Judicial Decisions and the Sociology of Punishment: A Theoretical and Methodological Proposal

• In Event: Theoretical Explanations of Decision-making

Abstract

Courts have exceptional power in shaping criminal policy. With the wave of a pen, these judicial bodies can strike down entire statutes, outlaw punishment practices, shut down prisons, and establish new rights and procedural safeguards. Courts also have a strong communicative impact. They create, settle, and diffuse legal categories which influence legal education, doctrines, statutes, lower courts, and administrative regulations. Courts also express ideas about what crime is, who the ‘criminals’ are, and what society ought to do with them. Yet, punishment and society scholars have seldom studied landmark judicial decisions. There is no framework available to conceptualize and analyze patterns of what courts do combined with what they say about crime. In this paper, I propose a theoretical and methodological solution to this gap. I expand on Pierre Bourdieu’s theory of the state to construct judicial decisions’ material and symbolic interventions on punishment as an object of study. I then propose using qualitative comparative analysis (QCA) to capture patterns of court practices, discourse analysis to explore decisions’ discourses, and social network analysis to assess how practices and discourses combine. I illustrate this framework’s potential with an empirical analysis of the Brazilian Superior Court’s youth justice decisions.

Author

• Eduardo Gutierrez Cornelius, University of Toronto