This chapter explores some legal and literary ramifications of “accident” in British law and society from the late eighteenth through the early twentieth century. This period saw changes in common law and legislation relating to accidents, including the emergence of negligence as a distinct tort and statutory provisions for employer liability and workplace compensation. The chapter turns on the institution of the deodand, a common-law rule that allowed inquest juries to assess liability for accidental deaths caused by non-humans. After such entities began to include industrial machines, the deodand was abolished by Parliament in 1846. Examining legal-historical cases and norms alongside literary-cultural representations, the chapter claims that the deodand’s disappearance, and concurrent transition to fault liability regimes, marked a loss in the understanding of accident. If the nineteenth-century emergence of modern accident law tended to simplify accidents into surrogates for human interaction, the deodand qua institution grasped how reckoning with accidents demands an alertness to human entanglement with non-human causality. Literary representations of vehicular accidents afford a glimpse of what was coming to be lost in this changing legal-cultural dispensation. From Thomas De Quincey to Thomas Hardy to E. M. Forster, the complex non-human, material, and affective dimensions of accident dissipate into the background, where they continue to supply narrative and formal motivation even as they leave human obligations and institutions in the light.
Richard P. Boast
This chapter examines the connections between the field of legal history and the various ways in which claims against states by indigenous groups are adjudicated and resolved. It focuses on ‘indigenous’ and ‘settler’ relationships, and on redress mechanisms in Australia and New Zealand. In both cases, the establishment of such mechanisms arose out of political and legal conjunctures within each country, and owed little to developments in international law. The Waitangi Tribunal in New Zealand and the Native Title Tribunal in Australia have very different functions, utilize different kinds of expert evidence, and operate in very different political and constitutional settings. While both bodies require expert evidence typically provided by non-indigenous specialist researchers, the required expertise in each case is different: anthropology in the Australian case, and history in New Zealand.
This chapter, which focuses on English law, considers preference for adoption in some circumstances from a comparative law perspective, before comparing the treatment of adoption to that of other forms of care: parental care, kinship care, foster care, and institutional care. It argues that although adoption is the most satisfactory outcome for some children, it should not be considered a panacea. While a range of options is available for children in England whose parents encounter difficulties in looking after them, the government has a stronger preference for adoption than is the case in many other jurisdictions. I view this preference with a critical eye, given that it is likely to be “easier” than investing properly in foster care services and other forms of lesser intervention.
This chapter discusses two domains of research into and theorizing about human emotions of interest to legal theorists and practitioners in the law. Written by a non-lawyer with expertise in English literature, narrative theory, and interdisciplinary empathy studies, it offers basic definitions of the terms “empathy” and “affect,” brief overviews of research areas, suggestions about the relevance of affect and empathy studies to law, and cautions about those applications’ limitations and liabilities. By no means prescriptive in intention, this chapter’s discussion of affect and empathy studies lays bare some of the underlying assumptions and critical attitudes of work in differing fields. All varieties of empathy, with their affordances and limitations, are resources for the rhetorical arts of persuasion. Writers and practitioners in the law should alertly consider the roles that empathy and affect play in the law, especially when legal abstractions, doctrines, and documents that evoke strong feelings are accorded the imaginative status of persons by means of Einfühlung.
This chapter describes cultural heritage law and management in Africa. Whether in the field of tangible and intangible heritage or the domain of movable and immovable cultural heritage, sub-Saharan Africa legislation and administration of cultural property have been blighted by the colonial past. Independence has not always been used as opportunity for a breaking off or breaking forth with the cultural heritage protection system installed by the former colonial power. It appears that the formulation and elaboration of cultural heritage laws are often designed on European concepts of the protection of cultural property. The laws are, therefore, not often adapted to the present African realities. This is a legacy of the colonial past. The chapter then considers the AFRICA 2009 programme, which has helped in many ways to enhance in manifold ways the conservation of immovable cultural heritage in sub-Saharan Africa through a sustainable development process.
This chapter begins by examining the origins of agonism in the German philosopher Friedrich Nietzsche’s early text “Homer’s Contest.” It then attempts to formulate a political interpretation of agonism that could provide law and legal studies a post-Marxist and Nietzschean critical position in which democracy is central. A first attempt at the formulation is an analysis of the constitutional theorist Carl Schmitt’s “antagonist” and “polemical” notion of politics that is based on a friend-enemy distinction, and of the consequences of such a notion for state constitutions and law. Schmitt serves as the background for the political theorist Chantal Mouffe, whose “agonistic pluralism” represents a conscious effort to moderate Schmitt’s existentially belligerent critique of liberalism into a workable politics in late modernity. Interpretations of agonism provided by William E. Connolly and Bonnie Honig and their possible links to law and legal studies are then briefly discussed. The chapter concludes that there is a kinship between political agonism understood in this way and a contemporary strain in political theory represented by, for example, Jacques Rancière. The roots of this kinship are traced finally to a post-Marxist tradition of “radical liberalism.”
This chapter examines existing ‘Alternative Dispute Resolution’ (ADR) options—such as negotiation, mediation, conciliation, and arbitration—with a view to assessing their efficacy in relation to cultural heritage disputes. Indeed, even a cursory consideration of the practice reveals that the vast majority of restitution claims arising in the past few decades have been settled through such means. Admittedly, this is due to the fact that ADR procedures combine important virtues. The first advantage of ADR resides in the parties’ power to tailor the settlement process according to their interests and the circumstances of the dispute. Second, private settlement is likely to be speedier and cheaper. Third, these mechanisms provide for flexibility and creativity. Fourth, since disputes are resolved out of the public eye, extra-curial resolution ensures confidentiality. Lastly, ADR entails neutrality and fairness.
This chapter examines the scholarship in the new and growing field of study of Islamic animal law. It starts by defining the field of animal law generally and then explaining what makes animal law scholarship Islamic. Turning to Islamic animal law, the chapter first explains the origins of the field and then discusses contemporary Islamic animal law scholarship, which dates to the early-twenty first century and has focused on questions of purity and the dog; causing animals harm; anthropocentricism; and slaughter and the designation of halal. The chapter concludes by identifying promising areas for future scholarship.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
While most anthropological analyses of native title remain in an applied mode of assisting anthropologists to better perform their role as expert witnesses in claims, recent research has sought to move beyond this professional discourse by drawing on Bordieuan concepts supplemented by ideas of individual agency in resolving key indeterminate requirements in the legal formulation of native title. In considering the interaction of law and anthropology in native title claims as the interaction of distinct social fields, each with its own habitus, submerged issues are brought to light concerning the differential reception of anthropological expertise and the willingness of some judges to overrule a disciplinary consensus. Anthropological analyses have also been broadened to include the effects of the native title process on the Indigenous participants, including tendencies towards a more rapid objectification and regimentation of traditional culture, intensification of disputes, and juridification of Indigenous lifeworlds. Some macro analyses attempt to situate native title claims as a particular statecraft of late liberalism. There remains plenty of scope for further research to link the analysis of native title to the perennial themes of legal anthropology.
The chapter describes the history of the anthropology of law from the mid-nineteenth to the mid-twentieth century. It shows how legal anthropologists failed to foreground the profound economic changes brought about by imperialism, especially the impact of markets for labour and goods, along with the consequent legal individualization. It places the development of the discipline of legal anthropology firmly within the context of imperial rule, emphasizing the centrality of the fact that the subjects of study were also subjected to empires. Situated within this context, legal anthropology shared imperial governments’ agenda of searching indigenous legal systems for modes of authority and for rule-based law. Even as it cast aside its early racist and evolutionist premises, the discipline’s new functionalist methodology, because it was not attuned to recognizing and analysing change, failed to understand how new ideas about property and coercive marketization were affecting the legal worlds of imperial subjects.
Human rights and anti-discrimination law address social inequalities faced by religious minorities in today’s societies, including their discrimination in the workplace. Legal rules are necessarily abstract, separated from current realities of vulnerable minorities. Abstract rules do not speak for themselves (what does the prohibition of ‘indirect discrimination’ really mean?), but require interpretation, and since much is at stake they become the subject of continuous contestations over meanings. Judicial decisions mediate between the abstract and the concrete, and create ‘semi-abstract’ norms; decisions interpret and apply the abstract norms in the law on the books, but are in turn themselves the subject of (re)interpretation in the legal, social, and political realm. Thus, the specific and serendipitous facts and circumstances of particular workplace disputes provide the material for constructing meaningful understandings of legal norms. These interpretations are not neutral, but are, rather, products of judicial policy.To illustrate the importance of taking stock of judicial decisions and their role in moving abstract legal norms towards the ‘shop floor of social life’, this chapter uses as case studies two European anti-discrimination cases – Achbita and Bougnaoui (2017) – involving female Muslim employees seeking to wear a headscarf in the workplace. A holistic law and society viewpoint should engage deeply with judicial decisions that interpret and apply abstract anti-discrimination norms. Developments in case law thus merit not only the close attention of legal scholars but of legal anthropologists as well, as the latter are interested in the percolation of enacted norms on the ground.
Western democracies have determined the extent and limits of free expression largely within rights-based frameworks. As captured by Mill’s classically liberal “harm principle,” expression is permitted except insofar as legislatures and courts deem it to cause some unacceptable harm. Through a review of certain texts foundational for democracy, however, we can identify principles different from the standard liberal principles. Beginning in ancient Athens, we discover that questions of legal legitimacy invariably become questions of civic participation; and civic participation is nothing if not expression. It is no exaggeration to suggest that Western political philosophy altogether begins with that observation: Plato’s Crito presents the West’s first systematic inquiry into the question of legal legitimacy—that is, the question of when the law can bind us through moral rightness, beyond sheer physical coercion. The law binds us precisely to the extent of the freedom we have enjoyed to disagree with it.
Disputes involving Olympic athletes can arise from a wide range of decisions made by a host of entities. A disputed decision may involve the eligibility of an athlete, employment of coaches and staff, organizational governance, doping, and commercial contracts. Three disputes involving athletes and the modern Olympic games show how arbitration has come to play a central role in resolving contested decisions of sporting associations. First, the case of sprinter Harry Reynolds illustrates the limitations of using national courts to challenge doping-related sanctions. Second, the eligibility struggles of Oscar Pistorius demonstrate how athletes and national sporting associations can benefit from arbitration’s efficiency. Finally, the case of Claudia Pechstein offers a recent example showing the deference given arbitration by national courts, for better or worse.
The world of reproductive technology, including donor gametes and surrogacy, brings new challenges to identifying parents and respecting children’s rights. An intending parent—married or unmarried—is not necessarily the genetic contributor to the resulting child. And children have interests in knowing the identity of their genetic progenitors. This chapter focuses on whom the law recognizes as parents when a child has been created through assisted reproductive technology. While the chapter traces how intent has emerged as the critical factor in determining parentage, it also shows how intentional parenthood might sometimes be in tension with functional parenthood. The chapter provides a brief history of the technologies and their implications for parentage law and children’s rights to know their genetic origins. It also considers how the law might better adjust to changing technologies and family structures to produce outcomes that respect the child, rather than abstract concepts of equality—or even the parents’ interests.
This chapter explores the protection of cultural heritage in Asia. Rapid socioeconomic transformation in East Asia and South East Asia has posed a serious challenge to the cultural heritage of the sub-regions. The substantial damage and destruction inflicted on the cultural heritage, coupled with the growth of public awareness on its importance for national identity, prompted the governments in the region to take action, in particular through promulgation of the laws and regulations for the protection of cultural heritage. In so doing, the meaning of cultural heritage has generally expanded beyond the traditional, tangible cultural objects into intangible and underwater cultural heritage. A series of international conventions for the protection of cultural heritage, adopted under the auspices of UNESCO, has undoubtedly provided much impetus. Also, the question of return or repatriation of cultural objects to their countries of origin looms increasingly large in Asia.
The sports agent performs a critical function as an intermediary between management and athletes by handling contract negotiations, endorsements, financial planning, and other associated activities. This chapter provides a history of athlete representation beginning in the 1920s with the efforts of Christy Walsh and Charles C. Pyle through the increased role of players associations during the final third of last century. In the 1980s, professional associations and state legislatures launched efforts to regulate agent behavior as a reaction to evidence of abuse. In the 2000s, these problems prompted the National Conference of Commissioners on Uniform State Laws to introduce the Uniform Athlete Agents Act, a legislative initiative ultimately adopted by over 80% of states, and the U.S. Congress passed the Sports Agent Responsibility Trust Act. Both initiatives addressed the tension between the NCAA’s amateurism standards and efforts by agents to attract clients before the completion of their eligibility.
Alexandra J. Roberts
This chapter examines the protectability and registration of athletes’ names, nicknames, and catchphrases as trademarks under federal law. More and more athletes are seeking to register their names, nicknames, catchphrases, and fan slogans as federal trademarks in an attempt to monetize their fame and cultural capital. However, their goals in filing those applications are not often in accord with the traditional goals of trademark law. After providing an overview on trademark use and registration, the chapter discusses some of the limitations for trademark protection, including those based on distinctiveness, false association, and confusion. It also explains how trademark doctrines affect athletes’ ability to protect certain words or phrases as trademarks. Finally, it considers how the general goals of trademark law correspond to an athlete’s desire to protect words and phrases associated with him or her and prevent others from appropriating them.
This article explores the relationship between respect for individual autonomy and the law governing end-of-life treatment in the United States. It begins with a review of the law governing treatment decision-making for competent adults, incompetent adults, and children. It then turns to the issue of determining death. After that, the article discusses the limitations of the autonomy-based approach in addressing three areas of end-of-life law: “futile” treatment disputes, treatment decisions for incompetent patients, and access to physician-assisted death. It concludes that courts and other legal decision-makers will face pressure to consider the proper role of quality of life, cost, medical judgment, and patient vulnerability in determining end-of-life law.
This chapter examines how civil liability assessments and criminal convictions have affected the legality of blood sports. Blood sports can be divided into three categories: human versus human contests, human versus animal sports, and animal versus animal fighting. For over a century, blood sports have been under both social and legal attack, resulting in significant changes in most of the historic forms of combat worldwide. The chapter begins with an overview of the most popular violent sports today, including contact sports such as American football and ice hockey. It then considers criminal prosecutions and civil lawsuits that arise from contact sports, including the “concussion suits” filed on behalf of athletes who suffered head injuries. It also discusses the doctrine of assumption of risk in sports and concludes with an analysis of how legislative intervention can obviate private tort liability for latent, chronic injuries to the brain of players.