This essay reviews The Clinic and the Court (Ian Harper, Tobias Kelly, and Akshay Khanna eds., 2015) and The Role of Social Science in Law (Elizabeth Mertz ed., 2008). One edited volume focuses on medicine; the other on social science. Each shows how expert discourses interact with the expert discourse of law, being shaped by it and shaping it from the inside. And each provides a chance to consider how we can study the role of context in law: how to recognize moments where legal actors pick out aspects of the world as relevant, how to evaluate their interpretations of those aspects, and how to trace those interpretations as they make their way into the law. Each piece brings face to face two expert discourses, each of which sometimes claims for itself a uniquely powerful, monolithic status. The challenge, then, is to believe neither at the same time: to show how both have porous borders, internally complex organization, and characteristics that are subject to change. That means imagining law and other expert disciplines not as complete, bounded wholes colliding on the field of the social, but as continuously interpenetrating influences on partly formed, partly developing tendencies.
The essays in these important volumes usefully illuminate fissures in the walls that law builds to set itself off, showing how non-legal knowledges and methodologies operate in the very core of legal discourse, influencing legal decisions and processes from the inside. And they provide tools and approaches to use in illuminating other such areas.
At the same time, I worry that at least parts of these books take a bit for granted the internal structure, and specifically the unity, of law itself. After all, the nature of legal action depends crucially on distributions of authority, divisions of labor, tropes of legitimation, and traditions of practice among the diverse persons and institutions that make up the state: the expert discourse of law itself is highly internally variegated. Even in these essays, where agency regulation permeates the action, the go-to image of the legal setting is the courtroom, with its judges, litigators, and opinions. What effect, I wonder, does the unmarked nature of that image — which captures such a tiny portion of actual legal practice — have on how we formulate scholarship about the law, and how we imagine that scholarship interacting with legal discourse?
PoLAR: Political and Legal Anthropology Review
Anya Bernstein, Ian Harper, Tobias Kelly & Akshay Khanna's The Clinic and the Court: Law, Medicine, and Elizabeth Mertz, Anthropology & The Role of Social Science in Law, PoLAR, May 2016, https://doi.org/10.1111/plar.12145.