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.
“Africa Needs Many Lawyers Trained for the Need of Their Peoples”: Struggles over Legal Education in Kwame Nkrumah’s Ghana
John Harrington and Ambreena Manji
In the late 1950s and early 1960s, the setting up of university law schools in many African nations led to often bitter battles over the purpose of legal education. The stakes in these struggles were high. Deliberately neglected under colonial rule, legal education was an important focus for the leaders of new states, including Kwame Nkrumah, the first president of Ghana. It was also a significant focus for expatriate British scholars and American foundations seeking to shape the development of new universities in Africa. Disputes centered on whether training would have a wholly academic basis and be taught exclusively in the University of Ghana or be provided in addition through a dedicated law school with a more practical ethos. This debate became entangled in a wider confrontation over academic freedom between Nkrumah’s increasing authoritarian government and the university, and indeed in wider political and class struggles in Ghana as a whole. Tensions came to a head in the period between 1962 and 1964 when the American Dean of Law was deported along with other staff over allegations of their seditious intent. This chapter documents these complex struggles, identifying the broader political stakes within them, picking out the main, rival philosophies of legal education which animated them, and relating all of these to the broader historical conjuncture of decolonization. Drawing on a review of archival materials from the time, the chapter shows that debates over legal education had a significance going beyond the confines of the law faculty. They engaged questions of African nationalism, development and social progress, the ambivalent legacy of British rule and the growing influence of the United States in these territories.
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.”
Faris Elias Nasrallah
Alternative dispute resolution (ADR) is an umbrella term to describe an array of social and institutional methods for resolving disputes. These methods offer individual and collective disputants a panoply of forum shopping options, each taking place in different intrinsic, inherited, and constructed cultural contexts. While not immediately apparent to lawyers or anthropologists, different ADR methods, including arbitration and mediation, in fact constitute the principal global tools utilized to resolve most international and interstate disputes concerning matters of investment, commerce, and industry. To grasp the magnitude of this necessarily requires both lawyers and anthropologists to break the barriers of habitual thinking about the nature and extent of their disciplinary and interdisciplinary work. This chapter outlines the prevalence and pervasiveness of ADR processes and practices both past and present, using ADR as an interface for reconceptualizing interdisciplinary boundaries, appraising the relationship between theory and practice, and understanding emerging social and legal practices.
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.
European law is a motley composition resulting from a multitude of sources. This contribution explores how an anthropology of law focusing on such an object first developed and how it is currently practised. The first section covers how nineteenth-century and early twentieth-century scholarship first approached the study of law and legal institutions from an anthropological point of view. Contemporary anthropologists look at these beginnings with scepticism, but an illustration of the background is necessary to understand how contemporary anthropology of law evolved out of (and eventually abandoned) an older tradition. The second section presents the purposes and the tasks of the discipline in today’s Europe. The fall of totalitarian regimes and the establishment of democracies brought about a new understanding of the purposes of law in Europe. Law and anthropology studies have thus explored a variety of themes linked to the transformations of European societies in recent decades. The third section considers how European institutions and the norms emanating from them (as opposed to national or local ones) have become an object of increasing attention from the point of view of law and anthropology scholarship. The making of a common law for Europe transforms Europe, and opens up new fields of enquiry at the same time. The conclusion highlights how the contributions coming from the field of law and anthropology have put on the research agenda crucial questions that mainstream legal studies do not address, and perhaps cannot address, except as a reflexive afterthought.
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.
The anti-rape and battered women’s movements of the 1970s and 1980s grew out of the women’s liberation movement. Early grassroots organizing around responding to rape and domestic violence relied heavily on community-based strategies including the creation of shelters and safe houses and feminist self-defense classes. Using the new vocabulary of the women’s liberation movement, feminist advocates soon began to critique existing rape and domestic violence law. Some advocates moved away from the grassroots community-based strategies to push for greater state intervention in rape and domestic violence via the criminal legal system. But the movement was not united in embracing such strategies. Feminist organizing reflected the tensions between competing visions of the role of the state in addressing gender-based violence., With the passage of the Violence Against Women Act in 1994, feminists favoring state intervention had successfully implemented their carceral agenda—a policy choice that is being reexamined today.
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.
International labor law was a paradigmatic field for public international law. This chapter chronicles the ambivalent move to embrace a less hierarchical and traditional understanding of legal ordering in transnational labor law. Evoking research on normative thickening through metaphorical recourse to the architect, landscaper, and gardener, this chapter challenges the starting assumption of order, calls for a long historical view that unbundles labor law from a narrow industrialization-centered narrative, and turns attention to the ways in which the labor law landscape can be held in motion. Underscoring the ways that labor sharpens understandings of transnational law, this chapter reads transnational solidarity and emancipation into a methodological account of transnational law.
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.