The Jewish Republic of Israel (Ethno-Nation State Law)

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Everyone knows that Israel is the Jewish State. About that there was no serious doubt if by Jewish state one means a country with a Jewish majority culture. But is it a democracy? Is it now, formally, a racist, ethno-national state, cruel and vindictive? And what about the country and its culture?

You can read here the full text of the Jewish Ethno-Nation State bill recently passed by the Knesset in a razor-thin majority. It undermines democracy in Israel, subordinates democracy to Jewishness, violates the spirit of the Declaration of Independence and its statement regarding “complete equality of social & political rights to all its inhabitants irrespective of religion, race or gender.” Against the vision of Israel’s founding fathers, including deep democratic impulses in classical rightwing Revisoinist Zionism, there is no mention of rule of law, equality, equal citizenship, human dignity.

Here are a few takeaways:

Clause A and B in section 1 regarding the Land of Israel and the Jewish people are more or less matter of fact, ideologically speaking. The final clause C is superfluous except for the way it twists the knife into the Palestinian minority by defining an exclusive relation between the Jewish people and the State of Israel that excludes them intentionally.

1A. The land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established.

1B. The State of Israel is the national home of the Jewish people, in which it fulfills its natural, cultural, religious and historical right to self-determination.

1C. The right to exercise national self-determination in the State of Israel is unique to the Jewish people.

Regarding religion and state, it is unclear what constitutes a “religious right to self-determination” and how this might be constituted. But there it is, the invention of a new right for religion, in this case Jewish religion only, slipped surreptitiously into the law.  It should be noted how religious discrimination against Muslims and Christians is rooted in another exclusive relation between Jews and the State.

See 1B above.

Arabic language is demoted from being an official language of the state to being to a special one. It’s unclear how clause C follows clause B. The status of Arabic language in Israel, such as it is and such as it could become, is definitely damaged.

4 B. The Arabic language has a special status in the state; Regulating the use of Arabic in state institutions or by them will be set in law.

5C. This clause does not harm the status given to the Arabic language before this law came into effect.

The section supporting Diaspora Jews is turning into a joke, given the way the rightwing governments of Benjamin Netanyahu are promoting relations with rightwing xenophobes in Europe (and also the United States) while marginalizing and cracking down on liberal Judaism in Israel.

6A The state will strive to ensure the safety of the members of the Jewish people in trouble or in captivity due to the fact of their Jewishness or their citizenship.

The State now promotes “settlement” of its majority, with no mention of the needs of its Israeli-Palestinian minority and no mention about the status of Palestinians in the West Bank.

7A. The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.

The ethno-nation state law is “Immutable.”

11 This Basic Law shall not be amended, unless by another Basic Law passed by a majority of Knesset members.

There is no consensus in Israeli and Jewish society.

The ethno-nation state bill is a peculiar piece of legislation. A bill such as this (a Basic Law with semi-constitutional status) would seem to need the support of a super-majority in the Knesset and broad consensus across Israeli civil society. But that is not how democracy works in Israel, where the majority simply dominates the minority. But even a “Zionist” bill, one could think that nowadays days (after the passing of the heyday of Political Zionism and its dogma negating the Diaspora) a law such as this should enjoy buy-in from large sectors of the Jewish Diaspora. That is not the case.

There is not political consensus in Israel about this law. It passed by a vote of 62 to 55 and 2 abstentions. The entire opposition, Jewish and Palestinian, voted against it.

By definition, a semi-constitutional law that excludes 20% of the county, i.e. the Israeli Palestinian citizens, cannot be democratic.

The ethno-nation state law has been rejected in no uncertain terms by the President of Israel, and there were warnings from the Attorney General about legal-political ramifications.

Diaspora Jewish organizations condemn this law. Included are mainline groups like Jewish Federations of North America, religious groups like the Reform movement, the American Jewish Congress, and the ADL

After the bill passed, Netanyahu called this a “defining moment,” then declaring “long live the State of Israel.” The exact ethno-national definition of Israel is precisely the problem with this bill.

What the Jewish Ethno-State Law is supposed to fend off is that final reckoning when Jews become a minority in the entire territories under sovereign Israeli political and military control.  This is an opening gambit to annexing the West Bank, or large parts of the West Bank, and keeping West Bank Palestinians disenfranchised non-citizens in an apartheid-like polity. One day, Israel will have to make a choice between Jewishness and democracy, absent a Jewish majority. This law stacks the deck in advance. In the Jewish majority running roughshod over the Palestinian minority who are citizens of Israel, the way is opened for Israel to continue controlling and even annexing the West Bank while safeguarding what will one day be Jewish minority rule in the total area comprising Israel and the West Bank.

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Planet Satmar (Long Walk Through Williamsburg)

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I had time to kill the other week down by E. 23rd Street on the East River and decided to check out Williamsburg. I’ve never been, except for a quick drive through once. I got back on the FDR heading south for the Williamsburg Bridge. I figured I’d walk around, check out “the scene,” find a hipster cafe, sit down, and read. As luck had it, I crossed the Bridge and pulled right off the bridge looking for a place to park. This landed me in the middle of the Satmar part of town. With nary a hipster in sight, in I went, block after city block through commercial streets and residential ones. Wearing a light jacket, I felt exposed wearing sandals.  I was definitely not going to take pictures. It didn’t seem right, too much like a safari. But I immediately changed my mind standing before the big blue and yellow declaring “Our War Against the Impurity of Zionism.” It was too good to pass up. At this point I started taking pictures, surreptitiously, as it were, even if it still didn’t feel right.

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As always here at the blog, I try not to photograph people. What this leaves out was the overwhelming impression of children. With no adult supervision, there were kids all over the main commercial street, completely out on their own and free. These were young kids, little kids with big sisters, more children per square foot than anywhere else I’ve ever been. I’m presenting here an index to the presence, namely the omnipresent form of cages surrounding the windows, no doubt to prevent the disaster of small children falling to their death.

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About not photographing people, I’m making an exception for a large processional.  Nobody paid me any much mind when I took these pictures, and there were a few other non-Haredi people watching and doing the same. The first thing I heard was loud music, so I went to look. The first thing I saw was the first sound-truck going down the street, preceded by children marching in front. Following the truck were a brace of men, dressed of course in black, dancing in a back and forth wave, then followed by the second structure that looked like a chuppah with a decorated Torah scroll. I asked one of the local guys doing road security what was going on. It was like Simcha Torah in June. With some reservation, he told me that a new Torah scroll was being installed at a small local shul. I may have imagined it, but his attitude towards me seemed to relax a bit when I told him how much I liked the procession.

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The whole scene struck me as having its own normality, except for the empty public places (i.e. property of the City of New York) and flyers on the streets, which felt very much like signs of a community under siege and in distress.

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As always, I like looking at walls and into windows. There is a strong aesthetic sense to the entire place about which I am not adequately expert to identify except from an outsider’s position. It has to do with [1] two types of hardness, one crystal, and one brick and iron, [2] an animate, even soft black exhuberance set apart in the regal indifference of its own internal orbit, and [3] the pinch of economic poverty and the lived constraint of a certain metaphysical sadness adrift in the world. I say this understanding too that this is not for me to say one way or the other.

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Time to go home, I crossed over to the other side of Willamsburg to get to the Bridge, passing through where the hipsters and young rich have settled. It was twilight. Crossing from over the East River into Manhattan with lights going on was unworldly, weird and interplanetary.

 

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Law Not Law (The Cambridge Companion to Judaism and Law)

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For a long time I have thought that “Law” is something of a thorn in the side of Jewish thought and philosophy, associated as it is with all sorts of wild, even violent claims by those invested in its discourse about normativity, authority, and the political. Arguably, about law and Jewish law, modern Jewish thinkers from Mendelssohn to Rosenzweig, and from Kaplan to Soloveitchik, meant something else than the political. This has been argued most systemically by Leora Batnitzky. But what if law in Judaism is not law? What if it is rather the case that it is something more like a figure (beautiful, mystical, auratic) than a body of legislative practice?

Starting with Strauss, attention to law as a political form in contemporary Jewish thought goes back to Spinoza who argued in the Theological Political Tractatus that the Torah is a form of law determining the political life of a commonwealth and that this law lost its claim to authority with the destruction of that commonwealth by the Romans. To the best of my knowledge. No one to date has ventured to ask about how Spinoza might have gotten this all wrong, to say against his own theory in particular that Torah law is utopian in character, that it never was, never was the law of a land, and that Torah only looks like law.

It is today in orthodox thought and conservative Jewish philosophy under the influence of orthodoxy where the problem of law is truly flagrant. The most basic assumption is the idea that Judaism is determined as law, of which there are several variants, not always consistent. These include the following: [1] Torah is law. [2] Law in Judaism is eternal, unchanging, apriori, divine (Hirsch, Soloveitchik). [3] Jewish law or Halakhah is or was once the constitution of a Jewish commonwealth or of a semi-autonomous community (Spinoza). [4] Judaism is political, not a religion, a matter of obedience, not freedom (Strauss). [5] Jewish society today needs to reconstitute and shore itself up on the basis of law. To date, the discourse of law in Jewish philosophy has been essentialist, showing only the barest modicum of historical nuance.

For theoretical clarity, The Cambridge Companion to Judaism and Law (2017) edited by Christine Hayes stands out as the go-to source to suss out and test claims of this sort about law. Its contributors are drawn from the best and the brightest across the field of Jewish Studies, including Hebrew Bible scholars and scholars of rabbinics, historians, intellectual historians, and philosophers. Each contributing essay examines the phenomenon of law in its author’s area of specialization, with each contributor culling from the larger scholarship in their field. The volume is both synthetic and analytic. What makes the book invaluable is the way in which the contributors, for the most part, end up complicating and making unclear the very thing that the book is supposed to clarify: namely the allegedly primary status of law in Judaism.

Is there a consensus about law in Judaism apart from the typical agreement that the “figure” of law, if not law itself, is a dominant phenomenon? Is there any agreement about the status and function of law in Judaism? Strange as it sounds, there might actually be such a consensus across much of the volume, one that cuts against the grain of the introduction penned by Hayes. Exploring the centrality of law in Judaism almost all of the chapters collected under her expert editorial leadership, including her own contribution, subvert the contention expressed in the introduction that Jewish law is the essence of Judaism. Ultimately undermined is the view that, historically, before the modern period, “Judaism was law,” that structurally, Judaism is law,” meaning that law is “constitutive of the divine-human relationship,” that “the norms that guide human action lay some claim to divinity” qua written legislation (pp.2, 3, emphases in the original). The Cambridge Companion to Judaism and Law gives every reason to undermine that basic, regnant view of law in Judaism.

We can start with curious thing, which is that when Hayes talks about law in Judaism what she means is “divine law,” not some political nomos under the direct rule of a human halakhic authority, religious or political. The closer one looks at the historical material (in biblical, Second Temple, rabbinic, and medieval sources) one begins to suspect that “Jewish law” does not actually exist prior to its reconstruction in the medieval sources if by law we mean some umbrella phenomenon or master rubric definitive of Jewish life as such. By law or Torah, Hayes will actually contend that in Judaism what is meant is not a “system of secular law” for God’s people (p.4).

What then is law in Judaism? What is Torah? Consider the evidence as suggested in the historical studies to The Cambridge Companion to Judaism and Law. What are we talking about when we talk about “Jewish law” or law in Judaism? What does “law” look like at whatever historical juncture? Is it prescriptive, normative code actually defining the actual life of a social body, namely the Jewish people or community of Israel, in a comprehensive fashion down to the detail? Or is it something other than that, more rhetorical, paideiac, monumental, utopian, set apart from and potentially in tension with actual lived life? Was divine law, i.e. the divine law of the rabbis as opposed to Jewish lay authority, backed up and enforced? Was it “political”? Did it enjoy broad social sanction? To what degree was divine law or Torah lived out in life and to what degree, and to what degree was talmud Torah, the study of the law, as something simply taught in schools, loosened from broader social life?

In the Hebrew Bible, Chaya Halberstam begins her analysis noting the non-relation between history and text. This is to say that the laws that the biblical text purports to prescribe have no finding in the historical record, such as it is. Already on the very first page to her essay, “Law in Biblical Israel,” we have only the negative conclusion that “law does not seem to have been a highly developed, autonomous field, or a ‘system’ in any real sense of the word.” Law was instead embedded in other social discourses such as covenantal history, prophetic poetry, rhetoric and emotional exhortation (pp.19-20). To this I would suggest that law was perhaps not only embedded in these other discourses, but even overwhelmed and subordinate. Halberstam own view is that the only way for any of what counts as law in Scripture to count actually as law is with a wide-open lens defining our term as “the enterprise of subjecting human conduct to rules”). As offered by Halberstam, law in biblical Israel was a body of tradition with which to resolve disputes and establish restorative justice. But what we’re looking at in the Bible is not specialized legal training, but rather popular paideia, a “purely theoretical, didactic enterprise” in no way connected to “ancient Israelite legal practice” or emerging from real experience. What I would recommend calling non-political, law in biblical Israel was a social practice, a “series of moral rules backed up by nothing other than their own moral authority” continuous with cultic observance and familial custom (pp. 23, 27).

But also discontinuous with actual practice. For instance, according to Halberstam, biblical laws determining capital punishment for homicide was a priestly rule, not one designed by and for public magistrates. They were promulgated not on the principle of civic order, but out of concern perhaps for ritual purity, and perhaps in conflict with actual social practice in ancient Israel and the ancient near East by which compensation was accepted even in this area of law (p.26). Halberstam more than suggests that biblical law was more polemical than legislative. Indeed, she indicates that these rules take on auratic character once committed to written form (p.22). Situating these utopian legal materials into a cultic system, Halberstam considers it unlikely that the Torah, the law of God was ever used as code of law (p.27). What we get from this analysis is the firm sense that biblical law was more dramatic and emotive (in Deuteronomy, in prophetic writing, in the wisdom and anti-wisdom literature of Proverbs and Job) than legal as such.

Regarding Second Temple Period sources, Seth Schwartz observes that among the high clerisy legal sources were “largely absent.” Torah is adored and fetishized, but there is no interest in applying law outside the world of the Jerusalem Temple or sectarian communities, and that among the low clerisy, little attempt was made to bridge the gap between normative biblical texts and actual legal practice (pp.48-9). Regarding the Dead Sea Scrolls, for example, one finds a rule based ethos, but “little or none of this material feels legal in any way that we would recognize.”  There the focus is dominated by apocalyptic urgency and sectarian stringencies about purity and righteousness. In the sectarian texts, law is less legal than hortatory and futuristic (p.51). In non-sectarian literature, there is the valorization of Torah coupled with fear of God and wisdom, but no taste for legal details (pp.51-2). For Philo, Torah is didactic, not legal (p.52). Josephus gives us a sense of customs and norms, but there is little mention of courts other than that of a Jerusalem council that met sporadically. In these sources, no sense is given of a high legal theory, nothing systematic or specialized. Law is more narrowly cultic in scope (pp.54-5, 59). In Hellenistic Egypt, if a Jewish legal politikoi nomoi survived it was in the realm of religion and limited areas of private law. There is no way of telling how Jews in rural areas unofficial arrangements outside courts and village offices, and no knowledge of how ethnatic/politeuma courts worked and with what kind of law or these survived into the Roman period (pp.59-61). Regarding the “customs” permitted to the Egyptian Jews by the emperor Claudius, there is no hint of legal autonomy, ethnarchs, or courts. In Judea, Schwartz speculates that Jewish law was, indeed, the law of the land in a strong sense, but there is no detailed evidence prior to the Great Revolt. In sum, the Second Temple Period texts indicate ritual law, with not much to indicate about civil law. About the “quotidian legal lives of Israelites and Jews,” there is almost nothing to know (p.71). What we have are “strongly localized versions of general Hellensitic and near-eastern pan-Aramaic legal norms and instruments and a tendency to claim such norms and instruments as specifically Jewish” (p.72).

In rabbinic sources, the picture of law turns out to be no less clear, despite the prevalent legal form that stamps them. There is, I think, a tension in Hayes’ analysis, perhaps a contradiction. On the one hand, she adapts the notion that law in rabbinic Judaism was comprehensive and systematic, embracing all actions of daily life (pp.79-80). But here’s the rub. Hayes will also recognize that the historical record (as opposed to ideological positioning of the law by the rabbinic class) was more complex. For instance, the halakhic study hall was in tension with the synagogue as successor of Temple; the status of the rabbis was dependent upon the patriarchs (p.77). On top of that, the Theodosian Code of 398 CE granted Jews authority over religious laws only, not civil, whereas in Sasanian Persia, the relations between rabbis and the lay authority of the Exilarch were often strained (p.78). The idea of rabbis taking the lead in reviving Jewish life is recognized by Hayes as historically dubious (p.80n.8).

For this reader, the most interesting and tricky moment in Hayes’ analysis is where she draws the distinction made by Michael LeFebvre between “legislative” and “non-legislative” models of legal societies. In the former, law is identified with written statute, legal practice based on texts as the source of rulings. But in a non-legislative model of law, Hayes quotes LeFebvre, “written law “may be a description of what law looks like, but what is written is not viewed as being ‘the law’…The idea of law, in these cultures, is abstract, like the ideas of justice, truth, and righteousness. All of these ideas can be discussed in writings, but none of them are ever supposed to be embodied by a text….There is a distinction between actual law and law writings in the non-legislative society.” Commenting, Hayes refers to non-legislative law as serving “academic, pedagogic, monumental, propagandistic, or other functions (pp.88-9).

For arguments about law in Judaism, this distinction cannot be overstated. LeFebvre is talking about non-legislative law in the Bible. He and Hayes both assume that over time these non-legislative biblical legal wrings assume a legislative status. The claim is that the rabbis see in Written Torah a legislative, prescriptive source of law. The problem with this contention is that non-legislative models seem just as applicable to rabbinic sources. According to Hayes, the dialogue form and unresolved disputes for which rabbinic law is famous stand “in tension” with the “assumed prescriptive function of law” (p.99). Accounting for this is the historical fact that for much of the tannaitic and early amoraic periods, what Hayes calls the “rabbinic movement” was not an “organized corporate group, but rather a loose network, making it impossible to fix the halakha or achieve a majority opinion on any matter” (pp.99-100).

Hayes considers it “perhaps ironic” that with the acceptance of diversity and pluralism comes an “ambivalence toward normativity itself.” Add to that appeals to extra legal considerations (p.103) and the status of law as normative authority begins to wobble. With and against this comment, I would argue that none of this is ironic. Hayes will go on to say that anonymous rulings establish legal normativity, but the cat is already out of the bag. We know, of course, how anonymous rules in mishnaic text are always unfixed, opened up and parsed in the gemara. Indeed, after a quick look at ritual law, including in this analysis, the laws of sotah, which she describes as theoretical and fantastical, Hayes swings back to ask almost suddenly if the Mishnah was ever a prescriptive law code in the first place. She more than states that it was not, that the Mishnah was theoretical paideia and utopian, meaning non-legislative even if the idiom is legal. What Hayes finds are elements of code, collection, teaching manual. They are not unlike Greco-Roman legal writings. Except the rabbinic sources show keen interest in ritual matters relating to an inoperative Temple, which, she tells us, sets rabbinic law apart from Roman law (pp.110ff). As for the Bavli, Hayes points our attention to non-legal facets that defy easy classification, suggesting that these non-legal aspects and, in her words, the “incoherence” of statue allow us to “reimagine law not as prescriptive.”

So rabbinic Judaism was Torah-centric. But all of this is confusing. We know from Hayes herself that Torah is not law, which is a strange thing to say in a volume devoted to “Judaism and Law.” In a footnote at the very start of the chapter, she explains that the Hebrew word Torah “continues to govern a much broader semantic field than the inadequate translation ‘law’…Readers are reminded that the rabbinic concept of Torah is expansive and includes both form and content not regularly signaled by the English term ‘law’” (p.76fn.6). Legal normativity may be the last word of Hayes’ essay, but the very idea has been severely complicated by a close reading of her own analysis already at a margin from the bottom of the first opening page.

About law in medieval Judaism (Jewish philosophy and halakhic literature), for Ze’ev Harvey it’s an opening question the extent to which medieval jewish thinkers considered the Torah of Moses to be “law” (p.157). To be sure, in these medieval sources there is an actual interest in law as such, and on the priority of law as a principle of good government. Here we are on firm Straussian terrain. But is Torah political as a legislative body of practical law? What interests us in this discussion are questions picked out concerning the status and authority of Sinaitic law and its relation to secular, sovereign authority. As Harvey reads him, according to Maimonides, only undisputed law can be said to go back to Sinai. And since the vast majority of laws in the Jewish legal tradition are under dispute, they can ipso facto be considered as not coming from Sinai; they are rather the product of difference in human legal reasoning. They have no divine authority. The law has been effectively secularized. Once promulgated, even by Moses, law is subject to human legal reasoning (pp.168, 171). For his part, the Rashba subordinated Jewish Torah law to gentile rulers and to Jewish lay leaders on the assumption that Torah law, when strictly observed, leads to the desolation of the world (p.177). Lastly, Ran distinguishes the “righteous judgments” of Torah law, which he considers to be more ethical and religious than political, more conducive to individual morality, but less conducive to the general welfare of city (p.181). In short, what is interesting about Harvey’s analysis is the way that law has been disassociated from Torah, politics from religion, already in the medieval sources.

Verena Kasper-Marienberg throws much historical light on Jewish law at the historical cusp before German Jewish Haskalah and Emancipation, that point when, as alleged in conservative leaning Jewish philosophy following Strauss, everything begins going wrong in Jewish life, when Judaism loses its distinct shape as a political community defined by its own law.  Kasper-Marienberg indicates the sharp narrowing of Jewish juridical boundaries well before Emancipation and 19th century liberal modernity. She mentions in particular the Judenstättigket, a local Jewry ordinance in Frankfurt am Main, originally promulgated in 1424. Centuries before the time of Mendelssohn, Jewish law was restricted to ritual, ceremonial functions and minor civil disputes. Kasper-Marienberg also makes mention of Jews going to non-Jewish courts increasingly in the eighteenth century, and not because they sought to buck Jewish communal norms, but simply to secure their own legal advantages in particular suits. Perhaps most important is the indication we are given of rabbis affiliated with if not dependent upon Jewish lay leadership, and what we begin to see is how narrowly circumscribed a “religious” thing Jewish law was already before liberal modernity.

Everything changes in modern period. Nothing changes in modern period. On the one hand, the discussion falls flat, both in real life and the analysis of the book. Higher stakes are placed on questions regarding normativity and authority as the subject headings shift away from law, rhetoric, and paideia to polemics for and against “The Law” (and “Halakhah”) as reified theoretical and cultural objects. This starts with stilted notions of “Jewish law” in Spinoza, nineteenth century liberal and modern orthodox polemics, and, at times, twentieth century thought. On the other hand, for all the precision that “the political” is supposed to bring to our understanding of “law” in Judaism, the historical studies inform us is that what we’re looking at continues to fall under the category of “religion” insofar as law in Judaism still has primarily to do with theology, cult, and ceremony, not political social structure.

The problem in the modern period is the confusion of Torah with “Halakhah,” which is then confused as something actual. What I means here is something very narrow. Eliyahu Stern in his essay on law and the Jewish Enlightenment assumes that Spinoza’ political theory is the strongest challenge to Mendelssohn non-political interpretation of Jewish law (p.218). But Mendelssohn’s view has only been confirmed by the ancient, medieval and early modern discussions in this volume. In Jewish history, Torah law has been submitted to the law of the king or state, eking out a narrow place for divine law in the narrow four cubits of ceremonial and private space. For his part, Yonatan Brafman fails to consider deeply that what concerned modern Jewish thinkers, even orthodox ones, was, all in all, not politically consequential (p.303). While Brafman is, I believe, the only person in this volume to even consider gender, I am not sure what to make of the expressed personal desire to “recreate” “holistic ‘lifeworlds” in which halakha once again simply makes sense to the individual (p.311; emphasis added). Nor do I know what to make of the notion that contemporary Jewish philosophy “must overcome” the distinction between theology and law understood as a symptom of modernity without “succumbing” to “romanticism for premodern forms of Judaism” (p.312). The questions here are begged. Our historical sources more than suggest that law never “simply made sense” in pre-modern Judaism.

About the relation between theology and law, far more critical are the bracing thoughts concluding Menachem Lorberbaum’s chapter on Hasidic and Misnagdic sources.  Here he opines regarding the failure of Jewish law in those very quarters where one might think it makes the most immediate, common sense. An authority on the secularization of law and the narrowing of divine law in the medieval Jewish legal tradition, Lorberbaum writes here about the incoherence of ultra-orthodox Judaism today. “Viewed in light of the relation to halakhah, to culture, and to mysticism, there is no overarching theological commitment that can hold a convincing and coherent position regarding all three. Jewish orthodoxy will necessarily be a loose political coalition of incommensurable theologies. The challenge of its politics may be understood as the ongoing effort to preserve this collation through the ideology of a halakhically committed community whose power lies more in its ability to exclude competing ideologies than in its ability to provide a compelling and overarching theology of Judaism” (p.256).

The key words in Loerberbaum’s astute analysis are “convincing,” “coherent,” and “compelling.” His is a point made by Rosenzweig in his essay “The Builders,” that today “Jewish law” does more to split community than bind it together, that Jewish thought continues to squirm on the needlepoint of a why.

One possible and counterintuitive conclusion from a reading in the round of Judaism and Law is that, in Judaism, law is not law. In other words, law is not law in that does not “simply” legislate. Bounded by tradition and custom, by law in Judaism one can only mean it to be, as per Schwartz, “a subcategory of righteousness, sanctity, or purity” (p.48). It is, with Hayes, “non-legislative,” “academic, pedagogic, monumental, propagandistic.” The more you look at law in Judaism as a historical phenomenon, the less substantitve it appears, less “political,” less “legal” and more “religious” and “iconic.” In schools and study halls, vested social actors set what Hayes is calling divine law apart from and above the societies they want this law to govern. In combinations of written form and oral form, there law assumes a virtual life of its own, no doubt causing real effects in actual life, but at the same time one that becomes increasingly impracticable. As a distant phenomenon, as gazed upon, as removed and set apart from the concrete ins and outs of daily social life, divine law enters social life as if from without as something more magnificent and mysterious than mere law. Therein lies its unmistakable aura.

Liberal theory still gets some things right. Rejected here is the by now old argument in religious studies and political theology that there is no distinction to be drawn between religion and law. Our own takeaway would be that religion and politics through the medium of law and ceremonial performance pass through each other. The support or undermine each other, but almost always from separate positions. This is not, however, to ignore how the more or less religiously unencumbered secular law of palace and parliament always trumps religious or divine law. About this, Spinoza was indubitably correct. Congruently from inside its own place, religion completely overwhelms law the more religious groups like ancient priests or antique and medieval rabbis lack power. Also indubitable is the typical disaster to both religion and the political when religious actors are given the free chance to apply religious values in broad and definitive political strokes against large and resistant sectors of the general public.

 

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Putin & Trump (An Intimate Relationship and Gay Jokes)

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I originally reposted what I had immediately thought was a funny Jewish insider joke I saw on Twitter about Putin and Trump, a modest chuppah and yihud. I was pushed back by friend and colleague Martin Kavka about the homophobic implications of these kinds of jokes. I saw a comment on Twitter saying the exact same. So I’m going to stop making those kinds of jokes, except to say that I do not know how otherwise to communicate the incredible intimacy between these two men. But enough is enough. I’ll let others make these jokes, i.e. people who have the right to make these kinds of jokes from their own subject position, and I will enjoy them from my own. The same thing is obviously the case about Jews making jokes that play off anti-semitism. As a straight CIS male, these kinds of Putin and Trump jokes are definitely not my jokes to make, so I’ll stop with profound thanks to Martin for the generosity and friendship with which he called me out on FB.
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Virtual Judaism of the Mishnah (Jacob Neusner & Gilles Deleuze)

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Reading Neusner’s classic Judaism: The Evidence of the Mishnah at long last and past midcareer. I am unsure if earlier I would have ever appreciated the book enough or at all or I would have been able to conceive the idea that Mishnah is virtual Judaism. What Neunser finds in Mishnah is a philosophical system cut off from and suspended over actual reality, a picture of society suspended over history, and in the cultic imaginary of the holiness code, the intensification of heighted life.

Neusner calls Mishnah a “grand design of life for the house of Israel,” including civil space and holy time.  The use of the term “design” suggests what the theorists of religion following JZ Smith would call “map,” “not territory” (p.42). But what kind of house? Is the design a practical blueprint? Neusner asserts unequivocally that this is not a house in which anyone ever lived or in which anyone could ever have lived (p.xvii). This means more than the historical fact that the Judaism of the Mishnah was rejected back in the day by the vast majority of Jews during their failed wars of liberation from Roman empire (pp.xviii, 24).

More to the point is how the Mishnah reflects not the actual world of quotidian life and historical change, but rather a picture of stasis and the values of stasis. In the Mishnah is confronted “a work of absolute fantasy: a non-existent Tempe, fully laid out, building, protocol, procedures; a society stretched out from the walls of the Temple, with its space and regulation of time, it mode of establishing families and  dissolving them, its economic life, all proportioned in relationship to that imagined Temple and its imaginary cult” (p.47). As repetition, the Mishnah’s design models the ongoing events of uneventful events in the life of the village and cult. Its affirmation of ordinary society, state, commerce, and cult out of joint with contemporary reality, the reality evoked by the Mishnah is entirely made-up and mapped out in the imagination. Its design constitutes a “leap back to what was not” (p171).

In Neusner’s presentation, the Judaism of the Mishnah is more like philosophy than law. “Before us lie the beginnings of work which in its late day phased in exquisitely trivial terms some of those old, perennial issues of philosophy contemplated by Aristotle and later considered by the Stoics, issues of potentiality and actuality, the physics of mixtures, and other odd and, from a practical viewpoint, empty questions, the answers to which…interested only those who asked the questions” (p.47).

What Neusner calls the gift of the scribes to the Mishnah is the organization of knowledge and possibilities into patterns that generate “abstract perception.” Beneath the surface of the rule perceived in Mishnah are unstated principles and unsounded patterns, a mode of thought attuned to that reality which lies beneath the surface, but which we would add to Neusner’s evocation, revealed only at the surface (pp.241-5). What matters more than the said is the saying in a world without subjects, a universal grammar as imagined reality, distinct statements related to a whole imposed by mind (pp.234, 246, 247). There are, as per Neusner, no actors, authors, or audience in the theater of the Mishnah (234), which has been made to resemble a wax museum, tableau, diorama at rest in perfect stasis (235). As philosophy, Mishnah is a system of synthesis, fusion, connection, division, the disintegration of things vis-à-vis each other and the connection of acts and things (pp.234, 235, 261, 265). Out of this chaotic world reduced to constructions of pure potentiality, the Mishnah creates bounds about and pathways through confusion.

What is common to both Neusner and Deleuze might have a lot to do with the residual force of Stoicism as a philosophical disposition. We see this in the way both thinkers theorize virtual potentiality, a rhizomatic connecting and disconnecting of forces, a world without subjects. They are different, of course. Deleuzian lines tends toward intensities that are bifurcating, accentric, chaotic and schizophrenic, whereas Mishnah seeks stasis and stabilization. Deleuzian philosophy is anti-humanist or post-humanist, whereas the Mishnah according to Neusner is humanist insofar as human intention is placed at the center of the system.

What, though, is the intention of the Mishnah? Is it good sense and common sense, or something that comes just as close to paradox that is just one step away from an abyss. While Neusner tracks faithfully the conservative worldview of the Mishnah we note a chaotic little point. “What can a man do?” is the philosophical question posed by the Mishnah to the philosophical reader.  This is the evidence of the Mishnah. “What causes and resolves confusion and chaos is the power of the Israelite’s will” (p.270). Consider this tricky little statement. There is more to Mishnah than resolving chaos into ordered cosmos, which is the usual rubric with which to consider Mishna and other so-called symbolic systems in the study of religion. The will of the Israelite does more than slot flux into neat categorical buckets. The cat that Neusner lets out of the bag is that the will of the Israelite can just as well cause chaos as resolve it. At the center of the Mishnah, is “man.” Neusner exposes how it is “this man is Israel, who can do what he wills.” Human will and willfulness enters uncertainty and difference into the heart of the rabbinic rhizome.

In Talmud, the divine dice player is the human figure standing at the center of the Mishnah, who corresponds to God in heaven (p.270). More infrequently than not, God appears barely in the Mishnah. God is not “actually” there, not even in the index to Neusner’s book. Almost godless would be more the radical conclusion of his more conservative analysis. The human subject makes holy. The human subject animates the system. The human, not God is at the center of the Mishnah. The human subject decides, leaving Heaven to confirms and ratify (p.277). The rabbis are the ones who have assembled the entire apparatus. They are the ones who determine the rules of the game, the roll of the dice being theirs. At question then is what forms of difference will emerge with each successive roll, repeated one roll after the other and under the condition of a freedom that only the system allows its operators?

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Deleuze Talmud Notes

 

duchamp network of stoppages

I think it holds up, this little exercise in transposing Deleuzian concepts into a theory of philosophical Talmud:

Talmud of Difference and Repetition

Talmud would constitute repetition of Torah, and like repetition assumes the status of echo, doubles, or souls that cannot be replaced or substituted, one for the other (p.1). Talmud-Torah would stand out as a theater of repetition, a revelation of pure forces (p.10). What counts is the frame of the Talmud as that which remains constant whole that contain and force the play of signs and masks. Like in Leibniz, the Bavli finds in the finite clear idea the giddy restlessness of the infinitely small (p.45), what Deleuze refers to as the “determining of pure and impure in a  mix that gives rise to larger genus” (p.60; this quote might be a little off). The Babylonian rabbis are cave thinkers. In the cave of Talmud, every thing, animal, and being is simulacral (p.67).

Mishna would be the image of the “pure past” that never was, but always is (pp.81-6). (This reminds me of Dolgopolsky in The Open Past). Talmud, in contrast to Mishnah would be the active synthesis of the past through the work of recollection, remembrance, reproduction, reflection and understanding in which the former present (Mishna) is represented in the present (p.80). The past (of the Mishnah) becomes general while the present (in the Bavli). The Bavli is the rigorous imperative to search, respond, and resolve. This exploration of the pure past, the Bavli’s relation to the Mishnah,  is erotic (p.85). In relation to concepts drawn from Cinema 1 and Cinema 2, Mishna is the pure time image, the Bavli is a movement-image

Talmud of Cinema 1 (the Impulse-Image)

As building block of philosophical, the particular type of movement-image that best represents the Bavli is the impulse-image situated in an originary world. (In comparison, the Mishnah is almost entirely abstract and worldless. No sense of a world is given there apart from a bare sketch.) As understood by Deleuze, the originary world is related to the semblance of a determinate geographical-historical milieu. What’s left in the originary world are fragmentary shapes and outlines and the like. The originary world of the Bavli is Sasanian Persia. The impulse-image in the Bavli moves from point to point, collecting up fragments, etc.

Talmud as Cinema-2 (The Time-Image)

To turn the Bavli into a time-image would constitute the supplemental work of philosophical Talmud. One would have to step back to see in Babylonian rabbis acting in that originary world, building up fragments and holding them together. The Bavli plunges the gaze of the seer into a world of change, the back and forth change of the rabbinic back and forth, the form itself which never really changes.

In Deleuze, the object of the image is the world, the way in which world and image, the physical and the imagined pass into and out of each other through the circuit of the brain, by way of the screen that constitutes the brain. The primary objects of the gaze in philosophical Talmud is Torah. That is to say that Torah is a world, the world of the rabbis. Torah is the object or world destroyed and recreated in the time-image that the Bavli becomes (p.12). Torah is the object of the long extended gaze, just like the vase in a long cut in a film by Ozu (p.17). In the radical discombobulating and reconfiguring,

Reading the Bavli, it is no wonder at all that so many readers have troubling determining what aspects reflect the imagination of the rabbis and what reflects actual social, political relations. As a time-image, the Bavli has replaced its own object and destroys its reality even as it gives back “some reality.” The Bavli is like a circuit, a brain that exchanges, corrects, selects and sends its students off again (pp.7-9).

One could start with history. For Deleuze, the emergence of the Time-Image in cinema and thought are correlate to the devastated landscapes and cityscapes in Europe after World War II. It is a setting that lends itself to the collapse of clear sensory-motor links that connect seeing and other forms of sensing to clear, determinate actions and acting. For the contemplative person (the seer, the thinker), these scenes lend themselves to pure looking, pure seeing with no necessary connection to acting in this or that way. The rabbinic seers face a world of catastrophic loss, even as they continue to believe in this-world, as a function of the gaze they direct into and away from this world through the prism of talmud-Torah.

What the Babylonian rabbis see is the dark firstness, the pure forces of talmud Torah that have no necessary actuality or action in the physical world. (For the cinematic-philosophical seer on the postwar scene, cf. Cinema 2, pp.40-1). In the Bavli, philosophical Talmud looks into Torah and what the rabbis see is something power, horrible, beautiful (p.18). Just like the world in Deleuze, Torah is revealed in the time-image and does not have to be justified (p.20).

On the logic of the crystal-image (the most accomplished form of the time-image), the physical, actual object, i.e. Torah, disappears into a mirror of the rabbinic brain where it becomes virtual in the process. At the same time, the virtual image (Torah as seen through the prism of the rabbinic brain) assumes its own actuality, a new actuality. But the original object itself, God’s revelation to Moses at Sinai, is more and removed from view, referred to elsewhere, invisible. Historically distant and displaced and no longer operational its semblance becomes more and  more simulacral (cf. C2 p.70).

Inside the crystal-image, all sense of the present splits into the past and the future. Time gushes into two. (p.81). Having crystalized the actual and the virtual, Torah is spectacle. Its reality is now beyond the actual and virtual (pp.83-4). As a crystal-image, the Torah of the rabbis grows constantly, starting with the seeds that are Mishnah and Scripture. These are the entrance points for the rabbis into Torah. These seeds are textual, archaeological, psychic, historical, spiritual. They are the entry points for philosophical Talmud to work its way into the imaginal world that unfolds in the Bavli, whose unity is pure spectacle (no less than the spectacle of Rome in films by Fellini).

In the pure Torah of the crystal image, there is no difference between watching and being watched (pp.88-9). Torah never leaves the crystal. What we see in the crystal, in the Bavli is a bursting forth of life, of a sense of time in whose sheets everything and everyone is contemporary with everything and everyone (past, present, future). We see the rabbinic brain at work. Hidden from view is its other, an image of the divine brain itself. Perhaps this is the brain revealed in Zohar, flowing at a different level of intensity, flowing from the source of life itself, skirting just up to and around fiery death.

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Thought and Image (Deleuze Cinema)

antonioni

I’m reading chapters 7-8 of Cinema 2 as a single, complete, and coherent unit that touch upon the image as a work of thought. There are 3 complex parts to these reflections in chapter 7. The endpoint is to theorize the de-linking of the sensory-motor links that otherwise connect the human subject to the world, as well as connect the world to the human subject. Against phenomenology, the upshot is actually to free or redeem the world by severing the connection with which the intending human subject seeks to bind the world to that subject’s own clichéd representations. In chapter 8, the discussion returns to bodies and brains, to the reconstitution of the what for lack of a better word one can still call the “human subject” as figured in “the thinker” and “the people.” The driving concern is how to restore “belief in the world.”

Chapter 7

[1]

Relating to images and  concepts, there are three moments in the Movement-Image. The movement-image was the subject of Cinema 1 to which Deleuze now returns in chapter 7 of Cinema 2.

[I] The first moment moves from image to concept. The image produces shock to thought with the movement image, forcing spirit to think the whole as dynamic effect of images. More than the subject sees and hears, they FEEL “totally physiological sensation” that gives rise to thought. I THINK the whole as a subject. In the shock effect registered by the punch or of the sublime, thought is forced to think itself (as in films by Eisenstein). Shock is produced by the simultaneous existence of two contradictory factors in the creation of a concept (pp.156-8).

[II] In the second moment, movement goes from concept to image and affect. Thought (i.e. the thought of the whole) shifts back to the malleable and agitated image, giving fullness and passion back to intellectual process.  Sensory thought and emotional intelligence (Eisenstein). From the whole back to a mass of agitated, mixed up images that express the whole. The whole now conceived not as unifying logos, but as a drunken, giddy pathos that bathes them and spreads out in them. The image is loaded up with visual and sound features, actions, gesture. In internal monologue is reached the limits of the universe, an orgy of sensory repetitions, fountains, spurting fires, zig-zags, back to the figure which gives image affective charge that intensifies sensory shock (p.159).

[III] In the third moment is established an identity between concept and image (the concept in itself in the image, the image for itself in the concept). In action-thought is established the unity of nature and man, individual and mass raised to “a supreme power,” identified with monism. Again with an eye on Eisenstein, Deleuze posits the action-thought as the art of the masses,” presenting a strange thing, the individuated mass, neither qualitatively homogenous nor quantitatively divisible. This unity will come undone in the Time-Image (pp.161-2).

[2]

The driving problem after World War II in postwar cinema and philosophy concerns belief in the world. The world is now recognized as “intolerable.” One reflects back on the battered European cityscapes with which Deleuze begins Cinema 2. In the Time-Image, the dialectical movement-image (dialectical thinking itself) is now smashed –by history, in thought, in cinema. For Deleuze, a new way to think the image and to image thought unfolds in the shift from Eisenstein to Artaud (along with Blanchot and Heidegger). This is the meaning of the shift from the Movement-Image to the Pure Op-Son Image.

In Cinema 2, Deleuze follows the lead set by Artaud. The starting point of thought now becomes the unthought, i.e. the impotence to think and to act, dissociative figures like figures of nothingness or “holes in appearance.” There is no longer a whole to be thought as was the case in the Movement-Image. Instead, thought aims at what cannot be thought in thought and what cannot be seen in vision. Suspending the world, the image is no longer conceived in sensory-motor terms between a person who senses and then acts rationally upon the world. We are no longer in the action-thought. The image is now purely visual. No longer “active,” the human becomes a pure seer, i.e. one who sees and is struck by the “intolerable in this world” (by which Deleuze means only the daily banality of the conventional cliché). Paradoxically, the only way out is not to think another world but to think and believe in this world that cannot be thought. By virtue of the absurd is the way by which to believe in life (pp.164-70).

Deleuze’s anti-humanist gambit is this claim. The less human the world, the more it is the artist’s duty to believe and produce belief in a relation between the human subject and the world precisely because the world is produced by people. Quite remarkable is the turn precisely here to “religion.” What Deleuze sees as the Catholic quality of film is the “grand mise-en-scené” twinning of Christianity and revolution in film attracting the art of the masses” and by which the world is transformed, or, one might say, even redeemed. Belief in the world reconnects the human person and the world, reconnecting the human to what they see and hear, perpetuating life. There is a lot in Cinema 2 on Rossellini and religion). Whether we are Christians or atheists, as per Deleuze, our belief in the world, “before and beyond words,” is not in anything “other,” but in the flesh, with religious topoi sustaining belief in the body as germ of life (p.171-73).

[3]

How to restore belief in world is the problem picked up towards the end of chapter 7. The problematic starts with abandoning figures (p.173). “The problem” that makes us think, for example in the cinema of Pasolini, is introduced as an event from the outside. Film imposes a problematic, for instance, when an envoy from outside breaks into and disrupts the internal order of things, or when the exteriority of belief takes over thought. In films by Kurosawa, characters seek out problems until a purely optical world is reached. Can I hold my gaze on what I’m now seeing, when seeing sees the thought outside itself and outside knowledge and actions.

The time image sends us back to an absolute relation with the outside, which is beyond psychological consciousness or anything related to and thereby relative to the external world. The whole is now constituted not in terms of an association of images, but as a disassociation of differentiated images, the whole constituted no longer as one being but as a void that calls the image into question. Image is cut from the world. Sound is cut off from sight. There is no more out of field. The outside of the image is now replaced by the interstice between the two frames in the images. The whole gives way to a sequence of images, each sequence independent; instead of perfect, resolved harmonies, there are dissonant tunings and irrational cuts. Each series refers to a way of seeing and hearing for its own purposes.

The upshot comes at the very close of the chapter. It is precisely at the very break in the unity between the human and the world, when we have done away with the human point of view, when the subjective position gives way to the technical apparatus, that we are left, finally, with only the world and belief in this world (pp.173-88).

 

Chapter 8

Cut off from each other in chapter 7, two figures of the human subject are regrouped in chapter 8. These two are “the thinker” and “the people.”

“Give me a body then” is marshalled by Deleuze as “the formula of philosophical reversal,” a cinema of the body. After breaking off the human from the world, the everyday body is the first figure of postwar cinema. The body is not an obstacle of thought but that which plunges us into in order to reach the unthought. That is to say that the body doesn’t think as much as it forces us to think, to think that which is concealed from thought, i.e. life.

[1] First there is the everyday body, tired, waiting, despairing, the daily attitude of the Time-Image that puts the before and after into the body, time into the body. Body relates thought to time as outside, infinitely further than the outside world (p.189) (e.g. Warhol films, p.191). [2] Then there is the ceremonial body; the camera no longer follows the body on daily rounds but makes the body pass through a ceremony, introducing it into a glass cage or crystal, imposing carnival and masquerade which turns the body into the grotesque body, but also gracious and glorious until the visible body finally disappears (p.190).

These are two distinct poles. What matters more than one pole or the other is the passage between these two body postures, the everyday and the ceremonial-crystal. Deleuze relies here on what Brecht called the gest, defined as a formal link or knot combining attitude with physical gesture or posture. But for Deleuze, in the restoration of the image to postures of the body, “the attitudes of body” become categories of the spirt itself. The gest is social and political (as per Brecht), but also “bio-vital, metaphysical and aesthetic” (pp.192-194).

“Give Me a Brain” is introduced by Deleuze as the other figure or type of modern cinema, the cinema of the brain, the next step in this train of thought. The cinema of the brain (Antonioni, Resnais, Kubrick) includes concrete and abstract feeling, intensity and passion as much as does cinema of body (Godard). But in cinema of the brain, the brain and world are identical, for instance, positing an identity between landscapes are mental states. In Kubrick, the world itself is a brain. The identity of world and brain forms a limiting membrane that makes an inside and outside communicate. Inside is psychology, memory, depths. Outside is “the cosmology of galaxies, the future, evolution, a whole supernatural which makes the world explode.” Forces of death, the one passes into the other. But what moves between these two deaths, between what Deleuze calls two sides of death is the mixed up “whole moving life,” which is “at once that of the cosmos and of the brain, which send out flashes from one pole to the other,” here quoting Resnais, “feeling or love” as “mental function,” bringing together pathos and the orgainic (pp.204-10).

What Deleuze calls classical cinema (based on the movement-image) integrated images into a new whole and passes, the passage from one image to another being made upon the basis of association. Classical cinema assumed the idea of harmonious totality. In contrast, the new orientation in cinema and thought breaks apart an interior whole with its clear, continuous, rational association of images. The new image is acentric. It runs up against cuts or micro-fissures in the continuous network of brains. It is an increasingly probabilistic and fragile relation with the brain. No interiority of thought, but rather a force from the outside that attracts the inside. Deleuze no longer believes in a “whole as an interiority of thought,” but rather in a “force from the outside which grabs and attracts the inside.” Breaks now assume absolute value, while association is now subordinate (pp.210-12).

What is a brain? The brain is the cut that cuts out the image, that cuts and puts to flight the internal association of the classical image, that “summons an outside beyond any external world” (p.212). The cut (i.e. the cut or interstice between two series of images) stands out on its own interposing between the one image and the other image. Deleuze calls this the “irrational cut.” The cut now determines the character of the relinkage, rather than the linkage subjecting the cut to its own logic. Another way to put this, is that by means of the irrational cut, each individual image is independent, just like the individual note stands out in atonal music. The arrangement is not a smooth transition, one image after another, but rather one image plus another, each shot de-framed in relation to the next. Appearing in its own, it takes its own life (in its own right) in the form of the blank white or black screen (pp.213-14).

In a concluding coda, Deleuze identifies brain with cinema. This is cinema: a “flickering brain which relinks or creates loops.” With life now freed from “axes of organic representation,” power passes into an “inorganic life,” arabesques and point cuts. Now, everything can function as screen, including the bodies of protagonists and spectators. Virtual film “goes on in the head, behind the pupils.” brain, i.e. sensing and thinking, is now conceived simultaneously as screen, film stock, and camera. The cut grows larger, absorbing all images (pp.214-15).

The final step of the essay on image and thought proceeds from body and brain to the creation of “a people.” Whereas the people are always present in classical cinema (Eisentein), modern cinema, i.e. European cinema, starts precisely with this insight derived from Kafka and Paul Klee: “the people are missing” (p.215-16; emphasis in the original). The people are no longer addressed. They have to be invented. Waxing no doubt in a primitivist vein, the reference here is to minoritarian (Jewish) and third world people. Deleuze sees in third world cinema the image in which are invented a people. The people emerges out from ghettos, camps, and shanty towns, in agit-prop and in trance, which for Deleuze (in some odd way echoing Durkheim) constitutes the true foundation of a people. Cinema makes possible an “assemblage which brings real parties together, in order to make them produce collective utterances as the prefiguration of the people who are missing” (pp.216-24, 224).

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