The article deals with the constitutional right of a person to apply to court. While construing this constitutionally entrenched right of a person, one analyses the doctrine of the right of a person to apply to court, which was formed in the jurisprudence of the Constitutional Court of the Republic of Lithuania. The right of a person to court is entrenched expressis verbis in Paragraph 1 of Article 30 of the Constitution whereby (...) the person whose constitutional rights or freedoms are violated shall have the right to apply to court. The doctrine of the Constitutional Court derives this right also from the constitutional principle of a state under the rule of law. The right of a person to court is inseparable from other norms and principles of the Constitution, which are equality of rights, the right to compensation of damage, the right to a proper court process, etc. (shrink)

For the purposes of this article, the right to confidentiality of communications between a lawyer and a client (legal professional privilege) is analysed and understood as a rule under which, in judicial or administrative proceedings, the content of communications between a lawyer and his client shall not be disclosed; if this rule is breached, the content of the communications in question is not treated as evidence in the process. Legal professional privilege is related to several articles of the (...) Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights has found that the violation of the right of an accused to communicate with a lawyer without a third party departs from Article 6(3)(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms which entitles to defend oneself in person or through a legal assistant. This kind of communication also relates to the Article 8 of the Convention, which provides a right to respect for private and family life, home and correspondence. In the opinion of the European Court of Human Rights, according to the Convention for the Protection of Human Rights and Fundamental Freedoms there is no difference if a lawyer representing a client is a practitioner or not. However, when dealing with the violations of EU competition law, the Court of Justice of the European Union acknowledges the protection of legal professional privilege only with regard to the communications between an accused companies and an independent lawyer (who does not work for his client on an employment contract basis). When the protection of legal professional privilege is not granted for communications of the accused company with its own legal personnel, a question may arise whether it is considered that sufficient level of confidentiality is ensured for these companies. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is (...) that policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

Although the Internet is frequently referred to as a global public resource, its functioning remains predominantly controlled by private actors. The Internet brought about significant shifts in the way we conceptualize governance. In particular, the handling of “big data” by private intermediaries has a direct impact on routine practices and personal lives. The implementation of the “right to be forgotten” following the May 2014 decision of the Court of Justice of the European Union against Google blurs the boundaries (...) between the public and the private, and extends the responsibilities of the latter to court-style decision making. This article analyzes the regulatory developments in this area and the implications of outsourcing of important governance practices to private intermediaries. It looks at the decision-making process for the “right to be forgotten” to illustrate the extent to which the hybridization of such procedures results in new arrangements between public and private ordering in Internet governance. (shrink)

This article analyzes U.S. court cases involving reproductive technologies in terms of their implications for reproductive choice, mothers' versus fathers' rights, definitions and evaluations of parenting, and the nuclear family structure. The analysis reveals that the courts have tended not to recognize how social conditions shape women's reproductive choices, to promote fathers' rights more than mothers' rights, to ignore the social relationships that constitute childbearing and child rearing and value men's over women's biological contribution to these processes, to reflect (...) certain assumptions about the proper roles of mothers and fathers, and to privilege the nuclear family. The implications of developing reproductive technology policy for an understanding of the relationships among gender, reproductive technologies, and the state are considered, and recommendations for the equitable regulation of these technologies are offered. (shrink)

This article relates to the CJEU’s understanding of the concept of the spouse in Case C-673/16 and its effect on the process of law application by Polish administrative courts. The authors considerations are based on the assumption that the CJEU’s interpretation of EU law in Coman and Others is of a dynamic-deliberative nature, based on functional rules, and that at the same it time takes into account a specific legal and socio-cultural context in which one of the fundamental freedoms (...) guaranteed by EU law is implemented. This judgment, as authors underline, confirms that a proper understanding of the current legal context of the concept of a spouse requires that the social and cultural context and the plurality of values arising from different lifestyles be taken into account in the application and interpretation of the law, all with a view to empowering the individual in his or her relationship with the State and raising the level of protection of human rights. Authors observe in the practice od Polish administrative courts that this CJEU’s judgment is important in the argumentative layer, but not decisive for the resolution of the case in specific situations where there is a need to address the effect of same-sex marriage in a case related to the implementation of the EU right to free movement. In this context authors consider whether the justification for rulings of administrative courts may be sought in John Gray’s concept of modus vivendi liberalism. (shrink)

In early China, the mandate to rule or "Mandate of Heaven" is of divine origin. However, the ruler is an ordinary human being whose right to govern can be revoked by the supreme deity should he fall short in his duties towards his subjects, and neglect his role of benevolent guardian who has to provide for and ensure acceptable life conditions for his subjects. This concept has led some early thinkers to theorize the admissibility for the people to rebel (...) against an unjust ruler. The present article problematizes the existence of a proper "right to rebel" in early Chinese philosophical discourse with focus on the Mengzi, where such a theory seems to be more prominently addressed. Through the analysis of selected pertinent passages drawn from pre-imperial received texts, the article reconstructs a narrative of dissent in ancient Chinese philosophy, further addressing related issues, such as the agency of the people and their role in the rebellious process. (shrink)

In the May, 1960, issue of the American Bar Association Journal (vol. 499), Morton Birnbaum, a lawyer and physician, argued for a legal right to psychiatric treatment of the involuntarily committed mentally ill person. In the 18 years since his article appeared,, there have been several key court cases in which this concept of a right to psychiatric treatment has figured prominently and decisively. It is important to note that the language of the decisions have had at (...) least an indirect effect in the recently enacted mental Hygiene Law of the State of New York. While I shall not seek to establish the historical thesis that Birnbaum’s article has been efficacious in bringing about both these court decisions and changes in statutory laws, I do want to examine Birnbaum’s article and some of the opinions for three cases: Wyatt v. Stickney (1972), Wyatt v. Aderholt (1974), and O’Connor v. Donaldson (422 US 563, 1975), in an effort to understand both the significance of these changes in our laws and the underlying philosophical and ethical notions of which they are an expression. Birnbaum observed that the notable feature of the legal situation at the time was that there had not been recognized a constitutional requirement that one who had been institutionalized for mental illness according to due process must receive treatment. Birnbaum argued that the effects of an omission of such a requirement to treat were that mental institutions typically offered only custodial care, that patients who were held only under custodial care typically did not improve, and that the result was that involuntary incarceration in a mental institution was, at least from the point of view of the patient, functionally no different than would be imprisonment for an unspecified period of time. Birnbaum argued for a recognition and enforcement in the courts of the right to treatment “...as a necessary and overdue development of our present concept of due process of law,” i.e., as required by the 14th Amendment to the U.S.. (shrink)

Various special investigative methods are more often applied nowadays; their use is unavoidably induced by today’s reality in combating organised crime in the spheres such as corruption, prostitution, drug trafficking, trafficking in persons, money counterfeit and etc. Therefore, special secret investigative methods are more often used and they are very effective in gathering evidence for the purpose of detecting and investigating very well-organised or latent crimes. Both the Convention on the Protection on Human Rights and Fundamental Freedoms itself, i.e. its (...) Article 6, and other international instruments, such as the Council of Europe’s Criminal Law Convention, the Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and others, do not prohibit the use of special investigative methods, provided that their use does not violate human rights. The use of special investigative methods, such as undercover agents or other undercover investigative methods, cannot in itself infringe human rights and the right to a fair trial; however, its use must have clear limits and safeguards. The recent judgements of the European Court of Human Rights regarding the use of undercover agents confirm that the use of undercover agents in certain types of cases is often unavoidable and also very problematic, because the Court imposes on the member states of the Convention increasingly wider obligations. Partly this is determined by the fact that the current jurisprudence of the Court is still in the state of formation, therefore many questions are left unanswered. (shrink)

Both developing and developed countries face an increasing mismatch between what patients expect to receive from healthcare and what the public healthcare systems can afford to provide. Where there has been a growing recognition of the entitlement to receive healthcare, the frustrated expectations with regards to the level of provision has led to lawsuits challenging the denial of funding for health treatments by public health systems. This book analyses the impact of courts and litigation on the way health systems set (...) priorities and make rationing decisions. In particular, it focuses on how the judicial protection of the right to healthcare can impact the institutionalization, functioning and centrality of Health Technology Assessment (HTA) for decisions about the funding of treatment. Based on the case study of three jurisdictions - Brazil, Colombia, and England - it shows that courts can be a key driver for the institutionalization of HTA. These case studies show the paradoxes of judicial control, which can promote accountability and impair it, demand administrative competence and undermine bureaucratic capacities. The case studies offer a nuanced and evidence-informed understanding of these paradoxes in the context of health care by showing how the judicial control of priority-setting decisions in health care can be used to require and control an explicit scheme for health technology assessment, but can also limit and circumvent it. (shrink)

On 26 February 2020, the German Constitutional Court rejected a law from 2015 that prohibited any form of ‘business-like’ assisted suicide as unconstitutional. The landmark ruling of the highest federal court emphasised the high priority given to the rights of autonomy and free personal development, both of which constitute the principle of human dignity, the first principle of the German constitution. The ruling echoes particularities of post-war Germany’s end-of-life debate focusing on patient self-determination while rejecting any discussion of (...) active assistance to die through a lethal injection administered by a doctor. This brief report discusses the ruling in the light of the broader sociopolitical and historical context of the German end-of-life debate. (shrink)

Interrogations are a very specific component of any criminal investigation. The answers gained through interrogative process provides information that are considered as direct evidences. In contemporary criminal procedure, the court is not absolved from gaining other evidences, even in cases when the defendant confesses his/her guiltiness. This is a mechanism for excluding the inquisitorial approach for extracting compulsory confessions. The modern procedure uses a variety of mechanisms to guarantee that the defendant will not be compelled to confess guilt. (...) Those mechanisms are part of most important international conventions as International Convention for Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the Statutes of International Tribunals and part of different constitutional and legal acts of modern states. A very interesting “highlight” remains the right to silence which guarantees that the defendant might remain silent and it will not be interpreted against him. The defendant, even in cases with direct evidences, can remain silent and cannot be forced to answer given questions. Another “highlight” is that one that appears from the privilege against self-incrimination that allows the defendant to not answer a question, if by answering, he/she may confess guilt or incriminate him/herself. How deep is this privilege? Are there, maybe questions, that he/she are obliged to answer The article will focus in interrogations and the right to silence by most important international acts and domestic acts of different countries and upcoming specifics in the relation interrogations vs. remaining silent. (shrink)

The beginning of the typical Miranda warning—“You have the right to remain silent. Anything you say can be used against you in a court of law”—is also a fair statement of the medieval right to silence that can be deduced from the canonical rules of due process, and such a warning could and should have been given to arrestees in inquisitorial proceedings. In such proceedings the judge was obliged to give any detained or summoned person a (...) precise statement of the charged crime, to explain the nature of the charges, to allow or provide counsel and other defenses, and to prove that the person was considered guilty of the crime by respectable members of the community before insisting on a response to the charges or to any questioning. If the judge ignored these preliminary procedures and proceeded to interrogation, and persisted even after protest, the defendant could refuse to cooperate by declaring himself or herself aggrieved and entering an immediate appeal. (shrink)

Whether the US Constitution guarantees a right to conduct scientific research is a question that has never been squarely addressed by the United States Supreme Court. Similarly, the extent to which the First Amendment protects the right to communicate the results of scientific research is an issue about which there is scant judicial authority. This article suggests that a crucial guidepost for exploring both these uncharted areas of constitutional law should be whether restrictions on scientific research or (...) communication truly implicate fundamental individual rights or instead primarily concern issues of general social welfare—issues that in a democracy are properly decided by the representative branches of government or their delegates, not by the judiciary. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy, Psychiatry, & Psychology 11.4 (2004) 299-301 [Access article in PDF] The Right Not to Know: A Challenge for Accurate Self-Assessment Ruth F. Chadwick Anderson and Lux present a very interesting and thought-provoking argument for the view that accurate self-assessment is a requirement for personal autonomy. What I want to suggest is that although this may be helpful in the context with which these authors are primarily concerned, (...) namely psychiatry and brain dysfunction, it is of less value to an account of autonomy more widely construed. I want to look at a possible counterexample, taken from another area of medicine, namely genetics.Toward the end of their article Anderson and Lux consider three objections to their position. I shall not discuss them all. My concern is with the third, that inaccurate self-assessment sometimes promotes autonomy, because knowing the truth about one's weaknesses is sometimes very debilitating. It is commonly argued that "you can if you think you can" and vice versa. As they point out, there are some complex issues involved here, in that if the result of the positive thinking is the ability to do the thing in question, then how can the self-assessment be deemed to have been inaccurate in the first place? They go on, however, to say that "it is unclear that inflated self-assessments yield benefits in contexts where what is required is not just effort but competence" (290).Now it has been argued, by some, in the context of genetics, that the proper understanding of autonomy may imply a "right not to know" facts about oneself. In other words, this is not just a matter of accurate or inaccurate assessment of the relevant facts about oneself; rather, what may be involved is a deliberate decision not to have access to facts that may be relevant to that assessment. There are clearly cases in which genetic information appears to be pertinent to an accurate self-assessment, as the following example suggests. Suppose there is information "available", through genetic testing, that would affect one's chances of having children, or of having children without a particular genetic disorder, and, knowing that such information is available, a couple decides not to avail themselves of this. This is clearly an inaccurate self-assessment, but is their autonomy compromised?It might be thought that the reasons for this decision not to know could be relevant. If they have no family history of any particular genetic disorder, it could be regarded as subjectively reasonable to decline such testing as might be offered. Anderson and Lux, however, argue that whether or not a self-assessment is accurate depends on externalities. In other words, A's self-assessment is not to be assessed as accurate, or [End Page 299] not, according to what it is subjectively reasonable to believe; it has to be measured against the facts. The more that the possibilities of genetic testing increase, the more that "facts" of this nature will be available, including in the context of psychiatry.It might be objected that genetic information is not the type of information that is relevant in this context. In so far as it is predictive and probabilistic it is, arguably, different from the type of diagnostic information involved in the cases discussed by Anderson and Lux. It is not the place here, however, to discuss in general terms the thesis of "genetic exceptionalism" with regard to medical information. The important point is refusal of access to information that may be relevant to an accurate self-assessment. Historically, people have been mistaken in their self-assessment because of lack of information—for example, lack of understanding of facts about the reproduction process has led individuals automatically to blame the woman partner of a couple for infertility. And, as Anderson and Lux rightly point out, being autonomous is compatible with making mistakes, and indeed requires the freedom to make mistakes, it would look rather different if a person continued to hold this without any attempt to avail himself of the relevant—and now available—information... (shrink)

Carol Pateman has said that the public/private distinction is what feminism is all about. I tend to be sceptical about categorical pronouncements of this sort, but this book is a work of feminist political philosophy and the public/private distinction is what it is all about. It is motivated by the belief that we lack a philosophical conception of privacy suitable for a democracy; that feminism has exposed this lack; and that by combining feminist analysis with recent developments in political philosophy, (...) we can meet the philosophical and political need for a distinctively democratic conception of privacy. This book then, is an effort to sketch and defend such a conception of privacy. It aims to show that while some conceptions of privacy are inconsistent with democracy, others are not. Indeed, the book asserts, the belief that privacy can be valuable and that it can justify basic legal rights, is implicit in a democratic conception of persons as free and equal beings, and a democratic conception of politics as the self-governing, or regulating, activity of such individuals. Just as we can and should reject undemocratic conceptions of the suffrage in favour of democratic ones, so the book maintains, we can and must reject undemocratic conceptions of privacy in favour of ones that reflect the moral equality of men and women, and a commitment to democratic forms of government. Democracy is often described as government by and for the people. On such a view, democracy is a political regime which can be contrasted with monarchies or aristocracies on the one hand, or with theocracies and despotisms on the other. By contrast with the former, it is a form of government that views individuals as citizens and as equal members of the agency which authorizes the use of political power. By contrast with the latter, it is a form of government whose purposes and aims are established by the common interests of individuals, conceived as free and equal citizens. It is my contention that there is a plausible and attractive conception of privacy implicit in this view of democracy. Hence, I show that individuals have fundamental interests in privacy because privacy enables them to participate in politics freely and as the equal of others and, beyond that, to lead lives that they can each affirm to be reasonable, valuable and right. As I think that the ideal of democratic government is properly associated with this latter and broader goal, as well as with the former one, I call my account of privacy a democratic conception of privacy to signal its connection to a particular ideal of politics, and to the conception of persons that makes this ideal a convincing and inspiring one. As this is a work of political philosophy, however, no effort is made to address the legal merits of competing accounts of the right to privacy, or to resolve legal dispute about the content and justification of particular constitutional rights in the United States. Thus, while I use Supreme Court decisions and works of legal theory to illustrate and support my arguments, my use of these materials is governed by philosophical concerns and my conclusions, therefore, are strictly of a philosophical, not a legal, nature. The book is divided into four chapters, moving from feminist criticisms of privacy to an engagement with the philosophical literature on privacy and an account of the right to privacy in a democratic society. It proceeds as follows. In Chapter 1, I examine feminist concerns about privacy, through a close reading of the work of Catherine MacKinnon. I argue that MacKinnon persuasively shows that protection for privacy has frequently licensed the coercion and subjection of women, and that her arguments are supported both by feminist scholarship, key Supreme Court decisions, and by familiar conceptions of privacy and equality. However, I argue, these criticisms do not imply that privacy, like slavery, can never be democratic, because wholly inconsistent with the equality of individuals. Rather, feminist criticisms of privacy suggest that privacy, like the suffrage, can be necessary to the equality of women and can have a legitimate and important place in a democratic society. In Chapter 2, I examine the philosophical literature on privacy in light of the need to distinguish democratic from undemocratic accounts of its nature and value. This literature, I show, can help us to provide an account of privacy that is sensitive both to its inegalitarian aspects and to its importance for a democratic commitment to the freedom and equality of women. However, I argue, we cannot embrace current philosophical accounts of privacy uncritically, because to a striking extent they are, themselves, indifferent to the ways that privacy has licensed sexual inequality. Thus, in Chapter 2, I set about interpreting privacy as a moral and political value, in light of the strengths and weaknesses of the philosophical literature on privacy. Their strength is that they show that there are many reasons for caring about privacy, or many ways in which we might define it as a democratic value. Their weakness is that they tend to assume that we must choose amongst these different conceptions of privacy, in order to provide a philosophically cogent account of privacy. This, I show, is a mistake and one that can be remedied by remembering that a commitment to the equality of individuals requires us to acknowledge the reasonable differences in value and interest that may characterize their relations in a democracy. When we do so, I show, it is possible to define privacy in terms of its protection for self-definition, intimacy and confidentiality, without having to choose between the three of them. For individuals may legitimately disagree about the differences between privacy and other values, even while holding that privacy is a distinctive and important democratic good; and they may also disagree about the importance of privacy compared to other goods, such as equality, without denying that self-definition, intimacy and confidentiality can be morally and politically desirable in a democracy. In Chapter 2, therefore, I show that we can provide a philosophically adequate account of what privacy is and why it is valuable without supposing that privacy is always sexually egalitarian, or denying that it has a distinctive place in a democratic conception of value. Chapter 3 then extends this account of privacy, by considering the justification for a legal right to privacy. Just as we cannot provide a democratic conception of privacy without attending to the different, though equally valid, concerns that individuals may have so, I show, we cannot provide a democratic account of privacy rights if we forget that individuals can, quite reasonably, differ in the importance that they attach to privacy. The result, I argue, is that we can distinguish two main reasons for protecting privacy by right in a democracy, the one personal and the other political. Whereas the former emphasizes the importance of self-definition, intimacy and confidentiality to the personal freedom and equality of individuals, the latter emphasizes their importance to their prospects for voluntary and equal participation in the processes of collective choice and deliberation that define a democratic government. These two justifications of privacy rights reflect the fact that in a democracy the personal can be political, as feminists have insisted, but need not be in order to merit protection by right. Indeed, I argue, we can distinguish democratic from undemocratic accounts of the right to privacy in this way: for whilst the former acknowledge the variety of individuals’ interests in personal and collective choice, the latter either collapse the political into the personal, or assume that the legitimate claims of individuals are merely a function of collective needs, interests and values. Neither of these is consistent with familiar assumptions about the nature and justification of democratic institutions and rights, nor can they be reconciled with a commitment to sexual equality. Thus, I conclude, though the fact that there are different justifications for privacy rights in a democracy means that individuals may legitimately disagree over the content and justification of basic rights, it is wrong to confuse democratic debate with moral or conceptual confusion and so, arbitrarily, to truncate our accounts of privacy, equality and democracy. Finally, in Chapter 4, I test and develop these claims by examining the justification for abortion rights in a democracy. I argue that women have legitimate interests in abortion, as well as in bearing children, because they have fundamental, and legitimate, interests in privacy and equality. Although safe and legal abortion is necessary to sexual equality, as feminists claim, I show that we can provide a convincing and democratic account of women’s claims to abortion only if we recognize women’s interests in self-definition, intimacy and confidentiality. This is because women have both personal and political interests in abortion and we will be unable adequately to identify these if we overlook their interests in privacy. Indeed, I show, the difference between democratic and undemocratic solutions to conflict over abortion lies precisely in this: that whereas the former acknowledge the importance of privacy to the personal and political equality of women, the latter overlook or deny this. As a result, the latter license both mandated abortions, although women have legitimate interests in bearing and raising children, and prohibitions on abortion that cannot be reconciled with the freedom and equality of women. That is not to say that abortion is not a politically significant matter, or that we can resolve moral conflict over abortion simply by giving women a legal right to abortion. Neither is the case. However, the chapter shows, in a democracy individuals are entitled to make morally and politically controversial decisions for themselves not simply because this is expedient or useful, but because this is right. To overlook this feature of democracy, I argue, is to make moral and political conflict utterly intractable by democratic means. Thus, while controversy over abortion has been held to show that privacy is an incoherent and undemocratic right, this chapter argues that it shows the reverse: for controversy over abortion makes clear that privacy is essential to democracy, and why this should be so. This overview of the book, I hope, makes clear that its concerns are methodological as well as substantive, and moral as well as political. Thus, its central methodological claim is that we cannot reconcile privacy with the equality of individuals unless we make a deliberate effort to do so. Its central moral and political claims are that privacy is compatible with the equality of individuals, and sufficiently important to the latter that, in a democracy, the privacy of individuals merits legal protection by right. However, this summary of the book also exposes its limitations. Chief amongst these, I fear, is that it provides no sustained discussion of the place of property on a democratic conception of privacy, and that the latter, itself, is rather a broad preliminary sketch than a polished and detailed portrait. I regard these limits on the scope and arguments of the book as limitations, albeit ones that I hope to be able to remedy before too long.However, limited though the book clearly is, I believe that it lays out the essential components of a democratic conception of privacy and that, by analysing and synthesizing several diverse bodies of literature, it may help those who are interested in the relations between privacy, equality and democracy. (shrink)

In this paper I examine the prevailing assumption that there is a right to procreate and question whether there exists a coherent notion of such a right. I argue that we should question any and all procreative activities, not just alternative procreative means and contexts. I suggest that clinging to the assumption of a right to procreate prevents serious scrutiny of reproductive behavior and that, instead of continuing to embrace this assumption, attempts should be made to provide (...) a proper foundation for it. I argue that the focus of procreative activities and discourse on reproductive ethics should be on obligations instead of rights, as rights talk tends to obfuscate recognition of obligations toward others, particularly those who bear the most significant burdens of the procreative process. I examine some possible foundations of a right to procreate as well as John Robertson’s thoughtful account of “procreative liberty” but conclude that at the present time there exists no compelling account of a right to procreate. Finally, I conclude that in the absence of a satisfactory account of a right to procreate, we should refrain from grounding practices or polices on the assumption that there is such a right. (shrink)

In 1992, Eluana Englaro was involved in a car accident in Italy that eventually left her in a permanent vegetative state requiring artificial nutrition and hydration. This paper, after briefly reviewing Eluana's case, gives a chronicle of Eluana last months until her death on 9 February 2009, and discusses the right-to-die controversy in Italy. For many years, Mr Englaro, Eluana's father, would litigate to enforce what he considered to be his daughter's wish to discontinue life-prolonging treatment. In July 2008, (...) the Court of Appeal of Milan has given its authorisation for artificial life support to be withdrawn. This ruling sparked a crusade, led by the government and the Vatican, against the court and Eluana's father, which included insinuations that the latter was murdering his daughter. Public opinion has overwhelmingly been sympathetic to the father's difficult decision, in stark contrast to the reactionary stance taken by the government. With the notable advances of medicine, doctors are increasingly faced with ethical issues. The vegetative state is just one of the many clinical conditions that obligate health professionals to reflect on ethical matters. The withdrawal of life-supporting care, and of artificial nutrition and hydration in particular in permanent vegetative state patients remains a measure which violates a tradition and a consolidated practice. It was thus inevitable that it would create great controversy. We should work towards making a decision process that ensures that continuation or suspension of artificial nutrition and hydration follows an explicit procedure, promoting the sharing and respect of the diverse moral responsibility of family members, nursing and medical staff. (shrink)

Within the framework of a new interdisciplinary scientific scientific field – epistemological urbanism – the authors develop the idea of the human right to their city and show the epistemological nature of this right, which is explained by the fact that it is conditioned by the processes of cognition and scientific communication. Three main provisions are substantiated. Firstly, the city is an intelligent system. “The right to your city” is a specific right to scientific and intellectual (...) production and consumption. Such a right is not realized in every locality designated as a city, but only where there are conditions for intellectual dynamics – where art, education and science are developing. Secondly, the intellectual system of the city has autonomy. Each city has its own intellectual resource. Realizing the right to their city, citizens are involved in the activity of the city's scientific and intellectual autonomy. In other words, a city where there are opportunities to realize the “right to the city” generates an autonomous scientific school or a set of scientific schools. Thirdly, cities how research centers form a scientific network. Not a scientific consortium with common ideas and goals, but a network based on the principles of proliferation. The authors insist on the decentralization of science not for the purpose of its enclavization, but for the purpose of developing the potential, multi-vector and intellectual self-realization of urban communities themselves. It is shown that the development of science as a whole can be ensured by the heterogeneity of science itself : integration and differentiation give rise to an integration scientific and communicative process. (shrink)

Court D. Lewis, author of Repentance and the Right to Forgiveness, presents a rights-based theory of ethics grounded in eirenéism, a needs-based theory of rights (inspired by Nicholas Wolterstorff) that seeks peaceful flourishing for all moral agents. This approach creates a moral relationship between victims and wrongdoers such that wrongdoers owe victims compensatory obligations. However, one further result is that wrongdoers may be owed forgiveness by victims. This leads to the “repugnant implication” that victims may be wrongdoers who (...) do not forgive. Author Lewis addresses the “repugnant implication” by showing that victims are obligated to work toward forgiveness, if not forgiveness itself. Critic Gregory L. Bock argues that victims are not the only ones who can forgive, that the personal dimensions of forgiveness are overlooked, and that the force of the “repugnancy implication” may be questioned. Instead of rights-based eirenéism, Bock supports a virtue ethics framework. Instead of rights-based eirenéism, Bock encourages virtue ethics. Critic David Boersema raises questions about the binding nature of relationships, the dependency of flourishing upon forgiveness, and the nature of needs or rights. Boersema also questions the wisdom of a rights-based approach to forgiveness. Critic Jennifer Kling asks whether a rights-based approach is necessary to ground obligations to meet the needs of others: why not an ethics of care? If a rights-based approach is taken, perhaps a wrongdoer is obligated to not make forgiveness a life good. By disengaging this obligation, we avoid constraining a victim’s work toward forgiveness, especially when the wrongdoing is oppressive. Author Lewis responds to these objections. (shrink)

Many individuals on the autism spectrum are hypersensitive to certain sensory stimuli. For this group, as well as for non-autistic individuals with sensory processing disorders, being exposed to e.g. fluorescent lights, perfume odours, and various sounds and noises can be real torment. In this article, I consider the normative implications of such offence for the design of office spaces, which is a topic that has not received any attention from philosophers. After identifying different ways in which the senses of hypersensitive (...) workers might be protected within these spaces, I show that many of such accommodations can be made at reasonable cost, before arguing that doing so ought to be a legal requirement. (shrink)

Is it possible to use the courts - or rights instruments - to advance fair access to health care? This article examines this question within the context of the Norwegian public health care system - one special example of the Scandinavian welfare system. In particular, it asks four basic questions: What are the normative justifications for rights to health care? What were the political processes and concerns leading up to the current Patients Rights Act in Norway? What kind of legal (...) status do these rights have? How can rights to access be implemented?Patient rights do not only concern the right to access to health care; they also include the right to information, the right to participate in decision-making, and informed consent. This article examines only the former aspect, the use of the legal system to secure access to prioritized specialized health care services. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation of such legal measure. According (...) to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (shrink)

In his Rights Forfeiture and Punishment, Christopher Heath Wellman argues that his preferred ‘strong’ version of rights forfeiture theory makes the moral rights of due process and a fair trial null and void for guilty offenders. They may still possess legal rights to due process, but these are not strong pre-institutional moral rights. I explain here why I disagree with Wellman. I also suggest that he is not entitled, by his own lights, to affirm strong forfeiture theory, at (...) least in our social world. (shrink)

This book develops a rights-based theory of justice that maintains that genuine repentance creates a right to be forgiven. Examining the nature of rights and theological conceptions of forgiveness, the author shows why such a right is nonrepugnant and produces the most just state of affairs for victims and wrongdoers.

The article analyzes one of the fundamental rights – the right to maintenance, which proper implementation ensures normal development of the child. This right matches with the duty of parents to maintain their minor children. Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania states that parents have a duty to educate their children to be honest people and loyal citizens, supporting them until adulthood. The obligation to maintain children is established in the (...) first 3.192 Article paragraph of the Civil Code of the Republic of Lithuania, and the responsibility for avoiding to maintain a child is provided in Article 164 of the Criminal Code. The article discusses the fact that the analysis of criminal law rate is not precise enough. Article 164 of the Criminal Code does not match with the child maintenance methods specified in the CC Article 3.196 paragraph 1. Since criminal liability is only for judgment in default in civil cases, a person shall only be liable for breaking the right to maintain a child, provided in the CC 3.196 paragraph 1. This article deeply analyzes the problematic qualification aspects of the avoidance to maintain a child. Some alternative ways of child maintenance are mentioned, as can be chosen from other law instruments (bailiffs, Guarantee child support fund) and it leads to the ultima ratio principle. On the other hand, it is not required to seek alternative remedies for affected interests, and it is possible to initiate a pre-trial investigation. Therefore, this article seeks to identify specific civil and criminal law rules delimitation. Avoidance of child maintenance is an ongoing crime. The main problem in legal practice is to determine an end of this ongoing criminal conduct. The practice of the Supreme Court of Lithuania is not unanimous. In some cases, the end of this ongoing conduct is considered to be a moment when the past judgment has entered into force, in other cases – the moment of indictment. These positions are criticized by many authors and it is suggested to follow the Supreme Court’s practice, according to which the moment when a judgment of conviction for the criminal act is passed should be considered as an end of an ongoing criminal conduct. (shrink)

In response to the continued expansion of “red flag” laws allowing broader classes of people to petition a court for the removal of firearms from individuals who exhibit dangerous conduct, this paper argues that state laws should adopt a double-filter provision that balances individual rights and government public safety interests. The main component of such a provision is a special statutory category — “reporting party” — that enables a broader social network, such as co-workers or school administrators, to request (...) that a law enforcement officer file a petition for an Extreme Risk Protection Order. A double-filter provision would not give reporting parties a right to file a court petition directly. Instead, parties would file a request for petition with law enforcement officers, who must seek an ERPO from the court if they find the reporting party's information credible. That information is then transmitted to the court as a sworn affidavit of the reporting party. The goal is to facilitate a balanced policy model that widens the reporting circle in order to feed more potentially life-saving information into the system, mitigates the risk of erroneous deprivation of constitutionally protected due process and Second Amendment rights. (shrink)

Recommendation systems (RSs) predict what the user likes and recommend it to them. While at the onset of RSs, the latter was designed to maximize the recommendation accuracy (i.e., accuracy was their only goal), nowadays many RSs models include diversity in recommendations (which thus is a further goal of RSs). In the computer science community, the introduction of diversity in RSs is justified mainly through economic reasons: diversity increases user satisfaction and, in niche markets, profits.I contend that, first, the economic (...) justification of diversity in RSs risks reducing it to an empirical matter of preference; second, diversity is ethically relevant as it supports two autonomy rights of the user: the right to an open present and the right to be treated as an individual. So far, diversity in RSs has been morally defended only in the case of RSs of news and scholarly content: diversity is held to have a depolarizing effect in a democratic society and the scientific community and make the users more autonomous in their news choices. I provide a justification of diversity in RSs that embraces all kinds of RSs (i.e., a holistic moral defense) and is based on a normative principle founded on the agency of the user, which I call the right to be an exception to predictions. Such a right holds that the proper treatment of a RS user qua agent forbids providing them with recommendations based only on their past or similar users’ choices. (shrink)

Using the right to die and the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health as exemplars, this article explores the notion of third-order decisionmaking. If first order decisionmaking is about what should happen, and second-order decisionmaking is about who should decide what should happen, then third-order decisionmaking is about who should decide who decides. This turns out to be an apt characterization of constitutionalism, which is centrally concerned with the allocation of responsibility (...) for making decisions about the allocation of responsibility. Deference to erroneous second-order decisions, as in the Cruzan case itself, may merely be an example of this central feature of constitutionalism. Keywords: constitutionalism, Cruzan case, right-to-die, rules CiteULike Connotea Del.icio.us What's this? (shrink)

Huggins, AK When the debate about gay marriage really started to gain some momentum in Australia, probably a year or two before the last Labor Party Conference, I predicted amongst some of my gay friends that, as we got closer to a vote or other defining moments in this process, people and organisations would start 'crawling out of the woodwork' with distasteful, even despicable ways to demonise same-sex partnership and indeed gay people generally. I was right. I also (...) mentioned to my friends that in Sydney, Cardinal Pell and Archbishop Jensen would wait just before any parliament vote to politicise their pulpits by locking in the federal Liberal vote using their lap boy Tony Abbott to deny a conscience vote amongst his party colleagues. I was right again. I also said that any attempt by a State or Territory to pass their own gay marriage legislation would be countered by a Liberal Government in the High Court of Australia. I was right again. It is so difficult and regrettable to be right all the time!! (shrink)

continent. 1.3 (2011): 149-155. The world is teeming. Anything can happen. John Cage, “Silence” 1 Autonomy means that although something is part of something else, or related to it in some way, it has its own “law” or “tendency” (Greek, nomos ). In their book on life sciences, Medawar and Medawar state, “Organs and tissues…are composed of cells which…have a high measure of autonomy.”2 Autonomy also has ethical and political valences. De Grazia writes, “In Kant's enormously influential moral philosophy, autonomy (...) , or freedom from the causal determinism of nature, became prominent in justifying the human use of animals.”3 One of the oldest uses of autonomy in English is a description of the French civil war from the late sixteenth century: “Others of the…rebellion entred in counsell, whether they ought to admit the King vpon reasonable conditions, specially hauing their autonomy.”4 Life, and in particular human life, and in particular human politics, is well served by the usages of autonomy . What about the rest of reality, however? Should it be thought of, if it's even considered real and mind-independent, as pure stuff for the manipulation or decorative tastes of truly autonomous beings? We tend to think of things such as paperweights and iPhones as mere tools of human design and human use. To use them is to cause them to exist as fully and properly as they can. But according to Martin Heidegger, when a tool such as a paperweight is used, it disappears, or withdraws ( Entzug ). We are preoccupied with copying the page that the paperweight is holding down. We are concerned with an essay deadline, and the paperweight simply disappears into this general project. If the paperweight slips, or if the iPhone freezes, we might notice it. All of a sudden it becomes vorhanden (present-at-hand) rather than zuhanden (ready-to-hand).5 Yet Heidegger is unable to draw a meaningful distinction between what happens to a paperweight when it slips from the book I'm copying from and what happens to the paperweight when it presses on the still resilient pages of the thick paperback itself. Further still and related to this point, even when I am using the paperweight as part of some general task, I am not using the entirety of the paperweight as such. My project itself selects a thin slice of paperweight-being for the purposes of holding down a book. Even when it is zuhanden the paperweight is withdrawn. Graham Harman is the architect of this way of thinking.6 Harman discovered a gigantic coral reef of withdrawn entities beneath the Heideggerian submarine of Da-sein, which itself is operating at an ontological depth way below the choppy surface of philosophy, beset by the winds of epistemology, and infested with the sharks of materialism, idealism, empiricism and most of the other isms that have defined what is and what isn't for the last several hundred years. At a moment when the term ontology was left alone like a piece of well chewed old chewing gum that no one wants to have anything to do with, object-oriented ontology (OOO) has put it back on the table. The coral reef isn't going anywhere and once you have discovered it, you can't un-discover it. And it seems to be teeming with strange facts. The first fact is that the entities in the reef—we call them “objects” somewhat provocatively—constitute all there is: from doughnuts to dogfish to the Dog Star to Dobermans to Snoop Dogg. People, plastic clothes pegs, piranhas and particles are all objects. And they are all pretty much the same, at this depth. There is not much of a distinction between life and non-life (as there isn't in contemporary life science). And there is not much of a distinction between intelligence and non-intelligence (as there is in contemporary artificial intelligence theory). A lot of these distinctions are made by humans, for humans (anthropocentrism). And the concept autonomy has come into play in policing such distinctions. In this essay I shall to try to liberate autonomy for the sake of nonhumans. I shall do so by parsing carefully the title, which is taken from Hakim Bey's work The Temporary Autonomous Zone .8 First we shall explore the term autonomous . Then we shall explore what the full meaning of zone is. Finally, we shall investigate what temporary means. Each of these terms is of great value. An object withdraws from access. This means that its very own parts can't access it. Since an object's parts can't fully express the object, the object is not reducible to its parts. OOO is anti-reductionist. But OOO is also anti-holist. An object can't be reduced to its “whole” either, “reduced upwards” as it were. The whole is not greater than the sum of its parts. So we have a strange irreductionist situation in which an object is reducible neither to its parts nor to its whole. A coral reef is made of coral, fish, seaweed, plankton and so on. But one of these things on its own doesn't embody part of a reef. Yet the reef just is an assemblage of these particular parts. You can't find a coral reef in a parking lot. In this way, the vibrant realness of a reef is kept safe both from its parts and from its whole. Moreover, the reef is safe from being mistaken for a parking lot. Objects can't be reduced to tiny Lego bricks such as atoms that can be reused in other things. Nor can be reduced upwards into instantiations of a global process. A coral reef is an expression of the biosphere or of evolution, yes; but so is this sentence, and we ought to be able to distinguish between coral reefs and sentences in English. The preceding facts go under the heading of undermining . Any attempt to undermine an object—in thought, or with a gun, or with heat, or with the ravages of time or global warming—will not get at the withdrawn essence of the object. By essence is meant something very different from essentialism . This is because essentialism depends upon some aspect of an object that OOO holds to be a mere appearance of that object, an appearance-for some object. This reduction to appearance holds even if that object for which the appearance occurs is the object itself! Even a coral reef can't grasp its essential coral reefness. In essentialism, a superficial appearance is taken for the essence of a thing, or of things in general. In thinking essentialism we may be able to discern another way of avoiding OOO. This is what Harman has christened overmining .? The overminer decides that some things are more real than others: say for example human perception. Then the overminer decides that other things are only granted realness status by somehow coming into the purview of the more real entity. When I measure a photon, when I see a coral reef, it becomes what it is. But when I measure a photon, I never measure the actual photon. Indeed, since at the quantum scale to measure means “to hit with a photon or an electron beam” (or whatever), measurement, perception ( aisthesis ), and doing become the same. What I “see” are deflections, tracks in a diffusion cloud chamber or interference patterns. Far from underwriting a world of pure illusion where the mind is king, quantum theory is one of the very first truly rigorous realisms, thinking its objects as irreducibly resistant to full comprehension, by anything.9 So far we have made objects safe from being swallowed up by larger objects and broken down into smaller objects—undermining. And so far we have made objects safe from being mere projections or reflections of some supervenient entity—overmining. That's quite a degree of autonomy. Everything in the coral reef, from the fish to a single coral lifeform to a tiny plankton, is autonomous. But so is the coral reef itself. So are the heads of the coral, a community of tiny polyps. So is each individual head. Each object is like one of Leibniz's monads, in that each one contains a potentially infinite regress of other objects; and around each object, there is a potentially infinite progress of objects, as numerous multiverse theories are now also arguing. But the infinity, the uncountability, is more radical than Leibniz, since there is nothing stopping a group of objects from being an object, just as a coral reef is something like a society of corals. Each object is “a little world made cunningly” (John Donne).10 We are indeed approaching something like the political valance of autonomy . The existence of an object is irreducibly a matter of coexistence. Objects contain other objects, and are contained “in” other objects. Let us, however, explore further the ramifications of the autonomy of objects. We will see that this mereological approach (based on the study of parts) only gets at part of the astonishing autonomy of things. Yet there are some more things to be said about mereology before we move on. Consider the fact that since objects can't be undermined or overmined, it means that there is strictly no bottom object . There is no object to which all other objects can be reduced, so that we can say everything we want to say about them, hypothetically at least, based on the behavior of the bottom object. The idea that we could is roughly E.O Wilson's theory of consilience .11 Likewise, there is no object from which all things can be produced, no top object . Objects are not emanations from some primordial One or from a prime mover. There might be a god, or gods. Suppose there were. In an OOO universe even a god would not know the essential ins and outs of a piece of coral. Unlike even some forms of atheism, the existence of god (or nonexistence) doesn't matter very much for OOO. If you really want to be an atheist, you might consider giving OOO a spin. If there is no top object and no bottom object, neither is there a middle object . That is, there is no such thing as a space, or time, “in” which objects float. There is no environment distinct from objects. There is no Nature (I capitalize the word to reinforce a sense of its deceptive artificiality). There is no world, if by world we mean a kind of “rope” that connects things together.12 All such connections must be emergent properties of objects themselves. And this of course is well in line with post-Einsteinian physics, in which spacetime just is the product of objects, and which may even be an emergent property of a certain scale of object larger than 10?¹?cm).13 Objects don't sit in a box of space or time. It's the other way around: space and time emanate from objects. How does this happen? OOO tries to produce an explanation from objects themselves. Indeed, the ideal situation would be to rely on just one single object. Otherwise we are stuck with a reality in which objects require other entities to function, which would result in some kind of undermining or overmining. We shall see that we have all the fuel we need “inside” one object to have time and space, and even causality. We shall discover that rather than being some kind of machinery or operating system that underlies objects, causality itself is a phenomenon that floats ontologically “in front of” them. In so doing, we will move from the notion of autonomy and begin approaching a full exploration of the notion of zone , which was promised at the outset of this essay. Since an object is withdrawn, even “from itself,” it is a self-contradictory being. It is itself and not-itself, or in a slightly more expanded version, there is a rift between essence and appearance within an object (as well as “between” them). This rift can't be the same as the clichéd split between substance and accidents , which is the default ontology. On this view, things are like somewhat boring cupcakes with somewhat less boring sugar sprinkles on them of different colors and shapes. But on the OOO view, what is called substance is just another limited slice of an object, a way of apprehending something that is ontologically fathoms deeper. What is called substance and what is called accidence are just on the side of what this essay calls appearance. The rift (Greek, chorismos ) between essence and appearance means that an object presents us with something like what in logic is known as the Liar: some version of the sentence “This sentence is false.” The sentence is true, which means that it is a lie, which means that it is false. Or the sentence is false, which means that it is telling the truth, which means that it is true. Now logic since Aristotle has tried desperately to quarantine such beasts in small backwaters and side streets so that they don't act too provocatively.14 But if OOO holds, then at least one very significant thing in the universe is both itself and not-itself: the object. An object is p ? ¬p. To cope with this fact, we shall need some kind of paraconsistent or even fully dialetheic logic, one that is not allergic to dialetheias (double-truthed things). Yet if we accept that objects are dialetheic, p ? ¬p, we can derive all kinds of things easily from objects. Consider the fact of motion. If objects only occupy one location “in” space at any “one” time, then Zeno's paradoxes will apply to trying to think how an object moves. Yet motion seems like a basic, simple fact of our world. Either everything is just an illusion and nothing really moves at all (Parmenides). Or objects are here and not-here “at the same time.”15 This latter possibility provides the basic setup for all the motion we could wish for. Objects are not “in” time and space. Rather, they “time” (a verb) and “space.” They produce time and space. It would be better to think these verbs as intransitive rather than transitive, in the manner of dance or revolt . They emanate from objects, yet they are not the object. “How can we know the dancer from the dance?” (Yeats).16 The point being, that for there to be a question, there must be a distinction—or there must not be (p ? ¬p).17 It becomes impossible to tell: “What constitutes pretense is that, in the end, you don't know whether it's pretense or not.”18 In this notion of the emergence of time and space from an object we can begin to understand the term zone . Zone can mean belt , something that winds around something else. We talk of temperate zones and war zones. A zone is a place where a certain action is taking place: the zone winds around, it radiates heat, bullets fly, armies are defeated. To speak of an autonomous zone is to speak of a place that a certain political act has carved out of some other entity. Cynically, Tibet is called TAR, the Tibetan Autonomous Region, for this very reason. In this phrase, Region tries to emulate zone : it sounds as if the place has its own rules, but of course, it is very much under the control of China. What action is taking place? “[N]ot something that just is what it is, here and now, without mystery, but something like a quest…a tone on its way calling forth echoes and responses…water seeking its liquidity in the sunlight rippling across the cypresses in the back of the garden.”19 If as suggested earlier there is no functional difference between substance and accidence; if there is no difference between perceiving and doing; if there is no real difference between sentience and non-sentience—then causality itself is a strange, ultimately nonlocal aesthetic phenomenon. A phenomenon, moreover, that emanates from objects themselves, wavering in front of them like the astonishingly beautiful real illusion conjured in this quotation of Alphonso Lingis. Lingis's sentence does what it says, casting a compelling, mysterious spell, the spell of causality, like a demonic force field. A real illusion: if we knew it was an illusion, if it were just an illusion, it would cease to waver. It would not be an illusion at all. We would be in the real of noncontradiction. Since it is like an illusion, we can never be sure: “What constitutes pretense…” A zone is what Lingis calls a level . A zone is not entirely a matter of “free will”: this concept has already beaten down most objects into abject submission. Objects are far more threateningly autonomous, and sensually autonomous, than the Kantian version of autonomy cited in the first paragraph of this essay. A zone is not studiously decided upon by an earnest committee before it goes into action. One of its predominant features is that it is already happening . We find ourselves in it, all of a sudden, in the late afternoon as the shadows lengthen around a city square, giving rise to an uncanny sensation of having been here before. Objects emit zones. Wherever I find myself a zone is already happening, an autonomous zone. It is the nonautonomous zones that are impositions on what is already the case. Or rather, these zones are autonomous zones that exclude and police. They are brittle. Every object is autonomous, but some objects try to maintain themselves through rigidity and brittleness, like (and such as) a police state. Paradoxically, the more rigidly one tries to exclude contradiction, the more virulent become the dialetheias that are possible. I can get around “This sentence is false” by imagining that there are metalanguages that explain what counts as a sentence. Then I can decide that this isn't a real sentence. This is basically Alfred Tarski's strategy, since he invented the notion of metalanguage specifically to cope with dialetheias.20 For example we might claim that sentences such as “This sentence is false” are neither true nor false. But then you can imagine a strengthened version of the Liar such as: “This sentence is not true”; or “This sentence is neither true nor false.” And we can go on adding to the strengthened Liar if the counter-attack tries to build immunity by specifying some fourth thing that a sentence can be besides true, false, and neither true nor false: “This sentence is false, or neither true nor false, or the fourth thing.” And so on.21 It seems as if language becomes more brittle the more it tries to police the Liars of this world. Why? I believe that this increasing brittleness is a symptom of a deep fact about reality. What is this deep fact? Simply that there are objects, that these objects are withdrawn, and that they are walking contradictions. This means indeed that (as Lacan put it) “there is no metalanguage,” since a metalanguage would function as a “middle object” that gave coherency and evenness to the others.22 Since there is no metalanguage, there is no rising above the disturbing illusory play of causality. This may even have political implications: no global critique is therefore possible, and attempts to smooth out or totalize are doomed to fail. To think the zone is to think the notion of temporary , which we shall now begin to discuss in greater detail. The zone is not in time: rather it “times.” But because a zone is an emanation of an object, it is based on a wavering fragility, since objects are p ? ¬p. When an object is born, that means that it has broken free of some other object. An object can be born because it and other objects are fragile. If not, no movement would be possible. Objects contain the seeds of their own destruction, a dialetheic sentence that says something like “This sentence cannot be proved.” Kurt Gödel argues that every true system of propositions contains at least one sentence that the system cannot prove. In order to be true, the system must have a minimum incoherence. To be real, it has to be fragile. Imagine a record player. Now imagine a record called I Cannot Be Played on This Record Player . When you play it on this record player, it produces sympathetic vibrations that cause the record player to shudder apart. No matter how many defense mechanisms you build in, there will always be the possibility of at least one record that destroys the record player.23 That is what being physical is. An object is inherently fragile because it is both itself and not-itself. When the rift between appearance and essence collapses, that is called destruction, ending, death. When an object breaks, several new objects are born. An opera singer sings a loud note in tune with the resonant frequency of a wine glass. (See the movie included below.) The singing is a zone, an autonomous level of intensity, opening a rift between appearance and essence. The glass ripples—for a moment it is nakedly a glass and a not-glass—almost as if it were having an orgasm, a little death. It is caught in the rift of the singing. Then its structure can't handle the coherence of the sound waves, and it breaks. It is incoherence and inconsistency that is the mark of existence, not consistency and noncontradiction. When things break or die, they become coherent. Essence disappears into appearance. I become the memories of friends. A glass becomes a dancing wave. Instantly, there are glass fragments, new temporary autonomous zones. The fragments have broken free from the glass. They are no longer its parts, but emanate their own time and space, becoming perhaps accidental weapons as they bury themselves in my flesh. Thus Hakim Bey's instructions on creating temporary autonomous zones oscillate disturbingly between performance art and politics, circus clowning and revolution. To play with the aesthetic is to play with causality, to rip from the sensual ether emanating from things new regions, new zones. Anarchist politics is the creation of fresh objects in a reality without a top or a bottom object, or for that matter a middle object: Everything in nature is perfectly real including consciousness, there's absolutely nothing to worry about. Not only have the chains of the Law been broken, they never existed; demons never guarded the stars, the Empire never got started, Eros never grew a beard. … There is no becoming, no revolution, no struggle, no path; already you're the monarch of your own skin—your inviolable freedom waits to be completed only by the love of other monarchs: a politics of dream, urgent as the blueness of sky.24 Bey imagines that this is because chaos is a primordial “undifferentiated oneness-of-being.” A Parmenides or a Spinoza or a Laruelle would read this a certain way. Individual objects, or decisions to talk about this rather than that, are just maggot-like things crawling around on the surface of the giant cheese of oneness.25 Yet he also describes chaos as “Primordial uncarved block, sole worshipful monster, inert & spontaneous, more ultraviolet than any mythology.” This image is of an inconsistent object, not of an undifferentiated field. An object, indeed, that can be distinguished from other things. If not, then the first part of The Temporary Autonomous Zone , subtitled “The Broadsheets of Ontological Anarchism,” is a kind of onto-theology. Onto-theology proclaims that some things are more real than others. Bey, however, is writing poetically, and thus ambiguously. We are at liberty to read “undifferentiated oneness-of-being” as something like the irreducibility of a thing to its parts and so forth (undermining and overmining). This certainly seems closer to the language in the following paragraph: “There is no becoming … already you're the monarch of your own skin.”26 On this view, there is no difference between art and politics: “When ugliness, poor design & stupid waste are forced upon you, turn Luddite, throw your shoe in the works, retaliate.” Since Romanticism this has been the war cry of the vanguard artist.27 To say to is to fall prey to the tired axioms of the avant-garde, and we think we know how the game goes. But OOO is not simply a way to advocate “new and improved” versions of this shock-the-bourgeoisie boredom. Bey's text is certainly full enough of that. Rather, since causality as such is aesthetic, and since nonhumans are not that different from humans, the new approach would be to form aesthetic–causal alliances with nonhumans. These alliances would have to resist becoming brittle, whether that brittleness is right wing (authoritarianism) or left wing (the endless maze of critique). No “ism,” especially not the ultimate forms, nihilism and cynicism, is in any sense effective at this point. All forms of brittleness are based on the mistaken assumption that there is a metalanguage and that therefore “Anything you can do, I can do meta.” I will not be listing any approaches here, as Bey does. Such lists and manifestos belong to the vanguardism that no longer works. Why? Not because of some marvelous revolution in human consciousness, but because nonhumans have so successfully impinged upon human social, psychic and aesthetic space. It is the time after the end of the world. That happened in 1945, when a thin layer of radioactive materials was deposited in Earth's crust. Geology now calls it this era the Anthropocene . Ironically, this period, named after humans, is the moment at which even the most thick headed of us make decisive contact with nonhumans, from mercury in our blood to manta rays to magnesium. Richard Dawkins, Pat Robertson and Lady Gaga all have to deal with global warming and mass extinction, somehow. We now live in an Age of Asymmetry marked by a skewed, spiraling relationship between vast knowledge and vast nonhuman things—both become vaster and vaster because of one another and for the same reasons.28 This means that coming up with the perfect attitude or the perfect aesthetic prescription just won't work any more. Even the most hardened anthropocentrist now has to pay through the nose for basic food supplies, and has to use more sunscreen. Whether he knows it or acknowledges it, he is already acting with regard towards nonhumans. There is nothing special to think, no special critique that will get rid of the stains of coexistence. The problem won't fit into the well-established modern boxes, which is why the “mystical,” “spiritual” quality of Bey's prose is welcome. Of course, when I put it this way, you may immediately close off and decide that I am talking about perfect attitudes after all, or something outside of politics, or other ways that the radical left marshals to police its thinking of the nonhuman. Because that is what is really at stake in all this: the nonhuman in its coexistence with the human—bosons, gods, clouds, spirits, lifeforms, experiences, the sunlight rippling across the cypresses. Bey begins to get at this in a Latour litany in the second part of The Temporary Autonomous Zone , “The Assassins”: Pomegranate, mulberry, persimmon, the erotic melancholy of cypresses, membrane-pink shirazi roses, braziers of meccan aloes & benzoin, stiff shafts of ottoman tulips, carpets spread like make-believe gardens on actual lawns—a pavilion set with a mosaic of calligrammes—a willow, a stream with watercress—a fountain crystalled underneath with geometry— the metaphysical scandal of bathing odalisques, of wet brown cupbearers hide-&-seeking in the foliage—“water, greenery, beautiful faces.”29 This will be conveniently dismissed as orientalism. If we're never allowed to escape the crumbling prison of modernity for fear of imperialism there is truly no hope. In a similar way, the fear of anthropocentrism and anthropomorphism is very often staged from a place that just is anthropocentrism .30 Critique turns into ressentiment . An object radiates a zone that is aesthetic and therefore causal. Because objects “time” they are temporary. Not because they exist “in” time that eventually gets the better of them. Their very existence implies the possibility of their non-existence. Since objects are not consistent, they can cease to exist. But nothing, no one, will ever be able to insert a blade between appearance and existence, even thought there is a rift there. Now that's what I call autonomy. NOTES 1. John Cage, Silence: Lectures and Writings (Middletown, CT: Wesleyan University Press, 1973), 96. 2. P. B. Medawar and J. S. Medawar, The Life Science: Current Ideas in Biology (London: Wildwood House, 1977), 8. 3. David DeGrazia, Animal Rights: A Very Short Introduction (Oxford: Oxford University Press, 2002), 5. 4. Antony Colynet, A True History of the Civil Warres in France (London, 1591), 480. 5. Martin Heidegger, Being and Time , tr. Joan Stambaugh (Albany, N.Y: State University of New York Press, 1996) 62–71. 6. Graham Harman, Tool-Being: Heidegger and the Metaphysics of Objects (Peru, IL: Open Court, 2002). 7. Hakim Bey, The Temporary Autonomous Zone (Brooklyn: Autonomedia, 1991). 8. Graham Harman, The Quadruple Object (Ripley: Zero Books, 2011), 7–18. 9. This is not the place to get into an argument about quantum theory, but I have argued that quanta also do not endorse a world that I can't speak about because it is only real when measured. This world is that of the reigning Standard Model proposed by Niels Bohr and challenged by De Broglie and Bohm (and now the cosmologist Valentini, among others). See Timothy Morton, “Here Comes Everything: The Promise of Object-Oriented Ontology,” Qui Parle 19.2 (Spring–Summer, 2011), 163–190. 10. John Donne, Holy Sonnets 15, in The Major Works: Including Songs and Sonnets and Sermons , ed. John Carey (Oxford: Oxford University Press, 2009). 11. Edward O. Wilson, Consilience: The Unity of Knowledge (New York: Knopf, 1998). 12. Martin Heidegger, What Is a Thing? (Washington: Regnery, 1968), 243. 13. Albert Einstein, Relativity: The Special and the General Theory (London: Penguin, 2006); Petr Horava, “Quantum Gravity at a Lifshitz Point,” arXiv:0901.3775v2 [hep-th]. 14. Graham Priest, In Contradiction (Oxford University Press, 2006), passim: the most notable recent quarantine officers have been Tarski, Russell, and Frege. 15. Priest, In Contradiction , 172–181. 16. William Butler Yeats, “Among School Children,” Collected Poems , ed. Richard J. Finneran (New York: Scribner, 1996). 17. Paul de Man, “Semiology and Rhetoric,” Diacritics 3.3 (Autumn, 1973), 27–33 (30). 18. Jacques Lacan, Le seminaire, Livre III: Les psychoses (Paris: Editions de Seuil, 1981), 48. See Slavoj Zizek, The Parallax View (Cambridge, Mass.: MIT Press, 2006), 206. 19. Alphonso Lingis, The Imperative (Bloomington: Indiana University Press, 1998), 29. 20. Priest, In Contradiction , 9–27. 21. See Graham Priest and Francesco Berto, “ Dialetheism ,” The Stanford Encyclopedia of Philosophy (Summer 2010 Edition), ed. Edward N. Zalta. 22. Jacques Lacan, Écrits: A Selection , tr. Alan Sheridan (London: Tavistock, 1977), 311. 23. The analogy can be found at length in Douglas Hofstadter, “Contracrostipunctus,” Gödel, Escher, Bach: An Eternal Golden Braid (New York: Basic Books, 1999), 75–81. 24. Bey, “ Chaos: The Broadsheets of Ontological Anarchism ,” Temporary Autonomous Zone . 25. This is closest to the language of François Laruelle in Philosophies of Difference: A Critical Introduction to Non-Philosophy (New York: Continuum, 2011) 179. 26. Bey, “ Chaos: The Broadsheets of Ontological Anarchism ,” Temporary Autonomous Zone . 27. Peter Bürger, Theory of the Avant Garde (Minneapolis: University of Minnesota Press, 1984). 28. For further discussion see Timothy Morton, “From Modernity to the Anthropocene: Ecology and Art in the Age of Asymmetry,” The International Social Science Journal 209 (forthcoming). 29. Bey, “ The Assassins ,” Temporary Autonomous Zone . 30. Timothy Morton, The Ecological Thought (Cambridge, Mass.: Harvard University Press, 2010), 75–76. (shrink)

The U.S. Supreme Court held, in American Manufacturers Mutual Insurance Co. v. Sullivan, 119 S. Ct. 988, that state workers’ compensation system insurers cannot be sued for withholding health care benefits for work-related injuries while they decide whether the treatment is “reasonable” and “necessary.” The respondents, ten employees and two organizations representing employees who received medical benefits under the Workers’ Compensation Act, brought a 42 U.S.C. § 1983 action against state officials, the Pennsylvania State Workers’ Insurance Fund, private insurers, (...) and the school district, alleging that their due process rights were violated by provisions of the Pennsylvania Workers’ Compensation Act, 77 Pa. Cons. Stat. Ann. § 1 et seq.. The Act permits suspension of benefits without notice or opportunity to be heard pursuant to a “utilization review” process.To control costs, Pennsylvania amended its workers’ compensation system in 1993. Under the Act, an employer or its insurer must pay for all reasonable and necessary medical treatment. (shrink)

Courts, Litigants, and the Digital Age examines the ramifications of technology for courts, judges, and the administration of justice. It sets out the issues raised by technology, and, particularly, the Internet, so that conventional paradigms can be updated in the judicial context. In particular, the book dwells on issues such as proper judicial use of Internet sources, judicial ethics and social networking, electronic court records and anonymization techniques, control of the courtroom and jurors' use of new technologies, as (...) well as the Internet's impact on judicial appointments and the diversity of the judiciary. The second edition includes discussion of current issues in this rapidly developing area, such as privacy protection, the "right to be forgotten," cyber intimidation, freedom of digital speech, and litigant anonymity. Through examination of relevant practical, legal, and ethical issues, it endeavours to extract lessons from the developing issues surveyed and proposes forward-thinking approaches based on proportionality principles. (shrink)

Large-scale data brokers collect massive amounts of highly personal consumer information to be sold to whoever will pay their price, even at the expense of sacrificing individual privacy and autonomy in the process. In this Article, I will show how a proper understanding and justification for a right to privacy, in context to both protecting private acts and safeguarding information and states of affairs for the performance of such acts, provides a necessary background framework for imposing legal (...) restrictions on such collections. This problem, which has already gained some attention in literature, now becomes even more worrisome, as government itself becomes a consumer of this information to fight off a domestic instantiation of the global Covid-19 pandemic. This Article proposes some definite ways in which the courts and Congress might limit both the private sector and the government’s use of such data to ensure individual autonomy will not be sacrificed. (shrink)

This point of view compares the issue of informed patient consent primarily as it operates in Australia and the United Kingdom. It affords an overview, also, of the applicable law in the United States and Canada. It particularly focuses on the legal test to be applied to patient consent as established in the Bolam case in the United Kingdom. The case, following its approval by the House of Lords, holds that the negligent standard in patient consent situations is to be (...) determined, in cases of dispute, in accordance with standards as viewed by a proper body of competent medical practitioners. By contrast, the law in the United States is premised on the notion of the fundamental right of patients to determine what should or should not be done with their own bodies. In Australia the Bolam test has been rejected by the High Court of Australia following earlier decisions in the State Supreme Courts. The Australian courts did not accept that the setting of standards by the medical profession was an acceptable way of determining the entitlements of a patient who has suffered harm. The author places this discussion in the context of greater community awareness of medical procedures, the heightened accountability of professionals and the increasing practice of having a substantial patient input into medical decisions. He also suggests that the differing social and professional attitudes to authority and fundamental rights to be found between Australia and the United Kingdom have influenced the outcome of the cases in the higher courts of both countries. He suggests that the Bolam test is an illustration of the tendency of authority in the United Kingdom to believe that 'Nanny know best'. (shrink)

The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, (...) or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards. (shrink)

Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber opposes (...) the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice. Barber contends that no historical, scientific, moral, or metaethical argument can favor today's negative constitutionalism over Madison's positive understanding. He urges scholars to develop a substantive account of constitutional ends for use in critiquing Supreme Court decisions, the policies of elected officials, and the attitudes of the larger public. He defends the philosophical possibility of such theories while also offering a theory of his own as a starting point for the discussion the book will provoke. This theory holds, for example, that voucher schemes which drain resources from secular public schools to schools that would train citizens to submit to religious authority are unconstitutional; First Amendment issues aside, such schemes defeat what is undeniably an element of the "real welfare" of the people, individually and collectively: the capacity to think critically for oneself. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Dike Phonou: The Right of Prosecution and Attic Homicide ProcedureDavid C. MirhadyAlexander Tulin. Dike Phonou: The Right of Prosecution and Attic Homicide Procedure. Stuttgart and Leipzig: B. G. Teubner, 1996. x 1 135 pp. Cloth, DM 56. (Beiträge zum Altertumskunde, 76)The normal means of seeking redress in Athenian law was through a dike, which the victim brought to the appropriate magistrate, who then conducted the case (...) through the various stages of the Athenian legal process, an initial inquiry, possibly a public arbitration, and finally a trial before a democratic court. What distinguishes homicide from almost every other offense, however, is precisely that its victim cannot seek legal redress because he is dead. So who does? [End Page 639]This short book is devoted to the single aim of supporting the “traditional view” that it was only the members of the victim’s family who had the right to seek this redress through a suit for murder (dike phonou). In a wider-ranging book (almost as short as this one, Athenian Homicide Law in the Age of the Orators), Douglas MacDowell argued in 1963 against that restrictive interpretation: though Athenian law enjoined the relatives (or in the case of a slave, the owner) of the victim to prosecute, it did not order others not to. Others have since followed MacDowell’s lead. Tulin relies on three disparate pieces of evidence, to each of which he devotes one chapter: Drakon’s Code (IG I3 104), [Dem.] 47.68–73, and Plato’s Euthyphro 3e7–5d7.He gives the entire text of Drakon’s Code in Greek, translates most of it in a footnote, but then discusses specifically only the four lines (20–23) that relate most directly to his argument, although he points out many peripheral issues along the way, such as the authenticity of the code and the possibility of interpolation. Without reviewing the evidence in detail, he takes as established that in archaic conceptions of homicide, murder was viewed initially as a violation of a kinship unit, not “any larger corporate entity” (11). Yet the Code itself is an indication of interest, and indeed control, being taken by the larger corporate entity, and the roles it ascribes to the ephetai in the place of the family of the victim need discussion, since they touch directly on Tulin’s central thesis; they do not get it. Ultimately the issue of restrictiveness will be decided on the basis of whether the jussive infinitives that form the injunctions of the Code are to be understood inclusively or exclusively. To Tulin they seem exclusive and restrictive; to me they could be inclusive, calling upon an ever wider circle to take responsibility for sharing in the prosecution. Viewed in isolation, this piece of evidence is inconclusive.In [Dem.] 47.68–73 the speaker, the Trierarch, is concerned to show his own scruples with regard to legal procedure, which prevented him from laying charges for murder against his opponents even after they had killed his old wetnurse. Tulin analyzes the passage in great detail, giving the Greek text twice and reproducing the Loeb translation. Although the presentation is unnecessarily awkward, Tulin is successful in showing that it is in fact the lack of the requisite family or owner’s relationship to the victim that has compelled the Trierarch not to pursue a prosecution for murder. It would have required him and his family to commit perjury with regard to their relationship to the deceased. One lapse in Tulin’s account sticks out, however: his interpretation of the clause (47.69). He translates it as a protasis to the infinitives set out in the funeral nomima: “if there be anyone related to the woman, let him...” (23). But the position of the clause after the second of the three infinitive clauses strongly suggests that it be made to follow that clause as an indirect question: “and (you, Trierarch, must) make a proclamation at the tomb whether there be some relative of the woman.” It becomes clear several lines later that the Trierarch will make this proclamation, since no relative [End Page 640] is required for it. The proclamation involves not... (shrink)

Benhabib recasts the Derridean idea of `iteration' in democratic terms. While adhering to the original idea that both the fundamental terms of political consociation and the identity of the people itself is `radically' open, Benhabib argues that deliberative norms do and should frame the process of reiteration. For the deliberative democrat, the democratic constitution is not a would-be barrier to iterability (which we are told cannot be contained anyway); it is rather a communicative or discursive space in which the (...) hitherto suppressed or not yet present voice of other people finds its way and expands the terms of meaning giving and hence reason giving. The democratic constitution enables iteration; it is one side of a dialectic that relies upon, balances and, in some sense, makes the most of people power. Immigrants, in the final analysis, are the latest group to proclaim their presence in the sphere of constitutional interpretation, and thereby recalibrate the interpretive frame. And when they make their presence known in this way they have truly become a part of the `people'. When, however, they make their presence known in ways that undermine constitutional self-understanding, instead of engaging it, they are `not us'. Benhabib is hesitant to add this last bit, as she is hesitant to admit how much the constitutional identity of a people `rift with otherness' is reliant upon the historical referent and the generative/steering power of the right sort of constitutional court. (shrink)

Where did the right to privacy come from and what does it mean? Grappling with the critical issues involving women and gays that relate to the current Supreme Court appointment, Vincent J. Samar develops a definition of legal privacy, discusses the reasons why and the degree to which privacy should be protected, and shows the relationship between privacy and personal autonomy. He answers former Supreme Court nominee Robert Bork's questions about scope, content, and legal justification for a (...) general right to privacy and pays particular attention to issues involving gays and lesbians. (shrink)

In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it would be possible to analyze (...) whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right. (shrink)

Various human rights issues arise from the intersection of adolescent motherhood and HIV. While health rights may be the most obvious means by which to address such issues through policy development and legislative means, the right to health is not the only human right that may provide recourse or relief in this regard. This article considers an unexplored avenue of approaching such issues through reliance on the right to enjoy the benefits of scientific progress. The International Covenant (...) on Economic, Social and Cultural Rights provides for the ‘right to science’ in article 15(1)(b) and more recently, as elaborated on in General Comment no. 25 of 2020. This article considers how this right can be relied upon to address issues pertaining to adolescent motherhood and HIV. Precedent from a Venezuelan Supreme Court decision is considered, as well as the normative content of the right to enjoy the benefits of scientific progress. This may be another legal means by which to hold states accountable for the health of young mothers and their children, especially as new practices, medicines and treatments emerge regarding HIV. (shrink)

The reality of current clinical practice in the UK is that where a patient’s family refuses to agree to testing for brain stem death (BD), such cases will ultimately end up in court. This situation is true of both adults and children and reinforced by recent legal cases. While recourse to the courts might be regrettable in such tragic cases, if public trust in the medical diagnosis of BD is to be maintained all aspects of the process must (...) be conducted in a way that is transparent and open to scrutiny. This is not an ‘ineffective expenditure’ of resources, but an essential element of a human rights-compliant legal system. (shrink)

An innovative book that provides fresh insights into the neglected field of remedies in both international and domestic human rights law. Providing an overarching two-track theory, it combines remedies to compensate and prevent irreparable harm to litigants with a more dialogic approach to systemic remedies. It breaks new ground by demonstrating how proportionality principles can improve remedial decision-making and avoid reliance on either strong discretion or inflexible rules. It draws on the latest jurisprudence from the European and Inter-American Courts of (...) Human Rights and domestic courts in Australia, Canada, India, New Zealand, Hong Kong, South Africa, the United Kingdom and the United States. Separate chapters are devoted to interim remedies, remedies for laws that violate human rights, damages, remedies in the criminal process, declarations and injunctions in institutional cases, remedies for violations of social and economic rights and remedies for violations of Indigenous rights. (shrink)

In the European Union, the General Data Protection Regulation (GDPR) provides comprehensive rules for the processing of personal data. In addition, the EU lawmaker intends to adopt specific rules to protect confidentiality of communications, in a separate ePrivacy Regulation. Some have argued that there is no need for such additional rules for communications confidentiality. This Article discusses the protection of the right to confidentiality of communications in Europe. We look at the right’s origins to assess the rationale for (...) protecting it. We also analyze how the right is currently protected under the European Convention on Human Rights and under EU law. We show that at its core the right to communications confidentiality protects three individual and collective values: privacy, freedom of expression, and trust in communication services. The right aims to ensure that individuals and organizations can safely entrust communication to service providers. Initially, the right protected only postal letters, but it has gradually developed into a strong safeguard for the protection of confidentiality of communications, regardless of the technology used. Hence, the right does not merely serve individual privacy interests, but also other more collective interests that are crucial for the functioning of our information society. We conclude that separate EU rules to protect communications confidentiality, next to the GDPR, are justified and necessary. (shrink)

Court interpreting in Croatia is a very unregulated field especially regarding the training and the skills that are to be acquired in order to pro- vide accurate translation at courts. One of the prerequisites according to the Regulations on Court Interpreters in Croatia is knowledge of the structure of judicial power, state government and legal terminology. Although the Regulations prescribe that the training should last no longer than two months, the organisations providing such training shorten this to three (...) or four days. Taking into account all that has been said one realizes that in such short time a per- son cannot be properly qualified to practice as a court interpreter. According to the EU Directive on the right to interpretation and translation in criminal proceedings member states should provide adequate training in order to ensure the quality of interpretation and to avoid that suspected or accused persons complain that the quality of interpretation was not good enough to secure the fairness of the proceeding, which according to Article 2 of the Directive they have the right to. Since Croatia joined the European Union on 1 July 2013, it will have to change its Regulations on Court Interpreters in order to com- ply with this Directive. This paper will try to analyze the problems within the scope of court interpreter’s profession in Croatia both in civil and in criminal proceedings. Several examples will be suggested as the possible model for modifying court interpreting in Croatia. Since this profession is often underrated by the national courts, the paper will suggest ways to prevent such views and point out the importance of good court interpretation. (shrink)

A crucial insight in Michelman’s ‘Constitutional Essentials’ is that constitutions may serve a justificatory or proceduralizing aim in modern liberal democracies. Yet the pervasiveness of moral disagreement – all-the-way-up; all-the-way-down – suggests, as I will argue, a democratic-experimentalist turn, which focuses on a non-hierarchical process of stakeholder deliberation and the court’s role in instigating and overseeing that process, ensuring non-domination. I believe that Frank is exactly right in arguing that a liberally justification-worthy political framework-law-in-place is normatively (...) necessary for democratic politics to succeed in divided societies. But I want to suggest that democratic experimentalism can offer further support to this claim. (shrink)

In this essay, I maintain that the issue of whether the right to die is viable as a constitutionally protectable right remains open. I intend to reconcile the Supreme Court's holdings in Glucksberg and Quill by examining the different rationales the Justices offered for their decisions. I do not believe this issue can be resolved simply by asserting that the intention of the actor is different when assisting suicide, as compared to when life-sustaining treatment is withdrawn. Rather, (...) the right to die continues to be viable due to the level of abstraction at which the Court chose to frame the issue in these cases. (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)