Special Issue "Cultural Expertise: An Emergent Concept and Evolving Practices"

A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (15 April 2019).

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A printed edition of this Special Issue is available here.

Special Issue Editor

Dr. Livia Holden
Website
Guest Editor
The Faculty of Law, University of Oxford, Oxford, UK
Interests: expert wtinessing and cultural expertise; law and governance; legal pluralism; gender and judging; judicial education; state- and non-state jurisdiction; ADR; Islamic law; Hindu law; anthropology of human rights; documentary filmmaking; mixed research methods

Special Issue Information

Dear Colleagues,

Cultural expertise in the form of expert opinions formulated by social scientists appointed as experts in the legal process is not different from any other kind of expertise in court. In specialised fields of law, such as native land titles in North America and in Australia, the appointment of social scientists as experts, especially anthropologists, dates back to the 19th century. Social scientists have played an active role in policymaking in the United Kingdom and the United States for more than two hundred years. In the contemporary management of migration fluxes, the appointment of anthropologists as country experts has become increasingly frequent in common law and civil law countries for immigration proceedings. On one hand, doubts and concerns exist regarding the usefulness and appropriateness of social sciences, and in particular anthropology, for dispute resolution; while on the other, existing conceptual tools do not allow an encompassing analysis of the use of socio-anthropological knowledge in the legal field, especially for what concerns the usefulness of social scientists as expert witnesses. A first definition of cultural expertise proposed cultural expertise as “the special knowledge that enables socio-legal scholars, or, more generally speaking, cultural mediators - the so-called cultural brokers-, to locate and describe relevant facts in light of the particular background of the claimants and litigants and for the use of the court”.[1]However, this definition is too restrictive today because it does not account for the broader range of out-of-court procedures in which social sciences knowledge is applied to the resolution of conflicts, litigation, and the formulation of rights—hence the need for an integrated definition of cultural expertise that takes into account both in-court and out-of-court conflicts and connects with the current debates on the impact of social sciences in society.[2] Although the definition of cultural expertise is new, the practices that this concept describes are not. This Special Issue focuses on the contemporary evolution and variation of cultural expertise as an emergent concept providing a conceptual umbrella to a variety of evolving practices, which all include the use of the special knowledge of social sciences for the resolution of conflicts. It surveys the application of cultural expertise in the legal process with an unprecedented span of fields going from ethnopsychiatry to the recognition of the rights of autochthone minorities including linguistic expertise, historical expertise in situations of transitional justice, and post-colonial reformulation of cultural rights. The stress of this Special Issue is on the development and change of culture-related expert witnessing over recent times, culture-related adjudication, and resolution of disputes, criminal litigation, and other kinds of court and out-of-court procedures. This Special Issue offers descriptions of judicial practices involving experts of local laws and customs and surveys of the most frequent fields of expert witnessing that are related with culture; interrogates who the experts are; their links with local communities and also with the courts and the state power and politics; how cultural expert witnessing has been received by judges; how cultural expertise has developed across the sister disciplines of history and psychiatry; and eventually, it asks whether academic truth and legal truth are commensurable across time and space.

This special issue is an output of the project titled “Cultural Expertise in Europe: What is it useful for?” (EURO-EXPERT) funded by the European Research Council (ERC) under H2020-EU.1.1. programme (ERC grant agreement no. 681814), Principal Investigator: Livia Holden.

References:

[1] Holden, L. ed. (2011) Cultural Expertise and Litigation, Abingdon: Routledge, p.2.

[2] Holden, L. ed. (2019) Cultural Expertise and Socio-Legal Studies, Special Issue in Studies of Law, Politics, and Society, Bingley: Emeraldinsight.

Dr. Livia Holden
Guest Editor

Manuscript Submission Information

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Keywords

  • Culture and law
  • Plurality of laws
  • Conflicts of law
  • Socio-legal theories
  • International law rights of vulnerable groups
  • Indigenous rights
  • Alternative dispute resolution
  • Transitional justice

Published Papers (6 papers)

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Editorial

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Open AccessEditorial
Cultural Expertise: An Emergent Concept and Evolving Practices
Laws 2019, 8(4), 28; https://doi.org/10.3390/laws8040028 - 08 Nov 2019
Abstract
This introduction provides a snapshot on cultural expertise as an emergent concept in the socio-legal studies and evolving practices in the formulation of rights and the resolution of conflicts in and out of court. It starts with the definition of cultural expertise and [...] Read more.
This introduction provides a snapshot on cultural expertise as an emergent concept in the socio-legal studies and evolving practices in the formulation of rights and the resolution of conflicts in and out of court. It starts with the definition of cultural expertise and the need for an integrated and broad conceptualization that includes all the arrays of socio-legal instruments that use knowledge from the social sciences to assist decision-making authorities in the settlement of conflicts. It then mentions the wide span of fields of cultural expertise going from the recognition of the rights of autochthone minorities and the First Nations to the politics of cultural expertise in modern reformulations of customs, vis-à-vis gender rights, including the revisitation of socio-legal instruments such as the cultural test and the scrutiny of psychiatric evaluation in criminal trials. It concludes by offering short descriptions of the papers included in the Special Issue, which include judicial practices involving cultural experts and surveys of the most frequent fields of expert witnessing that are related to the culture. In addition, it interrogates who the experts are; how cultural expert witnessing has been received; how cultural expertise has developed across the sister disciplines; and finally, it asks whether academic truth and legal truth are commensurable. Full article

Research

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Open AccessArticle
Cultural Expertise in Sweden: A History of Its Use
Laws 2019, 8(3), 22; https://doi.org/10.3390/laws8030022 - 17 Sep 2019
Abstract
This paper is a case study of the use of cultural experts, broadly defined as including mediators and academicians with a variety of backgrounds, in Sweden. It draws on data collected through qualitative interviews with cultural experts, by following court cases through legal [...] Read more.
This paper is a case study of the use of cultural experts, broadly defined as including mediators and academicians with a variety of backgrounds, in Sweden. It draws on data collected through qualitative interviews with cultural experts, by following court cases through legal documents, mass media and other printed material, and by my own experience as a cultural expert. The paper provides a context to the potential application of the concept of cultural expertise regarding the appointment of such experts by lawyers, prosecutors and courts. It analyzes cases concerning the Sami, the Roma and recent immigrants from Africa and Asia. The Sami cases revolve around conflicts with the Swedish state over rights and ownership. The Roma cases revolve around questions of ethnic discrimination. Cases of immigrants from outside Europe consist of individual criminal cases and asylum. I argue that Swedish ideas—and ideals—of sameness and equality have had an impact on the legal cases that I discuss in this paper. While the legal issues in each of these cases differ, the paper argues that they demonstrate a similarity in how Swedish-majority society manages and even creates cultural differences. I conclude by showing the ways culture, rights, and obligations are understood in courts reflect mainstream trends of Swedish society and suggest the need for cultural expertise in the form of interdisciplinary collaboration. Full article
Open AccessArticle
The Bondo Society as a Political Tool: Examining Cultural Expertise in Sierra Leone from 1961 to 2018
Laws 2019, 8(3), 17; https://doi.org/10.3390/laws8030017 - 12 Aug 2019
Abstract
This paper focuses on the politics of the Bondo—the competition among social groups for an exclusive influence on the National strategy for the reduction of female genital mutilation/cutting (FGM/C). In the first part, this paper shows how the Bondo—a women’s only secret society—has [...] Read more.
This paper focuses on the politics of the Bondo—the competition among social groups for an exclusive influence on the National strategy for the reduction of female genital mutilation/cutting (FGM/C). In the first part, this paper shows how the Bondo—a women’s only secret society—has become a site of contestation for not only pro- and anti-FGM/C advocates, but also elite male politicians who have, since independence in 1961, continued to use the Bondo space for political gains. The use of the Bondo for political leverage and influence pre-dates independence and is as old as the society itself. The second part of this paper discusses the legitimacy of expertise as central to this debate, in which each group competes to become the leading expert. Thus, even though human rights/choice discourse currently dominates the FGM/C debate, traditional expertise remains valid in the formulation of community by-laws as well as state policies and laws. This can be seen in the recent attempt by the state to develop a National Policy for the Reduction of FGM/C in which the expertise of all three groups was sought. Using data from existing literature and personal interviews, this paper interrogates this contention by describing how the role of cultural experts—especially the Soweis—has been politicized in the stalemate over the enactment of the National Policy for the Reduction of FGC. This paper concludes with considerations about the complexity of Bondo expertise, in which opposing parties use similar arguments to evoke the human rights discourses on women’s rights and bodily integrity/autonomy. It argues that a better knowledge of these dynamics as they develop in Sierra Leone and other African countries would be useful to the European jurisdiction. Full article
Open AccessArticle
The “Cultural Test” as Cultural Expertise: Evolution of a Legal–Anthropological Tool for Judges
Laws 2019, 8(3), 15; https://doi.org/10.3390/laws8030015 - 02 Aug 2019
Abstract
This paper analyzes the state of cultural expertise in Italy and then focuses on how it can be improved through a kind of cultural expertise that Italian academics, judges, and lawyers are currently debating: the so-called “cultural test”. This is a legal test [...] Read more.
This paper analyzes the state of cultural expertise in Italy and then focuses on how it can be improved through a kind of cultural expertise that Italian academics, judges, and lawyers are currently debating: the so-called “cultural test”. This is a legal test for dealing with culture, which originally emerged as judicial tool in Northern American courts: It consists of a set of pre-established questions that a judge has to answer in order to decide whether or not to accept a cultural claim made by a migrant or by a person that belongs to minority communities. Whereas some questions of the cultural test refer to typical legal balancing between rights, other questions incorporate anthropological knowledge within the trial, requiring the judge to analyze the cultural practice at issue, its historical origin, the importance it has within the community, and other information about which the judge would not be sufficiently knowledgeable without resorting to anthropology. In this sense, the “cultural test” is a form of standardized cultural expertise that helps both the judge and the cultural expert in their tasks. The paper reveals both the arguments against and those in favor of the adoption of the “cultural test” and how they are currently unfolding in the Italian debate. Full article
Open AccessArticle
Cultural Expertise in Italian Criminal Justice: From Criminal Anthropology to Anthropological Expert Witnessing
Laws 2019, 8(2), 13; https://doi.org/10.3390/laws8020013 - 19 Jun 2019
Abstract
This article traces the rise and fall of psychiatric evaluation in criminal trials from the School of Criminal Anthropology of the late nineteenth century to the current Italian justice system. Influenced by positivism and by specific theories on human evolution, Cesare Lombroso considered [...] Read more.
This article traces the rise and fall of psychiatric evaluation in criminal trials from the School of Criminal Anthropology of the late nineteenth century to the current Italian justice system. Influenced by positivism and by specific theories on human evolution, Cesare Lombroso considered criminal action as the result of organic causes excluding any kind of legal autonomy and responsibility of the accused. The Positive School of Penal Law he founded with Enrico Ferri and Raffaele Garofalo profoundly inspired the Rocco Code, on which the current Italian Penal Code is still based, albeit with revisions and repeals. Drafted in 1930 during the fascist government (1922–1943), the latter has also suffered from racial ideology. In order to assess potential mental illnesses that would exclude the responsibility of the accused, to determine their level of dangerousness and to establish the corresponding security measures introduced by the Rocco Code, Italian criminal justice consolidated the link between penal law and psychiatric instruments. Such faith in psychiatric evaluation, however, has been particularly questioned by the increasing frequency of judicial processes involving members of different cultural communities in Italy since the 1970s. Thus, the predominantly pathological aspects evaluated by forensic psychiatrists have often proved to be conceptually and methodologically inadequate to take fully into account the differences between cultures, as well as the different social and cultural conditions affecting the defendant’s behaviour. This paper argues that cultural anthropology is particularly suited as an instrument capable of disclosing the cultural implications of the legal process and encourages the use of cultural expertise as an important tool for the inclusiveness and understanding of diversity. Full article
Open AccessArticle
The Cactus and the Anthropologist: The Evolution of Cultural Expertise on the Entheogenic Use of Peyote in the United States
Laws 2019, 8(2), 12; https://doi.org/10.3390/laws8020012 - 17 Jun 2019
Abstract
This paper explores the complex evolution of the role anthropologists have played as cultural experts in the regulation of the entheogenic use of the peyote cactus throughout the 20th century. As experts of the “peyote cult”, anthropologists provided testimonies and cultural expertise in [...] Read more.
This paper explores the complex evolution of the role anthropologists have played as cultural experts in the regulation of the entheogenic use of the peyote cactus throughout the 20th century. As experts of the “peyote cult”, anthropologists provided testimonies and cultural expertise in the regulatory debates in American legislative and judiciary arenas in order to counterbalance the demonization and prohibition of the medicinal and sacramental use of peyote by Native Americans through state and federal legislations. In the meantime, anthropologists have encouraged Peyotists to form a pan-tribal religious institution as a way to secure legal protection of their practice; in 1918, the Native American Church (NAC) was incorporated in Oklahoma, with its articles explicitly referring to the sacramental use of peyote. Operating as cultural experts, anthropologists have therefore assisted jurists in their understanding of the cultural and religious significance of peyote, and have at the same time counseled Native Americans in their interaction with the legal system and in the formatting of their claims in appropriate legal terms. This complex legal controversy therefore provides ample material for a general exploration of the use, evolution, and impact of cultural expertise in the American legal system, and of the various forms this expertise can take, thereby contributing to the contemporary efforts at surveying and theorizing cultural expertise. Through an historical and descriptive approach, the analysis notably demonstrates that the role of anthropologists as cultural experts has been marked by a practical and substantive evolution throughout the 20th century, and should therefore not be restrictively understood in relation to expert witnessing before courts. Rather, this paper underlines the transformative and multifaceted nature of cultural expertise, and highlights the problematic duality of the position that the two “generations” of anthropologists involved in this controversy have experienced, navigating between a supposedly impartial position as experts, and an arguably biased engagement as advocates for Native American religious rights. Full article
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