Canberra, ACT: ANU E Press, 2011. x, 326 pp. (Maps, tables, figures.) A$24.95, paper. ISBN 978-1-9218-6242-7.
Law’s Anthropology is a one-of-a-kind book, although other books cover some of the same ground. The author, Paul Burke, hopes to carry out a sociological study of applied anthropology and to understand the interactions between some of the key actors in the legal system, namely, the judges, the anthropologists, and the Native litigants. To do this, he examines in careful detail key cases in Australian native rights litigation, including Mabo. Burke relies on his own interview data with anthropologists who have provided expert testimony and with litigants themselves. (He writes that he was less successful in getting interviews with judges in these cases, something that I found in my own research into Aboriginal litigation in Canada). Burke also relies on his careful reading of court transcripts and what he terms the anthropological archive. In doing so, he has created a primer for expert witnesses engaged in Aboriginal litigation worldwide. There are several sections that people giving expert testimony would do well to read.
Burke notes that there are few other published insider sources that cover this ground, and for a good reason (which he doesn’t provide). The reason is that material published on one’s thoughts about the legal system would likely be fodder for contentious cross-examination in subsequent bouts of expert testimony. Burke does note, however, at the very end (279) that commentary that “goes beyond the usual bounds of acceptable commentary in most academic legal journals” in the attribution of “active and constructive intervention” by a particular judge in a particular case, if made in court, he writes, might lead to contempt charges (279). But Burke is a critic at heart, and freely challenges and grades the performances of everyone involved in Australian native rights litigation. He will no doubt make both friends and enemies with this book.
Burke is a former Australian council lawyer who encountered anthropologists, and, intrigued, entered the ANU anthropology program, earning a PhD in 2006. He has since worked as a consultant anthropologist on native title claims. He’s seen the legal system in action from several vantage points and is in a good position to comment on what he terms “law’s anthropology.” He doesn’t appear to give expert testimony himself, so he is free to write this book without fear of adverse cross-examination.
Anyone who has given expert testimony in Native cases surely must have worried about the strange process whereby anthropological ideas, concepts and data are rendered into legal categories. Native categories of thought are themselves twisted into anthropological categories, and Burke provides a glimpse of the multiple refractions involved in native litigation. Law’s Anthropology opens with a blow-by-blow account of the development of anthropological theory in Australia in order to show the underlying disputes regarding issues such as land ownership, which anthropologists were forced to address in giving expert testimony. He notes that debates that would have run their course and been largely discarded are revitalized by their entry into legal proceedings. He shows how subtle differences in anthropological perspective can be amplified and distorted in the courts, especially as experts are forced through cross-examination into increasingly tenuous positions. This useful and sometimes fascinating account shows, painfully, how these debates remain unresolved and how particular anthropologists have stumbled over the anthropological archive and earlier theorizing.
In a memorable passage Burke writes that “free anthropology” is “enslaved” by law and becomes “law’s anthropology” (24). Anthropologists compete for control of anthropological ideas with judges, who often have an “ideal image of science” (21) and expect that anthropology should resemble hard sciences. Judges may act as their own amateur anthropologists, making their own evaluations of earlier anthropological theory and data. Indeed, they may view the anthropological archive as needing no contextual knowledge. And, the work of anthropologists who venture into the courts may violate the rules of evidence and require packaging in new and unfamiliar formats, which pressures anthropologists to simplify their ideas.
There are still more difficulties ahead, Burke notes. In one case he examined, a judge rejected an anthropological report because it was produced for litigation, and in another because the anthropologist was too close to the litigants and therefore lacked objectivity (233). A judge warns against participation by the anthropologist in the development of the Indigenous litigant’s case, yet Burke shows the resultant problems for anthropologists whose perspectives do not coincide with those of the litigant who has hired them. Anthropologists are suspected of being influenced by Aboriginal “dogma” (219), and therefore lack credibility, a hideous problem following the Hindmarsh case.
All of these problems push Burke to conclude, not surprisingly, that law is about drawing boundaries and anthropology about openness to new ideas (94). Further, judges retain “structural superiority” to anthropological experts, whose testimony they may dismiss or treat lightly for these and other problems that Burke describes and illustrates with detailed examples. He provides a homology to develop this line of thought, as follows: ethnography: theory : : fact: law. But in the judicial field, he notes, “the fact—law distinction is pervasive and relentless, even forcing anthropological evidence to become more fact-like by announcing a lack of interest in the theoretical entanglements of ethnographic fact” (277). Even so, law and anthropology share and borrow ideas, a process which can lead to the “swallowing and digesting” of anthropology (278).
Burke concludes that his work doesn’t offer solutions to the many practical problems of performing as an expert witness. However, this carefully written and biting examination of the fraught relationships between fields of practice raises the right questions, provides the right examples, and gives insight into a number of intriguing questions, including ones that I am interested in: such as, how have legal processes changed anthropological theorizing itself? (Look at pages 219 and 277 for clues).
Bruce Granville Miller
The University of British Columbia, Vancouver, Canada
pp. 196-198