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This chapter uncovers the theoretical dimensions of the controversy over knowledge highlighted in Chapter 1. I show how in this controversy, the demarcation between science and law, knowledge and judgment, the is and the ought is at stake. Tracing this distinction through both legal positivist thought and sociological approaches to the law, I emphasize in particular the limitations of such theoretical exercises. In their abstractionism, they fail to offer us the tools for thinking through, and thinking with, the controversy introduced in Chapter 1. The law-science conundrum, I argue, needs a pragmatic respecification. Drawing on pragmatist philosophy, the social study of knowledge practices, and ethnomethodology I seek to ask not, what is the law, but rather: where and how is it done? Neither do I want to know what (social) science, essentially, is. Again, the more productive question to ask is: how and where does it take place? And what are the performative effects of social scientists’ attempts to understand legal practice? Emphasizing actually occurring, unfolding legal practices over abstract “Law”, this chapter offers the conceptual tools necessary to venture into the field.
Equipped with a vocabulary to do justice to the performative dimensions of social scientific knowledge production, this chapter revisits the controversial study of sentencing disparities introduced in Chapter 1. Here, I emphasize the performative effects of statistical forms of ordering and analysing judicial decision-making. What are the consequences of treating judicial cases as bundles of legal and social characteristics? How is the promise of “equality before the Law” operationalized? How is the law itself reconfigured as a result of this analysis? What kind of population – of cases, of individuals – does this analyses presuppose? Together, these questions bring us closer to zooming in on a crucial performativity of social-scientific accounts of judicial practices, especially those assisted by quantitative measurement and statistical analyses. Disaggregating cases into case- and defendant “factors” and portraying criminal law as a machine distributing justice over an internally stratified population, this approach produces a reality the judges do not recognize as their own. Hence, this chapter also comments on the methodological limitations of statistical analyses in the study of actually existing, concrete work practices, demonstrating how such methodological approach black-boxes judicial decision-making and disaggregates cases into “factors”.
This chapter concludes by emphasizing the multiple character of the law. Summarizing the multiple beings of the law as they have appeared in this book – the law as a distribution machine, the law as a narrative practice, the law as a matter of shuffling documents, the law as a matter of temporal ordering and folding – this chapter raises the question how we may make sense of this multiplicity. Here, I argue we must refuse to reduce these multiplicities to one preferred abstraction. Instead of such hyper-explanations, I argue we must retain multiplicities in order to justice to law’s multi-scalar, multi-temporal, and non-local character. In order to do so, I suggest we think of the law as a hyper-object. The notion of the hyper-object forces us to situate and account for our collaborations with this strange being, so that we will never be able to claim we have apprehended the law in its totality, yet we need not sacrifice description entirely. Such a conception calls for situated accounts, and remains sensitive to the fact that social and legal life is always ongoing, never not concrete, irreducibly multiple.
In March 2012, a study into sentencing disparities shocks the Dutch Judiciary. Three researchers of the University of Leiden, using in-court observations and statistical analyses, have demonstrated that defendants’ “foreign” or Dutch “appearance” influence judges’ sentencing decisions: these defendants are usually punished more harshly than the native Dutch. Practicing judges react to the study in frustration, raising the question whether researchers have “any idea” as to how judges “deal with cases”. Here, I take their objections to this controversial study seriously: not only as an implicit critique of social scientific knowledge production about legal practices, but also as being reflective of wholly different ways of seeing and constructing cases. I raise three questions: First, how do judges deal with cases? How do they evaluate evidence, construct or deconstruct different story-lines, how do they come to “see” the case? Secondly, what do social scientific observers see (and not see) when they try to describe, understand and explain these practices, and how do their methodological choices and theoretical assumptions shape their accounts? Third, what do I do when I try to research and describe these practices, that is: how do my own positionings, assumptions, and methodological choices affect the knowledge I produce?
Whereas the preceding chapter has taken the case file as an object immediately present in the here-and-now of ongoing practices, this chapter highlights the case file not as materially but as a temporally recalcitrant object. It traces the case file’s procedural and institutional histories, paying attention in particular to the way these histories are evoked and negotiated in court. I show how the case file becomes implicated in struggles over “what really happened”, and distinguish between two modes in which it does so: on the one hand, the legal case file acts as an innocent transporter of facts and truth; on the other, it becomes visible as an object that has actively transformed and delineated the case in question. I propose the use of the notion of the temporally folded object to understand the specific operations of legal case files, and in so doing contribute to the theorization of legal temporalities more broadly. Methodologically, then, this chapter underscores the necessity to attend to the multiple ways histories and futures become implicated in the production of legal knowledges.
This chapter highlights judicial file-work backstage. It is particularly interested in the socially distributed and materially mediated character of these practices, and zooms in on the techniques judges have developed to navigate case files accurately and efficiently. It also traces how these work practices were disrupted and rearticulation as a result of the digitization of legal case files. In so doing, this chapter shows how an emphasis on this non-human actor – the legal case file – can rearticulate understandings of judicial decision-making and rule-following that locate it in the “head of the judge”. Tracing how and where judges draw on the legal case file in their sense-making, this chapter instead treats both judicial thinking and seeing as empirically investigable phenomena, and suggests that our conceptions of legal practices can benefit from paying attention to the materiality of legal case files. In so doing, it treats case files not (only) as informational objects, but materially recalcitrant objects that shape and direct judicial attention in specific ways.
In this chapter, I venture into the courtroom. There, I show, accounts are elicited, truth and falsehood are at stake, and the “soul” of the deviant subject becomes a matter of empirical interest: is s/he really sorry? Here, emphasize in particular the local, narrative production of remorse. How, in other words, do defendants manage to “perform remorse” in court? How do judges make sense of defendants’ remorsefulness? How is it weighed and evaluated, and what are its consequences to judicial decision-making? Drawing on informal conversations with judges and in-court observations, this chapter demonstrates the narrative texture of judicial sense-making and decision-making, and the possible tensions that may arise between pursuing self-defense as a defense strategy and appearing sufficiently remorseful. I also show how narratives are subject to practices of typification, distinguishing between three typified whole-case narratives: the typical “angry young man”, the typical drug-addict, and the typical “explosive couple”. These three typified whole-case narratives help judges to make sense of and weigh defendants’ demonstrations of remorse. Here, I also highlight the methodological affordances of observation and informal conversation in shedding light on the narrative texture of legal practices, and contrast this emphasis on narrative with statistical approaches to judicial decision-making.
In the field of socio-legal studies or law and society scholarship, it is rare to find empirically rich and conceptually sophisticated understandings of actual legal practice. This book, in contrast, connects the conceptual and the empirical, the abstract and the concrete, and in doing so shows the law to be an irreducibly social, material and temporal practice. Drawing on cutting-edge work in the social study of knowledge, it grapples with conceptual and methodological questions central to the field: how and where judgment empirically takes place; how and where facts are made; and how researchers might study these local and concrete ways of judging and knowing. Drawing on an ethnographic study of how narratives and documents, particularly case files, operate within legal practices, this book's unique and innovative approach consists of rearticulating the traditional boundaries separating judgment from knowledge, urging us to rethink the way truths are made within law.
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