Abstract for Daughters of Chaos: Practice, Discipline, A Life – 8th international Deleuze Studies conference, Sweden, 29th of June and the 1st of July 2015.
Thinking law, doing jurisprudence: A continued creation of a system of rights
‘If Deleuze and Guattari parse out the potential for thinking into these three styles – art, science and philosophy – where would we place law?’ (Colebrook 2009: 14-22).
Deleuze describes jurisprudence as ‘the philosophy of law’ that ‘proceeds by singularities, by working out from singularities’ (Deleuze 1995: 153). In this statement he draws a similar description of thinking philosophy with that of ‘thinking law’ (jurisprudence) emphasizing that the crux of ‘law’ is a continued creation of a system of rights that must be relation-situational specific. Deleuze and Guattari’s philosophy of immanence encourages ‘thinking law’, as a hybrid of styles of thinking philosophy, science and art, and encourages us to engage with ‘thinking law’ to become other than it presently is. Instead of perceiving the philosophy of law historically, we should engage with it as the creation of new concepts, where these concepts ‘in itself calls for a future form, for a new earth and people that do not yet exist’ (Deleuze and Guattari 1994: 108).
For Deleuze (1996: ‘G comme Gauche‘), being on the Left (fighting for freedom) is first a matter of perception and second it is a question of ‘becoming(s)’ of ‘never ceasing to become “minoritarian”‘. In constitutional states (état de droit) human rights are perceived (subsumed) as something that each individual possesses and these rights are protected through the institutionalised form of judicial review or adjudication under the principle of constitutionalism. Constitutionalism requires from courts to make a judgment whether a specific law or state action infringes on a specific right as contained in a supreme constitution based on abstract formless subject of law. This paper argues that when we perceive human rights as based on a fixed subject (or rights bearer) it resembles what Deleuze and Guattari calls the (empty) ‘majoritarian’ standard that presupposes the ‘subject’ of human rights in constitutional democracies as an abstract figure, ‘the average adult-white-heterosexual-European-male-speaking a standard language’ (Deleuze and Guattari 2005: 105-106; see also Deleuze 1996: ‘G comme Gauche‘). The latter forms the majority not in a quantitative sense but because it forms the historical standard in which the rights and duties of citizens are measured by the axioms of a capitalist society.
By considering case law and focusing on the case of Carter v Canada (British Columbia Supreme Court, 2012 BCSC 886, 287 C.C.C. (3d) 1) which concerned the question whether the prohibition of physician-assisted suicide (dying) infringes on the rights of some individuals, I intend to illustrate that courts functions as a faciality machine that produces both the face and the landscape when addressing the possible infringements of human rights (Deleuze and Guattari 2005: 180-181). I argue that thinking law and doing jurisprudence requires a movement beyond asking whether a term is conceptually possible and the notion that law requires a certain language accompanied by a degree of institutionalization. It brings forth ‘the question of how concepts are created and what the world must be if something like societies of law and lawful relations have evolved’ (Colebrook 2009: 12). I conclude that only through a continued creation of a system of rights that must be relation-situational specific will we be able to think law as thinking ‘life itself’ and do jurisprudence focusing on the interest of material bodies rather than the abstract formless subject of law (see Braidotti, Colebrook and Hanafin 2009: 1, 3).
