Preliminary Seminar 1A Law and Anthropology Prof. Giorgio Fabio COLOMBO

Fundamental Notions Lesson n. 2

«Right» and «Wrong»

A real case: [2001] 2 WLR 480 Jodie and Mary were born on 8 August 2000 Conjoined twins joined at the pelvis Medical evidence indicated that Jodie was the stronger sibling who was sustaining the life of Mary Mary had only survived birth due to a shared common artery that enabled her sister Jodie to oxygenate blood for both twins

A real case: [2001] 2 WLR 480 If surgically separated Jodie had a 94% survival rate but Mary was guaranteed to die However if they were left conjoined then Jodie's health was predicted to fail before they were six months old Jodie's death would inevitably result in Mary's

A real case: [2001] 2 WLR 480 The parents, strongly catholic, refused to accept surgical separation of the twins The hospital took legal action to be authorized to carry on the operation What would you do, if you were the judge? What is “right” to do? What should be the guiding criterion?

A real case: [2001] 2 WLR 480 Justice Ward: This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply the relevant principles of law to the situation before us - a situation which is quite unique.

«Law» Possible definitions: The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties (Oxford Dictionary) “Ubi ius ivi societas”: where is the law there is society; or “ubi societas ivi ius”: where is a society there is law

«Law» Rules? Country or Community? Members? Enforcement? Statutes? Cases? Country or Community? Country, OK. But what does define a community? Members? Who is a member of the community? Enforcement? How it is enforcement justified? Imposition of penalties? Who has the legitimacy to impose penalties?

«Law» «Self-regulation of a semi-autonomous social field» (Griffiths) «A body of regularized procedures and normative standards, considered justicable in any given group, which contributes to the creation and prevention of disputes, and to their settlement through argumentative discourse, coupled with the threat of force» (Santos) Is there a definition really necessary?

«Natural Law» The idea that there are some fundamental notions of «Law», «Rights» that exist irrespective of the context E.g. Right to Life  but what is it? Opposed to «Positive Law» Ius positum: the law «(im)posed» by the State Should Law be «moral»? Natural Law and human rights

«Barbarian» Barbarians (Romans) Barbarians (Japanese)

«Barbarian» Barbar  a person who does not speak «our» language «Barbarian» do not necessarily has a negative connotation Germans  Romans  Greeks  Persians  Egyptians Ancient times – Middle Ages - Colonization

«Ethnocentrism»

«Ethnocentrism»

«Ethnocentrism» Ethnocentrism is evaluating another society using our own categories It often leads to despise others Or to find as «peculiar» or «strange» things that are strange just to us Some examples?

«Linear Evolutionism» The idea that all the civiliazitions evolve in the same way Primitive  modern Applied as a cultural tool to justify colonialism

«Indirect Rule» «Direct Rule» In approaching colonized people, two basic «styles» could be identified The «British» style  indirect rule The «French» style  direct rule «Indirect rule» Letting the locals use their own rules and regulate only «common» matters Exceptions (i.e. child marriage, etc.) «Direct rules» Provide legislation for the locals «Stratified» legal system

«Legal Pluralism» «The symultaneous presence of more legal orders in the same geographical area or population» Village, town, state, region National, transnational, international Customary law Religious law