Abstract
The Conseil d’Etat is an institution peculiar to France. Very peculiar, having been established by Napoleon in 1797 as a counterweight to the civil and criminal law set down in . . . the Napoleonic code. In contrast to continental European constitutional courts it constructs a sui generis form of law on a case-by-case basis, in the Anglo-Saxon manner, and unlike supreme courts, its members may or may not be judges, some of them being former and possible future government ministers and some not being lawyers at all, despite the fact that part of its business is the scrutiny of government bills and decrees and may involve the finest points of the law. Half of the members come straight from the elite Ecole Normale d’Administration, half come in having worked in other walks of professional life; most take “sabbaticals”—working in industry or commerce or indeed as regular judges and lawyers—that can last 10 years. Any citizen can have a case brought before the Conseil, usually after having lost a case and had their appeal rejected by the regular courts. Some of the cases are of interest to them alone, others have a public interest. This makes no difference to the councillors, who, whether they are dealing with a farmer who complains that the local council is failing to stop pigeons eating his sunflowers, or a failed asylum seeker who claims that his deportation to Iraq means his certain death, are there solely to “say the law,” that is, through often long and painstaking deliberation, to establish a connection between the individual case and the law as it is recorded in Lebon, the written record of the French administrative case-made law.
The council’s business is conducted in the august surroundings of the Palais-Royal, and it was here, on its 200th anniversary, that Bruno Latour found himself seated somewhere on the back row taking notes: sensing that a dash of publicity on this occasion would not do them any harm, the Conseil had granted him “access.” Latour was the first and maybe the last ethnographer to be given it, and the sense of responsibility that this brings with it may explain why, from its first page to its last, this book is as splendid as the surroundings that gave rise to it. Far from being a burden, the sense of responsibility provides a platform for Latour’s delight at the world. And his ready wit: there are passages here about how a file is constructed and “progressed” from one stage to another, pigeon holes and armchairs as expressions of hierarchy, dustbins and who should pay for them, about what counts as a genuine prime ministerial signature, and about the minutiae of conversation, that are worthy not so much of Goffman or Garfinkel but of Laurence Sterne. “You might be willing,” he challenges the reader, “to cross the channel to hear charming stories about Provence or Burgundy wines, but not to sit, for 300 pages, inside the Palais-Royal in Paris to hear exceedingly boring people discuss exceedingly subtle points of law” (p. vi). Had Sterne’s Yorick taken his sentimental journey today one can imagine him heading straight there and having what ethnographers ought to call a field day. He, like Latour, would have enjoyed tracing “the winding path of practice,” the law’s zig-zags and hesitations (its duty to hesitate!), following an individual litigant’s case as it reaches the next stage of a rambling journey that may take a decade or more, listening to two members whose urbane joshing results from the fact that, politically poles apart, they have been attending sessions in adjacent armchairs for 30 years. Like Tristram Shandy’s father, he would have been impressed that the use of an auxiliary verb allows a commissioner of the law to address the council’s members with the words “you have admitted,” “you have decided,” and by “you” mean a collective body extended backward in time, so that the members are seen as having been making decisions since well before they were born.
Latour manages both to inform us about how the council of state works (its members too, the book—first published in French in 2002—now being required reading for students of administrative law), and to contribute to the philosophy of the social sciences, more persuasively because less stridently than in Reassembling the Social. The heart of the book, the heart of the Conseil, is the case file, by the account of whose progress you might justifiably expect to be bored. Yet Latour tells a compelling story of the file’s construction out of a mass of documentation coming from many different sources, its movement through the section meetings of the Conseil, and the reworking of its contents by a series of human agents who gradually strip it of the facts of this particular case until, remarkably, it consists of nothing more than a green slip of paper containing the pertinent legal content, expressed in a lapidary few lines but enough for those at the final stage—often with several hundred years experience between them!—to make a judgment, to know how to “say the law” without themselves knowing the “facts of the case.” There are long passages of transcribed dialogue, and because the council member’s talk is highly indexical, these are swollen by Latour’s extensive explanatory interventions and flashes of self-reference. James Clifford fans will see this as the author establishing his authority; this reviewer prefers to see it as the author telling us something we did not know. Latour’s conclusion, that there is no fundamental principle, no essence of law, is sociology’s riposte to both natural law and legal positivism; his conclusion that law is the way law works is the ethnographer’s riposte to the sociologist who would see it as just another system or mechanism of class reproduction.