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Paper short abstract

In this paper, we examine the epistemological and methodological dilemmas and potentials of using legal archaeology to analyze the mobilization, contestation, and constitution of expert knowledge in asylum litigation.

Paper long abstract

The highly politicized context in which asylum operates, combined with evidentiary challenges, has made decision-making complex and contested. Various forms of expertise are increasingly drawn upon to facilitate or challenge state power in appeal processes. In this paper, we examine the epistemological and methodological dilemmas and potentials of using legal archaeology to analyze the mobilization, contestation, and constitution of expert knowledge in asylum litigation.

The paper draws on research carried out in Norway, Denmark and Sweden that combined courtroom ethnography and legal archaeology. Whereas courtroom ethnography is limited to following cases of relatively short duration onwards, legal archaeology traces the trajectory of cases and their sociohistorical context backwards. Legal archaeology aims to construct ‘thick’ description and analysis by working backward and outward from clues embedded in judicial decisions. It involves close attention to the layering of multiple documents and draws on a range of legal and non-legal sources (e.g. case files, previous legal decisions in the cases, newspaper accounts, interviews). Adopting this methodology raises an epistemological dilemma in terms of reading along or against the grain of legal documents. On the one hand, the methodology urges us to take legal technicalities seriously to understand what legal strategies and knowledge claims acquire authority. On the other hand, the focus on contestation inside and outside the courtrooms across time highlights the fragmentary nature of those claims, showing how adversary strategies and claims of knowledge emerge. As such, this methodology offers ways to reinterpret cases, posing novel questions about law and knowledge production.