Meet Kerstin Bree Carlson
How do we ensure that an - often implicit - bias does not affect law and legal justice? Kerstin Bree Carlson, an Associate Professor at the Department of Law and one of the emerging career scholars in the SAMF Talent Track, suggests that countries that apply transitional justice methods will have less biased court processes. To test this hypothesis, she will compare terror trials from Colombia, Ireland, France, and Denmark. Read a Q&A with Kerstin Bree Carlson.
What research idea lies behind your participation in the Talent Track?
My project proposes to use content analysis methods to demonstrate implicit and explicit bias in law. My hypothesis is that countries that apply transitional justice methods will have less biased court processes than countries that don’t. I am comparing Colombian and Irish terror trials to French and Danish terror trials; I expect that Colombian and Irish laws and trials will show less implicit and explicit bias towards defendants than Danish and French trials.
How did you become interested in your field of research?
I am so lucky as to work on the world’s most interesting questions: what laws do for us, how they do it, and why we’ve structured them the way we have. I feel like once you think of how law is a social tool designed to mediate conflict and enable cooperation, refereeing a system with rules we all agree to instead of raw power and self-interest, everyone would want to work on these questions!
What research question would you above all like to find the answer to? And why is that?
I am very surprised and bothered by the way that we in Europe have ceded rule of law protections for social “out groups.” The rise of institutional Islamophobia is one glaring example. In a system where protection of human rights is the root of government legitimacy, it is surprising to see courts uphold states’ discriminatory treatment of Islamic practice and belief. In 2014 and 2017, the European Court of Human Rights upheld states’ regulation of Islamic attire, agreeing that “living together” requires that we all show our naked face in public.
In 2018, the Danish Supreme Court revoked the Danish passport of a dual national who had joined ISIS in Syria. In deciding whether to remove this man from Denmark, where he has lived all his life and where his wife and son live, the Court determined that his daily practice of Islam made him more connected to Tunisia, the country his father is from, than Denmark. Beyond the troubling details of this individual case, the legal rationale in this decision fundamentally challenges the core freedoms of belief, expression, and ideology central to European rights-based states.
When state security is threatened, rights are always the first casualty. But governments always prefer obedient populations, and rights are a necessary antidote to state overreach, injustice, or authoritarianism. Law and its institutions are sites where the balance between security and rights is contested and established.
My project theorizes that transitional justice is a useful and appropriate tool for addressing jihadist terror in Europe. Transitional justice is the policy tool that helps developing or post-conflict states construct themselves around liberal, rule of law systems. The central compromise inherent in transitional justice is recognition of the legitimacy of the other party; once legitimacy is acknowledged, it becomes possible to make agreements and rules (i.e., to introduce law in place of raw power and self-interest). I think that transitional justice approaches might assist Europe in finding its way back towards rights recognitions for a particularly villainized minority out group.
Which impact do you expect the Talent Track will have on your career and on your research field in general?
Talent Track is assisting me in developing an ERC proposal, including training in the methodology I’ll need to test my hypothesis and supporting field work for one case study.
I am familiar with content analysis methods and arguments, but I have never used them in my own ethnographic and doctrinal research. Talent Track will assist me with training in content analysis so that I can develop my project applying these methods, as well as supporting a case study of Danish terror trials using the research methodology I develop.
Which impact do you expect your research to have on the surrounding society?
There is strong resistance, in some quarters, to recognizing the impact that bias makes. Although social psychologists demonstrate that our deeply held convictions can be altered by very minor physical or emotional stimuli, such as being hungry or tired, holding a cold drink in our hands, or having our self-esteem challenged, many of us resist the idea that we are biased, racist, or discriminatory. This is especially true for implicit bias, which can be so subtle that we are not consciously aware of it.
Bias studies reveal the fundamental subjectivity of human interaction. Rule of law legitimacy, however, is founded on objectivity; lady justice is blindfolded as she holds the scales. Thus, law makers and practitioners are particularly resistant to recognizing how bias, particularly implicit bias which is often invisible to its host, impacts law and legal practice. My project seeks to reveal bias in European treatment of citizens accused of terror. Demonstrating this bias through quantitative methods should impact the conversation of how our law and legal institutions demonstrate bias as they address terrorism.
If my hypothesis regarding transitional justice proves correct, it will suggest that a transitional justice approach could offer a solution to the structural bias that presently challenges European rule of law practices and ideologies. I hope that my research proposes solutions to help us exit the security versus human rights impasse in which we currently find ourselves regarding European jihadi terrorism, so that we can reestablish free and equal rights for all citizens, irrespective of race or religion.
Kerstin Bree Carlson
Kerstin Bree Carlson is an Associate Professor at the Department of Law.