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Accueil > Colloques, journées d’étude > 50. Projet ANR Just-India (2009-2012)

Of Doubt and Proof : Ritual and Legal Practices of Judgment

Panel of EASA Conference "Uncertainty and Disquiet" 12 July 2012

European Association of Social Anthropologists, 12th Biennial Conference "Uncertainty and Disquiet", Nanterre University, France, 10/07/2012 – 13/07/2012. T

Convenors : Daniela Berti, Anthony Good,Gilles Tarabout


Institutions which deal with the process of judging both at ritual and at legal level are directly concerned by the question of doubt. Procedures aimed at eliciting and dispelling doubt are used with the intention of exploring or clarifying the facts that need to be judged, or as a way of legitimating or validating the final verdict. Depending on the situation, doubt may come from the person in charge of passing judgment or from the one requesting or receiving judgment.

We propose to discuss both the techniques of casting and dispelling doubt in different contexts and the role they play in the process leading to the final verdict. The ensuing comparison would put ritual and judiciary settings into perspective. To take a few examples, gods’ mediums and astrologers in India are regularly consulted in order to arbitrate local conflicts or to give their judgment in different situations. Both contexts provide specific techniques of questioning and proof whereby doubts may be formulated and dissipated during the ritual interaction. This is to be compared to judiciary settings, where creating doubt is both a strategy used by the prosecution or by the defense lawyer and a standard of proof defined by the law and by the judge’s "intimate conviction". Indeed, as we all know, legal techniques of questioning are used to cast doubt on the appellant’s credibility and, more generally, the legal notion of "reasonable doubt" is historically linked to the anxiety that the role of judging and punishing may produce.

11.30 a.m. - 13h00 p.m., Session 1 :Judgments in question

Daniela Berti (Centre for Himalayan Studies, CNRS) : The technicalities of doubting : temple consultations and district courts in India
In this paper the act of doubting is analyzed in relation to two contexts of interaction and judgment in contemporary India. The first deals with temple consultations during which village deities, through their institutional mediums, are asked to arbitrate local conflicts and to give their verdict on people’s misconduct. During the consultation, the possibility that people doubt what the deity tells them is totally accepted and the ritual procedure includes specific techniques of contestation and verification. The analysis of these ritual procedures will show how doubting has little to do here with the question of belief. Instead, it is a way for people to become involved in the interpretative process and for the medium to reinforce the authority of his verdict. This interactional form of doubting will be compared to the principle of "reasonable doubt" as used in Indian criminal trials and particularly in judges’ rulings. Contrary to other judiciary systems, where the verdict depends on a popular jury and on the jurors’ intimate conviction, ethnographic material and court records show how in Indian trials the notion of "reasonable doubt" which the judge refers to may even go against his personal, more intuitive opinion about the case and be merely due to the lack of admissible evidence produced before the court. In both cases doubting appears to be much less related to conscience, belief or cognition than to the technicalities of evidence and procedure.

Zachary Whyte (University of Copenhagen) : In doubt : uncertainty and mistrust in the Danish asylum system
The determination of asylum cases in Denmark ostensibly rests on the authoritative rationalities of law, country of origin information, and medical and linguistic examinations - the steady bureaucratic practices of the sovereign state. the And yet, the production and management of doubt play key roles in caseworkers’ resolution of asylum claims, as many decisions fundamentally hinge on a judgement of the applicants’ credibility. In this transitive sense, doubt is at once a property and product of the asylum system and shades in to mistrust.
To asylum seekers, however, the asylum process appears a haphazard and uncertain enterprise, feeding doubt in its intransitive sense. For them, uncertainty inflects every part of their experience of the asylum period - not least their meetings with the authorities sitting in judgement on them, whose mistrust they are keenly aware of. Anxiety also arises from the sense that their everyday experiences as well as the anecdotes in circulation at the asylum centres jar with the system’s self-presentation as rational and impersonal. Here, asylum seekers’ doubts feed back in to the judicial resolution of their cases, and can at times become self-defeating, as when asylum seekers’ attempts at making their narratives more convincing instead make them seem less credible to caseworkers.
Drawing on 12 months of fieldwork at a Danish asylum centre, this paper shows how doubt (in both its transitive and intransitive senses), mistrust and uncertainty connect and structure asylum seekers’ understanding of the asylum system as well as their strategies in navigating it.

Jan Budniok (Johannes Gutenberg-Universität Mainz) : When judges feel misjudged : (en)countering doubt in Ghanaian courts
Techniques of casting and dispelling doubt are common in courtrooms all over the world. However, what happens in a judiciary setting, when it is not pieces of evidence, testimonies and witnesses that are in doubt but the integrity of presiding judges ? In Ghana, the expression of "seeing the judge" has become tantamount to bribing a judge, corruption in the administration of justice is seen as ubiquitous, and judgements are often perceived as depending on a litigant’s relation to a judge. Therefore, allegations of corruption against judges in general and doubts about judges’ impartiality in particular emerge frequently. However, according to judges, such allegations often appear to be based on little fact ; yet once on the table, they cannot be dispelled easily. What is more, such allegations seem perfectly plausible to an alerted public, sensitive to little signs of daily corruption- which judges describe as a cultural bias of most members of Ghanaian society. My paper presents the judiciary setting in Ghana from the following perspective : I discuss the judges’ self-perception and the image they try to present to others. I show how judges strive in their everyday work to construct an image of judicial integrity in a situation of constant doubt. I conclude that Ghanaian judges see the court users’ doubts regarding the legal process as something larger than a mere outcome of structural shortcomings and moral hazard. They explain it as a clash of two epistemic views which has to be countered by their rigorous judicial boundary work.

2.30 p.m. - 4.00 p.m. Session 2 : Doubting the Future

Anthony Good (Edinburgh University) : ’The benefit of the doubt’ in British asylum claims
Most asylum applicants in western countries cannot support their claims with the kinds of documentary proof or eye-witness testimony normally expected in legal proceedings. Consequently, much depends on the assessment by government officials or immigration judges as to the credibility of their narratives of persecution. A claimant whose story does appear credible should be given ’the benefit of the doubt’ regarding those parts of their narrative that cannot be independently corroborated. In this sense, therefore, doubt and credibility represent opposite sides of the same coin. The dispelling or confirming of doubt is sought to be achieved through various techniques of interrogation, whereby asylum applicants’ stories are elicited and their credibility tested against the ’objective evidence’ provided by medical examinations or Country of Origin Information-and also, inevitably, against the questioners’ implicit or explicit assumptions about what constitutes reasonable, rational behaviour. This paper, based both on fieldwork and on the author’s experience as a ’country expert’ witness in asylum appeals, examines how ’the benefit of the doubt’ is applied during decision-making on asylum claims. It looks in particular at asylum interviews conducted by UK Border Agency case owners, and at cross-examinations in court by Home Office Presenting Officers.

Yasmine Bouagga (EHESS, Paris) : Ritualizing uncertain rehabilitation : parole hearings in prison
Adjusted sentences have been greatly developed in the past years to allow prisoners to finish their sentence outside prison and promote reinsertion in the community. As a result, parole hearings became an important part of prison routine. At the same time, the release of dangerous prisoners has been a leitmotiv of political discourse advocating for heightened security. How do judges weights injunctions for reinsertion and injunctions for security, in a context of uncertainty ? This contribution examines the process of judging in its ritualized setting, the parole hearing, focusing on the most informal moments when the judge attempts at grasping confidence in an interview with the prisoner, trying not only to obtain objective and subjective information (about professional plans outside prison, or remorse about the crime committed) but also to provide some "moral education" to the prisoner.
The parole hearing will be studied in the organizational context of the prison (eligible files are selected by prison counselors prior the hearing) and in the broader political context where concern for security and concern for reinsertion collide.
This study is based on a year-long ethnography of two Parisian jails and aims at exploring institutions through routinized practices.

Carolina Kobelinsky (EHESS, Paris) : Emotions as evidences : an ethnographic exploration of the hearings at the French court of asylum
Courts and tribunals are highly ritualized places where everyone has role, pursues an objective, and where body language and discourse are crucial. The judges from the French Court of Asylum - which reviews on appeals from decisions of the French Office for the Protection of Refugees and Stateless Persons - expect a lot from the public hearings. It is sometimes a look, a gesture, or some words that cause an emotional reaction and eventually convince them of the well-foundness of the claim, or its opposite. Despite the routine work of judges and rapporteurs at the Court, leading to the erosion of affect in listening to stories of persecution, or perhaps because of this routinization and indifference, the face-to-face with applicants occasionally arouses emotions that are somehow considered as evidences and end up dispelling doubt and suspicion. This is crucial if we consider that suspicion is probably nowadays the most striking feature of representations and practices on asylum. On the grounds of an ethnographic research at the French Court of Asylum, my aim here is to examine the "intimate conviction" of judges through an exploration of the emotions at stake in the courtroom.

4.30 p.m. - 6.00 p.m., Session 3, Staging the Evidence

Stéphanie Homola (CEMC/EHESS, Paris) : Judging destiny : how Taiwanese diviners cope with uncertainty
As Chinese horoscopy aims at giving an accurate - though not legal - diagnosis of a complex and multi-dimensional reality, I propose to show how contemporary diviners in Taiwan have developed a rational method which can serve as a model of judging and decision-making under uncertainty.
Diviners are torn between the need to be efficient (predict something somehow) and the risk to go beyond their competence (make a wrong prediction). To cast the doubts of petitioners who often put to test their efficacy and to distinguish themselves from charlatans who pretend they can predict anything, Taiwanese horoscopists of the "modern trend" are careful to make a fair use of their authority and advocate a scientific method whose scope is precisely defined and limited.
They rely on a rigorous formal pattern which combines theoretical concepts (such as fate), technical device (such as horoscope’s grid) and contradictory oral exchange (during the consultation) to investigate the situation of a particular person in interaction with a particular environment. As judges would do, diviners use every type of proof (oral, material, sociological, psychological) to reconstitute the bundle of factors which determines a human being at a particular time. When assessing the situation, they also make a clear distinction between elements which depend on the free will of the individual and those which are beyond his control. As experts, diviners go rationally through every component of the case but also rely on their own experience as human beings to build their opinion and convince the petitioner.

Véronique Bouillier (CEIAS,CNRS/EHESS, Paris) : The different times of doubt in French Assises Courts
Doubt is supposed to lie at the centre of any trial. Looking at French Assises courts, I challenge this opinion and ask : is the eventuality of doubting mere fiction ? What sort of doubt is acceptable ? How, when and by whom is doubt generated ?
The trial begins with the reading of the bill of indictment which is already a demonstration of guilt : committal for a hearing before an Assize court, as ruled by the investigating judge, supposes that the investigation has proved the charges against the accused.
I examine a few cases in order to show that, even though doubt is claimed to be intrinsic to trial procedures, it is nevertheless restricted and controlled. The pre-trial investigation provides evidence and establishes "the facts" that have generally been recognized by the accused. Often no doubt is cast on the actual guilt of the accused, it is expressed regarding the circumstances, the context, the motives. The defence lawyers’ strategy is not therefore about denying what is already presented as evidence, but to cast doubt on the surrounding circumstances in order, for instance, to change the way in which the crime is qualified or to mitigate the sentence.
The trial itself, according to the French procedure, does not so much focus on revealing or clarifying the facts -the crime has already been established and the "culprit" identified ; it is like a ritual performance where society enacts his own willingness to recognize human dignity and to give fair treatment even to its fallen members.

Gilles Tarabout (LESC, CNRS/U. of Nanterre) : Religious uncertainty, astrology, and the courts. a case study from South India
In Kerala, Hindu devotees may wish to improve a temple or solve difficulties. They first need ascertain the will of the presiding deity through an astrological session. In this public event, each and every aspect of temple life is scrutinized, a process full of uncertainty as astrologers are notorious for their unpredictable pronouncements.
Interpretation has to produce a pattern that makes sense out of complex ominous data, and major statements are cross-checked through divination. The astrologers end up with a narrative explaining the past causes for the present day situation, and, much as with medical advice, with a list of (ritual) remedies. Such rituals are often costly and are not always implemented, depending on the local situation. Devotees may disagree about the next course of action, which sometimes results in an open conflict brought to the courts.
A trial, however, is not a "cure" but a contest full of new uncertainties. Judges are cautious to respect religious rights guaranteed by the Constitution while at the same time preserving public order. They may wish to be on the safe side of what is said to be the local "tradition", and may quote in that respect the results of such astrological consultations. The trial ends up with a ruling, to be enforced.
Based on a case study, the paper suggests that, in a process fraught with uncertainties, astrology leaves an open space for religious negotiation, while courts render doubts irrelevant as the judge’s decision becomes law.