2.1 ‘Immigrant culture’ in the courtroom: the academic debate

Notwithstanding the wide variety of legal contexts in which anthropological expertise has been called upon so far (see the other contributions in this themed section), much of the more recent debate around the uses of anthropological expertise in court proceedings has focused on immigrants who have settled in the West and their reception by the host countries (Grillo et al., Reference Grillo, Ballard, Ferrari, Hoekema, Maussen and Shah2009; Foblets et al., Reference Foblets, Gaudreault-Desßiens and Rentein2010; Foblets and Yassari, Reference Foblets and Yassari2013). Against the background of broader public and academic debates about multiculturalism and the accommodation of sociocultural diversity, the more specialised academic discussion about the uses of anthropological knowledge in legal proceedings has taken the notion of ‘culture’ as its focal point.Footnote ⁵ Emblematic of this focus on immigrant societies and the central role attributed to ‘culture’ in the legal field is the concept of the ‘cultural defence’. Denoting the idea that a defendant (in most cases a recent immigrant) has acted under the influence of his or her culture and that this cultural background should therefore be taken into account, the concept has been both strongly supported and vigorously attacked. Alison Dundes Renteln, a pioneering advocate for the recognition of the cultural defence as an official policy beyond the confines of criminal law,Footnote ⁶ proposes a test that would allow judges to determine the authenticity of a cultural defence claim. Judges and juries should ask three questions: ‘Is the litigant a member of the ethnic group? Does the group have such a tradition? Was the litigant influenced by the tradition when he or she acted?’ (Renteln, Reference Renteln2005, pp. 49–50). Renteln sees a need for expert anthropological testimony to provide answers to these three questions (Renteln, Reference Renteln and Shweder2002; Reference Renteln2005, p. 50). Her test has been taken up by other legal scholars – Ilenia Ruggiu, for example, moved a step further, developing a model of the ‘judge–anthropologist’ who is able to integrate this test into his or her judicial reasoning (Ruggiu, Reference Ruggiu2012).Footnote ⁷

Critical voices, on the other hand, warn that attempts to accommodate cultural diversity in judicial decision-making with the help of anthropological expertise rest on ‘the flawed conception … that recent immigrants have a “culture” while U.S. law does not’ (Volpp, Reference Volpp1994, p. 62). Such a conception limits recourse to the concept of culture – and the question of the extent to which a judge is bound to take account of it – to cases involving (immigrant) minorities, and perceives the relationship between the court and immigrant litigants/defendants as one that may require the testimony of an anthropologist ‘expert’, who is called upon to present and explain to the court the cultural characteristics of the community of which the defendant is a member. In addition to making mainstream culture (including its legal culture) invisible,Footnote ⁸ such a move is, according to Volpp, also problematic because it locates expertise not within the immigrant community in question, but with the anthropologist (Volpp, Reference Volpp1994, p. 62). She therefore advises against the promotion of a formal legal standard of cultural defence and against a prominent role for anthropologists as experts. Instead, she proposes a form of case-by-case strategic essentialism and emphasises the need to give voice to witnesses and/or experts from the respective immigrant communities (Volpp, Reference Volpp1994, p. 95). Volpp's concerns are shared by a number of legal scholars writing on different jurisdictions, mostly from a critical feminist perspective (see e.g. Lawrence, Reference Lawrence2001, on Canada; Phillips, Reference Phillips2003, on the UK). These authors note that the cultural defence figures prominently in cases where violence against women is at stake and seems to be strategically employed in defence of male offenders. Some, such as Sonia Lawrence (Reference Lawrence2001), suggest that representations of patriarchy and violent male behaviour as integral elements of the pre-modern culture of ‘others’ set against ‘our’ (unspecified but presumably modern) culture amounts to a racialisation of culture.

2.2 Notions of ‘culture’ among European judges: survey data

The various understandings of culture and positions taken by legal scholars on whether or not ‘culture’ should be an element in judicial decision-making are also reflected in our survey of practising judges across Europe. We find that judges active in the fields of criminal, family, labour and public law are equally divided among themselves on the question of whether culture should be taken into consideration as an explanatory factor and, if so, to what degree.Footnote ⁹ Some judges subscribe to a strongly deterministic notion of culture and equate culture with tradition, whereas others take a more relativistic stance, pointing to alternative causal factors such as social class, gender and age or a combination thereof. Here again we find a pronounced difference of opinion with regard to the topic of domestic violence. While some judges refer to traditional norms and moral values regarding the role of women as an underlying cause of higher levels of domestic violence among immigrant communities, others hold that domestic violence is, in their experience, not restricted to certain minority groups and is not caused by their particular cultural norms, but happens across all social and cultural milieus. Others yet point to the fact that cultural roots may be strategically employed as a basis for contending that certain forms of behaviour (e.g. domestic violence) are acceptable. Several judges among those who participated in the survey acknowledge the risks that come along with essentialising culture and falling back too easily on cultural explanations. Thus, just as legal scholars base their propositions for or against the inclusion of anthropological expertise on divergent understandings of ‘culture’, on a first reading, the judges’ testimonies can be placed along a continuum ranging from essentialised notions of culture to more flexible and context-dependent understandings.

However, a closer inspection of the body of testimonies in its entirety and subsequent discussions with judges reveals a more nuanced notion of culture and how to assess it that is strikingly absent from the way judges tend to be portrayed in the academic debate. Judges distinguish between at least three dimensions of culture, with the distinctions being directly related to the organisation of the judicial decision-making process and thus to the legal and organisational culture within which they operate. The first dimension relates to communication – judges see cultural diversity coming into play when there is a need for direct exchange in the courtroom with claimants/defendants from a different sociocultural background. In such contexts, communication is identified as a central aspect of culture. The second dimension is related to the difficulties of gathering empirical evidence in situations that require knowledge of the sociocultural context of the parties involved. Culture here becomes context, including a wide variety of elements about which information is required (ranging from linguistic characteristics to political events, religious practices and kinship systems). Only the third dimension is directly related to ‘culture as norms’ (i.e. those norms that either a judge or the parties involved considered to be culturally binding). This becomes relevant when judges need to decide legal questions involving foreign law and/or foreign customary or religious norms.

2.3 From ‘immigrant culture’ in the courtroom to professional legal cultures: broadening the analytical field of vision

To put it succinctly, judges seem to operationalise what they perceive as ‘foreign’ culture along the three dimensions of ‘culture as communication’, ‘culture as context’ and ‘culture as norms’ so that they can then process it in their ‘own’ legal culture. This survey finding is important because it draws our attention to an understanding of culture that builds not so much on a clear-cut distinction between ‘our’ and ‘their’ culture (be it foreign, minority or immigrant), but rather focuses on notions of culture more directly interrelated with the legal and organisational context within which judges operate.

Such an operationalised concept of culture has, in our opinion, not yet fully been captured by the existing literature on anthropological expertise in legal disputes that involve immigrants. To date, as we have been suggesting, the ‘cultural defence’ debate largely focuses on one dimension, namely ‘culture as norms’, and has been developed for the most part with Anglo-American legal settings in mind. Moreover, the majority of these works take only one (in some cases two) very specific judicial settings as the background against which to zoom in on the ‘culture’ debate. While much thought is given to particular understandings of immigrant and/or minority cultures and the role of cultural experts therein, there is relatively little contextualisation of the legal settings that provide the backdrop to these discussions.Footnote ¹⁰

To give an example, Sonia Lawrence (Reference Lawrence2001) warns of the dangers of a simplistic approach to culture in the courtroom, taking Canadian criminal cases involving immigrants as her starting point. Although she begins by stating that ‘courtrooms are critical sites in the production of our understanding of culture’ (Lawrence, Reference Lawrence2001, p. 111) and holds that ‘cultural information … tends to be considered only against the unarticulated, unexamined norm of North American mainstream culture’ (p. 108), a detailed investigation of Canadian courtroom culture is missing from her analysis. Her suggestion to postpone the question of how to address culture in the courtroom in favour of first asking ‘How do we know what we “know” about culture?’ (Lawrence, Reference Lawrence2001, p. 111) shifts the focus towards a critical discussion of the notion of culture. Substantiating her claim that what goes on in courtrooms under the disguise of culture amounts to a modern project of racialisation (Lawrence, Reference Lawrence2001, p. 112) would, however, require a detailed analysis of concrete legal procedures and mechanisms of reasoning by which this racialisation is effected (minimally in the field of Canadian criminal law from which she takes her cases). By failing to provide such an analysis, she misses the chance to examine the production of mainstream Canadian legal culture and reproduces what she criticises: a focus on the construction of ‘the other’ while neglecting how the ‘self’ is simultaneously coproduced. Based on our reading of judges’ testimonies and discussions of this finding with survey participants, we suggest that a more thoroughly comparative and contextualised approach that takes into account judges’ perceptions and the legal cultures in which they are embedded is necessary.Footnote ¹¹

For such a (more) contextualised and comparative framework for the analysis of our data, we turn to the concept of legal culture. Introduced in the late 1960s by Lawrence S. Friedman, legal culture was principally taken to comprise the ideas, attitudes, opinions and expectations related to a given legal system (Friedman, 1975, pp. 15–16; 1997; 2006, p. 189; see also Nelken, Reference Nelken and Freeman2006, p. 203). Roger Cotterrell (Reference Cotterrell and Nelken1997) pointed out that there was a considerable margin of interpretation in the use of the term by Friedman himself as well as by others. More often than not, legal culture referred to some or all of the following: clusters of ideas, patterns of behaviour, institutional and structural factors, as well as the manifold and complex mutual implications among these elements. Subsequently, authors using the term legal culture spent much effort analytically separating out specific components of legal culture, defining their use of the term more precisely or suggesting more narrow concepts as viable alternatives (Cotterrell, Reference Cotterrell and Nelken1997; Friedman, Reference Friedman and Nelken1997; Reference Friedman and Freeman2006; Nelken, Reference Nelken and Freeman2006). How much differentiation among individual components of legal culture was deemed necessary appears to some extent to depend on the disciplinary perspective of the respective author and on different theoretical genealogies (Merry, Reference Merry2010, p. 45). Whereas comparative law scholars seem comfortable working with broad notions of legal families and/or legal culture that suit their macro-oriented and functionalist research questions, many socio-legal scholars break the term down into mid-range explanatory concepts (see the references to Friedman, Cotterrell and Nelken cited above). Legal anthropologists such as Sally Engle Merry (Reference Merry2010) use it with caution only after grounding it in an anthropological, micro-level, practice-oriented and processual understanding of culture.

Another analytical line of distinction can be drawn on the basis of where a scholar's primary focus of analysis lies: some are more interested in the ideas and attitudes that laypeople hold with regard to their legal systems (Silbey, Reference Silbey and Nelken2012), others primarily investigate the production and maintenance of an internal professional legal culture (Bourdieu, Reference Bourdieu1987), while a third group includes both dimensions but distinguishes between an internal and an external legal culture (Friedman, Reference Friedman1975; Merry, Reference Merry2010).

If we assume that judges’ practical application of an operationalised working concept of culture is – at least to some degree – shaped by the characteristics of their own professional culture and that this in turn influences how and when anthropological expertise is sought, we need to pay closer attention to this aspect of internal professional legal culture. Thus, we are interested in that field of ideology and practice that Merry sees as a first dimension of legal culture, that Friedman terms ‘internal legal culture’ and that roughly coincides with Cotterrell's ‘legal ideology’ or Bourdieu's ‘juridical field’. Mirroring the different uses of the term ‘legal culture’ described above, we use ‘professional legal culture’ in three different ways: first, as a marker for general context in the broad sense; second, as a mid-range explanatory concept encompassing structural as well as ideational and processual components; and, third, in an ethnographic sense as a concept to grasp micro-level practices, interactions and meanings. At this level, we understand culture – to use Merry's words – ‘as a repertoire of actions, practices and beliefs that are relatively flexible and open to change’ (2010, p. 42). Culture is not taken to be a clearly demarcated entity, but as

What Merry writes about culture in general is just as applicable to professional legal culture, where the ‘new institutions and practices’ that Merry refers to could include employing anthropological expertise in order to better understand and accommodate sociocultural diversity.

3.1 The influence of legal traditions, doctrinal characteristics and procedural rules on professional legal culture

Starting with a macro-level perspective well known from comparative law, we note the difference between common-law and civil-law traditions and the different weight these traditions attach to case-law and fact-finding. This distinction is also evident in the collected testimonies, particularly in the importance that judges from different jurisdictions attach to case-law as a source of guidance when dealing with the accommodation of cultural diversity. Another feature by which judicial settings can be distinguished is the degree to which a national legal system and the particular branches or tiers of the judiciary within that system are adversarial or inquisitorial in nature. This feature has direct consequences for the opportunity to have recourse to anthropologists as experts in court. In adversarial settings, expert witnesses are usually brought forward by the parties, and the fact-finding process operates by means of cross-examination. In inquisitorial settings, the judge takes a more active role in the truth-finding process and has extended powers to appoint and hear experts him- or herself. Depending on the degree and depth of judicial review historically established in a country, appellate courts might only have limited fact-finding powers and (new) expert evidence cannot be introduced at this stage.

The survey responses also clearly reveal another particularity: namely that legal subfields are often structured according to core principles specific to the subfield. Thus, across different European countries, judges in the field of family law embrace the principle of granting personal autonomy to the extent possible, while judges in the field of criminal law argue for the necessity of upholding public order and judges in the field of labour law profess the goal of mediating between the interests of employers and employees. In accordance with these core principles, judges across national jurisdictions refer to the same field-specific legal mechanisms (such as the best interests of the child as an open legal standard in family law, the notion of reasonable accommodation in labour law or the principle of non-intrusion in religious affairs on the part of state authorities). These mechanisms and legal concepts in turn leave more or less scope for discretion and therefore might be more or less conducive to allowing or excluding expert evidence by anthropologists in a particular field of law.

Lastly, considerable variance also exists with regard to rules of evidence, such as the admissibility of evidence, the weight it is given and the standard of proof that is required.Footnote ¹³ A comparison of the Anglo-American and continental legal traditions illustrates this: Edmond and Hamer (Reference Edmond, Hamer, Cane and Kritzer2012) speak of US ‘evidence law’ as a legal subfield in its own right, comprising a well-developed and coherent body of evidence rules. They attribute its existence to the Anglo-American adversarial tradition (Edmond and Hamer, Reference Edmond, Hamer, Cane and Kritzer2012, p. 652). With regard to continental civil-law systems, on the other hand, they are unable to identify such a body of coherent norms, but rather point to particular rules of evidence associated with specialised fields of substantive law and join other authors who speak of continental evidence rules as ‘labyrinthine’ (Edmond and Hamer, Reference Edmond, Hamer, Cane and Kritzer2012, p. 653).

The observation that rules of evidence in Europe vary in their degree of specificity – providing more or less guidance regarding what kind of expertise can be enlisted and by whom – seems to be confirmed by the results of our survey. From the survey responses, it appears that, in practice, a wide spectrum of persons are called upon or expected by prosecutors, courts or the litigants to provide ‘expertise’. Leaving aside the obvious field-specific differences, considerable confusion exists with regard to their role, whether actual or potential. Judges report that they rely on translators not only to help with communication problems, but also to provide cultural background knowledge or explain foreign traditions that might be relevant for issues of evidence and proof.Footnote ¹⁴ Some judges proactively seek out representatives of minority communities, police or probation officers and social service employees to provide additional information.Footnote ¹⁵ Other judges reported calling on cultural or religious experts or mediators, though it is not always clearly spelled out what the difference between a translator, a mediator and an expert is.Footnote ¹⁶

Judges active in the field of asylum law voiced a particularly high degree of concern with questions of evidence and an accompanying uncertainty about what kind of expertise would be required and whether or not to enlist additional expert knowledge. Summing up many of these concerns, an Italian judge in our survey described the situation in asylum cases as a ‘weakened regime of evidence and an intensified discretionary power of the judge’. Assessing asylum claims indeed poses several problems: not only is there a high degree of uncertainty regarding the circumstances in the country of origin of the asylum seeker, but the decision to grant asylum also contains a prognostic element. Both of these aspects have an impact on the legal regime of evidence (i.e. the kinds of facts that are admitted as evidence of persecution and the manner in which they are weighed). Moreover, with documentary evidence often missing, the oral testimony of the asylum seeker is frequently the most important piece of evidence that the claimant him or herself can produce. Supplementary ‘objective’ evidence produced by medical, linguistic or country experts gains importance in this situation. Lastly, evidentiary rules for asylum-adjudication procedures also take into account the high stakes involved and the asymmetrical power relations between state authorities and refugees, typically by making concessions in the standard of proof that is required, but also with regard to the standards for and types of evidence that are admitted (Staffans, Reference Staffans2012, pp. 42–46). Academic observers therefore point to the refugee and asylum-adjudication process as one of the most complex adjudication functions in Western societies, and describe it as a site of innovation for the production of expert knowledge within the judiciary setting (Lawrance and Ruffer, Reference Lawrance and Ruffer2015, pp. 2, 19). Hence we take a closer look at this particular legal setting. We limit our comparison to appellate asylum procedures in Germany, the UK and Belgium, paying particular attention to procedural rules under which individual judges, tribunals or parties to the case attempt to enlist expert knowledge.

3.2 Contextualising the uses of expertise in asylum-appellate procedures in Germany, the UK and Belgium

The appellate asylum procedures in Germany, the UK and Belgium are part of larger national legal systems that have developed out of different procedural traditions. Within the common-law system, the UK refugee-determination process adheres to an adversarial procedure, whereas the German one is an example of an inquisitorial procedure (Staffans, Reference Staffans2012, p. 235). The Belgian asylum-appellate procedure only provides for an administrative judicial review and is therefore restricted to questions of proceeding. However, in each country, asylum-specific legislation determines the degree to which the adjudication procedure diverges from the general administrative – or, in the case of the UK, civil-justice – procedures.Footnote ¹⁷ Accordingly, the institutional framework for processing asylum claims also differs. In Germany, appeals in asylum cases are the competence of the general administrative courts, and the general rules for administrative justice procedures apply (with some modifications). Belgium and the UK have installed specialised asylum-adjudication bodies (in Belgium, the Conseil du Contentieux des Etrangers (Council of Aliens Law Litigation) and, in the UK, the Asylum and Immigration Tribunal).

These structural factors in turn lead to distinct procedural regimes of evidence: who among the parties to the case (claimant, immigration authority, judge/tribunal) carries the burden of proof? How is the responsibility to establish the facts to a satisfactory level of ‘robust evidence’ distributed among the parties? How does the judge weigh evidence and what standard of proof is required?Footnote ¹⁸ Only after these questions have been answered are we in a position to consider how much room is left in each setting and at each stage of the decision-making process for a pragmatic–professional approach to enlisting experts on issues of culture – whether it be understood as communication, as context or as norms.

3.3 The influence of professional legal culture on operationalised concepts of culture among judges

When comparing the asylum-appellate procedures in Germany, the UK and Belgium, the notion of professional legal culture helps us unravel the complex interplay between historical traditions, institutional structures, procedural rules and the ideas, attitudes and practices of actual decision-makers. The comparison, moreover, provides nuance to our finding that judges conceptualise ‘immigrant culture’ in an operationalised manner closely related to their working environment, distinguishing between the different dimensions of culture as communication, culture as context and culture as norm. We found that judicial decision-makers in all three countries act within the framework of existing state law and with recourse to the legal techniques at their disposal, but that the particularities of the different professional legal cultures within which they operate shape their individual practices and lead to particular forms of professional pragmatism. In an inquisitorial setting such as Germany, being pragmatic frequently means ensuring that obstacles to communication are removed and relevant information can be exchanged. Treating questions of cultural diversity as questions of contextualisation in each individual case is another pragmatic move that appears most likely to happen under circumstances as they occur in the UK, where the provision of contextual knowledge by external experts is highly regulated and structured according to an adversarial logic. In such a case, the weighing of evidence becomes a crucial moment for professional discretion by allowing more or less information on the context to be considered by the court. Lastly, as demonstrated by the discussion among administrative judges during our workshop, there is also an internal professional awareness and reflexive examination of the procedural conditions for taking into account culture as foreign norms. There are signs of such internal debates on procedural reform in all of the three countries we looked at. The German judge who articulated a reinterpretation of the procedural rules for translators did so in the context of a reform proposal by organisations of legal professionals.Footnote ²⁹ In the UK, Geoffrey Care's plea for a more interventionist role for judges (see above, note 24) is a similar contribution to a public debate among legal practitioners and scholars. The prominent place of such a discussion in Belgium, where the admission of new evidence in appeal is severely restricted, particularly in asylum cases, draws our attention to the potential for internal reflection and critique from within particular professional legal cultures (i.e. coming from the professionals and practitioners themselves).