by Daniel Smith
But how, then, does Patton position this notion of critical freedom within Deleuze's thought? Deleuze, in fact, is not completely silent with regard to the liberal tradition. In A Thousand Plateaus, Deleuze and Guattari attempt to show how, within the liberal tradition itself, the notion of the freedom of subjects is inevitably tied to an “image of thought” derived from the State. Social contract theory, in their analysis, operates between two poles, the subject and the legislator. As a subject I give up my freedom to the State in return for protection from others and from the state of nature (the State as an “agent of servitude”); in return for this servitude the State, as legislator, affords me the greatest possible scope of liberty (the State as the locus of negative freedom). In Kant's hands, however, this link between subject and legislator would be pushed to its limit in the notion of a subject that is subjected only to itself as a self-legislating rational being (“autonomy”): “The contract must be pushed to the extreme; in other words, it is no longer concluded between two people but between self and self, within the same person—Ich = Ich—as subjected and sovereign” (TP 460). In the Kantian formulation, freedom becomes defined as the identity of subject and legislator in the same person. “The more you obey [as subject], the more you will be master [as legislator], for you will only be obeying pure reason … in other words, yourself” (TP 376). What one finds here is a mysterious “nexum” between the subject, the State, and reason, which perhaps reached its apotheosis in certain forms of Hegelianism. Reason invents the fiction of a State that is universal by right, and elevates the State to a de jure rationality, such that realized reason is identified with the de jure State and the State is the becoming of reason itself (the particularity of States being a mere accident of fact); the State in turn provides thought itself with a model (the republic of free and rational minds, a cogitatio universalis) which is internalized in the self as both legislator and subject (under formal conditions that allows thought to conceptualize their identity) (TP 375–6, 556 n42).
Now if Deleuze's own philosophy breaks with this nexus, then any reformulation of the concept of freedom in Deleuzian terms would have to operate, not at the level of subjects or the State, but rather at the level of their genetic processes (subjectivation, stratification, rationalization). As Patton shows, this is indeed the case in one of the few texts in which Deleuze actually uses the term (DP 41–2). In Difference and Repetition, Deleuze writes that the “differential object” of sociability cannot be lived with actual societies, but “must be and can only be lived in the element of social upheaval (in other words, freedom, which is always hidden among the remains of the old order and the first fruits of a new)” (DR 193). Here, freedom is not equated with the liberty to move about and pursue one's interests within a given social formation or State; rather, it concerns the conditions of change for the social structure itself. (In A Thousand Plateaus, it is the war machine that will come to play this role, in contradistinction to the State.) Already in Difference and Repetition, then, Deleuze was giving the concept of freedom an altered set of components, making it correspond to one of the fundamental problems of his philosophy: namely, the conditions for the production of the new. (This is a different question from that of the conditions of change, since the new, in order to be truly new, can be neither foreseeable nor conceptualizable, nor even expected or hoped for.) Freedom, as a condition of the new, appears here as a limit-concept (or Idea) in a far more radical sense than one finds even in Kant.
When Patton parses this limit notion of freedom, he does so in terms of Deleuze's distinction between the connection and the conjugation of processes (DP 101–2). This distinction is a difficult and nuanced one in Deleuze's philosophy, but Patton argues that it functions as an immanent normative criterion for evaluating the modes of interaction between processes or flows. A conjunction of flows occurs when one flow blocks or constrains other flows, in such a manner that it brings the latter under the dominance of a single flow capable of “overcoding” them (hence Deleuze and Guattari's use of terminology such as “capture,” “integration,” “sedimentation,” “stratification,” and so on). By contrast, a connection occurs when two flows enter into relation in such a manner that something passes between them, and their interaction produces something new which introduces a real transformation in a given field. This third thing is what Deleuze terms a “becoming” (see TP 232–309), and Patton rightly characterizes Deleuze's philosophy of the new (or “ethics of freedom”) as a politics of becoming. But he also stresses the complexities and uncertainties involved in such a politics.
Whereas the normative status and the value of liberal freedom is straightforwardly positive, critical freedom is a much more ambivalent and risky affair: more ambivalent, since it involves leaving behind existing grounds of value, with the result that it is not always clear whether it is good or bad; risky, because there is no telling in advance where such processes of mutation and change might lead, whether at the level of individual or collective assemblages. (DP 87)
This is a succinct statement of Patton's revised concepts of normativity and critical freedom, and of the “exo-consistency” he is attempting to establish between them. Here again, one can get a clear sense of the conceptual apparatus Patton is in the process of creating, step by step, in the midst of his commentary on Deleuze.
THE THEORY OF JUDGMENT IN DELEUZE
The third foreign term Patton brings into his analyses, although only in passing, is the term judgment. At one point, he describes Nietzsche's thought as “a complex and nuanced system of judgment” (DP 63)—a phrase that brought me up short, since one of Deleuze's most persistent themes is the need “to have done with judgment” (a formula derived from Artaud, though Deleuze assigns it a much broader scope). Deleuze prefers the term “evaluation” to “judgment,” and constantly criticizes what he, following Nietzsche, calls “the system of judgment” in philosophy. My initial reaction was that Patton's use of the word was simply infelicitous, but the more I read, the more it became clear that Patton's positive appeal to a theory of judgment was not incidental. Why is Deleuze “against” judgment? Judgment is the act of subsuming the particular under the general, and Deleuze's is clearly critical of the notion of the general or the universal. Universals explain nothing, Deleuze constantly says, but are themselves what need to be explained (D vii), and Patton likewise insists that there neither is nor can be any “transcendent point or uniform standard of judgment” (DP 64).
But, Patton asks, does this mean we must have done with the concept of judgment as such? Kant himself, for instance, in the Critique of Judgment, developed the rich notion of reflective judgments—judgments that start with the particular and look for the general, which is not given but merely has a “problematic” status.18 Thinkers such as Jean-François Lyotard and Hannah Arendt have demonstrated the importance of the notion of reflective judgment for political philosophy. Deleuze's own distinction between the regular and the singular is germane here: the regular is that which is submitted to a general rule, which is regulated; but the singular is that which lies outside the rule. But is not this what we mean when we speak of “sound” judgment: the ability to act when there is no clear rule? This is a point that Arendt makes in her book Eichmann in Jerusalem: A Report on the Banality of Evil. What we expected, or at least hoped, of people in situations like that of Nazi Germany, she says, was
that human beings be capable of telling right from wrong even when all they have to guide them is their own judgment, which, moreover, happens to be completely at odds with what they must regard as the unanimous opinion of all those around them … Those few who still were able to tell right from wrong went really only by their own judgments, and they did so freely [in an act of what Patton would call “critical freedom”]; there were no rules to be abided by, under which the particular cases with which they were confronted could be subsumed. They had to decide each instance as it arose, because no rules existed for the unprecedented.19
In h
is concluding chapter on native title entitled “Nomads, Capture, and Colonization,” Patton seems to follow a trajectory similar to Arendt's. For Deleuze, the law is a kind of axiomatic system: laws or rights (such as human rights) are axioms from which certain theorems are deduced (e.g., torture is a violation of my rights). But undecidability is inherent in every axiomatic system: undecidable cases are what wind up in the courts, before a judge, who in the end must make a judgment in the absence of any rule (if there was a clear rule the case would not wind up in court). The decision, then, enters the body of law as a precedent, as a singularity. The law thus operates on two registers: legislators create laws and decide on axioms, rules; while the judiciary (common law) moves from case to case, from singularity to singularity; it is a prolongation of singularities. The landmark 1991 Mabo case of the Australian High Court, which first affirmed that native or Aboriginal title formed part of Australian common law, is such a singularity, and Patton analyzes the case in Deleuzian terms: it was not simply a deterritorialization of the State's legal mechanism of capture, but the creation of a kind of “zone of indiscernibility” between indigenous law and the common law (DP 128–9), a kind of “jurisprudential smooth space” (DP 31) which has had and will continue to have profound “prolongations.” But Patton's analyses lead to the following question: Is the Mabo decision itself not the result of an act of judgment? Deleuze himself says that “it is jurisprudence which is truly creative of rights” (DP 3, 120); it is a potential space of metamorphosis. Why, then, does Deleuze want to have done with judgment? In jurisprudence, is it not an act of judgment that creates rights? Is not judgment operative at the level of both “court decisions” and “legislative enactments”? Is it not therefore possible to retain a concept of judgment (freed from the universal) when one speaks of the creation of rights in jurisprudence? Patton's analyses seem to point in this direction. Moreover, one can see how such a concept of judgment would link up with the other “liberal” concepts introduced by Patton: (a) deterritorialization is indeed “normative” because (b) it opens up a space of “critical freedom” within which (c) one can exercise a judgment, outside of pre-existing rules, that would be truly creative and productive of the new (for instance, new rights).
Patton's analyses of native title in Australia and of the creative role Deleuze assigns to jurisprudence is, in my opinion, one of the most original sections of Deleuze and the Political (DP 120–31), since it addresses the concept that perhaps lies at the heart of the liberal tradition: namely, the concept of rights. Yet again, this is a concept Deleuze rarely discusses, and when he does, he is critical of the very notion of human rights (or in French, les droits de l'homme, the universal “rights of man”). “The reverence people display toward human rights,” Deleuze muses in the 1988–9 Abécédaire interview, “almost makes one want to defend horrible, terrible positions” (ABC G). Deleuze's critique, however, seems directed less against the concept of rights per se than against the universal status accorded to human rights, which turns it into a “pure abstraction,” an “empty” concept, to the point where Deleuze can even speak of the “mystifications of human rights” (WP 225 n18). In Deleuze and Guattari's terminology, human rights are not universals but axioms, and they coexist within the capitalist market with other axioms—notably the axiom of the security of property, in the name of which supposedly democratic States will often simply ignore or suspend human rights. “What social democracy has not given the order to fire when the poor come out of their territory or ghetto?” (WP 107). Moreover, as Alain Badiou has remarked, axioms such as human rights do not concern individuals directly, in their concrete multiplicity, but only in so far as this multiplicity is reduced to a “one” that can be counted (the individual who votes, who is imprisoned, who contributes to Social Security, and so on).20 In other words, “human rights say nothing about the immanent modes of existence of the people provided with rights” (WP 107).
In the Abécédaire interview, Deleuze points to the example of the then-unfolding situation in Armenia: Armenians living in an enclave in a Soviet Republic had been massacred by Turks; the survivors escaped into the Armenian republic, where they were almost immediately devastated by a tremendous earthquake. “It's like something out of the Marquis de Sade. These poor people have gone through the worst ordeals they could face, and they barely escape into shelter when nature starts it all up again” (ABC G). It is not sufficient, Deleuze continues, to insist that the Turks had no right to massacre the Armenians, or that they violated the Armenians’ rights. The abominations the Armenians suffered are not denials of abstract rights; they are cases, abominable cases, singular cases (even if such cases often resemble each other). In this case, what is at issue is a specific case of territorial organization: that is, an enclave in a Soviet Republic, surrounded by hostile Turks. How can the enclave be eliminated, or made livable? What can be done to enable the Armenians to extricate themselves from this situation, so they are no longer simply delivered into the hands of the Turks? The earthquake raised different questions concerning, for instance, the unsuitable construction of buildings. What is needed in each of these instances is not an application of universal rights, but rather the invention of jurisprudences so that, in each case, this or that will no longer be possible. Those are two quite different procedures. As Deleuze says, “there are no ‘rights of man,’ there is life, and there are rights of life. Only life proceeds case by case” (ABC G).
Deleuze is here simply following the trajectory laid out above: universal coordinates such as Rights explain nothing; what needs to be analyzed in a concrete assemblage are the processes by which rights are both created and critiqued. Hence the importance of jurisprudence: it provides Deleuze with a model for the creation of rights that are not universal, but are always linked to a given assemblage and the particularity of specific cases or singularities. In the Abécédaire interview, Deleuze also provides a more quotidian example. In the late 1970s, a taxi driver was successfully prosecuted in Paris for prohibiting passengers from smoking in his taxi. The pretext for the decision: a passenger in a taxi is like a tenant in an apartment. Tenants are allowed to smoke in their apartment under the right of use; taxis are like mobile apartments that passengers occupy as temporary tenants; therefore when someone takes a taxi they are considered to be a tenant and must be allowed to smoke. By the late 1980s, smoking was prohibited in every Parisian taxi, because taking a taxi was no longer equated with renting a private apartment, but was considered to be a public service, and it was legitimate to prohibit smoking in public areas. Such is the process of jurisprudence: it is not a question of universal rights; it is a question of a situation, and a situation that is evolving. “To act for freedom, to become a revolutionary,” Deleuze says, “is to act on a plane of jurisprudence” (ABC G). This is the precise path Patton follows in his analyses of native title, and the implications of landmark decisions such as Mabo in Australia and Calder in Canada (DP 127–31). “We should not be too quick to discount the deterritorializing power of new rights,” writes Patton, “Rights too are virtual singularities, the consequences of which are only actualized in specific court decisions, legislative enactments and the interactions between these” (DP 127).
And yet, despite his appeal to the process of jurisprudence, it remains noteworthy that Deleuze never offered a concomitant concept of judgment. Given his own theory of the concept, it would seemingly have been possible for Deleuze to retain the notion of judgment simply by altering the components of the concept, and Patton's analyses hint strongly at this possibility. Why, then, did Deleuze himself decline to take this path—a path that had been charted out by Arendt and Lyotard in their appeals to “reflective judgment”? This question perhaps takes us to the heart of the differences that separate Deleuze from his contemporaries. Jacques Derrida, for instance, once wrote that Lyotard “has launched a categorical challenge against our epoch … He is telling us: you have not had done with, you will never have done with judgment.”21 Intentio
nal or not, it would not be difficult to read into this willful inversion of Artaud's phrase a direct challenge to Deleuze's thought as well. For his part, Derrida presented his own analysis (or deconstruction) of the theory of reflective judgment in his essay, “Force of Law: The ‘Mystical Foundation of Authority.’”22 The directions in which Deleuze and Derrida take their analysis of judgment are indicative of two general trajectories in contemporary French thought. In Kant, a reflective judgment is a judgment that is made in the absence of a rule—that is, without a determinate concept: the imagination becomes free at the same time that the understanding becomes indeterminate. But what is the condition that makes this “free play” of the faculties possible? It is possible, Kant says, only through the intervention of an Idea of reason. “Reflective judgment would not be able to trace its passages were it not inspired by the unity and systematicity that the suprasensible Ideas (of the Soul, the World, and God) ‘project by analogy’ into experience.”23 If determinate judgments operate under a rule or concept, reflective judgments rely on the directive role of Ideas and their “analogical” connections. One of the aims of the Critique of Judgment is to analyze the manner in which transcendent Ideas are presented in sensible nature through analogy (the sublime, symbolization, genius, and teleology).
But this is precisely the reason why Deleuze offers a strong critique of the “analogy of judgment” in Difference and Repetition. Since reflective judgments are grounded in Ideas (whereas determinate judgments are grounded in concepts), the difference between theories of reflective judgment can be evaluated in terms of the corresponding theory of Ideas. In Lyotard, for instance, Ideas are fundamentally “unpresentable.” For Derrida, the judgments of the law operate on the basis of an infinite and transcendent “Idea of justice,” in relation to which the condition of possibility for any decision or reflective judgment is its very impossibility. It is this element of transcendence, however, that Deleuze refuses; in the fourth chapter of Difference and Repetition (“Ideas and the Synthesis of Difference”), Deleuze attempts to develop a purely immanent and differential theory of Ideas (DR 168–221). It is this break with transcendence that allows Deleuze to effect a corresponding break with the doctrine of judgment. Immanent Ideas, in being actualized, are dramatized, but the agent of this dramatization is not judgment but rather desire. “Desire is productive,” writes Patton, “in the sense that it produces real connections” (DP 70). Or as Deleuze and Guattari put it, simply: “Desire is the set of passive syntheses” (AO 26). In the realm of law or rights, Deleuze does not appeal to the transcendence of an infinite idea of justice; the movement of the immanent Idea is actualized in becomings and the production of affects—this is the process of desire itself. Immanent Ideas in Deleuze in a sense remain “regulative,” but only in so far as they pose problems, they are “problematizing.” Deleuzian Ideas map out directions and vectors of synthesis (connection, conjunction, disjunction) which are actualized, not by a conscious judgment, but through an unconscious process of desire (a “passive” synthesis). This is why Deleuze says the unconscious is not pre-given, but must itself be constructed: in the law, it is the process of desire that constructs the movement from case to case, the prolongation of singularities. This is also why Deleuze can say that the question of human rights “is not a question of justice, it is a question of jurisprudence”—that is, of desire (ABC G).
