The Life and Deaths of a Dispute: An Inquiry into Matters of Law

6 The Life and Deaths of a Dispute: An Inquiry into Matters of Law Niels van Dijk 1 Introduction Latour has recently put forward the diplomatic proposal to embrace the value of law in our common non-modern world, and to see whether alternative accounts can be provided based on an empirical turn to the details of legal practices. These accounts will need to differ from the overly dismissive ones given by critical social theorists and from the overly purified or glorified ones provided by legal theorists and defensive legal practitioners. For the purposes of this chapter we will take up the proposal to provide such an account. This account can then be used within the diplomatic negotiations about the nature of law, both as a check and an addition to the accounts provided by more traditional legal theorists, but also to the alternative account provided by Latour himself. In this context Latour’s own account of law extracted from his ethnographical study at the French Council of State will first be discussed. Through his empirical investigations he addresses the philosophical question about the essence of law. He proposes to extract from this institutional practice what he calls the ‘regime of enunciation’ of law. Law has a specific way of tying a whole range of heterogeneous phenomena together in a way that allows lawyers to speak legally. Latour calls this the ‘passage of law’ which is characterised by several semiotic elements: a clef de lecture, the transfer of value objects and the acts of re-attachment. Taken together these constitute the legal trajectory of enunciation. The conclusions that Latour draws about the nature of law, especially those related to the role of facts and legal totalities, will be compared with an alternative account of the value of law. This account will be based on empirical studies at a law firm and 160 Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 161 courts of first instance according to an approach that traces all the proceedings of the matters of dispute. Instead of starting a study of law at the end of the legal line in an instance of judgment in last appeal, such a conflict-based approach visualises all the things that make such a legal decision possible in the first place, by closely following everything that happens between the moment a particular conflict is first brought into contact with lawyers and the moment it is decided by the judges. This focus on the whole life of the legal dispute makes visible the whole antagonistic process in which lawyers render a dispute legally decidable that normally remains invisible in legal theory. The observation of these processes of law in action allows us to gradually and in piecemeal fashion construct an outline of the legal plane. These insights can, in turn, also be mobilised against existing legal theories and hold a promise for new ways of thinking about the nature of law. 2 Law as a regime of enunciation In his book The Making of Law Latour addresses the philosophical question about the essence of law through an ethnographic study of law in action at the French Conseil d’État, the highest court in France in administrative matters. He states that: Although there is no clear description for what I’m doing, the closest is that of an empirical (not an empiricist) philosopher. This book tries, through the device of ethnography, to capture a philosophical question [. . .] that would be inaccessible philosophically [. . .]: the essence of law. Knowing an essence does not lie in a definition but in a practice, a situated, material practice that ties a whole range of heterogeneous phenomena in a specific way. And it is on the search for this specific way that this book is entirely focused. (Latour 2010: 10) This empirical approach makes it possible to avoid philosophies that postulate a transcendence of the Law that would be incarnated in various legal institutional practices. Instead, Latour proposes to turn to the various details of these practices in order to extract from them what he calls the ‘regime of enunciation’ of law. This exercise of empirical philosophy is part of his larger philosophical project to provide an account of the modes of existence of our common world that has never been modern (Latour 2013). Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 162 Niels van Dijk Each of these modes has its own conditions of felicity according to which the success or failure of the actions and enunciations of its actors have to be understood. Law has a specific way of tying a whole range of heterogeneous phenomena together in a way that allows law to pass and lawyers to speak legally (dire le droit). Latour calls this the ‘passage of law’. This proposal to understand law as a ‘regime of enunciation’ takes its inspiration from semiotics.1 Several semiotic elements can be detected in the way Latour characterises law: a specific clef de lecture or interpretive key as a particular evocative mode of send-off into the register of legal intelligibility, the transfer of different value objects that provide an orientation and specificity to the legal passage, and the acts of assignation that reconnect a statement to its enunciator by tying a local case to law as a totality. When aligned together these constitute the legal trajectory of enunciation.2 (i) When the essence of law consists in its passage, we are led to ask where this movement leads and when it is successfully finished in order to arrive at an accurate characterisation. To answer such questions Latour introduces the notion of ‘value-objects’ borrowed from semiotics. These value-objects give direction to the legal passage and their successful transfer indicates the end of the legal trajectory. They can be seen as attractors towards and through which the passage of law takes place and which animate the work of the lawyers. Throughout his studies of the activities at the Council of State Latour extracted ten different value objects (Latour 2010: 194–5): 1. 2. 3. 4. 5. 6. 7. the authority of the lawyer at stake; the procedural progress of the claim; the logistic organisation of cases; the interestingness of the cases; the authoritative weight of texts; the control of the quality of the legal work; the hesitations that provide a room for manoeuvre before producing linkages; 8. the legal means (moyen) that allow for the performance of certain actions; 9. the internal coherence of law; 10. the external limits of law.3 Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 163 Interestingly, when compared to other modes of existence, the ways in which these value-objects are described does not always seem to make them primarily belong to the legal mode of existence. The logistic administration of cases (value-object 3), for instance, rather belongs to the mode of existence of organisation. In a certain sense the same seems to apply to the limits of law as an efficient enterprise that can effectively process cases and dispense the law in them (value-object 10). Furthermore, the control of the quality of the legal work through reflexive verification (valueobject 6) seems to be a subcategory of morality’s mode of verification of ‘the overall quality of all the links’ between means and ends (Latour 2013: 460). Similarly, the hesitations that provide room for manoeuvre before producing new linkages (value-object 7) also seem to be a subcategory of morality’s hesitation about the relation between means and ends more generally (Hache and Latour 2010).4 Moreover, the interestingness of the cases (value-object 4) seems to belong to the mode of attachment with its related concept of interessement. In fact, this argument could even be applied to the very semiotic notion of ‘value-object’ here deployed to characterise the very passage of law, by indicating what makes actors move and tick and functioning as an attractor for their actions. This notion itself seems to belong more generally to the mode of attachment as a ‘being of passionate interest’ that attaches people by a common drive.5 Where many of these value objects do thus not by themselves seem sufficiently legal, this characterisation should probably be rather sought in the specific way they are aligned in the legal trajectory of assignation of acts and actors. (ii) The most important aspect of law in the light of its contribution to the construction of a common world is that it constitutes such a regime of assignation.6 In daily life people continuously engage in all kinds of actions and utter all kinds of statements with regard to others. In the passage of things these acts and actors, these enunciators, enunciations and enunciatees, immediately and constantly become dispersed in all directions. Now, what is unique about law is the manner in which it preserves all these disengagements by keeping track of the traces that these actions have left behind and how, on this basis, it continuously reconnects people to their acts and enunciators to their enunciations. Without law these would have remained free-floating and unattributable. Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 164 Niels van Dijk People would not have been held to what they say and do and would not have been assigned to their acts and goods. In this sense law thus gives consistency to the processes of subject formation. Law is singular in the way that it makes enunciations assignable. It is able to do so through its specific arsenal of legal operations like qualification, imputation, authentication, linking, following signatures and through its meticulous set of stabilising procedures. These operations reconnect a statement to its enunciator by tying a local case to the law as a whole. This notion of legal totality constitutes an important aspect of law. Latour even states that: It seems that there is law when it is possible to mobilize a certain form of totality with regard to an individual case, irrespective of how tiny it may be – and this is precisely why we call some reasoning ‘legal’. (Latour 2010: 256–7) Law is thus a particular way of mobilising a totality within the individual. Specific legal operations like qualification make the case pass through a series of appropriate forms that allow for the mobilisation of a legal totality and make it possible to move away from the facts of the case.7 The importance of this point becomes further apparent from the ways in which both legal practitioners and legal theorists always evoke legal totalities in a circular fashion in definitions of what law is. These tautologies are not so much considered an embarrassment, but rather a necessary quality of law reflecting its original mode of self-explanation. Latour’s empirical approach to legal practice has the great advantage of providing an alternative account of law that demarcates it from other practices and makes us adjust our expectations of it. Our expectations should in this sense neither be too low in reducing law to something else, nor should they be too high in making law the guardian of some grand values that it cannot protect. Without understanding the proper constraints that legal practitioners face in their activities, law runs the risk of becoming mobilised too easily by other practices to be enlisted as an instrument in their service. Such instrumentality would only fuel the theoretical cynics who would all too happily jump in and reduce law to something external like economic markets (law and economics), governmental regulation (public administration), social constructions (sociology of law), cultural values (legal anthropology), political interest, class struggle or unconscious desires Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 165 (critical legal studies). As a response to such accusations in the public debate, the jurist is often tempted to defensively present his or her practice by resorting to the general vocabulary of big terms (often learnt in law school) about the role of law in society as a guardian of morality, justice, the state, sovereignty, politics or public order. In this context Latour refers to La Fontaine’s fable about the ass carrying relics and calls for law to be unburdened from these impossibly heavy loads, so that it may carry only itself and transport only its own values. Latour’s proposal drives a wedge between the value of law as a mode of existence and the accounts of law that have generally been provided by lawyers. This gap opens up a space for new alternative accounts of law that restitute its value, but in a way that differentiates law from the institutions that have come to betray it and from the (theoretical) domain in which it has become enclosed. Stated in this way, it thus becomes very important to take care that the nature of the legal value is sufficiently extracted from the relevant legal practices, so that the account of this value is not too greatly infected by the extravagancies of the particular institution in which it is studied. We can take up his challenge to enter the diplomatic negotiations about the value and nature of law by providing alternative accounts that restitute this value.8 Hereafter, we will attempt to provide the brief outlines of such an account based on two empirical studies at a law firm and courts of first instance.9 This account can then be mobilised both as a check on and an addition to the accounts provided by more traditional legal theorists, and also to the alternative account provided by Latour himself. 3 The life of the legal dispute The studies at the law firm and the court are based on an empirical conflict-based approach partly born out of lingering dissatisfaction with both the distant abstract treatment and theoretical fixations of legal theory and the social and critical studies of law that aim to calculate its economic and societal effects or unmask its hidden presumptions. Their explanations often get before, after, above or below the legal objects of investigation in order to explain them, but they never get to the middle of things – in medias res – where they are still vital events in the process of happening. It could thus be asked in what way these theories have Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 166 Niels van Dijk managed to approach legal matters at all. In order to obtain a closer understanding of law as an event, what is needed is a transversal turn to the median ground of legal practices that moves ‘across’ and traces the proceedings of the legal disputes at the heart of these practices.10 A conflict-based approach visualises all the things that make a legal decision possible in the first place by closely following all that happens between the first encounter of a particular conflict with lawyers at the law firm up until its judgment in court. This focus on the whole life of the legal dispute makes visible the antagonistic processes in which a dispute is rendered legally decidable through constructive actions of proof, disproof, qualification, disqualification, authorisation and unauthorisation, which normally remain invisible in legal theory. In this way we gradually obtain an outline of the proceedings of the dispute and the two little deaths that constitute the rhythm of its legal life. This will allow us to gradually and in piecemeal fashion construct a sketch of the legal plane. The orienting question for the investigations is here not so much ‘What is Law?’ – the classic question addressed by legal theory – but the question ‘How does something become legal?’ This shifts the focus from being to becoming, from legal objects (Rechtsobjekt) to things as antagonistic events. Here the fabric of the lawsuit grows from the middle, along tentative lines of proposition, towards its edges. Only on the basis of these lines of movement does it become possible to assign coordinates to the so-called ‘fixed points’ of legal objectivity and legal subjectivity of legal theory. In fact, it will enable us to see how the thing at stake is primarily a matter of dispute that can gradually become transformed into a legal object through the operations of legal practice. This chapter presents an account of law extracted from the results of such a conflict-based approach. (See Figure 6.1 for a diagram of the movements we will study in this chapter.) Textual limitations will necessarily force us to abstract, which will make us lose some of the fire proper to the conflict dynamics that is nevertheless crucial to this undertaking. Some practical flesh on these conceptual bones of this account is provided elsewhere.11 In order to get the contours of the type of issue at stake in these legal practices better into sight, a few contrasts with scientific practice and epistemology will also be drawn. These relate to the concepts of cause, effect, facts, evidence and the explication of conditions of success. Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute Summons: Claim 167 Judgment Conclusions Pleas Proceedings Reconstruction Extension Contraction Condensation Contraction Figure 6.1 Diagram of the life of the legal dispute. At first, the lawyers have to retrace and reassemble the dispute from the institutional network of memories and documents throughout which it has become dispersed, and contract it into the points of dispute that will determine its aboutness. When we normally come into contact with court cases when reading about them in the newspaper, we often get the impression of issues with a precise and determinate topical value. We are often provided with a clear and concise summary on what the conflict is about. The journalist might have taken his cues from the summons or judgment documents. The main claims of the conflict are here carefully listed and seem to precisely indicate to the reader what the conflict is about. We must realise, however, that this degree of conciseness already situates us in a certain phase in the life of the conflict in which this topic of the conflict has attained a certain degree of stabilisation. This view is, however, neither exemplary for the nature of the conflict dynamics, nor for the way in which the conflict was first brought into connection with legal practice. A closer investigation of such first encounters provides us with a very different view of things. When lawyers first come into contact with the conflict it is not at all necessarily clear what the conflict is even about. The conflict has a very scattered mode of being that is never simply given. Lawyers first and foremost encounter it in its chaotic extensions, diffused over different times, spaces and people. The determination of the very aboutness is the first challenge for the Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 168 Niels van Dijk lawyers for which they will have to engage in a process of reconstruction of the conflict through close interaction with those who have been involved in it. This process will require a careful retracing of all the fleeting memories and lost documents that have become distributed over a dispersed institutional network of long gone past situations, role-shifting actors and messy informational archives and databases. This process of reassemblage of the conflict becomes most visible in the creation of a case file. A digital and cardboard folder will come to enclose together the documents gathered in the course of reconstruction and all the ones that will be gathered later over the course of proceedings. These documents hereby become defined as belonging to the conflict. The file will itself become divided through several subfolders with titles like ‘Agreement’, ‘Bills’, ‘Meetings’, ‘Correspondence’, ‘Pieces’ and ‘Lawsuits’ that will further organise the body of the conflict. When sufficient dispersed traces have been reassembled, they can be contracted into a few central singular points that will constitute the centres from which the conflict will unfold. These contractions provide a certain orientation and belonging to the conflict and delimit the series of possible paths along which it might further proceed.12 This concept of the ‘points of dispute’ is very important. They characterise the singular legal pointillism at the core of the lawyer’s operations of dealing with conflicts and rendering them decidable. We will return to this later. The conflict is translated to the conceptual vocabulary of a certain legal regime through the typical legal act of qualification, which assigns the matter of dispute a belonging and orientation. This contraction of the many heterogeneous elements of the dispute finds its most intense form in the claims proposed in the summons, which is an official document that calls for a defendant to appear in court. This document provides a first formal introduction to several elements that will play a central role in the legal proceedings of the dispute.13 It introduces the primary parties to the conflict and prepares for the inscription of the central claims. These claims provide us with the matter of dispute.14 This is the central thing competed for that has gathered together all of the protagonists and the proceedings and transformations of which will have to be followed. This thing cannot at all be seen as an Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 169 external physical object (Rechtsobjekt) for a legal subject as postulated in classical legal theories. It is not necessarily even something material or objective, but first of all consists in the way that it matters to the parties on whom it has exerted its gathering force.15 In line with its ancient primordial meaning as res, a thing is before anything else the affair at stake that opposes and reunites two protagonists within the same relation, a res iuris. This matter of controversy finds itself posited in this common interiority: res in controversia posita. When this res is subsequently put in legal form (mise-en-form) by being translated according to the conceptual vocabulary of a specific legal regime, it can become a causa for initiating legal action. This act of translation is known as qualification and is very characteristic of law. The thing is hereby introduced into the legal arena and transformed into a matter of legal dispute. From there on it can be further articulated by the specific tools and procedures of law (lis).16 By assigning something a belonging in a certain legal regime, a qualification provides a first orientation to the dispute. The claim is the most contracted and simplified state of the conflict that brings together and implicates many heterogeneous elements in one single formula. Taking inspiration from Leibniz, we could call this contraction of the infinitely detailed and extensive developments of the dispute, in the claim a first little ‘death’ of the dispute.17 The short statement of the elements of the dispute in the claim could be deceiving to the extent that it might portray the activity of lawyers as a simple exercise in syllogistic logic in which the concrete complex case is subsumed as a species of a general stable legal form. This is not at all the case. Stabilities and simplicities are always local and temporary and quickly become fluid and complexified, drawn in by the chaotic dynamic movements of the dispute. This dynamic is characterised by the antagonistic dance of the opponents united in a common relation around the matter of dispute.18 The only constant here is disputation itself. Each qualification proposed by one party is bound to be met by a disqualification from the opposed party. Actually, each qualification can itself be seen as a disqualification of other legal categories either explicitly proposed or which would have been possible to propose.19 From here on, things complexify rapidly. The dispute becomes mediated by a host of things, procedures, Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 170 Niels van Dijk techniques and architectures that enable the organisation and circulation of the file in law firms and courts, and that enable the jurists to speak legally about the dispute (ius dictum). The lawsuit readily extends throughout the ‘conclusion’ documents, in which the matter of dispute becomes mutually affixed to or cut from pieces of evidence and conditions that will come to authorise its procession. After the first contraction and envelopment in the claims in the summons document, the dispute is fully sent off into its antagonistic dynamics. It will now enter a phase of rapid extension and development. In civil law cases this happens through the writing and exchange of ‘conclusion’ documents, which is the legal form in which the protagonists are obliged to organise their further proceedings.20 Claims can here be checked with counterclaims, qualifications with explicit disqualifications. These are in turn often followed by counter-qualifications that can transpose the cause at stake according to a different legal regime and thus open up whole new directions in which the dispute will simultaneously come to be unfolded. According to each qualification, alternative directions are taken and alternating things become relevant. In order to understand these extensions, one has to understand the connections that will be made to the dispute after its initial qualifications. We could introduce the term affixation to characterise this act of establishing connections between the dispute and all kinds of documents. To affix means not only to secure to something, attach, join one thing to another, but also to impute, attribute, ascribe, assign, and to annex or place at the end. This triple meaning nicely demonstrates the threefold nature of the connection itself (fastening attachments), its indexical location with regard to the documented body text of the dispute (annexes like sources and inventory of pieces) and what happens when these connections manage to hold (assignation).21 We will have to fine-tune this point, however, since attachments to different kinds of documents will lead the lawyers in very different directions and will lead the matter of dispute onto different trajectories of becoming. When the matter of dispute becomes stitched to or cut from pieces of evidence it can gradually be turned into a matter of fact. When it is aligned or disconnected from raised conditions of proceeding it can be gradually transformed into a legal object. Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 171 The search for certain documents called ‘pieces of evidence’ will guide the lawyers onto wild goose chases, making them jump into their cars in order to ransack the sites of friends and foes, conduct implicative teleconferences with informants, or conduct thorough detective investigations on the Internet. The reassemblage of the whole network of dispersed elements from many different places will have to be intensified. All traces must be followed, all relevant leads investigated. The collection of these pieces of evidence and their attachment to the dispute constitutes a continuous task for the lawyers. These documents are gathered in an ‘Inventory of Pieces’, a subfolder of the case file, where they are ordered according to categories and numbers. This inventory will mediate the connection between the inscribed quotes or bracketed document titles in the text of the conclusion and the documents in the ‘Pieces’ folders. Through these textual operations the lawyers establish legal reference to the facts that will prove their claim. When all this work has been performed the focus in the dispute can gradually be shifted from the actions of processual actors like lawyers (and registrars and judges) to the acts of the protagonists who have been drawn into the antagonistic dance of the dispute. The majority of these affixed pieces of evidence are documents that inscribe a variety of topics: from contacts to contracts, meetings to beatings and actions to reactions. Through these attachments the matter of dispute is made to proceed in and out of a variety of different sites, settings and situations, where it is brought in contact with a plethora of introduced actors, figures and things, and where it can be staged in ways that allow the parties involved to assume certain (op)positions with regard to it. Through the procedures of legal evidence these protagonistic elements are turned into the factual grounds for the matter of dispute, on which its procession is progressively brought to stand as a legal matter of fact, a res facta. The lawyers of the opponent will in turn try to cut as many of those established evidentiary stitches as they can and do some attaching of their own. Afterwards, severed links will be mended by new attachments and old links will be reinforced. The weft of links that makes up the lawsuit gradually unfolds through these constant adversarial processes of stitching, cutting and reinforcing of pieces of evidence. Here the epistemic notion of the fact as a discussion-closer really shows its legal roots.22 When we speak about what Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 172 Niels van Dijk the case is in fact, we have to become familiar with this very specific legal concept of proof. Just like with the notions of cause and effect, we have to forget all references to science when we want to understand the legal particularity of notions like ‘matter of fact’ and ‘proof’. Lawyers are bound to constraints for providing valid proof that would be very unfamiliar to scientists.23 Concepts like ‘burden of proof’, ‘evidential value’, ‘evidential force’ and ‘inner conviction’ are very characteristic for the legal mode of proof. Furthermore, a glance at the means of proof allowed in general civil proceedings shows them to be utterly foreign to science: documents, witnesses, experts, presumptions, oaths, confessions and invoices. Marking the contrast between scientific and legal proof even more is the fact that conclusions or factual confirmations by (scientific) experts have the smallest ‘evidential value’ of all means of proof. Article 962 of the Code of Procedural Law even determines that the judge is not obliged to follow such conclusions if they conflict with his convictions. On the other hand, certified documents which are signed by both parties provide full proof of what they inscribe (agreements). Such a document has ‘evidential force’ which, according to article 1319 of the Civil Code, the judge is obliged to follow even if it would be against his ‘conviction’. Is this not most curious from the viewpoint of science or philosophy of knowledge? In court the so-called ‘subjective’ convictions of a judge are valued higher than the ‘objective’ statements of fact by the expert! And documents with signatures cannot even be evaluated by the judge, but force him to align. The practices of law and science in this sense both have their own divergent ways of producing facts.24 The conditions according to which lawyers and judges either have to or cannot do certain things, characterise the legal mode of proceeding. Whereas the hunt for evidentiary documents leads the lawyers into their cars, onto the Internet or to their phones, the search for other kinds of documents that will constitute the legal ‘source material’ for the dispute will lead them to their bookcases crammed with codices, periodicals of jurisprudence and books and journals of doctrine.25 At stake here is the extraction and establishment of the Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 173 conditions and requirements that the matter of dispute will have to satisfy in order to legally proceed. Instead of an endeavour to let the factual evidence speak for one’s claims, the lawyer’s work is here oriented towards letting the law and its authorities successfully speak for these propositions.26 Through attaching the proposition to parts of text from jurisprudence, doctrine or statute law, the matter of dispute is made to pass through a variety of different legal settings. It will come to traverse some of the legal paths that have once become successfully constructed in past disputes in order to transport their requirements to the present conflict when the lawyers manage to establish sufficient ‘reasonances’ between them;27 it will be guided through the preparatory considerations and legal reference checks of the legislative processes leading up to the laws invoked in the dispute; or it will come to pass along the systematic pre-articulations of the webs of authorisation for the conditions that govern the proceedings of these kinds of dispute lines proposed in the interpretative writings of legal scholars.28 In this way certain carefully proportioned alliances of legal sources become aligned with the matters of the claim in order to authorise its successful proceeding. Once again the lawyers of the opponent will try to cut as many of those alignments and appended weights as they can and will themselves perform some aligning and balancing. In this way they try to unauthorise the claims of their adversary, isolate and invalidate their conditions and make the force of law exert itself in favour of their own propositions. Sometimes the mobilisation of a single new source can displace or even reverse a whole network of authorisations. Certain proposed stringent conditions can, for instance, suddenly find themselves less firmly supported, where the authority of the law is redirected and aligned with other proposed conditions that are less exigent. These processes of (un)authorisation can also relate to conditions of proof. Apart from disputing the attachment of certain pieces of evidence attached to the dispute (the cut of disproof), it is also possible to dispute the evidentiary obligations that govern the conflict and the scope of proof (the cut of unauthorisation), by trying to prescribe what one is required to prove at all and to what extent. The conditions that govern the scope of evidence required in order to prove one’s legal propositions are thus themselves part of the legal dispute. This also shows that, although facts and law become differentiated by two directions of attachment, they Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 174 Niels van Dijk constantly lead to each other and modify each other, thus opening new directions and orientations for the unfolding of the dispute. The fact that the work of making explicit the conditions of felicity is such an important, integral part of the practical proceedings is definitely a curiosity of legal practice. In scientific practice, for instance, these debates arise most clearly in those situations in which scientists are engaged in controversies and conflict. According to Kuhn such conflicts arise most in periods of crisis and revolutionary science, i.e. periods in which the ‘normal’ practice of scientific activity has broken down (Kuhn 1996). In law these kinds of situations are at the heart of its ongoing activity because law is a practice that deals with problems, conflicts and breakdowns. After this phase of extension, the dispute becomes gradually condensed through the pleas in court. These provide the judges certain piloting directions for passing through the assembled corpus of the case. In the plea the order of things is tied together differently, as compared to the conclusions. In the conclusions the complex movements of the dispute were developed at great length and detail. When the lawyer’s work has been thorough, these conclusions will often have become ‘corpulent’ documents. In the plea this will have to be presented in such a way that the problem, the main points of conflict and the solutions will become clear and evident to the judges. There is a condensation of the dispute at work here. Years of preparations are contracted into the lines of speech of the oral pleas in ways that have to be convincing. We could say that a plea has a threefold structure of satisfaction: satis-facere, satis-placere, satis-plicare. A lawyer has to do enough (satis) work of unfolding and explicating the case, in a way that sufficiently complies with the conditions and convincingly pleases the judges, in order for them to align with the qualification proposed. In order to please the judges, the lawyers will have to speak satisfactorily. This is not an easy achievement and there can be many obstacles. In court the flow of a plea can become interrupted by the adverse party or the judges, making the lawyer ‘lose her point’. It is actually a part of the lawyer’s work to try to punctuate the Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 175 flow of words of one’s opponent by interruptions and reversals. All these factors complicate speech and can make it stutter and stumble. Sufficient preparatory work thus needs to be done for stabilising the plea. The lawyers employ several techniques for this, like mnemonic devices to ‘find things back’ and optic devices to ‘make things visible’. First, oral speech is supported by a number of paper items that serve to index, trace and retrieve the threads of argumentation. When the lawyer loses the aim of her story she can fall back on a paper sheet (sometimes called a ‘trial brief’) with the main ‘bullet points’ to retrieve the ammunition for her plea. Second, oral speech is substituted by ‘speaking’ images that serve to visualise the matters of dispute. Sometimes these images tell the story of change more satisfactorily than the lawyers can. The question here is not merely about how to do things with words, it is rather about how things enable the lawyers to speak legally and how they allow them to say things without words. We have seen that lawyers have to be good detectives. The narratives that they have constructed must be grounded by gathering many pieces of evidence. These attachments must have been made to resist the cutting operations of the adverse party. The corpus of the case can become quite complicated through all these stitched attachments, cuts, reattachments and reinforcements, especially when it concerns detailed technical issues. Being a good detective and conclusively writing an authoritative and elaborate body of text at the law firm is one thing, but it offers no necessary guarantees for further proceeding in court. The judges have to be satisfactorily guided through the accumulated specificities and technicalities of the dispute.29 The lawyer is always faced with the risk of losing the judges along the way. In court the lawyer has to be a good pilot and ensure that the boat that sails the stream of events safely arrives at its proposed destination with all its members still on board. It is to these judges that we will now turn. Eventually the dispute will find a second differential contraction in the operatives of judgment according to a linear focus along the strong points that will come to constitute its grounds. To convince or to be convinced, that is the question by which much of the legal play oscillates.30 The requirements of the advocates to convince and the requirements of the judge to be Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 176 Niels van Dijk convinced diverge, however. Whereas advocates often get to work on a case for extensive periods of time, the judges cannot indulge in such ‘luxury’ since the time they have for dealing with each case is limited by their workload. When advocates have proceeded too rashly in extensive constructions of their case through their conclusions and pieces, it is up to the judge to slow things down. Judgment will have to again contract the dispute. In order to perform such a contraction the judge has to select points of the dispute that will permit him or her to do so. These points are of two kinds. On the one hand, they could reflect a gap enveloped or concealed in some other extension of the dispute. These are ‘weak points’ that cannot bear the weight of a legal argument or might even destabilise and implode the whole legal proposition (the gap as a black hole). The judge deploys several rhetorical techniques to make the advocate get ‘to the point’. On the other hand the point at stake could also be a ‘strong point’ that includes an intensity that could support legal arguments and thus serve as a sufficient basis for judging the case.31 This happens when the lawyers have, as one judge states, ‘put the right stepping stones for legal argument in the right place’. This is what enables the judge to go back to his office and do his job as a ‘technician’ in the art of judgment. The advocate has to select and align the intensive points of the dispute and highlight them as a solid path to arrive at judgment and not digress and drown in irrelevant specificities and technicalities that have accumulated in the dispute. Once this is done well, the whole exercise of reaching an opinion boils down to the judge having to assume a point of view on the dispute, or rather an alignment of points of view, cleared from within the dispute dynamics. This happens when reasoning strikes a line that selects and connects points of intensity from the dispute dynamics and incorporates these into the connecting trajectory of a ‘linear focus’ from which the cases of the advocates can be arranged into an opinion (the act of judgment).32 Once this linear focus is assumed, the selected points can be projected as the reasons that sufficiently ground the judgment (the act of reasoning). These grounds are thus unfolded and raised from within the interiority of the dispute. Such a line of reasoning is like a strike of lightning that bifurcates downwards in a tentative series of points of embranchment until one of them arrives at the ground and the charge reinforces itself as the running line of those bifurcations that constituted this passage. Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 177 This highlights the importance of two terms in the composition of judgment: that of the ‘point’ and that of the ‘ground’. The act of judgment can be described as the pointillist art of selective contractions of intensive points of dispute in a series of operative sentences (linear focus).33 In this sense the unit of decision-making is not so much the dispute itself, but rather the ‘point of dispute’. Through this legal pointillism with regard to disputes (points of dispute, weak points, strong points, requisite procession points, bullet points, points of view, appointments) jurists continuously endeavour to contract zones in the extensive dispute dynamics into discrete points.34 We have seen how lawyers performed this contraction through the reconstruction of the conflict and its legal qualification in the claims. Judgment can achieve such a contraction through its own modus operandi that consists of aligning a succession of operators, operations and operatives. First the judgment becomes organised according to a series of operators (e.g. scroll number, repertory number, etc.) that both link the judgment document to the case file or actually turn it into a file, and install it within the order of administration as the grasping point for further acts of organisation. The dispute subsequently becomes further compacted through a series of operations preceding judgment, which transform the dynamics of the proceedings of the dispute into vectors of consideration, admission and conviction that will impinge on the minds of the judges during the processes of deliberation.35 Many of these operations will have to pass certain ‘requisite procession points’ that condition the felicity of the act of judgment itself (e.g. the contents that the verdict has to inscribe for not being declared null or void itself).36 Finally, the dispute becomes contracted by a series of operatives that enact the judgment through a series of performative acts that carry a preceding cause or causa into its legal effects. The latter are enlisted in ‘the operative part’ of judgment that inscribes the ‘dictum’, the thing said legally. The court enacts this judgment through pronouncing a range of utterances, each of which performs a specific operation. The nature of these performative operations is indicated by the verb by which the utterance is initiated like ‘declares’, ‘sentences’, ‘orders’, ‘grants’, ‘denies’, ‘prohibits’, etc.37 This ‘carrying out’ or ‘carrying into effect’ is the etymological meaning of the verb ‘to perform’. The act of judicial qualification according to a legal form brings about legal Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 178 Niels van Dijk effects. There is a very specific notion of cause at stake here. The word ‘effect’ should not be misunderstood by giving an interpretation befitting a scientistic context in which it can objectively be reduced to, and thus explained by, a physical cause. Instead of having the notion of cause hijacked by physicalists and reduced to material or efficient causes,38 we should pay attention to a mode of cause that belongs to legal practices. Can these legal effects be explained by referring back to a cause? Yes, certainly, but they refer to a very specific cause that is quite at home in a legal context.39 We could even speak of a very specific kind of formal cause that is characteristic for law and is closely related to the notion of performativeness. It is per forma that a matter of dispute is carried into its legal effects. Cause and form are thus closely related in their own way within legal practice. The forms here point both to the forms of action within a practice, or what Austin calls ‘conventional procedure’,40 of affixing the documentation and filling out the constitutive forms, rather than some explanation by some form, idea or intention in the mind of the parties or the judge, or some isolated ideal template for things that would constitute the scene.41 After the contraction in the advocate’s claims in the summons, the dispute finds its second most intense contraction in these operatives of judgment, selectively bringing together many of its heterogeneous elements in these few singular formulas. These two ‘little deaths’ of the dispute formally compose the rhythmical interval of the life of the conflict as a matter of legal dispute. The life of the matter of dispute and the little deaths of the dispute in the operatives of judgment (and the claim in the summons) that formally enclose its legal life have to be distinguished from the grounds of judgment of the dispute.42 Grounds do sometimes rise to the surface of things; they make their ingression in a dispute from a below within. The vertically raised grounds ( | ) are different from the horizontal extensions of the dispute ( - ) and the diagonal acts of grounding ( / ) and judgment with its striking linear focus ( \ ). A ground only makes its ingression in the dynamics of a dispute when it is raised within the practice of that dispute through an act of grounding.43 This focus on grounding as an act or operation is important. Heidegger pointed Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 179 out that ‘in all grounding and getting to the bottom we already walk on the path to a ground’ (Heidegger 1997: 3).44 This ‘path to a ground’ highlights not so much the ground, the grounded or the grounder, but the act of grounding which has the character of being underway, of proceeding, of seeking to arrive. These acts of grounding are indeed closely related to a judgment in which the ground will bring something (the matter of judgment) to a stand (zum-stehen brengen) as an object (Gegenstand) when it will have provided a sufficient (vollstandig) account of it.45 In a legal dispute this fixation of a position is quite an achievement. In the legal geometries of disputes no such position is ever pre-given, but has to be painstakingly established as a post-given beyond dispute in the dynamics of the legal fabric.46 They have to be extracted from the extensions of the conflictual dynamics that constantly threaten to destabilise and engulf them. This work of extraction requires prudential acts of stitching pieces of evidence and legal documents to the matter of dispute in a way that establishes a foothold on its incessant proceeding and ground a position in relation to it. Through the grounding judgment (arrêt) the proceeding matter of dispute is brought to a (temporary) halt (arrêter), transformed into a matter of fact and the legal object of the relevant legal regime. 4 Modern facts, legal totalities and application The results of the conflict-based approach presented in this chapter have led to an outline of the lives and deaths of disputes at the heart of legal practices. It has put into focus the whole process by which a matter of dispute proceeds, from the moment it becomes reconstructed and contracted in a claim, to the moment it arrives at judgment where it becomes contracted in its operatives. In this sense it makes visible all the steps that precede judgment and make it possible in the first place. A focus on the proceeding of the matter of dispute also shows all the processes in which the proceeding of the matter of dispute is gradually grounded and transformed into a matter of fact and a legal object, and how, as a cause of action, it undergoes a series of performations by which it is gradually carried into its legal effects.47 Such an approach that is crucially related to the event of the dispute, casts jurisprudence into the role of the legal philosophy that deals with singularities.48 In this sense legal practices constitute a paradigmatic site Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 180 Niels van Dijk for the study of things, causes and object-formation as matters of dispute that gather protagonists in a dance of antagonism,49 but also for the study of speech act theory in articulating what is involved in processes of performation and what allows the flows of illocutionary force. With this account we can return to the discussion about the nature of law and enter into the diplomatic negotiations on how to restitute the value of law and which elements are important for this. First, the account can be mobilised as a check on the existing accounts of this value provided by legal theories and thus holds a promise for new ways of thinking about the nature of law.50 For this exercise to succeed, however, it is necessary for this value to be sufficiently extracted from the different forms in which it has become institutionally rendered. In order to check the robustness of this extraction, we can start by drawing out some comparisons and contrasts with Latour’s account of law. Latour has chosen the Council of State as the site for studying law in its pure form in the speech acts of the councillors. When we situate these events within the broader biography of the life of a legal dispute, we here find ourselves at the end of the legal line at the judgment in last appeal. At this point in time a lot has already happened to the matter of dispute, many events have befallen its destiny. The matter of dispute will have undergone several trials and tribulations through which it has become greatly ‘canvassed’, as Llewellyn so elegantly expressed it, through the pointillist ‘screen’ of legal practice.51 At this stage it will in fact be in its third life-time, not yet a cat but coming quite close. In order to understand these previous processes, we will need to envisage all that makes legal judgment possible in the first place by closely following everything that happens between the moment a particular conflict is first brought into contact with lawyers and the moment it is decided by the judges. This focus on the whole life of the legal dispute also makes visible the whole antagonistic process in which lawyers render a dispute legally decidable through their constructive actions of proof, disproof, qualification, disqualification, authorisation and unauthorisation that normally remain invisible in legal theory.52 The observation of these processes of law in action allows us to gradually and in piecemeal fashion construct an outline of the legal plane of grounding. Several elements and concepts can be identified as important for an account of law: Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute • • • • • • • • • • 181 matter of dispute (thing, antagonism) qualification (claim, translation, legal concept) performation (cause of action, legal effect) proceedings (process and procedure) evidence (facts, conviction) conditions (authorisation, legal sources) ap-plication (affixation, extensive development, mutual folding) grounding (reasoning, bringing-to-a-halt, fixing position) pointillism (contraction, points of dispute, appointment) judgment (ius dicem) (linear focus, operativity).53 With this account we can open the negotiations. From this outline, some comments can be made about the role of facts and legal totalities in the characterisation of law. We could say that when the bibliographical narrative of a legal dispute has sufficiently proceeded, at a certain moment in time it might become possible for legal practice to get rid of the facts in order to pass to the composition of a legal totality. This is indeed what we could observe at the highest courts of appeal, which are procedurally required (this is a requisite procession point) to abstain from judging the facts of a certain dispute since these have been dealt with sufficiently by courts of first and second instance. Instead, they are charged with the task to only deal with the legal questions that this dispute may give rise to, which will pose to them the challenge of constructing legal coherences. These are requirements specific to a court of last appeal that has to perform a cassation, which, in line with its etymological meaning, makes some thing void, emptying it of its factual content. But is our empirical account of law to depend on such rules of procedure that prescribe in advance where pure law is to be found? Or do we need to engage head-first the intense chaos that announces itself in each dispute, in order to study the processes by which purifications might be achieved in practice by all kinds of laborious operations, independent of the pre-scription of the site of action? In order to understand law we will have to look at the whole dispute trajectory, from its ‘first instance’ when it enters the offices of the law firm until its ‘last appeal’ at the court of cassation. When one thus turns to the work of lawyers at the law firm or of judges in lower courts, we get a quite different view on things. These previous proceedings of the matter of dispute are instead characterised not so much by getting rid of the facts, Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 182 Niels van Dijk but rather by fully engaging with them according to the typical mode of legal evidence. To the contrary, there seems to be very little elaboration and attachment of the dispute to legal totalities here.54 In order to reach a ius-dicim in a dispute, a ‘speaking legally’ about some thing, it is not necessary to mobilise the whole of the law. We cannot say that there is law only when there is a construction of legal totalities. The construction and connection of a legal totality is rather a by-product of the extension of disputes, especially when they have come as far as the Council of State. It is a gradually accumulated quality dependent upon and proportional to the extent of proceeding of the matter of dispute. What characterises these processes of proceeding themselves is rather a concern for attaching the two fabrics of evidence and conditions well to each other in terms of the concrete dispute at stake. We can single out this operation by reinvigorating the concept of ap-plication: Etymologically ‘to apply’ means to ‘attach to’ or to ‘fold to’ in order to bring something in contact with something else. Advocates bring heterogeneous elements together when they connect an extralegal thing to law in order to initiate its proceeding as a matter of legal dispute. During the legal process two different fabrics – the factual patchwork and the legal weft – have to be constantly folded to each other in such a way that they join together and something can proceed. ‘Application’ does not have the hierarchical or vertical connotation of ‘subsumption’ in which a factual matter is transformed by being syllogistically placed under a form that itself remains unaltered. Instead the term application keeps open the possibilities for the mutual change of both case and rule that might result from a connection between the two. What the case is and what a rule requires is never something given. In a lawsuit both have to be constantly worked out by being connected to each other in a way that is legally tailored to the matter in dispute.55 In the previous section we have seen how a twofold authorisation is operative in the practices of attaching documents to the dispute in a way that grounds the matter of dispute both in law and in facts. These affixations gradually transform the matter of dispute into a matter of fact and into a matter of law or legal object of a certain legal regime.56 We saw how these factual authorisations were mediated by a series of special evidentiary procedures by Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 183 which the facts come to decide someone’s claim and by which the practitioner becomes empowered to speak in the name of what happened. We here arrive at a notion of the fact – the res facta – that is more properly legal and that has itself even influenced the concept of ‘the modern fact’. It has indeed been argued that this modernist notion, with all its epistemological assumptions and its status as discussion-closer, historically originated in the legal practices of courts with its developing standards of eyewitnessing and testimony. This moved the figures of the witness (and the juror) into the position of the ‘judge of the facts’. Afterwards this notion migrated to other practices like the sciences or empiricist philosophy in order to constitute a much broader modern culture of fact.57 In its primordial sense this res facta or matter of fact was not yet ‘that which is proven’, but referred to the issue of proving an act itself. As such, it was closely tied up with the legal necessity of reaching reasonable closure in a relatively short period of time and to the adversarial characteristics of the trial in which all kinds of procedures for testing the credibility of witness evidence were developed (like cross-examination, the crime of perjury for false testimony, subpoena for appearing). In this sense it is curious to see that Latour draws the conclusion that ‘contrary to religion, technology, fiction, and politics, law has suffered much less from the ravages from the modernist invention of matters of fact. In a way, law has never been modern, always insisting on its original type of truth condition and its completely specific key’ (Latour 2008: 9), considering that law itself contributed to this invention of the matter of fact through the procedures and figures set in its own specific key of legal evidence. Lastly, in the project of restituting the value of law, one hypothesis remains to be explored. It relates to the installation of law as a mode of existence that inhabits the ecology of common (nonmodern) values and to some conclusions drawn with regard to its tautological nature. Latour observes how law is singular in the intensity of care for itself: law constantly engages with itself, checks its own quality and continuously explicates the proper conditions for itself. He further observes how law is always encountered in its entirety and that this mobilisation of legal totalities is crucial for the essence of law and accounts for its tautological nature. We need to proceed carefully here and explore whether there is a different possible starting point of analysis that would break out of this circle, or rather never be set in motion in the Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 184 Niels van Dijk first place, and thus save us from all this agonising head spinning. The exploration of this possibility requires a care for naming. As the great Confucian philosopher Xunzi remarked, if the goal is to achieve a sustainable harmony in our collective existence, we better start by using the proper names. This lesson both pertains to the more generic logic of the exercise of naming the modes of existence and to the value in our case specifically. So what about calling this value ‘law’? One problem with this starting point is that this coinage seems what sets the whole tautological circle in motion in the first place. It will then be ‘law’ which cares for itself and stretches its reflexive muscles. There is, however, another possible designation strategy, which Latour deploys in the case of the mode of existence that deals with knowledge and information. Latour did not choose to name this mode ‘science’ but called it ‘reference’.58 The term ‘reference’, however, applies more specifically to the success of the epistemic act, to the conditions of felicity so to say (when the words in a scientific article have managed to successfully refer to the ‘thing’ that was at stake through the established chains of links that manage to hold, thus securing access to remote entities). When we would take the same approach in our case, we would not call our value ‘law’ but assignation.59 ‘Okay okay,’ one might object at this point. ‘You are merely playing language games. Why is all this play with words so important?’ The answer to this is that when our value is assignation instead of law, we might have suddenly lost the dimension of tautology and self-reference that was claimed to be essential for it (since this ‘self’ and this ‘it’ have changed meaning). In turn, this would allow us to understand ‘law’ as the name for one kind of attachment, next to attachments called ‘facts’, performed to a proceeding matter of dispute in order to make it assignable. The success of these attachments will be determined by whether an enunciation will be tied back to ‘its’ enunciator, the act back to ‘its’ actor.60 This designation might thus change the theoretical stakes and tasks in accounting for this modal value and could give legal philosophy itself a whole new assignment . . . Notes 1. Especially the work of Greimas – see for instance Greimas (1976). Latour, however, uses a notion of enunciation that is broader than is current in semiotics, since it extends to action. Latour defines an Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 2. 3. 4. 5. 6. 7. 8. 185 enunciation as ‘the whole of the acts of mediation whose presence is necessary for the meaning’ (Latour 1999a). This discussion will here necessarily be brief. The notion of a clef de lecture as a particular evocative mode of send-off into the register of legal intelligibility will not be further treated. For a more extensive discussion and some points of critique of the semiotic aspects of the legal regime of enunciation, see De Vries and Van Dijk (2013). In his later writings Latour reiterates certain of these value objects in order to characterise the nature of the legal mode of existence while passing over others. Above all he reinstates the crucial singularity of the notion of ‘means’ in establishing a continuity of passage by establishing stable connections between the heterogeneity of elements implied in a case and the notion of ‘hesitations’ that determines the quality of judgment and sets law apart from organisational management. He also mentions the importance of ‘procedures’ for re-attaching acts to their actors, the circulation of ‘dossiers’ constituting the material manifestation of legal passage and ‘coherence’ for stabilising legal totalities (Latour 2013). Perhaps these two points bear relation to the translation of the French term moyen as ‘means’ for the eighth value-object. Whereas this translation has the advantage of indicating both a middle and a ‘means of transportation’ (of legal force), it has the disadvantage of causing confusion with other modes due the way the term ‘means’ is used in discussion on technology and morality. For this purpose it might be better to translate the term as ‘ground’ or ‘reason’ in the sense that will become clear later in this section. Grounds are the true legal affordances, they provide the ‘cause of action’, the thing that makes specific legal actions possible and, in concordance with its etymology, lets it proceed onward. In Latour’s previous writings he even called law the regime of enunciation of Attachment (Latour 2004: 37). In fact the way law is characterised in the pivot table of the modes of existence in terms of its hiatus, trajectory, conditions of felicity, entities and alteration is practically exclusively in the terms of this notion of assignation (Latour 2013: 488–9). ‘Facts are things that one tries to get rid of as quickly as possible, in order to move on to other things, namely the particular point of law that is of interest, and to which the judges will be entirely devoted from that point on’ (Latour 2010: 215). Latour stipulates several criteria that these alternative accounts have to fulfil. They have to distinguish between: (1) the value at stake; (2) Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 186 9. 10. 11. 12. 13. 14. Niels van Dijk the theories offered to account for this value; and (3) an alternative account of the value (Latour 2013: 480). More concretely, these were all cases of intellectual rights like copyright, patent and trademark law before two Belgian courts of first instance. As such this approach has certain affinities with the practice turn in contemporary theory (Schatzki et al. 2001), the concept of an ecology of practices (Stengers 2005) and the tracing of circulating objects (Latour 1999b). For a more detailed account of this conflictbased approach, see Van Dijk (2011). Van Dijk (2013). Here, more justice is done to the ‘matters of law’ mentioned in the subtitle to this chapter by a more thorough focus on the materialities of legal proceedings. These include the things that make one speak legally and the (monadic) regimes of legal visibility. We can take inspiration here from Gilles Deleuze’s thinking on the ‘being of the problematic’. He states that ‘problems must be considered not as “givens” (data) but as ideal “objecticities” possessing their own sufficiency and implying acts of constitution and investment in their respective symbolic fields.’ Their ‘solution necessarily follows from the complete conditions under which the problem is determined as a problem, from the means and the terms which are employed in order to pose it’ (Deleuze 2004: 198), which in our case relate to legal conditions, means and terms. We can furthermore compare the contracted points of dispute to what Deleuze calls ‘centers of envelopment’ or ‘centers of implication’. He states: ‘Every contraction is a presumption, a claim – that is to say, it gives rise to an expectation or a right in regard to that which it contracts, and comes undone once its object escapes’ (ibid.: 100). The Dutch word here is geding which is commonly translated as ‘proceedings’. The word geding is a noun relating to a conflict or dispute. The word has the grammatical form of the perfect simple of the verb dingen which means ‘to compete’. The word ding as a root noun, however, means ‘thing’. The word geding thus could be said to have the composite meaning of the competition for a thing. In a legal context geding refers both to ‘the thing competed for’ and ‘the process of competing’. In the first case we will speak of the ‘matter of dispute’, in the second case we will use the translation ‘proceedings’. In Heideggerian parlance the term geding could even be translated as the ‘thinging’. The term matter of dispute is a translation for the Dutch term voorwerp van geschil. Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 187 15. Heidegger famously stated that the ancient term ‘thing’ or ‘Ding’ means ‘a gathering for the trial of a matter [Angelegenheit] under discussion, a contested case [Streitfalles]’ (Heidegger 2004: 167). In ancient Germany people gathered at sites in the natural landscape with special features in order to administer the law and to settle disputes. These ‘thing sites’ – the Thingstätten – later developed into natural shelters, half-open structures, multi-purpose buildings and finally into the kinds of courthouses of our times (Dölemeyer 2005). 16. On the crucial role of the triad res–lis–causa in ancient Roman law, see Thomas (1978, 1980). 17. Leibniz describes death as ‘envelopment and shrinking’ which he opposes to generation as ‘development and growth’ (Leibniz 1714: §73). 18. We could think here also of Foucault’s appropriation of the concept of ‘agonism’ as a contest which gathers and locks the two opponents in a dance of contest in which they reciprocally incite each other and act upon the other’s actions, and invent new moves and strategies as a function of the actions of the other (Foucault 1982). 19. Cayla (1993). 20. The term ‘conclusion’ is a literal translation of the Dutch term conclusie. In British law the conclusion of the applicant is called the ‘statement of claim’ and the conclusion of the defendant is called a ‘reply in defence’. In this chapter we will use the terms ‘conclusion’ or sometimes ‘conclusion of claim’ and ‘conclusion of reply’. 21. It must be added, however, that the term ‘affix’ is here not used in its technical legal sense as a means of appropriation of something through its attachment to reality. 22. In fact, all kinds of legal features were involved in the historical development of the epistemological conception of the modern fact itself (Poovey 1998; Shapiro 2003). 23. For an extensive discussion of this difference see Murphy (2003). He, for instance, states that: The existence of the law of evidence is one of a number of factors which distinguish a judicial trial from other forms of inquiry into past events. All these factors go some way in explaining (though not necessarily justifying) the idiosyncratic treatment of evidence by advocates. But by far the most significant is the fact that trials are conducted by a judge using exclusionary legal rules of evidence, the effect of which is to keep from the fact-finders much material which is plainly relevant and which any rational Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 188 Niels van Dijk investigator would wish to take into account in his or her reconstruction of the facts. (Murphy 2003: 2) 24. These two modes of proceeding, however, collide in the case of expert evidence in court. Law has different models of validity of expertise and proper legal techniques and procedures that enable the jurists to dispute expert reports. The role of the scientific or technological expert within these legal forums is often hybrid. Jasanoff has stated in this context that the ‘borderline between value decisions that should be the prerogative of judges and factual matters that are properly reserved for experts is itself a construct, negotiated anew from expert to expert and from case to case’ (Jasanoff 1997: 48). 25. For a description of the relation between law and its sources, see Gutwirth (2015). 26. This is the etymological sense of con-dicere, a speaking together, in this case together with the legal sources. 27. See van Dijk (2013) for this typical jurisprudential operation of establishing reasonances between different disputes (as opposed to the presumption of case similarity in the databases of case-law). 28. This concept of articulated ‘lay-out’ is in fact a more literally translated rendering of the German term for interpretation, namely Auslegung. 29. There might be a difference here between Continental and AngloSaxon legal systems on this point. In Anglo-Saxon legal systems the judge is less passive than in Continental legal systems, but has a more active role with regard to truth finding and finding out the facts. This, however, is a theoretical distinction. In practice Belgian judges do not have to just passively listen to the pleas of the advocates but can also actively intervene and pose questions. This competence has even been inscribed in article 756 of the Belgian Procedural Code. 30. The etymology of con-vincere is ‘to conquer with’, indicating that the advocate has to succeed in deploying the judge along the lines of dispute resolution proposed. 31. The role of good advocacy can here be cast as a certain art of stagecraft in constructing and lighting the way to arrive at judgment. We could say that in the conclusions the advocate is required to assume the role of the stage builder who has to construct a script and set of the dispute, whereas in the plea s/he becomes a lighting technician who has to light the way in this ‘civilised theatre’. In the plea the advocate has to first enlighten the scene to the judge by ‘situating the case’. Within this situation s/he has to direct the judge’s focus Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 32. 33. 34. 35. 189 by highlighting the ‘topics that are decisive for the judgment’. These topoi or places are the zones that indicate ‘the important points’ in the dispute, the strong intensive points of the advocate’s case. Simultaneously the advocate will necessarily shade the topoi or zones which are ‘irrelevant’ in this respect. In this sense it resonates with the old sense of the term ‘appointment’ which implied the ‘coming to a point about some matter and therefore to settle it’. The term ‘linear focus’ is inspired by Deleuze who extracts it from Leibniz’s Monadology as the ‘power of arranging cases’ referring ‘to point of view as jurisprudence or the art of judgment’ (Deleuze 1993: 19–21, my italics). This art of judgment of extensive cases is connected to the two conditions for monads in creating a clear point of view: ‘selection’ and ‘closure’ (Deleuze 1993: 90–1, 131–7). It is also important to add that a point of view in Leibniz ‘does not mean a dependence in respect to a pre-given or defined subject or mind; to the contrary, a subject will be what comes to the point of view, or rather what remains in the point of view’ (Deleuze 1993: 19). With Whitehead we could call such a point of view a locus standi for such a subject or mind and which is always tied to an ‘event here’. ‘It is that in nature from which the mind perceives. The complete foothold of the mind in nature’ (Whitehead 2004: 107). In our case this event is the dispute which allows certain loci to be assumed as points of view. These sketches of judgment as a selective contraction or, as we could say, a folding differently of the body of the case provide us with an alternative more detailed approach to judgment than the rather sweeping conceptualisation of the judgment as a macroscopic cut (Derrida 1992). This term is not meant as an aestheticisation of the legal process but rather to unite all the characteristic actions mentioned and juxtaposed here under a singular mode of operation. In this sense it can be compared with artistic pointillism due to its technical character in which the punctual contraction manages to perform an abstraction of things. In the case of law this abstraction can often render this matter of dispute unrecognisable even to its primary protagonists but is essential for rendering it decidable. We have already become acquainted with the peculiarities of the legal concept of evidence. This concept is closely linked to the other curious legal concept of ‘inner conviction’. What transmits to certain pieces a certain value of evidence that works upon the inner convictions of the mind of the judge? Different legal regimes of procedural Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 190 36. 37. 38. 39. Niels van Dijk forces and values circumscribe the room for the movements of conviction for the court and also install the mind of the judge itself within a regime of (in)visibility as a kind of mobile secret chamber of deliberation, as a movable camera obscura. This also shows that these are much more legal concepts than psychological ones. This ‘mind of the judge’ is not so much a black box of behaviourist psychology in which the processes of deliberation going on inside would be methodologically circumvented by the researcher, but rather a legal black box that is inscribed in the pre-scripts of procedural law and which circumscribe the mind of the judge within a regime of invisibility. This term ‘requisite procession points’ is inspired by Callon’s concept of ‘obligatory passage point’ (OPP) in technological and scientific contexts (Callon 1986) and exapted to the specific requirements of legal practice. There is in fact a deep link between these legal ‘operatives’ and the very notion of the performative that is the cornerstone of speech act theory. When Austin introduces this notion for the first time for a particular kind of linguistic utterance in which the uttering of a certain sentence is the performance of an action, he states that the existing term that is most closely related in naming this kind of utterance is the technical term ‘operative’ ‘as it is used strictly by lawyers in referring to that part, i.e. those clauses, of an instrument which serves to effect the transaction’ (Austin 1976: 7). It is interesting to note that these performatives take the kind of legal operatives that we are analysing here as the very paradigm upon which they are modelled. Ducrot has stated that the illocutionary, the kind of linguistic activity or ‘force’ that gives birth to performatives – is itself defined as an intrinsically juridical act. ‘The illocutionary appears now as a particular case of a juridical act: a juridical act accomplished by speech’ (Ducrot 1991: 78). An example would be socio-biology (or evolutionary psychology) in trying to reduce behavioural dispositions of humans to our evolved genetic make-up or to strategies aimed at survival. Such explanations have also been attempted for law. The aim here is to find the ‘biological roots of legal institutions’ (Yarn 2000: 65). According to Heidegger, the word ‘cause’ has a more primordial belonging in the legal context. In its authentic and original sense, this word [causa] in no way signifies ‘cause’; causa means the case and hence also that which is Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 191 the case [Fall], in the sense that something proceeds and becomes claimable [fällig]. Only because causa, almost synonymous with res, means the case, can the word causa later come to mean cause, in the sense of the causality of an effect. (Heidegger 2004: 167–8) 40. Austin thoroughly realised the importance of the practice of law for his model of speech acts. In the many paradigmatic performatives he describes the words uttered within these procedures often come to do things so effectively by having their conventions backed by the force of law. 41. We could oppose a filling out (through) the legal forms as part of the twofold of ap-plication that extends the corpus of the dispute through conditional authorisations, with a filling in the blanks of a pre-fixed template. 42. As the Argentinean poet Juarróz so beautifully reminds us: ‘El fondo de las cosas no es la muerte o la vida. El fondo es otra cosa. Que alguna vez sale a la orilla’ (‘The ground of things is not death or life. The ground is something else which sometimes comes ashore) (Juarróz 2001). The latter phrase can also be translated as: ‘which sometimes rises to the surface’, referring to a river drying up and temporarily exposing the riverbed . . . 43. In this context there is a link to the Deleuzian principle of contingent reason in which the rising of the ground is always related to the singularity of a contingent and problematic encounter that transforms it (and reversing the principle of necessary reason) (Deleuze 2004: 344–5; Deleuze and Guattari 1987: 93). 44. My translation. The original German text is: ‘Bei allem Begründen und Ergründen laufen wir schon auf dem Weg zu einem Grund.’ 45. Heidegger here specifically refers to the philosophical connections between judgment and ground as first established by Leibniz and later systematised by Kant, most specifically in his Kritik der Urteilskraft (Heidegger 1997: 104–7, 173–5). With Heidegger the ground is transformed from principle, ratio or causing instance to a supportive instance which is always linked to a ‘while’, ‘during’ or ‘as long as’, and not to a ‘because’ or ‘since’. 46. There is a certain similarity here with Whitehead’s writings on the relations between points, positions, fixing time-systems and events (Whitehead 2004). In this context he also speaks of ‘event-particles’, or what we could call ‘dispute-particles’ in our case. 47. Where Latour describes the reference produced in scientific practices as a series of transformations that produce information about Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 192 48. 49. 50. 51. Niels van Dijk something, we can describe the assignation produced in legal practice as a series of performations that produce convictions and qualifications that gradually carry a cause into its effects. This is the sense of the word in which it is used by Deleuze, not the way in which the term is often equated with ‘legal theory’ providing the first principles or general elements of legal systems. Deleuze has stated that ‘jurisprudence is the philosophy of law, and deals with singularities, it advances by prolonging singularities’ (Deleuze 1995: 153). Here legal philosophy is related to the singular event of the dispute before it. In this sense it can provide new insights for a new so-called ‘object-oriented philosophy’. See Harman’s description at <https://speculativeheresy.wordpress.com/2009/01/06/object-oriented-philosophy/>. Figures, concepts and points of view can become extracted from this middle ground of legal practice in which law becomes approached through the dispute by which practitioners are prudently engaged and which draws them into its dynamics. They can then be raised as conceptual entities in the discourse of legal theory, so that certain existing constellations and conceptual amalgams might start to shift. We could here, for instance, think of the displacement of: the role of the thing in the post-Hohfeldian Legal Realism to the extent that we can speak about ‘bundles without things’; the role of facts in constructing a Hartian practice theory of legal practice from the point of view of the neutral observer; or the role of the Herculean purification of disputes in the hydra of legal practice. For a full account see Van Dijk (2013). In Llewellyn’s words: What is the relation of [. . .] ‘the facts’ to the brute raw events which happened long before? What is left in men’s minds as to those raw events has been canvassed, more or less skillfully, by two lawyers. But canvassed through the screen of what they consider legally relevant, and of what each considered legally relevant to win the case. It has been screened again in the trial court through the rules of about what evidence can be admitted. [. . .] Finally, with the decision made, the judge has sifted through these ‘facts’ again, and picked a few which he puts forward as essential – and whose legal bearing he then proceeds to pronounce. It should be obvious that we may now be miles away from life. (Llewellyn 2008: 34) 52. As a hypothesis we could state that, when in the so-called ‘normal case’ the judge aligns with the translations proposed by the advocates Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 The Life and Deaths of a Dispute 53. 54. 55. 56. 57. 193 (and the distinction between ‘normal’ and ‘hard cases’ holds), this would further imply that normally the body of law mostly unfolds through the work of advocates! This gives a new interpretation to Cardozo’s old statement that ‘nine-tenths, perhaps more, of the cases that come before a court are predetermined – predetermined in the sense that they are predestined – their fate established by inevitable laws that follow them from birth to death’ (Cardozo 1924: 60). Not mentioned in this chapter but necessary to add to this inventory are: jurisprudential characters that constitute the singular figures that mediate between the legal plane of grounding and the legal concepts and which become mobilised by the singular work of establishing reasonances between different disputes; and monadic visibilities that are installed by a double court architecture of public hearing and private deliberation. A glance at the reasoning sections of the verdicts of such courts for instance, reveals very little reference to legal sources and authorisations, let alone the construction and mobilisation of legally coherent totalities. Van Dijk (2011: 61). Reference plays a role as an element in the transformation of the matter of dispute into a matter of fact. This is first of all the case in the practical work of affixing pieces of evidence to the case, which will allow the matter of dispute to shift into different times and situations where it can become articulated in its encounters with different actors and things. It must be realised, however, that this is above all a kind of conditioned reference according to the procedural regime of evidence, which is more properly legal than anything else. Secondly, legal practice is perfectly capable of producing its own theories and concepts of reference, which becomes especially apparent in disputes of trademark law in which the question ‘To what do signs refer?’ is one of the primary issues (Van Dijk 2013). Shapiro (2003). This notion of the fact later migrated to other practices like experimental sciences and empiricist philosophy where it eventually attained an elevated epistemological status. The concept of the modern fact became constructed as that which grants scientists the power to become the judge of nature and to produce authoritative knowledge about this nature that was disinterested, separate from political, religious, financial or any other interests in that regard (Poovey 1998: 112–13). In order to stabilise this notion of the fact recourse was made to the rule-bound practices of law, especially the figure of first-hand witness accounts of particular Downloaded from https://www.cambridge.org/core. Vrije Universiteit Brussel, Bibliotheek, on 12 Dec 2018 at 20:01:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/1CC6247997C934C738EF32F6BA07A352 194 Niels van Dijk events (the res facta in the legal sense) and its procedures for in- and exclusion and for testing credibility. 58. This designation strategy also seems to be at work in case of the mode of existence called ‘metamorphosis’, which is linked to therapy and ethno-psychiatry. 59. The term ‘assignation’ is quite suitable for a few reasons. First its linguistic core still refers to the act of marking something out, allotting something by sign. This denomination puts it in continuity with the predecessor of the term ‘mode of existence’, namely ‘regime of enunciation’. This semiotic background can still be seen as a vital driving force for the whole metaphysical project of devising a table of fundamental categories through the ontological equivalence thesis between enunciation and existence (Latour 1999a). Second, assignation also has the etymological meaning of ‘appointing legally’, which puts it in line with the thesis of legal pointillism defended in this chapter (other candidates for possible names are ‘attribution’, ‘affixation’, ‘imputation’ and ‘qualification’, although these can more properly be seen as typical partial acts on the trajectory of assignation). This denomination renders a rather Dickensian acronym in the table of modes of existence. In the words of Mr. Bumble: ‘law is an [ASS]’ and, following Latour’s (2010) use of La Fontaine’s fable, an [ASS] disburdened of the heavy relics of morality, politics, religion and even of all organization and attachment. 60. An important caveat needs to be made with regard to this naming strategy. It relates to the fact that the notion of assignation is essentially (quasi-)subject-oriented, as becomes clear in the chapter title for the legal mode of existence, ‘The Passage of Law and Quasi Subjects’ in Latour (2013). 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