Law's Dream of a Common Knowledge

Chapter 1
INTRODUCTION
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, often make 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,1 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 knowledges2 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.3
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.4 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.5 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,"6 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.7 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."
As has been pointed out by Foucaultian critics, the Marxist-inspired project to expose law and other ideologies tended to make certain realist epistemological assumptions (Rose 1987). But this assumed realism was shared across many non-Marxist schools. One can see a persistent attachment to realist epistemology in such critical projects as feminist standpoint theory as well as in certain race-critical works that suggest (often without explicitly stating) that the standpoint of the colonized generates "truthful" accounts. Indeed, the very rhetoric of denouncing statements as lies, a rhetoric dear to the heart of Critical Legal Studies, generates a truth effect: even when the speaker does not make any explicit truth claims, the format of the expos� has the effect of putting the exposer up on a higher epistemological pedestal. This implicit construction of a standpoint above ideologies can be regarded, following Nietzsche, as an unfortunate effect of language, in this case of the rhetorical form of the expos�. While it is not possible for us to avoid the truth effects of linguistic forms--just as it is not possible to avoid implicitly constructing a true self because we have no other language with which to speak about action but the language of "I"--it is nevertheless possible continually to remind ourselves that language's truth effects are just that, effects. Truth effects are, at one level, what this book is all about.
The term "truth effects" may remind some people of the scary specter of "relativism." If all truths are merely effects of certain cognitive and symbolic practices, does this mean that all statements are on the same level, that the Holocaust deniers are on the same epistemological plane as the Holocaust survivors, and so on? This is not the place for a fullfledged philosophical inquiry into the false dilemmas generated by the relativism versus humanism polemic; suffice it to say that humanistically inclined readers could nevertheless consider the proposition that it is possible to document and analyze knowledge practices and truth effects without taking a stand either for or against Truth as such. Much of the tired debate between enlightenment rationalists and poststructuralists (the so-called Habermas-Foucault debate, for instance) could have been avoided if a distinction had been drawn between small-t "truths" and the capital-T, nonspecific "Truth" that continues to haunt both philosophy and positivist science. Foucault, and others with similar epistemological analysis, such as Bruno Latour, have never claimed that all truth claims are equally fictitious or constructed. They are not what American culture-wars discourse would call "relativists." Unlike postmodern philosophers, both Foucault and Latour have nothing but respect for the centuries-old European effort to find out how things work. And they have particular respect for the reflexive dimension of that Enlightenment project, which is the analysis of how we humans create knowledges and devise techniques for managing, classifying, and governing ourselves and our problems. For those of us who, like Nietzsche, have no trouble accepting that every human knowledge project including our own is necessarily situated and thus partial, the death of Truth (which is a necessary sequel of the death of God) does not send us into despair.
Instead of continuing to play the tired yes-or-no game that often degenerates into a playground contest (Truth exists; no, it doesn't; Reason is important; no, it's not [Osborne 1998]), we may do better to move sideways, as it were, and experiment with an ethical rather than a metaphysical challenge to Truth. Instead of debating like theologians, we can try to think with modesty, self-restraint, and irony. Discovering that Truth is imperialist, Eurocentric, and/or a mere effect of language does not have to lead us into philosophical nihilism. It could instead lead us out of philosophy altogether and into a more practical, embodied, and experimental habitus of mind--one that, as Pierre Hadot has shown, is not at all alien to the older, preacademic forms of philosophic praxis (Hadot 1995). Assuming such a stance--which is very different from adopting a theory--will facilitate the sort of reflexivity that has become not only a theoretical necessity but an ethical and political requirement.
In his call to carry out a reflexive anthropology of European knowledge production, Bruno Latour has argued that it is possible to use many of the Enlightenment's tools in order to manageably reduce the scope of the empirical project without abandoning the whole project in postmodern despair. To Latour's call for a critical anthropology of European knowledge I would like to add a Nietzschean note. Those of us who can no longer believe in Truth because we believe in neither God nor Man have no choice but to refuse to adjudicate the fight between positivism and social constructionism, because recognizing ourselves as particular animals with particular, embodied abilities, we cannot lay claim to any supraterrestrial place from which to enjoy a god's-eye view of the truth wars (Haraway 1991, 188-90). This does not take us into relativism; relativism is what Hegel would call the bad opposite of universalism, its abstract denial. It takes us rather beyond the truth wars and into the Nietzschean field that Donna Haraway calls "situated knowledges": the terrestrial, all-too-human world in which truth seeking is not abandoned wholesale, but is now guided by epistemological modesty rather than divine pretensions.
A useful technique for effecting this move toward epistemological modesty is to follow through the distinction drawn above between "truths" and Truth. It is perfectly possible to be interested in small-t truth questions (Will reducing taxes increase poverty?) without thereby claiming that Truth is necessary. Even the most sophisticated of post-modern deconstructionist critics presumably evaluate claims such as the one about taxes in the course of making everyday political decisions about voting. Another way of deploying this distinction is to point out that the opposite of "lies" is not Truth but rather "truths." Outright lies are being told and disseminated in the name of justice as I write these lines, and it is certainly important for us as scholars to join the activists who are agitating to expose them as lies. But while we can and should denounce lies, it seems to me that when wearing our scholarly hats we have a specific responsibility to engage in the more ascetic exercise of telling ourselves that having discovered that "they" are lying does not mean that "we" know the Truth. For political purposes, it is sufficient to know that they are lying, and that those who have been marginalized and oppressed probably have a much better sense of how things work than they have been given credit for. This kind of pragmatic "preferential option for the poor" (as Latin American liberation theology puts it) has, in recent years, been elevated to that status of grand epistemology by left-wing academics--standpoint feminists and some critical race theorists--who believe that the only problem with the Enlightenment quest for Truth was that the wrong people were in charge. But it is not necessary to replace one set of grand theorists with another, more politically grounded set. Inspired by Foucault's modest appraisal of the role of intellectuals in political and social change, I am suggesting here that we regard the "preferential option for the poor" as a pragmatic ethical choice, rather than as some kind of royal road to (alternative or subaltern) Truth. In sympathy with anti-essentialist progressive critics like Paul Gilroy and Judith Butler, this book thus constitutes an ethical experiment in inquiring into the conditions for the possibility of certain legal claims without, in turn, making the claim that I or "my people" (feminists, non-Anglo-Saxons, queers, Canadians, etc.) have a privileged access to Truth.
The realist epistemology that continues to be employed by most critical students of law in its social context has had the effect of generating what one might call a "society effect." Keen to expose and denounce formalist claims about law's majestic sovereignty, critical legal scholars have tended to fetishize society, regarding law as an effect or a tool of social structures. However necessary it was and still is to denounce the false universalism of liberal legal practice and formalist legal theory and to document the exclusions produced by universal liberal notions, it is also important to remember that, like other complex social institutions, law has a strong constitutive ability whose effects cannot always be predicted even if we know what the generalized relations of power are in a particular context. We will see in the chapters on sexual orientation, for example, that ordinary gay people in North America have come to use the liberal legal fiction of sexual orientation as a name for an inner psychic truth that is experienced as pre-legal. This is just one example showing that law can and does change how people think of themselves and their world in ways that would not be appropriately captured by simply stating that gay people are the dupes of liberal ideology.