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- Convenors:
-
Filippo Zerilli
(University of Cagliari)
Julie Trappe (University of Heidelberg)
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- Format:
- Workshops
- Location:
- 434
- Sessions:
- Wednesday 27 August, -, -, -
Time zone: Europe/Ljubljana
Short Abstract:
This panel invites anthropologists and legal scholars to provide empirical studies of soft law practices within diverse social fields (migration, trade, bioethics, anti-terrorism strategies, etc). It will be also an opportunity to reflect upon diversity/mutuality between law and anthropology today.
Long Abstract:
'Soft law' has undoubtedly acquired a prominent position in the making of a global legal order. Designating quasi-legal instruments, such as 'principles of conduct', 'guidelines', 'code of practices', 'declarations', it is widely used by non-state actors such as the IMF and the WTO and by transnational political institutions such as the UN, the EU and even the G8. This panel invites empirical (ethnographic) case studies of its concrete functioning within any politicised social field (migration policies, trade agreements, bioethics, security and anti-terrorism strategies, human rights etc). Relevant questions include: how does soft low operate in the realm of social relations, how is it concretely fabricated and by whom? From which sites do its principles and codes of practices emanate? What is the interconnection, if any, between hard and soft law? What is the social logic of their often unquestioned separation? To which extent can soft law be considered the product of a paradigmatic shift from the sovereignty of state law to the supranational legal order of 'fast capitalism'? Is soft law an expression of an increasing economisation of the juridical typical of neoliberal ideology? Who benefits from it and why? We also very much wish the panel to be taken as an opportunity to reflect upon the diversity and mutuality which exist between the disciplines of law and anthropology today, asking how they respectively contribute to the understanding of the contemporary transformation of law (and anthropology) and the production of a global legal order.
Accepted papers:
Session 1 Wednesday 27 August, 2008, -Paper short abstract:
The aim of this introduction is to clarify why soft law practices seem a relevant field to explore from a legal anthropological perspective, and to raise a number of issues the workshop would like to address.
Paper long abstract:
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Paper short abstract:
This paper examines how "soft" affirmative action intiatives for the "black" population have been introduced into the Brazilian private sector through voluntary, fragmentary, and overlapping global policy frameworks such as human rights, CSR, ILO conventions, and sustainability goals.
Paper long abstract:
This paper examines how a variety of forms of "soft" affirmative action initiatives have made inroads into the Brazilian private sector through voluntary, and sometimes overlapping, global policy frameworks such as human rights action plans, corporate social responsibility indicators, international labor conventions, and sustainability goals. Since the late 1990s, policies and practices endorsing diversity and affirmative action for Afro-descendants have significantly extended from U.S.-based corporations operating in Brazil to non-U.S. corporations, mostly European and large Brazilian enterprises. Yet, in Brazil, despite the constitutional illegality of racism and the Brazilian government recent endorsement of affirmative action, this has not been made legally mandatory, as a U.S.—"hard"—civil rights approach would suggest. At the same time, many Brazilians oppose affirmative action on the grounds that it challenges the so-called myth of "racial democracy," the belief that there is no racial prejudice in Brazil and that the Brazilian national character is a product of the blend of European, Indigenous, and African elements. Based on fieldwork carried out during 2004 and 2005 among an enterprise network located in São Paulo, this paper will discuss how global policy frameworks, albeit limited, fragmentary, and sometimes controversial, may also act as powerful metaphors, or protecting "institutional umbrellas" for specific stakeholders. Thus, policy-relevant groups such as mangers, consultants, advocators, and activists very often use them in order to make their own cases stronger, particularly, in contexts where legally binding—"hard"—public policy frameworks regarding highly controversial issues are either absent, "undiscussable," or do not operate.
Paper short abstract:
The proposal will examine the EU’s production of soft laws for the promotion of EU cultural policies during the “Year of Intercultural Dialogue.” It will particularly investigate the European Commission’s experimentation with the Open-Method of Coordination as a tool for European integration.
Paper long abstract:
DG Education and Culture at the European Commission (EC) is promoting "The Year of Intercultural Dialogue 2008" (EYID) in hopes of issuing voluntary guidelines for EU countries to implement, comprised of a set of concepts and actions to help member states foster "tolerance" and diversity while facilitating unity through exchange between diverse cultures within and beyond "Europe." In this way, the EC has moved from promoting cultural programs to producing European cultural policies by experimenting with the Open-Method of Coordination (OMC). The proposal therefore, will analyze the EC's "EYID" as an instance of the OMC and the cultural management within the EU which becomes particularly controversial when factoring in the following two dimensions of culture administration: the principle of subsidiarity; and the influx of Muslim immigrants which seems to challenge "European" values of inclusion. This proposal will explore how bureaucrats at the EU articulate, understand and/or transform notions of "culture" and "law" as they engage with these two forces. It is also invested in exploring the uses of soft law and the way these laws may change the way in which culture is understood under the contexts of subsidiarity and immigration. How do EU bureaucrats measure the impact of cultural soft laws?; What are the law-like mechanisms used to enforce compliance?; Who takes part in developing these mechanisms and guidelines that are designed to have an impact on policy-making at the member state level?; How does the use of the OMC blur the lines between cultural consciousness/competence and legal consciousness/competence?
Paper short abstract:
This paper examines how a specific policy-area, namely Occupational Health and Safety or Work Environment, uses hard and soft regulation to improve employee-conditions. We discuss whether and how the use of hard and soft law is influenced by trends in governing and differentiated according to which subfields of work environment are targeted. Corporate Social Responsibility (CSR) is a type of soft regulation that also covers issues of Occupational Health and Safety, and we discuss how principles of CSR is used in policies of work environment.
Paper long abstract:
In Denmark issues concerning occupational health and safety have traditionally been regulated and monitored by legislation, certificates, reports and collective bargaining. Work environment in small companies is hard to reach by these traditional types of regulation and certain aspects of work are difficult to cover - for example psycho-social aspects of work. We regard CSR as a type of soft regulation and examine how CSR enters small firms' work environment policies. Our paper is based on interviews in 21 small Danish companies, 3 larger companies and with 7 CSR-experts.
Until recently, the CSR-debate has almost exclusively focused on big companies. Small companies have only recently caught attention in the CSR-debate. Small companies are motivated by their stakeholders to work more strategically with CSR: E.g. many branches in Denmark currently experience a shortage of labour which makes the need for recruitment and retention an argument for engaging in CSR activities focusing on employees. Furthermore, big companies increasingly require their suppliers to meet certain social and environmental demands. The influences from various parties contribute to the formation and fabrication of CSR in small companies.
We shall ask: How a soft law practice as CSR enters the arena of smaller companies, who strive to improve their work environment? Do the principles of CSR offer a possibility to improve work environment in small Danish companies? What kind of impact has the introduction of such a soft law on the working conditions? And where is CSR relevant and where does it meet its limits?
Paper short abstract:
The paper explores the use of international and national soft law to regulate 'collective memory'.
Paper long abstract:
Dealing with serious crimes such as genocide and crimes against humanity is no longer a topic reserved for judges. Beyond individual responsibility and punishment, international and national organisations and institutions have tried in recent years to codify what is roughly understood as 'collective memory' by using soft law. Documents such as the Declaration of the Stockholm International Forum on the Holocaust (2000), the Resolution on the Need for International Condemnation of crimes of totalitarian communist regimes adopted by the Parliamentary Assembly of the Council of Europe (2006), the European Parliaments Declaration on the International Condemnation of the Franco Regime (2006), the Declaration of the condemnation of the communist regime by the Romanian Parliament (2006), or even some of the French Lois mémorielles (1990-2006) and the Spanish Ley de Memoria Histórica (2007) are all a case in point.
Examining and comparing some of these examples this paper explores the role and effect of such soft law instruments in the process of dealing with serious crimes. Do those moral and political condemnations in a legal framework represent a useful mean of coping with the past by establishing a necessary duty to remember or do they rather violate the 'liberty of history'? To what extent can soft law establish hegemony over interpretation on historical facts and who are the main social actors involved? The paper also aims to scrutinize the way the mentioned soft law instruments are produced and used in a specific political context, considering as well the interference between the national and the international level.
Paper short abstract:
This paper explores the use of soft law by those involved in the drafting of a Bill of Rights for Northern Ireland, drawing in particular upon the author's experiences as legal advisor to the Language, Culture and Identity Working Group of the Northern Ireland Bill of Rights Forum.
Paper long abstract:
This paper explores the use of soft law by those involved in the drafting of a Bill of Rights for Northern Ireland, drawing in particular upon the author's experiences as legal advisor to the Language, Culture and Identity Working Group of the Northern Ireland Bill of Rights Forum. The first part of the paper compares the content and status of three international minority rights instruments (the CSCE/OSCE Copenhagen Document (which includes a section on minorities), the UN Declaration on the Rights of Minorities 1992 and the Council of Europe's Framework Convention for the Protection of National Minorities 1995). This part of the paper reflects on the extent to which each instrument can be appropriately categorised as either 'hard' or 'soft' law and aims to challenge some of the assumptions underlying any prima facie attempt at such a categorisation. This is explored further in the second part of the paper, which highlights some of controversies that have arisen in debates over the content and scope of provisions addressing language, culture and identity issues in any future Bill of Rights in Northern Ireland. This part of the paper focuses in particular on some of the challenges presented by calls for the incorporation of the Framework Convention into domestic law and questions the appropriateness of using international 'soft law' in a bill of rights drafting process.