Interrogating the Role and Value of Cultural Expertise in Law

Abstract

It is common for litigation to draw upon expert evidence to assist a judge to arrive at a balanced decision. This paper examines the role of one type of expert evidence submitted to courts, namely cultural expertise (CE), which provides information on socio-cultural issues such as kinship, family, marriage, customs, language, religion, witchcraft and so on. This type of evidence is primarily the result of qualitative, ethnographic research. I begin by examining the views of experts who have provided CE to courts/mediators; I then look at how judges view and make use of CE, and finally I examine lawyers’ views on CE. To address gaps in published research, I interviewed British barristers to understand how they make use of experts in the cases they litigate. Finally, I have surveyed legal decisions made by all British appellate courts to arrive at an approximate idea of the extent to which CE has been submitted in English and Welsh courts. I conclude that the extent to which CE—and other types of socio-legal evidence—is submitted varies considerably depending upon the legal/evidentiary procedures followed in different jurisdictions and in different countries.

The Judicial Assessment of ‘Expert Evidence’ in the United Kingdom’s Immigration and Asylum Chamber

“…This is a worrying phenomenon, and it indicates that neither the SSHD nor UKVI believe that they are bound by the UK's legal commitment to the Refugee Convention or to domestic law which requires its staff to fairly assess the applications of asylum seekers. My argument concerning the ease with which IJs dismiss qualitative research in favour of statistics (whether adequately tested or not) also reflects the views of immigration barristers whom I have interviewed who have told me that 'senior IJs were unwilling to take decisions which might be understood by the Government as 'impeding the operation of immigration control" (Campbell 2020b). For this reason, IJs fail to adequately reconcile international legal frameworks with British law in case their decisions challenge government policy.…”

The Professional Conflict Pertaining to Confidentiality—The Obligation of Disclosure for Intermediaries of Financial Transactions

“…The comparative perspective emphasizes the difference in cultural and law expertise (Campbell 2020) for the EU member states. With respect to the waiver as per DAC6, professional secrecy according to the national law of each member state may include various categories of professionals that benefit from this protection, such as lawyers, tax advisers, accountants, auditors, and other service providers (this applies in Luxembourg, Croatia, the Slovak Republic, for instance, but also in Romania); when referring to legal professionals, some legislations also include trainees, paralegals or in-house lawyers within the scope of legal professional privilege, while others solely protect independent lawyers.…”

Cultural Expertise and the Legal Professions

“…In the anthropology of law, the link between law and culture is one of long date (among others see Geertz 1973 andRosen 1977), but, in the socio-legal studies and in the wider panorama of social sciences, debates have recently emerged about the existence, the extent and the usefulness of cultural expertise as well as the appropriateness of the engagement of social scientists in court (Holden 2019, Campbell 2020, Loperena, Mora, and Hernández-Castillo 2020, Rosen 2020. The compatibility of the scientific and legal domains have been interrogated from a perspective of sociology of sciences (Jasanoff 2006) and legal anthropology (Good 2007).…”