The Legal Case File as Border Object: On Self‐reference and Other‐reference in Criminal Law
| DOI | http://doi.org/10.1111/j.1467-6478.2015.00723.x |
| Date | 01 December 2015 |
| Published date | 01 December 2015 |
JOURNAL OF LAW AND SOCIETY
VOLUME 42, NUMBER 4, DECEMBER 2015
ISSN: 0263-323X, pp. 499±527
The Legal Case File as Border Object: On Self-reference
and Other-reference in Criminal Law
Irene van Oorschot* and Willem Schinkel*
What do case files do? With help of an ethnographic study on the care,
maintenance, and use of legal case files in a Dutch, inquisitorial
context, we work through Latour's and Luhmann's conceptualizations
of law. We understand these case files as enacting and performing both
self-reference and other-reference. We coin the term border object to
denote the way the legal case file becomes the nexus between two
worlds it itself performatively produces: the world of `law itself' on the
one hand, and the `world out there' on the other. As such, our discus-
sion offers clues for a partial reconciliation of Latour's and Luhmann's
conceptualizations of law: while Luhmann's insistence on other-
referential operations assist in showing how law forges an `epistemic
relationship' with the realities it seeks to judge, Latour's concentration
on the materialities of epistemic practices assists in situating these
other-referential and self-referential operations.
INTRODUCTION: CASE FILES MATTER
To start with a truism: there is no legal case to be made, won, or be decided,
without a case file. In other words, the legal case file is nothing short of one
material-semiotic precondition for law to perpetuate itself. Other objects and
actors need to be in place for law to maintain itself: documents, persons,
buildings, law books, archives, judges, prosecutors, defendants, litigating
parties, courthouses, and so on. But they can only be mobilized once
something has inserted itself into law's ambit; that is, once a folder starts
growing, compiling and coordinating documentation, travelling between
499
*Department of the Social Sciences, Erasmus University Rotterdam, P.O.
Box 1738, 3000 DR Rotterdam, The Netherlands
vanoorschot@fsw.eur.nl schinkel@fsw.eur.nl
The authors wish to thank the anonymous reviewers for their thoughtful comments on this
piece.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
offices, all the while allowing its users epistemic access to the persons and
events in ques tion. This obs ervation is t rue both conce ptually and
empirically. Conceptually, this observation rings true in particular in those
jurisdictions where the public prosecutor is in charge of collecting and
documenting all relevant evidence in criminal cases. Unlike common law
settings, continental jurisdictions tend to be less `phonocentric'
1
in their
reliance on a shared, official dossier that guides the oral proceedings in
court.
2
These dossiers allow all parties access to the event and person in
question; in a very real sense, case files constitute these persons and events.
A `defendant', for instance, does not exist as such before a legal case file
starts to build up legal references to a person outside the law that thereby
becomes, within law, a person of that very particular type called `defendant'.
Empirically, too, case files matter: court workers, including admini-
strative personnel, clerks, and judges are acutely aware that an incomplete,
or worse, missing file may have quite far-reaching consequences. Witness
this distraught-looking judge, storming into the administrative offices of a
Dutch criminal court, inquiring where for heaven's sake her files are. Her
entry initiates a flurry of activity: one administrative worker searches the
file-room; another calls the public prosecutor and requests copies, and yet
another checks the court's digital registration system for digital copies of the
documents in the file. The judge is now afraid she will have prepared her
cases for nothing: not only has she spent half a day making summaries and
preparing her line of questioning for the defendant in court, she also fears
these case may have to be adjourned and anticipates savvy lawyers insisting
on those pesky statutes of limitations . .. What is there to decide on without a
case file?
In the actor-network theoretical sense of the word, then, legal case files
have all the qualities of an actor: they `modify a state of affairs by making a
difference'.
3
But how does the file acquire that `agency', what kind of
agency does it exercise in the mobilization and effectuation of law, and how
does it perform its `truth-function'?
4
In this article, we move away from both media-historical accounts of legal
documents and artifacts, as well as accounts of the case file's role in situated
work practices, and ask the more general question how exactly the legal case
file mediates a `state of affairs' and constitutes a variety of objects and
persons it references as `legal' objects and persons. Specifically, we look at
500
1 J. Derrida, De la Grammatologie (1967).
2 See the wonderfully detailed comparative studies by, for instance, M. Damaka, The
Faces of Justice and State Authority: A Comparative Approach to the Legal Process
(1986).
3 B. Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (2005)
71.
4 See, for the notion of `truth-function', C. Vismann, Files: Law and Media Technology
(2008).
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
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