part 1: Statutes versus Case-Laws

Even in the commonwealth world today, whenever people think of laws, they think of “statutes:” rules written by the state, enforced by a network of coercive mechanisms. That is because this conception of law reflects human society’s perennial practice of law, and is thus the deepest-rooted one in our consciousness. The Babylonian Hammurabi Code (circa 1760 BCE), which is not the oldest but apparently the best-preserved ancient legal codex, is but (1) a big list of rules and provisions (2) written by the powers that be in a territory, in this case purportedly by the single person of King Hammurabi. And notably, the ruling power (3) would attempt to formulate an exhaustive statutory codex of dos and don’ts and their corresponding punishments and remedies; and (4) occasionally the codex would be updated to consider emergent matters previously unconsidered in the attempts at exhaustive coverage. Another feature of civil law system is (5) the judge takes on an investigative role: their role is to apply the statutes, gather evidences themselves, and argue for a judgement; and lawyers would take on a less central role in this system. Thus is a textbook account of the system.

Said logic was present in the Roman Corpus Juris Civilis (528 AD), which many claim is “the most influential legal code in history,” and from which we took the name “civil law” in the western world. The based Soviet constitutions (1918 onwards) and the based PRC constitutions (1954 onwards) that followed were continuations of the Roman tradition (Quigley 2007, p. 58). Even before westernization, Chinese legal regimes have consistently been of a statute-based design. The cringe Civil Code of Quebec (1994) follows the Napoleonic Code (1804), which in turn follows the Roman tradition. Point being: the civil law form is the perennial and more pervasive form of legal practice.

The textbooks would say that the common law system emerged in England since the Norman Conquest of 1066 (I will run with that). In abstract terms, in the common law systems, (1) case laws would emerge in a decentralized manner as decisions made by judges in specific legal cases. And (2) laws are made based on the principle of “stare decisis,” namely that the reasoning (“ratio decidendi,” simply “ratio”) of the judgment of a case would bind the judgment of future cases of similar substance. So, a common law “system” would have a body of laws of judge-made decisions (or “precedents”). (3) Judges in the common law system would play the role of a legal advisor, the trier of evidences presented by the opposing parties (or between the prosecutor and the charged), and the articulator of the legal reasoning for judgments.

In practice, the common law system is a layer of laws on a set of statute laws in the 5 mentioned civil system qualities. For (4) the judges’ decisions are still bounded by statutes; their role is to interpret and supplement statutes in novel emergences and grey areas, despite their creative leeway. Further, (5) the stare decisis principle is in practice bounded by the hierarchy of courts. For instance, the decisions of the Supreme Court of Canada would bind all judgments in any other courts in Canada. In practice, what distinguishes common law regimes from the explicitly civil ones is (6) the judge-made laws therein exert equal force as legislated statutes. In civil law systems, judges tend to lack the authority to act on things without existing relevant statutes; precedents, although obviously exist, tend to be not binding on future cases.

Part 2: Knowing versus Learning

The point I am making is the unique qualities of the common law system (1, 2, 3, 6) are unique enough to reflect a distinct onto-epistemology illustrative of Deleuze’s concept of learning. His whole book, in a word, is a critique of the metaphysics of identity, replacing thereof with that of difference. Difference is the essence of being; difference (in) itself is the only identity possible, and no-thing else is identical. Things are different; no-thing is the same. Philosophy before him has failed to engage in a model of thinking that recognizes the differential or non-identical basis of the world, as it has been using a representational model of thinking to grasp a reality that, according to Deleuze, does not lend itself to such grasping. From here on, excuse my idealist opposing of civil and common law systems as representing distinct conceptual schemes (which, again, they are not in practice).

Already at the opening of the book, Deleuze opposed repetition to generality. The cringe representational model of thinking proceeds from the assumption of the generality of the content of knowledge, and the generality of objects it will see and receive. “Knowledge” is an expanding archive of generalities (forms, universals) abstracted from particulars things or phenomena that resemble (not repeat, for Deleuze) each other, and from which generalities could/will be applied for future resembling things or phenomena. Knowledge can only grow by way of negating negations, namely assimilating “oppositional determinations” in moments where the existing archive encounters its (own) limits. Because knowledge cannot think the “affirmed world of difference,” it would constantly delineate limits of what the archive knows (and does not); as such it incessantly generate the other.

Knowledge/archive sees the other (things that it cannot account for) as nothing but opposition, to which it must adapt by editing either itself or the object (to negate the negation). Knowledge/archive, for Deleuze, routinely ignores to explain (or is even positioned to explain) the genetic conditions of its other; for its basic impulse is to negate the negation to preserve the sense of having knowledge (of generalities). This is the understanding of the world via “sedentary distribution” (D&R, p. 37); so, in this perspective, the folly of negativity (in the epistemological register) is basically the folly of empires (in the political register). For Deleuze, the issue of knowledge/archive, in only sensing generalities, is it does not take objects “as they are,” which means seeing them as affirmations, as singularities: “negation is difference, but difference seen from its underside, seen from below. Seen the right way up, from top to bottom, difference is affirmation” (p. 55).

So, what would be Deleuze’s based alternative to cringe knowledge? I argue his clear formulation of that alternative would be “learning” as articulated in Chapter 3 and 4. Learning, which sometimes he calls “vicediction,” is a twofold movement of (1) the comprehension of a problem and (2) the condensation of the singularity of the problem and its singular, corresponding solution into an “Idea” (p. 192). As mentioned, knowing does not in itself think of its genesis; it is not positioned toward a full appreciation of the problem that propels the generation of generalities. But learning does. In Deleuze’s picture, learning is like an embodied process of a subject’s struggling with the real—“the real” being the specificity/singularity of an objective situation. One example he used to illustrate the notion would be Henri Bergson’s account of what does “learning to swim” entails, which I will here cite Somers-Hall’s (2013) elaboration (p. 156).

Knowing the (abstract) generalities about swimming, namely intellectualizing about it, cannot teach one to swim. Such as knowing about the physics of water, of one’s bodily motoric, and so on. How could one get to know-how to (actually) swim? One can perhaps only do so by throwing oneself into the water and gradually adapt oneself to the new environment. Here, the twofold movement is satisfied. First, one is involved in the gradual determination of the problem, which demands the transformation of one’s body to suit a particular situation, and secondly, forming the Idea of swimming, in this case developing the habit of activating one’s body to a particular rhythm in water. The Idea produced here resists simple intellectualization, namely generalities about movement and so on, but is a multiplicity, a problem-and-solution set, constituted into a singular Idea; “multiplicity” in that the problems involved in moving in water are as manifold as its solution if we really intellectualize it, for bodily movements is an extremely complex affair. So, we say colloquially that one “has an idea” of swimming.

Deleuze doubles down that learning takes place in a metaphoric ‘theatre’ where Ideas are generated from the unconscious, where “thought should find within itself something which it cannot think” (D&R, p. 192). I understand Deleuze’s use of the unconscious as the source of Ideas as him half-borrowing Plato’s Meno theory that we are not passive receivers of ideas, but are hosts where ideas are innately held. For example, we would “recollect” that we know how to swim once we are engaged with a dialectic with the water; this dialectic being learning. But the major difference is that Deleuze’s learning is an explicitly creative and infinite activity as much as it is a process whereby the innate (virtual) becomes actual. It is creative and infinite in that, for example, as one continues to learn to swim, even if one receives instructions from a coach, one would gradually and subtly learn new things about one’s (singular, unique) body as it engages the water, how to optimize movements best suited for one’s body, and so on.

In learning, one is not simply comprehending the problem, but is unconsciously and invisibly articulating a version of the problem for oneself, or “problematizing” it. Without going into details on Deleuze’s metaphysics, suffices to say that each problematization-and-solution set is, in his framework, a unique and singular event: a repetition. The learning process and the “getting the idea” of swimming for each person is objectively singular no matter how regimented the swimming lessons are for a group of individuals. Someone with short arms has a different Idea about swimming comparing to someone with long arms. The singular Idea is here actually a multiplicity with the appearance of unity. We would common think “Deng knows how to swim” as a unified affair. I think Deleuze insists on calling it a “multiplicity” to emphasize the complexity under the unity: any-thing is but a nexus of multiple objects and processes; each nexus is constituted by a different set of objects and processes. Similarly, he insists on calling things that resemble each other “repetition” to emphasize the singularity of each actual state of affairs; after all, Deng knowing how to swim and Michael Phelps knowing it clearly involve different elements and processes.

We can summarize Deleuze’s opposition of knowledge and learning as follows: the substance of knowledge is to build an archive of generalities based on the presumption that generality is possible (namely the representational mode of thought), and with the aim that such generalities could be applied toward future resembling phenomena. The substance of learning is the formation of singular “Ideas” from a situated material reality; and Ideas being a nexus of singular-situated articulations of problems and their singular-situated solutions. Knowing is conscious, and knowledge are like models visibly developed and applied. Learning is unconscious, and the Ideas learned mostly defies conscious intellectualization. Knowledge is more like propositional constructs; Ideas are more like know-hows. Knowledge looks like a tree; Ideas look like rhizomes.

Part 3: The Ontological Outlooks of Two Legal Systems

According to said knowing-learning opposition, it should be clear that the common law system resonates with the outlook of learning, and the civil system with that of knowing. I will present two differences viewed from this framing: the difference from the form of law and from the source of law. First, the civil system is based on a tree-like conceptual scheme that aims to build an archive of generalities and to apply thereof. It moves by the impulse of exhaustive coverage of every case-scenarios the legislature thought were possible at any given point in time, which is implicitly a procedure of delineation: drawing the boundaries of known-unknown, inside-outside, covered-uncovered.

What this legal archive does not account for, “the issues” of a given society, is present as the negative, the disclosure of which the archive would actively assimilate or synthesize, namely to engage in mediation. The name of this mediative activity would be legislation, or law-making: a bunch of legislators getting together to pass, repeal, and amend laws. In other words, the archive would be updated from time to time to code emergent phenomena (and changes in politics) previously unthought of by the archive. In practice, the role of judges in the civil system is limited to the application of generalities to particular cases. The source of law is determined by the archive and the legislature who mediate the negative. It is a centralized scheme where agency is located at the centre, and changes happen through mediating data from the periphery to create new generalities.

The (ideal) common law system, on the other hand, reflects the outlook of Deleuze’s concept of learning. Law-making therein is (theoretically) a situated and creative process. Judges are given powers in the common law system to make laws based on the situated reasoning of a case. It is a system where the reasonings articulated to justify a decision (namely ratios) hold actual legal force. Since (theoretically) there is no legal archive, there would not be any negative disclosures to speak of. And as such, the items that resemble generalities in common law regimes are all positive repetitions of problematics-and-solution sets, as condensed in the ratios. Together, they are, in the common law world, conventionally called a “body of laws” as constituted by actual judges’ decisions on specific cases. These laws are formed by decisions where actual people articulate problematizations of the legal issues of a given case and articulate reasoning to decisions. In a word, we could draw an equivalence between Deleuze’s concept of the “Idea” and the common law concept of “ratios.”

Common law shows an appreciation of ratios as singularities. Judges do not merely interpret the facts of a case and apply statutes; their operation involves an element of improvisation which is an action by an individual who presumably possesses a rich knowledge of laws and is ready to assess and apply this knowledge on the particularities of cases. The situations that give rise to the need for decision, that is the disputes in a case, and the consequent reasonings to decisions, are each a singular nexus of facts, statutes, precedents, legal conventions, unconscious social conventions, witnesses, lawyers, and judges. So, the core of each case-law, namely the production of ratios, would render legal practice on the same register as how Deleuze and Guattari defined philosophy, “the discipline that involves creating concepts.” Some idiot (Lefebvre, 2008) had argued that the Deleuzian view challenges that judges apply and not create law. But the Anglos have been practicing law that way self-consciously for a thousand years, roughly speaking.

A More Realistic Conclusion

I have been careful in saying that the common law only “resonates” with Deleuze’s concept of learning because, again, the real common law regimes present and past really do not neatly fit that ideal picture. At least three things that do not fit: (1) The stare decisis principle is in practice bounded by the hierarchy of courts. (2) The path dependency set by the stare decisis principle would bind future cases in the equal or lower courts of the same jurisdiction. (3) The leeway of common law judges should not be romanticized: they still have to follow statutes.

References:

Colebrook, Claire. 2019. “Legal Theory after Deleuze.” Pp. 6-23 in Deleuze and Law: Forensic Futures, Edited by Rosi Braidotti, Claire Colebrook and Patrick Hanafin. London, UK: Palgrave MacMillan.

Deleuze, Gilles. [1968] 1994. Difference and Repetition. Translated by Paul Patton. New York, US: Columbia University Press.

Lefebvre, Alexandre. 2008. The Image of Law: Deleuze, Bergson, Spinoza. Stanford, US: Stanford University Press.

Quigley, John B. 2007. Soviet legal innovation and the law of the western world. New York, US. Cambridge University Press.

Somers-Hall, Henry. 2013. Deleuze’s Difference and Repetition. Edinburgh, UK: Edinburgh University Press.