Judgment beyond Jurisdiction: Spinoza’s “Freedom to philosophize” and the Politics of Immunity

I. Introduction

Modern political life is, above all, sheltered life. Several generations of critical theorists, from the Frankfurt School to French poststructuralists to current exponents of Italian biopolitical theory, offer versions of this diagnosis, with all its dialectical tension between security and vitality. The stock image of the overprotective parent captures something of that tension. If I try too hard to shield my child from harm, I may well sequester her from experiences that stimulate her capacities to survive and thrive independently. I can end up arresting her development, augmenting rather than alleviating her vulnerability. ¹ Consider some political variants of this “immunitary dialectic.” Horkheimer and Adorno trace its apocalyptic effects in their Dialectic of Enlightenment, where humanity’s endeavor to preserve itself through rational mastery over nature requires suppressing and ultimately destroying the fundamental nature of being human. ² Derrida, for his part, speaks of an “autoimmunity,” or suicidal tendency at the heart of democracy: on one hand, democracy’s intrinsically boundless capacity for self-critique invites anti-democratic polemic; on the other hand, in the name of protecting democracy from its enemies and the misuse of its freedoms, democratic governments routinely suspend democratic rights. ³ And with his Homo Sacer series, Agamben continues to develop his own, highly influential rendition of the dialectic. Here the immunitary apparatus of law, by capturing or including the “bare life” that it simultaneously excludes from the juridical-political order, serves as the very vehicle of sovereign domination. ⁴

Arguably, no one explores the conceptual tensions and historical dynamics of immunity as comprehensively as Roberto Esposito. Esposito’s “immunization paradigm” combines a theoretical argument about the semantic connection between ideas of immunity and community with a genealogical argument about the specifically modern character of immunization. ⁵ Etymologically, both immunity (immunitas) and community (communitas) derive from the term munus, which renders as “gift,” “duty,” or “obligation.” Whereas community expresses an affirmative relation to this root, as in an obligation to give a gift or to care for the other, immunity denotes an exemption from such obligations and their attendant risks. At its most elemental, immunity is “the power to preserve life.” ⁶ And this power assumes different historical guises: the salient political categories of modernity – sovereignty, property, and liberty – are but “the linguistic and institutional forms adopted by the immunitary logic in order to safeguard life from the risks that derive from its own collective configuration and conflagration.” ⁷ Modernity thus turns on, or is an invention of, the demand to preserve life. “Modern” describes the moment when immunization begins to serve not only as a “means toward achieving the good – the flourishing of a historical culture with its particular conception of what constitutes excellence and living well – but as the highest good, as what life in society is fundamentally about.” ⁸

According to Esposito, modern immunization passes through two phases. In the first, ideas and institutions of juridical order mediate between the political and biological domains, organizing collective existence around the basic imperative to preserve life. The second phase begins toward the end of the eighteenth century with the proliferation of governmental technologies that target public health, demographics, and urban planning. ⁹ These developments mark the emergence of biopolitics, whereby the maintenance and development of life becomes an immediately political object and politics comes increasingly to be patterned on biology and medicine. Biopolitical immunization turns lethal when articulated in the discourses of nationalism and racism (which focus on the ethnically defined body, be it individual or collective), transforming into a politics aimed at “curing” life by selectively exterminating “degenerate” portions of it. But if the genocidal project of Nazism represents the catastrophic apex of this thanatopolitics, the defeat of Nazism in no way entails the disappearance of immunitary rationality. On the contrary, the immunitary project persists and, following the Cold War, intensifies to such an extent that the need for exemption and protection becomes “the linchpin around which both the real and imaginary practices of an entire civilization have been constructed.” ¹⁰ Indeed, in current demands for protection – whether articulated in the language of epidemiology, immigration policy, or information technology – Esposito discerns an obsessive and excessive quality, a surplus of defense that generates more risk and more violence than it can possibly prevent. ¹¹ The notion of “preventive war,” war fought to avoid war, epitomizes the self-destructive bent of the contemporary condition. ¹²

Esposito insists, nonetheless, that the category of immunity harbors possibilities for emancipatory politics. Immunity’s negative trajectory is not its destiny. ¹³ Esposito’s conviction on this score contrasts with the overwhelmingly negative portrayal of the category in the critical theoretical literature as “a quintessential manifestation of state power.” ¹⁴ Ed Cohen distills the prevailing view:

Immunity suspends the binding of particular duties and responsibilities while maintaining the inviolability of the social bond. It negates the dissolution that threatens when supposedly constitutive obligations go unfulfilled by legally reattaching those exempted as immune. Thus immunity uses exceptions to the law to demonstrate that the law remains without exception. ¹⁵

Without denying its significance, Esposito maintains that this monologic of immunity is capable of being “converted” into the “singular and plural logic” of communitas. ¹⁶ He argues that a conversion of this sort entails recuperating in theory and practice the semantic node – the munus – that joins immunity to community, understood no longer as a locus of identity, belonging, or appropriation, but rather as plurality, difference, and alterity. ¹⁷ In this manner, immunity becomes “common immunity,” an immunity that fortifies community by augmenting the individual’s ability to interact with its environment. ¹⁸ When no longer simply separated and opposed, immunity and community take on a reciprocal relation, which, Esposito emphasizes, is precisely what one finds in the biological forms of immunitary tolerance at work in pregnancy and organ transplants. ¹⁹

Suggestive as Esposito’s sketch of “common immunity” may be, the political dimensions of the concept remain underspecified. Esposito concedes the difficulty of translating the idea of common immunity from a set of ontological prefigurations and biological metaphors into political terms, though he seems to understand this difficulty primarily as one of transforming a “philosophical formula into actual practice.” ²⁰ Complicating the issue, however, are some basic ambiguities at the conceptual level itself – in particular, Esposito’s equivocation on the specifically juridical status of immunity. At times, as in his recent deconstruction of the idea of the person, Esposito suggests that inherited juridical categories should be abandoned altogether in pursuit of a post-immunitary philosophy of impersonal life. ²¹ At other times, rather than call for a displacement of law, Esposito gestures toward a new way of thinking the “reciprocal immanence” of juridical norms and potentialities of life. ²² In each instance, he refers to but does not fully develop the contributions of Spinoza and Spinozists such as Canguilhem and Deleuze. ²³ So even though Esposito hints that “Spinozian juridical naturalism” takes immunity “beyond” the dialectic of protection and negation, he leaves unclear what immunity’s conversion from privative to productive might entail politically and how something like “common immunity” relates to the dominative (bio)politics of immunization. In what sense does Spinozism offer a perspective that is beyond modernity’s immunitary dialectic?

As an effort to gain some traction on this question, this article turns more directly to an examination of Spinoza’s political and metaphysical thought. ²⁴ I argue that Spinoza’s treatment of the “freedom to philosophize” (libertas philosophandi) offers a window onto the plural politics of immunity – that is, the institutions and practices that convert immunity, “the power to preserve life,” into tendentially dominative and emancipatory forms. Understood initially as an academic freedom, Spinoza recasts libertas philosophandi as a political immunity, a freedom for all to think and speak, or, in a word, judge (Section II). The key interpretive question for the purposes of this article is how to construe the political character of this immunity. My answer is that Spinoza’s approach to libertas philosophandi puts into relief two distinct modalities – I call them jurisdiction and jurisprudence – by which agents come to envision and enact judgment as a political immunity. The state’s sovereign authority to determine matters of public utility stands as the paradigmatic form of jurisdiction, in contrast to the exemplary case of jurisprudence, citizens’ right to “philosophize” or judge publicly the utility of the state’s laws (Section III). To specify the relationship of jurisdiction to jurisprudence, and so to clarify the sense in which the latter goes “beyond” the former, I examine how Spinoza connects the right to judge to an idea of “surplus power” (Section IV). Key features of my exposition, particularly the emphasis on common potentiality as a fund for creative resistance, bear a strong resemblance to Antonio Negri’s influential reading of Spinoza, and so in the final section of the article I offer a brief reflection on the key differences and stakes of our respective interpretations (Section V).

II. Immunizing the “Freedom to Philosophize”

To develop a feel for the conceptual innovation Spinoza performs with his “freedom to philosophize,” I begin by situating the term in its intellectual and historical milieu. Ultimately, this contextualization helps to reveal how Spinoza’s writings resist a tendency, prevalent in both his own day and the present, to vindicate freedom by immunizing it. As Esposito notes, echoing arguments found in Foucault, Arendt, and Marx, among others, the mainstream of modern political thought imagines freedom as “that which insures the individual against the interference of others through voluntary subordination to a more powerful order that guarantees it.” ²⁵ Spinoza has long been read – in continental theory, at least – as a counterpoint to this individualistic line of thinking. Even so, the full measure of his challenge to modernity’s subjectivist image of freedom remains unthought so long as contemporary readers continue to reinscribe his conception of libertas philosophandi within a negative horizon of meaning – a point to which I will return below.

Two discourses are particularly important for my contextualization of Spinoza: first, the academic debates of the mid seventeenth-century Netherlands in which libertas philosophandi gained currency; and second, the long-standing dispute in the Dutch Republic over the relative authority of Church and State, particularly on the right of religious practice (jus circa sacra). Connecting the two discourses is a problem of judgment that Leibniz famously characterized as the defining issue of the period in Europe, namely, the question of the “judge of controversies.” Who or what is to serve as the last judge in the interpretation of scriptural truth? In civil disputes? In conflicts between governors and governed? Who, in short, is the judge of controversies? This is the question, Leibniz proposed, upon which “the decision, conclusion, results, and effects of other controversies depend.” ²⁶ That Leibniz framed a diverse set of debates over sacred and secular matters alike as a second-order problem of authoritative judgment testifies not only to his personal ambitions to reconcile the post-Westphalian split between politics and religious morality on a higher metaphysical plane. ²⁷ It also points to a broader tendency in the intellectual culture of mid-to-late seventeenth-century Europe to approach the controversial relationship between philosophy and theology in juridical-political terms as a question of jurisdiction. ²⁸

Decoupling the study of nature from the explication of God’s purposes promised to open up unexplored avenues of scientific discovery. At the same time, this proposed separation sparked new quarrels over philosophy’s potential subversion of theology. In the Dutch Republic, the key disagreement on this issue was between orthodox Calvinist theologians and advocates of Descartes’ novel metaphysics and method. Whereas the former defended Aristotelianism as the only philosophy consistent with revealed religion, denouncing Cartesianism for what they saw as its implicit skepticism, atheism, and pretensions to liberate philosophy from its traditional role as ancilla theologiae, the latter defended the Cartesian investigation of nature as independent of theology and consistent with the essential teachings of the Bible. ²⁹ The polemic between these groups initially became a political matter insofar as it raised questions about the power structures of the universities, which fell under the jurisdiction of the government. ³⁰ In one key instance, the States of Holland (a parliamentary body) was forced to declare an “Order relating to the entanglement of theology and philosophy and to the abuse of the freedom of philosophizing to the detriment of Scripture.” ³¹ The law stipulated that the spheres of philosophy and theology were not to interfere with one another. Where overlap and contention might arise, philosophers were to avoid interpreting Scripture “according to their principles” and instead defer to theologians. ³² Defining the freedom to philosophize as the freedom to engage solely in inquiry regarding the natural properties and causes of things, the States’ edict codified a signal feature of the Cartesians’ platform while temporarily mollifying their theologian critics. ³³

By the time of the States’ edict on philosophizing (1656), however, the question of the relationship between theology and philosophy had stirred a much broader controversy over public order. A new cohort of “radical Cartesians,” working largely outside of the academy (and often publishing in the vernacular), had begun to apply the spirit if not the letter of Descartes’ system to hotly contested questions of biblical hermeneutics and the relative authority of church and state in public life. ³⁴ These freethinkers were reacting to what they saw as the Calvinist ministry’s undue influence over both the civil magistracy and the larger public – an influence acquired in part through the strategy of claiming ever more topics and issues, from the details of personal lifestyle to those of cosmology, as falling under the purview of theology. Against this “theologization,” the republican-minded coterie of amateur Cartesians sought to radicalize the mainstream Cartesian immunization strategy, seeking protection not only for the philosophical reasoning of professional scholars but for individual reasoning as such. They saw the academic “separation” of theology and philosophy as insufficient for this purpose. As far as these radical Cartesians were concerned, the authority of the clergy needed to be controlled by the power of the state if individual freedom was to be guaranteed. Academic Cartesians had remained studiously agnostic on questions of politics and religion when defending the freedom to philosophize. Their radical counterparts, however, were at pains to forge an indissociable connection between the toleration of individual thought and the state’s absolute right over religious practice (jus circa sacra). Consider the 1665 tract, De Jure Ecclesiasticorum, published under the pseudonym Lucius Antistius Constans. Among its central claims, De Jure Ecclesiasticorum proposed that reason, not divine will, is the supreme organizing principle of the state; that reason demonstrates individuals must transfer their “right and power” (jus et potestas) to a supreme civil authority; and that clergy are merely functionaries, designated at the behest of the civil sovereign to administer external rites of religion (jus circa sacra). ³⁵

Although the argument for the state’s jus circa sacra was by no means a new one, radical Cartesian thinkers found in Hobbes a new theoretical guarantee or justification. Constans’ tract is particularly interesting, in this regard, because it reveals the radical Cartesians’ quandary of using Hobbes’s theory of sovereignty to safeguard individual freedom of thought. Hobbes had unified religious and political authority in the “Publique Reason” of the sovereign, to whom all subjects owed their unconditional obedience. Nevertheless, Hobbes had conceded the impossibility of commanding the “internall and invisible” aspects of faith and belief: “A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart … But when it comes to confession of that faith, the Private Reason must submit to the Publique.” ³⁶ In De Jure Ecclesiasticorum, Constans mapped Hobbes’s distinction between the internal and external religion rather crudely onto a division between the mental and the physical. ³⁷ This permitted Constans to vindicate freedom of thought in a strict sense. All external religion was of the order of the controllable, and it was also all that mattered for the peace and security of the state. ³⁸ One’s freedom to believe and to doubt remained an inviolable right, proper to the individual. At the same time, Constans’ schema afforded no place in public life for the judgment of citizens. For any such expression proceeded through speech or writing and therefore the physical medium – precisely the sphere over which the sovereign held exclusive jurisdiction. ³⁹

With Spinoza, however, the idea of the freedom of philosophizing re-emerged from the interiority of individual conscience, where radical Cartesians like Constans had enclosed it in arguing for the indivisibility of sovereignty. Moreover, in marked contrast with the narrowly academic justifications for libertas philosophandi furnished by professional philosophers, Spinoza broke new ground by defending the freedom to philosophize publicly as a public freedom. ⁴⁰ As announced in its full title, the Theological-Political Treatise’s core thesis is that “the freedom to philosophize not only can be granted without harm to piety and the peace of the republic, but also cannot be taken away without destroying the peace of the republic and piety.” Spinoza’s “politicization” of the freedom to philosophize raises an important question for my purposes. If his conception of libertas philosophandi carries an unmistakably political charge as an immunity, in what precise sense does this immunity bear on political life? To put this another way, in what sense does Spinoza’s libertas philosophandi operate “beyond” sovereign jurisdiction?

Most of the Anglophone literature on Spinoza answers this question in a way that casts him as “an eccentric Hobbesian.” ⁴¹ Spinoza is said to extend Hobbes’s notion of individual judgment or “private reason” from the inner mental sanctum to the outer forum, and from an immunity granted primarily for religious conviction to a broad protection of any “conscientious judgment,” including all manner of philosophical opinion. ⁴² Thus, on the standard view, Spinoza’s defense of the freedom to philosophize combines a “separation thesis” (philosophy/theology) with a “single authority thesis” (state > church) in support of a “principle of toleration” (politics/philosophy). ⁴³ In other words, Spinoza’s separation between theology and philosophy presupposes a unification of theology and politics in the figure of a sovereign who wields exclusive jurisdiction over both civil and religious law. The right of the sovereign, and hence the integrity and stability of the state, hinges in turn on the state’s ability to secure a certain autonomy or separation of philosophizing from politics, a right of subjects to think and speak freely – that is, without interference – so long as they act in accordance with the law.

Without yet saying anything more specific about the nature of these key separations – theology from philosophy and philosophy from politics – what I want to highlight here is the immunitary cast that judgment takes in this scenario. On one hand, political judgment assumes the sovereign form of a judge of controversies (or of Hobbes’s “Publique Reason”). On the other hand, the freedom to philosophize, understood as conscientious judgment, occupies the negative space of sovereign jurisdiction, positioned beyond the coercive power of the state but within the right and power of each individual to form and express his opinion. If libertas philosophandi translates here into a quintessentially intellectual freedom, it is at best an instrumentally political one, i.e., a subjective right or civil liberty guaranteed by the sovereign power of the state.

In my view, this standard interpretation of Spinoza’s freedom to philosophize is not so much incorrect as it is inadequate or partial. It moves within the theological-political (and immunitary) terms that organize the primary argumentative thread in the TTP, but it elides a crucial sense in which Spinoza’s text poses a challenge to those very terms. In what follows, I argue that Spinoza’s freedom to philosophize operates not simply as an immunity set in opposition to the political dimension, a freedom from political jurisdiction, but also as a constitutively political freedom that resists rather than reiterates the immunitary logic of jurisdiction.

III. Jurisdiction and Jurisprudence

On my reading, Spinoza’s treatment of the freedom to philosophize juxtaposes two basic senses of judgment as a political immunity. Envisioned and employed in a theological-political key, judgment takes the authoritative form of jurisdiction: one sovereign agency maintains the right and power to make legal decisions and judgments – to speak the law – whereas private citizens possess a freedom to philosophize insofar as their judgments on particular matters (e.g., the nature of their faith) are recognized by the sovereign to be immune from the dictates of law. In this schema, libertas philosophandi refers to a freedom of judging that presupposes obedience to law more broadly. To put it another way, the freedom at stake in philosophizing is that of interpreting how best to assume responsibility as a subject of law. The more prominent argumentative thread in the TTP operates in this register. Here Spinoza defends the freedom to philosophize by taking its critics on their own terms, viz., the dominant discourses of faith (theology) and of the state (political theory). He thereby defines and defends libertas philosophandi on the grounds of what faith and political order permit and prohibit. Spinoza’s general formulation of the freedom to philosophize asserts that “in a free republic, everyone is permitted to think what he wishes and to say what he thinks” (TTP 20 title). Schematically, his chief concern in the theological chapters (1–15) is with freedom of thought or belief (thinking what one wishes); in the political chapters (16–20) his concern broadens to include freedom of expression (saying what one thinks). The separation between these freedoms is only analytical. Spinoza goes on to insist that, in reality, the freedom of thinking and speaking are effectively inseparable. By the conclusion of the TTP, he tends to combine them simply to speak simply of “freedom of judgment.” Likewise, Spinoza shows the domains of piety and peace to be practically indistinguishable in that they comprise a single public sphere, or civil order. This helps to account for the composite expression that appears in the treatise’s title page, which asserts that one is to find therein a theological-political vindication of the freedom to philosophize.

However, in Spinoza’s discourse, libertas philosophandi also comes to be understood and enacted in a political-philosophical key. In this case, freedom of philosophizing-cum-judging takes what I shall call a jurisprudential form. Consistent with the initial meanings of “prudence,” jurisprudence consists of a certain savoir-faire that ordinary individuals exercise when judging how to preserve and enhance their ability to think and act in the world. Spinoza sometimes refers to this type of judgment as cautio, and treats it as synonymous with “the exercising of human freedom,” which, he adds, “is not a form of obedience” (TP IV.5). What this small but significant qualification underscores is that the grammar of jurisprudence is not essentially moral; it does not speak, as jurisdiction does, of permission and prohibition. As a consequence, the key political-philosophical question animating Spinozist jurisprudence is a query about how best to participate in common potentiality. Indeed, far from simply presupposing obedience, jurisprudence necessarily calls it into question. If jurisdiction speaks the law, jurisprudence always in some form speaks against it.

IV. The Right to Judge as Common Immunity

I am now in a position to offer a fuller answer to the question of the relationship between jurisprudence and jurisdiction – and more specifically, the question of how the former constitutes a “judgment beyond jurisdiction.” This “beyond” relates to the excessive nature of judgment, its status as a “surplus power” that Spinoza calls, simply, affect. It helps here to recall his assertion that “no one, even if he wishes to, is able to give up” their natural right to judge (TTP 20.566; my emphasis). Though at first glance this claim seems merely to rehearse familiar arguments about the inalienability of individual thought or conscience, the crucial difference is that Spinoza understands the “inalienability” of judgment as a function of the improper potentiality of affect. “Most basically,” writes Hasana Sharp, Spinoza’s conception of “affect refers to a universal power to affect and be affected, to the fact that finite beings enhance and diminish one another’s power necessarily, by virtue of their inescapable interdependency.” ⁵⁷ So rather than ground the natural right to judge in a subjectivist metaphysics, where the individual is proprietor of himself, Spinoza situates this right in a relational ontology of power, where the right of each thing is but one element in an infinite chain of causal determinations – or, affections – that are beyond the control of any individual agent or agency. ⁵⁸ From Spinoza’s political-philosophical perspective, then, the right to judge is inalienable insofar as it is necessarily common.

My suggestion is that the politics of immunity in Spinoza’s TTP take shape as divergent approaches to this affective “surplus” of judgment. What I have described as Spinoza’s more prominent thread of argumentation, his theological-political defense of libertas philosophandi, builds a rule of governance – or even, of governmentality – on the recognition that judgment is a phenomenon that cannot be controlled. Judgment escapes the direct command of the state because it escapes the direct command (“will”) of subjects themselves (TTP 20.567). As Spinoza puts it in the Ethics, “nothing is less within men’s power than to hold their tongues” (EIII2s). ⁵⁹ Despite their theoretically absolute power, sovereigns cannot prevent individuals from judging everything according to their own temperament (ingenia), which is itself disposed in a multiplicity of ways by ambient networks of affect. To command over judgment one would need to prevent individuals from being “affected with this or that affect,” which, as Spinoza notes periodically in the TTP, would be tantamount to destroying individuals qua individuals (TTP 20.566). Given the irreducible multitude of judgments in society, a simple decree prescribing or proscribing certain opinions will be ineffective. Moreover, it will be imprudent policy because most individuals, most of the time, believe that they can decide at will what to think and say. The experience of judgment, in this sense, epitomizes the common fiction that individuals tend to maintain about freedom (as lack of constraint), a fiction born of the coincidence between consciousness of one’s action and ignorance of the causes by which one is moved to act (EIII2s). Any overt attempt to deprive individuals of this imagined freedom will tend to generate resentment among the populace and trigger a vicious cycle of revolt and repression (TTP 20.569). ⁶⁰ Consequently, the state “can pursue no safer course than to regard piety and religion as consisting solely in the exercise of charity and just dealing, and … the right of the sovereign, both in religious and secular spheres, should be restricted to men’s actions, with everyone being allowed to think what he will and say what he thinks” (TTP 20.572).

The Spinozist state governs less by laws that command obedience and prohibit sedition than by interventions in the affective lives of subjects that induce obedience and inhibit sedition (cf. TP X.8). For even though, strictly speaking, the right to judge cannot be controlled, it remains subject to subtler and more indirect techniques of governing. Spinoza pays particular attention to this art of governing in chapter 17 of the TTP, where he asserts that “minds are to some degree under the control of the sovereign power, who has many means of inducing the great majority to believe, love, hate etc. whatever he wills …” (TTP 17.537). Spinoza takes care to note that this form of governance can never become absolute: such power over minds is sometimes reinforced and other times usurped by other agents and agencies in society – e.g., churches, universities, or charismatic leaders. Still, his key point is that the state is a dynamic form that must continue to make itself the dominant authority by converting the surplus power of judgment – an affective power that circulates between individuals as it constitutes them – into an immunity for which it serves as guarantor. This process amounts to a neutralizing appropriation, a conversion of the power between individuals into a power over them. Individual judgment remains here a negative immunity: free insofar as it negates the negation of jurisdiction. The lawful way to do this, of course, is by expressing an opinion, a “conscientious judgment,” that remains one’s “own” and yet consistent with the basic requirements of the social contract, including the sovereign’s jurisdiction over public affairs. Alternatively, a subject can react to the dictum of the common law by attempting to “be his own judge,” i.e., to disobey, which in its own way repeats the sovereign’s logic of immunity and further justifies the violence of the state (TTP 20.568; TP III.3).

Beyond its status as the arcanum of the state, however, Spinoza thinks the surplus power of judgment affirmatively as a common source of fortification that enables resistance to dominative powers. In this affirmative or active sense, judgment operates as a constituent power of critique. Spinoza opens such a possibility when he explores how judgment constitutes a “virtue” or power in its own right, not so much immediately but gradually through the circulation of opinions. In society, the communication of irreducibly diverse affects – which vary according to the singular circumstances and dispositions of the bodies (and, in parallel, ideas) interacting – makes for a correspondingly diverse field of opinions. Since “everyone according to his affect judges what is good, what is bad, what is better and worse, it follows that men vary as much in judgment as in affect” (EIII51s). Or, in more colloquial terms: “opinions vary as much as tastes” (TTP 20.566). For Spinoza, the common circulation of diverse opinions serves as the condition for individuals’ mental fortitude because it allows them to discover what is “useful” (utile). Useful is that which disposes the body to affect and be affected in increasingly many ways, and which concurrently disposes the mind to become increasingly perceptive (EIV38, EII14). In this connection, Spinoza underscores the enabling and ennobling effects – the peculiar “utility” – of public deliberation:

[W]hen a few decide everything according to their pleasure alone, freedom and the common good are lost. The fact is that men’s wits are too dull (humana ingenia hebetiora) to be able to penetrate through everything all at once, but by discussing, listening to others, and debating, their wits are sharpened (acuuntur), and by exploring every avenue they eventually discover what they are seeking, something that meets general approval and that no one had previously thought of (TP IX.14).

Spinoza conjures a particularly vivid image here. Individuals’ ingenia, their “wits,” or intellectual dispositions, remain hebetiora, “dull,” sluggish, or inactive unless they engage with those of others. Such a deliberate and deliberative engagement generates new ideas and, perhaps more significantly, stimulates and sharpens participants’ powers of intelligence. Spinoza’s verb, acuere, which, aside from “to sharpen,” renders as “to stir emotionally” and “to tune,” conveys an image of consensus process properly understood – i.e., an activity that generates commonality not in spite of but through and across singular differences.

In this light, Spinoza’s insistence that the best citizens use reason alone to criticize the state functions as more than just a plea to act in accordance with some supra-sensual norm of rational communication. ⁶¹ (And so the effects of this “norm” need not redound solely to the benefit of state power.) His rationalist “proviso” serves also and more fundamentally as a defense of the reason for political society, namely, the “utility” of joining forces with others so as to preserve the vitality or development of power (potentia). The formulation he offers in his Ethics, that “nothing is more useful to man than man (homine nihil homine utilius),” extols the supreme virtue of individuals harmonizing in such a way “that their minds and bodies should compose, as it were, one mind and one body” and that “all together … seek for themselves the common advantage (utile) of all.” For “men who aim at their own advantage under the guidance of reason seek nothing for themselves that they would not desire for other men” (EIV18s). The commonality that Spinoza invokes in these contexts operates more as a premise than a promise, more as a project than a property. What rational individuals desire for themselves and others is greater power to think and act. This is, in essence, the “highest good” that Spinoza characterizes as the knowledge and love of nature/God, a good that “is common to all and can be shared by all” because it is not some one thing but the “virtue” or power of intelligence (EIV36, EIV24). The right to become sui juris, maximally possessed of one’s own potentialities, is virtually inclusive of all others’ rights.

Jurisprudence, then, emerges as a reflection on the “utility” of one’s rights as held in common, an activity that composes a new common sense and a new sense of common potentiality. Put in more expressly juridical terms, the activity of jurisprudence is one of constituting a common or radically public right. As I have indicated throughout, this modality of judgment does not operate in the legislative manner of the sovereign. Nonetheless, in reflecting on utile, jurisprudence furnishes, each time anew, the norm of itself and its opposite, of the conditions that enable (or arrest) the development of common power. Hence the fundamentally critical aspect of this right to judge: citizens who demonstrate that a given law runs against “sound reason,” i.e., citizens reflecting critically on the utile of positive law, participate in the creation of a dissensual common sense. They inscribe a new idea of the common within and against the given distribution of rights and roles in society (TTP 20.568). The immanent norm of utile, of equal empowerment, becomes in this respect a weapon for opposing all that constricts citizens’ agency, for challenging all images and institutions of political community – whether or not they are duly constituted or justified on grounds of peace, order, and security, etc. – that operate in some way as sources of stultification and mortification. Thus, jurisprudence operates “beyond” jurisdiction in an affirmative manner by generating a common immunity to domination, including and especially that of the state. And crucially, jurisprudence subverts rather than reiterates the negative logic of immunity by affirming another immunity in common: a right or immunity that builds resistance through (affective) contagion rather than negation, and a commonality that forms through processes of alteration rather than assimilation.

V. Coda: Agonism or Accumulation?

The figure of “jurisprudence,” as I have sketched it, outlines an answer to the article’s initial question about Spinozism as an egress from the immunitary dialectic of political modernity. I took as my immediate provocation some of Roberto Esposito’s recent formulations of an affirmative biopolitics. But arguably, the project of employing Spinoza’s thought to illuminate an alter-modernity or counter-tradition has been most forcefully and consistently pursued by another Italian thinker, Antonio Negri. So my approach in this article inevitably raises a question about how my reading of Spinoza might stand as an alternative to the alternative Spinoza found in Negri’s writings. Moreover, my substantive emphasis on the creative resistance of a radically democratic or constituent power places my interpretation close to Negri’s reading of Spinoza’s potentia as production of the common (in both senses of the genitive). In Negri’s telling, the “common is a surplus, a potency that mankind has constructed, and that it can go on constructing in the gesture that frees it from command and exploitation.” ⁶² Here one sees the signature of Negri’s Spinozism: the surplus or asymmetry between an immanent, constitutive, insurgent potentiality (potentia) and the parasitical operations of a transcendent, constituted, sovereign power (potestas). Leaving a more sustained engagement with Negri for another occasion, I want to end the present article by briefly juxtaposing our respective positions on this one point, namely, the status of surplus power in Spinoza.

For his part, Negri understands this surplus through a paradigm of production and accumulation. This is evident in his recent claim that, “in Spinoza, the productive forces produce the relations of production,” a formulation that harks back to the potentia vs. potestas dynamic at the heart of Negri’s exposition of Spinoza in the Savage Anomaly, and to Negri’s subsequent synthesis of Spinoza’s ontology with Marx’s conception of living labor in Insurgencies. ⁶³ The same formulation also points to the biopolitical twist he and Michael Hardt have given to the idea of constituent power, which appears in their Empire trilogy as “biopolitical production” (of forms of life, knowledge, social relations, and affects) that necessarily exceeds and resists global apparatuses of subjection and control. ⁶⁴ In each instance, the basic schema is that of an “absolute antagonism” between multitudinous power (forces of production), on the one hand, and sovereign power (relations of production), on the other. ⁶⁵ The former produce the latter in the sense that every incarnation of sovereign power is in reality nothing other than a corrupt form of immanent potentiality. Adamant that “the political thought of Spinoza is to be found in his ontology,” Negri holds that “in Spinoza the political is … a potency exceeding all measure … an accumulation not of substantial (individual) segments but of modal (singular) potencies.” ⁶⁶ However, as critics note, Negri’s insistence on the ontological and absolute character of this surplus potency tends to absolve it from any essential relation to the governmental forms of capture, control, and regulation that are said to be its (illusory?) products. ⁶⁷ As a consequence, a persistent problem for Negri is how to account for the endurance of state or constituted powers in specifically political rather than ontological or economic terms. ⁶⁸ State power appears in his writings mostly as the passive accumulation of common potentiality, a temporary blockage or fetter on constituent processes.

In contrast to Negri’s production/accumulation paradigm, I have approached surplus power in Spinoza through a paradigm of agonism so as to put into relief competing strategies or politics of immunity. Jurisdiction and jurisprudence thus represent two interrelated but distinct ways of interpreting and employing the affective surplus of judgment. Jurisdiction combines a sovereign power of decision with a pastoral power of governing subjects in a tolerant or non-repressive fashion. Here the state endeavors to neutralize and integrate the expansive force of its constituents’ conatus, their natural striving to judge and pursue what is conducive to their empowerment, by interpreting it as if it were a desire to secure “conscientious judgment” as the inviolable property of each individual. In this fashion, the state actively resists its disintegration, inviting subjects to affirm their freedom of judgment in a specific and selective way as a form of free responsibility, that is, as a form of obedience. Through and in the activity of jurisprudence, however, citizens resist the state’s integral ordering of political life, reappropriating the common “utility” of affective surplus power via judgments that generate a new political constitution, a new sense and scope of common affairs. The conflictual encounters between jurisdiction and jurisprudence emerge, then, as struggles over the creation of new legal relations and not just new relations of production. Viewed in this manner, juridical norms and potentialities of life find an internal and affirmative relationship beyond the strictures of a base/superstructure schema. ⁶⁹