Our approach to the topic is one of minor literature: first,

Franz Kafka, Ian Johnston trans., 1915, "Before the Law," Franz Kafka Online, https://www.kafka-online.info/before-the-law.html,
accessed: 11-20-2023 //OA

Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry
into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks
if he will be allowed to come in later on. “It is possible,” says the gatekeeper, “but not now.” At the moment the
gate to the law stands open, as always, and the gatekeeper walks to the side, so the man bends over in order to see through the gate into the inside. When the
gatekeeper notices that, he laughs and says: “If
it tempts you so much, try it in spite of my prohibition. But take note: I am
powerful. And I am only the most lowly gatekeeper. But from room to room stand gatekeepers, each
more powerful than the other. I can’t endure even one glimpse of the third.” The man from the country has not expected such difficulties: the law
should always be accessible for everyone, he thinks, but as he now looks more closely at the gatekeeper in his fur coat, at his large pointed nose and his long, thin,
black Tartar’s beard, he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool
and allows him to sit down at the side in front of the gate. There he sits for days and years. He makes many attempts to be let in,

and he wears the gatekeeper out with his requests. The gatekeeper often interrogates him briefly, questioning
him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he

always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his
journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, “I am

taking this only so that you do not think you have failed to do anything.” During the many years the man observes the gatekeeper

almost continuously. He forgets the other gatekeepers, and this one seems to him the only obstacle for

entry into the law. He curses the unlucky circumstance, in the first years thoughtlessly and out loud, later, as he grows old, he still mumbles to himself. He
becomes childish and, since in the long years studying the gatekeeper he has come to know the fleas in his fur collar, he even asks the fleas to help him persuade
the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around
him or whether his eyes are merely deceiving him. But he recognizes now in the darkness an illumination which
breaks inextinguishably out of the gateway to the law. Now he no longer has much time to live. Before his
death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to
the gatekeeper. He waves to him, since he can no longer lift up his stiffening body. The gatekeeper has to bend way down to him, for the great difference
has changed things to the disadvantage of the man. “What do you still want to know, then?” asks the gatekeeper. “You are

insatiable.” “Everyone strives after the law,” says the man, “so how is that in these many years no one except
me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he
shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going
now to close it.

This is not fictional: their objectification of the law devastates value to life and
prevents its efficacy---we throw our lives into the face of the law hoping it will save us,
but it does the opposite---the law controls us, harms us, and excludes all but a select
few
Andreja Zevnik, 2016, " Lacan, Deleuze and World Politics: Rethinking the ontology of the political subject," Routledge, pg. 35-37,
accessed: 12-11-2023 //OA

Thus, as Žižek continues, the dissembling by which the institutional law seeks to assure its legitimacy is always
a failure. In splitting the function of legality, the law returns in the obscene superegoical register that is grounded in a voice (‘paternal’
authority commanding what is one to do) that commands and produces violence or punishment.59 By departing from social ‘reality’,
institutional law turns obsolete and distant from society – laws, instead of reflecting society, become an
artificial device for governing it. However, ignorance towards the mythological origins of legal authority is
not left without consequences. Problems such as traumas and disputes emerging in the social field cannot be
left unaddressed; instead, to mediate the risk suddenly embedded in the social field, something else has to succeed
institutional law. Ultimately, for Žižek, the written public law as such carries no source of authority, as is otherwise commonly perceived.
Rather as an aspect of institutional law, its legitimacy emerges out of the superegoic and obscene
authority either of (legal) fictions or of the father, and moulds social bonds accordingly with these laws.60 In that sense, legal
institutions must be left in charge of one’s life,61 as they give life a meaning, provide moral guidance
and enable the redirection of moral and ethical responsibility for acts that are ‘necessary’ yet cause
harm to subjects or institutions. Law, on the one hand, ‘relays the desiring subject to the montages of
culture’, 62 but on the other hand, it provides answers to questions such as what is ‘humanity’ or ‘human being’, as well as creates
the very conditions and characteristics of the present culture.63 Subjects and subjectivities are here essentially juridical,
the subject or the person/role with which the subject identifies – the father – is merely valorised accordingly to juridical reason. As Pottage
explains, ‘these juridical categories are not only cognitive categories – ways of knowing the world, but also existential categories – ways of
being in the world. Subjectivity is defined, communicated and lived through a language of law and lineage’. 64
Juridical reason, as Pottage continues, is the progenitor of institutional lives, and thus claimant to a status of paternity, in psychoanalytical
sense, of the Name-of-the-Father.65 While the first birth of the subject occurs upon the subject’s encounter with the paternal metaphor, the
signifier of the Father, the second birth appears in the subject’s encounter with the ‘institution of law’. The institution of legal subject In Oedipal
logic the subject is seen as a relational/mirror construction where one always requires the other for its formation. A legal subject is not just any
form of existence; rather only a very particular embodiment of ‘the self’ experiences the second, the institutional birth, and begins to count as a
sub- ject of law. In such a way, a legal subject is limited to only particular experiences of the world,66 while a
range of subjects remain outside the institutional forms of legal subjectivity. They might have gone through the
first birth, but not the second. The problem with such Oedipal legal subjectivity is twofold. First it is exclusionary as only a
very limited number of subjects are recognised as full subjects of law. The legally recognised notion of
existence derives from a Cartesian idea of a human being capable of reasoning and making rational decisions.
Such exclusionary character of legal subjectivity implants a contradiction in the very heart of the
discourse of universalism of human rights and equality in the face of law.67 Second, the Oedipal logic still ordering
current legal discourse is no longer predominant. Postmodern notions of the decentred subjects whose relation to authority is no longer
hierarchical and whose ways of subjectivation are no longer paternal challenged rational Cartesian subjectivity.68 Moreover mythical
foundations of law on which Oedipal logic rests are precarious, as Legendre noted already in 1970 and 1980.69 They have been
challenged and destroyed by a range of events – such as for example the US politics after 9/11 – where nomos
or a myth grounding authority has been exposed. When such exposure of the myth is recognised there is
no way back. No new laws or rules can resurrect the mythical foundations once they have been exposed. The only
option left is either a creation of a different myth or a complete ‘ontological’ reconsideration of ways in
which one thinks and relates to law and legal subjectivity. That we consider societies to comprise of human
beings endowed with reason and subjected to inalienable and sacred human rights should not be taken for granted. The
statement might seem to be common sense; yet, it is such because of a particular scientific reasoning, initially invisible, yet seminal for modern
notions of the self. The images of the subject pictured here are rational and scientific, and subjective and
mythical. Both images play along various dualisms prominent in modern thinking of the self: body–mind, person–thing, mind–matter; all
these dualisms construct a way of reasoning that legitimises the existence of ‘one’ in relation to the existence of the ‘other’. In other words,
‘one’ is conceived only in relation to the ‘other’. 70 The implications of such reasoning, and the conception of what is ‘human life’ and how it
exists and consequently how the subject gets constituted, are immense. However, the dualism does not only operate on the level of the self
(the way it is ‘internally’ perceived), but also on the way the subject is constructed. Being faithful to dualism and modern western metaphysics
based on the Cartesian thought implies that the subject, aside from ‘internal forces’, equally requires an external impetus for its formation.71
That does not mean that the subject needs an external impetus for it to be able ‘to form itself’, but rather that the external impetus is essential
for it ‘to appear in the world’. A subject as a particular embodiment of being, in the process of subjectivation, loses its agency. Instead of being
free and capable of taking control of social and political fields, the subject is subjected to rules and freedoms associated with a particular order
and dominant social conventions.72 For reasons of order and one’s own security, a subject abandons its freedoms and is sub- jugated to the
rule of a rational power and law. The law, being a combination of biological and symbolic aspects, connects the subjects’ infinite mental
universe – or all possible ways of existence or embodiments of being-ness – with its physical existence and institutes them as rational beings.73
Yet, such act does not only institute the subject as a rational being, but also institutes
an institution of ‘subject-hood’, which
is specific to a particular society and its dominant mode of existence. It institutes a particular law that brings these
subjects together; and, as a final outcome, such institution of ‘subject-hood’ (as a particular form of life with its distinctive laws of relating to
another subject and belonging to a community), transgresses the finitude of the subject’s life and operates as a force of continuity . It
facilitates the reproduction of the same legal subjects. The ‘subject-hood’ thus operates in a similar way to Kantorowicz’s
idea of the king’s two bodies.74 The continuity of the king’s powers is insured by the eternal and infinite institution of sovereignty. It is here
that the role or the institution of sovereignty is eternal: after the death of one sovereign, the body of sovereignty is
merely transferred to another sovereign. In the same way the institution of a (political) community exists to provide continuity
of relationships between the sovereign and its subjects. This ‘unifies’ subjects into one ‘collective subject’, which as such bonds and is governed
by the institution of the sovereign.75

Rather than asking for legal reform in which the law is viewed as a standardized space,
we adopt a method of analysis of the law whereby we question our assumptions
through minor literature. Only our method can account for the paradoxes and lack of
rationality inherent in the law. That’s the alternative.
Roberto Buonamano 16, Lecturer, Faculty of Law, University of Technology Sydney, 2016, " Kafka and Legal Critique," Griffith Law
Review, https://www.tandfonline.com/doi/pdf/10.1080/10383441.2016.1273167, accessed: 1-21-2023 //OA

Though we have only presented a minor interrogation of a seemingly inexhaustible field, it is patent that the
legacy of Kafka’s
writing – and the now vast interpretive canon surrounding it – for legal critique is significant. “Literature is the
place of contradictions and disputations” Blanchot writes,90 and it is this pronounced feature which best explains the value of Kafka’s juridico-
political observations. Kafka’s literary explorations of the law and its institutional manifestation in the lives of
individuals offer an aesthetico-critical method with which to understand the ways in which the law
functions and justifies itself through discourse. Such a method avoids some of the limitations of
theoretical approaches to legal critique – by which is meant those seeking to establish a theory that
accounts for law’s rationality – precisely because it does not purport to explain the rational basis for the
law, but instead challenges its assumed systematicity and questions what is at stake in this rationality.
What renders it an especially useful, critical method is its ability to expose the reader to the paradoxes,
inconsistencies and absence in the law through a direct engagement or experience with its
“contradictions and disputations.” Within the constraints of academic disciplines, legal theory struggles to
account for the non-rational elements of legal practice, or the “particular excesses of legal ambivalence” – by contrast,
literature allows “the possibility for the paradoxes of the Law to be experienced.”91 There is, perhaps, in Kafka a
relationship of continuity between literature and legal critique. Each strives to express the inexpressible, the impossible.
To be more precise, each confronts the limitation inherent in the fact that any use of language to understand how things are risks becoming the
object of its analysis, from which there is no escape but merely an endless repetition. Literature
is this struggle to grant
language some significance without undermining the edifice that is thereby constructed. This may, in part,
explain the “unfinished” status of many of Kafka’s writings – rather than incomplete, they appear as
interrupted, interrupted by the impossibility of completion. By the same logic, his main stories may be considered
“fragments” (as is the totality of the work), a trait that renders “their reading unstable” though it is hardly accidental: “It is incorporated in the
very meaning that it mutilates; it coincides with the representation of an absence that is neither tolerated nor rejected.”92 Legal critique runs
the same gauntlet. To
understand the law, its existence, substance and modalities, demands an appreciation of the
absence which it conceals; however, this absence cannot be expressed as an essential character of the
law – the crucial task, which Kafka has taken up more assiduously than any other writer, is to offer a glimpse into
the indeterminate, non-rational and paradoxical experience of being a legal subject.
The Role of the Ballot is to vote for the team that best performatively and
methodologically affirms the vibrant minoritarianism of Kafka’s texts. The
micropolitics of our thought, becomings, and speech animates politics and comes
before anything else.
Deleuze & Guattari 85 Gilles Deleuze and, Felix Guattari, Marie Maclean, they did philosophy, 1985, "Kafka: Toward A Minor
Literature: The Components Of Expression," Johns Hopkins University Press, https://www.jstor.org/stable/468842?seq=1, accessed: 12-4-
2023 //OA recut (from MD but his citation was bad.

That is why it is so regrettable, so grotesque, to oppose life and writing in Kafka, to suppose that he takes refuge
in literature through lack, weakness, impotence before life. A rhizome, a burrow, yes, but not an ivory tower. An escape route, yes, but
certainly not a refuge. The creative escape route involves the whole of politics, the whole of economics, the
whole of bureaucracy and of justice: it sucks them, like a vampire, to make them produce sounds which are
still unknown and which belong to the near future—fascism, Stalinism, Americanism, the
diabolical powers which are knocking at the door. For the expression precedes the contents and is their
precondition (provided of course it has no signification): living and writing, art and life, are only in opposition from
the point of view of a major literature. Kafka even on his deathbed is traversed by an invincible flow of life, which
also arises from his letters, his stories, his novels, and from their mutual state of noncompletion, for different
reasons which remain intercommunicating and exchangeable. Conditions of a minor literature. A single thing grieves
Kafka and angers him, makes him indignant: that he should be considered an intimist writer, finding refuge in literature, an author of solitude,
of guilt, of intimate unhappiness. And yet it is his own fault, because he flaunted all that .. . to outwit the trap, and humorously. There is
laughter in Kafka, very happy laughter, which is badly understood for the same reasons. It is for the same stupid reasons that people have
claimed to see a refuge far from life in the literature of Kafka, and also an anguish, the mark of impotence and guilt, the sign of a sad interior
tragedy. Two guidelines only are needed to follow Kafka: he is an author who laughs, deeply joyful, with a joie
de vivre, in spite of and with his clownish declarations, which he uses as a trap or as a circus. From end to end he is a political
author, a prophet of the future world, because he has as it were two poles which he will be able to unite in
a completely new organization: far from being a writer with- drawn in his room, his room is the site of a double flow,
that of a bureaucrat with great prospects switched in to real organizations in the making; and that of a nomad taking
flight in the most realistic way, who switches in to socialism, anarchism, social movements.13 Kafka's
writing, the primacy of writing means only one thing: not literature, but the fact that speech (énonciatz'on) is one
with desire, above laws, states, governments. Yet speech is always historical in itself, political and social. A
micropolitics, a politics of desire, which questions all proceedings. Never has there been an author more comic and
joyful in the aspect of desire; never an author more political and social in the aspect of the spoken.14 Everything is laughter, beginning
with The Trial. Everything is political, beginning with the letters to Felice.

Interrogating our legal assumptions in the debate space is key: it’s the only way to
construct a better set of rights and resist dominant thought. Our act of destroying
dogmatism in every instance is the only solution. AND we cannot accept compromise.
Christos Marneros 19, Lecturer in Law, Department of Law and Criminology , Royal Holloway University of London; 11-14-2019, "Gilles Deleuze:
Jurisprudence," Critical Legal Thinking, https://criticallegalthinking.com/2019/11/14/gilles-deleuze-jurisprudence/, accessed: 1-18-2024 //OA 🐱

Deleuze’s description of jurisprudence remains an enigma as he did not expand on it. Yet, as I argue, he manages to revitalise and to give a new
impetus to this ethical aspect of the jurisprudential mode of operation. As I argue below, Deleuze, effectively, combines both the
Anglo-American, analytic meaning of jurisprudence as a philosophy of law – yet, he does so in his own
idiosyncratic way of understanding what philosophy is – and its continental signification as a mode of
operating through cases. Such cases, however, should not be reduced to what is understood as purely legal
ones but they are rather cases that manifest a life that is not subordinated to the abstractions of supposedly
higher values, causes or norms. For example, Deleuze states that:
The judicial notion of ‘case’ or ‘jurisprudence’ dismisses the universal to the benefit of emissions of
singularities and functions of prolongation. A conception of law based upon jurisprudence does not need any
‘subject’ of rights. Conversely, a philosophy without subject has a conception of law based on jurisprudence.[10]
It seems then that jurisprudence, here, signifies a mode of ‘working through cases,’ but, as mentioned above, this operation should not and
cannot be reduced solely to the Anglo-American or common law understanding of precedence. The jurisprudential procedure is not a mere
interpretation of the facts of a case and an application of ready-made legal rules, as it, usually, happens in courts and the sum of the national
and supranational so-called ‘official legal entities’. This operation is a matter of great sophistication and care which is characterised by a
certain ethos – an ethos that is a matter of someone who possesses a deep knowledge of the law and he or she is ready to assess
and practically apply this knowledge on the specificity and particularities of each case that must be addressed.

Further to that, Deleuze does not reduce the meaning of jurisprudence only in the above way. As it was mentioned above, what he offers
is rather a combination of both Anglo-American and continental meanings. This combination is what manages to,
effectively, restore this ethical aspect of the term. More specifically, in other instances, Deleuze refers to
jurisprudence as ‘the philosophy of law.’ For example, in a conversation with Raymond Bellour and François Ewald, Deleuze
states the following: “Rights aren’t created by codes and pronouncements but by jurisprudence. Jurisprudence is the
philosophy of law, and deals with singularities, it advances by working out from singularities. All this may, of course, involve taking
particular positions to make some particular point.”[11] So, here we have the combination of the two dominant understandings of the term
jurisprudence: 1) a philosophy of law and 2) a working through singular cases. This understanding of the philosophy of law,
should not be confused with the common Anglo-American understanding of what it means to philosophise with or about the law. Instead, it
should be read in the same, idiosyncratic, way that Deleuze and Félix Guattari understand philosophy,
namely as “the discipline that involves creating concepts.”[12] Thus, in equivalent terms, jurisprudence as the
philosophy of law becomes now the process for creating law or rights.

Thus, this creation of law does not rely upon established norms and rules and it is not a matter of
‘expertise’ – at least in the way we tend to understand this term. When law is understood as a discipline for the
selected few, what we usually witness is “the application [of] universal rules to singular situations , thus often
doing a real injustice to them.”[13] The operation of law then becomes a sort of Procrustes’ bed of this
abstract and universal rules and values. On the other hand, Deleuze’s understanding of philosophy (of law) as a
creative operation, takes into account the particularities of each case, and thus it operates through
the singular rather than the abstract and universal. It is also a philosophy of life because it demands deep
learning of the situation and the way(s) of operating through a jurisprudential mode of being – that is a specific ethos.
Jurisprudential ethos then – an ethos or law’s phronesis which was present in the ancient understanding of the term but, as I argued, is,
fundamentally, lost in modern times – is restored with a new and unprecedented dynamism, which comes to defy any form of dogmatism and
hierarchies, found in legalistic modes of thinking.

This ethical aspect of Deleuze’s understanding of jurisprudence becomes more evident, in the interview ‘Control and Becoming’ with Toni
Negri, where Deleuze, explicit, states that:

What interests me isn’t the law or laws (the former being an empty notion, the latter 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 [and, we
can also add here, to the so-called ‘legal experts’ in general terms].[14]

To that extent, Deleuze departs from the usual understanding of law as a form of authority or ‘a ground’ (an arche).

“it is a nomos very different from the law.”[15]

Deleuze’s understanding of jurisprudence paves the way for a non-juridical, an-archic understanding of a nomos rather than law. Following the
remarks on the meaning of the word by the French linguist Emmanuel Laroche, Deleuze explains that nomos for Homeric society has a pastoral
sense. However, this meaning of allocation or distribution was not a matter of land distribution, because as the philosopher states the
understanding of nomos as land-distribution was “only belatedly implied.”[16] Instead, as Deleuze remarks:

Homeric society had neither enclosures nor property in pastures: it was not a question of distributing the land among the beasts but, on the
contrary, of distributing the beasts themselves and dividing them up here and there across an unlimited space, forest or mountainside. The
nomos designated first of all an occupied space, but one without precise limits (for example, the expanse around a town) – whence, too, the
theme of the ‘nomad.’[17]

Here the figure of the

nomad comes to counter the enclosed space provided by the official laws of a society
based on a so-called ‘sophisticated’ legal system and rights, for example, a figure of a state apparatus. The nomad
then is affiliated with a notion of an an-archic and constant movement in an open space without a beginning
nor an end. To that extent, we can say that a nomad proceeds in a mode of becoming, that refuses to be limited
by any form of transcendent, moral, fixed and eternal rules, norms or identities. According to Deleuze, the nomads
follow a nomos, or we can say a jurisprudence which is based on a principle – and not an arche– of a ‘nomadic distribution,’[18] which is “a sort
of crowned an-archy, that overturned hierarchy […].”[19]

In these terms, then, a ‘nomadic’

jurisprudence is an ethical action that aims to break the boundaries of this
dogmatic mode of thinking and existing promoted by law, It is then a way to “disturb the state and the law
from the outside.”[20] In that sense, it is in constant opposition and strife against the dogmas and
hierarchies of any state apparatus, and thus it should be ready to respond adequately to any assault coming
from them. It has to possess then a lethal instinct ready to destroy any form of dogmatism and to ‘break the
wheel’ of the current state of affairs, refusing to compromise and to be ‘pacified’ by any call for pseudo-progress
and consensus.[21] Such jurisprudence is an-archic because it refuses to be subordinated by any form of
hierarchies and it also refuses to prioritise a mode of being or a style of life over another. Despite its anarchism,
however, a jurisprudence of a becoming-human is consistent in the sense that it functions and (re)organises itself through institutions or
through nomoi, that are ever-changing and expressive (as opposed to representational) of a certain situation in question.