NATHAN MOORE

A DISTANT HAND FELL FROM HIS SHOULDER

ABSTRACT. This essay is concerned to trace a materialist current within the work of PeterGoodrich, with the aim of evaluating it in the light of the work of Deleuze and Guattari.The are two reasons for this: firstly, it serves to encourage the development of Deleuzeanperspectives within critical legal studies, and secondly, it presents the potential of a re-invigoration of a branch of criticism based not only upon the problems raised by issuesof meaning and representation, but one which is also sensitive to the conditions of therelations of production of both meaning and desire.

KEY WORDS: body, consistency, Deleuze, desire, despot, Goodrich, Guattari, havingdone, material, Nietzsche

INTRODUCTION

The analysis of law cannot claim to be critical if it only recalls the bodiesupon which the law can be shown to have acted. Such recalling can onlyfall within a specific realm of logic or thought. This is problematic as itis not future but past orientated. It revolves around transmission of thepast to such a degree that the potential of the future is reduced to, ormade dependent upon, the re-appearance of the past in the future. Thisis the basic code, for example, of psychoanalysis, and more pertinently,of much legal scholarship which takes the form of a disciplinarian modeof despotism or signifying semiotic. To respond to this in any meaningfulway, it is not enough to recall. What must be done is more akin to aninvocation or embodying of spirit; the act of calling forth as a commit-ment to the future. Invocation is both a specific type and act of logic.Recently, no-one has done more than Gilles Deleuze, writing alone andwith Felix Guattari, to explore this logic. Through his (or more accu-rately their, even when Deleuze writes alone) work I intend to explorewhat this logic may entail for legal criticism. There are two inexhaustiblebodies of work with which to contend. This paper merely seeks to setup resonances in these bodies: a particular resonance in Deleuze and aparticular resonance in legal scholarship. The latter is somewhat easier todo, particularly as I have restricted myself to one author, Peter Goodrich.The selection of this author is dependent upon the nature of the work which

Law and Critique11: 185–200, 2000.© 2000Kluwer Academic Publishers. Printed in the Netherlands.

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he undertakes: an excavation of the law, a re-mapping, a reconsideration.In short, a logic, but a logic sensitive to desire. This enables me to makesome connections with Deleuze, and even to evaluate Goodrich throughDeleuze. The Deleuzean resonance is here the crucial one, and also themost difficult. I have responded to the difficulty involved with an exegeticalstyle; almost diagrammatic in fact. Writing remains un-Deleuzean until itis lived, embodied, invoked, loved even. The later part of this piece engageswith the question of an embodied writing. The site is the work of Goodrich.

DELEUZE

Anti-Oedipusis a book of machines. It is also a machine itself, subject totwo regimes: a desiring-regime and a social-regime. The desiring-regimeis made up of collections of desiring-machines all plugged into each other.This regime is not organised but it is consistent, in the sense that thereis something there. To focus upon organisation, and to miss consistency,could lead you to think that Deleuze and Guattari are anarchists and notcommitted to anything. It is not ‘anything goes’ on the plane of consis-tency, it is not even an issue of anything being possible. Rather, it is anissue of potential, in the sense that anything is possible right now, butonly the future has potential; the potential for change, variation, creativity,of hooking up various desiring-machines to achieve a specific task. Thetask itself arises within the social-regime. The social-regime is organised;desiring-machines become social-machines through the coding imposedupon them by the social-regime. This is the ultimate task of organisingor, to use a word from Deleuze and Guattari, distributing. All words andthings are distributed, but more specifically for my purpose, it is excess andlack which are distributed. This won’t go down well if you thought thatthe lack was there already in the desiring-machines. A desiring-machinedoes not lack anything. It just functions in a particular way. A desiring-regime does not lack anything. It is just capable of functioning in a morecomplex way. It is not until there is a task, or something to be done,that lack arises; but be sure to recall that the task itself is the result ofa particular potential, of a specific distribution of desiring-machines thatthen allows social-machines to begin distributing. This is not a mecho-fetishistic retelling of metaphysics because Deleuze and Guattari insist thatthere is no desiring-regime without a social-regime. They appear simultan-eously and are reciprocally determining. This is desire producing the socialso that there can be desire:

We can say that social production, under determinate conditions, derives primarily fromdesiring-production: which is to say that Homo natura comes first. But we must also say,

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more accurately, that desiring-production is first and foremost social in nature, and tendsto free itself only at the end; which is to say Homo historia comes first.1

No ideal, no copy. These ideas are the result of particular distributions,or specific organisations of lack. “An imaginary relation of causality issubstituted for a real relation of significance.”2 This is a good example ofthe way in which lack gets introduced into things; in this instance as thedistance between cause and effect. When this distance is not present, whena thing is embodied, then we can say that it is invoked rather than recalled.That would be a materialist history or, to use Foucault’s word, a genealogy.

Let’s take a closer look at how Deleuze and Guattari demonstrate aparticular manifestation of the social-regime. The particular regime theyexamine is called the barbarian despotic machine (Anti-Oedipus) and alsothe signifying semiotic regime (A Thousand Plateaus). It is characterisedby the centrality of the despot. The despot appears all of a sudden to thetribes and clans,3 takes their regime (i.e. their codes) and unifies them all.He does this through overcoding their codes. It is a new organisation ofthe social-machines, in which all machines adopt an additional functionorientated toward the despot. The new function is not anything more thanthis despotic orientation. However, this function indicates how the despotachieves unity. All machines and/or codes, despite their inherent, materialdifferences, have despotic orientation as a common factor. In this way,the despot makes the differences between the various machines the centralfactor of unity – as a gradation of their difference from him. This is there-fore unity in a limited sense. In this way the despotic regime is inherentlydisciplinarian because it is a question of training and persuading that whichwould otherwise resist.4 This tells us something about the force drivingthe despot; it is a “force of projection that defines paranoia.”5 The despotis a great paranoiac, driven to purges and the re-writing of history. And,crucially, “for the first time, something has been withdrawn from the earththat will make it possible to judge life. . . ”6 Whereas the introduction oflack had been an unavoidable effect of the social-regime, which could beconfined and limited depending upon the specific distribution of machines,the despot makes lack the central characteristic of the social-regime. The

1 G. Deleuze and F. Guattari,Anti-Oedipus: Capitalism and Schizophrenia(London:Athlone, 1983), 33.

2 G. Deleuze,Nietzsche and Philosophy(London: Athlone, 1996), 123.3 Supran. 1 at 145–192: the primitive territorial machine.4 See, for example, P. Clastres,Society Against the State(New York: Zone Books,

1991).5 Supran. 1 at 194.6 Ibid.

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despot himself is the great lack, the transcendental signifier or phallus. Andby overcoding himself into all the other codes, he makes lack their centralcharacteristic also.

Lacking himself, the despot attempts to invoke himself through over-coding. But it is impossible to invoke anything with such a practise whichis entirely immaterial in itself. As a result all the despot ever achieves isa recalling. He recalls himself without ever managing to manifest himself,with the result that he takes on the appearance of a first cause or basicpremise. It should be no surprise therefore that the despot is totally orien-tated towards the past because he was always already the whole of the past:the immemorial. Earlier, Deleuze had written about how Nietzsche hadtraced this phenomenon: “We can see that the principle symptom of thistype is a prodigious memory.”7 The despot sees slights, criticisms, treasonand conspiracy everywhere, and he can never forget them. The presentis always stillborn and the future does not figure at all. This is a refrainthat Deleuze continues to come back to, right up to his final works: thedespot cannot have done with anything.8 In Anti-Oedipusthis phenomenonis analysed as the vengefulness of the despot.

This spirit of vengeance is discussed at two levels. InAnti-Oedipus, atthe level of debt, while inA Thousand Plateaus, it is at the level of thesignifier. This distinction is crucial, because it demonstrates the perpetualmovement between content and expression upon the plane of organisation.The signifier is the form of expression taken by the sign within the despoticregime, by which one sign is made to refer to another sign through aninfinite regress which never designates anything (i.e. overcoding content).This ensures the continued, mundane return of all signs, because it isimpossible to have done with any of them. However, such a mechanism isundetermined without the substance of expression which selects signifiersto act as signifieds. This is interpretation, and involves a selection beingmade from the chain of signifiers. Such breaking or cutting provides apause for thought, in the sense of recollecting or recalling. The selector isthe despot.9 From the perspective of content, the blocks of debt are thematerial form of this infinite web that overcodes expression. The formof content is all the new alliances into which the despot enters. These

7 Supran. 2 at 115.8 See “To Have Done With Judgement”, in G. Deleuze,Essays Critical and Clinical

(London, New York: Verso, 1998).9 G. Deleuze and F. Guattari,A Thousand Plateaus: Capitalism and Schizophrenia

(London: Athlone, 1992), where Deleuze and Guattari more accurately describe theselector as the face of the despot. However, I recommend G. Deleuze,Cinema 1: TheMovement-Image(London: Athlone, 1997) for a clearer exposition of the concept offaciality.

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alliances involve the gradations of code touched upon above, and arecharacterised by the circulation of debts. In theory, it would be possiblefor the despot to become a debtor were it not for the determination of formby substance. The substance of content is the despot’s direct filiation toGod, and ensures not only that all debts are owed to him, but that they areincapable of ever being repaid: “A time will come when the creditor hasnot yet lent while the debtor never quits repaying, for repaying is a dutybut lending is an option.”10

Already then, before we even turn to consider law, we see that thesignifying semiotic has already instituted a transcendental guilt (in theform and substance of debt). From the juridic point of view, this regimeis exemplified by Kafka’s system of ambient terror. Recall that the despotbrought about a limited form of unity. This is expanded upon by Deleuzeand Guattari in relation to law. Law has two aspects in this instance, basedupon alliance and filiation:

first, the paranoiac-schizoid trait of the law (metonymy) according to which the lawgoverns nontotalizable and nontotalized parts, partitioning them off, organizing them asbricks, . . . forbidding their communication, henceforth acting in the name of a formid-able but formal and empty Unity . . . and second, the maniacal depressive trait (metaphor)according to which the law reveals nothing and has no knowable object, the verdict havingno existence prior to the penalty, and the statement of the law having no existence prior tothe verdict.11

To recall would be an attempt to usurp the despot, to rearrange the bricks,and to pass a new sentence, in other words, to become the despot. As such,it can only be motivated by that which motivates the despot: vengeance, amovement upon the plane of organisation.

GOODRICH

I have taken this time and space to be responsible, to be faithful to Deleuzeand Guattari without having to place any faith in them.12 To now carry thatfaithfulness over to Goodrich, let me start with one of his earlier booksReading the Law.13 Here, Goodrich is concerned with the cynicism of the

10 Supran. 1 at 197–198.11 Ibid. at 212.12 To put faith in these authors would be against their overall projects for at least two

reasons: 1) they would become despots themselves, and suffer great sadness as such; 2)they identify particular problems with hearsay, not lest of which would be the totallypassive aspect of treating their work as a cause of this work, rather than the activity ofat least attempting to manifest a new effect.

13 Oxford: Blackwell, 1986.

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legal institution in both practice and education, which typifies itself as the“inter-related social experiences of powerlessness, irrationality and loss offaith.”14 It is this latter experience which is especially important because itis the cynical15 form of nihilism.

Nihilism may be provisionally defined as a combination of elements: as a sense of theabsurdity of existence and of the unwarranted pretension of social life; as a perceptionof the nothingness to which all things lead and as the consequent realization of thecontingency of all values and the fragility of all claims to objectivity.16

Goodrich traces this to Nietzsche, and goes on to show how Nietzschehas gone further in the use of nihilism, to create a use no longer basedupon cynicism, but rather affirmation: “the possibility of viewing nihilismas a powerful positive force and as an essentially affirmative and activewill to create new values.”17 The spirit of this statement is almost withinthe Deleuzean project to create an affirmative philosophy: “We knowwhat transmutation or transvaluation means for Nietzsche: not a changeof values, but a change in the element from which the value of valuesderives.”18 We saw above that the element Deleuze here refers to is themovement between the desiring-machines and the social-machines at thelevel of consistency, and also the movement between debt and the signifierat the level of organization. How to change values within the legal contextbecomes a central element of Goodrich’s work; the desire to address themotivations of law, its intrigues, its passions. In short, how to developa materialist critique of law, contra cynicism.19 We will return to thisbelow, in order to evaluate its usefulness. For the moment, let us note thatGoodrich’s response is to mount a penetrating analysis of the rhetoric oflaw20 which comes to embrace the tools of psychoanalysis.21 As such, he isaware that law has to be addressed at not only the level of its word, but alsoat the level of its desire. I will concentrate for the moment, however, upon

14 Supran. 13 at 212.15 Ibid. at 213: “Cynicism here means acquiescence to a power-structure experienced

both politically and morally as unjustifiable.”16 Ibid. at 213.17 Ibid. at 214.18 Supran. 2 at 171. I say there is almost a correspondence of spirit, as 1) we will notice

now how Goodrich talks of a need for a change of values, whereas Deleuze is careful totalk of a change in the element of values; 2) we will notice below that this difference iscrucial, so that the spirit of Goodrich never quite becomes Nietzschean.

19 Supran. 13, particularly the conclusion.20 P. Goodrich,Legal Discourse(London: Macmillan, 1987).21 P. Goodrich,Oedipus Lex(Berkeley, Los Angeles, London: University of California

Press, 1995) for example.

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Languages of Law22 because it is here that Goodrich most successfullyproduces a flexible amalgam that is simultaneously sensitive to the twoapproaches. It focuses upon the idea of memory.

A tradition (of Law) is a form or language of transmission: it sends on and its surface is inthat sense a temporal one: through the techniques of repetition, recycling and reinterpret-ation it establishes sites of temporal recurrence, cycles of recognition, places on a map ofthe law’s progression.23

We know law, can identify what law is, by having a memory of law.Remembrance forms the institution of law24 not only as a receptacle butalso as a filter. Law is rationalized through a recording of similarity anddifference which then becomes the organizing principle of what law isand can be. It is a network of connective points which brings coherencethrough institutionalization, and thus makes it susceptible to memoriza-tion. As Goodrich clearly points out, this is a social issue because man’smemory soon becomes incapable of recalling all of what is remembered,thus requiring a “memory ‘out of mind’. . . immemorial usage”25 wherememory can be assigned to the institutional organization of a given socialpractice. This is a memory that you cannot recall because it recalls you.The directional bias of legal logic distributes the subject in such a way thatit becomes impossible to doubt the law, without also doubting yourself.The subject presupposes the debtor.

An excess of memory opens up the possibility of movement, of anongoing process of developing a relation identifiable as law. This relationis in a constant state of movement in the sense that it is always beingcaught up in the perpetual dislocations of remembering and forgetting.Goodrich describes law’s identity as a “moveable mask” or a “nomadicbody”26 which serves to tie the two levels of remembrance together. Lawis the memory of that which has passed as a function of that which wasnever present. This comes across very clearly in the following passage:

The connective principle, already adverted to, is not, however, simply one of visual recol-lection or remembering. It is more than that: it relies upon a first cause, an origin whosepresence is to be traced throughout the argument. It is not that a legal cause is specific,that it is of a time and place and person, of actions, but also that the construction of legalnarrative is dependent upon a transmitted history of written speech, of the speech of lawfrozen in the textual history of written usage.27

22 London: Weidenfeld and Nicolson, 1990.23 Supraat 17.24 Ibid. at 32–35.25 Ibid. at 34.26 Ibid. This identity is then the aleatory point of contact between a lived human memory

and the never lived memory of man.27 Ibid. at 39.

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Present usage of written law involves a speech capable of recalling theorigin of law. As we have seen, that origin is beyond any single mind’sremembering. The excessiveness of the memory of the origin producesa lack of lived, or human, experience or actual remembrance, therebyrequiring the latter to be subverted by the former, precisely because of thatlack. Excess is then the ultimate organizing principle of legal discourse, inas much as it serves to unite the two forms of memory. Goodrich’s projectis then to destabilize this unity by recalling alternative pasts that threatento invert the excess/lack28 relationship. By recalling that which has beenexcluded from memory, because it went beyond the institutionalized logicof law, the aim is to reveal that it is in fact the origin that is lacking,precisely because it is unable to cope with what it has to repress. Thisis applied most obviously by Goodrich inLaw in the Courts of Love29

where he recalls the memory of a jurisdiction sensitive not only to legalreasoning, but also to the reasoning of the body. Goodrich utilizes thisjurisdiction as an example of inverting the logic of the two memories. Heexplores the way in which the legal discourse proper denies the validity ofa court based upon love, and not merely in the sense of any authority itmay claim, but in its very existence. What this allows us to do, followingGoodrich, is to break the bond that we have with law without attractingguilt. The psychoanalytic basis of guilt as a desire for the repressed iscircumvented by the removal of the repression.

This idea can be traced through parts ofLanguages of Lawconcernedwith contracts and monarchy. Goodrich explores the various uses of theterm ‘contract,’ and traces the ways in which these uses provide the mech-anism for welding the dual aspect of memory: “the form of tradition andthe form of our participation in it are both linguistic and symbolic.”30 Thisis an exchange of both words and symbols which has meaning only withinthe context of institutionalized memory. As such, the contract “drawstogether, it binds, but we may note that in doing so it also implies contrac-tion, it abridges, shortens, encodes and represses.”31 By inverting lack andexcess, the contract is broken in response to a more pressing law – thatof immediate lived experience or thought.32 However, what this develop-ment demonstrates about Goodrich’s project is the mechanism by which

28 I am using the terms excess and lack to denote a creditor-debtor relationship.29 P. Goodrich,Law in the Courts of Love: Literature and Other Minor Jurisprudences

(London: Routledge, 1996).30 Supran. 22 at 153.31 Ibid. at 153–154.32 G. Deleuze,Difference and Repetition(New York: Columbia University Press, 1994).

See Chapter III in particular.

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both experience and thought are filtered and received. It is through themechanism of the promise: “The social contract, like its cognates the legalcontract and the various other testamentary writings or deeds, endeavoursto send a message to the future.”33 This bond, message or promise logicallyrequires a guarantee, without which it would either fail to have any effect,or would threaten to become an alternative source of law. The monarch,or more specifically the body of the monarch, is the guarantor of thecontract.34 Carried to its logical conclusion, the monarch is ultimately aguarantor of the absence of thought, so that, “in the context of such a lackof thought, and more broadly in view of the repressive functions of the law,psychoanalysis is both obviously relevant and obviously threatening to thediscipline or ‘science’ of legal studies.”35

Goodrich’s development of a psychoanalytic critique of law, drawnfrom Legendre,36 appears obsessed with the monarch: “(what is) abun-dantly clear is the dependency of the national psyche, the media, thecommunications industry, the entire fabric of social placement andpersonal differentiation, upon one icon, one family, one Crown.”37 Theconditioning function of the monarch is then a regime of discipline thatseeks to overcode the otherwise raucous heterogeneity of experience andthought. Psychoanalysis then serves as a codebreaker that retrieves hetero-geneity. It is able to do this because the indeterminate relationship ofexcess and lack referred to above provides an initial site of critique or portof entry. It speaks the virtual memory of law so that actual memory maybe shaken to its foundations. This then opens up the potential of the indi-vidual subject and allows a reorientation towards experience and thought.The limitations placed upon the subject are re-edited and re-mixed, but thesuccess of this operation depends upon the larger issue of the institutionalunconscious.38 Only if there is resonance between thought and experienceon the one hand, and the institutional unconscious on the other, can thesubject operate effectively. This shifts us over to another, related concern;a concern with the text as the nexus between subject and institution.39

The written word (contract) provides the link between virtual and actualmemory, which, guaranteed by the monarch, makes law itself unques-tionable. “For law to take hold of the subject, for the subject to become

33 Supran. 22 at 154.34 Ibid. at 218.35 P. Goodrich, in P. Legendre,Law and the Unconscious: A Legendre Reader(London:

Macmillan, 1997) at 15.36 Ibid.37 Supran. 22 at 218.38 Supran. 35 at 21–28.39 Ibid.

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attached to law, it is necessary that the textual culture of the institutionbe capable of becoming an object of fear and of love.”40 Psychoanalysisis obviously well suited here because it addresses these very issues: aninhuman love of law.

LOVE

But does psychoanalysis allow us to love anything other than law? Is itpossible to eliminate the monarch so that love can become truly innocent?We are faced here with a problem identified by Deleuze and Guattari:Oedipus is the archetypal monarch. The monarch-subject relation is thesame as the creditor-debtor or the analyst-analysand relations, wherebytransmission of memory always goes by way of a contract guaranteedby a transcendental term. As we saw above, the psychoanalytic approachis sensitive to the play of excess and lack, and mounts its critique fromthat point. But excess and lack, rather than being determinative of thecontractual textual relation, are in fact determined by it. The determiningfactor here is consistency. It is immanent to the institution (the contrac-tual textual relation), while also entering into a reciprocal relation with it.While we may view consistency as the superior term we must rememberthat it is no broader than the institution itself. The unique characteristic ofconsistency is its refusal of the closure of the institution. Rather, it continu-ally re-opens the institution through the movement of the unconscious asproduction, not merely in the sense of an infinite move from signifier tosignifier (excess/lack), but also as the opening onto universal variation orto the body without organs (and through this process, a new distribution ofexcess and lack). This latter is the denial of the monarch, a refusal of thelegitimization of promises in favour of their affirmation. As Deleuze andGuattari have shown, a model of desire based upon lack and excess willalways result in the interchangeability of lack and excess. Rather, lack andexcess allow for movement upon the plane of organization, and psycho-analysis is a method of achieving this: but, as its price, it will not help us toleave the plane. At this level, law and psychoanalysis are isomorphic: bothare based upon love of the law. It is this love that contracts and guaranteesthe psycho-legal strata.41

We can see this a little more clearly if we remember the use bothGoodrich and Legendre make of the text. Texts are the institutionalunconscious of law, the arrangements and interdependencies which are

40 Ibid. at 24.41 Supran. 9 at 39–74.

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the intensive points of the strata and give it an identity. Psychoanalysisapproaches these texts in order to give them a “double-reading,”42 but itsown intertextual basis means that it is only ever capable of either readingthe same thing twice, or of reading different things in the same way. Thisis the actual result when the textual history of psychoanalysis is brought tobear upon the law. Is there any purpose in replacing the monarch with thephallus? It maybe attractive to argue that there is an essential differencebetween the two, in the sense that the psychoanalyst, unlike the lawyer,is sensitive to the motivating and motivational absence at the heart of thetext. However, this overlooks the fact that, at this level, lack and excessare two expressions of the same machinic function, resulting in a highlyrestricted reading that can afford to be double because it lacks multiplicity:“It is perhaps at this juncture that the question ‘what does it mean?’ beginsto be heard, and that problems of exegesis prevail over problems of useand efficacy.”43 The interpretive function of psychoanalysis, in relation tomemory, is itself a hierarchical system. This is dependent upon a bureau-cratic function which is the content of transmitted memory, a memory ofsubservience which, of course, is simultaneously a demand for subservi-ence: recognition of the fact that first there was the despot, that first therewas the debt.

This indicates that it is not effective, in itself, to criticize law from thelocation of forgotten histories. Goodrich writes,

The value of failure, of the non-occurring history is thus precisely the value of the outsidewithin: it provides, perhaps it alone provides, the possibility of a criticism that inhabits aplace both outside the law and yet internal to its terms, its causes, its rules.44

It is not possible to recall, as a contemporary site of resistance, the failuresof the past. They only illustrate the interchangeability of excess and lackas functions of the despotic machine, demonstrating that at some pointin time pressure was brought to bear, that overcoding occurred, that therewas an other. But to attempt to align ourselves with that other now, orto claim it for our selves as a site of resistance, denies its otherness tolaw, its heterogeneity. It can never become part of our project withoutbecoming impotent. On the contrary, the use of history as resistance istotally dependent upon the affective45 memory of that history, not neces-sarily as the memory of something that actually happened, but crucially asthe recalling of that which, even the first time, couldonlybe remembered.46

42 Supran. 35 at 22.43 Supran. 1 at 206.44 Supran. 22 at 17–18.45 See G. Deleuze,Cinema 1: The Movement-Image, supran. 9.46 Supran. 32 at 140.

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This depends upon the invoking of a body of resistance, in much the sameway that Goodrich writes of law’s inhuman memory having a materialbody of buildings, furniture and windows.47 The crucial difference is thatresistance is a body in motion, while any despotic regime seeks to bringit to a standstill and to quieten it. The body of resistance suggests a stra-tegic use of history which is lacking from a psychoanalytic critique oflaw. Resistance is always a commitment to the future, opposed to thehistoriography of psychoanalysis in the legal context.

This is why, despite good intentions,48 Goodrich is unable to providea solution to the problem of cynicism. Looking back toReading the Law,we can see that the problem had already been mis-conceptualised:

. . . it is in that context, that is in the context of a continuing tradition of legalobjectivism, ofa doctrinal faith or orthodoxy which continues to assert the rationality of law as a ‘system’of rules, as a ‘grammar’ of norms or even as the ‘correct’ expression of fundamental legalprinciples and rights, that the various expressions of the critical legal studies movement areto be understood.49

Psychoanalysis cannot lead Goodrich to consider the material foundationsof the objectivity of law, because it fails to grasp that only the desiring-regime is truly objective. As such, no other body except the law’s bodyis ever invoked. Goodrich perpetually recalls the past of law providingthe possibility of interpretation: he produces a verdict which denies law’sfiliative claim; he suggests other possible alliances. And yet, there is neveranything but law, because his excavation of the past, intended as it isto legitimate his form of nihilism, can ultimately only reaffirm law asobjective, cynical, fact. What must be grasped, first and foremost, is thatthe desiring-regime does not lack anything, that it is a body itself, a mani-festation; that its virtual nature does not oppose it to the real, but to theactual.50 That it is a direct challenge to the “juridical form assumed by theinfinite debt.”51

“An understanding of the past is also the possibility of an alternativefuture.”52 No, it is only a step, and not even a necessary one always. Wecan go further, and say that there is no alternative future at this level, thereis only the future as it occurs right now to prevent the present from everclosing.53 There is only a commitment to the future, a resounding yes.

47 Supran. 22 at 34.48 G. Deleuze,The Logic of Sense(New York: Columbia University Press, 1990) at

202–209.49 Supran. 13 at 215, my emphasis.50 Supran. 32.51 Supran. 1 at 213.52 Supran. 13 at 88.53 Supran. 32.

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Goodrich repeats his misreading of Nietzsche: “Nihilism. . . is a moment inthe history of ideas and equally only a beginning or, better, a preconditionfor a later positivity.”54 Not yet, Lord. This function of nihilism withinNietzsche is ahistorical. This is quite clear from Deleuze’s reading.55 Suchnihilism is itself the overcoming of the man of history, it is time out ofjoint, the creatively destructive explosion of the future within the present.Not a positivity to come; what use is that? The future is the time outsideof history that redistributes all of the bodies, thus making it possible to saysomething new, away from the overcoding function of the despot.

The closest Goodrich comes to being Deleuzean, and realizing a materi-alist project, is inLegal Discoursewhere he calls for a particular useof rhetoric, sensitive to the political dimension of discourse. It is worth,finally, spending a little time considering what this materialist project mayhave amounted to. Generally, the problem is still the cynicism of thelaw, this time addressed as a type of expression, the form and substanceof which “leads us inexorably into the hermetic and circular play oflegal norms,” whereby “its argumentative method and justificatory rhet-oric encode a relation to the social in a manner that can never be eitherverified or falsified.”56 This is the signifying semiotic regime, but takenin isolation, away from the filiations and alliances of the despot. As such,Goodrich suggests a solution that does not address the whole problem.That solution is geared toward ideology and theory. Ideology is understoodin the sense that “it refers to a system of ideas which falsely representsor mystifies individual and collective relations to the material conditionsof existence.”57 To the degree that ideology itself is called into question,possibilities arise for other ways of living. This questioning involves “there-reading of substantive law in the light of theory.”58 Theory is an inter-disciplinary reading of law that would be aware of law’s claims to uniqueand correct isolation. It would allow an exploration of “the connectionsbetween legal practice and the social whole.”59 Goodrich is very preciseabout what interdisciplinary means: it is the opening of law, the criticaldenial of its closure or perfect body, the continued provocation of analysing“the interdiscursive status of legal texts.”60 There is almost a potentialhere, but it is avoided by Goodrich’s insistence that this is all to do with

54 Supran. 13 at 110.55 Supran. 2 at 133–135 and Chapter 5.56 Supran. 20 at 123.57 Ibid. at 208.58 Ibid. at 209.59 Ibid. at 212.60 Ibid.

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ideology. The motor of interpretation within the signifying semiotic regimeis already interdisciplinary in the sense that that term is used here. It isvery easy to mistake infinity for openness, very easy to think you haveovercome something when in fact you have not even begun to have donewith it. Specifically, Goodrich fails to go beyond Good and Evil becausehe mistakes ideology for the presupposition of desire. The suggestion thatonly by questioning ideology can a new way of living arise is fundamen-tally misdirected. It is life itself, understood as the productive force of thedesiring-regime, that brings a specific ideology into being; and it is thisdesiring-regime which must be invoked, that must be made to manifestitself in a particular way. As Goodrich’s attempt suggests, it is very diffi-cult, it is the hardest thing in the world in fact, to desire: “It is still by awill to power that one obeys . . . ”61

We must return to Deleuze and Guattari to provide an alternativemethod of invoking the material body of resistance. Discourse appearswithin their work as free indirect discourse,62 by which is indicated theirreconcilable, but reciprocally determining, debt and signifier relation-ship. This relation between the two (despotic body, or more technically,collective assemblage) distributes subjectivity and significance across theplane of organization. This crucially means that “there is no individualenunciation,”63 and this obviously applies to the legal assemblage, tosuch a degree, that at this level, there is no legal discipline, only legalstatements distributed by the collective assemblage: “the statement isindividuated, and enunciation subjectified, only to the extent that an imper-sonal collective assemblage requires it and determines it to be so.”64 Thispoint is expanded upon by reference to Stoic philosophy. Deleuze andGuattari argue that the relation between things and words is not one ofcompatibility: words do not refer to things, things do not give rise to words.Rather, there are the actions and passions of bodies on the one hand, andincorporeal transformations on the other. Deleuze and Guattari write:

incorporeal transformations, incorporeal attributes apply to bodies, and only to bodies.They are the expressed of statements but areattributed to bodies. The purpose is not todescribe or represent bodies; bodies already have proper qualities, actions and passions,souls, in short forms, which are themselves bodies. Representations are bodies too!. . . Inexpressing the noncorporeal attribute, and by that token attributing it to the body, one isnot representing or referring butinterveningin a way; it is a speech act.65

61 Supran. 1 at 82.62 Supran. 9 at 80.63 Ibid. at 79.64 Ibid. at 80.65 Ibid. at 86.

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This intervention puts the whole assemblage into variation. This is what thelegal statement does, but the variation is restricted to a specific, repeatedmovement between a very particular desiring-regime and a very particularsocial-regime. Ideology does not put the system into variation. Only theassemblage can do this, because only the assemblage is co-extensive withthe whole of language, without ever being equal to it; it is “its condition ofpossibility.”66 As Deleuze and Guattari point out, however, there is stillthe possibility that this could all be misread as dialectics. This is whythey insist upon the existence of separate variables for both content andexpression, both of which arise through movements of deterritorializationand reterritorialization: i.e. stability and flight, respectively. What we areseeing here is the intervention of the desiring-regime as a Body withoutOrgans; the material disruption of pure intensity, of pure production.67 Todeal with expressions in a meaningful way we must not only recall whatis said and done, we must invoke the bodies that they are attributed toalso. The excitations and deliriums of statements must be en-acted.68 Thismeans not only positing the desiring-regime as a first term, but of alsoimmediately grasping the social-regime to which it corresponds. Only thisdual movement, only the embodiment of this paradox, is active. This isnot a message of despair, but of joy. We can recognize that every singlehuman has potential, without having to cripple ourselves with a passive,universal love. We can act for ourselves. In making ideology the sole focus,Goodrich does not go far enough because statements are not ideological.They are simultaneously there in both the economic base and the ideolog-ical superstructure.69 Thus, ideology cannot explain the form of ideology.70

A failure to take this into account leaves us trying to improve our memorieswhen we should be attempting to improve our futures.

CONCLUSION

Goodrich cannot have done with law. From a structural perspective, we cansee why: aware that law is an issue of both words and things, he attempts totackle it as both rhetoric and desire. But, he does not successfully deal withboth at once. Rather, rhetoric and psychoanalysis are overlayed, leavingonly a concern with language, so that desire is reduced to an after-thought

66 Ibid. at 85.67 Or more accurately, anti-production; seesupran. 1 at 9–16.68 Seesupran. 2, particularly Chapter 5.69 Supran. 1 at 81.70 Ibid. at 525, n. 21.

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of language. This is the result, largely, of problems with psychoanalysisitself. A despotic regime, where everything is explained only in termsof itself, where heterogeneity can only ever take the form of the other,psychoanalysis is a discipline that denies the body. It admits the body onlyon the condition that it become a symptom; the sum of the problems arisingfrom signification failures.

What would it mean to have done with law? Certainly, this does notmean an end to law. Law in this sense will never wither away because it isgeneric to man:71

1) That which is obeyed, in a people, race or class, is always historical, arbitrary, grotesque,stupid and limited; this usually represents the worstreactiveforces. 2) But in the fact thatsomething, no matter what it is, is obeyed, appears a principle which goes beyond peoples,races and classes. To obey the law because it is the law: the form of the law means that acertainactivity, a certain active force, is exercised on man and is given the task of traininghim. Even if they are historically inseparablethese two aspects must not be confused . . .72

To have done with anything requires its en-actment. The failure to en-actis ressentiment. The failure of en-actment is bad faith. Vengeance, law, aturning back upon itself. Perhaps we hear an echo of repression here, butlet us have done with psychoanalysis and its denial of the body. No, tohave done, to en-act, requires a body to carry the process through because,finally, only the manifested body can act.

Return.73

Department of LawBirkbeck CollegeMalet StreetLondon WC1E 7HXUK

71 But not generic to the human. Rather, the human is what appears when man isovercome.

72 Supran. 2 at 133.73 Thanks: Anne Bottomley, Deborah Cheney, Costas Douzinas, John Fitzpatrick, Adam

Gearey, Nick Jackson, Chris Stanley, Alex Warwick.