Trafficking in Law: Cause Lawyer,Bureaucratic State and Rights of Human Trafficking Victims in Thailand

Abstract

In this case study of a young, Thai “cause lawyer”, advocacy for human rights is considered in context. The most important elements of that context are the path of development of Thai political and legal institutions, globalisation of law, and the networks of relationships that penetrate the state. The case study shows that human rights advocacy by NGO lawyers can adapt creatively to unpromising conditions under which courts provide little access or oversight. At the same time, the case study raises profound questions about the ultimate independence of cause lawyers when the state must be made a partner in order to establish the authority of law needed to make human rights advocacy possible. The ambiguity of the lawyer’s position is apparent from the relative ineffectiveness of her interventions and her growing moral authority on behalf of best practices under law. Her position suggests the limitations on law imposed by the underpinnings of the Thai state itself.     

Indigenous Legal Principles: A Reparation Path for Canada’s Cultural Genocide

ABSTRACT

This article argues that Canada’s justice system and the lawyers that operate within it are ill prepared to comprehend or reconcile the relationship between colonial legal systems and indigenous systems of law. They do not get training in indigenous law, so vital to crafting appropriate reparations for the wrongs justified by colonial practices and prejudices, and that could open doors to reconciliation and healing. The example used in this article to illustrate how the two systems of law could successfully interact is the historic Indian Residential School Settlement – the largest settlement in Canadian history, almost entirely based on Indigenous law and legal theory, and harmonized in part with principles of the common law of tort. The Indian Residential School Settlement proves that in post-colonial societies western frameworks lack the tools necessary to remediate injuries motivated by systemic discrimination, which, in this case, was cultural genocide. Different perspectives and legal theories are necessary to craft appropriate reparations and the processes used to achieve them. Unless indigenous laws, traditions, and practices are central to the design and implementation of reparations, state responses to the cultural genocide perpetrated against indigenous peoples in Canada will not open pathways to either healing or reconciliation.     

The fusion of law and ethics in cultural heritage management: The 21st century confronts archaeology

Abstract

Archaeologists around the world face complex ethical dilemmas that defy easy solutions. Ethics and law entwine, yet jurisprudence endures as the global praxis for guidance and result. Global legal norms articulate ‘legal rights’ and obligations while codes of professional conduct articulate ‘ethical rights’ and obligations. This article underscores how a rights discourse has shaped the 20th century discipline and practice of archaeology across the globe, including in the design and execution of projects like those discussed in the Journal of Field Archaeology. It illustrates how both law and ethics have been, and still are, viewed as two distinct solution-driven approaches that, even when out of sync, are the predominant frameworks that affect archaeologists in the field and more generally. While both law and ethics are influenced by social mores, public policy, and political objectives, each too often in cultural heritage debates has been considered a separate remedy. For archaeology, there remains the tendency to turn to law for a definite response when ethical solutions prove elusive.

As contemporary society becomes increasingly interconnected and the geo-political reality of the 21st century poses new threats to protecting archaeological sites and the integrity of the archaeological record during armed conflict and insurgency, law has fallen short or has lacked necessary enforcement mechanisms to address on-the-ground realities. A changing global order shaped by human rights, Indigenous heritage, legal pluralism, neo-colonialism, development, diplomacy, and emerging non-State actors directs the 21st century policies that shape laws and ethics. Archaeologists in the field today work within a nexus of domestic and international laws and regulations and must navigate increasingly complex ethical situations. Thus, a critical challenge is to realign approaches to current dilemmas facing archaeology in a way that unifies the ‘legal’ and the ‘ethical’ with a focus on human rights and principles of equity and justice. With examples from around the world, this article considers how law and ethics affect professional practice and demonstrates how engagement with law and awareness of ethics are pivotal to archaeologists in the field.     

The Threefold Logic of Papua‐Melanesia: Constitution‐writing in the Margins of the Indonesian Nation‐State

Clashes over the status of West Papua and the political future of the territory proliferated markedly following the end of Indonesia's New Order regime in 1998. Amid a wide variety of demands for justice and independence, and a series of demonstrations, mass gatherings and prayers, only a few Papuans mused on how Papua could become a state and what would constitute its nature as being distinctly Papuan and/or Melanesian. One exception is the work put into the Constitution for West Papua entitled Basic Guidelines, State of West Papua, a document edited by Don A.L. Flassy, a bureaucrat, writer and thinker, with a preface by late Theys H. Eluay, then chairman of the Papuan Council. In this article I analyse this Constitution to show how a combination of Christianity and local customs, and a mimicry of elements of Indonesian nation building and symbols of the Indonesian nation‐state are reshaped to oppose Indonesian nation‐building agendas. The Constitution shows that when Papuans imagine an independent state, forms of vernacular legality play a central role. ‘The state’ has journeyed to Papua and encouraged faith in ‘the law,’ and Basic Guidelines is partly the effect of this growing vernacular legality. My analysis shows that it is essential to see how legal mobilisations and imaginations of the state articulate with other normative systems and practices – in particular Christianity and custom (adat) – and how they mutually allow for and invite strategies.     

Thailand’s Traditional Trinity and the Rule of Law: Can They Coexist?

Abstract

Thailand has seen considerable progress in the rule of law since the seminal 1997 constitution. Yet persistent political instability suggests that as yet the country does not think of the rule of law as binding. What is likely to happen in Thailand with the rule of law, and with governance generally? The argument advanced here is that rule of law principles must contend with the realisation that the traditional Thai trinity – nation, religion and king – has become an inviolable state ideology. Political actors, often aligned with the monarchy, have been using each element of the trinity to undermine both rule of law principles and democratic institutions. Now that long-serving monarch King Bhumibol (Rama IX) has been succeeded by his son King Varijalongkorn, it seems an appropriate time to examine current battles about the meaning of the rule of law and broader struggles for control between elites and popular groups based on competing visions for the state – a problem not only in Thailand but in the region as a whole.     

A cultural justice approach to popular music heritage in deindustrialising cities

ABSTRACT

Deindustrialisation contributes to significant transformations for local communities, including rising unemployment, poverty and urban decay. Following the ‘creative city’ phenomenon in cultural policy, deindustrialising cities across the globe have increasingly turned to arts, culture and heritage as strategies for economic diversification and urban renewal. This article considers the potential role that popular music heritage might play in revitalising cities grappling with industrial decline. Specifically, we outline how a ‘cultural justice approach’ can be used within critical heritage studies to assess the benefits and drawbacks of such heritage initiatives. Reflecting on examples from three deindustrialising cities – Wollongong, Australia; Detroit, USA; and Birmingham, UK – we analyse how popular music heritage can produce cultural justice outcomes in three key ways: practices of collection, preservation and archiving; curation, storytelling and heritage interpretation; and mobilising communities for collective action.     

China,Natural Resources,Sovereignty and International Law

Abstract

This article explores China’s attitudes towards the regulation of key natural resources by international law, domestically and at the trans-boundary and international levels. It considers the impact of international law on China’s own practices, and the contribution of China towards shaping international law. The article suggests that popular conceptions of a relatively isolated, sovereign absolutist China do not accord with contemporary legal realities, including in its dealings with natural resources. While China’s construction of strong sovereignty shapes its attitudes towards legal regulation, practice also suggests that China adopts a nuanced approach which includes legal compromise, and a commitment to multilateral regulation or bilateral diplomatic settlement of issues previously within the competence of national governments. China is often an active and constructive participant in contemporary law-making, even if – like all countries – it also seeks to instrumentally use international law.     

Politics and Headhunting among the Formosan Sejiq: Ethnohistorical Perspectives

Memories of headhunting, and ritual re‐enactments of those former violent practices, are still politically meaningful in contemporary Oceania and Southeast Asia. The case of the Sejiq of Taiwan illustrates how such practices were transformed and eventually terminated as a result of colonialism and the incorporation of formerly stateless peoples into new political institutions. Headhunting was once an expression of the sacred law of Gaya, as both a reinforcement of territorial boundaries and a way of settling legal disputes within communities. It expressed tensions in a ‘reverse dominance hierarchy’ by which some men tried to consolidate political power, but were usually deterred by a strong egalitarian ethos. During the period of Japanese administration (1895–1945), new technologies made headhunting more efficient, but it became more difficult for this formerly egalitarian people to avoid the political coercion of would‐be leaders. Contradictions between headhunting as the implementation of Gaya and headhunting as a consolidation of political power — itself viewed as a violation of that Law — eventually led to the abandonment of headhunting. Local leaders found new ways to seek political power, including in the ritual re‐enactment of the very same practices used by their ancestors, but continue to be resisted by ordinary people with an egalitarian ethos.     

A. V. Dicey and English constitutionalism

The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – ‘the rule of law’ – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.     

Cold War Conflicts and Cheap Cabaret: Sexual Politics at the 1975 United Nations International Women's Year Conference

In a widely read memoir, a Bolivian union militant signals the moment of her alienation from the nongovernmental organisation tribune of the United Nations’ 1975 International Women's Year (IWY) conference in Mexico City by describing her dismay when she encountered a group of women clamouring for sexual rights, reiterating a persistent narrative about a trade‐off between sexual rights and other forms of social justice.
Drawing on feminist performance theory, this article examines the political performances of three central figures at IWY – Domitila Barrios de Chungara, Betty Friedan and Mexican theatre director Nancy Cárdenas – to explore the ways that political performances rooted in distinct scenarios, or historical contexts, generated a confusion of meanings around campaigns for sexual rights.     

The Advantages of Ambiguity? Development,Rule Formation and Property Rights During Transition in China

Legally protected individual private property rights and a constrained state are doctrines of neoclassical economics-derived development theory. But what about China? It lacks strong rule of law, property rights can be collective, contested and ambiguous, and the state is relatively unconstrained and maintains a central role in the economy; yet it has seen impressive economic growth to take it to the world’s second largest economy. I argue that in the absence of legal/rational protections of individual property rights, political and social networks can provide alternative methods of property protection, allowing for economic development – with political protection substituting for legal. The novel claim I make is that ambiguity of property rights can provide opportunities and spaces for development and innovation, with the building of meaning and institutions found in a transitional state, where rules are unclear and contested, and where formal rules can “catch up” if apparent success can be demonstrated.     

The politics of time during the Napoleonic Consulate, 1799–1804

ABSTRACT

The French Revolution generated an acceleration of political time that disrupted old assumptions about the legitimacy and durability of political authority. Following the coup of 18 Brumaire, Napoleon and his counsellors had to confront the challenge of erecting a legitimate regime that would endure in a political environment where regimes that endured very often appeared illegitimate. This article examines how the French Consulate (1799–1804) sought to manage revolutionary time by practising a politics of temporal dilation. The embryonic institutions of the Consulate – from the Légion d’honneur to the lycées – were designed to decompress popular perceptions of time, at least as they related to political life, by charting a verifiable pathway for the nascent regime to develop steadily and incrementally through history. The collective perception of the present was made to expand, re-validating the notion of historical experience and slowing the unruly onset of the political future. Time would cease to be the medium of rupture. This article examines how the temporal assumptions embedded within the regime discourses and political practices of the Napoleonic Consulate were central to the construction of its own legitimacy.     

Law,Principle, and the Theologico-Political History of Sovereignty

Abstract

This article takes it cue from the debate between Carl Schmitt and Erik Peterson regarding the possibility of political theology within Christianity, and in response, offers a conceptual-historical portrait of sovereignty and its juridical dimensions. Beginning with the introduction of Roman law into the medieval Church, the article traces the logic of “legal principle” as the basis of sovereign decision and how the form of legal distinctions adopted into canon law translate the Romanitas of law into the theory of papal sovereignty. By the Romanitas of law, that is to say the principle of sovereignty in law. The article then seeks to describe the conceptual translations of Roman politics and Stoic metaphysics into theological form and the logic of this translation into medieval natural law. The article concludes by evaluating how the civic theology of Rome is conceptually inherited by the politics and legal framework of sovereignty and returns to Peterson’s critique of Schmitt, arguing that political theology can be understood as a dynamic where politics is theologized, assuming that in the history of religion, theology and politics are never fully distinct to begin with.     

Competing Visions of the Rule of Law in Southeast Asia: Power,Rhetoric and Governance

Abstract

This article introduces a special issue on the emergent relationship between the rhetoric and implementation of the rule of law concept in Southeast Asia. It thematically introduces four country case studies (Cambodia, Myanmar, Thailand and Vietnam), and the case of ASEAN’s adoption of the rule of law in region-building, which are included in this special issue. We highlight how ideals that are arguably central to the “tradition” of the rule of law are being excised, marginalised, defended and/or undermined in Southeast Asian contexts. We emphasise how the very concept is deeply contested and far from neutral – at stake is the very notion of “law” for whom, and for what. The article offers insight into the social dynamics affecting how the rule of law is being interpreted by political actors and how it is being contested and consolidated via governance practices in the region, and proposes new avenues for research in assessing how the rule of law is operating in transitional and authoritarian state settings.     

Samuel Taylor Coleridge on ideas actualized in history

ABSTRACT

Situating Samuel Taylor Coleridge’s thought on historically actualized ideas with reference to a range of classical thinkers, this article examines his intriguing philosophical theory about how ideas become progressively actualized in history. This cultural growth can be understood as contemplation-in-action, although it occurs through mainly fumbling – or else overenthusiastic – human agents. I distinguish Coleridgean first-order, transcendent ideas (such as God, infinity, the good, the soul) from second-order, historical ones (such as church, state, the constitution). It has been argued that Coleridge’s theory of ideas develops from Bacon’s inductive method for discovering laws of nature through experiment and natural law through common law. I further claim that Coleridge upholds the reality of “Forms” in science, and of rights in ethics and politics; that his later political thought is inherently more progressive than is generally admitted; and that his account differs from Schelling’s and Hegel’s respective theories by maintaining the transcendence of ideas above the immanence of their evolving historical actualizations. Coleridge’s philosophy is therefore, whether political or metaphysical, ultimately an ontological defence of the transcendence of ideas above the immanence of their progressive but imperfect actualization.     

Oliver O'Donovan's Critique of Autonomy

Abstract

More than any other contemporary theologian, Oliver O'Donovan has revived political theology as a field of enquiry. Yet O'Donovan has been consistent in his critique of the modern idea of autonomy, judging it to be at odds with the more communitarian idea of covenanted community found in the Hebrew Bible/Old Testament. He contrasts this modern idea, and its political implications, with the older biblical idea, also adding some basic points from Aristotle's idea of the polis. But unlike many contemporary communitarians, O'Donovan is also able to incorporate the idea of human rights into his political theology. He sees this supposedly modern idea having fuller precedence in the biblical idea of mishpat ("justice"), which he takes to be God's primordial claim on His covenanted community, a claim that sufficiently grounds both individual rights and communal rights and which enables them to function together. However, O'Donovan draws the line when it comes to the modern social contract theory, arguing that it is at odds with biblical teaching that the primary responsibility of rulers is to divine law. While agreeing with O'Donovan's rejection of autonomy and his acceptance of human rights, this paper argues against O'Donovan's theological rejection of social contract theory. Instead, it argues that a social contract is consistent with the doctrine of the covenant; indeed that the very possibility of the social contract is best explained by the doctrine of the covenant, and that this acceptance of the social contract serves the best political interests of covenanted communities (like the Jewish People and the Christian Church) in an otherwise secular world.     

From “Spitsbergen” to “Svalbard”. Norwegianization in Norway and in the “Norwegian Sea”, 1820–1925

Abstract

The aim of the paper is to enhance our understanding of the Norwegian acquisition of Spitsbergen/Svalbard by using the concept of Norwegianization as a tool for analyzing the political and diplomatic background for the Spitsbergen treaty of 1920, and comparing the Norwegianization polar politics with the Norwegianization concept used to analyze the internal colonization in the Sami districts of northern Norway during the same period. The paper concludes that the politics of Norwegianization on the main islands in the North Ocean – renamed the Norwegian Sea by Norwegian oceanographers in the 1870s – was an offensive policy of expansionism, motivated by historical and geographical considerations and alleged rights to re-establish the Medieval Norse empire.     

Resistance and the Rule of Law in Mexico

Judicial reform and promotion of the rule of law are at the very top of the political agendas of many developing countries. Moreover, in the context of democratization and a growing concern for human rights and citizenship, many social groups are prepared to use the law as a means to challenge the State. This article looks at how a group in Mexico used the law to resist the State's attempt to expropriate land for urban development. The law was used as a method of opposition as well as a symbol, by allowing the resistance to be represented in the form of ‘rights’. In so doing, the legal discourse exposed deeper concerns for justice, ethnicity and nationhood. The solution to the conflict, however, is shown to bear little relation to either the legal framework which structured the resistance or the legal principles which the confrontation sought to establish.     

The Hopi,the katsinam,and the French courts: looking outside the law in the repatriation of Indigenous cultural heritage

Katsinam (plural of katsina) are effigies central to the religion of the Hopi people of northern Arizona in the United States. Since 2013 the Hopi have sought the return of katsinam being sold in French auction houses. The Hopi have employed a series of legal actions to stop the auctions. All such actions, however, have been consistently denied by French courts. This paper uses social science analysis to understand why the legal actions of the Hopi failed. This paper treats the case of the katsinam as a cautionary lesson in cultural heritage studies, with the goal of drawing insights that can inform other situations involving the repatriation of Indigenous cultural heritage.     

Bringing the feudal law back home: social practice and the law of fiefs in Italy and Provence (1100–1250)

ABSTRACT

The Libri feudorum is a composite law book containing the customary laws of fiefs held in Lombardy which were codified in 1100–1250. Its function in shaping a late medieval ‘feudal vocabulary’ and, ultimately, modern models of feudalism was highlighted by Susan Reynolds and lies at the core of her anti-feudalism paradigm. This paper questions the disjuncture between social practice and learned law that underlies the paradigm, by analysing the context and making of the Libri feudorum and of legal writings associated with it – by Pillius de Medicina, Iacobus de Ardizone and Jean Blanc. By showing how practice could shape legal tools used by learned lawyers to frame fiefs and by reassessing the influence of the Libri feudorum on practice, the paper challenges the idea that fiefs were the outcome of professional or academic law and unveils aspects of the practical nature and intellectual dimension of lawyerly writing.