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Reckoning with Law—and with Legal Anthropology 法律的清算与法律人类学
Pub Date : 2023-06-01 DOI: 10.3167/jla.2023.070101
Mark Goodale
I recently experienced one of those unsettling, context-imposing moments that cause the ground underfoot to feel suddenly loose, threatening to dissolve into quicksand – until, that is, the moment passes, as it inevitably seems to do. It happened during a university-wide lecture by Mark Williams, a professor of palaeontology at the University of Leicester and the Palaeontological Association's ‘exceptional lecturer’ for the academic year 2022–2023. This means he was chosen to go on a global tour of universities to give a talk for wider audiences that was intended to show the relevance and importance of palaeontology for questions of global significance. The title of Williams's lecture was ‘The Anthropocene: Planetary Scale Change to the Biosphere and the Future Well-Being of Planet Earth’.
我最近经历了一个令人不安的时刻,让脚下的地面突然感到松动,有溶解成流沙的危险——直到,那一刻过去,因为它似乎不可避免地要这样做。这件事发生在莱斯特大学古生物学教授、古生物学协会2022-2023学年“杰出讲师”马克·威廉姆斯(Mark Williams)在全校范围内的演讲中。这意味着他被选中到全球各地的大学做一次演讲,向更广泛的听众展示古生物学对全球意义问题的相关性和重要性。威廉姆斯演讲的题目是“人类世:全球范围内生物圈的变化和地球未来的福祉”。
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引用次数: 0
Concorde's Tyres 协和式飞机的轮胎
Pub Date : 2023-06-01 DOI: 10.3167/jla.2023.070104
Will Rollason
Abstract This article explores the Concorde crash of 25 July 2000, seeking to show how law and regulation do crucial ontological work in the maintenance of commercial flight, and likely other aspects of modern techno-social arrangements. I argue that law and regulation cannot be seen as an exteriority, constraining and shaping the production of technology, but should be viewed as a component in the production of a physico-legal reality that a machine embodies. The Concorde disaster, by this logic, happened when that reality proved to be inadequate. It sparked a physical redesign of the aircraft, but also an intertwined effort to repair it normatively. Commercial flight is thus a total phenomenon comprising physical and social laws. This, I suggest, is the ontological significance of law and regulation in the production and maintenance of airliners.
本文探讨了2000年7月25日的协和式飞机坠毁事件,试图展示法律和法规如何在维护商业飞行中发挥关键的本体论作用,以及现代技术-社会安排的其他方面。我认为,法律和法规不能被视为限制和塑造技术生产的外部因素,而应被视为机器所体现的物理法律现实生产中的一个组成部分。按照这种逻辑,协和式飞机的灾难发生时,事实证明现实是不够的。它引发了对飞机的物理重新设计,但也引发了对其进行规范维修的相互交织的努力。因此,商业飞行是一个包含物理规律和社会规律的整体现象。我认为,这就是法律法规在客机生产和维修中的本体论意义。
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引用次数: 0
Indigenous Peoples and Criminal Justice 土著人民与刑事司法
Pub Date : 2023-06-01 DOI: 10.3167/jla.2023.070103
Rodrigo Arthuso Arantes Faria
Abstract In this article, I draw on the specific case studies of the Xakriabá people and the Judicial District of Manga, and the Maxakali people and the Judicial District of Águas Formosas, both located in the Brazilian state of Minas Gerais. I examine how criminal justice officials apply dominant concepts of indigeneity in these regional contexts, showing how they arbitrarily construct and deploy the category of Indigenous person based on essentialist assumptions of indigeneity that ignore Indigenous peoples’ self-identification as such. This adds to scholarship on how indigeneity is institutionally conceived and applied within the justice system in ways that contrast with Indigenous notions of it and aim to deny Indigenous persons recognition in legal processes. By providing specific accounts of how Indigenous defendants are treated in the justice system and experience loss of rights, I consider the professional practices of state officials within the broader framework of Brazilian indigenist policies.
本文以巴西米纳斯吉拉斯州的xakriab人和Manga的司法区,以及Maxakali人和Águas Formosas的司法区为具体案例进行研究。我研究了刑事司法官员如何在这些地区背景下应用土著的主导概念,展示了他们如何根据土著的本质主义假设任意构建和部署土著的类别,而忽视了土著人民的自我认同。这增加了关于如何在制度上构思和在司法系统内应用土著的学术研究,其方式与土著的概念形成对比,并旨在否认土著人民在法律程序中的承认。通过提供土著被告在司法系统中如何被对待和经历权利丧失的具体描述,我在巴西土著政策的更广泛框架内考虑了国家官员的专业做法。
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引用次数: 0
Durable Resolutions 持久的决议
Pub Date : 2023-06-01 DOI: 10.3167/jla.2023.070102
Yotam Gidron
Abstract Studies that examine the administration of justice in refugee camps highlight the legal plurality that commonly characterizes such sites, and the normative friction it creates between government and humanitarian institutions and community structures. Drawing upon research among South Sudanese refugees in Uganda and Ethiopia, this article foregrounds the place of transnational networks and temporal experiences in shaping processes of dispute resolution among refugees. South Sudanese refugees regularly turn to community structures to arbitrate disputes, even when these disputes relate to crimes that, under the laws of host states, must be reported to the authorities. As opposed to the individualized formal justice systems of host states, which are limited by borders, community justice links refugees across countries, draws on understandings of past communal events and relationships, prioritizes communal harmony and order, and thus produces a sense of continuity under conditions of dispersal and extreme precarity.
调查难民营司法管理的研究强调了这些地点通常具有的法律多元性,以及它在政府与人道主义机构和社区结构之间造成的规范性摩擦。根据对乌干达和埃塞俄比亚南苏丹难民的研究,本文展望了跨国网络和时间经验在形成难民之间争端解决过程中的地位。南苏丹难民经常求助于社区机构来仲裁争端,即使这些争端涉及根据东道国法律必须向当局报告的罪行。与东道国受边界限制的个体化正式司法系统相反,社区司法将各国难民联系起来,利用对过去社区事件和关系的理解,优先考虑社区和谐与秩序,从而在分散和极端不稳定的条件下产生一种连续性。
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引用次数: 0
In support of free-standing Indigenous legal systems 支持独立的土著法律制度
Pub Date : 2022-12-01 DOI: 10.3167/jla.2022.060205
B. Miller
US and Canadian approaches to tribal legal orders have taken different paths, and here I argue that the Canadian model should move towards free-standing Indigenous courts as they currently exist in the United States. The Canadian approach has focussed on the issue of over-incarceration of Indigenous prisoners, but even newer efforts have stopped short of recognising at least partial criminal and civil jurisdiction. The Canadian approach fails to support Indigenous jurisdiction and community rebuilding and leaves Indigenous peoples vulnerable to non-Indigenous judges, who fail to accommodate Indigenous approaches to justice. Early attempts at shared jurisdiction have been naïve regarding Indigenous internal social processes and the struggle over what constitutes proper cultural practices. My data come from my own work with Coast Salish tribes, where I have studied tribal histories and legal practices on both sides of the international border as well their views of federal policy in both Canada and the United States.
美国和加拿大对部落法律秩序采取了不同的方式,在这里我认为加拿大模式应该向独立的土著法院发展,就像目前在美国存在的那样。加拿大的做法侧重于过度监禁土著囚犯的问题,但即使是较新的努力也没有承认至少部分的刑事和民事管辖权。加拿大的做法未能支持土著司法和社区重建,使土著人民容易受到非土著法官的伤害,而非土著法官未能适应土著的司法做法。共同管辖权的早期尝试是naïve关于土著内部社会进程和关于什么是适当的文化习俗的斗争。我的数据来自我自己对海岸萨利希部落的研究,在那里我研究了国际边界两侧的部落历史和法律惯例,以及他们对加拿大和美国联邦政策的看法。
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引用次数: 0
Courts of being and non-being 存在与非存在的法庭
Pub Date : 2022-12-01 DOI: 10.3167/jla.2022.060202
J. Upton
This article explores the challenges faced and practices developed by Taiwanese judges in cases involving Indigenous laws and lands to fulfil the objectives of Taiwan's Indigenous court units. Despite the official establishment of these units, local actors debated their real presences within Taiwan courts. Non-Indigenous actors administered proceedings, state laws and justice practices applied, the language of Han mainstream society dominated legal discourse, training for judges and prosecutors was minimal, and court unit proceedings generally replicated ordinary court procedures, rendering the units ambiguous as distinct institutions. While some judges ignored these ambiguities, other judges endeavoured to integrate Indigenous world views, ontologies and meanings into applications of new laws and procedures through varied strategies. In practice, these exploratory approaches constituted the Indigenous court units in Taiwan courts. While these strategies may, in certain circumstances, create possibilities for improving Indigenous recognition within the national court system, they could also work against Indigenous people in their bids for justice through the courts.
本文探讨台湾法官在涉及原住民法律与土地的案件中所面临的挑战,以及为实现台湾原住民法院单位的目标而发展的实践。尽管这些单位是官方设立的,但当地演员在台湾法庭上对它们的真实存在进行了辩论。非土著行动者管理诉讼程序,国家法律和司法实践适用,汉族主流社会的语言主导法律话语,对法官和检察官的培训很少,法院单位诉讼程序通常复制普通法院程序,使单位作为不同的机构模糊不清。有些法官无视这些含糊不清之处,而另一些法官则努力通过各种策略将土著的世界观、本体论和意义纳入新法律和程序的适用。在实践中,这些探索性的方法构成了台湾法院的本土法院单元。虽然这些战略在某些情况下可能有助于提高土著在国家法院系统内得到承认,但它们也可能不利于土著人民通过法院争取正义。
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引用次数: 0
Indigenous struggles to overturn present-day discrimination and achieve differentiated rights in Roraima, Brazil 巴西罗赖马的原住民抗争推翻现今的歧视,争取不同的权利
Pub Date : 2022-12-01 DOI: 10.3167/jla.2022.060203
S. Baines
This article examines affirmations of differentiated Indigenous rights that are present in national and international legislation in the State of Roraima, Brazil, through significant efforts by Indigenous political movements, including activities by Indigenous lawyers. By creating internal mechanisms for solving conflicts, such activists contribute significantly to realising rights present in the Federal Constitution (1988) and the Indian Statute (Law 6.001/1973), and in international legislation such as the International Labour Organisation (ILO) Convention 169 (1989). These mechanisms include the setting up, by the Indigenous Council of Roraima (CIR) and local Indigenous leader councils, of written customary laws (regimentos internos) as an alternative for solving conflicts to avoid sending people to violent and overcrowded prisons. The efforts of Indigenous organisations, activists, and lawyers also seek to overturn a commonplace notion of equality before the law, which fails to consider existing inequalities.
本文考察了巴西罗赖马州通过土著政治运动的重大努力,包括土著律师的活动,在国家和国际立法中对土著差别权利的肯定。通过建立解决冲突的内部机制,这些活动家为实现联邦宪法(1988)和印度法规(法律6.001/1973)以及国际劳工组织(ILO)公约169(1989)等国际立法中的权利做出了重大贡献。这些机制包括由罗赖马土著委员会(CIR)和当地土著领导人委员会建立书面习惯法(internos),作为解决冲突的替代方案,以避免将人们送往暴力和过度拥挤的监狱。土著组织、活动家和律师的努力也试图推翻法律面前人人平等的俗套观念,这种观念没有考虑到现有的不平等。
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引用次数: 1
Legal aid amid bureaucracy 官僚主义盛行的法律援助
Pub Date : 2022-12-01 DOI: 10.3167/jla.2022.060201
A. Reinke, N. Bevilacqua
Disaster lawyers navigate bureaucratic impediments to insurance claims and settlement and federal recovery and relief, and they act as third-party facilitators for disaster-affected clients to help enable their survival efforts. The roles of such lawyers in navigating paperwork and bureaucratic processes on behalf of survivors, while assisting them in meeting basic daily needs, has become seen as being integral to recovery in these processes. We utilise findings from semi-structured interviews with disaster law practitioners working with disaster survivors in the south-eastern United States (SEUS) to examine the bureaucratic socio-legal life of disasters. We marshal bureaucratic violence literature to analyse disaster law practitioners’ perspectives of the socio-legal nature of disasters in the SEUS, demonstrating that the bureaucratic technologies of recovery are primary obstacles to expedient recovery and successful legal work with survivors.
灾难律师为保险索赔和和解以及联邦恢复和救济扫清官僚障碍,他们作为受灾害影响的客户的第三方调解人,帮助他们实现生存努力。这些律师的作用是代表幸存者处理文书工作和官僚程序,同时帮助他们满足基本的日常需求,这已被视为这些过程中恢复的组成部分。我们利用与美国东南部(SEUS)灾害幸存者工作的灾害法律从业人员的半结构化访谈的结果来研究灾害的官僚社会法律生活。我们整理了官僚暴力文献,分析了灾难法从业者对SEUS灾难的社会法律性质的看法,证明了恢复的官僚技术是权宜化恢复和与幸存者成功开展法律工作的主要障碍。
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引用次数: 1
Specialised Indigenous divisions in Taiwan's high courts 台湾高等法院专门的土著法庭
Pub Date : 2022-12-01 DOI: 10.3167/jla.2022.060204
Ting-Yi Tsai
This article incorporates judicial practice and related research to consider some of the shortcomings and issues relating to the goals of the specialised Indigenous court units. Specialised Indigenous court units, which have been in Taiwan's high courts since 2014, have lofty goals, but critical questions remain in terms of these expectations. Taiwan's high courts administer dozens of Indigenous cases annually, but few are related to Indigenous cultural issues. High court judges attend annual non-mandatory training programmes related to Indigenous people's issues; however, it is questionable whether judges are sufficiently knowledgeable in these fields. The toughest question many judges face is determining whether Indigenous practices are ‘facts’ or ‘customary laws’. If they are facts, then Indigenous defendants and their counsel must take the initiative to explain them; if they are customary laws, then judges must take the initiative to find and apply them. Other issues include how Indigenous cases are sometimes assigned to specialised military courts, a process in which defendants can lose their Indigenous status.
本文结合司法实践和相关研究,考虑与土著专门法院单位的目标有关的一些缺点和问题。自2014年以来,台湾高等法院就设立了专门的土著法院,它们有着崇高的目标,但在这些期望方面仍存在关键问题。台湾高等法院每年处理数十起土著案件,但很少与土著文化问题有关。高等法院法官每年参加与土著人民问题有关的非强制性培训方案;然而,法官在这些领域是否有足够的知识是值得怀疑的。许多法官面临的最棘手的问题是确定土著实践是“事实”还是“习惯法”。如果它们是事实,那么土著被告及其律师必须主动作出解释;如果它们是习惯法,那么法官必须主动发现并适用它们。其他问题包括土著案件有时如何被分配到专门的军事法庭,在这个过程中被告可能失去土著身份。
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引用次数: 0
Between Intention and Implementation 意图与实施之间
Pub Date : 2022-06-01 DOI: 10.3167/jla.2022.060102
Nurul Huda Mohd Razif
In 2018, news of a 41-year-old Malay man’s marriage to a Thai girl of 11 as his third wife broke out in the Malaysian media, catalysing nationwide concerns on the state of affairs of child marriage in Malaysia. This article analyses the news reports on this child marriage scandal and draws on my own long-term ethnographic fieldwork studying marriage and intimacy in the state of Kelantan to examine the ensuing public and religious debates concerning the amendment of Malaysia’s Islamic family law enactments. I demonstrate that state- and federal-level efforts at curbing child marriage have failed largely due to the lack of consensus amongst the religious and political elite, as well as members of the Muslim community, on what the purpose of marriage is, who – and whose interests – it is meant to protect, and what measures should be implemented to prevent its abuse. Furthermore, child marriage in Malaysia has been ideologically sustained by a rhetoric of ‘masculinist protectionism’ in which men justify their marriage to young girls as an act of care and benevolence to mask a reality of coercion and violence. However, legal reform on child marriage will not only be ineffectual but also inadequate if it is not enforced in tandem with other initiatives such as seeking poverty eradication in rural regions; looking at the feasibility of contracting eloped marriages in Southern Thailand; and carefully reconsidering Malay adat and Islamic norms promoting young and early marriage as alternatives to prolonged periods of courtship.
2018年,马来西亚媒体爆出一名41岁的马来男子与一名11岁的泰国女孩结婚的消息,这名女孩是他的第三任妻子,引发了全国对马来西亚童婚状况的关注。本文分析了关于童婚丑闻的新闻报道,并借鉴了我自己长期在吉兰丹州研究婚姻和亲密关系的民族志田野调查,以研究随后关于马来西亚伊斯兰家庭法修正案的公众和宗教辩论。我证明,州和联邦政府在遏制童婚方面的努力之所以失败,很大程度上是因为宗教和政治精英以及穆斯林社区成员在婚姻的目的是什么、婚姻是为了保护谁——以及谁的利益——以及应该采取什么措施来防止它的滥用等问题上缺乏共识。此外,马来西亚的童婚在意识形态上一直受到“男性主义保护主义”的支持,在这种保护主义中,男性将他们与年轻女孩的婚姻辩护为一种关心和仁慈的行为,以掩盖强迫和暴力的现实。然而,关于童婚的法律改革如果不与其他倡议(如在农村地区寻求消除贫困)同时实施,不仅是无效的,而且是不充分的;考察在泰国南部缔结私奔婚姻的可行性;并认真重新考虑马来人的婚姻和伊斯兰教的规范,这些规范提倡早婚,而不是长时间的求爱。
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引用次数: 0
期刊
Journal of Legal Anthropology
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