A call for ethnographying the judiciary (beyond the courtroom)

Abstract

My contribution to the 40th anniversary of the Journal of Legal Pluralism and Unofficial Law is a call for further development of a methodology, ethnography, and an anthropologist’s reflection on how it has been conceived (and underdeveloped) so far in the field of socio-legal studies and research on contemporary judicial systems. Studying on the ground how and by whom law is applied – or disregarded, changed, contested – has been one of the main goals of legal anthropology since its inception as a field of study (Bens and Vetters 2018). However, it has been carried out mainly in post-colonial contexts, despite the fact that since the 1970s anthropologists have also turned their attention to the elites of the West (Nader 1972) and shared a broadened conception of pluralism that takes “official law seriously as a subject of ethnographic research” (Bens and Vetters 2018, 240). The point is that in-depth ethnographies devoted to western judicial systems are still rare, and the few we find take a narrow approach that focuses on what happens in the courtroom. The problem, then, is not only to do ethnography about (or in) the judiciary, but to decide what kind of ethnography to do. I elaborate on this critique in the remainder of this essay, proposing some lines of research and approaches that draw on the classical formulation of the case study, as well as on recent works published in this journal and in the context of southern Europe (Spain and Italy). Most ethnographies about the judiciary in contemporary societies take courts as their only space for observation (there is a so-called “courtroom ethnography”, in fact). Additionally, they do so using approaches more or less related to ethnomethodology – conversation analysis, semiotics and dramaturgy – focusing on the analysis of discourses, symbols and interactions: the setting and atmosphere in the courtroom, the routines and performances of the different actors, the dialogues they establish, etc., in order to consider what all this reveals about the different roles, hierarchies, legal cultures and ideologies involved (Philips 1998; Garapon 1999; Dahlberg 2009; Bens 2018). These courtroom-centred ethnographies offer vivid descriptions and detailed analyses of particular proceedings. They identify unsuspected issues, such as patterns of behaviour, distinctive judging styles, and conflict and power dynamics, among others (Conley and O’Barr 1988, 478–479). However, as discourse analysts recognise,