Book Review: Conviction: Law, the State and the Construction of Justice

AuthorRoman Tomasic
Publication Date01 Sep 1982
DOI10.1177/000486588201500312
SubjectBook Reviews
190 BOOK
REVIEWS
(1982) 15 ANZJ
Crim
sometimes
heated
discussion as to
the
legal implications of particular criminal
activities and courtroom procedures,
the
book will be invaluable. They,
the
general
public
and
the
students
may wish to go further; Principles
of
Evidence
will
undoubtedly
assist
them
in finding
their
direction.
JOCELYNNE
A
Scurr
Sydney
Conviction: Law,
the
State
and
the
Construction of Justice.
Doreen
JMcBarnet,
London, Macmillan (1981) vii +182pp (UK) £20, A$34 approx.
This is an
important
book and essential reading for anyone
interested
in
the
role
of
the
courts
and
the
use of legal rules in
the
capitalist state. In a masterly analysis
McBarnet succeeds in progressing considerably beyond
the
many illuminating case
studies of
the
lower courts that have
appeared
since
the
early 1960s such as those of
Blumberg, Hogarth, Eisenstein and Jacob, Levin, Mather and
Feeley,
to
mention
only a few. By combining interactionist methods with a serious analysis of
the
rules
that
have often only served as a backdrop in earlier sociological studies, McBarnet
provides
new
insights into
the
tired old contrast or dichotomy
between
the
law in
the
books and
the
law in action. Whilst in
the
past use ofthis dichotomy has
tended
only
to tell us
that
there
is a gap
between
these
two poles, this study makes asignificant
contribution by seeking to precisely analyse
the
complex nature of this gap as well as
by offering some disturbing explanations of
the
crucial significance of
the
manner
in
which legal rules
are
used
and
interpreted
as well as
the
contrast
that
this creates with
dominant legal ideologies, such as
the
rule of law. This is
the
central
thrust
of
McBarnet's thesis. In
her
own words,
her
prime
concern is to show us how
the
legal
system "
...
can
reproduce
the
ideology ofjustice while denying it,
and
how
the
state
through
law can give class-biased ideas
'the
form of universality'" (p 167).
In
the
relatively short space of less than 170 pages of text,
McBarnet
looks at
the
structure
of legal proof, police powers and
the
production of evidence, guilty pleas,
the
nature
of strong
and
weak cases,
the
duties of
the
prosecutor
and
the
defendant's
rights
during
the
trial,
the
two tiers of justice of
the
upper
and lower courts as well
as providing amost suggestive conclusion.
The
scope of
her
discourse is
quite
remarkable given
the
fact that it began as a study of 105 lower
court
cases observed
by
her
in Glasgow.
Her
conclusions have implications far
wider
than
this
rather
modest
empirical basis might suggest. This is because
her
analyses are constantly
sought to be placed in a wider structural context. Moreover,
McBarnet
also seeks to
grapple with
broader
jurisprudential
themes
than are customary in lower court
studies.
These
include
the
notion of legality which theorists such as
Nonet
and
Selznick have sought to analyse and
the
idea
of
the
rule of law most recently examined
by British theorists such as E P Thompson. Inspiration for this book also comes from
works such as
that
of Pashukanis and
frequent
contrasts are also
made
with earlier
British studies such as those of Bottoms and McClean, Baldwin
and
McConville
and
Carlen.
McBarnet's analysis takes us considerably beyond these earlier pathbreaking
studies primarily
due
to
her
emphasis upon
the
fact that although
the
"trial is
the
focal
point
of
the
ideology of democratic justice" (p 79), it is however
the
product
of a far
more
important
process that has taken place outside
the
public eye. However,
the
ideological significance of
the
trial is
that
it is
the
"showcase ofjustice" (p 80) although
the
conviction of defendants becomes
the
key social function it performs. This is

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