Abstract
What role does language play in legitimising the exercise of judicial discretion during sentencing? And what can a judge’s linguistic choices tell us about the wider sentencing culture of a criminal justice system? Sentencing outcomes have long attracted considerable attention in criminal law scholarship, but the process of sentencing – the logics judges use, the narratives they construct, and the audiences they seek to persuade – has received much less empirical scrutiny. Building on ideas from “law and culture” and organisational sociology literature, this Article proposes studying sentencing as a “socio-cultural” practice; one that qualitatively examines the judicial function of “meaning-making.” Using 147 trial court judgements from death penalty cases in India decided between 2018 and 2020, I show how judges rely on various forms of justificatory rhetoric to externalise an image of fairness. In the process, they present contestable reasoning as legally sound, perform their version of a “just” outcome to multiple audiences, and lower the justificatory threshold in a sentencing framework already oriented toward punitive results. Situated in a Global South jurisdiction underrepresented in criminal law scholarship, this Article contributes to a growing body of interdisciplinary research on how punishment is enacted in non-Western legal systems. Administering capital punishment less arbitrarily (if at all possible) cannot happen without first interrogating a sentencer’s discursive logic and routines more closely. Left unchecked, judges’ meaning-making practices risk reproducing arbitrariness, diminishing institutional accountability, and dangerously legitimising the state’s most extreme exercise of legal authority: to take a human life.
Digital Object Identifier (DOI)
10.55496/SKQC8620
Included in
Criminal Law Commons, Judges Commons, Law and Society Commons
