A Gramscian Approach to Studying the Judicial Decision-Making Process — Pablo Ciocchini and Stefanie Khoury

Gramsci’s concept of hegemony can be understood as the ability to infuse the values of the dominant social group into the minds and everyday lives of subaltern groups in order to secure their spontaneous consent. Hegemony is achieved when subaltern groups consider such values (and practices) to be in their own interests. This post considers the role of judges in the production of hegemony. We argue that judges play a dual role, as both “technicians of repression” (actors within the bureaucratic machinery of the state) and “moral and intellectual leaders” (actors who produce and legitimate the values of the dominant social order).

Our starting point follows from two independent research projects, one that scrutinised the role of courts as coercive institutions representing the force of the state [1], and one that examined courts as hegemonic institutions that produce consent for particular social relations. [2] Perhaps one of the most important consequences of treating law as a social relation is that one is able to express its fluidity without losing sight of its regularities, i.e. the enabling role that it plays in the production and reproduction of a given order.

Judges exercise a particular form of domination, inducing submission not only through their coercive powers in court but also through their power to create consent outside of the juridical realm. As the executors and guarantors of the law, they are pivotal in leading others to accept the status quo. They uphold the law, which can operate “without ‘sanctions’ or compulsory ‘obligations’, but nevertheless exerts a collective pressure and obtains objective results in the form of an evolution of customs, ways of thinking and acting, morality, etc.”. [3] It is therefore crucial to engage critically with the role that judges play in the current neoliberal order so as to develop a strategy with which to challenge it–a counter-hegemony.

Judges play a crucial role in capitalist societies by interpreting and applying law in ways that uphold the dominant system. The Gramscian analysis of the judicial decision-making process reveals that judges play two roles. They may act as legal “technicians” applying officially recognised interpretations of the law, where their role is merely to validate the leadership of the government. But judges may also occupy a leadership role by promoting certain moral values. They may do this by expanding, and in some cases even subverting, traditional legal concepts. Law can thus be understood as a technique for the organisation of hegemony in and through the state, producing consent among the dominated classes at the same time as it organises the administration of public force. [4]

The application of a Gramscian approach to the study of courts and judges is valuable because both are close to, yet distinct from, the state. Both transmit important ideological values. [5] The judicial decision-making process can thus be understood as both driven by and generative of hegemonic values. The individual perspectives of judges may be scrutinised in relation to the dominant economic and political ideology, meaning, firstly, that the agency of legal actors should be taken seriously when analysing judicial outcomes, and, secondly, that any examination of these actors must take into consideration the dominant social order.

Applying a Gramscian approach, Ciocchini identified a punitive response within criminal courts in the Argentinean Province of Buenos Aires (PBA) as a loss of “leadership” for judges whose role has increasingly been reduced to that of “technicians of repression”. [6] Managerialism has been a strategy to relegitimise criminal courts, not by empowering judges but by indirectly reducing their discretionary power through increasingly strict performance evaluations. Ciocchini found that judges and prosecutors reified law by treating it as an abstract thing rather than as an expression of social relations that are constantly deconstructing and reconstructing the law in order to produce a particular social order. In the PBA, the perceived powerlessness of criminal court judges points to their loss of leadership and their reduction to “technicians of repression”. This development can be understood as resulting from a shift away from penal welfarism and toward popular punitivism, with a distrust of penal experts. [7]

In contrast to judges in local criminal courts, international human rights judges have been gaining leadership over the past few decades. These judges have played a decisive role in guaranteeing intra-class hegemony. At the same time, their judgments have produced “common sense”, leading to inter-class consent. Khoury’s findings with respect to the leadership of supranational court judges led her to consider how Gramsci’s insight into diffuse power relations–as opposed to the orthodox Marxist position of the centralisation of power in the coercive mechanisms of the state–could be used to develop a framework to analyse the judicial decision-making process. [8] Judges play a decisive role in introducing certain issues into the social imaginary by considering them to be social problems worthy of being played out in the legal sphere. In this role, judges effectuate a decision of moral standing by identifying and deciding upon conflicts in society. Thus, whilst to our knowledge Gramscian theorists have not explored the moral and intellectual leadership of judges, their decisions contribute to the definitions of “political” issues and the recognition of “legal” issues, reproducing the idea that these spheres are separate and distinct. In this way, the judicial decision-making process contributes to producing intra-class consensus, but also inter-class consent for the dominant social order that profits from this fake separation. For instance, when a judge holds that a given piece of legislation violates a given set of democratic values, she relies upon her interpretation of the law and draws upon her own values in making that judgment. In this way, the judge uses her own moral and political compass to evaluate legislation and move social norms in a particular direction. Because human rights judges are invested with authority and prestige, their decisions can influence the official narrative that leads to the adoption of values which inform political agendas and future judicial decisions, and by extension become part of our everyday values. It is in this context that judges are revealed to be pivotal actors in the production of hegemony.

Although Gramsci never identified judges as either “traditional” or “organic” intellectuals, we subscribe to the view that judges understand themselves to be autonomous and independent of the dominant social group and that they internalise particular values that uphold the capitalist system, subsequently producing and reproducing those values in their judgments. Gramsci noted that the “general activity of law … is wider than purely State and governmental activity and also includes the activity involved in directing civil society, in those zones which the technicians of law call legally neutral–i.e. in morality and in custom generally”. [9] The dual function of judges means that they can serve an especially important role in the hegemonic project because the illusion of the neutrality of the “traditional” intellectual allows judges to carry out an ideological project within civil society (as opposed to political society), despite their work remaining highly political. Judicial actors do not merely wield law as an “instrument”. Rather, law is a relationship that is produced by the interactions of these actors, between themselves and with non-legal actors. By understanding the overarching structures of (formal) law, we can also identify spaces of resistance within complexes of power.

[1] Pablo Ciocchini, “Tiempo de justicia, un análisis de los cambios ocurridos en pos de erradicar la demora judicial en la administración de justicia penal bonaerense”, unpublished doctoral thesis (2013), Universidad del País Vasco, Donostia–San-Sebastián.

[2] Stefanie Khoury, “(Transnational) Corporations and Human Rights: An Exploration Into the Accommodation of Capital in International Human Rights Law”, unpublished doctoral thesis (2014), Università degli Studi di Milano / Universidad del País Vasco, Donostia–San-Sebastián.

[3] Antonio Gramsci, Selections from the Prison Notebooks, ed. and trans. by Quintin Hoare and Geoffrey Nowell Smith (New York: International Publishers, 1971), 242.

[4] See Sonja Buckel, “The Juridical Condensation of Relations of Forces: Nicos Poulantzas and Law”, in Alexander Gallas, Lars Bretthauer, John Kannankulam, and Ingo Stützle (eds), Reading Poulantzas (Pontypool: Merlin Press, 2011) 154.

[5] See Alan Hunt, “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law”, 19 (1985) Law and Society Review 11; Louis Althusser, “Ideology and Ideological State Apparatuses (Notes Towards an Investigation)”, in Lenin and Philosophy and Other Essays, trans. by Ben Brewster (New York: Monthly Review Press, 1971) 127.

[6] Ciocchini, “Tiempo de justicia”.

[7] See David Garland, The Culture of Control (Oxford: Oxford University Press, 2001); John Pratt, Penal Populism (London: Routledge, 2007).

[8] Khoury, “(Transnational) Corporations and Human Rights”.

[9] Gramsci, Prison Notebooks, 195.

Stefanie Khoury is currently Postdoctoral Research Associate at the University of Liverpool, where she is affiliated with the School of Law and Social Justice.

Pablo Ciocchini is Lecturer in Criminology at the University of Liverpool.