ABSTRACT
Disputes, conflicts, and disturbing situations are common occurrences in all social worlds. As the anthropological literature on dispute resolution demonstrates, all social worlds have characteristic ways of disposing of disputes and settling conflicts. Our modern, statist worlds have developed specialized institutions for this, and have privileged actors who possess forms of expertise and are allowed to participate in these institutions. In this chapter we narrow our investigative attention to the pragmatic labors of lawyers and judges. Relatively few disputes are resolved by courts and relatively few conflicts are managed by lawyers, but those that are are significant for the purposes of nomospheric investigations. It should be noted that there is a wide array of judicial systems and modes of lawyering in the world. Our focus here is limited to common-law legal cultures and their distinctive practices. I will refer to lawyers and judges collectively as nomospheric technicians. Nomospheric technicians are social actors who have a privileged, productive relationship to nomic traces and the pragmatic activities of nomic inscription. They are authorized to make a certain kind of legal sense of disturbing situations. While all inhabitants of the nomosphere continually make legal sense (take up traces, exercise rights and authority, confirm the rights of others, and so on) lawyers and judges do so under special conditions and with distinctive results. Two subcategories of nomospheric technicians deserve particular mention.
These are self-avowed political lawyers and appellate judges. Legal action is an important strategy employed by movement activists, and political lawyers, cause lawyers, or radical lawyers are important in advancing the aims of movements. Judges are themselves lawyers, but owing to their institutional position and their status as state agents they are empowered to decide cases, to rule, to order and command, to direct state resources, to unleash or restrain distinctive forms of violence in ways that other lawyers are not. They are empowered to empower and to disempower others. They have the socially derived capacity to reconfigure nomic settings and nomoscapes. They work directly on and with nomic traces, and are immediately engaged in figuring and refiguring nomic subjects. That is to say, in our
world, judges are highly significant world-makers (and world-destroyers). Judges, like lawyers more generally, occupy a range of hierarchically organized positions of authority. It may be that those at the lowest level of authority have the greater cumulative effect on the shifting contours of nomosphericity. A relatively small proportion of cases are appealed to higher levels of the judicial system and of those that are, most are affirmed. However, because these cases may have wider ramifications, the work that these technicians do is worthy of closer examination in terms of nomospheric investigations. In the remainder of this chapter I will be focusing mostly on the work of appellate lawyering and judging in order to analyze the moves and counter-moves, techniques and operations that constitute nomospheric arguments and judgments. Lawyers and judges, as nomospheric technicians, operate under significant
constraints, but rarely are these constraints absolutely determinative of outcomes. The work they do is creative, often innovative, and the materials they work with are amenable to diverse reworkings. Fundamentally, nomospheric technicians operate with and on ambiguities and indeterminacies that can be rhetorically clarified and simplified in numerous possible ways. We have already seen this in the cases that have served as illustrations to this point. In appellate cases there are usually respectable arguments that can be made in favor of various outcomes. The convention of publishing dissenting opinions and the existence of reversals of lower court rulings also demonstrate the contingent character of legal determinations, and so the contingent character of the nomoscapes, nomic settings, nomic fields of power and situations. For the purposes of nomospheric investigations it is here-at the intersection of the strategic projects of lawyers and the institutional constraints and practical capacities of judging-that we can discern significant features of the pragmatics of world-making. The central themes of the previous chapter were nomospheric dynamism and the hows of change and continuity, of transformation and reproduction. In the present chapter I will emphasize the work-the real labor-that nomospheric technicians perform with the end of advancing, resisting, or limiting the effects of such transformations. In the sections following this I will present close analyses of four cases to illustrate some of the more general claims presented here.
