Judicial Narratives Research Articles

Setting boundaries between crime and rights

Abstract In 2022, the U.S. Supreme Court’s ruling on Dobbs v. Jackson overturned two precedents, thus ending American women’s 50-year-old constitutional right to abortion. Drawing on Van Leeuwen’s legitimation framework and Labov’s model of narrative structure, this study focuses on how justices (de)legitimate abortion rights in contrasting narratives in Dobbs through authorization, moral evaluation, rationalization, and mythopoesis. Specifically, we propose a theoretical model of judicial narrative strata to deconstruct the language of justices and explain how judicial narratives set boundaries between two different moral economies around abortion and realize the transformation of a conceived right into a punishable crime. Furthermore, this study suggests that in the post-Dobbs era, the justices’ narrative reconfiguration of moral boundaries may turn into social boundaries and trigger more gender segregation, which might also have theoretical and practical implications for legislation and judicial practices in other jurisdictions.

Interested Gazes and Invisible Audiences: Judicial Narratives on Sex Work

The dominant paradigm in Indian legal review is doctrinal and empirical. However, judgements of the Supreme Court of India are often couched in rhetoric and literary sources. In this regard, the law and literature paradigm has created different interpretive tools, including law as literature and literature in law. These are the tools that I utilise to explore how sex work is understood and how the ideal sex worker is conceptualised by the judges of India. Judgements on sex work are particularly conducive to a law and literature analysis as in these cases, the courts are called upon to justify legal rationality, forcing them to draw upon popular morality, best reflected in persuasive literature. Judicial dicta in four cases that have come before the Supreme Court over the span of half a century (1964–2012) are analysed to provide a cultural critique of the post-colonial and neoliberal sensibilities that underlie judicial discourses.

Darfur Model, Rwanda, and the ICTR: John Hagan’s Sociology of Genocide Continued

AbstractCore contributions from John Hagan’s scholarship on genocide are at stake in this article. First, this article examines, for the Rwandan genocide, the applicability of Hagan and Wenona Rymond-Richmond’s multi-level causal model of genocide, developed in Darfur and the Crime of Genocide. Asking how causal factors and processes highlighted in that model play out in scholarship on the Rwandan genocide, it moves toward answering the question of external validity versus historical specificity. Second, the article examines, again with a focus on Rwanda, the relationship between social scientific explanation and judicial thought. While it highlights—in line with the first author’s previous work—how judicial narratives address or select out core factors highlighted in the Darfur model, the article focuses—in line with Hagan’s Justice in the Balkans—on the question of what knowledge social science can nevertheless gain from court proceedings. An analysis of a sample of cases processed by the International Criminal Tribunal for Rwanda identifies overlaps with social science analyses, but it also highlights distinctions.

Addressing Cultural Difference in Indigenous Copyright Cases

ABSTRACT This article presents and discusses two different ways through which the Ganalbingu people (Australia) addressed cultural differences in the normative conceptualisation of artworks in a judicial setting. The analysis focuses on linguistic conduct held by the plaintiffs, their representatives, and expert witnesses in two cases discussed before the Australian Federal Court (Northern Territory): Bulun Bulun v Nejlam Pty Ltd (1989) and Bulun Bulun v R & T Textiles Pty Ltd (1998). In both cases, Ganalbingu artist Johnny Bulun Bulun lamented a violation of his copyright in two paintings. This article mostly relies on affidavits and judicial documentation, and aims to show and attempts to explain the existence of two opposed tendencies in the judicial narrative on copyright law: namely, an enforced (attempt to) assimilation of Ganalbingu culture to the Western legal categories of (intellectual) property and copyright law, however simultaneously 'insisting on difference', that is emphasising the fundamental distinctions between Ganalbingu and Western normative conception of artworks. The article particularly enlightens the impact on the Ganalbingu judicial narrative of anthropological accounts rendered through affidavits, especially in one of the two cases in which Bulun Bulun was involved. After investigating the nature and function of those accounts, it concludes that several factors can explain the seemingly ambivalent nature of Ganalbingu linguistic conduct, ranging from a ‘spurious’ nature of misappropriated artworks to forms of resistance to an unbalance of power potentially leading to unwanted colonisation.

Narrating Communist Repression in and Outside the Courtroom: The Case of Former Prison Commander Alexandru Vișinescu and its Resonance with (Societally) Available ‘Narrative Worlds’

In 2016, Alexandru Vișinescu was sentenced to 20 years in prison for his actions as a prison commander five decades earlier. This article explores the epistemic function of this “landmark case” by contrasting the judicial narrative with the narratives of the participants in the trial, i.e., the civil parties, and spectators, i.e., the university students representing the younger generation. The accounts of the survivors’ families, while showing great similarities with the judicial account, considerably broaden the setting and locus of responsibility and place Vișinescu's story in the larger context of communist repression. University students, by contrast, have very limited knowledge of the adjudicated events, reflecting their de-contextualised understanding of the past. This understanding is an expression of what I call the available narrative world, including publicly accessible narratives and discourses, but also subjective stories from the private sphere. In the Romanian context, characterised by perpetuated silences about the communist past, the narrative world available to university students is restricted and offers little resonance for the judicial narrative, making its integration into existing knowledge structures difficult. Consequently, I argue that the reception and acceptance of judicial narratives varies according to their resonance with societally available narrative worlds.

Instigating murder? Gendered inequities in the interrogations of a primary witness in a murder trial

Women’s confrontation with the justice system is often replete with inequalities and inequities of gender. Approaching the law through cultural theories that focus on gender and power opens up an interdisciplinary field at the intersections of law and culture. Through a feminist reading of a judicial narrative of a murder trial at the appellate court in Sri Lanka, this exploratory article focuses on gender inequities that surface in the narrative of a criminal law case. Narrative, or storytelling, is the site of an important intersection of literature and law. Legal narratives imagine the likelihood of the causal elements of a crime, perceived and understood from each jurist’s/judge’s subjectivity. They draw on dominant cultural codes of behavior and thinking. Thus, legal narratives become a site of contest in which ideologies are reflected, reinforced, produced, and reproduced, and a discursive space in which gender subjectivities are constructed, deconstructed, and reconstructed to “explain” a narrative representation. The exploration of judicial narratives, through cultural and feminist theoretical lenses, offers insights into the gendered constructions of agency and morality in the judgment, while its language structures and terminology identify and position the woman as both agent and vulnerable, ultimately holding her responsible for the crime. The gendered discourse that produces the woman in this judicial narrative, and how the woman is positioned in the narrative foreground the gender inequities that emerge through/in judicial interpretations.

Seeking Balance in How the International Criminal Court Communicates Prosecution and Defence Narratives to the Public

Abstract In the aftermath of atrocities, international criminal trials become forums for telling stories about the alleged crimes. These stories are presented by the prosecution and defence, before being distilled into a judicial narrative by the judges. The International Criminal Court (ICC) faces the challenge of communicating this plurality of narratives to the public, who want to know in certain terms what crimes happened, why they happened and who was responsible. The decisive answers to these questions are in the judicial narrative, but this is unavailable until many years into the proceedings. For most of the time, the ICC has to find a coherent way of presenting the conflicting narratives of the prosecution and defence to the outside world. This article argues that neither party can claim to have more accurate narratives than the other, so their accounts should be heard by the public equally. The value of communicating their narratives is not to hold them up as the truth, but to demonstrate how the legal process can accommodate competing versions of events and arrive at the authoritative narrative after hearing both sides and testing their evidence. The public may currently have a distorted impression of this process at the ICC given that the prosecution, as an organ, can amplify its narratives in public using institutional resources not available to the defence. The article recommends providing the defence an equal platform for communication as is offered to the prosecution. While this comes with some risks, such as potentially platforming denialist narratives, these can be mitigated through, for instance, contextualizing the narratives that come from the Court. In any event, the risks are outweighed by the potential benefits, including improving the perception of the Court’s impartiality and legitimacy in communities where the ICC might be lacking it most.

Rethinking Judicial Narratives: The Court of Justice and the Treaty of Rome

Rethinking Judicial Narratives: The Court of Justice and the Treaty of Rome

THE COMMUNICATIVE MODE OF MENTATIVE

The way of speaking in judicial discourse is determined by a strictly established «ritual» and the role of each participant in the process, which cannot be changed. Therefore, each litigant is recommended to have a different style of speech behavior or a certain communicative mode. A speech style generates certain patterns – ways of speaking in court. So, the article is devoted to the specific features of the communicative mode of mentative in judicial discourse, as well as the changing patterns of speech behaviour of participants in the judicial process. During the process of investigation, the following research methods have been used: linguistic observation and analysis as well as cognitive method, pragmatic analysis method, critical discourse analysis method. These methods have allowed us to establish the organization of the discursive space of judicial discourse in diachrony as well as transformation of linguistic means in the mentative. Moreover, this study sheds light on the change of patterns of speech behaviour in the mentative communicative mode. To sum up, compared to the other communicative modes in the judicial narrative, the communicative mode of mentative can be considered the least changed.

THE NARRATIVES OF INTERNATIONAL CONFLICT: GLOBAL TURBULENCE OR DESTRUCTION OF THE WORLD SYSTEM?

Problem of setting. In of the article first certain and analysed research narratives to the international conflict, which was folded in modern scientific discourse - civilization, universal, phenomenological, deterministic, rhythm of development, the world is politicians, judicial. There is an appropriate question in science: how in our time to perceive and explain the situation of international conflict - by global turbulence or destructions of the world system?Analysis of main researches. In political science tradition objectively there were different of international of the world. Narrative of «conflict of civilizations» (S. Hantington) takes a place from their global opposition in foreshortening of the historical differences, values and alternative ways of life. P. Sorokin and Q. Wright developed universal narrative of international conflicts, where attributed them to the class ofgeneral social. Other scientists (E. Luard, K. Levin, J. Rubin, D. Pruit, K. S. Kim, T. Shelling) formulated in in the second half of XX century deterministic, rhythm of development, the world is politicians, judicial narratives of conflicts on a world arena.Paper objective. Idea and purpose ofthe article: to generalize the picture ofinternational conflicts in phenomenological narrative (the essence, sources, varieties and strategies of decision); to expose objective connection of conflicts with destructions of the world system and processes of global turbulence.Paper main body. In the epoch of globalization the modern world tested cardinal changes, caused the contradictory tendencies of integration and differentiation of international processes of, which strengthens the conflict of relations. In these terms essence of international conflict is interpreted, as culmination of development of objective contradictions between the states (by the group of the states), the display of which is a collision on soil of opposite national interests, public aims and aspirations. The sources of origin and factors of determination of international conflicts do not touch private or group interests, they are anymore determined defence of sovereignty of the state, interests ofnational safety, maintainance of territorial integrity, rights andfreedoms of the citizens; but sometimes international excesses are continuation of retrograde internal policy of certain countries.In maintenance internationally-legal conflicts more frequent international spores - formal disagreements consist between international legal of, subjects which arose up on questions of debatable fact or broken right. A global danger in relation to a conflict in is the world created by international terrorism, especially with the risk of application of weapon of mass defeat. General systematization of international conflicts allows to select a few their types and classes, in particular - intergovernmental and national liberation wars, international conflicts inwardly, local, regional, global, armed or unarmed conflicts and others that. The special place in development ofconflict on the global arena of relations occupies international crisis. Its essence is more high phase of the international opposing, growth of him from confrontation to the greatest political level. Original narrative of these international collisions offers the canadian political scientist A. Rappoport, where in obedience to a form and the specific flowing characterizes an international crisis in three formats: of ’battle’, ’game ’ and ’debate’.The world political system is objective reality, result of concordance nation-states political, legal, social and economic ’status quo ’ on planetary and regional levels. But it modern character is straight predefined influence offactors of global turbulence in an international policy. An international law, in obedience to UN Charter, gives advantage principles ofpeaceful decision of international conflicts and crises, that it is fixed in bases of existence and stable functioning of world concord.Conclusions. Logic of development of conflicts and crises shows on a world arena, that the political system ofplanet has certain destructions, disfunctions and global problems which become the drivers of international conflict.

Judicial Narrative and Rape Myths: The Farooqui Case

A criminal trial is constructed around various narratives put forward by the prosecution and by the defence, which then crystallize in the narrative established by the judgment. All these narratives rely on background narrative scripts and cultural assumptions that provide stock character roles and interpretations. This paper examines the High Court's and the Supreme Court's treatment of the high-profile Mahmood Farooqui rape case, as an illustration of how prevalent rape myths inform judicial discourse in rape cases and colour the judicial narrative reconstruction of events. Both appellate Courts operate in the discursive register typically used by the defence in rape trials, where the facts of the case are presented in a manner that portrays the complainant as active and the accused as passive, while also evoking tropes of male rationality and female irrationality in the performance of consent, communication, and desire. These grammatical and rhetorical techniques are employed with respect to the prior interaction between complainant and accused, and to the complainant' post facto conduct. Together, these elements operate to reproduce the mythical constructs of 'real' rape and of the 'bad' rape victim.

Justice for Magnitsky: Staging the material document in Elena Gremina’s One Hour Eighteen Minutes

Abstract This article investigates the relationship between Russian documentary theatre and the Kremlin’s manipulation of justice and the legal system through close analysis of Elena Gremina’s One Hour Eighteen Minutes (2010). By tracing the genealogy of documentary theatre in twenty-first-century Russia and framing the play within the context of Vladimir Putin’s presidency, this article contends that the act of documentation and the privileging of the document is a vital feature of documentary theatre in Russia. It argues that Gremina’s staging of material documents is key to understanding how Russian theatre makers have employed the aesthetics of the ‘theatre of the real’ to undermine the official discourse of the Putin regime and provoke their audience to consider their own role in challenging these manipulated judicial narratives.

Travelling our way or no way!: the collision of automobilities in Australian Northern Territory judicial narratives

ABSTRACTThe regulation of driving and cars has taken on increasingly criminal guises. Apart from the role of insurance companies and motor vehicle registries, criminal law has stepped in to penalise drivers and car owners through more draconian measures. This article examines the problems that this presents for Indigenous drivers whose concepts of automobility are at odds with those of the nation state. It details the judicial narratives of this collision of automobilities in sentencing Indigenous drivers to argue that the Australian ‘settler state’ is continuing the practice of using mundane regulatory laws to dismantle and assimilate Indigenous communities.

Stepchildren’s judicial interview narratives of experiencing domestic violence

ABSTRACT Children’s first-hand accounts of experiencing domestic violence (DV) are underrepresented in research. This article is concerned with stepchildren who have experienced DV in homes where the stepfather is suspect for perpetrating a pattern of violence against mother and child. The aim of the study presented in this article was to explore the stepchildren’s accounts of experiencing DV, emphasising how children narrate their own and others actions and positionings, using a narrative method. The data used in this study consists of authentic DVD-recordings of judicial interviews, conducted in Norwegian Barnehus (Children’s Houses), with three children, two boys and one girl, ages 10–12. These interviews were gathered as evidence for courtroom hearings in relation to DV-cases and were performed by police officers with a special competence in an interviewing method called Dialogical Communication Method. Our analysis suggests that in an atmosphere characterized by the stepfathers’ power regimes, children describe frightening, dangerous, and emotionally difficult experiences which do not position children as passive “witnesses.” On the contrary, the children position themselves as agents who think, assess, and act to preserve themselves and their own integrity, while at other times acting to protect their mother as opposed to themselves. It is argued here that exploring “real world” data, namely children’s accounts of DV gathered as evidence in relation to DV court case proceedings, can give important insight into stepchildren’s experiences of violence perpetrated by stepfathers.

Marginalisation by the Court: The Case of Roma Children and the European Court of Human Rights

The paper analyses the European Court of Human Rights’ conceptualisation of children as human rights holders, using Roma children’s access to education as a case study. It argues that the Court consistently fails to treat children as agents in their own right in cases where their rights are being compromised. Roma children, as members of an ethnic / racial minority group, suffer discrimination through their segregation from other children within the education systems across Europe.They are further discriminated against by the Court because it focuses on their parents’ rights, while ignoring their independent status. Thus, the paper argues that Roma children are marginalised on account of their status as children and as members of a subordinated social group. The paper proposes an alternative, child-centered, judicial narrative, which has the potential to remedy this situation. This approach repositions children and brings them to the centre of the Court’s analysis, thus asking the Court to directly engage with them as rights holders, and potentially to strike a different balance between children’s rights, parental interests, and the State.

“In Other Words, …”: A Corpus-based Study of Reformulation in Judicial Discourse

The language of the law has been a favourite subject of investigation for both legal professionals and linguists for more than a decade now. Linguists, for instance, have paid increasing attention to the interplay of precise and flexible terms in legal drafting, and language variation across the genres of legal discourse. Among the latter, judgments have been discussed as a case in point by argumentation scholars, although the linguistic components of judicial argumentative discourse have often been overlooked. In the light of this, the aim of this paper is to carry out a corpus-based analysis of the open-ended category of reformulation markers as outstanding discursive items of judicial discourse in two comparable corpora of authentic judgments issued by two different courts of last resort, namely the Court of Justice of the European Communities and Ireland’s Supreme Court. By combining a qualitative with a quantitative analysis, the study shows that reformulation markers tend to activate a variety of discursive configurations across the two courts. Hence, data reveal that reformulation strengthens the quality of both judicial narrative, as it were – as is clear from its deployment in clarifying the normative background and specifying the factual framework of disputes – and at once judicial argument, when judges characterise, refine or grade reported arguments/interpretations or they wish to make their reasoning more solid and convincing.

“They never talk about a victim’s feelings: according to criminal law, feelings are not facts”—Portuguese judicial narratives about sex crimes

AbstractSexual violence is a central dimension of what is generally called violence against women. Historically, the law has been one of the structures that has reinforced gender inequality and legitimized male seizure of women’s sexuality within and outside marriage: legally, married women had no right to sexual freedom regarding their husbands and, at the same time, non-wed women who pressed charges against white men were accused of lying and faced victim-blaming judicial practices. Since the beginning of the 1990s, Portuguese rape legislation has changed in order to recognize that sex crimes offend someone’s right to sexual self-determination. The Criminal Code has abandoned expressions likemodestyanddecencywhen referring to sex crimes, and a controversial mitigating penalty norm based on a victim’s provocative behaviour or on the relation between the accused and the plaintiff was repealed in 1995. In addition, criminal law has evolved to a gender-neutral formulation and expanded the definition of rape adopting the “all penetration” formula. Nevertheless, the discourses of Portuguese jurisprudence and doctrine reveal stereotyped images about rape victims’ behaviour and biased evaluations against women. Therefore, the ‘law in books’ must be analysed in its relation with ‘law in action’, which is unescapably influenced by doctrine and by magistrates’ individual beliefs. This paper aims to capture judicial representations of rape, rape victims and offenders. Qualitative data are used based on 20 semi-structured interviews with 18 judges and prosecutors and two attorneys. The interviews were analysed through critical discourse analysis using a feminist approach. This article is published as part of a collection on gender studies.

Corruption and the Transnational Litigation Prisonerrs Dilemma

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.

In Defence of Culture? Racialised Sexual Violence and Agency in Legal and Judicial Narratives

There is a rich body of work in critical race and feminist theories that have criticised as Euro/Anglo-centric, and hence exclusionary, the liberal foundations of Western democratic legal systems. The basis of such critiques is that legal personhood is premised on an atomistic individual agent that purports to be neutral but in actuality reflects and maintains the hegemonic gendered and raced status quo privileging the white, middle to upper-class man to the exclusion of women and all racial and cultural Others. Some approaches, such as cultural defences in criminal law, have sought to address this via a recognition and incorporation of the difference of Other groups and their different moral norms, proclivities and circumstances. To illustrate, this discussion will draw on a cultural defence that was advanced in a series of group sexual violence cases that involved four Pakistani, Muslim brothers. While concluding that culture permeates the actions of all individuals, this article seeks to show how cultural recognition approaches in law often overlook the individual agency of those differentiated through their racial, ethnic and religious visibility. Instead of asserting the primacy of individual free will and a rational agent as the main driver of criminal behaviour cultural defences, in particular, appear to attribute criminal action to the morally aberrant traditions and practices of non-Western cultures. At the same time, such approaches to cultural recognition fail to acknowledge that culture, and not just the culture of Others, is necessarily the backdrop for all (group) sexual violence. With these points in mind, the paper ends with some suggestions for accommodating alternative narratives that seek to avoid the reductive scripts that currently appear to characterise legal and judicial musings on culture

Contaminating and collapsing Indigenous space: judicial narratives of Canadian territoriality

This paper examines the intricate connection between settler colonialism and judicial narratives of ‘Canadian’ territoriality, paying particular attention to the case of Delgamuukw v. British Columbia. The paper shows that the territorial commitments of judicial actors are often manifested through the representation of different spatial organizations. Where lower court narratives have often involved the judicial emptying and collapsing of space to deny Indigenous territorial claims, judicial narratives at the Supreme Court level, on the other hand, have served to fill those spaces with the lingering presence of non-Aboriginal populations and present territorial interests. Ultimately, the paper argues that the representations of space provided by members of the judiciary not only demonstrate that the settlement of ‘Canadian’ territory is an ongoing colonial project, but also that ‘Crown sovereignty’ itself is an entity continually being reshaped and produced by judicial actors to discount the claims presented by Indigenous people.