Browse by title
After a brief review of the history of anthropologists testifying as expert witnesses before courts, this chapter recounts my personal experiences as an anthropologist appearing before the Inter-American Court for Human Rights as an expert witness. Serving as expert witness on behalf of the Saamaka Maroons of Suriname in their cases against the Republic of Suriname (in which they live), I helped them win their cases and establish jurisprudence for Maroons and Indigenous peoples throughout the Americas. Unfortunately, to date, the State of Suriname has refused to honor the most important aspects of the landmark 2007 decision of the Court in Saramaka People v. Suriname.
The interactions of gender with the performance, enactment, practice and transmission of intangible cultural heritage (ICH) are complex and, to some degree, mutual. As a consequence, safeguarding approaches have the potential to impact on these factors in both positive and negative ways. Unfortunately, the safeguarding actions proposed for this heritage tend to miss the larger, holistic aspect of culture of which gender dynamics form a part. Not only do we express our gender identities through ICH, but they are also shaped to some degree by it, and this process can be affected by safeguarding practices and interventions. This underlines the necessity both of applying a gender-sensitive approach to safeguarding and, as this chapter seeks to demonstrate, for striking an appropriate balance between legal and non-legal (anthropological) experts in this process in order to ensure a sufficiently nuanced but well-grounded approach towards gender. Such an inter-disciplinary approach is a prerequisite for ensuring the proper and successful operation of UNESCO’s 2003 Convention for the Safeguarding of Intangible Heritage over the long term.
P. G. McHugh
This chapter looks at the role of anthropology in the setting of land claims by indigenous peoples against the state regarding the historical processes of loss and, in the modern era, the disruptive programmes of resource development that have adversely affected their relationships with and practices on traditional land. Since the 1980s, national courts in the common law jurisdictions of Canada and Australasia have developed principles by which they monitor and intervene in government recognition and management of these claims. The author gives a controversial and influential example of how the juridification of these claims has shaped presentation of the nature of indigenous evidence and knowledge. The anthropologist’s evidence is usually pitched into a setting where such claims are disputed and their eligibility must fit legal criteria. This puts anthropology – its methods, practice and outcomes – under what can be intense forms of pressure that do not come from within the discipline itself but rather the politicised circumstances into which its expertise is pitched. The Hindmarsh Island Bridge controversy remains emblematic of this problematic encounter between anthropology as a discipline and its juridical role in the vindication of land claims.
Donald J. Boudreaux
Austrian economics identifies three reasons, any one of which invalidates antitrust as a mechanism for ensuring competition. The first is the political economy realization that antitrust cannot be administered without political cronyism, which will blunt its effectiveness. The second is the problem of knowledge; no antitrust judge or regulator can know all the relevant facts for rendering a decision that improves the operation of markets. Either of these is fatal to the arguments for antitrust. This chapter will focus on the third objection: antitrust is premised on a flawed, static model of competition. By not recognizing that competition is a dynamic process involving innovation, antitrust actually thwarts competition, achieving the opposite of its intended effect.
The Emergence of the Business and Human Rights Regime as Transnational Law
Chapter 6 compares and synthesises the insights of the five case studies discussed in Chapters 4 and 5, having regard to argumentative strategies and their influence on the output of each of the regulatory processes and the outcome in terms of formal acceptance of the output. The chapter observes that the significance of communicating in the system-specific logic of the audience does not mean that all must work according to the logic of the market. Rather, deploying the economic system is the key to making companies internalise the needs and expectations of society, and therefore stimulate their consideration of societal needs. The chapter identifies three trends in argumentative strategies and considers the use, impact and complementarity of these: system specific interest-based arguments; stabilising and de-stabilising arguments, and specificity of proposals for change. It ends by considering the role of the case studies for the discursive construction of business responsibilities for human rights and the emergence of the BHR regime.
The Emergence of the Business and Human Rights Regime as Transnational Law
Chapter 3 explains the communicative aspects of the theoretical framework of reflexive law and discourse theory and the significance for the evolution of normativity in multi-stakeholder processes. The chapter elaborates on communication related to the core rationality of a recipient and its functions. It explains how organisational self-regulation or acceptance of normative change may be prompted by stakeholders communicatively activating the core interest of the organisation with which change is desired. It elaborates on the connection between discourse theory and communication in multi-stakeholder regulation, with an emphasis on how struggles for power unfold around defining concepts such as CSR or business responsibilities for human rights. Finally, the chapter explains how stabilising and de-stabilising arguments may complement or reinforce the effects of arguments made in system-specific logics.
David Grant and Kenneth Yates
Chapter 4 offers an account of the lessons drawn from a survey of attitudes towards emerging technologies. Broadly, it is clear from this survey that a substantial majority of participants will adopt increasingly intrusive technologies – make themselves subject to technological regimes of practice – so long as assurances are given that these technologies would address their existential concerns, and that they will do so typically without regard for issues of self-responsibility. In addition, participants generally regarded emerging technologies as likely to allow such concerns to be dealt with more effectively than by Deity, State and Market. This, along with the emergence of evidence for an Absolute Subject, is taken as a robust affirmation of the principal arguments put in this work.
Peter G. Klein and Thomas A. Lambert
This chapter applies Austrian insights relevant to analysis of American business law. Modern corporation and partnership law, perhaps surprisingly, largely coheres with an Austrian theory of the firm, although recent regulations affecting corporate conduct and securities offerings, enacted in the wake of financial scandals, undermine these principles. On the other hand, antitrust law operates under a static view of markets that is inconsistent with Austrian principles, although recent antitrust decisions have been more consistent. We set forth aspects of Austrian thought most relevant to an analysis of American business law. We have shown that this rich body of thought that has proven so useful in analyses of institutions (e.g., the Socialist Calculation debate) and monetary and fiscal policies (e.g., Austrian business cycle theory) has much to offer in the economic analysis of specific legal rules.
Michael E. DeBow
This chapter provides a history of the expanding domain of tort law in the United States, with a particular focus on the spread of the concept of strict liability and a consonant erosion of contractual liability in favor of torts. It then surveys differing Austrian viewpoints on the moral standard underlying torts, the merits of the common law, intentional and unintentional torts, and product liability. It concludes that Austrian scholars who are comfortable with the normative standard of “individual freedom from domination” should conduct research countering the case for the ever-growing expansion of tort law.