Authorizing the Production of Urban Moral Order: Appellate Courts and Their Knowledge Games

Summary

---

Using some appellate courts' reviews of projects to maintain moral order in the city as the main source of data, this article shows that an analysis of legal knowledge production that (1) is dynamic and (2) refuses to treat people and texts as totally different entities, one studied by social scientists and the other studied by lawyers, can tell us much about such familiar but seldom theorized legal maneuvers as judicial review and constitutional challenges. Choosing to analyze the dynamics of knowledge processes is inspired by Actor Network Theory (ANT), Bruno Latour's work in particular. This methodological choice is particularly appropriate because judicial review tends to avoid making judgments about the content of impugned laws or ordinances, focusing instead, as Latour does, on form and process. But insofar as legal processes in general privilege form and process to a greater or lesser degree, a more general argument is made about the appropriateness of using tools from ANT to study legal and quasi-legal knowledge networks.

See the full content of this document

Extract

---

Authorizing the Production of Urban Moral Order: Appellate Courts and Their Knowledge Games

Studying Knowledge Claims in Legal Networks: Method and Its Effects

A central concern of law-and-society scholarship has been to map how extralegal knowledge claims about social relations are introduced into legal processes, either as expert evidence or through other routes, and to document how courts and legislatures then do or don't use these facts and claims. Studies along these lines-which are far too numerous to mention here-generally focus on the content of the knowledge claims that are either accepted or rejected by various legal actors. They raise questions such as the following: Are legal processes increasingly influenced by technical expertise even as some forms of high science lose prestige (Cole 2001; Jasanoff 1995)? What makes certain courts sympathetic or hostile to sociological and cultural evidence (e.g., Haney-Lopez 1996; Valverde 2003a)? And at a more theoretical level, debates have taken place about whether "law" in general is increasingly governing through extralegal "norms," including scientific knowledge and statistics (Ewald 1991; Hunt & Wickham 1978).

We have learned a great deal from such analyses of the fortunes and misfortunes of technical, scientific, and cultural knowledges within legal contexts. Here, however, I do not seek so much to add to this literature as to stimulate methodological innovation through analyses that ask not about the content of claims but about process and flow-about how actors pick through documents or discourses and cobble together new governing machines that recycle old bits in new ways (see, by comparison, Riles 2000). For this, much can be learned or adapted from studies located at the intersection of science studies and "actor-network" analysis (e.g., Latour & Woolgar 1979; Latour 1987, 1993; Winner 1986; Woolgar 1988; Barry & Slater 2002). Such work is just beginning to have an impact on law-and-society circles.1 While neither the findings nor the methods of Actor Network Theory (ANT) (Latour 1987; Law 1999; Law & Mol 2002) can be directly applied to legal contexts, borrowing from these resources can reveal processes obscured in more static-and more humanist-analyses of knowledge in law.

In one influential formulation, knowledge is seen as a form of capital embodied in persons and in classes (Bourdieu 1987). The approach outlined here regards legal knowledge not as a capital embodied in people, but as an ever-shifting network in which actors-including things and texts, which I treat here, Latour-style, as actors-deploy legal or quasi-legal tools to creatively recycle knowledge claims generated elsewhere. A key difference between Latour and Bourdieu is that Bourdieu's ultimate aim is to unmask the human relations of appropriation and domination that ground such apparently nonexploitative habits as going to museums. Latour's work, by contrast, arose in a posthumanist intellectual environment. Like Foucault, Latour regards nonhuman relations (lab devices, architectural arrangements, textual formats) as significant actors, alongside humans. Yet he does not privilege the technical effects of things either; he carefully avoids the technological determinism of early science-and-technology work. In Latour's work, as in ANT generally, the analyst remains open-minded about which human and nonhuman actors play which roles with what effects, in the particular case. This is highly relevant to sociolegal scholars who do not wish to limit themselves to studying either "law in the books" with legal tools or "law in action" (people) with social science tools. And this perspective does more than merely exhort us to study both books and people: it provokes us to see what happens when one looks at things and texts as if they were people, and at people as if they were part of a technical assemblage.

The case study of Canadian lawmaking provided below reveals that, at least in this case, lay (nonlawyer) witnesses appearing at parliamentary hearings treated legal categories in a more black-letter manner than senior state lawyers and Supreme Court justices. This finding runs counter to the Bourdieu thesis about professionalization of knowledge and deconstructs the usual opposition of lawyers discussing law versus ordinary people discussing experience. Even if it is unrepresentative, which it may well be, it can help open our eyes to the creativity of knowledge networks. That courts of appeal often reason no...

See the full content of this document

---