The Law Multiple: Judgment and Knowledge in Practice by Irene van Oorschot (2021)

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  • 1 Flinders University, , Australia
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Irene van Oorschot (2021) The Law Multiple: Judgment and Knowledge in Practice Cambridge University Press, 250 pp, ISBN 978-1-108-49480-9, £70 (hbk)

This book is about law, though it is not just for those interested in the sociology of law or socio-legal studies. Mixing sophisticated theoretical insight, sometimes deeply theoretical, and empirical findings The Law Multiple opens up many questions (and reflections) about the nature of law and/in society, especially the impossibility of their complete disentanglement. From the outset, the book resists the pull to objectify, reify or concretise law (and society); it ‘commits itself to an understanding of social and legal life as practical, and occasionally messy business: always ongoing, never not concrete, irreducibly multiple’ (p. 1), which as we shall see means the book is as much about social research and knowledge as about law.

It is composed of seven chapters, each with a different mission and route into law and society. Each chapter offers an image of law and its functionality as shifting, depending, in part, on who (including which profession, social scientist or lawyer/judge) is providing an account of law, or aspect thereof. Chapter 1 sets the orientation of the book and introduces the key arguments and observations. Chapter 2 articulates the complexity, enigmatic, even chameleon-like, nature of law by relying on Kafka’s brief story, ‘Before the Law’, in his unsettling book The Trial. Here van Oorschot draws out the conundrum hinted at in the opening pages: as soon as the social scientist relies on conceptual tools to talk about law, doing ‘justice to the concrete noise and troubles present in legal practices of case-making and sociological practices of case-making’ is lost (p. 20). The chapter canvasses conceptions of law and society (often grand theories) offered by Kelsen, Weber, Bourdieu, Black, Marx, Bourdieu, Hart and Latour. As these (legal/social) theorists attempt to answer the question ‘What is the law?’ (p. 36) they often cannot give ‘much leeway to understand concrete instances of doing, using, mobilizing, challenging, thwarting, resisting, or even ignoring law’ (p. 36). The prioritisation of abstraction and purification over concrete practices in the realms of law and science has also meant the disavowal of emotion that is enmeshed in the social relationships and everyday interactions constituting the work of courts, judges and other legal personnel (Bergman Blix and Wettergren, 2020; Roach Anleu and Mack, 2021). Renewed emphases on concrete practices and wariness about abstract concepts are liberating when approaching law and society; however, a lingering question remains: what makes a practice legal, or how do the concrete practices become defined as law? This starts to be fleshed out in the discussions of the courtroom, the legal rule, and the file highlighting the interactive, interpretive, performative and narrative work that produces them. Chapter 2 also sets out the design of van Oorschot’s ethnographic research, which included interviews, conversations, observations and documents, and involved shadowing 14 lower court judges in a Dutch court, reading and discussing with them about 250 of their cases, as well as participating in other events with judicial officers. For the reader not so familiar with the Dutch legal system, more detail on its structure and organisation would have been useful.

Chapter 3 tackles a frequent issue as social researchers and judicial officers seek to engage with each other but start from very different worldviews or interpretive frameworks. A core issue is ‘the relation between legal practices on the one hand and their social-scientific description and the other’ (p. 64). It dissects a controversy surrounding Dutch research on sentencing patterns that suggested some defendants are punished more harshly than others. This is a fairly standard finding in sentencing research that typically relies on large administrative data sets, which provide the basis for inferences that the system is weighted against particular race or ethnic groups – or, more pointedly, that judges are biased and rely on stereotypes and shortcuts, thereby systematically disadvantaging already marginalised defendants (Tata, 2020). Dutch judges expressed frustration, wondering whether the researchers really understood the complexities of judicial decision making. The chapter offers a fascinating discussion of the contrast between judicial and sociological conceptualisations of judicial practices, and how judges make, or perform, their own realities. It offers a telling conclusion: ‘racism does not have to be present in the heads of individual actors for a system to work out in racist ways’ (p. 82).

Chapter 4 deals with remorse, which psychologists term a retractive, moral emotion and which has a curious role in sentencing (Rossmanith et al, 2018). Judges can (even must) consider the defendant’s remorse (or lack of it) when determining penalty. This means that defendants are expected to demonstrate or display remorse in the courtroom and beyond. How remorse is performed, narrated, recognised, interpreted and assessed is neither clear nor linear: ‘remorse is far from a straightforward “sign”’ (p. 96). The chapter dissects the ‘storied texture of remorse: how, in other words, the interaction with the defendant in court allows attributions of remorsefulness, and how judges draw on narratives themselves to make sense of individual cases, including defendants’ demonstrations of remorsefulness’ (p. 93). Close analyses of cases in court and case-specific conversations with judges show how they draw on their own sense making and typification, in and out of court, as part of their judicial craft, which is much more layered than the crude notion of stereotype could ever suggest. Even so, ‘facing either drug-addicted defendants or domestic abuse charges, judges tend to weigh and prioritise defendants’ demonstrations of remorse differently’ (p. 86).

Interestingly, in her court observations, van Oorschot was permitted to sit at the judges’ table ‘properly attired in robe and bib’ (p. 94; also p. 61). I cannot imagine a social researcher being permitted to do this in Australia (or any other common law country), and I wondered how she navigated ethics approval in order to do this. Here is a great opportunity to reflect on participant observation as a research strategy: the idea of the researcher in costume. I hope an analysis of this juncture in an article on research method will be developed. The chapter provides insights for the ‘discovery’ of other emotions, especially directing attention to interaction and relationships, rather than seeing emotion as only embedded within individuals and the interconnections, even slippages, among the performances of remorse and the appraisal of the emotion and the performance.

Chapter 5 deals with an object which is both the product and producer of case making: the case file; a document essential for the visualisation of a case. In an era when many courts are shifting (with varying degrees of pace) to digitisation and replacing paper files this chapter made me stop and think about what this means for the whole court as a workplace, not just in terms of technical functionality. ‘A case file never speaks for itself […]’, so the multiple practices, notations and the sifting and sorting of information bring the case to life – at least, an image of the case (p. 138). This theme continues in Chapter 6; the case file is ‘a central artefact in the production and contestation of the facts’ (p. 145). It also tracks its own history as additions (notes, other documents/reports, stamps, signatures) are dated, and the file moves on physically, spatially, temporally and emotionally.

The closing pages of the book develop the idea of law as a hyper-object, first mentioned in Chapter 1 but not returned to until Chapter 7. The law is multiple, complex, multi-faceted, ever changing, never static, and not amenable to a single theory or overarching discovery of its cause or essence. ‘Adopting the productive fiction of the hyper-object, we face a law multiple that is a many-scaled thing, parts of it too big to fully see, other parts immediately available, a thing that has no center nor definite boundaries, a distributed and tentacular thing’ (p. 178). I wondered whether the same could be said of ‘emotion’?

The Law Multiple is written in a very personal style; van Oorschot speaks directly to the reader, explaining her thinking, rationale and position. The subject matter is complex, and at times I found the prose challenging and dense, especially in Chapter 2, the longest chapter. Nonetheless, the book made me stop and think, and did not dilute the force of its ideas. It offers an outstanding and very contemporary take on law and/in society, making it a refreshing new addition to the field. The Law Multiple will be of interest to social scientists, socio-legal scholars, legal professionals and anyone interested in the work of judges and courts, including those in the growing field of emotions and law.

References

  • Bergman Blix, S. and Wettergren, Å. (2020) Professional Emotions in Court: A Sociological Perspective, London: Routledge.

  • Roach Anleu, S. and Mack, K. (2021) Judging and Emotion: A Socio-Legal Analysis, London: Routledge.

  • Rossmanith, K., Tudor, S. and Proeve, M. (2018) Courtroom contrition: how do judges know?, Griffith Law Review, 27(3): 36684. doi: 10.1080/10383441.2018.1557588

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  • Tata, C. (2020) Sentencing: A Social Process – Rethinking Research and Policy, Cham: Palgrave.

  • Bergman Blix, S. and Wettergren, Å. (2020) Professional Emotions in Court: A Sociological Perspective, London: Routledge.

  • Roach Anleu, S. and Mack, K. (2021) Judging and Emotion: A Socio-Legal Analysis, London: Routledge.

  • Rossmanith, K., Tudor, S. and Proeve, M. (2018) Courtroom contrition: how do judges know?, Griffith Law Review, 27(3): 36684. doi: 10.1080/10383441.2018.1557588

    • Search Google Scholar
    • Export Citation
  • Tata, C. (2020) Sentencing: A Social Process – Rethinking Research and Policy, Cham: Palgrave.

  • 1 Flinders University, , Australia

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