I. Anthropology and the law: the ‘epistemological-divide debate’

In the legal anthropology literature, there are contrary views on the degree to which legal and anthropological thinking diverge. Some authors, be they applied anthropologists engaging in the legal field or anthropological theorists, more or less explicitly assume that anthropological modes of thinking and reasoning are very different from and perhaps even incommensurable with legal thinking. In this view, anthropology and jurisprudence have fundamental epistemological differences that impede interdisciplinary communication (see e.g. Geertz, Reference Geertz1983; Davidson, Reference Davidson1992; Kandel, Reference Kandel1992; Rigby and Sevareid, Reference Rigby and Sevareid1992; Assier-Andrieu, Reference Assier-Andrieu2015). Others criticise this assumption and argue that the alleged epistemological divide between law and anthropology must be deconstructed to gain a better understanding of the relationship between the two disciplines (e.g. Riles, Reference Riles1994; Edmond, Reference Edmond2004).

One very influential presentation of the ‘epistemological-divide’ argument is Clifford Geertz's essay ‘Local Knowledge: Fact and Law in Comparative Perspective’ (Reference Geertz1983), which has come to be regarded as a ‘classic’ of legal anthropology. Geertz's argument is based on the observation that law and anthropology are characterised by two different epistemologies, two ‘distinctive manners of imagining the real’ (Reference Geertz1983, p. 184). Anthropological and legal thinking diverge, according to Geertz, in the ways in which they conceive of ‘facts’. The relationship between ‘fact’ and ‘law’ or, in other words, how legal thinking differentiates the legal from the factual, is for Geertz a central topic of legal anthropological investigation.

The idea that legal thinking produces ‘factuality’ somehow differently from anthropological thinking has proven very influential. In a special issue of the US-based National Association for the Practice of Anthropology's NAPA Bulletin entitled Double Vision: Anthropologists at Law,Footnote ¹ the editors dedicate an entire section to the topic of ‘how lawyers and anthropologists think differently’. In this issue, Rigby and Sevareid (Reference Rigby and Sevareid1992), like Geertz, see the ‘differences in epistemology’ (p. 5) between legal and anthropological thinking mainly in the conception of the factual (several paragraphs refer to Geertz's work). They are more outspoken than Geertz about how to frame these epistemological differences: while anthropologists are ‘immersing themselves in a dialectical discourse on the relationship between theory and fact’ (Rigby and Sevareid, Reference Rigby and Sevareid1992, p. 13), lawyers ‘believe that they can objectively look at facts in the real world without preconceptions’ (Rigby and Sevareid, Reference Rigby and Sevareid1992, p. 20). Law and anthropology represent two different approaches to reasoning. In Aristotelian terms, legal reasoning is ‘apodictic’, while anthropological reasoning is ‘dialectic’ (Rigby and Sevareid, Reference Rigby and Sevareid1992, p. 19). Because of this different approach to the factual (or perhaps more accurately, the different degrees to which factuality is problematised), a number of ‘differences in assumptions and outlook’ emerge between lawyers and anthropologists that are ‘at least to some extent’ inevitable (Kandel, Reference Kandel1992, p. 4). Consequently, concepts such as ‘causality’ and ‘proof’ that refer to the process of assessing facts in light of (legal or anthropological) theory diverge (Davidson, Reference Davidson1992).

Suggesting an ‘epistemological divide’ between anthropological and legal thinking is criticised by some as containing ‘elements of caricature’ (Good, Reference Good2004, p. 131); speaking of a ‘culture clash’ between the two disciplines would be ‘too cumbersome and too simplistic’ (Edmond, Reference Edmond2004, p. 220). Riles (Reference Riles1994) goes even further and attempts to deconstruct the ‘epistemological divide’ between law and anthropology. What some anthropologists paint as discipline-bound differences are in fact modes of thinking characteristic of both disciplines: ‘reflexive thinking’ attributed to anthropology and ‘normative thinking’ attributed to jurisprudence are regularly applied by both disciplines, albeit not always to the same issues at the same time.

Investigating how lawyers and anthropologists ‘imagine the real’ is no doubt an important problem for legal anthropology, and a great deal of work still has to be done theoretically and ethnographically to further explore this question. In that regard, Höhne, Zenker and Vetters, and Foblets provide important insights in their contributions in this themed section. For the purposes of this essay, I am more interested in how the ‘epistemological-divide debate’ historically shaped processes of identity for anthropology as a discipline. Anthropology's engagement with the legal field has contributed much to how anthropology conceives of itself and its fundamental epistemological assumptions. To illustrate this, it is useful to look for moments in history where anthropologists are deeply engaged in legal affairs. A cursory look into the history of the discipline is enough to reveal that there are surprisingly many angles from which to tackle the question.

In early twentieth-century Britain, for instance, there was a close relationship between anthropologists and colonial legal and administrative regimes.Footnote ² Not only were colonial officials educated in post-graduate anthropology programmes at Oxford and Cambridge (starting in 1905 and 1908, respectively); anthropologists themselves applied their expertise to the administration of settler communities in colonies such as Australia and South Africa, most notably becoming involved on both sides of conflicts between White settlers and the indigenous populations over the legitimate basis of land ownership (Kuklick, Reference Kuklick and Kuklick2008; Edmond, Reference Edmond2004; Zenker, this issue). In the German tradition, a closer look at the biographies of some important figures in German anthropology from the mid-nineteenth to the mid-twentieth century shows that a number of them enjoyed at least some legal education before shifting to more anthropological studies, including Adolf Bastian (Fiedermutz-Laun, Reference Fiedermutz-Laun and Marschall1990, p. 112), Richard Thurnwald (Trimborn, Reference Trimborn1954, p. 254), Albert Hermann Post (Lyall, Reference Lyall2008, p. 116) and Hermann Trimborn (Hartmann, Reference Hartmann1987, p. 410), to name but a few. In the Dutch tradition, anthropologists were deeply engaged in the restructuring and reinventing of legal regimes in Indonesia, especially in case of the adat law school (van Vollenhoven, Reference Van Vollenhoven1918–1933; Reference Van Vollenhoven1928; Benda-Beckmann, Reference Benda-Beckmann1981; Griffiths, Reference Griffiths, von Benda-Beckmann and Strijbosch1986). In the anthropological traditions in the eastern part of Central Europe, the term ‘ethnology’ emerges in the second half of the eighteenth century to refer to a discipline that gathers expert knowledge on how to cope with very concrete problems that the Austrian courts were facing in their dealings with different cultural and legal traditions in the Danube basin after the region was taken from the Ottoman Empire (Šmitek and Jezernik, Reference Šmitek, Jezernik, Vermeulen and Roldán1995).

All of these phenomena in the history of anthropology could serve as points of departure to explore the entanglements of anthropology and the law. In this essay, however, I have chosen instead to focus on the topic of anthropologists as expert witnesses in the US between World War II and the late 1960s. I argue that this period was a critical turning point in the history of anthropology, not only in the US, but throughout the Western world, as far more questions touching on the fundamental identity of the discipline arose at this time than is generally acknowledged. Moreover, as the history of the use of anthropological expertise in the US has had a powerful influence on applied legal anthropology in other parts of the world, this overview also provides important, albeit indirect, background information for the following three papers in this themed section.

II. US anthropology in the 1940s, 1950s and 1960s: two births and legal conflicts

In historical overviews of the history of anthropology in the US, it is often highlighted that the discipline changed profoundly in the late 1960s in the course of the Vietnam War protests (Caplan, Reference Caplan and Caplan2003; Silverman, Reference Silverman, Barth, Gingrich, Parkin and Silverman2005; Darnell, Reference Darnell and Kuklick2008; Lewis, Reference Lewis2013). At that time, anthropology engaged in a broad movement of disciplinary self-critique, with problems of research ethics at its centre, in which figures such as Marshall Sahlins and Eric Wolf played prominent roles (Caplan, Reference Caplan and Caplan2003; Fluehr-Lobban, Reference Fluehr-Lobban2013). In the American Anthropological Association (AAA), a crisis emerged when it was discovered that anthropologists had been recruited by the US military to engage in counter-insurgency programmes in Latin America and South East Asia. The vehement denunciation of this kind of engagement by the majority of anthropologists in the country provoked long-standing debates over the character of anthropology as a discipline and led to the call to ‘reinvent anthropology’ (Hymes, Reference Hymes1969). It also marks for some the beginning of the ‘reflexive turn’ in US anthropology (Scholte, Reference Scholte and Hymes1969).Footnote ³ In Silverman's analysis, this crisis in US anthropology contributed to ‘a certain skittishness in taking on work with political implications’ and ‘sparked a retreat into trivia’ and a ‘revival of relativism and particularism in the 1970s’ (Silverman, Reference Silverman, Barth, Gingrich, Parkin and Silverman2005, p. 291).

Much has been written about the late 1960s as an incisive moment in anthropological history in the US.Footnote ⁴ What preceded the widely publicised Vietnam War protest era in the discipline in the 1940s, 1950s and early 1960s is often overshadowed by the controversies of the late 1960s. In my view, this earlier phase between World War II and the Vietnam War protests is of great relevance to the relationship between anthropology and the legal field. New subdisciplines such as ethnohistory became institutionalised, and already well-established subdisciplines such as applied anthropology significantly changed their character. During that period, anthropology revisited fundamental questions of disciplinary identity in light of its history of deep entanglement in legal processes.

After World War II, the US began to address pressing questions of social equality and civil rights. Social scientists in general and anthropologists in particular became embroiled in two hotly debated political issues: the legal campaign against racial segregation in the school system, most prominently promoted by the National Association for the Advancement of Colored People (NAACP); and the American Indian land claims cases that came before the Indian Claims Commission. At this time, the character of anthropology changed as it confronted conflicts battled out in the legal arena: anthropologists were forced to question many of the discipline's methods and theoretical assumptions, and posed identity questions that were quite directly related to the problems of expertise and advocacy. It was a time in the history of the discipline when the interconnections between law and anthropology were thrown into high relief.

III. US anthropology in the termination era: action, advocacy and the law

In this period of the emergence of ethnohistory and action anthropology in US anthropology, there was an overall climate of disciplinary reflection about the identity of anthropological scholarship. In the termination era, American anthropologists themselves were deeply divided on the future of American Indians. Some favoured assimilation into mainstream US culture and society, others pleaded for the cultural (re)vitalisation of Indian tribes. This put the discipline's most serious identity questions on the table: What is anthropology's object of study, and what is the future of that object of study and therefore of the discipline in general? What are the power relations between anthropologists, their employers (often US public institutions) and the subjects anthropologists study, and what ethical implications do these relationships have? (Mills, Reference Mills and Caplan2003).

These questions came into play in lawsuits filed by Indian activists, treaty negotiations between tribes and the federal government, and the question of whether the federal government should terminate formal relations with certain tribes altogether. In this climate, anthropologists were gathering data in support of Indian claims, in defence of the federal government and/or in the name of ‘scientific truth’. One can safely say that the fifteen-to-twenty-year period immediately following World War II was one of the most intense periods of change in US anthropology. The births of both ethnohistory and action anthropology are indicative of this change, and they happened in a climate in which anthropology was deeply implicated in legal battles between American Indians and US public institutions.

The important role that anthropological expertise had in the proceedings before the Indian Claims Commission can be exemplified by the so-called Great Basin Indian Claims cases. Beginning in the late 1940s, several Western Shoshone communities brought land rights claims before the commission. In US Federal Indian Law, whose basic legal principles were laid out in the 1820s and 1830s in a series of Supreme Court cases known as the ‘Marshall trilogy’,Footnote ¹¹ Indian tribes can generally claim rights to their territory before the US courts on the basis of ‘original Indian title’ (Cohen, Reference Cohen1947). Indian title was ‘original’ because it existed without being granted by the US; it was seen as originating in the sovereign possession of the indigenous nations. In accordance with this jurisprudence, the ICC was given the mandate to hear cases of any ‘tribe, band, or nation of American Indians’. However, those Indian communities whose social organisation was deemed too ‘primitive’ to be classified as ‘tribe, band, or nation’ did not qualify for consideration as sovereign nations, and hence had no original Indian title to their territory (Lurie, Reference Lurie1957). The anthropologist Julian Steward, serving as an expert witness for the US Department of Justice, testified that the Shoshone plaintiffs in the Northern Paiute's land rights claim had just such a low level of social organisation. Pinkoski and Asch (Reference Pinkoski, Asch and Barnard2004) analyse in detail how Steward based this assumption on his multilinear theory of cultural evolution, which has been enormously influential in later indigenous rights jurisprudence invoked to de-legitimise indigenous land claims in Canada as well as in the US. Pinkoski and Asch further suggest that Steward's conclusions were systematically biased by his long-standing involvement as an expert witness for the US government, which was interested in denying Indian land claims cases where possible.

Robert Manners's essay in Ethnohistory, ‘The Land Claims Cases: Anthropologists in Conflict’ (Reference Manners1956), epitomises how the land claims cases produced passionate conflicts within the scholarly community and became a central identity question for ethnohistorians. Having participated in the ASE conference on Indian claims litigation, Manners elaborated on the deep divisions within the discipline of ethnohistory caused by the engagement in Indian claims cases. In his words, there was ‘no escaping the faint tone of self-righteousness in the expression of those who are “defending” the Indians and the counter-assertive tone of belligerence of those who are “working for” the Justice Department’ (Manners, Reference Manners1956, p. 72). A ‘backlog of rancor and distrust’ had built up that, in his opinion, severely threatened the integrity of ethnohistory (Manners, Reference Manners1956, p. 73).

Manners situated the problem at the intersection of knowledge production and scholars’ entanglement in power relations. One point of crystallisation was the question of employment – a point that echoes a major concern brought up by Sol Tax. Manners implored both sides to bear in mind their various entanglements and the resulting consequences for their research, pointing out the simple but crucial fact that ‘the research activities of those expert witnesses employed by the government are performed with funds provided by the Justice Department, while researchers for the Indians’ lawyers are paid out of tribal funds’ (Manners, Reference Manners1956, p. 74). ‘There are’, he added, ‘also pressures of conscience, interest, morality and even affection involved on both sides’ that have ‘implications for any kind of subsidized research’, the result being that the sponsor exercises ‘some control, no matter how remote, over the direction of the research and its findings’ (Manners, Reference Manners1956, p. 79).

Manners's paper highlights the very point I am trying to make. The intense entanglement in legal proceedings and the application of anthropological knowledge in the legal sphere induced a self-questioning in anthropology: What does anthropology know (expertise)? What is the anthropologist's role in power relations (advocacy)? And how can anthropologists talk about their knowledge (translation)? These were the main questions at that time. They were mirrored in early ethnohistory, and they were mirrored in applied anthropology and the debate over how much ‘action’ is warranted. And one phenomenon – anthropologists as expert witnesses – embodied these identity questions more starkly than anything else.

Manners made an additional point at the end of his paper. He asked – considering all the problems anthropological expert witnessing entails – if it would not be wiser to advise colleagues not to get involved in court proceedings at all. But Manners ultimately dismissed this stance, taking a very affirmative attitude towards the adversarial legal system and stressing the advantages of the trial format for the accuracy of the research findings. In his view, ‘the kind of research product that grows out of the present claims cases’ was of ‘a higher quality’ than that produced ‘in non-litigious circumstances’. He furthermore claimed that ‘[a]n open hearing or trial provides an even more effective check on research, it seems to me, than the customary scholarly scrutiny or critique by a colleague who has also, as we say, “worked in the area”’ (Manners, Reference Manners1956, pp. 80–81). He summarises this claim most interestingly by predicting that ‘we will some day be thankful for the litigation which promises to give us, as a by-product, a body of Ethnohistorical materials in a form which would in all likelihood never otherwise have been made available to us’ (Manners, Reference Manners1956, p. 81).

It is interesting how much this view from the 1950s contrasts with later statements on the topic. Feldman (Reference Feldman1980) has written a paper about his experiences as an expert witness in a court case dealing with questions of determining land use and occupation among the Naknek in the aftermath of the Alaska Native Claims Settlement Act of 1971. After describing how cross-examination distorted his views on the ethnohistory of the Naknek, he concludes that ‘The obvious lesson for the researcher is that ethnohistorical data is not likely to meet professional standards when it is gathered in the context of a legal dispute’ (Feldman, Reference Feldman1980, p. 253).

In this context, I believe that the literature on anthropologists (and other social scientists) as expert witnesses in the US deserves to be investigated more thoroughly, not least because expert witnessing is one of the most obvious manifestations of ‘applied legal anthropology’. It reveals the deep connection between anthropology as an applied discipline and legal procedures and methods.

IV. US anthropologists as expert witnesses in court: shifting conceptions of objectivity

Anthropological expert witnesses were of course needed in proceedings before the Indian Claims Commission, but the late 1940s and the 1950s brought the anthropologist, and the social scientist in general, into ordinary courtrooms as well. One driving force behind this development was the impact of the so-called school segregation cases (Gregor, Reference Gregor1963; Newby, Reference Newby1967). One of the most important US Supreme Court decisions in recent American legal history is also a milestone in the history of the use of social science expertise in the courtroom. In Brown v. Board of Education (1954),Footnote ¹² the Supreme Court ruled that Black and White schools were inherently unequal, thereby overturning the contradictory opinion the Court had developed in Plessy v. Ferguson (1896).Footnote ¹³ The Court based its decision not least on social scientific studies concerning Black children's educational opportunities in the US (Gregor, Reference Gregor1963; Wong and Nicotera, Reference Wong and Nicotera2004). The Supreme Court also cited ethnographic studies on the impact of racial segregation on local communities in the deep South (Silverman, Reference Silverman, Barth, Gingrich, Parkin and Silverman2005, p. 294).Footnote ¹⁴ Even before Brown v. Board of Education, anthropologists and other social scientists had been deeply engaged in school segregation cases (not to mention proceedings before the Indian Claims Commission) and they only became more so after.

V. Rereading the older literature: what for?

What can we derive from investigating the history of the anthropological engagement with legal proceedings in the US, most importantly as expert witnesses or as activists for indigenous rights? First of all, US anthropology has much to do with the legal field – much more than one would think in light of the presumed incompatibilities in methodology and theory. Anthropology as a discipline in the US entered a phase of transformation beginning with World War II, when anthropologists started seriously exploring the practical applications of anthropological scholarship. The relevant debates emerged after the war in the context of larger legal struggles – around Indian land rights and racial segregation. The acute crisis of US anthropology in the course of the Vietnam War protests should not overshadow this longer process of a discipline coming to terms with the fact that its scholarship has political relevance far beyond academia.

In the period between World War II and the Vietnam War protests, we see a great deal of critical literature on the future of anthropology in the context of its legal engagement. Objectivity is at the centre of this body of literature, but within a paradigm of mechanical objectivity. At that time, anthropological thinking and legal thinking were generally not seen as incompatible on an epistemological level. Nevertheless, the anthropological self-critique was immense: Who are the anthropologists working for (the Indians or the government) and what does that have to do with their ‘objectivity’? Can anthropology also be done ‘with’ Indians, or just ‘about’ them, and what are the consequences for indigenous rights? How do legal forms improve or impair academic endeavours? All these questions were imminent, and any assertion that anthropological self-reflection did not begin before 1970 crudely underestimates the critical and reflexive nature of these discussions.

Beginning in the 1970s, however, anthropologists started to question objectivity in the courtroom on an epistemological level. The ‘reflexive turn’ brought about the idea that no anthropological research can be truly objective. As a consequence, the idea of the general incompatibility between anthropological and legal thinking emerged and became deeply entrenched. The tale goes as follows: anthropologists cannot produce objective accounts, but the courts demand them; therefore, the only way to be an expert witness in court is to ‘play’ the objective expert.

We find two narratives in anthropology, dominant at different times in the history of the discipline. First, anthropologists can and must be objective in court, and the legal formalities can even improve the accuracy of research presentation. Second, anthropologists cannot be objective, but have to ‘fake it’ in the face of more powerful legal actors who demand a false normativity. Although one is always tempted to read the history of anthropology as a salvation story culminating in today's theoretical assumptions, it may be wise to think twice before judging the former narrative by the criteria and assumptions of the latter. Both of these narratives have their histories and, in the end, have more to do with how anthropology sees itself than with how legal thinking actually works.

In our discussion of the literature on anthropologists as expert witnesses in the US, another most interesting study on the engagement of social scientists as witnesses in the school segregation cases deserves mention. Debra Kalmuss interviewed fifty-two scholars who had testified in school segregation litigation. Her study (Kalmuss, Reference Kalmuss1981) shows that most of these scholars had two basic assumptions about their work as expert witnesses: ‘1. There are fundamental differences between the academic and legal sphere, which are experienced by scholar experts. 2. These “experienced differences” inevitably yield conflicts for experts’ (Kalmuss, Reference Kalmuss1981, p. 215).

Kalmuss, however, characterises this ‘fixed differences model’ as a ‘straw man critique’. Virtually all of her interview partners had ‘held expectations or general beliefs about fundamental differences between the academic and legal sphere’ (Kalmuss, Reference Kalmuss1981, p. 216), but ‘eighty percent of the experts reported fewer “experienced differences” than they anticipated or generally believed to exist’ (Kalmuss, Reference Kalmuss1981, p. 218). Furthermore, ‘almost half (47%) of the experts who experienced between-sphere differences in their courtroom roles reported no conflict related to those experiences’ (Kalmuss, Reference Kalmuss1981, p. 218). Based on her findings, Kalmuss argues for a more ‘dynamic model’ to conceive of the relationship between law and the social sciences.

Understanding anthropological analyses as epistemologically incommensurable with legal thinking underestimates the degree to which this assumption itself is grounded in discourses in anthropological theory after 1970. It may be wise to tone it down a bit and revisit the older literature. Lewis Killian, an anthropologist working as an expert researcher for the attorney general of Florida, conceives of these conflicts in a relatively pragmatic way. He speaks of ‘role conflicts that the social scientist encounters when he enters the field of applied research’ (Killian, Reference Killian1956, p. 211). He describes the different roles that lawyers as well as anthropologists have to take on at different junctures in the legal proceeding. I believe that framing recurring problems as ‘role conflicts’, even if it is not ‘state-of-the-art’ social theory today, has the advantage of not overstating existing differences between anthropology and law as if they were irreconcilable. One may not be able to overcome role conflicts completely, but one can certainly learn to deal with them.