Criminal justice has turned into an “organic regime” dependent on a battle metaphor that populates everyday acts of communication. Due process, prosecutor vs. defendant, access to a lawyer all point back to a collection of master signifiers that construct reality through values of stability, predictability, and control. This regime of signs creates the very foundation for criminalization through the placement of certain bodies into discursive subject positions, categorically organizing life into a control society.
Milovanovic7 (Dragan Milovanovic is a distinguished PhD research professor in the Justice Studies Program at Northeastern Illinois University and also the editor of the International Journal for the Semiotics of Law, “Diversity, law, and justice: A Deleuzian semiotic view of ‘criminal justice’” in The International Journal for the Semiotics of Law, March 2007, Pgs 64-67)
3. Organic regimes: criminal justice Let us briefly look at five contemporary models of criminal justice practices. Each, I argue, is compatible with the logic of the ‘‘organic regime’’ of signs that Deleuze spells out in his two-book set on cinema, Cinema 1: The Movement-Image (1986) and Cinema 2: The Time-Image (1989). The organic regime is more concerned with identity, linearity, unity, determinism, predictability,totality. Packer28 has provided a convenient comparison of the due process model and the crime control model underlying existing criminal justice systems in the U.S. The due process model follows the logic of Max Weber’s formal rationality ideal type in law.Here, formality is of highest value: formal fact finding; opportunity to be heard, to confront witnesses, to cross examine, to a neutral fact-finding body, to access to a lawyer, to appeal. Adversarial fact-finding, with opposing lawyers clashing for the truth would assure that the ‘‘what happened?’’ will be established beyond a reasonable doubt. The crime control model, however, has different values. It values informalism in identifying as much crime in society as possible and in its prosecution. Efficiency is its call. Efficiency depends on speed. Informality and stereotyped procedures in assembly line forms of justice rendering best assure that a high conviction rate is obtained. The working presumption is not innocence until proven guilty but its reverse: guilty until proven innocent. Its informality can be likened to Max Weber’s29 substantive rational or substantive irrational ideal types of law. Plea bargaining is but one of its essential instruments. In both these models, according to Griffith,30 a battle metaphor is being employed. There are contestants, there are winners and losers, there is one truth, there is a clean separation of law breaker and victim, there is no inherent mechanism for individual or social repair.These battle metaphors are supportive of master signifiers that are in line with it. Thus we can see how Deleuze’s notion of regimes of signs may reflect each approach, crime control and due process model, but ultimately, the battle metaphor is productive of master signifiers which captures various sentiments by its participants. Said in another way, master signifiers populate the arena of crime fighting in particular ways. Drawing from Lacan’s discourse of the master and discourse of the university, we could argue that participants, whichever ‘‘side’’ they are on, are offered discursive subject positions within particular regimes of sign whereby some realities are constructed, others are not. A third model of responding to harm is the actuarial model. 31 Having affinities with the crime control model, its focus is on prediction and maximizing efficiency in processing.It is risk management. It focuses on statistical analysis and probabilities. Thus it employs an accounting model. We thereby have highly trained specialists statistically examining potential risk cases in the aggregate. No fault law and strict liability are some of its derivatives. We also have predictive instruments for assessing dangerousness, for preventive detention practices, profiling (formal and informal), and especially since ‘‘9–11’’ extensive forms of surveillance of ‘‘problem populations.’’ Again, we see that the regimes of signs that emerge are clearly delineated. Master signifiers are reflective of actuarial practices.The actuarial metaphor subsumes oppositional views to simply one of the variables in statistical analysis that can be accounted for. A fourth model of responding to harm has been developed by Griffith32 in his family model. The family metaphor envisions society as a family, and its citizenry, the children. Occasionally, in this metaphor, children make mistakes and need to be held accountable for their actions. We punish them, but then bring them back into the family with love and care. Never do we allow their standing of law breaker to reach the level of a master status. Griffith attempted to break away from the narrow thought of those in the battle model. He wanted to establish a more humane, more conciliatory model. The battle model was predicated on ‘‘disharmony, fundamentally irreconcilable interests, a state of war.’’33 A family model, Griffith tells us, needs a new vocabulary, a new language. ‘‘Crime’’ and the ‘‘offender’’ are merely categories created by society, invested with various commitments by those in law enforcement and outside of it. Griffith34 argues against the exile function of the battle model and advocates ‘‘cooperative, constructive, conciliatory’’ responses. Thus for Griffith, master signifiers would follow the family metaphor. Again, a regime of signs would reach stability within which persons would have discursive subject positions from which to speak in ongoingly creating a model that represents the family. Of course, we could further our inquiry and ask about the basic paternalism being also incorporated, the basic privileging of the father’s voice in dominant familial practices, subjecting the child to minimal responsive discursive subject positions.35 The fifth, and final model is restorative justice. Its more formal beginnings can be traced to the early 1990s. Much of its focus has been derived from indigenous ways of problem solving as well as Quaker’s philosophy of social justice. The family model, too, has affinities with it. The basic model is the victim–offender mediation program. Here the five elements include: the meeting (those in conflict meet); narrative (each presents her/his story); emotion (each has a forum within which to express emotions); understanding (the emergence of empathy); and agreement (a resolution to the conflict is established). Resolution includes: amends, apology, behavioral change, restitution, and generosity.36 The focus is on restoring the person (victim and offender, or disputants) back into society. In this model, the regime of signs includes master signifiers that diverge substantially from the crime control, due process, and actuarial model.Realities created, arguably, are more reflective: there is more participation by the disputants; a greater range of diversity is supposedly manifest; and studies indicate that these programs are ‘‘working’’ as measured by such criteria as happiness with results. A few recent books37 and several recent articles have subject this perspective to highly critical analysis. For our purposes here, we merely focus on the regime of signs that this practice creates, and within which particular discursive subject positions operate. A key critique has been that restorative justice is but another form of a disciplinary mechanism, first encouraging participants/disputants to use the language of mediation, and secondly, should they diverge, subject them to punishment – a return to traditional practices.
Semiotics has preceded materiality. The content of a “prison” points towards notion of “delinquency” as a way to direct the social sphere towards classifying and punishing criminals. Molecular formations of power have stratified subjects in accordance to language and signs as a way to mark bodies within an expression that points back towards the “prison” as the organizing force of justice and law.
Deleuze and Guattari 80 (“A Thousand Plateaus”, France’s hottest hip-hop duo and possibly hung out with Baudrillard, pg. 66-68)
Signifier enthusiasts take an oversimplified situation as their implicit model: word and thing.From the word they extract the signifier, and from the thing a signified in conformity with the word, and therefore subjugated to the signifier.They operate in a sphere interior to and homogeneous with language. Let us follow Foucault in his exemplary analysis, which, though it seems not to be, is eminently concerned with linguistics. Take a thing like the prison: the prison is a form, the "prison-form"; it is a form of content on a stratum and is related to other forms of content (school, barracks, hospital, factory). This thing or form does not refer back to the word "prison" but to entirely different words and concepts, such as "delinquent" and "delinquency," which express a new way of classifying, stating, translating, and even committing criminal acts. "Delinquency" is the form of expression in reciprocal presupposition with the form of content "prison." Delinquency is in no way a signifier, even a juridical signifier, the signified of which would be the prison. That would flatten the entire analysis. More over, the form of expression is reducible not to words but to a set of statements arising in the social field considered as a stratum (that is what a regime of signs is). The form of content is reducible not to a thing but to a complex state of things as a formation of power (architecture, regimentation, etc.). We could say that there are two constantly intersecting multiplicities, "discursive multiplicities" of expression and "nondiscursive multiplicities" of content. It is even more complex than that because the prison as a form of content has a relative expression all its own; there are all kinds of statements specific to it that do not necessarily coincide with the statements of delinquency. Conversely, delinquency as a form of expression has an autonomous content all its own, since delinquency expresses not only a new way of evaluating crimes but a new way of committing them. Form of content and form of expression, prison and delinquency: each has its own history, microhistory, segments. At most, along with other contents and expressions, they imply a shared state of the abstract Machine acting not at all as a signifier but as a kind of diagram (a single abstract machine for the prison and the school and the barracks and the hospital and the fac tory . . . ). Fitting the two types of forms together, segments of content and segments of expression, requires a whole double-pincered, or rather double-headed, concrete assemblage taking their real distinction into account. It requires a whole organization articulating formations of power and regimes of signs, and operating on the molecular level (societies characterized by what Foucault calls disciplinary power).29 In short, we should never oppose words to things that supposedly correspond to them, nor signifiers to signifieds that are supposedly in conformity with them. What should be opposed are distinct formalizations, in a state of unstable equilibrium or reciprocal presupposition. "It is in vain that we say what we see; what we see never resides in what we say."30 As in school: there is not just one writing lesson, that of the great redundant Signifier for any and all signifieds. There are two distinct formalizations in reciprocal presupposition and constituting a double-pincer: the formalization of expression in the reading and writing lesson (with its own relative contents), and the formalization of content in the lesson of things (with their own relative expressions). We are never signifier or signified. We are stratified. The preferred method would be severely restrictive, as opposed to the expansive method that places signs on all strata or signifier in all signs (although at the limit it may forgo signs entirely). First, there exist forms of expression without signs (for example, the genetic code has nothing to do with a language).It is only under certain conditions that strata can be said to include signs; signs cannot be equated with language in general but are defined by regimes of statements that are so many real usages or functions of language. Then why retain the word sign for these regimes, which formalize an expression without designating or signifying the simultaneous con tents, which are formalized in a different way? Signs are not signs of a thing; they are signs of deterritorialization and reterritorialization, they mark a certain threshold crossed in the course of these movements, and it is for this reason that the word should be retained (as we have seen, this applies even to animal "signs"). Next, if we consider regimes of signs using this restrictive definition, we see that they are not, or not necessarily, signifiers. Just as signs designate only a certain formalization of expression in a determinate group of strata, signifiance itself designates only one specific regime among a number of regimes existing in that particular formalization. Just as there are asemiotic expressions, or expressions without signs, there are asemiological regimes of signs, asignifying signs, both on the strata and on the plane of consistency. The most that can be said of signifiance is that it characterizes one regime, which is not even the most interesting or modern or contemporary one, but is perhaps only more pernicious, cancerous, and despotic than the others, and more steeped in illusion than they.
Images of thought based in law and justice populate the organic regime, allowing for the belief in stable formation and subjectivity as a way to bring the next harmonious free society. This linear view of truth and representation seen through trials and investigations creates principles of coherence and stability that label themselves as the bringer of peace and order in the face of chaos, permeating every level of thought, action, and communication.
Milovanovic7 (Dragan Milovanovic is a distinguished PhD research professor in the Justice Studies Program at Northeastern Illinois University and also the editor of the International Journal for the Semiotics of Law, “Diversity, law, and justice: A Deleuzian semiotic view of ‘criminal justice’” in The International Journal for the Semiotics of Law, March 2007, Pgs 67-69)
Images of thought Let us look at these five models in terms of a Deleuzian analysis as we can tease out of his two-volume series on the cinema. We will argue that the issue of diversity and tolerance, particularly in law and justice are connected with our images of thought during a particular epic. These images of thought are constitutive of a particular form of regime of signs within which particular discursive subject positions are offered and particular forms of signifiers attain stable form – together, from which particular realities can be created. Deleuze’s complex typology of images and signs provide the elements for understanding how shots are framed and what effect they have. Deleuze distinguishes between ‘‘organic regimes’’ and ‘‘crystalline regimes.’’ Each is concerned with an image of thought. An image, following Deleuze, can be considered ‘‘an ensemble or set of logical relations that are in a state of continual transformation.’’38 An image of thought, for Deleuze, is often historically specific.39 Thus, his two books on cinema explore two semiotics, one focusing on time, one on movement. ‘‘Each era thinks itself,’’ says Rodowick,40 ‘‘by producing its particular image of thought.’’ Thought has a certain image by which it thinks.41 Deleuze applies it to two eras of the movie industry: prior to WW2 identified as the ‘‘classic’’ model which is preoccupied with the ‘‘movement image’’; and after WW2, called ‘‘modern,’’ focused on the ‘‘time-image.’’ He further calls the first the ‘‘organic’’, the second, ‘‘crystalline.’’ Let us briefly describe each. We will then show how the previous five models of criminal justice have affinities with theorganic regime, whereas the crystalline regime will be closely aligned with transformative justice (social justice) we develop in a section below.The organic regime organizes vibratory flows in terms of a ‘‘movement-image.’’ That is, truth is developed by rational divisions implicating universals or totalities. In other words, actions are conceived in a linear way, in terms of the linkage of action to reaction. Wilhelm Worringer,42 a German art historian, can be credited with the original characteristics of this regime. According to Rodowick’s interpretation, ‘‘organic forms express a harmonious unity where humanity feels at one with the world. Here representations are based on natural forms and are sustained by the belief that natural laws support and lend them truth.’’ Thus the organic regime is about determinism, predictability, certainty, unity, totality, and identity. The past is connected with the present, the present with determinable happenings in the future. Truth, in this view, is not problematic. It requires its negation of the false in order to be able to actively negate it.43 It is based on a logos, a teleological principle of linear movement. It also has implications for judgment. According to Rodowick,44 ‘‘in the course of an investigation, a trial, or a conflict, we presume that one party will ultimately – finally and teleologically – represent the side of the right and the true.’’ And ultimately, ‘‘along with protagonists, witnesses, and jurors, we are put in the position not only of judging what is true or false, but also of knowing that we will finally be right.’’45 Thus, in short, in the organic regime, truth can only be ‘‘found, discovered, or described.’’ Deleuze’s view of signs in relation to imagery is a complex one. Deleuze follows Bergson, particularly his remarkable book Matter and Memory, with the ontological assumption that the world is made up of images in movement acting much like billiard balls.46 They obey the causal laws of physics. Living entities are distinguishable in so much as they may break the normal stimulusresponse schema and in this pause are able to respond in novel ways. Accordingly, these are ‘‘centers of indetermination’’ which, through experience, organize themselves in various ‘‘sensory motor schemas’’ that coordinate actions, feelings, and perceptions. Deleuze builds on Bergson to specify six kinds of images each of which can be represented by at least three signs. As Bogue47 tells us, ‘‘the signs of the movement-image, which are the signs of the classic cinema [organic regime], ultimately conform to the coordinates of that commonsense world.’’ Film directors, then, invoke various commonsense understandings in the viewer by manipulating various signs representing these six images. But, again, reality construction by the viewer is linear tending toward unity, coherence, and stability. In applying this analysis to our concerns, we posit a seventh image operative in the criminal justice system,48 call it a juridic-image.It’s ‘‘composition’’ includes two diametrically apposed signs, oneindicating disorder, the other order.‘‘Genetically,’’ it can be traced back to a mythical debate between Hobbes representing imagery of the ‘‘state of nature’’ where there is a perpetual ‘‘war of all against all’’ and Rousseau who posits a collectively and rationally developed social contract as a peaceful, law-abiding alternative. Thus we could identify an order-sign, disorder-sign, and a hobbsrouss-sign. What remains an undercurrent in the various spheres of the criminal justice system is a collective imagery of this conflict between Hobbes and Rousseau, disorder versus order. That is, signs of disorder seem ubiquitous; but signs of order just as quickly emerge as the antidote. It permeates every level. It is implicit in decisionmaking and is the background horizon of thought and action. It permeates each of the six movement-images and the 18 signifiers (or more) offered by Deleuze. In short, the hobbsrous-sign is much like a master signifier posited by Lacan. We only mention at this point that change in the criminal justice system will be difficult to the degree that this underlying imagery and sign system continues to inform thought and action at the various levels of the criminal justice system. We need alternative images and signs.
Punitive regimes of signs condone the management of risk and repression in the name of surveying, governing, and preserving the freedom of the law. This inflexible code of politics lays the foundation for destruction and violence against populations given the sign of “criminal”, pointing back towards the prison as the necessary mode of capture.
Lippens 10 (Ronnie Lippens is a Professor at Keele University and has expertise in fields related to crime and crime prevention, community safety, and organisational dynamics, “Law, Code and Late Modern Governance in Prophetic Painting: Notes on Jackson Pollock, Mark Rothko and Gilles Deleuze” in Prospects of Legal Semiotics, September 20 2010, https://doi-org.proxy.lib.umich.edu/10.1007/978-90-481-9343-1_6)
Late modern repression may however take a number of shapes and forms. In one, perceived threats to the possibility of free circulation, or, to be more precise, to the possibility of choice in circulation (or the choice of circulation), are considered as mere physical mass that needs to be shifted around, managed, or destroyed. The real target of the intervention here is the physical, or mechanical rigidity which this mass is alleged to carry within it. In criminal justice, for example, there has been talk for some time now about the move to what Malcolm Feeley and Jonathan Simon (1994) once termed actuarial justice. By that they meant the growing inclination, in criminal justice practice and procedure, to ignore the import of the singularity of individual defendants’ capacities and make-up, and to rely, instead, on the stochastic processing of populations, of masses, or indeed, of mass. Feeley and Simon stressed the point that the “logic” here is an actuarial one. But that may be only part of the story. The actuary makes his calculations in order to insure against what is deemed to be unavoidable “risk”. But the trend in criminal justice practice and, more broadly, governance, may already have moved beyond mere managerial “insurance” against “risk”. In many cases the dominant logic in criminal justice and in governance is now provided by the precautionary principle (e.g. Pieterman and Hanekamp 2002, Pieterman 2008). According to this principle governance should not just aim to insure against risk, but should simply prevent all risk, by any means possible if deemed necessary. Instruments such as Anti-Social Behaviour Orders (deployed against the perceived rigidity of disturbing bio-mass), or a block on GM-foods (against the perceived rigidity of “unnatural” genetic codes), are only a few manifestations of the precautionary principle. Repression can also take the form of punitive interventions whereby those who threaten conditions of free circulation and choice (e.g. the robber, or the bank manager who refuses to extend easy credit, and the manager who does extend easy credit easily, and so on) are made to feel, physically, how their rigidity is obstructive and therefore unwanted. Here the offender is reduced to his biological substrate. He is a mere biological organism. As with mere physical mass, there is no point in engaging in communication with mere organisms. Mass one shoves around, neutralizes, or destroys. Biological organisms, one makes them feel. Authors such as Nicola Lacey (2007) have, recently, noticed how in criminal justice procedure the emphasis is no longer on defendants’ capacities (e.g. their capacity for change or self-transformation), but, rather, on their character. Character, almost by definition, is fixed, unchangeable, indeed, almost biological. One does not communicate with character. One makes it feel. Both forms of governance (i.e. the management of rigid, inflexible, and unconstrained mass, and the taming of rigid, inflexible, and unconstrained flesh) share some common ground.Both target unresponsiveness. Neither presupposes or requires an interest in the inner self. Using existentialist words one could say that late modern governance has lost at least some of the typically modern interest in the singularity of surveying, pondering, deliberating, deciding and choosing selves. We will get back to this issue later. But a few words can be said here. Where modern governance, on the whole, was interested in finding out about how selves survey their being-in-the-world, how they ponder and deliberate upon this, how, in short, they choose, this interest is now gradually crumbling away. There is now less a need to find out about the singularly particular workings of inner selves, since the typically modern zeal to tap into their potential, to harness their energy, to exploit them, to knead and mould them, to discipline them, to normalize them, to guide and steer them towards predetermined goals and into projects, has nearly completely dissipated. The age of construction, modern construction is over. Much in this picture might be underpinned, one could argue, by a form of life—a Nietzschean concept—that emerged in what we now call the late modern era. This is the form of life of a post-material generation whose main preoccupation it is to safeguard nomadic freedom of choice and circulation, or better still: choice of circulation, much less the construction of new, institutionalized futures. This is a form of life whereby, beaconless, one must constantly deal with, or attempt control over “the emergency of [continuous, unrelenting, RL] emergence” (Dillon and Lobo-Guerrero 2009, p. 17). It’s the very same form of life whereby eagerly circulating nomads must deal with, or assert control over anything that carries a rigid, inflexible code. The word “generation” is used loosely here; it refers to an attitude and to practices which by no means are spread evenly across populations, although elements in the culturally dominant demographic or segments in late modern consumer societies may harbour or manifest more of such an attitude and practices than others. In this form of life there is no need for communication, and even less for the transformation of self. One does not communicate with mere mass or with mere biological organisms. There is nothing in them that could be transformed. After the end of the age of construction, there is nothing to communicate about, there is nothing to transform to. Even the joint consumption of commodity-image in what Michel Maffesoli (1996) has called “neo-tribes” does not require communication; only experience. As we will argue later the embryonic phase of this form of life emerged, faintly, during the immediate post-war years, say somewhere between 1945 and 1955. Fully-fledged, however, it only crystallized about two decades later. We will return to this embryonic phase later. Let us explore this post-material, post-constructive form of life a little more. Much of the literature on current developments in criminal justice and governance focus on the management of “risk” (and therefore also of opportunity) in “risk societies”, or on the prevention and near-total blocking off of potential “risk” (and opportunity), in precautionary societies. But “risk” may not be the core target of a post-material, non-constructive consumer generation. Indeed, it is this very same generation that has produced what sociologists call edgework, i.e. the wilful seeking of, engagement in, and experimentation with all kinds of risk-taking and risk-exploring behaviour. This includes e.g. base-jumping, sky-diving, hiking in the great outdoors, and so on, as well as -why not?- hedge-fund investments, speculation on financial markets, sub-prime crediting, and so on. In all these activities, “risk” is not so much a problem, as a resource. A few years ago Stephen Lyng (2004) showed how edgeworkers take themselves in a zone beyond all code. Beyond the reach of rigid, unresponsive and external constraints embodied in legal and institutional codes, in social codes, in any code actually, edgeworkers move into a free zone where in some cases only the mere law of nature—the physical law of mass and the biological one of organism—is left to deal with. The control of nature, the control of mass and organism, is what edgeworkers hope to achieve. It is this control, or at least sense of control, argues Lyng, that allows the edgeworker to regain a sense of self. If Lyng’s analysis of edgework is anything to go by, then the post-material, non-constructive consumer generation, roaming and swerving, as they tend to do, do not necessarily have a problem with risk per se. But they do seem to have a serious problem with a lack of control over all kinds of codes. Codes are by definition unresponsive, rigid, and threaten to curtail or constrain the self’s potential for choice and circulation, or again: its potential to choose the form of circulation, or the modalities of the form of circulation it might wish to engage in. That is why edgeworkers tend to escape to an imaginary free zone of circulation, outside the reach of codes. In the face of the only code that cannot be escaped—the law of nature, or sheer nature—the edgeworker becomes one with it, and in that moment, or in this zone, he, and he alone (or at least that’s how he imagines it), chooses freely (that is: un-coded, or coded only by nature’s law itself) how to respond to, indeed control mere mass and organism. This should provide him with a naturally skilful self that, once returned to the human world, will know how to deal with all the rigid and unresponsive codes, indeed with the mass and organisms there. If this applies to the extreme world of edgework, it may also colour the attitudes and practices within the broader post-material generation more generally. There too nature, or the environment, often tends to be imagined as a free zone, as a zone of free circulation, that needs to be protected from the codes of human intervention. Human intervention, in this imaginary, particularly if it takes the shape of development and construction, cannot be anything but rigid and destructive of choice and circulation. Nature has no need for development and construction. Nature is complete. Out of free circulation, nature magically produces harmony (or so it is then believed). The name of this “magic” is responsiveness. The only thing that needs to be done is to keep at bay, or if necessary to destroy everything that threatens to disrupt or block this magic of nature. Nothing needs to be constructed, and so there is nothing to communicate about. Like nature itself, the post-material self’s imaginary world is a, nay the natural one. In this imaginary world, harmony emerges spontaneously out of freely choosing and freely circulating natural selves. These selves choose and circulate, and choose their form of circulation, responsively. That means they choose and circulate flexibly, with a certain measure of self-constraint that comes naturally. These selves do not carry within them and do not operate according to a rigid, inflexible code (responsive self-constraint could not exist if there were such rigidity within the self). This post-material imaginary world is one that needs no further construction or reconstruction either. Anything that carries or operates according to a rigid code (a virus, a radical extremist, an “anti-social” element, and so on) should be kept at bay, managed, neutralized or destroyed. That’s all. There’s no need to reason with such rigidity. There’s no point in communicating with them. It makes no sense to try and transform their operative code, their “inner self”. Rigid mass and organism, their “code” is unchangeable anyway.