Anthropologists Engaged with the Law (and Lawyers)

First, two cases involving Sikhs. One goes back to the 1970s and debates about racial discrimination which led to the passing of the 1976 Race Relations Act, though its implications are still highly relevant. Shortly after the Act came into force, a Sikh family, advised by what was then the Commission for Racial Equality, and by independent anthropological experts, sought to establish that when a school refused to permit their son to attend wearing a turban (which the family argued his culture and religion required him to do), an offence had been committed under the 1976 Act.

The court of first instance rejected this on the grounds that Sikhs were not a “racial group” as defined by the Act. An appeal court agreed, the senior judge, Lord Denning, contending that while Sikhs are «a fine community upholding the highest standards, they are not a ‘racial group’. So it is not unlawful to discriminate against them. Even though the discrimination may be unfair or unreasonable, there is nothing unlawful in it»^[4]. There followed a lengthy legal-cum-anthropological debate about whether Sikhs did indeed constitute such a group, and when the case eventually went to what was then the UK’s highest court, the House of Lords, their claim was supported. This landmark case opened up the application of the discrimination legislation, going beyond the somewhat narrow and increasingly outdated notion of “racial” to encompass a group such as the Sikhs which, in the leading judge’s words were a «a distinctive and self-conscious community [and thus] a group defined by a reference to ethnic origins for the purpose of the 1976 Act»^[5].

In a more recent case a young female student claimed the right to wear a kara, a distinctive bracelet required by Sikh tradition, despite her school’s regulation against wearing jewellery. The court, taking cognisance of anthropological and other evidence, found in the girl’s favour on the grounds that: «there would be a particular disadvantage or detriment if a pupil were forbidden from wearing an item when that person genuinely believed... that wearing was [exceptionally] important to her racial identity or religious belief».^[6].

Now a Hindu example^[7]. A certain Mr. Ghai asked Newcastle city council to allow him to have an open air cremation when he dies. The council rejected this as contrary to the 1902 Cremations Act. Mr. Ghai appealed on the grounds that by refusing him permission to have such a cremation the council denied him his rights under Article 9 (1) of the European Convention of Human Rights (ECHR):

At first sight the case seemed to turn on whether an open air cremation was a requirement of the Hindu faith, and several experts were called by the various parties involved to testify whether or not an actual open air cremation was indeed such a requirement. The experts disagreed. The judge himself took on board their various opinions and indeed read a key anthropological text on the subject (Parry1994). He concluded as follows.

The Cremation Act only allows the burning of human remains in a crematorium. Hindus dispute whether their religious beliefs necessitate an open air pyre. However, «the claimant’s belief in open air funeral pyres is central to his strand of orthodox Hinduism. It is beside the point that typically Hindus [in the UK] do not share that belief’». Therefore he did have a right to «manifest his religious belief in open air funeral», according to Article 9 (1) of the ECHR. Nonetheless, the refusal to grant Mr. Ghai his wish was justified on the grounds that «others in the community would be upset and offended by [it], and would find it abhorrent that human remains were being burned in this way», according to Article 9 (2), which reads:

Mr. Ghai again appealed, and a higher court sought ways in which Mr. Ghai’s wishes could be accommodated within the current law. He conceded that the ceremony could take place within a structure «provided that the cremation was by traditional fire, [and] sunlight could shine directly on his body while it was being cremated», and his lawyers found an example of such a structure, which would allow this, in Spanish Morocco. Now, the Cremation Act specifies that a crematorium is a certain kind of building, and whether the structure in Spanish Morocco satisfied the Act hinged on the interpretation of the word “building”. Does a building have to have a roof? The judges agreed that it did not, so Mr. Ghai won, through what was described as a typically British compromise.

The judges’ approach might suggest the irrelevance of expert anthropological evidence. No matter what experts said, Mr. Ghai was entitled to his interpretation of his beliefs. This subjective, “Pirandellian” interpretation of doctrine (Così è (se vi pare)) recognises the right of someone to believe what they like, though it does not mean that she or he can actually practice what they believe. There is in fact a chain of decisions connecting a Hindu in England (Mr. Ghai), another Hindu in South Africa^[8] , a Jew in Canada^[9], and a Jehovah’s Witness in the United States^[10], all accepting an individual’s subjective understanding of their religion. Although these suggest that judges can dispense with anthropological expertise, another interpretation might be that acceptance of a “subjective” approach in fact reveals a turn towards a more flexible, postmodern, definition of culture of the kind which pervades contemporary anthropology. Indeed, in the South African case it appears that the judges were directly influenced by such a contemporary anthropological take arguing : “While cultures are associative, they are not monolithic. The practices and beliefs that make up an individual’s cultural identity will differ from person to person within a culture”^[11]. What judges, juries and lawyers make of “culture” in the courtroom may, however, create especial difficulties for anthropologists, as later discussion shows.

Although religious beliefs and practices figure prominently in cases where anthropologists are engaged as cultural interpreters, their services are required in many other contexts. For example, when the Uruguayan footballer, Luis Suarez, then playing for Liverpool, was charged with using racist language, two linguistic anthropologists advised the Football Association on the meaning of certain Spanish terms and how they might be interpreted in various contexts in Latin America, Spain, and the UK (in Football Association 2011). Not surprisingly, however, family matters are the focus of much legal and anthropological attention.

There has, for instance, been a long-running debate across Europe about arranged and forced marriages, which in the UK came to a head in 2014 with the passing of the Anti-Social Behaviour, Crime and Policing Act. This contained clauses criminalising attempts to force a woman or man into an unwanted marriage. The debate included parliamentarians, lawyers, NGO activists, feminists, the media, and not least academics, including anthropologists, covered such matters as the meaning of family life and marriage, relations between genders and generations, especially among people from South Asia, the distinction between forced and arranged marriages, the nature of consent, coercion, and female agency, and whether or not criminalisation is the answer.

There were numerous interventions by anthropologists and other social scientists as well as by the NGO community. Two anthropologists, one of whom had previously worked in the Home Office’s Forced Marriage Unit, submitted a response to the government consultation which sought advice on criminalisation (Ballard, Shariff 2012), situating arranged and forced marriages in the context of the dynamics of South Asian families. There are many reasons why parents (and extended kin) might seek to arrange and perhaps impose a marriage: developing or strengthening community ties or financial or economic commitments, here or in the country of origin (perhaps by facilitating someone’s migration), maintaining endogamy, and controlling or restricting sexual behaviour, and enforcing norms of propriety. Ideologies of honour, masculinity and femininity may come into it, and marriages may be caught up in complex social relations involving property, debt, business deals, inheritance, religion, child custody, sexual orientation, and how families are embedded in networks of inter- and intra-generational ties of mutual reciprocity, largely ordered within the priority given to ties of patrilineal descent. Such arrangements might also reflect a withdrawal into an enclave, to protect families and maintain ethnic and religious boundaries in a hostile (often racist) environment. Most forced marriages, they maintained, are marriages which have been “exceedingly badly arranged by anxious and myopic parents, rather than [] instances of cruel and deliberate enforcement”. One source of myopia is the fear that sons/daughters are “running off the rails” in a context of “intense concern about choice of marital partner and about extra/pre-marital pregnancies”. Forced marriages thus occur in “exceptional circumstances”, when parents feel themselves to be “at their wits end”, and mistakenly believe that “instant marriage to an alternative partner is the only available means of holding impending disaster at bay”. Criminalisation, they concluded, would shatter the family.

These arguments cut no ice with legislators, and when journalists read the submission, the authors were pilloried. One comment was: «the contempt [they] display towards the idea that there are or should be universal values ... represents a strand of apologism that can also be seen in our universities today» (Aaronovitch 2013 And another described their conception of “myopically arranged marriages” as “chillingly Orwellian”, adding: «we should profoundly object to [their] moral relativism... In the case of Euro-American attitudes towards forced marriage there is no need for quotation marks around “superior”: they most certainly are» (McKie 2014).

A major field in which anthropologists have been engaged concerns immigration and asylum claims and appeals, and there is now a large literature reflecting on their experience of hundreds if not thousands of such cases (e.g. in chapters contributed to Holden 2011, and Lawrance, Ruffer 2015). Nowadays, procedures and policies across Europe are broadly similar, though there are some important differences: in the UK, for example, unlike Italy, expert witnesses may appear in person in court and be cross-examined. But generally, there is widespread demand, on the part of claimants and tribunals, for anthropological and other socio-scientific expertise.

Anthropological engagement has involved among other things: the provision of expert knowledge of the countries from which claimants come, i.e. country expertise; the provision of cultural and social translation or interpretation to assist tribunals in understanding what has happened to individual claimants and how they voice the experiences which they have endured (often this means helping tribunals read between the lines); critiques of the procedures through which claimants cases evolve and their narratives constructed; and some involvement in training of immigration and asylum practitioners.

A crucial role of tribunals is to verify the “credibility” of a claimant’s story, and whether their claims to asylum are false or inadequate and should be rejected (inter alia Berti, Good, Tarabout (eds) 2015, Blommaert 2001, Campbell 2013, Gibb, Good 2014, Good 2004, 2007, 2011, Holden (ed) 2011, Sorgoni 2011, 2012, etc). In the UK, while the expert’s primary duty is to the court, not the parties involved, the sympathies of the anthropologist tend to be with the claimant, but they frequently report serious difficulties in persuading tribunals to accept their evidence as to the credibility of a claimant’s account, which may be rejected as “unsourced”, “pure speculation” or “personal opinion”^[12]. Regarding information about the situation in the claimant’s country of origin, for example, a tribunal may prefer to rely on official reports or indeed their own “commonsense” knowledge. (For a critique of official UK country guidelines see Yeo 2005). One Italian anthropologist records (personal communication^[13]) that she and others raised the question of country reports with the president of the tribunal in her region^[14]. The reply was: «We presume to know about the countries from which asylum seekers come» – there is no need of need further expertise (see also Sagiv 2015). Likewise, when an African asylum seeker claimed that she had been accused of witchcraft by her relatives and consequently feared for of her life, the explanatory material supplied by the anthropologist (included in the appeal documents) was simply ignored. Indeed, a judge of the Appeal Tribunal, which reviewed the rejection of the claimant’s case asked her: «Was it one of your colleagues who wrote the paragraph on witchcraft? Because you’d better tell him that that is not the kind of information we need».

One aspect of the asylum-seeking procedure which anthropologists have observed, and in which they have sometimes themselves participated, concerns the production of claimants’ narratives. Cristiana Giordano (2014), for example, describes cultural mediators assisting claimants in making a “denunciation”, as it is called, by translating their often-halting and inconsistent stories and organising them into an account “digestible”, as Giordano puts it, by the official bureaucracy. Good (2011) has likewise observed advisors “converting” personal narratives into “legal-speak” in the UK. Such practices are widespread: see, for examples, Sbriccoli and Jacoviello’s discursive analysis of asylum proceedings in Italy (2011), Blommaert’s account of a Belgian case (2001), and Campbell’s critique (2013) of the organisations to whom the work of interpretation has been outsourced in Britain.

Another issue concerns the often simplistic assumptions about the social, cultural and linguistic contexts from which asylum seekers arrive. In a detailed essay, based on a report he provided to the British Home Office, Blommaert (2009), describes and analyses the exceedingly complex background of an asylum seeker from the Great Lakes region of Eastern Africa which he then contrasts with the naive outlook of officials, wedded to a what he calls “homogeneism”, the assumption of one language, one culture, one people. This “modernist reaction” to “postmodern reality”, as he dubs it, has special relevance in the major cities of Western Europe where there is an «increasing diversification in language choices, forms of communicative behaviour, new varieties of vernacular languages such as English, and new forms of locality and translocality that create new speech communities and networks» (Blommaert 2008: 426). To which must be added increasing diversification of literacies, including those based on electronic communication. Indeed, Blommaert has shown how in asylum seeker interviews or police interrogations speakers from different linguistic and cultural background with “other” oral and literary competencies may appear deficient, even incomprehensible to their interlocutors. For example, they may construct a narrative, recounting the circumstances through which they came to be asylum seekers, in ways which are different from those expected by educated Westerners. This may undermine their credibility, and lead to their case being rejected out of hand. (In fact Blommaert’s intervention in the East African case actually helped the claimant achieve his goal).

I asked several anthropologists engaged in this type of analysis whether they had drawn their conclusions to the attention of the agencies concerned. One replied^[15]:

Another said,

The fear of co-optation by the powers-that-be is by no means a dilemma only for those in the legal field; it was a major concern of British anthropologists in the colonial period, and American anthropologists were seriously worried about their work being taken up in counter-insurgency programmes in Latin America and South East Asia, and later Afghanistan. Recently, in the UK, anthropologists and other social scientists have had disturbing experiences of being drawn into proposed research on (Muslim) “radicalisation” (Spencer 2010), or involved in counter-terrorism initiatives, or naive programmes intended to combat Islamophobia (Allen 2012, 2013). The fear of co-optation is one reason why many anthropologists seek alternative modes of applying their discipline including participatory and action research, with the emphasis on working with and through the grass roots, though this carries with it another danger, of the anthropologist becoming a missionary.

If co-optation is one problem, then recuperation is another, i.e. how anthropological concepts and approaches are adopted and adapted, often in a simplistic form. This poses a dilemma for anthropologists working in the legal sphere who offer themselves as “experts on culture”. As anthropologists we want to explain the social and cultural nature of Muslim marriage, for example, with implications for their legal treatment. But we are also aware of the dangers of essentialising and stereotyping.

There is an obvious benefit in having an expert anthropological and regional perspective through which to interpret events and motives, so that the court at least has a better understanding of the background to what occurred and why. It is then up to the court to decide whether such accounts illuminate degrees of culpability or innocence, with implications for verdicts or sentencing, always on the understanding that “culture” as such is no defence. (On the so-called “cultural defence” see inter alia D’hondt 2009, 2010, Foblets, Renteln 2009, Livia 2011b, Renteln 2004, Volpp 1994, 2000). Of course, not only “culture” may come into it. A famous film of the late 1940s, Knock on Any Door ^[16], had Humphrey Bogart, as defence attorney, seeking to save his young Italian-American client from the death penalty by emphasising his origins and upbringing in a poverty-stricken slum environment.

But if culture (or social background) come into the courtroom, whose account is the court to accept? Culture constitutes, among other things, a moral order indicating sets of rights and duties, but it is a contested moral order; there is almost always an internal cultural debate, and a multiplicity of actors’ views, and the right of experts external to a culture to speak authoritatively about it may well be questioned (D’hondt 2010, Good 2008, Schwandner-Sievers 2006, among others). Equally significant are social scientific disputes about the ontological status of “culture”. For example, contrast the traditional, widely accepted, common sense view of culture as an identifiable, undifferentiated, “collective” phenomenon, with that which sees it as a more individualistic, subjective, personal construct.

I suggested earlier that some judges are in effect sympathetic to that latter view. Yet by and large the legal profession, including many judges, prefer what might be called a “black letter” view of culture, corresponding to their “black letter” view of law, that the law (or culture) is an established, commonly held and agreed, set of principles and practices. One of the reasons that many lawyers reject the application of Muslim law in Britain, for instance, is because, they say, “we do not know what Shari’a law is and no one can beyond controversion define it” (McGoldrick 2013: 43). While lawyers are content with this black letter view, and indeed may need it to make their client’s case, it poses a dilemma for the anthropologist who abjures cultural essentialism and is very uncomfortable when required to give a “yes” or “no” answer to a cultural question (Good 2008). Some years ago, at a conference in London on bilingualism, the then head of education for London pressed us: «You social scientists have a theory every year. Can you tell me now, yes or no, is bilingualism good or bad?» What were we to say?

This brings me to the mind-sets of those with whom anthropologists engage: solicitors, barristers, magistrates, judges, and other experts and professionals operating in a legal context^[17].

There have been various attempts by both anthropologists and lawyers to describe and account for differences (e.g. Holden 2011b: 204). William Twining (1973), a noted British professor of jurisprudence, stressed the ethnocentricity of legal practitioners, compared with the cross-cultural, indeed cosmopolitan orientation of anthropologists. Another legal expert, Gordon Woodman, suggests that anthropologists and lawyers differ on the very concept of “law” which anthropologists and lawyers think they are studying or with which they are dealing. For lawyers, it is state law, for anthropologists the concept ranges much more widely, to include, as Woodman puts it, “normative orders outside the scope of state law” (2017; see also Kandel 1992, below).

As well as lawyers, anthropologists working on the legal terrain are likely to encounter experts from other disciplines, with their own mindsets. In 2011, for example, in a case before Leicester Crown Court, a young woman (“L”), originally from Zimbabwe, was charged with attempted murder. Briefly, her mother woke one night to find her daughter standing over her with a knife. When the police were called, L was found to be in a trance-like state but subsequently claimed that her dead grandmother had come to her and told her to attack her mother, whom the grandmother had held responsible for L’s father’s earlier death in Zimbabwe. The court was offered three explanations by expert witnesses: an anthropologist described the cultural background of African beliefs in the supernatural; a psychiatrist suggested L suffered from a “psychological disorder of consciousness”; and another psychiatrist concluded that L had concocted the story, and that was the prosecution’s case, with which the jury apparently agreed. Nonetheless, the judge discharged L into the care of her mother, which may suggest some sympathy with the anthropological evidence^[18].

To what extent do these contrasting mind-sets affect the practical relationship between anthropologists, lawyers, and other professionals? From what I have read, and discussions I have had, it seems that experience is very varied, and it is easy to over-emphasise differences. Indeed, one anthropologist, working in the human rights field, confessed that he had not really thought about such barriers since he had not encountered any. Another, however, with great experience of working with the courts as expert witness in criminal and other cases has encountered numerous difficulties, for instance finding that when anthropological reports were presented to a court their objectivity and scientific credentials were routinely questioned.

Roger Ballard (2010) has analysed at some length the unconscious or hidden assumptions of a cultural character which typically permeate the mind-set of lawyers and others versed in the Enlightenment tradition. These sometimes amount to what might be called an “invincible ethnocentrism”. Another researcher, however, has found that lawyers in asylum cases in which she participated were constantly aware of the dangers of ethnocentrism and of their own and others’ cultural assumptions (Carver 2014). Both may be right, since they may be observing lawyers in different contexts, for example in criminal cases (including those involving so-called “honour killings”), on the one hand, and on the other claims by asylum seekers where legal representatives are may feel obliged to understand what their clients have experienced to assist their case. In any event such contrasting perceptions need further investigation.

Anthropologists, however, are not the only professionals who experience problems when meeting with lawyers on the legal terrain. In an important and farsighted study of the family justice system from the early 1990s, Murch and Hooper argued that in family matters «legal, social, psychological, and medical factors are interacting together in family breakdown and disintegration, and are often difficult to disentangle, because in actual life situations the professional categories do not apply» (1992: 118). One difficulty is that that those involved (lawyers on the one hand, social workers on the other; they do not mention anthropologists) inhabit their own professional ghettos with different “assumptive worlds”. The law, they suggest, operates on the basis of methodological individualism, and the training of lawyers gives them little understanding of holistic social science and of the social context of family life and family dynamics. Social workers and others such as child psychiatrists (or anthropologists) have little understanding of the law, its assumptions and procedures.

Murch and Hopper emphasised the need for a cross-disciplinary approach, and indeed whatever the difficulties anthropologists and others meeting on the legal terrain may well find that they have to work together. Under those circumstances, where practitioners are engaged in a common enterprise, there will be a need for inter-disciplinary cultural translation, as two colleagues, one an anthropologist, the other an academic lawyer, discovered when formulating their evidence in a case which eventually went on appeal to the UK’s Supreme Court^[19]. The experts commented (personal communications^[20]):

They gave credit to the Supreme Court for its «very nuanced approach in which they gave weight to our evidence, engaged with it and used it to make a half way favourable judgment when it could have downplayed this evidence in order to reject the claim totally»^[21].

A further issue which typically comes between lawyers and anthropologists concerns normative judgments. Kandel (1992), writing from a North American perspective, emphasises the way the law has to determine responsibility and give judgment, while anthropologists on the whole tend to be non-judgmental. Woodman concurs: «Whereas anthropology is, or aims to be, scientific and largely value-free, lawyers, even quite strict positivists, tend to have some commitment to the moral quality, as they see it, of their own law, and to the notion of the rule of law» (2017). As the anthropologist Tony Good pithily summarises: «law is prescriptive, social science descriptive» (Good 2013: 11).

While judgment of right and wrong (“normativity”) is integral to the work of lawyers, and indeed in disciplines such as political philosophy – it is after all what they do – it is frequently a problem for anthropologists who eschew judgment; indeed this has often been stated as a fundamental objection to applied anthropology. For instance, Hastrup and Elsass, writing about advocacy, argued that «To be advocates anthropologists have to step outside their profession, because no “cause” can be legitimated in anthropological terms» (1990: 301).

I certainly felt constrained by this when researching and writing about cultural diversity and the law, and concluded that my primary role was that of an observer analysing what is happening and why it is happening, rather than that of an advocate for what should happen; indeed, normative discourse is part of what I study. Although the accommodation of “other” beliefs and practices raises difficult questions (of gender relations and human rights), evaluation of the arguments for or against legislation such as that concerning forced marriages is not, I contended, professionally my primary concern, a stance which might well lead to accusations of cultural or moral relativism (see above). Yet, while recognising the importance of trying to comprehend all mindsets, as a citizen I am conscious that there are limits to what a society such as Britain can and should tolerate. Indeed, as a citizen, ethical (and political) judgments, for example regarding female genital mutilation (FGM), cannot be evaded. But I also fear for the future of a multicultural Britain where there is an increasing tendency to criminalise alterity (Ballard 2011). Caught between these conflicting demands, I escape by associating with those who seek a modus vivendi through compromise and negotiation (see Grillo 2015, Chapters 12 and 13).

Finally, the problem of getting others, especially the powers-that-be, to listen to what we have to say. Remember the Italian judges who declined to learn about witchcraft or who were satisfied that they knew what they knew about a particular country, or the British politicians and journalists content with their understanding of forced marriages or Islamophobia. The refusal is by no means universal; there is certainly evidence of a willingness on the part of at least some judges to listen to anthropological evidence, as in some of the cases described above^[22].

An anecdote. In 2014 I met with a politician who was pushing for legislation to restrict, indeed criminalise, the activities of Shari’a councils in the UK – these are Muslim bodies which are primarily concerned with matters related to religious marriage and divorce. Over tea in the House of Lords I asked her if she was familiar with the extensive anthropological and legal research on the councils. She was not, but instead relied on her own personal experience and in-house case studies (which in my view would not bear social-scientific scrutiny). I sent her a reading list. Did this have any effect? No, she herself came back with yet further proposals which were debated in the House of Lords in October 2015-January 2016, and at the time of writing have been passed to the House of Commons for consideration. I later sent a similar reading list to a Home Office official working on the government’s new extremism strategy which included a proposal for a review of the councils, on the grounds that “Shari’a is being misused and applied in a way which is incompatible with the law” (Home Office Counter Extremism Directorate. 2015: 12). When the review is established there will perhaps be an opportunity for anthropologists to collaborate with lawyers and influence public debate. But will they listen?