Sociologies of judicial decision-making practices often concentrate on verbal interactions in Court. Dramatizing the encounter between impersonal, abstract ‘Law’ and the individual defendant, these settings have attracted significant sociological attention and wonder. But what about the pretrial work that takes place backstage? And what about the legal case file?
Case files have not received a wealth of attention in socio-legal studies and sociologies of law. There are a few reasons for this neglect – some of them good, some of them perhaps less so. One of the reasons documents like the legal case file may not have received much attention is that they, like any infrastructure, tend to be rather invisible: sunken into the ‘background’ of everyday action, their crucial role in shaping judicial work may remain invisible, unremarkable.
Another reason for this neglect may be practical: it is rare for researchers to acquire full access to the work practices that take place backstage, in the Court’s hallways and offices. And of course, that is precisely where the files are!
Last, case files are also – for lack of a better word – boring. In contrast with the highly charged and affectively textured interactions in court, the case file makes a rather mundane impression. Sure, traces of the highly emotional events that tend to make up cases are certainly present (in witness or victim descriptions), but as an object it does not exactly spark the sociological imagination. it is for this reason that Bruno Latour quips that documents may be the ‘most despised of ethnographic objects’.
Still, this neglect hampers our understanding of judicial practices. Case files are crucial to the practical and ‘epistemic’ delineation of the case. In other words: quod non est in actis, non est in mundo (what is not on file, is not in the world), as far as many judges are concerned. As such, case files engage in an operation we could call ‘documentary doubling’, a notion I and a co-author develop here: doubling the world outside of the judge’s reach, it translates the event and the defendant to produce a highly specific ‘judgment-compatible’ world:
‘the case file features as a specific technique to produce a singular event, and bring into being a hybrid subject, located at the inter-section of rights and legal obligations, of morality, and the sphere of (calculable) risks and rehabilitation.’ (522)
In so doing, these operations ‘constitute forms of documentary doubling in that the events and actors referenced are translated into legal communications and are thereby “doubled“.’ (p. 522)
What are the consequences of such an approach to legal case files? Well, it means we have to take them seriously as actors that delineate the case and shape the world the judge is deciding on. It also means we can raise critical questions about what actors may or may not contribute to that world. Or we may wonder what forms of evidence, documents, and statements may be officially folded into the file, and which may not. Opened up is also space to attend empirically to contestations of the particular way the file has shaped and constructed this particular, judgment-compatible version of the world. Doubling, we argue, is a practical operation, but it is also an operation of power: the power to define and distinguish between the legally relevant and irrelevant, that which belong to the case, and that which does not.
But the case file is not just a container of texts, a vehicle for the transmission of information. It is also, and crucially, a material and temporal object. In my next blog posts, I elaborate on what that means!