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Reading :: The Making of Law

Posted by: on Aug 25, 2010 | No Comments

The Making of Law: An Ethnography of the Conseil d’Etat
By Bruno Latour

A while back, Jeff Rice mentioned on Facebook that he was reading this book. I had heard about the French version, but hadn’t realized it had been translated. I ordered it immediately – I’m a big Latour fan, you know – and read it over the next week. But I’ve dragged my feet on reviewing it because I suspected the review would be a long one.

So what is The Making of Law about? As with most ethnographies, there are at least a few answers.

Most obviously, this book is an ethnography of “the Council of State which plays the role of Supreme Court for this branch of law,” as Latour explains in the preface to this, the English edition (p.vii). The Council of State judges cases of administrative law, which in the French system is handled by the executive branch rather than the judiciary. We English-speakers are lucky enough to receive something else in this preface: an actual discussion of data collection methods (p.xi). Latour explains that the participants were quite wary, particularly since their discussions could not be privy to plaintiffs, and they also didn’t want their decisions to appear to be merely the result of talking. Latour collected data via field notes (voice recordings were forbidden); scrambled details of cases so that they would be unrecognizable; and submitted the manuscript to the counsellors (a sort of member check) (p.xi). Latour confesses that although the book was a success in France, critics thought it was “too favorable – not to say complacent. And it’s quite true, not only is this book context-free, it’s also critique-free” (p.xi). Latour isn’t after context or critique; he wants instead to see how the counsellors made their arguments and how they converted these arguments into legal facts, the last word.

And that brings us to the second purpose. Obviously, this setting is quite different from Latour’s earlier ethnographies, which have focused on science and (to a lesser extent) technology. But just as those earlier books examined how scientists constructed arguments and brought them through various trials to harden them into scientific facts, this book examines how the counsellors constructed their arguments and brought them through various trials to harden them into legal facts. Law has the same confidence in validity as science (p.x). Indeed, “it seems that humanity has found no better way of having the last word, nothing firmer, more modern, more reasoned, more grandiose or more majestic” (p.69). Latour rejects the reductionist notions that (a) law is a mere wrapping for power relations (p.141) or that (b) legal enunciations are reducible “to the mere expression of a form, to the application of a rule or to the classification of cases in general categories” (p.142). The court’s work is neither fancy dress nor formalism (p.142). Latour, characteristically, doesn’t like either of these notions, which both suggest that we must understand them by ignoring practice and postulating some true reality we can’t see (p.142)! Instead,

we are quite deliberately going to remain on the surface of things, stubbornly following the hesitant course of judgment, in which judges quite clearly admit their prejudices while asserting at the same time that they alone cannot determine the solution, or in which they attach themselves quite passionately to legal forms while constantly rejecting the dangers of what they call ‘legalism’ or ‘formalism.’ (p.143)

Let’s follow blind Justice as she feels her way forward, Latour urges us (p.151). Like Science, Law does its work through referential chains (p.149), and Latour spends Chapter 2 demonstrating how these referential chains work, starting with complexly bound cases that are reviewed and presented by counsellors. (This chapter is especially interesting to those interested in writing and rhetoric, of course.) The referential chains lead to surprising places, sometimes, and also to new facts. In Law, as in Science, these referential chains allow humans “to utter truths that exceed and escape them on all sides” (p.197).

This analysis brings us to the book’s third purpose, which is to contrast the approaches of Science and Law. The two are ways to establish facts using referential chains, but they establish these facts in rather different ways. For instance, they have a different relation between public and private: the public can sit in on scientific experiments, if they request it, but they can’t attend judicial deliberations (p.201). The Council depends on “the homogeneity of the world of files that are kept, ordered, archived, and processed, and upon the homogeneity of a staff that is renewed, maintained, and disciplined”; the laboratory depends on the heterogeneity of equipment and staff (p.203). But more than these, Law and Science rely on two regimes of enunciation. While Science relies on reference chains, Law relies on a chain of obligations (see the table on p.235). This chain of obligations involves modifying value objects such as authority, progress, organization, interest, weight, quality control, hesitation, means/arguments, coherence, and limits (pp.194-195).

Crucially, then, Latour is saying that the tools and concepts that he has developed in his investigations of science can be useful in the study of Law and other domains – but that we can’t turn them into a universal framework for characterizing different kinds of work, different kinds of fact-making. Law is like Science in that it must methodically transform things into facts, but the logic – and the rhetoric – differs and so the mechanisms also do.

I’ve left a lot out here, since the book is in some ways too dense in detail and analysis to summarize neatly. Bottom line, although I got halfway through the book before I could see its unique value, that value did surface in a big way. If you’re interested in Latour or ANT, or for that matter, the rhetoric and conduct of law, I strongly recommend this book.

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