This may seem like rambling, but if you have my earlier posts, you’ll be on to my style and the ‘nature’ of my blog.
I wanted to take a line from Latour’s work on the Council of State that seemed to stand out for me:
‘The requerant (from now on ‘litigant’) – a name which is given to plaintiffs in administrative law – could have taken his gun to the pigeons in the sunflower fields of La Rochefoucauld and served the mu pas roasts; he could have hated the Mayor in his heart of hearts, or insulted him in public, but as soon as he assumed the dignity of the litigant by posting the piece of stamped paper to which he made his complaint to the administrative tribunal of Bordeaux, we find ourselves on this cold autumn afternoon linked by a thread which allows his pigeons, his sunflowers, his resentments and his Mayor to ‘produce law’.’
What is Latour saying here, that they were ‘linked by a thread’? The complaint? The law? The paper trail? Why does the ethnographer pay such, really, painstaking attention to the objects almost more so than to the subjects—or the ways these interact, really the ways the objects have agency? Look at how Latour offers up a connection, a material connection between the outside world and the world that is now, well, law, legal. The simple, everyday existence of a farmer here in France can create for the administrative law a moment of material concreteness—I mean, a moment in which the lived experience of the individual becomes the material condition for the production of law, for the interpretation of a law. How, I don’t know, amazing! We often take for granted that the lives of individuals constitute the very ways the law is shaped—and Latour takes a rather interesting journey toward understanding just how the social and legal worlds are separate, and how they are stitched together.
I wrote a paper for a class on law and society that explored this concept, albeit in less subtle, erudite ways. I looked at the way a court, in particular the case of Glenn v. Brumby, an appellate case that dealt with the rights of a transwoman’s protections under federal sex stereotyping law. But I wanted, in my analysis, to consider the way that legal documentation (much like how Latour shapes his observation above) threaded the life of this transwoman’s termination, and her life as a transwoman.
First, as an aside, Latour discusses the ways the Council handled the above case, a case that dealt with a farmer whose crops were being destroyed by local pigeons and the Mayor’s less than efficient ways of stopping them. He draws out this case to highlight several points that become the foundation of the book, The Making of Law. In particularly, the traceability of documents that make life into law. Then, how the Council, once in possession of these documents, recreates that life with what was present. In this particular instance, the Council shifts (in certain scenarios in which deliberation was had) between what Latour calls issues of law and issues of fact. On the one hand, the Mayor should have taken better precaution to protect the farmer’s crops under certain laws of that district. On the other hand, the pigeons were not considered ‘harmful’; they were treated, in what Latour observed, as matters of factual consideration, not of law—but that these matters of factual interpretation, of non-nuisance, contributed to the dismissal of the farmer’s claim, a claim that had been in circulation for a decade.
Back to the Glenn case. I wanted to discern, the way Latour did, what matters of law and matters of fact affected the court’s overall consideration of Vandy Beth’s claim against discrimination and her wrongful termination. The court, the appellate court, rightfully sided with Glenn, but not because of a moral compunction against trans-sexism. Rather, the court looked precedent, those threads that constitute (in Latour’s legal vision a reference not unlike that which exists in laboratories) binding ways of looking at matters of law and fact. What was a matter of law, here? For Glenn, it seemed that simple: She was protected under federal law against being fired for sex stereotyping, gender discrimination, etc. But what was fact? She was a transwoman, who had come out to her employer as such, disclosing her intention to undergo gender-confirming surgery and the processes that go along with that transition (a transition the majority of trans* people either decide not to do for various, mostly economic, reasons). Those facts weighed less upon the court than did the precedent, the matter of law. Unlike Latour’s pigeons and the Council’s preoccupation with interpreting their relative harm to that region of Bordeaux, here Glenn’s status as an embodied transwoman was not entirely considered. She was pushed forward as a normative woman facing sex stereotyping. Her ‘fact’, her life, as it was told in court documentation, seemed to experience a translation mishap.
Why do I say that, when she won her case? I am not considering her victory a Pyrrhic one. Rather, I wonder at what lived experiences are indeed lost as they exist as threads from the world outside of law, to the realm where laws are ‘produced’? This is an important question, for the law itself is the foundation (if we follow Durkheim and Weber and a host of other social theorists here) for how our social organization is to play out, as we are to be legible citizens who have experiences, sensed, affective, emotional lived. I wonder at what happens when precedent in one instance treats a transwoman as merely normative because of sex sterotyping, and not because she faced this discrimination for her being trans*. I wonder at the kind of legal edifices that are raised, and the kinds of lived experiences that are razed, by court rulings that elide Latour’s ‘facts’ in some circumstances in favor of Latour’s ‘legal’? When I consider the countless trans* lives that go unnoticed by law, other than in their processing and booking before being incarcerated, I take certain victories with cautious optimism.
Much later in his book, Latour makes a startling statement—that without the file in the Council, the folder containing hundreds of formal documents accumulating over time documenting claims, officer statements, witnesses and relationships, awaiting its day to be reviewed, no material thing in our social reality before this institution of law-making, no lived experience—nothing—happens.