Forensic and Expert Social Anthropological Practice: An Introduction

ABSTRACT

This special issue of Anthropological Forum presents a collection of articles by international practitioners of forensic and expert social anthropology (FESA), and related areas of law. The forensic and expert specialisation of social anthropology focuses on the provision of evidence to legal-administrative processes overseen by courts and other legally empowered organisations, where human social culture is deemed an important factor. Social anthropology, as a field of expertise that studies links between culturally specific, collectively held ideas and observable patterns of social interaction, is an appropriate source of evidence for such processes. However, the field in general does not necessarily confer the specific training, study and experience required by the highly probative demands of presiding authorities. To address this gap, FESA advances a range of legally relevant concepts, objective investigative and analytical methods, and justice-oriented ethical principles. FESA applies this three-part focus consistently in its engagement both with legal-administrative processes and with the communities and individuals who seek justice using those processes, many of whom are marginalised within the national populations to which they belong. Contributors to this special issue have backgrounds working in Australia, Southeast Asia, the Americas, Africa and Europe. Variation between the legal-administrative regimes in each of these regions highlights both FESA’s universal relevance, and its emerging coherence as a specialist field. The articles brought together in this special issue describe FESA practice under a range of legal-administrative regimes spanning Indigenous land claims, intellectual property disputes, cultural heritage preservation procedures, asylum claims and allegations of gender-based discrimination and genocide.

KEYWORDS:

• Social anthropology
• cultural anthropology
• forensic social anthropology
• forensic and expert social anthropology
• Expert Witnessing

In any legal-administrative process that requires evidence concerning human social culture¹, there is a role for forensic and expert social anthropology (FESA). Relevant legal-administrative processes are those that arise either from legal proceedings or from statutory procedures and constitutional doctrine. Authorities presiding over these processes thus include not only courts of law, but any legally empowered organisation able to call for evidence in order to establish the facts of an inquiry, or to consider expert opinion and advice with regard to facts already established. Such authorities include courts, tribunals, commissions of inquiry, government departments and agencies, and a range of other specialised entities established for the purposes of investigation and advice. The unifying feature of this collection is the organisational objective of reaching some kind of legally enforceable judicial or governmental decision. FESA services are most typically requested by such organisations when there is some variation between two or more social cultures of which presiding authorities and other participants are a part. FESA practice thus falls under the more general definitional umbrella of ‘cultural expertise’ (Holden 2023), and captures the more specific definitions of ‘cultural expert testimony’ (Rodriguez 2021) and ‘forensic social anthropology’ (Rose 2023; Trigger et al. 2013). Importantly, in capturing the more specific definition of forensic social anthropology, FESA also clarifies and resolves the relationship (and distinction) between social and physical anthropology in legal-administrative settings (Hackman and Black 2023; Rose 2023). FESA practice describes an evolving set of legally relevant theories, objective investigative and analytical methods, and justice-oriented ethical principles, concurrently generated by an ongoing dialogue between social anthropology, law and governmental administration (Hale 2020; Martínez 2020; Rose 2022).

This special issue of Anthropological Forum brings together a collection of articles united by a common theoretical, methodological and ethical orientation. This is an orientation defined not by social anthropology’s application to any particular cultural community, nor by its study of law and governmental administration as in the case of legal anthropology (Mattei and Nader 2008; Sultany 2009). Rather, these articles are written from the perspectives of social anthropologists conscientiously and actively cooperating with legal professionals and government administrators in legal-administrative processes. This is a cooperation that occurs at the invitation of lawyers, judges or government officials, where social anthropology is considered by them to offer a useful service based on specialised training, study, or experience.² The focus of this special issue is not limited to the application of FESA to any single area of law or administration, but rather is extended to the characteristics of its application to legal-administrative processes in general. The scope of the articles contributed to this issue is thus international, and includes the views of both FESA practitioners, lawyers and sociolegal scholars familiar with the roles and functions of those practitioners, and the relations between them.

The primary intended audience of this special issue includes social anthropologists, legal professionals and policymakers, united by a common interest in a coherent and predictable framework for deciding whether FESA services may be useful to a given set of objectives, and if so, the basic terms on which those services may be engaged. The secondary audience includes current and prospective students of social anthropology who may be considering a professional career in the field but have not yet had a coherent career pathway demonstrated to them. Given this broad intended audience, the terms and definitions used in this special issue may seem reductive to some social anthropologists, especially those already working in FESA practice. In that case, we would respond by citing the late complexity theorist and social anthropologist Douglas White, who describes the emergent complexity of systems constituted by interactions between elements, which in isolation seem simple, but in collective action generate rich and diverse phenomena that cannot be predicted from isolated accounts of the elements themselves (White 2004). The articles brought together here are written en media res, from the perspective of active FESA practitioners and allied professionals. The purpose of this introduction is to frame these perspectives in the context of an increasingly coherent, formal and urgently necessary professional practice, along with its specialist terms and definitions, in order to guide interested parties along a path through the complexity.

Human social culture, like the social culture of any species, exhibits patterns at a scale that encompasses communities of individuals, where interactions between individuals over time and across space can be recorded, described, classified, modelled and analysed. Unlike the social cultures of other species, however, human social culture can be interpreted and construed by individual society members themselves, in the form of systematic, self-referential ideas known as ‘idea systems’ (Leaf and Read 2012), and consciously developed, culturally autochthonous models of society known as ‘cultural models’ (de Munck and Bennardo 2019). This system of feedbacks, between collectively held ideas and observable patterns of social interaction at the scale of entire communities, is the object of study for the field of science known as social anthropology. This object of study is called ‘social culture’ (de Munck and Bennardo 2019; Hamberger, Houseman, and White 2014; Leaf and Read 2012; Rose 2022; 2023).

Legally empowered organisations may be interested in social culture, idea systems and cultural models for a range of reasons. These reasons may be distinguished as having either or both a legal or administrative application, with more or less forensic or expert characteristics (Rose 2022). Legal reasons for considering social culture may extend to the bases on which legal claims and prosecutions are initiated, such as culturally based rights in lands, waters, natural resources, intellectual property, child custody, tangible and intangible cultural heritage, and in charges of genocide, war crimes, and other forms of loss and damage caused by recent or historic harms, including those inflicted in the course of colonial invasions, conflicts, and ensuing colonial administrative regimes. In these instances, claimants, plaintiffs and their legal representatives may choose a legal strategy that involves describing and explaining the role of social culture in giving rise to the rights and interests subject of the claim or prosecution, including loss or damage arising from forced acquisition of land, removal of children from their natal communities, or incarceration or deportation in the case of criminal prosecution. Conversely, in the case of respondents, defendants and their legal representatives, social culture may be considered part of a ‘cultural defence’ by those involved, forming the basis for argument against prospective loss or damage.

In contrast to legal reasons, administrative reasons for seeking FESA services may include a statutory duty, where legislation either explicitly requires the involvement of social anthropologists or does so tacitly where the function of legislation can be executed only with the involvement of social anthropologists, whether by convention or due to the absence of any equivalently qualified service provider. In these instances, administrative authorities may direct social anthropologists to perform some role otherwise named in the legislation. In such administrative settings, FESA practitioners deliver services based on their specialised training, study, and experience, which involve the expert description, translation and explanation of social culture borne by communities affected by the legislation, in a manner that enables the legislation to function.

Legal-administrative processes involving FESA practitioners may also be distinguished according to the type of FESA service required, either or both forensic investigation and/or expert opinion and advice (Rose 2022). The determining factor in making this distinction is whether the relevant process includes a requirement to establish facts with regard to social culture, or whether it requires expert opinion and advice in relation to certain facts regarding social culture, either those established as part of the same process, or previously established. Where facts have not yet been established, a forensic investigation may be undertaken by a FESA practitioner in order to assist in their establishment. Where facts have already been established, the most appropriate service may be expert opinion and advice. Unlike the philosophy of social anthropology, which has historically professed an uneasy relationship with the concept of factuality (Clifford and Marcus 1986; Latour 1987; Scholte 1987), forensic and expert social anthropological theory aligns firmly with legal and scientific definitions.

From a FESA perspective consistent with legal and scientific conventions, facts are comprised of those specific times, locations, individuals and events that can be shown to have some causal link with one another, and with the matter of interest to a given legal-administrative process (see e.g. Evidence Act 1995 [Cth]; Gageler 2008). Generally, facts that a FESA practitioner may be commissioned to investigate are those where the causal links between relevant times, locations, individuals and events can be shown to have a basis in a particular social culture. More specifically, FESA practitioners specialise in identifying, modelling and analysing the systemic feedback between idea systems, cultural models and patterns of social interaction at a community level, where those interactions have a spatial and temporal distribution.

While the results of a FESA investigation may be reported to a presiding legal administrative authority, the ultimate establishment of facts by a corresponding process can result only from a decision by that authority. In a specifically legal setting, this decision is usually part of the initial process of a court-directed negotiation between a claimant and a respondent or plaintiff and defendant. In a specifically administrative setting, facts are usually defined more prosaically by the terms of relevant legislation, decided by a government official or authorised delegate. The role of FESA practitioners in contributing to the establishment of facts involves undertaking an investigation, using their specialised training, study, and experience to conduct interviews with relevant society members, making audio-visual and geospatial recordings, both in the company of society members and independently, reviewing relevant published and grey literature, conducting relevant and necessary modelling and analysis of the information and data collected, and then compiling a report on the results.³

Separate to the provision of forensic investigative services, FESA practitioners may also or alternatively provide expert opinion and advice. In a legal setting, expert opinion may be provided in response to questions on relevant social culture, and may take the form of an affidavit, expert report, or cross-examination. In these forms, FESA opinion is arranged as a series of answers to questions formally drafted by legal representatives, or by a presiding authority. Additionally, or alternatively, legal professionals may seek advice from FESA practitioners regarding the most effective way to ask such questions, or to present the subsequent expert opinions. Such ‘strategic’ advice may also be sought from a FESA practitioner in relation to the commissioning of a forensic investigation. In an administrative setting, expert opinion and advice may likewise be presented separate to or alongside the results of an investigation.

Historically, a range of social anthropological activities corresponding with parts of FESA practice have been collectively termed ‘expert witnessing’ (Rosen 1977). However, the distinction between expert witness roles performed by social anthropologists in court proceedings, and contemporary FESA practice, is that FESA includes both a wider variety and a more clearly defined set of activities than those typically performed by expert witnesses alone. Not only do FESA practitioners engage in both legal and administrative processes, they also engage in a distinct set of interrelated activities spanning both forensic investigation and the provision of expert opinion and advice connected with a specific form of evidence-based cultural expertise. These activities are united by a combination of theoretical and ethical principles, augmented by a distinctive set of technical skills, which are focused on the generation of forensic and expert evidence that is relevant, objective and just.

Based on specialised training, study and experience, the three key elements of FESA practice—cultural expertise, theoretical and ethical principles, and technical skills—enable FESA practitioners to assist in the delivery of legal-administrative outcomes that are relevant, objective and just to the legal-administrative processes to which they contribute. Most importantly, FESA prioritises the physical, mental, and social health and wellbeing of the individuals and communities with which its practitioners work.

Each of the articles contributing to this special issue of Anthropological Forum addresses one or a combination of these dimensions of FESA practice. David Trigger describes tensions that have accompanied the development of FESA theory and practice in Australia since the 1970s, especially since the legislation of that country’s Commonwealth Native Title regime 30 years ago. Within the field of social anthropology itself, these tensions have been generated by theorists and philosophers of social anthropology seeking to supress the emerging specialisation of forensic and expert practice by undermining its ethical credibility. More recently, another set of tensions has arisen in relation to the ethnicity of FESA practitioners who do not share the ancestry of society members in whose cultures they have developed some degree of technical expertise. As a non-Indigenous FESA practitioner with more than three decades of experience working with Indigenous community-led organisations, Trigger gently traces the contradictions of both sets of allegations, with reference to cases in which he has been involved.

In their contribution, Howard and Frances Morphy draw on their combined century of experience working with Yolngu communities in the Arnhem Land region of Northern Australia, to describe in detail the distinction between the translation and explanation functions of FESA practice, using the example of their involvement as FESA practitioners in the famous Blue Mud Bay native title claim in Arnhem Land (Gawirrin Gumana v Northern Territory of Australia (No 2) (2005) FCA 1425; Gumana v Northern Territory of Australia (2007) FCAFC 23; Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) HCA 29). Morphy and Morphy show that the expert opinion and advisory functions of FESA practice maybe further distinguished into specific types of opinion and advice. They find that the distinguishing factor is whether questions put to FESA practitioners by legal representatives seek a translation of autochthonous cultural terms and definitions, or whether legal questions require an elaborated explanation of those terms and definitions in the form of social anthropological modelling and analysis.

In his article, sociolegal scholar Riccardo Mazzola describes innovative adaptations in both social anthropological models of Indigenous property regimes in the Arnhem Land region of Northern Australia, and in Australian Federal Court legal definitions of those regimes. Mazzola draws on two intellectual property cases heard by the Federal Court of Australia in the 1980s, in which the late Yolngu artist John Bulun Bulun claimed infringement on his rights by commercial entities. Mazzola shows that strategies employed by legal representatives of the artist drew heavily on FESA practitioners’ expert opinion and advice in each of the two cases, giving rise to two distinct but complementary approaches. In the first case, the plaintiff and his representatives sought to ‘assimilate’ Yolngu models of intellectual property to definitions already familiar to the Federal Court, as a means to effective conceptual translation. In the second case, the plaintiff and his representatives employed a strategy in which they deliberately distinguished Yolngu models of property ownership in order to demonstrate the distinctive cultural basis of the claim.

Moving from Australia to Malaysia, Rusaslina Idrus describes her involvement as a FESA practitioner in several culturally based claims to land by Indigenous Orang Asli communities of Peninsula Malaysia. Idrus provides a rich and detailed account of the forensic investigation and expert opinion services commissioned by claimants’ legal representatives under the terms of Malaysia’s constitutional and statutory recognition of Orang Asli rights in land, and the continuing common law adaptation of strategies for pursuing recognition of those rights. In illustrating contemporary theoretical and methodological concerns common to many FESA practitioners around the world, Idrus describes her recent strategic involvement in the case of a Jakun community in Ropin district, Pahang. After being served with an eviction notice by a palm oil development company, who claimed that the community members were not Indigenous to the area but were instead migrants, the Jakun community lodged a counterclaim against the Malaysian Land Office and the Pahang state government as agencies responsible for unlawfully issuing land titles to the developers.

Writing from the perspective of her sociolegal expertise in Indigenous Brazilian land rights, Mariana Monteiro de Matos describes the roles of FESA practitioners in providing evidence to Brazil’s Federal Court, on that country’s first and only Indigenous land claim litigation, Xucuru Indigenous People v Brazil, 2018. That claim, heard under the terms of the country’s 1989 constitution, enshrining Indigenous communities’ culturally based rights to land, alleged that violation of those rights specifically in the case of the Xucuru people of Northeast Brazil, had resulted from a decades-long delay in the federal government’s mapping of Xucuru territories, and its failure to relocate non-Indigenous occupants away from that territory. Plaintiffs also alleged that this protracted delay had resulted in the murders and assassinations of a number of Xucuru community leaders by settlers and their allies, who exploited the government’s delays and the uncertainty it created. In considering evidence from FESA practitioners, the Brazilian Federal Court developed novel forms of cross-examination, inviting multiple practitioners to both testify and conduct cross-examinations.

In their article, ChorSwang Ngin, Joann Yeh and Luz Borjon describe Ngin’s provision of FESA services in connection with the claim of a Transgender student seeking asylum from persecution in their natal community of Michoacán, western Mexico. Bringing their respective training, study, and experience as FESA practitioner, attorney, and community support worker, Ngin, Yeh and Borjon illustrate the critical role of FESA practitioners in providing both expert opinion in relation to the risk of harm generated under particular cultural conditions, and strategic advice on how to coordinate a case where such evidence has been deemed to serve an important function. Ngin, Yeh and Borjon highlight the intersecting legal, cultural and ethical considerations in a complex legal process within a jurisdiction where otherwise celebrated cultural diversity does not confer an equal distribution of rights to health and wellbeing upon the individual bearers of certain social cultures. Importantly, Ngin also discusses the question of whether and how FESA practitioner ethnicity is relevant to the matters on which they work.

Finally, building on his four decades of experience as a ‘country expert’ providing FESA services to the UK’s administrative asylum system, John Campbell provides thorough and detailed accounts of the inconsistencies and contradictions that he witnessed in the recent cases of two Ethiopian plaintiffs accused of war crimes by the responding British Home Office. In his role providing expert opinion to the asylum seekers’ legal representatives, Campbell repeatedly highlighted errors of fact in the evidence presented by the respondent, which in his view undermined their allegations. Rather than responding to these points of fact, the defendant sought instead to delay proceedings on the basis of administrative technicalities. Campbell points to both the professional and ethical challenges faced by FESA practitioners under such circumstances, where administrative processes are under-resourced, presiding authorities lack the training necessary to properly assess cultural evidence provided by both fact and expert witnesses, and where the political objectives of respondent parties undermine their erstwhile claims to model litigant status.

The articles in this special issue contribute to a growing and increasingly coherent body of literature on the practice of forensic and expert social anthropology. Most recently Holden (2023) and Rodriguez (2021) present consilient accounts of the experiences and perspectives of FESA practitioners engaged in the provision of forensic and expert services to courts and other legally empowered organisations in Europe and Latin America respectively. Holden (2023) provides a highly functional overarching set of terms and definitions comprising a generalised field of engagement with the law termed ‘cultural expertise’, in which social anthropology constitutes one such form alongside psychology, journalism and sociolegal studies. Independently, Rodriguez (2021) describes the engagement of social anthropologists as ‘cultural expert witnesses’ in the provision of specialised testimony. These two edited volumes weave together in a coherent and systematic fashion, theoretical, methodological and ethical threads that have been identified elsewhere, including by Foblets, Gaudreault-DesBiens, and Graziadei (2022), Loperena, Mora, and Hernández-Castillo (2020), and Trigger et al. (2013) among others. In this context, the contributions to the current issue frame social anthropological engagement with legal-administrative processes on the one hand as a specialised form of cultural expertise (Holden 2023), and on the other hand as including forensic investigations as well as cultural expert witness testimony (Rodriguez 2021) based on the distinctive training, study, and experience unique to that field (Rose 2022, 2023).

All of the contributions to this special issue take the view that both social anthropology and the law are open to reform in a manner that makes equitable access to justice possible for those most in need of it. As professionals who engage regularly with marginalised and vulnerable communities, and whose specialised field of expertise includes modelling and analysing the origin and perpetuation of that marginalisation and vulnerability, social anthropologists typically bear an ethical commitment to mitigating further risks of collective harm. Concomitantly, legal professionals and policymakers typically bear a commitment to advocate for the rights of their clients and constituents, however so defined. In this context, the cooperation of social anthropology and the law need not be construed in terms of antagonism, but may instead be construed in terms of constructive reformist dialogue. Where social anthropologists are willing to formalise and enhance the professional standards of their practice in support of relevant, ethical, and just legal-administrative processes, presiding authorities in those processes have demonstrated that they are more likely to adapt their understandings, expectations and objectives in light of that support. It is with this sentiment that the current special issue of Anthropological Forum is presented.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 As distinct from specifically material culture (Hunter and Cox 2005), linguistic culture (Coulthard, Johnson, and Wright 2017) or any other form of patterned human behaviour.

2 As defined by Australia’s Evidence Act 1995 (C’th) (1995).

3 FESA investigation may include elements of what is conventionally referred to as ‘fieldwork’ or ‘field research’, as well as 'desktop research’. It is not related to the historic practice of what is sometimes termed ‘thick description’, which is more closely related to literary forms of journalism (Clifford and Marcus 1986; Scholte 1987).