I: Contemporary perspectives and approaches

Actor-network theory and socio-legal analysis

Leticia Barrera and Sergio Latorre

As the extensive scholarly production in socio-legal research has demonstrated, legality is not a field that can be studied independently from the social. Different theoretical approaches have emerged attempting to explain the relationship between the law and its contexts of production, realization, and reception. Geertz’s ‘legal sensibility’, Feeleys ‘legal culture’, Ewick and Silbey’s ‘legal consciousness’, and Brunneger and Faulk’s ‘legal subjectivity’ are examples of the many analytical categories that socio-legal scholars have elaborated to address the experiences and meanings of legality to different actors in a plurality of settings.

Recently, in the effort to understand how society and law hold together, and in particular, the place of law and legal knowledge in shaping the world and being shaped by it, some researchers have borrowed from the field of Science and Technology Studies (STS) the insights of Actor-Network Theory (ANT), which focuses on the rich web of associations between persons or humans on the one hand and things or non-humans on the other, and on the crucial role these relationships play in the production of knowledge. In ANT’s view, knowledge is made through assemblages or networks of human and non-human agents {actants), that is, by tying together material objects or technological devices (such as microscopes or file folders), scientific concepts, human experts (scientists, judges); and references made to natural phenomena (such as the hole in the ozone layer or global warming).

Certainly, ANT’s understanding of knowledge production and circulation challenges those theories that endorse modernist epistemologies that draw sharp divisions between objects and subjects, nature and culture, and separate the natural sciences — which are assumed to deal with objects — from the social sciences or humanities, which allegedly care about subjects/social agents. In contrast to this traditional set of binary oppositions, as John Law and Bruno Latour explain, ANT considers knowledge, the product of science, as ‘a process of heterogeneous engineering’ in which bits and pieces from the social, technical, conceptual and textual are fitted together, and so converted (or ‘translated’) into a set of equally heterogeneous scientific products. From this perspective, legal knowledge, just like scientific knowledge, can be understood as one of the ways in which the world is assembled. The word ‘legal’ does not refer to an inherent quality of certain people or objects but is rather an attribute that is attached to all sorts of events, people, documents, and other objects when they become part of the decision-making processes involved in the law.

Through the lens of ANT, and in particular its key notion of the network, legal instruments, such as documents, forms, files, leases, deeds, patents, and other legal materials that are an important part of the processes of the making and operation of the law but are usually taken for granted by both legal actors and legal scholars, are turned into distinct objects of analysis. Methodologically, in following the networks of human and non-human actors that arise out of and constitute knowledge-making processes, scholars discover the dynamics of specific practices and problems.The purpose of ANT analysis is generally to describe the dynamics of a specific network, not to generate a static model of how ‘law’ or any other system works, in general.

For ANT, the materials that one may encounter in the field are not fixed units; rather, they move, create new social relations, and even may become something else. ANT literature provides different examples of this kind: water pumps, documents, microbes, doors — all may be different entities depending on the set of relations they create in different moments and places.

Therefore, according to ANT, facts and objects are conceived as inherently relational, complex, fluid, and ontologically multiple. In this vein, the analysis remains mobile and engaged in detailed and close descriptions of technical and materials aspects, rather than being a universal theory based on general statements or diagnostics.This, however, does not mean that ANT advocates for the absence of a critical analysis. Rather, it points towards a shared sense that the fields of moral, ethical, or political valuation and activity are shifting and should be themselves scrutinized.

In the remainder of this essay, each of us will provide, in the first person, an example of crucial research findings that challenged our previous assumptions about legal knowledge production and that encouraged us to borrow ANT methods and insights. These findings — in the context of the Argentine Supreme Court of Justice, in Leticia Barreras work, and at Incoder (the Central Land Office) and two rural field sites in Colombia, in the case of Sergio Latorre — brought to our research on law-making practices an unexpected dimension of the law: its materiality In our fieldwork, we saw law manifested through the assembling of various papering practices, forms, agency, theory, and even infrastructure. ANT worked as the critical lens to bring law’s materiality into the centre of our analysis and allowed us to ask about the quotidian and mundane operation of law. It also allowed us to take this question beyond legal thinking to inquire into its sociological effects.

The file (Leticia Barrera)

On December 19, 2005, 1 was conducting archival research in the Argentine Supreme Court’s Library for my doctoral dissertation when I received a phone call from a law clerk, whom I had met a couple of weeks before, telling me that he had been informed that there was a file with my name at the Court’s General Administration office. I then decided to pay a visit to this office and check the accuracy of the information I was given. At the front desk, an officer confirmed that there was indeed a dossier named ‘Dossier 3737/05 Barrera, Leticia (Doctorate at Cornell University Law School) on internship to the Nation’s Supreme Court of Justice’. 1 asked the officer if I could read the dossier, but he replied that I could not have access to it at that moment because it was ready to be circulated to the then seven Supreme Court Justices for consideration. I was shocked about this news because 1 had never applied for an internship in the Court. Then 1 asked him who had made such a petition on my behalf. He looked at his computer records and answered that a letter had been sent to his office from one of the Court Justice’s offices (yocallas) requesting a legal opinion; that this office’s legal counselling division (Asesoría Jurídica) had concluded that all the Court Justices should review the letter before granting consent for my ‘internship’ (pasantía). He also made it clear that, as in any other case that the Court decides, my petition would need a majority of five affirmative opinions out of the seven Justices to be approved.

The letter that the Administration Office employee referred to was one of the introductory letters addressed to each of the seven Justices that 1 had brought to the field in fulfilment of Cornell University’s policy on the ethical use of human subjects in research. These letters were signed by my thesis supervisor and the Dean for Graduate Studies, and provided a very brief description of the ethnographic research that 1 would intend to conduct in the Court, including the methods I would apply, my course of action within the institution, and above all, my commitment to confidentiality. The letters also included informed consent documentation.

To skip procedural formalities that could delay my research inside the Court, 1 had delivered these letters in person to each of the seven Supreme Court judges’ offices rather than submitting them to the Court’s front desk. Nonetheless, the fact that I had chosen to do it in writing meant to judicial agents that I had filed a petition, which like legal requests generally should be reviewed and decided upon according to the rules and procedural mechanisms that regulate the Court’s workings. To put it differently, what 1 had assumed as a matter of just a research-related formality to get access to the ‘field’ was translated by Court officials into a matter of law.

Anthropologist Jennifer Shannon recounts a similar experience in encountering bureaucratic proceedings in her field research and describes a type of relationality that informed consent documents may enact in this context. Drawing on Annelise Riles’s insight that ‘documents anticipate and enable certain actions by others’, Shannon describes the consent form as an ‘actant that sets people into action, as well as an institutional symbol in an existing cultural context’. She suggests that the more bureaucratically regulated the informed consent becomes, the more it takes on the form of established legal practices, and hence the more it leads to a ‘legal relationality’ between researchers and research participants. Like Shannon, my initial concern regarding my file was about the potential effect that the introduction of ‘legally oriented’ documents endorsed by the university’s representatives might have on some relationships that I had been making in the field so far. Before I was informed about the existence of the dossier, I had met many Court agents and conducted several interviews in the tribunal, mostly with law clerks. Nonetheless, what I foresaw at the outset as disruptive and negative towards the development of my fieldwork relationships was the ordinary effect of my own engagement with the judicial apparatus, whether this interaction is articulated through informed consent letters, or through any kind of written document submitted to the Court. In other words, when 1 believed that Court officials had interpreted and translated into a legal matter a formal introduction for research ethics purposes and related consent forms, 1 did not realize that, in fact, 1 was dealing with a bureaucracy’s everyday response to any written request, that is, the making of a file or a dossier. In my case, such a response was even more commonsensical due to the aesthetics and content of the letters delivered to the judges: they were written in a formal style, on the university’s letterhead, with the institutional logo and references, and were signed by school authorities who backed my position and research. Consequently, it should not be surprising that the state’s response to a petition is the framing of such a request by its own terms and proceedings, that is, according to the legal bureaucracy’s definitions (an ‘internship’, in my case), and following‘carefully scripted routines’, to quote Riles.

As Latour’s ground-breaking work on the French Conseil d’Etat has demonstrated, there are instances of judicial practice, other than the final court decision, through which legal knowledge can be accessed and apprehended. In my research, it was the quintessential bureaucratic practice of file-making which allowed me to access the field and engage in a fine-grained study of the practices of knowledge production and circulation in the Argentine Supreme Court from a different perspective. In the process of following up on the status of my personal Court dossier, 1 also became myself a Court petitioner with expectations to get a favourable decision to my request.When my petition for an ‘internship — a petition I had never actually made — was refused by the Court, I requested, unsuccessfully, an explanation for this ruling. However, regardless of the outcome, the experience of being both a researcher and petitioner pushed me to reflect on aspects of legal knowledge that remain a blind spot for socio-legal studies because their mundane and instrumental character does not make them attractive to critical and socio-legal analysis. According to Cornelia Vismann, legal studies lack any reflection on their tools. Files, as she states, are the basis for legal work but ‘remain below the perception threshold of the law ... and certainly do not turn into objects of scientific investigation’. Indeed, files and documents are ordinarily regarded as nothing but mediators between the law and the decision. However, it is this intermediary position that files are said to occupy in the legal process which actually turns them into artefacts to access and apprehend the practices of legal knowledge-making. Files speak of events; they record processes and are constituents of a number of relations. They even impact on the actors’ subjectivities and set the physical and epistemological boundaries of reality, of legal knowledge’s reality. Files are instances of knowledge creation, expansion, and even concealment.

The land title and the seal (Sergio Latorre)

My encounter with the land title document came during the early stages of writing, after having a chapter of my dissertation rejected. In the search for theoretical avenues to push further my analysis, 1 was encouraged to start again from scratch. Rather than taking for granted the problems of access to land, which in my case reaffirmed law’s inherent hegemonic power and understood law’s procedures and institutional bureaucracy as another instantiation of such power, my adviser’s suggestion was simple: to leave aside the question of who wins and who has power, and to start first describing what I had in front of me.

During the discussion of the failed chapter, the land title document had appeared several times in many of the stories of land struggle I had collected in my three field sites: Marialabaja, in Colombia’s Caribbean coast; El Socorro, in the country’s Andes region; and the offices of Incoder, in Bogotá. Until then I had not managed to tell a compelling story about this document, even though I intuitively knew that it had something hidden that allowed this piece of paper to connect the struggles of campesinos (peasants) to one another and also with the bureaucrats in Bogotá whose daily practices also involved working with land titles. The energies of campesinos and bureaucrats alike were spent in caring for, fixing, crafting, and fighting over land titles.

1 started to approach the land title through an aesthetic analysis of the document in front of me. For a moment, 1 put aside the background information 1 had about the document 1 was looking at. It belonged to a campesino family involved in a land acquisition dispute that had lasted over a decade, in which two campesinos were killed. Instead of focusing on the content or on the background story, however, I turned to describe the material aspects of the document. The kind of paper: a notarized stamped paper. Its textural quality: thicker and heavier than most documents. I also paid close attention to its design, a framed rectangular box from which perpendicular lines came out forming a lined sheet of paper. Atop the lines was the careful display of the text in a typewritten letter with commas, accents, capital letter, hyphens, and bold lettering. Each box formed by the lined format was used in full. Any space left blank by the text was completed with additional hyphens until they met the margin. At the end of the document, the signatures of the parties involved in the transaction and their fingerprints. Immediately below, the signature of the notary public accompanied by the notarial stamp.

This stamp was one among a number of official stamps you can see on the title, each with a different meaning. However, the most important stamp in the document, placed on its upper left corner, was not a stamp produced with a rubber stamp but a seal, difficult to spot by the naked eye as it was now part of the printed notarial paper.

The seal is an antique technology that was used either over lumps of clay to secure the content of bags or it stamped over melted wax to close folded documents, thus guaranteeing the secrecy and authenticity of something regarded as having great value. In this case, the seal found in the land title opened up a network of relations that could help me explain not only the effects caused by the formalization of property over land but also important features of property and legal knowledge more broadly.

Attention to the seal in the title, apart from revealing the colonial underpinnings of the old system of property (since it was the Spanish royal seal, not the seal of the modern republic of Colombia), would allow me to understand and connect the materiality of legal documents, such as land titles, to present-day situations in rural Colombia. In some villages, campesinos most often had titles that needed to be updated or had no titles at all, but in other places, they had documents with official stamps that they thought were land titles but were considered by legal expert to be worthless.These documents were known as ‘carta de ventas’.These documents were also crafted at the notary but wrongly regarded by campesinos as land titles. Unlike property titles, they did not bear the seal of the land title but only other stamps. In fact, many stories regarding formalization of land tenure could be understood as a struggle of documents themselves to achieve the status that made them legal land titles.

The relationships between the seal and the land title allowed me to understand the property title, with its particular features, as an important legal technology for property. The stamps, the signatures, the lined boxes filled out in full (with dashes used to fill any empty space at the end of a line), the lettering, and the serial numbers were all technical devices that spoke of the importance of this particular paper and the power it held within it. All these technical devices constituted a design aimed at ensuring the documentary authenticity and uniqueness necessary to guarantee property. The land title document contained a particular relationship between people (in this case, the buyer and seller) in which each party was individualized using devices such as signatures, fingerprints, and national identification numbers — devices that identified them by their external features. The plot of land was also made individual by its external features, that is, in relation to other plots of lands, by establishing its boundaries in the document. The authority of the State — which conferred to the notary the power to bear witness to the transaction — was also ratified by parties. Finally, the document of land title itself, as a technology incorporating technical devices, became individualized. Therefore, this document came to embody the piece of land, creating the pathway for new relationships (i.e. collateralization of land as an economic asset) to take place. The land title had finally revealed its great value.

In short, the description and analysis of the materiality of the seal and the land title inspired by ANT methods allowed me to see that behind this document there is a careful configuration of social and non-human elements. The latter too exert agency and play a key role in the configuration of property and formalization of land ownership.

Conclusion

ANT’s versatility attracts scholars engaged in rethinking the complexity of laws immanent operations and its links to other fields such as sciences, politics, literature, the environment, and the economy. Scholars working with ANTs toolbox have made significant contributions to discussions on the role of the quotidian and mundane operation of the state apparatus and how these operations are instantiated and reproduced in disperse institutional and social networks of power. Their interventions have influenced current Law and Society discussion on topics such as the making of governance, everyday legality and legal consciousness; the role of experts and expertise; and the workings of bureaucracies and bureaucratic practices. Certainly, ANT opens up many possibilities for critical and socio-legal studies.

Further readings

Barrera, Leticia. 2018.‘Gatekeeping: Documents, Legal Knowledge and Judicial Authority in Contemporary Argentina’. PoLAR:The Political and Legal Anthropology Review 41 (1): 90—107. https://doi.org/10.1111 / plar. 12242

Law, John. 1992. ‘Notes on the Theory of the Actor-Network: Ordering, Strategy; and Heterogeneity’. Systems Practice and Action Research 5 (4): 379—393. https://doi.org/10.1007/BF01059830

Latour, Bruno. 1993. We Have Never Been Modern. Cambridge, MA: Harvard University Press.

Latour, Bruno. 2004. La Fabrique du droit. Une ethnographic du Conseil d’Ltat. Paris: La Decouverte/Poche.

Latorre, Sergio. 2015. ‘The Making of Land Ownership: Land Titling In Rural Colombia, a Reply to Hernando De Soto’. Third World Quarterly 36(8): 1546—1569. https://doi.Org/10.1080/01436597.2 015.1046984

Riles, Annelise. 2000. The Network Inside Ont. Ann Arbor, MI: University of Michigan Press.