Criminal law in action

In a context of prison inflation, how do judges exercise their profession and justify their decisions ? By implementing a critical sociology of judicial decisions, Dan Kaminski sheds light on the contradictions of judgment, at the risk of obscuring the ordinary course of justice.

I don’t think it’s necessarily a businessman’s place to be in jail for the first offense… », justifies one of the twelve magistrates of the seat of one of the two Belgian criminal courts questioned by the author in a beautiful investigation which renews the practical significance of the act of sentencing. In his work, Dan Kaminski restores what concretely means the action of condemning offenders at the same time as having to justify it (condemnation). His reasoning is located in a pragmatic sociology largely informed by the epistemological universes of Luc Boltanski (on the systems of justification within a “ quoted ” Or “ arena “, that of criminal justice in this case) and Didier Fassin (on the “ moral economies “). The study of self-reflective systems of moral justifications among professional judges to whom the State and society grant the power and duty to condemn their fellow human beings constitutes a significant advance in the field of sociology of penal practices. This pragmatic sociology is built on a solid cumulative knowledge requiring to be surpassed, from the numerous explorations of the supply system of criminal files in the penal machine, the analyzes centered on the professions and judicial professions and finally the studies of the impact penal policies linked to the political-administrative production of continuous jet standards. We will discuss ultimately of the merits of the author’s ambitious epistemological bet which seems to us to be too excessive in view of the real contributions of his investigation.

Criticism of the judgment

Before analyzing the act of sentencing and its justifications, the author took care to justify the reasons why it was appropriate to review the procedure upstream (the judicial determinants of a case) and downstream (the anticipations of the fate of the accused) to understand the justifications of criminal judges in relation to their room for maneuver. It places the latter at the center of the practical spaces of their own representations of offenses and perpetrators as well as at the heart of the range of their representations of available sanctions. These practical spaces are embedded within a system of action of the penal institution caught in the throes of a permanent tension between the symbolism of its sovereign authority over litigants and the constraint of regulating the flow of their entrances and exits under penalty of asphyxiation. He then diagnoses how two other known but remarkably systematized phenomena come together: on the one hand, the need for actors to come to terms with laws that are largely devoid of effectiveness (chapter 2, ironically titled law inaction “, demonstrates, in a devastating way, to what extent the law relatively little determines judicial practices in themselves) ; on the other hand, that of having to decide in specific cases by massively mobilizing the most heterogeneous normative resources according to processes that the sociology of work and professions, coupled with that of public policies, have made it possible to correctly understand ( chapter 3, action with law »).

To move from the professional incarnation of the penal system to the justification of the implementation of the sentence in the practice of the judges themselves, the author carefully examines what often escapes their verbalized rationalizations. He does it during this sequence where they have to cross the gateway of condemnation without leaving too many feathers, given the discomfort of an act by definition violent and definitive of which they are perfectly aware. Dan Kaminski shows all the criteria that come into play at that moment: both the importance of evaluating the defendant’s attitude, his body playing like a “ index of the quality of the litigant “, as well as the common contribution of the protagonists of the trial to respecting the ritual. He also shows how certain material and mental safeguards work among his judges “ captives » of their obligation to condemn and “ free » not necessarily doing it fairly, the balance to be found between the two often being justified by the promotion of a standard “ of fairness » not legal. L’ethos of the moral justification of the professional practice of judges is thus scrutinized. The author shows how each of them obeys a form of common sense through a rearrangement made of permanent normative compromises between the cognitive, evaluative, projective and selective dimensions of each case and individual to be judged. It turns out that a ethos of the lesser evil would inhabit them all. Formally, the judges would first feel ‘justified’ by the law, the law itself being ‘justified’ by the judges (the author mentions a act of confirmation). Faced with this or that specific case to be judged, they would then typographically align the various co-present normativities in a smoothed narrative that they would hold to themselves, allowing them to move smoothly from a paper file to a person put into practice. embodied cause, and to then choose between pronouncement of a sentence or dismissal/acquittal (a act of convenience). They would finally arbitrate between two moral repulsions, that of having to sentence or not to a prison sentence and having to quantify its duration in a security context where the pressure of severity weighing on their shoulders would never have been as exacerbated as today.

However, the diffuse humanism which is traditionally linked to the defense of the rights of the accused would be increasingly objectively hampered by the promotion populistally correct (p. 320) of penal policies encouraging them, in the name of innocent victims, to be tough on common crime, much less than on white-collar financial crime. L’ethos of the lesser evil would play like this pragmatic setback of the consensus surrounding the dominant features of a modern penal rationality that is increasingly severe with the perpetrators of property illegality. And since they must punish, if not severely, D. Kaminski’s judges would have no other resources than to refrain from doing so with hostility, or from sinking into abstraction, negativity and the atomization of case. The ethos of the lesser evil would be deduced from numerous mechanisms to neutralize their possible guilt, allowing them to… sleep peacefully.

Judging the judges ?

Without a doubt, Dan Kaminski put himself in danger in this intelligent work full of dazzling intuitions. This is also the trademark of this researcher from the Catholic University of Louvain who must be congratulated for the courage with which he tackles such delicate questions head-on. Having succeeded in pushing the judges to their limits by leading them to justify (themselves) their duty to punish, even if it meant feeling themselves judged by one of the rare researchers to have dared to take this challenge, he took this running the risk of being questioned himself. While he was very careful to ensure that his demonstration never went beyond the guidelines of a critical sociology approach to penal practices which cannot be reduced to a banal study of sentencing nor ever slip into the register of a wild psychoanalysis of punitive impulses, doubts nevertheless remain about the enterprise and its conclusions. Different objections can be addressed to it. For example, we can wonder if the author really controlled his own axiological neutrality and always knew how to resist the seductions of empathy shown towards his witnesses. Thus, when he mobilizes theological metaphors to depict figures of unjust sinners into righteous servants of God (p. 313), an attitude which seems to us to push the analogies a little far.

Conversely, we can wonder about the sociological lightness he shows in the face of procedural legality, such as this passage where mitigating circumstances are mentioned as so manysoftening agents of the system (p. 259). A damaging pirouette which gives the impression of a secondary dimension, reducible to a simple effect of evacuation of flows specific to the sociology of organizations. Because, in view of the long history of the codification of the tension between principles of order and freedom, there is no doubt that the contributions of a more demanding and rigorous procedure on the chapter have constituted democratic ‘progress’ against the omnipotence of judges arbitrating between contradictory interests of the accused, the State and the victims. Finally the reader comes to wonder if the empire of the justification within the enclosed and enclosed city of criminal justice would not constitute an epistemology that is a little too oversized to support such an investigation. Especially since the author could have unwittingly been the victim of a methodological bias likely to disqualify its very significance. Indeed, the reading that criminal judges do of D. Kaminski about their voluntary captivity by motivating their practices (p. 29), can only be valid by definition for those of them who have agreed to submit to his enterprise, without however being able to generalize the results to their entire corporation. Because nothing is told to us of the silence of those who undoubtedly declined his invitation, nor of their motivations with regard to the research, nor of their possible absence of mood regarding the act. to condemn.

Now, without giving in to any psychologizing regression on this subject, we wonder, all things considered, whether the summoning of an epistemology that is less fashionable but better adapted to the author’s corpus would not have been more satisfactory. We are thinking in particular of the work of Jon Elster who, in line with Weberian systems of rationality of actors required to account for their actions in terms of value or purpose, questions subjects akrasic that is to say, agents acting against their own judgment about what they have to do, including in their professional practices. More modest, the contribution of this intimate sociology of experience would have seemed more fruitful to us than those of “ economies of conventions » and “ moral economy » to account for the act of those who, endowed with the legitimacy to condemn their fellow men to a punishment, would always retain the freedom to justify it to external analysts or not to do so, from the moment they do not ‘would have no qualms about it.