Abstract
Binding together Kyle McGee’s bold monograph – offered as the first book-length study of Latour and law – is McGee’s dogged and admittedly “strange” (xv) insistence to use the famed antinormativist Latour to think through the phenomenon of normativity. How is it, McGee asks time and again, that norms – legal and otherwise – “register effects in the world,” bind together disparate elements of the world, or possess material clout (161)? How is it that norms have material force beyond the commands of the sovereign, the courtroom, or the textbook of moral philosophy (157)? McGee plumbs the entirety of Latour’s oeuvre for answers, turning to Latour’s decades-long reworking of notions like mediation, material agency, and facticity for direction.
The first half of the book pursues this task broadly at the level of moral philosophy and semiotics before turning in the second half to legal theory. Chapter One attempts to flush out the oft-overlooked “normative pulse” (58) incipient in Latour’s Actor-Network Theory (ANT). Resisting objections that ANT’s focus on pure description – i.e., on observing and tracing the movements of actors – makes it antinormativist, McGee turns from external description of networks to ask what holds networks together from the inside (47–68). The question for McGee exposes a “pulsional normativity” that views norms as actors in their own right rather than abstract rules (45–6, 61–8). Chapter Two shifts to what McGee argues is Latour’s own normative project: “the progressive composition of a common world” – what Latour calls “cosmopolitics” – and asks what role law may play in this project (xvii, 84, 88–95). McGee suggests that comparative law has merit as a cosmopolitical practice because in comparing various legal regimes comparativists foreground the messy heterogeneity of law’s “co-becomings” as well as stimulate “pollination” across legal systems (90–97). McGee’s emphasis throughout is less on law, than on how the practice of comparison itself might further Latour’s cosmopolitical call.
The second half of the book turns explicitly to Latour’s more recent work on law. Chapter Three unpacks Latour’s account of law as a regime of enunciation, emphasizing how law passes through series of mediations both inside and beyond the courthouse to defend Latour against the charge that his “conception of law as a regime of enunciation foreclose[s] inquiry into law’s life outside the assembly hall” (147). Reading Latour’s work on law with his earlier work on ANT, McGee argues, not only helps us recognize Latour’s appreciation for the activities of law outside the courthouse, but also offers us a less-formalistic theory of legal normativity as we trace law’s force from courtroom arguments, to legal documents, to technical “lieu-tenants” like turnstiles and speed-bumps (147–81). Chapter Four explores the consequences of the account of legal normativity offered in the previous chapter. If law’s normativity is enacted by myriad “non-legal actors” both inside and outside the assembly hall, then we need to think more about what law does materially, what values it manifests, and we cannot rest assured that modern legal institutions are the best means of instituting these values (194–7). Here McGee distinguishes between law as modern institution and law as a “mode of existence,” and rejoins us to Latour’s recent call to imagine “nonmodern institutions” capable of furthering and safeguarding diverse values otherwise poorly housed by modern institutions (218).
The remainder of this review focuses on the second half of the book and in particular the third chapter; it is here that McGee’s interlocutors notably shift from ANT scholars to legal scholars, and it is here that McGee seems to get to the heart of his project: distinguishing the question “what is law?” from the question “what is the force of law?” (148). This distinction allows McGee, in turn, to query “how a rule, a norm or a normative order, or a legal order, ha[s] any purchase on the world outside of the assembly hall, courthouse, or law school” (157). McGee’s point is that in answering this question most theories of law remain too formalistic, offering an account of law’s normativity that is wholly rooted in law’s abstract form – the whatness of law – rather than law’s force or passage in a material world. McGee is not shy with his position. McGee shows how theorists ranging from Austin, Kelsen, Hart, and MacCormick to Derrida all “derive the force of law from the form of law, in which the latter alone is said to act” (124, 148–61). Admittedly, the form of law ranges wildly from Kelsen’s “transcendental presuppositions” and MacCormick’s “conventional norms” to Derrida’s “figurations of violence and justice,” but they all crucially fail to account for “the positivity of the force of law in all its complexity and richness … rigorously indistinct from [its] materiality and scenography” (157–8). “Where … are the beings capable of putting law in force, of increasing the degree of reality enjoyed by the judgment or decision, which is otherwise merely a transient affair, a fleeting utterance that taken singly lacks duration, mobility, direction?” (157).
McGee is at his best here as he traces the “precise sort of connections that law makes [and which make law] as it cuts through the ecology of practices” (163–4) from turnstiles and surveillance cameras that make law “durable” to the sundry images of law we encounter daily (e.g., images of Lady Justice in courthouses, crime shows on television) that modify law’s force “by making it more incisive, more infiltratory” (176). However, I wonder if McGee might turn to the matter of matter too late and I think my point may best be framed by McGee’s rather quick dismissal of Derrida’s “critical jurisprudence” coupled with his insistence to defend law as a regime of enunciation (147, 157). Surely McGee is right that you cannot adequately account for the force of law by only considering law’s abstract formal structure (McGee’s criticism of Derrida et al.) or institutional articulation (common criticism of Latour’s law as enunciation that McGee resists). But as I understand “critical jurisprudence,” the point is not that law’s force is contained wholly in some abstract aporetic moment, but in the material and violent immediacy of “the originary event of law” (154). The decisions exiting a courtroom have purchase on the world outside because of their subsequent mediations through technical objects and images (a la McGee’s extension of Latour), but also because the originary event of law – i.e., law’s form – is itself a material practice not contained in any courtroom or abstract structure, but in “the ereignis of land-appropriation” (Schmitt paraphrased, 154), the walking of a boundary line, the surveying of the city walls, or what one might call the pre-ambling of the law. Law has force or material sway, in part at least, because its very form, which McGee eschews, is a material practice, passage, (pre)ambulation with its own affectivity (163).
So while McGee shows how Latour’s account of law does not remain locked up in the assembly hall but passes into the world and “registers effects,” his very insistence upon law as a regime of enunciation seems to make him overlook the material practices of law prior to the assembly hall that critical jurists like Derrida catch (161). If I resist anything in McGee’s book, it is this claim that law does not begin until the “interlocution” of the courtroom (160–63). It seems to me that we must look to the non-enunciative material practices of law prior to institutionalization – the messy imbrications of physis and nomos, nature, materialities, and law – as well as law’s subsequent mediations or effects to fully appreciate and gain critical leverage on law’s force.
This brief gloss fails to do justice to the daring extensiveness and originality of McGee’s applications of Latour to law. In reframing the question of law’s normativity in terms of force and material effects, McGee has taken Latour’s scrambling of the fact/norm dichotomy in a productive direction (20–27), pushing legal theorists to rethink trite groundings of law – in either social fact (legal positivism) or moral norms (natural law) – with the texture of material effects and, I might add, material practices.