Temporality and Criminal Law Adjudication\u2019s Multiple Pasts

Abstract

This paper attempts to articulate a novel understanding of factual construction in criminal law adjudication through temporality. Arguing that adjudication is generally invested in the construction of pasts, the paper claims that different forms of judgment can (a) be distinguished by the theory of time upon which they are contingent (b) produce qualitatively different types of pasts in their factual construction of ‘what happened’. A form of adjudication informed by Kantian temporality, which the paper characterises as the conventional ‘abstract judgment’, is problematic for the reasons that it produces certain types of pasts in which subjects of law are problematically constructed. A different, though infrequent from of ‘concrete judgment’, informed by Gadamerian–Bergsonian temporality, produces qualitatively different types of pasts in its construction of ‘what happened’, instead favourably producing legal subjects which are situated and constituted. The differences between these antipodal forms of judgment, understood through temporality, are important for both normative ascriptions of responsibility and to illustrate what is ignored factually in conventional forms of criminal legal adjudication.