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- Convenors:
-
Gerhard Anders
(University of Edinburgh)
Birgit Müller (CNRS)
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- Format:
- Panels
- Location:
- SO-D315
- Sessions:
- Tuesday 14 August, -, -
Time zone: Europe/Stockholm
Short Abstract:
The law tends to emphasise rationality but courtrooms are often sites where emotions are displayed and lawyers appeal to emotions to strengthen their arguments. This panel examines the complex relations between emotions and the law drawing on ethnographies of legal discourse, courts and disputes.
Long Abstract:
Legal thinking tends to emphasise rationality but courtrooms are often sites where emotions are displayed and lawyers appeal to emotions to strengthen their arguments. This panel examines the complex relations between emotions and the law drawing on ethnographies of legal discourses, courts and disputes. Engaging current scholarship on emotions the panel adopts a cross-cultural perspective on displays and appeals to emotions in legal settings. Emotions are ambivalent. On the one hand, they can pose a challenge to careful legal argumentation but, on the other hand, the law's legitimacy depends on emotional recognition that legal decisions are just. Legal cosmology necessarily involves emotions giving meaning to moral and legal judgments.
Cultural differences are key to the anthropology of emotions and/in law. For example, people from different cultural backgrounds may express their emotions in different ways. This can create misunderstandings and confusion in the courtroom. There are also considerable differences between different legal systems. Whilst in one socio-cultural setting emotions are expected to be kept in check in another it might be expected to express emotions in a certain way.
The ethnography of the multifarious connections between reason and emotions in legal settings provides a new perspective for the anthropology of law and governance. Further, it offers an empirically grounded contribution to wider debates about emotions in the humanities and social sciences.
Accepted papers:
Session 1 Tuesday 14 August, 2018, -Paper short abstract:
Based on an ethnography of a family court, this paper explores how emotional responses to divorce law relate to perceptions of justice and the legitimacy of the law. Mistrust marks legal practice leading to suspicion, uncertainty and anxiety and threatening both justice and the law's legitimacy.
Paper long abstract:
This paper explores how emotional responses to divorce law are linked with perceptions of justice and the legitimacy of the law.
Tunisian personal status law was reformed radically in 1956, opening up divorce to men and women on an equal basis which allowed the state to intervene in this intimate sphere. Before being granted a divorce, litigants are compelled to attend compulsory reconciliation sessions with a state judge. Based on an ethnography of a family court in Tunis, I argue that these sessions were an arena in which hopes and fears are played out and where, alongside the litigants, the legitimacy of the law itself is on trial.
Whilst the judge seeks the "truth" in the hope of avoiding the breakdown of a marriage, litigants appeal to the judge's sympathy in hope of a favourable divorce settlement and foster their credibility by appealing to a common sense of ethical Muslim personhood.
Like Kelly, however, I found that this "process of imagined identification" could lead to both sympathy and suspicion (Kelly 2012). Internal migration and the oppressive regime contributed to an atmosphere of mistrust in which duplicitous bodies were particularly hard to read (Bear, Kelly 2006). The judge tended to react with scepticism, leaving litigants anxious and uncertain; like truth, justice remained elusive.
In turn, the inability of the court to deliver justice contributed to scepticism about the moral legitimacy of divorce laws that were at the same time being used to legitimise an authoritarian state.
Paper short abstract:
The chapter considers the significance of honour and dignity for villagers in rural Botswana, focusing on cases of insult, public shaming and redemptive demand for recognition in village courts.
Paper long abstract:
This chapter focuses on cases of insults, frequently heard in customary village courts. In such cases, what is at stake is often not merely the outcome or financial compensation for accusers, but even more, the public shaming of a person or the redemptive demand by the dishonoured for recognition and dignity. Very often the cases are between women of different ages, young as well as old, and about insults, including witchcraft accusations. The central case in this chapter was heard in a ward moot in which an attempt was made to persuade the accused to drop her accusations, since these would undoubtedly lead to her imprisonment if taken to the village court. It was widely recognised by the moot members that the accused was unwell physically and mentally, and thus not fully responsible for her utterances, however offensive, but it was nevertheless important to prevent the case from going forward to the (village) court, which was likely to mete out severe punishment. The chapter considers the significance of honour and dignity for villagers.
Paper short abstract:
This presentation will discuss the place of emotions in the work of welfare magistrates in Belgium. It will address the discourses, professional ethos and practices of those who decide whether to grant or withdraw social assistance based on the notion of "human dignity".
Paper long abstract:
In Belgium, after being denied or removed from welfare, people can challenge the administration's decision in labour courts. In a lot of those cases, judges have to establish whether being denied social assistance infringes on the litigants' right to "human dignity". Based on observation in court and on interviews with legal professionals, this presentation will reflect on the place of emotions in hearings and in the work of welfare magistrates, many of whom insist on their will to "solve the litigants' situation". It will address the discourses, professional ethos and practices of welfare judges: how do they define their role and eventually make decisions in cases where legal concepts allow for significant discretion? With the example of migrants with a precarious legal status, I will discuss judge's relationship to law and fairness, the way they deal with often conflicting jurisprudence and assess consistency in the litigants' stories. The case of (illegal) migrants in welfare courts will also help reflect on the impact of immigration policies on civil law cases and therefore, on the work of legal professionals.
Paper short abstract:
Tracing the social life of the 1988 dated Law Number 3413 in Turkey, I highlight how a specific law acquires a life of its own; gains contradictory emotional meanings and generates multifaceted relations between different social actors and the state.
Paper long abstract:
How do emotions get attached to a specific piece of legislation? What kind of formal and informal emotional relations can a law generate among differently situated social actors and the state? What kind of emotions can actors express in relation to a law? What role such appeals to emotions play in the legal claims individuals pose to the state? This paper engages these questions based on my larger ethnographic study of the state child protection policy and institutions in Turkey. I trace the social life of the 1988 dated Law Number 3413 which grants individuals who grew up under state care the right to be employed in public institutions. I draw attention to how those involved with this law ( the law-makers who brought it into being, top-level and street-level bureaucrats engaged in its everyday implementation and those who are the subjects of the law-the individuals raised under state care) emotionally relate to this law. I explore the range of specific emotions-gratitude, happiness, anger, regret, helplessness etc. - these differently situated actors express in relation to the law. My discussion highlights how a specific law might acquire a life of its own; gain multiple, contradictory emotional meanings which become the basis of social negotiations and generate both harmonious and conflictual social relationships among different social actors and the state.
Paper short abstract:
How do street-level bureaucrats understand law and make use of it? What are the consequences of their understanding and use of law? This paper analyses state agents, working in migration enforcement, balancing between emotional encounters and they interpretation of legal conceptions.
Paper long abstract:
Understanding, shaping and making law are daily tasks of street-level bureaucrats working within the field of migration enforcement. While they have to juggle between often very emotional encounters with their clients, they also retain personal ideas and positions of they everyday practices, in particular about law. These positions are characterised by an own set of emotional responses, but also defined by tactical strategies and game-like situations where state agents are left with sufficient discretionary space to test their ability to strategically make use of law. Being left with sometimes little guidance they need to define their possibilities to apply law, circumvent it or refrain from their tactical strategies. Further, sate agents struggle with black letter law and its implementation due to their own moral ideas and thus perceive law as unfair or punitive. Thus, following the idea of law being arbitrary and already inherently discriminating, this work is interested in following street-level agents' differentiation between law and legality. Much like Ewick and Silbey (1998), it aims for an analysis how far and majestic, but also real law is perceived in the everyday life of public administration.
This paper is based on ethnographic fieldwork within migration enforcement agencies, including the border police and migration offices in Latvia, Sweden and Switzerland.
It will examine how street-level bureaucrats understand law and make use of it. Further, it is interested in the consequences of their understanding and use of law for their clients.
Paper short abstract:
It is often assumed that court proceedings are designed to cast aside affect and emotion to ensure a rational procedure and a just outcome. This paper instead describes the courtroom as an apparatus to produce specific affective and emotional dynamics, a specific courtroom atmosphere
Paper long abstract:
By presenting material based on several months of courtroom ethnography in the International Criminal Court in The Hague, and by drawing from affect theory, the argument is made that courtroom proceedings are about mobilizing affect and emotion in order to produce objectivity. The theoretical claim that underlies this paper is that legal objectivity is in itself an affective register among others, not a mode of meaning-making that was somehow free of affect and emotion. Based on history of science research on objectivity, this paper highlights the connection between the idea of objectivity and the idea of the object in European enlightenment. To produce objectivity, bodies in the courtroom have to be objectified, which—as its flipside—entails the attempt of stripping their subjectivity. Attempts to suppress certain emotional displays (clapping, cheering, booing, outbursts of anger etc.) are then not merely a strategy to dissolve all affective dynamics, but only one strategy among many to strip bodies of their subjectivity. The introduction of non-human objects as evidence (images, video-tapes, forensic evidence etc.), quoting out of files and investigation reports rather than introducing human witnesses giving testimony in their own voice — acts that are not directly related to enforcing 'feeling rules' (Hochschild) — are other visible strategies to produce an affective dynamic of objectivity.
Paper short abstract:
For over a decade, trials of crimes against humanity, committed during the last military dictatorship (1976-1983) in Argentina have been carried out. Based on interviews with federal court judges, the paper examines the effects these trials have had on the judges inside and outside the courtrooms.
Paper long abstract:
How do judges, who sit for months listening to the suffering of survivors of the last military dictatorship in Argentina (1976-1983), mange the emotional toll this process implies? How does the extended exposure to testimonies about horrendous crimes affect their ability to judge or their capacity to hear/listen? These questions led us to conduct extensive interviews with federal court trial judges in the cities of Buenos Aires and La Plata where trials of crimes against humanity have been ongoing for over a decade.
Many of the works examining the role of emotions in courtrooms focus on the dramas and performances of the judicial process (e.g., Dahlberg 2009). Our work, on the other hand, draws mostly on interviews with judges in their chambers, cafes or even in their own homes. Here, we discussed the long-term emotional impact that the oral trials have had on their private lives; the various methods they use to come to terms with the suffering they hear, see, read about or are otherwise exposed to throughout the process; and we considered with them the possible impact these trials have had on the process of judgment. Judges spoke of the lingering affects of the testimonies, the illnesses and their emotional (and physical) crises following particularly difficult periods in the oral trial. They also spoke of their changing view of humanity and their new understanding about their role as judges in a post-transitional justice context (Collins 2010).