Between order and insurgency: Post-structuralism and the problem of justice

Problems of justice

Probing into what constitutes a ‘creative act’, Deleuze has argued that Dostoyevsky’s novel’s and Kurosawa’s films share an important feature: behind the more apparent problems their stories deal with, there is another problem unraveling. ¹⁰ A similar thing may be said of what is designated here as the ‘problem of justice’. Virtually every mobilization, social struggle and popular uprising today, regardless of the specific field it unfolds or the issue it reacts against, for example, inequality, discrimination, environmental degradation, is prompted by a passionate demand for justice. In this respect, to speak of justice as a problem refers to the urgent task of its implementation and the difficulties it faces. Behind this pressing problem though another problem lurks, which affects our very capacity to bespeak of the notion, namely the fact that justice may be widely acknowledged as an essential quality of a well-ordered society, but it is open to many conflicting definitions. In Raymond Geuss’s words, ‘it is striking how unclear this concept is in ordinary language and to what extent conceptions of justice differ from one context to another and in different human societies at different times’. ¹¹ For sure, the recognition of this problem is not new, having find notably a competent treatment in Steven Lukes’s study on ‘liberals and cannibals’. ¹² However, there are certain crucial political parameters involved that no philosophical critique of ethical relativism can bypass.

Mindful of the unavoidable element of simplification that generalizations entail, normative definitions of justice arguably share a key feature, they posit an idea(l), that is, justice, which they identify with another ideal condition, for example, fairness or equality, that effectively defines the form of a just society or more specifically of a just state of affairs. ¹³ Consequently, theoretical normativism yields a philosophical idealism: an ideality is elevated to a general principle that materiality must adjust to acquire its proper form. Of course, from John Rawls to Amartya Sen, a veritable trend of liberal thinkers have insisted that their concept of justice is not teleological and does not require an imposing vision of ‘the good’. ¹⁴ Sen goes as far as to argue that our idea of justice can dispense with a totalizing vision of social order altogether and instead focus on remedying identifiable injustices, like malnutrition and gender discrimination. But the structures of public reasoning that are posited as vital for the realization of justice constitute political forms that are neither universal nor uncontestable, nowadays increasingly so; accordingly, their emergence and consolidation have certainly not come by way of the gradual-yet-steady triumph of a self-sustaining reason. For Sen as much as for Rawls, real history (of democracy, of justice) can be sidestepped because the effective political form for the realization of such ideas has been established, at least in its institutional skeleton: it is the liberal state with its rule of law. ¹⁵ Unfortunately, for liberal normativism, the past sheds a critical light on the present in that, similarly to the way it has once emerged, the liberal state perseveres today only by suppressing other political forms, for example, a Soviet or Council Republic (in the past) and an Islamic Caliphate or grassroot forms of mobilization (nowadays). Justice, in this context, looks helplessly enmeshed into those very political antagonisms whose normative resolution it claims to offer. In Schmittian terms, justice acts not as the impartial judgement of a serene reason, as much as a tool of justification that is immanent to the shifting demarcations of friends and enemies that constitute (an essential aspect of) the political. ¹⁶

A possible way out is to acknowledge the aporia and turn it into a principle that grounds a relativist but not anti-normative axiological perspective, along the lines set by Hans Kelsen. ¹⁷ While tackling with the plurality of substantive conceptions of justice, Kelsen insightfully argues about the impossibility of a formal definition that could facilitate a purely deontological theory without need of a teleological element or direction. For every formal definition – from the Latin Codex’s suum cuique tribuere (‘giving to each their due’), to the golden rule’s ‘treat others as you would like them treat you’ and indeed to Rawls’s ‘justice as fairness’ – it begs the question of a substantive, ethical content that connects justice to another principle or ideality, for instance, to use Kelsen’s own examples, freedom and security. Yet, insofar as he continues to identify justice with a normative state of being, Kelsen traces the resolution to the problem of justice in legal mediation, that is, in a positive legal order and a corresponding state form. ¹⁸ In line with the axiological relativism that it integrates as a conscious principle, the legal order Kelsen stipulates is supposed to be tolerant and democratic. The more obvious problem is that tolerance tends to be a self-referential principle, since it only tolerates whoever willingly accepts its normative frame of operation; worse, based on this provision, it can then act as a medium for the criminalization of entire cultures and religious traditions. ¹⁹ Additionally, it would be worthwhile probing on the defence of ‘freedom of speech’ from (far) right-wing intellectuals, as a way of examining the deeply problematic parameters of a tolerance based on the formal distinction between word and deed. ²⁰ Important as they may be, these are problems that an axiological pluralism admits or can possibly tackle with. From the perspective of a critical theorization of justice – and without in the least undermining the virtue of being tolerant or the empirical distinction between democracy and authoritarianism – the most fundamental problem is that Kelsen’s theory cannot escape acting apologetically to the existing liberal order and the violence the latter mobilizes for its preservation, while it simultaneously excludes any event that breaches this order, from revolutions – which at the time Kelsen was writing were a tangible possibility – to riots, of which our own time abounds. To be sure, Kelsen may have considered (at least some of) the grievances motivating uprisings to be legitimate; on a more general note, liberal states have shown themselves open to reform by receiving input from collective protest, something that finds its theoretical correspondence in the openness of liberal theories of justice towards new thematics and problematics. Nevertheless, the activities that express collective grievances and demands maintain their legitimate and thus justified character only insofar as they do not differentiate from the normative order the liberal state embodies. From this perspective, coloured people may be right to protest against police violence and increases in public transportation costs (like those triggering the recent uprising in Chile) may be unfair, but rioting cannot be positively identified as an instantiation of justice for it violates the order that mediates the latter’s implementation. Hence, the conclusion drawn above: by identifying the liberal state as the necessary and accomplished institutional matrix of justice, theory inescapably acts apologetically towards the violence that sustains it while excluding activities that threaten it or subvert it.

In essence, the preceding reflections have reiterated a post-structuralist line of analysis, in that the critique of liberal normativism was not performed in the name of a truer normative concept of justice but in a manner that the intrinsic link of normative theories of justice to the suppression of difference is underscored. Then again, on these very terms, the typical reproach levelled at post-structuralist thought has been its inability to move beyond the moment of critique or deconstruction towards a substantive notion of justice. At its most critical, such inability is said to follow from an ontological standpoint, which, in the name of an irreducible difference, inescapably falls into an active nihilism that places at the heart of every historical form of Right an arbitrary violence or, in Gillian Rose’s astute expression, an ‘ontological injustice’. ²¹ Less harshly, post-structuralism may be said to sustain a coherent notion of resistance but can at best yield an aporetic concept of justice. ²² This putative aporia can be arguably said to constitute the backdrop of contemporary critical theory and its attempt to provide a positive concept of justice that extends, or even departs from, liberal normativism without succumbing to political nihilism or relativism.

While these are points worth taking in store, my article will argue for the potential of such a positive though still critical concept of justice to be drawn from the pools of post-structuralism. Here is the twist suggested at the beginning: the resulting conceptualization will not be ‘post-structuralist’, in the more typical sense of a critical style of theorizing that subverts logocentric claims to justice and broaches the ambiguous and indeterminate space of ethical decision and/or political action, ²³ it will be materialist, in that the conditions and essence of justice are not identified in a rational substance, they are traced in affective materiality. But in line with the plurality that defines the post-structuralist event, rather than necessitating a clean break with post-structuralist thought, this materialist trajectory will be shown to have begun within post-structuralism, in particular with Foucault and even more with Deleuze. This is why it is necessary to engage in a more focused way with the individual work of post-structuralist philosophers and the distinct contribution each has made. Specifically, in what follows, key insights of Derrida, Foucault and Deleuze will be used as building blocks of a theoretical trajectory directed towards overcoming the impasses of liberal normativism without reproducing the respective impasses of reductionist analyses, which seem to believe that an analytical reduction of the idea of justice suffices to make the practical problem of justice disappear.

Justice at the limits of law

Of the three thinkers to be discussed, Derrida has dealt more extensively with the topic of justice, to the point that his work has not simply generated a significant secondary literature ²⁴ but deserves to be marked as an inaugurating moment of the current critical discourse, which recognizes the intimate link justice has with violence, legal or otherwise, yet tries to sustain its political integrity and radical potency.

Derrida’s own reflections revolve around one key idea: the irreducibility of justice to law. As he put it programmatically, ‘I want to insist at once to reserve the possibility of a justice, indeed of a law that not only exceeds or contradicts law, but also, perhaps, has no relation to law, or maintains such a strange relation to it that it may just as well demand law as exclude it’. ²⁵ In asserting as much, Derrida is not breaking new ground. Walter Benjamin, with whom Derrida engages extensively, ²⁶ developed his celebrated, and at the same time controversial, reflections on violence, law and justice on the basis of a similar antithesis. ²⁷ Moreover, Benjamin draws from the deep pools of Judaic messianism, whose anomic tendencies have been retained in early Christianity as well as later heretical sects and movements. ²⁸ Although recorded in a different register, the non-identity and tension between justice and law is also a key theme in ancient Greek tragic drama, to such an extent that tragedy ‘is not possible if the law is experienced as asserting the full coincidence between Ought and Is’. ²⁹ Ultimately, is not the founding event of Western political philosophy – insofar as the latter is ‘a footnote to Plato’, to recall Whitehead’s famous adage – the cleavage opened between justice and law in the trial of Socrates?

Unlike Socrates’s/Plato’s eagerness to neutralize its effects, Derrida is willing to pursue the radical potential contained in this cleavage; at the same time though, he is sceptical of the idea of an unmediated presence of justice, hence of the prospect of a time and a place where the former will be ‘here’ in its purity and fullness. The essential problem with law, from Derrida’s prism, is not its false claim to mediate justice, while actually serving class-interests and class-rule. More fundamentally, it is the belief of a presence (parousia) of justice in the form of law that needs to be scrutinized. In clear continuity with his earlier work on deconstruction, Derrida argues that justice cannot be contained by law because it resists a unitary re-presentation. In the idea of justice, a desire is expressed that lacks definite content, of the type that legal systems stipulate, a desire that emerges in the encounter of beings who are responsible, that is, able to respond to an-other’s plight. Although it may be mediated by law, this responsibility is pre-legal, and by the same token pre-economic, hence in itself in-calculable and (picking up Levinas’s suggestion) in-finite. ³⁰ Consequently, unlike law, which necessarily re-presents, and thus can be deconstructed, justice ‘in itself, if such a thing exists, outside or beyond law, is not deconstructible’. ³¹

It is possible to identify an apophatic element in this perspective, which could feed into the discussion concerning Derrida’s putative relation to mysticism. Whatever this relation may be, Derrida is adamant that his reading does not allude to an inscrutable Transcendens, wherefrom justice originates and draws nourishment. In contrast, Derrida’s conceptualization of justice is thoroughly secular, indeed republican (in the classic sense of the term), no matter how much he wishes to problematize these two notions and the political traditions they belong to. For Derrida, the problematic nature of justice, or to be more precise, that there is a desire and hence a problem of justice, is intimately connected to human freedom as a worldly phenomenon. In his own words, ‘to be just or unjust and to exercise justice, I must be free and responsible for my actions, my behavior, my thought, my decisions. We would not say of a being without freedom, or at least of one without freedom in a given act, that its decision is just or unjust’. ³²

In this sense, the practical possibility of (a desire for) justice is grounded in the irreducibility of human being to animality and the instinctive drives, dispositions and inhibitions that structure it. However, for freedom to be a meaningful category of social existence, such irreducibility necessarily extends to the normative imputations human beings fabricate themselves, hence to law. Rather than providing a philosophical justification of anarchism, an aporia emerges here: as a realized state of affairs, justice implies some kind of normative order, which demarcates and regulates right from wrong, the ‘just’ from the ‘unjust’. Freedom, on the other hand, at a fundamental ontological level, is the capacity of human beings not to be ordered, even more to dis-order. It follows the very feature that makes justice possible is what prevents its parousia in a stable order of normativity and, thus, representation. Which is to say, in properly Derridean terms, the very condition of possibility of justice marks also its condition of impossibility.

Against the accusations that some of his interlocutors have levelled, Derrida insists that he does not advocate passive resignation or normative relativism. Rather, as he maintains, ‘a will, a desire, a demand for justice the structure of which would not be an experience of aporia would have no chance of to be what it is – namely, a just call for justice’. ³³ In other words, from Derrida’s perspective, the impossibility to name justice in a definitive manner, and thus to encapsulate it into a universally binding normative-cum-legal order of imputation and representation, opens the potential of thinking and practicing justice in innovative ways. In fact, since justice may sometimes exclude or be against law, it can on principle be indexed on social struggles that breach legally sanctioned codes of conduct: wildcat strikes, riots, revolts. In this way, justice becomes a category that pertains and allows us to think not only ordered procedures but disruptive events.

Yet, real events of insurgency – from which the philosophical concept of the event draws nourishment – never enter Derrida’s purview in a systematic manner. How can indeed the positive presence of justice in social struggles and uprisings be marked, when every claim to presence has been on principle displaced? Ultimately, it is not only the actuality of justice in law that is problematic, it is the conviction of a Parousia of justice in any (social) form. Not accidentally, Derrida adopts a critical distance from the great historical alternative to the legalistic conception of justice that liberalism has promoted, the revolutionary justice preached by the socialist tradition, particularly by its Marxist and anarchist variants. Even more, in his critical commentary of Benjamin, Derrida suggests that ideas of an anomic justice delivered through revolutionary violence are germane with the logic of arbitrary, sovereign rule. ³⁴ There are enough historical evidence to warn against a hasty dismissal of this point. Then again, it is worth noting that the link between sovereign Power and revolutionary Terror is not forged directly in the moment of popular – resentful and redemptive in equal measure – violence but during its statist mediation. ³⁵ In this respect, a more dialectical analysis of the phenomenon of revolutionary terror is called for. At any rate, the main point here is that Derrida stipulates the possibility of an alternative to prevailing liberal legalism but never names it, nor does he systematically reflect on the social forms that have historically embodied it. Even his references to the ‘new International’ are distinctly vague and careful not to give a concrete shape to the militancy they evoke. ³⁶

Important as factors that are endemic to Derrida’s philosophy may be, attributing his stance to purely theoretical reasons would be equal to decontextualizing thought and obscuring its historical mediations. A cogent argument has been made that Derrida’s early philosophy is a ‘metaphysics of exile’, expressing a historical experience of dislocation and alienation. ³⁷ In a similar fashion, Derrida’s celebrated ‘political turn’ – a salient form of which are precisely his ruminations on justice – can be seen as ‘a theory of defeat’. ³⁸ That is, it is worth looking at Derrida’s mature work on justice as expressive of a period when the revolutionary hopes that the ‘red’ utopias have nourished for over a century were fading away, after their last upsurge in the late 60s and early 70s. It is not simply that the ‘justice beyond the law’ conjured by Derrida lacked a concrete anchoring point, at least of the scale that could pose a meaningful political alternative. More fundamentally, the symptomatic, which is to say, historical, element is that the philosophy of Derrida could step in as the potent expression of leftist radicalism and more specifically of a radical conception of justice.

To be sure, like every genuine thought, Derrida’s is an active reflection on his epoch, one that was bent to resist the liberal triumphalism that has come to be associated with Fukuyama’s infamous ‘end of history’ thesis. Derrida’s thought traces in the ruins of past defeat an indelible residue. Struggles emerge and fade, political systems come and go, hopes for a world-historical plebeian redemption have been defeated, the neoliberal utopia that replaced them is being swept away by an apocalyptic mood, but justice remains. It remains as an ever-renewed responsibility that is firmly logged to the present but also as a spectre that effectively subverts attempts to offer a fundamental ontology. Discerning the ‘hauntology’ that displaces every onto-political configuration is Derrida’s lasting legacy, open to a fertile appropriation: there is an excess in the idea of justice that unsettles existing forms of right by evoking spectres of a justice-that-could-have-being as well as of a justice-to-come.

Point granted Derrida’s thought remains too steeped in the discursive to direct this insight towards a theory of material forms. Nor thus do we ever get a robust analysis of how or why justice emerges in the world, other than through the evocation to freedom. The problem here, as Derrida in a way recognizes, ³⁹ is that the assumption that humans are ‘free’ – and not just chasing a phantom that perpetually evades them and mocks them, as in Louis Bunuel’s homonymous film (Le Fantôme de la Liberté) – is itself dependent on the material actuality of freedom, its presence as a determination of identifiable social forms, unstable as these may be. Consequently, whatever infinity ideas of justice and freedom may have by virtue of their noumenal quality, it is diluted into the messy finitude of social relations and political mediations.

Derrida may not deny these points, but the question is whether he offers tools for their theoretical articulation. The problem at hand has been formulated aptly by Soraya Lunardi and Dimitris Dimoulis and is worth quoting at length.

The non-apologetic thing to do is pursue a definition of justice which, on the one hand, is independent from principles of existing law, and, on the other hand, is not limited to conceptual tautologies (Justice is to act righteously, to be fair, to treat equals as equals). However, in that case, we encounter the irreducible multiplicity of conceptions and ‘theories’ of justice. As a concept, justice lies deeply rooted in everyday vocabulary, in popular perceptions and of course in never-ending philosophical analyses. We could say, following, Derrida, that as an emotion, as a dream and as a demand, justice is anthropologically necessary, but this cannot hide the impossibility of a consensual definition, without someone constantly raising objections. ⁴⁰

Power/justice

To an even lesser degree than in Derrida, there is nothing that resembles a ‘theory of justice’ in Foucault’s work. On principle though, Foucault’s thought is geared to clarify the way that normative concepts operate and assume their meaning within organized systems of knowledge, which at the same time are organized structures of power. So much so in fact that in the following famous sentence, one could substitute ‘justice’ for ‘truth’ without need for any further substantial changes:

The important thing here, I believe, is that [justice] isn’t outside power or lacking in power; contrary to a myth whose history and functions would repay further study, [justice] isn’t the reward of free spirits, the child of protracted solitude, nor the privilege of those who have succeeded in liberating themselves. [Justice] is a thing of this world: it is produced only by virtue of multiple form of constraint. And it induces regular effects of power. Each society has its regime of [justice], its ‘general politics’ of [justice] – that is, the type of discourse it accepts and makes function as [just]; the mechanisms and instances that enable one to distinguish [‘just’] and ‘unjust’ [activities], the means by which each is sanctioned; the techniques and procedures accorded value in the acquisition of [justice]; the status of those who are charged with saying what counts as [just]. ⁴¹

Moreover, in the distinction that Foucault draws between two types of history, whose paradigmatic expressions are Roman and biblical history respectively, a significant differentiation for justice is also touched upon. ⁴³ In both histories, justice holds a key position, but unlike ‘official’ history, in the ‘counter-history’, it is not found in the lawful constitution of the present, which has fulfilled the past and aspires to mould the future into its own image, it is present in its current absence and violation, as a memory of struggle and defeat, as resentful anticipation of a coming vindication and as a raging battle cry. In this respect, justice is operative both in rituals of power and in carnivals of revolt, which interrupt the historical continuum – as this is discursively established by the narratives of linear progress and constituted power – and practically challenge every sanctioned partition of the sensible, that is, every nomos, even the one that claims to rule by virtue of its self-sustaining rationality.

Without doubt, this is a crucial insight that gives material texture to the notion of a ‘justice beyond law’ by embedding justice to the activity of defiant and insurgent bodies. But why is justice necessarily deployed both from entrenched structures of power and transgressive acts that resist them? From the perspective of a critical theorization, this is an essential question, which Foucault never pursued systematically. Worse, and somewhat disappointingly, on the one occasion where he attends to this theme in a reflective manner, in his debate with Noam Chomsky, Foucault reverts to a rather conventional functionalism:

I would like to reply to you in terms of Spinoza and say that the proletariat doesn’t wage war against the ruling class because it considers such a war to be just. The proletariat makes war with the ruling class because, for the first time on history, it wants to take power. And because it will overthrow the power of the ruling class, it considers such a war to be just. ⁴⁴

Arguing against such a genealogical reduction and the definitional identification of justice as a tool that its yields is not to deny the aspect of instrumental (mis)use. What is disputed is the reification of a complex relation into a one-dimensional schema of analytical derivation. The point can be explicated through the symbol of ‘workers-power’, which elevates the link Foucault makes between proletarian struggles and power to the level of a political and ideological principle. Workers-power essentially names sociopolitical forms, from a ‘proletariat dictatorship’ to ‘workers autonomy’, that are meant to enable the labouring masses to change and improve their lives. In every case, the change provides justice with its substantive content, while conversely justice identifies these conditions – from a higher wage to self-administration – that enable this ‘better life’ to acquire tangible form.

Rather than a crude functionalism, a more intricate relation is suggested, an immanent fusion of justice and power in processes of biopolitical production. On one hand, Foucault endorses this fusion by pointing to its (main) material expression, the norms that operate as immanent and functional determinations of institutional apparatuses. ⁴⁶ On the other, by making power the vantage point of his genealogical analyses, Foucault consistently undermines the originary potency of justice, both as a problem lying at the heart of institutional forms and a mobilizing force in the struggles of those who, in the context of existing dispositifs, are subject to multiple forms of disenfranchisement. Interestingly, in his later article on revolt, Foucault moves towards the latter direction. ⁴⁷ For the ‘irreducible’ event of revolt enacted by those – a ‘single individual, a group, a minority or an entire people’ – who risk their life ‘in the face of an authority they consider unjust’ presupposes a lived tension between how things are and how things should be. ⁴⁸ But this tension is never pursued systematically, and Foucault, partly perhaps under his disillusionment with the Iranian revolution, would focus on the ‘care of the self’ as a possible source of resistance to the normalizing grip of modern forms of power. ⁴⁹

In sum, Foucault’s importance for a theorization of justice is not only located into what he has said, though as I have shown there are significant suggestions to take heed of, it is also to be traced in the theoretical coordinates that his thought maps out. Unlike Derrida, who ultimately grasps the duality of justice as a tension between materiality, in the form of law, and ideality, in the form of a noumenal spectre, Foucault’s analyses of social forms suggest a thoroughly materialist conception, for which the duality of justice is played out on the level of apparatuses of power/knowledge, in the immanent tension between normative constitution and resistance. In this sense, Foucault endows justice with empirical texture – ‘a thing of this world’. To avoid stumbling into functionalism without reinserting an idealistic conception of justice, it is necessary to delve more systematically on materiality as the affective domain of desire and agency. Otherwise, the embodied experience of injustice becomes a – rather strange, it needs to be said – function of power(-conflicts), bereft of any positive content other than yielding to formal principles for the normative regulation of bodies or remaining caught in an essentially negative, formless expressivity. Foucault’s unwillingness to engage with this issue on a philosophical level is in this respect a limitation, which helps us understand the tendency to analytically prioritize power, even in a relational form that entails the potential of resistance. From the doyens of post-structuralism, it is Deleuze who has offered such a philosophically astute analysis of affective/desiring bodies and to whom the article shall now turn.

Machines of right

The claim that Deleuze’s philosophy allows for a robust, positive conception of justice is not immediately evident. In fact, if the problem is seen from the perspective of his wider metaphysics, the opposite seems to be the case. Following Leonard Lawlor, the differential ontology crafted in Difference and Repetition can be fruitfully conceived as a reversal of Platonism, which sets out to break free from the ‘four shackles of identity, resemblance, analogy and negation’ and to ‘raise up difference, dissimilarity, univocity and affirmation’. ⁵⁰ An overall vision emerges of (the becoming of) the world as aberrant and/or disparate multiplicity, which obeys no normative rules of equivalence and equilibrium, traditionally conceived to be the essential determinants of justice. On this account, it can be said of becoming that it is not only anarchic but, by virtue of that, ‘pas juste’ (un-just); ‘crowned anarchy’ is also ‘crowned (ontological) injustice’. ⁵¹

Whatever ethics may be surmised here, in the ontological context provided by Deleuzian philosophy, justice is irrevocably identified with capture. Which is to say, in Deleuze’s work, justice appears to be a typical instantiation of ‘state-philosophy’, capturing becoming and/or social-desiring production within a conceptual field of representation where every-body is evaluated, classified and ranked according to determinate normative criteria. ⁵² There is room of course here for significant variation and disagreement; still, from a Deleuzian viewpoint, the canonical conceptions of justice that have shaped the relevant discourse in political philosophy, from Plato to Rawls, share this fundamental trait: they extrapolate an ideality as the normative foundation of a stratified order that is said to give material being its rightful form, the end point being a harmonious totality where every-one and every-thing have found their proper place. Moreover, in its capacity as an operation of capture, justice merges with the infinite judgement reason passes on the immanent becoming of bodies. In this respect, Deleuze’s explication of the ‘doctrine of judgement’ may be legitimately seen at the same time as an exposition of the statist conception of justice that has dominated political philosophy since antiquity:

At bottom a doctrine of judgment presumes that the gods give lots to men, and that men, depending on the lots, are fit for some particular form, for some particular organic end. What forms does my lots condemn me to? But also, does my lot correspond to the form I aspire to? This is the essential effect of judgment: existence is cut into lots, the affects are distributed into lots, and are related to higher forms. ⁵³

Crucially, from the Deleuzian perspective summarized, the statist conception of justice is not an error or a failure of reason to maintain a pristine truth, it is an intrinsic component of the process of ‘over-coding’ and/or ‘spiritualization’ that Deleuze and Guattari regard to be defining of statehood: in place of the immanent play of customary relations that define the primitive socius, the ideal category of justice is set to sustain the transcendent distribution of roles, deserts and functions that the state performs in its sovereign potency. ⁵⁵ To be sure, in tandem with what happened to law, ⁵⁶ it is possible to trace a historical process of ‘liberalization’, wherein justice is dissociated from the absolute power of the ruler and is instead geared to equally protect the citizens of a given state or, in its more cosmopolitan version, individuals and peoples at an international level. The highest point in this historical process would then be the ‘rule of law’. Nevertheless, even at their more leftist, liberal theorizations remain a species of state thought, positing justice as a function of a power (Reason, Law, Value) that transcends the affective partiality of bodies and is thus able to pass an impartial judgement on them. Expectedly, whether despotic or liberal, state thought necessarily justifies the suppression of any passionate (re)action that breaches the normative field of interiority a state establishes.

There is nothing in this line of thought that needs to be abandoned. On the other hand, if the analysis stops here, the theorization offered would not be able to surpass its object. Consequently, it would remain within the narrow bounds of state thought and reproduce the exclusion of insurgent forms of action from its definition of justice. Conversely, justice would have no determinative role in the resistant and insurgent activity of desiring bodies. Deleuze has been certainly read in this way. For instance, in his introduction to the 1983 translation of Anti-Oedipus Mark Seem, speaking of a Deleuzian ‘politics of desire’ and the ‘anti-oedipal strategy’ it entails, states that ‘if man is connected to the machines of the universe, if he is in tune with his desires, if he is “anchored”, he ceases to worry about the fitness of things, about the behavior of his fellow-men, about right or wrong and justice or injustice’. ⁵⁷ At the end of this line of thought lays an ‘anarcho-desiring’ politics that fetishizes libidinal expressivity, of the type criticized by various thinkers, for example, Alain Badiou and Jeremy Gilbert. ⁵⁸ Gladly, a number of works, from Paul Patton, in a conciliatory mood towards liberal normativism, to other scholars, in a more critical fashion ⁵⁹ have shown that Deleuze’s thought is considerably more complex and nuanced. For he has explicitly recognized that there is a justice that is different from the justice of the state; ‘another justice, another movement, another space-time’. ⁶⁰

To fulfil the critical potentials of this insight, much more is needed than to assert that this ‘other’ justice is the ‘true’ one; that is to say, thought cannot rest content with formulating its own normative definition, since this would effectively elevate one more idea of justice to the level of a general principle to which materiality must adjust. And such normative idealism sooner or later invites the state, hence a statist form of thought: for if thought begins with the One – with an ideal identity, justice is x – it is to the One it will arrive, to an order shaped, homogenized, regulated and controlled from a unitary, rational centre so as to fit the ideal condition posited. Nor is it enough to deny the notion of an ideal, ‘perfect justice’ and instead turn justice into a practical concept, along the lines of Sen (himself following a venerable path that goes all the way back to Kant). For justice would continue to operate as a mediating ideality, one in fact that has disavowed the utopian passions that could enable it to transgress the normative boundaries of the (liberal) state and (the rule of) law. Finally, as analysed earlier via Derrida, the prospected way forward cannot be limited to the positing of a radical, hyper-ethical ideality, which is meant to permanently keep the state and its nomothetic activity at a critical distance from justice. For, along with keeping the state away, it is the arrival of non-statist forms of justice that is also deferred, hence ultimately, the empirical actuality of justice in general. Going further than these options, the radical potential Deleuze’s thought holds, which can critically complement a Foucauldian embedding of justice to apparatuses of power/right, is to embed the diversification of forms of justice into the machinic operations of desire.

There is nothing distinctly ‘Deleuzian’ in associating desire with justice. Notably, Alexander Kojève has systematically developed Hegel’s thought towards this path, offering an (anthropo-)genetic analysis of justice that places desire as its driving motor. ⁶¹ Furthermore, recalibrating thought towards the affective substratum of human aspirations for justice has been a key feature of attempts to move beyond Rawlsian proceduralism and/or sociological functionalism. ⁶² What Deleuze and Guattari can contribute in this growing discourse is a conceptual arsenal that grasps systematically the productivity of desire, blocking as a result an identification between ‘the desire for’ and ‘the lack of’ justice.

It is not difficult to comprehend why the association between desire and lack has been prevalent. So prevalent indeed that it is shared even by the two other post-structuralist philosophers analysed so far. For Derrida, arguably, this lack becomes constitutive of the desire for justice, the inherent cleavage between its ideality and actuality. Although this enables a positive notion of justice as hyper-ethical decision, it still overshadows the biopolitical productivity of desire, ‘for’ justice or other. Foucault himself has confined to Deleuze that he cannot escape thinking desire in terms of lack, ⁶³ something that fits well with his unwillingness to dwell on the affective cry for justice that he witnessed in Iran and theoretically touched upon in his article on revolt. For outside the context of operational norms embedded in circuits of power, the passionate demand for justice fuelling plebeian insurgency looks like all the things that incite our libido and our fantasies – bodies, sex, goods, money, power itself: a desire for something that is absent, that we do not have. More substantially, the link between desire and lack suggests itself because both phenomena act as vectors between two points: ‘desire for’ and ‘lack of’. For the case at hand, the link is endorsed by the aforementioned phenomenological datum that the desire for justice denotes an affective chasm between Is and Ought. Nonetheless, there is a crucial difference: lack designates a void, a constitutive absence; hence, it is essentially a category of negativity. Desire, on the other hand, designates a positive quality, that is, a movement and an interplay of bodies that always and already fill whatever space exists in-between. It is this key idea that Deleuze and Guattari develop by elaborating on the productivity of desire in terms of a machinic-engineering model, of conatus as ‘a factory of production’. ⁶⁴

Despite differences in content, at a formal level, all conceptions of justice understand the term to denote that something is structured and/or operates in a rightful way; conversely, injustice denotes that something ‘wrong’ has occurred, which has violated the way things ought to be. Based on this shared feature, the following generalization can be ventured: to desire justice is to aspire to set things right or else to give them their rightful form. Against, however, the (Kantian) deontological formalism of Rawls, Deleuzian vitalism serves to sustain that ‘rightfulness’ is always connected to singular life forms, their refrains of consistency and the worlds they unfold in. Moreover, against a restrictive evolutionism and in a more Spinozist direction, the conatus that mobilizes living beings is much more than a function of survival; it spreads out to a rich tapestry of affective associations and connections, which endow a life with its unique flair, making it worthwhile and joyous or conversely unbearable, depressing, suffocating. From this angle, the desire for justice is an intrinsic part of the pursuit of a (not the) good life. At this level of abstraction, it does not matter what are the qualifying properties of ‘the good’, just like it does not matter what is the content of a ‘right’ form. The crux is that (human) life is affectively geared not simply to reproduce itself as a biological fact but to acquire qualitative forms, to become good. ⁶⁵ Similarly, the production of such life forms depends on the existence of the right socioecological conditions, which in the case of human beings need to be constructed both institutionally – through the creation of normative patterns of interaction – and subjectively – through the development of a certain ethos. ⁶⁶ Justice, in this sense, is the real quality of a form that has become right; but, at the same time, before acquiring historical actuality, justice exists as a libidinally invested potentiality that mobilizes human beings, that is, as a desire for the actualization of the right modalities of being, regardless if these concern a specific issue, for example, taxation and gay marriage, or a society’s ‘basic structure’.

The problem with the conventional identification of desire with lack is that it essentializes the discrepancy between how things are and how things ought to be and thus fails to register effectively the intensive lines of actualization that unite the desiring subject and the desired object into a singular process of social-desiring production. The desire for justice is consequently reduced to the search of an absent ideal, which will give to those who discover it what they rightfully deserve. In contrast, Deleuzian–Guattarian analytics allows to conceptually grasp that the desire for justice is a productive trajectory, which is actively involved in and coextends to the very forms that seek to actualize it: from actions unfolding on the molecular level of social life, like informal patterns of recognition and exchange, up to segmented, institutionalized forms, such as unions, clubs, communes, NGO’s, courts, militias – with the latter operating as matrices of consistency, which may still not be able to codify entirely human desire.

This perspective yields nothing less than an open and expansive topography of justice: as an immanent determination of social/desiring production, the actuality of justice is not reduced to lawmaking or any other activity that mediates social tensions, disputes and conflicts. Rather, as Deleuze and Guattari argue in reference to Kafka’s Trial, justice spreads wherever things are taking place, ‘in the hallways of the congress, behind the scenes of the meeting, where people confront the real, immanent, problems of desire and power, the real problem of justice’. ⁶⁷ Moreover, as they continue, since everyone is involved into the problems of desire and power, everyone is also an ‘auxiliary of justice’. ⁶⁸ In this respect, ‘justice is the continuum of desire, with shifting boundaries that are always displaced’. ⁶⁹

This perspective endows justice both with a rhizomatic and with a dynamic potency. To start with the first, forms of justice do not emanate in an arborescent manner from a common root (God, reason, law), branching out while seeking to approximate their predetermined form. Nor thus do they form a hierarchical order of perfection, like the one suggested by Rawls in his distinction between ‘liberal’ and ‘descent’ societies. ⁷⁰ Forms of justice are singular expressions of social-desiring production, which emerge within concrete social-historical milieus: an Amazonian tribe, an archaic polis, an industrial plant, an urban riot. In every given case, for justice ‘to be’, it must ‘become’ in an originary and differentiating way.

For sure, biopolitical flows may stabilize so as to be integrated or form a new field of interiority. This is the moment when justice is captured by the state. However, if the Deleuzian analytics is accepted, such a capture is bound to remain incomplete, negotiable, fragile. The history of justice in this respect manifests the contentious interplay between stratification and deterritorialization, the composition of majorities and the formation of minorities, transcendent judgement and immanent critique. From this perspective also, the idea of justice, that is, the actualization of justice as a conceptual generality, serves a double function: it operates both as an ‘order-word’, that prescribes to the present its proper form, and a ‘pass-word’, which evokes an earth and a people that ‘do not yet exist’. ⁷¹ Herein, a Deleuzian analytics of virtual ideality can profitably intersect with Derrida’s insight into the spectral dimension of justice, without losing from sight the latter’s actuality in the operations of collective assemblages and desiring machines. If followed consistently, this insight leads to a substantially different path of thought than the one mainstream theories of justice tend to follow. Instead of trying to ground an ideal that transcends the shifting forms of materiality, an alternative line of theorization emerges, which yields an analysis of biopolitical forms and their diagrammatic lines of operation. A more detailed study would have to elaborate on the distinct determinations of these engineering diagrams as well as on their historical transversals, conjunctions and disjunctions. ⁷² This analysis would also need to further clarify the intrinsic link between justice and power in identifiable social relations, making good the suggestion concerning the critical complementarity of Foucault and Deleuze. In lieu of such analysis, the key point can be still sustained: while justice is a constructive, thus, affirmative process, no single normative definition is possible, since the becoming of justice involves as its intrinsic moment the deterritorialization-decoding-disordering of existing forms of right.

Interestingly, in this context, justice mediates the dualities that frame Deleuze’s philosophy and prevents them from splitting into an onto-political dualism. As a consequence, theory can register the way that states receive input from nomadic flows and reform their arborescent structures or conversely the way horizontal movements can be positively mediated by hierarchical forms, without ever obscuring their differences and tensions. ⁷³ On the other hand, by sustaining the essential multiplicity of its object, that the idea of justice is many, the reduction to a rigid monism is also avoided. To be sure, Hegel would observe that in this way, the idea of justice risks collapsing into its empirical forms and hence losing its own consistency. ⁷⁴ In effect, a theory of justice cancels itself out since it stops having an object, even if the latter can be grasped in its unity only conceptually. This is certainly an important issue, which broaches other equally fundamental topics, notably that of ideality and materiality and the problem of their shared rhythm, movement and relation; is it stratified, nomadic or perhaps dialectical? Even if it turns out that a successful assessment of these issues requires parting ways with Deleuze (and Guattari), the key programmatic insight drawn from the latter’s work remains intact: a theory of justice cannot only concern the exposition of what justice ‘is’ because the latter is always (a) becoming.

Conclusion

Discussing justice via Derrida, Foucault and Deleuze practically meant relating it to three essential traits of social being: language, power and desire. In all these three aspects, the post-structuralist philosophers studied were bent to subvert the claim of reason, conceived as a unitary centre of power and signification, to define and contain justice in an authoritative, sovereign manner. To this critical gesture, a positive edge is added, insofar as they all suggest that justice, as a lived desire, diverts from law and pours into the activity of resisting bodies. As to the much talked about issue of universalism, Derrida, Foucault and Deleuze are certainly ready – not without critical reservations – to exchange ‘universal justice’ for more locally demarcated creative experimentations, or in one word, for a certain poetics (of justice). In face of the systemic crisis that actualized universality in the form of capital undergoes, this refusal to name alternative universal forms of justice than that of (the liberal rule of) law may well be a limitation, which still besets theoretical discourse as much as social struggles and popular movements. ⁷⁵ Yet, affirming uncritically universality against the corrosive influence of ‘postmodern’ philosophy is hardly the way forward; much more promising would be a notion of universalism that builds into itself the (de)constructivist conception of justice that post-structuralist thought can yield.

This conception further denotes an aesthetic valence, which blurs the boundaries that state thought imposes on human experience – with justice being assigned to one of the central institutions of the state apparatus. On the other hand, that the becoming of justice involves an aesthetic experience does not in the least minimize its seriousness, thus, the responsibility of agency. This is a point that Derrida has made forcefully by stressing the element of undecidability entailed in the problem of justice. Foucault and Deleuze, in their own turn, sharpen the political edges, and thus material density, of this problem, extending it far beyond the domain of intersubjective relations. To be sure, it could be argued that in Deleuze and Foucault, there is a lingering aestheticization of politics, which is vulnerable to the Hegelian critique of the ‘beautiful soul’, marvelling at the wonder of being amid disaster and ruin. ⁷⁶ Overall though, a consistent picture emerges: justice does not pertain to a moral theory prescribing universally valid rules of conduct, but to a (bio)politics that is intimately connected to issues of power, identity and production. Necessarily, this further implies a contentious aspect. Foucault, Derrida and Deleuze recognize this endemic facet of the (bio)politics of justice and, as said, sketch the outlines of a duality: on one side, structures of domination and exclusion resting upon the totalizing grip of identity; on the other, lines of flight and resistance, based on a pluralizing affirmation of difference. Unravelling this duality can offer a conceptual shape, hence an integral conception, to the diagrammatic lines that flesh out the becoming of justice. Whatever these diagrams may be, the theorization is resolutely materialist, mapping the emergence and becoming of justice into embodied forms, whose status as vectors of justice is intimately connected to their operational status as fulcrums and circuits of power. Such a materialist theorization also effectively integrates insurrection into its definition of justice without forcing it or devaluing it through an a priori normative judgement, as idealist conceptualizations do; for insurrection is a positive expression of the desire of justice, unravelling and operating like all other expressions though identifiable spatial coordinates and diagrammatic lines, irrespective of whether it leads to constitution.

Admittedly, the conception adumbrated operates at the level of a formal normativity, which necessarily suspends content to maintain its own integrity. On the other hand, in order for the formal idea of justice not to detach from its contents to the point that it becomes an empty abstraction, sooner or later theory must engage with the substantial differences between its material forms. Inevitably, in this context, the relation and relative merits of the different historical forms of actuality become topical. While post-structuralism serves to make a universal normative definition of justice unavailable, it does not necessarily yield political nihilism or relativism, regardless what the political commitments (or lack thereof) of post-structuralist thinkers may have been or the possibly insufficient theoretical clarification of these commitments from their side. In contrast, criteria for an immanent evaluation are available between reactive/productive, disabling/enabling and reactionary/progressive/revolutionary forms of justice, without excluding any of them from the formal conception that sets the frame of critique. Similarly, resources are provided for a coherent political vision of a just polity, based and indexed on the facilitation of multiplicity and difference, which are ontological requisites for justice to exist as a problem in the first place, without however discarding every notion of a collective good. Multiplicity is instead seen as a determination of a good life that is lived in community, while at the same time, its actualization is conceived as a collective endeavour, not a legal dispensation. These are of course suggestive points that need more unpacking. Still, the basic point is clear: similar to the way that it does not simply discard normativity, a nonreductive materialist theory of justice does not set out to denounce pluralism as ‘a bourgeois myth’ but attempts to overcome its liberal version while retaining its moment of truth.

A key aspect of such a critical sublation concerns a reflective accommodation of the violent moment when insurrection and constitution fuse and then differentiate, which liberal theories of justice mute or gloss in the name of the established rule of law. This in turn raises the issue of negativity; integrating forms of insurgency, like riots, as salient forms of the poetics of justice is one thing, coming to terms with the ‘labour of the negative’ such forms entail and perform is another – quite urgent, given how negative and reactive affects appear to be pervading popular experiences of justice today. Furthermore, another salient aspect in this context would be revisiting the onto-political dualism between subject and object, upon which liberal normativism is arguably premised. If the emergence and actuality of justice are pinpointed at the level of affective materiality, could its operational presence extend to nonhuman forms and if so how far?

In encountering these issues, it is not only the limits of liberal normativism but also those of post-structuralist thought that may have been reached. Post-structuralism offers one possible path for theorizing justice, which comes across and intersects with other paths of theorization, like liberal normativism and Hegelian/Marxian dialectics or other more recent trends like the ‘new materialisms’. A grand synthesis is most likely impossible; nonetheless, such encounters can be significantly more fertile than a sterile repetition of dogmatic, worn-out assertions: thinking (the problem of) justice with post-structuralism but also against post-structuralism.