Silence and Voice in Oral Hearings: Spatial, Temporal, and Relational Conditions for Communication in Asylum and Compulsory Care Hearings
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/09646639221118654 |
| Author | Livia Johannesson |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Silence and Voice in Oral
Hearings: Spatial,
Temporal, and Relational
Conditions for
Communication in Asylum
and Compulsory Care
Hearings
Livia Johannesson
Score –Stockholm Center for Organizational
Research, Stockholm University, Sweden
Abstract
The legal right to be heard by a judge is an important human right. However, what hap-
pens if a claimant does not meet the requirements of legal communication when given
the opportunity to be heard in court? In this article, I address this question by exploring
how temporal, spatial, and relational conditions encourage or silence vulnerable clai-
mants’voices in asylum hearings and compulsory psychiatric care hearings in Swedish
administrative courts. In addition, I analyze the multiple functions orality has when
judges make decisions in these case types. The results provide nuance to claims in pre-
vious studies about the importance of enough time, spaces that signal solemnity, and
flexibility in judges’approaches to vulnerable claimants’voices by demonstrating how
these conditions interact with each other and generate different communicative atmo-
spheres. Moreover, this study challenges the idea that oral hearings are necessarily bene-
ficial for claimants as it demonstrates that under certain conditions orality can place
claimants at a disadvantage and amplify their defenselessness. However, orality brings
legitimacy to court proceedings even in these cases as it communicates justice to the
public evaluating these procedures from a distance.
Corresponding author:
Livia Johannesson, PhD in Political Science, Score –Stockholm Center for Organizational Research, Stockholm
University, Frescativägen 14 A, 106 91 Stockholm, Sweden.
Email: Livia.johannesson@score.su.se
Article
Social & Legal Studies
2023, Vol. 32(3) 399–419
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639221118654
journals.sagepub.com/home/sls
Keywords
temporality, sociomateriality, judging, asylum, compulsory psychiatric care
Introduction
Oral hearings are considered to be constitutive of procedural justice in court proceedings.
The European Convention on Human Rights, for example, declares that “[i]n the deter-
mination of his civil rights and obligations or of any criminal charge against him, every-
one is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law”(Article 6, paragraph 1). Similarly, legal philoso-
phers have argued that the right to express one’s opinions in front of an impartial
decision-maker is a fundamental aspect of procedural justice. Jeremy Waldron, for
example, makes the following claim:
Applying a norm to a human individual is not like deciding what to do about a rabid animal
or a dilapidated house. It involves paying attention to a point of view and respecting the per-
sonality of the entity one is dealing with. As such it embodies a crucial dignitarian idea–
respecting the dignity of those to whom the norms are applied as beings capable of explain-
ing themselves. (Waldron 2010: 14, emphasis in original)
Waldron describes an ideal scenario where individuals are treated as rational and com-
municative, capable of explaining their actions. In democratic systems, this communica-
tive capacity of lay persons in court is even more important as it connects the legal
procedure with democratic ideals of public deliberation. For example, Mulcahly and
Rowden (2020: 6) argue that “[t]he concept of citizen and the concept of legal person
are united in the idea of the deliberative person so valued by democracy”.
However, what happens if a claimant does not meet the requirements of deliberation
and rationality when given the opportunity to be heard in court? In this article, I address
this question by exploring how temporal, spatial, and relational conditions encourage or
silence vulnerable claimants’voices in asylum hearings and compulsory psychiatric care
hearings (hereafter compulsory care hearings) in Swedish administrative courts. I also
analyze the multiple functions that claimants’speech has when judges make decisions
in these case types. The study relies on interviews with judges and observations of
oral hearings to explore these two questions. I selected asylum and compulsory care
cases because, in Sweden, they are adjudicated within the same court system, sometimes
even by the same judges. They also share procedural similarities in terms of access to
public counsel, interpreters, and oral hearings, and the claimants in both case types are
exposed to power asymmetries that make them vulnerable in court proceedings.
Despite these similarities, the temporal, spatial, and relational conditions of the oral hear-
ings in these two cases differ significantly. Therefore, it seems appropriate to study how
these conditions structure the communicative atmospheres and how claimants’speech is
perceived by judges adjudicating these cases.
By comparing asylum and compulsory care cases, this study opens new avenues for
theoretical advancements and generalizations. First, it advances ongoing sociolegal
400 Social & Legal Studies 32(3)
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