Fleur Johns's contribution to international law scholarship is undoubtedly substantial, as argued by other contributors to this symposium. But it would be a shame if the book's influence were limited to international law, or indeed to the larger arena of law school scholarly networks. My contribution to the symposium will be to show that in a subtle and understated manner, the book challenges some of the basic tenets of the ‘law and society’ tradition, especially the sociologistic assumptions of the largely American work that now forms the canon of this middle-aged field.

Some key features of Johns's analytical approach will be identified and discussed below. But since the proof of any methodology is in the pudding, I will begin by discussing one particular passage that radically challenges habits of thought and argument that are deeply rooted in both critical legal studies and law and society work. The passage is in the chapter on transnational contracts, ‘Doing Deals’. In canvassing the largely sociological critiques of the doctrine of party autonomy that critical legal scholars have produced, Johns states that the critics do not so much challenge the central notion of autonomy as shift its location. Their critique, she states, ‘has tended to relocate the search for a stable, impartial principle governing legal decision to the domain of context, guiding philosophy or institutional identity’ (p. 125). Sociologically oriented critics of liberal legalism attack liberalism's ideological belief in a natural, pre-legal autonomous individual who chooses the relevant law and the forum by flexing the unfettered free will that conventional legal doctrine reads as natural, or at least ‘pre-legal’. But the social-context critique in turn makes the assumption that the ‘real’ explanation of any contract, and of contract generally, lies in personal and institutional networks, and/or in the elite culture of an industry (p. 125–6). Such critics thus rely on largely sociological notions to conclude that the real truth of contracts is to be found not in the autonomous subject but rather in structural social relations, whether cultural or economic or both.

This assumption about the primacy of ‘the social’ is the foundational law-and-society credo: namely, that the truth of law lies not in doctrinal thinking, infused with and committed to liberal individualism, but rather in the ‘real’ social relations that underpin law, whether these are read structurally, as Pierre Bourdieu and Niklas Luhmann do, or in the manner of social interactionism. Instead of joining the ‘law and society’ majority by using ‘the social’ to debunk the supposed autonomy of ‘the legal’, Johns innovatively borrows Judith Butler's critique of sociologism in gender analysis to great effect. In her book Gender Trouble, Butler famously turned the sociological idea of gender as socially constructed on its head, claiming that gender is best seen not as a social reality that causes people's behaviour (as sociology would have it), but rather, as the ever-failing performative reiteration of an ultimately fictional binary.Footnote ¹ For Butler, therefore, gender is more of an effect of conduct than a cause.

In a parallel manner, Johns argues that classic sociological critiques of law do displace law, but do not displace the modernist epistemology that doctrinal scholarship shares with modernist social science. The law-and-society critics simply shift the autonomy and internal coherence that doctrinalists attribute to the contracting parties to the ‘system, organization, community or culture’ (p. 126) that supposedly grounds and shapes law. Sociologically informed critical legal scholars, therefore, have a different view of who the real parties to the contract are than doctrinalists, but in the end their idea of autonomy is not much different – they just shift the autonomy and agency that characterizes the liberal individual subject to the collective scale of the social.

In keeping with the postmodern and dynamic analysis that Johns borrows from Butler and a variety of other post-humanist theorists of subjectivity, Johns proceeds to demonstrate that corporations engaged in transnational deals, far from being coherent subjects with a single, free will, are to some extent the products of the very deals that supposedly operationalize their agency. In doing so, one thing Johns does borrow from law-and-society approaches is the desire to capture not the legal essence of contract but rather legal experience, with experience always being a hybrid of legal and non-legal entities. Thus, the chapter analyses not the contract but ‘the deal’: ‘the deal is a summary term for an assemblage of private law contracts, public law permits and concessions, equity investments, loans, bonds, security interests, insurance policies, rating agency grades, debt pricing . . . construction plans, environmental impacts, professional identities . . .’ (pp. 111–12).

Johns shows that international private lawyers who are hired to produce transnational contracts not only produce deals (rather than just contracts) but also share and indeed revel in the mystique that characterizes the whole field (and not merely its legal dimensions). For a municipality seeking to build a new bridge or for a construction firm wanting more work, the deal is a means to an end. But pursuing and finalizing a ‘deal’ becomes an end in itself for the participants. Putting to good use her personal experience in a New York law firm, Johns adds significantly to the socio-legal project of displacing law's own categories and assumptions, but does so in such a way as to undermine the sociologism prevalent in socio-legal circles. Her carefully dynamic analysis demonstrates that reducing the complex logic of ‘the deal’ to either the needs of global capital or the pursuit of symbolic capital amongst international commercial lawyers (as socio-legal scholars Yves Dezalay and Bryant Garth have famously done)Footnote ² is inadequate. Any analysis that features a single entity with agency, whether that be the classic liberal legal individual, global capital, or elite law firms, will not do justice to the dynamic and unpredictable interactions amongst a large range of actors that form ‘the deal’.

Johns's novel analysis of the nuts and bolts of transnational financing exemplifies an approach that is not laid out explicitly – other than by using the term ‘quasi-ethnography’ (p. 22), which is far too modest – but that one could call ‘post-sociological’. In the remainder of this contribution I will highlight what I see as key features of the approach (with the caveat that other scholars with different interests and backgrounds would likely describe Johns's approach differently).

Like ethnography generally, Johns's approach is descriptive rather than normative; she is interested (in this book at any rate) in understanding how things work, and specifically what law does besides doing law itself. That the refusal to go normative can yield some new and interesting insights is most clear in the chapters on Guantanamo and the torture debates – but also, in less obvious ways, in other chapters. For example, the chapter on the regulation of dead-body recovery and management in the wake of humanitarian disasters could easily have been written in a tragic humanist vein, if the main object had been to deplore the way in which human bodies are reduced to things to be bureaucratically managed (as indeed is the case). Johns does show that the manuals issued to those who manage rescue and recovery efforts do turn humans (dead and injured) into sources of data, with the quality of the data declining – literally decaying – rapidly over time (p. 197). The mundane protocols furthermore reduce the living survivors to lowly lab assistants whose only role is to identify the dead – though the experts are told that living relatives often make mistakes, and that their evidence is not valuable unless confirmed by DNA or other scientific tests (p. 197). Along the same lines, the living are also said to be unreliable insofar as they often engage in disseminating ‘rumours’ (rigidly separated from true science) (p. 202). But despite all the evidence of the ‘lifeworld’ of disasters being drowned by the logic of science, Johns avoids the temptation to wave the flag of Kantian humanism as against the bureaucratization of death. Johns reads the emergency workers’ manuals not just for their implicit ethics but also for their implicit politics. At that level, the manuals look wholly technical and apolitical (by contrast to such documents as the torture memos): but, among other things, the way in which they organize the emergency response has the effect of suggesting that the status quo ante was highly desirable, whatever systemic injustices might have prevailed. A disaster is by definition bad; the status quo ante is thus rendered, retrospectively, good. In this way, paradoxically, the disaster that one would think is the object of attention is blackboxed.

Denouncing the ethical evils of the bureaucratization of mass death would be easy. But disasters such as earthquakes do require some bureaucratic processes; Levinasian ethics is not up to the task. Perhaps for that reason (although she is not very explicit on this point), in a post-humanist fashion in keeping with the somewhat Latourian approach used by scholars such as Annelise Riles, Johns eschews the temptation to denounce. Instead, she carefully describes the network of rules and procedures that lawyers would dismiss as uninteresting, and shows that the technical manuals construct dead human beings as ‘infra-legal’, as mere biology.

Personally, I am not persuaded that the ‘infra-legal’ is a distinct category of the ‘non-legal’ of the title; in general, it is not clear how much is achieved by drawing distinctions between the ‘pre-legal’, the ‘post-legal’, the ‘infra-legal’, and so on. But be that as it may, Johns's well-taken point is that self-designated critical scholars who quickly move to denounce law and/or bureaucracy may do well to instead spend their time mapping how different priorities, resources, desires, professional investments, and legal tools combine to constitute the very entities that law acts upon. Critical legal studies has long relied on denunciation as a key if not the key mood or affect of critique; description (especially the description of networks in perpetual motion) can generate insights beyond the critical move.

Besides the interest in description rather than denunciation, two other methodological choices distinguish Johns's work from that of the socio-legal mainstream. One is an openness that does not privilege the scale of the human, and instead documents, without any a priori ontologies, how non-human as well as human entities come into relation with one another to form governing networks. Latour's influential work on non-human actors has drawn many legal scholars’ attention to material entities – paper clips, wooden mailboxes, and cardboard file folders, as seen in The Making of Law, his book on the Conseil d’Etat.Footnote ³ By contrast, Johns, in keeping with recent work on the ‘anthropology of documents’,Footnote ⁴ is less fascinated by material objects, and instead pays close attention to the ‘agency’ of the kind of documents that lawyers usually ignore, such as regulations and protocols. This approach shows that it is not necessary to counterpose doctrinal legal analysis (which only sees judicial decisions and other high-level legal texts) to actor-network analyses of non-human objects. Most legal disputes mobilize vast amounts of documents, few of which are directly discussed in the ultimate, high-level legal texts. Legal scholars tend to ignore the vast rivers of paper that flow from solicitors’ and doctors’ and government offices into the legal process, focusing almost exclusively on the final product: but so do the vast majority of socio-legal scholars, who are so busy looking for the underlying political or economic interests hidden in the subtext of judicial decisions that they ignore the piles of paper that, hidden in plain sight, can be shown, with analyses such as Johns’s, to be much more than ‘background’ documents. More attention could have been paid, however, to the format of the documents analysed. Marilyn Strathern's brilliant commentary on the use of bullet points as an anti-scholarly format privileged but taken wholly for granted in university mission statements could serve as inspiration for future legal scholars interested in continuing Johns's study of regulations, memos, and other documents in other arenas.Footnote ⁵

A third notable feature of Johns's method is that, without any fanfare, she manages to integrate the better known literature on law, regulation, and space with a careful consideration of the conflicting temporalities visible in various legal fields. Johns does not directly challenge the current theoretical privileging of space and spatial analysis; but her concrete analyses show that by asking questions about temporality (without ignoring space) one can shed new light on old problems. One example (out of many) is found in the chapter on the management of dead bodies. In the relevant emergency protocols, ‘dying is, for want of a better word, futurised. Dead bodies are less carriers of a lived past and means for its memorialisation than a possible vehicle for “future forensic investigation” and a basis for the forging of familial and communal futures’ (p. 209). In conventional legal texts (say, decisions of war crimes tribunals), the bodies of the dead represent past humans, and, more importantly for legal purposes, function as signs or evidence of actions in the past, actions that must now be punished. But in the mundane details of manuals for emergency personnel, dead bodies appear instead as ‘futurised’, both as material of future forensic purposes and for the non-embodied purposes of tools of reconciliation and healing. The ‘futurity’ of the dead bodies would not be apparent if one only examined the conventional, high-level legal documents; neither would it be apparent if one used, as theoretical resources, the currently fashionable theoretical geography literature on scale and space.

A second example of the value of focusing on temporalization is found in the discussion of the peculiar, discontinuous temporality of ‘the deal’. (And here it must be noted that Johns's personal experience of transnational finance was essential for this insight, since the temporality of the deal is unlikely to be apparent from the paper trail). A deal is not a collection of contracts piled up on a desk. A deal is a process that takes place over time, but in a temporality that differs markedly from, say, the sedate and evenly paced temporality of bureaucracy. A deal is a series of negotiations characterized by a manic-depressive pace: ‘the tempo of the deal tends towards his faltering rhythm. Time drags in the long, air-conditioned hours of a multi-party meeting. Then, periodically, it gets compressed and caffeinated – pushed against the railing of a deadline’ (p. 131).

Legal geography has taught both lawyers and socio-legal scholars that space matters for law – that much governing is done through spatialization. But temporalization, an equally important feature of governance mechanisms, has received far less attention. Integrating temporality and spatialization in the analysis of legal mechanisms is not easy, in part because paper trails do not always contain visible traces of the temporalizations within which the paper was produced. But now that space has been widely recognized as central for social theory, it is certainly time to explore ways of including temporalization within our analyses.

The three features of Johns's approach highlighted here – the emphasis on description rather than critique; the inclusion of all types of actors, regardless of ontological status, in the analysis; the attention to varieties of temporalization – do not exhaust the methodological and theoretical richness of the book. However, they may suffice to give a sense of the possibilities that lie ahead for socio-legal scholars who are unsatisfied with repeating the sociological critiques of law that the early law-and-society movement generated. Johns's analysis takes up the old sociological question of the constitutive power of law, but in such a way as to go well beyond labelling theory's insight about the power of legal categories. In Johns's analysis, the constitutive power of law does not come from powerful but static labels. Law is not constitutive merely because (as critical criminology showed long ago) the reification of the Criminal Code makes ordinary people think that there is such a thing as a distinct population of ‘criminals’. Law is constitutive in more subtle ways. As we learn from the rich case studies in this book, law can usefully be seen as a series of assemblages of knowledges, regulations, protocols, standards, objects, and human desires and capacities that come together in often fleeting combinations to constitute the reality that law is supposed to govern – the non-legal world.