The Law without Organs

Alexandre Lefebvre’s The Image of Law: Deleuze, Bergson, Spinoza is the first book-length study to use the thought of Gilles Deleuze in developing a theory of adjudication. That Deleuze said little about jurisprudence, and was highly critical of human rights discourses, is not in itself a problem for this is not a book on Deleuze. Indeed, only one section is devoted entirely to him and the book’s three parts are mediated through Kant, Bergson and Spinoza respectively. Lefebvre challenges the notion that judges simply apply the law, and works with Deleuze’s concepts to advance a concept of judgment and adjudication that is inherently creative. To put it more forcefully, Deleuze’s philosophy offers an affirmative insight into how judges create the law, in which creativity is thought of as a condition of judgment. Only with this insight, Lefebvre argues, can adjudication be properly understood and practiced. In contrast to much Deleuzian scholarship, which focuses on the radical nature of Deleuze’s thought, Lefebvre wishes “to achieve a certain tone with Deleuze by bringing him to everyday institutional concerns and giving his concepts more sober application than is often the case” (xiii).

An “image” of thought, according to Deleuze, is the prephilosophical image we have of what it means to think. We make certain assumptions, for example that thought is equal to truth and that thinking is an activity of recognizing objects as instances of pre-existing concepts. The main problem with this ‘dogmatic’ image of thought is that these assumptions, which are uncritically accepted as the natural capacity for thinking, base thought on accepted opinion. Lefebvre extends this concept in Part One to write about the ‘dogmatic image of law’. This refers to the uncritical acceptance in theories of adjudication of the Kantian notion of judgment as a subsumptive activity: legal cases are recognized as instances of pre-existing rules of law.

As rules pre-exist cases, they determine how an event appears before a judge as a legal case. Lefebvre presents the dogmatic image of law through three theorists: H.L.A. Hart, Ronald Dworkin and Jürgen Habermas. In each case, they are shown to criticize simple accounts of judgment as subsumption and seek to provide a more adequate explanation. But what they have in common, and which makes their image of law dogmatic, is that none of them consider that judgment could be anything other than subsumptive. Hart’s judge appears like the Kantian schemata, synthesizing cases and laws immanently, but within laws themselves. Dworkin’s judge reflectively presupposes purposes as if they were present in a law’s creation, and his interpretation of the law is treated as the latest chapter in an ongoing narrative. For Habermas, judgments are formed discursively and retrospectively to ‘discover’ an appropriate norm, an appropriateness that is determined retrospectively. Lefebvre teases out the Kantian nature of subsumptive judgment in each theorist: subsumption from the Critique of Pure Reason in Hart; reflective teleological judgment from the Critique of Judgment in Dworkin; and the philosophy of law from the Metaphysics of Morals in Habermas. Of course, a pre-existing rule cannot match a case exactly, giving rise to a judge’s interpretation and therefore an amendment in the law. But the terms of the judgment have already been established, and what is new and singular about a case is overlooked. Creativity is understood as either the willful or accidental intervention by a judge.

Parts Two and Three, which are worked through Bergson and Spinoza (and Deleuze’s readings of them), present a new image of law as creative. Opening with a discussion of Aristotle and Kant, Lefebvre introduces Deleuze’s concept of the encounter, which is nothing less than the real condition of thought: “According to Deleuze, only an unanticipated and violent encounter can stimulate thought past the purview of recognition and force it to think” (72). One does not encounter the new; the encounter is the relation between...