CRIMINAL JUSTICE - Springer Link

DRAGAN MILOVANOVIC*

DIVERSITY, LAW AND JUSTICE: A DELEUZIAN SEMIOTIC VIEW OF ‘CRIMINAL JUSTICE’

ABSTRACT. This article takes a Deleuzian view toward diversity, law and justice. It makes use of the insights developed in his two books on cinema comparing an ‘‘organic regime’’ to a ‘‘crystalline regime.’’ The former will be seen as the image of thought and regime of signs of traditional criminal justice practices (due process model, crime control model, family model, actuarial justice, restorative justice); the latter, the basis of a transformative justice (social justice) and the regime of signs that are its constitutive elements. Deleuze’s views on semiotics can be fruitfully contrasted with Lacan’s. I want to indicate how Jacques Lacan’s psychoanalytic semiotics, on the descriptive level, quite accurately describes the connection of desire based on lack with capital logic, whereas, Deleuze provides an alternative ontology (desire based on production) and develops suggestions for privileging a becoming rather than a being. His is a call for ongoing transformations. I want to indicate how diversity, transformation and tolerance can have better developments in a Deleuzian model of the crystalline regime. This entails alternative discursive subject positions and regimes of signs within which constructions of reality by diverse peoples find wider expression. Accordingly, this is about better approximations to social justice.

1. Introduction Consider traditional criminal justice institutions and practices in the western world. At all levels – police, trials, prisons, lawmaking – we find an operative discourse and structured discursive subject positions that greatly limits anything but a bureaucratic constructions (formalism) of various problems in living. Is it no surprise that we know very little as to the ‘‘causes’’ of crime and restoring offenders? The very discourse, imagery and allowable places from which to speak militate against constructions of reality that might inform us of the complexities of being human and how to effectively respond to * This is a revised paper presented at the Annual Meeting, International Roundtable for the Semiotics of Law, Boulogne-sur-Mer, France. May, 22, 2006. It has been inspired by my reflections working directly in the criminal justice field (e.g., counseling at a maximum security juvenile institution, teaching incarcerated inmates, working in a dormitory setting in a mental institution; and on-going work with a prison inspection team) and by my theoretical investigations. International Journal for the Semiotics of Law Revue Internationale de Se´miotique Juridique (2007) 20: 55–79 DOI 10.1007/s11196-006-9036-7

Springer 2006

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erring behavior. Could it be otherwise? We already have suggestive works on indigenous ways of being, such as the Hopi Indian of southwest U.S.A where the very language does not artificially specify a subject, an individual, that is totally self-directing, divorced from her/his surroundings. Rather, we see a discourse which is actionoriented (pragmatic), a discourse which strongly suggests the interconnectedness of persons with others and nature. Reality constructions, therefore, are holistic. How, then, in postmodern society are we to reform the institutions that stand over us? This article will suggest an alternative direction, a direction informed by Gilles Deleuze’s profound, but surprisingly little examined two-volume work on cinema. We want to explore how an alternative regime of signs may arise in transformative justice practices. But first, we need to pave the way by reviewing some differences between Lacan and Deleuze on the nature of the sign and desire. Deleuze, in our view, can be constructively read in contrast with the quite influential works of Lacan. We will then be in a position to apply Deleuze’s insights in suggesting an alternative direction in ‘‘criminal justice’’ or justice application. Lacan had it right in his descriptive explication of the nature of language in relation to the subject. But he had it wrong as to the full potentialities of the person and social formations. It is to Deleuze, and Deleuze and Guattari that we must look for a liberated notion of desire and more liberated notions of becoming. This article concerns enhancing diversity in law and justice, and advocates a transformative justice toward this end.1 Jacques Lacan’s views of the subject, the parleˆtre, and the nature of desire have been much debated in the last two decades.2 There is still much to be done in this direction. 1

Space limitations do not allow a full development here, but the recent work by Hardt and Negri, combining a Deleuzian/Nietzschean approach with elements of a revisionist Marxism are suggestive for creative theorizing. See Micahel Hardt and Antonio Negri, Labor of Dionysus (Minneapolis, MN: University of Minnessota Press, 1994), Empire (Cambridge, MA: Harvard University Press, 2000), Multitude ((New York: Penguin Press, 2004). They link Nietzschean ‘‘active forces’’ with the newly emerging oppositional group, the ‘‘multitude,’’ as the motor for historical change in late modernity and global economy. It has been described as a ‘‘postmodern revolution.’’ See Multitude, at xvii. 2 The central argument has been whether to view desire as arising from ‘‘lack’’ and thus a conservative force, or whether desire has some other basis, as in Nietzsche and Deleuze. For the latter, desire is production; it is its own moving force. It has both active and reactive dimensions. In its active dimensions it is the driving force for diversification, growth, becoming; in its reactive form, it is aligned with ressentiment, denial, idols, closure, stasis, and being.

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Unlike the work of Freud in its apologism for male dominance, Lacan’s3 work does on occasion move toward the prescriptive, especially in his notion of the four discourses.4 It is in the discourse of the hysteric in combination with the discourse of the analyst that a new order of more reflective signifiers emerge, which better embody desire. Unfortunately, however, Lacan’s edifice is built on a conception of desire based on lack.5 The inauguration of the child into the Symbolic Order, by way of the ‘‘fort-da’’ game provides a contradictory gain: first, the child gains mastery and control by its incorporation of existing language, but, second, is thereafter separated (castrated) from the real. For the latter, a perpetual holein-being, an everlasting ‘‘lack’’ (manque d’eˆtre) will remain. Objects of desire will thereafter offer the momentary but ultimately illusory possibilities of overcoming lack. And this is thereafter the plight of humanity. The use of dominant signifiers will provide a continuous safeguard against disappearance into oblivion. The subject rises only in relation to the signifier representing it in discourse (‘‘a signifier represents the subject for another signifier’’). Deleuze and Deleuze’s writings with co-author Felix Guattari6 have it otherwise. Desire is not connected to lack; desire is 3 Jacque Lacan, Ećrits (New York: Norton, 1977); see also Bruce Arrigo, Dragan Milovanovic, and Robert Schehr, The French Connection in Criminology (New York: SUNY Press, 2005); Dragan Milovanovic, Chaos, Criminology, and Social Justice: The New Orderly (Dis)Order (Westport, Connecticut: Praeger Press, 1997), at 205– 209; Dragan Milovanovic, Critical Criminology at the Edge (Morsey, New York: Criminal Justice Press, 2003), at 179–203. For recent analysis of his late works, see Ellie Ragland and Dragan Milovanovic, eds., Lacan: Topologically Speaking (New York: Other Press, 2005). 4 Jacque Lacan presented his theory of the four discourses in his 1969 Seminar, L’envers de la psychanalyse (Paris, Seuil, 1991). See also the groundbreaking explications by Mark Bracker, Lacan, Discourse, and Social Change (London: Cornell University Press, 1993). See also, Milovanovic, Critical Criminology, supra n. 4, at 47–51. 5 The Hegelian notion of desire can be traced to the master-slave dialectic: the master (read also bourgeoisie) states values affirmatively, the slave (read also proletariat) only reacts and negates the wishes of the master, thus is inherently driven by a conservative notion of desire (react-negate). In the Nietzschean ontology, desire is an affirmative, life serving, actualizing force that continues to transcend expression and form. It is only when this force is blocked that reactive modes appear. 6 Gilles Deleuze, Nietzsche and Philosophy (New York: Columbia University Press, 1983); The Logic of Sense (New York: Columbia University Press, 1990); Difference and Repetition (New York: Columbia University Press, 1994); Gilles Deleuze and Felix Guattari, Anti-Oedipus (Minneapolis: Minnesota University Press, 1983); A Thousand Plateaus (Minneapolis: Minnesota University Press, 1987).

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production. It is an ongoing search for and development of new connections that allow greater expression. There is no end point. The person is inherently evolving. We are incapable of knowing what the body can do. And this has, of course, good and bad consequences. We must always be vigilant as to forms of connections manifest at the macro level that deny diversity, deny human development.7 Deleuze and Guattari in their classic two-volume work on the relation of psychoanalysis to capitalism, Anti-Oedipus and A Thousand Plateaus,8 clearly shows how desire has been captured by the logic of capital, how it has been transformed into an axiomatic;9 how ‘‘regimes of sign’’ – constellations of signifiers coordinated by semiotic codes – are stabilized in ways undermining of the capacity of human growth and diversity. Lacan had it right as to how the psychic apparatus has been captured and subjected to the axiomatic at the macro level (Deleuze refers to it as the molar) as well as the micro (Deleuze calls it the molecular). His analysis insightfully examines how the subject speaks (l’eˆtre parlant) in semiotic regimes (see, for example, his ‘‘graphs of desire’’ in Ećrits), how master signifiers come to constitute it, how embodiment of desire is circumscribed, how at best the subject is relegated to being not becoming. Deleuze, in his early works, Difference and Repetition10 and the Logic of Sense,11 and later book-length works on Bergson, Spinoza, and Nietzsche, as well as his yet undiscovered two-volume works on cinema, provides a refreshingly new view as to the capacities of the human being. He celebrates not being, but becoming – the inherent capacity of transformation. Accordingly, his work is based on an ontology that differs dramatically from Lacan and most contemporary theorists. Several theorists12 have made a clear case that what underlies his work is 7

To this end, we have developed a definition of harm that centers on investment of energy to deny others of their ability to actualize. See Stuart Henry and Dragan Milovanovic, Constitutive Criminology (London: Sage, 1996). 8 Deleuze and Guattari, Anti-Oedipus, supra n. 7. 9 For an accessible introduction and for some insightful applications to colonization theory, see Paul Patton, Deleuze and the Political (London: Routledge, 2000). 10 Deleuze, Difference and Repetition, supra n. 7. 11 Deleuze, Logic of Sense, supra n. 7. 12 Brian Massumi, A User’s Guide to Capitalism and Schizophrenia (London: The MIT Press, 1992); Manuel Delanda, Intensive Science and Virtual Philosophy (New York: Continuum, 2002); Mark Bonta and John Protevi, Deleuze and Geophilosophy (Edinburgh University Press, 2004).


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complexity theory (chaos theory). In his view there are three dominant ‘‘levels’’ – virtual, intensive, and actual. The virtual is the sphere within which vibratory forces are at play, now connecting, now disconnecting, now reconnecting – a continuous series of territorialization, deterritorialization, and reterritorialization. The intensive represents the various vibratory forces being subjected to perturbation, whereby stability or relative stasis produces relatively stable effects. These are the attractors we find in farfrom-equilibrium conditions. With sometimes a well known degree of perturbation, sometimes an unknown, these may reach levels, singularities, whereby bifurcations evolve in the system, or as Delanda says, ‘‘symmetry breaking cascades.’’ It is here where emergents as lines of flight produce innovative, creative, novel, and unexpected outcomes. For Deleuze and Guattari, however, these have been subject to capture, to incorporations by political economies into axiomatic forms that thereafter attain more rigid forms in various institutions.13 This is the paranoiac investment of desire. It knows closure, totalization, stasis, self-preservation, and is often highly resistant to change. The schizz form of investment in desire, however, offers subversive forms of practices, of deterritorialization, of release of lines of flight, of the ‘‘new earth’’ to come.14 They advocate rhizomatic forms, the nomad, and becoming rather than being.

2. Lacan v. Deleuze on the nature of the signifier Lacanian psychoanalytic semiotics is based on Ferdinand de Saussure’s15 conceptualizations. A signifier stands for the acoustic image; a signified for the concept. Say the word tree, the signifier, and an image of a tree (the signified) appears. Lacan’s16 explanation of the workings of the psychic apparatus found in the ‘‘graphs of desire’’ postulates the dominance of the signifier (S) and that the signified (s) slides under the signifier until a punctuation point, s(O), the point de caption is attained; that is, a moment at which the symbolic and imaginary temporarily stabilize the S/s dyad. This is the notion of suture. A similar dynamic is portrayed in his 13

We see this in the convergence of capital logic with formal rationality in law. Deleuze and Guattari, Anti-Oedipus, supra n. 7. 15 Ferdinand de Saussure, Course in General Linguistics (London: Fontana, 1965). 16 Lacan, supra n. 4. For his late works on the borromean knots and le sinthome and their applications see Ragland and Milovanovic, Lacan, supra n. 4. 14

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Schema R, and in both cases, stabilized signifier/signified couplets are constituted (unlike in Deleuze) by the ubiquitous law-of-the-father. He further specifies two algorithms that coordinate linguistic production in the unconscious as: Algorithm of metaphor : fðS0 =SÞ S ¼ SðþÞs

Algorithm of metonymy : fðS::::S0 Þ ¼ SðÞs In other words, these two algorithms are said to be behind speech production. The former indicates how a signifier (S¢) comes to replace another signifier (S) producing new meaning (i.e., ‘‘she is a dynamo’’). The latter explains the slippage of meaning, the flow of desire, how a contiguous signifier (S’) comes to replace an old signifier (S) producing meaning (i.e., ‘‘thirty sails’’).17 For Lacan, the signifier is privileged: ‘‘a signifier stands for the subject for another signifier.’’18 In this view, lack mobilizes desire, which therefore seeks expression (embodiment). The work of metaphor and metonymy begin to give it expression in signifiers. The graphs of desire indicate the various vectors at work in speech production. There is a forward looking, anticipatory component and a retrograde at the moment of pause whereby one goes back to the unfolding chain of signifiers and grasps all at once, giving the statement meaning (s). The subject is relegated to an insignificant location in the graphs of desire; the subject is represented by signifiers which speak it. Signifiers, in short, speak the subject. The subject is Lacan, Ećrits , supra n. 4, at 156–158, 163–171; for a concise introduction to both algorithms see Joel Dor, Introduction to the Reading of Lacan (London: Jason Aronson, 1997). See also Milovanovic, Critical Criminology, supra n. 4, at 143–155. Tricky is how to understand metonymy being desire. But consider the following utterance: ‘‘support our troops in Iraq.’’ Note the changed meanings with various emphases. Are we supporting our troops? Or are we supporting them in Iraq? This is slippage of meaning. 18 In its most dramatic explication, see Lacan’s rendition of Edgar Allan Poes’ short story ‘‘The Purloined Letter,’’ in John Muller and William Richardson, eds., The Purloined Poe (Baltimore, Maryland: John Hopkins Press, 1988), at 28–54. It shows how the signifier speaks the subject; how the subject is subservient to the powers of the signifier in interpersonal relations. See also Bruce Fink, Lacan to the Letter (Minneapolis, MN: University of Minnesota Press, 2004), Jean-Luc Nancy and Philippe Lacoue-Labarthe, The Title of the Letter (Albany, New York: State University of New York Press, 1992). 17


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at the mercy of signifiers and the particular language region (linguistic coordinate system, regimes of signs) and the offered discursive subject positions within which s/he may take up residence to speak. Deleuze in his single-authored, as well as in his co-authored work with Guattari, sees things differently. At the outset, he (and they) favor(s) Peirce and Bergson over Saussure.19 Privileged is the signified over the signifier. That is, it is the movement (differential speeds) of images and their interactions, not their representative (signifiers), that dominate. Signifiers are not congruent with the things they are said to represent. Both a signifier and a signified are being actively constructed by desire, read as production, not as a product of lack. For Deleuze and Guattari,20 ‘‘we are never signifier or signified. We are stratified.’’ Their semiotics is pragmatic. Forms of expression and forms of content lie in ‘‘reciprocal presupposition.’’ That is, the primary unit is ‘‘assemblages’’ that are vibratory constellations of forces in relatively autonomous configurations that have effects. This is the field of the virtual. Forms of expression and forms of content are abstracted from these assemblages. Assemblages are further subject to intensive processes; that is further perturbations may produce symmetry breaking, bifurcations, and new attractor states. Settling to certain values produces relative stasis (steady states) and particular effects in the actual realm. Critical thresholds exist that when reached begin this symmetry breaking process.21 It is the work of an ‘‘abstract machine’’ which both establishes linkages (territorializes) and at the same time breaks them down (deterritorialization).22 It knows only function and the work on matter (matter defined as vibratory regions with specific threshold 19

For an overview, see Ronald Bogue, Deleuze on Cinema (New York: Routledge, 2003); Bogue, Deleuze and Literature (New York: Routledge, 2003). See also D.N. Rodowick, Gilles Deleuze’s Time Machine (Durham, North Carolina: Duke University Press, 1997). 20 Deleuze and Guattari, A Thousand Plateaus, supra n. 7, at 67. 21 Delanda, Intensive Science, supra n. 13; Bonta and Proteva, Deleuze, supra n. 13; Massumi, A User’s Guide, supra n. 13. 22 For a groundbreaking introduction to the application of Deleuze and Deleuze and Guattari’s application of a pragmatic semiotics to law, see Jamie Murray, ‘‘Nome Law: Deleuze and Guattari on the Emergence of Law,’’ International Journal for the Semiotics of Law 19/2 (2006), at 127–151. Consider some examples of abstract machines: disciplinary mechanisms and panopticism (Foucault); commodity fetishism (Marx); legal fetishism; semiotic fetishism, to name a few.

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values that are constitutive of stable states or symmetry breaking). The abstract machine has the ‘‘piloting role’’ in articulating the connection between forms of expression and forms of content. ‘‘Regimes of signs’’ – relatively stabilized constellations of connected expression with content – have historical specificity. Deleuze and Guattari identify several,23 although they recognize this is not an exhaustive list. Abstract machines are embedded within assemblages. They have two components: one directed toward ‘‘strata’’ which ‘‘differentiates a form of expression from a form of content’’ and places them in ‘‘reciprocal presupposition.’’ At a more macro level, or molar level, we have a particular regime of signs. For example, the domain of legal discourse, the domain of scientific discourse, etc. The second component of the ‘‘machinic assemblage’’ is its destratified vector, which deterritorializes. Normally, these two processes are ongoing. On occasion, one may become privileged (territorialization), as is the case with ossified structures and institutions that resist change. From what one sees in Deleuze and Guattari, it is not the signifier that dominates. Rather, the signified is privileged. In Deleuze’s work on cinema,24 he was to indicate it is not that the ‘‘signifier represents the subject for another signifier,’’ but rather images represent images for other images. Deleuze and Guattari 23 Presignifying semiotic, countersignifying semiotic, postsignifying semiotic. See Deleuze and Guattari, A Thousand Plateaus, supra n. 7, at 11–148. 24 See Cinema 1: The Movement Image (Minneapolis, MN: Minnesota University Press, 1986; Gilles Deleuze, Cinema 2: The Time Image (Minneapolis, MN: Minnesota University Press, 1989); for introductions and commentary, see supra n. 20. Elsewhere, we have indicated how a Lacanian framework can be employed in explaining trial court text by using a cinema model. Viewers in the trial court are constituted as spoken subjects much as in cinema. That is, prosecuting and defense lawyers, much like film directors attempt to induce an identification by jurors with a narrative that both raises a sense of lack (manque d’eˆtre) and suggests appropriate signifiers (object a) which can be applied in constructing a coherent sense of the ‘‘what happened.’’ The juror, much like the viewer of cinema, begins to take up the discursive subject-position suggested by the lawyer/director, and, in so much as s/he does, becomes constituted, interpellated, or a spoken subject. See Milovanovic, supra n. 4, at 157–178. This cinema model builds on insights by Kaja Silverman, The Subject of Semiotics (New York: Oxford, 1983), Emile Benveniste, Problems in General Linguistics (Coral Gables, Florida: University of Miami Press, 1971), Bernard Jackson, Law, Fact, And Narrative Coherence (Merseyside, UK: Deborah Charles, 1988), and film director Sergei Eisenstein, The Film Sense (New York: Harvest Books, 1975). This model of the trial court is more aligned with Deleuze’s idea of an ‘‘organic regime.’’


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argue it is through the mechanism of ‘‘capture’’ that particular political economies bring disciplinary mechanisms to bear on the underlying processes, which connect signifiers to signifieds. It is the oedipalization of the social formation that subjects human beings to this artificial and induced form of organization. Political economies create axioms that become master signifier that generate effects. Lacan was to show, in his ‘‘four discourses,’’ that these can be challenged in the discourse of the analyst whereby new master signifiers may be created and substituted for the old. Deleuze and Guattari, however, would argue that this is still an exercise in totalizing. Underlying these disciplinary mechanisms25 are immanent processes that don’t know lack or the axiomatic regimes of political economies. They know only a becoming. Let us now look, specifically, at the potential for greater diversity and justice in legal practices. And off course, we make no illusions that justice can ever be completely expressed in law.26 I would like to focus on Deleuze’s late works on the cinema and draw out some implications as to traditional criminal justice (the ‘‘organic regime’’) compared to social justice/transformative justice (the ‘‘crystalline regime’’). We are particularly concerned with regimes of signs that have become stabilized from which ‘‘reality’’ may be constructed.27

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Michel Foucault, Discipline and Punish (New York: Pantheon Books, 1977). See Jacques Derrida, ‘‘Declaration of Independence,’’ New Political Science 15 (1986), at 7–17; Derrida, Given Time (Chicago: University of Chicago Press, 1991); Derrida, ‘‘The Force of Law’’ in Drucilla Cornell, ed., Deconstruction and the Possibility of Justice (New York: Routledge, 1994); ‘‘The Villanova Roundtable: A Conversation with Jacques Derrida,’’ in J. Caputo, ed., Deconstruction in a Nutshell (New York: Fordham University Press, 1997). 27 Deleuze and Deleuze and Guattari’s semiotics of law is a pragmatic approach, indicating that a regime of signs, ‘‘strata’’, evolves from chaotic practices into stable forms. Space limitations restrict further explication on the developmental process, but suggestive are their three essays, on the ‘‘refrain,’’ ‘‘plateaus,’’ and ‘‘nomadology,’’see supra, A Thousand Plateaus, n. 7, at 39–74, 310–350, 351–423. See also Murray’s insightful analysis, supra n. 23. A comprehensive view would combine pragmatics, semiotics, and a political economic analysis, see for example V. Volosinov, Marxism and the Philosophy of Language (Cambridge, MA: Harvard University Press, 1986). 26

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3. Organic regimes: criminal justice Let us briefly look at five contemporary models of criminal justice practices. Each, I argue, is compatible with the logic of the ‘‘organic regime’’ of signs that Deleuze spells out in his two-book set on cinema, Cinema 1: The Movement-Image (1986) and Cinema 2: The Time-Image (1989). The organic regime is more concerned with identity, linearity, unity, determinism, predictability, totality. Packer28 has provided a convenient comparison of the due process model and the crime control model underlying existing criminal justice systems in the U.S. The due process model follows the logic of Max Weber’s formal rationality ideal type in law. Here, formality is of highest value: formal fact finding; opportunity to be heard, to confront witnesses, to cross examine, to a neutral fact-finding body, to access to a lawyer, to appeal. Adversarial fact-finding, with opposing lawyers clashing for the truth would assure that the ‘‘what happened?’’ will be established beyond a reasonable doubt. The crime control model, however, has different values. It values informalism in identifying as much crime in society as possible and in its prosecution. Efficiency is its call. Efficiency depends on speed. Informality and stereotyped procedures in assembly line forms of justice rendering best assure that a high conviction rate is obtained. The working presumption is not innocence until proven guilty but its reverse: guilty until proven innocent. Its informality can be likened to Max Weber’s29 substantive rational or substantive irrational ideal types of law. Plea bargaining is but one of its essential instruments. In both these models, according to Griffith,30 a battle metaphor is being employed. There are contestants, there are winners and losers, there is one truth, there is a clean separation of law breaker and victim, there is no inherent mechanism for individual or social repair. These battle metaphors are supportive of master signifiers that are in line with it. Thus we can see how Deleuze’s notion of regimes of signs may reflect each approach, crime control and due 28

Herbert Packer, ‘‘Two Models of the Criminal Process’’ in George Cole and Marc Gertz. eds., The Criminal Justice System (Boston: West/Wadsworth, 1998), at 9–23. 29 Max Weber, Economy and Society (Los Angeles, CA: University of California Press, 1978); see also Dragan Milovanovic, An Introduction to the Sociology of Law, 3rd ed. (Monsey, NY: Criminal Justice Press, 2003), at 49–63. 30 John Griffith, ‘‘Ideology in Criminal Procedure or a Third ‘Model’ of the Criminal Process,’’ Yale Law Journal 79/3 (1970), at 359–417.


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process model, but ultimately, the battle metaphor is productive of master signifiers which captures various sentiments by its participants. Said in another way, master signifiers populate the arena of crime fighting in particular ways. Drawing from Lacan’s discourse of the master and discourse of the university, we could argue that participants, whichever ‘‘side’’ they are on, are offered discursive subject positions within particular regimes of sign whereby some realities are constructed, others are not. A third model of responding to harm is the actuarial model.31 Having affinities with the crime control model, its focus is on prediction and maximizing efficiency in processing. It is risk management. It focuses on statistical analysis and probabilities. Thus it employs an accounting model. We thereby have highly trained specialists statistically examining potential risk cases in the aggregate. No fault law and strict liability are some of its derivatives. We also have predictive instruments for assessing dangerousness, for preventive detention practices, profiling (formal and informal), and especially since ‘‘9–11’’ extensive forms of surveillance of ‘‘problem populations.’’ Again, we see that the regimes of signs that emerge are clearly delineated. Master signifiers are reflective of actuarial practices. The actuarial metaphor subsumes oppositional views to simply one of the variables in statistical analysis that can be accounted for. A fourth model of responding to harm has been developed by Griffith32 in his family model. The family metaphor envisions society as a family, and its citizenry, the children. Occasionally, in this metaphor, children make mistakes and need to be held accountable for their actions. We punish them, but then bring them back into the family with love and care. Never do we allow their standing of law breaker to reach the level of a master status. Griffith attempted to break away from the narrow thought of those in the battle model. He wanted to establish a more humane, more conciliatory model. The battle model was predicated on ‘‘disharmony, fundamentally irreconcilable interests, a state of war.’’33 A family model, Griffith tells us, 31

See Peter Kraska, Theorizing Criminal Justice (Long Grove, Illinois: Waveland Press, 2004); Malcolm Feeley and Jonathan Simon, ‘‘Actuarial Justice: The Emerging New Criminal Law,’’ in David Nelken, ed., The Future of Criminology (London: Sage, 1994); Kevin Haggerty and Richard Ericson, The New Politics of Surveillance and Visibility (Toronto: University of Toronto Press, 2006); Ivan Zinger, ‘‘Actuarial Risk Assessment and Human Rights,’’ Canadian Journal of Criminology and Criminal Justice 46/5 (2004), at 607–621. 32 Griffith, Ideology, supra n. 31. 33 Ibid., at 371.

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needs a new vocabulary, a new language. ‘‘Crime’’ and the ‘‘offender’’ are merely categories created by society, invested with various commitments by those in law enforcement and outside of it. Griffith34 argues against the exile function of the battle model and advocates ‘‘cooperative, constructive, conciliatory’’ responses. Thus for Griffith, master signifiers would follow the family metaphor. Again, a regime of signs would reach stability within which persons would have discursive subject positions from which to speak in ongoingly creating a model that represents the family. Of course, we could further our inquiry and ask about the basic paternalism being also incorporated, the basic privileging of the father’s voice in dominant familial practices, subjecting the child to minimal responsive discursive subject positions.35 The fifth, and final model is restorative justice. Its more formal beginnings can be traced to the early 1990s. Much of its focus has been derived from indigenous ways of problem solving as well as Quaker’s philosophy of social justice. The family model, too, has affinities with it. The basic model is the victim–offender mediation program. Here the five elements include: the meeting (those in conflict meet); narrative (each presents her/his story); emotion (each has a forum within which to express emotions); understanding (the emergence of empathy); and agreement (a resolution to the conflict is established). Resolution includes: amends, apology, behavioral change, restitution, and generosity.36 The focus is on restoring the person (victim and offender, or disputants) back into society. In this model, the regime of signs includes master signifiers that diverge substantially from the crime control, due process, and actuarial model. Realities created, arguably, are more reflective: there is more participation by the disputants; a greater range of diversity is supposedly manifest; and studies indicate that these programs are ‘‘working’’ as measured by such criteria as happiness with results. A few recent books37 and several recent articles have subject this perspective to highly critical analysis. For our purposes here, we 34

Ibid., at 383. Ironically, we have traveled full circle to give credence to Lacan’s ‘‘law of the father’’ and the dominance of the paternal signifier. 36 Daniel Ness and Karen Strong, Restoring Justice (Ohio: Anderson Publishing, 2006). 37 See, for example, Annalise Acorn, Compulsary Compassion: A Critique of Restorative Justice (Vancouver, Canada: UBC Press, 2005); Arrigo et al., The French Connections, supra n. 4; George Pavlich, Paradoxes of Restorative Justice (Glasshouse Press, 2005). 35


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merely focus on the regime of signs that this practice creates, and within which particular discursive subject positions operate. A key critique has been that restorative justice is but another form of a disciplinary mechanism, first encouraging participants/disputants to use the language of mediation, and secondly, should they diverge, subject them to punishment – a return to traditional practices.

4. Images of thought Let us look at these five models in terms of a Deleuzian analysis as we can tease out of his two-volume series on the cinema. We will argue that the issue of diversity and tolerance, particularly in law and justice are connected with our images of thought during a particular epic. These images of thought are constitutive of a particular form of regime of signs within which particular discursive subject positions are offered and particular forms of signifiers attain stable form – together, from which particular realities can be created. Deleuze’s complex typology of images and signs provide the elements for understanding how shots are framed and what effect they have. Deleuze distinguishes between ‘‘organic regimes’’ and ‘‘crystalline regimes.’’ Each is concerned with an image of thought. An image, following Deleuze, can be considered ‘‘an ensemble or set of logical relations that are in a state of continual transformation.’’38 An image of thought, for Deleuze, is often historically specific.39 Thus, his two books on cinema explore two semiotics, one focusing on time, one on movement. ‘‘Each era thinks itself,’’ says Rodowick,40 ‘‘by producing its particular image of thought.’’ Thought has a certain image by which it thinks.41 Deleuze applies it to two eras of the movie industry: prior to WW2 identified as the ‘‘classic’’ model which is preoccupied with the ‘‘movement image’’; and after 38

Rodowick, Gilles Deleuze’s, supra n. 20, at 6. Deleuze and Guattari, Thousand Plateaus, have coined the study of images of thought ‘‘noology,’’ supra, n. 20, at 376. It also entails a study of their historicity. See also Deleuze, Difference and Repetition, supra n. 20, at 129–167; Murray, supra n. 23, at 134–136. 40 Rodowick, Deleuze, supra n. 20, at 7. 41 See Deleuze and Guattari, What is Philosophy? (New York: Columbia University Press, 1994), at 7; Rodowick, Deleuze, supra, n. 20 at 7; see also Deleuze, Difference and Repetition, supra n. 7, at 129–169, Deleuze, Proust and Signs (New York: G. Braziller, 1972). 39

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WW2, called ‘‘modern,’’ focused on the ‘‘time-image.’’ He further calls the first the ‘‘organic’’, the second, ‘‘crystalline.’’ Let us briefly describe each. We will then show how the previous five models of criminal justice have affinities with the organic regime, whereas the crystalline regime will be closely aligned with transformative justice (social justice) we develop in a section below. The organic regime organizes vibratory flows in terms of a ‘‘movement-image.’’ That is, truth is developed by rational divisions implicating universals or totalities. In other words, actions are conceived in a linear way, in terms of the linkage of action to reaction. Wilhelm Worringer,42 a German art historian, can be credited with the original characteristics of this regime. According to Rodowick’s interpretation, ‘‘organic forms express a harmonious unity where humanity feels at one with the world. Here representations are based on natural forms and are sustained by the belief that natural laws support and lend them truth.’’ Thus the organic regime is about determinism, predictability, certainty, unity, totality, and identity. The past is connected with the present, the present with determinable happenings in the future. Truth, in this view, is not problematic. It requires its negation of the false in order to be able to actively negate it.43 It is based on a logos, a teleological principle of linear movement. It also has implications for judgment. According to Rodowick,44 ‘‘in the course of an investigation, a trial, or a conflict, we presume that one party will ultimately – finally and teleologically – represent the side of the right and the true.’’ And ultimately, ‘‘along with protagonists, witnesses, and jurors, we are put in the position not only of judging what is true or false, but also of knowing that we will finally be right.’’45 Thus, in short, in the organic regime, truth can only be ‘‘found, discovered, or described.’’ Deleuze’s view of signs in relation to imagery is a complex one. Deleuze follows Bergson, particularly his remarkable book Matter and Memory, with the ontological assumption that the world is made up of images in movement acting much like billiard balls.46 42

Wilhelm Wollinger, Abstraction and Empathy (New York: International University Press, 1953); see also Rodowick, Deleuze, supra, n. 20, at 212, n. 6. 43 Rodowick, Deleuze, supra n. 20 at 85. 44 Ibid. 45 Ibid. 46 See Bergson, Matter and Memory (New York: Zone Books, 1991); for a lucid explication see Bogue, Deleuze, supra n 20, at 4–5, 29–35, 68–70.


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They obey the causal laws of physics. Living entities are distinguishable in so much as they may break the normal stimulusresponse schema and in this pause are able to respond in novel ways. Accordingly, these are ‘‘centers of indetermination’’ which, through experience, organize themselves in various ‘‘sensory motor schemas’’ that coordinate actions, feelings, and perceptions. Deleuze builds on Bergson to specify six kinds of images each of which can be represented by at least three signs. As Bogue47 tells us, ‘‘the signs of the movement-image, which are the signs of the classic cinema [organic regime], ultimately conform to the coordinates of that commonsense world.’’ Film directors, then, invoke various commonsense understandings in the viewer by manipulating various signs representing these six images. But, again, reality construction by the viewer is linear tending toward unity, coherence, and stability. In applying this analysis to our concerns, we posit a seventh image operative in the criminal justice system,48 call it a juridic-image. It’s ‘‘composition’’ includes two diametrically apposed signs, one indicating disorder, the other order. ‘‘Genetically,’’ it can be traced back to a mythical debate between Hobbes representing imagery of the ‘‘state of nature’’ where there is a perpetual ‘‘war of all against all’’ and Rousseau who posits a collectively and rationally developed social contract as a peaceful, law-abiding alternative. Thus we could identify an order-sign, disorder-sign, and a hobbsrouss-sign. What remains an undercurrent in the various spheres of the criminal justice system is a collective imagery of this conflict between Hobbes and Rousseau, disorder versus order. That is, signs of disorder seem ubiquitous; but signs of order just as quickly emerge as the antidote. It permeates every level. It is implicit in decisionmaking and is the background horizon of thought and action. It permeates each of the six movement-images and the 18 signifiers (or more) offered by Deleuze. In short, the hobbsrous-sign is much like a master signifier posited by Lacan. We only mention at this point that change in the criminal justice system will be difficult to the degree that this underlying imagery and sign system continues to inform thought and action at the various levels of the criminal justice system. We need alternative images and signs. We turn to the crystalline regime for possible alternatives. 47

Bogue, Deleuze, supra n. 20, at 5. By ‘‘criminal justice system’’ we only imply that various entities are coordinated by the State in delivering justice – police, courts, jails/prisons. 48

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The crystalline regime is diametrically opposed to the organic regime. Post WW2 reconstruction efforts were inspirational for its development.49 The main difference that was to develop is the separation from the movement-image and the incorporation of the time-image. It is marked by cuts, divisions, irrational (in a mathematical sense) separations, uncertainty, disorder, undecidability, the incommensurable, and indeterminism. Probability theory of quantum mechanics would seem to be its central pillar. Images no longer flow in linear, unfolding form toward a picture of totality; rather, the flow is interrupted by bifurcations, by serial developments, and re-articulation of irrational cuts.50 Death of one series is marked by a re-birth by another. At singularities, dice-throws rule. For the crystalline regime, images of thought are inherently non-totalizable. They are nomadic, rhizomatic, unpredictable. The cuts and divisions open up a space for surprise, the unexpected, the unpredicted – a moment in which creative evolution may take place. Movement (action–reaction) is now subordinated to the time-image. In Deleuze’s Logic of Sense, ‘‘meaning is never a principle or origin; it is produced. It is not something to be discovered, restored, or re-employed – it is to be produced by new machineries.’’51 In Deleuze’s view, the false is not imminent nor discoverable within phenomena, as in the organic regime. Rather, it is the ‘‘power of the false’’: a continuous questioning brought about by the disruption of the time-image; truth is created, continuously in these gaps, cuts, and divisions. It is fragile, unstable, and potentially effervescent. It is, according to Deleuze,52 not toward a higher form of 49

Ibid., at 13. Examples provided by Deleuze include the works of filmmaker Ousmane Sembene, perhaps ‘‘Borom Sarret’’ being a case in point. Another example is with the work of filmmaker Pasolina’s use of ‘‘free indirect discourse.’’ See Pier Paolo Pasolini, Heretical Empiricism (Washington, DC: Academia Publishing, 2005). These ‘‘irrational cuts’’ provide ‘‘irrational intervals’’ within which ‘‘a set of new values, based not on totality and identity which stop thought, but on simulacra whose incommensurabilities make thought move – the indiscernible, the inexplicable, the undecidable, and the incompossible...it becomes an opening where principles of identity and transcendence give way to a virtuality, the possible emergence of new subjectivities and new forms of thought,’’ Rodowick, Deleuze, supra n. 20, at 144. 51 Rodowick, supra n. 23 at 177; see also Deleuze, Logic, supra n. 7, at 72, 89–90. 52 Gilles Deleuze, Negotiations (New York: Columbia University Press, 1995), at 126. 50


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unity or totalization. It is more connected with a becoming, not a being. Nor is truth to be found in its opposition to false. Hence, truth can be created positively;53 not in the react-negate form of Hegel’s master slave dialectic, but in the affirmative form of Nietzsche and the ‘‘creative evolution’’ in Bergson. Thought, in other words, is not directed toward an eventual specified end, but rather remains open, dialogical, creative, and evolutionary directed toward an unspecified becoming.54 The emerging ‘‘risk society,’’ according to Beck,55 provides increasing disruptions, breaks, cuts, and opportunities for new forms of negotiations and active construction of meaning not necessarily rooted in the past, but with an eye toward creative evolution. Consider Beck’s remark in the context of Deleuze’s who builds on Wilhelm Worringer:56 ‘‘the crystalline represents a will to abstraction. When a culture feels that it is in conflict with the world, that events are chaotic and hostile, it tends to produce pure geometric forms as an attempt to pattern and transcend this chaos.’’ Thus we can see how two regimes of signs develop that are markedly different in their form. Each provides an existential space within which reality may be constructed, desire embodied, master signifiers created, discursive subject positions populated. The organic tends toward rigidity (axioms, strata, territorialization, stasis, homeostasis, totalizing, reactive forces), the crystalline to continuous change (far-from-equilibrium conditions, singularities, dissipative structures, dynamic master signifiers, local effects, active forces). We also indicated how a seventh form of a movement image, the hobbsrouss-sign, acts as a master signifier having ubiquitous effects in the criminal justice system. Consider, then, how the two regimes of signs offer operatives within a criminal justice system different ways to construct realities. 5. Crystalline regime: social (transformative) justice We now turn to the notion of social justice, or transformative justice that has affinities with the crystalline regime. Here we are concerned 53

Rodowick, Deleuze, supra n. 23, at 85. Ibid. 55 Ulrich Beck, Risk Society (London: Sage, 1992). 56 Cited in Rodowick, Deleuze, supra n. 23, at 212, n. 6; Wilhelm Worringer, Form in Gothic (New York: Schocken Books, 1964); see also Worringer, Abstraction, supra, n. 43. 54

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with alternative images of thought that wait to be released within molar and molecular organizations of desire. We take as a given that desire has been organized around lack, as Lacan quite accurately shows, but that it is also intimately connected with capital logic as Deleuze and Guattari have argued in Anti-Oedipus and in A Thousand Plateaus. The predominance of the values of diversity and tolerance can be better understood within the Deleuzian framework of the crystalline regime where the time-image is ubiquitous. But how would transformative justice appear? How would the regime of signs that are its constitutive parts develop? What would they look like? Can we provide an indication of their possible development? Let us see if we can develop some initial approximations. We begin with decoupling the notion of justice from law. Derrida57 has argued that justice is much like a gift, it is immeasurable; whereas law is like economics, subject to rationality and precise calculation. Law may include justice, but it can never be congruent with it. So we proceed with the assumption that only approximations of justice may appear in law. We also proceed with the assumption that formal rationality is a totalizing discourse, which does not make much room for thinking otherwise, or for more sensitive and holistic responses to harm. Deleuze’s study of cinema has applicability here. We want to make use of some of the concepts he develops from the crystalline regime in indicating directions for a transformative justice, a justice which moves back and forth from the micro to the macro, from the molecular to the molar, from paranoiac libidinal investments of desire to the schizophrenic libidinal investments (schizophrenic as a process not the end state, as in a clinical entity). We want to follow with Deleuze’s conceptualization of regimes of signs; how, that is, new forms may emerge offering not only a diverse series of discursive subject positions hence promoting differences, but also expressive forms (signifiers) and content (signified) with which, through which, and by which a subject may be constituted in a more holistic fashion. We want to separate desire from its connection to lack and instead situate it in a Nietzschean/Deleuzian frame in which it knows only production, connection, development, ever more diversity. We want to develop a form of transformative justice by which molar statistical aggregates are constantly infused with subversive forms whereby they continuously deterritorialize and reterritorialize, 57

Cited in John Caputo, ed., Deconstruction in a Nutshell (New York: Fordham University Press, 1997).


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where lines of flight are released by which creative evolution may progress. Simultaneously, we want to be sensitive to molecular libidinal developments that are both constitutive and constituting of molar aggregates, but being ever vigilant to forms that are socially harmful.58 We want to move away from categorical descriptions (race, gender, class, defined personalities) in releasing rhizomatic development, a becoming not a being. As Deleuze and Guattari59 advocate: the task of schizoanalysis is that of tirelessly taking apart egos and their presuppositions liberating the prepersonal singularities they enclose and repress; mobilizing the flows they would be capable of transmitting, receiving, or intercepting; establishing always further and more sharply the schizzes and the breaks well below conditions of identity; and assembling the desiring-machines that countersect everyone and group everyone with others.

This is the challenge for the coming revolutionaries who advocate transformative justice. In incipient form we have elements of this in the early works by Quaker Ruth Morris,60 Sullivan and Tifft,61 and Ness and Strong62 on restorative justice. Unfortunately, theirs is more in line with the organic regime and with some further analysis, can be shown to be buttressed by desire as lack. Morris63 has argued for a ‘‘transformative justice [that] includes victims, offenders, their families, and their communities, and invites them to use the past to dream and create a better future.’’ Ness and Strong’s64 brief forays into transformative justice rather than restorative justice would focus simultaneously on persons, perspectives, and community. In their words,65 ‘‘just as individuals must accept responsibility for their acts, so societies must assume some 58

See comments by Patton, Deleuze, supra, n. 20, at 87. There must always be ongoing critical scrutiny for the possible emergence and stabilization of reactive forces (nihilism, resentment, the worship of idols). Historically, we often see otherwise wellintended revolutionaries advocating reversal of hierarchies, political correctness, moral hate, and forms of schmarxism (e.g., dogmatic and reactionary forms of Marxism). 59 Deleuze and Guattari, Thousand Plateaus, supra n. 7, at 362. 60 Ruth Morris, A Practical Path to Transformative Justice (Toronto, Canada: Rittenhouse, 1994). 61 Dennis Sullivan and Larry Tifft, Restorative Justice (Monsey, NY: Willow Tree Press, 2002). 62 Ness and Strong, Restoring Justice, supra n. 37. 63 Morris, Practical Path, supra n. 61 at 1. 64 Ness and Strong, Restoring Justice,, supra n. 37. 65 Ibid., at 246.

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responsibility for the inequalities that plague them .... – to discern imbalances in equities, or disparities that result in less justice for some, and to seek remediation and even transformation of those structures.’’ Sullivan and Tifft66 note that restorative justice is too narrow, and that it should be extended ‘‘to take into account the ‘transformative’, economic, and structural dimensions of justice; that is, the social-structural conditions that constrain our lives and affect the extent to which any one of us can live restorative lives.’’ Their call is for a needs-based justice that is holistic in approach. Again, for Ness and Strong, as well as to Sullivan and Tifft to a lesser of a degree, the organic regime still underlies the respective models, and desire as lack can be shown to be its understructure. We need to have a new vision at the molecular and the molar levels. In this direction we67 have identified a ‘‘radical accusatory’’ and a ‘‘reformist remedial’’ model that focus simultaneously at the micro and macro levels, the molecular and molar levels. The former argues for doing away with current forms of capitalist society completely; the latter, for a superliberalism in line with the initiative of Roberto Unger’s work.68 In either case, what is being advocated is a constitutive approach; the molar and molecular are co-productive levels. We recognize this in law by such studies as those by Ewick and Silbey’s The Common Place of Law69 where they indicate ‘‘legality’’ is not merely top down, but is ongoingly produced by everyday discourse and action. A similar argument was made much earlier in David Matza’s Delinquency and Drift70 where they argue the very rationalizations that are prevalent in juveniles’ regimes of signs allowing victimization without guilt, are ‘‘borrowed’’ from traditional defenses found in law. Schwendinger and Schwendinger71 also develop the micro–macro connection in indicating that an ‘‘instrumental rhetoric’’ developed in juveniles’ regimes of signs

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Sullivan and Tifft, Restorative Justice, supra n. 62, at 94–97. Henry and Milovanovic, Constitutive Criminology (New York: SUNY Press, 1996). 68 Roberto Unger, False Necessity (New York: Cambridge University Press, 1986). 69 Patricia Ewick and Susan Silbey, The Common Place of Law (Chicago: Chicago University Press, 1998). 70 David Matza, Delinquency and Drift (New York: John Wiley and Sons, 1961); see also Gresham Sykes and David Matza ‘‘Techniques of Neutralization.’’ American Sociological Review (1957) 22: 664–670. 71 Herman Schwendinger and Julia Schwendinger, Adolescent Subcultures and Delinquency (New York: Praeger Press, 1986). 67


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which objectify the other as allowable victims (I-it objectifications), arise in certain political economies. Two examples may be provided that incorporate elements of a transformative justice. We shall also indicate how the crystalline regime is an appropriate modeling of this initiative. Schehr’s72 and Arrigo et al’s73 examination of victim offender mediation programs suggested that an additional component, critical literacy, could be incorporated to these mediation efforts, much in line with the dialogical approach of Paulo Freire,74 in empowering the disputants, while simultaneously providing the space within which repressive structures could be made visible. This process of ‘‘conscientization’’ could lead to fundamentally altered master signifiers and new discursive subject positions which are constitutive of more humanistic regimes of signs.75 A second example can be provided at the more ‘‘meso’’ level, one lying between a micro and macro level. Christine Parker76 was interested in applying a restorative justice model to the corporate world. She, however, does suggest elements by which a new regime of signs and deterritorialization may take place. Her77 definition of justice is: ‘‘those arrangements by which people can (successfully) 72

Robert Schehr, ‘‘From Restoration to Transformation.’’ Mediation Quarterly 18 (2000), at 151–169. 73 Arrigo et al, French Connection, supra n. 38. 74 Paulo Freire, Pedagogy of the Oppressed (New York: Herder and Herder, 1972); Education for Critical Consciousness (New York: Seabury Press, 1973); The Politics of Education (South Hadley, MA: Bergin and Garvey, 1985). 75 See, for example, Dragan Milovanovic’s syntheses of Lacan’s four discourses and chaos theory and its application to lawyer–client relations, undoing traditional practices, releasing alternative forms of semiotic production and alternative reality constructions, ‘‘Psychoanalytic Semiotics, Chaos, and Rebellious Lawyering,’’ in Ragland and Milovanovic, eds., Lacan, supra n. 4, at 174–204. See also Ronnie Lippens’s rizomatically inspired call for thinking otherwise, Chaohybrids: Five Uneasy Pieces (Lanham, Maryland: University Press of America, 2000). Similarly, see critical race theorists call for counterstorytelling particularly when dealing with mythology which privileges some over others, Richard Delgado and Jean Stefancic, Critical Race Theory (New York: New York University Press, 2001); see also Mari Matsuda, Where is Your Body? (Boston: Beacon Press, 1996), at 125–129, where she advocates an engaging pedagogy where students are provided space to talk about gender and race particularly in presenting stories about mistaken identities. Students become teachers, teachers become students. These were consciousness raising events, and moments where alternative semiotic production emerged. 76 Christine Parker, Just Lawyers (Oxford University Press, 1999). 77 Ibid., 49.

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make claims against individuals and institutions in order to advance shared ideals of social and political life.’’ To this end, she first recognizes the ubiquitous nature of conflict in organizational contexts (workplaces, schools, governmental organizations, families, etc.), much of which is characterized by power differentials. Her proposal is for ‘‘access to justice plans.’’ This incorporates, firstly, being sensitive to those directly affected by organizational actions and being receptive to their contribution to a list of injustices most commonly appearing; secondly, establishing restorative justice programs informed by these injustices; and thirdly, establish mechanisms that assure access to these institutions. For the latter, she suggests some external monitoring mechanism. Organizations can be judged in terms of reduction of domination and an increase in justice. Where an organization continuously falls short of providing justice a closer scrutiny by external monitors would be triggered. In both our examples, we have a ground up form of development. Neither has a specific end point beyond more justice. There is not a primarily deductive form of justice rendering; rather, discourse will emerge from bottom up, an alternative regime of signs will have room to develop. Said differently, a constantly new core of master signifiers could emerge from alternative practices, the one at the more micro level, the other at the more meso level. Deleuze and Guattari’s theory of the emergence of these signifiers has been creatively developed and applied by Murray78 to the emergence of new legal signifiers and signifieds. Given alternative practices, suggestive is that alternative abstract machines will evolve which provide form to desire. Drawing from dynamic systems theory, intensive processes culminate in self-organization; that is, particular strata and particular regimes of signs attain only contingent stability. The notion of ‘‘refrain’’79 captures this developmental process. For Murray,80 ‘‘nome law’’ captures the notion of emerging qualities of new constellations of signifiers within the legal sphere. It is a reconnectedness of various lines of flight; a new diagram marked by far-from-equilibrium conditions within which intensive processes produce novel assemblages. Suggested by Murray is that the emerging abstract machine engenders symmetry breaking, and out of these processes various new lines of flight 78

Murray, ‘‘Nome Law’’ supra n. 23. See Deleuze and Guattari, Thousand Plateaus, supra n. 7, at 310–350 where they develop the notion of the ‘‘refrain.’’ 80 Murray, supra n. 23, at 139–149. 79


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emerge, some self-organizing into strata, some remaining dormant, but with a small perturbation, having the ability to transform into more symmetry breaking. The refrain, in short becomes the singularity from which new dynamic master signifiers emerge becoming the basis for novel thought. Said in another way, emerging images of thought begin to transform old static signified (organic regimes) into more holistic and interconnected imageries (crystalline regimes). To return to our introductory paragraph of this article, what operatives within traditional criminal justice institutions begin to do is immerse themselves within an alternative milieu marked by far-from-equilibrium conditions, where more comprehensive understandings of harm and how to respond to it begin to emerge. We cannot in advance draw the blueprint for the emerging forms; we can, however, theorize an alternative direction that semiotic production may take. We are at one with Unger’s81 criticism of formal rationalization extending world-wide. As he82 tells us, the cost of our search for immanent order... [is] the immunization of the basic institutions of society, defined in law, against effective criticism, challenge, and revision. By embracing forms of thought, discourse, and practice – such as rationalizing legal analysis – that contribute to this immunization, we frustrate our interests, betray our ideals, and belittle our hopes.

His call, and ours, is for a pragmatic approach in law, one with a high premium on practical experimentalism (‘‘democratic experimentalism’’). As he83 concludes, ‘‘It is true that we cannot be visionaries until we become realists. It is also true that to become realists we must make ourselves into visionaries.’’ In short, a social justice model rather than a criminal justice model – that is, one better connected with the logic of the crystalline regime of signs – can provide a direction for a better and more comprehensive understanding of problems in living and lead to more genuine restorative responses.

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Roberto Unger, What Should Legal Analysis Become? (New York: Verso, 1996). Ibid., at 184. 83 Ibid., at 190; Richard Rorty’s pragmatism has much to offer in this direction. His hero for change in law would be a ‘‘strong poet,’’ a ‘‘good prophet,’’ a visionary who is unafraid in ‘‘experimental tinkering.’’ See Richard Rorty, Contingency, Irony, Solidarity (Cambridge, Mass: Harvard University Press, 1990), ‘‘The Banality of Pragmatism and the Poetry of Justice,’’ Southern California Law Review (1990) 63: 1811. As Douglas Litowitz has said, ‘‘the visionary leap is a ‘romantic’ move which tries to forge new legal paradigms through a creative, ‘poetic’ act of imagination,’’ Postmodern Philosophy of Law (Kansas: University of Kansas Press, 1997) at 146. 82

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6. Crystalline regimes and pragmatism Diversity, tolerance, law and justice can be better understood in a pragmatic approach that Deleuze and Guattari advocate. Their semiotics is one advocating a perpetual becoming, not a mere being. Theirs is one of continuing experimentalism, creative evolution, and ever more fulfilling ways of becoming. They advocate not a stasis, but far-from-equilibrium conditions within which intensive processes produce not only relatively autonomous assemblages and abstract machines that are the workings of desire itself, but a constant breaking down (deterritorialization) of the present in preparation for a continuously evolving, more fulfilling future. Thought images follow these cycles. Just as the movement-image was transformed into the time-image, the current video-web culture is ushering in a new form of thought images that are yet to stabilize themselves. There are both good potentials in this, and also bad. It is genealogical analysis84 that will determine and evaluate the developing configuration of forces in judging whether they are contributing to active forces or reactive forces. We are already witnessing fundamental transformations in the current postmodern age. Globalism, as Hardt and Negri85 have so well explained, is both a source of new forms of domination (‘‘Empire’’),86 but offers at the same time the seeds for its own undoing in the idea of the ‘‘multitude.’’ The concept of multitude represents both differences in people and their ability to selforganize without permanent identity.87 It has no borders, it owes much to the new information age and the web.88 It is the 84

For a useful explanation of a Nietzschean inspired notion of ‘‘evaluation,’’ see Patton, Deleuze, supra n. 10, at 58–67. 85 Hardt and Negri, Empire, supra n. 2; Hardt and Negri, Multitude, supra n. 2. 86 One more subtle being what Unger refers to as ‘‘rationalizing legal analysis,’’ a formalism in law that is creeping world-wide. See What Should Legal Analysis Become?, supra n. 82. 87 ‘‘The multitude...is not unified but remains plural and multiple...The multitude is composed of a set of singularities – and by singularity here we mean a social subject whose difference cannot be reduced to sameness, a difference that remains different,’’ Hardt and Negri, Multitude, supra n. 2, at 99. 88 Hardt and Negri support ‘‘network struggles,’’ the increasing global connectedness of those in struggle. Multitude, supra, n. 2, at 79–91. It values ‘‘creativity, communication, and self-organized cooperation.’’ Multitude, supra n. 2, at 83. In our view, what will also emerge is also a global regime of signs, one that is reflective of diversity in the global order. In this dynamic, the refrain will play a crucial active force.


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multitude, not class of traditional Marxist analysis that is beginning to emerge as a dynamic concept for social change.

7. Conclusion In this article we have explored a way of seeing diversity in relation to law and justice through Deleuze and Guattari’s seminal works. We have been particularly concerned with the rigidity of traditional criminal justice and its inability to come through with its promise. We seek another way. We engaged in alternative theorizing. We have employed Lacan’s psychoanalytic semiotics as the framework that quite adequately describes the nature of the imprisonment of people within signifying chains in particular political economies and their attendant axiomatics, disciplinary mechanism, and forms of surveillance. But we are currently witnessing an approach that may augment, or even eclipse it. Lacan’s work does indeed indicate, descriptively speaking, how lack and desire are politically molded; how desire is given particular expression. Deleuze and Guattari provide the potentials for transformation inherent in being human. D. Milovanovic Ph.D. Professor and Bernard J. Brommel Distinguished Research Professor Justice Studies Program Northeastern Illinois University 5500 N. St. Louis Avenue, Chicago, IL, 60625, USA E-mail: [email protected]