ADVERSARIAL CASE‐MAKING: AN ETHNOGRAPHY OF ENGLISH CROWN COURT PROCEDURE by THOMAS SCHEFFER
| Published date | 01 June 2011 |
| DOI | http://doi.org/10.1111/j.1467-6478.2011.00546.x |
| Author | JOHN FLOOD |
| Date | 01 June 2011 |
ADVERSARIAL CASE-MAKING : AN ETHNOGRAPHY OF ENGLISH
CROWN COURT PROCEDURE by THOMAS SCHEFFER
(Leiden and Boston: Brill, 2010, xlii + 283pp., ¨99.00)
As an ethnographer I have no difficulty in believing in the validity of what I
do. I subscribe to Everett Hughes's view
I am suspicious of any method said to be the one and only. But among the
methods I would recommend is the intensive, penetrating look with an
imagination as lively and as sociological as it can be made. One of my basic
assumptions is that if one quite clearly sees something happen once, it is
almost certain to have happened again and again. The burden of proof is on
those who claim a thing once seen is an exception; if they look hard, they may
find it everywhere, although with some interesting differences in each case.
1
This still leaves us with the problem of persuading readers that we are
offering them genuine insights into varieties of human behaviour. Why
should they be credulous? Some would say it is the `intensive, penetrating
look with an imagination' while others would promote a scientific explana-
tion immersed in a well-codified theoretical perspective. Yet, we know there
are practical benefits to ethnographers' work. Technology companies, for
example, use them to find out how software is used by consumers or to
discover what innovative uses people devise for mobile phones.
Even as social science has provided us with perspectives based on scale,
roles, networks, and other variables, it is ethnography that enables us to go
inside the black box of what it is to be human and social. It is surprising, then,
that the world of law is often neglected in the ethnographic milieu.
Anthropologists engaged with it while studying kinship and exchange
systems, seeming to take Durkheim's idea that contract was at the base of the
social division of labour. Much of Malinowski's work in the Trobriand
Islands
2
was influenced by Durkheim, as evidenced by his analysis of the
over-production of yams to make urigubu payments to recompense women
who had to marry out of their clan. The world presented to us was essentially
mundane and normal in that it was concerned with the everyday routines of
life. However, not all of law is focused on the everyday (despite appearances).
Courts are to most people exceptional worlds which they avoid if possible.
Indeed, one of the most alienating environments is the court. The court is
strange, hostile, threatening, and distant. Only the lawyers and judges (along
with the clerks, bailiffs, and so on) truly feel at home and depend on it for
their livelihoods. For those who are accused of crimes or who are called as
witnesses, the court is an extraordinary and bizarre world that should never
be revisited.
336
1 E. Hughes, The Sociological Eye (1984) preface, at xvi.
2 B. Malinowski, The Argonauts of the Western Pacific: An Account of Native
Enterprise and Adventure in the Archipelagoes of Melanesian New Guinea (1922/
2002).
ß2011 The Author. Journal of Law and Society ß2011 Cardiff University Law School
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