Peter Fitzpatrick’s liminal contemplation of law
Time that is always gone stays still
A moment in this quiet room.
These lines are from Rosemary Dobson’s poem ‘The Mirror: Jan Vermeer Speaks’ (1972).
They are also from Peter Fitzpatrick’s book Modernism and the Grounds of Law (2001: 85, 224).
The lines invite one to contemplate the temporal structure of a human abode, a room. Fitzpatrick’s work, and not only in this book, responds to this invitation by contemplating the temporal structure of another human abode, the law.
Is the decision that lays down law felicitously, be it a judicial or legislative decision, comparable to the temporal stillness of a Vermeer interior? I shall argue in this chapter that it is, but to the extent that it is, one would have to distinguish the stillness at issue here from all notions of ‘stilled content’. The stillness of Vermeer’s room strikes Dobson, strikes us not as ‘stilled content’, certainly not as stilled time. Time, for a moment, stays still, is yet not stilled. The stillness of the room prevails precisely because of quiet echoes of time ‘that is [again] gone’, of time or times that could not and cannot be retained or contained. The temporal stillness of the room is the quiet but, however still and silent, also disquiet remainder of someone who has left or someone who was expected but never arrived. The stillness of a room thus has an external relation to itself.
This, I shall argue, is also how Peter Fitzpatrick understands the law when he writes:
Even at its most settled, or especially at its most settled, law could not ‘be’ otherwise than in a responsiveness to what was beyond its determinate content ‘for the time being’. If that content could be perfectly stilled, there could be no call for decision, for determination, for law.And it is in the very response to this call, in the making and sustaining of its distinct content, that law ‘finds itself ’ integrally tied to, and incipiently encompassing of, its exteriority.
This is not just a reminder of what is always excluded by the law, as facile renditions of a Derridean non-equivalence of law and justice might move us to think. At issue is an encompassing of exteriority. The law, even and especially settled or felicitous law, invites the outside into the room, living space, or momentary stillness that it creates. As Fitzpatrick puts it, ‘law has somehow to be conceived of, not just in a potential relation to what is outside what it may be “for the time being”, but as having that outside with-in itself ’ (ibid.: 220).
I shall elaborate this understanding of law in Fitzpatrick’s work to the structure or structuration of law that I have in recent papers begun to describe in terms of the irreducible immanence and imminence of law, the immanence and imminence of law that can for the sake of economy be called the immimanence of law. But much ground needs to be covered before we can move towards an understanding of immimanence. This is so because the meaning of immanence itself is not altogether clear in contemporary thinking. Anyone who has come to understand both Nancy’s and Deleuze and Guattari’s engagements with or invocations of immanence would have realized that immanence does not mean the same thing or non-thing for them. I shall therefore begin in what follows with two short explorations of the word ‘immanence’ in the work of Nancy and Deleuze and Guattari and then move on to reflect the outcome of these explorations on a number of key concerns in the work of Peter Fitzpatrick, namely the totemic; sacrifice ; breaking up the unity of the world; non-violent law ; the return of the gods.
Immanence In Nancy and Deleuze And Guattari
Deleuze and Guattari write about a plane of immanence that is immanent to nothing but itself. When immanence invokes the notion of an immanence to something, it immediately invokes transcendence. It invokes a being or moment that transcends the plane of immanence. Immanence thus understood does not relate or refer to the plane of immanence that Deleuze and Guattari bring to bear on the thinking of our time. Let me quote extensively in order to be precise:
Whenever immanence is interpreted as immanent ‘to’ something a confusion of plane and concept results, so that the concept becomes a transcendent universal and the plane becomes an attribute of the concept. When misunderstood in this way, the plane of immanence revives the transcendent again: it is a simple field of phenomena that now only possesses in a secondary way that which first of all is attributed to the transcendent unity.
Immanence is immanent only to itself and consequently captures everything, absorbs All-One, and leaves nothing remaining to which it can be immanent. In any case, whenever immanence is interpreted as immanent to Something, we can be sure that this Something reintroduces the transcendent.
One has to take utmost care to understand accurately what Deleuze and Guattari are saying when they say ‘immanence is immanent only to itself ’. It is important to understand that the ‘immanence to immanence’ that is at stake here does also not raise immanence on the second count to the status of a universal concept and thus to something that somehow conceptually transcends itself, conceptually transcends and thus limits, constrains, or contains itself. Concepts, Deleuze and Guattari make clear from the beginning of their ‘description’ of the plane of immanence, operate within this plane. Concepts and plane relate to one another, but must also be clearly distinguished from one another:
Concepts and plane [of immanence] are strictly correlative, but nevertheless the two should not be confused. The plane of immanence is neither a concept nor the concept of all concepts. If one were to be confused with the other there would be nothing to stop concepts from forming a single one or becoming universals and losing their singularity, and the plane would also lose its openness.
There are remarkable points in this passage that must be noted.
First, concepts are not to become or form a single one if they are not to lose their singularity. In other words: they need to remain plural to remain singular. The resonance that this thought would find in Nancy (1996) is well known.
Second, what keeps concepts from becoming one and thus preserves their plurality is the non-conceptual plane of immanence that prevails or remains apart from the concepts that form or figure on this plane. If this non-conceptual plane were to get reduced to conceptuality, it would become one or One. It would, as a concept, become not just a, but the universal. And it is exactly this one universal or universal oneness from which we must take care to distinguish the second ‘immanence’ in the phrase ‘immanence to immanence’ that is at stake when Deleuze and Guattari say ‘immanence is immanent only to itself ’. They make this abundantly clear, but a small slippage in one’s reading can make one miss the point. Immanence is not ‘All-One, it ‘absorbs All-One’ (emphasis added). At one point they do seem to commit some slippage themselves here, but only to retract almost forthwith, or within the span of half a page:
Diverse movements of the infinite are so mixed in with each other that, far from breaking up the One-All of the plane of immanence, they constitute its variable curvature, its concavities and convexities, its fractal nature as it were.
(Deleuze and Guattari 1994: 38–9)4
But then, half a page later:
The plane [of immanence] is, therefore, the object of an infinite specification so that it seems to be a One-All only in cases specified by the selection of movement.
Thus do Deleuze and Guattari quickly revoke the One-All of the plane of immanence and replace it with a plane of immanence that only seems to be a One-All in the unitary swing or sway of a selected or selecting movement. One should suspect a Freudian slip here, and we shall indeed return to this suspicion shortly. But it is important to note, before we do so, that there is now a dissonance instead of resonance with Nancy that has clearly come to the fore here. When Nancy invokes the word ‘immanence’, he does so precisely to denote the All-One that would, if it could, absorb all otherness; the oneness that would, if it could, absorb its own exterior or exteriority; the oneness that would, if it could, ingest its relatedness or exposure to an outside and thus destroy the singularity that issues only from plurality – destroy the singularity, the this one not that one, that only comes about in the co-appearance or comparution of more than one (Nancy 1986: 35–8, 68–76).
Deleuze and Guattari and Nancy obviously have different if not indeed opposite things or non-things in mind when they invoke the word ‘immanence’. There is in fact reason to believe that Deleuze and Guattari denote by ‘immanence’ exactly that which Nancy denotes by ‘exteriority’, namely the double-gossamer interface of the self’s exposure to otherness, the inside’s exposure to outsides. They write:
Perhaps this is the supreme act of philosophy: not so much to think THE plane of immanence as to show that it is there, unthought in every plane, and to think it in this way as the outside and inside of thought, as the not-external outside and the not-internal inside.
(Deleuze and Guattari 1994: 59–60)
I have dwelled long here on immanence in Deleuze and Guattari’s thought, on the one hand, and in Nancy’s, on the other, in order to prepare the way for a question that issues from Fitzpatrick’s work, a question that Fitzpatrick can be argued to pose to Deleuze and Guattari and to Nancy. Is a contemplation of an immanence that would not collapse into the All-One, but would in fact absorb the All-One and thus set free the singularity of concepts on a plane of infinite immanence, sufficient to think through the ‘breaking up of the unity of the world’ that is so central to Fitzpatrick’s concerns? Let us not lose sight of the slippage that prompted us above to suspect a Freudian slip in Deleuze and Guattari’s description of immanence: ‘[F]ar from breaking up the One-All of the plane of immanence, [concepts] constitute its variable curvature, its concavities and convexities, its fractal nature as it were.’ Let us keep this slippage or slip between the unbroken unity and fractal nature of the One-All in mind when we read their description of the plane of immanence in terms of an infinite but fractal expanse of singular conceptual or intensive ordinates. They write:
Spinoza was the philosopher who knew full well that immanence was only immanent to itself and therefore that it was a plane traversed by movements of the infinite, filled with intensive ordinates.
(Deleuze and Guattari 1994: 48)6
[E]lements of the plane are diagrammatic features, whereas concepts are intensive features. The former are movements of the infinite, whereas the latter are intensive ordinates of these movements, like original sections or differential positions: finite movements in which the infinite is now only speed and each of which constitutes a surface or a volume, an irregular contour marking a halt in the degree of proliferation. The former are directions that are fractal in nature, whereas the latter are absolute dimensions, intensively defined, always fragmentary surfaces or volumes. The former are intuitions, and the latter inten-sions. The grandiose Leibnizian or Bergsonian perspective that every philosophy depends upon an intuition that its concepts constantly develop through slight differences of intensity is justified if intuition is thought of as the envelopment of infinite movements of thought that constantly pass through a plane of immanence.
Is the unity of the world really breaking up with these fractal and fragmentary halts in the degrees of proliferation that mark the infinite movement of immanence? Or is the absorption of the All-One that takes place with these movements a matter of fatal consumption that turns it inside out or belly-up, thus in fact turning the silent Bergsonian intuitions that bring it forth into surreptitious conceptualizations? Do these intuitions not in the final analysis conceptually grasp (greifen sie nicht begrifflich, one would say in German) and hold together in unity a world that is beautifully multifaceted but ultimately ONE, albeit rather diffusedly ONE? Is the brief slippage in Deleuze and Guattari’s text pointed out above not all too Freudian, not all too telling of an unconscious or at least poorly scrutinized desire for an infinite unity? And all too un-Freudian in the same breath, for is it not from Freud that we learn that the unity of the world is broken up by crime and sacrifice, crime from which sacrifice removes the criminal stains and stigmata or, if not quite removing them, makes them sacred (sacer facere)? And is it not from Fitzpatrick that we have in recent years received the clearest invitation to think through again this Freudian insight (Fitzpatrick 2001: 40; 2008: 208, both referring to Freud 1960: 153)?
Where, then, is the place of sacrificial blood and sacrifice in the kaleidoscopic intuitions of the infinite and the immanent in Deleuze and Guattari’s work, the sacrificial blood required for ‘breaking up the unity of the world’? It should not be surprising if it is largely or completely absent from their thoughts. Is their thought not after all by design and aspiration an articulation of an anti-Oedipal and hence non-sacrificial myth (Deleuze and Guattari 1973: 325–458; 1980: 38–93)?8 And is this not where Fitzpatrick’s work respectfully and silently parts company (without, of course, terminating the incircumventible engagement) with them?
The same questions must be directed to Nancy. The singular plural existence that Nancy contemplates does not issue from sacrifice. It is an existence that cannot be sacrificed, he maintains (1990: 105).9 And one must assume that it is this singular plural existence that is finally in the offing for humanity, now that, according to Nancy (ibid.: 105), we in fact stand on the eve of a non-sacrificial experience of community.10 Here too we can clearly see the anti-Oedipal thrust of Nancy’s breathtaking thought. When he turns to Freud, it is to a note that Freud wrote shortly before his death – that is, to a real fragment in the face of ultimate infraction or fracture: ‘Psyche ist ausgedehnt, weiss nichts davon’ (Psyche is extension, knows nothing thereof). From this note, Nancy (ibid.: 87) draws evidence of a late-Freudian insight into an extended corporality liberated from gaping wounds. Perhaps quite correctly so. Perhaps Freud indeed took an anti-Oedipal turn in the face of death. It may just be that the excruciating insights of his work became too much for him to carry towards the end of his life. We shall never know.
From this fragment of Freud, Nancy derives a description of a body of law clearly reminiscent of Deleuze and Guattari’s rhizomatic thinking in Mille plateaux, a body of law surely marked by injuries (les blessures) and pain (le douleur) (cf. Nancy 2000: 87), but no longer split in any way by a gaping wound (la plaïe) (ibid.: 67–71).
The model of the body (corpus) is the Corpus Juris, collection or compilation of the Institutions, the Digestes and other Codes of all the articles of Roman Law. It is neither chaos nor an organism: the body bears itself, not really between the two, but rather elsewhere. It is the prose of an other space, not abyssal, not systematic, neither collapsing [without foundations], nor founded. This is the space of the law: its foundation steals away to find its place (son fondement s’y dérobe à sa place), the law of the law is itself always without law. The law oversees (literally: overhangs, surplombe) all cases, but it is itself the cases of its institution, as strange to God as it is to nature. The body obeys the rule that goes from case to case, discrete continuity of principle and exception, of exactitude and flexibility (de l’exigence et de la dérogation). Pronouncing the law (juridiction) consists less in announcing the absoluteness of the law, deriving therefrom the reasons [for the decision] than in saying what the law can be here, there, for now, in this case, in this place . . . local pronouncement, spaced, horizontal.11
It should be clear now that there is an obvious difference between the ways in which Deleuze and Guattari, on the one hand, and Nancy, on the other, invoke the word ‘immanence’. They obviously attach inverse meanings to the word. It should nevertheless also have become clear now that they all think on the same or very similar anti-Oedipal planes of thought. And my intuition is that, despite all the disavowals of immanence in Nancy’s work, he is in fact thinking on the plane of immanence that Deleuze and Guattari describe. They are all thinkers of immanence for reasons of not being thinkers of imminence. This is so because, notwithstanding their respective claims to be thinkers of the event,12 they fail to acknowledge or contemplate seriously the significant or deep disruptiveness and enormous risk that mark the eventfulness of the significant event. And it is this failure that allows them to only acknowledge surmountable injuries (remember Hegel?13