Justice Through Bureaucracy
| Published date | 01 December 2013 |
| DOI | 10.1177/0964663913482931 |
| Author | Marina Kurkchiyan |
| Date | 01 December 2013 |
| Subject Matter | Articles |
Article
Social & Legal Studies
22(4) 515–533
Justice Through
ª The Author(s) 2013
Reprints and permission:
Bureaucracy: The
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663913482931
Ukrainian Model
sls.sagepub.com
Marina Kurkchiyan
University of Oxford, UK
Abstract
This paper examines legal proceedings in the court of first instance for civil cases in
Ukraine. Using ethnographic methodology, it demonstrates that a large part of a court
judgement is predetermined by the institutional infrastructure and by practices estab-
lished more widely in Ukrainian society. By observing case hearings and interviewing
litigants and judges, the paper reveals that an unbridgeable gap separates a legal case, as
constructed through documentary files, from the reality of life. This affects the very
meaning of ‘evidence’ and the way that judicial decisions are made. The paper also
illustrates the benefits of viewing a lower-level civil courtroom as a microcosm of a
society, demonstrating that it provides rich insights into different layers of that society.
Keywords
Administration of justice, bureaucracy, civil procedure, courtroom ethnography,
documents, evidence, institutional interdependence, judicial decision-making, Ukraine
Introduction
The complexity of the process of judicial decision-making has been well appreciated by
sociolegal scholars. As understanding has deepened, scholars have identified an intricate
set of interactions involving multiple actors inside the courtroom (Searcy et al., 2009)
and outside it (Clark, 2010), together with artefacts (Langer et al., 2008), symbols and
rituals (Chase, 2005) and more subtle processes like the effect of the physical setting
within which a trial is taking place (Mulcahy, 2011). Together these have generated a
Corresponding author:
Marina Kurkchiyan, Centre for Socio-Legal Studies, University of Oxford, Manor Road, Oxford OX1 3UQ, UK.
Email: marina.kurkchiyan@csls.oc.ac.uk
516
Social & Legal Studies 22(4)
bulky literature describing what happens in the court room, why it happens as it does and
how the mixing of all sorts of non-legal noises (Moorhead and Cowan, 2007: 318) with
the legal ones determines what a judge decides.
This paper examines such questions via a study of the court of first instance for civil
cases in Ukraine. It demonstrates that a large part of a court judgement is predetermined
by the institutional infrastructure and by practices established more widely in Ukrainian
society. The picture that emerges from the data resonates with the one suggested by
scholars working in the ‘actor–network’ paradigm (Walsham, 1997). Legal proceedings
come into view as a process of interaction through which legal cases are constructed by
compiling a file of documents that are generated elsewhere in the society and brought to
the courtroom. When a document is added to the official file, it attains the status of ‘evi-
dence’ and becomes formative for judicial decision-making (Latour, 2010). However,
the findings presented here show that legal cases are the products not only of information
channelled into the case file through the network of interactions but also of several other
social processes. Some of the ‘information’ will have been invented solely for the sake of
the file; other potentially relevant information should be there but is missing because of
malfunctioning somewhere in the network; or it is ‘there’ in the sense that the judge is
aware of it but is prevented from taking it into official account because it has not materi-
alized in the form of a document. Together these factors transform the meanings of ‘doc-
ument’ and ‘evidence’ as descriptions of the contents of a file. In addition, they alter a
judge’s approach to his or her job and affect the way in which litigants experience law.
The research presented in this paper is drawn from the legal system in a non-Western
society. That is advantageous because the general shortage of research in non-Western
countries narrows down our understanding of the social space of law. We tend to see only
what is visible in one social order, instead of the global range of social orders. Ethno-
graphic studies from societies with greater differences would not only provide a richer
account of what law means and how it works in any particular context. They would also
highlight variables that are clearly expressed in one context while remaining latent and
therefore undetected in others.
In addition to providing an analysis of the legal proceedings, this paper is intended to
make a methodological point for the attention of researchers working in the areas of
sociology other than law. If law is bringing together information flowing through the
network that links together the whole society, it follows that the study of the law in a
court (where all that information is assembled) must yield insights into the society at
large. This is particularly true in relation to civil cases that bring stories of everyday life
into the courtroom. Each case forms a window through which a sociologist (e.g. one
interested in development, institutions or social economics) can peer into a particular
issue that may be invisible when other methods of social research are used.
Legal historians have of course long appreciated this point, and there is a
well-established tradition of using court records to draw inferences about life in society
at various times in history (Burbank, 2004; Dieter, 1994; Perry, 2006). But there seems to
be no broad equivalent for the study of contemporary society.
Legal anthropologists have also ventured to use the legal domain as a way of exam-
ining the wider social context (Greenhouse et al., 1994; Merry, 1990; Ewick and Silbey,
1998). However, the main effort of this group of scholars has still been directed towards
Kurkchiyan
517
law: the examination of the role of law in society, how people perceive it and what they
think it means. They have pored over the social context in order to spot the law in it and
then interpreted what they see. Ewick and Silbey have even claimed to be able to identify
law everywhere.
This paper makes an attempt to shift the focus. It suggests that by choosing a court-
house as a place of observation and by stitching together the information that flows into
the courtroom, sociologists can gain access to a rich stock of sociological data, both on
how people manage to negotiate the institutional infrastructure and on their values,
principles and routine practices. In addition, civil court cases frequently offer glimpses
of various aspects of microeconomics and economic development.
The approach adopted in this paper fits the metaphor of a filmed life story running
backwards, an image suggested by David Engel and Eric Steele. It begins at the last
stage, a judicial process, and tracks backward to the origin of the story as a ‘primary
event’. ‘The farther back we went the more we would find the screen crowded by appar-
ently similar matters, only one of which, the subject of our film, was destined to become a
lawsuit. It would be difficult and perhaps impossible to differentiate the nascent civil
case from the scores of similar disputes, relationships, situations, or events that
appeared on the screen.’ (Engel and Steele, 1976: 300–301). We know that the vast
majority of everyday disputes never reach the court, as Hazel Genn (2008) convincingly
demonstrates in her survey of the paths of development of disputes that emerge in
everyday life . However, an examination of the ones that do reach the court takes us deep
inside the social fabric.
In this respect, Ukraine attracts particular interest. It is a transitional country with
acute social problems and uneven public services. Together these features make for a
vivid illustration of the way in which a court depends on its social context and to test the
methodological argument. A considerable effort has been made to reform many of its
institutions, including the legal ones, in the hope of making the country recognizably
European (Aslund, 2009; Kubicek, 2005). There have been many assessments of the
impact of these reforms (Solomon, 2010), but even so the manner in which the society
actually works today remains an open question.
In the ‘Methodology’ section, the method used to collect the data will be described.
This will be followed by an account of what the public services look like from the court-
house and how they affect decision making by the judges. It will then elaborate on what
the cases can tell us about the current state of the economy. And finally, the courthouse
itself is placed under scrutiny as a public institution.
Accounts of three exemplary cases are provided in an attachment to the paper. They
are intended to illustrate the arguments developed in the paper, while also conveying the
flavour of the much larger number of cases that came under my gaze.
Methodology
This paper is based on an ethnographic study of civil cases heard in a court of first instance in
Kiev, the capital city of Ukraine, in the month of August 2010. I went to the court each day to
observe the cases that were scheduled for that day. After observing a case, I conducted
follow-up interviews with the judge and with the litigants. While talking to the judge, I set
518
Social & Legal Studies 22(4)
out to discover their interpretation of the issue, their experience with similar cases, their
impression of the litigants, their view of why the case had reached the stage of litigation
and their explanation of why that particular decision has been taken. In...
To continue reading
Request your trial