The courtroom as an affective arrangement: analysing atmospheres in courtroom ethnography

Abstract

This article proposes a methodological approach to courtroom ethnography by developing the idea of the courtroom as an affective arrangement. In the courtroom, humans and their linguistic utterances, but also material objects and infrastructures, visuals, voices, and sounds are relationally entangled. This is the analytical entry point for ethnographically describing the atmosphere of a court proceeding without reducing atmosphere either to the result of courtroom talk or to the emotional experiences of the participants. For a thick ethnographic description of courtroom atmospheres, the ethnographer should point out how all kinds of different bodies perform in the theatre of power that is a court proceeding.

Keywords:

• Courtroom ethnography
• affect theory
• law and affect
• law and emotion
• law and language
• International Criminal Court
• phenomenology

Acknowledgements

The research on which this article is based was funded by the Collaborative Research Center Affective Societies (DFG-SFB 1171) at Freie Universität Berlin. I am indebted to numerous conversations and exchanges with colleagues about the issues discussed in this text, including Olaf Zenker, Sigurd D’hondt, Antje Kahl, Birgitt Röttger-Rössler, Gabriel Scheidecker, Thomas Scheffer, Robert Walter-Jochum, and Deniz Yonucu, and to all co-presenters and participants at the panel “Who is Afraid of Official Law?” at the Biannual Conference of the German Anthropological Association in Berlin in October 2017, where I was able to present an abridged version of this article as a conference paper. My thanks go to Leonie Benker, Brian Donahoe, Larissa Vetters, and two anonymous reviewers who extensively commented on earlier versions of this text. I would like to thank Dik Roth and the editorial team of the Journal of Legal Pluralism and Unofficial Law for a very rewarding review and editing process.

Notes

1 The terminological field on affective phenomena is vast, the most important being affect (Slaby and Mühlhoff 2019), emotion (Scheve 2019), and sentiment (Bens and Zenker 2019). In this text, I use the term feeling broadly as “a collective term for all felt experiences, including but not limited to the capacity and readiness to feel emotions” (Thonhauser 2019).

2 This visit, as many others, was part of a four-year research project on the ICC’s transitional justice proceedings and its outreach work in Africa. The research project was funded by the German Research Foundation (DFG – SFB 1171).

3 International Criminal Court, The Prosecutor v. Dominic Ongwen, Pre-Trial Chamber II, Decision on the Confirmation of Charges Against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-Red.

4 A confirmation of charges hearing is a pre-trial proceeding at the ICC in which it is determined whether there is sufficient evidence to establish substantial grounds to believe that the accused has committed the crimes with which he is charged, see Art. 61(7) Rome Statute.

5 The quotes from Jeremy Elderfield are from the transcript of the confirmation of charges hearing from 21 January 2016, ICC-02/04-01/15-T-20-Red-ENG.

6 The topic of atmosphere is not new to anthropology but has traditionally been described in different terms. Emile Durkheim’s (1912) concept of effervescence in his studies on religion, Marcel Mauss’ (1925) concept of mana in his studies on the economy, and the way Clifford Geertz (1973) writes about the role of moods for ethnography have a certain similarity with the idea of atmosphere. For a respective review on the literature, see Schroer and Schmitt (2018).

7 On the armed conflict in Northern Uganda from 1984 until about 2006, which is the historical context for the trial against Dominic Ongwen, Sverker Finnström (2008) has written an ethnography that can serve as a fine example of mobilizing a phenomenological concepts for ethnographic writing.

8 While an intensive investigation into people’s subjective emotional experiences is largely absent from the courtroom ethnography literature, Susan Hirsch has shown in her pathbreaking ethnography In the Moment of Greatest Calamity (Hirsch 2006) how a thick description of one’s own emotional and affective experiences can benefit ethnographic writing. In this exceptional ethnography of the terror-trial against the murderers of her own husband, she masterfully writes her own emotions into the narrative.

9 Anthropologists who have explicitly referred to affect theory in their ethnographic works include Yael Navaro-Yashin (2012) and Kathleen Stewart (2007).

10 Lutz remarks that “the recent literature on affect rehearses work done in the 1980s” (2017, 188), by which she refers to the classical texts of the anthropology of emotion (Briggs 1970; Rosaldo 1984; Lutz 1988; Abu-Lughod and Lutz 1990). A more recent line of the anthropological research on emotion is the Berlin school of psychological anthropology (Röttger-Rössler 2004; Stodulka 2016; Scheidecker 2017; Reynaud 2017; Sakti 2017).

11 The philosopher of language J. L. Austin (1962) has most prominently expressed the argument that speaking is a practice with consequences, that one can do something with words. Central is herewith his famous distinction between constative and performative utterances. In his argumentation, it is often the case that speech acts not only describe reality (the constative utterance), but also produce and transform it (the performative utterance). Austin sees legal language as a prototypical example of the performative dimension of language, a perspective which plays a central role in the legal theory of poststructuralist philosophy (Derrida 1989; Butler 1997). What is said and done in the courtroom is not only representing the world outside of it, but it is a powerful actor in creating the structures of meaning through which it is represented.

12 It has to be added that the term “event” in (international) law is a complex concept while at least two interrelated layers have to be differentiated: On the one hand, the court proceeding itself is an event, the political trial even more publicly so (Christodoulidis 2011). On the other hand, historical events are the “raw material” for international law, because about them court proceedings are held.

“But these historical events cannot be totally and finally reduced to international law’s own ends… No conditioning, contextualizing and reduction can totally neutralize the disruptive potential of events. They remain open to new modes of appropriation, new interpretations.” (Johns, Joyce, and Pahuja 2011, 7–8)

13 On law’s overlapping temporalities, see also Benda-Beckmann (2014).

14 Some strands of affect theory sharply differentiate affect and emotion and criticize emotion research for its focus on cultural and discursive conceptualization instead of the inchoate potentiality of the body (Massumi 2002). This understanding is not necessary though (Lutz 2017, 187), and there is analytical writing that approaches the realm of affect and emotion by using the terms nearly synonymously (e.g. Ahmed 2004).