A rejoinder to Lawrence Rosen article on free will

• Main Author: Holden, Livia
• Other Authors: Institut des sciences juridique et philosophique de la Sorbonne - UMR 8103 (ISJPS), Université Paris 1 Panthéon-Sorbonne (UP1)-Centre National de la Recherche Scientifique (CNRS), European Project: 681814,Euro-Expert
• Format: Report
• Language: English
• Published: HAL CCSD 2023
• Subjects: [SHS.ANTHRO-SE]Humanities and Social Sciences/Social Anthropology and ethnology; First Nations
• Online Access: https://hal.science/hal-04217708; https://hal.science/hal-04217708/document; https://hal.science/hal-04217708/file/Holden%27s%20comment%20to%20Rosen%20-%20CA.pdf

International audience Rosen's invitation to think about free will in the context of the engagement of anthropologists as expert witnesses is a welcome challenge that touches at the potential of anthropologists' contribution to justice in diverse societies. Rosen argues that anthropologists acting as expert witnesses in criminal law should provide not only an opinion on whether the accused was constrained by a specific set of cultural references, which would be different from and conflicting with the ones of the majority society; but also, on whether the accused could have done differently. Rosen suggests that anthropologists acting as experts in court must evaluate the degree of free will that the accused have exercised or could have exercised when enacting a criminal behaviour, and therefore provide an opinion on whether "individuals are essentially limited in their choices by their culture or forced to choose between cultural attachment and cultural alienation." Rosen's interrogation rests on two assumptions that deserve further scrutiny: cultural defence and the criminal concept of causation. Cultural defence, which I argue is a particular type of cultural expertise, connects the use of anthropological knowledge with the mitigation of the sentence. The anthropological scholarship on cultural defence, which has developed mainly in America, has started as an effort to foster a better access to justice for the members of minority groups and First Nations. Anthropologists acting as expert witnesses for First Nations and members of minority groups have often engaged with cultural defence with the intent to redress the social inequalities that are inherent in state institutions. Cultural defence has had, however, a very mixed reception in the courts of law on the one hand because the language of anthropology has struggled to meaningfully translate for the judges, and on the other hand because cultural defence tends to establish a deterministic connection between certain behaviours and specific social groups. As ...