Borrowing Bakhtin: sociolegal studies in a new key
Sociolegal studies in a new key
This book argues that studies of law and governance can be reinvigorated by drawing on a number of quite heterogeneous analytical tools that do not have a single provenance or a single political or normative aim but instead work well in combination. The most important single source of the tools presented here is the work of Mikhail Bakhtin, from whose work I borrow/adapt the notions of intertextuality, dialogism, and, last but not least, the ‘chronotope’. Borrowing these notions increases our ability to generate dynamic analyses – rather than static models – and, simultaneously, can help to overcome the disciplinary divide between the spatial analyses of legal geography and the insights into legal temporality developed by anthropologists and historiographers.
What Bakhtin’s ideas can do for sociolegal studies, and how I propose to supplement and modify what he wrote, will be explained in this introductory chapter. And since the chronotope is the Bakhtinian term that has the most relevance for sociolegal studies today, the final pages of this chapter will demonstrate through concrete analyses what adopting Bakhtin’s neologism (chronotope) can do. The first example of an analysis of legal processes that can be usefully regarded as a chronotope concerns the court – which I will show should not be understood merely as a space, but more specifically as a spatiotemporality. The second example is one to which I will return in subsequent chapters but here has its first appearance: the North American planning law category of ‘single-family detached’.
Chapter 2 will then turn to more explicitly sociolegal sources of ideas, tools, and examples, either positive or negative; it reads somewhat like a critical review of the literature(s), and may therefore be of more interest to scholars than to students who have not yet come across the works in question. The existing literatures – including Bakhtin’s work – do not, however, pay enough attention to the workings of jurisdiction, which even sociolegal scholars often reduce to geographic scale. Chapter 3 therefore explores the relationship between the tools developed in Chapters 1 and 2 to understand scale effects (temporal as well as spatial) and the complex and generally unnoticed machinery of jurisdiction.
Chapters 4–6 then sharpen the tools laid out in the first three chapters in a concrete manner. For any thinker who takes up a pragmatic rather than a systematic approach, the proof is always in the pudding. That is why I felt that instead of publishing a single, abstractly pitched article, I should take the time to write a book containing at least a few concrete analyses – which I refuse to call ‘case studies’, for reasons that will become clear in due course but that, for now, can be said to arise from the fact that from the genealogical perspective used here (Valverde 2010), existing governance mechanisms are never ‘examples’ or ‘case studies’ that shed light on the ‘higher’ truths supposedly crystallized in general theoretical concepts. On the contrary: ideas are means to the end of understanding our world as concretely as is possible given that, as Nietzsche argued, our minds can only partially capture constant change and local contingency. To refer to a very different, non-Nietzschean source of the notion of concrete analysis of a concrete situation, Marx once said that for Hegel apples and bananas were but mere examples of ‘the Fruit’; and so too, for many sociologists as well as for lawyers, life is but a collection of instances of concepts, a way of thinking that I argue is outdated and often pernicious. One reason why I have become fond of Bakhtin’s work is that in his work analytical terms (e.g. ‘chronotope’) are not precious conceptual jewels to be polished and displayed, but rather tools whose purpose is to help us understand how works of literature (and works of everyday embodied speech) are put together, and with what effects. Which brings us to the first substantive section of this chapter.
The status of Bakhtin’s terms
When someone suggests that a particular field of study, in this case sociolegal studies, adopt a new approach or even a new idea, there should be – though in fact there rarely is – a preliminary collective discussion about the status of that approach or idea. Concepts such as Ulrich Beck’s risk society (Beck 1992) or Giorgio Agamben’s ‘homo sacer’ (Agamben 1998), just to name two out of a multitude of currently fashionable terms, become popular as other, usually more empirically oriented scholars find them useful as labels to describe and/or explain a particular process under study. As applications of theoretical terms proliferate, scholars then begin to argue about whether concept X or concept Y is more appropriate to describe a specific phenomenon (e.g. ‘This is an instance of biopolitics, not of governmentality’). They – or rather we – also go on to argue about the correct interpretation, the correct content, of X and Y (e.g. ‘What Agamben really meant in this book was A, not B as claimed by Prof. Jones’).
The first of these common intellectual moves is classification; the second is ascertaining the ‘true’ or authentic content of concepts. Both of these moves are, of course, necessary and useful. Classification is essential to human thought, from a child’s first efforts to classify colours and animals to the most sophisticated science. And some scholarly discussion about what influential thinkers meant by a particular term is unavoidable. However, channelling the vast majority of theoretical debate into these two formats, as is routinely done out of mere habit, has the effect of precluding other types of inquiry. In particular, both of the formats for theoretical debate highlighted here (classification and definition) sweep under the rug a deeper issue that concerns neither the precise, static meaning of a particular idea nor the suitability of particular applications, but rather the status of the idea in question.
By referring to the status of an idea (and here I use ‘idea’ quite loosely, including everyday notions as well as scientific concepts that articulate with others to form a system), I mean to highlight the effects not so much of particular ideas but of a framework’s, or a literature’s, conceptual architecture. The architecture of each thinker’s particular set of interrelated concepts is generally shared with other theorists. While there is often much originality in the content of a particular thinker’s thought, there is little originality at the level of conceptual architectural styles. That is, new ideas are produced with regularity; but the probability that a single thinker can invent a whole new genre of theory is as remote as the probability that a particular writer has invented a new literary genre, or an individual architect a whole new built-form style.
The history of high theory is often written as a succession of autonomous heroic thinkers whose philosophies are self-contained, original systems generated by a kind of mental parthenogenesis. This way of thinking about theoretical production suppresses both the influence of predecessors and the effects of horizontal coexistence, collaboration, and agonistic conflict. Harold Bloom famously documented the constitutive effects of the ‘anxiety of influence’ on literary creators’ efforts to be original (Bloom 1975). Others, not least Bakhtin, have shown that both speech and writing are much more dialogically constituted than the ‘great man’ theory would allow, with this phenomenon not being limited to actual dialogue with one’s contemporaries (Holquist 1981). Much of the interactive constitution of one’s thinking is hidden from view; none of us can claim to really know where we first learned to speak or think in a particular way. Thus, practices such as scholarly citation and academic in-person arguments are but the tip of a very large iceberg; no matter how brilliant the speaker or writer, intellectual debts extend much farther than either the speaker or the audience can see. And of course, rejecting existing views is as constitutive as the act of adopting and validating.
Now, to be fair, one cannot completely rule out the possibility that even after the ‘anxiety of influence’ and other dialogical effects are taken into account, a few thinkers (Aristotle, Kant, Hegel, and Nietzsche come to mind) could be said to have invented a whole new intellectual architectural style, not just designed a new conceptual cathedral. But even if one admits that an author can perhaps create a new style, the vast majority of theoretical work, even if innovative as to content, is highly unlikely to be original as to architecture. And for present purposes, the two styles of conceptual architecture I want to contrast are: (1) world-scale theory and (2) pragmatically oriented assemblages of ideas (see Li 2007).
Examples of world-scale theory are plentiful in sociology and theoretical geography: Niklas Luhmann’s systems theory is one example from the recent past, with Althusser’s structuralist Marxist framework being an example from an earlier generation. World-scale theories are necessarily static, even if what they claim to explain is change (and since the emergence of evolutionism in nineteenth-century Europe, generating models that domesticate and explain change has been the central preoccupation of theorists in all fields). World-scale theories are what Bakhtin would call monological, being written from the traditional philosopher’s standpoint that Donna Haraway famously called ‘the God’s eye view’ (Haraway 1991: 183–201).
Foucault’s approach, by contrast, is a good example of a pragmatically oriented assemblage of ideas. The fact that Foucault never provided fixed definitions of terms such as ‘sovereignty’ and ‘discipline’, preferring instead to give examples and descriptions that were not wholly consistent since they came from different contexts, is an important clue about the status of his framework. For Foucault, who largely followed Nietzsche’s struggle-based philosophy (in which philosophy’s tools are themselves flexible and in constant struggle), the meaning of key terms depends to a large extent on which particular struggle or conflict Foucault is analyzing in a given text. Thus, the ‘sovereignty’ that appears as a relatively simplistic and static mode of power in Discipline and Punish (a work devoted to highlighting discipline) appears, by contrast, as highly mobile and innovative in the much earlier historical context of the emergence of state sovereignty out of older feudal political ideas (see Valverde 2010). Students are often dismayed by Foucault’s persistent refusal to provide static definitions for his key terms; but such definitions would have undermined the project of sharpening intellectual tools, not to render them static and precise but rather to allow us to better capture the way in which ideas, as weapons in both historical and more micro-level struggles, are constantly shifting in meaning and effectivity as they are used for different aims.1
It would be foolish to try to be definite about the status of Bakhtin’s terms, given the weighty political constraints that prevented him from publishing most of his work and which obscured the authorship of much of the work that was subsequently published – especially for someone who does not know either the Russian language or the Russian and classical European literature that gave Bakhtin most of his raw material. But from what is available in English and can be understood by someone who is not a literary scholar, it is apparent that his work – like that of most scholars in the humanities – does not seek to operationalize a world-scale theory. Instead, it seeks to experiment with terms and modes of analysis in an open-ended manner, exemplifying, in the text’s own logic and form, the very open-endedness of the ‘dialogism’ that is also the object of his analysis (cf. Todorov 1984).
In the rest of this chapter, I will show that explaining the key Bakhtinian terms developed in this chapter (intertextuality, dialogism, and chronotope) simultaneously demonstrates the usefulness of Bakhtin’s assemblage-like conceptual architecture for studies of law and governance ‘in action’. That is, whether or not legal and sociolegal scholars are persuaded that all or most of Bakhtin’s key terms are useful for our purposes, I hope to persuade my readers that work on law and governance would benefit from abandoning once and for all the formats of world-scale theory. To put it differently: it is the conceptual architecture of Bakhtin’s work on intertextuality, diaologism, and chronotopes that I argue is most important and useful, not so much the content of specific neologisms. Let us thus turn to the first Bakhtinian term that I am arguing we should adapt for our use, intertextuality.
Intertextuality
Bakhtin’s work was innovative in breaking with the structuralist, Saussurian interest in documenting the static structural relations that constitute not only the meaning of specific words but also the parameters of speech. Instead, Bakhtin suggested that language be regarded as always already social, as always already dialogical. Bakhtin’s relational approach, importantly, is not a sociological reductionism. He does privilege the utterance, the actual speech act, rather than the deep structures of language; but he was no sociolinguist. For Bakhtin, texts and speech acts are always in constitutive relationships with one another, and, simultaneously, with their producers and with their changing audiences. ‘Intertextuality’ is not Bakhtin’s own word (as I understand it from those who read Russian). But Bakhtin’s thoughts on how meaning is produced in the always situated and never completely determined relationships that texts and people have with one another were later synthesized under the hugely influential term ‘intertextuality’, apparently invented by Julia Kristeva in her commentary on Bakhtin (Todorov 1984: 60).
Intertextuality is an idea of great importance to legal studies, although this has not been recognized very widely. Bakhtin is not cited in Boa Santos’ influential article ‘Law: A Map of Misreading’ (Santos 1987), in which he developed the notion of ‘interlegality’; but, whatever the specific motives behind Santos’ neologism, the way he uses the term ‘interlegality’ is very much in keeping with Bakhtin’s approach. As will be explained in the next chapter, Santos uses ‘interlegality’ to encourage sociolegal scholars to move beyond structural views and instead try to understand legal power dynamically and relationally, paying close attention to the ways in which different legal orders, both formal and informal, and both past and present, constitute each other’s practical meaning. And as it happens, Bakhtin scholar Tzvetan Todorov remarks that law is mentioned by Bakhtin as a field that is particularly intertextual, more so than other fields of knowledge, for instance the natural sciences (Todorov 1984: 63). In the essay ‘Discourse in the Novel’, Bakhtin remarks that legal sites are excellent places in which to examine how one type of utterance (say, witness testimony) is subject to authentication and verification by another type of utterance (say, cross-examination, or judicial summing up). He then writes: ‘All this calls for further study. Juridical (and ethical) techniques have been developed for dealing with the discourse of another (after it has been uttered), for establishing authenticity, for determining degrees of veracity and so forth (for example, the process of notarizing and other such techniques) …’ (Bakhtin 1981: 350).
In his authoritative study, Todorov further remarks that the key Bakhtinian term that he translates as ‘translinguistics’ (the Russian word metalinguistika) denotes the socially rooted, pragmatic logic of language-in-use (Eco 1976) that Bakhtin pioneered, as against the rigid, static models of the structure of language in general that were in vogue at the time: ‘The term in current usage that would correspond to Bakhtin’s aim is probably pragmatics, and one could say without exaggeration that Bakhtin is the modern founder of this discipline’ (Todorov 1984: 24, emphasis in original). I would not agree that pragmatics is a discipline (Valverde 2003b); but I do agree that because Bakhtin’s thought consists mainly of tools that were chosen because they were useful for a particular purpose – tools that, to use Tania Li’s formulation, were pragmatically assembled (Li 2007) –, if one borrows one of Bakhtin’s terms, this move does not bring in its wake nearly as much theoretical baggage as would be the case if one tried to borrow single concepts from systematic thinkers such as Kant, Hegel, Marx, or Durkheim. If a concept has been developed as an addition to a pragmatically oriented assemblage of loosely related tools to help us understand, both dynamically and relationally, how meaning is produced and/or how power relations are put together, it will be easier to transport that concept into a different but also pragmatically oriented assemblage – the framework for sociolegal studies developed in this book, in our case – than would be the case if one were to take a notion that is firmly embedded in a grand, systematic theory. Sources of methodological and theoretical inspiration that are unrelated to one another but that share a general pragmatic conceptual architecture can be more easily combined than is the case with clearly defined concepts that are integral parts of a world-scale theoretical model.
Thus, the argument of this chapter is not that Bakhtin gives us the one true theory that tells us how meaning is constituted and how time and space coexist and interact in legal mechanisms. Indeed, one of the reasons for privileging Bakhtin is that Bakhtin is not interested in the kind of mega-scale theory that, if proved to be correct, eliminates and invalidates other theories. Specifically, in the term ‘chronotope’, which synthesizes spatial and temporal scales, Bakhtin offers not a theory of time and space or of what some call ‘spacetime’, but rather, at most, a theory of communication that can be adapted for a variety of uses, including for legal studies purposes. To reiterate: what Bakhtin offers is not a coherent and static system that competes with other systems (Marxism, autopoiesis, etc.) but rather a set of loosely connected concepts and insights that his lengthy analyses of literary works demonstrates can shed new light on how acts of communication take place. Bakhtin’s approach is hence suited to being adapted for new uses in a flexible manner for legal studies purposes, with ‘interlegality’ being one such adaptation.
Dialogism/heteroglossia
Bakhtin’s wide-ranging studies of ancient and modern literature led him to conclude that some genres, most notably the modern novel, not only reveal but also revel in the multiplicity of perspectives, narratives, and modes of speech that exist around us, a multiplicity that he calls ‘heteroglossia’. Heteroglossia is a general feature of the social world, but it is not reflected in all genres. Some genres suppress heteroglossia. For example, the epic (a grand-scale narrative, often interpellating a unified people) consists of a one-voice story told by a single, all-knowing narrator: ‘the epic world knows only a single and unified world view, obligatory and indubitably true for heroes as well as for authors and audiences’ (Bakhtin 1981: 35). By contrast, the novel not only portrays the world as heteroglossic but that it is actually based, as a genre, on the idea that there is no one single point of view. It does not merely depict multiplicity; it performs heteroglossia, as we would now say. A novelist gives his or her audience a whole cast of characters with distinct, individual voices, thus offering that audience a wide variety of perspectives and mini-languages.
In contrast to the more monotone style of genres such as the epic, novels include a wide variety of communication formats. These include: realistic dialogue; descriptions of landscapes and of people’s interior landscapes from either the narrator’s or other characters’ points of view; the inner dialogue of a character; authorial top-down judgements; letters among the characters; and so on. ‘Authorial speech, the speeches of narrators, inserted genres, the speech of characters are merely those fundamental compositional unities with whose help heteroglossia can enter the novel; each of them permits a multiplicity of social voices and a wide variety of their links and interrelationships (always more or less dialogized).’ Thus, ‘this movement of the theme through different languages and speech types, its dispersion into the rivulets and droplets of social heteroglossia, its dialogization – this is the basic distinguishing feature of the stylistics of the novel’ (Bakhtin 1981: 263). And elsewhere he comments that the prototypical novelist (with Dostoyevsky being Bakhtin’s favourite source of examples) ‘injects social heteroglossia into the body of the novel and leaves it to the orchestration of its meaning, frequently giving up altogether any pure and unmediated authorial discourse’ (Bakhtin, cited in Todorov 1984: 77).
Bakhtin is not saying that heteroglossia did not exist in, say, the Greece of Homer; he is merely stating that the novel, as a genre, excels at both portraying and encouraging social and linguistic diversity, that is, heteroglossia. (Incidentally, sometimes the term ‘polyphony’ is used in a more or less synonymous sense in the English translations. It is not clear, to a non-Russian speaker, whether there is in Bakhtin’s own writing any significant difference between the terms translated by the neo-Latin word polyphony and the one translated by the neo-Greek term heteroglossia; but for present purposes, the very general term ‘heteroglossia’ is sufficient.)
What about the related term ‘dialogism’? By that term, Bakhtin conveys the idea that dialogue is not a purely sociological phenomenon, as already indicated in the comments on intertextuality. Dialogism also includes the fact that as one talks or writes, one is responding, knowingly but mostly not, to the indefinitely large number of texts and speakers that have already used the same words, entities, both real-life and ghostly, with whom one is necessarily in dialogue (see Todorov 1984: x). The term ‘dialogism’ thus covers more than the terrain covered by social interactionism: it also includes the endless and unrecorded chains of interactions among previous utterances and texts within which any one speech act is but a mere link – that ubiquitous phenomenon that later came to be called ‘intertextuality’. Todorov, incidentally, argues that ‘dialogism’ is a somewhat narrower term that can be taken as an instance of the universal phenomenon of heteroglossia or intertextuality; but his interpretation may be a little too rigorous, a little too fixed, especially if one is reading Bakhtin for social science purposes rather than for literary analysis purposes (Todorov 1984: 60). Dialogism could just as easily be taken as the primordial condition of human communication: the biblical Adam did not exist in a heteroglossic universe (yet), but he certainly was constituted in and through a dialogical relationship with God. For what it is worth, the Bible shows heteroglossia as a later phenomenon, made visible at the time of the Tower of Babel.
Be that as it may, dialogism, like intertextuality, is hardly a modern invention: but the genre of the novel consciously breaks with older, somewhat more monologic literary styles, and brings the dialogism of speech to centre stage as well as making it aesthetically pleasing. In other words, instead of repressing multiplicity and conflict, as many literary genres and some types of speech do, the novel acknowledges and even promotes social and historical dialogism. The novelistic literary techniques associated with dialogism and heteroglossia imply that reading novels not only teaches readers about life but also allows them to imaginatively participate in social life; however, it does so without imposing a single way of being in the social world, since readers always have a range of characters and mini-languages with which they can identify.
Chronotope
The term ‘chronotope’ was apparently inspired by early twentieth-century relativity theory, which broke with the Newtonian habit of regarding time and space as separate and objectively real dimensions of the world in favour of a dynamic and indeed ‘relativistic’ model of ‘spacetime’ (Bakhtin 1981: 84). Now, considering questions of time and space together rather than separately is not what made Bakhtin’s ‘chronotope’ an original and radical idea. As we will see in Chapter 2, any number of anthropologists, geographers, and theorists of history readily admit that to isolate the temporal from the spatial dimensions of human existence is problematic. What makes Bakhtin’s chronotope an important innovation whose implications we have yet to understand is that, unlike legal geographers, anthropologists, and historians, who by and large either ignore one dimension or else carry out an analysis of temporality and then add an analysis of spatialization or vice versa, Bakhtin devised a notion – the chronotope – for the precise purpose of analyzing how the temporal and the spatial dimensions of life and governance affect each other.2 How exactly the term could be used for sociolegal studies requires translation, however, because Bakhtin’s main goal was to understand the specificity of literary genres, not sociolegal mechanisms or governance logics.
Bakhtin’s essay ‘Forms of Time and Chronotope in the Novel’ appears at first sight to aim at an interpretation of how the modern novel differs from earlier literary forms. However, it actually pursues a much loftier objective: namely, a new method for ascertaining what makes each genre what it is. In addressing the age-old literary theory question of genre specificity, Bakhtin chooses to focus precisely on space and time, but with these two dimensions of human life and human perception taken together and taken relationally, rather than separately. The ‘chronotope’, Bakhtin states, is ‘the intrinsic connectedness of spatial and temporal relationships that are artistically expressed in literature … Time, as it were, thickens, takes on flesh, becomes artistically visible; likewise, space becomes charged and responsive to the movements of time, plot, and history’ (Bakhtin 1981: 84, emphasis added).
‘Time’ and ‘space’ are thus not taken as separate dimensions to be considered one after the other, as is done in sociolegal case studies that provide historical context in one section and an analysis of spatial governance in another section. The specificity of a particular literary genre – a particular, collectively produced and culturally established way of telling stories and capturing human relations – lies precisely in the way in which, in each genre, time ‘thickens’ and becomes spatialized in distinct ways, while ‘space becomes charged and responsive to the movements of time, plot, and history’. The particular shape of this process is specific to each of the genres that are available within the same culture or across historical and geographical boundaries.
As one of his inspirations, Bakhtin references the ‘Transcendental Aesthetic’ section of the Critique of Pure Reason (Kant [1781] 1965), which is discussed in Chapter 2, in the paragraph following the one just cited. However, Bakhtin notes that he is transposing Kant’s transcendental aesthetic into a phenomenal key, since for him – Bakhtin – time and space are ‘forms of the most immediate reality’ (Bakhtin 1981: 85, n2) and not transcendental a priori conditions for the possibility of perception. The debt to Kant is not large, however, since Kant treated space and time separately, in keeping with the Newtonian approach then in vogue, rather than considering the two as mutually constitutive, as was done by Einstein and subsequent physicists.