The practical utility of Pierre Bourdieu’s

relational theory in socio-legal research

1

Angélica Cuéllar Vázquez*

mn

La utilidad práctica de la teoría

relacional de Pierre Bourdieu en

la investigación sociojurídica

Abstract

The purpose of this text is to offer a proposal for the use of the concepts included in French

sociologist Pierre Bourdieu’s relational theory in the field of socio-legal research. Bourdieu

defines such notions as habitus (schemes of interpretation), field and capital. To do this, we

undertake a succinct review of the concepts and then expose their practical use in an em-

pirical research study on the changes in the Mexican legal model, i. e., the transition from

an inquisitorial system to an adversarial oral one, concretely in the city of Cuernavaca in the

state of Morelos. Due to space limitations, we only develop two topics analyzing the practices

and the judges: the construction of legal truth and the new and old practices, known as the

oral accusatory system.

Keywords: Sociology; Jurist; Interpretation; Law.

1

*

Originally published in Spanish, in Novum Jus, vol. 9, n.° 1, January-June 2015, pp. 103 to

122. Research article that is part of a longer piece of work sponsored by the Directorate

General for Academic Personnel Issues –dgapa– at unam. The work belongs to the Technical

Research and Innovation Projects Support Program (papiit) IN 305312 and is entitled “El

sistema de justicia en México. Reforma and prácticas sociales”. I would like to thank the

collaboration of Ivonne Roldán and Alhondra Rodríguez, research assistants from the

National Council of Science and Technology (Conacyt) in writing this article.

Titular Professor of the School of Political and Social Sciences at Universidad Nacional

Autónoma de México –unam–, Doctor in Sociology (unam), PhD. in Sociology (Universidad

de Milán); e-mail [acuellarunam @gmail .com], orcid [https ://orcid .org /0000-0002-

7952-7141].

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Angélica Cuéllar Vázquez

Resumen

En este texto se pretende ofrecer una propuesta para el uso de los conceptos de la teoría

relacional del sociólogo francés Pierre Bourdieu en la investigación sociojurídica. Estas no-

ciones son el habitus (esquemas de interpretación), campo y capital. Para lograr ese objetivo,

se hará una revisión sucinta de ellas y después se expondrá su utilidad práctica en una inves-

tigación empírica que versa sobre el cambio en el modelo de justicia en México: el tránsito

del sistema inquisitivo al acusatorio-oral, concretamente en la ciudad de Cuernavaca en el

estado de Morelos. Por razones de espacio, solo se desarrollarán dos temas de análisis de las

prácticas de los jueces: la construcción de la verdad jurídica y las nuevas y viejas prácticas, el

llamado sistema “tradicio-oral”.

Palabras clave: Sociología; Jurista; Interpretación; Derecho.

Fecha de presentación: 9 de abril de 2025. Revisión: 16 de mayo de 2025. Fecha de aceptación:

21 de mayo de 2025.

ef

I. Introduction

The aim of this text is to demonstrate, using Pierre Bourdieu’s key

concepts, how judges’ practices in oral trials have been redefined

through the incorporation of new skills, as well as their role in the

new justice system, and how the new structure is affected by the way

it incorporates new practices while preserving old inertia. In short,

I want to show how orality impacts old practices and generates new

ones. The research employed qualitative methodology techniques,

including interviews with legal professionals, on-site observation

of hearings, and video recordings of those hearings. The interviews

were conducted between January and March 2014. The profession-

als interviewed were six judges (who do not fulfill a specific role, but

rather rotate, meaning they perform the three functions established

by the reform in different proceedings), three public defenders, and

three public prosecutors.

II. Criminal Justice Reform in the State of Morelos

The reform to the criminal justice system in Mexico was published in

the Official Gazette of the Federation on June 18, 2008, and brought

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about a complete restructuring of the justice system. This reform

modified various aspects of the criminal process:

– Public safety (police forces).

– Law enforcement (functions of the Public Prosecutor’s Office).

– Administration of justice (functions of judges).

In this research, I will focus on analyzing the new practices in the

administration of justice, specifically the functions judges perform in

oral trials. This review was conducted after observing how the new

practices established by the reform for the role of the judge are adapt-

ed and adopted in the new context.

The new justice system proposes that oral trials be a way to pres-

ent and debate a case based on the principle of presumption of inno-

cence. The process is an open dialogue among the participants (judg-

es, public prosecutors, and defense attorneys) who will confront each

other to construct the legal truth. The new justice system establishes

orality as the primary means to implement the guiding principles of

the adversarial system and modify the practices of those involved in

the system. The principles outlined by the reform are:

– Advertising.

– Immediacy.

– Continuity.

– Concentration.

– Contradiction.

As previously mentioned, the focus of this research is to identify

new practices arising from orality. Although not explicitly stated as

one of the principles established in the reform, it is explained that

orality guides the entire course of the new justice system. For the

purposes of socio-legal research, orality represents a rich area for

analysis because it signifies a paradigm shift in the practices of legal

professionals, moving from a written to an oral justice system. In the

old inquisitorial system, testimonial evidence and the case file were

privileged, and there was a concentration of functions in the Public

Prosecutor’s Office at all stages of the process. In contrast, the new

justice system proposes a separation of functions, that is, a procedur-

al balance, to ensure greater transparency in the process and respect

for the human rights of victims and defendants.

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The reform represents a fundamental modification to the func-

tions of legal professionals. Training has been phased in and led

by the Technical Secretariat of the Coordinating Council for the

Implementation of the Criminal Justice System –setec–, a government

agency under the Ministry of the Interior. It should be noted that, for

the training of these professionals, the Ministry has received support

from national and international organizations such as the US Agency

for International Development –usaid–², the Program to Support the

Rule of Law in Mexico –proderecho–, the National Commission of

Superior Courts of Justice of the United Mexican States –conatrib–,

and public universities in the state of Morelos, as well as various insti-

tutions from Spain, Germany, Chile, Canada, Italy, the United Kingdom,

and the European Union, all of which have invested in the implemen-

tation of the reform.

The transition from the inquisitorial to the adversarial-oral

system in Mexico has been gradual and, in some states, almost non-

existent. For this reason, the analysis was conducted in the city of

Cuernavaca³. The state of Morelos implemented oral trials almost si-

multaneously with the publication of the reform. To date, legal profes-

sionals have been working within the new system for seven years.

The reform establishes a new role for all legal operators, but in

this work, I will only mention that of judges, public servants belong-

ing to the judicial branch responsible for directing the presentation

of arguments and evidence in a public, adversarial and oral manner.

Furthermore, each stage of the process has a different type of

judge: the preliminary hearing judge, responsible for ensuring due

process is respected during the investigation stage; the trial judge,

who is in charge of issuing the sentence based on the presentation

of evidence by the parties; and the enforcement judge, who oversees

compliance with the imposed sentence.

2

3

usaid is a U.S. agency that has been responsible for training legal professionals in Latin

America during the transition to new justice systems. It also provides funding for state

policy development projects in the Americas.

According to data from setec, until the end of 2014 the implementation of the reform in

the states of the Mexican Republic was as follows: initial stage, 1; planning stage, 15; en-

try into force stage, 5; partial operation, 8; and total operation, 3, among them, the state

of Morelos.

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Article 20 of the Constitution outlines, in general terms, the new

functions that judges must fulfill and their institutional role: they

must be present throughout the entire process and will not be famil-

iar with the case beforehand; they will direct the taking and presenta-

tion of evidence during the public and oral hearing; they cannot meet

with either party without the other being present; they will be the

only ones authorized to grant a search warrant or order preventive

detention and must apply the constitutional principles that govern

the system to respect due process and protect the human rights of

victims and defendants.

To establish a comprehensive profile of legal professionals, in

this case judges, it is not enough to have an institutional profile; a so-

cio-demographic profile of these professionals in the state of Morelos

must also be defined. Combining both provides sufficient information

to characterize the emerging field and the new practices of judges

within the Mexican justice system, and to identify some of the prac-

tices they have redefined.

I obtained the sociodemographic profile by examining publicly

available information on judges in the state of Morelos. Currently, the

state has 45 criminal court judges, whose average age is between 40

and 49 years (Chart 1).

Chart 1

Age range of criminal judges in the state of Morelos

50 years old or more

7%

30 to 39 years old

30%

40 a 49 years old

63%

Source: Own elaboration.

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Judicial careers were also considered another important ele-

ment of the profile of the state’s judges. It was observed that, prior to

their appointment as judges, a high percentage served as court clerks,

drafting clerks, or legal secretaries, with over 75% of current judges

having held one of these positions under the old system.

The drafting secretaries were responsible for reading and re-

viewing the case files and, therefore, proposing a draft judgment for

the judge to review; the court clerks were responsible for compiling

the case file with the complaints, briefs, official communications, or-

ders, and motions that arrived at the courts; and the study and ac-

counting secretaries studied the case files, complaints, or briefs and

presented a draft judgment to the judge for approval. Institutionally,

the secretaries were meant to support the judge; however, in practice,

the entire evaluation of the case file, the evidence, and the drafting of

the judgment fell to them, which led to the judge not attending hear-

ings regularly.

Judges in the state of Morelos have received training to operate

the new justice system, focusing on human rights, skills, and abilities

for oral argumentation, as well as courses on interpreting body lan-

guage.

III. The New Structures and the

Definition of the New Socio-Legal Field

This section will define the structure of the new justice system field

in Cuernavaca using Pierre Bourdieu’s concepts, specifically the con-

cept of the field, to observe how judges adopt the new practices and

redefine the legal field.

The false premise of overcoming dualities (macro-micro, struc-

ture-subject, method-theory) led Bourdieu to propose a relational

theory, that is, to understand the agent’s action not only based on

a structure, but also on observing the influence the subject has on

it. For the French sociologist, overcoming dichotomies or dualities

means studying a social phenomenon by thinking relationally:

… the real is the relational: what exists in the social world are relations. Not

interactions between agents or intersubjective ties between individuals, but

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objective relations that exist “independently of individual consciousness or

will”⁴.

In other words, his concepts have meaning thanks to a system of rela-

tions, since a concept cannot be used independently, but only in rela-

tion to another.

Pierre Bourdieu’s concepts have been used in both qualitative

and quantitative studies because they can be empirically constructed

using both methodologies⁵.

The empirically constructed data for this research made it pos-

sible to observe how an agent –the judge– uses their knowledge, ex-

periences, and ways of perceiving reality to operate within a specific

space, following a logic of operation. Neither structures nor agents

can be understood autonomously, because the relationship between

them is what allows for the explanation of action.

With the penal reform in Mexico, the legal framework and the

actions of its operators were modified, as observed in their practices.

The analysis of this change showed how the structure and actions of

judges are linked in oral trials. The starting point was an element that

has been incorporated into the composition of the new field in the

logic of judges’ operations: orality.

This paradigmatic shift implied a change in judges’ practices,

which led me to focus on how legal operators internalized the new le-

gal structure in their daily practices, how judges adapt to it, and how

they modify it.

One might think that reform, in and of itself, changes the field of

the justice system, but the actions of judges do not do so automati-

cally. Bourdieu explains that the agent’s actions affect the structures

4

5

Pierre Bourdieu and Loïc Wacquant. Una invitación a la Sociología reflexiva, Buenos

Aires, Siglo xxi editores, 2008, p. 134.

Bourdieu points out: “Nothing has been explained, nothing has been understood, when

the existence of a strong correlation between a so-called independent variable and a so-

called dependent variable has been established: as long as what it designates in each

particular case, that is, in each particular relationship, each of the terms of the relation-

ship (for example, the level of education and the knowledge of composers), has not been

determined, the statistical relationship, however great the precision with which it can

be numerically determined, remains a pure datum, devoid of meaning […] In this way, to

adequately interpret the observed differences […] it will be necessary to analyze in their

entirety the social uses, legitimate or illegitimate, to which each one lends itself”. Pierre

Bourdieu. La distinción. Criterio y bases sociales del gusto, Madrid, Taurus, 2012, p. 21.

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and vice versa, by considering objective structures as embodied in the

form of interpretive frameworks, which he calls habitus.

To understand the agent’s actions, one must consider their skills

and the contexts in which they operate. The concept of habitus ac-

counts for both the objective structures of the field and the embodied

structures, which are the choices judges make to modify their prac-

tices. There is neither a causal nor a one-to-one relationship between

objective structures and the agents’ practices.

Bourdieu defines the field as:

… a network or configuration of objective relations between positions. These

positions are objectively defined, in their existence and in the determina-

tions, they impose on their occupants, agents or institutions, by their present

and potential situation (situs) in the structure of distribution of species of

power (or capital) whose possession orders access to specific advantages

that are at stake in the field, as well as by their objective relation with other

positions (domination, subordination, homology, etc.)⁶.

The field is the concept that provides containment for habitus; that is,

it is the specific space where judges will utilize their capital. Capital

is the accumulation of knowledge and skills that judges possess to

position themselves within the new criminal justice system, and this

position impacts the perception of the other agents participating in

the hearings through interaction. In relational theory, capital is un-

derstood as:

A type of capital is something that is effective in a given field, both as a weap-

on and as a factor in the contest, allowing its possessors to wield power and

influence, and therefore to exist within the field in question, rather than be-

ing considered a negligible figure⁷.

Judges mobilize their capital to redefine their practices based on oral-

ity, which, in turn, functions as a form of capital that they acquire and

develop, first through the training they receive and then through their

daily work in the hearings.

A field is a small social universe where power relations, relations

of force, the use of capital, and struggles to transform or preserve that

6

7

Bourdieu and Wacquant. Una invitación a la Sociología reflexiva, cit., p. 135.

Ibid., p. 152.

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space are observed. It is governed by its own laws that do not apply in

other social fields. To think about a field is to think relationally and to

recognize its relative autonomy.

A field is constructed with regularities that may be explicit or im-

plicit; it is configured and operates according to specific written and

unwritten rules. Furthermore, it can be seen as a place where judges

make use of their skills and knowledge.

In the new criminal justice system, judges mobilize their resourc-

es according to beliefs, skills, prior experiences, interests, and val-

ues, which manifest themselves in their interactions within the field.

Within any field, a power dynamic will always exist.

… whose necessity is imposed on the agents who have entered it, and as a

field of struggles within which the agents confront each other, with means

and ends differentiated according to their position in the structure of the

field of forces, thus contributing to preserving or transforming its structure⁸.

Judges who have joined the oral justice system have undergone a

training process that transforms them into “professionals” and is de-

signed to update their practices and acquire new skills. However, this

does not represent a complete overhaul of practices, but rather a re-

interpretation of them.

With the reform of the criminal justice system, a reconfiguration

of the legal field, and consequently, of judges’ habits, can be observed.

The accumulation of acquired knowledge plays a significant role in

this process, as it serves as a tool for appropriating and interpreting

new legal practices.

In this research, it was pertinent to begin with a reconfiguration

of the justice system in Mexico following the reform. The field is the

objective structure, but at the same time, it is a space where judges

put into practice all the skills, prior experiences, and knowledge they

possess and acquire. Judges not only reinterpret their practices based

on the reform decree, but also on the experience they have gained in

their daily work within the judiciary.

The field of study was constructed from empirical data and, in this

specific case, through analysis of the reform, interviews with judges

8

Pierre Bourdieu. Razones prácticas. Sobre la teoría de la acción, Barcelona, Anagrama,

1997, p. 49.

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and other legal professionals, and observation of hearings. Both the

judges’ past experiences and their encounter with the new oral jus-

tice system were crucial in constructing this field of study.

IV. The Reinterpretation of Judges’

Practices: The New Habitus

Habitus can be a difficult concept to operationalize due to its level of

abstraction, so one approach is to find it in the judges’ mental capi-

tal. This also includes the incorporated or acquired structures, capi-

tal that can be observed in the interpretive framework’s judges use

to make decisions or express preferences. These interpretive frame-

works are embedded in habitus, and therefore it is the concept that

gives meaning to the relational aspect.

For this research, orality is the incorporated practice that will

touch upon the judges’ long-standing practices and inertia.

Interpretive frameworks made it possible to include empiri-

cal material in the research and to approach the judges’ habitus:

“Bourdieu characterizes habitus as a ‘system of internalized schemas

that allow for the generation of all the thoughts, perceptions, and ac-

tions characteristic of a culture⁹.’”

It is important to emphasize that habitus is a central concept be-

cause it recognizes that the participating individuals are not passive

and do not simply follow instructions. Pierre Bourdieu starts from

the assumption that each individual generates expectations in every

interaction and that they have interests that guide their actions.

The concept of habitus accounts for both the pre-reflective and

the intentional aspects present in the judges’ practices; that is, in the

practices they carry out according to their interpretive frameworks,

which may be the product of their past practices and also of a strate-

gic calculation of their actions.

The value of using relational theory also revealed that judges

have resistance and inertia in their practices with respect to change.

9

Gilberto Giménez. La Sociología de Pierre Bourdieu, México D. F., Universidad Nacional

Autónoma de México –unam–, 1997, p. 6.

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Bourdieu presents the genesis of habitus as a process of inculcation of a

cultural arbitrariness and as the incorporation of certain conditions of exis-

tence [...] Inculcation [...] involves a pedagogical action carried out within an

institutional space, “family or school”, by specialized agents, endowed with

the authority to delegate, who impose norms [...] Incorporation, on the other

hand, refers to the idea of an internalization by subjects of the regularities in-

scribed in their conditions of existence [...] What Bourdieu postulates, then,

is a dialectical articulation between inculcation and incorporation, between

the institutional and the experience of the social world¹⁰.

V. How Judges Reframe Their Practices in the

New Field of the Justice System in Mexico

This section will examine how judges reframe their practices and in-

corporate a new habitus based on the reconfiguration of the justice

system in Mexico and their past experiences.

The choices judges make are not predetermined; they are filtered

through frameworks and preferences defined by the resources they

possess and acquire, and by their interactions with other legal profes-

sionals.

As a generative and organizing principle of practices and repre-

sentations, the concept of habitus involves observing all aspects of a

person’s life –their interests, knowledge, and experiences– that de-

fine their choices; it is the principle that allows judges to draw upon a

distinct set of knowledge and experiences to reframe their practices.

The habitus, as measured by the capital, shows that each judge

generates interpretive frameworks.

In the construction of legal truth and in the observation of new

and old practices, I found a rich field of analysis. There, the objective

structure –which is the field of the new justice system, delimited and

established– converges with the reform and the incorporated struc-

tures –which are the knowledge, past experiences, and skills acquired

through training–. Judges incorporate these practices when carrying

out their duties in oral trials; old and new capital shape a new habitus.

When using relational theory in social research, the key concepts

cannot be separated. As Loïc Wacquant points out:

10 Ibid., pp. 11 and 12.

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The concepts of habitus and field allow Bourdieu to move beyond the false

dichotomies of personal spontaneity and social compulsion, freedom and

necessity, choice and obligation, and to shift his focus to the state from the

common alternatives of individual and structure, micro (Blumer, Coleman)

and macro (Bla, Skocpol) analyses imposed by a polarized, dualistic social

ontology: “One does not have to choose between structure and agents, be-

tween the field, which gives meaning and value to the properties objectified

in things or embodied in people, and the agents, who play with their proper-

ties in the playing field thus defined”, or between positions within a space of

resources and the socialized urgencies, motives, and “intentions” of its oc-

cupants¹¹.

Two themes derived from the interviews will be presented below¹²:

on the one hand, the construction of legal truth, and on the other, new

and old practices, the “traditional-oral” system.

VI. The Construction of Legal Truth

Depending on the legal system in which it operates, the construction

of legal truth has distinct characteristics. In the old system, it was

based on circumstantial evidence, that is, on logical reasoning devel-

oped by judges or drafting clerks based on the testimonies presented

during the proceedings. Testimonial evidence was privileged, partic-

ularly that provided by police officers and witnesses offered by the

Public Prosecutor’s Office, which held all the power, accusing and es-

sentially judging under the presumption of guilt.

In the interviews, it was observed that judges are reinterpreting

the practice of judging based on the work of the clerks, a role they

themselves performed in the old system.

It is worth noting that more than 75% of the judges operating in

the state of Morelos served as clerks for judges in the old system. It

could be said that current judges draw on the experiences of the old

system and the new practices established by the reform to construct

legal truth.

11 Ibid., p. 49.

12 To identify the interviews, I assigned an identification code, in order to maintain the

anonymity of the legal operators interviewed: judge, J; defense lawyers, ad; Public

Prosecutors, MP.

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Delivering a sentence immediately, as evidence is being received, developed,

or presented, and then having to deliver a sentence literally orally, is not an

easy situation, because the drafter took days¹³.

I have to orally issue a ruling explaining in real time why I’m ruling in favor

of one person and why I’m ruling against the other, and this requires certain

communication skills that many judges in the traditional system lacked be-

cause the system didn’t demand them. There was a drafter from the outset¹⁴.

And there was also a drafting clerk, who analyzed the case and proposed a

draft. Here, in these hearings, we judges don’t have those two powerful tools.

This means that the prosecutors and the defense have to give me precise,

direct, necessary, and appropriate information so that I don’t get lost in the

sea of information that might be generated and can rule according to the

parties’ claims¹⁵.

In the new system, the primary evidence, established by the reform,

is scientific or expert evidence. The aim was to transition to a system

that guarantees rights based on the principle of the presumption of

innocence; Therefore, the evidence presented must be scientifically

supported in order to prove the fact. However, judges still rely on tes-

timonial evidence to support their rulings.

… we have witnesses who testified that these young men were there; what

is clear is that they were there for the money, right? And that they arrived

on the motorcycle. I don’t see where, with that direct accusation, I need any

more evidence, not even from the victim; with those two testimonies, a sen-

tence can be upheld […] it’s pure logic; the process is pure logic. We have

to look at formal issues, for example, regarding the accusation […] so, when

there are already two or three incriminating circumstances, I can issue a

guilty verdict with that¹⁶.

The analysis of the interviews revealed that the judges rely on their

past experience; they continue to sentence as in the old system, in a

veiled, non-explicit manner, and they admit, at times, that they still

use testimony to construct legal truth.

13 J2, personal communication, January 21, 2014.

14 J1, personal communication, January 21, 2014.

15 Idem.

16 J5, personal communication, March 4, 2014.

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One of the most common things we’ve seen regarding this issue in robbery

cases […] is that the police come and say, “I arrested him”, and maybe “I ar-

rested him with the stolen items” or “I arrested him because the victim point-

ed him out to me”.

Is there any doubt? However, the law states that the crime must be thorough-

ly proven […] Indirectly, we are certain that they did participate, but it is not

fully proven. What happens in these cases? Goodbye, they’re gone¹⁷.

Two defense attorneys expressed the following opinion regarding the

judges’ assessment:

But we believe there is evidence, or rather, facts that should only be proven

by scientific evidence, as in this case, and there are judges who say: “I don’t

care about scientific evidence; as long as the witness said so, that’s enough”¹⁸.

Previously, in the formal indictment, the corpus delicti had to be proven; now

it’s no longer necessary. Now, it’s enough that there are indications that a

crime has been committed and that there is a possibility that the accused

committed it. So, the standard of proof has been lowered considerably; Then,

based solely on circumstantial evidence, they can indict you¹⁹.

This excerpt sheds light on how, in constructing legal truth, the judge

makes a judgment before the evidence is presented, based on the po-

lice officer’s testimony. The testimony reveals the ingrained habits of

legal professionals in the operation of the new system. The judge is

making his judgment based on a pre-existing interpretive framework,

which he is familiar with because he was a court clerk.

I argued that oral proceedings offer a rich space for analyzing the

reinterpretation of judges’ practices.

Ultimately, I can’t intervene, because among the formalities I must respect is

that I am a passive entity, a recipient of information. Therefore, I can’t rectify

any omission by the public prosecutor, especially since they are a technical

body and must possess the skills to communicate information effectively.

And finally, if I’m dealing with a public prosecutor who isn’t properly trained

in this technique and skill, there’s a very high risk of a negative outcome

when it should be positive. So, the implementation problem isn’t so much the

17 J3, personal communication, March 4, 201414.

18 AD1, personal communication, March 13, 2014.

19 AD2, personal communication, March 13, 2014.

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infrastructure, but rather the training of the operators to develop these skills,

which weren’t required in a traditional system²⁰.

It was bland, impersonal; it felt like you were dealing with robots or some-

thing. Even the questions to the court clerk prevented you from freely ques-

tioning a witness, because it was already in their statement. But what if they

hadn’t said it? That’s what freedom of evidence is all about in the develop-

ment of hearings; it’s much better, because we’re not fighting against a piece

of paper. The major paradigm shift from having a written document to having

the live testimony of a witness is that we are now judging people²¹.

In these excerpts, it is clear that orality influences the construction

of legal truth and the evaluation of evidence. The transition from one

system to another reveals the practices and their process of reinter-

pretation.

In addition to orality, new elements are incorporated that were

not present in the old system, such as the interpretation of the body

language of those involved in a process.

… the paper doesn’t speak to you, it doesn’t express you, it doesn’t tell you

anything; So it stays there, and […] if you only value the written record, you

don’t value the gestures, the way the victim expresses themselves, what

they’re trying to tell you, because that’s how we talk; many times we don’t

use the right words, but we know what people mean through their expres-

sions²².

As I mentioned, another characteristic of the new system, which

comes with oral proceedings, is that the judge doesn’t have prior ac-

cess to the case file; they don’t know the facts or the evidence.

… the big difference in this system is that we have nothing. Our administra-

tive file has absolutely nothing, it only has […] a detention order right now,

just the notification that the case has been assigned to me, the request for a

hearing from the Public Prosecutor’s Office that says nothing about the facts,

nothing at all²³.

20 J1, personal communication, January 21, 2014.

21 J4, personal communication, March 13, 2014.

22 J4, personal communication, March 13, 2014.

23 Idem.

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VII. New and Old Practices, the “Traditional-Oral” System

In a brief overview, I observed how judges incorporate a new habitus,

formed from past experiences and skills acquired through training

and their daily experience in oral trials.

We are convinced that the system is good; however, it still needs much im-

provement to achieve its intended purpose: for justice to be as clear as pos-

sible. I insist that, given these deficiencies, I believe, as a defense attorney,

that the Attorney General’s Office has […] The role of the judge, which should

be, in a way, simply that of the arbiter of the oral trial debate, ends up, in

a sense… correcting their own errors and issuing convictions, sometimes

without sufficient evidence²⁴.

I adopted the term “traditional-oral” system from the legal profes-

sionals themselves. They categorize it as such because they believe

it is a blend of the principles of both systems. This showed me that

judges adopt and adapt new practices based on their existing knowl-

edge and experience.

The new system continues to place special emphasis on circum-

stantial evidence:

… they mix elements of the traditional system with elements of the oral sys-

tem […] that’s what “traditional-oral” means. Here we call it the “traditional-

oral” system, a mixture of one and the other, creating a hybrid system²⁵.

… because they (the judges) have to issue a ruling based on the evidence

presented at trial, but even so, there have been cases where we, as defense

attorneys, say: it was grounds for acquittal. And they took it, and now they’re

reconsidering based on circumstantial evidence²⁶.

In practice, judges make use of two types of knowledge: that acquired

from their previous experiences within the judiciary and that ac-

quired from the reform; with this, they form a hybrid system that they

call the “traditional-oral” system.

24 AD1, personal communication, March 13, 2014.

25 J4, personal communication, March 13, 2014.

26 AD1, personal communication, March 13, 2014.

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Conclusion

As Loïc Wacquant points out, manufacturing concepts in socio-legal

research means assuming that:

The peculiar difficulty of sociology, then, is to produce a precise science from

an imprecise, diffuse, and complex reality. For this, it is better that its con-

cepts be polymorphic, flexible, and adaptable, rather than defined, calibrat-

ed, and rigidly applied²⁷.

The use of Bourdieu in empirical research, beyond the debates sur-

rounding his work, its validity, or its fallacy, allowed us to understand

the importance of overcoming the most common dichotomies in so-

ciology, as well as understanding that concepts are flexible and must

be constructed throughout the research process and methodological

delimitation. The strength of this proposal also lies in the fact that so-

ciological research is a theoretical-methodological construction that

is carried out simultaneously.

In the specific case of this research on oral trials, Bourdieu’s con-

cepts allowed me to observe the transition and transformation of the

justice system and how judges’ practices are reinterpreted within the

new field, moving toward the construction of a new habitus. This hab-

itus incorporates interpretive frameworks from their previous expe-

riences in the old system, along with new skills and new interpretive

frameworks. In his words, they construct a hybrid justice system –the

“traditional-oral”– using the old and the new, and openly acknowl-

edge that the new structure of the penal system is filtered through

their old interpretive frameworks.

Relational theory led to the understanding that structures are

not imposed on the agent, but rather that the agent modifies, molds,

and adapts them to make choices within the field in which they find

themselves.

Following the analysis of interviews with legal professionals, it

was observed that judges continue to place particular emphasis on

constructing legal truth through an interpretive framework based on

testimonial evidence; however, at times they manage to balance their

traditional practices with newly acquired skills.

27 Bourdieu and Wacquant. Una invitación a la Sociología reflexiva, cit., p. 49.

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This initial approach to the redefinition of judges’ practices and

the restructuring of the criminal justice system not only identified the

development of judges’ skills and knowledge but also their impact on

the administration of justice.

The implementation of the reform nationwide is a gradual and

slow process because it requires modifications to the practices of

those operating within the system, as well as to the structure and

functions of Mexican judicial institutions. Understanding the true

outcome of the restructuring of the justice system in Mexico will be

a lengthy process. Relational theory allows us to observe how this

change is emerging: the change in the justice system and the change

in the habitus of legal professionals in Mexico.

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