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Savages Have No Crime! 野蛮人没有罪!
Pub Date : 2021-07-01 DOI: 10.3167/jla.2021.050106
I. Niehaus
During 1931, Alfred Radcliffe-Brown gave a popular talk at Columbia University in New York. He maintained that, unlike in the West, savage societies – a term commonly used at the time – had no criminal class and had succeeded in enforcing conformity to social norms. In this article, I suggest that, despite its defects, the talk highlights central themes in Radcliffe-Brown’s thinking about conformity, social sanctions and the law. Drawing on archival sources and on published material, I show how during fieldwork he observed the brutalities of colonial rule in the Andaman Islands, Western Australia and South Africa. I suggest that a critical awareness of how colonial law served as an ally of conquest forms an important sub-text in Radcliffe-Brown’s writing on the effective manner in which Andaman Islanders maintained social order, Indigenous Australians settled disputes and African courts operated. His comparative, sociological approach, which was implicitly critical of Western societies, was a vital influence in the emergence of law as a topic of anthropological enquiry.
1931年,阿尔弗雷德·雷德克里夫-布朗在纽约哥伦比亚大学做了一次很受欢迎的演讲。他坚持认为,与西方不同的是,野蛮社会——一个当时常用的术语——没有犯罪阶级,并且成功地强制遵守社会规范。在这篇文章中,我认为,尽管演讲存在缺陷,但它突出了拉德克利夫-布朗关于从众、社会制裁和法律的思想的中心主题。根据档案资料和出版材料,我展示了他如何在实地考察期间观察安达曼群岛、西澳大利亚和南非殖民统治的残酷。我认为,在拉德克利夫-布朗关于安达曼群岛居民维持社会秩序、澳大利亚土著解决争端和非洲法院运作的有效方式的著作中,对殖民法如何成为征服盟友的批判性意识构成了一个重要的潜文本。他的比较社会学方法,含蓄地批评西方社会,对法律作为人类学研究主题的出现产生了至关重要的影响。
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引用次数: 0
Surveillance, Discipline and Care 监督、纪律和关怀
Pub Date : 2021-07-01 DOI: 10.3167/jla.2021.050103
J. Stadler
Concerns about medical non-compliance have generated interest in the potential of remote, digital reminder and surveillance technologies. Amidst a devastating HIV/AIDS epidemic and outbreaks of drug-resistant tuberculosis (TB), compliance technologies are touted by developers and medical researchers as a solution to the ‘problem of non-compliance’. The appeal lies in the prospect of fashioning disciplined bodies, but at the cost of sacrificing the intimacy of care for technical expediency. Despite the growing popularity in global medicine to account for disease in terms of the ‘social determinants of health’, digital medical technologies reproduce discourses of health as an individual responsibility. I conducted research in a TB clinic in South Africa that experimented with an electronic reminder and monitoring device that sought to improve compliance to a new regimen of drugs for TB prevention. I found that patients embraced the apparatus through local framings of TB, and deployed it in their everyday struggles for care.
对医疗违规行为的关切使人们对远程、数字提醒和监测技术的潜力产生了兴趣。在毁灭性的艾滋病毒/艾滋病流行和耐药结核病(TB)爆发之际,合规技术被开发人员和医学研究人员吹捧为“不合规问题”的解决方案。其吸引力在于塑造纪律严明的机构的前景,但代价是为了技术上的权宜之计而牺牲关怀的亲切感。尽管从“健康的社会决定因素”的角度来解释疾病在全球医学中越来越受欢迎,但数字医疗技术再现了健康作为个人责任的话语。我在南非的一家结核病诊所进行了一项研究,该诊所试验了一种电子提醒和监测设备,旨在提高人们对一种新的结核病预防药物治疗方案的依从性。我发现患者通过结核病的局部框架接受了这种设备,并将其用于他们日常的护理斗争。
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引用次数: 1
Tax Compliance Dancing 税务合规舞蹈
Pub Date : 2021-07-01 DOI: 10.3167/jla.2021.050104
Lotta Björklund Larsen, Benedicte Brøgger
Taxation is central to the financing of most states, and monitoring that taxpayers comply with laws and regulations is a correspondingly important government activity. Governments have many ways to design tax systems, and no two national tax systems are the same. Hence, compliance strategies differ and so do outcomes. Complying with tax laws, beyond the fiscal aim of contributing revenue to a state, is multifaceted in a globalized world. Tax administrations struggle to control large multinational enterprises’ (MNEs) tax planning, avoidance and general evasion, whereas MNEs grapple with the problem of having to comply with widely divergent national tax systems. As a response, tax administrations, through membership organisations such as the OECD, invent forms of collaboration between tax administrations and MNEs—all with the goal of increasing tax compliance. One way they do this is through the co-operative compliance model. Here, we compare two compliance projects, based on this model, in Norway and Sweden to shed more light on what tax compliance is in practice. We elaborate on Valerie Braithwaite’s seminal concept of tax compliance as a ‘dance’ between tax administrations and taxpayers. In so doing we underline the significance of paying attention to conceptions of time and space as critical elements of creating compliance in practice between tax administrations and MNEs.
税收是大多数州财政的核心,监督纳税人遵守法律法规相应地是一项重要的政府活动。政府有很多方法来设计税收制度,没有两个国家的税收制度是相同的。因此,合规策略不同,结果也不同。在一个全球化的世界里,除了为国家贡献收入的财政目标之外,遵守税法是多方面的。税务管理部门努力控制大型跨国企业(MNEs)的税收筹划、避税和普遍逃税,而跨国公司则努力解决必须遵守各国大相径庭的税收制度的问题。作为回应,税务管理部门通过经合组织(OECD)等成员组织,发明了税务管理部门与跨国公司之间的合作形式——所有这些都是为了提高税收合规性。他们这样做的一种方式是通过合作合规模式。在这里,我们比较了挪威和瑞典的两个基于该模型的合规项目,以更好地了解实践中的税收合规。我们详细阐述了瓦莱丽·布雷斯韦特的开创性概念,即税收合规是税务机关和纳税人之间的“舞蹈”。在此过程中,我们强调了关注时间和空间概念的重要性,这是税务机关与跨国公司之间在实践中创造合规的关键因素。
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引用次数: 2
Good People Doing Bad Things 好人做坏事
Pub Date : 2021-07-01 DOI: 10.3167/jla.2021.050105
S. Sampson
Nearly all major corporations and many public agencies have established ethics and compliance departments, some of them as the result of penalties imposed by the US Department of Justice, others due to embarrassing scandals. The responsibilities of these departments range from inculcating codes of conduct and preventing bribery, to impeding litigation for harassment and bribes, or ensuring that government certifications and branch standards are followed. For the compliance officer, ethics breaches are not due to unethical persons, but inadequate compliance training. This article, based on fieldwork in compliance training conferences, anti-corruption events and readings of ethics and compliance manuals, describes how a ‘culture of compliance’ is pursued in organisations. In the wake of continuing ethics breaches, are these regimes genuine efforts to ‘do the right thing’, or simply a façade to improve firms’ reputations? Compliance can be both real and fake, and the compliance function must ensure where the latter is authentic and where it can be ignored.
几乎所有大公司和许多公共机构都设立了道德与合规部门,其中一些是由于美国司法部的处罚,另一些是由于令人尴尬的丑闻。这些部门的职责范围从灌输行为准则和防止贿赂,到阻止骚扰和贿赂诉讼,或确保遵守政府认证和部门标准。对于合规官来说,道德违规不是由于不道德的人,而是由于合规培训不足。本文基于对合规培训会议、反腐败活动的实地考察,以及对道德和合规手册的阅读,描述了如何在组织中追求“合规文化”。在持续的道德违规之后,这些制度是真正的“做正确的事情”的努力,还是仅仅是为了提高公司声誉的伪装?遵从性可以是真实的,也可以是虚假的,遵从性功能必须确保后者在哪些地方是真实的,哪些地方可以忽略。
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引用次数: 0
‘We Are Poor, So We Keep Quiet’ “我们很穷,所以我们保持沉默”
Pub Date : 2021-07-01 DOI: 10.3167/jla.2021.050102
A. Berglund
Since 2006, the Rwandan government has been implementing policies to modernise the agricultural sector in a top-down manner. Small-scale subsistence farmers, making up the vast majority of Rwandans, are compelled to leave their traditional farming behind, form co-operatives and take up ‘modern’ farming techniques based on irrigation and state-approved crops. For my interlocutors in a Rwandan village, this policy resulted in reduced crop yields, difficulties in putting food on the table and a visible degradation of their lives. Yet people complied. They did not rise up in protest. They sought to meet the authorities’ demands. Although ‘government authoritarianism’ explains much of the lack of open resistance, Rwandans had their own ideas, values and practices which at times overlapped with oppressive state projects and ended up supporting the state’s agricultural modernization scheme. Here, compliance is part of how villagers wanted to project themselves to others and to themselves and how they pursued their aspirations for the future.
自2006年以来,卢旺达政府一直在自上而下地实施农业部门现代化的政策。占卢旺达人绝大多数的小规模自给自足农民被迫离开他们的传统农业,组成合作社,采用基于灌溉和国家批准的作物的“现代”农业技术。对我在卢旺达一个村庄的对话者来说,这项政策导致作物产量下降,难以养家糊口,他们的生活明显恶化。然而,人们照办了。他们没有起来抗议。他们设法满足当局的要求。虽然“政府威权主义”在很大程度上解释了缺乏公开抵抗的原因,但卢旺达人有自己的想法、价值观和做法,有时与压迫性的国家项目重叠,最终支持国家的农业现代化计划。在这里,服从是村民希望如何向他人和自己展示自己,以及他们如何追求对未来的期望的一部分。
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引用次数: 0
Response to my critics 对我的批评的回应
Pub Date : 2020-12-01 DOI: 10.3167/jla.2020.040210
E. Hertz
Anna Beckers and Ioannis Kampourakis have formulated sophisticated critiques of ‘The Great Shell Game’, and I have learned a great deal from this exchange. Some of their criticism can be answered by clarifying the terms of the debate, which I do briefly below. I wish, however, to maintain the general thrust of my argument, and even to double down. With my title, I make an analogy between CSR and the confidence trick played by street operators who move pennies quickly between plastic cups and ask the assembled crowd to bet on where they end up. This game depends on skill but also on fraud, the operator working with a shill to mislead the audience. I suggest that as academics we must make sure that our sophistication does not place us in the role of the shill—preventing the public from noticing that corporations pocket the pennies.
Anna Beckers和Ioannis Kampourakis对《伟大的贝壳游戏》提出了复杂的批评,我从他们的交流中学到了很多。他们的一些批评可以通过澄清辩论的条款来回答,我将在下面简要说明。然而,我希望保持我的论点的主旨,甚至进一步强调。在我的标题中,我将CSR比作街头经营者的骗局,他们在塑料杯之间快速移动硬币,并让聚集的人群打赌硬币最终会落在哪里。这个游戏既要靠技巧,也要靠欺诈,操作者用诡计来误导观众。我建议,作为学者,我们必须确保我们的老练不会让我们成为骗子的角色——阻止公众注意到企业把钱装进了口袋。
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引用次数: 0
Everyday Suffering and the Abstract Time-Reckoning of Law 日常苦难与法律的抽象时间计算
Pub Date : 2020-12-01 DOI: 10.3167/jla.2020.040202
David Loher
How does time structure the allocation of responsibility in the context of large-scale corporate crimes? Focusing on the Processo Eternit – a criminal case brought against the former main investor in Europe’s largest asbestos-processing factory in Casale Monferrato (Italy) – this article compares the temporal order of the lived experience of the asbestos disaster in the affected community with the abstract time-reckoning of law. The everyday suffering in the form of the long-term health effects, inscribed in the body through the asbestos fibre, collides with the statute of limitation of the alleged crimes, as stipulated in law and endorsed in the court room. It examines how these incommensurable temporalities reconfigure the allocation of moral and legal responsibility for an industrial disaster and shows how these contradictions are related to the victims’ expectations of justice and their experience of injustice.
在大规模公司犯罪的背景下,时间是如何构成责任分配的?本文以意大利Casale Monferrato(意大利)欧洲最大石棉加工厂的前主要投资者被起诉的刑事案件Processo Eternit为焦点,将受影响社区的石棉灾难生活经历的时间顺序与抽象的法律时间计算进行了比较。通过石棉纤维铭刻在人体内的长期健康影响形式的日常痛苦,与法律规定并在法庭上得到认可的所指控罪行的时效相冲突。它考察了这些不可通约的时间性如何重新配置工业灾难的道德和法律责任分配,并展示了这些矛盾如何与受害者对正义的期望和他们对不公正的经历相关。
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引用次数: 1
Corporate Social Responsibility 企业社会责任
Pub Date : 2020-12-01 DOI: 10.3167/jla.2020.040207
E. Hertz
‘The business of business is business,’ Milton Friedman, a leading figure of the Chicago School of economic thought, famously declaimed. In his 1970 article, ‘The Social Responsibility of Business Is to Increase Its Profits’, he argued that corporate managers who factor social and environmental considerations into their decision-making are, in effect, ‘imposing taxes . . . and deciding how the tax proceeds shall be spent’. By deviating from their organizational duties—maximizing profits for the companies that employ them—they are appropriating money owed to shareholders and allocating it to broader social causes, a function that resembles government. Friedman objects to this behavior not on economic or legal but on political grounds: managers have not been elected and there are no principled procedures for determining which causes to support beyond ‘general exhortations from on high’ (Friedman 1970: 17). He also expresses scepticism about ‘hypocritical window-dressing’, concluding: ‘our institutions, and the attitudes of the public make it in their self-interest to cloak their actions in this way’ (Friedman 1970: 17).
芝加哥经济学派(Chicago School of economic thought)的领军人物米尔顿•弗里德曼(Milton Friedman)曾说过一句名言:“生意的生意就是生意。”在他1970年的文章《企业的社会责任是增加利润》中,他认为,将社会和环境因素纳入决策的企业管理者实际上是在“征税……并决定税收收入如何使用。通过背离他们的组织职责——为雇佣他们的公司实现利润最大化——他们挪用了欠股东的钱,并将其分配给更广泛的社会事业,这类似于政府的职能。弗里德曼反对这种行为不是出于经济或法律上的原因,而是出于政治上的原因:管理者不是选举出来的,除了“来自高层的一般性劝告”之外,没有原则的程序来决定支持哪些事业(Friedman 1970: 17)。他还对“虚伪的粉饰”表示怀疑,并得出结论:“我们的制度和公众的态度使他们以这种方式掩盖自己的行为符合自身利益”(Friedman 1970: 17)。
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引用次数: 1
Legal responsibility in an entangled world 纠缠世界中的法律责任
Pub Date : 2020-12-01 DOI: 10.3167/jla.2020.040201
J. Eckert, L. Knöpfel
Responsibility and accountability in entangled global relations are negotiated across jurisdictional boundaries, localities and scales of legality. In this special issue, we trace struggles for corporate accountability from extraction sites in Ecuador, Colombia and Peru to an abandoned asbestos factory in Italy. We enquire into the gap between the legal institutions which govern attributions of responsibility in procedural, tort and corporate laws, lived experiences of harm connected to transnational business activities and moral expectations of responsibility in global relations. In the struggles for justice discussed in this special issue, we detect potential ways of rethinking ascriptions of responsibility to reflect the deep entanglements of our economies.
在错综复杂的全球关系中,责任和问责是跨越管辖边界、地方和合法性尺度进行谈判的。在本期特刊中,我们追溯了从厄瓜多尔、哥伦比亚和秘鲁的采矿场到意大利一家废弃的石棉工厂的企业问责斗争。我们探讨了在程序法、侵权法和公司法中管理责任归属的法律制度、与跨国商业活动有关的伤害的实际经验和全球关系中责任的道德期望之间的差距。在本期特刊讨论的争取正义的斗争中,我们发现了重新思考责任归属的潜在方法,以反映我们经济的深刻纠缠。
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引用次数: 7
CSR Practices and the Political Corporation in Law 企业社会责任实践与法律上的政治公司
Pub Date : 2020-12-01 DOI: 10.3167/jla.2020.040209
Anna Beckers
In her article ‘Corporate Social Responsibility: The Great Shell Game’, Ellen Hertz suggests that there is an inherent danger of corporate social responsibility (CSR) to obscure the public/private divide. By means of strategically engaging with public interests, corporate CSR practices – that according to Hertz are practices deriving from the market – are able ‘to preempt and discredit attempts to define and carry out policies designed to protect the broader public interest’. CSR should be seen as ‘remediation at best’ that ideally needs to be replaced by ‘rules for business’ created by ‘the public’ and not those created by companies themselves.
艾伦·赫兹在她的文章《企业社会责任:巨大的空壳游戏》中指出,企业社会责任(CSR)有一种内在的危险,它模糊了公共/私人的界限。通过策略性地与公众利益接触,企业社会责任实践——根据赫兹的说法,这是源于市场的实践——能够“先发制人,并诋毁旨在保护更广泛公众利益的政策的定义和执行”。企业社会责任应该被视为“充其量的补救”,理想情况下,它需要被“公众”制定的“商业规则”所取代,而不是由公司自己制定的规则。
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引用次数: 0
期刊
Journal of Legal Anthropology
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