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If knowledge is power, then the power of law can be studied through the lens of knowledge. This book opens up a substantive new area of legal research--knowledge production--and presents a series of case studies showing that the hybridity and eclecticism of legal knowledge processes make it unfruitful to ask questions such as, "Is law becoming more dominated by science?" Mariana Valverde argues that legal decision making cannot be understood if one counterposes science and technology, on the one hand, to common ...
If knowledge is power, then the power of law can be studied through the lens of knowledge. This book opens up a substantive new area of legal research--knowledge production--and presents a series of case studies showing that the hybridity and eclecticism of legal knowledge processes make it unfruitful to ask questions such as, "Is law becoming more dominated by science?" Mariana Valverde argues that legal decision making cannot be understood if one counterposes science and technology, on the one hand, to common knowledge and common sense on the other. The case studies of law's flexible collage of knowledges range from determinations of drunkenness made by liquor licensing inspectors and by police, through police testimony in "indecency" cases, to how judges define the "truth" of sexuality and the harm that obscenity poses to communities.
Valverde emphasizes that the types of knowledge that circulate in such legal arenas consist of "facts," values, and codes from numerous incompatible sources that combine to produce interesting hybrids with wide-ranging legal and social effects. Drawing on Foucaultian and other analytical tools, she cogently demonstrates that different modes of knowledge, and hence various forms of power, coexist happily.
Law's Dream of a Common Knowledge underlines the importance of analyzing dynamically how knowledge formation works. And it helps us to better understand the workings of power and resistance in a variety of contemporary contexts. It will interest scholars and students from disciplines including law, sociology, anthropology, history, and science-and-technology studies as well as those concerned with the particular issues raised by the case studies.
IF KNOWLEDGE is power, so, too, are power relations also knowledge relations, truth relations. While theology has often served as a public arena for the playing out of disputes about how and where to seek the truth, in the present day, and particularly in largely secular multicultural societies, law has become a privileged site in which people either seek the truth themselves or comment on the truth-seeking efforts of others. This dimension of law is not always acknowledged. Law students are told, for example, that law is only interested in particular truths-who committed this crime, how the liability for this accident ought to be allocated-and are enjoined not to waste time on the philosophical or scientific frameworks for truth seeking that characterize more academic enterprises. But in courts of law, as in murder mysteries, looking for the local truth about an event usually involves both participants and spectators in theorizing about general truths, and even about whether truth can ever be found. Just as mystery writers use the pursuit of particular truths as a vehicle to propound general truths about the nature of evil, sex, or our "mean streets," so, too, do law's personnel, from police officers to high court judges, oftenmake explicit and implicit assumptions about truth as such while going about their daily business. This is undoubtedly a reason for the popularity of law- and justice-oriented entertainment: spectators as well as participants use legal arenas to engage in both "a daily moral workout" (Katz 1987) and a daily truth workout.
Law is usually examined by critical legal studies and socio-legal scholarship as a key site for the reproduction and contestation of various forms of power relations. But if power works through knowledge, it should prove useful to undertake an examination of some legal events and processes that highlights the knowledge dimension-the constitution, contestation, and circulation of truth in law or in respect to law.
Knowledge production can, of course, be studied in a number of ways and at many sites: anthropological studies of how ordinary people think about law and deal with law, for example, are crucial contributions to our understanding of the formation of knowledges about justice in particular situations. While informed and inspired by legal anthropology, this book does not study what ordinary citizens think about either law or justice except indirectly. It is thus closer to the sociology of law than to legal anthropology, since its main concern is the formation and the contestation, within legal arenas, of a certain set of truths-about vice and virtue, normality and indecency, urban order and disorder-in and through the work of state officials, lawyers, and judges. But it is more a sociology of law in action than a sociology of law in the books: it pays just as much attention to how morality-squad officers testify about indecent performances as to what courts have said about indecency, and devotes more space to how liquor inspectors and licensing officials make determinations of drunkenness than to the case law on what counts as evidence of intoxication.
The quest for moral and social truth that is the moving force and the objective of lowly legal actors such as police detectives and municipal inspectors-a quest that like all other discovery efforts is usually more of a production or invention than it is the discovery of a previously existing inert object-has rarely engaged the attention of those who study the formation of knowledges. Sociological studies of knowledge practices have begun to examine legal arenas, especially courtrooms, with much success; but they have focused their attention almost exclusively on scientific knowledges. They have rarely examined the nonexpert knowledges of right and wrong, order and disorder, and virtue and vice that are the everyday currency of legal discussions and adjudications.
Similarly, studies pursued by Michel Foucault and by the many scholars now using some of Foucault's insights and methods are much more informative about the development and use of what I call "high-status" knowledges-psychiatry, psychology, clinical medicine, statistics, epidemiology-than they are about the low-status knowledges that are used not only by ordinary people in their "popular" pursuits but also by countless state and private-sector employees in the pursuit of a variety of regulatory and administrative tasks. Understanding how classifying people and objects by means of science, medicine, sociology, or economics has made certain forms of modern governance possible is, of course, hugely important, and without the prior production of both Foucaultian analyses and other work in the history of science this book would not have been possible. Nevertheless, not all fields of human endeavor have been successfully "medicalized" or otherwise monopolized by professionals wielding expert knowledges. This is more than an empirical point. This book suggests not only that expert domination is limited but also, more fundamentally, that it would be more useful for socio-legal scholars to abandon the undirectional models provided by "professionalization" and "medicalization" theses in favor of more dynamic and flexible frameworks that do not assume there is a single logic that can be studied across fields and across situations, either to prove its dominance or to show that it fails to dominate. There are many, heterogeneous, unsystematizable reasons why both popular and hybrid knowledges continue to flourish in many fields. In some cases these knowledges directly compete with science and expertise, successfully or unsuccessfully; but in other situations there is no overt contest, only various patterns of peaceful coexistence. The research done for this book, in other words, does not support the thesis that law is becoming increasingly technical or scientific: but neither does it support the opposite view (expressed through such offhand remarks as "judges cannot be replaced by computers, you know") that there is some essence of law as such that makes it impervious to scientific knowledges. The epistemological workings of law, I suggest, cannot be reduced to any one general thesis. Different fields and situations exhibit different logics.
Since among the variety of knowledge processes that exist in law, the one that has received the most attention is the process by which scientific knowledges have been deployed for legal purposes, it seemed useful to focus not on science but rather on the circulation of nonscientific knowledges in legal contexts. And, not coincidentally, the fields of law with which I was already familiar from previous work (sexual regulation, the legal regulation of sexual speech, the legal and therapeutic regulation of alcohol) turned out, when looked at from the new point of view of knowledge production, to be fields or sites in which expert knowledges of any kind continue to be remarkably scarce. I returned then to these fields, asking new questions and doing new research. I also attempted to explore, however tentatively, other areas of law within which questions about vice and virtue, order and disorder, are front and center. Thus the study of how people-especially officials-come to know what is vice and what is disorder, and how they explain and justify their knowledge to legal authorities, became the focus of this book.
How various intellectual tools that are available were found to be useful or not so useful for the task just named is a question that needs to be addressed in any introduction, even one eschewing traditional discussions of "methods" and "theory." This I will do in the second half of the introduction. First, however, the general question we opened with-law's will to truth-needs to be addressed more directly.
LAW'S WILL TO TRUTH
Empirical studies of the workings of law in the everyday contexts of minor lawsuits, traffic tickets, and petty crime (e.g., Merry 1990; Sarat and Kearns 1993; Ewick and Silbey 1998) suggest that while truth seeking is an important dimension of law, this is not always or even most of the time law's overriding passion. In contrast to the drama of high-profile trials, minor crimes are often plea-bargained; people involved in minor lawsuits often decide that it is not worth losing a day's pay to have one's day in court; trials are postponed because crucial witnesses fail to show up; and so on. Critical scholars-sociologists, legal anthropologists, and others-have challenged law's official will to truth by empirically studying the sordid and careless realities of everyday "justice." Their work has been extremely important to counter the dominant images of law's relation to Truth and Justice. However, whatever its public image, law as an institution makes no bones about the fact that legal decisions-even decisions as weighty as imprisoning, deporting, or executing someone-have to be taken without full knowledge. Investigations are carried out and evidence is presented: but the investigation is often cursory or biased, the evidence ambiguous or insufficient, and the reasoning used to generate the decision peculiar or prejudiced. These problems are compounded by the fact that neither the facts nor the reasoning are as open to public scrutiny as the ideals of Anglo-Saxon justice suggest: many people charged with minor crimes plead guilty without proper legal advice, civil cases are more often than not settled out of court without a full inquiry, and administrative tribunals are habitually invoked as threats rather than being used to adjudicate.
The legal system's halfhearted commitment to truth seeking nevertheless appears to enjoy tacit approval. Most of the time, the law's methods for accumulating, evaluating, and operationalizing knowledge are taken for granted by both outsiders and insiders. Scholars professionally devoted to the study of law do pay attention to law's methods, but the majority of such discussions focus on particular courts' interpretation of particular facts and rules. Those scholars who pursue more systematic inquiries, asking questions that go beyond pointing the finger at this or that judge or this or that statute, usually take the law of evidence as their object. Their studies usually begin with such questions as whether a particular means of obtaining information makes the information legally inadmissible. In general, their work is concerned with how knowledge ought to be deployed. This is a fundamental inquiry for legal scholars: as far back as the Enlightenment's critique of heresy trials, legal thought and law reform have been centrally concerned with the close connection between the misuse of facts in law and the perpetration and authorization of gross injustices. The use and misuse of information in the legal form of evidence has been and will continue to be a major issue for those who care about justice.
But what if we decide to take an interest in the workings of law not in order to move it closer to justice or to make it more rational or both but, less normatively, in order to study the mechanisms by which law, rather than simply using facts in the form of "evidence," also produces knowledge? The distinction drawn here is not a sharp one: as studies in the sociology of knowledge have amply demonstrated, there is no real line separating knowledge production from the dissemination and practical utilization of knowledge. Bruno Latour's influential studies of scientific laboratories have shown that even at the moment when a scientific fact is first produced-when Pasteur discovered penicillin, for example-the knowledge that the scientist thinks is being born ex ni-hilo is actually one link in a long chain of "actors," actors that include machinery, inscription devices such as charts, and live people, as well as theories and concepts. Along similar lines, feminist and Foucaultian studies of sexuality have shown that "sex"-something traditionally regarded as a brute presocial fact-is itself produced by the very processes that claim to discover and study it.
The same sociology-of-knowledge analysis can be applied to law; that is, the parties to a legal case can be said to constitute knowledge in the very process of "using" it, while courts and tribunals can be usefully regarded as further constituting knowledge in the process of evaluating evidence and drawing conclusions from it. "Construction," or the term I prefer (in part because of its rich legal connotations), "constitution," refers to the processes that grasp some bit of the world in accordance with existing cultural codes and thus make it meaningful for a particular group. As a number of twentieth-century philosophical traditions have argued, facts do not exist in a pre-legal or pre-political world from which they can be borrowed for legal purposes: facts, as much as theories, are constituted through the same procedures that lead evidence, rebut it, and evaluate its worth and relevance. As Wittgenstein famously demonstrated, meaning does not inhere in words: it comes into existence within the particular social context in which words are used. Similarly, legal facts and legal judgments are only meaningful and effective within a network, one that connects legal decisions and statutes but also includes buildings (e.g., prisons), clothes (robes, uniforms), information codes, individuals, institutions such as legislatures, law schools, and courts, professional associations, and extralegally produced texts such as psychological reports, police notes, and scene-of-crime photographs.
To say that law constitutes knowledges is not to claim that law constructs the world by itself or out of nothing or in regal epistemological autonomy. Autopoiesis theory has drawn our attention to the ways that law manages to incorporate not only eyewitness evidence but other facts (e.g., scientific knowledge) into its own framework by transmuting such alien knowledges into legal formats and frameworks: this helpfully highlights the ways that law shapes the world that it then claims to adjudicate. The agency of law, to use a misleading phrase, is a useful site of investigation for those leftists who were brought up thinking that law was a mere side effect or superstructure of "real," that is, socioeconomic, power structures. But we may agree with autopoiesis theorists Niklas Luhmann and Gunther Teubner that law's epistemological creativity needs to be acknowledged without following them as they claim that "law" as such is a coherent subsystem within "society" (Luhmann 1989, 137; and see Luhmann 1990). Claims about law as an "autonomous epistemic subject" that thinks in specific ways (Teubner 1989) and becomes more differentiated from other epistemic subsystems as modernity marches forward slip from the necessary acknowledgment of law's constitutive powers and creativity in knowledge production to a full-fledged effort to recycle the nineteenth-century quest to discern the Truth about Society by outlining certain general laws of development. Teubner's work does acknowledge that legal epistemology is flexible rather than monolithic (Teubner 1997), but it does not break with the fundamental society-as-system, law-as-subsystem framework of systems theory.
One can reject the depiction of law as an autonomous epistemic subject generated in the texts of autopoiesis writers and nevertheless acknowledge Luhmann and Teubner's insights into the ways that law creatively apppropriates extralegal knowledges. Inquiring into law's knowledges, law's research methods, would not have been possible within the limits of the critique of ideology framework that has been so ubiquitous within progressive legal studies and sociology of law. That framework demonstrated its power in enabling a whole generation of critical legal studies, feminist legal analysis, queer legal scholarship, and critical race theory. But like all frameworks, it has its limits, and these have become more visible in recent years. The inability of this framework to see what Luhmann and Teubner see-law's active role in constituting powers and knowledges-has already been mentioned. This blind spot can be regarded as the effect of a more general problem, namely, the myth of the socioeconomic "real."
Excerpted from Law's Dream of a Common Knowledge by Mariana Valverde Copyright © 2003 by Princeton University Press . Excerpted by permission.
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|Ch. 2||The Art of Drawing the Line: Judicial Knowledges of Community Morality and Community Harms||28|
|Ch. 3||The Forensic Gaze: Law's Search for Moral Clues||54|
|Ch. 4||Beyond Sexuality?||86|
|Ch. 5||"The Lifestyle That Fits the Doctrine of Sexual Orientation"||112|
|Ch. 6||Police Science, British Style: Pub Licensing and Knowledges of Urban Disorder||141|
|Ch. 7||"Common Knowledge Must Enter the Equation Somewhere": Knowlege as Responsibility||167|
|Ch. 8||Racial Masquerades: White Inquiries into "the Indian Style of Life"||193|
"Law's Dream of a Common Knowledge is a very good book. It is theoretically ambitious, careful in its use of evidence, and persuasive in its claims. It succeeds admirably in contributing to both the sociology of legal knowledge and the study of deviance and its regulation. Moreover, it discusses some of the most interesting and controversial areas of legal regulation. Readers will find themselves moving easily between sophisticated discussions of topics ranging from obscenity and sexual preference to pub licensing. Valverde is an outstanding scholar who writes with great skill and mastery."—Austin Sarat, Amherst College, author of When the State Kills
"Valverde's analysis is important and worthy because she deliberately focuses on the nonscientific and, often, nonexpert decisionmakers who, despite their lack of training or expertise, are responsible for the bulk of legal decisions, and thus legal 'knowledge.' Her approach, relentlessly empirical and resistant to generalization, yields a study that defies easy summary and is both conceptually and theoretically sophisticated."—Patricia Ewick, Clark University