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I. Introduction
This paper focuses on anthropological expertise in asylum cases in the UK.Footnote 1 It argues that, while there is no absolute epistemological incommensurability between anthropology and law, the various actors involved in these cases use different epistemological positions strategically. Anthropological expert witnesses' room for manoeuvre before the court, however, is limited by the ‘hegemony of the judiciary’ (Good, Reference Good2007, p. 208). In ‘hegemonic law-driven processes’ (James and Killick, Reference James and Killick2012, p. 441), anthropologists are bound to use certain sources and take certain positions that are in many regards problematic from the perspective of post-positivistic social sciences. The real challenge for anthropological engagement in asylum cases is, therefore, not about epistemology per se, but the use of various epistemological positions within a power-laden arena in which experts occupy an inferior position. The concept of power used here refers, on the one hand, to the Weberian notion of power, defined as the ability of individuals or groups to achieve their own goals or aims, even against the will of others. On the other hand, Gramsci's understanding of hegemony, which captures invisible aspects of power through establishing rules and norms and manufacturing consent (Imbusch, Reference Imbusch, Korte and Schäfers2006), is also relevant here. Both aspects of power refer to the position of legal practitioners, particularly judges, in asylum proceedings. They also influence the evaluation of sources of knowledge as ‘authoritative’.
Two basic epistemological positions play a major role in this regard: positivist and post-positivist perspectives on the possibilities of knowledge production. Until the mid-twentieth century, positivism and its related epistemology and methodology had inspired most social scientists, including social anthropologists. Positivism was based on the assumption that data already existed and just needed to be discovered, gathered and systematised to reveal the ‘truth’ about a matter (Alvesson and Sköldberg, Reference Alvesson and Sköldberg2009, pp. 16−17). The main challenges to science were the adequate identification of a problem and the correct use of methods. Science − including the social sciences − was seen, from this perspective, ‘as the way to get at truth, to understand the world well enough so that we might predict and control it’.Footnote 2 The methods of positivism included observation, measurement and other standardised procedures, ideally in the form of a controlled experiment. Scientific procedures could lead to the identification of laws of cause and effect not only in the material realm, but also in the immaterial world (to the degree that it was accessible to scientific methods). In 1963, Ethel Albert could still present social anthropology as ‘an objective inquiry into human nature and variability’ (Albert, Reference Albert, Mandelbaum, Lasker and Albert1963, p. 577, quoted in Fluehr-Lobban, Reference Fluehr-Lobban and Fluehr-Lobban2003, p. 7).
Epistemological certainty in anthropology ended with the ‘reflexive turn’ that occurred from the mid-1960s onwards in the wake of the uncovering of the discipline's entanglement with colonial and Cold War politics (Scholte, Reference Scholte and Hymes1972; Asad, Reference Asad1973; Bens, this issue).Footnote 3 At present (2016), a number of heterogeneous approaches that reject the central tenets of positivism in the social sciences are combined under the rubric of post-positivism. ‘Literary anthropologists’ (Reyna, Reference Reyna1994) and hermeneutically oriented anthropologists give up any claim to an objective truth ‘out there’ that can be discovered, identified and isolated by standardised scientific methods. Scientific methods themselves have become highly suspicious. Critical post-positivists, among whom one could count the social constructivists in the tradition of Berger and Luckmann (Reference Berger and Luckmann1966/1987), believe that, while one might not be able to get at the truth, one can try to approximate it. At the very least, there are more or less plausible social constructions, and there are limits to the ‘construction’ or ‘invention’ of, for example, group identities (Elwert, Reference Elwert and Schlee2002; Schlee, Reference Schlee2004). It is clear that even the most extreme post-positivists need a basis from which to think (van Dyk, Reference Van Dyk2012, p. 205).
This means that, according to social anthropologists in the post-positivist tradition (which is currently predominant in the discipline), anything one can say about the world and its inhabitants is highly relative and contingent. Well-known representatives of the discipline such as Arjun Appadurai have made it their vocation to delve into the ‘chaos’ of a world characterised by multiple disjunctures (Appadurai, Reference Appadurai1996; Reference Appadurai and Appadurai2001). Anything ‘fixed’ and ‘bound’ is rejected (Gupta and Ferguson, Reference Gupta and Ferguson1992; Clifford, Reference Clifford1997; Brubaker and Cooper, Reference Brubaker and Cooper2000). While anthropologists do not agree on the final consequences that are to be drawn from the insights into the relativity of science, one can safely argue that, since the late 1960s, certainty with regard to epistemological questions has been replaced by doubt.
This has particular consequences for anthropological expertise in courtroom settings. Thuen (Reference Thuen2004, p. 266) argues that ‘there is the epistemological confrontation of anthropological interpretive hermeneutics and the court's legalistic orientation towards facts, sometimes labelled positivism’. Anthony Good, himself a very experienced anthropological expert in asylum cases in the UK, seems to be of two minds on the matter. On the one hand, he argues that what looks like a fundamental clash of epistemologies is probably only friction caused by the differences between legal and academic interests. Legal practitioners are, according to Good (Reference Good2008, p. S48), more interested in ‘facts’ and ‘objectivity’ as they pertain to a specific case, and less so in broader philosophical questions about the socially constructed nature of ‘facts’ and ‘objectivity’. A US Supreme Court judge noted that ‘[r]ules of evidence [are] designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal dispute’ (Good, Reference Good2008, p. S48). Good (Reference Good2008, p. S49) mentions that basic rules of procedure concerned with what an expert can say in court and what kind of research methods are considered reliable facilitate the court's or legal practitioner's understanding of facts and objectivity. While academics tend to be dogmatic about their views on objectivity and the problems with it, courts and legal practitioners tend to be pragmatic. On the other hand, Good acknowledges that
‘[o]ne core difference between anthropological and legal analyses is that the former treat ambiguity and complexity as immanent aspects of all real-life situations, while the latter seek to prune away “extraneous” details, so as to identify the abstract, general, de-contextualized legal principles assumed to lie within.’ (Good, Reference Good2008, p. S51)
In my view, Good's critical position is best captured in his finding that ‘immigration courts are arenas for clashes between different, sometimes incompatible codes of professional and ethical behaviour’ (Good, Reference Good2007, p. 208). These clashes concern questions about the authority of experts and their sources, but they are also about the lives (and risks to the lives) of asylum seekers. These professional questions become matters of life (and potentially death) in such cases.
While anthropologists try to contextualise things and focus on ambiguities, and therefore advance only tentative conclusions about society and culture (if they wish to use these concepts at all),Footnote 4 the ethnographic twilight they produce is supposed to disappear in the bright light of the law. In a similar vein, Davidson (Reference Davidson and Kandel1992, p. 23) mentioned that ‘[w]hile the need to make binding, responsible societal judgements tinges legal truth with an exaggerated moral certainty, the pursuit of scientific truth makes scientists uniquely sceptical of all so-called facts and explanations’.
The aforementioned clash of professional and ethical standards leads, in my view, to a host of strategic manoeuvres on the sides of all parties involved in asylum cases. However, partly because of the power differentials between legal practitioners and experts in the context of the UK legal setting concerned with asylum cases, legal practitioners are not always aware of such clashes, and social anthropological experts have to manoeuvre more intensely and self-consciously than their counterparts in legal proceedings. These manoeuvres involve epistemological positions, as Thuen implies when he argues that:
‘The legal straightjacket of argument may easily transform anthropological knowledge into dubious treatments of “the truth”. Essentialisations and simplifications may be more readily conceived as relevant within the paradigm of legal fact-finding than context-dependent diversity in actual behaviour and strategies of adaptation to normative and goal-oriented motivations, as argued by anthropologists. The role of expert witness may demand of the anthropologist a position more in line with that of the long abandoned evolutionist or structuralist, which seems to confirm the general public's idea that cultures are coherent entities existing at varying stages of developmental change.’ (Thuen, Reference Thuen2004, p. 280)
The essentialisations mentioned above are related to the adversarial nature of legal proceedings ‘which require yes/no answers, not the “yes but” or “it depends” equivocations generally favoured by anthropologists' (Good, Reference Good2007, p. 31, referring to Clifford, Reference Clifford1988, p. 321).
Clearly, much of the literature on social anthropological expertise in legal proceedings points to a gap between law and anthropology concerning matters of ‘facts’ and ‘truth’.Footnote 5 I agree with Zenker (this issue) that, on theoretical grounds, it would be misleading to assume a clear dichotomy between social anthropology as a post-positivistic social science and law as a profession with a positivistic epistemological outlook. What is at stake, however, are not categorical epistemological divides (as Good has already very convincingly argued), but pronounced power differences. Asylum cases in the UK provide an arena in which power positions are extremely unequally distributed and the room for manoeuvre for experts is very limited. In the British tradition,Footnote 6 and with regard to cases decided by judges (as opposed to being decided by juries), judges seek to maintain control over experts and monopolise the final decision (Good, Reference Good2007, pp. 131−133). Half a century ago, Gormley (Reference Gormley1955, p. 332), dealing with the Anglo-Saxon legal system, found that, in cross-examination, ‘only two things … can be attempted or accomplished: seek to bring out propositions favourable to the cross-examining side, and shake or destroy the validity of those already testified to’. More recently, Good (Reference Good2007, p. 133) confirmed that, in adversarial proceedings, ‘the aim is not so much to deconstruct the opposing case as to demolish it. One way of achieving this is to attack the credibility of the other side's expert evidence’. It is noteworthy, however, that, according to the rules governing expertise before British courts, the responsibility of the expert is to assist the court. The Practice Directions of the Immigration and Asylum Chambers of the First Tier Tribunal and Upper Tribunal, dated 13 November 2014, read:
‘10.2 It is the duty of an expert to help the Tribunal on matters within the expert's own expertise. This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
‘10.3 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
‘10.4 An expert should assist the Tribunal by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate.’Footnote 7
The Civil Procedure Rules on experts' roles confirm this in Part 35.Footnote 8 Theoretically, the expert is a neutral actor, obliged to state ‘true facts’ and ‘objective opinions’. Although British courts can instruct the experts, who are supposed to provide expertise to all parties involved, this rarely if ever happens in asylum cases; rather, in most cases, the expert is instructed by the claimant (namely the solicitors or case workers assisting the asylum seeker). It is, therefore, quite a challenge for experts to assume a ‘neutral’ position under these circumstances (Good, Reference Good2007, pp. 137−140). Even if they try to be neutral, at least during cross-examination, they ‘are manoeuvred into commenting on a version of those facts constructed by the examiner’ (Good, Reference Good2007, p. 135). This basically means they have to give ‘yes’ or ‘no’ answers or, for example, come up with exact numbers in reply to questions that are asked by the examiners. These questions, however, are often highly problematic from the point of view of the social anthropological expert, either because no one who argues reflexively and critically could possibly give an unequivocal answer to such questions because he or she knows that the available data are extremely unreliable (for example, how many internally displaced persons (IDPs) had returned to their homes in a highly volatile situation like in Mogadishu in 2013−14) or because a simple ‘yes’ or ‘no’ response would do injustice to the complex dynamics that shape the matter at hand (for example, concerning the question of whether a person can work in a certain job without considering the status such workers have in society).
The expert therefore finds him- or herself betwixt and between the official neutral position required by the court and, if cross-examined, the different sides involved in arguing the case. If the expert provides only a written report and is not cross-examined, which is frequently the case, he or she still has to balance the required neutrality against the (implicit) demands and expectations of the claimant.Footnote 9 The latter provides the instructions to the expert, and the honorarium is normally paid by his or her company, although in most cases the finances are provided (upon the conclusion of a case) by the Legal Aid Agency, which is under the Ministry of Justice.
In this power-laden context, social anthropological experts are required, by the circumstances of the proceedings, to position themselves strongly and claim certainty where, according to the well-established scepticism of the discipline, no clear-cut answer could be given. I will refer to my own experiences as an expert witness in asylum cases in the UK to show how one positions oneself as a ‘strategic essentialist’ or positivist (Spivak, Reference Spivak1988, p. 205) to fulfil the requirements of the legal process and maintain one's role as expert. But strategic positioning is not the exclusive prerogative of the social anthropological expert. The respondents, who in asylum cases in the UK are decision-makers working for the Home Office whose decisions are sometimes based on ethnocentric assumptions (Good, Reference Good2007, p. 103), and even the judges, who, as a rule, adhere to ‘naïve scientism’ in their views on evidence (Good, Reference Good2007, p. 136), also occasionally entertain more flexible, post-positivist perspectives. This flexibility of the decision-makers or the judges is, in my eyes, related to implicit political aims that provide an undercurrent to asylum proceedings in particular. The flexibility of the expert witnesses is, I would argue, a compromise in reaction to the ‘legal straightjacket’ they are forced to wear as part of the asylum proceedings. Consequently, expert witnesses and their counterparts can position themselves along a spectrum from positivist to post-positivist perspectives. The choice is influenced by strategic and political considerations within the framework of legal proceedings.
In what follows, I outline a debate between myself as expert witness and the decision-makers of the Home Office about cultural ‘traits’ relevant for the assessment of minority group status in Somali society. I show that decision-makers in the Home Office generally advance a positivist notion of culture and identity, although they can also at times exhibit a post-positive perspective. In contrast, in my reports, I usually try to insert flexibility into the cultural ‘iron cage’ (Riles, Reference Riles2006). The last third of the paper deals with the dangers of being an expert, which include having one's authority and standing as an expert demolished (taking the example of a friend and colleague who got ‘burned’ as an expert). It also illustrates the ‘straightjacket effect’ that one can experience during cross-examination when serving as an expert in a so-called country guidance case.
II. Debating the nature of culture in court proceedings
Thuen's insight that anthropologists as experts may find themselves grudgingly accepting positions more in line with the long-abandoned structuralist paradigm in the discipline captures my experience when arguing back and forth with decision-makers from the Home Office in 2007 and 2008. The ‘bone of contention’ was usually related to asylum seekers' identities as alleged members of so-called minority groups and the related risks they might face back in Somalia.Footnote 10 In these cases, I found myself manoeuvring between structuralist and post-structuralist (or, more generally, positivist and post-positivist) positions. I sought to engage decision-makers in the Home Office and some judges on their own terms, taking their sometimes ‘naive scientism’ about fixed and clear-cut group identities as a starting point (and therefore making naive scientistic statements myself). But I simultaneously distanced myself from certain reifications of culture to provide room in my argumentation for the contingencies and ambiguities of individual biographies. I will illustrate the varieties of strategic positioning (my own as well as those of the decision-makers) with reference to the case of Sahra.Footnote 11
2.1 The case of Sahra
In mid-2007, I was instructed by a solicitor to write a report in the case of a twenty-five-year-old Somali woman from a small coastal town south of Mogadishu. She claimed to be Asharaf/Hassan/Sarmaan, which is a minority group.Footnote 12 The instructions centred on ‘her clan membership, including sub-clan groups, according to whatever criteria are available to you, for example, clan knowledge, customary knowledge, linguistics, geographic heritage etc.’ and the ‘plausibility of her account according to the country conditions in Somalia broadly and in the local areas she has mentioned’. Let me now cite from my first report in this case, dated 23 August 2007, which summarises her own account of her life in Somalia:
‘In her Witness Statement Mrs Sahra outlined that she was born [in 1982] and grew up in the city of Merka, as a member of the Asharaf/Hassan/Sarman group. Her father worked as a driver, her mother was a housewife until the beginning of the civil war in 1991. Subsequently, Mrs Sahra's father lost his job and the mother supported the family by selling tomatoes. In the time of the civil war from 1991 onwards Mrs Sahra's family home was attacked frequently, and she and her parents were verbally and physically abused by militiamen from majority clans such as Hawiye/Habar Gedir. Around 1998 the family was kicked out of the house and had to move to live with relatives in another district of Merka. In the new home, the women including Mrs Sahra used to make sweets and sold them to earn a living. Mrs Sahra was not allowed out of the house. During those days the inhabitants of the house, who all belonged to Asharaf/Hassan/Sarmaan, according to Mrs Sahra's statement, were attacked and harassed frequently. Often militia came and looted the little belongings and money the family had. Sometime in 2003 Mrs Sahra was raped by Habar Gedir militias who came to loot the house. After the rape Mrs Sahra's father arranged her marriage to another Asharaf/Hassan/Sarman man. The couple continued to live in the family home. In late 2003 Mrs Sahra's father was killed by young militiamen who attacked the house. The remaining members of the house continued to live from selling sweets, and continued to suffer from oppression by militiamen. In 2005 Mrs Sahra's husband went missing. Finally, Mrs Sahra and her mother decided that she should flee and leave her two small children with the mother.’
Mrs Sahra had provided her own statement about her life and I had interviewed her on the phone. The latter was a way for me to gather additional ‘first-hand’ data about the situation. On this basis, I argued that her account, when compared to the ‘objective information’ available on Asharaf (anthropological notes, fact-finding mission reports, some information I had received from friends in Somalia), was plausible.
A word on ‘sources’ used by experts in asylum cases seems in order here. Good (Reference Good2007, p. 150) has stressed that, since court decisions are ‘based on the situation on the day of the hearing, up-to-date information is at premium. Consequently, experts cannot rely on conventional academic sources and the Internet becomes a primary source of news and information’. But, for other reasons as well, I often preferred non-academic sources over ‘conventional academic’ ones. The decision-makers at the Home Office liked to substantiate their positions by referring to sources close to governments or other established institutions. Judges also highly valued these kinds of sources. In reaction, I myself referred in my expert reports to publications by the UN Secretary-General and other organs of the UN, major international non-governmental organisations (NGOs) such as Human Rights Watch and Amnesty International, and globally oriented think tanks such as the International Crisis Group (ICG). In addition, I used various Somali news websites for up-to-date information. Particularly helpful were English translations of Somali news items gathered daily by the BBC Monitoring International Service, which a French colleague forwarded to me regularly. I would not be able to easily justify using most of these sources in my academic work because they are not grounded in critical and reflexive research, but rather constitute advocacy work or follow a political agenda that I view sceptically. When serving as an expert witness, however, I combine these sources with my ethnographic experiences and the social anthropological notes of other colleagues to forestall criticism by the respondent and the judges about the esoteric nature of ethnography, which is often believed to produce only ‘anecdotal’ evidence, whereas UN reports and the like are generally seen as ‘objective’ and ‘authoritative’ by legal practitioners. One could speak of a political epistemology here, which vests certain sources that are non-academic and the ‘exact’ knowledge they provide with greater authority and legitimacy than academic sources and their knowledge, which can seem ambiguous.
Back to the case: during my telephone interview with Mrs Sahra, I realised that she spoke with a ‘southern Somali accent’, which will play a role in my further deliberations. In ‘assessing’ her claimed identity, I stressed that
‘Mrs Sahra provided a reasonably detailed and correct outline of Asharaf genealogy. She also described the main aspects of Asharaf culture correctly. Her family situation, e.g. the marriage of her parents as well as her own marriage, confirms the typical intermarriage pattern of Asharaf. The statement that she stayed in the house most of the time and that she and other female members of the household made sweets, together with the fact that she knew well about the process of making xalwada, a typical southern Somali sweet, underlines her claim of being Asharaf. The suffering she described for herself and her family in the time of civil war is in accordance with what is known about the situation of minorities, including Asharaf, in Somalia.’
Here, one can already see the ‘[e]ssentialisations and simplifications’ and the structuralist position which Thuen (Reference Thuen2004), cited above, had mentioned. Characterising a person as a member of a group because his or her parents' marriage conforms to a typical pattern and because she knows how to make certain sweets sounds objectionable from a post-positivist perspective. I certainly would not write such a paragraph in an academic paper (except to refer to it reflexively, as I do here). In the report in the case of Mrs Sahra, however, it helped me to ‘confirm’ Sahra's minority group status with ‘a high degree of certainty’, which was vital to her case.
The matter proceeded and, a year later, I was asked to write a second, updated report. By then, the Home Office had critically assessed my first report. In my updated report, I had a chance to react to this criticism. First, the Home Office doubted the extent to which I spoke Somali (which is probably a typical attack on an expert's credibility; see Gormley and Good above). I explained in writing that I was fluent in colloquial Somali and that, due to contact with Somalis from the North who had spent their lives in the South before the outbreak of civil war in 1991, I was familiar with the dialectical differences between northern and southern Somali.
I then returned to the link between language and identity that had been part of assessing Mrs Sahra's group belonging in my first report. There I had stated that, during our telephone interview, Mrs Sahra had spoken with a southern accent. Anthropological notes of colleagues as well as the fact-finding mission report that I had used in my earlier report stressed that Asharaf speak a southern Somali dialect that is sometimes called Af Reer Xamar (the language of people from Mogadishu). But, and now I cite from my updated report in this case in August 2008 (almost exactly a year after my first report):
‘In paragraph 98 of the Reasons for Refusal the Home Office argued that Southern Somali dialect could be picked up or learned by any person living amongst others speaking such dialect. In paragraph 99 it is highlighted that in my previous report in this case, I stated that Af Reer Hamar in the wider sense is spoken by people in outer Mogadishu and along the Benaadir coast regardless of clan affiliation. In paragraph 100 it is concluded [by the Home Office] that “merely speaking Af Reer Hamar dialect is not in itself indicative of clanship/belonging to a certain clan”.’
Here, the Home Office basically made a post-positivist point by stressing the flexibility of dialect learning and the limited value of dialect as an ‘identity marker’. In contrast, I positioned myself as a strategic positivist and argued: ‘My experience among Somalis points to the fact that they usually keep their “original” dialect.’ Then I referred to several encounters I had during fieldwork in which people from the South who had come to the North in the 1990s had kept their southern accent. Subsequently, I stressed in my reply to the Home Office that
‘I am qualified to recognise and identify such language cues. … Thus, I maintain that the southern dialect spoken by Mrs Sahra during our telephone interview seemed to me genuine and to point to her having been raised in southern Somalia. However, I agree with the argumentation of the Home Office in paragraphs 99 and 100 that speaking with a southern Somali dialect such as Af Reer Hamar in the wider sense is not itself indicative of specific clan identity. It is, however, one of several markers that in context can provide the basis for a conclusion about probable clan belonging.’
Here, I clearly used the ‘flat, undifferentiated rubric of “identity”’ (Brubaker and Cooper, Reference Brubaker and Cooper2000, p. 34) to advance the idea of fixed and bounded clan or minority group belonging.
A further point of criticism of the Home Office concerned the ‘skin colour’ of Mrs Sahra. I cite again from my updated second report:
‘In paragraphs 101 to 102 of the Reasons for Refusal [of the Home Office] it is argued that Asharaf/Hassan/Sarmaan are considered to be “dark skinned”, according to the note on the Asharaf by Virginia Luling that I used in my previous report as one source among others. Mrs Sahra, however, is “light skinned”.’
I continued in reply to the Home Office:
‘I personally never saw Mrs Sahra. Thus, I cannot come to my own conclusion on the issue of her skin colour. Yet, I can confirm that a number of Somali claims concerning skin colour frequently do not match reality. For instance, most northern Somalis amongst whom I lived considered themselves to be light skinned, whereas they stated that Rahanweyn and Bantu living in southern Somalia were “black” or “dark skinned”. When I met some Rahanweyn and Bantu, who resided as workers or refugees in the north, their complexion was not different from the skin colour of the “pure” northerners surrounding me.’
I realise that such argumentation must sound anachronistic to social anthropologists in the early twenty-first century – a throwback to an older, more essentialist approach to race and ethnicity that has been thoroughly discredited in the discipline today. However, I refer here to a local folk discourse about light- and dark-skinned members of Somali society that is also widespread among other groups in the Horn of Africa. In this case, I basically tried to undermine this local racist discourse that was nevertheless being used by the Home Office in a rather positivistic way, by arguing that
‘it would be a mistake … to base a final judgement of a person's clan-belonging on [skin colour]. In the context of a number of other markers of identity, such as genealogical knowledge, place of residence, occupation, knowledge about culture and traditions, consistency of an account, and so forth, the criterion of skin colour might be considered. However, it can also be completely misleading.’
Here, I argued from a flexible perspective much as the Home Office had done regarding the issue of dialect discussed above. To identify a vernacular racist discourse as socially constructed is in line with contemporary anthropological thinking. Simultaneously, I still made a kind of positivist argument by listing other criteria (besides skin colour) that could be used to get at the ‘truth’ about Mrs Sahra's group identity.
Another point raised by the Home Office was that, according to numerous fact-finding missions and NGO reports, it was a ‘fact’ that most members of Somali minority groups had left the country in the early 1990s, in the first years of internecine fighting in which members of weaker groups suffered tremendously (Cassanelli, Reference Cassanelli1995). The Home Office found that the mother of Mrs Sahra still resided in Mogadishu in 2008. This was, by extension, taken as an indicator that Mrs Sahra was not a member of a minority group. I replied:
‘It is incorrect to assume that all minority clan members have left Mogadishu. There has been no survey of their numbers in Mogadishu because no NGO, expert or governing entity has been able to go there to examine the social composition. … Some of [the minority group members] lack the financial means to leave, others are not able physically to leave because they are too old or have a disability; others again – yet this may be a minority – may not be in a position to envision an alternative outside of their old home and might simply endure the suffering, hoping for betterment in the future.’
This argument is in line with the attempts of anthropologists who study forced migration and try to provide a nuanced picture of the manifold circumstances under which certain people flee (Lindley, Reference Lindley2009).
In short, these extracts from my exchanges with specialists from the Home Office about Somali identity matters show a clear back and forth between more flexible and more rigid types of argumentation. Other exchanges with the Home Office, which I cannot outline here in detail for lack of space, concerned other social anthropological phenomena such as marriage patterns and social hierarchies. How could it be explained that an Asharaf woman would be married to a man from a majority group, especially when one takes into consideration the ‘fact’ that Asharaf were traditionally endogamous? How could it be explained that an Asharaf man or woman was helped and protected by a Hawiye (majority group) neighbour in Mogadishu throughout the 1990s, despite the ‘fact’ that Hawiye militias systematically persecuted and exploited members of minority groups during that time? Such questions were my ‘daily bread’ as an expert in dialogue with the Home Office and some judges. I tried to account for human ambiguities in my argumentation without undermining the strength of my arguments by abandoning completely the language of ‘cultural patterns’ and other structural factors that I knew would resonate with Home Office representatives and judges.
In the course of our exchanges, it became clear to me that some of the state representatives in the UK concerned with Somali asylum cases had become quasi-anthropologists in the course of their work. They had learned a version of the discipline by studying fact-finding mission reports and other documents, which reminded me of the structural–functionalist paradigm of British social anthropology in the 1940s and 1950s.Footnote 13 In my replies to Home Office Reasons for Refusal letters, I sought to argue, at least situationally, at the same level as my counterparts. In my view, this was necessary to make a strong (social anthropological) point within the limits provided by legal proceedings that aimed at ‘true facts’ and ‘objective evidence’. I believe that, if I had categorically rejected this epistemological stance predominantly taken by the decision-makers of the Home Office and the judges, I would not have been able to work as an expert. What I could bring additionally ‘to the table’ and what sometimes made the difference was my ethnographic experience. The decision-makers of the Home Office had never entered Somalia (some might have wanted to, but they were not allowed, as one of them told me in a chat after a long day in court in London in February 2014). Therefore, the flavour of ‘having been there’ that I could produce (something anthropologists began to critically scrutinise in the 1970s – see e.g. Kohl, Reference Kohl1979) was, in combination with the excessive reference to ‘authoritative sources' (like UN reports), my sharpest ‘weapon’ in many struggles with legal practitioners in asylum cases.
Additionally, I tried to get a more contemporary (and, if you like, post-positivist) version of anthropology across, according to which, for example, ‘descent’ is not ‘fate’ (Schlee, Reference Schlee, Schlee and Werner1996, p. 141), and individual men and women may not always conform to every tradition of their claimed identity group. From the perspective of basic ethics in our discipline, this was a hairy endeavour because I tried to simultaneously stress the relevance of the collective and the individual.Footnote 14 My goal was to create some room for manoeuvre and account for individual deviation from social/cultural norms and rules without throwing the ‘baby’ of asylum-relevant group identity out with the ‘too essentialist’ bathwater. This indicates the fine line one must tread with regard to different epistemological positionings and strategic decisions regarding what to emphasise about a given situation. It is of course very difficult to harmonise this approach with the requirement of the Practice Decision (cited above) that ‘[a]n expert should assist the Tribunal by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate’. The next section provides a case that aptly illustrates the tensions between being an expert, as demanded by the court, and the advocate position most social anthropologists usually take.
III. ‘Getting burned’ as an expert and the ‘legal straightjacket of argument’ during cross-examination
Serving as an expert can come along with real dangers for the academic and personal well-being of the social anthropologist involved. This shows the limits of experts’ room for manoeuvre between ‘incompatible codes of professional and ethical behaviour’ (Good, Reference Good2007, p. 208) and demands to serve the court with ‘true facts’ and ‘objective opinions’ within the framework of the judiciary.
3.1 ‘Bad expert overnight’
In November 2007, a so-called country guidance case concerning Somalia was heard before the Asylum and Immigration Tribunal in downtown London. The task was to decide whether there was an internal armed conflict in Mogadishu and surroundings and, if so, what the consequences were for Somali asylum seekers in the UK. Country guidance cases deal with matters of wider relevance regarding countries from which a large number of asylum seekers come to the UK. For many years, Somalia ranked among the top five of these countries. The idea is that, under common law, such a high-level decision would provide guidance for lower-tier courts and the Home Office decision-makers. The case with which I am concerned here is technically referred to as HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022.Footnote 15 It involved three Somali claimants, a team of solicitors and a barrister,Footnote 16 three well-known Somalia experts instructed by the solicitors, the respondent (representatives of the Home Office) and three judges. Written reports were prepared by all experts beforehand and sent to the tribunal and the Home Office respondent, who had a chance to ask questions and, where necessary, demand the provision of further documentation substantiating statements in the reports. Eventually, a hearing took place over the course of several days in November 2007. In this hearing, the claimants could make statements and the experts were called upon to be questioned by the solicitors of the asylum seekers and then cross-examined by the representatives of the Home Office and the judges. Afterwards, the claimant could ask questions again. In cross-examination, the representatives of the Home Office sought to undermine the standing of the experts. In the following, I will outline one colleague's fate in such a procedure.
This colleague was Virginia Luling.Footnote 17 During the court proceedings and in the written account of the country guidance decision, she was accused by the respondent of not being objective (para. 113).Footnote 18 A report by another public office that had been concerned with the case earlier was cited, according to which ‘Dr Luling's “reluctance to express an opinion which might be adverse to the appellant's claim” should be brought to the notice of court officials' (para. 117). Virginia Luling was given a chance to respond:
‘Asked what she would say if the respondent's stance was that she tailored her reports in order to omit material that might be detrimental to appellant S's interests, Dr Luling said that she would probably have followed the instructions of her solicitors in the case in question.’ (para. 118)
Further questioned on the matter,
‘Dr Luling said that she … understood, however, that her duty was to help the court. It was put to her that she had gone out of her way not to help. She replied that she thought her duty was to say what she had done. It was put to her that she had told a version of the truth. Dr Luling said that what she had written was true as far as it went. Asked if it was acceptable not to tell the whole truth, she said that she answered the questions put to her by her solicitor.’ (para. 121, emphasis added)
It seems, in my eyes, that the court for a moment took on the role of a post-positivist social scientist, stressing that there can be different ‘versions’ of the truth and that the truth is ‘partial’ (Clifford, Reference Clifford, Clifford and Marcus1986), while Virginia Luling, the social anthropologist, referred or had to refer, in self-defence, to what was ‘true’, as if it constituted ‘safe ground’ on which to position herself as an expert. In the continuation of the argument, the court resorted to the idea of the ‘whole truth’, which, of course, is a ‘step back’ to a more positivistic position. Thus, within three lines of written court decision, one can see three different forms of strategic epistemological positioning by the expert witness, on the one hand, and the court on the other.
To continue with the proceedings: when it was the claimant's turn to question Virginia Luling again after the examination by the Home Office,
‘Mr Collins [a well-known barrister arguing on behalf of the claimant] said it was unclear what her [Luling's] instructions had been in the case in question. The matter was one of concern but, on the other hand, Dr Luling could not be said to have become a ‘bad expert overnight’. On the contrary, she had since the events in question been specifically praised by the Tribunal in a number of determinations.’ (para. 198)
One can see here the barrister (arguing for the claimant's side), who did not write the instructions (that is the job of the solicitor), leaving the issue of instructions aside. Instead, he tried to move on and highlighted Virginia Luling's credentials as an expert. Here, the expert is just ‘used’ without, in my eyes, having a chance to really discuss what is at stake. If Virginia Luling had wanted to begin a truly reflexive debate here, she would have had to question the whole framework of the legal proceedings. Not only would doing so have certainly damaged the case at hand; there was also simply no place for such a disquisition during the court proceedings. This more general aspect of the problem of which ‘version of the truth’ is emphasised in a case by the expert (and by others) is also hinted at by Anthony Good (Reference Good2008, p. S48), who stressed that:
‘To forestall attacks on the validity of the expert evidence they have obtained, lawyers structure their submissions so as to conceal, as far as possible, the contingent nature of “their” expert's conclusions and methods … . Such processes may be understood in terms of the general insight that legal cases are “constructed” through discretionary selection of the evidence to be presented, rather than providing a transparent window through which the facts in dispute are viewed … . Experts are therefore under pressure to profess greater certainty than they really feel.’
The final decision of the tribunal on Dr Luling as expert in this case was as follows:
‘So far as Dr Luling's evidence regarding the general situation in southern Somalia is concerned, by her own admission, this is largely reliant on reports in the public domain, reinforced by her conversations with Somalis in the United Kingdom who, in turn, are in contact by telephone with those in Somalia. Overall, the Tribunal has concluded that in these appeals we have been unable to give weight to much of Dr Luling's evidence.’ (para. 291)
What has happened here? Virginia Luling had conducted extensive field research in southern Somalia over the course of several decades starting around 1967, produced a social history in the longue durée of a community near Mogadishu covering 150 years, drawing on older sources and her own material (Luling, Reference Luling2002), and was the only anthropologist, to the best of my knowledge, who was able to visit southern Somalia during civil war in the 1990s to stay with ordinary people in Afgooye, her old field site, for a period of time and have at least some ethnographic contact.Footnote 19 She had literally written over 1,000 expert reports and served as expert witness in country guidance and other cases many times at the time she appeared in court in this case in 2007. The criticism that was mounted against her for tailoring her reports, omitting facts and being ‘reliant on reports in the public domain, reinforced by … conversations with Somalis in the United Kingdom’ sharply contrasted with the frequent praise she had received many times before as a highly knowledgeable and helpful expert witness. Now she had suddenly become a ‘bad expert’.
Anthropologists are always suspected of ‘defending the disenfranchised’. Sarah Pink (Reference Pink and Pink2006, p. 11) reminded us that applied anthropologists frequently see their work as a ‘moral corrective’ to the injustices of the powerful ‘system’ against marginalised groups. She quoted Anthony Good in this context, who had stressed that ‘[a]cting as an expert in the asylum courts is easy to justify morally, all the more so in view of the manifest failings in Home Office procedures' (Good, Reference Good2003, p. 7, quoted in Pink, Reference Pink and Pink2006, p. 11).Footnote 20 Virginia Luling certainly had been driven by a moral impulse and, indeed, Somali asylum seekers were a dramatically marginalised group. Many of their stories did not easily meet the standards of verifiability in court. Matters at stake here are, on the one hand, the professional and ethical standards of many social anthropologists, who are, according to discussions in the discipline since the 1970s, strongly advised to always consider first the well-being and interests of those people with whom they do research (Fluehr-Lobban, Reference Fluehr-Lobban and Fluehr-Lobban2003; Hornbacher, Reference Hornbacher2013). With regard to social anthropologists as experts before the court, a problem of ‘double-hegemony’ emerges. They, as researchers, are usually in a hegemonic position (at least if coming from a place in the global North and doing research on an issue in the global South, or simply by virtue of their position in a powerful academic apparatus). But, in court, they are subordinate to the judges, at least in the UK legal system. This makes the subject matter discussed – for example, the situation in Somalia and the impact it has on Somali lives – doubly subordinate. This is also the case because courts are ‘almost entirely unaware of the moral and methodological dilemmas posed for anthropologists from one culture, especially a hegemonic one, when required to represent or speak for groups of people from another’ (Good, Reference Good2007, p. 37).
On the other hand, I would argue that the court betrayed a certain bias when it argued that, because Virginia Luling was ‘largely reliant on reports in the public domain’ regarding the general situation in southern Somalia, it could not ‘give weight to much of Dr Luling's evidence’. As a rule, the respondent (that is, the Home Office), whose position was not criticised on these grounds, relies exclusively on resources that are second-hand and almost always also in the public domain. It would be an error of law (and as such grounds for an appeal against the decision) to disregard an expert's opinion without giving reasons. But reasons can be ‘flimsy’.Footnote 21 In the particular case discussed here, I perceive the attack on Virginia Luling as an effort to ‘demolish’ an expert. The expert, on the other hand, has little possibility to defend herself, especially if the attack comes from judges presiding over the proceedings. The expert witness is put in her place, and decades of ethnographic experiences are denied relevance.
Virginia Luling herself hinted at the huge discrepancy between the professional, moral and ethical standards of social anthropologists and the work of expert witnesses in a book chapter that, by chance, appeared at the time of the proceedings of the country guidance case discussed above. The title of the chapter is ‘A Game of Chance: Somali Asylum Applicants in the UK’ (Luling, Reference Luling, Muchie, Gundel and Farah2007). In it, Luling characterised the process of applying for asylum in the UK and the various possible ways a case could go as ‘game of chance’. The ‘lottery aspect’ of asylum proceedings is sometimes acknowledged by judicial practitioners (Good, Reference Good2007, p. 197), but generally, I argue, the idea of a game of chance or lottery sits quite uneasily with the legal perspective on these matters, which presumes that ‘the law’ follows clear rules leading to decisions based on objective evidence (the words ‘rule’ and ‘objective evidence’ feature very frequently in, for example, the written outline of HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022). In her chapter, Luling mentioned that ‘[t]he Reasons for Refusal letters sent out by the Home Office are notoriously of poor quality, and considered rather a bad joke by solicitors and others working in the field’ (Luling, Reference Luling, Muchie, Gundel and Farah2007, p. 50). Luling went on:
‘Time and again people who are quite clearly members of minority clans are refused and told that they do not belong to these clans, and indeed are not Somali at all. At the same time applicants are accepted as minority members who are not.’ (p. 51)
This certainly comes close to mocking the whole system related to asylum legislation – at least with regard to Somalis. Obviously, something is wrong with the system, and the author knows about it. Finally, the author admitted that, in cases when she was uncertain about a person's group identity, ‘I would always rather lean towards saying “yes” than “no”. I am sure I have made not a few mistakes, but always in this direction [in favour of asylum seekers claiming minority status]’ (Luling, Reference Luling, Muchie, Gundel and Farah2007, p. 55). Here, I argue, Luling had crossed the line by showing a degree of reflexivity (and activism) that is generally unwarranted in the courtroom and actually impossible for an expert witness to get away with. Being open about one's own uncertainties – a quality of every good anthropologist today – is not appreciated in court. Indeed, one can argue that Virginia Luling had voiced uncertainty not only about her own abilities to ‘get at the truth’, but even about the very system itself. But, while involved in the legal proceedings of HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022, as outlined above, she also manoeuvred between more positivistic and more post-positivistic positions.
My own experiences as an expert witness in the most recent country guidance case on Somalia, officially referred to as MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC),Footnote 22 underlines how the ‘legal straightjacket of argument may easily transform anthropological knowledge into dubious treatments of “the truth”’ (Thuen, Reference Thuen2004, p. 280) when it comes to the situation in Somalia. The hearing took place in February 2014; the decision was published a few months later, in October. The key issues in this case included getting at exact numbers concerning IDPs in southern Somalia, civilians killed or injured during fighting or terror attacks in Mogadishu, returnees from the diaspora and from refugee camps in Somalia to the capital, and the performance of the economy, particularly concerning the situation in Mogadishu. The three Somali asylum seekers whose cases were jointly dealt with in this case were ‘ordinary [male] citizens’, in the words of the tribunal, able-bodied, relatively young (around thirty years old) and members of majority clans. The implication was that, if the court found that these men could be sent back to Somalia, given the ‘facts’ of declining violence against civilians, increased voluntary return of Somali refugees to Mogadishu and the economic boom there, many other Somali asylum seekers fitting the category of ‘ordinary citizens' could have their applications rejected or their status revoked (if, for example, they had broken the law in the UK), and be returned. The claimants, the experts and the respondent tabled thousands of pages of material – news reports, reports by NGOs and UN organisations, plus expert reports – to assess the questions at hand. From the beginning, it was clear that the judges wanted exact numbers; it was equally clear to me and the other experts that there were no reliable exact numbers on the matters being discussed (civilians killed, returnees from the diaspora or refugee camps in the country, economic performance). The basis for data collection was often unclear or extremely limited due to the insecurity and chaos in Mogadishu and southern Somalia as a whole (with Al-Shabaab still operating in the vicinity of the capital and thousands of African Union troops on the ground to protect the Somali government, which mostly was confined to Mogadishu). In cross-examination, the respondent (representing the Home Office) employed two classic strategies. First, all experts were asked very short and frequently leading questions. Thuen (Reference Thuen2004, p. 275) correctly noted that, in the view of anthropologists, ‘cross-examination by opposing counsel … in their experience is often inimical to attaining a higher level of factual knowledge about the issues in question’. I felt that, when the respondent was questioning me before the court, he tried to corner me and prevent me from unfolding my knowledge about relevant social issues and other details. Whenever I tried to break free and elaborate on certain matters, I was called to order by the chairman of the tribunal. The judges demanded ‘yes/no’ answers and told me that I should just admit it if I had no expertise on a particular matter. But to question the framework within which questions were asked and knowledge about the situation in Somalia was produced was impossible. The ‘legal straightjacket’ was applied. This led to a very dubious treatment of ‘the truth’.
A second classic strategy of the representatives of the Home Office in cross-examination was to always first present some evidence that supported the position of the claimant. Then they presented evidence supporting their own position. The tribunal, in this case, honoured this tactic as ‘balanced’ approach. In contrast, the claimants and the three ‘neutral’ expert witnesses focused on material outlining the persistent risks to ordinary civilians in Mogadishu. They (we) dismissed as unfounded the material used by the Home Office to show how ‘good’ life in Mogadishu actually was. In reaction the tribunal, in its decision of October 2014, accused us of one-sidedness. In paragraph 158 of the decision, the tribunal found on my ‘evidence generally that he [Markus Hoehne] consistently presents the least positive interpretation of the source material he draws upon’. My standing as an expert was further attacked in the judgment, which asserts that I was not willing to ‘refine’ my views:
‘Dr Hoehne, the respondent submits, displayed a consistent rigidity in giving evidence in that he declined to depart from any view expressed in evidence, even when material to which he was referred suggested that such view should, at least, be refined.’ (para. 211)
The largely speculative nature of the data provided on the key matters deliberated in this country guidance case was to some degree acknowledged by the tribunal in the summary of its decision, where it noted that the level of civilian casualties ‘cannot be precisely established by the statistical evidence which is incomplete and unreliable’ (para. iv). Still, the overall decision supported the position of the Home Office, concluding that ‘as a whole that there has been a reduction in the level of civilian casualties since 2011’; there was no longer any systematic persecution of individuals on the basis of clan belonging; and the ‘economic boom’ would provide many Somali returnees, including forcibly returned asylum seekers from the UK, a chance to establish a living.
While there is of course no way to prove any link between the tribunal's decision and the political position of the British government at the time of the proceedings, it is still worth mentioning that, since 2012, Somalia has been a diplomatic showcase for the British government. Several high-level conferences ‘for Somalia’ were staged in London (in 2012 and 2013) to foster the state-building process; at the same time, from 2012 to 2015, the British diplomat Nicholas Kay served as Special Representative of the UN Secretary-General for Somalia. Many young professionals with degrees from British universities, including many of Somali origin, were sent or went as ‘advisers’ to Mogadishu. UK-based newspapers such as The Guardian praised the progress made in Somalia with titles such as ‘“Mogadishu Is Like Manhattan”: Somalis Return Home to Accelerate Progress' (this news article, among many other similar ones, was used as piece of evidence in the country guidance case proceedings).Footnote 23 The decision in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) was published in October 2014. The tribunal found that ‘[t]here has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city’ (Summary, para. iii).
Just one and a half years later, however, the Home Office made a complete about-face in its Country Information and Guidance note, published in March 2016 and entitled ‘South and Central Somalia: Fear of Al-Shabaab’ (Version 1.0, March 2016), which stated in paragraph 4.3.2Footnote 24 :
‘The successful elimination of several prominent leaders appears to have done little to dent Al-Shabaab's commitment and capacity to destabilize the region. Al-Shabaab's shift of tactics, including the return to conventional attacks on military targets − both AMISOM: [African Union Mission in Somalia] and the Somali National Army − is cause for deep concern … . Al-Shabaab maintains an ability to adapt to changing circumstances and exploit weaknesses in the security and governance architecture.’
This assessment was corroborated by a recent report from the Danish Immigration Service's fact-finding mission to Nairobi, Kenya and Mogadishu, Somalia,Footnote 25 which stressed that ‘In Mogadishu, as reported by observers, civilians are injured and killed every week in targeted attacks by gunmen, or attacks involving IEDs [Improvised Explosive Devices] and grenades.’Footnote 26
IV. Conclusion
Being an expert in legal proceedings is not just a ‘game’; it has real-life consequences – for experts and, in asylum cases, for refugees seeking asylum. On the positive side, one can put one's anthropological knowledge to good use and make a (small but meaningful) difference in the lives of concrete people. If a case is won in which the expert opinion had been duly considered and positively evaluated by the court, one has helped a refugee from a war-torn or otherwise problematic place find security and, ideally, the chance to start a new life. On a more mundane level, one can also make a living or earn something extra as an expert witness, which is certainly also a factor that motivates social anthropologists and other academics, who frequently live and work in precarious financial conditions, to engage in such endeavours.
But being an expert also comes with burdens and dangers: one can get ‘burned’, as happened to Virginia Luling. After decades as a celebrated expert, she fell from grace in 2007, which must have damaged her personally (I knew from our many talks that she took being an expert in asylum cases very seriously, but we never talked about the case in 2007 and what had happened to her). To avoid being burned, one constantly has to walk the thin line between leaning towards the ‘yes-opinion’ mentioned by Luling (Reference Luling, Muchie, Gundel and Farah2007, p. 55) – in dubio pro asylum seeker – and protecting one's own standing as a reputable expert who is serving the court and is presumably neutral. The latter is of course a position that is very challenging given the structure of the proceedings (usually being instructed by the claimant), and it also sits uneasily with reflexive, post-positivist social anthropology and professional, moral and ethical standards of the discipline.
While all of this certainly does not amount to an epistemological divide between law and anthropology, it still points to a veritable gap constituted by different professional standards and, particularly in the British legal tradition, massive power differences between expert witnesses and judges. In reaction to these power differentials in legal proceedings, social anthropologists as expert witnesses have to become pragmatic and use different epistemological positions strategically. I have indicated in this paper that the same is done by the specialists from the Home Office and sometimes the judges, but perhaps to a lesser degree. Nevertheless, strategy and creativity on the side of the social anthropological experts alone do not win the ‘battle’ in the power-laden arena of asylum proceedings. Sometimes, political considerations come into play, at least implicitly, and lead, in my view, to the disregard of quite obvious problems regarding the security situation in a place like Somalia in 2014. In the most recent country guidance case concerning Somalia, the tribunal took a decision that was clearly against the quite detailed and carefully considered position of all three experts involved. Recent re-evaluations of the situation in southern Somalia, including a note by the Home Office, cast doubt on some aspects of the tribunal's decision in 2014.
The manoeuvres and strategies on the side of social anthropological expert witnesses outlined in this paper would not be necessary if a different kind of exchange of arguments were possible during asylum proceedings – one that is more open to doubt and considers the ‘heuristic of fear’ that Zenker (this issue) mentions (with reference to Hans Jonas). Under such circumstances, the ‘theory effects’ that are related to imposing certain visions of the world (Bourdieu, Reference Bourdieu1989, p. 17; see also Zenker, this issue) and the possible harm emanating from knowledge production would also be more controllable. But an open debate is inhibited by the rules of procedure and the massive power imbalances in UK asylum proceedings. Expert witnesses such as social anthropologists are simply ‘slotted in’ and often manipulated. The ‘heuristic of fear’ that I had promoted in my own statements during the country guidance case by consciously emphasising the ‘least positive interpretation of the source material’ is clearly not what the court wants to hear. Expert witnesses have no further influence on the final decisions of the cases. Therefore, they can only choose between the Scylla of refraining from getting involved at all (and limit themselves to the academic realm where they can, one would hope, better control the uses to which their knowledge is put) and the Charybdis of taking up a subordinate position in an arena dominated by legal practitioners − with judges at the top of the ladder − who only accept a particular form of evidence and are usually not open to the doubt that characterises epistemological positions currently dominant in social anthropology.
