Of Doubt and Proof

Ritual and Legal Practices of Judgment

Daniela Berti, Anthony Good

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317086161
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

All institutions concerned with the process of judging - whether it be deciding between alternative courses of action, determining a judge's professional integrity, assigning culpability for an alleged crime, or ruling on the credibility of an asylum claimant - are necessarily directly concerned with the question of doubt. By putting ritual and judicial settings into comparative perspective, in contexts as diverse as Indian and Taiwanese divination and international cricket, as well as legal processes in France, the UK, India, Denmark, and Ghana, this book offers a comprehensive and novel perspective on techniques for casting and dispelling doubt, and the roles they play in achieving verdicts or decisions that appear both valid and just. Broadening the theoretical understandings of the social role of doubt, both in social science and in law, the authors present these understandings in ways that not only contribute to academic knowledge but are also useful to professionals and other participants engaged in the process of judging. This collection will consequently be of great interest to academics researching in the fields of legal anthropology, ritual studies, legal sociology, criminology, and socio-legal studies.

Chapter 1
Technicalities of Doubting: Temple Consultations and Criminal Trials in India

Daniela Berti

The notion of doubt has often been addressed in anthropology in relation to the question of belief. Anthropologists started to question the relevance of using the Western category of ‘belief’ to describe the practices and attitudes of the people they studied, notably after the publication of the critical approach developed by Needham (1972). By underlining the association generally made between belief and conscience, some authors preferred to replace the notion with other terms less linked to the idea of individual conviction, such as representation (Lenclud 1990; Pouillon 1993; Hamayon 2006; Schlemmer 2009); others started to consider doubt and scepticism as crucial aspects of ritual practices that had erroneously been underreported in fieldwork accounts (Boyer 1990; Beatty 1999; Rappaport 1999).¹

A debate parallel to that about belief then developed around the notion of reflexivity. In his introduction to a journal special issue, Højbjerg (2002) focuses on ‘reflexive attitudes’ such as doubt, incertitude or the ‘do as if’ adopted by people taking part in religious practices. Here reflexivity is intended not only in the sense that ritual actions are submitted to public debate among the audience or to diverging comments from the ritual specialists themselves. It is also considered as being the result of the organizational form of ritual action, including ritual language and the modes of transmission of religious ideas (Severi 2002). In other words, reflexive attitudes are not only part of a discursive register. They may also be devices completely integrated into the rules used in a specific institutional context of interaction.

In line with this perspective, I deal in this chapter with practices of doubting in two institutional settings found in the Himachal Pradesh region of the Indian Himalayas, which are both concerned with the process of judging.² My aim is not to investigate personal or cognitive experiences of doubting. By taking doubt as a matter of practice and technique, my aim is to see how doubting is managed and resolved in reference to decision-making processes. First of all I talk about temple consultations during which village deities, through their institutional mediums, are asked to arbitrate local conflicts and to give their verdict on people’s misconduct. These ritual procedures are then compared to the ways in which the techniques of doubting and proving are used in Indian criminal trials as well as in judges’ rulings.

Although temple mediums and judges may not appear to have anything in common, they do in fact share some similarities: both arbitrate cases, interpret or establish ‘facts’ and ‘truth’, and pronounce judgments and verdicts. In one case the arbitrator is a god’s medium who speaks on behalf of a village deity; in the other he is a professional judge who speaks in the name of the law.

In both contexts – ritual and judicial – the verdict is preceded by processes to either quell or develop any doubt, but in ways that are almost totally opposite in the two cases. With regard to the deity’s medium, the doubt that must be expressed or removed is, above all, the doubt that the person consulting the deity may have about the way the deity interprets their problem – because this interpretation may clash with their perception of the facts. However, given that the deity is considered to already ‘know the truth’, the doubt in question concerns whether the medium is really speaking on behalf of the deity and not on his own behalf.

By contrast, in the case of a judicial trial, it is the judge’s doubt that has to be disproved or confirmed, and during the trial the lawyer for the accused and the prosecutor have to produce a set of evidence and arguments in order to either sow or remove any doubt in the judge’s mind. Moreover, in his final ruling, the judge’s personal opinion about the facts has to comply with the way the notions of doubt and proof are used in legal codes and judicial procedures.

Consulting the Village God

I will first present this practice of doubting and proving in the context of medium consultations. At the time of ritual consultations (deopuchna) a village deity is made part of an interactional setting within which its presence is enacted by its human medium (gur or chela).³ The medium’s authority comes from the deity by whom he is supposed to have been chosen, although this divine selection has to be officially and publicly recognized during a special village ceremony. Once initiated, a medium has the duty to ‘presentify’ (Vernant 1985) the deity in all ritual festivals and also to hold regular consultations at people’s request.⁴ In exchange for his service as a medium he may be granted some tenancy rights over the deity’s property or he may receive part of the offerings made by those who come for a consultation.

Consulting a god is thus a highly institutionalized ritual context where the deity’s manifestation in the medium’s body, as well as the interaction which takes place between the deity and the people, is regulated by a series of procedures and formalized ritual techniques.

Moreover, many of those who attend these consultations also feel that they have institutional links with the deity, either because they have received some of the god’s land in exchange for their services at the temple (such as musicians, priests or administrators) or simply because they live within the area (har) over which the deity is considered to exercise its power. The multiple names people use to address the deity during a consultation – Maharaj (king), Bhagvan/Bhagvati (god/goddess) Mata (mother) or even Malik (landowner) – indicate the multiple registers on which the relationship between people and the deity is constructed. These ritual links and obligations have historical roots in the royal past as many of these deities received land donations from various kings of the region and were somehow considered as local rulers (Berti 2009). Their public role was recognized during the colonial period by the British administrators, who officially declared many village deities of the region owners of the land by recognizing the deity’s juristic ‘personality’ (Sontheimer 1964). The legal existence of a deity continues to be recognized in the post-colonial state to the point that a god may become the main petitioner in a court case (Malik 2010; Berti 2012b; Clémentin-Ojha 2012).

Interestingly, in a bureaucratic setting – for example before a judge or Deputy Commissioner – a deity is represented by the temple administrator since the medium plays no part in it. On the contrary, at village level the medium is the main means of accessing the deity.⁵ Through the medium the deity is directly questioned not only about settling personal or family problems but about its opinion on any major decision to be taken at village level.

Disputes among villagers are regularly brought before the deity who is asked to pronounce judgment and to propose a compromise between the parties. The deity’s verdict may sometimes even take a form of competition with the court of law when those consulting the deity are involved in an ongoing court case. This judicial role of the deity is specified during the ritual when the medium, when speaking on behalf of the deity, may say ‘The court is mine, justice is mine’ (Berti 2012a).⁶

During the consultation, the medium, who often belongs to a low-status caste, is addressed as if he were the deity, and what he says is considered to come directly from the deity. This is true in principle, at least. In practice, consulting a deity always involves undertaking a process of doubting, which is induced by the ritual procedure. As I will show in the next section, mediums have recourse to various techniques to deal with doubt, some of which are commonly used by all the mediums in the region, while others are specific to a particular deity.

The Presumption of Doubt: ‘Distributing Rice’

In ritual consultation, the possibility that people doubt what the medium⁷ tells them is fully acknowledged and the ritual procedure includes specific techniques of contestation and verification. Some of these techniques are codified in the gestures that the medium performs at each consultation. For example, at the very beginning of the séance, immediately after the deity has been ritually embodied in the medium, the latter takes out a lock of hair from his forehead. This gesture is described as a kind of promise he makes to speak ‘the truth’, which means that he will not speak for himself; he will talk only if and when the deity, as people say, ‘comes’ (ata he) into his body.

The general discourse is, in fact, that the deity’s presence in the medium is intermittent; it comes and goes – an idea that in itself leaves room for possibly doubting what the medium is saying. The gesture is presented as a sort of oath that the medium has to take before speaking: just like the judge who asks the witnesses to swear that they will speak the truth before the court, here the deity itself is said to ask its own medium to swear that he will not speak for himself, that he will be merely a vehicle for the deity’s speech.

At the very beginning, before the individual consultation begins, the medium starts by distributing a small handful of rice to each of those taking part in the consultation. This is another systematic, codified procedure that is followed every time a consultation is held. The one who receives the grains must count them and see if there is an odd or even number. If it is an odd number, it means that the person is ‘of one mind’, that he does not have any doubts, at least at this stage. On the other hand, if it is an even number it means that he has some doubt. For example, the expression ‘char vichar’ may be used among the audience, which means that if one has four grains this shows that the person has some thoughts. The person, or the other attendants, may then react by addressing the deity, for example with the following words: ‘O Maharaj! Why these thoughts? We don’t want any thoughts. We honour you’. In order to get rid of these thoughts, the person who is supposed to doubt has to throw away the grains and ask the medium to give him or her another handful of rice for as long as it takes to obtain an odd number.

This kind of interaction shows, on the one hand, how the person who is consulting the deity is considered to be somehow unaware of the fact that he doubts because the ‘thoughts’ (vichar) are presented as being independent of the person’s will. In fact it is the deity, not the person, who is asked by the audience to eliminate these vichar. An even number of grains of rice is in fact treated by people as a bad omen or as a negative presence rather than as indicative of the person’s mental attitude. On the other hand, the fact that the person has to throw the grains until he gets an odd number shows that the procedure of taking the grains of rice is meant not only ‘to check’ whether the person harbours some doubts, but ‘to make’ him not have any.⁸

Interactional Doubt: ‘Giving Rice’ and ‘Ore Pogre’

Once this collective process of eliminating the vichar is complete, interactions take place at a more individual level. The first person to be heard by the deity is again given a handful of rice and they again check the number. This giving rice and counting the grains may be repeated throughout the consultation, which may last some time, especially if the case proves to be serious.

In some cases, during the verbal interactions, the person consulting the deity appears to challenge what the deity says or to propose a different explanation of the problem from the one proposed by the deity. In one particular case, for example, a woman, who was well-known to the medium,⁹ did not agree with what the deity was saying about her situation. She was given rice many times but it was always an odd number – which meant that the woman had no doubts. She eventually counted an even number and threw away the rice because that meant that she did have some doubts. The medium then stopped giving her rice and started reproaching her for questioning what he (the deity) said. This case shows how, although the rice is meant to check whether the person has some doubts, it may be used by the medium to somehow accuse the person of not telling the truth and of challenging the deity’s verdict.

Another interactional form of doubting is the so-called ore pogre which literally means ‘round stones’ and refers to a procedure by which the person consulting the deity has to arrange three stones in the shape of a triangle on the floor. They have to mentally associate each stone with a possible cause of the problem. One stone may be associated, for example, with the idea that the person’s problem is due to an act of witchcraft; the second stone with the idea that what has happened to them is due to some punishment inflicted by a deity; and the third stone with the idea that the problem is due to some planetary movement. Once the person has made this mental association, the medium has to choose the stone to indicate the exact cause.

During the consultation, the medium may ask the person ‘to put ore pogre’ in different situations. He may do this when he considers that the person is – as the medium says – ‘in two minds’, meaning that he has some doubt. The request to put ore pogre appears to come from the deity itself and not from the medium. This is made explicit in ritual interactions as the person doing ore pogre continues to address the deity. In fact, up until the end of the consultation the possibility that the ‘medium’ is acting on his own behalf is never openly evoked by the audience. By contrast, it may be paradoxically suggested by the medium himself who, speaking on behalf of the deity, may say to the person ‘If you don’t believe my patru (‘recipient’, that is the medium), put ore pogre and I will tell you myself’. Although in ore pogre the medium has to select the stone, the procedure is presented as being somehow less dependent on the medium-as-a-man than the reply that he gives verbally during the consultation. The fact that a reply has been given through ore pogre is in fact referred to by people as ‘proof’ that the reply is ‘true’.

Sometimes ore pogre is recommended by the medium as a reaction to a person’s behaviour. For example, when the deity starts to say that a person’s problem is not due to any punishment, that it is simply due to difficult times, or to some inauspicious planets, the person may say ‘O Bhagvan, why don’t you want to tell me what has happened?’ The medium then asks the person to put ore pogre. To start with, the person usually refuses to do this because they do not want to challenge the deity. Thus, they may begin to say ‘No, deity, I don’t want to defy you, I don’t want any confrontation with you. Tell me in your own words [that is, through the medium]’. In such cases, people nearby may start asking the person to put ore pogre as though they want to convince them to accept – which the person eventually does.

Man: We don’t want to put ore pogre.

Medium: First of all you must put ore pogre and then I will explain to you and I will fulfil your request.

Man: Eh deity, tell us with your own words, we don’t want to put ore pogre.

Medium: You put ore pogre and I will tell you the outcome! Put ore pogre!

Other people: You must say it like that [verbally]! (field notes, Jagatsukh, 1995)

In some cases, the test with the three stones is a way for the person to check what the medium has already said to them verbally; at the same time it may be used by the medium to negotiate the person’s reply, and even to adjust or to change his initial reply as a consequence of the interaction he has had with the person. For example, in one case the medium told a woman that she was under a bad planetary influence (din dasha) but the woman did not like the idea of simply being affected by a bad planet as this was not regarded as a real explanation for the problem. She began to cry, showing that she was not satisfied with the reply, so the medium told her: ‘Put ore pogre and satisfy your own mind. [See] if there are some bad planets or if there is a bhut [ghost] sent by someone to harm you. Put ore pogre and then I will tell you myself!’¹⁰

The woman then put ore pogre and when the medium selected a stone, she let out a cry of joy, which implicitly indicated that the stone chosen was not the one with which she associated bad planets. The medium, ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures
• Notes on Contributors
• Foreword by Antoine Garapon
• Introduction: Technologies of Doubt in Law and Ritual
• 1 Technicalities of Doubting: Temple Consultations and Criminal Trials in India
• 2 Judging Destiny: Doubt and Certainty in Chinese Divinatory Rituals
• 3 Religious Uncertainty, Astrology and the Courts in South India
• 4 When Judges Feel Misjudged: Encountering Doubt in Ghanaian Courts
• 5 Doubt in Action: The Different Times of Doubt in French Assize Courts
• 6 ‘The Benefit of the Doubt’ in British Asylum Claims and International Cricket
• 7 In Doubt: Documents as Fetishes in the Danish Asylum System
• 8 Emotions as Evidence: Hearings in the French Asylum Court
• Afterword by Tobias Kelly
• Index