GENERAL BOOK REVIEWS

Ellen HertzUniversite de Neuchdtel, Institut d'Ethnologie

La Fabrique du Droit: Une Ethnologie du Conseil d'EtatBruno Latour (Paris: La Decouverte, 2002)

Bruno Latour's new book on law is nothing if not a good read. In a tone ofbemused admiration, Latour admits that the law is foreign territory to him andthen makes the most of this ignorance by focusing his attention on the minutiaeof verbal interaction, the over-determined and under-expressed iconography ofstatus and role, and the material circulation of files, with their associated tech-nologies of folders, rubber bands, and paper clips, that make it possible for theConseil d'Etat to "speak the law." The product of 15 months of fieldwork spreadover four years' time, this book succeeds beautifully in drawing the reader intoits description of an excessively particular pillar of the French legal system.

The Conseil d'Etat plays an intensely specific role in the constellation of Frenchlegal institutions. Created by Napoleon to insulate the administration from judi-cial scrutiny, it gained veritable judicial independence only in 1872. One leg ofa triumvirate of supreme courts (the others being the Cour de cassation and theConseil constitutionnel), the Conseil d'Etat is limited in its subject-matter juris-diction to administrative law, curiously the only form of law in the French legalsystem that is uncodified. To further complicate matters, it also serves, in a quiteseparate manifestation, as legal council to the executive branch. Housed in thePalais-Royal, it is manned (and occasionally womanned) by an oddly heteroge-neous combination of ex-local government officials, outside authorities, and elitecareer administrators, many of whom rotate between executive, legislative, andjudicial positions, creating a mishmash of contacts and loyalties over which hov-ers a soupcon of conflict of interests. All of these peculiarities render the Conseild' Etat particularly vulnerable to criticism from many corners of French society(which must be thought to include EU institutions in Brussels and Luxembourg);indeed Latour tells us that he would speak of an institution "in crisis" but for thefact that its members seem blithely unaware of or unmoved by challenges to itslegitimacy. Unable to enter into a sustained exchange with his interlocutors onthe place of the Conseil d'Etat on the French legal scene, Latour is obliged toconcentrate his study on what he could observe—"the crafting of the law."

The first chapter confronts the reader with a series of conundrums: what are we

to make of an institution that celebrates its centrality within French society by

depicting itself as floating unmoored above it? That dedicates innumerable hours

to oral performance when writing is the very essence of its work? That decides

formally to eschew formalism while mobilizing its informal contacts to avoid

accusations of informality? "Is it possible," wonders Latour, "that it is in this lop-

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sided palace, via those hidden staircases, past the napping bailiffs, along theworn carpets, thanks to these piles of papers, those bound volumes, the endlessdiscussions, these candid admissions of prejudice and ignorance, those archaicprocedures, the compiling, the cutting, the pasting of obscure texts—that the ruleof law is established?" (79, my translation). The entire art of his portrait lies inthe author's ability not to rush to an answer to this question. Thus, chapters twothrough four take the reader through a series of discussions and deliberations,offices and organization charts, ending in a proudly heterogeneous list of"objects of value" that are mobilized in the course of the crafting of law: the nest-ed hierarchy of legal agents; the meanderings of individual cases as they worktheir way up the system; the organization of the docket aimed, somewhat con-tradictorily, at efficiency and justice; the importance of cases in relation to exist-ing law; the relative and shifting weight of legal precedent; the necessity for pro-cedures that review the justice of procedures; the hesitations and delays thatallow for cases to "ripen"; the "claims" linking unlike facts into like law; the con-cern for coherence at the most general level; and the para-legal attention to thejust limits of the exercise of law itself. Latour's emphasis—and his account ismost convincing here—is on the deliberate if unacknowledged processes bywhich judges are led to detach events in the world from the world of events andreattach them to the gauzy web of texts that hold a nation's legal fabric togetherfor the instant of a decision. Each time the Conseil dy Etat "speaks the law" itreconfigures that paper-thin network of documents that leads from a locality to acenter, from an event to a principle.

Of most interest to readers, no doubt, are Latour's concluding observations onthe bootstrapped character of what we may call, for convenience's sake, the legalrealm. As he demonstrates, there appears to be no coherent way to circumscribelegal institutions that does not resort to notions that take their definition fromwithin the legal sphere itself. The positivist tradition hypothesizes something itcalls "legitimacy" that mysteriously adheres in certain institutionalized uses ofcoercion, while the Natural Law tradition invokes a kind of law-before-the lawas the source of this legitimacy. Explanations for this law-before-the-law gener-ally take recourse in "society," that is, in the positivist case, the concatenation offorces that grant "legitimacy" and, in the natural law case, the 'fundamental val-ues" underlying certain rights and protections. These explanations, however,only highlight the fact that the "society" that is thought to grant law its legitima-cy is obliged to reason within the terms law sets for it: neither calls for order norappeals to basic moral principles are sufficient to trace the boundaries of thepar-ticular forms of order and morality which qualify as law.

Latour seeks to step outside this circularity by demonstrating that the "semi-autonomous" character of law is to be found in the specific form of autonomythat law enjoys, the freedom to weave the threads composed by particular actionsand arguments into a continuous and generalizable fabric of imputability.

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Reframing the internalist-externalist debate, Latour argues that law is neither insociety (a position he identifies with the Marxist or Bourdieusien critique of lawas mere discourse legitimating relations of power) nor outside society (a positionhe attributes to legal scholars and philosophers who emphasize the impermeabil-ity of law to social influences). Instead, law is one particular manner of making"society," that is, of bringing actions and persons together into materialized andframed narratives of accountability. In so doing, he extends an ongoing projectto critique the "sociology of the social." Neither "law" nor "society" exist as"realms," patiently awaiting our more-or-less accurate attempts at mapping.Rather "the social" is created through various logics that variously connect peo-ple, things, technologies, and ideas into ordered realities. If law is neither theonly nor the most important way of making "the social"—and Latour spends aninteresting chapter (five) distinguishing the world created by the sciences fromthe world created by law—it is nonetheless a unique and respectable means in itsown right.

Latour's formulation applies particularly well to the kind of legal institution hehas chosen to observe. The painstaking labor of detachment from the particularand linkage with a vast network of the general is characteristic of "high" courtsthroughout the world, their "height" placing them in the precise relation to the"social" that Latour describes here. Had Latour been observing a trial court, hewould have observed an entirely different logic of linkage between what the lawtakes as law and what the law takes as society. The trial court's primary function,that of turning an uncharted mass of relations, feelings, actions, motives, andnorms into a "statement of the facts," is impossible without that much malignedquantity known as "common sense." That this white pedestrian was "reasonable"in fearing for his bodily safety when he saw a crowd of young Arab menapproaching on that street, that joint custody for this couple is in the "best inter-ests" of that child, that this illiterate defendant received "adequate notice" of hisopportunity to appeal judgment—all of this "law stuff' is attached in the mostinevitable of ways to those hideously clumsy categories such as race, sex, andclass that judges, juries, lawyers, citizens, and "sociologists of the social" use tomake sense of the world. True, as Latour points out, the contaminating effects ofthe "social" are dissolved not through more social but through more law—byinvoking such legal principles as equality of treatment and due process, forexample, which provide the moral foundations for the critique of law as sociallydetermined. Nonetheless, few of the "questions of fact" settled in trial courtsmanage their commerce with "questions of law" in such ways as to permit re-examination. It would be very anti-Latourian indeed to ignore that particulargravitational system by which the law keeps so much of its "stuff on the ground,allowing only test balloons to float up past the windows of the Palais-Royal.