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.
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.
© Copyright 2011 by the author, Lisa Vanhala.