17 results in Latour and the Passage of Law
3 - On Devices and Logics of Legal Sense: Toward Socio-technical Legal Analysis
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- By Kyle McGee, Legal practitioner in Delaware, USA
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The problem with black-boxing rules
The production of legal statements is a peripheral concern among socio-legal scholars, philosophers, anthropologists, critical theorists and others engaging law from what, according to a conventional doctrinal perspective organised around the artifact of the legal rule, is itself a peripheral vantage point. Perhaps this is as it should be. This chapter suggests otherwise.
Perhaps, by moving beyond the matrix in which legal statements are assembled in order to access such complex but relatively common phenomena as variances in legal effect and enforcement, or the work of legal rules and modes of reasoning in the construction of social attributes (such as class, race, gender) or other broad topoi of the socio-legal, scholarship disserves its very object of study. Perhaps it even neutralises the force of its own argumentation: having eclipsed the entire scenography in which the legal artifact under scrutiny came to be, is it not plausible that diagnoses, recommendations and critiques will serve in the last analysis only to entrench a problematic mode of legal production? By starting from (what is understood as) a refined, stable legal rule or set of rules and proceeding to an examination of its empirical interpretation or its appearance in patterns of legal activity, by making it pass, unaltered, through diverse social channels, does the analyst not render the rule more opaque, even as she sheds light on its failures and achievements? In doing so, socio-legal studies makes itself parasitic on doctrinal analysis: quite different, to be sure, but committed all the same to the integrity of the law's black boxes and performatively complicit in the macro-structuring of a particular normative world – often strikingly similar to the one purportedly critiqued.
This failure of legal studies is basic and spread widely beyond the field, in virtually every domain for which rules, standards, principles and other normative artifacts are endowed with quasispiritual powers to regulate, restrict, govern, dominate or rule quite effortlessly. It is a metaphysical failure. Thought and speech, things and practices alike are delocalised so that their normative effects become untraceable and emanate, somewhat mysteriously, from no particular site or act of enunciation. Unbound from such terrestrial constraints, disembedded legal particles move swiftly through the normative void.
Frontmatter
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12 - The Strange Entanglement of Jurimorphs
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- By Bruno Latour, Institut d’études politiques
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Since I have had the privilege of reading all the chapters of this edited volume and since I don't have nearly as much experience of legal practice as most of the authors, I think it is more appropriate that I limit my piece to comments and emendations of what they themselves have done. Actually this is in keeping with my own way of pursuing the inquiry into modes of existence (AIME) that orients several of the arguments developed in those pages. So I will use the material presented in the preceding chapters to offer contributions to the inquiry in the same style and format as the many snippets I have assembled over the years and which are still being collated by coinquirers in the site www.modesofexistence.org. It is through that process of assembling multi-coloured tesserae that the mosaic begins to conjure a more or less coherent figure. By following this habit, I won't have to apologise for the disjointed nature of the following paragraphs. Let's just hope that in the end they will make some sense. (I also apologise for a wide use of the jargon of the AIME book and site to facilitate connections with the material assembled there.)
Before I really start, I want to stress how reassuring it is for me to see that it is actually the mode of existence I call [LAW] that has been so generously commented on by English speaking jurists. By the way, I fully agree with Van Dijk (p. 184) that Assignation should really be used to name the mode in question so as to avoid confusing it with the multi-faceted domain of Law, but I feel that the acronym [ASS] will create some unwanted diplomatic frictions! So far, it is the only mode where the conversation has progressed to the point of allowing a few fascinating diplomatic encounters. I am really grateful to the authors of this volume and especially to its editor, Kyle McGee. Actually I began to really believe in my own project when reading Kyle's book (2013) on how I should have studied law!
Overall, I take this volume as a confirmation of my claim that [LAW] has resisted much better than all the other modes the crushing weight imposed by an exclusively epistemological definition of what true and false really mean.
8 - The Conditions of a Good Judgment: From Law to Internal Affairs Police Investigations
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- By Cédric Moreau de Bellaing, École Normale Supérieure
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One of the criticisms that has been regularly levelled in France at Bruno Latour's book La Fabrique du Droit is that he chose to conduct an empirical investigation of law in a very particular and very powerful institution, the Conseil d'Etat, which supposedly only deals with a specific sort of law – administrative law. Elsewhere, we have already shown that such a criticism arises from a misunderstanding of Latour's analytical ambition, which is certainly not the development of a sociology of law nor a sociology of the Conseil d'Etat, but rather the empirical exploration of a mode of existence that is specific to the moderns. I would like to show here that Latour's approach retains all its interest even when it is not applied to the field of the continuous production of the law but to the analysis of a very specific judicial (and administrative) investigative process which is carried out within a unit of internal control of the police institution, that is the daily work of police officers who investigate other police officers.
Such an operation is undoubtedly quite delicate. It could reduce the interest of Latour's approach to a question of method. That would be embarrassing since it is not specific to law. Latour claims he has done nothing more than apply the ethnographic methods he developed elsewhere, in particular in scientific laboratories, to law. There is a risk in importing a methodological process into the field of the disciplinary measures of the French national police: that of losing what it has succeeded in revealing in the case of the ethnography of the Conseil d'Etat, i.e. the ability of law to render disengagement productive. Admittedly, the empirical case that will be examined in the following pages will not enable us to test the notion of law as a mode of existence. However, applying to it the method of a rigorous monitoring of the files, including of their phenomenal nature, keeping in mind the idea that everything counts in the way those files are dealt with when one tries to define what a good judgment may be, and remembering that investigations revolve around what is most fragile in them, will permit us to refer to something else, to a recurrent and everlasting idea in political philosophy and the sociology of the state, i.e. legitimate violence.
7 - Plasma! Notes on Bruno Latour's Metaphysics of Law
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- By Laurent de Sutter, Käte Hamburger Center for Advanced Study in the Humanities, Bonn, Germany
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The possibility of inclusion
On 5 February 2008, in the Graham Wallas Room of the London School of Economics’ Old Building, a small group of researchers gathered to listen to Graham Harman discuss the book he had devoted to the work of Bruno Latour – the latter himself being present. It was a meeting destined to occur: since 1999, when he published his first article on the French thinker, Harman had never ceased to attempt to articulate the seemingly antagonistic thoughts of his two favourite thinkers: Latour and Heidegger. When he wrote Prince of Networks, the monograph in which he explained his understanding of the work of Latour, the form taken by this articulation was finally complete, although it remained controversial – a form in which Latour was only able to half-recognise himself. Or so he told Harman, who heard it. The book that was eventually published from the manuscript discussed at the London School of Economics differed in many respects from its original version – yet, Harman persisted in maintaining the main thesis defended in it. According to this thesis, the thought of Latour was caught in a process of infinite regress, since its primary object was the network of relationships in which things have access to something like an essence or a being. For Harman, this was a paradox that he refused, nevertheless, to regard as a flaw or a weakness – a paradox that could be formulated as a question: what is a network, if not a thing whose being, if one was to follow Latour's argumentation, should be considered in terms of relations? Even if it was a thought centred on ontological tolerance, Latour's metaphysics stumbled against the fact that there were beings excluded from this tolerance – or rather beings that this tolerance included in a form other than the form of being. To this objection, Latour's response was easy: if networks did not belong to the realm of beings, it was because being could be said in multiple ways, and because that multiplicity included an ontological ‘class’, a ‘mode of existence’, which was precisely that of the network.
5 - Providing the Missing Link: Law after Latour's Passage
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- By Serge Gutwirth, Vrije Universiteit, Brussels
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[On] ne peut parler juridiquement sans etre juge.
(Bruno Latour 2002: 273)Ce qui m'interesse ce n'est pas la loi ni les lois (l'une est une notion vide, les autres, des notions complaisantes), ni meme le droit ou les droits, c'est la jurisprudence. C'est la jurisprudence qui est vraiment creatrice de droit : il faudrait qu'elle ne reste pas confiee au juges. Ce n'est pas le Code civil que les ecrivains devraient lire, mais plutot les recueils de jurisprudence.
(Gilles Deleuze 1990: 229–30)Every time a person interprets some event in terms of legal concepts or terminology – whether to applaud or to criticize, whether to appropriate or to resist – legality is produced.
(Patricia Ewick and Susan Silbey 1998: 45)Introduction
There are two ways to speak of the law, which, both for jurists and laypersons, coexist like an optical illusion. Either you see the naked young woman, or you see Freud's profile, and the passage from one view to the other is difficult to grasp or control. You're caught ‘in’ the one or ‘in’ the other. Similarly, law is evoked in two modes referring to two distinct significations. On the one hand law is referred to as an intertwined whole of statutes, rules and regulations, and thus, in one word, as norms (or ‘normativity’), while, on the other hand, it can as well be understood as decision-making or as a practice that produces solutions. Thus: norms or solutions, that's the question.
While it is not clear how we have been mixing up and shifting from the one register to the other, we surely have. In fact – and maybe this is clearer in continental legal systems – we have long been confusing the ‘sources of law’ with ‘law’ as such. It is not Latour's least merit that his passage through law and legal studies has made it possible to spot and lift this confusion, and to start exploring and learning how to speak well of law. A reboot, as we might say today.
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9 - In The Name of the Law: Ventriloquism and Juridical Matters
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- By François Cooren, Université de Montréal
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From John Langshaw Austin (1962) to Jacques Derrida (1992) through Harold Garfinkel (1967), scholars studying language and social interaction have often been intrigued by the judicial scene, a scene where testimonies, exhibits, evidence, texts of law and precedents regularly define the fate of specific cases and individuals (Heritage 1984; Bruner 2003). If Austin insisted on the performative dimension of judicial utterances, Garfinkel analysed the interpretive methods jurors use to justify their decisions for another next first time, while Derrida explored the gap that seems to always separate law from justice.
Beyond their differences, however, all these contributions point to the performative or eventful character of law, i.e. the fact that law should be considered an achievement or accomplishment in its haecceity, as Garfinkel (2002) would say. However, they also point – and this is the paradox – to its iterative, uneventful and institutional character, that is, that this performativity should also be considered the product of a specific context, structure or frame that authorises or legitimises certain moves and dictates or prescribes how imputations should be established. Something called ‘Law’ is thus supposed to iteratively and repeatedly find its passage through these performances, since any judicial decision has to be the application, incarnation or embodiment of specific rules that permit, justify or substantiate it.
In this chapter, I will explore this tension by showing how the judicial scene can be considered a dislocated locus where various entities can be made to speak and present themselves, defining the contours and substance of a given case. According to this approach, we do not need to choose between eventfulness and iteration or even between action and structure/system. What we need to show, however, is how different elements of the so-called ‘context’ of a given scene are, in fact, made to say things in a situation of interlocution, thus becoming active participants in what is happening. Using the metaphor of ventriloquism (Cooren 2010, 2012; Goldblatt 2006), I will show – both theoretically and empirically – how participants in legal processes constantly make facts, principles, precedents and texts of law, i.e. say and do things, which come to define what Bruno Latour (2010) would call the making and passage of law.
4 - ‘The Crown Wears Many Hats’: Canadian Aboriginal Law and the Black-boxing of Empire
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- By Mariana Valverde, University of Toronto, Adriel Weaver, University of Toronto
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- 30 October 2015, pp 93-121
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Introduction
Latour's The Making of Law encouraged us to think about ‘law’ as a set of overlapping networks in perpetual motion, networks in which such lowly entities such as paper clips, wooden mailboxes and file folders play important roles (Latour 2010; Levi and Valverde 2008). Latour's approach and choice of object of study are in keeping with much of today's legal anthropology, in part because today's legal anthropologists are more likely to be doing fieldwork in the backrooms of constitutional courts and even central banks than to be investigating the norms and ‘customs’ of Pacific Islanders (e.g. Riles 2011).
Our contribution to this volume is at one level a study that echoes Latour's and Riles’ work on the anthropology of legal modernity (Mundy and Pottage 2004; Latour 2010). But since we will here highlight an innovative re-assembling of certain legal actors that reek of pre-modernity – those associated with the British/imperial/Canadian ‘Crown’ – it might be more accurate to say that our study shows how the modern v. pre-modern binary deconstructs itself in a legal assemblage elaborated mainly by means of current-day Canadian judicial decisions regarding aboriginal rights, an assemblage that makes strikingly novel use of very ancient notions about monarchs and their material and spiritual accoutrements.
‘The Crown’ – an ontologically hybrid term if there ever was one (Latour 1987) – is one of the most frequently used terms of Canadian law. It is found, with performative effects, in lofty documents, such as treaties between states or between the Canadian government and aboriginal nations. But it is also mechanically reproduced thousands of times a day in criminal proceedings, which are always styled Regina or Rex – abbreviated ‘R.’ – v. Smith or R. v. Jones. The genderless ‘R.’ is thus an interesting actor. It is first of all a tiny printed letter serving as a label telling the reader that a criminal prosecution is at work, a letter whose effective legal meaning is exactly the same as that of the US phrase ‘The people of the state of X’.
Introduction
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- By Kyle McGee, Legal practitioner in Delaware, USA
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Like the actors he studies, Bruno Latour is many things. A patient and creative anthropologist of the sciences, a skilled observer of technological practices, a boundary-pushing political and ecological thinker, even a formidable philosopher, to be sure; however, a fixture in legal studies he is not. Latour and the Passage of Law goes to great lengths to challenge this state of affairs, for every chapter that follows demonstrates the indispensability for legal theory of conceptual and empirical resources developed in Latour's work – including but by no means limited to his 2002 ethnography of the Conseil d'Etat, La fabrique du droit (The Making of Law, 2010). And although each chapter shows more than it tells, by descending from the lofty heights of conventional reflection on law (for instance the natural and social foundations of legal order, the systems, structures and apparatuses of norms or rules and the ideals of justice, equity or liberty touted in analytical and critical jurisprudences alike) to zoom in on the constructive practices that shape legal truths – much to the credit of the individual authors – a distinctive vision of law as a mode of existence nevertheless materialises across the volume.
Law enjoys prominence, even pre-eminence, in Latour's recent anthropology of the Moderns (Enquête sur les modes d'existence, 2012; An Inquiry into Modes of Existence, 2013) (hereafter AIME). As he points out, the legal institution seems somewhat immune to the ‘jolts of modernism’ that tend to deform the institutions of, for example, religion or politics or the sciences. There is a ‘fairly satisfying correspondence’, in other words, between the institution of the Law and the elemental, irreducible modality of truth rigorously unique to legal enunciation. The corruption of other institutions has largely to do with the prevalence of what Latour calls Double-Click [DC], a pseudo-mode charged with levelling the other modes to support the demand of unmediated, direct speech: thus religious experience is sacrificed to the purportedly rational restrictions necessary for the conveyance of information, the curvature of the political Circle is rejected as the mere crooked talk of politicians and interest groups, and even the carefully coordinated chains of reference constitutive of scientific truth are crushed under the weight of representational models of knowledge that insist on logics of resemblance sustaining a subject-object correlation.
2 - Politics and Law as Latourian Modes of Existence
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- By Graham Harman, American University, Cairo
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At the time of this writing, Bruno Latour's loyal readership is still in the early stages of mastering his recent treatise, An Inquiry into Modes of Existence (hereafter Modes). In this work Latour presents a system of fifteen distinct modes of existence, each with its own three-letter abbreviation and, more importantly, its own truth conditions. The scientific criterion of adequate reference to an outside world must not be applied to other modes; this would amount to a simple category mistake. The reader cannot fail to notice that politics [POL] and law [LAW] are grouped with religion [REL] as the three modes pertaining to quasi-subjects. (By way of contrast, technology [TEC], fiction [FIC] and reference [REF] are the modes pertaining to quasi-objects.) In what follows, I will focus on Latour's distinction between politics and law, leaving religion and the other twelve modes for my forthcoming book on Latour's later philosophy.
One of the features that politics, law and religion share in common for Latour is their negative trait of being ungovernable by reference to objective facts in the outside world. It should already be clear to everyone that politics is not primarily an effort to ascertain objective truth. Most political controversies cannot be calmly and decisively settled by incontestable evidence, since most political ‘evidence’ can and will be contested ad infinitum until finally implemented by force. Nor can law be viewed primarily as an attempt to establish the true external facts of a given case. Many so-called facts in law are simply ‘taken as true’, and even the winning plaintiff can feel empty in victory, as if his or her truth-claim was not sufficiently appreciated by a favourable legal decision that aims at a different sort of resolution. Missed deadlines, botched paperwork, inadequate signatures and other apparent legal trivialities can derail an entire case. The same holds all the more for religion, whose claims surely cannot be verified by rigorous empirical inquiry. While for rationalists this is enough to disqualify religion altogether, for Latour it is merely a spur to determine what other sort of truth religion possesses, impenetrable to scientific research.
1 - From the Conseil d’État to Gaia: Bruno Latour on Law, Surfaces and Depth
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- By David Saunders, Griffith University
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La fabrique du droit
In La fabrique du droit. Une ethnographie du Conseil d’État (now translated as The Making of Law), Bruno Latour reported on his months of first-hand observation of how law-making proceeded in the French Conseil d'Etat. One of the country's three ‘supreme’ courts – the others being the Cours de cassation and the Conseil constitutionnel – the Conseil d'Etat serves as a court on matters of administrative justice. In this role, it can satisfy a claimant by annulling a prior judgment by another court or tribunal or it can reject the claim. The court also acts as a legal advisor to government on the drafting of legislative bills and decrees. More rarely and if requested by the government – as in the ‘headscarf’ controversy – the Conseil d'Etat can proffer an ‘opinion’.
In selecting the Conseil d'Etat as his object of observation, Latour had picked a legal institution atypical of the French system. Founded by Napoleon, the court has ‘the task of conjuring up, from start to finish through the mere interplay of its previous decisions and in the absence of any written text … a sui generis form of law whose specific objective is to protect the citizen from the excesses of the administration’ (Latour 2002/2010: 14). The court's jurisdiction, then, is not code-based but rests its decisions on the authority of its own accumulated administrative case law.
Latour's account of the Conseil d'Etat's manner of proceeding went much wider than a concern with this institution's atypicality. The procedural and case-based – as opposed to code-determined – dimension of the court provided passage to a broader intellectual programme whose concern was to detour around conceptual determination. The outcome was a comprehensively ‘superficial’ description whose focus ranged from the judges’ particular habits of legal mind and their regular techniques of dealing with the cases coming before them to the architecture of the building and all the bits and pieces of equipment. This sweep – from the intellectual to the material, from the spiritual to the technical – is in keeping with the distinctive approach Latour has developed in his style of ‘science studies’ on the working practices of scientists and laboratories.
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6 - The Life and Deaths of a Dispute: An Inquiry into Matters of Law
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- By Niels van Dijk, Université Saint-Louis, Brussels
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Summary
Introduction
Latour has recently put forward the diplomatic proposal to embrace the value of law in our common non-modern world, and to see whether alternative accounts can be provided based on an empirical turn to the details of legal practices. These accounts will need to differ from the overly dismissive ones given by critical social theorists and from the overly purified or glorified ones provided by legal theorists and defensive legal practitioners. For the purposes of this chapter we will take up the proposal to provide such an account. This account can then be used within the diplomatic negotiations about the nature of law, both as a check and an addition to the accounts provided by more traditional legal theorists, but also to the alternative account provided by Latour himself.
In this context Latour's own account of law extracted from his ethnographical study at the French Council of State will first be discussed. Through his empirical investigations he addresses the philosophical question about the essence of law. He proposes to extract from this institutional practice what he calls the ‘regime of enunciation’ of law. Law has a specific way of tying a whole range of heterogeneous phenomena together in a way that allows lawyers to speak legally. Latour calls this the ‘passage of law’ which is characterised by several semiotic elements: a clef de lecture, the transfer of value objects and the acts of re-attachment. Taken together these constitute the legal trajectory of enunciation.
The conclusions that Latour draws about the nature of law, especially those related to the role of facts and legal totalities, will be compared with an alternative account of the value of law. This account will be based on empirical studies at a law firm and courts of first instance according to an approach that traces all the proceedings of the matters of dispute. Instead of starting a study of law at the end of the legal line in an instance of judgment in last appeal, such a conflict-based approach visualises all the things that make such a legal decision possible in the first place, by closely following everything that happens between the moment a particular conflict is first brought into contact with lawyers and the moment it is decided by the judges.
10 - Laboratory Life and the Economics of Science in Law
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- By David S. Caudill, Villanova University
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- 30 October 2015, pp 273-303
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Introduction
[T]he application of the term ‘sociology’ to a study of scientific activity will be regarded by many scientists as dealing primarily with … a variety of behavioral phenomena which … unavoidably impinge upon scientific practice by virtue of the fact that scientists are social beings; but they are essentially peripheral to the practice itself. In this view, social phenomena occasionally make their presence felt in instances of extreme secrecy, fraud, or on other relatively infrequent occasions. It is only then that the kernel of scientific logic and procedure is severely threatened and scientists find their work disrupted by the intrusion of external factors. (Latour and Woolgar 1986: 20–1)
The significance of Bruno Latour and Steve Woolgar's Laboratory Life (1979, 1986) for science studies can hardly be exaggerated – it provided a theoretical framework and a working model for so many ‘second-wave’ (rejecting the Mertonian ‘first wave’) sociologists of science, some even critical of Latour and Woolgar, who were dealing with diverse questions of science/society interactions in numerous settings. It also anticipated the science wars and provided a (frequently unrecognised) pragmatic alternative to the stereotypical images of social constructivism. Moreover, Chapter 5 of Laboratory Life (exploring the ‘cycle of credibility’ among scientists) anticipated the current interest in the economics of science in science studies. As to law and legal contexts, Laboratory Life anticipated both the Daubert revolution in evidence law, where philosophical questions about the nature and reliability of science would be the subject of US Supreme Court speculation, as well as contemporary concerns over the effects of financial bias on scientific research and expertise.
The term ‘economics of science’ has multiple connotations, referring in the first instance either to the application of economic models to the scientific enterprise, or to the behaviour of scientists as they compete in the ‘market’ for scientific knowledge, perhaps trading in reputation or credibility (e.g. Bourdieu's ‘symbolic capital’) instead of money. Secondarily, the term can refer narrowly to the effect of financial support on research outcomes, or more broadly to the effect of the economy on the scientific enterprise, whether (in either case) positive or negative.
11 - Bartleby, Barbarians and the Legality of Literature
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- By Faith Barter, Vanderbilt University
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In An Inquiry into Modes of Existence, Bruno Latour offers a sweeping account of his ‘Anthropology of the Moderns’. The title is, to deploy one of the book's key terms, a ‘preposition’ that orients the reader in several directions. By framing the project as an ‘inquiry’, it claims that modes of existence are susceptible to organised, textual and anthropological examination. Second, it establishes that existence occurs within and among various ‘modes’, making clear that existence is diverse, varied and multifaceted. By describing types of existence as ‘modes’, the title invokes the concepts of habit and behaviour; according to Latour, a defining feature of a mode is that each one ‘possesses its own particular type of veridiction’. Thus we recognise a mode by looking to its own habits of ‘explicitly and consciously … decid[ing] what is true and what is false’ (Inquiry 53).
Throughout the book Modes of Existence, Latour proceeds from his extensive work in actor-network theory (ANT) to identify and develop more than a dozen modes of existence, such as law, politics and, perhaps surprisingly, fiction. He examines each as part of what he calls a ‘regional ontology’ (Inquiry xxv); by using the term ‘regional’ as a modifier of ‘ontology’, Latour suggests a spatial component to these modes of existence. The word ‘regional’ also implicates Latour's claim of ‘local’ ontologies that are specific to various modes of existence. This regional delineation does not isolate the modes from one another; rather, Latour uses the term ‘crossing’ to suggest a means of putting modes into conversation with one another: ‘A crossing makes it possible to compare two modes, two branchings, two types of felicity conditions, by revealing, through a series of trials, the contrasts that allow us to define what is specific about them, as well as the often tortuous history of their relations’ (Inquiry 63). The result of such crossings demonstrates, for Latour, ‘the irreducible character of [the modes’] viewpoints: this is where we shall be able to see why the conclusion of a [legal] trial bears no resemblance to that of a scientific proof …’ (Inquiry 63).
Index
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