ADVERSARIAL CASE-MAKING: AN ETHNOGRAPHY OF ENGLISH CROWN COURT PROCEDURE
by Thomas Scheffer.
Leiden, Boston: Brill, 2010. xlii + 283pp. Hardback $141/€99. ISBN:
9789004187269.
Reviewed by Lisa Vanhala,
British Academy Postdoctoral Fellow and Lecturer in Human Rights.
Email:
l.vanhala
[at] ucl.ac.uk.
In recent years ethnographic research methods have been gaining
a stronger foothold in political science. Edward Schatz’s (2009)
edited volume on political ethnography convincingly highlighted
the insight that participant-observational methods can
contribute to the study of power.
Adversarial Case-Making:
An Ethnography of English Crown Court Procedure contributes
to the growing body of work in political science relying on
ethnographic methods. Its approach will be of particular
interest to those working at the forefront of
participant-observational and discursive analytical methods in
the study of courts.
The eight chapters of the book explore the methods and the
substance of legal procedure in the English Crown Court – a
higher court for criminal cases in England. Scheffer “… is
concerned with the temporalities of legal practice, or more
precisely with the ways both past and future are overly present
in legal case-making” (p.xv). The author, in engaging with the
literature on adversarialism, emphasizes procedure and focuses
on dimensions of case-making that he sees as largely overlooked
: “…the case’s becoming in time or, more precisely in the
procedural course” (p.xix) and “the complex movements that drive
adversarial case-making” (p.xl). It is a study of the
micro-foundations of adversarial legalism and complements the
numerous studies of macro-structures that have tended to
dominate the political science literature on legal culture. The
monograph is also a meta-exploration of methods. Political
scientists with interpretivist leanings will appreciate the
book’s model of reflexivity and the scrutiny brought to bear on
the author’s own biases and methodological standpoints in the
course of the research.
The monograph alternates between two-formats: 1) case studies of
specific legal disputes and 2) conceptual considerations that
serve as bridges between empirics and theory as well as between
the disparate case studies. Scheffer justifies this format from
a conceptual point of view, citing “the double nature of
procedure as a frame of action and meaning-production” (p.xxii).
The first case study centres on the (de)construction by legal
defendant and solicitor of the alibi-narrative in preparation
for court. The second focuses on epistemic adversarialism,
interrogating how experts are brought into the procedural arena.
The third case study follows the work of a barrister on the day
of a trial through the use of discourse analysis. This chapter
elegantly explores the interplay of talk and text building on Goffman’s (1981) research. The final case study focuses on the
latter stages of legal procedure exploring the Crown Court’s
dealing with guilt and regret in a murder case. The topical
studies interspersed between the ethnographies consider [*694] social
theory, styles of file work in law firms and the procedural
infrastructure of the Crown court. The final (and most
successful) topical chapter explores the legacy stage of
case-making: what may or may not follow the decided and reported
case. It aims to address the interesting, under-explored
question of why, in the common law system, a case might become
precedent or why it might be forgotten.
This format, however, tends to highlight one of the weaknesses
of the project: a lack of a clear, over-arching argument. While
the concern with temporality and shedding of light on the
trans-sequential nature of procedure is highlighted in the
introduction as a core objective, it seems to fade into the
background, or into invisibility, in the middle chapters. This
critique also applies to the methodological approach. For
example, the foreword begins with the meta-question: “Is this
monograph a case? A case of what: of academic writing, of an
institutional ethnography, or a
law-in-action study?” (p.xi).
Scheffer then goes on to discuss the concept of “case” or “case
study” in chapter three, chapter five and chapter seven and yet
never quite comes to a conclusion of what a “case” is. The
disjointed feel of the book is perhaps unsurprising, as many of
the chapters have been published as stand-alone articles.
Students of the concept of adversarial legalism as a mode of
governance as articulated by Robert
Kagan (1997), and more recently by Dan Kelemen (2011),
will find some interesting insights. Scheffer asserts that
according to the ethnographic approach he adopts,
“Adversarialism is no longer an all encompassing form as implied
by Kagan. It does not ‘capture’ an entire legal culture like,
for example, the ‘American way of law’” (p.xix). In this way,
some elements of Scheffer’s approach fit in with the growing
body of ethnographic literature in Political Science discussed
above. He argues that “micro-ethnographic analytics” are not
necessarily less political or ignorant of power relations than
macro or structural approaches (p.xx). Scheffer thus makes a
significant contribution to debates about adversarial legalism
and its existence beyond the U.S. by introducing a new
methodological approach. However, those interested in
generalizability or theory-building exercises will not find much
fodder in this volume beyond the first and last chapter.
Further, his contribution to the political science literature on
adversarial legalism should not be overstated. The book’s
contrasting of adversarial legalism in the USA and the UK merits
little more than a footnote. The question of power remains
largely under-explored.
The unifying element of the series of micro-studies that compose
this volume is the Crown Court. The book however lacks a
justification for the selection of this institution as a case
meriting scholarly attention. Scheffer writes that “[f]or an
exploration of adversarialism-in-action I have chosen the
English Crown Court procedure – not the entire English legal
system – as the perfect example” (emphasis in original, p.xx).
Scheffer sees the Crown Court as displaying all the relevant
features of what he understands Kagan’s definition of
“adversarialism” to be, but does not account for why this
institution is a better illustration of the phenomenon than any
other judicial venue in any other country. The subtitle of the
book is also somewhat [*695] misleading in that much of the narrative
focuses as much on procedure and working practices in law firms
as well as between defence solicitors and barristers as it does
on court processes. It also focuses much more on the work of defence lawyers than prosecutors.
Different chapters of
Adversarial Case-Making will be of interest to different
audiences. The introductory chapter and particularly chapter
two, “Framing Law-In-Action,” will be useful for those teaching
graduate courses in legal ethnography or the sociology of law.
One of the most significant contributions of the book is the
practical examples it offers. The book will prove eye-opening
for those considering entering the legal profession, either as
solicitor or barrister. Chapter three would be fascinating
reading for anyone asked to appear in Court as an expert.
Chapter eight on “The Case in the Case System” would be useful
for anyone coming to grips with the foundations of the Common
Law legal system. Scheffer’s narrative occasionally slips into
jargon-dominated prose, which makes the book less accessible to
disciplinary outsiders or undergraduate students. For example,
in outlining the book’s contents he writes “…the procedure is
conceptualised as a multi-temporal event-process-relation. The
chapter offers methodical rudiments to account for the
procedure’s trans-sequentiality…” (p.xli).
Adversarial Case-Making’s
ethnographic and micro-sociological methods provide insights
that cannot be achieved other than through years of fieldwork
and the filing, coding and categorizing of mountains of
ethnographic data, such as files, documents, meeting notes,
transcripts and archive material. The added value of this
perspective is that through attention to discursive practices
Scheffer begins to unpack how meaning is constituted through
legal procedure. While political scientists might wish to see
more explicit discussion of the underlying power dynamics at
play, that objective was not a high priority of the research,
and this book should be appreciated for its complementary
perspective.
REFERENCES:
Goffman, Erving. 1981.
Forms of Talk. Oxford: Blackwell.
Kagan, Robert (2001)
Adversarial Legalism: The American Way of Law. Cambridge,
MA: Harvard University Press.
Kelemen, R. Daniel (2011)
Eurolegalism: The Transformation of Law and Regulation in the
European Union. Cambridge, MA: Harvard University Press.
Schatz, Edward (ed.) 2009.
Political Ethnography:
What Immersion Contributes to the Study of Power. Chicago:
University of Chicago Press.
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© Copyright 2011 by the author,
Lisa Vanhala.