Culture, Milieu, Phenotype: Articulating Race in Judicial Sense-making Practices
| DOI | 10.1177/0964663920907992 |
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| Author | Irene van Oorschot |
| Subject Matter | Articles |
Article
Social & Legal Studies
2020, Vol. 29(6) 790–811
Culture, Milieu,
ª The Author(s) 2020
Phenotype: Articulating
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Race in Judicial Sense-
DOI: 10.1177/0964663920907992
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making Practices
Irene van Oorschot
Erasmus Universiteit Rotterdam, the Netherlands
Abstract
In this contribution, I trace the ways practicing judges articulate, as well as challenge,
race. Drawing on an ethnography of everyday practices of adjudication and sentencing in
a Dutch, lower Criminal Court, and working with Stuart Hall’s conception of articula-
tion, I show how judges draw on three articulations of race – that of culture, the social
milieu, and the phenotype – to make sense of individual cases. Emphasizing how and
where these articulations of race serve local, pragmatic goals – of individualized sen-
tencing, or of identification of the suspect – I also pay attention to their local imprac-
ticalities, that is, where these registers are challenged or resisted. In so doing, I do not
only understand race as multiple but also situate race as a pragmatic and local accom-
plishment with its own uses and instabilities.
Keywords
Culture, disparities, legal practice, milieu, phenotype, race, sense-making, sentencing
Judging with ‘Difference’
‘To treat like cases alike’: this surely is modern law’s most worthy and commendable
goal. Its realization, however, has proven elusive. Scholars working within Critical Race
Theory have pointed to the ways in which the law is a powerful instrument in the
perpetuation and legitimation of racial forms of dominance and oppression. The notion
Corresponding author:
Irene van Oorschot, Humanities Department, Erasmus Universiteit Rotterdam, Nieuwmarkt 1a, Rotterdam
3000 DR Rotterdam, the Netherlands.
Email: vanoorschot@euc.eur.nl
van Oorschot
791
of intersectionality, arguably the most well-known notion to come out of critical race
theory, underlines the importance of apprehending interlocking forms of oppression
(race, gender, class, and so on) in relation to each other, as legal categories tend to
disassociate certain protected classes of individuals from wider social contexts and
disaggregate the individual into separate identities (Crenshaw, 1989; Delgado, Stefancic
and Harris, 2012; Razack, 1994). Critical legal scholars, then, have made important
strides toward understanding how inequalities structure access to and treatment by the
law, how legal forms of understanding and narrating reality silence or gloss over racial
inequalities (Razack, 2000), and how the very notion of a liberal (autonomous, isolated)
subject is itself a racialized fabrication (Eze, 1997; Mills, 2017). Meanwhile, statistically
oriented social scientific approaches to racial discrimination in legal practices point to
the continued effects of race on sentencing outcomes (see e.g. Lammy, 2017; Rhodes
et al, 2015; Wermink et al, 2012). Taken together, these various approaches demonstrate
that race persists – even though it too, is frequently an object of disavowal (Bonilla-
Silva, 2006) or active forms of silencing, forgetting, and unknowing (Stoler, 2008;
Vimalassery et al., 2016).
For practicing judges, I learned doing fieldwork among Dutch lower Court judges, the
promise of equality before the law raises problems of a more pragmatic kind. Bringing
into practice the ideal of individualized sentencing (Hutton, 2014), judges aim to account
for and reckon with the unique ‘person of the defendant’ (persoon van de verdachte) and
the unique circumstances of the offense. In that context, the question of equal treatment
becomes an acute pragmatic problem, for how do judges ensure equal treatment in
different cases? What makes a unique person similar to, or different from, the next?
In that context, the promise of equality before the law raises the question what meanings
and consequences judges may attach to what they call ‘differences’ (verschillen).
Emphasizing that they are not ‘stuck in an Ivory Tower’ and ‘in touch with society’,
the judges I encountered liked to emphasize that the courtroom is a space in which they
are confronted with different and at times unfamiliar lives, habits, attitudes, utterances,
and courses of action. ‘We see people from all walks of life, from all cultures, from all
backgrounds’, one judge exclaims, ‘and we try our best to deal with all of that’. Neither
‘difference’ nor ‘diversity’ are neutral descriptors, of course: both evade and suppress
the realities of race both ‘before’ and ‘under’ the law (Coates, 2003). Indeed, upon closer
inspection, this seemingly innocent notion – ‘difference’ between defendants, or
between defendant populations – proved to be pregnant with multiple meanings: judges
tended to refer to ‘different cultures’, ‘different social milieus’, and, in the case of ethnic
descriptors in police reports, simply ‘different looks’. At the same time, these forms of
speaking about ‘difference’ were not without their interruptions, doubts, and hesitations.
‘It’s just, you don’t always know what’s going on’, one judge sighs when commenting on
some defendants’ non-committal, seemingly indifferent demeanor in court, ‘Is it because
of their culture? Or are they just intimidated or scared?’ Or take another judge, reflecting
on a description of the suspect’s appearance as ‘Turkish’: ‘I mean, I sort of have a picture
(beeld) of a typically Turkish man in my head, but I wonder how it got there’.
In this contribution, I unpack this pragmatic category of ‘difference’, shedding light
on the continuing presence of race in judicial sense-making and decision-making prac-
tices. Showing how and where practicing judges order and classify defendants in
792
Social & Legal Studies 29(6)
implicitly or explicitly racial terms, I seek to render visible ways of speaking, as well as
not speaking, about race as they take place among practicing judges. In situating my
account in the Netherlands, I aim to contribute especially to accounts of the way judicial
actors, in the absence of an explicit race-discourse, make sense of and articulate race in
their everyday practices of adjudication and sentencing. The Dutch context is especially
instructive in this regard. In the Netherlands, the denial of legacies of colonialism and
slavery is particularly tenacious (Wekker, 2016). Emphasizing its own enlightened and
tolerant character, the Dutch self-conception quite readily projects racism historically,
onto the scene of the Holocaust (‘never again’), spatially, onto the United States (‘racism
is an American problem’), or demographically, onto the lower classes (C
¸ ankaya and
Mepschen, 2019; Goldberg, 2006; Lentin, 2008; Slootweg et al. 2019). Tracing these
‘afterlives’ of race, then, is not only an attempt to situate the articulation of race within
judicial practices but also a method of writing against the grain of color-blind, Dutch
self-conceptions (see especially Essed and Hoving, 2014; Wekker, 2016).
In the following pages, I first discuss approaches to race in legal contexts. I am
especially concerned with the contrast between approaches that take the object of race
and treat it as an outcome or product of legal forms or practices and approaches that
situate race as something evoked and produced within legal practices. After these the-
oretical notes, I discuss the ethnographic research on which this piece is based and situate
this fieldwork in the Dutch context specifically. Staying with the way judges make sense
of individual defendants with help of three different articulations of race (Hall, 1986),
this study contributes to an understanding of judicial actors as implicated in the produc-
tion and reproduction of (various forms of) race. Indeed, in tracing these articulations of
race – which are also, as I show, partial disavowals of race – I wish to highlight two
dimensions in particular: first, the multiple registers in which racial difference is evoked;
and second, the unstable and suspect character of these registers in judicial practices, that
is, the ways different conceptions can be challenged, undermined, or rearticulated in
court. In so doing I treat race not as a stable presence in these practices but rather as – as
Du Bois suggests – a ‘group of contradictory forces, facts, and tendencies’ (Du Bois,
1940: 67). Then, I move on to a discussion of three commonly used articulations of race:
first, the culturist register, second, the register that highlights the social milieu, and third,
the phenotypical register. Concluding, I argue that we have to emphasize not only on
multiple character of articulations of race in judicial practices but account for their local
instabilities and complexities as well.
Race and the Study of the Law
While space does not permit me to provide an exhaustive account of the various
approaches to race and the study of the law, I wish here nevertheless to draw out two
approaches, showing how the notion of articulation may contribute to the study of legal
actors’ perceptions and accounts of ‘difference’.
In the introduction, I briefly referred to studies of sentencing disparities. These tend to
privilege stable measures of race in its operationalization of difference and generally aim
to gauge whether this variable is correlated with sentencing severity (e.g. Lammy, 2017;
Rhodes et al., 2015; Wermink et al, 2012). Studies of this kind are absolutely crucial to
van Oorschot
793
demonstrate racial discrimination across the board, yet, as a consequence of their chosen
statistical methods, they do...
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