Evaluación de aislamiento de L/G en segmentos por DS

This research is situated in the discipline of legal anthropology because it encompasses both anthropological and legal methodologies. In an anthropological sense, a multi-method qualitative approach was used and it included participant observation, talanoa (informal conversation), discourse analyses and personal documents. This also involved studying people in their “naturally occurring settings or ‘fields’ by means of methods which capture their social meanings and ordinary activities, involving the researcher participating directly in the setting” (Brewer 2000: 10).

In a legal research context, it is situated in a non-doctrinal research framework of socio-legal research which in essence is legal anthropology (Ian Dobinson and Francis Johns, edited by McConville and Hong Chui 2007). However, I believe that legal anthropology methodology should encompass the doctrinal aspects of legal research, as it is important to locate the source of injustice, and this often requires looking into the source of law. Hence, doctrinal research is when research provides systematic exposition of the rules governing a particular legal category, while doctrinal research is pure theoretical basic legal research that focuses on the use of case law and legislation (Hutchinson 2002). Donovan and Anderson (2003) argue that for anthropology to fully realise its own vision, it needs a collateral discipline of jurisprudence and law. It is therefore, appropriate for this research to look both to anthropology research methodologies and to legal methodologies, as this research required a combination of both doctrinal and non- doctrinal analyses.

This research also considered the legal anthropological methods of “studying up” and “studying down” (Nader 1972: 87). Studying down is taken from the traditional anthropological method where the focus of the study or the ethnography is on the people at the lower end of the social and political ladder. These were often studies that focussed on the natives, the colonised or the powerless in their own local contexts (Donovan 2008). In contrast, studying up is the opposite. Laura Nader led the way in advocating for anthropologists to study up; her work altered the location and methods of anthropology and of legal anthropology in particular. Anthropology

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that studied up, in Nader’s view, is a call for American anthropologists to study themselves and the powerful institutions and bureaucratic organisations in their own country, and how these institutions affect the lives of people that anthropologists have traditionally studied (Donovan 2008).

In assessing both studying down and studying up, this project draws from these two frameworks, and I believe that intellectual property is an appropriate topic to employ the methodologies of both. Donovan (2008) makes significant contributions to these frameworks by adding that intellectual property rights must also reconsider the positive functions of law, such as that identified by Malinowski and those that stand beyond the conceptual techniques of a dispute- centred legal anthropology (178-179). According to Donovan, dispute resolution alone cannot work in intellectual property rights issues because the goal of dispute resolution is to restore the status quo by either compensating victim for damages or returning the victim to her previous condition, and the dispute paradigm cannot serve where the status quo cannot be restored. This is true when we consider that traditional knowledge and traditional cultural expressions of indigenous people and traditional owners have been misappropriated in many ways and forms because of the claim that these have fallen into the public domain.

A reconsideration of the positive functions of law, in this case intellectual property law, supports the position that this thesis argues and likewise the methodological approaches used. In following Nader’s lead, I would further advocate for a ‘space in between’ way of doing research. The space in between is a reconstructed space that is shaped by the position of indigenous researchers who are conducting research in their own communities. These indigenous researchers do not fit into the scope of the studying down nor the studying up, although they may be subjects of these studies. The general themes that link together the works of indigenous researchers are our reliance on culturally appropriate frameworks as a means of decolonising methodologies and on conducting research within our own ethnic communities (Smith 1999; Koloto 2000; Manu`atu 2000).

The difference between a space in between and a studying down approach is that instead of foreigners in positions of privilege conducting studies on the people in unprivileged positions, it is now those in unprivileged positions who are conducting research on themselves or on the situations they are in. In comparing the space in between and the studying up approach, the difference is that the people at the unprivileged position are not only researching themselves and their situations, but also assessing how their situations have been directly influenced and affected

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by the cultures, institutions and organisations of those from the outside who are usually associated with studying up. This further relates to what Donovan (2008) identifies as an account of how forces from the outside impinge on those people, their cultures and their lives. Therefore, as an indigenous Pacific and Tongan researcher, I find myself more a researcher from the space in between.

The use of case law derives from the law school case books. They are used in this work as a research tool that follows closely both a case-centred and an extended case method. The former focuses essentially on rules-oriented theory with restricted attention to formal decision-making events and to the norms incorporated into the official resolution (Donovan 2008). The extended case method introduced a new dimension into the field of law. For instance, “rules and laws were seen as tools to be selectively employed throughout the disputing life cycle. The extended case method focussed on process” (Donovan 2008: 136-137). This shift includes a refocus from institutions and social groups to individuals. So instead of following the case as defined institutionally through the doctrine of precedence, the new process-oriented methodology follows the parties engaged in the dispute.