Tanzil Chowdhury talks to us about his new book published by Routledge
The book attempts to offer a novel account of judicial fact construction through temporality. This account however, presupposes a few things. First, drawing from a flourishing socio-legal literature on time, it argues that law, specifically adjudication, produces time (rather merely exists ‘in it’). Secondly, drawing on critical legal studies scholarship, the book argues that rules are not the determinative element in ascertaining which facts are salient in trial court hearings; but that ‘juridically-produced temporalities’ are. Having put forward and detailing these claims, I then distinguish between different types of adjudication- separated by the temporalities they produce- and how they render different types of legal subjectivities and events in determining the facts of the case. So one type of adjudicative temporality may produce a deracinated, agential subject whereas other adjudicative temporalities summon subjectivities that are situated and constituted by social structures. These kinds of questions matter, I argue, because they effect the attributions of liability and responsibility and, perhaps more importantly, they attempt to bring to light a fairly unexamined, but deeply political, area of law and adjudication.
While at the time, when interestingly I had little desire to do the PhD from which the book comes out of (I intended to go into legal practice as my dreams of becoming a professional footballer for Manchester United had fallen by the wayside), I began to develop an interest in these issues in the second year of law school when I came across the case of Ahluwalia and the ‘battered women syndrome’ defence in homicide. The way I had read the differences between the trial hearing and the appeal was in their different rendering of the facts (and the subsequent substitution of the original murder conviction for manslaughter). The way I had understood this difference was that history or a particular ‘type of past’ did some really important work in the appeal- but it wasn’t clear where that had come from- because it certainly wasn’t, I thought, the legal rule. I had already seen this elsewhere, though in far more different contexts. Of particularly interest to me was the exceptionalistion in media reporting of Palestinian (in particular armed) struggle which often portrayed a complete ignorance of ‘histories’ and ‘pasts’ upon which our evaluation of such events are contingent. I decided to explore this more, albeit at a higher level of abstraction and the book is the culmination of that thinking.
The association between temporality and factual construction may more broadly be drawn from phenomenological, sociological and anthropological forays. In Kant’s rendering of the transcendental consciousness in Critique of Pure Reason, he argued that time (along with space) was an a priori feature of the intellect that allowed the subject to make sense of data to produce phenomena. Heidegger’s ‘originary temporality’, in developing Critique, underwrote Kant’s transcendental consciousness, whereby Heidegger located the question of being in temporality. Sociologists and anthropologists like Durkheim and Geertz have been key in challenging the hegemonic visages of scientific, Platonic-inspired conceptions of time. In particular, Barbara Adam argues that ‘any new perspective on the world entails a reconceptualization of the temporal relations involved’. This project creatively engages these claims – that time frames consciousness – in arguing that temporality structures judicial factual construction...
Overall the book therefore does two things. The first is to contribute to a dynamic field within critical socio-legal scholarship that seeks to de-naturalise time, especially time in criminal law rather than time or temporality conceived as ‘a natural phenomenon, unfolding effortlessly and inconspicuously as the backdrop to social and political life’. The purpose is, as Grabham and Beynon-Jones write, to examine ‘the making of time through a focus on law’. The second is to provide an account of the temporalities produced by criminal legal judgement, which I term adjudicative temporalities, and to show how these structure the formation of legal subjects and events in criminal law rather than legal rules. Adjudicative temporalities refer to the way that law produces different types of pasts and futures and thus facts in legal judgement. I demonstrate that adjudicative temporalities enable legal judgement to either visibilise or elide social structures in its determination of facts and show how this determines criminal responsibility. The account I develop further distinguishes different types of legal judgement according to how they produce adjudicative temporalities and, given my focus on criminal law, the effect this has on responsibility ascription.
Given the general absence in theories of adjudication of any problematising of time, the book contributes to answering larger questions about: indeterminacy and the politics of legal judgement; the reproduction of structural violence through legal judgement; and, critically, how specific adjudicative temporalities may create openings for radical social change by visibilising structures of violence.