3 - Dealing with Difference

Summary

Equipped with a vocabulary to do justice to the performative dimensions of social scientific knowledge production, this chapter revisits the controversial study of sentencing disparities introduced in Chapter 1. Here, I emphasize the performative effects of statistical forms of ordering and analysing judicial decision-making. What are the consequences of treating judicial cases as bundles of legal and social characteristics? How is the promise of “equality before the Law” operationalized? How is the law itself reconfigured as a result of this analysis? What kind of population – of cases, of individuals – does this analyses presuppose? Together, these questions bring us closer to zooming in on a crucial performativity of social-scientific accounts of judicial practices, especially those assisted by quantitative measurement and statistical analyses. Disaggregating cases into case- and defendant “factors” and portraying criminal law as a machine distributing justice over an internally stratified population, this approach produces a reality the judges do not recognize as their own. Hence, this chapter also comments on the methodological limitations of statistical analyses in the study of actually existing, concrete work practices, demonstrating how such methodological approach black-boxes judicial decision-making and disaggregates cases into “factors”.