Mcgee 2009 - The Image of Law Deleuze, Bergson, Spinoza

Cardozo School of Law
Creation, Duration, Adjudication: A Review of Alexandre Lefebvre's The Image of Law: Deleuze,
Bergson, Spinoza
Author(s): Kyle McGee
Source: Law and Literature, Vol. 21, No. 3 (Fall 2009), pp. 480-491
Published by: Taylor & Francis, Ltd. on behalf of the Cardozo School of Law
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R E V I E W E S S AY
Creation, Duration, Adjudication:

A Review of Alexandre Lefebvres
The Image of Law: Deleuze,
Bergson, Spinoza
Kyle McGee*
Abstract. Alexandre Lefebvres The Image of Law: Deleuze, Bergson, Spinoza presents a challenge to neo-Kantian liberal jurisprudence (represented by Hart, Dworkin, and Habermas) as well
as a novel theory of judgment. Lefebvre constructs a dogmatic image of law out of a Kantian
heritage discerned in key works of twentieth-century jurisprudence: the representative figures all think
judgment according to Kantian categories and locate the act of adjudication in an act of subsumption.
Deploying Deleuzes critique of the representational image of thought in a new context, Lefebvre
claims that another mode of judgmentone that would not stifle creativity and novelty by subjecting
the unfamiliar to the logic of the familiaris possible. Bergsons theories of perception and memory
are substantially reconfigured for a juridical context, and the virtuality of the law is assessed from
this vantage point. Lefebvre argues that a theory of judgment based not on subsumption but rather on
Bergsonian attention and the Deleuzian encounter provides new insight into the machinations of
adjudication and the law more generally. Lefebvres intervention is criticized for failing to engage with
Deleuze and Guattaris work on law, Anglophone critical legal work, and Lacans theory of desire and
Law, all of which would have enhanced the breadth of the study. It remains, nevertheless, a significant
contribution to theoretical jurisprudence and the philosophy of judgment.
Keywords: Alexander Lefebvre, The Image of Law
Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford:

Stanford University Press, 2008).
Law & Literature, Vol. 21, Issue 3, pp. . issn 1535-685x, electronic issn 1541-2601. 2009 by The
Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission
to photocopy or reproduce article content through the University of California Presss Rights and Permissions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 10.1525 /lal.2009.21.3.
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McGee Creation, Duration, Adjudication
The project Alexandre Lefebvre sets for himself in this, his first book-length
venture, is less to hazard the construction of a Deleuzian philosophy of law
than to utilize Deleuzes thinking on judgment in order to deploy a new critique of adjudicative technique and of the idea of judgment as representational constructs. In their place, Lefebvre, in an often-dazzling reconstruction
of Bergson, offers a new image of judgment. One sees immediately the bold
yet understated nature of this project. Lefebvre wants to make the case, first,
that Deleuze, the philosopher of desire par excellence, has something valuable to contribute to the liberal discourse on practical reason, consonant with
the civic republican wing of the Anglo-American law-and-society school.1 To
have done with judgment, then, might not necessarily entail having done with
practical reason. Second, following from this last point, the scope of the work
remains bounded by the theme of judgment and refrains, with just a few exceptions, from inquiry into the molar operations of the legal system as system.
The project is thus facilitated by a philosophical engagement with some of the
leading theorists of practical judicial reason: H.L.A. Hart, Ronald Dworkin,
and Jrgen Habermas.
In a relatively uncontroversial move, Lefebvre claims that all three of these
thinkers implicitly or explicitly rely upon or works within a Kantian frame of
conceptual reference. All three conceive of judgment as an act of subsumption, which, for Lefebvre, constitutes the hallmark of the dogmatic image of
law. To trace a Kantian inheritance effective in [Harts] theory of judgment,2
Lefebvre turns to the first Critique: the empty, undetermined concepts of the
understanding in Kant analogize to legal rules in Hart; the sensible flux of intuitive data in Kant analogizes to the conduct at issue before the court in Hart;
and the activity of the transcendental schematism or imagination in Kant
analogizes to that of the judge in Hart. The rules or concepts determine the
appearance of legal or experiential phenomena by way of a mediating judge
or schema that has the function of locating points of resemblance between
the rule-concepts and intuitive data or conduct. The mechanics of Hartian
judgment are thus grounded in a principle of resemblance with regard to the
object judged.
In a rather more innovative appraisal of Dworkins understanding of judgment, Lefebvre turns to the third Critique. Reflective teleological judgment
turns out to be Dworkins secret structural device, and Kants remarks on this
modality of judgment enable Lefebvre to christen Dworkins theory of judgment the law with organs.3 In unpacking this type of judgment, Kant refers
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L a w & L i t e r a t u r e Vo l u m e 2 1 , N u m b e r 3
to the concept of the organism as a reflective principle according to which the

arrangement of organs must be assumed as purposively organized if the organism is to be apprehended as such. Analogously, for Dworkin, the concept
of adjudicative integrity operates as a reflective principle according to which
a collection of judgments must be assumed as purposively organized and coherent if the legal system is to be justifiable. Universal judgment according to
integrity yields a coherently organized system maximizing the legitimacy of
the institution.
Habermas and the discourse ethics school of legal thought are subjected
to similar treatment: Here, Lefebvre highlights the role of Kants political
and moral philosophy to bring out the subsumptive nature of adjudication.
For Habermas, a rules legitimacy depends on the maintenance of its identity
between its initial justification and its application in real cases. A successful
application, that is, one that preserves the rules legitimacy, necessarily treats
that rule as though it already included the application or judgment in the case.
This counterfactual fiction, what Lefebvre calls the retrospective temporality of application discourses,4 reveals the extent to which Habermas understands adjudication as subsumption: manifestly, the problem to which this idea
of application responds could not have otherwise emerged.
Thus are Hart, Dworkin, and Habermas primed for critique. The subsumptive account of adjudication assigned to each, though in different ways, valorizes a representational mode of legal reasoning premised on the principles
of resemblance and recognition. In this way, Lefebvre argues, each account
fundamentally denies the creativity of adjudication and propagates the dogmatic image of law. Marshalling Deleuzes fragmentary comments on rights
and jurisprudence, his late reflections on the concept of political philosophy
in What Is Philosophy? with Flix Guattari, and his early critique of representational thought in Difference and Repetition, Lefebvre claims that this subsumptive idea of judgment vanquishes the new and grounds itself in no actual
present milieu. In other words, because subsumption precludes encounters in
the Deleuzian sense (facing the problematic outside of law from within law),
it lapses into doxa and remains dogmatic.5
The philosophy of Henri Bergson is directed toward productive rather
than critical ends. Indeed, Lefebvres work with Bergson constitutes the heart
of The Image of Law. Bergson provides for Lefebvre a way of capturing the
intrinsic temporality and creativity of law: In Bergsons speculative pragmatism, time is an inventive force, nothing but the production of novelty and
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continuous variation. Substantiality gives way to, or becomes, motion, internal

or self-difference. Staging an encounter of pragmatisms, Lefebvre explores a
relation between Bergsons temporality and the experiential evolutive notion
(one hesitates to say theory) of law at work in Oliver Wendell Holmes. For
Holmes, the law must always adapt to the perpetually mobile flux of societys
desires, needs, and interests. Although Lefebvre collapses desire into need
and interest, muddling the process of production with a product component,6
the analysis has the virtues of swiftness and clarity. The crux, perhaps, is that
since, for Holmes, the laws being in duration entails creation, judgment cannot be a wholly subsumptive enterprise. It must, through an encounter with
the constitutively unrecognizable case, create the sense of the rule that it uses
in decision.7 Following on this, Lefebvre observes that the system of law continually differs from itself and produces internal complexity through interstitial developments; he claims, therefore, that all legal judgmentssome
minimally and others profoundlyintroduce alteration or interstitial change
into the law.8 The imperative drawn from the Bergson-Holmes engagement
might be summarized thus: [L]egal scholarship must maintain an appreciation for the growth and becoming of lawwhich proceeds from particular
situations and cases unfamiliar with later ordering principles and generalizationswithout subjecting these to a scheme of ends or final causes.9 In this
way Lefebvre absorbs a key lesson of legal realism into his basically formal
idea of law, producing a tension that goes mostly unaddressed in the text.
Lefebvre finally begins to shine as a philosopher in his own right in the
chapters dedicated solely to Bergson (chapters 6 and 7). Broadly, his thesis is
that the dogmatic theory of judgment, which assumes that judgment is necessarily subsumptive, a foreclosure of invention, mistakes one particular modality of judgment for judgment itself; a second can, however, be discerned.10
While theorists like Hart or Habermas develop subsumptive judgment this
way or that, they miss the defining dimension of judgment altogether: that
which challenges judicial reason and forces it to think. Drawing on Bergsons
theory of perception and memory, and Deleuzes reconstructive work on this
theory in the Cinema volumes, Lefebvre lays the groundwork for a positive
jurisprudence of novelty, and in the process identifies a number of insightful
parallels between the legal order and the ontological. For instance, in examining the distance between brute materiality and perceived images (the latter of
which, in Bergson, subtract from materiality what is of no pragmatic value),
Lefebvre notes the relative isomorphy aligning this perceptual architecture
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with the brute, pre-litigation events as they occurred and the legally coded,
screened facts as registered with the court.11 A theory of juridical perception
finds its rudiments here. Whether or not this approach to lawyerly and judicial perception can, or should be seen to, compete with the narratological
approach that emphasizes the efficacy of framing is another question, and one
which Lefebvre might do well to consider in future work.
The force and the value of Lefebvres nascent philosophy of judgment
hinges on his understanding of inattentive and attentive judgment, the two
modalities suggested above. All judgment, he claims, takes the shape of an
intersection between present, imagistic perception and past, virtual memory:
[T]he combination of a recollected rule(s) with the perception of the case
is the judgment; that is, the composite, or the process of combining perception with recollection, is the judgment.12 Bergsons counterphenomenology
of attention provides the key to understanding and resolving the antinomy
of subsumptive judgment. In most of our phenomenal experience, present
perceptions are guided by, and filled in with, memorial recollections drawn
out of virtuality through habitual recognition, and this process is properly
characterized as inattentive; on the other hand, occasionally situations present
themselves without memorial precedential accompaniment, and these (pathologically unique) situations demand an experimental approach wherein the archives of virtual memory are explored and re-explored until a workable grasp
of the new situation emerges. This process Lefebvre calls attentive judgment,
in a frequently brilliant extrapolation of Bergsonian ontology into the juridical realm. The substance of his critique of judgment, then, is that the theorists
of subsumption mistake inattentive judgment for judgment in toto.
We should take a moment to hash this distinction out more fully, especially
considering the manifest potential that Lefebvres idea of judgment might reduce to a purely mechanistic jurisprudence, precisely where we might have
expected a machinic jurisprudence.13 Indeed, the Bergsonian conception of
judgment he proposes seems to run this risk: [T]he very composition of the
rule with the case results in a judgment.14 This is where his pivotal distinction
springs into action; the work the inattentive-attentive distinction is intended
to do is precisely to fend off mechanism. Inattentive judgment provides decisive and immediate recognition and action at the expense of genuine or
singular engagement15 and its mechanics follow the logic of habit. While
without inattentive judgment pragmatically getting on becomes troublesome,
Lefebvre counsels against its unadulterated saturation of the law, following
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Bergsons advice regarding its exclusion from the philosophical or metaphysical sphere. Nevertheless, he argues, there is a place for inattentive judgment:
the practical considerations of judicial regularity and economy, both temporal
and monetary, demand that judgment be inattentive and repetitive (in the banal sense) most of the time.16 Attentive judgment, on the other hand, is necessary when an encounter in the Deleuzian sense, here an archetypal hard case,
emerges. Following Cardozo, Lefebvre writes, the real work of the judge and
of judgment starts with a failure of recognition.17
Where inattentive judgment expeditiously locates a point of homogeneity
in perception and memory, or the present presentation of the case and the
virtual body of rules, attentive judgment begins with the incommensurability
of the two. Rather than evoke a ready response, [the disjunction between
perception and memory] initiates a prolonged, experimental search.18 The
perceptual-memorial constellation that results from this search, a patchwork
of inadequate descriptions, then crystallizes in its registration in the virtual
archive as precedent, a newly born singularity on the legal systems plane of
composition, a virtual point de capiton that halts the search.19 The encounter
with the unrecognizable case catalyzes this plunge into the laws obscure virtuality and raises judgment, as the Deleuze of Difference and Repetition might
say, to the level of its transcendental exercise, to its nth power.20
In what greets the reader as more an appendix than an integral part of the
book,21 Lefebvre turns to Baruch Spinoza to close out the study. Unpacking
what it means for judgment to create, he puts Spinozas physics into relation
with Deleuze and Guattaris concepts of concept and problem, and observes
that adjudication is creative because, on occasion of an encounter, it must
actualizeand thus invent by way of determiningproblems in order to adjudicate the situation.22 A survey of a Canadian case suggests that adjudication creates specifically legal concepts out of its problems, just as philosophy
creates specifically philosophical concepts: as multiplicities cobbled together
out of preexisting elements.
But the construction of legal concepts, in Lefebvres account, is a depoliticized affair: the concepts created to deal with novel encounters are drawn
up strictly out of the factual situation presented, and seem to absorb into
their multiple relations no dimension of the political.23 Even granting that,
when a judge is creating a legal concept, there is no occasion for willfulness; in fact, willfulness is an illusion dispelled by an adequate understanding of judgment,24 problems pertaining to minute, or indeed elephantine,
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incursions of unconscious political investments or preconscious prejudices

are left untouched. By the same token, judicial and forensic constructions of
gender and race sweep completely under the radar of Lefebvres critique. Yet
other, now-classic, appraisals of adjudication and legal reasoning have dwelt
on these at length in order to reveal their real efficacy.25 Neglect of this type of
work yields a sometimes sterile, formalistic picture of adjudication.
Lefebvres vision of the law is thus rather sanitized, but this turns out to
be simultaneously a weakness and a strength. First, it results in a theory of
judgment that obscures or ignores political, ideological, and unconscious factors. In closely related fashion, considering that the element of creativity that
Lefebvre discovers as inherent to adjudication is starkly minimal,26 the theory
evades, or tries to evade, critical questions of judicial ethics. This evidences
a strong investment in the belief in the objectivity of the rule of law. These
remain weaknesses not because every study of adjudication must discuss these
problems, but inasmuch as Lefebvres conceptualism does not allow him to
pose them as problems within the frame of reference as it currently stands. But
the strength of this trait, otherwise damaging, is that it functionally conditions
his approach by dodging the overdetermined modes of constituting the field
that we find in much Anglo-American C. L. S. work; that is, were he faithless
and, in Pierre Schlags terms, operating within the dissociative aesthetic of legal scholarship,27 his inventive Bergsonian image of judgment could not have
materialized. We daily encounter accounts of laws internal and external operations that depend on entrenched, unreflective ways of articulating the object
for analysis. The new image Lefebvre offers has a real capacity to overturn
conventional thinking on judgment and the labors of law, and should not be
dismissed out of hand for lacking a sophisticated sociopolitical dimension. On
the other hand, it was also Schlag who demonstrated the necessity of climbing
to the dissociative apex before descending into belief once more.28
In what follows I would like to pose a few questions that the work leaves
open, and to make a few critical remarks.
First, lets return to the notion of the laws virtual past. Lefebvre writes:
The use of an actual, documented rule of law always presupposes the virtual
existence of that rule in order for it to be actualized and embodied within a
case.29 Within Bergsonian or Deleuzian theory, the virtual indeed conditions
the actual; however, an absolutely crucial feature of Deleuzes ontological account of morphogenesis is that the virtual bears no resemblance to the actual,
and it certainly does not double the actual identically. The contrary assertion
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reintroduces the doxic fundamentalism of Platonic ideas or, worse yet, Husserlian phenomenology.30 Lefebvre revisits this theme of the quality of the
virtual after unpacking Bergsons account of actualization or recollection,
noting that we cannot describe [the virtual past of the law] or give an account
of its layers.31 Of course, this is perfectly true for Bergson, but Deleuze has
done some wonderful things to Bergsons idea of the virtual; a glance at the
three syntheses of the unconscious in the Anti-Oedipus might have produced a
more satisfying conclusion with respect to the nature of the laws virtual past.
In the end, it seems, Lefebvre reverts to the Dworkinian dogmatic position:
[G]iven that the pure planes of memory are subrepresentative, we can show
their existence only by implying their necessity.32 Is this the case, and if so,
could a richer conception of the virtual rectify the situation? In other words, is
the transcendental memory of law convincingly established in this account?
Now, consider again the practical difference between inattentive and attentive judgment, specifically the occasions in which each are appropriate (legally
recognizable vs. unrecognizable cases). Lefebvre writes: [A] judge does not
choose whether a case will be judged attentively or inattentively; the encounter determines that. The transition from inattentive judgment (recognition)
to attentive judgment (creativity) is nonvoluntary,33 citing Griswold v. Connecticut34 as an instance of the latter. But landmark caseshe says, assuming
that any great case is a result of an encounter... I might very well have chosen another35are not necessarily landmark because of their unique circumstances, their singularity in terms of fact-pattern. On this, I merely suggest
that more rigorous criteria need to be established before we can understand
this shift from inattentive to attentive judgment in actual adjudication.
My final point goes to an issue internal to the community of scholars studying and using Deleuze for whatever end and is therefore of less interest to the
general critical legal community. Nevertheless, it has a wide-ranging impact.
We can draw a distinction, albeit unwieldy and imprecise, between two current approaches to working with Deleuze: on one end of the continuum, we
have a camp of theorists negotiating the contours of a philosophy of material
and social complexity based largely on Deleuzes engagements with the natural sciences and privileging Difference and Repetition and certain texts from
A Thousand Plateaus above all others; this camp can be provisionally associated with a principally categorical methodological mode of inquiry, insofar
as it wants to unfold its problems almost deductively, if in a nonlinear fashion. At the other end is a camp working with Deleuzes closely interwoven
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philosophies of literary and artistic production, language, and ethics, which

privileges such works as The Logic of Sense and the volumes on artists and
writers. Undoubtedly this distinction is artificial and cannot, ultimately, hold
much water; the two limits are in fact gracefully conjoined in Deleuzes own
writings and much of the finest scholarship seamlessly integrates the two.
I think, however, that we can use this distinction to examine works using
Deleuze, provided that we understand its tentative and heuristic nature. If the
distinction has any present utility, I think that Lefebvre falls into the first camp
insofar as he treats of law, in his way, as a science, even if his theory ultimately troubles this conception in certain respects. It might be for this reason
that we find engagements with Hart, Dworkin, and Habermas rather than,
say, Lacan, who most clearly provides the theoretical background for the philosophy of law left unearthed in the Deleuze of the second camp.36
A significant chunk of the Anti-Oedipus is dedicated to the law, specifically
to providing a materialist account of the Lacanian Lawthe despotic signifier conditioning signification: the symbolic phallus, the name-of-the-father,
the dead rats ass suspended from the ceiling of the sky37which, as critics from Derrida38 to Zizek39 have recognized, carries with it a (not easily digested) kernel of speculative idealism. And the brilliance of the Anti-Oedipuss
thinking on law lies in this same broad movement of a grounding that is also
a destabilization, a short circuit. Though it is clear that Deleuze and Guattari acknowledge the efficacy of the name-of-the-father, they manage to localize that efficacy and to destroy its pretension to universality, and thus, by
filling in the void of the empty signifier, and simultaneously constructing a
positive account of the social formations in which it operates (the barbaric,
which is founded upon the Law; the civilized capitalist, which reintroduces
the signifier as an image of capital, an archaism), they deprive it of its truly
structural-structuring role. In other words, Deleuze and Guattari subsume
not subvertLacan, in a gesture that is anything but new to the history of
philosophy (as Deleuze knew); what remains to be investigated, ideally in an
analysis of a Deleuzian legal or metajuridical theory, is the specific way(s) in
which this maneuver proceeds, succeeds, and/or fails, and what role(s) the
legal system fulfills in their vision of the axiomatics of capital.
Lefebvres work represents an important shift in contemporary critical legal theory insofar as it answers the need for theory to address internally the
categories and schemata of practical reason and judicial rationality. Despite
its lack of engagement with even the most important critical legal studies, it
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manages to contribute something quite new to the field: a theory of judgment

based on Bergsonian memory and perception. At the same time, it avoids the
pitfalls of positivism and, arguably, mechanism, while providing a glimpse
of the ontological realm of virtuality subtending the actual operations of the
legal system. More, its Deleuzian critique of Hart, Dworkin, and Habermas
is bound to be useful for future studies. Most broadly, its transposition of rich
ontological theory into legal theory opens new vistas for the latter, fostering
the creation of new encounters, problems, and concepts in law.
* Thanks to Penelope Pether and Claudio Michelon for helpful comments on an earlier draft.
1. Lefebvre is not alone in this approach. See, e.g., Paul Patton, Deleuze and the Political (London: Routledge, 2000), which draws intermittently on the social contract tradition to explicate a Deleuzian politics. See also Daniel W. Smith, Deleuze and the Liberal Tradition: Normativity, Freedom, and Judgment, 32 Economy & Society 299 (2003).
2. Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford: Stanford University
Press, 2008), 20.
3. Id. at 35.
4. Id. at 48.
5. Id. at 5962.
6. Gilles Deleuze & Flix Guattari, Anti-Oedipus: Capitalism and Schizophrenia, trans. Mark Seem et al.
(Minneapolis: University of Minnesota Press, 1983), 104: Preconscious investments are made, or
should be made, according to the interests of the opposing classes. But unconscious investments are
made according to positions of desire and uses of synthesis, very different from the interests of the
subject, individual or collective, who desires.
7. See Lefebvre, supra note 2, at 103.
8. Id. at 106, emphasis in original.
9. Id. at 99.
11. Id. at 12223.
12. Id. at 158, emphasis in original.
13. On the difference between mechanism and machinism, see, e.g., Gilles Deleuze & Flix Guattari, A
Thousand Plateaus: Capitalism and Schizophrenia, trans. Brian Massumi (Minneapolis: University of
Minnesota Press, 1987), 256. See also Gilles Deleuze & Flix Guattari, In Flux, in Guattari, Chaosophy, trans. Jeanine Herman (New York: Semiotext(e), 1995), 9899.
15. Id. at 168.
16. Id. at 17273.
17. Id. at 174.
18. Id. at 181.
19. Id. at 18485. Point de capiton is Lacans phrase; here, it should be heard in a more relaxed than strictly
technical tone.
20. Gilles Deleuze, Difference and Repetition, trans. Paul Patton (New York: Columbia University Press,
1994), 140.
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21. The chapter on Spinoza does contribute a development of the Spinozan concepts of substance and
modal expression, the Bergsonian concept of duration, and the Deleuzian concept of plane of immanence; however, they are not, strictly speaking, necessary for the theory of judgment deployed in
previous chapters. Instead, they appear to pave the way for future research on the legal system as a
plane of immanence or open whole.
23. I invite the reader to examine Lefebvres commentary on leftism in adjudication, arising intermittently
at 22938. By downplaying or ignoring various key texts in which Deleuze theorizes the political (AntiOedipus and its penumbral texts and interviews, for instance, or certain interviews and short texts from
the early 1990s) and embracing one that only minimally touches on the question in a political digression from the texts main themes (see Gilles Deleuze, Mediators, in Negotiations, 19721990, trans.
Martin Joughin (New York: Columbia University Press, 1995), 12134 at 126), Lefebvre is able to claim
that a judgment is leftist if it embrac[es] movement and is able to recognize the unrecognizable as
such as an encounter. See Lefebvre, supra note 2, at 236. The implication is that attentive judgment is
necessarily leftist. To appreciate the depoliticizing effect of this claim, we can select any case involving Lefebvres attentive judgment that also involves judicial investment in a right-wing program, e.g.,
Bush v. Gore, 531 U.S. 98 (2000). On Lefebvres grounds, Bush v. Gore and any number of other decisions wrestling with difficult and novel factual scenarios, scenarios that resist easy categorization, count
as leftist. Perhaps this apoliticism stems from Lefebvres pure proceduralism, which is, to my mind,
the symptom or expression of a thoroughgoing blindness to the ethico-political reality of adjudication.
A theory of adjudication need not be teleological (as Lefebvre maintains, his motivation is to formulate
a nonteleological theory of adjudication) to countenance themes of distribution.
25. A complete list of citations would fill the pages of this journal. Given Lefebvres object of critique,
the most important instance of neglect is probably the absence of Gabels studies of legal reasoning.
See, e.g., Peter Gabel, Reification in Legal Reasoning, 3 Research in Law & Sociology 34 (1980). On
ideology in adjudication, see, e.g., Duncan Kennedy, A Critique of Adjudication: fin de sicle (Cambridge: Harvard University Press, 1998); on race politics and the perpetuation of racial hierarchies in
adjudication, see generally Richard Delgado & Jean Stefancic, eds., Critical Race Theory: The Cutting
Edge, 2nd ed. (Philadelphia: Temple University Press, 2000); on gender politics and the patriarchy of
adjudication, see, e.g., Patricia Smith, ed., Feminist Jurisprudence (New York: Oxford University Press,
1993), 21198. None of these exhausts the relevant terrain, of course.
26. To solidify the point: the affirmation of judgments inherent creativity undermine[s] evaluation of
this fact as either good or evil. How creativity is or is not exercised can certainly give rise to good or
bad judgments, but, given the conditions of adjudication, criticism or praise of its creativity per
se is senselessit is a fact of judgment and must be affirmed if adjudication is to be understood and
practiced properly. See Lefebvre, supra note 2, at 253. One wonders whether this redescription of
adjudication as fundamentally (though minimally) creative in fact masks a more profound current of
creativity traversing the logic of law.
27. Pierre Schlag, The Aesthetics of American Law, 115 Harvard L. Rev. 1047 (2002).
28. Id. at 1118 (It is only upon reaching this last aesthetic [i.e., dissociative] that one can come to appreciate the extent to which law is itself an aesthetic enterprise, tying this aesthetic, relevantly for us, to
the creativity of law.).
30. See Gilles Deleuze, The Logic of Sense, trans. Mark Lester (New York: Columbia University Press,
1990), 9899.
32. Id. at 15859.
33. Id. at 191.
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34. 381 U.S. 479 (1965).

36. I should note, however, that neither camp seems to know what to do with most of the Anti-Oedipus,
and that texts contemporary reemergence on the theoretical scene is an important indicator of the
shortcomings of the two primary camps described above.
37. See Deleuze & Guattari, supra note 6, at 12425. Deleuze and Guattari adopt this Artaudian phrase
to describe the despotic signifier in its function as anchor for the Lacanian signifying chain, or again
(what amounts to the same in the register of libidinal dynamics) to describe the synthesis accomplished
in superegoic Oedipalization by way of anality and the disinvestment/privatization of the anus (guilt,
shame, the obsessive fear of smelling bad), constituting the phallus as the detached, transcendent
point of reference in castrationthe detachment of the (desire to be the) phallus based on the model of
anal privatization, thus enacting a crucial phase in the individuation of bourgeois subjectivity.
38. Of several examples, see, e.g., Jacques Derrida, Of Grammatology, trans. Gayatri Chakravorty Spivak (Baltimore: Johns Hopkins University Press, 1997), 324, n.9. Here, Derrida denies the Lacanian
primacy of signifier over signified while reiterating his rejection of the converse primacy. Or again,
this time more explicitly in relation to Lacan, see Derrida, The Post Card: From Socrates to Freud and
Beyond, trans. Alan Bass (Chicago: University of Chicago Press, 1987), 51213. Responding to a question on his essay on Lacan, Le facteur de la vrit, Derrida notes that the affirmation of the place
and of the materiality of the signifier and of the phallus as the signifier of signifiers, this affirmation of
indivisibility, in order to describe the faktum of idealization, is no less gratuitous and dogmatic, even
if it is necessary to the entire architectonics of [Lacans] Seminar on The Purloined Letter and to the
entire logic of the signifier.
39. If instances of this observation are plentiful in Derrida, they are ubiquitous in Zizek. I will therefore
refrain from citing any specific work. It goes without saying that Zizekwith his particular hybrid of
German idealism and psychoanalysisfinds this kernel of Geist a bit kinder on the conceptual digestive tract.
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Mcgee 2009 - The Image of Law Deleuze, Bergson, Spinoza

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Mcgee 2009 - The Image of Law Deleuze, Bergson, Spinoza

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Cardozo School of Law

Creation, Duration, Adjudication:

Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford:

McGee Creation, Duration, Adjudication

to the concept of the organism as a reflective principle according to which the

McGee Creation, Duration, Adjudication

continuous variation. Substantiality gives way to, or becomes, motion, internal

McGee Creation, Duration, Adjudication

incursions of unconscious political investments or preconscious prejudices

McGee Creation, Duration, Adjudication

philosophies of literary and artistic production, language, and ethics, which

McGee Creation, Duration, Adjudication

manages to contribute something quite new to the field: a theory of judgment

McGee Creation, Duration, Adjudication

34. 381 U.S. 479 (1965).

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