Table Of ContentAdjudication in Action
An Ethnomethodology of
Law, Morality and Justice
Baudouin Dupret
AdjudicAtion in Action
directions in Ethnomethodology and
conversation Analysis
Series Editors:
Stephen Hester, Honorary Senior Research Fellow, Bangor university, uK
dave Francis, department of Sociology, Manchester Metropolitan university, uK
Ethnomethodology and conversation Analysis are cognate approaches to the study
of social action that together comprise a major perspective within the contemporary
human sciences. Ethnomethodology focuses upon the production of situated and
ordered social action of all kinds, whilst Conversation Analysis has a more specific
focus on the production and organisation of talk-in-interaction. of course, given that
so much social action is conducted in and through talk, there are substantive as well
theoretical continuities between the two approaches. Focusing on social activities as
situated human productions, these approaches seek to analyse the intelligibility and
accountability of social activities ‘from within’ those activities themselves, using
methods that can be analysed and described. Such methods amount to aptitudes,
skills, knowledge and competencies that members of society use, rely upon and take
for granted in conducting their affairs across the whole range of social life.
As a result of the methodological rewards consequent upon their unique analytic
approach and attention to the detailed orderliness of social life, Ethnomethodology
and Conversation Analysis have ramified across a wide range of human science
disciplines throughout the world, including anthropology, social psychology,
linguistics, communication studies and social studies of science and technology.
This series is dedicated to publishing the latest work in these two fields,
including research monographs, edited collections and theoretical treatises. As
such, its volumes are essential reading for those concerned with the study of human
conduct and aptitudes, the (re)production of social orderliness and the methods and
aspirations of the social sciences.
Other titles in this series
Ethnomethodology at Work
Mark Rouncefield and Peter Tolmie
iSBn 978-0-7546-4771-3
Preference organisation and Peer disputes
How Young Children Resolve Conflict
Amelia Church
iSBn 978-0-7546-7441-2
Adjudication in Action
An Ethnomethodology of Law, Morality and justice
BAudouin duPREt
CNRS, France
Translated by
PAScALE GHAzALEH
First published in French as Le jugement en action. Ethnométhodologie du droit,
de la morale et de la justice en Egypte, by Librairie Droz, CH-1206 Geneva,
© 2006 Librairie Droz SA. All rights reserved.
© Baudouin dupret 2011
All rights reserved. no part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
Baudouin dupret has asserted his right under the copyright, designs and Patents Act,
1988, to be identified as the author of this work.
Published by
Ashgate Publishing Limited Ashgate Publishing company
Wey court East Suite 420
union Road 101 cherry Street
Farnham Burlington
Surrey, Gu9 7Pt Vt 05401-4405
England uSA
www.ashgate.com
British Library Cataloguing in Publication Data
dupret, Baudouin.
Adjudication in action : an ethnomethodology of law,
morality and justice. -- (directions in ethnomethodology
and conversation analysis)
1. Law--Methodology. 2. Law and ethics. 3. Ethnological
jurisprudence. 4. justice.
i. title ii. Series
340.1'12-dc22
Library of Congress Cataloging-in-Publication Data
dupret, Baudouin.
Adjudication in action : an ethnomethodology of law, morality and justice / by Baudouin
dupret.
p. cm. -- (directions in ethnomethodology and conversation analysis)
includes bibliographical references and index.
iSBn 978-1-4094-3150-3 (hardback) -- iSBn 978-1-4094-3151-0 (ebook) 1. Law--
Methodology. 2. Law and ethics. 3. Ethnological jurisprudence. 4. justice. i. title.
K212.d87 2011
340'.112--dc22
2011016479
iSBn 978-1-4094-3150-3 (hbk)
iSBn 978-1-4094-3151-0 (ebk)
II
Printed and bound in Great Britain by the
MPG Books Group, uK.
Contents
List of Figures and Tables vii
Introduction: A Grammar of Law in Context and Action 1
Part I: Law and MoraLIty: Bases of a PraxeoLogIcaL
aPProach
1 Law and Morality: Constructs and Models 19
2 The Morality of Cognition: The Normativity of Ordinary Reasoning 41
3 Law in Action: A Praxeological Approach to Law and Justice 63
Part II: Law In context and In actIon
4 Law in Context: Legal Activity and the Institutional Context 93
5 Procedural Constraint: Sequentiality, Routine and Formal
Correctness 117
6 Legal Relevance: The Production of Factuality and Legality 137
Part III: a PractIcaL graMMar of LegaL concePts
7 From Law in the Books to Law in Action: Egyptian Criminal Law
between Doctrine, Case Law, Jurisprudence and Practice 161
8 The Natural Person: The Contingent and Contextual Production
of Legal Personality 189
9 The Production of Causality: A Praxeological Grammar of
the Use of Causal Concepts 211
10 Intention in Action: The Teleological Orientation of the Parties to
Criminal Cases 233
vi Adjudication in Action
Part IV: PraxeoLogIcaL study of JudgMents on MoraLIty
11 Morality on Trial: Structure and Intelligibility of the Court Sentence 253
12 Questions of Morality: Sequential, Structured Organization of the
Interrogation 271
13 The Categories of Morality: Homosexuality between Perversion
and Debauchery 297
Conclusion: The Morality of Judgment and the Judgment of Morality:
A Praxeological Approach 329
Bibliography 341
Index 357
List of Figures and Tables
Figures
4.1 The contextualized context 106
4.2 Shubra al-Khayma, Court of First Instance 109
4.3 Benha, Criminal Court 110
4.4 Shubra al-Khayma, Prosecutor’s office 112
4.5 Benha, Prosecutor’s office 112
7.1 Types of legal personality 165
7.2 Types of legal liability 166
13.1 Disjunctive pairs 318
Tables
12.1 The production of a master narrative 276
12.2 The lexicon of the interrogation 288
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Introduction
A Grammar of Law
in Context and Action
This book aims to deal with law and judicial activity, in their moral dimension
as well as when they are faced with questions of morality. The context of this
study is a specific one: that of public prosecutors’ offices and courts of justice in
Egypt, as well as the cases brought before them in the past ten to fifteen years.
The intention, however, is neither to present the Egyptian legal system nor to take
that system as a case study of a larger entity – which some might call “Islamic
law”. It is even less to postulate any form of Arab or Muslim cultural specificity.
On the contrary, this book’s goal is to observe the contextualized deployment
of various practices, and the activities of very diverse people who, in different
capacities, found themselves involved in or faced with institutional judicial space.
More specifically, the objective is to observe and describe, in an empirically
documented and detailed manner, the moral dimension of judicial activity, and
the judicial approach to questions of morality. In other words, the point is to
detail the production and manifestation of judicial activity in its necessarily moral
dimension, and to examine how that activity mediates and modulates the treatment
of cases dealing with sexual morality, among others.
To state that this is a study of law in context and action clearly specifies the
perspective within which the work is situated. Inspired by the later Wittgenstein
and aligned with ethnomethodology and conversation analysis, this perspective
may be described as praxeological. In the following chapters, there will be
abundant reference to works of ethnomethodology and conversation analysis, in
general, and to the analysis undertaken by some of these works of legal and judicial
objects, in particular. This introduction will be restricted to a general presentation
of the ethnomethodological way to proceed and a few of its fundamental axes: the
respecification of sociological objects; the attention paid to the practical grammar
of actions, notably acts of language; the rejection of sociological irony and
overhanging stance vis-à-vis the people and the actions they undertake. Having
posited these basics, it will be possible to sketch out the general lines followed in
the book.
Ethnomethodology
The invention of the term “ethnomethodology” must be attributed to Harold
Garfinkel, who explained the conditions under which the term emerged (Garfinkel,
