Connalssance anthropologique dans la salle de tribunal. Paradlgmes en conflit. Anthropological knowledge in the courtroom. Conflicting paradigms

In land claims cases presented by aboriginal peoples the burden of proof rests normally with the claimants. They have to substantiate the assertion that the territory in question was in their possession at the time it was colonised and that they formed "an ordered society" according to characteristics defined by the law, or that their usage is acceptable as customary law. In such cases anthropologists are often called upon as expert witnesses for the plaintiffs or the court. This article discusses the framing of anthropological knowledge produced within the legal context. In this context of opposing arguments constituted by a hegemonic order of alleged rationalism (or often "common sense" masquerading as rationalism), the reliability of information is established or dismissed through a process of opposing questioning by the parties' attorneys. This testing of anthropological knowledge may at times challenge a dominant perspective within the discipline, namely that which underscores notions of the past as constructed upon premises of the present, or the flexible and adaptive quality of most social entities. The anthropological perspective emphasises culture not as a cluster of established institutions, customs or forms of social organisation, but as responsive to changing internal and external conditions. In so doing, the perspective may invite the court's suspicion of being fuzzy, biased and unreliable. The article argues that, rather than abandoning our discipline's stance of refuting essentialist versions of "cultures" in order to adjust our testimony to the legal profession's preconceived ideas of "custom" and "tradition" as objective criteria of legal treatment, we should propagate the need for a pluralist conception. (Original abstract)