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”.

In March 2012, a study into sentencing disparities shocks the Dutch Judiciary. Three researchers of the University of Leiden, using in-court observations and statistical analyses, have demonstrated that defendants’ “foreign” or Dutch “appearance” influence judges’ sentencing decisions: these defendants are usually punished more harshly than the native Dutch. Practicing judges react to the study in frustration, raising the question whether researchers have “any idea” as to how judges “deal with cases”. Here, I take their objections to this controversial study seriously: not only as an implicit critique of social scientific knowledge production about legal practices, but also as being reflective of wholly different ways of seeing and constructing cases. I raise three questions: First, how do judges deal with cases? How do they evaluate evidence, construct or deconstruct different story-lines, how do they come to “see” the case? Secondly, what do social scientific observers see (and not see) when they try to describe, understand and explain these practices, and how do their methodological choices and theoretical assumptions shape their accounts? Third, what do I do when I try to research and describe these practices, that is: how do my own positionings, assumptions, and methodological choices affect the knowledge I produce?