This chapter contains sections titled: A Mirror of Society that Functions to Maintain Social Order Law as Social Ordering The Institutional Form of Law The Semiautonomy of Legal Knowledge and Processes Legal Pluralism Law and Society in the Twenty‐First Century–Law as an Instrument References.

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by (...) explicitly proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

Deconstruction both by its friends and enemies has come to be associated with a set of cliches that completely misunderstands its ethical aspiration. It is particularly within the field of law that we can see the ethical force of deconstruction, and also illuminate its concrete and practical importance. In The Philosophy of the Limit Drucilla Cornell examines the relationship of deconstruction to questions of ethics, justice and legal interpretation. She argues that renaming deconstruction "the philosophy of the limit" will (...) allow us to be more precise about what deconstruction actually is philosophically and hence to articulate more clearly its significance for law. Cornell explores the ethical and juridical significance of the so-called postmodern rebellion against metaphysics. A shared ethical rebellion links philosophers as different as Theodor Adorno, Jacques Derrida, Jacques Lacan, and Emmanuel Levinas. Together they present a new ethical configuration, new in its difference from both the critical social theory of J$u$urgen Habermas and the analytic jurisprudence of Nagel and Rawls. A key aspect of this newness is the centrality given to the relationship between questions of ethics and sexual difference. Cornell argues that the appeal of Lacan's analysis to feminists is that it helps to explain the profound hold the gender hierarchy has over Western culture, including its theories of political transformation. Under a Lacanian analysis the law of gender identity will be replicated in the laws of an existing legal system. This means that we cannot hope to sustain legal reforms unless the gender hierarchy is challenged. Cornell examines Derrida's position on the significance of the gender hierarchy in philosophy and explores its ethical and political importance. Derrida's intervention against legal positivism has important implications for the legal reforms necessary to protect marginalized groups. His emphasis on the limit, she argues, is crucial to thosewhose well-being and very lives may depend on legal transformation, women and homosexuals, for example. In an important contribution to legal philosophy, Cornell explores the affinities of Derrida's writings with recent liberal analytic jurisprudence. She also explores the differences. Comparing Rawls's and Derrida's accounts of justice, she argues that Derrida gives greater attention to the necessary utopian moment in his insistence on maintaining the divide between law, established norms, and justice. Cornell's focus on the importance of the limit and the centrality of the gender hierarchy allows her to offer a view of jurisprudence different from both critical social theory and analytic jurisprudence. As we watch the long-fought-for civil rights of women systematically overturned, we have reason to think about how the connections she makes shed light on an underlying truth of our social, political, and legal reality. (shrink)

PHILOSOPHY OF HUMAN RIGHTS: HUMAN RIGHTS IN LIGHT OF THEIR INTERNATIONAL PROTECTION Summary The book consists of two main parts: in the first, on the basis of an analysis of international law, elements of the contemporary conception of human rights and its positive legal protection are identified; in the second - in light of the first part -a philosophical theory of law based on the tradition leading from Plato, Aristotle, and St. Thomas Aquinas is constructed. The conclusion contains an (...) application of the results of the analysis conducted in the second part. The first part comprises four chapters. The first aims at revealing characteristics of human rights on the basis of an analysis of historical conditioning of the inter-national law of human rights and its development. The historical context displays the practical, vindicative, and critical character of the positive legal protection of human rights. Moreover, the process of change of positive human rights law is distinguished from the process of change of human rights as such. In the second chapter the content of human rights - a topic which is only auxiliary to the conducted analysis - is discussed. Basic typology and catalogues of rights proclaimed in the Universal Declaration of Human Rights and protected in the International Covenants of Human Rights are presented. The review of the content of rights aims at a more precise limitation of the field of research. The examination shows a diversity of rights which poses a serious challenge to the coherence of every philosophical theory of human rights. In the third chapter, central in the first part, international law is analyzed with regard to the characteristics of rights and the foundations of them. The analysis of documents shows a number of solutions referring to the anthropological foundations of rights. The inherent dignity of the human person is the source of all human rights. Each human being is recognized as free, and endowed with both reason and conscience. In the propounded conception of man individuals are not rivals but create a community which is a condition for their development. International law characterizes the rights as universal, inherent, inalienable and inviolable. The reconstructed conception also comprises the following basic elements: on the level of the structure of rights, a recognition of their equality, interdependence, and comprehensiveness; in the grounding of these rights, a recognition of the anthropological foundations of law; in the conception of positive law, a recognition of the secondariness of the positive law of human rights to human rights themselves, and a recognition of human rights and justice as the basis for legal order; in the conception of state, a recognition of the well-being of the individual as the fundamental aim of actions undertaken by political institutions, and recogni¬tion of rights which form an impassable boundary to the power of the state, includ¬ing its legislative actions. The characterization of the international legal paradigm serving for the under¬standing of human rights is supplemented by analyses of the structure of their posi¬tive legal protection. Various meanings of the terms "right" and "freedom" are distinguished. Subjective right, as basic structure of the positive legal protection of human rights, is understood as a complex relation formed by various legal situations of the subject of a right which create a functional whole in respect of the subordi-nation of human person to its good. Subordinating person to a good proper for it, expressed usually in a proclamatory norm, is the central element of particular rights around which further elements aiming at the realization of this good are built. In the second part of the book a philosophical theory is developed which allows for the location of a coherent foundation for the presented characterization of human rights and their positive legal protection. This part consists of two chapters. The first includes a review of some - not entirely satisfactory - means of founding of human rights; the second presents philosophical conceptions of law and man which may form a basis for the constructed theory. The review of arguments contained in the first chapter does not aim at a detailed analysis of various specific ways of argumentation encountered in works on this subject but rather at a concise presentation of the main possible lines of argumentation. These analyses also serve to emphasize the positive solutions which are pro¬posed later and to underscore the explanatory power of the elaborated theory. This theory, retaining accurate intuitions contained in the presented types of argumenta¬tion, helps in avoiding their consequences which are difficult to reconcile with the reconstructed paradigm of human rights. Efforts to base human rights on the norms of international law rightly take into account the necessity of determining the content of the rights and their positive legal protection as a means for the realization of man's good. These attempts, how¬ever, do not properly take into account the inherent character of human rights, which are independent of positive law and provide grounds for applying specific legislative measures and not others. Founding human rights on freedom accurately points at the freedom of an indi¬vidual as a constitutive element of some rights; however, absolutization of freedom leads, to a loss of an important element of the contemporary paradigm of under¬standing human rights. This foundation undermines recognition of the fact that human rights may set limits to both the freedom of others and the freedom of the subject of rights itself. Additionally, attempts at the so-called axiological justification of human rights are discussed. This type of justification has a few variants depending on the as¬sumed conception of value. Subjectivistic conceptions have similar advantages and disadvantages to the conceptions basing human rights on freedom; objectivistic conceptions while providing for the universality of human rights place, the fundamental aim of human rights protection beyond the individual human being - in the idealistically existing world of values; finally, conceptions rooting values and human rights in culture, while accurately noting that human rights are learned through the medium of culture, place the source of human rights beyond a concrete individual - in culture and processes which take place in it - which leads to difficulties in finding a basis for the universality of rights. Furthermore, attempts to ground human rights in specific characteristics of the human being are presented. This type of approach points to an important problem of dependence of the content of rights on what man is. However, recognition of specific characteristics of a human being as an ontic foundation of the existence of rights poses a danger to their universality since one has to accept that it is not enough to be a man to be a subject of rights, but a man possessing specific charac¬teristics. The second chapter aims at outlining solutions worked out by Saint Thomas Aquinas. For a fuller understanding of his propositions selected elements of Plato's and Aristotle's philosophy are presented. It was them who formulated the founda¬tions for reflection on law and justice in the ontological context. A qualification is made that Stoicism is not be analysed in depth. Although Thomas' concept of law was undoubtedly developed under the influence of the Stoic doctrine as well, it is not in this that one should look for the tools to understand the ontic foundations of human rights and law in general since the Stoic moral philosophy and philosophy of law were developed in the context of a theory of being which assumed monistic and pantheistic premises as foundations, leading to the recognition of a total subor¬dination of the human individual to a larger unity of which man is only a part. The analysis of Plato's and Aristotle's texts concentrates on problems of justice. Plato seems to be the first philosopher who reflected on the formula basic in the history of European thought: to render to each his due. It appears that justice as both a characteristic of man and his acts is understood in the perspective of that which is just, that which is a good for another man - the recipient of the act. The basis for determining what is just is the relation of correspondence between some¬one and something. While in the case of Plato this relation is based on something beyond its terms, namely on ideas, in the case of Aristotle the relation occurs on account of the elements of the relation itself. Something is just when it contributes to the develop¬ment of the recipient of an act realizing that which is just. At the same time, the realization of that which is just is a good for the agent. In the analysis of the just two types of relation are revealed: the relation of due-to-recipient occurring on account of the compatibility of that which is due, with the recipient of the act; and - a "superstructure" - a relation of obligation-of-subject occurring on account of the compatibility of the acting subject with the thing which should be done. The basis for being that which is due is formed by various potentialities of development of man - the recipient of agency; the basis of being that which is an obligation is the possibility of development of the subject of action. Aristotle distinguishes various types of freedom and points to the necessity of taking them into account in the discussion of justice. Among other things, as the core of man's freedom, he considers life for its own sake, which can be seen as his expression of the basic indices of the autotelic character of man - which is funda¬mental for later conceptions of dignity. The freedom which is described by him is not, however, inherent and inalienable; being free is conditioned by a factual possi¬bility of undertaking actions, which are not solely means to the realization of aims set by others. Thomas Aquinas takes over the Aristotelian research perspective both in his conception of man and of law. At the same time, however, he significantly enriches it. In anthropology he develops a conception of personal being. Drawing upon his distinction between existence ("that something is") and essence ("what something is"), he sees the basis for being a person in the dignity of personal being which is a certain way of existence of a rational being more perfect than that of non-personal beings. The person is a being which, by virtue of its act of existence, is individual¬ized in a specific way. It is an aim in itself. Expressing it in a negative way, one may say that it does not exist as a means for the realization of the aims of others and, in this sense, that it is free. As distinct from Aristotelian conclusions, being a person is not conditioned by the specific actions of a being. Dignity is inherent, based on that which is the foundation of the factual existence of every rational being. Although freedom requires that a being is rational, dignity still encompasses all being, all its properties and potentialities. Thus an act conforming with dignity has to take into account a whole human being. Among different types of that which is just, ius, the first place, from the point of view of understanding law, falls to "the just thing itself ("ipsa res justa"), which is right in the full meaning of the word. On the one hand, it is that which is due; on the other hand, it determines the way of acting in the utmost degree, since the course of every act is determined in the fullest extent by its aim. The content of ius may be determined both by elements independent of free decisions - ius naturale - and by free decisions taking into account the state of things - ius positivum. Recognition of the objective structure of being as the basis of law does not entail that it is possible or desirable to determine unequivocally "the only right" patterns of conduct. This concept is very well justified within the system proposed by Saint Thomas. Individualization of being is a significant element of the develop¬ment of a person as a person. It is attained by the realization of individual aims which are not unequivocally determined by circumstances and the nature common to all people. By virtue of free choices made in the sphere of that which is not by its nature unjust, the object of action becomes ius. Since in the realization of the person the individualization of human being is central, Aquinas clearly sees the need for the protection of the sphere of "dominion of will". This sphere itself constitutes ius naturale, something which is due to man independently of the acts of will. Therefore "law should forbid nothing which is not unjust" ("nihil debet lege prohiberi quod licite fieri potest", In 3 Sent., dist. 40, q. I, a. 1, 3). Besides the relation of due-to-recipient, ius also includes the relation of obligation-of-subject which is superimposed on the relation of due-to-recipient. As far as the ontic foundations of obligation are concerned, in explaining why man is subordinated to realization of the good of others, Aquinas generally follows Aristotle in accepting that this basis is the subordination to moral good - to actions conforming with the learned truth about reality. Aquinas' systemic solutions allow, however, to reach deeper and understand why moral development is also a development of the whole human being. This was difficult within Aristotle's system, since he was reluc¬tant to decide whether precedence should be given to intellectual or moral develop¬ment. The inclination to realise good of another appears to be a transcendental characteristic of being, based on its very existence. Morality understood as rational and free subordination to realize the good of another is a specifically personal way of the realization of this inclination. Thus just actions contribute to the actualization of being in the aspect of its existence and therefore to the actualization of being as a whole. Thomas' conception of natural law (lex naturalis) as participation in eternal law (lex aeterna), offers possibilities for grasping that which is just as something which is basically accessible cognition, independently of Revelation and independently of faith in God, and at the same time as something based in eternal law, understood as a design of God's wisdom. Eternal law, embracing all particular actions, is not, from the human perspective, accessible cognition directly. It is enacted in the struc-ture of the created being and - in case of human beings - in free choices taking this structure into account. In the concluding remarks, the results obtained earlier are applied directly to the contemporary conception of human rights. Human rights are understood in the first place as "just things" - concrete goods of man; as that which is due because of subordination, based on dignity, to the personal development of man. That which is just is understood as a relational - actual or potential - state of things, which exists by virtue of existing relations. Evaluations referring to that which is right are true when respective relations of due-to-recipient take place; norms of conduct are true when respective relations of obligation-of-subject take place. Examples of the application of the sketched theory outside the field of human rights are also presented. Procedural consequences of the developed theory are shown, such as the discrimination of two types of legislative procedures which differ significantly in the structure of argumentation: the first aims at recognition of that which is just independently of the will of the legislator, and the second, at making individual or collective "projects" of development compatible. Finally the possibilities of applying the theory to the increasingly important problems of the protection of the environment and the "rights" of animals are mentioned. The central issue is a philosophical conception of man and his freedom and a conception of law. It is also indispensable to turn to a general theory of being. The search for a comprehensive theory of human rights requires attention to the Abso¬lute Being - God - as well. This is important for at least two reasons. First, a conception of the Absolute Being is integral to philosophy of the systemic type -of which the present book is a piece. A conception of the Absolute Being is signifi¬cant for understanding all being, including, first of all, man as a personal being. Second, every theory of human rights which does not comprise the problem of the Absolute may be questioned as to whether solutions adopted in it do not lead, in consequence, to eliminating God from the perspective of the understanding of law. It is desirable that a philosophical theory should deal with this problem directly. A theory which eliminates God from the perspective of the understanding of rights will be unacceptable for all those who, for philosophical reasons or relying on faith, consider God as the author of inherent rights. Nevertheless, a theoretical approach to rights from the perspective of the Absolute Being should only be a possible extension of a philosophical approach which bases rights on something which is cognizable independently of the acceptance of the existence of God so that the theory is also acceptable for those who reject the existence of God or suspend their judgment on this subject. The pursued theory should therefore contain, on the one hand, reference to natural, faith-independent foundations of human rights, but on the other hand, point to a possible extension accounting for the Absolute Being. The analyses contained in this chapter have undoubtedly some historical value since they are based on source texts. Nevertheless, the use of these texts and not critical works was dictated, first of all, by a conviction that analyses embrace a given theory in the aspect selected by the interests of the researcher. Therefore to find out what past thinkers say on the subject characterized in the first part it is simpler to reach to the sources than to adopt the existing critical works. The pre¬sented reconstruction of Aquinas' views on philosophy of law incorporates proposi¬tions of supplementing and developing some of the ideas undertaken by him. Obligation to act in this and not an other way arises because human actions are subordinated to the conformity, on the one hand, of aims realized by these actions and, on the one hand, the order of being determining that which is favourable to man or destroys him. The content of the order of being is, on the one hand, determined by the structure of being independent from man's will and, on the other, by free decisions of man. (shrink)

Background: International codes of ethics play an important role in guiding professional practice in developing countries. In the occupational health setting, codes developed by international agencies have substantial import on protecting working populations from harm. This is particularly so under globalisation which has transformed processes of production in fundamental ways across the globe. As part of the process of revising the Ethical Code of the International Commission on Occupational Health, an Africa Working Group addressed key challenges for the relevance (...) and cogency of an ethical code in occupational health for an African context through an iterative consultative process. Discussion: Firstly, even in the absence of strong legal systems of enforcement, and notwithstanding the value of legal institutionalisation of ethical codes, guidelines alone may offer advantageous routes to enhancing ethical practice in occupational health. Secondly, globalisation has particularly impacted on health and safety at workplaces in Africa, challenging occupational health professionals to be sensitive to, and actively redress imbalance of power. Thirdly, the different ways in which vulnerability is exemplified in the workplace in Africa often places the occupational health professional in invidious positions of Dual Loyalty. Fourth, the particular cultural emphasis in traditional African societies on collective responsibilities within the community impacts directly on how consent should be sought in occupational health practice, and how stigma should be dealt with, balancing individual autonomy with ideas of personhood that are more collective as in the African philosophy of ubuntu. To address stigma, practitioners need to be additionally sensitive to how power imbalances at the workplace intersect with traditional cultural norms related to solidarity. Lastly, particularly in the African context, the inseparability of workplace and community means that efforts to address workplace hazards demand that actions for occupational health extend beyond just the workplace. Summary: A stronger articulation of occupational health practice with advocacy for prevention should be an ethical norm. Ethical codes should ideally harmonize and balance individual and community needs so as to provide stronger moral authority guidelines. There is a need to consider an African Charter on Bioethics as complementary and strengthening of existing codes for the region. (shrink)

This paper investigates material legalism and its influence on shaping the Albanian communist state. It aims to shed light on the underlying complexities and constraints of material legalism in Albania by analyzing the legislation established during the proletariat dictatorship. This underscores the disparity between the communist ideology, which was claimed to be liberating and progressive, and the history of a legal system that extended control even into private matters. Consequently, challenges arose in the legal interpretation, implementation, (...) and practical enforcement of normative laws in Albanian society. In conclusion, this study emphasizes the importance of recognizing both the formal and material realities when establishing an effective legal order to meet the needs of Albanian citizens. (shrink)

_Purpose._ The main purpose of the article is to study the anthropological and socio-philosophical dimensions of human existence in the context of hostilities by highlighting the aspects of transformation of anthropological legal values of human existence during the war. _Theoretical basis._ The methodological tools are presented in the interaction of axiological, synergetic, socio-legal and comparative methods. The survey method is used to obtain quantitative data on the self-assessment of Ukrainian citizens in relation to the war, changes in (...) their internal intentions as a result of the crisis of social reality. _Originality._ Military actions can act both as a catalyst for the formation of new anthropological legal values, in accordance with the specifics of martial law and the need to adapt legal systems to the challenges arising in wartime, and as a destructor of certain value attributes of society. _Conclusions._ The nature of paradigmatic changes in wartime is represented by the metamorphosis of anthropological legal values, which manifests itself in profound changes in the philosophical understanding of man, the transformation of legal principles and the revision of moral norms in society. Reflections on the legal paradox appear in attempts to balance the need to keep within the law with the requirement to ensure security and defence in the first place. The article highlights the following aspects of changes: revision of the concept of individual rights and freedoms by recognising that individual rights may be subject to restrictions for the sake of the common good or national security; new legal values arise which are related to the protection of human rights in war conditions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:DEAD MAN WALKING: ON THE CINEMATIC TREATMENT OF LICENSED PUBLIC KILLING Edmund Arens University ofLucerne I regret that so many people do not understand, but I know that they have not watched the state imitate the violence they so abhor. (Sister Helen Prejean) ~T\eadMan Walking, thehighlyacclaimed second film directed by Tim -Z-^Robbins, seems appropriate for discussion in the symposium's context oíFilm andModernity: Violence, Sacrifice andReligion. This film on the (...) one hand thematizes different forms ofviolence and victimization; on the other hand it presents divergent forms ofreligion. And it does so in a way which not only demonstrates the interplay of violence and religion but also opens up the chance of transcending various kinds of sacrificial structures inhabiting that interplay. We can approach DeadMan Walking in five steps. After some general remarks about this film as a work of art, I will briefly review the story line. In the part called Themes and Topics, I will outline some of the predominant topics addressed in this movie. The fourth step is devoted to the interrelation of Violence, Victimization and Redemption. Finally, the religious or theological question comes into view under the heading of Proximity and Testimony, an aspect which at the same time has a definite link to law and the legal system. I. DeadMan Walking as a Work of Art According to Susan Sontag, film "currently is the most vivid, the most stimulating, and the most important of all genres of art" (Sontag 13). But Edmund Arens15 whether a particular film really can be considered as a work of art depends on a number of presuppositions, a few of which I shall mention here. Without going too deeply into the debate on the nature and purpose of aesthetic production, there are at least some requirements which point to a work ofart. Roughly speaking, it is defined by putting matter and form into a certain relation, by creating or producing a certain structure, by adopting a certain style and by organizing the material by means ofgenres (all ofwhich relates to the classical notion of poesis). Secondly, a work of art deals with perception in a double way: while it implies a certain perception ofreality, it also invites the audience to participate in this perception and thus to deepen, alter, or correct the perception that they experienced (something which relates to aisthesis). Thirdly, art aims at having certain emotional effects on the public that are either purifying or edifying (something which since Aristotle has been discussed as katharsis). Ifthese three dimensions (cf. Jauss; Siller) are always involved in works ofart, we can ask how in DeadMan Walking the interplay ofpoesis, aisthesis, and katharsis is at work. Under certain conditions a film is a creative work ofart. In this case, the motion picture, whether documentary or fictitious, includes an aesthetic creation of an imagined reality. It does not simply mirror reality but always reconstructs or reshapes it. In fictional film narrative, everyday reality is disrupted and rearranged by means of a variety of formal and material techniques. The treatment of reality necessarily involves the question of representation. What Paul Ricoeur considered as decisive for narrative fiction, applies to narrative fiction films as well: they make use of "calculated dissonance" which disrupts everyday reality and thereby points to a "redescription ofreality" (Ricoeur 1975; 1976; 1986). We shall see later on how this process, attributed especially to certain metaphors, works in the case ofDeadMan Walking. Besides the topic ofrepresentation, any kind of art raises the question of perception. Art implies a certain perception and at the same time it offers or invites—in the case of visual art—the audience to perceive reality in a different or deeper manner. In amovie the audience, whether by a manipulative "aesthetics of overwhelming"1 or by an aesthetics of disclosing, is moved emotionally and imaginatively, the aim being to direct their attention to the secret ofthe things shown and thus to direct or redirect their view ofreality. From the point of view of a pragmatic theory of action (cf. Arens 1994; 1997b) which additionally takes up Ricoeur's most important insights, I would 'The term has been coined by Heiner Müller; quoted from Kirsner... (shrink)

Abstract:Highly immersive virtual reality (VR) systems have been introduced into the consumer market in recent years. The improved technological capabilities of these systems as well as the combination with biometric sensors, for example electroencephalography (EEG), in a closed-loop hybrid VR-EEG, opens up a range of new potential medical applications. This article first provides an overview of the past and current clinical applications of VR systems in neurology and psychiatry and introduces core concepts in neurophilosophy and VR research (such as (...) agency, trust, presence, and others). Then, important adverse effects of highly immersive VR simulations and the ethical implications of standalone and hybrid VR systems for therapy in neurology and psychiatry are highlighted. These new forms of VR-based therapy may strengthen patients in exercising their autonomy. At the same time, however, these emerging systems present ethical challenges, for example in terms of moral and legal accountability in interactions involving “intelligent” hybrid VR systems. A user-centered approach that is informed by the target patients’ needs and capabilities could help to build beneficial systems for VR therapy. (shrink)

continent. 1.4 (2011): 242—252. Introduction The following two works were produced by visual artist Jonas Staal and writer Vincent W.J. van Gerven Oei during a visit as artists in residence at The Bag Factory, Johannesburg, South Africa during the summer of 2010. Both works were produced in situ and comprised in both cases a public intervention conceived by Staal and a textual work conceived by Van Gerven Oei. It was their aim, in both cases, to produce complementary works that could (...) be read “through each other,” in which the movement of artistic construction would be imitated by textual deconstruction and vice versa. Both works deal with the way in which capital, apartheid, and monumentality are interwoven in South-African society. The Missing Link addresses a monument for democracy, erected on the premises of a private corporation running both an amusement park and the Apartheid Museum franchise. The textual intervention accompanying this public intervention investigates the limits of the inclusiveness of the anti-discrimination section in the South-African constitution, itself a monumental work of democracy. The Monument for the Distribution of Wealth deals with the history and eventual dissolution of a monumental square, commemorating the Soweto Uprising, in one of the poorest townships of Johannesburg. The history accompanying this public dismemberment of memory is equally fragmented, which is expressed by the many voices recounting uncertain and perhaps even irrelevant “facts” about the genius loci, the way in which the memorial space has actually entered into the memory of the inhabitants surrounding it. Next to their individual practices, Staal and Van Gerven Oei have worked together on a number of projects ever since 2007, including several art residencies. Their work involves an investigation of the different interfaces between art, politics, and public space in media ranging from theater and public interventions, to video installations and (co-authored) textual works. The Missing Link Missing Link (1) Missing Link (2) Missing Link (3) Intervention on the monument entitled The Seven Pillars of the Constitution , part of the Apartheid Museum in Johannesburg, South Africa. The Seven Pillars represent the constitutional values propagated in South Africa since the abolition of the apartheid regime. The monument and museum were built by the Gold Reef Resorts corporation, which is also responsible for the theme park and casino next to it. By placing the word “capitalism” on the wall surrounding the museum, the capitalist system and the constant social divisions that it implies are interpreted as sophistic continuations of apartheid politics. Through the capitalist system, apartheid is still operational within South African society. Whereas during the apartheid regime, the separation clearly ran along race divisions, in the current, “democratic” system, the same actual separation is sustained without it being an explicit element of the foundations of the country, i.e. the constitution. This intervention foregrounds the constant role of capitalism is both periods. At the same time the intervention acknowledges that contemporary Western artisthood is a mirror of the privileges that are offered by the capitalist system, and the type of artist that it produces. The intervention initiates a critical discourse concerning the capitalist system situated within the disaster of capitalism itself, in other words: through the desire to break with the presumption that art would be able to operate outside the capitalist system and to confirm that art—and the artist himself—is in fact modeled on this system. The public intervention by Staal was supplemented by a textual intervention by Van Gerven Oei: a proposition to alter the seventeenth amendment of the South African constitution. Even though the anti-discrimination legislation in South-Africa is one of the most stringent and inclusive in the world, one factor—wealth—remains outside its scope, thus continuing the schisms along racial lines produced during the apartheid regime: §9.3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, and wealth. Monument for the Distribution of Wealth Intervention concerning the June 16 Memorial Acre in Central Western Jabavu, one of the poorest townships of Johannesburg. The monument comprises a park on which different are placed recalling an important protest the black population against the former apartheid regime. In 1976, from a school adjacent to the park, they started a massive protest against the introduction of Afrikaans in the school curriculum. The police reacted violently, and shot several hundreds of students. The construction of the June 16 Memorial Acre was started in 2005, and from the start was the paragon of corruption. Coordinated by local politicians, some family members of the protest leader from 1976 gained control of the realization of the monument, outside the regulation through external institutions. The available budget of 41 million rand (at that time well over 5 million euro) was largely embezzled. In the meantime, the monument has become fully dilapidated and defaced. The park has become overgrown with weeds and covered in a layer of dirt, and the local population is slowly plundering the square to use the material for the construction and decoration of their own houses. The Monument for the Distribution of Wealth develops the dynamics already existent around the June 16 Memorial Acre. Without obtaining official permission in advance, several local inhabitants were hired to break down the monument, sort the materials, and offer it to the neighborhood. Thus, the redistribution of wealth after the fall of the apartheid regime is finally taking place, albeit from the mere remains of the capital that was once invested in the community. The words “monument” and “for free” are spray-painted on the stacks of material, both in English and Zulu, as these are locally the most common languages. Van Gerven Oei supplemented Staal’s public intervention with an account of the history of the monument based on a series of interviews. The account clarifies how the different interests within the protest 1976 are reflected in the exceeding decay of the park, and how in the end those interests were represented by the June 16 Memorial Acre. Monument for the Distribution of Wealth 1: Removing stones Monument for the Distribution of Wealth 3: Pulling down statues Monument for the Distribution of Wealth 4: Offering the material Monument for the Distribution of Wealth 5: Offering the material Monument for the Distribution of Wealth 6 The next day A Fragmentary History of the Monument for the Distribution of Wealth, Formerly Known as the June 16 Memorial Acre in Central Western Jabavu, Soweto Vincent W.J. van Gerven Oei The following text, based on interviews and online research aims to provide parts of a history of the park in front of Morris Isaacson High School in Central Western Jabavu, Soweto. The idea for the transformation of the park into a memorial site has its source in the events of June 16, 1976: the start of the the student uprising in Soweto. The development of the park was started in the early 1980s, and the actual transformation into a memorial site, the June 16 Memorial Acre, was initiated in 2005. Over the last few years, several monumental additions have been made to the park: A marble monument with three pillars was revealed on June 16, 2006. A sculpture of a book and several billboards on June 16, 2008. A sculpture of student leader Tsietsi Mashinini on June 16, 2010. The park was transformed into the Monument for the Distribution of Wealth on August 3, 2010. According to the entry “Youth Struggle” on the website South African History Online, the Bantu Education Act was introduced in 1953 . In 1954 , Dr Verwoerd, Minister of Native Affairs, stated: “What is the use of teaching the Bantu child mathematics when it cannot use it in practice? That is quite absurd.” According to the entry “Soweto uprising” on Wikipedia, the Afrikaans Medium Decree was issued in 1974 , forcing all black schools to use Afrikaans and English in a 50-50 mix as languages of instruction. The Regional Director of Bantu Education (Northern Transvaal Region), J.G. Erasmus, told Circuit Inspectors and Principals of Schools that from January 1, 1975 , Afrikaans had to be used for mathematics, arithmetic, and social studies from standard five (7th grade). English would be the medium for general science and practical subjects. Indigenous languages would be used for religion instruction, music, and physical culture. According the entry “Soweto uprising” on Wikipedia, on April 30, 1976 , students from the Orlando West Junior School in Soweto went on strike, refusing to go to school. Their example was followed by other schools in Soweto. A student from Morris Isaacson High School, Toboho “Tsietsi” Mashinini, proposed a meeting on June 13, 1976 to discuss further action. According to Weizmann Hamilton’s article “The Soweto Uprising 1976,” which appeared in the September 1986 edition of Inqaba Ya Basebenzi (Fortress of the Revolution), on June 13, 1976 , the South African Students’ Movement called a meeting at the Donaldson Community Center in Orlando. 300-400 Students representing 55 schools decided to hold a mass demonstration on June 16. According to Brian Mokhele, member of the Joint Community Safety Forum, Dr Edelstein was the first victim of the Soweto uprising and killed the day before the march on June 15, 1976 . Edelstein was an administrator at the pass office in Jabavu and gave golf courses to the local community. Edelstein was put in a garbage bin and pierced by pickaxes. The garbage bin was left at the very spot of the murder for many years. A few years ago, a child was beheaded at the same spot, and the basketball court next to it has been abandoned since. According to Marcus Neustetter, founder of the Trinity Session, this story is untrue. According the entry “Soweto uprising” on Wikipedia, on June 16 , Tsietsi Mashinini led students from Morris Isaacson High School to join up with others who walked from Naledi High School. A crowd of between 3,000 and 10,000 eventually ended up near Orlando High School. According to Raymond Marlowe, a local photographer, Tsietsi Mashinini was heading the march. According to the entry “Hector Pieterson” on Wikipedia, Dr Edelstein died on June 16, 1976 , stoned to death by mob and left with a sign around his neck proclaiming “Beware Afrikaaners.” The first child to die that day was called Hastings Ndlovu. According to Pat Motsiri, Orlando West is claiming struggle heritage through the Hector Pieterson Museum, while Hector Pieterson was from Jabavu. According to Pat Motsiri, his generation effectively struggled between 1980 and 1991, forcing the release of Nelson Mandela and negotiations with the apartheid regime while the 1976-generation was safely in exile. Nevertheless, this has not been recognized in any monument. After the abolition of apartheid, the generation from 1976 returned from exile, occupied important government and ANC positions, creating an abundance of 1976 memorials and refusing to acknowledge that this was only possible because of the younger generation’s struggle. He calls this a generational conflict. According to Archibald Dlamini, the park officer responsible for the Memorial Acre, he started working for the municipality in 1978. In 1981/82 , Isaac Makhele from Pimville, who used to work in the cemetery business, was the first developer of the park. It used to be just a normal park until City Parks decided to develop the Memorial Acre in 2006. In 2007 the work was stopped by the community. According to Brian Mokhele, he left the country in 1989 after he participated in the riots of 1986. But when he returned in 1999 he found that nothing had changed. He says that they were promised to be protected by the Constitution, but that reality is different. The police uses fear to suppress them so that they don’t come out to talk openly. He has been arrested twice, both times harassed and tortured by the police, but in the end always released without indictment. He says that this is their way to threaten communities to back off from politics. According to Moses, who is sitting outside rolling a joint, Brian knows everything. He tells Brian to tell me everything he knows. According to Brian Mokhele, Tsietsi Mashinini was possibly murdered in 1990 during his exile in New York. Two weeks before he was supposed to return to South Africa, his papers in order, he was found dead under mysterious circumstances. His coffin was sealed when he was buried. According to Pat Motsiri, he came up with the idea for the Memorial Acre in 2003 . He submitted the documents for the proposal to the council, which sidelined him as soon as the budget came out in 2005 . According to Brian Mokhele, there was on estimation R 41,000,000 spent to redesign the park and turn it into the Memorial Acre. The millions were divided by Amos Masondo, the mayor of Soweto, the local councilor Bongani D. Zondi, and the director of the city of Johannesburg, Pat Lephunya. They were dividing the money between several contractors: Tsietsi Mashinini’s brothers were involved in the development of the park, they got the tender to do the green areas, the landscaping. Construction was done by other companies, some did the paving, the toilets, etc. EMBA, a private company appointed by the municipality was in control of the money flow, but the money was quickly gone. According to Raymond Marlowe, the contractor bought a BMW with the money. According to Archibald Dlamini, the Mashinini brothers got the tender, so the space would look more like the other places around in Soweto. It was agreed that after they were done, they would return the property to the municipality. They did whatever they could do. According to Mafaisa, a member of the Jabavu business community, he was one of the contractors for the landscaping and the pavement under Mpho Mashinini, one of the brothers. He says that I should contact Mavi for information on Mpho. According to Poi Stuurman, a local youth worker, Mafaisa is one of the guys who ran away with the money. According to Mavi, Mpho Mashinini was never a contractor. The contracts were organized by Sbu Butelezi, the former head of the Gauteng Department for Public Works. The June 16 Foundation and the Mashinini brothers will be the beneficiaries of the park when it is finished. According to Brian Mokhele, City Parks did not accept the Memorial Acre because it was not finished. The rest of the year, the unfinished park is not maintained, as should have happened. This was done deliberately so that in the end they can just clean the whole thing up and have a reason to redo the whole park. According to Brian Mokhele, the Mashinini brothers now work for the government. People that manipulate for money purposes always come from the government’s side. Because the park was left unfinished, the people from the neighborhood are taking away the stones to decorate their own homes with. According to Archibald Dlamini, because City Parks doesn’t accept responsibility of the park, he officially has nothing the guard, except for his cottage, which is municipal property. The thieves come at night and destroy the park, but he cannot do anything because he is sleeping. According to the website of the Thanda Foundation on June 16, 2006 a bronze statue of Hector Pieterson, the first child to die in the 1976 protests, made by Kobus Hattingh and Jacob Maponyane was unveiled in the Maponya Mall in Soweto. The statue is sculpted after the famous image shot by Sam Nzima of Mbuyisa Makhubo carrying the dead body of the boy. The sculpture was sponsored by the Thanda Foundation, founded by the Swedish entrepreneur Dan Olofsson and South-African entrepreneur Matthews Phosa. According to the official website of the City of Johannesburg, the Memorial Acre and Artwork were unveiled in 2006. According to a blog post on sowetouprisings.com, the Memorial Acre was still under development on July 24, 2006. According to Archibald Dlamini, City Parks only cleans up the park once a year just before the June 16 celebrations. Everybody is waiting for the Mashinini brothers to finish their job. The last time he talked with them was in 2007 . According to a sign on the school grounds of the Morris Isaacson High School, the June 16 Trail will be finished in 2008 . According to a blog post on sowetouprisings.com, the Memorial Acre contains another monument erected in Tsietsi’s honor. The monument was created as part of the Sunday Times Heritage Public Art program. Its physical form resembles a giant book which symbolizes the crisis in education experienced in 1976. On the face of the book is the map of the route taken by the students from Morris Isaacson High School in Central Western Jabavu to Phefeni Junior Secondary in Orlando West (currently the site of the Hector Pieterson Museum), while the back cover of the ‘book’ is inscribed with a tribute to Tsietsi Mashinini. The monument was revealed on June 16, 2008 . According to Marcus Neustetter, the billboards on the Memorial Acre were part of a school project realized in 2008. Following several workshops, the students from different high schools along the June 16 Trail were invited to work with artists on the billboards, while the neighborhood community was invited to watch the process during the festivities on June 15 and 16, 2008 . The billboards were supposed to be removed because of construction works on the Memorial Acre, which never ended up happening. According to Brian Mokhele, the former toilet facilities were converted into a house for the park officer. This park officer has been working for city parks for more than 12-15 years, but does nothing here, because the park, including the new toilet buildings, is not finished. The government is now moving around looking for people to take this job because they stopped it. They confronted everybody who was going in and chased them away. According to John, in 2009 , some girls, around 16 or 17 years old, were raped by four men who had been drinking in a local shebeen. When the bar quit they said that they would go home by car, but instead raped the girls on the Memorial Acre nearby. This happened in the unfinished toilets, because the doors couldn’t be closed. According to Brian Mokhele, there used to be some fences around the park because of the construction work that was eventually stopped, but these were also stolen. According to Archibald Dlamini, people from the neighborhood started about two and a half years ago, and the last piece was stolen near the end of 2009 . Sometimes he would catch someone with a roll of fence, and then use it for his own cottage. According to the official website of the City of Johannesburg, a statue of Tsietsi Mashinini by Johannes Pokhela was revealed on June 16, 2010 , “Youth Day.” According to Shirley Makutoane, deputy principal of Isaac Morrison High School, the statue of Tsietsi Mashinini, funded by the June 16 Foundation, has temporarily been placed within the school perimeter. The statue will be moved to the Memorial Acre when it will be finished, in 2011 . According to Brian Mokhele, beside the June 16 Foundation, there is also a June 16 Memorial Acre Foundation. Both foundations are quarreling about the money involved in the Memorial Acre project. Nobody knows who’s involved in them. According to Marcus Neustetter, the June 16 Foundation consists of people that were part of 1976 protest movement, local government officials, representatives of the Hector Pieterson Museum, and the council. According to students from the Isaac Morrison High School, the statue of Tsietsi Mashinini is on the school ground because on the Memorial Acre it would be vandalized by youths from White City, an adjacent neighborhood. Accorcing to Brian Mokhele, the statue of Tsietsi should eventually be mounted on the Memorial Acre. It is wrong that the statue is in the school at the moment, because it is not a public school. He wants the statues to depict the massiveness of the force that was coming into Soweto after the protests. According to Brian Mokhele, City Parks, City of Jo’burg, City Lights, and SAPS are making some sort of plan to take the plan back. They want to remove the trees from the Memorial Acre, and redesign the Memorial Acre into a relaxing park, without political content. They want to depoliticize the square. In doing so,they will have their own employment and not use local workforces. According to Brian Mokhele, the community wants to remove the monuments, amphitheater, and sculptures from the Memorial Acre because they do not resemble anything. The sculptures should be depicting the truth of what happened, because the Memorial Acre is a political heritage site. He wants to involve the people that actually participated in the struggle to make the monument so that everyone can enjoy it and get a better understanding of the struggle heritage. Therefore, he proposes collective ideology in which everyone has a say. This would prevent future vandalization of the monument. According to Pat Motsiri, the sculptures must depict the event around June 16, 1976. Like the story of Dr Edelstein, who was pierced by pickaxes, forced into a garbage bin and burned alive. According to Jonas Staal, the Memorial Acre should be destroyed, its elements stacked on pallets, thus forming the Monument for the Distribution of Wealth . According to Mafaisa, his men can do the work quickly. He has about twenty men working under him. (shrink)

continent. 1.4 (2011): 253—278. A Sense of French Politics Politics itself is not the exercise of power or struggle for power. Politics is first of all the configuration of a space as political, the framing of a specific sphere of experience, the setting of objects posed as "common" and of subjects to whom the capacity is recognized to designate these objects and discuss about them.(1) On April 14, 2011, France implemented its controversial ban of the niqab and burqa , commonly (...) referred to as the Islamic veil, in public places. On the coattails of the 2004 prohibition of religious artifacts, including the less concealing hijab or Islamic headscarves, in schools, the veil ban sparked equal outrage across both political and theological spectra, and many on both sides of the debate were quick to inquire about enforcement. As Steven Erlanger reports, “The police do not have the authority under the law to remove full veils, only to fine or require citizenship lessons for those who violate the new law.”(2) While the legal and social implications of this interdiction are ripe for study, the reprisals for breaking the law, notably compulsory citizenship classes, illuminate the strategic governmentality underlying the French government's targeting of the Muslim community, particularly those elements it considers affiliated with fundamentalist factions and/or terrorist organizations, if only through fashion—an integral component of French citizenship. Indeed, in allowing the (fashion) police to mandate instructional courses in citizenship for offenders, France implies that any Muslim choosing to wear the niqab or burqa , perhaps even for those who are already citizens, must not be aware of the subtle nuances of dress indicative of the French citizenry within public space. Furthermore, the degree of instruction requisite to citizenship, which clearly can and must be updated as the state sees fit, cements the imagined relation between citizens and states within the discourses on the veil ban. As Sharma contends, “Concepts of citizenship are the ideological glue that bonds the nation to the state. Citizenship provides the legal framework through which the state performs its role as ruler for the nation.”(3) Speaking for/as the state, French President Nicolas Sarkozy declared in a 2009 presentation before members of the government and other citizens that the burqa “is not welcome on the territory of France.”(4) Although there is nothing unique, especially recently, about a nation-state taking extreme measures to guard itself against what it deems to be threats to its sovereignty, the way in which the ongoing discourses on hijab have (d)evolved, which coincide with recent pronouncements by governmental leaders in Germany, Britain, and France that policies of multiculturalism have “failed,”(5) points toward nationalist reterritorializations, which is also to say physical and ideological re-appropriations, of public space within democratic milieux, which remain predicated upon the mediation of spaces. As Panagia deduces from Rancière, “Democracy […] is not an institutional form of government […], but an appearance whose visibilities and audibilites arise out of the dissonant blur of the everyday.”(6) Ultimately, the veil ban represents a calculated move to regulate the every day, which is to say the micropolitics of, that which is visible and invisible within French society, which makes it nothing short of a struggle to manage (the sensation of) bodies. Re-situating the political within the context of sense, Rancière argues that the fundamental essence of politics lies within the distinction between consensus and dissensus , and whereas most consider politics proper as fundamentally concerned with the fluid operations of the state— consensus , Rancière actually locates the political within events that disrupt the normative sensory order of things— dissensus . He explains, “Politics revolves around what is seen and what can be said about it, around who has the ability to see and the talent to speak, around the properties of spaces and the possibilities of time.”(7) This reformulation of politics centers on agency and, albeit perhaps unintended, representationality and offers a useful formulation for spatializing the discourses surrounding the Islamic veil, which are mired within seemingly senseless policies and practices of objectification. Instituting a normative “regime of visibility,” the French veil ban encapsulates the political economy of agency, now both mediated and representational, under the rule of nationalist governmentalities in increasingly transnational contexts.(8) Adjudicating presence within public space signals a concern with the sensory aspects of agency itself—what Rancière terms the “distribution of the sensible,” which is “a matrix that defines a set of relations between sense and sense: that is, between a form of sensory experience and an interpretation which makes sense of it.”(9) To be concerned with sense is to focus upon the body, and this somatic repositioning of the (fashionable) citizen within the territory of the state augurs the resurgence of nationalist bio-politics within Europe, since, as Hage explicates, “Nationalism, before being an explicit practice or a mode of classification, is a state of the body. It is a way of imagining one's position within the nation and what one can aspire to as a national.”(10) The French government's attempt to make (bodily) sense of public space for its citizens by and through policies aimed against a burqa-clad Muslim minority, which might only apply to “less then 400 to fewer than 2,000” women(11), reveals the necessary, yet mercurial, transmutation of public space into national space through bio-political strategies of sense-making, which, as Hage observes, denotes that “nationalists perceive themselves as spatial managers.”(12) At the center of this concern over public space is the equally contentious dimension of governing female Islamic identity, which has become one of the main critiques levied against Islam from outsiders who view the veil in its various forms as a clear sign of the religion's actual and symbolic violence against women, even if such critiques remain ensconced within nationalist discourses. As Halim and Meyers argue, “Although Western news media may focus their coverage of Muslim women on the debate over whether and the extent to which the veil may by oppressive to the women who wear it, they have exhibited little interest in the physical oppression of violence against women in Islamic countries.”(13) While it falls outside of the scope of this analysis to arbitrate all of the dimensions of this debate, understanding some of the issues related to female identity and hijab within public space are crucial to this study. As these topics are extraordinarily complex, even and perhaps especially within the Muslim community, it is necessary to provide some context concerning the value, purpose, and meaning of the Islamic veil, which has a rich and arduous history. The Art of the Veil At present, there are only two countries, Iran and Saudi Arabia, that require women to wear hijab , which is a decidedly problematic term and concept whose locus is itself caught within a struggle of sensation. Noting the strategic reterritorialization of the term, Berger explains: The choice of the name, hijab , now widely adopted to designate the “Islamic veil,” it itself interesting, although the semantic shift it operates is not directly commented upon by its users. Although the design (both the cut and the symbolic function) of the hijab and the Iranian chador are indeed the same, as opposed, for instance, to the traditional Algerian haik , the word hijab has come to replace the term chador popularized by the Iranian revolution, as a properly Arabic (hence Koranic) designation. This discursive shift points to the successful reclaiming of the national revolution in Iran by a transnational pan-Islamic movement, whose language of reference can only be Koranic Arabic.(14) While the hijab is certainly a point of contention within various countries dealing with immigrant Islamic populations (of which France has the largest in Europe as part of its colonial legacy in Algeria), it is clear that the veil is a historically contextualized artifact of Muslim identity with a variety of manifestations, even as forces outside of and within Islam seek to codify its actual and symbolic value. Ultimately, the varieties of hijab , including the full-faced burqa and niqab , are complex assemblages of meaning that speak to the multitudinous flows of Islamic identities over time and space. As Gökariksel and McLarney observe, “Wearing a certain style of veil may simultaneously be a disciplinary practice crucial to the cultivation of piety (Mahmood 2005; Gokariksel 2009) and a gendered performance of social distinction in terms of class, taste, and urbanity (White 1999; Navaro-Yashin 2002; Gokariksel and Secor 2009) or of ethnicity and race (Dwyer 1999).”(15) The ideological marketplace from which the varieties of hijab ebb and flow serves both as a reflection of the ever-present materiality and dynamic functionality of spiritual economies, which are derivative of the equally ubiquitous flows of transnational capital driving agency and representationality within our historical moment. Keeping these dual, yet deeply interconnected, capital ecologies as the site of exploration for how the veil is represented within public space, one might begin to sense what lurks behind such veiled agendas. Examining the symbolic and representational nature of the Islamic “veil” in its various forms, this project situates the decidedly political contestations of public space at stake in the French ban alongside recent condemnations of multiculturalism as calculated efforts to re-distribute the sensible so as to valorize national identity within increasingly transnational and globalized socio-economic spaces, which collapse exchange values between distinct, yet interwoven, economies of (cultural/material/spiritual) capital. As the discourses on the veil rely upon representational imag(in)ings, it seems fitting to explore the political economy and art of the veil through the phenomenon of street art, which, much like hijab , is a complex assemblage of meaning of sensation mired in representationality and capital exchange. As street artists have taken up hijab in various forms, the movement offers a lens with which to situate critical responses to the veil debate across both spiritual and material economies. Situating this street art both aesthetically and historically, Lewisohn explains, “'Street art' is a sub-genre of graffiti writing and owes much to its predecessor. Though there is a good deal of crossover between the genres, they are distinct and separate in their own right.”(16) Evolving out of the graffiti explosion of the late 1970's and 1980's, street art broke the unspoken rules of the artistic underground by challenging and re-examining one's sensory experience of art in public space by experimenting with both content and form in ways that harken back to the Situationist International, which as a collective challenged one's experience of urban space through various media and experiential phenomena. Again, Lewisohn observes, “It's important to note street art's break with the tradition of the tag, and its focus on visual symbols that embrace a much wider range of media than graffiti writers would use.”(17) From stencils to prints and murals to one-liners, street artists developed a reputation for critical social and political commentary, and while it is certainly the case that not all street art is intentionally political, in challenging the normative “regime of visibility,” as Rancière puts it, of public space, street artists—even if unconsciously—call into question the common sensory experience of the politics underlying the formation of (nationalist) space.(18) Indeed, Rancière refers to the partisan sensory managers as “police,” who ultimately forge “the rules governing the circulation of appearances, of their visibility and audibility, and the proper distribution of bodies therein.”(19) As such, one can sense that street art's relationship with the police is tenous for a variety of reasons. Writing about his own experience as a street artist, Shepard Fairey observes, “With street art, there's no committee deciding whether I can put my work up on the street, there's no censorship, and I have total freedom of expression, and that concept of freedom is expressed just by using the street as a medium.”(20) As Fairey and other street artists demonstrate, the medium, to paraphrase Marshall McLuhan, is the most glaring aspect of street art's message, and even as it now finds itself in galleries and usurped by private collectors, the ethos of the movement remains relavent to politics as it is, first and foremost, concerned with the configuration and experience of space. Just as examining the punishments for breaking the veil ban can map the terrain of French politics, a representational genealogy of street artist's deployment of hijab and female Muslim identity can assist in mining the depths of public space as a site of bio-political control and contestation in light of recent events in France and the rising tide of anti-multiculturalist rhetoric across Europe, even though the Islamic presence there is radically heterogenous. Using the work of Shepard Fairey, Princess Hijab, br1, and Banksy, this paper sets out to answer a number of key questions concerning the deployment of hijab, and female Islamic identity in particular, within street art as a movement now integral to and critical of the economies of exchange underlying global capitalism, which as a force of influence cannot be underestimated as a driver in the resurgence of nationalist biopolitical governmentalities. Although there exists a litany of artists to choose from, the aforementioned quartet of designers integrate hijab into their work in a seminal and critical fashion, and all have been working with the veil in some way prior to the French ban, which grants some additional context to their usage of it as a symbol in regards to the breakdown of multiculturalism across Europe, even if unconsciously. Although each artist depicts various amalgamations of hijab in their respective corpus, they share common tropes that raise significant questions concerning the veil debate, namely: what are the conditions of possibility for hijab to become a marker of Islamic identity within public space? How can we make sense of the representational topologies within street art's utilization of the hijab and female Islamic identity in light of the French ban? How might these aesthetic imag(in)ings simultaneously inhabit and combat normative discourses concerning hijab , multiculturalism, female Islamic identity, and public space? With these considerations as a backdrop, it is first necessary to outline more fully the hijab as a representative marker of female Islamic identity. The (Veiled) Writing on the Wall

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Scientific debates about the political, economic and even legal aspects of commons have circulated wherever commons are perceived to pose a challenge to the increasing commodification of people’s lives. Indeed, a wide range of commons has emerged worldwide. Emerging commons pose a challenge to the law which is now requested to provide legal tools to resist the dispossession of the common wealth. Nevertheless, commons do not embody a reality which is external or unfamiliar to the law. (...) This paper is an attempt to reframe the commons as a legal concept. In this article I argue that commons are not just a marginal element of contemporary legal systems. Rather, they embody the premises for important transformative practices and discourses and represent a subversive site in the legal order. I maintain, first, that the law of the commons is consistent with the law in force and the current legal regimes of private property and, second, that the current stage of globalization is most favourable to the establishment of a law of the commons both in the peripheries and at the core of the capitalist system. However, given the persistent dominance of the individual-based property paradigm, the legitimacy of the commons on legal grounds remains problematic. Certainly the recognition and protection of the commons challenge the legal regime of property in force and query about the possible limits that the law may impose upon property rights. It is evident that the true core of the commons discourse as a legal discourse rests upon its relation with property and depends on the notion of property that we assume as normative. The Hohfeldian idea of property as a bundle of rights offers a good starting point for articulating a legal theory of the commons under positive law. (shrink)

The design and analysis of norms is a somewhat neglected topic in AI and Law, but this is not so in other areas of Computer Science. In recent years powerful techniques to model and analyse norms have been developed in the Multi-Agent Systems community, driven both by the practical need to regulate electronic institutions and open agent systems, and by a theoretical interest in mechanism design and normative systems. Agent based techniques often rely heavily on enforcing norms using the software (...) to prevent violation, but I will also discuss the use of sanctions and rewards, and the conditions under which compliance by autonomous agents (including humans) can be expected or encouraged without sanctions or rewards. In the course of the paper a suggested framework for the exploration of these issues is developed. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain (...) conditions which render certain norms, but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

The author introduces a normative conception of coherence, derived from a pragmatic interpretation of the application of norms to concrete cases. A distinction is made between the justification of a norm and its application. In the case of moral norms, justification and application can be analysed as two different discursive procedures which give rise to different aspects of the principle of impartiality. Impartial justification requires a procedure by which all interests concerned are taken into account whereas impartial application requires (...) a procedure where all features of a situation are considered. The complete description of a concrete case makes necessary a coherent interpretation of all the valid norms which are prima facie applicable. This requirement of an ideal coherent system of norms is restricted to interpretive “paradigms” in the case of legal norms, because it is necessary to produce singular judgments under the restrictive conditions of scarce time and incomplete knowledge. (shrink)

Available in paperback under the title Good City Form With the publication of The Image of the City, Kevin Lynch embarked on the process of exploration of city form. A Theory of Good City Form, his most important book, is both a summation and an extension of his vision, a high point from which he views cities past and possible. The central section of the book develops a new normative theory of city form—an identification of the characteristics that (...) good human settlements should possess. This follows an examination of three existing normative theories—those which see the city as a model of the cosmos, as a machine, and as a living organism—which are shown to be finally inadequate and unable to hold up under sustained analysis. In addition, an appendix demonstrates the inadequacies of a number of functional theories—those whose aim is simply to describe how settlements work rather than to evaluate how they ought to work. Among these theories are models of cities as ecological systems, as fields of force, as systems of linked decisions, or as areas of class conflict. Lynch puts forth his own theory by searching out the qualities that produce good settlements, qualities that allow "development, within continuity, via openness and connection." He identifies five interrelated dimensions of performance—vitality, sense, fit, access, and control—and two "meta-criteria," efficiency and justice. As in all of Lynch's writing, the theory flows from and leads back to specific examples and everyday realities. The final section of the book is concerned with applications of the theory. (shrink)

In recent years there has been a marked increase in interest in animal welfare issues worldwide. This subject often evokes extreme points of view, and can be both intellectually challenging and emotionally dividing. It is undeniably a field where substantial progress has taken place, with a multitude of countries worldwide implementing their own animal welfare and protection laws. However, calls continue to be voiced for more extensive and courageous measures to be taken concerning both the content and the enforcement of (...) animal welfare legislation. To highlight a variety of these promising and noteworthy ideas this article outlines and examines some selected and qualified aspects of a potential juridical approach to the subject by consulting the legal systems of Austria and Germany under this particular premise. The aim will be to ascertain the extent to which animals have been granted consideration and protection, for instance in spheres of Constitutional or Civil Law. What options exist to safeguard an animal by a legally founded and secured position, and on which rank in the legal system could such provisions possibly be established? Ideally, a complete legal network on all possible levels of the legal system should be developed, ensuring a comprehensive and an all-embracing protection of the individual animal. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Journal of Aesthetic Education 38.1 (2004) 65-77 [Access article in PDF] In Defense of Observational Practice in Art and Design Education Howard Cannatella Introduction It is increasingly debatable whether observational drawing and making in nature are still regarded as principal activities of art and design learning. Against this, the aim of this article is to strengthen sympathetically a teacher'sunderstanding of observational creative work from nature and to assert (...) that such an approach should be central to art and design teaching and learning.My reasons for writing this article are to reconsider observational aspects of this approach that are not generally expounded in existing art and design educational practice circles. The reluctance by some to debate theimportance of the observational creative process may be construed as a questionable position to take, for a number of educational practitioners in art and design appear to see observations in nature as irrelevant to current art and design learning, as if it were a fashion item, one that has lost its appeal. Creative poiesis, some would argue, could never extend sufficiently to observations in nature. When observations in nature are seen as trite, not high art, there is the perception that art and design may have lost something precious, unable to nurture, becoming too introverted and sensational at the expense of grappling with common human realistic experiences. A decline in observational visual sensibilities may seem inevitable under these conditions.There is a persistent view in art and design education that seems to me to be a misconception — that observations in nature are restrictive and superficial, an experience that deals only with archaic approaches in learning. In the work of Immanuel Kant, imitation could not be an original factuality. 1 In Kantian terms, to imitate exactly a thing of beauty would be an act considered as "wholly destitute of taste." 2 A similar kind of sentiment is echoed by Georg Hegel, who considers imitation in art as "deceptive" and goes on to say: "the pursuit of imitation is on the same lines as the feat of the man who has taught himself to throw lentils through a small aperture [End Page 65] without missing." 3 More recently, Norman Bryson criticizes the idea of a "natural attitude" toward observations in natureas he denounces any suggestion of the purity of the universal visual image. 4 This backlash may make us feel a little uneasy as to why observations in nature should play a primary role in art and design education.My argument will be that although creative observations in nature do involve mimetic and regulative factors, these factors, when sensitively handled,can enlarge our imagination, touching us deeply in the process. Along these lines, it does not follow that because a work is mimetic in kind that it necessarily fails to produce significant learning. In accepting that there is a degree of control exerted normatively by what is being observed in the nature of such work, these perceptions in art and design become, through the creative process, refined and subtle experiences. Normative features and experiences may spur the artist or designer to create powerful expressions of them in the work.I will try to demonstrate that observational creative work, for all its reality checks, has the capability to be powerfully expressive and make discoveries that seem pertinent and true. As I see it, this encounter involves moral, social, perceptual, cognitive, and aesthetic orchestrations.Of course, some might insist that artistic autonomy could be a problem when having to work from observation in nature but the idea of autonomy relates to self-rule, a condition that is perhaps best understood, as Robert Young states, as being predominately dispositional as opposed to occurrent. 5 Educators like myself may want to argue that art and design teaching and learning requires, apart from other things, an understanding of theworld in which one lives as we come into contact with what actually and candidly stands publicly before us. This position cannot be reached through channelling our efforts exclusively via autonomist means.Certainly, in education, motivation, prior experience, personality, student... (shrink)

1. The most important aspect of touch is its relation to time and space, a relation which is established by the movement of touching itself. Referring to the ideas of E. Straus, the distinction between touching and being touched is elaborated in light of experiments done by us with animals. 2. Touching is: being in one's own limits and at the same time going beyond these limits, a situation in which the touched object is felt at the same time (...) as a "Gegenstand" and as "Mit-seiend." "Pour le tactile, c'est l'être à deux qui se place au premier rang" . The awareness of being by the sense of touch is particularly poignant in the case of touching oneself, which is an exceptional unity of the active and the passive state of mind. 3. The tactile recognition of form also presents a dialectic of activity and passivity, a dialectic which takes place in the form of a development which conquers time, and this after a scheme produced during the act of grasping itself. We refer to the studies of V. von Weizsäcker on the "Gestaltkreis." We must also remember the basic restlessness of the hand, which becomes lasting in the play of the hand with an object. 4. The hand can hold an object. In doing so a schematic tactile image is given, an image which functions as a hypothesis or as an organizing principle of the proleptic development of further tactile exploration. The phenomenological analysis of touch with the hand appears as a prefiguration of thought by synthetic judgments. Thus, it is true, as Herder remarked, and as Gold-stein and Merleau-Ponty confirmed, that perception by man and spiritual existence are identical. 5. Referring to the research of Révèsz and Palagyi, the real nature of the tactile world is anlyzed. Tactile exploration is done according to a real development, during which take place anticipatory and retrospective determinations which assure the continuity of the event and its meaning. Tactile perception permits description of the continuous unity of the discontinuous phases which we can state objectively "as if" expectation and memory, preliminary judgments and their checking, conceptual fixations and corrections had been put to work. 6. Important is the affective and emotional aspect of tactile impressions and their connection with inter-human relationships. 7. By touch, man establishes in a "feeling" way a personal relationship with the matter of things, which is hidden to the distance senses. This participation has a double aspect. It is like the birth of a "mood," of a "Befindlichkeit," but at the same time it is the active point of departure of a "feeling," of an "understanding," of an "inner grasp," of a being moved, of a being struck by the touched object which is then in our presence as a real "quale," as a material object, as a being in itself. We remember the proper nature of the caress, by which the "being together" of the caressed object complements that of the active caresser. The usual concepts by means of which, in practical and gnostic life, the most important tactile qualities are indicated intend to refer us to the characteristics of the things which take up space in the geometric world and in objectively measurable space, and on which is founded our natural orientation. We remember von Hornborstel's research on the intermodal characteristics of tactile impressions. These show us how a "knowledge" which accompanies perception can change an impression of feeling. The affective relationship, determined by a shaded "knowledge" and by a system of values, changes tangible reality, the substantiality of the body, of the "flesh." This affective change of matter, this "phenomenal transsubstantiation," easily becomes a reality in connection with objects of which we know that they belong or did belong to someone. The meaning which a thing has changes the matter of the object, an object which precisely by the touch is present "in the flesh." This is illustrated more precisely by the phenomena of fetishism, and by simple experiences of daily life. If we look for an anthropological point of view from which touch, of which the hand realizes the point of view will have to be attempted starting from the unimaginable certitude that the ontological unity of nature and spirit is in man the reality of a possible participation, a participation which, in our existence, is only indicated. The "restlessness" of the hand, never fulfilled and always searching, which we noted, is the human token of our concrete existence. Thus touch shows us what Valery remarked about the mind: "The mind is at the mercy of the body, as the blind are at the mercy of the seeing.". (shrink)

The discussion concerning the patenting of academic knowledge is already closed for many people. It has become a type of credo, solemnly intoned at all levels: universities must commercially valorize the knowledge that they generate as extensively as possible.The public means that are reserved for universities can never increase at the same rate as the mounting costs for highly specialized research. So universities, if they want to work at the top level, must increasingly appeal to private resources. Universities are increasingly (...) forced to aim at contract research, sponsorships, commercialised service, the patenting of technical findings, and spin-offs: Cash for knowledge!The pressure for the unfettered commercialisation of academic knowledge does not only come from within the universities. The message also comes from the politicians and those who are committed to economic prosperity. They argue that the commercialisation of intellectual property contributes to new employment because it makes new industrial developments possible and reinforces the competitiveness of ventures. They make it seem that universities form the motor of the knowledge economy.In a country without considerable natural resources and with extremely high personnel costs, innovation is of vital importance. Few convictions are equally as expressly avowed at so many differing forums. The direction of the march seems clear.It was once different. The knowledge that was acquired, deepened, preserved, and transmitted within the universities was not for sale. In fact, its sale could present difficulties because academic knowledge has never answered to the properties of a marketable thing. Use does not deplete knowledge and if you consider it your mission to bring to light knowledge, you do not want to exclude anyone from making use of it.Academic knowledge could thus not be an object of trade, at least so long as nobody was intent on keeping that knowledge secret, and so long as nobody appealed to regulations, whereby one could restrict the legal use of that knowledge. Today neither of these strategies are taboo within academic centres. The patenting of all forms of qualifying knowledge is even encouraged.A patent assumes, on the one hand, that one makes public the knowledge upon which a technique rests, while one, on the other hand, can grant use of that technique exclusively to who one gives a licence, whether or not for a fee. This system is put forth as attractive for all parties. The researchers can keep up with technical details, and the entrepreneur can commercialise the finding. Everyone is happy.Or perhaps not? Are there reasons to be concerned that universities must increasingly submit themselves to the laws of the market? Are there arguments for evaluating academic performance differently than the performance of entrepreneurs? Must one regret that knowledge is commercialised as much as possible?The proponents of the commercial orientation point out that all kinds of new incentives will give a new impetus to the old academic system and will increase the relevance of academic research. They seem to dismiss resistance to the renewal as a nostalgic outpouring of a privileged group that used to have it too good, a group that for too long knew to retreat too safely back into a series of unworldly problems.The opponents of the economically oriented approach fear that the proper character of the academic mission will be lost. They fear that the loss of academic autonomy will make the specific function that a university fulfils within society impossible. In what sense?In our society, there is not one type of sphere, and there is not one valid set of standards, the basis upon which performances are evaluated, functions are judged, or objectives commended. There are strongly divergent spheres and each have their own specific function. The laws that apply in one sphere do not necessarily have authority in another sphere, and the standards that apply in one sort of relationship often have little or no meaning in another relationship.Each sphere recognises its own standards and answers to its own system of exchange for compensation, approval, and recognition. What applies in the sphere of law does not necessarily apply in the sphere of someone’s personal friendships, or is not applicable among family members. What applies in trade does not necessarily apply in the sphere of art.Even more, things go wrong when the autonomy of these spheres is not respected. Within the domain of art, love and friendship, monetary laws are not valid, at least in a healthy situation. That is not to say that the rules that apply within the free market would be wrong or unethical – far from it. It seems self evident that these laws are valid under the condition that they apply in the environment to which they belong, and that one respects these limits.This applies for all spheres. It would be unjust if one would apply the standards of friendship to the spheres of jurisprudence or education. Manifestly, it seems self evident not to define justice as a univocal principle that must be extended with the same consistency in every type of sphere. Rather, it is just to respect the individual character of the normative relationship that applies in the diverse spheres of life, and to prevent one sphere from colonising another.Justice assumes that one prevents the political sphere from stipulating what must be said, or concealed, within the academic sphere. Academics must answer alone to that which is expected of them within the academic sphere. Political pressure may exert no influence on this. Why cannot one say the same about economic pressure?Do we run the risk that the economic sphere will colonise the academic sphere just as the economic sphere previously colonised the sphere of media? What must one imagine in this supposed risk? In what sense should economic laws threaten the academic sphere?In the academic sphere, it is traditional to follow one’s own interests and investigate anything whatsoever without having to ask if this knowledge is useful for something or how the fruits of this research fit within the economic context. The academic search for a better understanding of everything has an unconditional character.The manner in which researchers evaluate the performance of each other seldom has to do with the economic effects that their findings have, but with their reliability, the meticulousness with which they were checked, the scrupulousness with which the sources were collected, and the honesty with which they were communicated. The function of the academic is to collect and refine knowledge, and to bring to light the truth.By doing so, universities offer a type of foot-hold within society. They make it possible that a place exists where one can be obedient to what lets itself appear most truthfully today. Nobody has to fear, at least as long as the autonomy of the academic sphere is respected, that the communication of a particular subject was rhetorically coloured in function of a commercial interest, was applied according to the wishes of the sponsor, was brought into conformity with what was agreed upon by the financiers, or answered to the demands of a patent.It is possible that the influence of the commercial sphere shall be less dramatic than pessimistic academics imagine, but nothing indicates the opposite. Today we are giving a new strategy power, and nobody knows how the magician’s apprentice will bring it off.This forms the context of the questions that we shall try to answer together this number of Ethical Perspectives, and we will restrict our discussion to patents. We are aware that the discussion about patents illuminates just one part of the problems, which have to do with the relation of the worlds of academia and commerce. But there is a reason for confining oneself to an aspect of this problematic relationship. If one were to broaden the scope of inquiry further, one would risk missing the complexity of the subject matter already covered, and be consigned to a far too general and aimless debate.We have brought together a number of specialists, jurists, ethicists, and people with practical experience with the field. They shall introduce us into the problematic, confront us with their points of view, and help to answer our questions: Are there moral limits to the patenting of academic knowledge? Is patenting always the most efficient strategy? Does not perhaps the university sell its soul if it gradually leaves itself subject to the laws of the market?We will begin by asking how in particular a university should proceed with the patenting of knowledge. Modern universities were inspired by the ideals of the Enlightenment, which was characterised by the open distribution of unselfishly pursued knowledge.The privatisation and commercialisation of knowledge would seem to conflict with this traditional vision. Jürgen Mittelstrass and Bart Pattyn provide a theoretical and historical basis for protecting the autonomy of university research from the corrupting aspects of the market economy.But, are there reasons for giving up the traditional outlook? Few or no universities have not chosen to patent discoveries, but how is one to proceed within the framework of the university, once one has obtained patent protection? Can one pursue a policy of using these protected intellectual rights to secure the fruits of knowledge for financially weaker groups, or do circumstances compel the universities to be exclusively driven by market forces?Those are the kinds of questions that Gilles Capart and Geertrui Van Overwalle of the KU Leuven will deal with.Sigrid Sterckx of the university of Ghent will answer the question: can patents be morally justified?Paul Belleflamme of the Université Catholique de Louvan La Neuve writes concerning the economic evidence of patents, and the real effect of incentives. Are there any economic facts that can demonstrate the effectiveness of patenting?Then we give the floor to Christopher May of the University of Lancaster, who looks at the question of how universities have to deal with the global information society. (shrink)

Technologies are being developed for significantly altering the traits of existing persons (or fetuses or embryos) and of future persons via germ line modification. The availability of such technologies may affect our philosophical, legal, and everyday understandings of several important concepts, including that of personal identity. I consider whether the idea of personal identity requires reconstruction, revision or abandonment in the face of such possibilities of technological intervention into the nature and form of an individual's attributes. This requires (...) an account of the work done by the concept of personal identity, and an explanation of what “conceptual impacts of technology” and “conceptual reconstruction” might mean. Our existing notions of personal identity and related ideas such as personhood and autonomy may seem unable to comfortably accommodate the possibilities of technologically directed trait formation and development. This is a matter of moral and legal importance because the idea of personal identity embeds major values and reflects value-laden beliefs and attitudes. The assumed endurance of identity underlies interpersonal relationships, the assignment of rewards and punishments, and the very idea of what constitutes an autonomous person. Perhaps radical restructuring or even abandonment of concepts are sometimes called for when the world changes drastically, but I suggest that conceptual modification is not “compelled” for personal identity except under extreme circumstances—the remote possibility of rapid human “shape shifting” where physical and mentational attributes can be transformed quickly and continuously. Efforts to enhance human traits, including merit attributes and other resource-attractive characteristics (e.g., intellectual and athletic aptitudes, physical size and appearance), may generate legal problems wherever the persistence of identity is presupposed. Some advance speculation is thus warranted on how trait change generally will be managed within our legal and socioeconomic systems, and more particularly on rights of access to trait-altering technologies. I mention the possible distributive effects of enhancing highly-resource attractive traits, including the strengthening individual powers to acquire still more increments in such traits in a self-reinforcing cycle. A brief review of some constitutional issues bearing on trait change completes the discussion. I conclude that existing and projected technologies do not impel the abandonment or remodeling of the idea of personal identity. We may, however, have to reconsider some uses of this concept in different settings, to rethink our understandings of ideas of merit and desert, and to deal with the distribution of resources that may enlarge and entrench the “distances” between social and economic groups. (shrink)

An important subject of bioethical and legal considerations is the relations and manifestations of what happens in current biomedical practice regarding the practice of activities and the provision of health care services. This is particularly important when it comes to disagreements, collisions, and conflicting rules, the ethical and legal origins of different norms, and medical decision making. An appropriate analytical and methodological approach through interpretation and comparison is needed to uncover shortcomings that often remain on the (...) surface, invisible, due to the lack of dialogue. This paper aims to shed light on the fundamentals of bioethical principles on the one hand and the legal-logical system of norms in biomedicine on the other. The conclusion emphasises the elimination of the contradictory elements of the relationship and the affirmation of helpful and complementary aspects with the opening of parallel perspectives and intersections in the service of promoting the legality of the work, the development of good medical practice and respect for human rights in the field of health. (shrink)

Technological developments increasingly enable monitoring and steering the behavior of individuals. Enforcement of the law by means of technology can be much more effective and pervasive than enforcement by humans, such as law enforcement officers. However, it can also bypass legislators and courts and minimize any room for civil disobedience. This significantly reduces the options to challenge legal rules. This, in turn, can impede the development of legal systems. In this paper, an analogy is made with evolutionary biology (...) to illustrate that the possibility to deviate from legal rules and existing norms is sometimes necessary for the further development of legal systems. Some room to break the law, for instance, through civil disobedience or imperfect enforcement of the law, will ensure sufficient variation. This allows for properly evolving legal systems that can continue to provide fair solutions, even when society and concepts of fairness further develop. (shrink)

Even though the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not explicitly address the rights of asylum seekers and refugees, the case law of the European Human Rights Court (ECtHR) confirms that their rights can be successfully defended under this mechanism. In parallel, in its evolving jurisprudence on asylum the Court of Justice of the European Union (CJEU) refers to the Strasbourg case law, where there is a certain interrelationship between these two jurisdictions, in particular (...) given the recent ECtHR pronouncement on “EU Dublin transfers”. The article aims at evaluating protection available for asylum seekers and refugees under the ECHR, while comparing it with protection of asylum relevant fundamental rights under the EU legal order and the most recent jurisprudence of the CJEU in asylum cases. The authors also analyze which of the two systems is more favourable and what are their limitations. Thus, the article offers to students and practitioners a detailed analysis of ECtHR and CJEU jurisprudence in asylum cases through a comparative perspective, as well as the key problematic aspects arising in both jurisdictions and their junction. The jurisprudence of the ECtHR reveals that despite the most developed protection from expulsion under Article 3 of the ECHR, it does not sufficiently secure status for the concerned persons. Effective remedy requirements under the ECHR allow for filling the gaps of national asylum procedures, while recognition of vulnerability and special status of asylum seekers by the ECtHR assist in addressing still commonly prevailing detention problems of asylum seekers in Europe. In the context of family protection, the recognition of positive obligations by states to reunite the refugee families is still rudimentary, thus, clearly Article 3 protection in expulsion cases takes over Article 8. At the same time, the jurisprudence of the CJEU in asylum cases is still inconsistent, as the court sometimes takes decisions without including human rights into its’ analysis (Kadzoev, Arslan, K.), while in other cases refers to the Charter (MA and others), verifies if its’ own decision is in line with the ECtHR jurisprudence (Elgafaji) or shapes secondary legislation in line with Strasbourg arguments and findings (N.S.). Quite likely, the ECtHR practice will have an important influence on the developments of subsidiary protection in the EU, at least in the context of Articles 2 and 3 of the ECHR, and serve as an important reference for interpretation of various concepts under the EU Qualification and Procedures Directives. The comparative analysis of pros and cons of the two mechanisms demonstrates that the main advantage of the ECtHR is individual justice possibility, which is not yet accessible under CJEU preliminary judgement procedure and its input in developing asylum law concepts, such as non-state agents of persecution, internal protection or even subsidiary protection regime under EU asylum law. Thanks to the ECtHR, the realistic possibility to question the application of certain EU norms has emerged (Dublin Regulation). While the ECtHR does not have such a specific competence over asylum issues as the CJEU and is clearly a slow and seriously overburdened mechanism, the pilot judgement procedure seems to be increasingly capable of providing guidelines to the states concerning systematic problems in their asylum procedures. Thus, both jurisdictions in their own ways contribute to strengthening asylum seekers’ protection while forming a common oasis for these individuals in Europe. (shrink)

Many reports independently confirm that even more than a quarter of a century after the collapse of the Soviet Union, the results of research and development in those countries that were under its influence are insufficient in comparison to the rest of the world. Given that human intelligence is not distributed unevenly and that science is a powerful driving force for the future of an economy, there is a hidden problem, which, if it can be resolved, may release great economic (...) potential. The first generation of researchers from Armenia, Czech Republic, Georgia, Slovakia and Ukraine, who successfully completed their education after the political revolution, were surveyed. The survey revealed many similarities with regards to ethics, but that there is mounting evidence that the main cause of the current situation is the state of the local legal systems. The conclusion was drawn that a conceptual change in staffing within the relevant legal systems is required to release potential and stimulate wealth creation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:110 DAVID HUME'S INVISIBLE HAND IN THE WEALTH OF NATIONS THE PUBLIC CHOICE OF MORAL INFORMATION Introduction The thesis I shall defend is that there are systematic aspects of Adam Smith's economics which make little sense when read in isolation from a literature in which David Hume provides the signal contributions. Consequently, parts of Hume's own work are stripped of meaning, isolated as they are from later developments. (...) The puzzles about Smith's analysis which I find illuminated by Hume's are the following: 1. Why does Smith both defend the importance of economic growth for the material of well-being of the working class and claim that property originates as spoil, impoverishing the working class? After all, in the classical system the existence of property is one requisite for economic growth. 2. Why does Smith exalt the assumption of self-interested behavior in private activity but claim that irrationality dominates the political process? 3. Why does Smith deny the importance of benevolence in Wealth of Nations and insist on the importance of morality Sentiment morality in Theory of Moral its?3 The three questions have a common feature: they are related to the question of how public goods are provided. The particular public good in question is the institution of private property. As with all true I am obligated to the Center for Study of Public Choice for generous support of my research. Suzanne Levy gets the credit for the extent to which this approaches English. I have benefited from acute comments from Charles Rowley and Charles Griswold. The errors and obscurities which remain are solely my responsibility. Ill public goods, society considered as a whole benefits from having such an institution, but each individual considered separately can gain by anti-social behavior.4 Public goods provide a considerable difficulty for any social institution; neither competition in the market nor government requests that individuals reveal how much they wish to be taxed are certain to be efficient. There are aspects of the classical economic analysis which stress the importance of moral information as a partial solution to the public goods problem. By "moral information" I only require that the theory is employed as a guide and that if an individual acts contrary to the theory, this choice is not cited as "falsifying" the theory. Rather, something is said to be "wrong" or "wicked" about the choice.6 Much of modern economic analysis assumes that individuals have perfect information; this postulate rules out any significant role for moral information in the provision of the public goods. To avoid assuming away such a role for morality, we will drop the perfect information assumption and then examine if we can make sense of the classics' attack on the public goods problem. Of course, the specification that individuals see their own interests very poorly is consistent with Smith's general approach. The technique employed below is to look at the issue which Hume and Smith addressed as a problem in modern economics. The key difficulty is to determine under what conditions moral information could guide individuals with very imperfect perceptions to maximize their utility. In particular, suppose we find that moral guidance tells an individual how efficiently to produce. Is this morality self-enforcing or are resources required to persuade people to act in accord with these teachings? If resources are required, we will not pay much attention to just how this persuasion 112 is provided, e.g., whether we tell people that theft is "evil" or whether we hang a few thieves. General production theory tells us we probably will do both, but this is a separate issue. The argument to be advanced is that moral information has self-enforcement properties in private activities but these properties are missing in public activities. In this account, then, real resources will be required for implementing the morality. This consideration in turn raises an interesting issue. If the government expends these resources, what reason is there to believe that they will be provided to serve the public interest and not the interest of the government? Is it possible that the government can prosper by keeping people ignorant or by giving them advice... (shrink)

The purpose of this article was to comprehensively explore the phenomenon of the narrative of the Decalogue in its fundamental principles in the context of the theological understanding of Jewish law. For this purpose abstract-logical methods, historical-legal, phenomenological, axiological, epistemological methods, method of critical and systematic analysis and method of comparative theology were used. The result is a theological understanding of the basic moral and legal principles and reducing to a single, systematic; a study of the correlation between (...) the normative and the moral side of such a narrative was conducted. Of particular importance is the establishment and isolation of the basic initial principle in the defined context that underlies both Sinai law and all the biblical law. Because with the change of historical realities, which coincided with the destruction of the Temple and the termination of sacrifices, the law has also changed. However, the biblical law was of particular ideological importance, it set the tone and revealed and formed the basic principles for the further development of all Jewish law. Therefore, in our study we have drawn attention to the main ideological features of the biblical laws, because in our opinion, the basic formative essence is hidden in them and only by understanding it − will we be able to understand Jewish law itself. However, the phenomenon of law and even more so of Jewish law, is one of the best regulators and exponents of the educational principle that is designed to raise a person in love. Of course, morality is called for it and it should take precedence over everything else, but the legal part should not be ignored. Law should serve as a socially just, integrative, fundamental, binding, most effective, most respected regulator. Therefore, the problem of combining legal principles and moral precepts for biblical law did not stand basically. The significant part of the adopted legal norms initially was characterized by moral prescriptions, confirmed and expressed by law. Such a transition, the shift from morality to law, and the close relationship between them are one inseparable whole. And apart from Halacha, which was responsible for the legal aspect, there were also the writings of the prophets whose task was to illuminate the transition from law to morality, because precisely morality is the essence of everything. Here is the true meaning of the existence of a legal expression of such an educational principle. Thus, the basic educational principle of the Decalogue, in particular, and of biblical law in general, was to educate a high-moral person who had restrictive precepts that would not allow him to fall into lawlessness, and the formative commandments that would allow a person to be educated in the search for God, and to stabilize himself in the godlike state commanded by God through Moses. That is the essence of the Decalogue and Jewish law. The educational principle, both basic and effective, though not so familiar to the modern understanding of the nature of law, is precisely the principle that laid down both the basis of the Decalogue and the foundation of all Jewish law at least in its biblical part. (shrink)

This article analyses implementation of freedom of assembly within Lithuania and in some other States of the European Union. Attention is paid to the differences in the implementation practices for this freedom while analysing probability of restriction of freedom of assembly in the light of legal, political and social factors. The article aims to substantiate that the quality of decision while adopting spreading ideas and expressed views during peaceful meetings, or adopting them later, or dismissing in general, is determined (...) by the democratic society being formed in the state during a particular period. On the other hand, although physical restriction of diffusion of ideas while implementing freedom of assembly is legitimate, it should not become the main control tool, since the development of the state in this direction is absolutely opposite to the expansion of democratic ideas in the society. Legal education should become the priority area of the policy conducted by the state. Particularly since this priority provides the security for the spread of best practices in democratic states, thus laying the grounds for effective prevention of expression of illegal behaviour. Such illegal behaviour may occur in the form of incitement of hatred and aggression in respect of persons who have different faith, race, nation or sexual orientation. The article substantiates that the real challenge faced by the modern democracy is security for practical implementation rather than the formal recognition and regulation of rights and freedoms. It has been found in practice that the implementation of freedom of assembly can be faulty restricted by the procedural justice. After evaluating experience of the States of the European Union and the way in which their national legal system is structured, the recommendations are made enabling a timely dispute settlement concerning the right of assembly, i.e., in order to prevent decision making process from becoming an obstacle for the implementation of freedom of assembly. It is pointed out that settlement of the dispute concerning the permission to hold a peaceful assembly after the date of the assembly is pointless and denies social importance of right of the assembly. (shrink)

In the field of the central core theory of social representations, research which has focused on the normative aspects is relatively recent as it dates back little more than ten years. The theory of conditionality which developed from research into the periphery of representation results from this. It is a particularly fruitful theory to explain “normative latitudes” and the behaviour accruing to them. One of the particularities of these works stresses the importance of linking the normative aspects with (...) specific methods and/or analyses. In this paper, we will illustrate it via a specific tool developed in the field of traffic psychology: the Conditional Script Questionnaire (CSQ). This approach makes it possible to highlight the interactions between two systems of norms: the legal system and the social system. The implication of norms is fundamental in different processes already studied such as social influence or identity processes, and this article can be considered as an illustration of the place of norms in the field of social thinking. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Commentary on “Towards a Design-Based Analysis of Emotional Episodes”Margaret A. Boden (bio)The theoretical work of Wright, Sloman, and Beaudoin is a significant contribution to our understanding of the nature and function of emotions, and potentially also to therapeutic method. Their message that emotions, as controlling and scheduling mechanisms, are essential to any complex intelligent system (that is: one with multiple and potentially conflicting motives, and situated in a (...) changing and unfriendly world) is important. It encourages cognitive psychologists to regard emotions as a central aspect of intelligence, not to sideline (or even to forget) them, as is too often done. In addition, it shows—at least in general outline—how emotions might be understood in computational terms.Critics of computational psychology too often assume that emotions and motivation must lie outside its scope. This is not so, although it is true that relatively little computational work has been done in this area. Interestingly, the very early days of AI saw a comparatively high proportion of models of multiple goal-seeking, affective processes, and even personality (see, for example, the papers in Tomkins and Messick 1963). But, inevitably, these were so crude as to be almost useless in illuminating the nature of emotion and motivation. As AI-workers and their psychologist colleagues found to their cost, it is difficult enough to model the pursuit of one goal, never mind the pursuit of several mutually conflicting goals. Accordingly, personality and emotion soon faded from the scene as preferred topics of computational research—but not before I too had argued that they could, in principle, be so addressed (Boden 1965; 1972).I suggested—in the sketchiest terms—that the concepts of William McDougall’s personality theory could be interpreted in a computational fashion (Boden 1965; 1972). His concept of sentiment, for example, marks what Wright et al. call “goal-sets,” and his master sentiment of self-regard relates to the descriptive and normative aspects of the self-image to which they draw our attention. He even described emotions as (conscious) control mechanisms, enabling the subject to monitor the incipient excitement of distinct types of motivation, and (sometimes) to adjust behavior so as to facilitate or inhibit the otherwise-inevitable response. What the target-authors have done is to put subtle and sophisticated computational flesh onto these minimalist theoretical bones.McDougall himself, of course, will be turning in his grave. He saw affect as partly conscious (as well as dispositional), and argued that consciousness—and purposive behavior too—cannot possibly [End Page 135] be given a mechanistic, or physicalist, explanation. Despite Wright et al.’s persuasive anti-reductionist remarks about the necessity for highly abstract (psychological) levels of explanation, he would not have accepted that such explanations could be computationally grounded. He even insisted that the neurophysiological ground of goal-seeking behavior involved a special sort of energy, or horme, intrinsically directed to specific ends. Presumably, no professional reader today would agree with McDougall on that point. But many may agree with him about consciousness. And many more will insist that consciousness is a crucial aspect—perhaps the crucial aspect—of emotion. Such critics will doubtless point out that our three authors explicitly “factor out,” or refuse to discuss, consciousness as such.Wright et al.’s rhetorical reserve on this point is defensible on two counts. First, even though emotions do involve conscious sensations, the dispositional and control aspects of affect are at least as important. Indeed, it is evident from the quotations from individuals reacting to bereavement that people often describe the phenomenology of grief in terms of these sorts of factors, rather than in a “purely qualitative” fashion (whatever that might be). Even so, these dispositional aspects of emotion are often overlooked, or regarded as less significant than the conscious phenomenology. And second, theoretical psychologists in general sideline consciousness: either they ignore it entirely, or they take it for granted philosophically and ask about the conditions under which it appears or disappears. They are well advised to do so, since we do not yet understand this concept (more accurately: this mixed bag of related concepts) at the philosophical level. Even a journal whose title has “Philosophy” as its leading... (shrink)

The first two volumes of the collection are devoted primarily to analytical legal theory--in particular, theories about the nature of law. This is the idea of legal philosophy most familiar to jurisprudential students in the English-speaking world, and many of the civil-law countries. The last two volumes sample schools and theorists who mostly come from outside the analytical tradition, and who are, in one sense or another, critical theorists--theorists more interested in offering systematic critiques of law or general (...) prescriptions. The four volumes of the collection are divided into six parts. Part one brings together key work on the methodology of analytical philosophy and Part two collects the most important scholarship on forms of legal positivism, including material in the Austin-Hart tradition, 'inclusive vs. exclusive legal positivism' and Kelsenian legal positivism. Part three ('Critics of Legal Positivism') gathers material in the natural-law tradition; the work and influence of Lon Fuller and Ronald Dworkin are also fully explored here. Parts four to six are an assembly of the best and most important thinking by and about normative and critical theorists working outside the analytical tradition. Part four gathers material under the rubric of legal realism, exploring both the American and Scandinavian schools as well as their predecessors. Part five examines one of the most influential movements in modern legal theory and legal practice: known as 'law and economics' or the 'economic analysis of law', this approach has come to dominate American scholarship, and its role is growing in other countries too. Finally, part six makes available key research on a variety of critical theories of law that have grown up around systematic critiques of Western legal systems. Included here is work by the American legal realists, as well as work by feminists and scholars pursuing critical race theory. The intersection of law and literature is also examined, as are other approaches to law and legal theory: Habermas's 'proceduralist paradigm'; the concept of 'autopoiesis'; and the work of Rorty and Fish. This Routledge Major Work illustrates the many ways in which philosophical methods and theories have been used to explore aspects of law and legal practice, and with a comprehensive introduction, newly written by the editor, which places the collected material in its historical and intellectual context, Philosophy of Law is an essential collection destined to be valued by scholars and students as a vital research resource."--Publisher's website. (shrink)

The issue of gender is one of the important indicators for understanding religious interpretations at the individual and social levels. One of the responsible institutions in shaping the gender approach in Turkey are the Faculty of Theologies. The majority of the students who are studying in theology faculties and who will take part in the religious services of the society after completing their education are women. It is clear that the religion and gender understanding of female students of theology (...) faculties will have various levels of influence on the religious and social life of women and men in society, now and in the future. This article, which is studied with a qualitative research method, focuses on the religious and gender understanding of female students of theology faculty. The most basic conclusion reached in this article; the female students of the faculty of theology do not have a homogeneous understanding of religion and gender, they have traditional and modern approaches together. The students are mentally inconsistent and indecisive about many issues related to gender.Summary: Gender perceptions are One of the areas that have changed rapidly with the modernization processes. The issues concerning gender and religion recently have become a matter which is the subject of intense debate in Turkey. Theology faculties also take part as a party to the debates and tensions about gender and religion. This study focuses on the gender and religious understanding of the female students of the Faculty of Theology and to examine the intellectual and material factors that nurture them. The scope of the study was limited to Dicle University Theology Faculty female students. The data of the study was obtained by the qualitative research method. In this article, which takes the religion and gender understanding of female students of Theology Faculty as the main problem; the ontological value of women, the authority of men over women, the paid work and management of women in the public, the change of the Shari'ah provisions on gender with social change, the beating of women and the themes formed in this context are examined.The religious and social status of women in Muslim societies was not shaped by the Qur'an or practices of the Prophet, but by the discourse created by hadith narrations and the influence of economic and political conditions. The development of this discourse was also influenced by the image of the ‘seductive’ Eve and the patriarchal culture of Mesopotamia, which were inherited from the Jewish and Christian tradition.Women's social position within the traditional society structure was legitimized by religious traditions, some of which date back to pre-Islamic times, and by the contribution of the rising jurisprudence and ascetic movements in the historical process and has resisted change for centuries.Nearly all of the female students of the Faculty of theology consider that there is no difference between men and women ontologically in the context of the value that Allah gives to both sexes.According to them, the physical and emotional naivety of women cannot be interpreted as the ontological worthlessness of women or as their lack of intellect and religion.About half of female students think the final decision in the family should not always be in the male.According to them The Prophet's practices on this subject are a very important example. In some cases, he consulted his wives and followed their suggestions. Therefore, narrations that trivialize the thoughts and demands of women in the family have cultural and not religious influences.All female students think that women can work outside the home on a paid basis. Moreover, according to the vast majority of female students, women can be managers in the public sector. The students who are in this view think that the narrations stating that the woman cannot be a manager in the public can be ignored for reasonable reasons. About one-third of female students think that the Shari'a provisions in Islamic law regarding women and family may be able to changed with new jurisprudence, while one-third think that some of them may be able to changed with the change of social conditions. Another view shared by nearly a third of students is that Sharia provisions on gender will not be changed over time. Nearly two-thirds of the female students in the research sample do not approve of beating women under any circumstances. A third of female students think that a woman can be beaten if she disobeys her husband. Some of them are confused about how to interpret the verse about the beating of women.It is unthinkable that the Faculties of Theology, which cannot be an actor of religious social change, stay away from the wind of change of a rapidly modernizing society. The rapid flow of time of change on the one hand, and the absence of a tradition or strategy of the Faculties of Theology on the other, resulted in the Faculties of Theology becoming the object of social change in many contexts. This situation made the Faculty of Theology's understanding of religion hybrid, fragmented and unstable between traditional and modern approaches and quite open to the effect of political conjuncture. In this context, although the understanding of gender in theological faculties is not at the same level in all, it can be said that traditional understandings are in the form of a softened form in favor of modernity.The students of the Faculty of Theology at Dicle University are mostly grown up in the Eastern and Southeastern Anatolia regions and are generally members of the lower-middle societies. In most of the female students who come from a social structure where the social status of women is quite low and girls are regarded as worthless compared to boys, an awareness be formed about the social position of women during the education of the Faculty of Theology. Through the study of the Faculty of theology, female students realize that religion is not responsible for the otherized position of women, but for religionized traditions. Two main factors determining the gender understanding of women students of the Faculty of theology can be mentioned. These can be roughly categorized as the main sources of religion and their interpretation by denominations, as well as the socio-cultural habitats of the students and their individual experiences. On the subject of gender, there is a tension between verse, Hadith and their interpretations made by sects and the values and norms of modernity internalized by female students. At Dicle University Faculty of Theology, it is not possible to talk about a learning system and intellectual accumulation that would allow to overcome this tension. This causes mental and emotional bifurcation in female students and leads them to become caught up in a vortex between religious and social reality on many issues. An important consequence of this is the lack of updated religious norms to guide them in many issues that have emerged as an alternative to religious beliefs and practices in the context of gender and have become established values and have common practices in modern life, and have led them to modern secular tendencies and this leads to an internal secularization. The lack of updated religious norms to guide female students in many subjects that are widely practiced in Modern life leads them to modern secular tendencies, which lead to an insider secularization. The fact that female students are mostly traditional in discourse but modern in action on gender and religion makes this situation testable. (shrink)

To maximize brain plasticity after stroke, several rehabilitation strategies have been explored, including the use of intensive motor training, motor imagery, and action observation. Growing evidence of the positive impact of virtual reality (VR) techniques on recovery following stroke has been shown. However, most VR tools are designed to exploit active movement, and hence patients with low level of motor control cannot fully benefit from them. Consequently, the idea of directly training the central nervous system has been promoted (...) by utilizing motor-imagery (MI) based brain-computer interfaces (BCIs). To date, detailed information on which VR strategies lead to successful functional recovery is still largely missing, and very little is known about how to optimally integrate BCI and VR paradigms for stroke rehabilitation. The purpose of this study was to examine the efficacy of a BCI-VR system using a MI paradigm for post-stroke upper limb rehabilitation on functional assessments, and related changes in MI ability and brain imaging. To achieve this, a 60 years old male chronic stroke patient was recruited. The patient underwent a 3-week intervention in a clinical environment, resulting in 10 BCI-VR training sessions. The patient was assessed before and after intervention, as well as on a one-month follow-up, in terms of clinical scales and brain imaging using functional MRI (fMRI). Consistent with prior research, we found important improvements in upper extremity scores (Fugl-Meyer) and identified increases in brain activation measured by fMRI that suggest neuroplastic changes in brain motor networks. This study expands on the current body of evidence as more data are needed on the effect of this type of interventions not only on functional improvement but also through brain imaging to study the effect of the intervention on plasticity. (shrink)

Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that every legal (...) class='Hi'>system condones procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content: Kant's Tribunal of Reason: Legal Metaphor and Normativity in the Critique of Pure Reason. Cambridge: Cambridge University Press, 2020. Pp. 208. Hardback, $105.00. -/- Even those with a passing knowledge of Kant's system will recognize his sustained use of legal metaphor and his appeal to lawfulness as a beacon of philosophical progress. He famously begins one of the most important (and impermeable) sections of (...) the Critique of Pure Reason with the juridical distinction between quid juris (what is the law) and quid facti (what is the fact) (A 84/B 116), insisting—against the empiricists—that the critique of our cognitive faculty must speak to the former and requires a Transcendental Deduction of the categories. In her book, Sofie Møller delves into the historical context and philosophical significance of such legal metaphors to reveal that their roots spread to the deepest foundations of Kant's project. In doing so, she contends that we should understand "philosophical systematicity as legal systematicity" (15). According to Møller, to accept this reading of Kant is to acknowledge that the legal system provides not just one helpful type of metaphor to be appreciated alongside many others, but the only proper symbol of the abstract nature of reason itself (173).For those interested in Kant's engagement with the natural-rights theory that prevailed during his lifetime, or in his familiarity with the concrete legal practices of eighteenth-century European courts, Møller's book proves to be thoroughly researched and informative. As the first English-language book-length study providing a comprehensive account of the legal aspects influencing Kant's system, it should serve as a valuable catchall resource. There are limits to its accessibility, however, as familiarity with basic legal distinctions—e.g. between civil and criminal codes—is assumed, and Latin terms and phrases often go untranslated. At times, this makes for a difficult intersection between the arduousness of Kant's own prose and the equally technical legal terminology that is meant to explain it. However, this barrier is mitigated by Møller's own interpretive work, which cautions that we should not let indeterminate legal terminology fix too much in our reading of Kant's texts, especially when considering the Transcendental Deduction and its reliance on the quid juris/quid facti distinction. As she concludes at the end of chapter 3, the procedure of legal deduction that Kant invokes "could be an investigation, an exposition, a thorough consideration, a review, explanation, description, account, dispute or procedure" (64). Thus, despite Kant's historically demonstrable familiarity with legal-deduction writings, on their own, they "do not present a sufficiently uniform argument structure to settle the question of the structures of the two versions of the transcendental deduction" (64). This observation serves both as a general warning as well as a criticism of Dieter Henrich's approach to Kant's system, which popularized attention to legal metaphor in Kant scholarship in the twentieth century. For Møller, little philosophical insight is won through Henrich's approach, since it "places too much weight on the importance of an origin" (60), taking its cue from a particular type of legal deduction whose assumption is unsupported, and which cannot be accurately projected onto Kant's text. As Møller argues, "The validity of the categories is not only grounded in their origin in pure apperception but in their being the necessary structures in the synthesis which creates objects of experience, which is an act of pure apperception" (60). Møller's suggestion, instead, is to read the Deduction as adopting the twofold structure of "judicial imputation," which does a more faithful job of capturing the structuring activity that Kant accords to the understanding. With the latter reading, emphasis shifts from whether the categories' application to objects of experience is valid because of their a priori origin, to the spontaneous activity of the judging subject as the originator of experience (75). Part of what is unique about this approach is that it does not read the... (shrink)

The field of war ethics changes its focus, and grows, in reaction to salient conflicts of the day – and this is how things should be. World War II made the deficiencies of contemporary law and policy crystal clear, remaining the obvious reference point up to this day. It was in reaction to the atrocities of the Vietnam War that Michael Walzer and others made just war theory relevant again, featured in military academies and politician’s speeches. The Iraq War inspired (...) the so-called revisionists in just war theory and fixated military ethicists’ glance on the complex conundrums of counterinsurgency, while G.W. Bush’s War on Terror ignited debates on torture, use of private military contractors and targeted killing. Had these wars been different, contemporary ethics of war would have dealt with different problems, or at the very least it would apportion attention and expertise differently. Consequently it is no surprise that the Russian invasion of Ukraine, launched clandestinely in April 2014 and escalated in February 2022, has generated its own ethical problems. A rare large scale, conventional, inter-state conflict, fought both with legacy Soviet systems and cutting edge contemporary technologies, the Russo-Ukrainian War is different from the asymmetrical, low-end (though not low harm) conflicts of the last thirty years. It is also marked by the almost complete disregard shown by the aggressor side to the issues of justice, both ad bellum and in bello ones. Indeed, as I write these words, use of nuclear weapons in offensive warfare is being openly threatened, and one is to assume, considered, by the Kremlin. Both frost and hunger are being weaponized against civilians, with the inhabitants of Ukraine being far from the only target, or casualty, of such policies. In a globalized world, the suffering is also global. While the issue of ad bellum justice is uncharacteristically straightforward, many other questions are anything but answered. Nuclear blackmail, and nuclear-backed imperialism, stand out as theoretically underappreciated yet vastly important problems. So does the role of the global community in limiting the spillover effects of the war from hurting the most vulnerable. Devising an appropriate international response to crimes against humanity and acts of genocide committed by a nuclear power, yet by conventional means, offers another set of stark problems. These heavyweight questions are just the very first ones that spring to mind when one contemplates the events of the current war. Russian attacks on power plants and heating stations, conducted at the verge of winter, unfortunately may be said to have some precedent in the actions of Western powers in Serbia and Iraq. Whether such attacks are legal under international laws of armed conflict, and, if they are legal, whether the laws should change is another subject ripe for debate. So is the issue of POW’s notorious vulnerability to wanton and needless cruelty, once again exposed by this war. The internment of Mariupol garrison commanders in Turkey seems to offer a glimpse of a solution far more civilized than the current system. As far as the ethics of novel military technologies are concerned, the widespread use of armed drones, permeating to ever lower levels of military organization has major, though unclear implications both for the future of drones and that of autonomous weapons. Does the wildfire proliferation of armed drones prove the attempts to frame them as illegitimate, morally suspect weapons were naïve and futile? Or does it prove ethicists should double down their efforts to shackle such technologies in their infancy? The general problem is far from the only one. What about the use of drones or autonomous weapons that cannot be tied to a particular actor against critical infrastructure, such as the Nord Stream pipelines? How are such attacks to be responded to or deterred? Regarding technology, this is also the first conflict of this size followed almost in real time by a truly global audience of sympathizers, spectators and trolls capable of impacting political and military outcomes through influence campaigns, donations, volunteer online work etc. It is clear that trying to sway one’s government to increase or cease support for a side of this conflict is not morally neutral, nor is transferring money for the war effort. How should we think of these new forms of extended participation in conflict? And given their importance, how should those who report the truth about the ugly realities of war proceed? What about pundits and commentators with large audiences – what are their responsibilities, and what standards can we expect of them? The questions that may be asked about the behavior of essentially private citizens may of course also be asked about the behavior of governments – and corporations. What degree of assistance to the victim state may be required? What degree of involvement with the aggressor state is permissible? What these and many other conundrums placed in the spotlight by the Russian invasion have in common is that they need answers – most quite urgently. Consequently we invite a variety of learned and considerate voices to opine on these in our journal’s special issue. Among questions and doubts, one thing is certain – when confronted with the evils of war, we cannot stay silent, and we cannot cease to reflect. (shrink)

In societies of high legal culture, criminal law is regarded as a protective and repressive measure of the state, as an imperative of crime and inevitable punishment (as a strict rule). Therefore, the article attempts to show the fact that the entirety of the provisions and norms of criminal law, consolidated in a modern democratic state under the rule of law (or, at least, a state that is attempting to become such a state), allows for the assertion that the (...) purpose of criminal law is coordination or, at least, the balance of the interests of conflicting subjects—the victim and the culprit, the culprit and the state. Thus, by means of criminal law, one can try to attain legal concord in seemingly irreconcilable situations. The reality of such striving is confirmed by court practice and statistics in criminal justice. The article analyses the origin of the reconciliation function, essentially a new aspect of criminal law. A position is formed that the fundamentals of such a function of criminal law are “laid” by the provisions of the Preamble to the Constitution of the Republic of Lithuania that the striving of the Nation is an open, just and harmonious civil society and a state under the rule of law. For the implementation of these provisions, one makes use of the possibilities of penal law-making and respectively corrects the penal policy. (shrink)

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest (...) that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance with that regime of international law. This paper examines the case of Japan's Constitution to determine the extent to which its war-renouncing provisions incorporated, and are consistent with, international law principles on the use of armed force, and whether the provisions operated to effectively constrain government policy. It concludes that the drafters of the Constitution did incorporate international law principles from jus ad bellum in Art. 9(1), though they also grafted on sui generis prohibitions and rules from jus in bello in Art. 9(2) as well, which complicates the story. The provision was embraced in the ratification process, and became the source of powerful constitutive norms that have helped shape Japan's sense of identity. The paper examines the interpretation of Art. 9, as informed by international law, and concludes that despite deep conflicts over competing narratives and understandings of the provision, the long-standing government interpretation of the provision is consistent with Japan's obligations under the jus ad bellum regime. In looking at the operation of Art. 9, the paper finds that despite the early use of Art. 9 by governments as a pretext behind which it could pursue desired policy objectives, the provision did operate to effectively constrain government policy in times of apparent crisis. During the Gulf War in particular, Art. 9 effectively bound a straining government to the mast, preventing Japan's participation in the war. It did so not only in its operation as a legal norm, effectively enforced by the Cabinet Legislation Bureau, but also as a powerful constitutive and social norm. As such, the experience of Japan with Art. 9 provides support for the argument that it is feasible to incorporate principles of jus ad bellum into national constitutions, so as to effectively constrain government policy with respect to engaging in armed conflict. Broader arguments as to why that might be desirable, or whether it has served Japan well or ill, are left for another day. (shrink)

Animals in Brazil: Economic, Legal and Ethical Perspectives presents a broad overview of the complicated role of animals in Brazilian society. Its four substantive chapters survey the landscape of animal agriculture, animal protection laws, recent animal jurisprudence, and the underlying cultural factors that have shaped the Brazilian people's relationship with and treatment of animals. Despite the book's title, there is no chapter addressing economics. However, it represents the first book in English addressing the plight of animals in Brazil (...) and makes a marked contribution to animal ethics in Latin America. At its best, it is very good, and overall, the volume is a worthwhile addition to the bookshelf of anyone interested in Brazilian animal law.The introduction by the book's editor, Carlos Naconecy, does exactly what an introduction should do: it succinctly describes the content of the chapters to follow. My quibble is that while Naconecy has excellent English and expresses himself well, the essay badly needed the editorial scrutiny of a native English speaker. The succeeding chapters each begin with an abstract, a simple but useful aid to any scholar who might not be interested in all of the issues the book covers.Chapter 1, “Food Animals in Brazil: Five Decades of Transformation,” ably describes Brazil's progression from a primarily subsistence-based agrarian culture to its full-scale embrace of industrial agriculture with all of its incumbent horrors. In just 50 years, Brazil has gone from a net importer to the world's second-largest exporter.The story of the country's transition to confinement, meat-based agriculture is all too familiar. It wrought havoc on community and family ties and overwrote traditional dietary practices, leading to widespread obesity, disease, and nutrient deficiencies. It also made indifference toward agricultural animals a new national norm. The level of cruelty that is both legal and common in Brazilian industrial agriculture would strain credulity if it weren't so similar to those of so many other countries. Indeed, the authors’ discussion of the systemic animal mistreatment, devastating environmental consequences, and accompanying cultural erosion in Brazil could easily have been cut and pasted into a chapter surveying the last 50 years in the United States.The second chapter is the strongest in the collection. “The Legal Protection of Animals in Brazil: An Overview” summarizes the country's animal-legal framework and situates it within the context of Brazil's constitutional prohibition against animal cruelty. The authors explain why the constitution offers little practical protection. Under the prevailing view, only those acts undertaken for the purpose of causing needless suffering constitute cruelty. Since much animal cruelty is ostensibly done for other reasons (food, science, etc.), the cruelty prohibition does not reach the majority of offenses.The authors next construct a syllogistic argument that the current legal classification of animals as “things” rather than beings who are the subjects of rights is logically and ethically flawed. Since cruelty involves suffering, and objects cannot suffer, and since animals suffer (otherwise animal cruelty laws would be pointless), then animals must be subjects of the law. Phrased differently, animals must be rights-holders. This leads into a compelling argument that the constitution not only supports but requires such an interpretation.“Cases and Debates in the Brazilian Animal Rights Arena” does exactly what its title suggests. It looks at recent animal-related judicial developments and situates them within a broader cultural and legal context. For example, the Supreme Court recently held that the Vaquejada, a rodeo-like event involving chasing and tackling terrified cows, was unconstitutional.Immediately following the decision, the legislature amended the constitution to classify the Vaquejada as an important cultural activity and thus protected under a different constitutional provision. The courts are currently considering whether that constitutional amendment is itself unconstitutional. We are further told about movements against foie gras and vivisection and about recent developments regarding custody disputes over domestic animal companions.The final chapter, “Factors That Influence the Brazilian Ethos Regarding Animals” is a broad discussion of the ways Brazilian history and culture have impacted attitudes toward animals. It is argued that because Brazil was the last Western country to eliminate slavery, Brazilians are more prone to treat animals like property and that the Brazilian temperament makes them more likely to be passionate than pragmatic. We also learn that a cultural reluctance to protest against social wrongs enables Brazilians to remain silent in the face of animal injustice and that the country's Catholic tradition instilled the idea that only people were made in the image of God and that animals therefore matter less. These observations strike me as overbroad and problematic. For example, millions of Brazilians have spent much of the past decade protesting government corruption, and the country has an impassioned animal advocacy movement. Furthermore, it is not clear that Brazilians necessarily treat animals differently than people from other countries with very different histories.Overall, Animals in Brazil begins the work of new scholarship in English on animals in the Brazilian context. The fact that some chapters are more informative and useful than others is an inevitable by-product of an edited volume and should not deter those interested in Brazilian animal law from reading it. The excellence of the first two chapters alone makes the book worthwhile. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Vice, Mental Disorder, and the Role of Underlying Pathological ProcessesNancy Nyquist Potter (bio) and Peter Zachar (bio)Keywordsresponsibility, virtue theory, cultural norms, psychopathologyThe issues discussed by John Sadler are among the most complicated in the philosophy of psychiatry, if for no other reason than that they highlight an area where disciplinary fault lines between clinical psychiatry/ psychology and philosophy seem most evident. We spent a year writing an article (...) on the relationship between the assessment of personality disorders and moral evaluations, and these fault lines became manifest not only between ourselves, but also when discussing our ideas with members of the various disciplines.Many practicing psychiatrists acknowledge that moral attributions (such as manipulativity) might be made about people with certain disorders (such as borderline personality disorder), but also find the argument that psychiatric diagnoses are moral rather than medical conditions to be a ludicrous bit of antipsychiatry in the Szaszian tradition. Philosophers, on the other hand, are less involved with these diagnostic categories in their day-to-day work and are more willing to be skeptical. Whether they are doing philosophy of psychiatry, moral theory, or sociopolitical philosophy, they are interested in digging a little bit deeper and are not impressed by arguments to the effect that—it’s obvious that these are really disorders. Being “obvious” is not a persuasive philosophical argument.The metaphysical task of determining what belongs in the category of criminality compared with other ways of sorting behavior has parallels in moral philosophy: Why is fraud, or theft, criminalized whereas (most) lying is not? Why is one set of moral norms enforceable, whereas a second set is aspirational? Does the difference involve property, where infractions of property are thought to be more serious wrongs than lying, which is “only” psychological rather than material? Are the “most serious” wrongs the ones we mark as crimes? Why is sodomy still criminalized in some areas but betraying one’s lifelong love is viewed as morally reprehensible but not criminal? Both actions are private, and only one seems to do harm—unfaithfulness—yet that is the one that is not criminalized. The point here is that, regardless of domain, our classification systems need to be justifiable, yet justification is most often mystifying. [End Page 27]The same is true for classifying mental disorders. The class of mental disorders appears to be a somewhat inconsistent collection of heterogeneous conditions and does not form a natural kind (Zachar 2000). At the most, the class of mental disorders names a family of loosely related conditions and the reasons for inclusion can shift from disorder to disorder.If the class of mental disorders does not specify an internally coherent kind akin to gold, deciding on the scope of psychiatric practice becomes an important problem. As Sadler asks, for what reasons do we classify pedophilia with schizophrenia—both as disorders—but omit sadism? This is an important question of disciplinary scope.This question of scope is itself ethically charged because, on the one hand, bringing a condition under the purview of psychiatry offers the possibility for treatment, and at least establishes the goal of improving the lives of people with specific kinds of problems. Making lives better is one of the humanistic justifications for science itself; clearly it is a raison d’être of psychiatry. On the other hand, medicalization sets up the conditions for a certain kind of social control. Hospitalization, educational services, day treatment, and disability payments are all contingent upon psychiatric diagnostic practices. These programs and the institutions that manage them are both socially available and socially prescribed. The diagnosed behaviors can now be considered to be entities, and explanations of them can be developed. New technologies for altering them will also be introduced. Such practices have been associated with dehumanization (Phillips 2009).Two important questions also need to be distinguished. The first is a question for moral philosophy—What degree of responsibility do people with putative mental disorders have for their behaviors? For example, should people with psychotic disorders or personality disorders be held responsible for crimes they commit? If so, under what conditions? Should responsibility for certain behavior be mitigated? If so, under what conditions? Moral philosophy... (shrink)

The importance of the topic of the article lies in the need to explain the cognitive aspects of the strategic management system under uncertainty. The purpose of the article is the need to study and substantiate the importance of cognitive aspects of the system of strategic management in conditions of uncertainty; a comparative analysis of different approaches to strategies in conditions of uncertainty, identifying their features and differences from the provisions of the classical strategic management; to (...) classify the angles of the system of strategic management in conditions of uncertainty, comparing different approaches; to characterize cognitive concepts of fast strategies in conditions of uncertainty. The article analyzes the importance of cognitive aspects of the strategic management system in conditions of uncertainty; a comparative analysis of different approaches to strategies in conditions of uncertainty is made, their features and differences from the provisions of classical strategic management are revealed and analyzed; angles of strategic management system in conditions of uncertainty are classified, a comparison of different approaches is made; cognitive concepts of fast strategies in conditions of uncertainty are characterized. At the present stage there is a rather acute need to quickly study the cognitive aspects of the strategic management system under conditions of uncertainty. (shrink)

Regardless of unpredictable and contingent geopolitical events such as last year’s surprising rejection of the European Constitution in France and the Netherlands, this coming year will certainly witness a large surge in patriotism. The Winter Olympics in February, and the World Cup in the summer, both promise to whip national sentiments into a fever pitch. One other thing is certain, though: journals of philosophy and ethics will continue to debate the virtues of cosmopolitanism, as this number of Ethical Perspectives does (...) through its contributions below.Why is this? Why do philosophers and academics hold on to this idea of cosmopolitanism, an idea utterly lacking in the convictions of the general public? Is it perhaps because the first cosmopolitans were in fact philosophers? The first to identify himself as a cosmopolitan was Diogenes the Cynic, and Plato’s dialogues paint many of the Sophists in cosmopolitan hues. Although people generally support the idea of internationalism as far as it promotes trade, travel, and football tournaments, once it begins to meddle in internal affairs, as it does with outsourcing and transnational constitutions, they tend to fall back upon the patria. They killed Socrates for corrupting the youth of Athens, not the youth of the world.Whether it is the service and manufacturing industries of Asia and India ‘stealing’ American jobs, or widespread fears of Brussels’ legendary bureaucrats, the non-academic public consistently turns from its tepid embrace of cosmopolitanism to patriotism whenever threatened. Are we too quick to label this as self-interest or even selfishness? Or is there something else at work in the debate between cosmopolitanism and patriotism? Some approaches to cosmopolitanism are certainly guilty of an absolute removal of difference, of wishing away the nation state, of replacing it with an international body based on purely universal principles, and of wiping away the competencies of nations on many levels. The call for the world state can come across as an appeal for an anodyne and internationalist homogeneity based on a clinical morality that, for all its sensitivity, runs roughshod over the well-engrained cultural, legal, and social beliefs of many peoples.Clearly, this is what many Europeans fear, and to a large degree, Americans as well in their dislike for the International Court of Justice. Even the economic hegemony of outsourcing removes national power, and replaces it with pure economic rationality.Our contributors below do not advocate these reductions, although some may point to them. Key to each contribution below is sensitivity to the world as it is, to its need for difference even in the face of an ever-increasing globalisation that sometimes is connected with cosmopolitanism. Yet, every proponent of cosmopolitanism must sketch how it is possible in practice. Of course, an obvious problem is how to dwell consequently as a cosmopolitan. Not many contemporary cosmopolitans would be prepared to follow Diogenes’ commitment to rootlessness: living in exile after having been included in a forgery conviction aimed at his father, the ascetic Diogenes called a barrel his home. Such was his drive to live a levelled life that he cast away his only bowl upon seeing a poor peasant boy drinking from cupped hands. Today’s cosmopolitan leads a much more prosaic life, and hence the problem with cosmopolitanism begins as something mundane. Does not a cosmopolitan still pay national taxes? Does not a cosmopolitan still need a national passport and second country visas? But, the questions quickly turn ontological: how can one shed oneself of one’s nationality, of one’s belonging, as if it is just an accident of one’s own constitution, instead of as an important property of one’s own constitution? In other words, belonging is important: a citizen of the world still values citizenship. Clearly, the absolute cosmopolitan reduction is an absurdity: one is always rooted, in some sense. Even cosmopolitanism is rooted in a specific Western mindset, and is no self-evident preference of human existence.As Rudi Visker’s contribution so clearly shows through an investigation of the narcissism of minor differences, these questions revolve around the question of confrontation with alterity. What I am, in no small way plays off what I am not. I cannot be everything, if I am something. Freud’s analysis of minor differences reveals that members of a group identify with that group on the basis these minor differences. What is self-evident to a particular culture marks that culture off from another culture, a culture that by definition does not share the same set of the self-evident. To be a foreigner, as any ex-patriot can attest, is to stand outside of the self-evident, whether this means interpreting gestures, understanding commercial practices, or, as Freud would have it, staying on the correct side of national taboos. There is thus a dialectic of inner and outer, a dialectic which refuses a reduction of one to the other. As Visker puts it, recognising the stranger within oneself is quite different than recognising the stranger outside of oneself, and to confuse these as being the same is not only to misunderstand the very issue at stake, it is also a dangerous trivialisation of difference.But clearly, there is something viable and laudable in the idea of cosmopolitanism, since it stresses the universal moral community of humanity. Cosmopolitanism is an attempt to see all human subjects as subject to the same moral law. Indeed, the sort of federation to which cosmopolitanism leads, at least in a modified Kantian expression as Bert van Roermund tells us, even gives us good grounds to recognise the legitimacy and moral equivalence of states. Importantly, the international legal order does not draw its power from any supranational force, but from the choice of independent national actors to recognise it. Hence, this cosmopolitan order depends on nationhood, and good standing within this order depends on the degree to which a country decides to participate. Again, the universal here depends on well-rooted particularity, a particularity able to choose for the universal.What do we do, then, with outlaw nations, those nations that are hostile to the choice for the universal? Through a clear reading of Hegel, Paul Cobben proposes that the metric for a state’s legality is the measure to which it permits the moral freedom of its citizens to bloom. A free person requires a free legal order; only in such can a person obtain the full measure of human rights due. States that do not permit this blooming are illegitimate; they contradict the nature of the human person, and citizens dwelling under the yoke of these have the right to ask for outside assistance in removing this illegitimate power above them. However, for this plea to be met, two conditions must obtain: the oppressed people must have the wherewithal to form a political order after the removal of the illegitimate state, and the action must be grounded in the principles and support of a legal community, which in essence would be a world federation of states. In fact, it is morally incumbent upon all legal states to aim at such a world federation, upon pain of contradiction.Our duty to others does not end with the politically oppressed; the economically oppressed also lay a moral claim upon us. So, as Toon Vandevelde asks in his contribution, what about the global poor? The poor are hungry and in need of shelter and a future, but to address these issues at the level of rights is in a way heartless: what good does it do to legislate that everyone has the right to food, when this right can never be called upon, or enforced, in any meaningful sense? Moreover, approaches that demand non-prioritised generosity not only ignore the fundamental economic fact of scarcity, they also run the risk of creating the moral hazard of dependence on charity. The true cosmopolitan approach is the recognition of our common humanity and of our concomitant duty to help others as far as this help does not endanger us. This duty is compounded by the marginalisation of the poor through globalisation, a globalisation that they did not ask for. The extent of our help is indeterminate, but its direction is clear: it must aim to integrate those poor who wish it within our international systems, and so to ease their own transitions from poverty.Both Gil Anidjar and Maria Bonnafous-Boucher continue this theme of economy, but each from a highly specific viewpoint. Indeed, their contributions are perhaps somewhat darker, delving into an aspect of the unspoken underneath the choice for the universal. Anidjar begins with the relation between religion and economy within the interplay of Judaism and Christianity, whereas Bonnafous-Boucher focuses on the development of political economy through a Foucaultian lens. Although highly distinct contributions, both share the insight that the economy is now the central theme of our power structures, and that economy, isolated from questions of morality or justice, must likewise play a decisive role within the structure of cosmopolitanism, or, at minimum, the political unity of peoples. For, national government long ago ceded to a promiscuous mix of governance, and religion to economy. This nexus enthrones governance as an economic rationale stripped of all other trappings, and inscribes any possible cosmopolitanism within a framework of an aggressive capitalism, a kind of economic theology, a kind of hegemony in which state boundaries are essentially liquefied. Capital, after all, knows no boundaries. (shrink)

Public shaming plays an important role in upholding valuable social norms. But, under what conditions, if any, is it morally justifiable? Our aim in this paper is systemically to investigate the morality of public shaming, so as to provide an answer to this neglected question. We develop an overarching framework for assessing the justifiability of this practice, which shows that, while shaming can sometimes be morally justifiable, it very often is not. In turn, our framework highlights several reasons to (...) be concerned about the increasingly widespread phenomenon of online public shaming. (shrink)

continent. 1.1 (2011): 60-67. At the beginning of Martin Heidegger’s lecture “Time and Being,” presented to the University of Freiburg in 1962, he cautions against, it would seem, the requirement that philosophy make sense, or be necessarily responsible (Stambaugh, 1972). At that time Heidegger's project focused on thinking as thinking and in order to elucidate his ideas he drew comparisons between his project and two paintings by Paul Klee as well with a poem by Georg Trakl. In front of Klee's (...) Saints from the Window and Death of Fire —though we wouldn’t absolutely understand what we were seeing—he writes, “we should want to stand…a long while.” In a similar manner, of Trakl’s poem “Septet of Death”—although it is likely we are unsure in what we hear—Heidegger states that, “we should want to hear…[it] often.” Heidegger further states that in appreciating these, “we “should abandon any claim that [they] be immediately intelligible” (1). So also we must we approach, Heidegger continues, the realm of theoretical physics, in which the difficult work of Werner Heisenberg, be listened to “without protest” and without “any claim that he be immediately understood.” These works, like his own project, merit the time they take to be originally (mis)understood. But this is not necessarily true for philosophy, Heidegger advises, because, “That thinking is supposed to offer ‘worldly wisdom’ and perhaps even a ‘way to a blessed life’” (1). Philosophy is in the unique position of being both abstract (what do we talk about when we talk?) and at the same moment, useful. There are demands that it make sense, that it be, grounded, immediate, and most importantly, rational. Heidegger draws these comparisons between the works of Klee and Trakl and Heisenberg not to claim that philosophy is totally irresponsible. He does not claim that the poet, the painter, nor the physicist have acted irresponsibly. Rather, he would say, they are rising to the highest levels of intelligibility, though it is perhaps an intelligibility that is commonly unavailable to us. In Trakl’s case, as we shall see, mastery is the end result of difficult words. Instead, Heidegger seems be making pleas: for a period of uninterrupted unintelligibility (pure unintelligibility); and that there is a time (that time is now) when, “thinking is…placed in a position which demands of it reflections that are far removed from any useful, practical wisdom” (1-2). Heidegger argues that philosophy requires a period of time in which, instead of focusing on the practical—or even on the worldly—the discipline draw its “determination” instead from the place of painting and poetry and physics. In doing so, “we should have to abandon any claims to immediate intelligibility” (2). But Heidegger doesn’t offer this as a way out. We still have to turn up, we “still have to listen, because we must think what is inevitable, but preliminary” (2). The point for Heidegger, is not to listen to a series of propositions, but instead to “follow the movement of showing” (2). I. … Maybe we're here only to say: house, bridge, well, gate, jug, olive tree, window— at most: pillar, tower … but to say them, remember, oh, to say them in a way that the things themselves never dreamed of existing so intensely.… Rainer Maria Rilke, “The Ninth Elegy” There is little more fundamental, preliminary, in the world than language. We use language, in the form of speech, constantly, whether we are saying anything or not. “Man speaks,” Heidegger writes, and goes on to describe in his essay “Language” (2001) the constant speaking that we do. “We are always speaking, even when we do not utter a single word aloud, but merely listen or read, and even when we are not particularly speaking or listening but are attending to some work or taking a rest” (187). Speaking is expression, an utterance of something internal. It is a recognition of a world. It is a way of communicating thought and it is an activity that we all do, inevitably. Speaking separates the human from the animal world, and despite advances in primatology that seek to give ‘voice’ to primates and other non-human animals, it can safely be said that our form of communication—what we call speech and know as language—is the most advanced, the most complicated. We use it to present and represent the world around us; through actual utterances (vocalization) or through the written word or through ‘unvoiced thoughts’ and dreams. We use language, but more specifically speech—naming—to transmit moods, thoughts, desires, aversions, and feelings. These expressions, mere utterances, nearly always find a source in words, whether spoken or not. Heidegger writes that this common view of language means “that only speech enables man to be the living being he is as man. It is as the one who speaks that man is—man” (187). Speaking then—utterance—surrounds us constantly, whether in the form of careful thought—in the form of an academic paper, say—or in the half mutterings and forgotten thoughts of a nearly remembered dream. Like scaffolding, the apparatus of speech sustains and explains the world, making, in a sense, the world rational, making it apparent. When we speak, we describe, and in doing so, name the world. We use words, through this process of naming, to interpret and sustain the world we see, and the world we imagine. Like Rilke’s naming of jug, and bridge, and window, and stream, we describe—and inscribe upon—the world through an activity of naming. Are we here, perhaps, to name? Is it possible not to name? Is it possible to regard and to view and to look around without naming what we see? Is it possible to feel—to experience—world without giving utterance to that feeling, that process? Sadness, grief, joy, ecstasy, hunger, thirst. Desk, light, room, pen, book, world. White, black, tomorrow, today. Each of these words is a name given to a thing I see in front of me, or a concept that I imagine (in the case of tomorrow or world). What arises in my mind has already existed. If I imagine it, it is named. The word for ‘tomorrow’ and ‘desk’ and ‘light’ precedes me, and precedes my concept of it. The idea of it is already pre-informed, and I must, in a certain sense, bend my ideas to it. When I imagine a table, I imagine my own table (or I imagine an idea of table) but that imagining must follow certain general rules; while, perhaps, it might not always require four legs and a horizontal surface, it must, at least not be, say, a pool of water, or a pile of excrement. It must have some tableness to it to be a table. It must, with Heidegger, table. Otherwise, speech is reduced to gibberish. For Heidegger however, the discussion of language points to something deeper than its “scientific and analytic” study as a communicative device. Indeed, Heidegger seeks to understand language not in reference to man or woman, not as an utterance of humanity, but in reference to itself. In doing so he abandons the conversation—that is, he casts away the traditional arguments surrounding philosophy of language; that it is a means of expression; that it is a human activity; and that it is somehow a representation of something that is—in order to seek to understand language as language, on its own terms. Heidegger is not a philosopher of language, but a philosopher of world, of being. Despite these “correct ideas” holding sway “over the whole field of the varied scientific perspectives on language…they ignore completely the oldest natural cast of language” (191). What is this “oldest natural cast of language? It is the act of language itself. Language is language and language speaks. “Most often,” Heidegger writes, “and too often, we encounter what is spoken only as the residue of a speaking long past” (195). Speech, as we normally encounter it, is like Echo herself calling out to Narcissus, doomed to repeat what has already been said, a mere remnant of what was once language, a trace left behind in the gathering silence of becoming. In both the essay “Language” and in his three lecture course “The Nature of Language” (1982), Heidegger attempts to unpack the seeming tautology of language as language. In each, he focuses on poetry as a way out, or into, a true discussion of the oldest natural cast of language. Poetry is pure speech. In poetry, language is brought to language and language speaks ( Die Sprach spricht ). In the act of poetry, the act of pure speech, the poet names (on the surface not different from how I name this table, this computer) but in the poet naming, the naming does not “hand out titles,” “apply terms,” but rather the naming is a call, a calling forth of entities that bring them into their own, allow them to take their place purely, without compromise. This calling, Heidegger (2001) states, “here calls into a nearness. But even so the call does not wrest what it calls away from the remoteness, in which it is kept by the calling there. The calling calls into itself and therefor always here and there—here into presence, there into absence” (196). II. Window with falling snow is arrayed, Long tolls the vesper bell, The house is provided well, The table is for many laid. Wandering ones, more than a few, Come to the door on darksome courses. Golden blooms the tree of graces Drawing up the earth’s cool dew. Wanderer quietly steps within; Pain has turned the threshold to stone. There lie, in limpid brightness shown, Upon the table bread and wine. Georg Trakl “A Winter Evening” Heidegger is often given short shrift as an abysmally difficult writer, as one that makes no sense and is needlessly difficult. In doing this though, we forget sometimes his eloquence, his simple beauty in writing. Of the above opening stanza, “Window with falling snow is arrayed/ Long tolls the vesper bell.” he writes (2001), This speaking names the snow that soundlessly strikes the window late in the waning day, while the vesper bell rings. In such a snowfall, everything lasts longer. Therefore the vesper bell, which daily rings for a strictly fixed time, tolls long. The speaking names the winter evening time (197). The speaking names the winter evening time. It is almost impossible to comment on that one line by Heidegger. It is as though it must exist on its own completely, without elucidation—as though in front of it we must stand as we do in front of a painting by Klee, that is, we must abandon any claim . Silent and devoted. The speaking of the poem here is not clearly different from common speech ( rede ) yet there is, via Heidegger, an invitation to experience that auracular quality of light and stillness that a gentle, dusk tinged snowfall gives; words evoking a quality so clear, so poignant that, in a sense, Heidegger’s work, at this moment, has been done. But what does this naming accomplish? What does the call call? Remember, it is not the poet that calls, but the naming which calls. The poet has only brought the words forward; it is now the words— snow, vesper bell, window— that take new life in the pure language of the poem. Entities are called forth into presence, like the speaking that names the winter evening time. Not to be present amongst us now, however; naming ‘table’ in the poem does not place it in front of us in this room. Rather, the naming places entities into a gathering which is also a sheltering. The naming brings them to be. In an act of appropriation, things come to be purely as their own, unimpeded by a predetermined expectation. They are called to themselves into an arrival. In Being and Time (1962), Heidegger famously describes the movement between present-at-hand and ready-to-hand in his analysis of the hammer, and of equipment in general. This analysis is already known, if not always clear, to most readers of Heidegger. Briefly, a hammer is ordinarily zuhanden or ready-to-hand; it is part of the background of the world, equipment used and never thought about, like this desk, this sheet of paper, this room. Our interaction with it is temporary and it is historically different for each entity and each relation. We need a hammer, we use a hammer. If all goes according to plan, the hammer remains ready-to-hand; it remains, in a sense, undisclosed and certainly unobtrusive. Our world is undisturbed by the hammer. Only when the hammer or the car or the computer is broken (or sometimes unused or unrecognized or missing) does it intrude into our world, become conspicuous as an object present-at-hand, or vorhanden . In this case, we reach for the hammer, it is broken and we suddenly notice it’s being, broken though it is. The thing which was always ready to hand—handy—is suddenly abstract, something to be examined, if only in its absence or disfunction. This can be exhibited for all entities, and it is important to note that in this analysis the zuhanden / vorhanden split is not restricted to a specific form of constructed material; zuhanden does not refer to the car, and vorhanden the sunset. No entity is ever exclusively ready-to-hand or present-at-hand; they are instead, interpenetrated with each others mode of being, one informing the other in a way that both brings things forth into the world—discloses is the word Heidegger chooses—and at the same time conceals them. As one mode is coming to be so another mode is withdrawing. This flux and movement between modes is precisely what brings the world forward, and what makes it manifest. It exists beyond where we tread and before man took dubious control of the world. We go to find a book or turn on the computer and it is missing or broken and we become aware of the object, as though for the first time. We walk to the water to glimpse the sunset and miss it, or it is less than stellar; in the sunset’s grayness, we become aware of it’s being sunset. The thing is disclosed in its withdrawal. Echoing Heraclitus, we can say that as something is coming to be, it is already becoming something other. Of similar importance to the fact that things are never all of one, or all of the other, they are also never alone. The hammer is never a single object, but is in relation always to the whole. Heidegger (1962) states, Equipment—in accordance with its equipmentality—always is in terms of its belonging to other equipment: ink-stand, pen, ink, paper, blotting pad, table, lamp, furniture, windows, doors, room. These ‘Things’ never show themselves proximally as they are for themselves…What we encounter as closest to us…is the room; and we encounter it not as something ‘between four walls’ in a geometrical, spatial sense, but as equipment for residing…it is in this that any ‘individual’ item of equipment shows itself. Before its does so, a totality of equipment has already been discovered (97). Equipment resides—dwells—in its relations, in its proximal being to other beings. Within the structure of totality, a series of relations is always occurring. The hammer is on the workbench in the carpenter’s hand in the workshop in the village under the sky and under the sun. It doesn’t stop there. Equipment surrounds us and the focus is not on what it does, or what one does with it—the carpenter with the hammer, the writer with laptop—but with the fact that it is. Equipment occurs in relation and is always occurring around us overhead, underfoot, by the stream and in the city. There is a constant exchange of relations happening, and as this occurs, so the world occurs, so the world both discloses and withdraws, into and out of itself. In a very real sense, language is also equipment. It is the thing that we use most often without thought, it is ready-to-hand (except when it’s not.) As we re- cognize the world around us, as we offer names for things and make lists, we are using language much like we might use a hammer, that is, bluntly. Most of the time it is invisible and we draw on it without wondering how we are going to say something. When language does intrude, it does so in an awkward moment, that moment when we can’t remember the right word, when we forget a phrase. At that second, it “speaks itself as language,” it reveals itself as malfunctioning equipment, and we “undergo” an experience with language, in Heidegger’s famous formulation. Language is not a tool anymore that we use to bludgeon an object, but something instead that we submit to, that we experience. In “The Nature of Language,” Heidegger (1982) writes, But when does language speak to us as language? Curiously enough, when we cannot find the right word for something that concerns us, carries us away, oppresses or encourages us. Then we leave unspoken what we have in mind and, without rightly giving it a thought, undergo moments in which language itself has distantly and fleetingly touched us with its essential being (59). The poet’s words become themselves, become appropriate, only when they no longer function in the prosaic world; they instead intrude as they come to be. Language itself brings itself to language. Names, like the entities they indicate, are always becoming something else. As noted above, language, through the poet, has brought forth entities from words previously “known.” I thought that I knew snow, but through Trakl’s re- presentation of the word, language calls forth a new image of snow, indeed calls forth snow itself. The vesper bell tolls longer, the table is for many laid. In bringing forth things , language has brought the world to presence. In everyday naming, word occludes world, preventing, in its everydayness, its coming forth, its disclosing. But what is this world that word has been brought forth into? In the same way that language speaks, world worlds. World, left alone, un-interfered with, comes into itself. It worlds. Again, this sounds like a tautology, but it is essential to Heidegger’s thought (and in my mind is more of a “god killer” than Nietzsche.) One of the most overlooked (and under-appreciated) aspects of Heidegger is his later examination and enthusiasm for the “fourfold,” or the system through which things come to be, through which things thing in a world worlding. The fourfold is the interaction of earth and sky, mortals and gods. Things come to be in the interstices and gathering of the fourfold. The fourfold provides both a place of being, and a sheltering, a place to dwell. Heidegger writes that “the things that were named, thus called, gather to themselves sky and earth, mortals and divinities. The four are united primally in being toward one another, a fourfold.” The poet has called, through the act of pure naming, things to come forth. In the purity of the fourfold—that is, when that is all that there is, when there are no other distractions, definitions, things—entities themselves can come to be. It is important to note that Heidegger is not saying that there are four formal things in the world, autonomous entities unto themselves. He is not evoking a pre-Socratic formula as to what makes up the world; instead, the four mirror each other constantly. (Heidegger calls this the ‘mirror-play.’) They interpenetrate in the same way that the modes of being of things interpenetrate themselves. There is no discrete exclusivity in being or the fourfold. What makes up things is not a precise recipe of the four main components; what makes up things is the action of the fourfold coming together, the movement of the fourfold which is a becoming. Heidegger (2001) writes that “this gathering, assembling, letting stay is the thinging of things.” And he later adds that “thinging, things are things. Thinging, they gesture—gestate—world” (197). Language brings the world to be. It works not again as a recipe added to things, but instead it is a bridge, or more precisely, a relation. Language relates world to thing, brings world to thing. In a sense, it does not say anything; rather it allows, or calls in its movement. Heidegger (2001) writes that, The intimacy of world and thing is not a fusion. Intimacy obtains only where the intimate—world and thing—divides itself cleanly and remains separated. In the midst of the two, in the between of world and thing, in their inter, division prevails: a dif-ference (199). It is in this inter that language prevails. Language is difference, it is the differential aspect between world and thing that brings world to thing. In the final stanza of Trakl’s poem “The Winter Evening,” Trakl evokes this difference in the second line when he writes, “Pain has turned the threshold to stone.” Christopher Fynsk, in his essay “Noise at the Threshold,” draws attention to this point when he writes “it is the figure of the threshold that is language itself, inasmuch as language is defined as the articulation of difference by which difference comes about” (25). Language, as used in the pure language of the poem, draws together world and thing, bridging relation between entity and world. The calling of language calls world to thing, world to being. Heidegger (2001) describes this difference as unique; “of itself, it holds apart the middle in and through which world and things are at one with each other” (200). III. Neither reading nor writing, nor speaking—and yet it is by those paths that we escape what has been said already, and knowledge, and reciprocity, and enter the unknown space, the space of distress where what is given is perhaps not received by anyone (99). Maurice Blanchot The Writing of Disaster So far, we have allowed Heidegger to put forward what language does, how it functions as a relation and how it operates as a threshold, as a bridge. What interests me is what happens beyond language, beyond the relation. What happens to the thing without the naming, without the poet, or even without the everyday chatter—Fynsk calls this ‘noise’—intruding on being? If language allows things to become by bringing thing to world, what happens when we remove this bringing, this threshold turned to pain? In “The Nature of Language,” Heidegger examines the work of the poet Stefan George, specifically “The Word”: Wonder or dream from distant land I carried to my county’s strand And waited till the twilight norn Had found the name within her bourn— Then I could grasp it close and strong It blooms and shines now the front along… Once I returned from happy sail, I had a prize so rich and frail, She sought for long and tidings told: “No like of these depths unfold.” And straight it vanished from my hand, The treasure never graced my land… So I renounced and sadly see: Where word breaks off no thing may be. That final line, “Where word breaks off no thing may be” is evoked on nearly every page of Heidegger’s essay. It is the line to which he returns over and over and bears repeating. Where word breaks off no thing may be. Where naming ends, no thing. We can interpret this in two ways (at least.) Where word—naming—breaks off, then there is nothing . Or, as I choose to read it, where word breaks off no thing may be. In this I see a hint forward, a marker left behind by Heidegger. What could this look like? What does no thing look like? Like a zen koan ( there is no mirror ) it is as thrilling and horrifying as contemplating what preceded the Big Bang. Because language as naming wasn’t always here; we weren’t always here. One or maybe two aspects of the fourfold (depending on your view of gods) were not always here, and there is no guarantee that we will always be around. What then? Heidegger (1982) describes the landscape that the poet finds, “It names the realm into which the renunciation must enter: it names the call to enter into that relation between thing and word which has now been experienced” (65). The poet, in renouncing, allows for the “may be” of “where word breaks off no thing may be.” This “may be” becomes “a kind of imperative, a command which the poet follows, to keep it from then on.” No thing is lacking. Where word breaks off, there may be, a totality, a completion. If we place the emphasis on may be , we make it affirmative, make it positive. One allows it. No thing is where the word, that is the name, is lacking. If we remove then (if we can remove) the word, the name, than that is where no thing is, that is where no thing may blossom, enrich, belong, become. What is no thing? Heidegger writes that “thing is anything that in any way is.” And just after this he writes that the “world alone gives being to the thing.” But what happens if there is no word? Word, in this formulation can be seen as an enframing, a challenging of language. By naming, by drawing a perimeter around an object, we hold it, by its definition (that is a brick) to an ordered future. If we borrow from Heidegger’s essay “The Question Concerning Technology” (1993) the idea of this standing-reserve of an ordered future, we see that “everywhere everything is ordered to stand by, to be immediately on hand, indeed to stand there just so that it may be on call for a further ordering” (322). What happens if there is no naming of the thing? Silence perhaps. Stillness. We can name—and do name—that which we know. We equate knowledge with knowing the name of something. A brick is a brick, a hammer is a hammer, the universe is the universe. By naming a thing, we create, and draw its parameters, the parameters of the thing, not as thing thinging in the fourfold, but as blunt object apparent. In the four dimensions relatively available to us, we observe (and name) that the brick takes up possibly six by four by two inches and is, in the sense that it currently occupies this time slot. It fulfills its destiny, its being, its brickness, it bricks . But what happens when we remove the name for this brick. We no longer know what to call this no-thing (if indeed we can even arrive at the point of uncalled calling.) In fact the it (this brick) is no longer a thing in the sense that by not naming—by removing the name—it still occupies the same dimension but is indiscernible from the world. It simply is , un-reliant, un- needed by me. By removing the subject (me) from it (the brick) do I not then also remove the object—or at least the duality objectifying it? Why is this important? Why does this matter? I have not really removed anything. I have not changed any thing , per se . The brick still occupies the same space in geographic and temporal dimensions. I have literally not even touched the brick sitting on my desk. But what I have done is removed the name, removed the word (the bridge, according to Heidegger) and in this (again, if this is even possible) there is something vertiginously liberating, not only for me (and my way of thinking) but also for the brick itself. Like the poet who calls the thing forward, by refusing to name, by avoiding any thing that demands me to name it, I release the thing into the fourfold. I am no longer challenging the thing to be there for me ; I do not en frame it through language. Rather I, in an act of extreme responsibility, am refusing the challenge. By refusing the name (refusing to name) one allows, (or no one allows no thing) the brick to be all things , to manifest its manifold being, to incorporate all things into its thinging . It becomes, quite literally, every thing . Because, in its infinite manifestness, it incorporates everything; the mud that gave it its current being, the water that formed the mud, the sun, the stars, the universe and it also allows it to become mud again, to become landfill, to become again, water and sun and stars and universe in an endless, infinite cycle of coming to be some thing (else). Perhaps this is what Heidegger is suggesting when he talks about the stillness at the end of his essay, “Language” (2001): The dif-ference stills particularly in two ways: it stills the things in thinging and the world in worlding. Thus stilled, thing and world never escape from the dif-ference. Rather, they rescue it in the stilling, where the dif-ference is itself the stillness (206). It is in this stillness that I can imagine a gellasenheit (here I mean both “releasement in the Heideggarean sense, as well as Meister Eckhart’s use of the term meaning “letting the world go and giving oneself to God”) of thing and world, a releasing into the stillness and silence of no thing beyond where word breaks off. It is here where I may no longer be, and yet no thing is, but may be. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Writing and Authority in Early ChinaLothar von FalkenhausenWriting and Authority in Early China. By Mark Edward Lewis. Albany: State University of New York Press, 1999. Pp. vii + 544. Hardcover $92.50. Paper $31.95.Writing and Authority in Early China is a forceful and sparklingly original work in which Mark Edward Lewis explores the role of writing and texts in the transformation of political authority during the Warring States, Qin, (...) and Western Han periods. Following in the footsteps of the author's well-received first book1 and his magisterial contribution to the Cambridge History of Ancient China,2Writing and Authority establishes Lewis as the premier Western historian of the crucial centuries surrounding the unification of China under a centrally administered empire in 221 B.C. The book's complex, comprehensive, and coherent argument is informed by a variety of Western theoretical approaches, but it principally emanates from a close reading of the full record of transmitted texts and recently excavated manuscripts on [End Page 127] bamboo or wooden slips. The inclusion of the latter class of sources, beset with treacherous problems of decipherment, is still unusual in mainstream sinological scholarship and indicates the author's supreme confidence in his philological skills. With a firm hand, undaunted by the multifarious nature of his materials, Lewis guides the reader to some fundamental themes in recent sinology, opening manifold novel perspectives along the way. Even when dealing with well-known texts, he often proposes striking reinterpretations.In his Introduction, Lewis enumerates six main functions of writing in ancient China: enforcing state authority; creating text-based communities and "public spheres"; transcending the confines of space, time, and human mortality; fashioning figures of authority in the past; standardizing specialized technical terminology; and encrypting secret meanings. In Lewis' own words, "the culminating role of writing in the period, and the key to its importance in imperial China, was the creation of parallel realities within texts that claimed to depict the entire world" (p. 4). This ultimately led to the formation of the Confucian canon as a "textual double of the polity" that could survive cataclysmic changes of regimes.In chapter 1, "Writing the State," Lewis points out that before the Warring States period Chinese writing occurred exclusively in religious contexts. After circa 500 B.C., written documents gradually came to be used in the administration of government and trade. Both in their details of formulation and in the implication that anything committed to writing was thereby supernaturally validated, these new types of documents exhibit pervasive continuity with the earlier kinds of texts used in ritual communication with the ancestral spirits. Such continuity is also reflected in the rise of religious beliefs in a netherworld governed by a bureaucratic hierarchy and administrative processes parallel to those of the world of the living. According to Lewis, "the most important modification in the shift to an administrative polity [in the Warring States] was the extension of writing to new elements of the population. The attributes of the Zhou nobility... were transferred to the common people in the administrative documents of the new state. This widening range of inscription into the state order altered the social meaning of being recorded from a sign of power to one of subjection" (p. 13).Warring States rulers were cast in the role not of the authors of texts but of the authority behind them. Administrative and legal texts were concerned, ultimately, with the proper naming of phenomena, a process that had to adapt itself continually to the changes of the times. The authority of rulers came to encompass both human society and the natural world. "Whereas local and central administration were largely created through reworking and rewriting the ritual bases of the old Zhou order by means of a rationalizing cosmology, the re-invention of rulership drew on the contemporary religious realm and what is sometimes described as shamanism to provide images of cosmic power" (p. 42). Lewis illustrates the mechanics for applying these universal principles of rulership by a comprehensive analysis of the Zhou li (or Zhou guan), emphasizing the cosmological arrangement of the ideal government described therein and the dual administrative and religious dimensions of... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 39.2 (2001) 300-302 [Access article in PDF] Louden, Robert. Kant's Impure Ethics: From Rational Beings to Human Beings. New York: Oxford University Press, 2000. Pp. 272. Cloth, $45.00. Kant's Impure Ethics sounds like the title of a very short book. Kant, strenuous advocate of purging everything empirical from moral theory in order to reveal the pure moral law a priori, is assumed by (...) many to reject impure ethics. Louden sets out to correct that image of Kant. Not only does Kant offer some impure, by which Louden means [End Page 300] empirical, ethics, Kant requires it in order for his moral system to work. Louden argues that impure ethics is an integral part of Kant's ethical project. Since as rational beings human beings are obligated to create a realm of ends, they need to be shown the specific manner in which they can create this moral realm in the specific world they inhabit. This impure ethics is never more than an application of the pure ethics and is not itself the source of any moral norms; Kant does not study human nature in order to establish or justify moral principles. Nor is impure ethics a sharpening of general duties to interpret them for our particular species or even groups within the species; Kant is not arguing that women or the French have duties peculiar to them. Rather impure ethics concerns the manner in which human beings can make morality efficacious in human life. Empirical knowledge of human beings can help determine the proper paths for humans to take in creating the realm of ends. Louden insists, as do some other recent commentators, that it is misleading to view the categorical imperative in isolation. Instead, Kant intended the categorical imperative to be understood in light of the development of a virtuous character. In its broadest sense the impure ethics concerns how all humans can develop that virtuous character.Kant himself divides philosophical ethics into the pure metaphysics of morals and the empirical, or impure, anthropology (in the "Preface" to the Groundwork among other places), but readers would look in vain for a single work by Kant which would fit under the latter heading. The Anthropology from a Pragmatic Point of View, the most plausible candidate for such a text, contains much material only peripherally related to ethics and very little discussing specific moral applications. Given this lack of a published focus on the empirical side of Kant's ethics, Louden searches the Kantian corpus of books, essays, students' lecture notes, and the Reflexionen to collect relevant material. He finds five "fields of impurity": education, anthropology, art, religion, and history. Louden does an excellent service to Kant scholarship by drawing together these disparate sources and topics to highlight little-known areas of interest to Kant such as education reform and the role of an established church in promoting virtue. He defends Kant's theory against some charges of sexism and racism by noting that, although Kant was sexist and racist, he did always include all members of the species in his claims that moral progress would ultimately encompass everyone. The most worthwhile aspect of these particular discussions is the way Louden draws them together under a common theme pervading Kant's empirical ethics: the central role of progress. To work toward a realm of ends, human beings need to institute certain institutions in order to cultivate, civilize, and moralize themselves. These institutions will help to train individuals in the arts and sciences as a propaedeutic to ethical practices. The study of history shows that humans are destined to progress toward perfection, but actual progress depends upon concrete action. One is puzzled that here Louden includes Kant's discussion of a league of nations but not his direct political philosophy enjoining individuals to enter and support a state, the most important institution encountered in all of Kant's practical philosophy. Nonetheless Louden succeeds in revealing a unity in Kant's scattered hints on various topics.In the end, Louden concludes... (shrink)

In this essay we explain some of the problems of the Venezuelan criminal justice sub-system and, in general, the criminal law enforcement. That is to say, that which is expressed in the persecutory actions of the investigating authorities and the criminal courts, after having established in Venezuela a Carl Schmitt concept of Dual State with the purpose of eliminating “bourgeois” democracy and implanting the model of so-called Socialism of the XXI Century. In this sense, it is a question of (...) identifying the flagrant persecution and violation of human rights of those who do not have the capacity to resist the attacks emanating from the State in the abusive use of coercion and legal violence. With the Dual State want to impose an utopia by force, which leads to dystopia, due to the division and polarization of society with the dichotomous politics of friend-enemy, In a process of etiquette and "demonization" of the enemy. (shrink)

Gadamer’s hermeneutic philosophy avoids the problem of literary objectiveness altogether. His approach witnesses the general fact that an indifference towards literary objectiveness in particular, leads to a peculiar neglect of par excellence literariness as such. It seems obvious, however, that the constitutive aspects of the crisis of literary objectiveness cannot be shown to contain the underlying intention of bringing about this situation. At this point, one can identify what could probably be the most important element in a (...) definition of literary objectiveness. In contrast to ‘natural’ objectiveness and objectiveness based on various societal conventions, the legitimacy of a literary work is solely guaranteed by its elements being organized in accordance with the rules of literary objectiveness. Thus when the crisis of literary objectiveness intensifies, literariness will also find itself in a crisis. This crisis detaches new, quasi-literary formations from various definitions of literariness. When literary objectiveness ceases, however, to be understood as a system constituted by various objective formations aiming to correspond in one way or another to the ‘world’, scientific analysis of literary objectiveness will be rendered impossible. The crisis of literary objectiveness thus brings about the crisis of the theory of literature and the philosophy of art. Gadamer explicitly argues that the scientific approach proves to be inadequate in the analysis of artistic experience. This attitude results in the categorical rejection of a scientific orientation, but he seems to overemphasize an otherwise correct thesis on the non-reflexive character of artistic experience. It is the anti-mimetic and Platonic character of Gadamer’s aesthetic hermeneutics that determines the status of literary objectiveness in his system of thought. What is of crucial importance, however, is to point out that this aesthetics entails a fundamental reduction of the significance of literary objectiveness. As soon as the essence of aesthetic object-constitution is taken to be re-cognition, the absolutely natural interest in the original object represented by a work of art.Undoubtedly, Gadamer’s conception answers a number of questions that tend to be ignored by other theories. It is just as obvious, however, that Gadamer completes here the aesthetic devaluation of the objective domain. It is not the characteristics of the ‘original’ that constitute the image, but in effect the image turns the original into an original. Paraphrasing this claim one arrives at a near paradox: not objectiveness makes a work of art possible, but a work of art lends objects their objectiveness. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:"But I Don’t Feel It":Values and Emotions in the Assessment of Competence in Patients With Anorexia NervosaJochen Vollmann (bio)Keywordscompetence assessment, mental capacity, informed consent, psychiatry, anorexia nervosaThe respect of the self-determination of patients obliges physicians to obtain the patient's consent before providing medical treatment. One important condition for a valid informed consent is the patient's competence to make autonomous health care decisions. Therefore, a proper assessment of competence (...) to make health care decisions is crucial particularly in patients with mental disorders (Vollmann 2000; Helmchen and Vollmann 2001). In recent years, several empirical studies on the assessment of competence in patients suffering from different mental disorders have been performed using the MacArthur Competence Assessment Tool-Treatment (MacCAT-T; Grisso and Appelbaum1998). This assessment tool is based on legal standards of competence such as understanding, reasoning, appreciation, and expressing a choice. Since its first publication, the MacCAT-T has been widely accepted as a "gold standard" of competence assessment in the psychiatric literature. In recent years the MacCAT-T has been applied to patients suffering from depression, schizophrenia, dementia, angina pectoris, and normal controls (for overview, see Welie [2001] and Bauer and Vollmann [2002]).Tan and her colleagues (2006) use the MacCAT-T the first time to assess competence to make treatment decisions in patients with anorexia nervosa. Coming from clinical practice, the authors have noticed that the MacCAT-T might not work in this group of patients. Therefore, they use semi-structured interviews in addition to the MacCAT-T to identify aspects of thinking that might be relevant to the issue of competence to refuse treatment. They use grounded theory techniques for a qualitative analysis of the data as well as five brief, self-administered questionnaires to ascertain levels of psychopathology.The results of the study show that anorexia nervosa can have complex and variable effects on concentration, beliefs, and thought processing without affecting the ability to perform well on the MacCAT-T. At the same time, participants also report a change in their value system as well as in their personal identity. The authors argue that the results of their studies suggest that the competence to refuse treatment might be compromised in [End Page 289] people with anorexia nervosa in ways that are not captured by the MacCAT-T. This is an interesting finding in patients with anorexia nervosa, because in all other studies with patients suffering from mental disorders such as dementia, depression, and schizophrenia, the MacCAT-T identified more patients as limited in their competence to make health care decisions in comparison with other methods of competence assessment such as clinical judgment (Vollmann et al. 2003). The authors argue on the basis on their qualitative, semistructured interviews that anorexia nervosa–specific difficulties with a thought process and the change of values are missed by the MacCAT-T.Furthermore, Tan and her associated could not find a relationship between the participants' scores on the psychopathological scales, the MacCAT-T scores, and their difficulties expressed during the qualitative interviews, although the small size of the study precludes statistical analysis. In an earlier study, clinical dementia scales but not neuropsychological testing correlated with formal (MacCAT-T) and clinical assessment of competence. Therefore, psychopathological factors might play a different role in different subgroups of patients suffering from different mental problems. However, the idea of an objective neuropsychological model of competence assessment, again, finds no support in the presented empirical data.The qualitative data from patients with anorexia nervosa underline the problem of the cognitive bias of the MacCAT-T assessment and the illusion of value-free categories. It has been argued that the cognitive focus for the MacCAT-T is in itself a normative convention and that the MacCAT-T is missing the complexity of the process to make health care decisions in real life. Therefore, values and emotions should be considered in addition to cognitive functions in assessing competence to make health care decisions (Breden and Vollmann 2004; see also "Mental capacity" 2004). Although many authors agree that the cognitive approach of capacity assessment is important but not sufficient for the assessment of competence to make health care decisions, it remains an... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Narcissism A Focal Point for Examining the Interrelatedness of Psychology and PhilosophyLydia Amir, PhD (bio)In a groundbreaking article, Aleksandar Fatic challenges the view that mental health is to be dissociated from morality or ethics. His argument targets cluster B personality disorders, such as Borderline and Narcissistic Personality Disorders, but focuses mainly on narcissistic disorders, whether diagnosed or not. Although these persons are not exempt of moral and legal (...) responsibility, they are diagnosed by and relegated to the mental health system, which is often ineffective in treating them. Fatic suggests that addressing their faulty morality is the best policy. In my commentary of his article, I further probe the viability and desirability of doing so. I point to narcissism as a focal point for examining the necessary impact of psychology and philosophy insofar as psychologists may be considered experts in emotions and philosophers in normative ethics. I question the interest in any ethics that does not also supply the means of its implementation and suggest that narcissists may have a morality of their own, ethical egoism.As psychiatrist Bennett Simon notes, Socrates did not inquire into the mental health field; his presence is missed as the questions, “what is mental illness?” and “what are psychiatry and psychiatrists?” are not addressed. It follows that it is up to us, as Simon attempts to do in the first chapter of Mind and Madness in Ancient Greece: The Classical Roots of Modern Psychiatry (1978), to define the psychiatrist’s proper area of professional competence (p. 28). That which makes matters even more confusing, he notes, is that psychiatrists are only one group of professionals who deal with the “mentally ill” and that they are “far from unanimous” about which problems “pertain to their particular sphere” (Simon, 1978, p. 29). He thus lists a variety of problems which “a glance at both popular and professional literature…reveals that at one time or another, psychiatrists have claimed [End Page 169] (sometimes by public demand) for their proper sphere” (Simon, 1978, p. 29). Among them is the issue that Fatic’s break grounding article tackles: “Psychiatrists at times consider it their proper task to deal with people who are excessively selfish and self-centered (narcissistic personality disorder)” (Simon, 1978, p. 29).Thus, Simon sees as a matter of controversy whether narcissism is a psychiatric issue, and defines the disorder in moral terms (“selfish,” “self-centered”). Fatic broadens the argument: he questions the validity of the psychological approach not only to narcissism as a personality disorder, but also to narcissistic traits, and the effectivity of this approach given that this is an area in which therapists usually do not have much success even if the patients look for help, which is rare. Fatic suggests that these personalities, either those with narcissistic traits or those with full-fledged narcissistic personality disorder, should be better understood (and maybe also addressed, although this point is not explicitly made) when viewed through moral lenses. In doing so, Fatic not only questions the validity of one form of personality disorder––still a controversial category––but re-kindles the view that correlates aspects of mental health with virtue, a view that was valid up until the nineteenth century and that made of philosophers (and priests) doctors of the soul.1That which made of philosophers’ teachings an important part of one’s life before the advent of scientific psychology has been often associated with this view, that the virtuous are also the healthy. Without going as far as to suggest that philosophers should teach virtue to narcissists, which could be a further argument in favor of the new field of philosophical practice and a broadening of its legitimate concerns, Fatic notes that moral categories are better suited to approach those who are plagued by narcissism.One way to explain the historical role that psychology played in relation to the traditional one upheld by morality is that psychology stepped in to explain the origins of failures in morality. If the narcissist is to be judged according to moral categories (a judgment that he necessarily fails in so far as right emotions as relevant to morality), what might be the consequences?Ascribing... (shrink)