EASA2016: Anthropological legacies and human futures

(P063)
Evidence in question: anthropological authority and legal judgment [Anthropology of Law and Rights]
Location U6-27
Date and Start Time 23 July, 2016 at 09:00
Sessions 2

Convenors

  • Gerhard Anders (University of Edinburgh) email
  • Julia Eckert (University of Bern) email

Mail All Convenors

Short Abstract

This panel examines discussions about evidence in legal proceedings. Different legal orders have developed varying concepts of evidence that are linked to notions of personhood, fact, and truth. These raise new questions also for the current debate about evidence in anthropology.

Long Abstract

This panel examines discussions about evidence in legal proceedings in different cultures and societies. Legal systems around the world have developed sophisticated techniques to distinguish truth from falsehood. In Roman and Common Law, elaborate sets of rules address questions of probability, proof and certainty. Due to the diffusion of European legal systems these concerns are widespread but they are by no means universal. Islamic law, Hindu law and customary law in non-Western societies have developed different techniques to determine truth.

Whilst usually seen as a methodological problem of 'getting it right' the study of evidence raises profound epistemological questions. It is key to understanding law as a way of managing doubt. In legal processes, facts are not found but created. They are presented, connected, rejected or accepted in specific social-cultural settings. Determining the facts is always contingent and shaped by the participants' fundamental assumptions about truth and reality, and by what standard to judge 'reality'. From this perspective, evidence in law is about legal argumentation. Facts only become facts through persuasion and the transformation of disputed fact into proof in social processes.

The insights from legal anthropology speak to the recent debate about evidence and anthropological authority. This debate has tried to find a way forward for a discipline that relies on fieldwork as its principal mode of knowing and rejects scientific and positivist notions of evidence.

We are inviting contributions that question evidence in legal procedures and explore their relation to ethnography as defining practice of anthropology.

This panel is closed to new paper proposals.

Papers

Processes of literary inscription in refugee status determination procedures: Country of Origin Information in France and the UK

Author: Anthony Good (Edinburgh University)  email

Short Abstract

Country of Origin Information (COI) is a key form of evidence used in refugee status determination procedures. This paper focuses on the literary strategies whereby its compilers make explicit or implicit claims about the authoritative character of the COI evidence they present.

Long Abstract

Country of Origin Information (COI) plays an important part in the adjudication of asylum claims in France and the UK. Such evidence is frequently crucial in establishing which general categories of person are likely to be at risk in asylum applicants' countries of origin, and in assessing the plausibility and credibility of the stories told by individual claimants. The starting point of this paper is the recognition that different forms of COI involved in the refugee status determination process vary in their styles of literary presentation as well as their strategies for sourcing material. Its approach differs from most of the burgeoning literature on COI in viewing it from a social scientific rather than a jurisprudential perspective, and in stressing metalinguistic style more than content. It focuses particularly on the strategies whereby compilers or authors make explicit or implicit claims about the authoritative character of the COI evidence that they present. In so doing, it takes as its starting points Latour & Woolgar's (1986) typology of scientific statements and J.L. Austin's (1962) theory of speech acts.

Evidentiary practices, liability, and future making

Author: Richard Rottenburg (University of Halle)  email

Short Abstract

Recent forms of evidence based practice react not only to the ubiquitous spread of cost-benefit-analysis, but also to changing popular and legal demands for higher and more transparent forms of accountability and liability.

Long Abstract

This paper argues that evidentiary practices seek to establish matters of fact through classifications and the identification of regularities in order to allow predictions, open spaces for controlled interventions and to permit attributing liability. Evidentiary practices are about crossing the gap between predictability and unpredictability. To govern, but also to challenge forms of governance by holding those in power accountable, this gap needs to be navigated. This means establishing as many things as possible as matters of fact and thereby rendering the unpredictable more predictable. A rest of unpredictability, though, appears inexorably tied to human endeavors. For experts of all sorts and those who take decisions that affect public life, the gap between predictability and unpredictability proves a difficult dilemma. They are expected to intervene and prevent unwanted developments (accidents, famines, epidemics, etc.), yet their interventions have unintended, sometimes undesirable consequences. To do this audacious work and still be held liable, some ambiguity in the justification of their intervention and what its precise impact was seems unavoidable. This paper asserts that recent forms of evidence based practice - establishing indicators, building rankings, designing interventions as experiments - react not only to the ubiquitous spread of cost-benefit-analysis, but also to changing popular and legal demands for higher and more transparent forms of accountability and liability.

When evidence lies in the victim: Domestic violence and the Law in Italy

Author: Alessandra Gribaldo (Università di Modena e Reggio Emilia, Italy/ ISRF Independent Social Research Foundation)  email

Short Abstract

Through an ethnographic account of domestic violence trials in Italy, I highlight how evidence is paradoxically based on the identification of an ideal gendered victim-subject. Victim’s credibility emerges as crucial in the construction of evidence, providing insights for anthropological knowledge.

Long Abstract

In Italy, victims' testimony plays a pivotal role in the hearings of domestic violence since in most cases the woman is paradoxically the sole figure who speaks, both for herself and her aggressor.

Through an ethnographic account of women's testimony and the expectations of legal professionals in the city of Bologna, I will highlight how women's credibility and agency is crucial for the construction of legal evidence. In examining the role of women's testimony, I approach the Italian legal field as a system of knowledge and power, where intersecting lines of questioning and assumptions produce the victim as evidence.

My presentation will address the courts requirements revolving around victims' credibility, from their narrative's content (coherent, detailed, quantitative) to their intentions (detached from any specific contingency) and the way they express themselves (a truthful tone appropriate to a victim-subject). The normativity of the Italian legal system's requirements is caught up with the confessional device so as to render the testimony incapable of achieving any legal significance, thus making it inadequate in its very essence to prove evidence of the crime. I will highlight the forms of resistance that women deploy to escape the contradictory demands of the juridical apparatus in a context where their agency is regarded as highly suspect.

The production of evidence that emerges within the Italian legal system calls into question the binary logics of truth/untruth, guilt/innocence and agency/coercion, providing insights for a reflection on gender, the law and anthropological knowledge.

Evidence gathering: Knowing in law and anthropology

Author: Sonal Makhija (University of Helsinki)  email

Short Abstract

Anthropology has been subjected to criticism for its epistemological and methodological approach in gathering evidence, as opposed to law that has been hailed for its objective mechanism of marshalling evidence. Drawing on 8 months of fieldwork in a court in Mumbai I question how lawyers know.

Long Abstract

How do anthropologists know? How do they gather ethnographic evidence to bolster the arguments they make? Anthropology has been subjected to criticism for its epistemological and methodological approach in gathering evidence, as opposed to law, that has been hailed for its accurate, rational and objective fact-finding mechanism of marshalling evidence. Drawing on eight months of ethnographic fieldwork in a court in Northern Mumbai, I question the objective knowledge of how do lawyers know or recognize credible evidence? Lawyers often claim to have exclusive insight and access into legal knowledge. The epistemic practice of distinguishing true cases from false or identifying 'real' victims from false is something that emerged recurrently in my conversations with lawyers. In my paper I will underscore and question the so-called objective method of distinguishing and sifting through evidence by lawyers in domestic violence cases. I argue that the epistemic and methodological practice of gathering evidence in anthropology, where anthropologists observe 'patterns' is not any different from how lawyers know. While sophisticated forensic evidence is available to lawyers today, in day-to-day mundane cases lawyers still rely on their subjective experience of 'seeing' and 'knowing' credible evidence.

The File as Hypertext: Documents, Files and the many worlds of the Paper State

Author: Mayur Suresh (SOAS)  email

Short Abstract

I provide an ethnographic exploration of the power of the file in terrorism trials in Delhi. Drawing on my fieldwork, I look at the power or the file not only to record the world, but actively create and destroy the world. I argue that the file is not merely a textual space, but a hypertextual one.

Long Abstract

Files, as an instrument of legal processes, have been thought of as a technology that records the world and provides an accurate picture of the world. Hence scholars like Vismann (2008) and Raman (2012) point to the file as that which determines the world: what is not in the file, is not in the world. If it existed in the file, it was evidence that it existed in the world. In this paper I argue that the power of the file goes further than this: it can literally conjure the world. I argue that if something exists in the file it, it must exist in the world. In doing so, the file destroys one world, and produces another.

Throughout my fieldwork of terrorism trials in Delhi, I found that the terror of law was not manifest through torture and exceptional procedures, but also through the aporia of the worlds produced by the file. A file could create a confession where none existed, could magically summon previously unnamed witnesses and materialise forensic evidence.

Through one case - involving a lost file and the creation of a parallel 'shadow' file - I look at the power or the file not only to record the world, but actively create and destroy the world. I argue that the file is not merely a textual space, but a hypertextual one.

Learning from Delgamuukw: claiming 'Aboriginal title' through oral testimony in Canadian courts

Author: Isabelle Schulte-Tenckhoff (Graduate Institute of International and Development Studies)  email

Short Abstract

Using the landmark Delgamuukw decision as a background, this paper revisits the role of indigenous law and especially that of oral testimony in the litigation of indigenous land claims in Canada.

Long Abstract

After Confederation (1863) and until the watershed judgement in Calder (1973), it was generally held that Aboriginal title existed only at the pleasure of the Crown and could be taken away any time. Since the 1970s and especially with a view to giving substance to section 35(1) of the Constitution Act, 1982, there has been a gradual shift in the determination of Aboriginal title by the Supreme Court of Canada, with the landmark Delgamuukw decision establishing basic principles, as well as associated 'tests' further refined in subsequent judgements. These include the distinction between Aboriginal title (linked to exclusive occupation at the time of contact with Europeans) and site-specific rights (e.g. hunting or fishing rights), as well as the so-called distinctive culture test that limits recognition of site-specific rights to those rights that are determined to be 'integral to the distinctive culture' of a given Aboriginal group. Controversy over these matters has shaped the evolving doctrine of Aboriginal rights and title in Canada, and nourished considerable legal-anthropological debate. One crucial element of this debate hinges on the role of indigenous law as a potential source of 'Aboriginal title', and the standing of oral testimony in advancing land claims. This is the more relevant since the onus of proof rests entirely with the Aboriginal plaintiffs who have to frame their claims in the terms of the dominant legal system.

The jury is out: What evidentiary practices reveal about Norwegian lawyers' attitudes toward lay decision-makers

Author: Anna Offit (Princeton University)  email

Short Abstract

This paper examines Norwegian prosecutors’ and judges evidentiary practices during jury trials as a means of exploring their ideas about lay participation in the justice system.

Long Abstract

Norway is preparing to eliminate its jury system at a time when countries around the world are adopting juries. The research from which this paper stems poses two central questions. First, what accounts for Norway's exception to the global trend? And second, do Norwegian lawyers' attitudes about juries relate to culturally specific norms and intuitions about justice? To answer these questions, ethnographic attention to evidentiary practices during Norwegian trials is essential. Drawing on twelve months of fieldwork in Oslo and an illustrative jury trial this past January, my paper examines the relationship between the creation, commentary on, and presentation of evidence and legal actors' attitudes toward lay decision-makers. First, I argue that attention to jurors' questions about evidence during trial, prosecutors' strategic decisions related to the evidence they present, and judges' commentaries on evidence in the form of "jury instructions" reveal ambivalence about the jury's ability to make sense of evidence and reach truthful and legitimate verdicts. Second, drawing on semi-structured and unstructured interviews with prosecutors and judges in Oslo, Bergen, Hamar, and Tromsø, I examine how skepticism about jurors finds expression in lawyers' characterizations of evidence during trial. This includes lawyers' approaches to drafting and revising closing statements, and the absence of case-specific discussion during jury selection. Finally, this paper shows how lawyers' approaches to presenting evidence to jurors (as opposed to mixed courts) reveal culturally specific understandings of the relationship between truth and justice in legal proceedings as well as other domains of Norwegian society.

Translating evidentiary practices and technologies of truth finding: oath taking as witness testimony in plural legal configurations in rural Morocco

Author: Bertram Turner (Max Planck Institute for Social Anthropology)  email

Short Abstract

The paper analyzes a court proceeding in rural Morocco in which a people’s judge operates with specifically developed technologies of taking evidence and establishing truth that appear inherently contradictory but nevertheless reflect aspects of various normative logics.

Long Abstract

The paper addresses technologies of truth finding and the establishment of evidence in dealing with everyday deviance at the village level in rural Morocco. There is a multitude of institutions and individuals that appear to be tied to the formal legal system and the state to varying degrees. In this paper, one particular institution - that of the people's judge, the hakim - takes center stage. The hakim was entitled to pass judgment on behavior that was considered a non-serious infraction of that order in which local normativity and formal law converge. In this plural legal configuration, I argue, the hakim operated with specifically developed technologies of taking evidence and establishing truth that appear inherently contradictory but nevertheless reflect aspects of various normative logics, namely locally well-established customary practices, Islamic procedures, and those acknowledged by the formal judiciary. In the process, evidence and truth hence emerge as "averaged" normative categories to serve justice at the grassroots level while still complying with the requirements of the formal legal system. As will be shown, a procedure the hakim applied in his court to establish the truth—the taking of an oath—appears to be a hybrid of different normative logics and frames of reference. I argue that this approach allowed the hakim to draw on aspects of competing truths or realities that follow different normative and social logics to ultimately arrive at one definitive conclusion.

Truth telling and intimacy: The case of the 'community courts' of Mozambique

Author: Fabio Provenzano ( University of Copenhagen )  email

Short Abstract

The paper draws on fieldwork conducted from August 2015 to April 2016 in Maputo, Mozambique. It investigates actors’ strategies of truth-telling during ‘informal court’ sessions and explores the moral economy of actors’ performances in the negotiation of sentences, along with other practices.

Long Abstract

Since the early 1990s, Mozambique has been experimenting with a transition from a socialist to a capitalist system. This has involved various political reforms affecting, among other spheres, its juridical system. Such changes have included opening up the space for many indigenous organisations to re-emerge, strengthening the role of traditional leaders and local institutions in settling disputes in both rural and urban areas. Among the most popular of these institutions is the 'community court', a hybrid institution combining both the European colonial and Mozambican traditional legal orders, used for solving cases from witchcraft accusations to land disputes. These courts number around 40 units in Maputo alone, the Mozambican capital.

This paper investigates actors' strategies of truth-telling during 'community court' sessions in Maputo. It explores the moral economy of actors' performances in the negotiation of sentences, as well as such practices as judges seeking to attain a certain degree of intimacy with various participants in the courts, and the use of objects symbolising state authority. It notes that the emphasis within court sessions has been primarily on the representations of the defendants shared by 'community' members, rather than on evidence related to the cases. Moreover, such information was often used as proof of a defendant's disregard of 'community' obligations. The paper is part of ongoing research on city inhabitants' perceptions of 'community judges'. It draws on fieldwork conducted in Maputo from August 2015 to April 2016, including interviews and six months of participant observation inside two community courts in the outskirts of the city

Doing it "the village way": determining paternity in Malawian magistrates' courts

Author: Jessica Johnson (University of Birmingham)  email

Short Abstract

This paper focuses on legal facts and ethnographic facts in the context of a paternity dispute observed in a Malawian Magistrate’s Court in 2015, examining the different valuations of doubt and certainty by the Magistrate and the anthropologist in light of their contrasting aims.

Long Abstract

'We've done it the village way. There are two ways of doing it, at hospital and as we have done it here…My ruling is that the child is yours'. Thus, a Magistrate informed a young man in rural Malawi that the 1-month old child he insisted he had not fathered was in fact his, and that he would be expected to support it financially until it reached adulthood. With DNA testing ruled out on cost grounds, the Magistrate had made his decision on the basis of what he called 'traditional' evidence. One by one, he had called three unrelated women, all of them mothers, into his office, explaining to each of them that two of the men in the room - the defendant, and the child's maternal uncle - were claiming paternity. The women were asked to look carefully at the child and then to decide who they thought was the father. As far as the Magistrate was concerned, the evidence was overwhelming. Others present that day in September 2015 were less convinced. In declaring paternity, the Magistrate's interests couldn't have been more different from the anthropologist's. For him, apparent consensus enabled the declaration of legal fact: the man was the father. For the anthropologist, differing perspectives on what had occurred were essential to the construction of the ethnographic fact of contestation. This paper will consider how our different interests produced contrasting assessments of what 'counted' as evidence and what that 'evidence' ought to achieve.

This panel is closed to new paper proposals.