two transitions in criminal justice research.doc
TRANSCRIPT
Two Transitions in Criminal Courtroom Research
Hadar Aviram
Tel Aviv University
Paper presented at: New Directions for Criminal Courtroom Research,
Tel Aviv University, May 16-17, 2007
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A. From Norm to Practice and from Practice to Discourse
I remember the first time I sat in a criminology lecture, on my first year in graduate
school after having been in legal practice. As our professor, the late Vicky Shiran, laid
out our plan for the semester, I felt extremely excited. I was being let in on a
conspiracy I had been intuitively suspecting ever since I had started practicing law.
And, guess what: my suspicions were correct! Something was, indeed, very rotten in
the kingdom of the criminal justice system. The law wasn’t working the way it was
supposed to. Policemen behaved in racist and violent ways, then lied about it.
Prosecutors were incorporating bureaucratic and cheap populist considerations in their
decisions to indict. Defense attorneys weren’t protecting clients at all costs; they were
managing busy workdays, annoying and impoverished clients, and their tumultuous
relationships with the prosecutors and the court. Judges really preferred defendants
who looked like them to those from less privileged backgrounds, and many of them
were more concerned about docket management than they were about rights. These
folks, who were going to teach me criminology, they were on to the conspiracy! They
had been systematically uncovering the dark secret, operationalizing variables,
collecting and coding data and analyzing findings on all these ugly phenomena I was
seeing. These horrible things I saw every day at work were really happening and these
brave criminology types were out to prove it.
Several years and discoveries later, my conversations with colleagues with similar
career trajectories showed that several members of the criminal courtroom research
“tribe” had gone through such epiphanies upon entering the world of social science.
This paper sees these epiphanies as manifestations of broader, collective transitions
occurring in our research field. As I argue here, the study of criminal courts has gone
through two such major transitions, which involved reconfiguring the theory,
methodology and policy implications our work had to offer. This paper delineates
these two transitions and examines their promises and discontents.
The first transition, which I name here “from norm to practice”, reflects the field’s
break from the world of legal-normative criminal justice studies. It is a shift from a
focus on prescriptive norms, and from a paradigm of designing balance between
abstract contrasting values, to a focus on the ways in which rules are implemented in
the actual practices of the court. The second transition, which I name “from ‘practice’
to ‘discourse’”, reflects a shift from this aim to uncover what “really” happens in the
criminal process to the rejection of any such “reality”, and toward an exploration of
how law conceptualizes its chosen “reality”, and of how these “realities” have come
to be.
Before discussing these transitions in detail, two cautionary remarks are in order.
First, the paper sketches in simplified, broad brush strokes different processes that
occurred in different disciplines; each of these disciplines, and actually each of the
researchers, has its own approach toward criminal courtrooms and how they are to be
understood. While the transitions do have disciplinary aspects (from doctrinal law to
social science in the first transition) and geographic aspects (from American-based
law and society to European-influenced discourse analysis), they cannot always be
neatly mapped across professional disciplinary divides. Table 1 shows the disciplines
that engage with the different paradigms, classified by their relationship to the
paradigms I discuss in this paper.
Table 1. Classification of disciplines according to their approach to courtroom research
Norm Practice Discourse• Criminal Law• Criminal Procedure• Evidence• Economic/ Behavioral
Modeling (newer)
• Law and Society• Critical Criminology• Critical Legal Studies• Critical/NeoMarxist
History• Organizational Sociology• New Institutionalism
• Cultural Analysis• Foucaultian
Governmentality and Genealogy
• Luhmann’s Systems Theory
• Narrative Studies
A second, related comment has to do with the chronology of the transitions. The
transitions are delineated here genealogically, rather than chronologically. As socio-
legal scholars know, the principles of universalism, rationality, autonomy and equality
in formal law were questioned by legal realists as early as the late 19th century, and
there were certain heralds of the empirical approach to courts in the work of the
Chicago project and other studies. However, for those seeking some chronology, the
first transition seems to have been most significant between the early 1960s to the late
1980s. During these years, labeling theories, building on symbolic interactionism,
stated that behaviors were not intrinsically criminal, and that people were not
intrinsically offenders (H. Becker, 1963). Radical and Neo-Marxist criminology dared
say that criminal offenses were not the Holy Gospel; they were crafted by powerful
groups with group interests (Quinney, 1977; Taylor, Walton, & Young, 1973; Turk,
1969). Marxist historians detailed the history of criminalization with attention to
power and politics (Chambliss, 1964; Hay, 1975; Thompson, 1975). Critical Legal
Studies, born within law schools, offered more Marxist-influenced insights, as well as
the assertion that justice was far from what law books proclaimed it to be (Kennedy,
1998). And the Law and Society movement, formed in 1964 and drawing on various
theoretical backgrounds, including Legal Realism, examined the criminal process
through the lens of a “gap” between “law in the books” and “law in action” (Pound,
1910) – a difference between the formal, normative, prescriptive model of law and its
empirical manifestation in legal settings - and arguably the most influential concept in
socio-legal scholarship in general (Sarat, 1998). As to the second transition, while
several influential jurisprudence scholars had paid attention to what the law does and
how it thinks (Dworkin, 1988; Hart, 1997; Kelsen, 1981), the most influential herald
of discourse scholarship in the States was probably Michel Foucault’s Discipline and
Punish (Foucault, 1979), and somewhat later, his lectures on governmentality
(Foucault, 1991) through Hunt and Wickham’s The Foucault Effect (Hunt &
Wickham, 1994). Foucault-influenced scholarship – as well as scholarship built on
other discursive theories, such as Niklas Luhmann’s systems theory (Luhmann, 2004;
Luhmann & Baecker, 1995) and Gunther Teubner’s work in this tradition (Teubner,
1983, , 1989) – has been increasingly influencing Anglo-American criminal
courtroom research since the 1990s.
The paper begins by offering, in chapter B, the main premises and research trajectory
of norm-centered scholarship. It then discusses its conceptual and practical problems
and explains the genealogical emergence of practice-centered scholarship, whose
theoretical basis and methodological approach is presented and analyzed in chapter C.
Chapter D presents discourse-centered scholarship, its potential to examine models
and issues unexamined by practice scholarship, and its own discontents; finally,
chapter E examines the extent to which we have exploited the potential of “hybrids” –
projects that stem from several paradigms – and raises some questions about the
future of courtroom research
B. Norm-Centered Scholarship
Prescriptive studies of the criminal justice system are primarily concerned with
norms, whether substantive or procedural. Consisting mainly of doctrinal legal studies
of criminal law and procedure, norm-centered scholarship is, as defined by Abel,
a study of the rules which legal institutions apply, or which regulate the behavior of those institutions. The study identifies, defines, organizes, and criticizes the rules by means of criteria proper to the legal system – it rationalizes them in Weber’s sense. The mode of rationalization need not be wholly internal to the legal system – it may, for instance, connect the rule with some social goal – but the relationship between that goal and the legal rule is the product of a mental operation peculiar to law… Most important for my argument, the legal scholarship which produces law books is also a response to the demands of a functioning legal system. (Abel, 1973: 176)
The philosophy of norm-centered scholarship is best understood as a product of
Enlightenment Era, based on two important tenets: the abstract and universal nature of
law, inflicted equally and preemptively on all future situations and people without
discrimination (Trubek, 1990), and the Benthamian image of its subjects as
autonomous, rational actors who have free choice and would ordinarily use this choice
to increase pleasure and to avoid pain (Bentham, Burns, & Hart, 1996[1780]). Cesare
Beccaria, whose work is solidly based on these two principles (Beccaria, 1988) is
often hailed by criminologists as the father of classicist criminology (Maguire,
Morgan, & Reiner, 2002; McLaughlin, Muncie, & Hughes, 2003; Vold, Bernard, &
Snipes, 2002), but can be referred to just as convincingly as the father of criminal law,
or at least of prescriptive scholarship.
The assumptions of universalism, objectivism and rationality make norm-centered
scholarship a strong believer in law’s ability to shape human behavior. Criminal law
norms, assumed to have an ex ante effect on the behavior of defendants as well as law
enforcement agencies, are shaped with the aim to balance between contrasting values.
In the case of criminal courtrooms, the scale usually consists of the following ideas:
on one hand, the need to protect the public (by framing criminal offenses so as to
deter potential perpetrators from committing crime, and by broadening the powers of
police and courts to unmask and stop actual perpetrators from committing more
crime) and to discover the truth (by allowing evidence to be presented); on the other
hand, the need to protect individual freedoms (that is, maintain free choice by not
unnecessarily criminalizing human activity, and by not allowing law enforcement
agencies to unnecessarily intrude upon human activity) and to balance what is seen as
an inherent inequality in the criminal justice system between state and accused
individual (by providing procedural and evidentiary “tools” favoring defendants, such
as burden of proof, reasonable doubt, and due process premises). In the American
context, these balancing acts are constructed through an analysis of the Fourth, Fifth,
Sixth, Eight, and Fourteenth amendments, with “due process” as a key term (Dressler
& Michaels, 2005), but they are far from endemic to constitutional clauses, and Israeli
legal scholarship, for example, discusses them at length in the context of Article 3 of
the Human Dignity and Freedom Basic Act (Karp, 1995), and before its enactment in
1992 it discussed them as abstract principles (Kremnitzer, 1980).1
Some practice scholars would probably hesitate to acknowledge that norm-centered
scholarship has a distinctive research “design”; however, prescription scholarship
does follow a specific type of norm-centered logic. In fact, legal scholars think of
normative problems in a similar way to that of lawyers and judges. The logic of law
consists of identifying the pertinent norm and correctly applying it to the problem
1 Substantive law also assumes universalism and rationality, manifested by its seminal principle of legality, the basis for all principles for establishing criminal responsibility (Feller, 1984; Kadish & Schulhofer, 2001).
(Kennedy, 1998; Twining & Miers, 1999; Vandevelde, 1996); in the case of
constitutional clauses, this also means creating the correct balance between the
different values presented earlier. Flowchart 1 delineates a typical process for norm-
centered scholarship, which usually consists of a critical evaluation of a criminal
justice norm.
Flowchart 1: Norm-centered scholarship research design
Norm-centered studies define the problems they address according to the dilemmas
they raise. For example, a norm-centered approach to an issue of criminal
What is the problem?
Which values do we aim to balance using this norm?
Does current norm achieve a correct balance?
Historical context/meaning of the
norm
Suggested norm that achieves better balance
Behavioral incentives created by norm
Coherence with other norms
representation examines the right to counsel as the focal point of a balance between
the concern for assisting defendants (and, by doing so, helping the weaker party in the
criminal justice setting), and the concern for allowing the system to work efficiently
and free of exploitation. This dilemma is used to solve a variety of norm-centered
problems concerning the right to counsel, such as counsel during specific stages of the
process (Zavin, 1999), counsel in specific types of offenses (Wuslich, 1987), counsel
for specific types of defendants (Yalowitz, 1984; Beeman, 2001), and counsel in
special circumstances (Beckman, 1986; Anderson, 2004). In all these cases, norm-
centered scholarship seeks to examine whether the conflicting values have been
correctly balanced against each other, taking into account the special characteristics of
the situations. The logical trajectory (or methodology, if you will) for answering these
questions might consist of a historical attempt to ascertain what the original creators
of the norm (the Framers, in the American case) would believe was a correct
implementation of their norm had they been confronted with the case; an analysis of
the possible ex-ante impact of any chosen balance between the values; or an
examination of the “fit” between the suggested solution to the problem and the
solutions for similar problems. Policy suggestions are also norm centered: if a certain
balance between values is seen as promoting undesirable human behavior, the study
often recommends amending the norm (or its interpretation) so as to achieve a better
balance.
This design is best understood if we keep in mind that norm-centered scholarship
provides, as quoted from Abel above, “a response”, albeit an academic one, “to the
demands of a functioning legal system”. Legal systems are based on the power of
norms as strong behavioral incentives (Fish, 1991). However, these very
characteristics make norm-centered scholarship vulnerable to criticism from external
perspectives, highlighting its theoretical, methodological and policy-related
discontents.
The theoretical critique of norm-centered studies revolves around the fact that norm-
based theories do not account for legal practices in the field. The intellectual exercise
of balancing values through norms is worthless without the premise that norms,
indeed, matter for human behavior; this premise has no value without the assumptions
of universalism and rationality, neither of which is based on facts or proven to be true.
This is, of course, closely related to the methodological critique of norm-based
scholarship; staunch empiricists would not even regard the logical trajectory of norm-
based studies “methodology”, and argue that it relies on excessive unfounded
generalizations, rather than on systematic analysis. While norm-centered scholarship
can be said to be systematic in its application of logic, it often either follows the
doctrinal case-by-case format for critiquing norms, or broad abstract discussions that
do not refer to what happens in the field. This problem, in turn, is connected to a
policy-related discontent; due to its lack of systematic analysis and disconnect from
what occurs in courts, many purported solutions to legal dilemmas, in the form of
suggested norms, fail to yield the expected outcome in terms of behavioral incentives.
Naturally, these discontents, which yielded the transition to practice-centered
scholarship, did not put an end to legal scholarship as we know it. In fact, in recent
decades, as practice-oriented scholarship has developed, norm-oriented scholarship
has received a significant boost in methodology and prestige in the form of law’s
alliance with behavioral economics (Donohue, 1988; Rostain, 2000; Trubek, 1990).
While law has maintained insularity to external perspectives – even to Weberian
theories on rational law, which describe its functions (Hunt & Wickham, 1994) – has
it has been increasingly permeable to economics, a discipline with which it enjoys a
“kinship” based on the strong compatibility between legal and economic views of the
individual subject as a rational, well informed agent who operates based on cost-
benefit analysis (Cooter & Ulen, 2000). Based on this image of the person, economic
analysis of criminal justice espouse deterrence models based on optimal incentives
(G. S. Becker, 1968; Ehrlich, 1972).2
C. Practice-Centered Scholarship
While norm-centered scholarship focused on producing abstract modeling for criminal
processes that provide an optimal balance between conflicting values, the central
conflict in practice-centered conflict was not between values, but rather between the
aspirations (as manifested in the values) and the realities of the criminal justice
system’s daily work. Different disciplines defined this conflict in different terms, but
perhaps its best articulation was the aforementioned Law and Society Association’s
reliance on the concept of a “gap” between “law in the books” and “law in action”
(Pound; for the impact of “gap” on the broader law and society field, see (Levine,
1990; Pound, 1910; for the impact on the law and society field, see; Sarat & Kearns,
1993; Trubek, 1990). This juxtaposition of the law and society starting point to that of
formal law was, to an extent, triggered by the doctrinal insularity and formulated as a
2 However, further work, based mostly on experimental research designs, found that the mere knowledge and fear of a criminal sanction is not enough (Tyler, 1990), that uncertainty of apprehension hinders deterrence even when punishment is severe (Berkovitz & Walker, 1967), and that social and personal factors, such as shame, embarrassment (Gramsick & Bursik, 1990) and a sense of justice (Tyler, Boeckmann, Smith, & Huo, 1998) are significant to the prediction of legal behavior. Newer work in the law and economics tradition broadens and complicates the scope of discussion by addressing the power of informal norms, vis-à-vis the law, as an intricate structure and an interfering variable in creating incentives for behavior (Anderson, 2000; Ellickson, 1991, , 1998)
response to it,3 just as “the new criminology” (Taylor, Walton, & Young, 1973) was
formulated as a response to consensus-based criminological theories.
The criminal justice arena was an ideal setting for contrasting the inconsistency
between the theoretical values promoted by the law and what occurred daily in police
stations, courts, and hallway plea-bargaining discussions. Far from ascribing these
practices to the effects of norms, practice-centered scholars usually ascribed them to
extra-legal factors, either pertaining to the endogenous criminal justice system’s
malfunctions and pathologies or to exogenous factors such as social stratification and
racism. Both of these subsets of the practice-centered scholarship “family” are now
considered classics in criminal courtroom research.
Being mostly rooted in the social sciences, practice-centered scholarship examines the
criminal process through an empirical lens. A typical research design, as delineated in
flowchart 2, relies mostly on ethnography, and often combines several methods, such
as observations (conducted in courtroom as well as in hallways and in prosecution and
defense offices), interviews, quantitative analysis of sentencing, and occasionally a
longitudinal study to assess the effect of a norm-based reform on practices.
Flowchart 2: Practice-centered scholarship research design
3 This is evident from Skolnick’s response, in defense of the Law and Society movement (1966), to Auerbach (1966), who expressed a limited and confining view of the role of social science in the study of law. Disagreeing with Auerbach, Skolnick rejected the idea of limiting sociology of law to the empirical study of the legal profession, as well as the notion that social scientists should take for granted the positivist definition of law which lawyers "generally have in mind": "Sociology of law is not merely a description of the law in action, which some legal realists took it to be in response to the 'black letter' emphasis of many law teachers. It is also an analysis of the meaning and function of law in societies of different kinds” (Skolnick, 1966: 109).
Projects that focus on endogenous variables to explain courtroom practices usually
reject the notion of the system as a rational apparatus with a single goal in mind as a
simplistic abstraction, which does not take into account the organizational context of
the criminal courtroom setting (M. Feeley, 1979; M. M. Feeley, 1973). The system
consists of different actors – the courtroom “workgroup” or “elite”, consisting of the
prosecution, defense and judiciary (Nardulli, 1978) – whose interests conflict at times
and converge at others. As Eisenstein and Jacob (Eisenstein & Jacob, 1977) find in
their comparative three-city study, the more close-knit the workgroup is, the easier it
is to dispose of cases through negotiation. The key variable is familiarity between the
actors, best achieved in “repeat-playing” scenarios. A later study (Eisenstein,
Flemming, & Nardulli, 1988), finds other variables: jurisdiction’s size, geography and
demography, familiarity within the system, centralization of court units (common
meals by judges, organization of the prosecution and defense), and the existence of
emotional undercurrents and "grapevines".
Due to the system’s focus on its latent goal, case disposal and “offender processing”,
many practice-centered works focus on the unglamorous, routinized interactions that
What does the norm claim to achieve?
Is this achieved in practice?
Why not?
Endogenous factors
Exogenous factors
interviews
Courtroom observations
Sentencing analysis
Longitudinal study
Organizational / conceptual / normative policy suggestions
exist in the shadow of formal norms. Plea bargaining often occupies center-stage, as
the epitome of “real-life”, informal, practices of case disposal. For example,
Blumberg’s analysis of plea bargaining (1967) emphasizes the gap between the
defense attorney’s “formal” role and their actual interest in entering a guilty plea on
behalf of their client, leading them to convince defendants to confess through a
sophisticated “con game”. Heuman (Heuman, 2001) and Emmelman (Emmelman,
1996, , 2003) also examine the defense attorneys’ strategies; Emmelman comes to
somewhat less somber conclusions on the defense’s work. A somewhat different
approach to the study of plea bargaining is Maynard’s linguistic analysis of
negotiations, which he uses to learn about power differences between the negotiators
(Maynard, 1984, , 1988).
It is important to note that practice-oriented studies create categories based on what
they see as the working conventions in the field, rather than the formal legal
categories. Sudnow (Sudnow, 1965), for example, demonstrates how defense
attorneys reclassify offenses not based on their legal definition, but rather on their
similarity to familiar repetitive “case scenarios”, which he can then present to the
prosecution in plea-bargaining negotiations.
While some practice-centered scholars see plea bargaining as the dark, unwanted
child of the formal criminal process, others, like Feeley (1982), see it as a direct
consequence of an adversarial legal system, brought about by the judicial passivity,
active prosecution and increased opportunities for the defense which characterize
Anglo-American due process. Similarly, Langbein (Langbein, 1979) sees them as
informal “remedies” the system creates for the cumbersome nature of formal
procedural and evidentiary rules.
Projects that focus on exogenous factors face the challenge of operationalizing broad
variables such as class and race, as well as the difficulty of controlling for interfering
variables. Some of these studies use quantitative analysis of case processing (case
closure rates, decisions about arrests, and most often sentencing decisions) to examine
biases in the treatment of different demographics, such as race (Balbus, 1973;
Hudson, 1996), gender (Bogoch & Don-Yichya, 1999; Daly, 1994) and ethnicity
(Rattner & Fischman, 1997). While the conclusiveness of these studies varies in
regard to the severity of punishment, they do strongly point to differential treatment of
the social group in question. For example, Balbus’ study of the Black Rebel trials in
Los Angeles, Detroit and Chicago in the late 1960s, shows a tendency for immediate
response in terms of arrest and indictment where major activity occurred
(paradoxically, leading to a larger rate of later dismissals than in areas where revolts
were less extreme). Balbus explains these unusual measures by the defendants’ color,
which made the authorities perceive what was later seen as “common criminality” as
menacing and dangerous.
Other studies of exogenous factor provide historical accounts of criminalization and
of the introduction of penal practices to construct an etiology of these phenomena,
focusing on the socio-economic and political conditions that yielded biased against
lower-class populations. While not all of this works went as far as to offer a wide
Marxist critique of criminal justice across time and place (such as Rusche and
Kirchheimer's controversial 1939 classic), many did use neo-Marxist perspectives.
For example, Chambliss’ analysis of the birth of the Vagrancy Act (Chambliss, 1964)
places its legislation in the context of the medieval need for labor in light of the
reduction in population due to the Plague and the crusade casualties. Similarly,
Thompson’s explanation of the emergence of the Black Act of 1821 is closely tied to
the need to defend the property interests of the king in the face of poaching attempts
(Thompson, 1975). Historical explanations of criminalization often explain law’s role
in preserving a hegemonic status quo: Hay’s account of the administration of the
death penalty in England (Hay, 1975) shows the symbolism and ritualistic patterns
used by criminal law, particularly in the administration of criminal executions, to
convey a misleading notion of objectivity, equality and mercy. A similarly holistic
account of the law as the perpetuating agent of a social system is Genovese’s account
of the criminal prosecution of slaves in the American South (Genovese, 1976). The
supposedly lenient approach of the law toward transgressions committed by slaves
awarded slave owners control over their fate, redefining their status within the larger
social and economic framework of slavery (for a somewhat different focus on the
same system, see Noonan, 1976). Studies of the creation and enforcement of narcotics
prohibitions (Comack, 1985; Duster, 1970; Small, 1978) demonstrate that a successful
criminalization depends on the linkage between certain substances and certain
minority and ethnic groups; by contrast, Gusfield (Gusfield, 1986) explains the failure
of alcohol prohibition by documenting the change in social, religious, medical and
political coalitions for and against it. Studies of the etiology of penal practices often
highlight the role of underclass control in the creation of institutions such as
juvenile court (Platt, 1974), probation (Simon, 1993), correctional facilities (D.
Rothman, 1974; D. J. Rothman, 1980) and incarceration alternatives (Cohen, 1985;
Rosen, 1982).
Practice-centered scholarship can paradoxically be critiqued on its failure to take law
seriously and, simultaneously, on its tendency to take law too seriously. As Doreen
McBarnet frames the problem,
[s]ociologists have taken the question of how the criminal justice process works in relation to the principles of law by investigating only one side of the equation, the operation of justice, not the law itself. Explicitly or implicitly the question underlying sociological analysis of the criminal justice process always seems to be concerned with why the people who routinely operate the law also routinely depart from the principles of justice… What is barely touched on is the nature and role of the law itself... The assumption has been in effect that law incorporates rights for the accused, and the problem has been simply to ask why and how the police and courts subvert, negate or abuse them. (McBarnet, 1981, pp. 4-5: 4-5)
By focusing its critique on the implementation of law, rather than on formal law,
practice-oriented scholars make two assumptions about the latter: one, that norms
themselves are not at fault for the pathologies of the criminal justice system, and the
other, that these norms cannot be a useful explanatory variable for these pathologies.
The theory remains focused on practices, and there it faces additional challenges,
particularly pertaining to the explanatory factor of exogenous social realities on
criminal justice. First, power and stratification tend to yield non-falsifiable theories.
The methodological problem of operationalizing these exogenous factors makes many
one-dimensional explanations incomplete and unhelpful, as findings often disappear
when adding pertinent intervening variables. In the example of race, which occupies
much of the practice-centered scholarship in the States, the race of the victim has been
found to be more significant than that of the defendant (Hawkins, 1987); similarly, the
sentencing differences between black and white judges lose statistical significance
when additional variables, such as career trajectory prior to appointment, are added
(Welch, Combs, & Gruhl, 1988). While, theoretically, studies need not be one-
dimensional explanations and can be improved through the addition of more and more
variables, these tend to muddle the picture until nothing of value can be said about
criminal practices. The inability to provide a uniform account of “the truth” about
what happens in courts has made several scholars shy away from espousing a certain
“truth”, or dubious as to the existence of any such “truth”. One of these scholars,
Gunther Teubner, expresses his discontent with the concept of truth:
“Law and society” and “law and economics” are not doing any better if they pretend to invoke the authority of controlled scientific observation against the lawyers’ ‘mystifications’ of the social world… If epistemological constructivism does anything it is to deconstruct the claims of modern science to having privileged access to reality… Science does not discover any outside facts; it produces facts. (Teubner, 1989: 743)
Furthermore, even supposing that we can successfully operationalize “discrimination”
in the legal system, research findings that demonstrate discrimination against weaker
social group are as likely to be accepted as proof of conflict and neo-Marxist theory
(“power has prevailed”) as conflicting findings showing no discrimination (“power is
maintained through false consciousness”).
Since practice-centered scholarship uses fact-based, rather than norm-based, methods,
its policy suggestions also tend to be fact-based. This is their strength and their
weakness. Due to the insularity of the legal professional arena, policy suggestions that
ignore the nature of law and its importance for norm-centered scholars are unlikely to
connect well with lawmakers and the legal field and therefore unlikely to propel
change, unless willing to communicate better with governmental policies (Simon,
2004). Arguments about social stratification and its impact on legal representation and
due process are unlikely to produce an acquittal in court; due to the prestige and
insularity of the legal profession, they also have a hard time communicating the
message of empowering minority and indigent defendants in policymaking settings.
These critiques have brought some scholars to the conclusion that, in order to
understand courtroom phenomena they must take the language and logic of law more
seriously, albeit not as uncritically as norm-centered studies. It is this understanding
that yielded the second transition, to which we now turn.
D. Discourse-Centered Scholarship
If practice-centered scholarship raises first-order questions (“what happens in the
criminal justice system?”), then discourse-centered scholarship is, in a way, a retreat
into second-order questions (“what is said/thought about what happens in the criminal
justice system?”). This new question does not focus on the ontological nature of the
criminal process (in fact, some scholars eschew the existence of such ontological
nature, while others remain deliberately agnostic about it), but rather about its
epistemological construction: how law understands, through its particular framework,
what this process is and how it should devise it (Anderssen, 2003). Some, like Reza
Banakar, see this family of approaches as a bridge between law and sociology, and
between internal and external theories on the legal system (Banakar, 2003).
By abandoning the practice-centered quest for “the truth”, and focusing instead on the
process of creating “truths”, discourse-centered scholarship achieves two things. First,
it restores the serious approach toward formal law, whose opinions about social
problems and approaches on how to solve them become as important as those
expressed in its shadow; and second, by doing so, it does not exempt formal law from
the critical inquiry awarded to legal practices.
Discursive analysis of the criminal justice system in Anglo-American scholarship has
been inspired by the works of European theoreticians, such as Michel Foucault and,
somewhat to a lesser degree, Niklas Luhmann. While these theories differ from each
other in many ways, they share an interest in legal rhetoric as an object of research;
law’s premises, as well as its practices, reveal the way in which it thinks about
problems (in our case, criminal justice problems), and its system of logic and
knowledge producing mechanisms are the focus of the study. The two theories also
share an agreement about the incomplete nature of law and the way its consistent
techniques of developing knowledge perpetuate this incompleteness. In addition, both
theories examine what happens when law and knowledge interacts with external
frameworks, in Foucaultian theory through “conditions of possibility” for the
emergence of knowledge, and in systems theory in the form of “irritants” to, and
structural couplings with, the autopoietic, closed legal system.
Governmentality focuses, analytically and methodologically, on the connection
between power, exercised at various levels – from state power to power over the self –
and knowledge4. Foucault observes the interplay between -
a ‘code’ which rules ways of doing things… and a production of true discourses which serve to found, justify and provide reasons and principles for these ways of doing things. To put the matter clearly: my problem is to see how men govern (themselves and others) by the production of truth. (Foucault, 1991a)
The emergence of this “code” and the production of a “truth” which informs and
supports it is studied through different events, approaches and practices, emerging in
different social locations and fields, to establish the “conditions of possibility”
(Foucault, 1991a) which constitute ground for the emergence of ideas and policies.
4 Foucault’s notion of “law” was rather narrow; governmentality developed to encompass the modern concept of law, using Weberian ideas of legal rationality, in later projects drawing on his work (Burchell, Gordon, & Miller, 1991; Hunt & Wickham, 1994; Rose, 1999).
Rather than searching for deep structural motivations for policy, governmentality
attends to “superficiality, an empiricism of the surface, of identifying the differences
in what is said, how it is said, and what allows it to be said and to have an effectivity”
(Rose, 1999). Governmentality is not interested primarily in demonstrating the
ideological distortions in official “truth”, but in documenting how the investment of
power in forms of truth transforms the way subjects and social institutions become
problems for government. In regard to criminal justice policy, an inquiry from a
governmentality perspective might seek to examine how criminal justice norms, law
enforcement policies, and courtroom rituals, perceive the problem of crime and the
image of the offenders; what realms of knowledge (classicist doctrinal legal logic;
therapeutic discourse; managerialism) yield these perceptions; why some behaviors
are criminalized, and why some behaviors are extensively regulated by procedural
rules; and what techniques and strategies the system espouses to resolve what it
perceives to be the problem.
Luhmann’s systems theory is concerned with various aspects regarding systems of
communications (the unit of measurement for the theory). It examines forms and
patterns within the system, the interaction between a system, its environment, and
other systems, and the relationship between systems and semantics (Andersen, 2003).
In regard to the legal system, perhaps its most well-known aspect is its concern with
autopoiesis, the self referential and self productive nature of law, and with law’s
boundaries, self-production, and relationship with external structures.
A systems theory observation of the legal system would not be limited to self-description (which is limited to law’s understanding of its environment), but would be able to look at the relationships between the legal system and other social systems. In particular, through the concept of structural coupling, the theory would be able to examine the social conditions of law’s autonomy: the ecological dependencies of the system. (introduction to Luhmann, 2004: 47).
Law, like other systems, has a tendency to self-sustain and self-perpetuate its own
existence and its own way of thinking about problems (Banakar, 2003; Priban &
Nelken, 2001; Teubner, 1983, 1989) (Clam, 2001), by using internal dichotomies
(“legal/illegal”, or perhaps in our case, “guilty/not guilty” or “due/undue process”),
professional terms and self-referential practices. These make law an independent
entity constructed of the body of legal communications: legal documents, statutes,
verdicts, things said during court hearings, all of which converse with each other and
refer to each other. Since the law sees itself as a complete enterprise, it claims the
power to provide an understanding of every question through its own internal
resources, using the rationalization and interpretation techniques we saw earlier in
norm-centered scholarship.
Since the law does not include inherent content about factual issues involving the
cases presented to it – such as the demographics of crime, chemistry in drug cases or
psychology in criminal insanity defense cases – it leads a dialogue with other
disciplines, characterized by “normative closure” and “cognitive openness”. While
borrowing knowledge from other disciplines, the law does not use these disciplines in
their original form, but assimilates the external concepts according to law’s own rules,
to form its own categories and principles, and in the process creates an internal-legal
version of them. In this way, the law does what Fish (1991) calls “an amazing trick”:
it supplies its own legitimacy and its own content, assisted by its own versions of
some external concepts, but ultimately using internal mechanisms for their formation
and application.
The reflective nature of discourse-centered scholarship yields a unique, nonlinear
research trajectory, as presented in flowchart 3.
Flowchart 3: Discourse-centered scholarship research design
The methodological tools of discursive scholarship are similar and dissimilar to those
of practice scholarship. Like practice-centered scholars, discursive scholars are likely
to collect court decisions, work with archival materials, and analyze linguistic patterns
in courtroom proceedings. However, these methods do not serve discursive scholars in
a traditional ethnographic way; they aim to extract the stories and truths told in
different communications and texts about crime and criminal justice policy. When
analyzing archival materials, they do not seek to tell the truth about the development
of a criminal offense or a courtroom practice; they seek to identify the emergence of
ideas and their relationship to policies. Because of the importance of identifying ideas
and stories in different settings and communications, discourse-centered scholarship
about the criminal justice system does not always focus on the courtroom in itself.
Some studies, like Jonathan Simon’s analysis of the reconstruction of Lee Harvey
Oswald’s life in the commission report following the murder of President Kennedy
(Simon, 1998), focus on examining the narrative of a single event and on identifying
GenealogyCommunications/ narrative/ discourseMultiple sites
Political initiativesSocioeconomic conditionsPolicies/solutions to problemtechnologies
Definition of problemDefinition of offenderInteractions with other perceptions of problemRelevant disciplinesRelevant dichotomies
the ideological components surrounding it. However, other works in this tradition
broaden their methodological scope. Stanley Cohen’s Visions of Social Control
(Cohen, 1985), for example, identifies different currents and discourses in criminal
justice policy, marking the positivist/disciplinary/professional period and its follower,
the period of decarceration and decentralization. Rather than examining the “true”
nature of crime and the “optimal” type of criminal justice policy, Cohen examines the
different stories told over time by professionals and scholars about crime and policy.
Similarly, Feeley and Simon’s analysis of the emergence of risk strategies in crime
control (M. Feeley & Simon, 1992) demonstrate how the discourse of risk, and the
knowledge of prevention, have permeated criminal justice policy. Newer works, such
as David Garland’s The Culture of control (Garland, 2001) and Simon’s forthcoming
Governing Through Crime (Simon, 2007), also examine the criminal justice system in
its entirety, linking courtroom practices to risk-detection policies to privatized
policing to increasing prison populations.
Discourse-centered scholarship has a complex relationship with ideology. For
practice-centered scholars, critiquing the system was almost a professional
requirement (Cohen, 1988); by contrast, since discourse-centered scholarship sets out
to document the creation of, rather than espouse, ideology, one expects to find
different theories, and law enforcement plans, discussed with the same air of
detachment. Nevertheless, discursive materials are often read as offering an
“unexpected” critique of liberal reformers. While some of this could stem from
genuine critique “hidden” beneath the studied “surface” of knowledge and
communication, these readings might also reflect the disappointment of practice-
centered scholarship with the fact that its “natural” ally against norm-centered
scholarship falls short of favoring frameworks of liberal reform to frameworks of
rational choice. In any case, the complexity of theory/ideology connections can yield
two types of criticism against discourse-centered scholarship: its disconnect from
ideology, and therefore hesitation to “plunge” and offer an account of reality
congruent with a world-view about criminal justice, or its hidden commitment to
certain ideologies under a cloak of detachment and discourse analysis.
Another theoretical critique leveled at discursive scholarship might be its tendency
toward abstractions. While practice-centered scholarship can never grasp the entire set
of complex variables that account for, say, a sentencing policy, merely studying
sentences for “what they say” might be more accurate, but is less specific and
therefore, in some ways, less informative. Methodologically, discursive scholarship
often produces less specific observations on the legal system because it studies broad
systemic changes rather than focusing on one or two phenomena. That is, looking at
the forest (the broad realm of different criminologies, victimologies, actuarial criminal
justice, etc) does not enable us to say anything concrete about the trees (bureaucracy,
repeat playing, racial discrimination, etc).
Discursive theories face a significant challenge when asked for policy suggestions.
The lack of commitment to ideology is not conducive to espousing improvements.
After all, if there is no racial discrimination within criminal courts, but merely a
“discourse of racial discrimination”, there cannot be suggestions for improving it.
Foucault himself was well aware of this problem and rejected criticicisms:
The necessity of reform mustn’t be allowed to become a form of blackmail serving to limit, reduce or halt the exercise of criticism. Under no circumstances should one pay attention to those who tell one: ‘Don’t criticize, since you’re not capable of carrying out a reform’. That’s ministerial cabinet talk. Critique
doesn’t have to be the premise of a deduction which concludes: this then is what needs to be done. It should be an instrument for those who fight, those who resist and refuse what is. Its use should be in processes of conflict and confrontation, essays in refusal. It doesn’t have to lay down the law for the law. It isn’t a stage in a programming. It is a challenge directed to what is. (Foucault, 1991c: 84)
E. Breaking the Transitions’ Boundaries: Hybrid Designs
One of the ways to overcome the discontents with each of the three frameworks is to
create hybrid designs, which draw from different theoretical “families” and aim to
combine their insights. The impact of such hybrids across the norm/practice divide
has been quite remarkable across disciplines. For example, a series of studies
influenced by Packer’s Two Models of the Criminal Process (Packer, 1968) (Beloof,
1999) (Roach, 1999) provide frameworks that “play” just as well with both norm-
centered scholarship’s value balancing act as they do with organizational analysis of
courtroom dynamics. Similarly, in recent years, some norm-centered work has
incorporated fact-based realities about the criminal justice system. Israel’s new
procedural rules regulating “plea days” are an example of the system’s admission of
its reliance on negotiation and plea bargaining, possibly made better by being out in
the open rather than undocumented by law. These incorporations of fact and norm,
not without their complications and inconsistencies, are often made possible through
interdisciplinary collaboration between lawyers and social scientists.
Hybrids exist across the practice/discourse divide, too. For example, several studies
of the etiology of criminalization, or of criminal practices, rely on discourse to
understand how certain groups came to be discriminated against in criminal law and
process (Duster, 1970). Another approach acknowledges that law itself accounts for
legal practices, and examines which groups have access to discourse, and whether the
discourse of law is skewed in favor of certain legal outcomes (see, for example,
McBarnet’s 1981 classic on conviction). The advantage of paying attention to
discourse when studying practices also has a policy component; it makes us aware of
the boundaries and limitations of law, and, paraphrasing Michael King, can provide
valuable advise on how to “[persuade] the legal system to adopt their particular vision
(whether moral or political) of what is good and bad. . . and [how to justify] that
vision in ways which have meaning for law’s normative operation” (King, 1998: 13).
While each framework has shortcomings, their existence within the broader “tribe” of
scholarship interested in the criminal justice system has made for a rich tapestry of
studies, debates and ideas floating in the field, and, at least for me, a relative
newcomer, has made this an extremely intellectually exciting family to belong to. The
possibilities that hybrid frameworks offer for understanding the criminal process and
for dialogue between disciplines, and the promise of future transitions and theoretical
developments, make me wonder, in the words of Mrs. Bridges, the cook from
Upstairs Downstairs: “Whatever shall we come up with next?”
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