The 'business judgement rule ' requires corporate directors only to act with honesty and reasonable care in the interest of shareholders. A stronger ' fiduciary ' duty is required where one party requires protection from another. This paper argues that where corporations take risks with the environment, directors are fiduciaries. Stakeholders are in that case the general public, future generations and other species, which have not voluntarily accepted risk and cannot limit liability. Recognition of fiduciary duty in such cases is (...) consistent with recent trends in the law of equity. It would require all economic activities to move from open to closed systems. (shrink)

This article seeks to address the manner in which we should conceptualise the duties of directors in making decisions where fundamental rights are at stake. We first attempt to show that, in making decisions that implicate fundamental rights, directors are required to consider all individuals affected as having an intrinsic dignity. The interests of non-shareholders must thus be addressed in a non-instrumental manner which, we argue, is only compatible with the adoption of a ‘stakeholder’ conception of directors’ duties. (...) Adopting such an approach, however, raises the difficulty of how directors are to balance multiple intrinsically valuable interests. We argue that the doctrine of proportionality—which has been developed in fundamental rights law as a structured enquiry concerning the circumstances in which it is justifiable to limit rights—can be adapted to the domain of corporate decision-making. The proportionality enquiry provides a transparent, structured process of reasoning that can aid corporate decision-making and open up the possibility for reviewing decisions of directors that affect the fundamental rights of individuals. (shrink)

While directors’ task boundaries are usually ambiguous, some of their activities or behaviors clearly constitute their formal duties, whereas others are usually perceived as organizational citizenship behavior. Applying identity theory, we present a theoretical model that demonstrates one of the key drivers for directors to engage in OCB with a focus on their role identity. We argue that an individual director’s role identity is one of the key factors that motivate directors to engage in OCB. Furthermore, we propose (...) that two board-level contingencies, board capital, and informal board hierarchy order, can moderate the effect of directors’ role-identity salience on their OCB. That is, low levels of board capital and directors’ higher positions in a board’s informal hierarchy enhance directors’ motivation to engage in OCB. (shrink)

The claim that managers have a fiduciary duty to shareholders to run the corporation in their interests is generally supported by two arguments: that shareholders are owners of a corporation and that they have a contract or agency relation with management. The latter argument is used by Kenneth E. Goodpaster, who rejects a multi-fiduciary, stakeholder approach on the grounds that the shareholder-management relation is “ethically different” because of its fiduciary character. Both of these arguments provide an inadequate basis for the (...) fiduciary duties of officers and directors of corporations. The basis is to be found, rather, in considerations of public policy, a point that was established in the Dodd-Berle exchange of the 1930s. This conclusion also shows the inadequacy of Goodpaster’s solution to the so-called stakeholder paradox, and an alternative solution to the paradox is presented. (shrink)

While corporate fiduciary duties in many jurisdictions are generally understood to be owed to shareholders, recent Canadian Supreme Court cases have held that directors owe their duties to the corporation, period, not to shareholders or any other stakeholders. This development has introduced significant indeterminacy to the law since it is not clear what such a conception of the duty requires. The Supreme Court did, however, make one clear statement: it held that directors owe a fiduciary duty to ensure (...) that their corporations obey statutory law. Such a duty encourages compliance with law, but may over-encourage compliance: individual directors do not necessarily gain personally from legal breaches, but may lose personally from them because of fiduciary liability, so they will have excessively strong incentives to avoid such breaches. The Article connects the fiduciary duty to obey law with recent developments in financial regulation that have increased the obligations on directors of financial institutions to oversee risk. By requiring directors to be engaged with risk at a governance level, regulators have enhanced the probability that directors will face liability under their fiduciary duties if their institutions do not comply with financial regulations. As the Article explains, the policy tradeoff between enhanced compliance benefits and over-compliance costs of fiduciary liability is different in the context of financial regulation from that in other settings. For example, significant corporate penalties, as opposed to penalties borne by individual directors, may be inconsistent with the prudential goals of regulation, perhaps because of toobig- to-fail concerns. The fiduciary duty to cause the corporation to obey financial regulation, and a stricter application of this duty than the highly deferential standard that exists in Delaware law, has advantages that do not exist in other legal and regulatory contexts. (shrink)

The well-being of generations yet to come must necessarily be an important concern for the present. As an extension of Rawls’ ‘just savings’ principle, one of the arguments for sustainable development is that of intergenerational equity—the idea that future generations must have the same access to natural resources as the present generation. In this article, I attempt to reconcile the divergent positions of the shareholder and stakeholder primacy debate by proposing that directors—acting for the corporation—should preserve intergenerational equity. Three arguments (...) are presented in course of this proposition. Firstly, corporations are perpetual in nature and their continuing existence is predicated upon the ability of individual owners to transfer their ownership. Second, directors have a higher fiduciary duty to the corporation and future shareholders, over that of present shareholders. Finally, in order to safeguard the interests of future shareholders, corporations must necessarily strive to preserve the natural and social environments upon which the future of the corporation and the wealth of future shareholders depend. (shrink)

Casting directors are tasked with selecting a suitable actor for a given role. “Suitable” in this context typically means possessing a combination of physical attributes and acting skills. But are there any moral constraints on the choice? I argue that there are. This is an uncommon supposition, and few even entertain the question. In this essay, I discuss the reasons for this omission and attempt to make up for it.

In Australia, since 2004, there has been a move to expand the range of models for legal practice. Lawyers may now incorporate a legal practice, which may have non-legal directors and shareholders. They may also enter into a partnership with a range of non-legal professional partners. This change is happening at the same time that legal practice culture is moving from a professional service model to a business-oriented model. Increased pressures have been thrown into the mix by the global financial (...) crisis and the downturn in the legal market. Inevitably, these changes have created new conflict problems. When a lawyer is responsible to both clients and shareholders, how can that conflict be resolved? What are the roles of non-legal directors or partners? What if they have ethical or legal duties which conflict with a lawyer?s duty to a client? When a corporate legal business is listed on the stock exchange, what pressure may that bring to bear on the business model of the legal practice? How can all of these issues be resolved in grim financial times? The author will examine all of these issues in light of Australian and international experiences with new lawyering patterns and the global financial crisis. (shrink)

Abstract:Stakeholder theorists have generally misunderstood the nature and ramifications of the fiduciary responsibilities that corporate directors owe their stockholders. This fiduciary duty requires the exercise of care, loyalty, and honesty with regard to the financial interests of stockholders. Such obligations do not conflict with the normative goals of stakeholder theory, nor, after a century of case law that includesDodge Bros. v. Ford,do fiduciary responsibilities owed shareholders prevent managerial policies that are generous or sensitive to other corporate stakeholders. The common law (...) recognizes a multitude of legal relationships between various corporate constituents, and fiduciary duties are only a subset of the obligations that arise from these relationships. This article argues that statute and case law can bring comparable legal protection to constituents other than stockholders, and suggests ways that these protections might be further strengthened. Implications for management education are also discussed. (shrink)

This chapter examines the rapidly developing global institutional frameworks for corporate sustainability occurring in response to imminent climate change. Corporations need to engage fully and responsibly in the urgent tasks of adaptation and amelioration required to remedy the damage caused by their earlier externalization of the costs of emissions and other pollution and reach for the objective of eliminating future carbon emissions. Guiding and facilitating this immense paradigm shift in corporate sustainability is a vast framework of international and civil institutions (...) focusing on different elements of the transformation process. The resulting widening scope of corporate directors’ duties in this more dangerous context is considered. Finally, the remarkable burgeoning of international institutions and agencies advising and monitoring corporations on climate change, carbon disclosure, responsible investment, and integrated reporting are examined. Collectively, this huge and multifaceted effort by both business and civil society, by all the agencies and initiatives discussed, represents a great advance in the campaign for corporate environmental, social, and governance responsibility. The ideals manifested are often exemplary, and whatever weaknesses and limitations revealed in the complex challenges these initiatives face, in aggregate, the initiatives do represent a significant institutional development in the cause of corporate responsibility. (shrink)

In the wake of the most recent financial crisis, corporations have been criticized as being self-interested and unmindful of their relationship to society. Indeed, the blame is sometimes placed on the corporate legal form, which can exacerbate the tension between duties to shareholders and interests of stakeholders. In comparison, the Benefit Corporation (BC) is a new legal business entity that is obligated to pursue public benefit in addition to the responsibility to return profits to shareholders. It is legally a (...) for-profit, socially obligated, corporate form of business, with all the traditional corporate characteristics combined with societal responsibilities. Considering the history and perception of shareholder primacy in United States law, it is argued that this new business structure is an ethical step toward empowering socially committed commercial entities. The contribution of this research is to provide a fundamental base of knowledge about the new legal form of business, the BC, upon which further study may rely. First, the legal history of the corporation is briefly reviewed in order to provide context to the relationship of the corporate form to society, including exploration of the premise that shareholder wealth maximization is its best and only purpose. Second, the BC is described in detail, and state statutes are compared. Third, the BC is placed within the context of corporate social responsibility. Finally, opportunities for future research are discussed. (shrink)

This paper examines whether independent directors who have social ties to management (inside directors) can effectively perform their fiduciary duty to monitor management on behalf of shareholders. Ex ante, it is not clear whether social ties will enhance or obstruct the quality of board performance. Theory suggests that directors who are socially tied to management are ineffective and would make decisions favoring management. However, social ties can increase trust and information sharing between management and independent directors, improving directors' ability and (...) effectiveness in governing the company (Westphal, J. D.: 1999, The Academy of Management Journal 42(1), 7-24). To examine these contradicting predictions I use social network analysis and construct proxies for social ties between management and independent board members. Using these proxies, I first demonstrate that social ties are associated with higher managerial compensation. Further analyses reveal that these results are driven by social ties that include members of the compensation committee. Conversely, I demonstrate that financial reporting quality is improved when social ties exist. Specifically, I find that the likelihood of material weaknesses in internal controls and the likelihood of financial restatements are lower in companies with social ties. I further observe that this improved quality of financial reporting holds only when social ties include members of the audit committee. I conclude that ethically, socially tied independent directors should disqualify themselves from serving on compensation committees where social independence is essential. However, in tasks where collaboration with management is essential, directors with social links to each other can be of added value to shareholders. (shrink)

The paper explores the role of good faith within the traditional theory of fiduciary duty in the lead-up of the Delaware Supreme Court’s Stone ex-rel. AmSouth Bancorporation v. Ritter decision. The enforcement of the director’s liability is discussed concerning the doctrinal controversies concerning inter alia, the reach of the exculpation statute passed after the Smith v Van Gorkon holding. The paper also analyzes the conditions that a Plaintiff must survive a motion to dismiss a claim of director liability; (...) the appropriate standard of review for alleged duty of liability breaches, and the role of good faith within the overall triad of traditional fiduciary responsibilities. Over a decade after this landmark case was decided, there is value in reconsidering whether the Stone judgment lived up to the promise of the Caremark holding and its reformulation of good faith as a judicial device for evaluating director liability in contexts that not do easily fit with the traditional doctrines of duty of care and loyalty. (shrink)

Traditionally, the fiduciary duty of loyalty is implicated where corporate directors have conflicts of interest. In a major new decision, Stone v. Ritter, the Delaware Supreme Court determined that directors may also be disloyal when they act in bad faith. As a consequence, directors may be disloyal even when they have no conflicts of interest, and even when they intend to benefit their corporation. This Article reconciles this expanded fiduciary obligation with existing concepts of loyalty. The new loyalty is not (...) incoherent. Courts have adopted a recognizable understanding of loyal behavior - being “true” - that exists in other social spheres. Under this conception, loyal directors must not only act in the best interests of their corporation and its shareholders, they must also be honest with shareholders and comply with positive law. This Article then offers insights into the function of these expanded fiduciary duties. Although the new loyalty duties pose risks, there are good reasons to think they will provide net benefits. Following the recent Lyondell decision, it appears that the Stone case and its progeny will not result in significant revisions to the business judgment rule. However, the recent change in a director’s loyalty obligation may substantially lower information costs, giving better guidance to directors and simplifying coordination. In addition, the new conception of loyalty can also serve an important expressive function, enabling a more efficient level of trust among corporate actors, investors, and those who transact with the firm. (shrink)

Larry Barnes, Executive Director of the Southwest Missouri Baptist Association (SMBA), received a telephone call that no executive wants to receive. The pastor at Hilltop Baptist Church reported suspicions of embezzlement by the church bookkeeper. Whatever decision Barnes made in advising the pastor would impact Hilltop, the church members, the SMBA, and a number of stakeholders, including himself. His primary duty as Executive Director was to provide guidance and advice to pastors of SMBA churches, help them expand, and (...) assist in establishing new churches. However, did his professional responsibilities encompass this situation? If not, did he have an ethical obligation to help? What if his involvement caused legal and financial problems for the SMBA? What was the likelihood the bookkeeper and her family might sue the SMBA and Barnes? Many Hilltop Church members were personal friends of Barnes. He worried about jeopardizing hisfriendship with them, particularly if the accusations were incorrect. An equally important concern was whether Hilltop Church would continue to exist. Financial problems had plagued the church in recent years and the relationship between the pastor and members was already contentious. An embezzlement scandal could cause the 150 year old church to close its doors. Barnes had to decide whether to get involved and, if so, what to recommend as a course of action to Hilltop’s pastor. (shrink)

Court (Shar’iyya) recordings are at the forefront of primary written sources, which contain important documents related to Turkish history, sociology and culture. The court records shed light on city history of the period concerned with rich information and documents. These records are important books in which the documents related to the judicial, administrative, economic, architectural and social structure of a city as well as diplomatic correspondence between the center and the province were recorded. The purpose of this study is to (...) prepare a detailed catalog in addition to the catalog which was made in 1963 and contained only 119 books specifying only the dates covered by the book number. As we have seen in this study, all of the 119 notebooks in the records do not consist of the court registers in the known form. They are the books that include the records of court proceedings, which are different from those of the court, especially after the Tanzimat e.g. Qassam, Enkiha, Zabt al-Da’wa, Permission and so on. The microfilms of the books were presented to the service of researchers in Sivas Ziya Bey Library of Ancient Works. The originals of the books are in the Prime Ministry State Archives.SummaryShar’iyyaregisters are one of the primary written sources about Turkish history, sociology, and culture relevant to our life. Registry records shed light on the history of city in the relevant period by containing rich information and documents. They are important notebooks, which are related to the judicial, administrative, economic, architectural and social structure of a city, and also in the form of diplomatic correspondence between the central and provincial posts.After the Anatolian Selçuk (Saljūq) State, which collapsed under the pressure and domination of the Iranian Mongols in the last half of the XIIIth century, a state was established in the Selçuk-Byzantine border in the north-west of Anatolia in XIVth century, which did not even lasted a hundred years and had a reign in three continents. In the Bursa inscription, which dated to 1337/8, the second Ottoman Sultan (Sulṭān) Orhan was titled as the mujahedeen (warrior), the sultan of the veterans, son of veteran of veteran. The fact that Orhan carring these titles shows that since the earliest times, the Ottoman sultans considered themselves as the leader of the religious war against the infidels. Since the first years of the establishment of the Ottoman State, the Sharīʿa ruled on the establishment of administration and for this reason, they established institution of the Shaykh al-Islām(the chief juristconsult). Firstly, by appointing a subaşı(subashi, an Ottoman gubernatorial title) to the conquered places, then it gradually began to establish judicial courts from the smallest areas.In the XVth century, the number of qāḍī increased in parallel with the increase in their jurisdiction as a result of the expansion of the Ottoman Empire, and the proliferation of the administrative units called sancak, (sanjaq, division of a province) and so the failure of oneqāḍīto satisfy court affairs of an entire sanjaq. New districts arose from some of the former large districts. As a result of this in the XVIth century, the administrative system of the sanjaq's Tımar system and at the same time a geographical integrity of the districts/provinces to see the legal work of a qāḍī to pass by the districts and sub-district as a legal caused to occur two legal definitions that is legal and military administrative. Records of qāḍīs, which is called as sicilemerged because it was their duty to record their works and orders issued to them and the answers and the provisions given to them.The courts of Shar’iyyaserved as primary general courts (maḥākim-i ʿumūmiye) until the declaration of the Tanẓīmāt in the Ottoman Empire and heard the suit at legal, criminal, administrative, military, financial and all kinds of cases. Tanẓīmāt period, or rather Maḥmūd II and the period following him, the judicial organs in terms of reorganization was a circuit that was on the scene.In this way, which was occurred in the judicial system, records which were kept in the Meşihat (Mashīkhat) began to diversify depending on this change. Since in the registry books, which we call classical, all correspondence between the central and provincial offices were recorded. Records such as pleas, letters of patent, verdicts, order of the high, bonds etc. could be found in these documents.These records, which are one of the most important sources of an Ottoman city history, were kept in the museums and libraries of the cities until recently. A few years ago, these records, with a correct decision, were collected in the Prime Ministry Ottoman Archives and it was preserved and presented to the use of researchers by transferring them into digital. The Sivas Court building as it is known in history is now in the Pāshābeg quarter and known as the Court Bazaar in these days. There is no clear information about when the court was built in Sivas. In time, changes have occurred in cities and we are losing the historical side of them. In addition, the fact that people acted in an unconscious manner that would harm the historical texture was the biggest factor in disappearance of material remains. With the remaining physical materials available, we can only access crumb information and we can only make predictions. In this evaluation, the biggest materials are the documents and notebooks, which are the memory of city dates. However, it is understood from the records that there is a foundation belonging to this court and some of the court's repair and maintenance works were carried out by this foundation. As it is understood from a document dated 14 August 1798, one of the repairs was sponsored by Ḥüseyin Efendī. In an inscription dated 1906, which was found during the renovation of the basement of an apartment building owned by the General Directorate of Foundations in May 2018, the location of the building was previously known as the Sivas Muftī 's Office.In this study, a total of 240 registry books belonging to Sivas were prepared as in a catalog system. In this study, we have seen that a great deal of records have been lost, burnt or destroyed in a certain way through history. The burn marks in the records of 79 is a striking example in this regard. The book number 139, which is not shown in Osman Ersoy's work, is a record book in classical form. An important case in this study is that the register number 206, which is registered to Sivas, belongs to the province of Burdur and it is also a registry book in classical form. This book covers the dates of 18 M. 1248/23 N.1250 - 1832-1835. (shrink)

How does a board of directors decide what is right? The contest over this question is frequently framed as a debate between shareholder value and stakeholder rights, between a utilitarian view of the ethics of corporate governance and a deontological one. This paper uses a case study with special circumstances that allows us to examine in an unusually clear way the conflict between shareholder value and other bases on which a board can act. In the autumn of 2010, the board (...) of Liverpool Football Club sold the company to another investing group against the explicit wishes of the owners. The peculiar circumstances of this case provide insight into the conflict between ethical approaches to board decisions, allowing us to see certain issues more clearly than we can in listed corporations with many shareholders. What the analysis suggests is that the board saw more than one type of utility on which to base its ethical decision, and that one version resonated with perceived duties to stakeholders. This alignment of outcomes of strategic value with duties contrasted with the utility of shareholder value. While there are reasons to be cautious in generalizing, the case further suggests reasons why boards may reject shareholder value, in opposition to mainstream notions of corporate governance, without rejecting utility as a base of their decisions. Further, the partial alignment of duty and utility facilitates a pragmatic decision rather than one based on a priori claims. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Black Horseman Lane: A ReflectionJanet PniewskiI felt a sinking feeling in the pit of my stomach upon getting the news this particular patient, let’s call him Stan, had burned through yet another nurse case manager and it would now be my responsibility to take charge of his care. As the medical director read aloud his patient profile, “Sixty–eight year old frail appearing Caucasian male with a terminal diagnosis (...) of...” I was already formulating excuses in my head as to why I would not be able to accept this charge. However, when she finished, I dutifully replied, “Ok, I’ll give it my best shot.” At the time, I was well aware that this assignment would test my resolve and commitment to providing the same high quality compassionate [End Page 117] care to every patient, but what I did not realize was how much I would grow personally and professionally in the process.Stan was well known in the organization for being “non–compliant” and “difficult.” Through his past actions he earned the label of racist and misogynist, having zero tolerance for people whom he perceived as different from him in any way. He was profoundly disrespectful toward women and was known to abuse his animals. Having been raised in a liberal household in New Jersey, surrounded by civil rights activists, animal activists and feminists, I was genetically programmed to abhor social injustice and raised to serve as an advocate for the disenfranchised and vulnerable. Since childhood, I’ve experienced visceral reactions to acts of injustice or cruelty of any kind. The very idea of someone like Stan was appalling.I found myself assigned to Stan’s case by default. He fired his first nurse because she was African American and painted her as dishonest and incompetent. He fired his second nurse because he was male and therefore must be gay. He fired his social worker because she was overweight, which certainly meant she was lazy. He fired the chaplain because he was not Catholic and thus unworthy of having any meaningful spiritual discourse. He would not accept the recommendations of our medical director because she was a woman. His family had given up on him a long time ago. His wife left him shortly after his youngest child had gone off to college, and all four of his children were estranged. Stan’s disease was progressing, despite therapy, and he was becoming too weak to care for himself at home without hospice support. His oncologist pleaded with us to give it one more try, even though we were running out of staff. These people that Stan had dismissed so unpleasantly were my colleagues and friends. The first nurse Stan dismissed served as my ever patient and knowledgeable preceptor when I was new to hospice and fumbling my way through unfamiliar protocols. The second nurse Stan rejected was a dedicated colleague and devoted friend, supporting me through several life challenges. I had witnessed our chaplain, judged as unworthy by Stan, tirelessly provide comfort to patients, family members and staff members in the darkest of hours. I knew them all as well–meaning, competent and compassionate team members and Stan’s disrespect for them offended me.Apparently, Stan was offended as well. His oncologist revealed to us that Stan was angered by his referral to hospice. He felt abandoned. I was Stan’s last hope; however, he didn’t see it that way. Neither Stan nor I was enthusiastic about our impending partnership.Stan was an engineer by trade, and apparently very successful in business. He lived on a sprawling plantation located at the end of his private road, which he named Black Horseman Lane. As I turned down the drive, aware of his reputation as a bigot, I contemplated how Stan might have arrived at this name. With the assistance of my smartphone, I was able to ascertain that there was, indeed, a Black Horseman of the Apocalypse, which was associated with famine. Delving further, into Wikipedia, my interpretation was that the Black Horseman’s famine decimated the grain crop, sparing the olive groves and grapevines, driving up the price of grain but leaving oil and wine... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The National Commission on AIDSDonald S. Goldman (bio) and Jeff Stryker (bio)A decade after the first cases were recognized in the United States, AIDS continues to vex policymakers and fascinate the public. It has been said that AIDS acts as a prism, refracting a spectrum of controversial topics. For bioethicists, these topics include: equity in the allocation of resources for treatment and research; forgoing life-sustaining care and proxy decision (...) making; informed consent in the context of HIV testing and screening; the ethical duties of health care workers to provide care for persons with HIV disease; and competing obligations of health care professionals to patients and to third parties who may be put at risk.The Role of CommissionsIf AIDS is the quintessential case study for bioethicists, it is a potential quagmire for politicians. The association of HIV disease with drug use and sexual behavior makes it a topic that all but the most courageous (or the most homophobic) politicians shy away from. A frequent political response is to form a commission.Alexander Capron, who was executive director of the President's Commission for the Study of Ethical Problems in Medicine, has described some roles commissions play: a watchdog, overseeing the work of particular government agencies; a crucible, providing a means for "publicly hammering out conclusions on controversial issues when consensus, both in the public and in the relevant disciplines, is not yet apparent"; and "a lightning rod for public concern—or viewed less charitably, dumping ground for an issue that is too difficult for the ordinary political process to handle" (Capron 1983, p. 9).Nearly every state has created a gubernatorial-level task force or commission on AIDS. The National Commission on AIDS was established under the Health Omnibus Program Extension (HOPE) Act of 1988, which was signed by President Reagan on November 4, 1988. The official charter of the commission was approved August 2, 1989 and its original two-year term was extended for a third year. The mission statement crafted by the commission to reflect its Congressional mandate reads: [End Page 339]The National Commission on Acquired Immune Deficiency Syndrome is an independent body of 15 members created to advise the President and Congress. The Commission seeks to build a broad public understanding on the magnitude, scope and urgency of the HIV/AIDS epidemic; provide and inspire leadership at all levels of both the public and private sectors; empower individuals and communities; and advocate for effective, cooperative and non-discriminatory resources required for prevention, comprehensive care, and the research necessary to halt the epidemic.As the mission statement implies, the National Commission on AIDS has viewed itself from the outset not only as a crucible for policy analysis, but also as a forum for those affected by HIV disease. In site visits and hearings the commissioners have met with hundreds of people living with HIV disease, and with caregivers on the front lines. This odyssey has taken the commission on visits to homeless shelters in New York City; to "shooting galleries" where intravenous drug users congregate in Seattle; to Native American communities in four states; to private homes in rural Georgia; and to hospitals, HIV antibody testing centers, drug treatment clinics, and hemophilia treatment centers throughout the nation. It quickly became clear during the commission's travels that HIV disease cannot be understood outside the context of the racism, homophobia, poverty and unemployment that provide the medium that fosters its spread. It also became apparent that issues of HIV prevention, care and treatment, and clinical research are inextricably intertwined and must be dealt with as such.Early InitiativesUnder the leadership of Chairperson June Osborn and Vice-chairperson David Rogers, the commission decided that the problems it saw in its first few meetings were too urgent to await a full-length annual report. Hence the commission entered the fray with a series of brief interim reports on particular aspects of AIDS. These reports enabled the commission to draw attention to urgent problems of limitations in access to health care and to underscore the plight of people with HIV disease who might otherwise garner little media attention, such as prisoners and drug users (National Commission... (shrink)

Cyber risk has become one of the greatest threats to firms in recent years. Accordingly, boards of directors must be continually vigilant about this danger. They have a duty to ensure that the companies adopt appropriate cybersecurity measures to manage the risk of cyber fraud. Boards should also ensure that the firm disclose material cyber risk and breaches. We examine how the board’s gender composition can influence the extent of such disclosure, based on a sample of the companies listed on (...) the S&P/TSX 60 Index over the period 2014–2018. Results show evidence of a positive association between the presence and level of cybersecurity disclosure and board gender diversity. However, the board must boast a critical mass of at least three women before this positive impact can be observed. Our findings contribute to the debate on the importance of gender diversity by adding the concept of the positive influence of heterogeneity on cyber disclosure. We also augment the literature on the critical mass of women in boardrooms by providing empirical evidence that three or more women constitute the threshold for better governance. Our study has important implications for investors, stakeholders and regulators. If investors wish to increase cybersecurity disclosure, they should ask for more diversified boards. Our findings support regulators in their efforts to increase women’s representation on boards by providing empirical evidence of better outcomes with this type of board composition. (shrink)

This Article analyzes the composition of the board of directors as a vehicle for state intervention in corporate governance. Such intervention is ubiquitous and often motivated by goals that stray from shareholder wealth maximization, or corporate governance more generally, to promote other national interests such as diversity. Regulating board composition thus is merely the continuation of politics by other means. After briefly discussing direct state ownership in business firms as a way to advance policy goals, the Article explicates the tensions (...) between boards’ dual responsibilities of monitoring and strategy-setting. These oftentimes conflicting missions curb the law’s ability to guide board members’ conduct through the conventional legal duties of loyalty and care or other injunctions. Although the two roles also may entail conflicting implications for board composition, regulation of board composition nonetheless may prove a superior means for promoting policy goals, especially with regard to the objective of the corporation. Composition regulation harnesses board members’ personal attributes — specifically, their values — to facilitate the attainment of these goals. Instead of telling board members what to do, the state may fare better by regulating who they are. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:IntroductionRobert M. Veatch (bio)The Kennedy Institute of Ethics regularly sponsors intensive bioethics courses for physicians, nurses, and other health care professionals. While the basic course, held in June of each year, provides a general introduction to bioethics, advanced courses, which are often held in March, focus on more specific topics such as death and dying, justice and the allocation of resources, or theories and methods in bioethics. This year (...) the advanced course addressed one of the most sensitive and complex bioethical issues of our day: managed care. This issue of the Kennedy Institute of Ethics Journal includes revised versions of many of the papers from that meeting.As defined by one of the papers in this issue, managed care involves a system of health care delivery that manages resources, quality, and access associated with the delivery of health care. The key element of managed care is that, for the first time, managers—often from outside the health care professions—are intentionally controlling resources, and therefore controlling health care professional decisions that use those resources. The objective is not merely to eliminate utterly useless interventions—no one could plausibly object to that. Rather the target is also the elimination of inefficient and wasteful resource consumption. Increasingly, we recognize that many diagnostic tests and treatments offer, at best, a very marginal chance of doing the patient good. Some of these come at considerable cost. From the point of view of the rational organization of resources, no rational person would insist on receiving every last procedure that offers only a tiny chance to do a small amount of good at great cost. Managed care is designed to bring to consciousness and rationalize the decisions about which of these marginal, expensive benefits are worth pursuing.The problem is that any effort to eliminate any of the these expensive marginal services flies directly in the face of the Hippocratic ethic. Physicians and other clinicians traditionally are trained to believe that it is their moral duty to do what is best for the patient. Only now are we realizing that, taken literally, no rational person would want literally the best possible care, assuming that such care would include thousands of long-shot, expensive efforts to get the most modest of benefits at great cost. In a world of finite resources, rational people would certainly want very good medical care; they would want reasonable care. But they would also want some criteria of efficiency and fairness applied. The Hippocratic tradition has never addressed the problem of the difference between the best care and care that is of very high quality, but is chosen with an awareness that the best in medicine will necessarily come at the price of potentially serious [End Page vii] deprivation in other spheres of life. The ethics of managed care is fundamentally an exploration of how health care professionals can reconcile their traditional, if short-sighted and naive, commitment to doing what is best for their patients with increasing realism about the absurdity of pursuing every last possible increment of benefit.To the clinical health care professional, the issue raised most poignantly by managed care is whether the various health professions can still be practiced with integrity in a setting in which outsiders are charged with the rationalization and systematization of limits placed on excessive use of marginally beneficial resources. Edmund D. Pellegrino, a clinician and former Director of the Kennedy Institute, sets the tone for the course and for this issue of the Journal by making an appeal for the retention of the highest ethical standards of integrity for clinicians practicing in a managed care setting. He is unwilling to let standards be lowered in the process of systematizing the rational use of health care resources. The remaining papers in this issue respond to those pressures to change the nature of the clinical lay-professional relationship. Some of these presentations originated as panels designed to bring out varying points of view. The published form of the presentations, like the original oral remarks, are of different lengths. All have been edited by the presenters, some taking on the form of more finished papers, others still reflecting the less formal conversation of... (shrink)

The philosophical tradition in the West has always subjected life to conceptual divisions and questions about meaning. In Vital Nourishment, François Jullien contends that although this process has given rise to a rich history of inquiry, it proceeds too fast. In their anxiety about meaning, Western thinkers since Plato have forgotten simply to experience life. In this installment of his continuing project of plumbing the philosophical divide between Eastern and Western thought, Jullien slows down, and, using the third and fourth (...) century B.C.E. Chinese thinker Zhuanghi as a foil, begins to think about life from a point outside of Western inquiry.The question of how to "feed life," or nourish it, is the point of departure for the Chinese tradition that Jullien locates in Zhuanghi. Life passes through each of us, and we have a duty to become amenable to its ebbs and flows. We must cultivate a sense of being adequate to it so that we can house it. Exploring notions of breath, energy, and immanence, Jullien reopens a vibrant space of intellectual exchange between East and West. In doing so, he refuses to commit to a rigid framework of meaning, and his text unfolds as an elegant process that mirrors the very type of thought he explores. Pointing out that it seems intellectually and politically imperative today to reinvigorate Western thought with ideas from the East, Jullien seeks to create a space of mutual inquiry that maintains the integrity of both Eastern and Western thinking. Vital Nourishment is both a rich intellectual historical journey and a text very much attuned to the philosophical politics of the present.François Jullien is Professor at the Université Paris VII-Denis Diderot and director at the Institut de la Pensée Contemporaine. He is the author of Detour and Access: Stratgies of Meaning in Chna and Greece, The Propensity of Things: Toward a History of Efficacy in China, and In Praise of Blandness: Proceeding from Chinsese Thought and Aesthetics, all published by Zone Books. (shrink)

The non-financial effects (NFE) antitakeover amendment addresses the duties of company directors and management when faced with a possible takeover bid. The NFE amendment either permits or requires managers to consider the interests of the company's stakeholders during takeover bids. Other types of antitakeover devices have been viewed as protecting either stockholder or management interests. The NFE amendment would appear to protect a broad spectrum of interests including those of company employees, creditors, and the community in which the company (...) operates. Positive market returns to the adoption of NFE amendments provide some evidence that investors approve. The percent of both management and institutional ownership are positively related to the market reaction to the NFE amendment adoption. To the extent that institutional ownership proxies for the broad spectrum of stakeholder interest, NFE devices, unlike some other amendments that have been studied, appear to be in the interests of more than a single interest group. (shrink)

The philosophical tradition in the West has always subjected life to conceptualdivisions and questions about meaning. In Vital Nourishment, François Jullien contends that althoughthis process has given rise to a rich history of inquiry, it proceeds too fast. In their anxietyabout meaning, Western thinkers since Plato have forgotten simply to experience life. In thisinstallment of his continuing project of plumbing the philosophical divide between Eastern andWestern thought, Jullien slows down, and, using the third and fourth century B.C.E. Chinese thinkerZhuanghi as (...) a foil, begins to think about life from a point outside of Western inquiry.The questionof how to "feed life," or nourish it, is the point of departure for the Chinese traditionthat Jullien locates in Zhuanghi. Life passes through each of us, and we have a duty to becomeamenable to its ebbs and flows. We must cultivate a sense of being adequate to it so that we canhouse it. Exploring notions of breath, energy, and immanence, Jullien reopens a vibrant space ofintellectual exchange between East and West. In doing so, he refuses to commit to a rigid frameworkof meaning, and his text unfolds as an elegant process that mirrors the very type of thought heexplores. Pointing out that it seems intellectually and politically imperative today to reinvigorateWestern thought with ideas from the East, Jullien seeks to create a space of mutual inquiry thatmaintains the integrity of both Eastern and Western thinking. Vital Nourishment is both a richintellectual historical journey and a text very much attuned to the philosophical politics of thepresent.François Jullien is Professor at the Université Paris VII-Denis Diderot and director at theInstitut de la Pensée Contemporaine. He is the author of Detour and Access: Stratgies of Meaning inChna and Greece, The Propensity of Things: Toward a History of Efficacy in China, and In Praise ofBlandness: Proceeding from Chinsese Thought and Aesthetics, all published by Zone Books. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:To Nurse BetterJaime HenselWhen things were quiet again I asked him what training he’d had to become the director of hospital security. “I worked for 20 years in corrections,” he answered proudly, and I was saddened but not surprised.In September 2010 I started an accelerated graduate entry nurse practitioner program to become a family nurse practitioner. Accelerated programs leave little time for preamble, since the idea is to (...) take a total novice and turn her first into a nurse and then into a nurse practitioner in just three years. While the classroom information was vital, it was our clinical experiences that really initiated us into the profession. In just the second week of school, we were divided into small groups and assigned to clinical preceptors—hands–on teachers who introduced us to our first patients, curbed our mistakes, quelled our fears, and pushed and pulled and cajoled us into being nascent healthcare providers. In showing us how to give bed baths, suction secretions, insert Foley catheters, and hang IV bags, our preceptors really began showing us how to use our hands as healers.In that first semester my patients also proved to be invaluable instructors. Talking to them, administering their medication, washing their bodies made me keenly aware of the delicate balance of vulnerability and power and trust and respect and intimacy that underlies all healthcare relationships. I hope, wherever those patients are now, they know how deeply I appreciate their patience and good humor and their collusion in my education.In December, the first semester and the first clinical rotations ended. Four months into nursing school I had a basic understanding of what it means to be a nurse. Frankly, most days I still felt like an impostor in blue pajamas sporting a stethoscope I didn’t really know how to use and new Dansko clogs that squeaked with every step. But in an accelerated program, fast and furious is the name of the game. We went away for winter break—a much needed breather—and came back to something completely different: psychiatric nursing.In preparation for these new clinicals, we were taught in class that we should not wear dangly jewelry or stethoscopes. That we should never let the patient get between us and the door. That psychiatric (psych) patients could escalate quickly; psych patients could have surprising triggers; psych patients could be very unpredictable. And psych patients could be violent. We were taught about physical and chemical restraints, and about show of force. We were cautioned, as students, to stay out of the way if things got tense on the floor. In stark contrast to medical patients, psych patients were made to sound less like people who had diseases and more like adversaries. I drove to my first day on the floor with trepidation.My new preceptor had spent her entire career in psych. She loved her job, loved the care of psychiatric patients. She set up a rotation because she wanted our entire clinical group to get full exposure to the breadth of psychiatric services offered by this medium–sized community hospital. We would each get to spend shifts on the locked psych floor, observing outpatient group therapy sessions, and in the psych emergency department (ED).I rotated to the psych ED for the first time on a Friday night. The first couple hours of the shift were very slow. I started talking to the mustachioed guard on duty, who looked as bored as I felt. He told me about his kids, I told him about nursing school. He seemed nice.When our conversation flagged, I explored the psych ED. It didn’t take long—just a short hallway with a bathroom, the social workers’ office, and two patient rooms without doors. The majority of the designated psych beds were actually around the corner in the main room of the medical ED—stretchers lined against the wall, without curtains or any [End Page 98] other attempt at privacy. I noticed that from where the guard stood at the corner of the psych hall he had a pretty good view of all the beds. Then again, so did most of the other patients... (shrink)

The politics of interpretation should not be confused with interpretive practices such as political theory, political commentary, or histories of political institutions, parties, and conflicts that have politics itself as a specific object of interest. In these other interpretive practices, the politics that informs or motivates them—“politics” in the sense of political values or ideology—is relatively easily perceived and no particular meta-interpretive analysis is required. The politics of interpretation, on the other hand, arises in those interpretive practices which are ostensibly (...) most remote from overtly political concerns, practices which are carried out under the aegis of a purely disinterested search for the truth or inquiry into the natures of things which appear to have no political relevance at all. This “politics” has to do with the kind of authority the interpreter claims vis-à-vis the established political authorities of his society, on the one side, and vis-à-vis other interpreters in his own field of study or investigation, on the other, as the basis of whatever rights he conceives himself to possess and whatever duties he feels obligated to discharge as a professional seeker of truth. This politics which presides over interpretive conflicts is difficult to identity because traditionally, in our culture at least, interpretation is thought to operate properly only as long as the interpreter does not have recourse to the one instrument which the politician per vocationem utilizes as a matter of course in his practice—the appeal to force as a means of resolving disputes and conflicts.11. I have followed the lead of Max Weber in defining the phrase “politics of interpretation.” In “Politics as Vocation,” Weber wrote that “ ‘politics’ means for us striving to share power or striving to influence the distribution of power, either among states or among groups within a state” . Rather than discuss the age-old problem of the professional interpreter’s political responsibilities, I will consider that politics which is endemic to the pursuit of truth—the striving to share power amongst interpreters themselves. The activity of interpreting becomes political at the point where a given interpreter claims authority over rival interpreters. As long as this claim is not reinforced by appeal to the power of the state to compel conformity of belief or conviction, it is “political” only in a metaphorical sense. Of course, interpretation becomes political when a given point of view or finding is taken as orthodoxy of belief by those holding political power, as in the Soviet Union, Germany under Hitler, or any number of religiously puritanical regimes. But these are the easy cases. It is much more difficult to determine the political nature of interpretive practices which, as in literary criticism or antiquarian scholarship, appear to have no bearing upon political policies or practices.Hayden White is a professor and director of the program in the history of consciousness at the University of California, Santa Cruz. He is coeditor of Representing Kenneth Burke and is currently working on a book on the rhetoric of realism. His previous contributions to Critical Inquiry are "The Value of Narrativity in the Representation of Reality" and "The Narrativization of Real Events". (shrink)

Don't tell terrible stories—everyone here has enough of their own. Everyone here has a whole bloody sack of terrible stories, and at the bottom of the sack is a hammer the narrator uses to pound you on the skull the instant you dare not believe your ears. Or to pound you when you do believe. Not long ago I saw a tomboyish girl on Khreshchatyk Street demand money of an elderly woman, threatening to bite her and infect her with syphilis. (...) Don't stroll through Volodymyr Hill Park, don't stroll around the botanical garden, and especially don't stroll on Kontraktova Square. Don't stroll anywhere. Don't go to the pavilion with the Golgotha panorama near St. Alexander's Church. Not even the twelve-meter-tall crucified Christ will save you. Don't go outside when it's dark and people turn into shadows a shade darker than dark. Also don't go where you can be seen from far away. Not to imply that people used to be like a bunch of lilies, but now they stink like a cellar of cabbage.The city, which earlier might have had some fun, is now going crazy. It's like a fish in warm water: it doesn't react to anything, swims slowly like it doesn't care if it swallows a hook or not. The excitement and exaltation pass into oppression, just as our necks have sunk into our shoulders, our shoulders into our lumbars, our lumbars into our nether regions. The holiday turns into a funeral, the parades into explosions, depression into mania. Winter passes into summer, people turn into beasts, the hours into ages, and the ages into hours. It's worth simply walking around the city to see a soldier from an unknown army taking a piss near the opera. Farther on is a row of identical old widows selling ball gowns and candelabra. Then there are the aristocrats and manufacturers who throw so much at the prostitutes that they'll soon be richer than their wives.I returned late through the Kyryliv Wood, not heeding all the warnings that I myself have given here. It really is dangerous—the place is famous for it. There's a madhouse nearby, caves where criminals and the sick can hide out. Also, once upon a time, as they say in fairy tales, the great dragon Zmei Gorynich lived here beside the Puchai River. The stench in these places drives away the most committed misanthropes and even one type of philanthrope—that is, perverts. It sounds dumb, but the stench is cleansing. I don't know where it comes from. After the operating theaters and the rooms with amputees, the stench no longer repelled or attracted me; it just was. And this was a great place to think. As I walked, I considered an incident with our patient.The patient, a respectable individual whose name carries too much weight for me to state it directly, one day began to assault people. He nearly strangled a merchant who he believed asked too much for a beaver coat. He likewise wanted to kill his business partner when he didn't say hello loudly enough. But the worst was, he lost all shame of his own nakedness. At first it was the police who took care of it. When our future patient slipped off his pants and undergarments, he was taken to Kyrylivska, which has had means for dealing with such cases dating back to the day when unhinged Cossacks and composers from Kyiv Mohyla Academy were taken there.During the examination we determined that the patient was experiencing a severe breakdown. His wife added that lately, more than once, he had allowed himself strong words in front of the children and often suffered from ennui. Furthermore, she said, the patient had been undergoing treatment for “the French disease” for some years—which was, obviously, where we needed to start.“Syphilis!” Skorsky spat out the matchstick he was chewing on. He was a specialist on the psychological aspects of diseases related to the venereal. “Tertiary syphilis! When poorly treated, over time ‘the French disease’ can destroy the central nervous system. Hence the patient's chicanery. Such theater!”Skorsky and I had not spoken since the incident at Bilinsky's. Meanwhile, something significant had happened to him. The most boring person on earth, Skorsky had simply caught fire. He said hello and kibitzed. I even heard the doctor got drunk alone in his office, then wandered through the forest. Could he be using narcotic substances?“Cocaine!” was the doctor's second proclamation. It was his favorite treatment for the psychological complications of syphilis. Skorsky himself never took what he called “the universal drug”—good for alcoholism and toothaches, neuroses and morphine dependency—though he had read in an article by a respectable Viennese physician, who used cocaine as a panacea, that it was not addictive. That doctor subsequently recanted, but Skorsky paid no attention. He believed the retraction was made under pressure from pharmacologists who had no incentive to cease production of the medications that cocaine might supplant. Their representatives either paid or threatened the Viennese to repent.As the patient was escorted to his room, he assaulted the orderly, Alevtyna. They tried pulling him off her, but, though he released his fingers from her neck, he buried his teeth in her leg. The poor orderly, who had not until then been attacked by a psychotic, nearly died of fear. Later, panic set in over Skorsky's diagnosis. He told her about the consequences of syphilis: grotesque patterns on one's face due to infection of the skin, mucous membranes, cartilage, and bones. He went on about the devastation to the central nervous system, which they had just observed in real life: “The face starts to look like lace some mangy dogs fought over before rolling in the mud.”Alevtyna, who had not yet regained her faculty of speech, straightened up. Ignoring the slavering male orderlies, she bared her leg to get a better look at the wound. She then ran down the hall and out into the garden, where she fell on the ground to rip up grass and small bunches of daisies. Alevtyna ate them along with the soil in their roots.“Minor hysteria. She needs fifteen milligrams of cocaine.”Skorsky took a snuff box out of his pocket and scooped up some white powder with a toothpick made from a goose feather. He gave the order to close Alevtyna's mouth and one of her nostrils, forcing her to snort the medication.We fretted over her so long that evening fell. I decided to walk down, along the ravine, behind the church.It was unlikely there were any large beasts there, but something was rustling. The pits and mounds, ravines, paths, graves of witches whose living sisters flew in the treetops from time to time, the whispers of the forest spirits, the spirits of the nutcases who died in the hospital, the spirits of the monks from the St. Cyril Monastery, Zmei Gorynich and the bogatyrs who wanted to defeat him. The city would be calmer without this forest. I saw the gaps between the trees and went off in the direction of the tram tracks.As I was coming out of the forest, there was a patch of Amanita muscaria that had been trampled into porridge. A bit farther on, the body of Professor Bilinsky lay killed in the blackberry bushes. The way he was lying it looked as though he had not struggled before death. I quickly examined his body but saw nothing out of the ordinary. There were no wounds, no dirt under the fingernails. Animals had not yet smelled the carrion, but swarms of various insects covered him. Oh, why did I have to find the putrid body?The best thing would be to take the tram to his house to inform his relatives. The doors closed, and I noticed my own calm. This death had not evoked any emotions in me other than a feeling of responsibility, the need to tell the family. But also—some alarm at the thought of who the murderer could be. I knew that it was murder.“Your nose is bleeding.” A woman as round as an onion, carrying two baskets full of strawberries, offered me an ironed and starched handkerchief.“Have I dirtied my shirt?”“No, it's as neat as a pin. It's just your nose that's dirty. Wipe it now before you spray blood on my strawberries.”“No one will see the red on red.”“Ah, but it's salty!”“You know why it's not sweet? We'd drink it like syrup.”“Those with Christ in their heart do not talk that way.”“Are your strawberries expensive?”“Why? What?”“I'm checking to see if you have God in your heart.”“Child, if you knew how I have to work for this berry! I have to weed it a hundred times. In a week, the quitch grass grows as high as a horse. And I water it with water I carry from the stream, it kills my arms... ”“How much are the berries?”“They're not for sale. Anyway, soon money won't mean a thing. Soon all money, all these papers made from the skins of sinners on their satanic presses will be annulled. What matters is how we treat each other.”“So if I try your strawberries for free, my ‘thank you’ will be enough?”“Hands off!” she said and thwacked my fingers.I heard loud laughter behind me—same laughter as from the café near the Continental. There was no one sitting near Alina. (This is what fate looks like, remember.) Without asking, I sat next to her, away from the old lady.“Excuse me, but the night before last didn't you, yes, didn't you intrude on my privacy?” She started right away.“I saw it a little differently. Who was that young man with the mustache who paid me for you?”“Are you checking to see if you can flirt?”The tram stopped. People got on and off.“Are you coming back from the hospital?” she asked. “Don't be shocked. My uncle works there. He's told me all about you.”“An uncle by the name of Skorsky?”(Remember: this is what fate looks like.)“Yes. Skorsky's been strange recently—says things that make me wonder if he hasn't lost his mind. Have you noticed anything?”“I don't know.”“You know perfectly well.”“Where are you going?” I tried to change the subject.“I have to send something to my theater friends in Odesa. By the way, they'll be putting on Oedipus Rex soon in Kyiv—in Ukrainian.”“Greek tragedy in Ukrainian! That's a first.”“Exactly. The troupe is rehearsing now in Odesa. The theater where they will perform this fall is being remodeled.”“Wait. Now I remember where I've seen you before—it was at a performance! Vynnychenko's Black Panther and White Bear, at the Bergonier on Fundukleivska.“The same director is doing the Oedipus. He's my friend.”“He's your friend in what sense?”“Again with that tired subject. By the way, I've been thinking about you.”“And I about you.”“That's good. I was thinking not about you, to be precise, but about that elevator you invited me on.”“Who was that man with you?”“Like a broken record! Even if he had been my fiancé, I'm not bought or inherited. I'm not a brooch or a hundred acres of land, and I'm not a house in Kaniv!... Who was with you when you saw Black Panther?“Ah, so.”“Answer!”“That was my mother. She looks very young. She is coming to Kyiv the day after tomorrow. I can introduce you.”“Oh, this is my stop.”I looked out the window and realized that I had long since passed the stop for Bilinsky's.“Can we see each other again?”“We can. But you have only one chance.”Alina the anarchist wrote something on a scrap of paper and handed it to me.Morning, not morning but a thick porridge (I hate porridge). Dew, thick spit, crushed fruits, urine, all on the sparkling cobblestones. The sun, just barely having made its appearance, is already scorching. The human masses scurry and grumble like poorly digested food inside a stomach.I walked diagonally across St. Sofia's Square, then along the perimeter, then one edge, then again diagonally across. I went underground. The basement café of the Continental Hotel was practically empty. I again asked the server to bring the cloth with the embroidered portrait, but I couldn't remember the musician's last name, only that it ended with -sky. The server said that -sky was currently in the southern cities of Yalta and Odesa. I added that Kurbas, the director, Alina's friend, was also in Odesa, rehearsing Oedipus Rex, and that he'd previously put on Black Panther.I was bored, so I walked along Khreshchatyk and then headed down, calling to mind all the Kyiv churches of Podil: there's Birth of Christ, St. Nicholas on the Shore, Intercession, Pyrohoshcha, Holy Presentation, St. Dymytrii Rostovsky, St. Illia's. And also the Epiphany Brotherhood Monastery, Ascension Convent, and St. Katherine's, all these whipped-cream churches on the waffles of our streets. A few of them reminded me of themselves by appearing suddenly out of nowhere.The smells on Kontraktova Plaza where commerce buzzed were like multicolored light bulbs turning on one after another. Here you could catch the aroma of Balabukha jam, which blended with the next smell, English shoe polish at the Raiskys’ shop. Then the crunchy-smelling cabbage from old women standing in a row like herons and spitting out the shells of sunflower seeds. Farther on, the stench of a good-sized rat that crawled under Mrs. Shevchuk's shop where she sells broadcloth. Oh, she can't scream: no, she'll quietly dig that rat out herself so as to not scare off her clients.I bought a paper and two pairs of underwear. I asked two laughing young chambermaids who were secretly puffing in a grape-filled yard for a smoke. I wandered around Podil until evening when I came across a sawmill near the Dnipro that surprisingly smelled pleasantly of mazut fuel oil. The weather was dry, yet in the middle of the road was an enormous puddle, a deep dark black. A forty-year-old woman in a pale pink dress stood near it. The theatricality of it all provoked me to pose her a question,“Ma'am, what should I do?”But she paid me no attention. I shouted,“What should I do?”“What to do, what to do?” she said in Polish. “Jump in the water and swim so far away that you cannot return.”I quickly crossed a section of the forest. The wind brought a mixture of unpleasant air, like a stinky handkerchief held under one's nose. Passing the trees, I saw light in the spaces between them and exited at the hospital.Outside the windows, two orderlies lay in chairs with their heads thrown back. Two others—fools—ran around the yard in different directions, peering out at... something. The lights on the first floor of the hospital were on, and the staff milled about.“You're just in time!” said Ivan, a tall, young orderly.“For what?”“Your patient ran away! We went into his room and he wasn't there.”“What patient?”“The one who bit Alevtyna,” said Danylo, the other orderly, short and middle-aged.“That's Skorsky's patient, not mine.”I had no intention of helping them. This was all history—like my family, Kyiv, and my previous life. I had no intention of thinking about it. I wanted to go to my office, pack up my field surgery kit, and get out. So what? Their psychotic syphilitic ran away—it happened.Of course, that patient could have something to do with Bilinsky's murder. But that was no longer my problem.“What a strange coincidence!” the doctor on duty said. “Comrade doctor, the other one responsible for this patient was just here.”“And where is he now?”“He took off toward the church to look for the patient.”“Didn't the patient escape earlier?”“Don't know.”“How do you not know? You had better call the police, moron, before he kills someone. And get those sleeping orderlies to look for him.”“They can't... ”“Why not? Should I go wake them?”“They're on morphine.”“And you, I can see, have lost your mind. Go, catch your psycho! If it turns out that he killed Bilinsky—and on your watch—you can't imagine what's in store for you.”I adjusted my homburg and set off in the direction of St. Cyril's, that unwelcoming monolithic cube. I glanced around—what if our escaped syphilitic were to jump out of the bushes and bite or strangle me. I looked around because I wasn't sure of my actions, wasn't sure of my choices. Tripping over a clump of clover, I reached the open doors of the church. I couldn't stop myself from going in.The walls and ceiling were covered with frescoes. There was what used to be an angel rolling up the sky on the southern column of the narthex. But also graffiti: people scratched their names on it so as not to be forgotten—their idea of eternity. Prince Volodymyr the Great compared this activity to the desecration of graves. The vandals paid a fine and were beaten with canes. During the raids of Batu Khan, the church was deserted and cracks appeared all over it. Wild martens and feral dogs sought shelter here; insects swarmed under the ceiling with its red mosaics. Birches grew in its midst. Water seeped in the cracks, the water became ice, the ice widened the cracks, more water seeped in the cracks, becoming more ice that further widened the cracks, the wall split and nearly fell over, and then the wall fell over. Yet the angel is still rolling up the sky... When I reached the exit, I heard a rustling behind me. I turned after I stepped outside: in the depths of the church, like a stick in a pot of tar, stood a man with a large bag thrown over his shoulder and a revolver pointed right at me.“Is that you, Doctor?“Don't move!”“What's... Skorsky, what's with you?”“Don't move, I say!”“What are you doing here?”And finally I understood... Skorsky was himself the psycho! (Really, I had known for a while.)“You are the murderer! I knew it! But—why?”“Shut up.”“It was you. You! The stolen cigarettes, the strange behavior, Bilinsky. If I shout, everybody will come running. They've already called the police!”There was heavy breathing behind me. And then a gun rang out.The city is overgrown with new buildings. They encircle everything that was once on the periphery. Kyiv has become an old lady that can no longer restrain herself in the face of pastries. The city climbs farther. It steps over the swamps, turns the old rivers into a series of lakes; the other bodies of water it drives into canals. The grain that falls from the wild wheat is black. When the sun heats it, the grain melts and trickles into the earth. St. Cyril's stands indestructible. No one spackles the small cracks in its walls with either expensive putty or glues, nor with cheap cement and whitewash. One day a small fox appears in the doorway. It runs inside and along the floor of simple gray tiles. The gods watch from the walls, watch and fall into ruin. The fox runs to the iconostasis. Before it is a time-darkened Virgin Mother and Child in oil on sheets of zinc. The fox runs the metal steps that wind up to the second floor. The fox runs past all the vaults, naves, all the frescoes. A buckthorn seed flies in through a broken window. It will be the first. Soon the buckthorn will grow everywhere. A dumb hare will make its nest in the buckthorn bushes and nightingales will settle in the upper branches to sing until the end of the world. The fox runs between the thick rays that penetrate the windows. It catches one of the rays, squints its eyes, and warms itself in the sun.The shot rang out, but I did not fall. I looked around—and on the church threshold was our syphilis patient bearing a rod. His head lay on the rocks by the doorway.“If only he'd been at the stage of nose deformity! Just imagine: a hole instead of a nose plus a hole from the bullet—like an extra pair of eyes!” Skorsky laughed at the corpse.“We need to call the orderlies.”“They heard the shot. They'll run here on their own. You see, Professor Bilinsky believed it would take two or three years to wrap up this patient's case,” Skorsky told me. “But I took care of it much faster!”“Excuse me, but I'm going crazy in this city. I thought that you were Bilinsky's murderer.”“Just so. Why not? I am Bilinsky's murderer.”“Don't tease. You've changed a lot recently, so... ”“Yes, I've started killing people. You might term such a change significant.”“You have the right to irony.”“I am not being ironic.”“Let's call it sarcasm.”“It's the honest-to-God truth.”“And yes, you have the right to mock me.”“Well then, let's be done. To the horses!”“What horses?”“Alina's waiting!”Alina, her uncle Skorsky, a few others I didn't know, and I rode like the wind that ripped off my homburg and carried it back to Kyiv.“There's a fresco in the choir loft at St. Cyril's where Vrubel painted himself and patients from the hospital as the apostles. When I came across it by accident, I really believed they were saints,” Alina said.“I've never been up there. I've only seen the church from below.”“Remember the way back so you can see it sometime.”“The Puchai River used to flow here. You shouldn't trust the landscape,” Skorsky said, reaching for something, perhaps his bag, just when we left the darkness of the trees and saw the endless steppe ahead of us.We rode all night without stopping. Though no one was chasing us. Though we had nowhere to be. We rode like beasts released from a cage. The promises of the horizon turned what we'd left behind into a cage fit for those from whom freedom had been severed, like an anomaly, at birth.The pre-morning sky looked at first like a sack of turnips—filled with something heavy. But with each verst, the sky became lighter. When it was finally light enough to see clearly, we arrived at a knoll at the foot of a stone wall that from a distance had appeared to be a gigantic piece of halva. The exterior ruins of the castle gave no hint of how it was when all was fine here, when people defended themselves successfully from the nomads’ raids. From far off, the wreckage looked like a natural agglomeration of stones—a rocky elevation, no more: a cluster of cliffs. It would rain a few hundred more times, a few hundred more winds from a few hundred directions would blow on this heap, and it would collapse as though nothing had ever been here.A few stalks of wheat grew from one of the rocks. Someone had probably cast a handful of grain here for some birds that forgot to eat it.“Who could this castle belong to?” I asked Skorsky.“I reckon the Swan Princess,” the doctor rejoined, hoping to sound knowledgeable.From behind one of the piles of gray sandstone emerged a young man in a black reptilian coat and a white papakha as lush, bright, and out of place as a dahlia. His name was Artem. The heat was melting our brains, but he was dressed like that, in rooster fashion, which was popular among the otamans. Artem helped Alina dismount her horse and tried to kiss her on the lips, but she offered him a cheek instead.Had she been racing to see this clown?We entered the yard—the ruins had fashioned an internal space that was more or less protected, at least from strangers’ eyes. It turned out that there were even places where it was possible to hide from the rain, and from there the ruins didn't look half bad.In the center of the court was a table, and on it a wooden bucket with pink gladiolas. How romantic! It all looked like it came from outer space. Where on earth, in the middle of the steppe, far from any village or town, did this table, this simple table, come from? And the gladiolas? The steppe hadn't been plowed in so long that any cultivars would have gone wild, degenerated, dried up completely.A campfire crackled nearby—a little preview of what we would soon do to the houses, villages, and cities. Artem the otaman brought over a cezve from the fire and poured the first portion into a small, copper cup for Alina. He also got out a porcelain cup with images of rosy cherubim—but how...?“Who else would like coffee?”Only Skorsky and I responded. The question excited me, even distracted me from the thought of the kiss I had recently witnessed and the Kyiv I had recently left.“It's obvious who the professors here are; cultured people drink coffee. Are you both doctors?”“Uh-huh.”“For wolves of the steppe, like us, doctors are gold, even more precious than gold. Actually, a Hippocrates like you should eat more, because those in your profession will soon be worth your weight in gold. Work on your figures, both of you.”“Who will take pity on the horses that have to carry us?”“We'll find the horses. And very large doctors can be transported on machine-gun carts. We'll need to seat the otamans near you. Only a fool would shoot at a doctor.”“I think we'll find quite enough fools here.”“With your beard, Doctor, you look like Tsar Nicholas II. But even so you won't be shot. You might even be canonized!”“We've only just arrived and you're going on about executions,” Skorsky grumbled and checked to make sure that he still had his bag.“Apologies, apologies, pardonnez-moi. But you are not merely a doctor. A venereologist! Skorsky, you're a specialist! A venereologist is the most important person in wartime. The most valuable! You are the botanists of war. You can't imagine what varieties of flowers grow here, and these beds have long awaited a proper gardener. Or even just a man with a scythe!”“Bite your tongue,” Alina said. “I don't need to listen to this.”“Yes, yes, of course. Excuse me, my r—. ” He almost said “rose.”We rested all day. We went down to a surprisingly close river overgrown with lilies. We rowed the boats left by fishermen. I talked to Skorsky. He took his bag everywhere, refusing even to swim so he wouldn't have to part with it. I asked him what he had in it, but he said it wasn't my damned business.Alina rowed with the otaman to the middle of the river. They were having a loud discussion. She was waving her hands. The current carried their boat downstream slowly and smoothly. What a nuisance, that current!I tried to meet with Alina one-on-one, but she was avoiding me. In the morning I was confused, by lunch I was sad, and after lunch I got angry.In the evening, I lay on the hot grass and drank another cup (I have no idea where they got such good coffee), which had no effect at all on my sleep. I watched the Perseids. Every year, the Earth passes through the tail of Comet Swift-Tuttle. People can see the meteor shower and make a wish. I wished. I counted forty-seven falling stars. All forty-seven of my wishes were for the same thing.Around the campfire, they were sitting, talking. I saw how he tickled her face with a piece of grass and she brushed him off in annoyance. Then they were screaming at each other. Later they again spoke kindly, after which they again quarreled. My joy grew after each tiny mistake that Artem made. I wanted him to show the worst he was capable of.They were screaming at each other, but all I could hear was beautiful opera singing. The stars fell to the sound of their screaming. The stars blessed my joy.Then this happened: Alina kicked the fire, scattered burnt kindling, and burned some of the grass. Artem grabbed her by the arm, but she broke away from him and ran off to the horses.“Go then! I guarantee you'll get to Katerynoslav and return with your tail between your legs.”“I'm going to Huliai-Pole! To Father Makhno!”I jumped up and ran after her.“Where do you think you're going?” Artem shouted.Really—where was I going? I was going after her: to Huliai-Pole, to Katerynoslav, to Rome, to Washington, to Istanbul, to Montevideo... “Go to sleep,” he said. “Come morning, this coquette will be here, right as rain. We've already been through this show. Tomorrow she'll be right here next to my boot!”... No, she won't.In some sort of shape we entered some town. There were some buildings that were some colors, some trees, some streets, some roads, and some signs. Posts, flustered birds’ nests, echoes, colors, shapes—each of some kind. A wedding procession was coming toward us. If you want to make orange, you need to add yellow to red, and then bam—it's black. If you want to salt the soup, shake in a little, and then bam—two handfuls. You want to say a kind word, and then bam—a punch in the face. I was rocked around like a watermelon on a boat and threw up my breakfast straight into the horse's fluffy mane. Sanko found this hilarious, but I said I'd pulverize him. So Sanko sped ahead.No one knew anything about Alina. The daytime sky was like a poorly washed bowl. The sun was a squashed, rotten apricot. The night sky looked like the sole of a boot to me. The moon was a dirty cheap copper coin that had gotten stuck to the sole. Everything seemed spoiled to me, irrelevant, unnecessary. Without her, this journey was a waste of time.“You'd better stay away from everyone,” Artem said. “You'll infect us with your pining, and pining is worse than the clap.”The wedding procession was before us. The young couple, still utter children, walked so calmly it was as if they didn't see us. As if we were made of a light breeze—our bodies, clothes, our horses and their iron shoes—of the lightest gasses. As if we were visible only to ourselves and the coal-black dog that barked, panting and gasping.The wedding was headed straight for us. We were in the middle of the road, and so were they. We approached each other slowly, a wave going toward a wave. Some ten meters before their indifferent faces, I noticed the color of the bride's eyes. And the coral-colored tulips that fell on the road before her. Round goose eggs on meaty stems, the flowers were falling and falling before her. The bride's eyes were almond shaped.“Hey there,” Artem shouted at me. “Wake up!”I came to and saw the whole village, everyone there, not realizing my group had turned left onto a side street away from the procession. The tulips disappeared—where'd they get tulips in the fall? I was sitting alone on my horse in the middle of the road, and the entire wedding procession came to a stop. I moved to the side, and the throng marched on, cutting off our escape route. We rode a few more meters and came across the synagogue.“You know what, you're right,” said the otaman.“Who is?”“Oleksii is the only one here who's right.”“About what?”Artem turned his horse and raced back. Everyone stood still while he ran his horse into the crowd and began firing his revolver. People scattered in all directions. Artem trotted, cackling like an imbecile. The horse kicked an old guy in the mouth. The man fell, spitting out his gold teeth. We rode up to the commotion and formed ranks, but none of us wanted to join the otaman.The bride stopped in the middle of the street. On both sides were buildings and trees, as well as dust, sky, and sun. She stood still, beautiful, as if nothing had happened. Then she adjusted her garland and walked calmly on.“Well, should we get some sugar now?” Artem laughed, looking at the bride, and off he went toward the sugar factory.It was then I noticed that all of the houses had shutters—fuchsia, blue, ocher—and that all the shutters were closed.We flew toward the dirty building, whistling and shouting. If there had been aesthetes among the otamans, they would certainly have razed the abomination in this field after seizing it. They would have spread soil on top and sown buckwheat. Long live buckwheat!, that wonderful crop. Like hunting dogs hot on the trail, we raced to our defenseless victim, with the baying of hundreds of hounds behind us. The field shook beneath us. We became an artist's canvas, evolving from Realism to Romanticism, Romanticism to Expressionism, Expressionism to Suprematism. If we had been painted in black and white, we would have been splotches (until the ink ran, annihilating all remaining patches of white).Two men stood near the gate—unarmed and undressed, in nothing but their undershirts and boots. Our fervor, our kinship with the elements, our entirety, were all for naught.“Jesus Christ! What bores!” Artem exclaimed. “How boring you are!”“Maybe boring for us, but fireworks for them,” Sanko said, dismounting his horse.“The fear of death engenders creativity,” our otaman—a distinguished philosopher of the early twentieth century, that demonic breed—prophesied.He went on, “Excuse me, but with all due respect, we are not going to search you. Just show us right away where the money is. Why are there so few of you? Don't say there's not much money. I want piles and piles of money! If you don't show it to us, we'll print our own on your skin. Believe me, we will.”We entered the factory grounds. There were no workers, only an enormous mountain of sugar beets that looked like a pile of coal from a distance and a pile of dead rats from up close.“So, did you have a good year?” Artem asked a man in an undershirt.“Not really—too dry.”“Nah, that's fine. You wouldn't have been able to gather most of the harvest this year anyway. There's a fire burning across all of Ukraine, all of Russia. The whole world!”While Artem tossed thoughts like well-chewed sunflower seeds into the crowd, the two men quietly stepped aside and then ran fast ahead to the factory's main hall. The gigantic door slammed shut. The gate was locked behind us! The windows were smashed! The factory roared from inside like a cumbersome machine starting up. Bullets whirred through every window.“Bastards! It's a trap! Quick, after me!”Still on horseback, Artem bounded over to a vast window, low to the ground, and smashed it mercilessly. He broke the frame and jumped inside on his horse. I and a few others followed. We broke into their lair, threw open the doors, and let the other warriors inside.Iron vats of hot sugar were steaming, pipes were clattering; machinery groaned.“Parasites!” Artem gritted his teeth. “I'll get you. I'll get you red sons of bitches. Painted whores!”At the word “painted,” his horse fell to the ground. Lying prone, Artem continued fighting, but the red soldiers wouldn't let him stand. Fighting nearby, I rode over to assist but did not know where to aim. Artem got up, ran forward, and brought his sword down on the head of the closest soldier, all the way to the middle of his skull, to the bridge of his nose. It was like butchering a pig. Artem thrust the sword into the buttock of another who was fleeing and cut off his leg at the bend in the knee.“I'll cut off every last one of your asses! Cut off your asses!” Artem bellowed.A half hour later, the dead were lying, the captured sitting, and the victors doing anything they pleased.“Skorsky, are there a lot of casualties?” I asked the doctor, whose hour it was. I hoped not, because I was too tired to help him.“Just a few. The dead are already dead, and the wounded are not ours.”Though Skorsky rarely asked my help, and though I'd become an ordinary soldier, the doctor in me was still present in the most unpleasant attribute—knowledge. Others saw an eviscerated man, pieces of dusty flesh smeared with clay, soil, sand, and straw. I saw a perfectly formed kidney hanging perfectly from the rest of its body like a child's mitten from its coat. You could try this death on for size. Wear it like a sanbenito of the Inquisition.Artem counted the money and then lay on the floor alongside the gigantic sugar mountain in the middle of the room. From time to time, the crystals rustled as they fell.“I didn't think you'd be such a fighter!” the otaman said without turning toward me. “I thought you'd be healing us. You'd keep to the rear and we'd hide you like a girl. But here you are, in the vanguard, like a lion!”“I got excited,” I told him, choosing not to react to the “girl” part.“’Cause Alina said there was no sense counting on you to fight.”“Really?”“Does that sting?”“Why would it? I'm a doctor—not everyone is. It requires a brain. Unlike waving a sword.”“Yeah, yeah. I gave her gladiolas. We were lying in the boat near that castle, doing all manner of things, and she told me all about you. How you met.”“You were lying in that boat talking about me?”“It was the day before you left Kyiv. You agreed to go with the anarchists so quickly!”“Were you surprised? Doctors make fast decisions.”“But you probably had great prospects. Your parents are rich, right?”“And who are your parents?”“Probably all your relatives fled abroad—bourgeois. Why did you stay?”“What the hell's your point?”“Alina, by the way, died a while ago. Probably.”“Don't jinx her.”“Listen here,” he said, staring at the ceiling. “And listen good. If you have designs on her—dead or alive—it's best you castrate yourself now.”“After you.”“If I want to kill somebody, you know, I just do it.”At last he looked at me. I was lying on the floor nearby and looking in his direction, sweaty and relaxed, my appearance complemented by my disdain for his opinion, his authority, his stupid hat. His everything.Artem raised his arm above his head, stuck a finger in the sugar mountain, and licked it. We both got up. Had I anticipated this turn of events, I would have readied a gift for him. Artem held his revolver. Under my hand I found a knife the workers used for gathering beets: it was a deliberately sharpened arc they sank into the swollen brassicas. I jumped up and quickly stepped around the sugar mountain.Artem's bullet hit a pane and broke the glass.“Not man enough for hand-to-hand?”The otaman shot again.“You should've challenged me to a duel, you romantic!”Encrusted with white crystals, I charged Artem from the sugar mountain. We fell in, and the sugar stuck in our hair, mustaches, nostrils, armpits.The gang ran in to get us apart, then backed off because it had nothing to do with them. By now the sugar mountain had burst its banks. Of the once perfect pyramid, a deformed mound remained.Wounded, Artem fell on the sugar mound, turning the white red.I stood before the gang sugar-coated and holding a bloody hook. The old otaman was drawing his last breath. Blood trickled from the corner of Artem's mouth and streamed from the left side of his breast.“What's the commotion?” Old Roman had just come in.“Be quiet,” the boys told him. And a good thing they did.“You killed him? You killed the otaman!”“Shut your mouth,” the boys told him.“You... ”I slugged Roman's stinky herring mouth. How did that son of a bitch find pickled herring in a sugar factory? My fist was now bigger and stronger than ever before, a steel anvil that could split nails and shatter memorial plaques. The unfortunate man's jaw twisted like an upper millstone that had gone off track from the lower.“Let's get out of here and go to Makhno's camp,” I gave my first order.We galloped so fast the grass burned beneath us. The birds and bugs had no time to fly out of the way; hooves trampled the burrows of rodents who didn't dare crawl out of their holes for a long time after. We raced like no one had ever raced before.The steppe, that sly fox, pretended to be an innocent fool. The steppe said, “I'm like Adam: I don't even know my own name.” But its grass harbored the tracks of thousands of armies and the heels of Herodotus, the crunch of Trypillia vessels, and the smell of Scythian hemp, Roman coins, clay figures of wolf people, the chevrons of Denikin's army, glass from the Chekists’ ruby stars, traces of uranium from flying saucers. I threatened it: “Steppe, show me your layers, or I will burn you, plow you under, flood you.” But it just replied: “I'm like Adam: I don't yet know my name.”I lost geography as if it were a silver coin. It fell out of my pocket and rolled through the feather grass that blanketed the steppe in white foam. The open space ahead was so endless that the whole world might as well have been steppe. If people ended up here from somewhere else, they would conclude they were on another planet. The coin fell and became an argentum, became one with the ring on the hand of the princess who had one green eye and one blue, with the twisted candlestick at the monastery on the other side of the steppe, with melted ingots. It broke down into simpler elements, simpler and simpler yet. The horse carried me spreading the seeds of northern plants to the south, just as southern riders had once brought flowers and weeds to the north. And then I turned back. Just as I had no geography, I had no time. Every night I fell asleep with the thought that the next day I would again race. Through all spacelessness, all timelessness. I exchanged one horse for another, got on a train, on a boat, traversed forty versts on foot—in rain that brought the river up to the road, in heat that overturned cattle. The earth I walked on became mine. Mine was the water in the lakes and springs, clean water, dirty water, enlightened water, contaminated with oil, stinking of algae, of fish that died in wells, stinking of the memory of atrocities, water as clean as broken bread. The water did not become Alina.I was doing this for her: I got the basturma out from under my saddle, sodden with the horse's sweat, sliced the throat of a rich man whose daughter I had danced with at a ball, climbed into a vat of beet juice and took a sugar bath, carried out the expropriation of the savings banks, wiped the sweat from my face with my shirt—and the cloth turned red; I didn't know from what. If it was someone else's blood, I didn't care; if it was my own, even less.We mostly came across Reds. We scraped them up like old red paint on a door in order to repaint the boards black. Black looked better. Red is tasteless, but black has style. Healthy men died before us of myocardial rupture like bunnies found in the nest. The ones whose hearts were sewn of steel wire envied the deceased. Seizing estates, banks, distilleries, and prisons reminded us of gathering in the harvest. If you're too lazy to pick an apple, you can shake the tree; some of the fruit gets bruised when it falls. We seized buildings like we were shaking apple trees. No one picked the fruits, we just shook: shook under the beds, under the tables, behind the curtains. No, there was no picking. We just shook until the red juice spurted from the apples.Near the Khorol River with Father Makhno and me in charge, we captured sixteen machine guns and four cannons, as well as five hundred prisoners who immediately came over to our side. The villagers voluntarily gave us bread and cheese, chickens and kvas. People joined us. The front of the machine-gun cart said “You can't run,” and “You won't catch us” at the back. We took factory after factory. Millions of karbovantsi, thousands of poods of sugar, weapons. We smashed the telephone exchanges and captured the telegraphs. We made alliances with some and then with others. Lenin, Wrangel, Frunze, the Germans, Chinese, Australians, Kaiser Wilhelm II, Cleopatra, Maria Theresa Walburga Amalia Christina. We ran the steppe. There were a hundred thousand of us. There were three hundred thousand of them. There were three hundred thousand of us. There were a million of them. There were two million of them. We were all of humanity. We were so many that we were none.The nobles’ estates were long ago forsaken. In the people's deepest trunks lay silks and guipure laces that were once perhaps used only to cover a table. Five steps from the barn in the direction of the pear tree, some silver candlesticks are buried; there's a plaster figure of an angel in the chicken coop, covered with shit and feathers.I was reluctant to be going to my home, but I didn't see any way out. Fate intended me to be a different being from the one I was before.Here my grandfathers and great-grandfathers were born. Here the ones who caused my grandfathers and great-grandfathers to flee had stopped. When we were still far off I noticed that someone was in the house. It was our men—Skorsky had brought them here, about twenty in all. I asked Sanko, whom I had walked with side by side more than once, where the doctor was now. All the men answered that he was around somewhere, but I didn't see him that evening.In 1918, the spirit of my great-grandfather Stepan, along with my mother and uncle, had gotten into a britzka and scrambled off to Paris, to Napoleon, against whom my great-grandfather had fought with the Cossacks, to whom the Russians promised to return self-rule. Following him in the cart went the soul of Grandpa Oleh, who lost a finger when he cut down the old linden near the house; his second finger was blown off by a cannonball near Balaklava, and later his entire hand was cut off by some Turk. Next went the spirit of my father, also Stepan, who did not take part in any war but died of measles at the age of forty. They all got the hell out of here. First, they went to Kyiv, led by my mother, Tamara Makarivna, in order to collect Uncle's family and me, their son. And their son, it turns out, has now come back to rob his own home (I didn't drive my war buddies away, did I?). It's a shame that I didn't know where the bathtub was, or whatever they bathed me in when I was small. It would have been good to walk through the ranks of anarchists with that basin and tell them all to spit into it.Remembering every room, I carried Alina upstairs to my mother's bedchamber. There was no longer furniture or pictures, only bare walls. The bed and mattress remained, but that was enough. Mother hated noise, so she set up her room far away from the running in the halls and the creaks on the stairs. I adjusted the mattress; in a gap, looking like a stalk of wheat, there lay a gold bracelet that she lost in the haste and that the thieves could not find in the mayhem. I tucked it into my pocket.The place could still be saved. It was strong, built under the leadership of my grandfather, who knew how to do it right. He built a sawmill, a gristmill, a dress factory (today it's probably been ransacked, maybe even by our own men).Alina had a complete, displaced break in her right fibula. We needed water first. I went downstairs—the guys were dragging out the piano like an old cow to the slaughter.“What are you doing with that?”“Taking it out.”“Why?”“What's it to you? We want to have fun.”“Can you play?”“We're not your bourgeois lily-handed bitches.”They couldn't play, but they were famous at destruction. “Noise is the music of the new time,” one of the smarter among them might have said. “But noise is the opposite of music. Just as a rose is the opposite of your ugly mugs,” I'd have responded if there was anyone to say it to. I could also have said that this was a Bosendorfer grand piano, that it was very valuable—but do the guys not deserve such a luxury?“Why are you so boring? We're relaxing.”“Then let me play a little first.”“Go ahead, but fast. One-two.”So I played. As before. My fingers ran up and down the black and white keys, which weren't simply keys of these, the simplest, colors. These were the keys that remembered my fingers specifically—achieved by that slovenly German Katerina, our governess. She knew a bundle of languages, could play the piano, and was interested in the latest scientific discoveries. But she had not an ounce of sympathy for anyone who couldn't master anything on the first try. More than once she hit my pinkie against the black key that remembered every one of its four thousand touches. She would pound it on the key and shout, “Si bémol! Si bémol,” and later bang my fingers and translate, “B flach! B flach!”I played. I could not expose myself, so the only thing I could do was believe in miracles. What if these coarse men saw value in this bit of furniture so unintelligible to them? And what if they didn't destroy it, this emblem of my childhood, my land, my air, which I could protect in no other way? My air. My water.“Shchedryk, shchedryk, shchedrivochka,” one of them who recognized the tune began to sing along.“Look at you.” They did not expect music from me, who had until recently been drinking blood like water.They said, “Again, again!”A group of curious men gathered around me. They were ordinary farmers, thieves, and recidivists, peasants and workers, everyone except for Skorsky. They needed this music as they needed baths. The music cleansed them from the inside, perhaps. They had not heard anything besides the whistle of a bullet, the neighing of a horse, or the knocking of a chisel and the whirring of a saw, amputating limbs, for a long time.But it could not go on long. I did not close the piano lid, just stood and went to fetch water for Alina, leaving the unfinished song for later. The well was to the north—that is, at the “Head.” My father once promised to give me a compass if I could learn to identify the ends of the earth by means of the sun. And to make it easier to remember, I gave each one of them a name: the east where the day begins was “Right” (my right hand), the west “Left,” the north “Head,” and the south “Feet.” Back when I could still do whatever I wanted all day long, I would wake in the morning and say: I'm going to the Feet. The mound was at the Feet, Left had the river, Right had the forest. It was only to the Head that I rarely went, because a village was located there. When the villagers saw me, they would speak in whispers and avoid the master's son.... I wiped her brow and her burning, sunken cheeks. I lay down next to her to feel the heat of her skin.When the fire in Alina calmed slightly, I went out into our orchard. My father had once been given a gift from Japan—a tulip tree that blossomed with yellow-green flowers. It had to have grown in the time that I was away. It would have been fatal had it been cut down. I again took the stairs down into the drawing room and came across nobody—they had all disappeared in search of food or were hidden away in their burrows. In the middle of the hall, like an opened rib cage, was the piano, irreparably shattered.B Flach! B Flach!Translation © Ali Kinsella 2022. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:"I'd Love to go Off the Grid and Never Come Back"AlishaDisclaimers. The author has chosen to disclose only her first name. All other names have been changed to protect the privacy of the individuals mentioned.I have been a nurse for 18 years. I have dealt with death. I have performed CPR, closed eyes, called families, and bagged bodies. I have taken decedents to the morgue. I knew what I (...) signed up for when I became a nurse, but nothing prepared me for the 2020–2022 pandemic years, and the havoc wreaked on my mental, emotional, spiritual, and physical health. I was then in a managerial position. Patients' accounts of tragedy and families' sorrow, confusion, denial, anger, regret, and fear came across my desk daily at the hospital, nightly to my phone, and over the weekend while at home. In March of 2020, I took responsibility for managing the hospital's morgue, an experience that proved to me that death is no respecter of man.The morgue had the capacity to hold five decedents. It was my responsibility to ensure that we had space for the decedents that were coming in droves. Though our hospital was hit disproportionally by COVID-19, we were unable to secure a refrigerated truck for the overages. Instead, we had to transfer our overflow across town to another hospital no matter the time of day or night. The funeral homes were overwhelmed and could not meet the mass demands, which caused major delays in picking up decedents from the hospital. Most funeral homes took them in body bags straight to the crematory or the cemetery for burial. Many would not open the bags to confirm identities. Instead, they trusted the information I wrote on the [End Page 77] bag in black marker and information on the ID tag attached to the zipper.As the deaths increased and more transfers were made, my social work supervisor Audi and I could barely keep track of the decedents—let alone which families we had reached. We created a process and checklist that had to be signed off before any transfers were made. My director, who supported us, encouraged me to train others to help. However, I felt an intense duty to own this process because of how easy it could be to misidentify someone. Families were losing loved ones daily. They could not be by their side as they took their last breath. The next contact the family had was picking up the decedent's ashes or burying a closed casket. I refused to be responsible for causing additional suffering by losing a loved one's remains. When I made the decision to control the process, I never dreamed I would do this job for three years, nor did I realize the trauma it would cause.One day, a lady named Pam asked us if she could see her mother in the morgue. "Of course not!" I thought. We were not opening body bags for any reason. When I spoke with Pam, she explained that her son had been shot and killed and that her mother witnessed his death. Pam's mother suffered a fatal heart attack after witnessing her grandson's murder."Ma'am, give me a moment," I said. I reviewed the decedent's chart to verify the information and considered what to do. After discussing Pam's request with Audi and my director, we decided to make an exception for this extenuating circumstance and allow Pam to see her mother. Audi and I viewed the decedent to ensure she was presentable. I closed her eyes and cleaned her. When I closed her eyes, a little fluid came out. When we brought Pam in, she noticed and wiped away her mother's "tears," lovingly looking at her. When walking Pam to the front door, she told us about her other son, who had also passed away recently. Remember, we were not supposed to touch anyone at that time "out of an abundance of caution," but with her heart-wrenching situation, we hugged Pam anyway.By the end of April 2020, Audi and I had monitored nearly 100 deaths, coordinating with funeral homes to... (shrink)

This paper puts forward an argument for stakeholder rights. It begins by exploring two major answers to the question, 'in whose interests should the commercial company function?'. One claims parity for other stakeholders alongside the shareholder on the basis of a theory of property rights, and another on a theory of citizenship. Each of these answers, it is argued, fail to convince. The way forward is to recast the initial question, not asking in whose interest the company should function, but (...) which type of interest, potentially located in any sort of person, might the company serve. That interest is identified and distinguished from others that people affected by corporations might have. These distinctions then provide the basis for an argument in favour of enfranchising two sorts of individual: sovereign stakeholders, in charge of monitoring the formulation and revision of company objectives; and secondary stakeholders, who along with those in the first category monitor the means used to achieve those objectives.The paper concludes that these distinctions should lead us to reconsider other elements in the corporate governance debate, such as the nature of a director's fiduciary duty; and the difference between democracy in corporations and democracy in the wider society. (shrink)

Must CEOs Be Saints? Contra Moriarty on CEO Abstemiousness by Robert KolbIn this journal, Jeffrey Moriarty argued that CEOs must refuse to accept compensation above the minimum compensation that will induce them to accept and per­form their jobs. Acting otherwise, he maintains, violates the CEO’s fiduciary duty, even for a CEO new to the firm. I argue that Moriarty’s conclusion rests on a failure to adequately distinguish when a person acts as a fiduciary from when she acts on her own (...) account as a person. Further, Moriarty’s argument assumes that the CEO knows this minimum level of compensation. However, we learn the suitability of compensation only through the market process of wage negotiation, not through some process of introspection. I conclude that a CEO who abstains from interfering with the board of directors and its compensation com­mittee is morally free to negotiate for the highest wage available. (shrink)

The managers of colleges and universities have to make decisions on a wide range of issues with regard to goals and how they may be pursued. “Managers” refers to such positions as the president, provost, vice president dean, and director of a university. This paper lays out the theoretical basis for the right answer for these decisions. It does so by setting out the fundamental function of an academic institution, linking this function to a duty, and explaining how to (...) satisfy this duty in hard cases. This article’s thesis is that university managers have a duty to shareholders alone. Shareholders are those who own the university. This duty is satisfied when managers satisfy the fundamental project shareholders assign to a university. My overall argument supports two theses: the shareholder theory is true and university managers’ duty is to satisfy the fundamental function shareholders assign to a university. The argument for the first thesis rested on the notion that a university needs a fundamental function if managers are to have a defensible criterion by which to make decisions and that the shareholder theory best accounts for that function. Along the way, the stakeholder theory were found to be inadequate. The second thesis applies the first thesis. The article then considered some objections. With regard to the shareholder theory, one objection is that the shareholder theory suggests that a manager owes duties to a university’s owner, and not its students, and this is distasteful. A second is that on the shareholder theory, a university can have as a fundamental function something like maximizing the endowment associated with the university, maximizing profits, or promoting a Christian lifestyle, rather than focusing on creating or distributing knowledge. A third is that a university manager has role-based duties. None of these objections is fatal to shareholder theory. (shrink)

Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty set out that in carrying out the duties assigned to it by Article 89 and by provisions adopted under Article 87 of the Treaty, the officials authorized by the EU Commission were empowered inter alia to enter any premises, land and means of transport of undertakings. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles (...) 81 and 82 of the Treaty has expanded Commission’s powers stating that Commission can by decision order an inspection to be conducted in any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned. Such an expansion of the investigative powers of the Commission raises a question of the balance between effectiveness of the EU competition law and a person’s right to privacy, which is guaranteed to everyone by the Article 8 of the European Convention on Human Rights. Nevertheless this right is not absolute and the conditions for the possible limitations of the exercise of it are enshrined in paragraph 2 of the same article. For this reason the aim of this article is to find out whether Commission’s power to carry out searches in private homes meet the requirements set in Article 8(2) of the Convention, i.e., whether the Commission’s power to conduct such searches could be justified under the ECHR Article 8(2). In this study, the authors analyse the Commission’s extended investigative powers, clarify what is covered by the concept of “privacy”, evaluate the requirements set in Article 8(2) of the Convention, analyse conditions of exercising Commission’s extended investigative power and thus qualify if the latter satisfies the requirements set in Article 8(2) of the ECHR. (shrink)

This textbook offers a unique and accessible approach to ethical decision-making for practicing pharmacists and student pharmacists. Unlike other texts, it gives clear guidance based on the fundamental principles of moral philosophy, explaining them in simple language and illustrating them with abundant clinical examples and case studies. The strength of this text is in its emphasis on normative ethics and critical thinking, and that there is truly a best answer in the vast majority of cases, no matter how complex. The (...) authors place high trust in a pharmacist’s moral judgment. This teaches the reader how to think, based on ethical principles, not necessarily what to think. This means navigating between the two extremes of overly theoretical and excessively prescriptive. The cogent framework given in this text uses the language of competing duties, identifying the moral principles at stake that create duties for the pharmacist. This is the balancing act of normative ethics, and of deciding which duties should prevail in a given clinical situation. This work presents a clear-cut pathway for resolving ethical dilemmas encountered by pharmacists, based on foundational principles and critical thinking. Presents a clear-cut pathway for resolving the ethical dilemmas encountered by pharmacists, based on foundational principles and critical thinking. Jon E. Sprague, RPh, PhD, Director of Science and Research for the Ohio Attorney General. (shrink)

ABSTRACT:Debates about the ethics of executive compensation are dominated by familiar themes. Many writers consider whether the amount of pay CEOs receive is too large—relative to firm performance, foreign CEO pay, or employee pay. Many others consider whether the process by which CEOs are paid is compromised by weak or self-serving boards of directors. This paper examines the issue from a new perspective. I focus on the dutiesexecutives themselveshave with respect totheir owncompensation. I argue that CEOs’ fiduciary duties place (...) a moral limit on how much compensation they can accept, and hence seek in negotiation, from their firms. Accepting excessive compensation leaves the beneficiaries of their duties (e.g., shareholders) worse off, and thus is inconsistent with observing those duties. (shrink)

Recent work in ethical theory brings into question the ability of master-principle theories (utilitarianism, deontology, rights and duties, and social contracts) to provide guidance for normative behaviour and ethical reflection. Business ethics education and corporate ethics programmes are still heavily influenced by these theories which have been found to be deficient in adequately dealing with ethical reflection and guiding practice. There appears to be a dissonance between the fields of ethical theory and business ethics education. This paper explores this (...) dissonance by developing a business ethics pedagogical model which compliments master-principle theories with an enhanced or enlightened virtue ethics that incorporates the notions of pluralism, particularism, and intuitionism. Practical insights are provided through interviews with a sample of thirty-three directors in New Zealand. (shrink)

Inscriptions of the Epigraphic Museum in Athens (II) This article, a continuation of BCH 132 (2008) pp. 473-553, presents a series of fragments studied and joins made at the Epigraphic Museum in Athens by D. Peppas Delmousou, Honorary Director of the Museum. The inscribed monuments are bases, herms, or stelae. The honorific inscriptions and dedications concern roman emperors, Augustus and Hadrian, Romans fulfilling administrative duties, known or unknown otherwise, Athenian aliens or roman citizens, a few unknown and some (...) women, such as Vibullia Alcia, mother of Herodes Atticus, or Paramona, or priestesses of a Kourotrophos goddess and of Demeter. Several monuments had been consecrated in sanctuaries, notably at the Asklepieion, the priest and the zákoros of which are occasionally mentioned. (shrink)

This paper examines the ethics of contemporary managerial compensation in the context of executive stock options. Economic considerations would dictate that executive stock options should be adjusted to eliminate the effect of overall stock market movements which are beyond the control of the executive. However, in practice, most executive stock options are not adjusted to control for these outside factors. Agency considerations are the most likely culprit. Adjusting for the influence of outside factors, such as a generally rising stock market, (...) from executive stock options sets a higher bar for managers to reach. Furthermore, traditional accounting standards permitted firms that did not adjust options to avoid reporting options as expenses. This presents CEOs and boards of directors with a major ethical dilemma. On the one hand, their duty to their shareholders and stakeholders dictates that executive stock options should be adjusted to eliminate outside noise from unrelated movements in the overall stock market. However, financial statements are presented in the language of accounting. If the overwhelming majority of the users of a language define a particular item in one way, then to deviate from the norm implies that the recipient of such a deviant statement may not properly interpret the statement. Likewise, if the standard practice is for firms to use unadjusted options and thus under-report expenses, to deviate from this industry norm risks that users of financial statements would not properly interpret the financial statements, with perhaps negative consequences for the shareholders. In short, if "everyone else does it," then it could be wrong for an individual firm to deviate from the norm as that would harm the shareholders. (shrink)

Companies are beginning to recognise the concept of Corporate Social Responsibility as presenting a new business model and an opportunity for building innovative forms of competitive advantage. Boards are instrumental in shaping and overseeing such strategies and active engagement around what it means to be a responsible and responsive enterprise can strengthen the Board's potential as a strategic influence on long-term value creation. Yet many companies align with Friedman's contention that adopting and practising CSR is a distraction from their core (...) obligation, which is to act in their shareholders' best interests. Based on directors' perceptions, the paper examines responses by Boards to socially related aspects of their governance role and reports on their external orientation and receptiveness toward wider social obligations. The findings suggest that these Boards hold a narrow view of their fiduciary duty, which is closer to the shareholder model than the stakeholder approach to corporate governance. (shrink)

This paper offers a new model of corporate purpose and applies it to the emerging legal form of the benefit corporation. First, corporate purpose is applied to the two currently dominant models of shareholder and stakeholder focus. Both are found inadequate to promote positive social and environmental impact because they remain anchored in a profit-seeking corporate purpose. Second, we offer an alterna­tive model of Integrative Corporate Purpose. Third, we apply ICP to benefit corporations as an ethically superior model for promoting (...) the common good. The benefit corporation offers four advancements: positive duties to stakeholders; legal protections for managers and directors to manage for the common good; a requirement to have a purpose geared toward public benefit; and required report­ing of benefits to stakeholders and the environment. The implications of benefit corporations are discussed within the larger arena of corporate social responsibility. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Pride in Giving Care and Other Life Lessons from Certified Nursing AssistantsDelese WearMy father spent the last three weeks of his life in a hospice care facility. It's funny, now reading these narratives written by Certified Nursing Assistants (CNAs), that I can't picture him without Gloria, the CNA who worked the 7-3 shift, floating quietly in and out of his room, tending to him, tending to us, speaking quietly (...) to Dad even when he was no longer conscious, offering us conversation, often her affectionate observations of Dad and curiosity about his life, sometimes about life on the "outside," a kind of respite from total attention on Dad and our grieving. I remember the smell of the lotion she rubbed on his body. I remember no other caregivers in his room; there obviously were, but I can't picture them now, only Gloria. We never spoke directly to the medical director of the hospice. He was a phantom, rounding at 5 or 6 a.m.; we came to believe he did so to avoid speaking to families.Those three weeks led to my conceptions about CNAs—the nature of the work they do, the kinds of people who do such work, the awesome responsibilities involved in such work, and not least, the physical and emotional resiliency of those who undertake such work. My and my family's often recited, "How does she do this every day?" was answered time and again in the narratives written by CNAs in this issue of the journal.But before moving forward, I want to make note of how I will refer to the authors of these narratives. The name of one's occupation, the title one uses, and how others refer to your occupation, is obviously meaningful. If the snapshots of CNAs provided in these narratives are somewhat representative, we find those who refer to themselves and their occupation as nursing assistants, nurse assistants, Certified Nursing Assistants (CNAs), State Licensed Nursing Assistants (SLNA), or simply aides, to name a few. While it is beyond the space offered here, I want to make note of this, recognizing that titles/labels matter, and to acknowledge that status. As CNA Nanci Robinson notes, "most of us are certified... I wouldn't call an LPN a PN and leave out she's licensed." Passage of the Omnibus Budget Reconciliation Act of 1987 (OBRA 87), required each State to establish State-approved nurse aide training programs and establish requirements for nurse aide competency. Thus, I will refer to all the authors here as Certified Nursing Assistants (CNAs). I do wonder how significant of an issue these variations of titles are within the larger nursing assistant culture, and how it may contribute to disparities regarding pay schedules, duties, status, training and other relevant issues among all nursing assistants.In spite of problems, stressors, and other quality of life issues for CNAs, most of them spoke with pride and meaning regarding what was for many their "life's work," similar to what one might expect to find in other care giving occupations. Some spoke of a "love of the work," its "rewards" and "joys," [End Page 165] and the intense satisfaction of "making a difference" in patients' or residents' lives. These attitudes were not vague abstractions but were grounded throughout the narratives in rich examples of the affirming aspects of their work.It appears that much of the pleasure comes from what many refer to as the "hands on," "direct care," or "front line" nature of the work—often what other health professionals might view as things they would not want to do. And of course these other professionals—registered nurses, occupational therapists, and physicians—could make the same claim when describing the "hands-on" joys of their work. But the differences, it would seem, are profound between these other caregivers and CNAs. The CNA narratives report fundamentally intimate and often daily relationships with their clients/residents/patients. Danny Reed describes the "delight" he feels "in restoring dignity to every human in need of it regardless of cause," referring to himself as a "participant observer in a caring relationship," not as a "detached clinician." Many spoke directly... (shrink)

Grown up as versatile people, Ottoman intellectuals had holistic views towards science, art and literature, and wrote in a variety of disciplines. It was not uncommon for a mathematician to write in philosophy, for a ḥadīth (report of the words and deeds of the Prophet) scholar to write history books, for a statesman to be busy with calligraphy or for a Shaykh al-Islām (the highest ranking Islamic legal authority) to have a “Dīwān” (a collection of poems). However, possibly due to (...) specialization-based scientific understanding of modern researchers, one side of these people generally came to the fore and some capabilities of them remained unknown. Grown up in Istanbul, capital town of Ottoman Empire, in late 16th and early 17th centuries, Okchuzāde Mehmed Shāhī was also one of these personalities called “hezār-fan” (polymath). Mehmed Shāhī served in top level offices of the State, was busy with art and literature, and became known for inshāʾ (composition) kind of works written with elaborate prose. Mehmed Shāhī earned a deserved fame with these capabilities and he was also a poet. Indeed, due to poems he wrote in his early ages, he was noticed by some biography writers about poets and his poems were mentioned in some anthologies. In addition to poetry anthologies, he had some classical works, and some couplets, quatrains and verses included in his prose works. In the present study, a collection and evaluation of poems by Mehmed Shāhī were presented.Summary: Ottoman statesman Okchuzāde Mehmed Shāhī was born in 1562 AD (970 AH) in Istanbul. He was son of Okchuzāde Mehmed Pasha (d. 995 AH/1587 AD) and served as Kātib (scribe), Defterdār (treasurer), Reīs-ul-kuttāb (chief of the scribes), Governor General of Cyprus and Aleppo. His real name was Mehmed, but he was mentioned in different sources by names such as Mehmed Bey, Mehmed Shāh, Mehmed Shāhī, Mir Mehmed Shāhī and Okchuzāde Mehmed Shāhī. Starting at a young age, he was well educated in madrasah (college). With his vibrant character and superior genius, he came to the forefront among his peers. He was educated under the supervision of Māʿlūlzāde Nakīb Efendi (d. 993 AH/1585 AD) and graduated in 988 AH/1580 AD at the age of 18. When Nakīb Efendi became Shaykh al-Islām in the same year, he started his official duty as Dīwān-ı Humāyūn (imperial council) secretary. With the duty of Executive Assistant, he became the secretary of Damad İbrahim Pasha who started to his office in 1004 AH/1596 AD. He worked under the patronage of the Pasha until Pasha’s death in 1010 AH/1601 AD. Mehmed Shāhī succeeded Musa Chelebi as Reīs-ul-kuttāb and Basdefterdar (chief treasurer) in 1005 AH/1596 AD, and was appointed as title deed and cadastre director in 1006 AH/1597 AD. However, he was dismissed from this duty and was included among the officials to join military campaign. He was prosecuted and tried for imprisonment for the accusation of coming to Istanbul without permission. He succeeded Hamza Pasha as Nishanci (high-ranking bureaucrat) in 1007 AH/1599 AD and was assigned to military campaign. Mehmed Shāhī was dismissed from his duty in 1008 AH/1600 AD. Although he was reappointed to his duty in the same year, he was dismissed again in 1010 AH/1601 AD. While Hamza Pasha was reappointed to his office, Mehmed Shāhī was not assigned to any duty. He succeeded Murad Efendi as the Defterdar of Egypt in 1013 AH/1605 AD. After this duty, one of the vassal Sanjak (administrative district) Beyliks (principalities) in Egypt was given to him. When vassal Sanjak Beyliks were abolished by Kara Mehmed Pasha, Beylerbeyi (governor) of Egypt, in 1016 AH/1608 AD, he returned to Istanbul. He was not appointed to an office for a long time. In 1029 AH/1620 AD, he was appointed as title deed and cadastre director in 1029 AH/1620 AD, and became Nishanci again in 1030 AH/1621 AD. He served in military campaign to Poland, but was dismissed from this duty during the campaign. He was appointed as Nishanci for the fifth time during the second reign of Sultan Mustafa (1622-1623). He was dismissed in 1033 AH/1624 AD and retired. In early 1039 AH/1630 AD, he died at the age of 69 in Istanbul. His tomb is near Ekmekchioghlu tomb in the vicinity of Sunbul Efendi.What is known about his family is limited to his son named Vakʿi Ahmed Efendi (d. 1060 AH/1650 AD). Ahmet Efendi learned Naskh, Thuluth and tevkīʿi types of calligraphy styles from his father. He served as anthology writer for Shaykh al-Islām Bahāī Efendi. He died in 1060 AH/1650 AD when he was serving as teacher in Sulaymaniyah Madrasah. His tomb is around Shaykh Vefa tomb.In addition to his administrative duties, Mehmed Shāhī was also interested in poetry, prose, calligraphy, mysticism, ḥadīth and tafsīr (exegesis). Possibly also due to his dismissal of duties many times in his life, he produced many works. Among them are Aḥsan al-ḥadīth, an-Naẓm al-mubīn fī āyāt al-erbaʿīn, al-Maqām al-Maḥmūd, Tarjuma-i Tuḥfa as-ṣalavāt, Jāmiʿ al-ghāyāt, Mukhtār al-akhyār, Qānūn-i Jadīd-i Arāḍi, Munsheat ve Dīwān. Famed for his prose works, the author was also a poet. With his couplets which he wrote under pseudonym of Zaynī, he managed to get on the anthology of Kınalızāde at his twenties. He was celebrated with the expression of “Arrow of word from his bow of soul has reached the target of approval from masters; he is at a young age (at his twenties)”. Subsequently adopting pseudonym of Shāhī, the poet had some poems published within the works of Beyānī, Nevʿizāde and Mustaqimzāde as well as within his own prose works. Mustaqimzāde even mentioned that Mehmed Shāhī had a dīwān. Nevertheless, this work of him has not been found yet. A total of 30 poetry works of Mehmed Shāhī were found in various sources, except for his translations of 40 ḥadīth and 40 Qur’ān verses written in poetry. Of his 30 poetry works, 26 were written in Turkish and 4 in Persian. Various sections of ʿarūḍ (meter) were used in these works written as couplets, quatrains and verses. It could be stated that his poems rich in Persian and Arabic words had a rich rhyme frame. In his poetry works in which religious, literary, historical, legendary and mysticism themes were worked, concepts and figures such as Allah, the Lord, Messiah, Messenger, Risālet (messengership), intercession, Kāfūr al-Ikhshīdī (966-968), Mustaʿsim (d. 656 AH/1258 AD), Ibn Alkamī (d. 656 AH/1258 AD), Naṣīr-i Tūsī (d. 672 AH/1274 AD), Jamshīd, Keyumars, Uftade, Hudāyī, Majūsī, Kizilbash, Bayramī and muftī (jurist capable of giving a formal legal opinion). His poems were about intercession demand from the Messenger (PBUH), sin of serving to Persian, importance of an invention, praise of Uftade Sultan (d. 988 AH/1580 AD), effect of prayer, fate of administrator favoring his relatives, futility of envying the rich, importance of fighting with Zoroastrian, benefits of exhibition of sorrow, value of skillful people, resembling of the world to a bride with a thousand grooms, beauty of eloquence, ignominy of leaving chastity for lust, asking for forgiveness for sins, talent of understanding the words, not giving quarter to enemies, praise of Hz.ʿUmar, humbleness, value of lack of worldly things, sufferance due to the beauty of the beautiful, needing not to wonder why the beloved one is far away, evil of protecting the snot, richness of Arabic language, deeds of Anatolian fāḍils (virtuous), importance of endeavor in succeeding the closeness to God and respectability of ʿAzīz Maḥmūd Hudāyī (d. 1038 AH/1628 AD). Okchuzāde Mehmed Shāhī was an Ottoman statesman who also earned a well-deserved fame for his works written in inshāʾ (composition) genre of elaborate prose. In addition, he also had poetry works. Praised for the poems which he wrote in his early ages by anthology writers who included his poems in their anthologies, the poet also had some couplets and quatrains scattered among his own prose works. His poems in the form of couplets and quatrains within abovementioned works mostly were about religious, literary, legendary, historical and mysticism themes.Mehmed Shāhī was knowledgeable in tafsīr, ḥadīth, mysticism and calligraphy, and had good levels of Arabic and Persian. Writing poems in Persian, Mehmed Shāhī was decorated his prose works with Arabic expressions such as Qur’ān verses, ḥadīths and proverbs. It could be stated that such decorations made the language of his poems more difficult. Nevertheless, his poems are plainer and easier compared to his prose works. The poet who also had lyrical poems generally preferred ḥikamī (sapiential) style and wrote genres such as munacaat (prayer to God), shafaatnāme (intercession epistles), historical quatrain, medhiye (panegyric) and hicviye (epigram). His poems in anthologies were lyrical, those in Aḥsan al-ḥadīth and an-Naẓm al-mubīn were didactical and those in Munsheat were epic. Based on an evaluation of these poems, it could be stated that he was a poet with a style, though not a poet of first class. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Oldest and Most Respected Uniform in the World1Zelig R. Weinstein“And all the peoples of the earth shall see that the name of the LORD is called upon thee; and they shall be afraid of thee.”(Deuteronomy 28:10)Rabbi Eliezer the Great says that this verse alludes to the Tefillin Shel Rosh, the small leather box containing Biblical verses that are worn by Jewish men on their head. During Talmudic times (...) and for centuries after, devout Jewish men would wear Tefillin the entire day. This practice is now only rarely seen. Since the 1960s, there has been a resurgence of public display of one’s adherence to traditional Jewish practices. It is increasingly common to see Jewish men wearing a yarmulke at work and in public spheres. There are perhaps thousands of Jewish doctors who don’t hesitate to wear their yarmulke in their places of practice–hospital, clinic, private practice.In the 1980s I joined the staff of the Department of Radiology at the Bethesda Naval Hospital as the Director of Neuroradiology and Interventional Radiology. As the hospital’s Neuroradiologist I presented the radiological findings for the cases presented at the bimonthly “brain cutting” sessions. These sessions were well attended by staff, residents and medical students from the Departments of Neurosurgery, Neurology, Neuropathology and Radiology. I was the only traditional Orthodox Jew at the hospital, clearly recognizable as such by the yarmulke I always wore (very unusual in the early 1980s). My yarmulke would provoke occasional good–natured kidding particularly from the neurosurgery staff and residents. [End Page 212]During one of these sessions, kidding about my yarmulke from a small group of residents was reaching a crescendo. The kidding came to a sudden halt when the Chief Resident of Neuro-surgery, a born and bred Louisianan, demanded everyone’s attention. When it quieted down he very sternly ordered everyone to carefully look at their uniforms. Everyone seemed perplexed but all followed suit. Almost a half–minute passed before the Chief Resident, with his thick Southern drawl, spoke. “Our [naval] uniforms are, at most, a couple of hundred years old.” He then pointed toward my yarmulke and said: “Dr. Weinstein’s uniform is thousands of years old and a lot more respected than our uniforms.”This was my initiation into the alluring, usually positive and unexpected fascination and respect that my obvious religiosity had on my patients, their families and my many colleagues during the almost seven years I spent at Bethesda.The story I will tell is very poignant. It involved the family of one of the most senior Chief Petty Officers of the United States Navy.Late one Sunday evening, I received a call from the Chief Resident, Dr. Steve Henning, informing me that the family matriarch had been admitted to Bethesda with relatively acute onset of significant neurological findings. The emergent workup confirmed the presence of a large mass, a meningioma, of the frontal lobe region with significant surrounding edema and mass effect. Neurosurgery requested embolization of the feeding vessels prior to surgery. The interventional procedure and possible serious complications were fully explained to the patient, her husband and her two daughters. Consent was signed and early Monday morning the patient was brought to Special Procedures to have the tumor embolized.Prior to the procedure I introduced myself to the patient’s family and spoke to them about the procedure. The patient’s husband and two daughters, one of whom was an active duty Navy nurse the other a minister of a fundamentalist church in the South, were very attentive and expressed concern about the procedure and its outcome. I tried to reassure them and told them I would speak to them during and after the procedure.All went well. Medically, the patient did well during and after the procedure. She was discharged from our care to neurosurgery. The patient and her family thanked us.After the patient left the Special Procedures area the Chief Technologist, Al, approached me and very cryptically asked if I was aware of what happened when the Chief Resident, Dr. Henning, spoke with the patient and family the night before. I was puzzled and replied, no. He... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:LettersMaxwell J. Mehlman, Susan R. Massey, Ronald M. Green, and Fred RosnerPhysicians and the Allocation of Scarce ResourcesMadam: We read with interest Dr. Pellegrino's commentary on our article in the December 1994 issue of the Kennedy Institute of Ethics Journal, and commend him for pointing out so well the different ways that law and ethics approach the issue of physician allocation of scarce resources.We wish to make one clarification. (...) Dr. Pellegrino states that we propose that fiduciary duties be abolished. Quite the contrary, our position is that fiduciary obligations are essential to the maintenance of trust—which we believe to be an efficient as well as an ethical element of the patient-provider relationship. If fiduciary duties are undercut, as we pointed out they are by the Oregon Medicaid legislation, then some other method of promoting trust must be established, and, as we point out in the article, it is difficult to identify what that method could be.Maxwell J. MehlmanandSusan R. MasseyThe Law Medicine CenterArter & HaddenCase Western Reserve UniversityCleveland, OHSchool of LawCleveland, OHReport of the Human Embryo Research PanelMadam: In the December 1994 issue of the Kennedy Institute of Ethics Journal, I reported on the controversy surrounding the work of the NIH Human Embryo Research Panel and the conclusions reached in its report, which was formally presented to NIH Director Harold Varmus on September 27, 1994. At that time, the report was to be reviewed by the Advisory Committee to the Director (ACD) until its next meeting in early December. I am writing to update your readers on the fate of the Panel's report.On the morning of December 2, 1994, following a previous afternoon of animated discussion, the ACD unanimously accepted the Report of the Human Embryo Research Panel. Panel members and members of the NIH staff who were present and had worked for nearly a year on the Report were gratified by this vote of confidence and by the strong support of NIH Director Harold Varmus.We had little time to enjoy this success. Within a matter of hours, the White House issued a press release in which President Clinton thanked the committee for its work and then, in a remark overruling one of the key recommendations in our report, stated: "I do not believe that federal funds should be used to support the creation of human embryos for research purposes, and I have directed that NIH not allocate any resources for such research." [End Page 83]As a Panel member and active participant in that day's events, my initial response was one of shock. I was particularly distressed that the President and his advisors chose a moment so late in the process to make their views known. Why had we worked for months, I asked, without a word of concern from the White House? Although Panel members were guided primarily by our perceptions of the ethical and scientific issues involved, some were close to the political realities of Washington and would have introduced these concerns into the Panel's deliberations.Within a matter of days, my own sense of outrage had diminished. First of all, it was clear that whatever the personal sources of the President's objections to the Panel's recommendations, this high level political intervention was inevitable. Less than a month before, on November 8, with the election of a majority House and Senate, the political environment for embryo research had changed dramatically. The previous June, 32 congressmen, most of them members of a minority Republican party, had signed a letter protesting the Panel's work. Now, one of the signers of that letter, Newt Gingrich, was destined to be Speaker of the House.Second, it became clear that the damage was not total. The President has forbidden NIH to support work involving the deliberate creation of embryos for research. Without exception, members of the Panel had come to the conclusion that some development of "research embryos" must be permitted to reduce the risks of new assisted reproductive technologies, to enhance scientific knowledge, and to develop new therapies for a range of serious diseases. All these... (shrink)

BackgroundDespite consensus about the importance of implementing shared decision-making (SDM) in clinical practice, this ideal is inconsistently enacted today. Evidence shows that SDM practices differ in the degree of involvement of patients or family members, or in the amount of medical information disclosed to patients in order to “share” meaningfully in treatment decisions. Little is known on which representations and moral justifications physicians hold when realizing SDM. This study explored physicians’ experiences of SDM in the management of paediatric patients with (...) prolonged disorders of consciousness (PDOC). Specifically, we focused on physicians’ SDM approaches, representations, and ethical justifications for engaging in SDM.MethodsWe used a qualitative approach to explore the SDM experiences of 13 ICU physicians, paediatricians, and neurologists based in Switzerland who have been or were involved in the care of paediatric patients living with PDOC. A semi-structured interview format was used and interviews were audio-recorded and transcribed. Data were analysed through thematic analysis.ResultsWe found that participants followed three main decision-making approaches: the “brakes” approach, characterized by maximized family’s decisional freedom, though conditional to physician’s judgment regarding the medical appropriateness of a treatment; the “orchestra director” approach, characterized by a multi-step decision-making process led by the main physician aimed at eliciting the voices of the care team members and of the family; and the “sunbeams” approach, characterized by a process oriented to reach consensus with family members through dialogue, where the virtues of the physician are key to guide the process. We also found that participants differed in the moral justifications sustaining each approach, citing the duty to respect parental autonomy, to invest in an ethics of care, and to employ physicians’ virtues to guide the decision-making process.ConclusionOur results show that physicians come to perform SDM in different ways, with several representations, and distinct ethical justifications. SDM training among health care providers should clarify the ductility of SDM and the several ethical motivations underpinning it, rather than insisting on the principle of respect for patient’s autonomy as its only moral foundation. (shrink)

Artists have always been appreciated for the artifacts they have produced and have been rewarded with some gifts as a result. In different periods of history, heads of the state have given awards to appreciate and reward the artifacts they have liked. These awards have been given names such as order, certificate, favor and medal The qualities of these gifts have varied according to the power of the state or the value it places on art. The Ottoman State, our field (...) of research, has also given awards according to the situation or person the sultan appreciated. Ottoman Sultans have given state orders, medals, titles, and awards to local or foreign people for situations worthy of appreciation in the eyes of the state. These awards given by the state have provided the recipient with both material and spiritual prestige. People have started competing in their fields to be honoured with these awards. This situation has become a kind of encouragement for art and artists. In this way, both the quality of the artifact the artist has produced increases and it has an encouraging quality for the artifacts the artist will make later. Musicians are also among the artists who were given the awards mentioned above. These awards, granted by the sultan for a piece they played, sang or composed, are of different degrees and characteristics. The recipients of the awards consist of local or foreign musicians. There have been people from all levels of the state in terms of position and rank and also artists who were deemed worthy of these awards due to the musical pieces they performed, even if they did not have an official duty. There are records of these awards given by the state in the archives. In this study, 138 documents related to the subject in the Directorate of State Archives/Ottoman Archives were identified, and the records of these documents are listed. Our research was limited to Ottoman archive documents. In addition, information and document examples about musicians mentioned in the papers are given without distinguishing between local and foreign. (shrink)

In this paper, we examine whether ethics officers are able to perform their assigned duties independently of organizational management. Specifically, we investigate whether inherent conflicts of interest with company management potentially hinder the ability of ethics officers to serve as an effective monitor and deterrent of unethical activity throughout the organization. As part of our analysis, we conducted 10 detailed phone interviews with current and retired ethics officers in order to determine whether practicing ethics officers feel the need for (...) additional independence protection from management. We propose that the current system in which ethics officers report to management must be changed in order for ethics officers to effectively perform their jobs. Specifically, we maintain that ethics officers should (1) be hired by, (2) be fired by, and (3) report directly to the corporate board of directors rather than company management. Such a change in the reporting environment would greatly enhance the independence of ethics officers. (shrink)

Cosmopolis A Review of Cosmopolitics -/- 2015/3-4 -/- Editorial Dominique de Courcelles & Paul Ghils -/- This issue addresses the general concept of “spirituality” as it appears in various cultural contexts and timeframes, through contrasting ideological views. Without necessarily going back to artistic and religious remains of primitive men, which unquestionably show pursuits beyond the biophysical dimension and illustrate practices seeking to unveil the hidden significance of life and death, the following papers deal with a number of interpretations covering a (...) wide field extending from belief to theory, from emotions to concepts, from the wisdom of personal experience to the most sophisticated doctrines. Spirit and spirituality are indeed many-faceted notions. They may refer to the intricate world of the interacting spirits which inhabit living beings in animistic traditions, without excluding a “grand force” linking human beings within a dynamic whole on which their very existence rely . They also bear upon more atomistic and either/or approaches of Western philosophy, which have become embodied in Cartesian dualism against a monotheist background, to the point of freezing the essence of individuals and culminating in the extreme individualism that characterizes our contemporaries. However, this equally refers to the opposite conception of materialism, across times and cultures, from ancient India and Greece (Cārvāka, originally known as Lokāyata, or some Buddhist doctrines for the former, Democritus or Lucretius for the latter) to more contemporary materialistic schools, whether modern or postmodern. -/- The following papers look at the contrasting forms of the philosophy and spirit of the human factor set into a whole, with no artificial disjoint between the psychical and the physical levels, as Wittgenstein put it: “And how can a body have a soul?”. This approach is not unrelated to the notion of anthropocene examined in a recent issue of Cosmopolis, with provides another comprehensive framework open to a spiritual life emerging from the very environment that generated it. -/- *** The first section of this issue was edited by Dominique de Courcelles, director at the National French Research Centre (CNRS), whom we wish to thank for collecting relevant studies relating to the religious and political questions, with a view to focusing on the war of ideas inevitably waged behind images, concepts and perceptions, taking an asymmetrical approach. To the extent that they are mindful of global/local interactions and include representations, opinions and beliefs, such disciplines as philosophy, philology, history and social sciences can provide useful studies accounting for new practices in geopolitics and a fair diplomacy. -/- In her introduction, Dominique de Courcelles first poses the question of how the religious and political spheres interrelate, with their corresponding religious demands and humanistic values. She then suggests that the right question today may be breaking with the philosophy of human rights concerned with the defense of human beings against the hazards of arbitrary politics or the instrumental use of religion, in favour of a fair philosophy of humankind, a new humanism. This would consist in recognizing a common loyalty of all towards one interhuman, not only interstate community, to protect it from both the autonomy demanded by individuals and the instrumental use of minorities. -/- Considering the fact of diversity, so important today in terms of both politics and religion, Abdelhai Azarkan looks at the conditions under which tolerance could obtain the double status of right and duty. He revisits to two philosophers, John Locke and Voltaire, who thought about it from the historical reality of religious wars. The former made tolerance into a right, basing his analysis on the political-legal level, while the latter saw tolerance as a duty, from an analysis based on ethical-political criteria. -/- Mathieu Guidère examines what he calls semantic denominationalism, a term which implies religious attributes and identities, whichever national loyalties or personal belonging they may have at the same time. Since the early 2000s, thie phenomenon has expanded tremendously, compounded by the “war on terror” and the over media-oriented terrorist actions. Denominational expressions act as formal names for ordinary and high-profile players in domestic and foreign policies of democratic states. These systems reveal a receding secularization, while the powerful comeback of religious identities signals the failure of nation-states and the weakening of the humanist spirit. -/- Barbara De Poli retraces the history of a contemporary jihadism claiming its Islamic essence and asserting the truth of genuine coranic principles via the war on infidels, with a view to restoring the Caliphate. After defining the term jihad, she shows that even if this contemporary jiadism is spreading in the Muslim world, it radically departs from Islamic law and the received use of the term jihad, in so far as it is rooted in the early radical thinking of Islamic ideologues in the 20th century, starting with with Hassan al-Banna, the founder of the Muslim Brotherhood. This current has been fueled by by international conflicts since the outbreak of the war in Afghanistan, in which the so-called Western countries bear a major responsibility. -/- Abderrazak Sayadi starts from the Tunisian experience to ask the question of humanist values and democracy within the relationships between the religious and political spheres. As a historian of religion, he is brought to demystify certain islamic principles and to paying attention to the reform of law, seeing the separation of religion and politics as a precondition to a successful democratic gamble and the establishment of a renewed humanism. -/- Dominique de Courcelles reminds us that getting a better knowledge of narrations and words makes it possible to better understand how logical and rhetorical thinking works for those who wage an asymetriccal war, re-enchanting and mystifying the world to better take control. As soon as 1932, an exchange of letters between Einstein and Freud made it clear that, in order to free man from fatality and war, education understood as culture was fundamental. Such illustrations as the exécution of Oussama ben Laden and the Caliph’s speech in Mossoul show that a premiminary analysis of images and words is essential to a fair diplomacy conducted by people from civil society, whose culture and wisdom allow justice and force to speak together and better resist war. -/- Marcel Boisard thinks that on the day the guns fall silent, exhausted by war, we will not return to the state borders that have prevailed for a century as an outcome of the Sykes-Picot agreement of 1916. It is time to prepare the “day after”, which will be a huge challenge. To this end, a summit of Middle-East nations is urgently needed to globally decide the fate of those peoples. On the condition that we know who the enemy is and accept to name it, to understand the history of the countries, groups and alliances, and to question any false or self-interested sense of certainty. -/- *** In the second section, Paul Schafer provides the author’s experiences to explain how culture, from the artistic to the biological, has the power to to open the doors to spirituality, from the inner self to the global environment. He asks himself whether a relative permanence of spirituality can arise from the specific moments that characterize it. Laurent Ledoux synthesizes the conclusion of a symposium held on 22 January 2015 on the links between philosophy and management, on the basis of the spiritual dimension conceived as “natural” and the answers it may suggest to the issues that face the organizations in a “contemporaniversal” world. Jacques Rifflet makes that question in a secular perspective, based on the wellsprings of personal commitment before it can be caught by any religious creed or scientific theory. In this sense spirituality, in alliance with reason, both inspires human consciousness and illuminates its destiny. Sami Aldeeb asks himself whether Islam can be reconciled with human rights. Caught between the belief in an absolute and final Word descended from the sky, and evidence showing that any religion is the creation of a given culture and a society situated in time and space, the Makkan and … contexts et médinois call for differentiated, if not opposite answers and exegeses. Bernard Carmona provides the outline of a dialogical framework, which is known to be a feature of debates between the various philosophical schools of classical India, exemplified here by the transdisciplinary perspective of debates within a Buddhist context. *** The articles not focused on the previous topic include a study by Landry Signé on China’s strategy, competing with the United States to control African resources. The author deals with the specific case of China’s rapprochement with Southern Sudan since Sudan was broken up. In the last paper, Goran Fejić and Rada Iveković, return to the essential role that women should play, and comments upon the role of some international legal instruments related in particular to the elimination of all forms of discrimination. The perspective is transnational and transethnic and is based on secular criteria, as regards nation-building and more generally society-building. Considering the persistence of widespread violence, whether in times of armed conflict or in times of peace, the question remains whether it is possible to fully implement rights and justice instruments. (shrink)

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)