Anachronism,Agency, and the Contextualisation of Adat: Van Vollenhoven’s Analyses in Light of Struggles Over Resources

This article discusses the conceptual and analytical contributions of the Dutch scholar Cornelis van Vollenhoven to the study of Indonesian adat law. He argued from a politically inspired concern about gross colonial exploitation in the Dutch East Indies that this was based on flawed understandings of local legal orders. This stimulated him to design a conceptual framework to capture the characteristics of these legal orders, called adat law. His perceptiveness to the distortions caused by using Western legal concepts to describe customary laws was unique for the time, and so was his attention to the various contexts other than in disputes in which adat law was used. This renders his work of importance not only for lawyers but also for social scientists. The article discusses the criticism against his academic work and suggests that despite some major weaknesses, some criticisms are anachronistic as they concerned earlier or later scholars rather than the work of van Vollenhoven himself. The article shows how debates about indigenous rights and the decentralisation policies after the fall of the Soeharto regime have stimulated a renewed interest in adat and adat law. It is argued that van Vollenhoven’s conceptual framework is still of use, but only if it is expanded and set into a broader analysis of migration, exploitation, and power relations.     

Citizen or Subject? Blurring Boundaries,Claiming Space: Indians in Colonial South Africa

Citizenship and subjecthood are often seen as discrete, bounded categories, temporally disparate and conceptually distinct in law and in the social sciences. This paper challenges this predominant formulation by attesting that these legal categories are in fact, often, breached and blurred in identity struggles over claims to rights. Using the case of colonial Indians in South Africa, this paper argues that under conditions of colonialism, the colonized use the dual category of citizen/subject to claim rights while pledging allegiance to the power‐holders. Using historical sources such as petitions and referenda written by Indians to the colonial rulers and Gandhi's writings during his stay in South Africa, I explore the implications of this slippage between subject and citizen, thus contributing to the existing literature on colonial law and colonial resistance, the politics of citizenship, race relations and the politics of difference and identity.     

Stabilizing flows in the legal field: illusions of permanence,intellectual property rights and the transnationalization of law

In this article I examine some of the problems that ‘modern’ legal theory poses for a consideration of the extended reach of social actors and institutions in time and space. While jurisprudence has begun to engage with the concept of globalization, it has done so in a relatively limited manner. Thus legal theory's encounters with highly visible transnational practices have, for the most part, resulted not in challenging the prevailing formal legal paradigm, but in a renewed if slightly modified search for a general jurisprudence that ultimately takes little account of the manner in which the work of law is carried out transnationally. In the first part of this article I examine how legal theory's concern to maintain its own integrity places limitations on its ability to examine the permeability of social boundaries. In the latter part I draw on critical human geography, post–structuralism and actor–network theory (ANT), to examine the manner in which transnational actors have been able to mobilize law, and in particular intellectual property rights (IPRs), as a necessary strategy for both maintaining the meanings of bio–technologies through time and space, and enrolling farmers into particular social networks.     

Legal Adaptation Among Vietanmese Refugees in the United States: How International Migrants Litigate Civil Grievances During the Resettlement Process1

This article examines an overlooked dimension of adaptation among international migrants: how they use the host society's legal system to seek redress for grievances that arise during the resettlement process. The article terms this process legal adaptation and focuses on foreign‐born plaintiffs in civil litigation. A sample (N=137) of state and federal civil cases with at least one Vietnamese litigant is used to analyze the temporal patterns in legal adaptation among Vietnamese refugees from 1975 to 1994. Several aspects of Vietnamese litigation match their macro‐level resettlement process, such as civil rights and intraethnic litigation occurring later than other types of cases. But civil suits with a Vietnamese plaintiff and a native defendant tended to occur earlier than civil suits with a native plaintiff and a Vietnamese defendant. The article identifies the role of legal organizations and international grievances as the sources of Vietnamese refugees' rapid legal adaptation.

相似文献   

The relationality of law and culture: Dominant approaches and new directions for cultural sociologists

Much of the cultural sociological research in law and culture falls into one of the following approaches: (1) law as a structure that enables and constrains culture; (2) culture as a structure that enables and constrains law; and (3) law as a cultural toolkit or repertoire upon which actors draw to orient strategies for action. This article briefly reviews these approaches, then, drawing from the generative socio‐legal tradition in law as culture, highlights a fourth approach. While law and culture are often analyzed as autonomous forces in ongoing contention, negotiation, and reconciliation, the socio‐legal approach conceptualizes the relationality of law and culture as constituted by ongoing contention. I argue that this relational approach may offer cultural sociologists who do not study law a framework for better analyzing how power undergirds, enables and constrains cultural meaning. I offer examples to illustrate the utility of this research agenda through three areas of interest for cultural sociologists: (1) embodiment; (2) emotions; and (3) political culture. Such an approach encourages a two‐way bridge between cultural sociology and socio‐legal studies conceptualizing culture as a dynamic system of power relations.     

Color codification: law,culture and the hue of communication

This paper explores the intersection between color, culture and the legal domain; it reveals how recent, and disturbing, developments in trademark law have allowed for corporate ownership of the powerful communicative media of color and discusses the implications of this (colorful) codification. Mapping the communication of color within our contemporary legal, political and social environment, the paper addresses how color's vibrant significatory power is hemmed in by law, by (legal) language and by corporations. Law, it is argued, stands as one of the primary and most powerful practical “tools” used to shape, standardize and contain contemporary communication – and currently laws governing trademark function to recode and constrain the presumably boundless media of color. This is troubling, since our colorful environment becomes simplified when the array of meanings attributed to a particular hue are narrowed and then granted legitimacy by the courts.     

The Imperial and Transpacific Origins of Chinese Capitalism

This article restores early colonial Hong Kong to a key role in the history of capitalism and the integration of the Pacific. It argues that in the 1840s Hong Kong became the first identifiably capitalist Chinese society and a nexus between the China coast and both the expanding British and US imperial systems. It first demonstrates how Hong Kong's colonial regime swiftly re‐structured the island's social‐property relations and scaffolded its residents toward the ceaseless accumulation of capital. It then examines how this nascent node of Chinese capitalism integrated with the westward expansion of American capitalism amid the California Gold Rush and concludes by analyzing how Hong Kong's transpacific networks facilitated the expansion of capitalist systems into late nineteenth‐century China, most especially Shanghai.     

Ventriloquism,racism and the politics of decoloniality in Ecuador

ABSTRACT

This article discusses two forms of discrimination against indigenous people: ventriloquism and open racism, and argues that a transition from paternalism to open intolerance has taken place in Ecuador in the context of governmental emphasis on natural resource extraction. Ventriloquism, when non-Indians speak for indigenous people, is analysed through the Sumak Kawsay (Good Living) policies of the government of Rafael Correa (2007–2017). Public racism is examined by looking at government repression against indigenous leaders and communities and Presidential speeches. The article concludes that the state’s ventriloquist and racist discourses and practices are equally rooted in the country’s colonial past. These findings are contrasted with the writings of scholars that have called the government of Mr. Correa decolonizing. The article examines the ways in which decolonial theorists informed and promoted the policies of this regime, and argues that decolonial scholars have been insufficiently self-critical and reflective of their own complicity with the state’s repressive project vis-à-vis indigenous communities.     

Parenting Disputes After Separation and Divorce: Who Needs a Family Lawyer?

Australia's family law system continues to be plagued by serious delays. This article acknowledges the need for legal interventions in post‐separation parenting disputes in which individuals may be at risk, or in cases of genuine emergency. The article next contrasts cases involving significant risk or urgency with the many ‘ordinary’ (even if sometimes complex) post‐separation disputes over parenting in which these circumstances are not present. I argue that in such cases, legal advice, legally informed dispute processes, and court hearings are remnants from earlier attitudes to separation and divorce. These interventions are expensive, frequently destructive of ongoing parental relationships, and at their heart, inappropriate for considering the needs of children. They also divert time and resources from the critical investigative and legal decision‐making processes needed in urgent or risk‐related cases. I propose that legal narratives in ‘ordinary’ post‐separation parenting disputes be replaced by narratives focused on the main drivers of these disputes, which are invariably expressed in terms of relationship difficulties. Such narratives are amenable to facilitative, therapeutic, and systemic interventions aimed at achieving self‐determined resolutions. They contrast markedly with narratives reflecting common law notion of normative resolutions derived from the application of legal precedent. Key issues in the first section of the article are then teased out via the reflections of an imaginary separated parent in an ‘ordinary,’ albeit difficult and emotionally intense, dispute about how to care for the children. In the final section, I offer brief clinical and systemic reflections on past practice and on future narratives focused on individual self‐determination.     

Fiji Indians and Political Discourse in Fiji: from the Pacific Romance to the Coups

Abstract Why did Fiji Indian political rhetoric shift, at Fiji's independence, from Gandhian political grievance to nation, development and harmony? The Indians were brought to Fiji as plantation labor in order to protect the indigenous Fijians from wage labor. A romantic vision of the indigenes guided colonial policy, and became law at Fiji's independence, in a constitution giving indigenous Fijians and their chiefs special privileges. Despite the appeasing rhetoric, an electoral defeat of the indigenous chiefs was followed by military coups, for protection of indigenes against Indians and consolidation of chiefly power. Fiji has proved difficult to ‘imagine’ as a nation.     

Disability at work: Understanding the impact of the ADA on the workplace

It has been more than 25 years since the Americans with Disabilities Act (ADA) was passed by Congress. Many supporters of the law hoped that it would improve the employment outcomes for people with a disability, yet many scholars argue that it has fallen short in achieving this goal. Such judgments of success or failure are typically offered with little regard for the complex relationship between law and social change. In this paper, I apply a socio‐legal perspective to scholarly research regarding the impact of the ADA on employment. Socio‐legal studies offer a variety of concepts and perspectives, which better capture the complexity of law's impact on social life, and the various paths through which it might have an impact on social change. From this perspective, studies tend to assume that ADA law will either impact social change directly or indirectly. I discuss the findings of both of these approaches and conclude with some directions for future research.     

The multiplicity of Hawaiian sovereignty claims and the struggle for meaningful autonomy

Abstract

There are multiple Hawaiian political claims and entitlements. Is independence appropriate for Hawai'i? Is it appropriate for Hawaiians? These two questions are not one and the same. In the movement today, there are multiple levels of ambiguity about these two claims – the right to indigenous self-determination under US domestic law and Hawai'i's right to self-determination under international law – as evidenced in the strategic invocation of both. The persistent maintenance of the dual claim reveals a particular sort of political ambivalence having to do with the dilemmas over the exercise of sovereignty in the 21st century. This article examines two different claims – one which is specific to Hawaiians as an indigenous people subjugated by US colonialism, and the other which is not limited to the indigenous and focuses on the broader national claims to Hawai'i's independence. Within this latter arena, there are two distinct lines of political activism and legal claims – one that calls for de-colonization protocols and the other that calls for de-occupation.     

Politics of Identity and Identity Policies in Europe: The Case of Peruvian Immigrants in Spain

The indigenous quest for self-determination is an attempt to give voice to local injustice in a universal language, and to make claims to difference via a right that applies equally to all peoples. This article explores recent developments in the transnational indigenous movement's struggle for the right of self-determination by pointing out that this polyvalence-like the indeterminacies of the concepts of "peoples" and "indigenous"-is a productive one that enables indigenous activists to make a unique intervention in international law. Their work aims at creating a new international legal personality based on collective rather than individual rights, and on an understanding of "peoples" as self-determining entities not necessarily aspiring to statehood. This new understanding hinges, in turn, on an emerging perception of the capacity to culture as a general human right. This article addresses recent anthropological texts critical of the transnational indigenous movement to show that the "self" in self-determination as articulated by indigenous activists is not only not accounted for and not protected under current international legal regimes, but is also "a self" through which radical claims to culture and territory are being made.     

Bridging the Institutional Gaps: International Education as a Migration Industry

This article examines the education‐migration industry that has channelled students from China and Viet Nam into Japan over the past three decades and discusses the conditions for the emergence of such an industry, the major actors and the reasons for their changing roles and practices. It argues that the education‐migration industry in Japan emerged because of the discrepant institutional logics. Japan's reluctance to open the door for labour import, despite its acute labour shortage, has turned international education into a sanctioned channel of labour migration and thereby created opportunities for international education to become a thriving migration industry. As long as this institutional gap remains, government regulations will only create new sources of power and profits for brokers who can navigate complex regulations and employ illicit means to satisfy the legal requirements. The education‐migration industry is therefore a derivative of Japan's immigration regime and actively interacts with government policies.     

Child protection under Swedish law—legal duality and uncertainty

Society's responsibility to protect children from harm as prescribed by the UN Convention on the Rights of the Child raises complex questions about the fundamental rights of both children and parents, as well as when and how authorities are to intervene in order to protect children from maltreatment. Many child protection systems around the world attract considerable criticism, due in part to how the law responds to child protection matters. This article examines the Swedish child protection system from a critical legal perspective with the ideas conveyed within Therapeutic Jurisprudence as a theoretical starting point. The aim is to describe and analyze the legal challenges and dilemmas that meet this system. A legal ambiguity about when and how responsible authorities are to intervene, leading to significant uncertainty for both children and parents, is identified. Furthermore, the strong focus by Swedish authorities on voluntary measures to resolve child protection matters can lead to vulnerable children not receiving the protection to which they are entitled. Certain of the challenges and dilemmas described here are specific to the Swedish system due to its legal context and family support approach. However, other aspects resonate across legal systems and, therefore, may be of a more general interest.     

Without love there can be law but no justice

ABSTRACT

This special issue of Globalizations builds the case across a diverse group of papers that law is in need of decolonization, especially law systems structuring settler-colonial societies. This is because law's dispossessing character in these contexts is hidden by the prevalence of nomophilia; that is, an uncritical love of law for the neutrality and objectivity it self-proclaims to possess. The collection of papers for this special issue constitute a collective critique of colonial law and crime that does its part in disrupting law's empire of violence by tracking the legalized violence across the axes of class, race, gender, and sexuality. The popular expression of ‘fuck the law’ captured by Agozino in the leading paper of this issue establishes the context in which we make a call for the necessity of love to enter the realm of law as an urgent decolonizing praxis. Without love there can be law, but no justice.     

Naming Regulations and Indigenous Rights in Argentina

In Argentina, parents must register their children at the Civil Registry to receive a national identification card, choosing their child's name from a list maintained by provincial Civil Registry offices. This process regulates all citizens, but it is particularly onerous for indigenous parents who wish to give their child an indigenous name. In tracing the letter and practice of the law and responses to the law, I argue that the regulation of names is a political process with racial and gender assumptions built into it. These assumptions translate into exclusionary implications for membership in national identity. For indigenous people in Argentina, this is particularly problematic, as they are already largely invisible to the national body. Although indigenous people are challenging aspects of the law they are not challenging the very premise of the law—that the state has the right to control their access to citizenship through a law regulating children's names. Finally, the successes of indigenous parents in using an indigenous name has the unintended consequence of turning indigenous names into cultural commodities, thus diminishing the validity of indigenous political critiques of the law.     

From machismo to co‐parenting: Changing Italy's mindset

This article analyses the complex legislative and judicial processes that would be required to establish the right to co‐parenting in the Italian labour regulation system. Identifying a trend in the Italian legal system that has so far limited family protection to the support of women and maternity, the author then elaborates on the legislative evolution that has led to the acknowledgment of fathers as key partners in their children's upbringing. Lastly, an analysis of case law shows how this has been used to give a modern interpretation of legislated principles, providing a crucial contribution to overcoming the ongoing resistance to these processes from a male‐oriented culture.     

Examining Mental Health Court Completion: A Focal Concerns Perspective

Sociologists have long‐raised concern about disparate treatment in the justice system. Focal concerns have become the dominant perspective in explaining these disparities in legal processing decisions. Despite the growth of problem‐solving courts, little research has examined how this perspective operates in nontraditional court settings. This article used a mixed‐method approach to examine focal concerns in a mental health court (MHC). Observational findings indicate that gender and length of time in court influence the court's contextualization of noncompliance. While discussions of race were absent in observational data, competing‐risk survival analysis finds that gender and race interact to predict MHC termination.     

Debating Spatial Governance in the Pluralistic Institutional and Legal Setting of Bali

This paper analyses controversies over law-making processes on spatial planning in Bali, Indonesia. Rapid development of the tourism industry and concerns over environmental sustainability and commodification of culture gave rise to heated debates over the province's spatial planning regulation. The analysis focuses on the legally and institutionally plural character of Bali, and thus is not confined to the state legal regime. As in many other developing countries, customary and religious legal regimes co-determine how spatial planning is dealt with legally and institutionally. State law itself may be plural because of different interests represented through it at various levels of governance. A broader discussion is needed of this complex legal and institutional setting about which concepts of space and whose interests in space are represented through the various legal repertoires in the process of developing a spatial planning regime.