NATHAN MOORE*

ICONS OF CONTROL: DELEUZE, SIGNS, LAW

ABSTRACT. This paper is broadly concerned with Deleuze’s distinction between ‘laloi et les lois’ on the one hand, and jurisprudence on the other. Jurisprudence is

the creative action of legal practice, the process by which it is forced to thinkconstructively and anew. In such circumstances legal thought is akin to Deleuze’sconcept of the event. I explore the distinction between law and jurisprudence by way

of Deleuze’s comments on control societies, arguing that, under control, law ceasesto be a juridical hierarchy conforming to disciplinary modes to become a regulatorypractice of interminable modulation. In order to begin to explore the relations and

connections between law/jurisprudence and control, the paper will look to thesemiotics of C.S. Peirce (who influenced Deleuze’s work on cinema). In particular itwill argue that control operates predominantly through icons. As a consequence Iargue that the proper ground of the sign, the event, is co-opted and, following from

this, that control functions through the confusing of sense and meaning.

1. Introduction

Is law structured like a language? To put this question in a differ-ent way, is law a matter of fate? If we consider the work ofDeleuze and Guattari it becomes apparent that both questionsmust be answered in the negative. Deleuze and Guattari insteaddevelop a concept of regimes of signs, so as to broaden an analy-sis otherwise restricted by language, linguistics, and the signifier.What is at stake here is an entire ethic of thought: does the signstand for the subject or the event? If the former, then one is con-fronted with a logic that is ultimately statistical, corresponding toFoucault’s analysis of the management of the population (human-ity). If the latter, one deals with a logic of sense and the creativ-ity of a people. To translate this into law-orientated terminology,one deals either with the law and laws on one hand, or withjurisprudence1 on the other. However, it should not be thoughtthat the stakes are distributed across a continuum contained

* Thanks to Anne Bottomley, Ronnie Lippens and Jamie Murray.1 Throughout this paper, ‘jurisprudence’ is used in its continental sense to indicate

the working through of cases, rather than legal philosophy.

International Journal for the Semiotics of LawRevue Internationale de Semiotique Juridique (2007) 20: 33–54DOI 10.1007/s11196-006-9035-8 � Springer 2006

between reactionary and progressive laws; to pose the issue in thisway already falls under the statistical manipulation of the popula-tion (‘which laws would benefit the greatest number of people?’).Rather, jurisprudence is the mode of practising the law, where thelaw is engaged with anew in each and every situation. What Kel-sen calls ‘human behaviour’2 is that which causes the law to beproblematised, and for this reason allows it to be put into prac-tise. The distinction is between law as an action3 and law as apower: in this latter sense the law is unthought, remains unprobl-ematised (unless it is the false problem of how to more efficientlyapply it), and serves as a block to the creation of new modes ofbeing – it restricts human behaviour.

This power of law has reached a new level of intensity withinthe current condition of globalisation. While in this paper I will notlook to the processes of globalisation,4 this term indicates a definiteepoch in which law is rapidly ceasing to be dominated by thosecharacteristics described by Foucault as disciplinary, to becomeinstead a problem of control. This paper is then concerned withtwo specific movements: a movement toward a legal semioticderived from the work of Deleuze and Guattari, and a movementtoward thinking law as control rather than discipline. It will comeas no surprise if these two movements have much in common.

2. The Sign

If we begin with the signifier and the signified we will not get veryfar. Instead, we will be condemned to a vicious circle where, oncemore, we must perpetually undertake the quest of the signifier. Thename of this circle is paranoia5 and against it Deleuze and Guattaripose schizophrenia – an altogether less respectable condition. Howare we to then understand the schizo sign? Arguably the two most

2 Hans Kelsen (1945) General Theory of Law and State, A. Wedberg (trans.), (NewYork: Russell & Russell, 1945) at 120.

3 I use this term in the sense developed by Bergson: see Henri Bergson Matter andMemory, N. M. Paul & W. S. Palmer (trans.), (New York: Zone Books, 1991) at 179.

4 My understanding of the term ‘globalisation’ is derived from the work of Zyg-munt Bauman. See Globalization: The Human Consequences, (Cambridge: Polity,2005) in particular.

5 It is no surprise that Slavoj Zizek has recently called for the proliferation of whathe calls ‘Lacanian paranoia’. See Slavoj Zizek (ed.) Lacan: The Silent Partners,

(London & New York: Verso Books, 2006).

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important reference points for Deleuze and Guattari on this ques-tion are Louis Hjelmslev and Charles S. Peirce. It is Peirce that Iwant to pay particular attention to in this paper.

Peirce theorises the sign into three types, as symbol, as index,and as icon. In On a New List of Categories he describes themthus:

1st. Those whose relation to their objects is a mere community in some quality

[icons]...2d. Those whose relation to their objects consists in a correspondence in fact [indi-ces]...

3d. Those the ground of whose relation to their objects is an imputed character[symbols]... .6

In her study of Peirce, The Machinery of Talk, Anne Fread-man explains that what distinguishes these three different typesof sign are ‘‘the grounds of their claim to be representations, andto be representations of what they represent.’’7 In Peirce’s systema sign is a sign of something,8 but the whole problem (and whatdistinguishes the three ‘types’ of sign) are the grounds by whicha sign comes to represent what it is not. There is then, in anysign, a problem of legitimacy: on what grounds can it be legiti-mately said that a representation acts as an icon, index orsymbol?

Obviously, this problem involves the further issue of interpreta-tion: what is the proper mode of interpreting the sign? However weshould be careful not to equate the ground with the act of interpre-tation. The ground is the condition of interpretation, yet it is alsomore besides: if not, then we are confronted once more with avicious circle in which a sign is legitimated by a further sign, itself

6 Charles S Peirce, (1991) Peirce on Signs, (Chapel Hill & London: University ofNorth Carolina Press, 1991) at 30.

7 Anne Freadman The Machinery of Talk: Charles Peirce and the Sign Hypothesis,

(Stanford: Stanford University Press, 2004) at 12. Emphasis in original.8 For a different account of the sign see Hjelmslev, who develops a sign function

that is less concerned with representation (that which stands for something else) thanit is with the distribution of the sign’s ‘functives’ of content and expression: LouisHjelmslev Prolegomena to a Theory of Language, F. J. Whitfield (trans.), (Madison:

University of Wisconsin Press, 1969) at 47–60.

ICONS OF CONTROL 35

legitimated by yet another sign, and so on in an infinite regress ofinterpretation.9 What is it that then distinguishes the ground frommere interpretation?

An answer to this question is given by another Peirce scholar,T. L. Short, but first we must distinguish more clearly between twoof the three types of sign. A symbol is an imputed sign, meaningthat it requires interpretation: the relation between the sign and itsobject or referent must be thought. We can see here how interpre-tation becomes an infinite regress, because each symbol, in order tosignify, must be thought via another symbol: ‘‘In short, sincemeaning cannot be located in any thought-sign, it must be found inthe very process by which one thought interprets another.’’10 Onthe other hand, the index is a sign regardless of whether it is actu-ally interpreted or not,11 because its relation to what it represents isa matter of circumstance. Peirce gave a number of examples ofindices, including a weathercock and a pointing finger: the weather-cock is a sign of the direction of the wind, while the finger indi-cates what it points to. With the index, the relation between signand referent is not a matter of interpretation but rather a functionof designation, an indication that ‘there is’ without describing what‘is.’12.

For Short, the index acts as a brake on an otherwise infiniteprocess of interpretation, by designating a limited circumstance thatconstrains this process by relating it to a relevant matter-at-hand.As Short writes,

The index picks out a particular of an otherwise signified type, which is then madethe subject of a predicate ... . It follows that if the index is directly connected to

its object, then so is the cognition, through the index it contains. Thus a cognitiondoes not have to be the interpretant of a preceding cognition in order to have anobject.13

Following from this, Short makes another interesting point onthis subject: that a symbol is not a matter of infinite interpretation

9 As Deleuze makes clear, the meaning of a proposition is not contained within it,

but can only be stated by a further proposition: Gilles Deleuze The Logic of Sense,M. Lester & C. Stivale (trans.), (New York: Columbia University Press, 1990) at 28.

10 T. L. Short The Development of Peirce’s Theory of Signs in C. Misak (ed.) TheCambridgeCompanion toPeirce, (Cambridge:CambridgeUniversityPress, 2004) at 217.

11 Supra n 7 at 13.12 ibid. at 29.13 Supra n 10 at 221.

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because such interpretation need only be a possibility, rather thanactualised. Within a particular circumstance, a sign need not beactually interpreted so long as potential interpretations exist as aconsequence of the particular circumstance in question (i.e. what isdesignated): something is indicated but this is not at all the samething as asking ‘what does it mean?’.14

Because the propensity-to-be-interpreted is a potential, it is ori-entated toward the future. Stating it in this way brings us to a forkin the road: the ground of the sign is either the event or teleology.Short argues for the latter: ‘‘I shall argue that the end-directednessof semeiosis accounts for significance’s essential features.’’15 Indoing so, Short is careful to distinguish between what is merelymechanical on the one hand, and what is a matter of variation andselection on the other.16 A sign is significant because of selectingthe most appropriate meaning from the potential meanings avail-able, these latter being statistically determined variations of mean-ing.17 As Short sums it up, ‘‘To act purposefully is to interpretsomething as a sign which, if it obtains, will make that actionappropriate to its goal.’’18

The argument for telos as the grounds of representation makesperfect sense given Short’s analysis of the index and potentiality: acircumstance is identified as the sum of its possible meanings, theselection of meaning being dependent upon the purpose to beachieved. We can immediately point out that the problem with thisanalysis is that it fails to account for how the variations themselvesare generated. In other words, how is it that a potential meaningalready signifies a possible outcome for selection? The answer mustbe, to use Saussure’s terminology, that langue is already posited assuch and thereby determines the possible variable meanings forselection. This is supported by Short’s statement that Peirce’s‘‘mature semeiotic, because it is teleological, accounts for the inten-tionality of semeiosis sans consciousness; and thus it is able toexplain thought’s intentionality as due to thought’s being a specialform of semeiosis.’’19 It is of little account whether intentionality iscontained within the mind or vice versa; in either case, Deleuze and

14 ibid. at 225.15 ibid. at 230.16 ibid. at 231.17 ibid. at 230.18 ibid. at 233.19 ibid.

ICONS OF CONTROL 37

Guattari’s criticism of Peirce holds good: ‘‘...his distinctions arebased on signifier-signified relations...’’20

3. The Event

Nevertheless, Peirce’s system is to be favoured over Saussure’sbecause it does attempt to integrate the problem of the ground intothe structure of the sign. With the signifier-signified relation theground remains non-problematic because it is assumed to havebeen always already integrated into the sign structure, thereby pre-serving the entire system against the particular circumstances towhich it pertains (parole).21 Where it becomes necessary to departfrom Peirce (although we will return to him below) is with the ‘res-olution’ of the problem of the ground, as constructed by Short, astelos. Rather, it is now necessary to turn to Deleuze in order toconsider the true ground of the sign: the event.

In The Logic of Sense Deleuze equates the event with the senseof a proposition,22 so the ground of a sign or proposition is alsoit’s sense. We saw above the difficulty described by Short whentrying to locate the sense of Peirce’s symbol: not being ‘in’ thesymbol itself, its sense becomes distributed across an infinite semi-otic process. Deleuze picks up this problem in his own way byidentifying three relations in the proposition: denotation, manifesta-tion, and signification.23 While these relations serve to connect theproposition to the world24 none of them are the locus of sense.25

20 Gilles Deleuze & Felix Guattari 1992) A Thousand Plateaus: Capitalism andSchizophrenia, B. Massumi (trans.), (London: The Athlone Press, 1992) at 531, fn. 41.

21 That the problem of the ground is already excluded from Saussure’s system isevident from Roy Harris’ explication: ‘‘... what fixes the individual signs is theirreciprocal interdependence in a system, which in turn is fixed simply by the totality ofinternal relations between its constituent signs. That explains simultaneously why

altering just one set of relations disturbs the whole system, and also why, in spite ofthe arbitrary connexion between any one signifiant and any one signifie, it is not easyto break that connexion. Altering just one sign encounters the passive resistance of the

entire structure.’’ Roy Harris Reading Saussure, (London: Duckworth, 1987) at 220.22 Supra n 9 at 22.23 ibid. 12–22.24 Denotation relates the proposition to a state of affairs; manifestation relates it

to the person who speaks or expresses it; and signification relates it to universal orgeneral concepts, for which it then serves as a premise or conclusion.

25 Supra n 9 at 17–19.

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Denotation cannot condition sense, because it would then makesense dependent upon the truth of what the proposition denotes.Similarly, manifestation cannot condition sense without making itdependent upon the expressive subject; however, this subject isitself dependent upon la langue26 for its very ability to express inthe first place, so cannot guarantee the sense of what it utters.Finally, la langue is equally unable to condition sense because, as amatter of conceptual signification, it is the condition of truth, andyet both true and false conceptualisations have sense. All of whichcan be summed up by saying that sense cannot be equated to truth,if this is taken as an evaluation of the appropriateness of each ofthe propositions three relations in any given case.

For these reasons Deleuze describes sense as a fourth dimensionof the proposition.27 This dimension is not a relation because itdoes not connect the proposition to a circumstance. Instead, senseis distributive, and this is why it is better to think of it as an event.In that case, what does the sense-event distribute? The simpleanswer is that sense distributes things and bodies (states of affairs)on one side, and words and propositions on the other. More thanthis, sense is responsible for differentiating the given, so that phe-nomena within it can be grasped as either bodies or words.28 Thisis why sense is the ground of the sign: sense distributes that whichenables the sign to function as such, separating out symbols, iconsand indices from that which they represent or stand for.

What must now be clarified is what is meant by sense or theevent.

4. The Verb

The event is never actualised in a specific state of affairs, nor is itcontained in propositions. Rather it is what opens states of affairsand propositions up and, in so doing, constitutes them as such.This is apparent from Deleuze’s description of the event of battle:

... the battle hovers over its own field, being neutral in relation to all of its tempo-

ral actualizations, neutral and impassive in relation to the victor and the van-quished, the coward and brave; because of this, it is all the more terrible. Never

26 Following Lacan, the subject is a signifier.27 Supra n 9 at 19.28 ibid. at 22.

ICONS OF CONTROL 39

present but always yet to come and already passed, the battle is graspable only bythe will of anonymity which it itself inspires.29

The battle cannot be located in any specific act of warfare, norin any particular utterance or order. It rather exists as supplemen-tal to the entire set of acts and statements which properly ‘belong’to the battle; and yet, without this supplement, there would be nosuch set in the first place. Only the event provides the ground bywhich to determine what does (and does not) belong to the battle,enabling one to represent that a battle is occurring. However, bymaking such a representation, one is constituted beyond the subjectthat one is. This is because the battle can only be represented inthe first instance: one does not participate in the event without alsobeing its spectator, meaning that the battle in its entirety cannot bepresent to any one individual or group of individuals. Therefore,even if all participants are assembled and their testimony recorded,a final account of the battle cannot be given and, for the same rea-son, there cannot be a complete experience of the battle while itrages.

When one says ‘there is a battle’ one necessarily affirms morethan one knows. One cannot know the event of battle, yet oneaffirms that it is taking (or has taken) place. In so affirming, oneclaims more for oneself than is capable of reasonable assessment orverification, which Deleuze, borrowing from Ferlinghetti, calls ‘‘thefourth person singular.’’30 While we might say that this or that per-son fought, the participants of the event will forever remainunknown soldiers.

The failure of verification is the failure of both good and com-mon sense, and thus the failure of contradiction (‘bat is not cat’),in favour of the paradoxes of the sense-event.31 While it might bethought that departing from good and common sense wouldinvolve things and words becoming indistinguishable, this is in factnot the case. Good and common sense do depend upon fixed sepa-rations of words and things (i.e. signs), but these separations arefirst and foremost established by the sense-event: precisely, theevent is the separation of words from things, causing Deleuze towrite, ‘‘Events make language possible.’’32 More specifically theevent makes language possible by giving it its proper ground in the

29 ibid. at 100.30 ibid. at 103.31 ibid. at 74–81.32 ibid. at 181.

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form of the verb.33 From this ground good and common sense canbe established, but first the verb must be activated.

It should not be thought that there was an original, foundingverb however. The verb is best thought of as that which becomes,in which case it is without beginning or end.34 This is why Deleuzeprefers to say not that the tree is green, but that it is greening.35

For this reason both nominalism and realism have their truth, butit is a truth dependent upon the power of the verb to enact the dis-tinction between them, making it possible to distinguish things andwords. Without this, the word and the thing could not be distin-guished and language would remain impossible. Furthermore, wewould be without signs, without thought, and thus without being.It is better to think less of ‘the’ event, and more of an ‘eventing’,through which it becomes possible to denote, manifest, and sig-nify.36

5. The Immanent

Sense is a dynamical process which, rather than simply link a signi-fier to its signified (i.e. la langue) distributes words and things and,by so doing, establishes a whole network or series of signifiers andsignifieds. Deleuze’s concept of language is not so much a structureas it is a series of singularities, each acting as the intense point ofan event(ing) around which words and things are both jettisonedand brought into orbit.37 We can further our grasp on this by turn-ing to Deleuze and Guattari’s ‘regimes of signs’.

A regime of signs is described as being both less and more thanlanguage.38 Less, because it is not sufficiently determined into a sys-tem or structure of correlated denotations, manifestations, and sig-nifications. More, because it includes within itself those material

33 ibid. at 182.34 Deleuze refers to this as the Aion, ibid. at 162–168.35 ibid. at 21.36 ibid. at 182–183.37 Ontologically (and as born out by the prominence of the verb), Deleuze’s theory

of the event cannot be disassociated from the concept of duration as this is developedin Difference and Repetition, P. Patton (trans.), (New York: Columbia of University

Press, 1994). There, the event corresponds to Eros, or pure and formal repetition. SeeChapter Two in particular.

38 Supra n 20 at 140.

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elements, such as bodies and things (including tones, exclamations,gasps, stutterings, etc.), excluded from language (la langue). We seehere how Deleuze and Guattari strike out from the distinctionbetween words and things in The Logic of Sense, but that they doso in order to consider what it is that constitutes a regime of signsas such: precisely, the problem of the ground. As they write:

We must therefore arrive at something in the assemblage itself that is still more

profound than these sides and can account for both of the forms in presupposi-tion, forms of expression or regimes of signs (semiotic systems) and forms of con-tent or regimes of bodies (physical systems). This is what we call the abstract

machine ... An abstract machine in itself is not physical or corporeal, any morethan it is semiotic; it is diagrammatic (it knows nothing of the distinction betweenthe artificial and the natural either).39

Being neither corporeal or semiotic, the abstract machine isimmanent: this is what is meant by the reference to ‘diagrammatic’.The abstract machine is the event which creates the condition ofpossibility for things and words, constitutive of the assemblage assuch. Deleuze and Guattari continue:

Defined diagrammatically in this way, an abstract machine is neither an infrastruc-ture that is determining in the last instance nor a transcendental Idea that is deter-mining in the supreme instance. Rather, it plays a piloting role. The diagrammatic

or abstract machine does not function to represent, even something real, butrather constructs a real that is yet to come, a new type of reality. Thus when itconstitutes points of creation or potentiality it does not stand outside history but

is instead always ‘‘prior to’’ history.40

Because the abstract machine operates prior to history it isimpossible for the sign to be grounded by a telos: indeed, theabstract machine is disruptive of any historical accretion and thestatistical variants that would otherwise stabilise it. It is better tothink of the abstract machine as throwing up zones of experimenta-tion, with the potential for new relations to be made between bod-ies, between signs, and between bodies and signs. This is not a freefor all because the matters and functions of experimentation arespecific singularities unique to their own particular modes ofexpression (all regimes are partial and limited). Additionally, suchexperimentation cannot be brought to an end by the ‘discovery’ ofa supreme or final assemblage or regime, because the relative prop-osition would be one which would state its own sense (a possibility

39 ibid. at 140–141. Emphasis in original.40 ibid. at 142.

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already discounted by Deleuze), and would fail to distinguish be-tween words and things.

6. Law

Thus, the ground of the sign is a ‘futuring’, where the event orabstract machine serves to distribute the sign and allocate to it itsproper share of sense. However, the sign does not contain its sense,as this only ever exists in a ‘prior’ moment before the sign itself.This must not be confused with the past of the sign because this‘prior’ is its future: sense advances before the sign, dragging it for-wards into a ‘to come’, via the form of the verb. Now we can beginto understand why Deleuze differentiates jurisprudence from thelaw and laws. In an interview with Antonio Negri he says,

What interests me isn’t the law or laws (the former being an empty notion, the lat-ter uncritical notions), nor even law or rights, but jurisprudence. It’s jurisprudence,ultimately, that creates law, and we mustn’t go on leaving this to judges. Writers

ought to read law reports rather than the Civil Code. ... We don’t need an ethicalcommittee of supposedly well-qualified wise men, but usergroups.41

The law is nothing but common sense, the basic or ground normwhich everybody presumes to exist as the foundation of laws; theselatter being the good sense involved in ‘recognising’ the pre-deter-mined legal problem in any given situation, and the means ofresolving it. The law and laws produce an uncritical and unthinkingmode of legalistic being that never departs from the vicious circle ofinterminable self-reference.42 On the other hand, jurisprudence isthe mode of working through, and acts as the event or abstract ma-chine of the legal assemblage. It is jurisprudence that demands athinking through, while the law and laws require mere application.

For this reason, all cases are in fact ‘hard cases’ – a case, under-stood as something that must be argued through, cannot indicate a prop-er outcome at its beginning, by reference to law and the laws, but is infact a singular problem that calls the current allocation of the law andlaws into question. Any case is, in this sense, the failure of the law andlaws to provide a proper, readymade outcome to the circumstancebrought into being in, and by, that case. Obviously, once the case isresolved, the law and laws are redistributed to take account of that

41 Gilles Deleuze Negotiations, M. Joughin (trans.), (New York: Columbia Uni-versity Press, 1995) at 169–170.

42 The law is the signified of the laws/signifiers.

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novel solution, and this is why it is correct to say that jurisprudencedistributes the law and laws: jurisprudence re-allocates the words andbodies of law, re-drawing the line between them, and thereby makingpossible legal propositions in general.

It is now possible to identify some characteristics of the juris-prudence-abstract machine:

(1) Jurisprudence exists in the future. Because the solution to acase is not currently given by the law and laws, jurisprudenceseeks to give (legal) sense to the case by working towards itssolution. For this duration, while the case is unresolved, its ele-ments cannot be given appropriate legal nouns and adjectives,but are instead subject to processes of making sense. This pro-cess is not located in the present, but rather in the present as itpasses. What is therefore meant by ‘the future’ is not a presentto come, but the future as it presently exists, prior to history.43

(2) Jurisprudence is immanent. The abstract machine does notwork towards a transcendental end – if it did, it would remainwithin the circle of the law and laws. Rather, it `hovers' over thelegal field without being actualised in any particular element con-stitutive of that field. Therefore, jurisprudence cannot select frompossible, predetermined statistical meanings, but must rather putthe sense of the legal field into variation.44

(3) Jurisprudence is indifferent to truth and falsity. While a case isoutstanding there are at least two possible outcomes: either thedefendant or the claimant is correct. While jurisprudence is theworking through of these two positions, it is noteworthy that,even when one side fails to establish their argument against theother party, the resolution of the case will not disqualify that‘losing’ argument as a legal argument. While in hindsight anargument is deemed incorrect, this does not mean that it lacked(or lacks) sense.

(4) Jurisprudence is the redistribution of the law and laws: this iswhat it means to put the legal field into variation. Once a caseis resolved, the law and laws are realigned (they have a newsense) and re-stabilised. However, from the point of view ofsense, this is not quite correct because, even if a new legal

43 Supra n 37 at 85–91.44 For an interesting overview of the non-statistical affirmation of chance, drawing

on both Deleuze and Nietzsche, see Ian Hacking The Taming of Chance, (Cambridge:

Cambridge University Press, 2004) at 147–149.

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proposition follows from the case, this will not exhaust itssense. Precisely, the case will make possible a whole new set ofpropositions, without any one of those propositions (singularlyor collectively) being able to give a full account of the sensewhich constitutes them.45

Because the meaning of a proposition can (only ever) be articulatedin a subsequent proposition, it is very easy to think that we neednot concern ourselves with the event of sense: the realm of meaningseems to be self-contained, so long as one is able to reconcile one-self with the necessarily infinite regress of propositions. This is whyDeleuze and Guattari write: ‘‘one can proceed as though the for-malization of expression were autonomous and self-sufficient.’’46

However, this does not answer the problem of how expression be-comes possible in the first place (how are words separated fromthings, so that they might function as signs?); and, consequently, itde-emphasises the state of affairs to which the proposition wouldotherwise pertain: the signifier takes dominance because ‘‘Contentsare abstracted.’’47 In The Logic of Sense Deleuze wrote, ‘‘Sense isboth the expressible or the expressed of the proposition, and the attri-bute of the state of affairs.’’48 Contents are abstracted when theproposition is taken as the sole locus of sense, and states of affairsdowngraded into a shadowy ‘referent’. At such a point meaning ismistaken for sense, and the proper ground of the sign remains un-thought.

We can suggest that the proposition has a tendency towardsinertia therefore: it is able to ‘think’ itself from within, withoutseemingly needing to consider the ground by which it is a sign orrepresentation (i.e. thinkable as such). In other words, the tendencyof the proposition is not towards sense but towards good and com-mon sense (the good and the true). Consequently, this inertia isshared by the law and laws.

45 This also highlights why jurisprudence is immanent to the law and the laws: the

latter are entirely constructed from the abstract machines which call them intoquestion.

46 Supra 20 at 111.47 ibid. at 112.48 Supra n 9 at 22. Emphasis in original.

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7. The Disciplinarian Sign

On at least three occasions49 Deleuze makes the case that Foucaultnever intended his analyses of sovereign and disciplinary regimes tobe exhaustive of the problem of how the state exercises power:

Foucault never believed and indeed said very precisely that disciplinary societieswere not eternal. Moreover, he clearly thought that we were entering a new type

of society. ... we know already that we are in societies of another sort that shouldbe called ... societies of control.50

In order to grasp what Deleuze means by societies of control itis useful to briefly consider how disciplinary societies function. Del-euze gives particular emphasis to the importance of confinement inFoucault’s analyses:

Individuals are always going from one closed site to another, each with its ownlaws: first of all the family, then school (‘‘you’re not at home, you know’’), then

the factory, hospital from time to time, maybe prison, the model site of confine-ment. ... Foucault has thoroughly analyzed the ideal behind sites of confinement,clearly seen in the factory: bring everything together, giving each thing its place,

organizing time, setting up in this space-time a force of production greater thanthe sum of component forces.51

The inertia of the disciplinarian proposition is played outthrough confinement, this latter understood as the good and bestdivision-allocation of words and things (good sense and commonsense). Therefore one cannot speak of a generalised ‘absolute’,‘lack’, or ‘nothingness’, because each type of regime or society hasits own, specific types of these phenomena, unique to them. This iswhy we are able to talk of a sign which is specific to the disciplin-ary regime.

Although disciplinary regimes are themselves multifarious, nev-ertheless these differences are dealt with (and deprived of the sensethat constitutes them) by arranging them in the most appropriate

49 In the interview with Negri entitled Control and Becoming; a short article calledPostscript on Control Societies, both in Negotiations, supra n 41; and another shortpiece entitledHaving an Idea in Cinema (On the Cinema of Straub-Huillet) in Eleanor

Kaufman & Kevin Jon Heller (eds.) Deleuze and Guattari: New Mappings in Politics,Philosophy, and Culture, (Minneapolis: University of Minnesota Press, 1998).

50 Gilles Deleuze Having an Idea in Cinema (On the Cinema of Straub-Huillet),supra at 17.

51 Supra n 41 at 177.

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mutual relations. Such arrangements are radial, moving out from acentre that determines their value on the basis of their relativespace-times. Deleuze and Guattari refer to such societies as ‘des-potic’.52 We can thus begin to see how the disciplinarian sign func-tions:

(1) As an index, the disciplinarian sign functions as an indicator ofthe (absent) centre to which it is related (despotism); all disci-plinarian indices thus denote despotic power.

(2) As icons, such signs are ‘likenesses’ of despotic power. Mostobviously these would include those signs which function totransform a state of affairs through their very utterance orpassing – a decree by the sovereign; an act passed by the legisla-ture; the verdict of a jury; the sentence of a judge; and so on; alldisciplinarian icons thus manifest the one who utters them as aninstrument of despotic power.

(3) As symbols, disciplinarian signs refer to confined modes of con-ceptualisation, thus giving a proper order and direction tothought through the delineation and expulsion of all that isunthinkable; all disciplinarian symbols thus signify confinement.

While Deleuze is clear that no one of the three relations of theproposition (denotation, manifestation, and signification) can be gi-ven priority over the others,53 I suggest that as far as disciplinarysocieties are concerned denotation dominates the other two rela-tions. Deleuze’s argument that the three relations in fact presup-pose each other is to demonstrate that none of them can be thelocus of sense. However, with disciplinary societies sense is pre-cisely that which is (continuously) expelled by focusing all signs onto the despot.54 This focus is achieved first and foremost by estab-

52 See Gilles Deleuze & Felix Guattari Anti-Oedipus: Capitalism and Schizophre-nia, R. Hurley, M. Seem, & H. R. Lane (trans.), (London: The Athlone Press, 1984)

at 192 et seq., and Chapter Five of A Thousand Plateaus, supra n 20. There is a loosecorrespondence between Deleuze and Guattari’s work in this area and Foucault’s;however, despotism can include both feudal and industrial arrangements.

53 Supra n 9 at 15–18.54 The despot is not necessarily a person, and if they are, that person is more like

an icon than anything else. As Foucault’s work on the Panopticon shows, it is betterto think of a despotic power which radiates in and through confined space-times; see,for example, Michel Foucault Power/Knowledge, C. Gordon, et al. (trans.), (Harlow:

Longman, 1980) at 146–165.

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lishing the index as the primary condition for all signs: nothing isrepresented that does not denote despotic power in some way, asthe very condition of its functioning.55

8. Control

Control operates by opening up confined space-times in the nameof ‘equality’, ‘humanity’, and ‘efficiency’. Overall, it constitutes anew regime of ‘reasonableness’ premised upon individual choiceand profit maximisation. Despite being dependent upon large quan-tities of cheap agricultural production and manufacture (bothabroad and at home), control societies are dominated by the con-sumption of information, to the degree that such consumption isitself information for further consumption.56 Deleuze and Guattaridescribe these societies as being ‘axiomatic.’57 This means that,rather than operating through the absent centre of despotism(which has now become ‘inefficient’ and ‘inhumane’), control actsto arrange any given social phenomenon axiomatically by, simulta-neously, insisting upon the specific character of that phenomenon(as a type of ‘identity group’ or technocratic expertise), and its gen-erality within an overarching ‘humanity’ with rights of self-determi-nation and free-expression.

55 Of course the other two relations remain crucial: icons as the mode of effectingtransformations of states of affairs, thus manifesting the expressing subject as ‘s/hewho is authorised to speak’; and symbols as setting out what is capable of being

thought, thus signifying the proper limits of any given space-time.56 See the description of immaterial labour given by Michael Hardt and Antonio

Negri in Empire (Cambridge & London: Harvard University Press, 2000) at 290.

While providing an extremely useful analysis, Hardt and Negri’s concept of imma-terial labour is not unproblematic: see the convincing critique by Nick Dyer-With-eford Cyber-Negri: General Intellect and Immaterial Labor in Timothy S. Murphy

and Abdul-Karim Mustapha (eds) The Philosophy of Antonio Negri: Resistance inPractice, (London & Ann Arbor: Pluto Press, 2005).

57 Anti-Oedipus, supra n 52, at 247–253.

NATHAN MOORE48

Control is a regulatory system where prominence is given topolicing58 and an ever more specific (and thus increased) legislativeproduction by the executive, as opposed to the judge and the law-yer who, rather than be seen as the dispensers of justice and theprotectors of rights (guaranteed by the despot in whose name theyspeak), have become obstacles to a justice now equated with publicopinion. The aim of control is thus to regulate the public in thebest interests of the public. However, we should not think of it as atype of utilitarianism. This becomes clearer if, rather than speak ofthe ‘public’, we use Foucault’s term ‘population’.59 Population re-places the idea of a public or a people with a generalised field ofproduction (consumption), which is understood through statisticalknowledges (potential capacity). Control aims to intervene in thepopulation so as to make it as efficient a resource as possible. Un-like the confinements of the factory, the school, etc., control is akind of open field where the individual is expected (in the name ofefficiency and reasonableness) to be auto-regulating. To achievethis, s/he is no longer provided with confined models of success,but instead with generalised axioms of performance (for example:‘choice’, ‘happiness’, ‘investment’, etc.).

In the interview with Negri, Deleuze illustrates what he meansby societies of control:

... prisons, schools, hospitals: the institutions are breaking down. But they’rebreaking down because they’re fighting a losing battle. New kinds of punishment,education, health care are being stealthily introduced. Open hospitals and teams

providing home care have been around for some time. One can envisage educationbecoming less and less a closed site differentiated from the workplace as anotherclosed site, but both disappearing and giving way to frightful continual training,

to continual monitoring of worker-schoolkids or bureaucrat-students.60

58 Policing should not be grasped as merely a dimension of state power. Thedominance of police functions in control societies is dependent upon them becoming

spread across the entire social field: not only are police functions privatised (securityguards), and mutated (community support officers), control also demands a self-policing, premised not upon any sense of justice or responsibility, but liability: i.e.what one can get away with. See Anne Bottomley & Nathan Moore From Walls to

Membranes: Fortress Polis and the Governance of Urban Public Space in 21st CenturyBritain, (forthcoming).

59 See Michel Foucault Power: Essential Works of Foucault 1954–1984, R. Hurleyet al. (trans.), (London: Penguin Books, 2002) at 201–222.

60 Supra n 41 at 174–175.

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In ‘Postscript on Control Societies’ he goes on:

Confinements are molds, different moldings, while controls are a modulation, like a

self-transmuting molding continually changing from one moment to the next, orlike a sieve whose mesh varies from one point to another.61

With control one must keep paying, through re-skilling, re-training,re-educating, re-investing, re-choosing, re-staking, re-mortgaging, andso on. One must modulate. The upshot of this is that one has no rightto be an individual as such; rather, one has only the right to identities,meaning a function or point of connection between various sites ofinformation. If disciplinary societies seek to expel the abstractmachine, then control societies seek to integrate it (axiomise it) andmake it profitable.62 As a consequence one must be a kind of ‘what-ever’ person,63 prepared to choose and assume the most efficient andproductive identities at any given moment: ‘‘A new form of slavery isinvented, namely, being slave to oneself ...’’64

9. Signs of Control

The inertia of propositions of control (which Deleuze calls ‘motsd’ordre’) is constituted as modulation. It is this which gives senseto control signs. In the case of both discipline and control, theground of the sign is problematised, and it is this problematisationthat conditions the respective signs of those regimes as such.Hence, the ground of the disciplinarian sign is made up of confine-ments and differences; while the ground of the control sign is madeup of modulations and differentiations. In either case, the respec-tive regime of signs is forged in reaction to sense (or the abstractmachine). Following Deleuze (and as mentioned above), if sense istaken as the future dimension of the present then it requires, in anygiven moment, a working through of the problems created by thedistribution of things and words, as so many experiments with theirarrangements and possibilities. This is why we can speak of thefuture conditioning not only the present, but also the past.65

61 ibid. at 179. Emphasis in original.62 See Deleuze and Guattari’s analysis of immanent capital in Chapter Three of

Anti-Oedipus, supra n 52.63 See Brian Massumi’s excellent essay in Deleuze and Guattari, supra n 49.64 Supra n 20 at 130.65 Supra n 37 at 115.

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With control (and this is the whole purpose of statistical knowl-edge), the future becomes subject to the past and the presentthrough modes of forecast and selection. The emphasis here is verymuch upon the individual as auto-generative (through the ‘choices’s/he makes) of his/her own rights and liabilities;66 these choicesbeing actualised via quasi-contractual models67 that serve to (ide-ally) integrate into the present all of the possibilities of the future.As Alain Pottage appreciates, the primary mode of civic duty isnow to be properly insured against the future.68 If discipline viewschange as a bad thing, control takes the opposite stance, but oncondition that any such change flows properly from a good andcommon sense defined as corporate efficiency; in other words, theabstract machine is taken by control to be generated from theassemblage of words and things, so that meaning and sense becomeindistinguishable (i.e. modulated). This is achieved, under control,by giving dominance to iconicity and the relation of manifestation.

To clarify this we must return to Freadman’s work on Peirce. Inanalysing Peirce’s concept of the icon in his early work, Freadmanhighlights a kind of confusion between the sign as icon and itsobject, so that one is not clear if one is perceiving the thing itselfor its iconic representation. The example she makes use of fromPeirce’s work is that of the painted portrait. Of course no-one isgoing to mistake a picture for a person, but the point is that, whilethe sign is necessarily distinguished from its object so as to be asign, with iconicity one ‘forgets’ that it is the sign before one ratherthan the object:

This is what Peirce goes on to elucidate: in order to use the [iconic] diagram, we

have to forget that it is not the very thing. Then he tries to extend that argumentto the painting: ‘‘So in contemplating a painting, there is a moment when we losethe consciousness that it is not the thing, the distinction of the real and the copy

disappears, and it is for the moment a pure dream – not any particular existence,and yet not general. At that moment we are contemplating an icon.’’69

66 I use this term in the sense given to it by Kristeva, who distinguishes ‘liability’from ‘responsibility’. See Julia Kristeva The Sense and Non-sense of Revolt: The

Powers and Limits of Psychoanalysis, J. Herman (trans.), (New York: ColumbiaUniversity Press: 2000) at 5.

67 See Anne Bottomley & Nathan Moore ‘You Will Never Finish Paying’: Contract

and Regulation, Globalisation and Control (forthcoming).68 Alain Pottage Our Original Inheritance in A. Pottage & M. Mundy (eds) Law,

Anthropology, and the Constitution of the Social: Making Persons and Things,(Cambridge: Cambridge University Press, 2004).

69 Supra n 7 at 26.

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Control operates as a dream: it maintains a fantastic ‘unity’,where things are neither particular nor general, but modulated; andwhere, through the icon, we are obliged to forget ‘‘the differencebetween reality and representation.’’70

We can now consider the features of the control sign:

(1) As an icon, the control sign functions to make reality and rep-resentation indistinguishable. On this basis, it becomes possiblefor control to not only manipulate reality as if it were a sign(the two obvious examples being marketing and religion), butalso to insist upon any regime of signs as an inevitable andinescapable ‘reality’ or fact (e.g. the ‘war on terror’). Further-more, the icon precludes any necessity for due process: becauseit is ‘the thing’, there is no need to appeal to any authority out-side of one’s own grasp of reality.71 The icon is, in this context,invariably linked to a particular process of manifestation: theone who expresses it is expressing his/her own ‘whateverness’,or potential for modulated identity. Paradoxically, the iconmanifests the subject as an icon of him/herself to him/herself(hence banal celebrity).

(2) As indicies, such signs designate likely statistical outcomes.Control operates by indicating a future where all (if they havemade the right choices) will be able to ‘live the dream’. This ishow the abstract machine is brought into alignment with thecurrent state of words and things, thus appearing to emanatefrom them. All control indices thus denote investment opportu-nities or, more broadly, the need for insurance.

(3) As symbols, control signs refer to modulated conceptualisa-tions, where what is capable of being thought is dependentupon what it is appropriate and efficient to think in any givensituation. Control signs thus signify integrative concepts, them-selves conditioned by the necessary modulations or transforma-tions (‘the beautiful soul’ or ‘humanity’).

10. Control Signs And Law

The law and laws are dependent upon jurisprudence for theirexistence because, without the actual working through of legal

70 Supra n 7 at 26.71 I shall return to this below.

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problems, the law and laws could not begin.72 The law must bethought; therefore, the question is: is it thought once and for all?or must it be continuously re-thought and re-worked through? Ifone takes the event as the ground of the sign, then it follows thatone answers affirmatively only to the second alternative. It is notpossible to finally do away with jurisprudence without also doingaway with the law and laws: it is jurisprudence which separates thelegal sign from its object.

What is the character of law under control? The space-times oflegal deployment are certainly no longer confined but modulatedacross the entire field of social activity. This latter is only possibleonce the legal proposition ceases to function by reference to a des-potic centre, which served as a measure or evaluation of its appro-priateness. In its place the process of modulation serves to makeany proposition, regardless of its sense, indistinguishable from itsobject: the inescapable reality of control, where meaning is a prob-lem of efficiency and reasonableness ... the coldest passions of all,73

where juridical thought gives way to criminological reflex.Thus, law becomes ever more specific under control, and conse-

quently disconnected from a central, validating reference thatwould be external to the circumstance in question. Instead, eachlaw is legitimated by the situation to which it pertains, not so muchas to discipline and punish, but rather to adjust and penalise.74

Following Hardt and Negri, the laws of control are always ‘excep-tional’:

The function of exception here is very important. In order to take control of anddominate such a completely fluid situation, it is necessary to grant the intervening

authority (1) the capacity to define, every time in an exceptional way, the demandsof intervention; and (2) the capacity to set in motion the forces and instrumentsthat in various ways can be applied to the diversity and the plurality of the

arrangements in crisis. Here, therefore, is born, in the name of the exceptionalityof the intervention, a form of right that is really a right of the police.75

The icon is the crucial relation which enables the proposition topresent itself as exceptional and legitimate, by presenting a regime

72 My understanding of law obviously precludes the possibility of natural law.73 Supra n 20 at 130.74 A clear example of this in the UK are the transformations occurring as a result

of government initiatives to combat both anti-social behaviour and the threat ofterrorism. Following Bauman, we can say that these are simply two sides of the same

(police) coin so far as (globalised) control is concerned. See Anne Bottomley &Nathan Moore, supra n 67.

75 Supra n 56 at 16–17. Emphasis in original.

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of signs where one is unable to distinguish sign from reality or,which amounts to much the same thing, where one is excluded fromthe problem of the grounds of the sign. This exclusion is the basicmode of operation of control signs, where what one is supposed tothink is already determined in advance: mots d’ordre.

If Deleuze distinguishes between the law and laws, this is in rec-ognition of the fact that no legal proposition is able to state itsown sense: a gap must be opened up by sense between any specificlegal proposition and its object, if it is to function as a sign. How-ever, under control, this gap is destabilised through the attemptedintegration of sense into the proposition: it becomes necessary toconstantly re-define the law in the light of changing and differentcircumstances, in a manner that cannot afford the potential doubtor argument that would result from sense’s indifference to truth.76

Control might operate through consensus, but it is a consensus thatit determines in the light of the presentation of ‘realities’ that aretransparent and obvious, and where the most reasonable and effi-cient course of action is already (statistically) apparent: on thisbasis, in its very utterance or passing, the control sign groundsitself and presents itself as its own sense. It is no coincidence if, inthe process, we, the ‘population’, are reduced to the status ofdreamers.

N. MooreSchool of LawBirkbeck College LondonUKE-mail: nathan.moore@bbk.ac.uk

76 To adopt Kelsen’s terminology, under control the validity and efficacy of thelaw are no longer two distinct concerns but, rather, the law is valid only to the extent

that it is efficacious.

NATHAN MOORE54