Vol. 13 No. 9 (September 2003)

LAW’S DREAM OF A COMMON KNOWLEDGE, by Mariana Valverde. Princeton University Press, 2003. 264 pp. Cloth $35.00/£24.95. ISBN: 0-691-08698-2

Reviewed by Emmanuel Melissaris, School of Law, University of Manchester, UK. E-mail: manolis.melissaris@man.ac.uk

Mariana Valverde’s LAW’S DREAM OF A COMMON KNOWLEDGE, a title that paraphrases Adrienne Rich’s THE DREAM OF A COMMON LANGUAGE, is a study of the knowledge(s) underlying the law and its operations. The author seeks to make a contribution towards the development of a socio-legal discourse of legal knowledge that will aim at discovering the unofficial, commonsensical “truths” developed and used by legal agents. The book’s “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” (p.2).

The book is interesting, engaging and refreshing both in its thematology and its style. Valverde opts for a by-and-large Foucaultian methodology but also takes Foucault’s research programme one step further. First, instead of looking for power where there is knowledge, she seeks knowledge where there is power. Second, instead of looking at one uniform epistemological paradigm underpinning the law (how the author understands “the law” is a little problematic and will be discussed later on), she turns to a micro-level and focuses on various sub-fields, in order to discover the epistemic conditions that make the workings of the law possible. Her fundamental second-order argument is that: “The epistemological workings of the law . . . cannot be reduced to any one general thesis. Different fields and situations exhibit different logics” (p.3).

The author then goes on to study several separate instances in which commonsensical knowledge, becomes “official” and acquires a quasi-prescriptive quality by virtue of its being employed by officials of the law, despite the fact that it is “unofficial”—to the extent that it is not scientifically backed. She found it useful to “focus not on science but rather on the circulation of non-scientific knowledges in legal contexts” (p.3).  In Chapter 3 she examines the “forensic gaze” of the law. She refers to three historical examples: the case of Bill Clinton and Monica Lewinsky and the notorious stained blue dress; “Monday Night Sperm Attack” at Remington’s, a gay strip bar in Toronto, during which the dancers would masturbate on stage; and a case of a dominatrix business in a quiet Toronto suburb. The officials that investigated these cases relied on the piecemeal knowledge of clues in order to construct a bigger picture, in which the whole equals some selected parts. Sperm = sex, sadomasochism = deviant sexuality, and so on. She concludes that this pre-scientific way of making sense of the world permeates the operations of the law.

In Chapter 4 she moves on to examine the emergence of the new category of “sexual orientation” as a way of governing sexuality, distinct both to behavior and identity. Sexual orientation is discerned with a new set of common sense epistemological rules that do not target the deeply embedded self but rather practices (comprising speech acts as well) that have come to characterize the gay and lesbian communities, such as declaring “I am going to Gay Pride” or “I am gay” and so on. Chapter 5 is a study of how categorizing sexual orientation contributes to the development of new lifestyles and the rethinking of sexuality.

In Chapters 6 and 7 the discussion turns from sexuality to drinking, which is often considered nearly as deviant and disorderly. The author gives an account of what she terms “police science, British style” and the ways public drinking has been regulated in Britain over the last two centuries. She then discusses what are deemed as universally valid epistemological rules, that tavern staff are expected to know and apply in order to refuse to serve publicans who are clearly “too drunk to drive” (p.172ff). Here she presents a very interesting claim that common knowledge has been normativised in the sense that a duty to know has emerged, a duty to be part of the commonsensical epistemological community. Chapter 8 turns to a bigger picture again and focuses on the construction of whole communities (in particular the “Indians”) with the employment of knowledge present in several legal areas.

In her concluding chapter, Valverde summarizes the main arguments of her book. “One is the continuing importance of intermediate and hybrid knowledges” (p.225). The other is that “the governance of deviance and immorality cannot be studied exclusively with the binary opposition of act versus identity, sovereignty versus discipline, conduct versus status” (ibid.). Moreover, the categories of “lifestyle” and “habit,” which are recurring themes in the book, are increasingly important explanatory tools.

It is not these conclusions themselves that I take issue with in this review. I shall rather concentrate on the theoretical and methodological bedrock upon which they rest. From the outset, Valverde employs several fundamental assumptions underpinning the book’s theses.  Indeed, the latter would stand indefensible without the former. The discussion of empirical evidence could stand alone, but its significance would have to be revisited.

The first such assumption is related to truth. In order to defend her focus on unofficial knowledge discourses in legal contexts, Valverde draws a distinction between capital-T Truth and small-t “truths.” She explains that rejecting the Enlightenment delusion of a universal Truth does not amount to subscribing to a relativistic agenda. That, she tells us, would be equally fallacious. Her position is one of “epistemological modesty,” which allows us to look for small-t truths without “thereby claiming that Truth is necessary” (p.9). Therefore, the book “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 . . . have a privileged access to Truth” (p.10).

The second assumption concerns the very concept of law. Valverde rejects the understanding of the law as a uniform and distinct concept and object. This is nothing but a fiction, a spectre, she contends, that has no bearing in peoples’ actual lives. What we should be focusing on are “legal complexes” that comprise practices, rituals, institutions, and so on, in a loose, if not incongruent, matrix of behavior. To the extent that these complexes are empirically identifiable, they constitute a useful locus for sociological observation. Asking grand questions such as what the law is can only be misleading. Consistent with her project of epistemological modesty, Valverde chooses to examine the operations of small scale discourses in legal contexts.

It is understandable why one would prefer to stay clear of circular exercises of semantics or metaphysics concerning the concept of law. However, not asking the question at all is itself a clear theoretical stance which must be acknowledged. Valverde often seems to lose sight of that. Firstly, she seems to be applying certain pre-existing criteria as to what constitutes “legal complexes.” She focuses exclusively on legislation, police, judges, and advocates without explaining why she does not look at other discourses, in which power, knowledge, and normativity seem to be interconnected in the same way. We are thus left with the impression that legal complexes are best understood throuigh a positivistic prism, as extensions of law’s institutions. However, it seems that such an understanding of law would be inconsistent with Valverde’s programmatic agenda.

Moreover, although she implies that there is an immanent connection, when she speaks of the emerging “duty to know,” a question left unaddressed is the relation between knowledge and normativity. To what extent does normativity depend on epistemology and, vice versa, to what kind of knowledge does normativity give rise? To take the question a step further, is it possible for a uniform conception of normativity to rest on multiple epistemological bases—that is, if “knowledges” and “truths” are in the plural, is it possible that “law” remains in the singular? In other words, how warranted is it to speak of the law’s dream of a common knowledge, when it is not even certain that there can be a unitary, uniform law (as opposed to laws) without this common knowledge? It seems that epistemological pluralism, even assuming that it is at all possible, cannot be assessed separately from legal pluralism, and Valverde does not emphasize this connection sufficiently.

Law’s Dream of a Common Knowledge is an important and novel contribution towards the development of a sociology of legal knowledge. However, it leaves unanswered some central philosophical problems that need to be addressed before socio-legal studies can take such a turn.

REFERENCES:

Rich, Adrienne.  1978. THE DREAM OF A COMMON LANGUAGE: POEMS, 1974-1977.  New York: Norton.

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Copyright 2003 by the author, Emmanuel Melissaris.