Towards an understanding of judicial denunciation: Relating theory to practice by comparing the perceptions of English and Danish lower court judges when sentencing minor theft offenders
| DOI | 10.1177/1748895812441942 |
| Published date | 01 February 2013 |
| Author | Max Lowenstein |
| Date | 01 February 2013 |
| Subject Matter | Articles |
Article
Criminology & Criminal Justice
13(1) 21–35
Towards an understanding
© The Author(s) 2012
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DOI: 10.1177/1748895812441942
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Relating theory to practice
by comparing the perceptions
of English and Danish lower
court judges when sentencing
minor theft offenders
Max Lowenstein
Bournemouth University, UK
Abstract
The influence of judicial denunciation during sentence summation and how this equates with wider
criminal justice attempts to change offending behaviour through re-education and re-moralization
appears to be important. However, there is no coherent academic agreement as to what judicial
denunciation means and how this may relate to its interpretation and application by judges in
practice. Through a small comparison of judicial perceptions in two distinct legal cultures there
were common hints provided as to what denunciation may mean when applied to theft offenders.
However, the limited data gathered were insufficient to develop a firm link to any one specific
sentencing principle, policy or social theory. It would appear that if we are to better understand
judicial denunciation during sentence summation we must master both the plurality of theoretical
understandings and philosophical thoughts available and gather significantly more qualitative data
in order to test what judicial denunciation may mean. The comparison of England and Denmark
was only a slight nudge in the right direction, but it remains an attempt nonetheless to keep the
ball rolling and inspire future academic enquiry into this important research area.
Keywords
Comparative, denunciation, judiciary, sentencing, theft
Corresponding author:
Max Lowenstein, Bournemouth University, C110, Christchurch House, Talbot Campus, Fern Barrow,
Poole, BH12 5BB, UK
Email: mlowenstein@bournemouth.ac.uk
22
Criminology & Criminal Justice 13(1)
Introduction
Once the trial has reached its conclusion the judge must decide upon their choice of
sanction and then communicate how they have reached the decision to the offender. This
communication may well involve the public condemnation of the offender for what they
have done wrong and reflect upon the harm that they have caused. Over time many defi
nitions of denunciation have emerged. The main and modern sense dates from the 19th
century and includes both the public condemnation of someone or something and the
action of informing against someone (Oxford Dictionaries, 2011). This of course can be
contested, but it was the condemnation of the offender by describing their wrongdoing
and it repercussions on themselves and wider society that appeared to be the main sense
according to the Danish and English judges interviewed for this research. By gathering
and comparing judicial perceptions, academics can investigate how denunciation is
being interpreted and applied in legal practice. They can then attempt to understand how
it may relate to sentencing principles, policies and social theory. This research primarily
attempted to explore the former. More specifically this research attempted to explore
just what judges felt they could accomplish through their public commentary on theft
offender wrong doing. The balancing of three perspectives mattered: the offender; the
State; and the victim. Comparing the influence of denunciation on the theft sentencing
approach of English and Danish lower court judges was examined by asking the follow
ing open ended question: In terms of your sentencing approach, what influence does
denouncing a theft offender’s crimes publicly have? The attempt to gather some legal
practice perceptions regarding the influence of denunciation at the sentencing delibera
tion stage provided a significant challenge. However, by gathering some perceptions of
what denunciation means in legal practice this research provides some understanding of
‘the internal logic of law’ (Hammerslev, 2005: 214).
Denouncing a theft offender’s crimes publicly in order to stigmatize and induce a
change in their future conduct has deep philosophical roots (Walker, 1980: 28–29). For
Kant (1790) judicial denunciation in response to a crime is a part of retributive justice
because it is a means by which judges clarify what is most deserving of punishment. It is
their attempt to harmonize the harm done by the crime and the consequential punishment.
For Bentham, general prevention of harm to society can be achieved by judges making an
example of the offender in order to deter future wrong doing to others within society
(Bowring, 1843: 396). Is judicial denunciation merely a symbolic vehicle for retributive
justice and utilitarianism to influence modern society? Does it more truly reflect a collec
tive judicial perception that they can rationalize what is wrong in society and help to
define which societal values matter the most? If it is more the latter, then gathering judi
cial perceptions of denunciation as has been attempted here, is very important to our
understanding of what the modern sentencing ritual means (Marcus, 2004: 674).
It is only relatively recently that the social sciences have collectively begun to
explore what judicial denunciation means and understand how it is being applied by
gathering data from judges (Mackenzie, 2005: 113–114). Early socio-legal scholars
appear to have favoured purely sociological understandings of law (Weber, 1978:
311–312). More recent socio-legal scholars have attempted to incorporate distinctive
legal understandings of law and thereby connect hitherto separate perspectives of
social theory and legal practice (Wandall, 2008: 10–13 who specifically refers to
Lowenstein
23
Luhmann, 1993 and Teubner, 1989, 1993 in support). In comparing legal cultures, it
has been suggested that a distinct legal understanding can only be extracted from
developed societies (Malinowski, 1926). This may or may not be true, but it is worthy
of significant academic debate in its own right. Whether judicial denunciation percep
tions alone form a distinct legal understanding and whether one can distinguish what a
developed and undeveloped legal society consists of is highly debatable.
There is value in attempting to relate judicial denunciation theory to legal practice
through perceptions. We cannot deny the importance and impact of our own self-perceptions
or of our fellow humanity whether clear and distinct or not (Newman, 2010). Analysing
perceptions gives some indication as to whether in practice the law is being applied as
theory would have us believe (Nelken, 2010: 16). This research attempts to compare both
judicial perceptions when denouncing theft offenders as well as developing an under
standing of the sentencing cultures in the English and Danish lower courts. This presents
a significant challenge and requires the comparative researcher to be aware of the interpre
tative dangers of ethnocentrism and relativism (Nelken, 2010: 18–19). There are empirical
limitations from the subjective judicial focus and the researcher’s own subjective drawing
out of commonly repeated perceptions. There are normative limitations from assuming
that the two distinct legal cultures of England and Denmark share similar values towards
the meaning of denunciation. Investigating the meaning of the judicial perceptions of the
few can only ever hint at what wider judicial perceptions towards denouncing theft offend
ers may mean in the lower courts of England and Denmark.
Does denunciation matter to our judges? Judicial perceptions partly depend on vary
ing case facts, offender characteristics and a proportionate ‘common sense’ response
(Fish, 2008: 66). Academic debate on what discretionary judicial decision making
means and how this relates to how each judge approaches the complex sentencing task
before them is relevant (Galligan, 1986: 6). The extent of free choice, the empowerment
of the judiciary through their assertion of constitutional independence and societal
interpretations of judicial personality all appear to matter (Hawkins, 1992: 331). Is it
possible to expand our understanding of what denunciation means as an aim of sentenc
ing by comparing judicial perceptions of how it is being applied across legal cultures?
In court, Danish and English judges are not required to state which if any aims they are
pursuing. We certainly will not know if we can enhance our understanding of denuncia
tion in practice unless we try to gather data. Furthermore to make sense of this data,
an appreciation of different theories of denunciation is required, even if there is on the
surface little coherence between them. Theoretical discussions of what denunciation
means matter. They can be tested for relevance and coherence to legal practice by
researchers gathering perceptions across legal cultures. However, we should be mindful
that perceptions on their own form only a small part of the complex mix of issues influ
encing sentencing practices within the lower courts of England and Denmark.
Legitimizing denunciation at the theft sentencing stage as
morally right: Developing a coherent theoretical justification
The causal link between offender re-education and expressive shaming at the sentencing
stage appears on the surface to have some logic. Through subjective and objective
24
Criminology & Criminal Justice 13(1)
interpretation, judges at the sentencing stage seem to be defining and teaching what
wrongfulness is...
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