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.
************************************************************************
Copyright 2003 by the author, Emmanuel Melissaris.