via fuZZyface (Linda Stewart)
Judicial adjudication within our current knowledge apparatus, affords individual and collective bodies an alternative and additional space in the event of a possible rights infringement, to challenge enacted laws, policy and the action of the sovereign. Although constitutionalism in modern liberal democracies has opened up a previous enclosed space for courts in the form of judicial adjudication to possibly creatively deal with rights alongside traditional forms of democratic participation, courts remain trapped within institutional boundaries when they rely on interpretative approaches, legal convention, legal culture, and legal history where courts often defer a situation of rights-infringement to the legislature or executive branches of government as a macro-political matter. As such the concept of human rights grounded in the notion of a supposed fixed identity and judicial interpretation grounded in presupposed values confines movement or change.
In this post I hope to illustrate that when rights are perceived beyond institutional expression, a supposed fixed identity (subject) and presupposed values, it may possibly be of assistance in identifying different ways of ‘becomings’ that goes beyond the majority standard.
In a historical sense, human rights gave rise to the doctrine of the Rechtsstaat (état de droit) or constitutional state (a government according to a constitution). It entails that the state ‘not only exercises power sub lege, but exercises it within limits derived from the constitutional recognition of the so-called “inviolable” rights of the individual’ (Bobbio 1987: 25). In constitutional states (état de droit) human rights are subsumed as something that each individual possesses and one way of organising (interpreting) these rights is through an institutionalised form of law, known as judicial review or adjudication. Judicial adjudication compels courts to make a judgment whether a specific law or state action infringes on a specific right as contained in a supreme constitution. The judiciary’s interpretation of constitutional rights is based on a number of fundamental principles or abstract foundational norms that underlie constitutionalism and function to inform the judiciary’s in the process of interpretation. Human rights are perceived as mechanisms directed to curtail the juridical powers (pouviour) of the state along with guaranteeing the livelihood of the body.
Constitutional rights are those human rights that have been codified in a document (such as a constitution or a bill of rights) and have the status of prevailing over policy, enacted legislative texts and depending from the country’s law system also common law. In domestic jurisdictions there is no such a thing as absolute human right. These rights are always subjected to the interpretation of values represented in the constitutional text of a particular jurisdiction. These values range from the notions of democracy, human dignity, freedom, equality and life and are appropriated to measurements of proportionality, reasonableness and rationality. Although a new space has opened to protect the livelihood of the individual from undue interference from the State Apparatus in the form of judicial adjudication, as explained above, the judiciary are reluctant to interfere with the ‘democratic will’ as represented by elective representatives.
In an interview with Parnet, Deleuze (1996: G comme Gauche) remarked that he was initially more interested in ‘law’ than philosophy. He was not interested in laws (la loi), what he perceives as an empty notion, nor was it laws (les lois) what he perceives as an uncritical notion or even law (le droit) or rights (les droits). What fascinates him ultimately was jurisprudence. He explains ‘I use “law” (without a definite article) to translate droit, as a system of rights (droits)’. He therefore argues that rights should not originate from codes or declarations but should rather be directed at everything that currently creates problems for the law and where current ways of acting and being acted upon is questioned (Deleuze Negotiations 1995: 153).
Deleuze claims that there is no such thing as human rights
‘there is life, and there are life rights. Only life goes case by case’.
Deleuze (1996: G comme Gauche) therefore creates the concept jurisprudence for his idea of life rights which presents the possibility of the creation of a system of new rights. Put differently, jurisprudence for Deleuze is about creating a system of new rights instead of merely focussing on established rights in terms of constitutionalism. He argues that being on the Left means to fight for freedom which entails shifting our perception and ‘never ceasing to become minoritarian‘. ‘Fighting for freedom’ calls for an engagement with jurisprudence and ‘being on the Left’ is about ‘creating law, the law’ (Deleuze 1996: G comme Gauche). ‘Being on the Left’ is about finding arrangements instead of only thinking about rights in terms of a right-giving state and the fixed bearer of rights (the subject) and he stresses that this requires inventing world-wide arrangements. For Deleuze, ‘jurisprudence is the philosophy of law’ that ‘proceeds by singularities, by working out from singularities’ (Deleuze ‘Control and Becoming’ 1990: 209-10; 1995: 153, transl. modified by Patton 2012: 1-14).
A close reading of Deleuze’s commentary on human rights therefore, suggests that there is a distinction between institutionalised (established) forms of rights and rights that stand outside institutionalised forms of law (Deleuze 2004, 02, 26 ‘On Human Rights’; Deleuze 1996: G comme Gauche). Rights in its institutionalised form are based on the supposed image of the majority standard. Deleuze and Guattari (A Thousand Plateaus 2005: 105-106) describe the majority standard in constitutional states as an abstract figure, ‘the average adult-white-heterosexual-European-male-speaking a standard language’. The latter forms the majority not in a quantitative sense but because it forms the historical standard in which the rights and duties of citizens are measured by the axioms of a capitalist society. No one is ever the majority and everyone is in a constant struggle to become part of the majority. The notion that individuals and collective bodies appeal to courts in the form of judicial interpretation and adjudication to enforce their rights, illustrates the recurrent struggle in constitutional states to broaden the scope of the majoritarian standard.
There is however ‘rights’ that stands outside these institutionalised forms of law. Patton (2012: 19) argues that Deleuze’s concepts of jurisprudence and rights opens a possibility that ‘there are cases where we will agree that the rights of individuals or groups have not been respected, even though they were treated in accordance with the law’. For Patton, this implies that rights exist independent of their institutional expression and thinking about rights as a concept in this way, presents the possibility to include legal, political or customary rights moving beyond the discursive boundaries that [human] rights as those rights vested in a eminent constitutional text. It also present us with a post-anthropocentric approach where we can think rights focussing on processes and interconnections produced by arrangements of power where an established position is questioned.
Right(s) as a concept beyond institutional expression may thus be understood as ‘established ways of acting or established ways of being acted toward’ and new rights flow when the established or are questioned by multiple ways of becomings. In following Patton, it is therefore, possible to think about the concept rights, as a notion that is not based on a transcendental view of human nature. Moreover, this conceptualization of rights triggers the idea that rights are immanent and socially embedded which allow the potential to think rights otherwise which opens line of flight for different ways of ‘becomings’ that moves beyond the institutionalised image of law and the majoritarian standard.
Rights as a concept from a post-anthropocentric approach beyond institutionalisation, current knowledge apparatus is possible when thinking and working with arrangements rather than a fixed subject of law. An arrangement, for Deleuze and Guattari, is the coming together of forces into relatively stable configurations with particular capacities to affect and be affected that have specific durations (Lorraine 2011: 12). An arrangement includes complex arrangements of objects, bodies, expressions, qualities, and territories and applies to all structures, including amongst others, behaviour patterns of an individual, organization of institutions and arrangement of space (Livesey 2010: 18-19).
There are two kinds of arrangements affecting human existence, collective assemblages of enunciation and machinic assemblages of desire. There is always the function of signification, regardless of meaning and signs (Deleuze and Guattari 2005: 113). Lorraine (2011: 13) explains that collective assemblages of expression encompass the signifying and interpreting activities and entail enacted rules and linguistic practices governing a subset of speech acts of the social field while machinic assemblages of desire include specific subsets of the habitual practices and routines our bodies undergo. Lorraine remarks that collective assemblages of enunciation roughly correlate with Foucault’s notion of discursive practices and machinic assemblages of desire with Foucault’s notion of nondiscursive practices.
Deleuze was particularly fascinated with Michel Foucault ‘process of subjectification’. Similar to Deleuze and Guattari’s argument that certain arrangements produce the subject, Foucault also contends that institutions and knowledge transforms the individual into a subject thereby managing the individual as a part of the population (Foucault 1982: 331). Foucault in the History of Sexuality explains that, his use of power conceptually does not refer to ‘a general system of domination exercised by one element or one group over another, whose effects… traverse the entire body social…’. He argues that the condition of the possibility of power should not be sought in the key existence of a central point.
In other words, when applied to the concept of the constitutional state we cannot assume that power are vested and distributed by the existence of a supreme constitution. Foucault explains that power should be explained in terms of the movement of relations of force that is continuously stimulated by unequal distribution of power and stresses that power should be thought as local and volatile. For him, power regroups everything under an invincible unity, but it is also produced at every instant, at every point, and furthermore in every relation between one point and another. Power originates and subsists everywhere but does not consume everything.
From what has been said, it is suggested that rights, as a concept beyond current knowledge apparatus and institutional expression is not concerned with a fixed, autonomous subject with a particular identity. Instead rights are to be thought of (understood) in the context of a dynamic situational relational process that is affected by collective assemblages of enunciation and machinic assemblages of desire (Deleuze and Guattari 2005: 2, 7). It is important to note that the two assemblages function together and it is impossible to ‘make a radical break’ or clearly distinguish between them (Deleuze and Guattari 2005: 7; 111). In order to map social fields that suggests certain connections among lines of variation rather than others, Deleuze and Guattari created abstract machines, as a tool to think intensively. They stress that while collective assemblages of enunciation and machinic assemblages ‘stabilize certain rules in the working machines of social meaning comprising them, the rules of an abstract machine are optional and each move changes the rules’ (Lorraine 2011: 14-15).
For purposes of this post, it is suggested that rights as a concept emerges in any arrangement triggered by a relationship of power (pouvoir) which concerns established ways of acting or being acted upon together with the affirmation of the multiplicity and the capacity of individual and collective bodies to affect and to be affected (puissance) by an event.
 See also Lefebvre 2012: 48-68 and Patton 2012: 1-14.