Law's Dream of a Common Knowledge (review)

Reviewed by: Law’s Dream of a Common Knowledge Jack M. Balkin (bio) Mariana Valverde. Law’s Dream of a Common Knowledge Princeton University Press. xii, 248. US $35.00 How do members of a vice squad know that lewd conduct has occurred? How did Independent Counsel Kenneth Starr know that President Bill Clinton had sex with Monica Lewinsky? How do US military officials applying the 'Don't Ask Don't Tell' policy know that a soldier is homosexual? How do zoning commissions know that the sale of pornographic books and magazines causes harm? How do bartenders know that their patrons are inebriated? Each of these is a question about knowledge, and in each case knowing something and the way that one knows it have legal consequences and structure social relations. Mariana Valverde's Law's Dream of a Common Knowledge studies how legal actors know things like drunkenness or lewdness, and the effects of power that come from obtaining and applying this knowledge. Valverde's particular interest is in what is generally called vice regulation; she examines how governments exercise their police powers to maintain cleanliness and social order and prevent and deter uncleanliness and disorder in the general population. She discovers that there is no single form of knowledge employed in these cases. Instead, there is a wide range of different techniques that legal officials employ to know whether social order has been disrupted. Much of their knowledge lies somewhere between quotidian observation and expert opinion, or mixes the two together in unexpected ways. There has been much recent focus on how scientific and expert knowledges have invaded and transformed the practice of law. Valverde takes a contrarian position, arguing that a large part of legal regulation still eschews scientific expertise in favour of a melange of so-called 'common sense,' social stereotype, and what she calls the 'forensic gaze'- searching for clues or signifiers of social disorder in the style of Sherlock Holmes. Valverde is fascinated with how states use their police powers to shape and control populations, and how they do so through forms of knowledge. She points out that legal officials often regulate populations through the legal fiction of 'common knowledge.' Common knowledge is what all citizens are expected to know about the world - for example, whether a particular customer is drunk - and fail to know at their peril. This version [End Page 322] of common, Valverde argues, is imperative: it directs populations to know things and makes them responsible for this knowledge whether they possess it or not. In this way, the state 'externalizes the ... duty to know and to manage the risks of urban disorder by delegating it to nontechnical, nonexpert personnel.' Valverde also argues that regulation of social order is slowly moving from a focus on particular deviant acts (like sodomy and public lewdness) or deviant identities (like homosexuality or alcoholism) to concepts like 'lifestyle,' 'habit,' and 'community.' Instead of regulating drunkards, for example, one regulates elements of the presumed habits or lifestyle of people who the state believes drink too much and cause social disorder by, for example, regulating the hours that pubs can remain open. Instead of throwing soldiers out of the military if they commit sodomy, the 'Don't Ask Don't Tell' policy excludes them if they have the 'propensity' to commit homosexual acts. Valverde's book is a contribution to the sociology of legal knowledge. But it offers no general theory. She contends that the ways that legal officials know things are multiple and hybrid. Therefore her book is a series of short essays on different problems of vice regulation and social control, and the different forms of knowledge employed in each case. Nevertheless, the book is larger than the sum of its parts. Within its pages are the beginnings of a more general technique for studying how legal knowledge works and the work that it does. Vice is a particularly good place to begin this study; but the examples in this book suggest that Valverde's methods can be extended with profit to many other areas of legal regulation as well. Jack M. Balkin Jack M. Balkin, Faculty of Law, Yale University Copyright © 2005 University of...

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