Powers and functions of judicial documents
- Cet article est une traduction de :
- Pouvoirs et fonctions de l’écrit judiciaire [fr]
Texte intégral
- 1 The history of judicial practices has undergone an interesting historiographical development. We wo (...)
- 2 On the subject of penal ritual, here too, historiography continues to grow. See, among others: Mich (...)
- 3 See bibliography. Pierre-Anne Forcadet, "History of Law and 'Gender Theory'. Critical Approaches to (...)
- 4 The historiography of writing in the service of urban administration is rich, and that on justice i (...)
- 5 Paul Bertrand, Bertrand, Ordinary Writing. Sociology of a Time of Documentary Revolution (1250-1350 (...)
- 6 Michael Clanchy, From memory to written records. England 1066-1307, London, Wiley-Blackwell, (1979) (...)
1In the renewal of analyses concerning the history of justice, judicial practice and the application of penalties from the Middle Ages to the present day are often the focus of attention1 . The focus on the desired effects of this justice (pacification, the imposition of a state legal order) leads to an emphasis on judicial ritual, criminal ritual, amicable or negotiated modes of conflict resolution, as well as avoidance and resistance to justice2 . In a way, it is as if the actual work of justice were limited to procedure, punishment and the strategies of those subject to justice, the latter field having benefited from gender analysis, particularly in terms of agency3 . However, the work of shaping court decisions remains in the shadows, i.e. the means deployed by the institution to make its verdicts visible and assertive, to express them and make them acceptable; in short, to legitimise the brute force of its decisions through a process of formalisation4 . Putting them in writing was part of the documentary revolution that began in the 12th century and was in line with a shift towards a different relationship with the written word, the spoken word and the written word5 . However, it cannot be reduced to a simple operation of storage and memory construction, even though this dual dimension remains intrinsic to the production of these acts, beyond their vocality6 .
- 7 Émile Benveniste, Le vocabulaire des institutions indo-européennes, 2, Pouvoir, droit, religion, Pa (...)
- 8 Ibid., p. 109.
- 9 Ibid., p. 145. On judicial speech: Marie Houllemare, Politiques de la parole. Le parlement de Paris (...)
- 10 Henri-Jean Martin, Histoire et pouvoirs de l’écrit, Paris, Albin Michel, "Bibliothèque de l’Évoluti (...)
- 11 Jack Goody, La raison graphique, la domestication de la pensée sauvage, Paris, Les Éditions de Minu (...)
- 12 Ibid., p. 96.
- 13 Ibid., p. 145.
- 14 Pierre Bourdieu, Sur l’État. Cours au Collège de France, 1989-1992, Paris, Raisons d’agir – Seuil, (...)
2Oral speech, solemn speech, authoritative or authorised speech, has long prevailed over written speech in the administration of justice. Émile Benveniste points out that dikè comes from deik (to say, to show). To show through speech that speaks and expresses the law (iu-dex)7 . To judge is first and foremost "to show with authoritative speech what must be"8 . The authority of the speaker, or that conferred upon them by delegation by the person on whose behalf they speak, is sufficient to make the sentence performative, to give it the power to name or change reality: "Every word spoken with authority determines a change in the world, creates something; this mysterious quality is what augeo expresses, the power that makes plants spring up, that gives existence to a law"9 . But, as Henri-Jean Martin points out, "words pass, witnesses die, while writings remain"10 . Alongside, in support of, as a supplement to, or as a replacement for the oral tradition, writing has become widespread in the judicial process, from investigation to verdict. The emergence of writing and its slow and inexorable imposition have transformed the means of administering and delivering justice through the intrinsic power of this particular form of putting facts, people and decisions into words. Jack Goody analysed some of the effects of the imposition of writing. First of all, writing accompanies and promotes bureaucratisation: "The written word does not replace speech, any more than speech replaces gesture; but it adds an important dimension to many social actions. This is particularly true in the legal and political sphere: it is clear that the growth of bureaucracy depends to a large extent on the possibilities for control offered by written means of communication"11 . As a means of remote control that requires an administration capable of producing, disseminating, collecting and analysing it, writing is linked to statisation and bureaucratisation, understood as the institutionalisation and centralisation of social control. It accompanies and favours the social group capable of producing judicial writing, controlling its possible meanings and ensuring its effectiveness. It is, as much as the art of arranging speech, the tool of lawyers. Secondly, writing is the vehicle for a timeless memory12 . Once written down, a judicial act or decision can be stored, archived, read, reread, examined, re-examined, manipulated, reproduced, disseminated and shared. It makes the distant producer of the text visible, and no longer just audible. But what is written can also no longer be directly related to the person who uttered it: the words of the text can be cut off from their context of production. Writing opens up multiple uses: relic, memory, trace, common order, past order. It imposes an abstract order and recalls the distant existence of that order. In addition to this storage function, "which allows communication across time and space and provides humans with a means of marking, memorising and recording", writing has another function: it "makes it possible to organise differently, to rearrange and to correct isolated sentences and words"13 . For example: grouping decisions in chronological order or by theme; discussing, analysing and critiquing these decisions; linking them together to identify similarities or differences. Writing structures judicial reasoning; it shapes the art of referring to precedent, the art of making words convey hidden meanings; it encourages disputes and struggles over meaning. In short, it conditions the means of administering and rendering justice in a different way from the oral. Finally, judicial writing is an act of state, in the sense given to this phrase by Pierre Bourdieu, that is, an act that has "pretensions to have effects on reality" and owes its effectiveness "to the legitimacy and belief in the existence of the principle on which it is based"14 . It assigns identities and categorises. It gives legitimate meaning to reality because it is based, through successive regressions, on the belief in the legitimacy of the state. Through its symbolic power, judicial writing orders the social world by telling the truth.
- 15 On the notion of representation, see: Roger Chartier, ‘Construction de l’État moderne et formes cul (...)
- 16 Encyclopédie méthodique ou par ordre des matières, par une société de gens de lettres, de savans et (...)
3Writing is a technique for inscribing words and sentences on a medium (stone, papyrus, paper, scroll, codex, screen, etc.). Working on justice, in the past or present, means first and foremost working on representations, because access to present and past judicial and legal realities is most often achieved through documents in which practices or discourses are transcribed15 . However, these documents are not a faithful reflection of what was or what is; on the contrary, they are a medium and necessarily distort the realities we seek to understand. They are ultimately a discourse, put into words, into form, into order, with a specific purpose: to prescribe, describe, condemn, glorify, humiliate, prove, etc. There is necessarily a distance in judicial writings between the reality captured and the reality represented. Working with these time-tested materials requires not confusing what is written with the reality described. The concept of representation, even if it is debated, is a useful tool for avoiding the attractive force of the written word: all representations present themselves as representing something. The idea is to be attentive to the different mechanisms of production of these materials and their reasons for existing. It is on this condition that judicial writings allow us to access the collective representations, the common sense, the integrated and incorporated patterns of classification, distinction, knowledge and recognition that they contain and to which they bear witness. Representation is not neutral: it imposes a meaning, which one can agree with or oppose. It has effects on the reality it represents in the sense that it contributes to changing its meaning and perception. Moreover, the legal meaning of "representation" sums up the meaning and scope of this act: "It is said of acts, things and persons, and in the latter case, the representation of a person is either the action of making them appear in a place where they must be, or the subrogation of a living person to a dead person in order to exercise their rights"16 . Judicial writing is indeed a double substitution, the mediated presence of two absences: that of the person or object represented, and that of the person who produced the document or on whose behalf it was produced. Examining judicial writing is a relevant way of examining the construction of justice through the ways in which it presents itself to be seen and thought about.
- 17 Donald F. McKenzie, Bibliography and the Sociology of Texts, Paris, Éditions du Cercle de la Librai (...)
4The textual productions considered in this special issue dedicated to legal writing are understood in a broad sense. They may be final, interlocutory or arbitral judgments, information books or procedural documents, or any writing that orders or organises reality in an act that transcribes, describes or gives meaning to it. These are court decisions whose form and content depend on the procedural stage and/or the stage at which the parties to the dispute have reached a resolution of the conflict, with or without judges and arbitrators. These productions serve as a basis for analysing the work of formatting court decisions and for understanding their dissemination and reception. Following on from the work of Donald McKenzie, attention is focused on the forms of the text in two senses: their materiality and their content17 . The two are inextricably linked because the form of the text already implies a framework for reading and understanding. The material supports of the text (on a sheet of paper, in a register, in a directory), its modes of writing (handwritten, typed), its availability (open or closed), its language, its legibility and even its errors and inaccuracies inevitably engage readings (conforming, contradictory, aberrant, erroneous, etc.) that condition its reception. The aim is to understand how judicial writing is structurally and materially produced in order to objectively assess both the sources of its legitimacy and its expected uses. It is also a question of examining the vocality of texts: very often, litigants do not have access to the text, but may have heard it proclaimed from the rooftops or reported by witnesses who remember it. The parties are often summoned to come and listen to the judges pronounce the sentence and express their consent to the decision taken.... There are two issues at stake here. How does the oral nature of a decision contribute to its dissemination and acceptance in a society that increasingly favours the use of written texts? How is the word of justice staged, organised and disseminated? Who comes to hear it and how is it understood? The other issue is that of indirect dissemination, the transmission of this word by witnesses: what are the retranslations, the details that are lost, the facts that are retained? Very often, the court does not write or say everything in its sentence, leaving elements of the case in the shadows, secret or unknown. What is the purpose of the information revealed, and what are the implications of the elements left unknown? More specifically, the texts analyse how an institutional memory of its own decisions is developed: what is retained or rejected, and what possible appropriations and reuses does this sorting process allow? Finally, they relate the work of formatting court decisions to their reception: to what extent is this work effective and performative, in what contexts is it not, and what are the social practices of contesting or rewriting these decisions? Reception is understood in a broad sense: the work of lawyers to compile these sentences and thus give them a coherence that makes them more legitimate, ways of mocking these decisions, of ridiculing the language of law, of contesting it, or even of understanding how this language of law imposes itself and imposes ways of presenting and narrating oneself. The legitimisation of justice as an institution that can condemn, categorise, prescribe and assign is at the heart of the questions raised in all of the articles.
5The various contributions to this dossier on judicial writing open up four avenues of research. First, and most prolifically, they question the uses of writing and the framework that makes these uses possible and limits them. In a judicial context, since the Middle Ages, writing has been used to record cases, to put them in a scroll and then in a register. The institution produces its own memory by preserving some traces of a trial or case. The function of storage and archiving reflects a dual process: the increasing complexity of cases and the institutionalisation of justice. The improvement of record-keeping, which can be seen in the evolution of classification, the standardisation of note-taking, the improvement of the materials used to archive written documents, and even the partial use of printed materials, reflects the transformation of the profession of judging. The increasingly central role of writing in judicial work illustrates the professionalisation of the justice system, as well as accompanying it. This has changed the relationship with time: it is no longer just a matter of listening to immediate speech, but of reading, rereading and writing on a daily basis, i.e. taking the time and having the opportunity to transport oneself to a previous time by referring to written records that preserve speech, actions and gestures frozen in words. Thanks to the written word, the past remains contemporary and accessible. Many legal documents are not official or do not create official records. They are notes, private records and compilations that report on hearings or archive decisions. These documents, which are available to judges and sometimes lawyers, are restricted in circulation but nonetheless shape justice because they support the work and help to shape court decisions. Writing structures a mobilisable past.
6Another use, which stems from the previous one, is that writing serves as proof. It freezes a word, an observation, a gesture, an agreement, obligations, debts, which it renders enforceable. This is not simply a question of writing replacing speech, based on a growing mistrust of testimony and a growing faith in the written word, but rather, as the contributions to this dossier illustrate, a general distancing of speech from the justice system. This distancing occurs as a result of the transcription itself, which gives the institution that produces it the power to retain only part of what has been said, to modify it and to translate it into another language or other words. If the written word is more reliable than the spoken word, it is perhaps primarily because it has become a daily production of those who have mastered the art of writing and use it professionally, and because, being skilled in reading and writing, they have become accustomed to this form of mediation of speech, which distances it physically and therefore intellectually.
7The last use that could be mentioned, without closing this list, is that writing helps to construct and disseminate the official word. Manual and mechanical reproduction processes allow the spoken word put into writing and the written word to circulate in spaces that they help to define and structure. The official word thus propagated and shared helps to reinforce the control and domination of its producer, who is the central point from which official decisions, points of view, classifications and categorisations are disseminated and infuse social spaces. As a tool for standardising a social space and a territory, writing serves to build unity through its symbolic power, which imposes ways of seeing and understanding the social world. Moreover, as some contributions illustrate, if official writing contributes to creating unity, it is because it itself gives the illusion of unity and uniformity. A decision transcribed in a roll or register obscures the tumultuous or conflictual oral discourse in which it was made. All that remains perceptible is the apparent consensus. To overcome the illusion of unity, we must resort to unofficial notes, clerks' scribbles, the indiscretions of jurors or journalists—in short, to sources whose purpose is not, precisely, to be official.
8The contributions also question the limits of judicial writing. We can identify at least three. First, writing alone does not do justice. It has never completely replaced words and gestures. Moreover, it has long been a support, a supplement or a complement to these words and gestures. The public reading of the judgment further illustrates the power of speech, even when writing dominates and is considered authoritative. This is not simply a matter of reproducing habits or satisfying a ritual. Judicial speech, as we have said, is a statement that transforms reality, gives it meaning and puts it back in order. Pronounced by the institution that has the responsibility or monopoly of the power to reorder, it has, in itself, a symbolic force that is reinforced, complemented and disseminated by the written word. Another limitation is that the written word is characterised first and foremost by its blind spots. Each judicial document has its own specific function. It is constructed, conceived and produced for a specific purpose. It therefore leaves in the shadows any reality that does not fit in with these purposes and functions. Rare are the death certificates or reports of interrogations or hearings that mention emotions, cries, tears, laughter, insults, hesitations, the physical appearance of the parties or lawyers, the time taken to ask or answer questions, or even the languages used. Even rarer are documents that reveal the secrecy of deliberations, possible opposition, conflicts, or disputes. Everything happens as if justice were nothing but unity, harmony, and consensus. The power of the written word to create the illusion of unity is also one of its limitations: because it is intended for a predetermined use, judicial writing primarily reflects that use. Finally, the last limitation noted in the contributions is that, as a major source for historians, judicial documents, because they are the product of a particular time and were produced for a specific purpose, cannot directly account for mentalities, common or individual representations, social habits, deviances or even the place of justice at a given time.
9Another area of research is the effects of judicial documents. Some of the effects specific to the functions of judicial documents have already been mentioned: the bureaucratisation and professionalisation of the judicial sphere; the availability of the past in the present; the standardisation of the social world; the forgetting and concealment of unrecorded words and actions; the euphemisation, depersonalisation and neutralisation of a case; and the representation of justice. We would like to emphasise one effect that writing shares with speech: the power to tell the truth. Most of the contributions show the particular advantages of using the written word in imposing the truth and, therefore, in naming reality. Because it circulates more easily, the written word ensures the dissemination and incorporation of the truth more effectively. Thus, the verdict is an act of naming that takes place among the acts of institution. By telling the judicial truth, it reveals and makes people believe the reality it conveys. However, the power of a judicial document, such as a verdict, does not lie solely in its written form. It derives primarily from the symbolic power of the authority that authorises it. The written word is therefore a tool in the struggle for the monopoly of the right to make and speak the law, just as it ensures that monopoly.
10A final area of research, which offers interesting prospects for further development, should be noted: the analysis of the materiality of judicial documents. Most of the contributions pay particular attention to describing the materials used, the types of registers or rolls, the ways of writing and transcribing, the role of the person who writes, drafts or takes notes, the conditions under which these writings were produced, or whether the writing is an original, a copy, whether it served as a model or was modified or rearranged during its reproduction. The act of writing and the medium on which it is written are often blind spots in research. The text is of greater interest than the way in which it was written. However, analysis of the ways in which judicial writings were recorded and their materiality reveals two types of possible transgressions. During transcription, the person holding the pen, whether a magistrate or a clerk, has the power to translate, retranslate, interpret, reinterpret, arrange and modify the words or the decision. In exceptional cases, they may even commit a radical transgression by forging a false document. The judicial writings we read are always, to a greater or lesser extent, transcriptions that have been subject to possible betrayals. Moreover, the writing medium makes these faithful or faulty translations of words and decisions more or less possible, whether through the more or less manipulable nature of the medium, or through the means and time devoted to reproduction. For example, because he is writing a document that must first serve the judicial institution, the clerk will write the defendant's answers in English rather than in the language he used, allowing himself, in passing, to rephrase and contract the sentences spoken, in order to retain only what seems essential to justice (approval, denial, details of the circumstances of a crime, the names of accomplices). Another example is that, despite legal requirements governing the writing of judgments, magistrates may develop their reasoning, imposing both a common vision and establishing themselves as capable of producing such a vision. When reading, this time, the physical nature of the text frames the possibilities for reading and therefore for appropriation: reading a scroll is not the same as reading a codex or a computer screen. It does not require the same time, the same provisions, the same equipment, or the same storage conditions. It therefore does not allow for the same readings, interpretations and uses: note-taking, commenting, cutting, reproduction. The entire judicial reasoning process has been transformed by the evolution of the materials used to contain and disseminate judicial writings. Transgressions in reading are more or less possible depending on the methods used to archive a text. Interpretation, i.e. the justification for appropriating a text, is certainly facilitated by writing, as Jack Goody pointed out, but it is more constrained in the case of the dissemination and mechanical reproduction of a text: as these are more visible, they must also be better justified, encouraging the production of other texts.
11Finally, we would like to thank the researchers who participated in the symposium at the Maison des Sciences de l'Homme d'Aquitaine in September 2022, devoted to judicial writings, which is now being translated into this issue of the journal Criminocorpus. This field of research, which the conference sought to enrich, offers important perspectives if we believe that judicial writings should be taken seriously for what they are: texts, inscribed in a materiality, which contain words that speak the truth.
Notes
1 The history of judicial practices has undergone an interesting historiographical development. We would like to refer readers to the bibliographies in Martine Charageat, Bernard Ribémont, Mathieu Soula, Mathieu Vivas (eds.), Résister à la Justice, xiie-xviiiesiècle, Paris, Classiques Garnier, coll. "Pollen", 2020; Martine Charageat, Bernard Ribémont, Mathieu Soula (eds.) Corps en peine. Manipulations et usages des corps dans la pratique pénale depuis le Moyen Âge, Paris, Classiques Garnier, coll. "Pollen", 2019; Jean-Pierre Allinne Mathieu Soula (eds.), Justice et oubli. France – Rwanda, Paris, La Documentation française, coll. Histoire et Justice, n° 28, 2018; Jean-Pierre Allinne, Mathieu Soula (eds.) Criminal Death. Historical and Contemporary Issues of the Death Penalty, Rennes, PUR, L'univers des normes collection, 2015; Martine Charageat, Mathieu Soula (eds.), Denouncing Crime from the Middle Ages to the19thCentury, Pessac, MSHA, 2014.
2 On the subject of penal ritual, here too, historiography continues to grow. See, among others: Michel Bée, "Le spectacle de l'exécution dans la France d'Ancien Régime" (The spectacle of execution in France under the Ancien Régime), Annales, économies, sociétés, civilisations, vol. 38, no. 4, 1983, pp. 843-862; Pieter Spierenburg, The spectacle of suffering: executions and the evolution of repression: from a preindustrial metropolis to the European experience, Cambridge, Cambridge University Press, 1984; Michel Porret, "Mourir sur l'échafaud à Genève au xviii(e)siècle" [Dying on the scaffold in Geneva in the 18th century], Déviance et société, vol. 15, 1991, no. 4, pp. 381-405; Claude Gauvard, Robert Jacob (eds.), Les rites de la justice. Gestes et rituels judiciaires au Moyen Âge, Paris, Le Léopard d’or, 2000; Régis Bertrand, Anne Carol (eds.), L’exécution capitale: une mort donnée en spectacle: xvie - xxe siècle, Aix-en-Provence, PUP, 2003; Pascal Bastien, L’exécution publique à Paris au xviiie siècle. Une histoire des rituels judiciaires, Paris, Champ Vallon, 2006; Daniel Arasse, La guillotine ou l’imaginaire de la Terreur, Paris, Flammarion, coll. "Champs-Histoire", 2010; Pascal Bastien, Histoire de la peine de mort. Bourreaux et supplices, Paris, Londres, 1500-1800, Paris, Seuil, 2011; Claude Gauvard, Condamner à mort au Moyen Âge, Paris, PuF, 2018.
3 See bibliography. Pierre-Anne Forcadet, "History of Law and 'Gender Theory'. Critical Approaches to Gender," Criminocorpus [Online], 27 | 2025, published online on 27 May 2025, URL: http://journals.openedition.org/criminocorpus/17001. Didier Lett, Crimes, genres et châtiments au Moyen Âge (Crimes, Genders and Punishments in the Middle Ages), Paris, Armand Colin, 2025.
4 The historiography of writing in the service of urban administration is rich, and that on justice is also growing. See, among others: Philippe Payen, The physiology of the ruling of the Parliament of Paris in the 18thcentury, Paris, PUF, 1999; Olivier Poncet, Isabelle Storez-Brancourt (eds.), Une histoire de la mémoire judiciaire de l’Antiquité à nos jours, Paris, Publications de l’École nationale des chartes, 2009, Arnaud Fossier, Johann Petitjean, Clémence Revest, (eds.), Écritures grises. The working tools of administrations (12th–17thcenturies), Paris, École des Chartes – École française de Rome, 2019.
5 Paul Bertrand, Bertrand, Ordinary Writing. Sociology of a Time of Documentary Revolution (1250-1350), Paris, PUS, 2015.
6 Michael Clanchy, From memory to written records. England 1066-1307, London, Wiley-Blackwell, (1979) 2012.
7 Émile Benveniste, Le vocabulaire des institutions indo-européennes, 2, Pouvoir, droit, religion, Paris, Les Éditions de Minuit, 2010, p. 108.
8 Ibid., p. 109.
9 Ibid., p. 145. On judicial speech: Marie Houllemare, Politiques de la parole. Le parlement de Paris au xvi(e)siècle, Geneva, Droz, 2011. On the performativity of speech in general in the Middle Ages, see the works of Irène Rosier-Catach.
10 Henri-Jean Martin, Histoire et pouvoirs de l’écrit, Paris, Albin Michel, "Bibliothèque de l’Évolution de l’Humanité," 1996, p. 85.
11 Jack Goody, La raison graphique, la domestication de la pensée sauvage, Paris, Les Éditions de Minuit, 1979, p. 55.
12 Ibid., p. 96.
13 Ibid., p. 145.
14 Pierre Bourdieu, Sur l’État. Cours au Collège de France, 1989-1992, Paris, Raisons d’agir – Seuil, 2012, p. 26.
15 On the notion of representation, see: Roger Chartier, ‘Construction de l’État moderne et formes culturelles : perspectives et questions’, Culture et idéologie dans la genèse de l’État moderne. Actes de la table ronde de Rome (15-17 octobre 1984), Rome, École française de Rome, 1985, pp. 491-503; "Le monde comme représentation," Annales. Économies, Sociétés, Civilisations, vol. 44, no. 6, 1989, pp. 1505-1520; and Gérard Noiriel, "L’histoire culturelle aujourd’hui, entretien avec Roger Chartier," Genèses, 15, 1994, pp. 115-129; "Power and Limits of Representation: On the Work of Louis Marin," Annales. Histoire, Sciences sociales, vol. 49, no. 2, 1994, pp. 407-418; "Does the New Cultural History Exist?", Les cahiers du Centre de recherches historiques, no. 31, 2003. For one critique, among others, of the uses of the concept of representation: Carlo Ginzburg, "Représentation: le mot, l'idée, la chose" (Representation: the word, the idea, the thing), Annales. Économies, Sociétés, Civilisations, vol. 46, no. 6, 1991, pp. 1219-1234.
16 Encyclopédie méthodique ou par ordre des matières, par une société de gens de lettres, de savans et d’artistes, Jurisprudence, Paris, Panckoucke, vol. 7, p. 345.
17 Donald F. McKenzie, Bibliography and the Sociology of Texts, Paris, Éditions du Cercle de la Librairie, 2011.
Haut de pagePour citer cet article
Référence électronique
Martine Charageat et Mathieu Soula, « Powers and functions of judicial documents », Criminocorpus [En ligne], 29 | 2025, mis en ligne le 19 décembre 2025, consulté le 16 février 2026. URL : http://journals.openedition.org/criminocorpus/18420 ; DOI : https://doi.org/10.4000/15dmp
Haut de pageDroits d’auteur
Le texte seul est utilisable sous licence CC BY-NC-ND 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont susceptibles d’être soumis à des autorisations d’usage spécifiques.
Haut de page



