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Key Concept
To that extent, it seems that, and despite their differences, the ‘modern’
understandings of jurisprudence share the view that the term refers to an
operation that takes place within, the often narrow (-minded) boundaries
of the discipline of law either as a purely theoretical exercise of
contemplating or reflecting upon identifying ‘a higher Truth’ about law’s
nature or a process which is bound ‘on precedent’s authority’ set out by
judicial decisions and it is based upon a hierarchical structure (either based
on state rules and/or those of courts). These understandings of
jurisprudence though seem to have shifted, significantly, from the practical
wisdom and engagement that the etymology of ancient jurisprudentia tended
to signify. The word is the synthesis of the Latin words ius (law) and
prudentia (wisdom). Hence, jurisprudence is law’s wisdom. But its wisdom
is of a special kind. Prudentia deriving from the Ancient Greek word
phronesis signifies a kind of practical wisdom or skill. According, to Aristotle
such wisdom is something that is gained through constant and close
engagement with something and it is a matter of thorough and deep
knowledge of the particularity of a situation that we encounter.[9] Hence,
phronesis calls for care and attentiveness for the singular. As such, phronesis
manifests a certain ethos – that is a mode of life – which describes the
person who can be considered as practically wise. This ethos, as mentioned
above, seems to become secondary or even completely lost from
jurisprudence’s modern understanding. This detachment from the ethical
or practical element renders jurisprudence a merely theoretical exercise,
which is also hierarchical as it is widely considered as a science for very
few, supposedly ‘wise men’ and one which is focused on identifying so-
called ‘higher principles or truth(s) about legal thought.
Thus, this creation of law does not rely upon established norms and rules
and it is not a matter of ‘expertise’ – at least in the way we tend to
understand this term. When law is understood as a discipline for the
selected few, what we usually witness is “the application [of] universal
rules to singular situations, thus often doing a real injustice to them.”[13]
The operation of law then becomes a sort of Procrustes’ bed of this abstract
and universal rules and values. On the other hand, Deleuze’s
understanding of philosophy (of law) as a creative operation, takes into
account the particularities of each case, and thus it operates through the
singular rather than the abstract and universal. It is also a philosophy of life
because it demands deep learning of the situation and the way(s) of
operating through a jurisprudential mode of being – that is a specific ethos.
Jurisprudential ethos then – an ethos or law’s phronesis which was present in
the ancient understanding of the term but, as I argued, is, fundamentally,
lost in modern times – is restored with a new and unprecedented
dynamism, which comes to defy any form of dogmatism and hierarchies,
found in legalistic modes of thinking.
What interests me isn’t the law or laws (the former being an empty
notion, the latter uncritical notions), nor even law or rights, but
jurisprudence. It’s jurisprudence, ultimately, that creates law, and we
mustn’t go on leaving this to judges [and, we can also add here, to the
so-called ‘legal experts’ in general terms].[14]
To that extent, Deleuze departs from the usual understanding of law as a
form of authority or ‘a ground’ (an arche).
Here the figure of the nomad comes to counter the enclosed space
provided by the official laws of a society based on a so-called
‘sophisticated’ legal system and rights, for example, a figure of a state
apparatus. The nomad then is affiliated with a notion of an an-archic and
constant movement in an open space without a beginning nor an end. To
that extent, we can say that a nomad proceeds in a mode of becoming, that
refuses to be limited by any form of transcendent, moral, fixed and eternal
rules, norms or identities. According to Deleuze, the nomads follow a
nomos, or we can say a jurisprudence which is based on a principle – and
not an arche– of a ‘nomadic distribution,’[18] which is “a sort of crowned an-
archy, that overturned hierarchy […].”[19]
Bibliography
Notes
[1] The most striking examples are, possibly, Deleuze’s two books on
Spinoza; Expressionism in Philosophy: Spinoza. Trans. Martin Joughin (Zone
Books, 1992); Spinoza: Practical Philosophy. Trans. Robert Hurley (City
Lights Publishers 2001), his book on Nietzsche; Nietzsche and Philosophy.
Trans. Hugh Tomlinson (Columbia University Press, 2006); and the essay
‘To Have Done with Judgment’ in Essays Critical and Clinical, Trans. Daniel
Smith and Michael Greco, (Verso, 1998).
[2] Gilles Deleuze and Claire Parnet ‘What it means to be on the Left’ in
Gilles Deleuze A to Z (Semiotext(e) DVD, 2004).
[3] John Austin, The Province of Jurisprudence Determined (Cambridge
University Press, 1995), 161-162.
[4] Jeremy Bentham, Introduction to the Principle of Morals and Legislation
(Batoche Books, 2000), 233-234.
[5] Oxford English Dictionary
https://www.lexico.com/en/definition/jurisprudence [Accessed 20
October 2019].
[6] Adam Smith, ‘Lectures on the Province of Jurisprudence 1762,’ cited in
Scott Veitch, Emilios Christodoulidis and Marco Goldoni, Jurisprudence:
Themes and Concepts (3rd ed. Routledge, 2018), 1.
[7] Larousse, Dictionnaire Français
https://www.larousse.fr/dictionnaires/francais/jurisprudence/45213
[Accessed 24 October 2019]. English translation is mine.
[8] R.H.S. Tur, ‘What is Jurisprudence?’ (1978) 28(111) The Philosophical
Quarterly 149, 149.
[9] Aristotle, Nicomachean Ethics. Trans. Robert Crisp (Cambridge
University Press, 2004) Book VI Chapter 5, 111.
[10] Gilles Deleuze, ‘A Philosophical Concept…’ in Eduardo Cadava, Peter
Connor and Jean-Luc Nancy (ed.) Who Comes After the Subject? (Routledge,
1993), 95.
[11] Gilles Deleuze in Conversation with Raymond Bellour and François
Ewald, ‘On Philosophy’ in Negotiations Trans. Martin Joughin (Columbia
University Press, 1995), 153.
[12]
Gilles Deleuze and Félix Guattari, What Is Philosophy? Trans. Graham
Burchell and Hugh Tomlinson (Verso 1994), 5.
[13] Saul Newman, ‘Anarchism and Law’ (2012) 21(2) Griffith Law Review
307, 311.
[14]
Gilles Deleuze and Antonio Negri, ‘Control and Becoming’ in
Negotiations Trans. Martin Joughin (Columbia University Press, 1995),169.
[15] Gilles Deleuze and Félix Guattari, Nomadology: The War Machine. Trans.
Brian Massumi (Semiotext(e), 1986), 16.
[16] Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (Columbia
University Press, 1994), 309. See also Thanos Zartaloudis, The Birth of
Nomos (Edinburgh University Press, 2018), 140-144.
[17] Ibid.
[18] Ibid., 36.
[19] Ibid., 41.
[20] Saul Newman, ‘Anarchism and Law’ (2012) 21(2) Griffith Law Review
307, 327.
[21] I am using here lethal and ‘destruction’ in similar terms to Walter
Benjamin, ‘Critique of Violence.’ Trans. Edmund Jephcott in Peter Demetz
(ed.) Reflections: Essays, Aphorisms, Autobiographical Writings (Schocken
Books, 1986), esp. 297.
[22] Gilles Deleuze, Logic of Sense, Trans. Constantin V. Boundas, Mark
Lester and Charles J. Stivale (Bloomsbury 2015), 149.