This chapter contains sections titled: Analytical Issues The Need for Justification Justificatory Theories References.

The case of highland Yemen up to around the middle of the twentieth century involves a history different from most Muslim societies in that, from 1919, the Yemeni state was independent. The problem I address concerns the utility of thinking about the highland property regime in this era in relation to the categories of "private" and "public." What sort of antecedents existed, at the level of property relations, for later commercial transformations that would culminate in such things as (...) Pizza Hut franchises? In Yemen, the polity of the period was a type of Islamic state, one based on the shari`a in ideology and in application and headed by a classical form of jurist-leader, a figure known as an imam. Prior to the twentieth century, this Yemeni form of a shari`a-based Islamic polity had a thousand year history in the highlands. Shari`a courts had exclusive competence as state tribunals, and judges, trained on old-style law books, heard the full gamut of litigation. By contrast, colonial changes in other Muslim societies typically entailed a sharp alteration and restriction of the sphere of the shari`a, often limiting application to the domain of "family law" alone. At the same time, the highlands had yet to commence the other great and, elsewhere, ongoing modern transformation of the shari`a, codification and legislation, which would not begin in Yemen until after the Revolution of 1962.Highland society at mid-century was agrarian, based primarily on settled plow cultivation, and the associated property regime was almost exclusively "private." In Yemen, the "private" property regime centered conceptually on milk, a category of individual ownership of immoveable property, and on the concept of mal, a commercial commodity. As a form of private, landed property, milk involved rights that could be acquired, alienated and inherited, and the associated agricultural production was based on lease contracts between landlords and sharecroppers. Pious endowments were the basis for one of the great Muslim "public" institutions, which supported mosques, schools, water systems, etc. Another fundamental "public" institution was an extension of the "private" commercial notion of mal into the state institution of the 'House of Mal,' or Treasury. Other key "public" institutions were the imamate itself, a form of Islamic state, and the shari`a court. This shari`a system can be thought of in terms of three levels of legal texts. At the highest level, shari`a doctrine, the jurisprudence of the period, constituted an ideology of the property regime. The doctrine provided models for both the range of substantive undertakings and for court processes, but the relationship of these models to the property relations and to litigation on the ground is a key question. At the lowest level, the routine documents of ongoing, uncontested practice proliferated. These included ordinary sale documents, leases, marriage contracts, endowment instruments, wills and estate inheritance instruments. Between high doctrine and low instruments were the records of shari`a court judgments, records in which the conflicts and contradictions of the property system were expressed, argued and ruled upon. In certain problem areas of the law, the ruling imams's personal doctrinal "choices" were designed to guide court judges in their rulings. (shrink)

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

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Anglo-American private law has been a far more complex phenomenon than is usually recognized. Attempts to reduce it to a single explanatory principle, or to a precisely classified or categorized map, scheme, or diagram, are likely to distort the past by omitting or marginalizing material inconsistent with proposed principles or schemes. Many legal issues cannot be allocated exclusively to one category. Often several concepts have worked concurrently and cumulatively, so that competing explanations and categories are not so much (...) alternatives, of which only one can be correct, as different dimensions of a complex phenomenon, of which several may be simultaneously valid and necessary. This study will be of importance to those interested in property, tort, contract, unjust enrichment, legal reasoning, legal method, the history of the common law, and the relation between legal theory and legal history. (shrink)

Legal philosophers and property scholars sometimes disagree over one or more of the following: the meaning of the word 'property,' the concept of property, and the nature of property. For much of the twentieth century, the work of W.N. Hohfeld and Tony Honoré represented a consensus around property. The consensus often went under the heading of property as bundle of rights, or more accurately as a set of normative relations between persons with respect (...) to things. But by the mid-l 990s, the consensus was under attack. Key figures in the attack were James Penner, a legal philosopher, and Thomas W. Merrill and Henry E. Smith, two highly regarded professors of property law. This article aims to repel the attack and argues for property as a set of normative relations between persons with respect to things. The positive case for this view of property pays special attention to the philosophy of language and the analysis of concepts. The positive case also maintains that the right to use and the power to transfer are as central to property as the right to exclude. It is possible that the virtues of Smith's modular theory of property differ from the virtues of a well-crafted bundle theory. Indeed, it may be the case that these two theories throw light on different features of property law and are not, save at the margin, competitors with each other. The label 'new essentialism' sometimes applied to the work of Penner, Merrill, and Smith seems inapt if property does not have an essence. Of course, they might refuse the label. (shrink)

In the West, the Estate Rights originated in the eleventh century, whereas in Lithuania they started to evolve only after the Wallachian Land Reform in 1557. The then state conventional rules and manners were gradually transformed into registered Country – seat rights. In the present rather concise paper an attempt has been made to present a picture of the development of Country – seat rights as a relatively independent law system and define its concept. The author has attempted to prove (...) that the rules of behaviour, introduced and observed in estates should be recognised as legal regulations for the following three reasons: (1) the publicly recognised exclusive Land property right and the right of the ownership of the people living on this land; (2) the rights were publicly registered in the Land, Castle (City) Law or Court books or in the books of the Tribunal. Thus they acquired official status; (3) the above-mentioned established estate rules were to be legally and obligatorily executed. Their realisation was guaranteed either with the help of the local power apparatus or, if needed, state compulsory measures could be applied. The Estate Rights in Lithuania in the sixteenth to nineteenth centuries comprised the following legal acts: (1) the act of inventory; (2) urban regulations and directions; (3) privileges granted to the owners by the rulers and special ordinances for the realisation of the given privileges; (4) the so-called “release papers/cards” (horty wolnosci) ; (5) the verdicts of the local Courts of Law; (6) the ownership of different objects on the estate ( the estate lands, mills, pubs, tar boiling pits, etc., including the people who could not act freely, rent treaties, foundations, wills with foundation forms legally included, by applying which the estates realised their constitutive cultural initiatives. The Estate Rights were defined as a system embracing the relations of obligatory conduct designed by the estate owner or his authorised institutions or officials. They were meant to maintain the order within the estate, to guarantee and realise the norms of different cultural initiatives as well. Being mostly ad hoc in their form, the Estate Regulations served both the private and public interest. The Estate Rights in the sixteenth to eighteenth centuries in Lithuania were practiced alongside with other existing legal systems, i.e. the Statute Law, Towns and Canon laws, etc. They all reflected the autonomous state of different law subjects and regulated their relations emerging within. At the same time, the estate rules emphasised their relationship with the Statute Law and importance of legality when formulating their own local regulations. The author presumes that the historical mission of the Estate Rules was more important than the Statute Law for the following two reasons: (1) the estate rules regulated the conduct of the majority of the population (in 1971, 64% of the population lived on estates) and (2) estate rules were carried into effect more consistently and accurately. It was guaranteed by a huge number of estate administration personnel who had the right to immediately apply the local force apparatus measures in respect of the violator. The Statute Law was applied to a rather limited layer of the population (the nobility amounted to only 5 or 6% of the country’s population) . Due to the widespread lawlessness of the nobility and the weak administrative power the State Law was seldom applied. Thanks to its daily labor and obedience, the majority of the population absorbed the destructive effect of the nobility on the state. (shrink)

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

I argue there is a distinct and integrated property-concept applying directly, not to things, but to actions. This concept of Property in Activities describes a determinate ethico-political relation to a particular activity – a relation that may (but equally may not) subsequently effect a wide variety of relations to some thing. The relation with the activity is fixed and primary, and any ensuing relations with things are variable and derivative. Property in Activities illuminates many of the vexing (...) problem cases arising in property theory. Communal, intangible, fugacious, hunting, fishing, customary and recreation property rights are not ersatz instances of owning things – they are paradigms of Property Protected Activities. The same is true of the functioning of property in various aspects of contemporary law, its application in philosophical arguments such as Locke’s, and much of its historical application prior to the Nineteenth Century. By illustrating how one stable concept can resolve this myriad of otherwise puzzling cases, I argue that Property in Activities is as important and influential a concept as Ownership of Things. (shrink)

This article is part of a symposium on property-owning democracy. In A Theory of Justice John Rawls argued that people in a just society would have rights to some forms of personal property, whatever the best way to organise the economy. Without being explicit about it, he also seems to have believed that protection for at least some forms of privacy are included in the Basic Liberties, to which all are entitled. Thus, Rawls assumes that people are entitled (...) to form families, as well as personal associations which reflect their tastes as well as their beliefs and interests. He seems also to have assumed that people are entitled to seclude themselves, as well as to associate with others, and to keep some of their beliefs, knowledge, feelings and ideas to themselves, rather than having to share them with others. So, thinking of privacy as an amalgam of claims to seclusion, solitude, anonymity and intimate association, we can say that Rawls appears to include at least some forms of privacy in his account of the liberties protected by the first principle of justice. -/- However, Rawls did not say very much about how he understands people’s claims to privacy, or how those claims relate to his ideas about property-ownership. This is unfortunate, because two familiar objections to privacy seem particularly pertinent to his conception of the basic liberties. The first was articulated with customary panache by Judith Thomson, in a famous article on the moral right to privacy, in which she argued that talk of a moral right to privacy is confused and confusing, because privacy rights are really just property rights in disguise. The second objection has long been a staple of leftist politics, and is that the association of privacy with private property means that privacy rights are just a mask for coercive and exploitative relationships, and therefore at odds with democratic freedom, equality and solidarity. If the first objection implies that Rawls is wrong to think that protection for privacy can be distinguished from protection of personal property, the second objection implies that Rawls cannot hope to protect privacy without thereby committing himself to the grossest forms of capitalist inequality. -/- In this paper I will not discuss Rawls’ views of property-owning democracy. However, by clarifying the relationship between claims to privacy and claims to property-ownership, I hope to illuminate some of the conceptual, moral and political issues raised by Rawls’ ideas, and by work on the concept of a property-owning democracy, which he inspired. As we will see, privacy-based justifications of private ownership are not always unappealing, and privacy is sometimes promoted, rather than threatened, by collective ownership. The conclusion draws out the significance of these claims for the idea of a property-owning democracy. (shrink)

Is copyright a property right? Common law and civil law jurists have debated that issue for over three centuries. It remains at the heart of battles over copyright’s scope and duration today, even if its import lies principally in the rhetorical force of labeling a right as "property," not in any doctrinal consequence flowing directly from that label. In parallel to their common law and civil law counterparts, presentday rabbinic jurists engage in lively debate about whether Jewish law (...) recognizes copyright as a property right. And, as in secular law but for different reasons, that issue has significant repercussions in Jewish law. As discussed in rabbinic court decisions and writings, whether Jewish law accords authors a right of ownership in their works impacts such issues as whether it is permissible, without license from the author or publisher, to copy and distribute software and sound recordings, perform music in wedding halls, make copies for private and classroom use, and download songs from the Internet. There are numerous, and at times profound, differences in the terminology, form of argument, doctrinal specifics, and overarching legal framework of Jewish and secular law. Nonetheless, the arguments within the Jewish law debate have some intriguing parallels with those of secular copyright law. In fact, one finds the direct, if largely unstated, influence of secular copyright just below the surface in the debate in Jewish law about whether copyright is property. (shrink)

Within the field of medical ethics, discussions related to public health have mainly concentrated on issues that are closely tied to research and practice involving technologies and professional services, including vaccination, screening, and insurance coverage. Broader determinants of population health have received less attention, although this situation is rapidly changing. Against this backdrop, our specific contribution to the literature on ethics and law vis-à-vis promoting population health is to open up the ubiquitous presence of pets within cities and towns (...) for further discussion. An expanding body of research suggests that pet animals are deeply relevant to people’s health (negatively and positively). Pet bylaws adopted by town and city councils have largely escaped notice, yet they are meaningful to consider in relation to everyday practices, social norms, and cultural values, and thus in relation to population health. Nevertheless, not least because they pivot on defining pets as private property belonging to individual people, pet bylaws raise emotionally charged ethical issues that have yet to be tackled in any of the health research on pet ownership. The literature in moral philosophy on animals is vast, and we do not claim to advance this field here. Rather, we pragmatically seek to reconcile philosophical objections to pet ownership with both animal welfare and public health. In doing so, we foreground theorizations of personhood and property from sociocultural anthropology. (shrink)

Every description contains within it a qualifier that allows us to avoid the problem of descriptive regress, and thus allows us to use the description for various purposes. Descriptive regress occurs because no one description can be understood without referring to further descriptions, which themselves require unpacking by reference to further descriptions ad infinitum. There are no fundamental descriptions no descriptions that attain and keep some privileged ontological status. The qualifier works by invoking the normal circumstances in which the description (...) obtains. It is impossible to foresee and describe in advance all the circumstances that would not be normal and that would reveal to us when the description could not obtain. It is our common sense the sense we develop as members of communities, and a sense sometimes narrowed and specialized in certain forms of life of what set of normal circumstances are implied into the description that allows us to use descriptions for various purposes (e.g. for describing circumstances in which some normative consequence should follow if the description obtains). This theory of descriptions is particularly relevant to the analysis of the role of descriptions of behavior and behavioral concepts in law. Law, in order to enable the regulation and evaluation of human behavior, cannot do without behavioral foundations criteria for evaluation of behavior are always based on certain descriptions of behavior and behavioral concepts. The theory of descriptions developed explains how descriptions of behavior function, namely, their utility relies on the legal community's common sense of the qualifiers attaching to descriptions of behavior. But that theory also has a reformative agenda: we should not think that any one description or any one behavioral concept such as that of intentionality can do all the work for us, in every area of the law, and in respect of every single social phenomenon. We need, in other words, to rethink the criteria for the evaluation of behavior on the basis of this theory of descriptions: i.e. on both the power and the limitations of descriptions of behavior. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Journal of Aesthetic Education 38.1 (2004) 78-88 [Access article in PDF] Remembering Beauty:Reflections on Kant and Cartier-Bresson for Aspiring Photographers Stuart Richmond In the past few decades beauty has become something of an endangered species in the Western art world. Indeed, beauty has never been a central aim of contemporary art, which has tended to focus on meaning and politics rather than formal values, conceptual art being a (...) case in point. Feminist artists and critics, reacting to the objectification of women in society have rendered attention to women's beauty, especially the nude, impolitic. This is perhaps understandable given the persuasive emphasis on beauty in marketing, that many argue socializes an unhealthy self-image in young people and distracts attention from important social issues. As well, techno-global-business practices increasingly invade our lives and private spaces with a virtual culture of information and efficiency. We do not know how this retreat from the sensual, concrete present will affect human sensibilities and values in the long run, although there are some disturbing signs. Seen as un-cerebral and allied with pleasure, beauty and its alter ego, appreciation, have acquired a decided regressive air. Having said that, for many people at the level of ordinary life — in human relationships, arts activities, and love of nature, for example — beauty never really went away because beauty is a source of pleasure and well-being that we cannot help wanting. As Plato pointed out, beauty is the only visible quality that inspires love. 1 A life of beauty in a free and ethical environment is an invitation to a life worth living. Though I cannot pursue the matter here, it is noteworthy that we often call a person of courage, goodness, and humility, a beautiful human being. Around the world people find many paths to beauty and of late in the Western artistic and academic worlds, beauty seems to be making a comeback. But beauty is a difficult thing to talk about, partly due to its being an experiential concept, partly because it has a long and complex philosophical history, and also because there is the risk in analysis of reducing it to something small and formulaic. Words in the end cannot replace the experience [End Page 78] of beauty. Despite these concerns, however, I believe that now, more thanever in the arts and education, we need to develop capacities for creating and appreciating beauty, if only to bring us back into contact with what is sensual and intrinsically worthwhile after so much arid theorizing, conflict in the world, and technocratic obsession. Through beauty we might be able to regain a stronger sense of human values and pleasure in living. Therefore, my aim here is to re-examine beauty in order to strengthen its role in aesthetic education. I do not expect to develop any precise definitions but I shall aim for a few signposts. Background to the Concept of Beauty "Beauty," "beautiful," or "the beautiful" refer primarily to a quality found pleasing to the senses. Here I shall restrict discussion to the visual domain, and later principally to art. As noted, beauty has a long philosophical history but the concept remains vague. From classical times on, beauty has been defined or associated with such properties as symmetry, balance, variety, harmony, proportion, order, unity, and perfection. And indeed, these features have long provided normative guidelines for the creation and appreciation of beauty. Over time we have learned the shape and proportions of a beautiful pot or supporting column. The golden section, a ratio of 1:1.6, has been used to good effect in design for millennia, the Parthenon being a prime example, the 35 mm negative another. However, as is well known, differences in beauty in individual cases tend to elude definition on account of this or that property or collection of properties. Exceptions can always be found. A painting may be well balanced but lacking in a certain élan vital, or unbalanced but beautiful. The variability of beautiful things seems to rule out a... (shrink)

In this short essay I argue that the main insight of Murphy and Nagel’s book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis that people have a right to the fruits (...) of their labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one’s labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor, and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this last conclusion is not affected by the nature of the right to private property. (shrink)

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay, we argue, negatively, that the prevailing understanding of private property cannot plausibly meet this demanding standard; and develop, affirmatively, a liberal conception which has a much better prospect of meeting property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy (...) and to their relational equality. The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist. Our account generates important implications, both domestic and transnational. Domestically, it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to non-owners’ claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone have the unusual authority typical of full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions brings into question the adequacy of the current state of the law, according to which these interactions are mainly governed by choice-of-law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities. (shrink)

The theme of this issue of Ethical Perspectives is the French tradition in liberal thought, and the unique contribution that this tradition can make to debates in contemporary liberalism. It is inspired by a colloquium held at the Katholieke Universiteit Leuven in December of 2008 entitled “In Search of a Lost Liberalism: Constant, Tocqueville, and the singularity of French Liberalism.” This colloquium was held in conjunction with the retirement of Leuven professor and former Dean of the Institute of Philosophy, André (...) Van de Putte, who found much inspiration in this tradition. A revised version of his valedictory lecture from the conference serves as the final contribution to this issue. Much contemporary liberal political philosophy is currently done in conversation with a line of liberal thinkers starting with John Locke, running through Immanuel Kant and John Stuart Mill, and culminating in the work of John Rawls and his followers. The reasons for the enormous appeal of this philosophical tradition are, among other things, the combination of the central role of the intuitively appealing value of individual liberty with a strong rationalistic, universalistic, and normative character. The thread running through most of these liberal theories is a commitment to what the French liberal Benjamin Constant referred to as “the liberty of the moderns,” that is, liberty in a negative sense, as a lack of interference in one’s activity from others and from government. This focus has expanded over time to include a richer body of civil, political, social, economic and cultural rights, for instance, in the work of liberal thinkers who have tried to integrate the insights of communitarian thought and discourse ethics in their work. However, the emphasis on individual liberty in the negative sense continues to be the normative and theoretical touchstone and default position for many contemporary liberal theories. The limitation of the canon of liberal thought to the aforementioned authors and themes deprives the contemporary debate of a rich source of ideas: the French liberal tradition. Montesquieu, considered to be the father of this tradition, provides a good example of how it can enrich current debates in liberal theory. Montesquieu’s work evinces a keen eye for the dynamics of power relations and the limitations of the power of the better rational argument. His insight that power can sometimes only be checked by an equal and opposing power, so that a system of separation and balance of powers is necessary in order to preserve liberty, is reflected in the foundations of most modern democracies. Montesquieu also argues that contingent environmental, historical, social and economic conditions play a dramatic role in determining what kind of government is appropriate for a particular society. On his view, ignoring these facts when framing a government can inadvertently end in despotism. Montesquieu’s observations challenge us to reexamine some of contemporary liberalism’s universalist and rationalist claims. Benjamin Constant is most famous for his distinction between two kinds of liberty: the liberty of the ancients and the liberty of the moderns. The ancient form of liberty manifested itself in the active political participation of citizens in the ancient republic. While this form of government and decision-making was suitable for small, homogeneous city-states, Constant argues that it is impracticable for large modern nation-states. Hence, the concept of modern liberty shifts to an emphasis on the rule of law and the non-interference of the state in private matters. This form of liberty is familiar to us from contemporary liberalism – and Constant cherishes this form of freedom as much as any liberal does today. However, his position is complex: he also argues that the liberty of the ancients should not be neglected. Active political participation is needed to ensure that the government is executing its duty of preserving the modern form of liberty by publicly pointing out violations. The contemporary relevance of Constant’s work is clear when we consider the alleged “democratic deficit” that plagues the EU and international institutions such as the UN, the IMF, and the World Bank. Not only does this democratic deficit threaten the modern form of liberty by placing decision-making processes out of sight of the people, it also threatens citizens’ sense of self-respect derived from self-governance. Constant’s argument for the necessity of combining the liberty of the ancients with that of the moderns provides a fruitful resource for confronting these contemporary issues. Tocqueville’s work on liberalism benefits from his opportunity to observe a society founded on liberal democratic principles – the United States of America – in action. In his Democracy in America, he examines the social consequences, both intended and unintended, of building a society on ‘the equality of conditions’, as he defines ‘democracy’. Tocqueville sees a tension between the democratic value of equality and the aristocratic value of the rule of the best. He observes that democratic societies do not necessarily choose the best leaders and instead promote mediocrity instead of virtue, talent, and excellence. Democracy also confronts citizens with the threat of ‘soft despotism’, where a government that preserves the outer signs of the liberty of the moderns nevertheless controls the behavior of its citizens in minute detail through a system of detailed rules ostensibly aimed at their welfare. This paternalism is an even more insidious threat to liberal values than the hard variety of despotism, since it is so difficult to detect and done in the name of liberal values themselves. Taking Tocqueville’s observations seriously would add complexity to attempts to theorize about the modern social-democratic welfare state. The contributions to this issue supplement and critique mainstream liberal thought and its relation to contemporary issues through a serious engagement with the French liberal tradition. Annelien De Dijn’s contribution discusses Bertrand de Jouvenel, a lesser-known 20th Century representative of the French political tradition she terms ‘aristocratic liberalism’. This tradition has its roots in the work of Montesquieu, and emphasizes the importance of intermediary bodies, most importantly the aristocracy, in providing a check to the top-down power of despotic state authorities and the bottom-up power of revolutionary leveling tendencies, both of which threaten liberty. De Dijn situates Jouvenel in this tradition, but then indicates an important difference between his thought and that of his predecessors: his most significant work, On Power, is not only on French history, but on European history. Pointing to the enthusiastic reception of this work in the Anglophone world, she suggests that the rise of totalitarianism in Europe gave the anti-totalitarian features of aristocratic liberalism a broader appeal. Valentino Lumowa’s paper concerns Constant’s classic text, The Liberty of the Ancients Compared with that of the Moderns. Lumowa argues that in order to understand Constant’s piece, we must be aware that its two parts were written under different historical circumstances and decipher the argumentative thrust inherent in the text. Following Stephen Holmes, he argues that to understand the shift Constant made in the second part of the text, we should read it within the context of the increasing influence of the ultra-Royalists in the legislature during the Bourbon Restoration. However, in contrast to Holmes, he contends that the spirit of both civic and individual freedom, which enlivens representative system, is the backbone of the text in its unity. Demin Duan’s essay investigates an apparent ambivalence between liberal and imperialist tendencies in the work of Alexis de Tocqueville, which has already drawn some attention from Tocquevillian scholars. These interpretations of Tocqueville and his writings on empire generally agree that Tocqueville stands in a recognized tradition of liberalism, which is characterized by respect for human rights, individual freedom and a sense of universal humanism. On this standard view, Tocqueville’s support of imperialism represents nothing but an unfortunate breach of his own otherwise consistent liberal thinking. Duan’s article questions this standard position. By questioning the assumption of Tocqueville’s liberalism in the first place, he tries to gauge the influence of both the old republican tradition and the new liberal perspective on his thinking. In conclusion, he argues that Tocqueville’s overall thought, especially his notion of freedom, is very much informed by an old republican tradition. His support of French imperialism could be better understood from this perspective rather than be rendered simply as a deviation from liberal norms. Pawel Marczewski’s contribution is an attempt to show that Tocqueville’s conception of liberty transcends the divisions between negative and positive aspects of freedom. He begins by juxtaposing this conception with the opposition drawn by Constant between liberty of the ancients and liberty of the moderns. While Tocqueville and Constant shared a concern for the preservation of individual rights, Tocqueville was much more reluctant to accept the modern loss of the communal dimension of liberty. He did not accept the view that jouissances privées, private pleasures, are the main compensation that the modern world has to offer for the lost ancient treasure of political participation. The essay then looks into the relevance of Tocqueville’s standpoint for current debates between liberal defenders of negative freedom and republican advocates of freedom as non-domination. Participants on both sides of the debate seem to be so devoted to showing that their particular approach provides the best guarantees against actual and possible threats to liberty that they overlook the fact that their definitions of freedom remain significantly similar. By arguing that ‘to be free is to be guided by one’s own will’, contemporary republicans, as well as their liberal counterparts, move along the lines drawn by Constant towards private pleasures. By questioning the inevitability of this turn, Tocqueville provides us with a valuable contribution to these discussions in contemporary political philosophy. Finally, André Van de Putte’s contribution, an adaptation of his emeritus speech that closed the conference on French Liberalism, appeals to Tocqueville in order to draw attention to the importance of intermediary, dialogical bodies in mitigating the implicit despotic tendencies of the democratic drive to equality. In Tocqueville’s view, the transition from the feudal corporate inequality to democratic individual equality was not a clean break. Rather, this transition is a continual process of democratization that is driven by a desire for equality, or egalité des conditions. This dissolution of distinctions of estate, class and status has the unintended consequence of concentrating the diffuse power of these entities into a centralized state, which is responsible for ensuring the equality of all under the law. This process leaves increasingly isolated and atomized individuals to face the power of a monolithic state in defense of their freedom, and moves toward a soft, paternalistic despotism. Constant’s freedom of the moderns is not sufficient to protect individuals from this centralized power. Democracy also requires the political freedom of the ancients. Van de Putte argues for a system in which atomized individuals organize themselves into intermediary bodies that, in a Montesquieuian balance of powers, can enter into dialogue with each other and the state on more equitable terms. Van de Putte’s contribution closes with a plea for a conception of democracy as a regime of dialogue. (shrink)

The concept of self-ownership was first articulated in anglophone political thought in the decades between the outbreak of the English Civil War and the Glorious Revolution. This book traces the emergence and evolution of self-ownership over the course of this period, culminating in a reinterpretation of John Locke's celebrated but widely misunderstood idea that "every Man has a Property in his own Person." Often viewed through the prism of libertarian political thought, self-ownership has its roots in the neo-Roman or (...) republican concept of liberty as freedom from dependence on the will of another. As Lorenzo Sabbadini reveals, seventeenth-century writers believed that the attainment of this status required not only a specific kind of constitution but a particular distribution of property as well. Many regarded the protection of private property as constitutive of liberty, and it is in this context that the vocabulary of self-ownership emerged. Others expressed anxieties about the corrupting effects of excessive concentrations of wealth or even the institution of private property itself. Bringing together canonical republican writers such as John Milton and James Harrington, lesser-known pamphleteers, and Locke, a theorist generally regarded as being at odds with neo-Roman thought, Property, Liberty, and Self-Ownership in Seventeenth-Century England is a bold, innovative study of some of the most influential concepts to emerge from this groundbreaking period of British history. "This book is a major achievement, offering a novel and highly original account of property and liberty in seventeenth-century English republican thought. It is a brilliant piece of scholarship that makes an important contribution to the history of early modern political thought." Markku Peltonen, University of Helsinki. (shrink)

This article redescribes early modern European defenses of private property in terms of a theoretical project of seeking to establish the true or essential nature of property. Most of the scholarly literature has focused on the historical and normative issues relating to the various accounts of original acquisition around which these defenses were organized. However, in my redescription, these so-called “original acquisition stories” appear as methodological devices for an analytic reduction and resolution of property into (...) its fundamental elements and axioms. Through these stories, property is “created” in the form of the classical liberal paradigm of presumptively exclusive, private ownership of material things. The problem is that this project of “creation” is also a project which arbitrarily excludes or marginalizes other forms and systems of property, and especially usufructuary forms of common property. After critically explicating this early modern project of creation, I go on to argue that the classical liberal paradigm and its problems continue to inform property theory and discourse in the late modern era. (shrink)

In a capitalist economy, taxes are the most important instrument by which the political system puts into practice a conception of economic and distributive justice. Taxes arouse strong passions, fueled not only by conflicts of economic self-interest, but by conflicting ideas of fairness. Taking as a guiding principle the conventional nature of private property, Murphy and Nagel show how taxes can only be evaluated as part of the overall system of property rights that they help to create. Justice (...) or injustice in taxation, they argue, can only mean justice or injustice in the system of property rights and entitlements that result from a particular regime. Taking up ethical issues about individual liberty, interpersonal obligation, and both collective and personal responsibility, Murphy and Nagel force us to reconsider how our tax policy shapes our system of property rights. (shrink)

Preface The status of sovereignty as a highly ambiguous concept is well established. Pointing out or deploring, the ambiguity of the idea has itself become a recurring motif in the literature on sovereignty. As the legal theorist and international lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and confusion is as great as here.” 1 The concept of sovereignty is often seen as a downright obstacle to fruitful conceptual analysis, carried over from its proper (...) setting in history to “plague and befog contemporary thought.” 2 . . . So contested is the concept that, rather than pursuing the contestation, many political theorists think we should give up so protean a notion. Granting that the debate on the relevance of sovereignty frustratingly oscillates between claims that it will either continue to exist or that it is about to disappear, forgetting it altogether, and thereby escaping this seemingly endless argument, can easily appear as the most urgent task for political theory . The following argument makes a case that the “urgent task” is not the abandonment of the concept of sovereignty, but an understanding of its essential philosophical nature as an integrated and evolving expression of practical reason. Sovereignty is neither ambiguous nor obscure once its fundamental presuppositions are laid bare and its many philosophical and historical manifestations shown to be the product, in actuality, of a single, dialectally dynamic but integrated set of metaphysical elements. This is the first of three arguments describing the evolution of international law as a manifestation of practical reason through an application of philosophical method to the source , locus , and scope of the concept of sovereignty. It moves from a dialectic balance favoring utility to a balance dominated by legal right to a dialectic of duty to humanity and nature. All three arguments are meant to be a contribution to the new field of International Legal Philosophy as defined by Phillip Allott. 4 This field combines a sensitivity to legal practice with an effort to understand the underlying philosophical determinants of empirical choice and behavior. One purpose of international legal philosophy is to “remove” from the minds of those who study the law what Diderot defined as “the sophism of the ephemeral,” and what Allott calls “the disempowering idea that what xii Preface happens to exist now is inevitable and permanent.” 5 A core imperative is to “reunderstand what it is to be a thinking being” 6 and to rediscover the dialectic between the private and the public as it determines, and is redetermined by, legal practice. This requires a “revolution in the human mind” 7 so that we may transcend the current dependence on positivist methods and empirical fact as an end-in-itself, and try to understand the underlying and more constant and essential ideas and inherent dialectics that constitute the substructure or “metaphysics” of international law. I will approach this “revolution” with the use of R. G. Collingwood’s philosophical method 8 and the philosophy of David Hume, applied to international law as an expression of practical reason. The goal of philosophical method is the construction of a comprehensive policy argument (CPA) for a public policy or legal issue. In addition to the conventional use of empirical models and their logic of investigation in the study of policy and law, CPA requires that an underlying philosophical logic of concepts be deciphered to identify the ideas within the issue, and their definition, overlap, and systematic interdependence. Philosophical method is a means with which to interpret and understand competing systematic and complete conceptual logics, existing at the core of an issue and pertinent to policy change. Philosophical method is therefore not meant to be a replacement for the empirical investigation of a policy or legal issue, or the use of scientific method in social studies. Rather, it is a complimentary and prerequisite method that seeks to transcend the limitations of positivism and present a more complete understanding of the philosophical presuppositions of positivist ideas like power, interest, or strategic rationality. Philosophical method is meant to be used with the facts of the policy or legal issue to match an illuminating logic of concepts with a pertinent logic of investigation . Within the CPA, the use of philosophical method and the metaphysics of a policy or legal issue is assumed to be critical to the full understanding of the overlapping concepts, dialectics, and scale of forms that determine, and are determined by, the empirical context of the policy or legal topic. Specifically, instead of utilizing bits and pieces of various theoretical arguments to address narrowly focused empirical questions, as positivism prescribes, I will address the evolution of international law as practical reason in three phases. Each will be approached through a single integrated logic of philosophical concepts from a particular philosopher (i.e., David Hume, G. W. F. Hegel, Immanuel Kant). This philosophically holistic approach to the law is based on the assumption that only through the use of a single integrated argument in legal analysis can sovereignty, or any concept, be understood as a truly systematic and logical whole. A complete philosophical paradigm has a dialectic integrity and systematic logic that can more adequately describe the evolving essence of a concept like sovereignty. This approach also has the advantage of generating a number of distinct holistic descriptions of the law through the application of different philosophical systems, one at a time, to its factual structure. 9 Positivism does not seek Preface xiii holism, and rejects the idea that “theory” has such a characteristic. The essential or comprehensive substructure of any idea is therefore ignored in a method that recommends the observation of empirical problems through the use of whatever hodgepodge of theoretical elements is seen fit to frame its superstructure. This failure to deal with metaphysics has retarded both an essential understanding of international law as a species of legal system, and any holistic and dialectical conceptualization of its inherent concepts, like sovereignty. A second positivist convention expects modern theorists to create new theory rather than to refine and apply that of existing philosophy. This predisposition is driven by the positivist goal of discovery that ignores refinement as a possible purpose of philosophical analysis. Collingwood argues that philosophy must take that set of ideas already known and utilize existing systematic philosophical arguments to refine them so that they evolve closer to their essence as concepts. Considering this imperative, the idea of sovereignty can be assumed to have had valid usage for hundreds of years, over which time, the concept has evolved to mean different things, each a refinement of the definition that preceded it. Transcending positivism means that the scholar’s search is not for “new” material, but to decipher the metaphysical essence of a concept as it has been made manifest over time and context. These manifestations are rooted, and refined from, the known terms of that concept’s inherent idea(s). Rather than depending exclusively on positivism and its conventions, my work utilizes, in addition to Collingwood, the intact philosophical systems of Hume, Hegel, and Kant to trace the refinement of international law as a product of human practical reason. These paradigms, or integrated systems of logical concepts, will be applied to legal practice individually, so that each CPA can be deciphered separately. This provides a set of integrated and logically intact paradigms for the evolutionary stages of practical reason in international law. Because each argument is applied systematically, a deeper understanding of the source, locus, and scope in the development of law in general, and international law in particular, is possible where it is not with the application of various disconnected components of many theories. Each CPA based on Hume, Hegel, or Kant can then be used to describe a distinct context that its logic of concepts best illuminates; specifically, the (1) genesis, (2) contemporary dilemmas, and (3) future of the international legal system. By widening the perspective of international lawyers and policymakers, they can more easily perceive the dialectic of ideas that has created, and is refined by, the legal practice in which they participate. We also move toward Allott’s goal of “human self-perfecting.” 10 And, in addition, by providing a more complete knowledge of the origins of legal practice and its evolution, we illuminate the practical possibilities for what we might “choose to be” 11 in the future. To achieve this, the essential metaphysical elements of state sovereignty and its inherent evolutionary scale of forms will be deciphered and described. This will transform what appears to be a multitude of definitions and xiv Preface practical realizations of the concept of sovereignty into a set of interdependent manifestations of a single substructure, made of a single set of dialectic elements. The interpretation of international law through practical reason sorts and integrates a diverse and discordant literature and defines state sovereignty as a single concept evolving on a scale of forms that allows it to exhibit diverse character traits, all arising from different combinations of common and essential metaphysical elements. This approach, compared to positivist methods and legal realism, allows one to transcend current agreement that sovereignty is, at best, a narrowly focused set of empirical characteristics or, at worst, “organized hypocrisy.” 12 This method also encourages the scholar and practitioner to understand the predispositions and pitfalls of the concept of sovereignty, as well as its potential future paths, more effectively. The use of philosophical method to create policy paradigms out of preexisting philosophical systems and apply these to international law will be called Philosophical-Policy & Legal Design . This approach allows the use of preexisting and complete philosophical arguments that provide an adequate logic of concepts to chart the evolution of the idea of sovereignty along its scale of forms. An examination of the source of practical reason in human social convention with the employment of a philosophical-policy drawn from Hume’s logic of concepts about human nature will demonstrate this new approach. Why Hume? Because, up to now, without an adequate substructure we have arguments, like Brunne é’ s and Troope’s, 13 that may correctly identify international law as an “interactional” system, but cannot present any argument as to why it is, where this empirical reality comes from, or what its implications are for the future. Comparatively, Hume provides a logic of philosophical concepts that answers these concerns. First, he fulfills the requirements for a fuller understanding of the origin and evolution of law from social convention and the dependence of social convention on the human imperative for society. Second, he offers a more adequate delineation of the overlapping concepts of the law in terms of the ideas and institutions that deal with norms and justice (e.g., principle, process, practice, rule, power, interest). Third, he provides a fundamental understanding of the essential dialectics at the core of a conceptualization of the law with both unconscious and conscious human participation (i.e., passion. (shrink)

The institution of private property lies at the heart of contemporary Western societies. However, what are the limits of property ownership? Do principles of justice require some measure of governmental redistribution of property in order to relieve poverty or to promote greater equality among citizens? And what do principles of justice have to say about individuals' ownership of their own talents and the products of their labor, and about the initial acquisition of land and natural resources? The (...) essays in this volume, written by eleven prominent political and moral philosophers, address these questions and explore related issues. A number of them consider the theoretical foundations of property ownership, asking how the rights of individuals to acquire property can be justified, and how extensive these rights are. Some focus on the concept of self-ownership, discussing how the individual's right to control their own mind, body and actions relates to their right to gain control over extrapersonal objects and resources. Others look at connections between property ownership and various values, including democratic political participation and equality of wealth and opportunity. (shrink)

The most pronounced and fundamental characteristic of Chinese ethical thought was the integration of ethical principles and the lineage relationships under the rule of the clan law , which brought about the formation of a clan-law system whose core components were the concepts of loyalty and filial obedience . All other characteristics of Chinese ethics in other areas stemmed from, or can be extrapolated from, this particular characteristic. The difference between China's traditional society and those of classical Greece or (...) Rome lies in the fact that it came to the stage of being a civilized society through its own peculiar route. Comrade Hou Wailu once summed up these different routes of entrance into civilized society in the following way: [The path followed by the] ancient world of the classical era [in the West] is a path represented by the transition from the tribes or clans to private property ownership, and then to the state . It is a model of transition in which the state took the place of the clan. On the other hand, [the path followed by] ancient and traditional Asia was a [more direct] transition from the clan to the state, in which the state came to be mingled with the clan—this is what is meant in Chinese by the term society . The fundamental difference between these two patterns is that in the former model, the state demolished the relationships that had existed in the lineage-bound clans, and therefore, in that model, innate and necessary connections did not exist between the clan and the state. The latter model was quite the opposite. Not only were the lineage clans never demolished; on the contrary, they became the foundation on which the state relied for its existence. The state was mingled in with the clan, and there was no separation between clan and state. It is precisely this odd mixture, or integration, of clan and state that produced the feudal clan-law system that not only existed in China for several thousands of years, but also persisted stubbornly throughout Chinese history. It is also this mixture that produced the corresponding political-ethical feudalistic clanlaw ideology. (shrink)

The ethical and philosophical foundations of marital property rights have profound implications not only for legal structures but also for religious and moral frameworks governing marriage and family life. In many religious traditions, the joint property of spouses is not merely a legal matter but is deeply intertwined with theological understandings of marital unity, stewardship, and moral responsibility. This study examines the ethical logic underpinning the right to dispose of joint marital property in the context of the (...) Marriage Law, incorporating religious and philosophical perspectives on ownership, duty, and justice within the marital relationship. Building upon legislative ethical principles, this research explores the application of spousal property rights through a normative and moral lens. A structured assessment is conducted using a questionnaire designed to evaluate the ethical and normative dimensions of legal provisions governing the disposal of joint marital property. Findings reveal significant inconsistencies in judicial rulings concerning spousal property rights, where similar factual circumstances yield differing legal outcomes based on interpretative variances. The study underscores the necessity of standardizing and improving legal frameworks while considering their ethical and theological coherence. Although the legality and rationality of current legislation are relatively well-established, the enforceability of these provisions remains inadequate, with a low assessment score of 2.51, highlighting the need for further revisions to ensure moral and practical effectiveness. This research contributes to the broader discourse on the intersection of religious ethics, legal philosophy, and marital property law. By incorporating perspectives from Christian, Islamic, and Confucian traditions on marital stewardship and economic justice, it advocates for a more holistic approach to legislative reform that aligns legal norms with ethical and spiritual principles. Future studies should further explore how theological conceptions of marriage, family responsibility, and shared ownership can inform legal interpretations and enhance the moral legitimacy of marital property laws in diverse cultural and religious contexts. (shrink)

This article focuses on the analysis of the main positions of the Constitutional Court of the Republic of Lithuania in the cases of intellectual property law. In the article three judgments and the positions of the Constitutional Court extracted therefrom are analysed. The Constitutional Court has formed several important positions with reference to intellectual property law regarding usage of property protection norms for the protection of intellectual property, requirements of application of compensation as an alternative to (...) damages compensation and the calculation of criterions thereof as well as functional legal protection of trademarks. It should be noted that Article 23(1) of the Constitution of the Republic of Lithuania has extended protection to property and, as the Constitutional Court of the Republic of Lithuania has noted, the constitutional protection of property covers not only the protection of tangible, but also of intellectual property. In the same judgment, the Constitutional Court stated another important intellectual property related rule, namely that constitutionally established property protection rights have to be implemented regardless of whether a corresponding international treaty has not been ratified, as protection of authors’ rights is granted under Articles 23 and 42(3) of the Constitution of the Republic of Lithuania. However, the second position stating that the rights of foreign subjects are to be implemented even though a corresponding international treaty has not been signed is to be criticised as by coming to such a conclusion the Constitutional Court has ignored the otherwise generally recognised principle of territoriality of intellectual property rights. In two other cases the Constitutional Court has made important statements relevant to intellectual property law. First of all, the Court stated that compensation instead of claiming actual damages is constitutional. By analysing the positions formulated by the Court, an indirect conclusion can be made to the effect that compensation instead of claiming actual damages is necessary in order to ensure effective protection of intellectual property rights. In other words, the purposes of compensation can be recognised: restoring (compensating) the infringed interests of the injured party; simplifying judicial proceedings, whereby faster proceedings (litigation) and easier substantiation is sought; and the preventive purpose (strong preventive effect). However, the Court’s argument regarding the criterion of compensation calculation, saying that the damages incurred by the intellectual property rights owner depend on the sale value of the product concerned is criticisable, as it is rarely the case that the licence fee or profit acquired in the result of unauthorised use of intellectual property objects is calculated with reference to the final sale price of the product. Notwithstanding the arguably weak argument of the Court, the Court’s position regarding the criterion of final sale price itself does not preclude the possibility of reaching a fair final decision. Finally, the Court acknowledged that trademark protection was limited to the economic functions of the trademark and the full protection thereof. (shrink)

This article sets out a new conception of ‘property as an asset of resilience’. Building on Fineman’s emphasis on ‘webs’ of resilience, and applying insights from Actor-Network Theory and Resilient Property Theory, we examine how the rhetorical claims asserted by owners and non-owners, individually and collectively, and the ways that law recognizes and endorses those claims, affect the production of property-as-resilience. Applying Fineman’s framework, we argue that the ‘embodiment’ and ‘embeddedness’ of human vulnerability is revealed by the (...) necessary and inevitable relationship we have with land, housing and place. Everyone—including homeless people—must ‘be’ somewhere (embodiment); however, it is our ability to access ‘assets of resilience’ through our social embeddedness in institutional structures and relationships that mitigates (or not) our experience and life opportunities. In this article we analyze the nature of real property as an asset of resilience, the consequences of exclusionary concepts of ownership for how resilience is allocated, and the implications for how we think and talk about ‘exclusion’ and ‘inclusion’ in property theories and property law. We consider the roles that states perform in the allocation of property as an asset of resilience: both directly, through the protection and enforcement of private property rights and official narratives about the nature of private property; and indirectly, as owners leverage the hinterland of privilege extended to ‘ownership’ and owners to deepen their own networks of resilience. (shrink)

This study deals with the protection of intellectual property rights in French and Iraqi civil law. This is because the literary and life creativity in Iraq is declining, it is difficult to invest money in new things, and the number of people who comply with the artificial laws made since 2003 is increasing, and secondly, another reason, people's ignorance of the existing laws in Iraq. Iraq, so it is necessary. In each legislation, legal mechanisms are used to promote media (...) and life publishing and help people make money in the process of inventing literary and life works, which can be achieved by granting them a series of intellectual property rights that represent different privileges. From the fundamental rights of people, which are psychologically and morally valid at one or more points in time. This leads us to delve deeper into these rights, which have been incorporated into civil subjects since the creation of some of them through exchanges between authors and publishers or those who own innovative objects. This returns to the ownership model of the target company. In this way, we will mainly discuss the issue of intellectual property rights and carefully discuss the specific rights divided between the French Civil Code and the Civil Code, and then turn our attention to the two themes of law and incentives. The Civil Code collapses. This consists of comparing the independence of intellectual property rights, mainly regulated by French and Iraqi civil laws, and secondly with some provisions of the model. (shrink)

An absolutist concept of property has the power to shape and constrain the public imagination. Libertarian theorists normatively embrace this concept. Yet its influence extends far beyond these proponents, shaping the views of an otherwise diverse array of theorists and activists. This limits the ability of environmentalists, among others, to respond coherently to challenges from property rights advocates in the U.S. I sketch an alternative concept--rooted in practice--that understands private property as necessarily embedded in social and ecological (...) relations, rather than constrained by these relations. I argue that this concept can prefigure a more robust environmentalism. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 42.1 (2004) 100-101 [Access article in PDF] Kathy Eden. Friends Hold All Things in Common: Tradition, Intellectual Property, and the Adages of Erasmus. New Haven, CT: Yale University Press, 2001. Pp. ix + 194. Cloth, $35.00. When Erasmus returned from England to the continent in 1500 almost all his money was confiscated before he embarked, although his patron, Lord Mountjoy, had assured (...) him that customs regulations applied only to English currency. Upon his arrival in Paris—poor as a church mouse and feeling rather unwell—he immediately set out writing a new gift for his patron, lest Mountjoy would assume that the humanist was angry with him. A few days later Erasmus had gathered a modest collection of 818 proverbs or adagia, a "treasury or storehouse of the accumulated wealth of classical antiquity collected for common use and thus one of his principal contributions to a cultural program for cooperation," as Kathy Eden defines them (4); not a material but an intellectual wealth, a wisdom transmitted throughout generations and civilizations in the form of proverbs.This Adagiorum Collectanea became a bestseller because it provided both humanists and careerists with numerous bon mots to embellish their (Latin) style and to enhance their arguments. During his first visit to Italy Erasmus spent a few months in the household of the famous humanist and printer Aldus Manutius in Venice. This resulted in a reissue in [End Page 100] 1508 of what was now entitled Adagiorum chiliades, since the collection had been expounded to 3260 proverbs. It opened with 'Friends hold all things in common', an ancient wisdom acknowledging the commonality between friendship and property. Eight more official editions came from the press with an ever-increasing number of adagia, up to 4151 in the final edition, published as volume two of the collected works (Basle: Froben, 1536). Erasmus kept also enlarging the entries themselves, some of them becoming small essays—for instance, the famous Festina lente (Adag. II i 1) or the equally well-known Dulce bellum inexpertis (Adag. IV i 1)—which were even republished separately.In her introduction to Friends Hold All Things in Common Kathy Eden gives a quick survey of the genesis of the Adagia referring her readers for further information to more specific studies on the topic. In keeping with the opening adage she focuses on the ancient philosophical tradition that Erasmus claims as his intellectual inheritance from the past, a tradition rooted in the legal transfer of property. The humanist inherits his understanding of both friendship and property from an ancient philosophical tradition going back to Pythagoras and Plato, as well as Aristotle and Cicero. This pagan tradition is confronted and linked with the concepts of early-Christian writers, such as Tertullian, Origen, Jerome, Basil and Augustine. Not only is there a similarity between some ideas of pagan philosophers and Christian thinkers; they can even be a source of inspiration to pious living. The publication of the Adages also reflected changing attitudes and practices concerning property: thanks to the press of Manutius in Venice (and later of Frobenius in Basle), an increasing number of people was able to appropriate the heritage of classical wisdom, which had hitherto been the intellectual property of only very few. It was precisely in Venice, around the transition from the fifteenth to the sixteenth century, that the first laws regarding intellectual property—be it copyright of the author or protection of the printer's efforts—began to make an occurrence.The author proves to be well-read in both classical, biblical and patrologic sources—I particularly appreciated her combinations and confrontations of pagan and Christian sources. Of course, she is thoroughly familiar with Erasmus's Adagia, too, with an occasional excursion towards his other pedagogical treatises, such as the Antibarbarus, the Enchiridion or the Paraclesis, an adhortation to study Christian philosophy.Friends Hold All Things in Common is a carefully edited publication with hardly any noticeable language or printing errors. As a classicist I feel slightly disappointed... (shrink)

Recent scholarship has gone a long way toward placing Locke in his intellectual and historical context, and thus in coming to see the respect in which his work has a previously unacknowledged conceptual unity. There remains, however, some difficulty in reconciling the style, purpose and content of his two major works. The Essay Concerning Human Understanding is usually read as primarily concerned with issues in epistemology and philosophy of science, while the Two Treatises of Government is regarded as less (...) systematically rigorous, or at worst ad hoc political analysis. These two sides of Locke thus remain virtually unrelated fields of specialization among interpreters. ;My dissertation is a contribution to the project of understanding Locke's work as a connected whole; without attributing to him an attitude of scientific reductionism, I argue that the account which Locke gives of personal property in the Second Treatise bears an important relation to his account of qualities and personal identity in the Essay. Specifically, I try to make plausible the claim that there is in Locke a direct analogy between the property of a human person, on one hand, and the properties of a natural substance on the other. I suggest that Locke's methodological atomism in science and epistemology parallels his qualifiedly individualistic political theory, and thus that his claims about private property can be understood in terms of a broader philosophical context than is usually supposed. ;As part of a larger project concerning the genealogy of the concept of property and the relation between metaphysics and morality, I expect this work to have useful implications regarding much of contemporary moral and political theory. Given the historical influence of Locke's political work, a careful analysis of it in terms of its epistemological and scientific grounding should contribute to a rethinking of much twentieth century work on property and justice. (shrink)

May a hotel owner that objects to same-sex marriage on religious grounds refuse to host a same-sex wedding in its ballroom or deny the couple the right to book the honeymoon suite? Do public accommodation laws oppress religious dissidents by forcing them to act contrary to their religious beliefs or does discriminatory exclusion threaten equal access to the market economy and deny equal citizenship to LGBTQ persons? Answering these questions requires explaining why one property claim should prevail over another (...) and why one liberty should prevail when it clashes with another. And answering those questions requires analysis of the relationship between property and sovereignty. Sovereign power both creates and regulates the types of property rights that can be tolerated in a free and democratic society that values each person equally. Should we view sovereignty as a threat to property or property as a threat to sovereignty? Libertarians choose the first and liberals the second. But this is the wrong way to understand the relation between property and sovereignty. Property and sovereignty are not separate and independent concepts or spheres of social life that can be brought into relationship with each other. Rather, they are imbricated; they overlap like roof tiles. Our aspiration to live in a free and democratic society places certain constraints on both property and sovereignty. Such societies do not recognize absolute power, whether public or private. Free and democratic societies are committed to a substantive vision of both social relations and politics. We have fruitful debates about property and sovereignty and, in the end, must construct a legal system that effects an acceptable compromise between access and exclusion in the property regime. Our historic practices regarding racial and other forms of discrimination and our evolving norms suggest that public accommodation laws enable access to the marketplace without regard to invidious discrimination. Religious freedom cannot operate to deny equal citizenship or opportunity. For that reason, a same-sex couple should not have to call ahead to see if they are welcome to book the honeymoon suite. Public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect. (shrink)

Both community and property are, each in its own way, exclusionary concepts. Property — certainly private property — is defined in large part by a right of exclusion. And although "community" sounds like a warm, inclusive word, real-world communities often define themselves by reference to an array of excluded "others" and erect fences and patrol borders to keep these others out. Enthusiasm for these exclusions is made to seem legitimate by the thought that those excluded from (...) my property probably have somewhere else of their own to go to, and those excluded from our community probably also have a community of their own to live in. In fact, neither proposition is entirely justified. We know that in most economically developed countries there are large numbers of people who live as transients and are not welcome or rooted in any community. Their only places of refuge are the substantial patches of public property which society maintains for everyone’s use. But public places are not themselves unregulated, and often they are regulated according to norms of community and in response to communitarian pressures. If these communities are themselves exclusive in character, they tend to reproduce at the public property level the exclusions that manifest themselves at the private property level. This Article attempts to chart and analyze the deadly combination of exclusive community and exclusive property that these modes of regulation represent. (shrink)

This book provides a detailed account of the role of property in German Idealism. It puts the concept of property in the center of the philosophical systems of Kant, Fichte, and Hegel and shows how property remains tied to their conceptions of freedom, right, and recognition. The book begins with a critical genealogy of the concept of property in modern legal philosophy, followed by a reconstruction of the theory of property in Kant's Doctrine of Right, (...) Fichte's Foundations of Natural Right, and Hegel's Jena Realphilosophie. By turning to the tradition of German Rechtsphilosophie, as opposed to the more standard libertarian and utilitarian frameworks of property, it explores the metaphysical, normative, political, and material questions that make property intelligible as a social relation. The book formulates a normative theory of property rooted in practical reason, mutual recognition, and social freedom. This relational theory of property, inspired by German Idealism, brings a fresh angle to contemporary property theory. Additionally, it provides crucial philosophical background to 19th century debates on private property, inequality, labor, socialism, capitalism, and the state. The Concept of Property in Kant, Fichte, and Hegel will appeal to scholars and advanced students interested in 19th Century German philosophy, social and political philosophy, philosophy of law, political theory, and political economy. (shrink)

Distributive justice concerns the fair distribution of the benefits and burdens of social cooperation. Opposition to higher rates of taxation, or even existing levels of taxation, are often made on grounds that such taxes are unfair burdens. This fairness argument can be given a number of further, more specific, formulations. Libertarians like Robert Nozick, for example, argue that taxation of income is unfair because it violates individual rights. Libertarians invoke an entitlement argument which presumes that the appropriate baseline of (...) class='Hi'>property rights is pretax income. Others take issue with specific policies that are supported by taxation, such as welfare provisions, and argue that welfare reform is necessary as tax burdens are only legitimate when they satisfy some form of reciprocity thesis. In this review article I critically assess these arguments. The recent publication of The Cost of Rights: Why Liberty Depends on Taxes, The Myth of Ownership: Taxes and Justice, and The Civic Minimum: On the Rights and Obligations of Economic Citizenship help shed some light on each of these different arguments that are often invoked in defence of tax cuts. These three books are a welcome addition to debates about distributive justice as they help bridge the gap between normative theory and public policy. In addition to raising doubts about the arguments that taxation is unfair, I examine themes that raise important questions about taxation and justice- private property, welfare reform and inheritance. An examination of these themes should make it clear that the real challenge facing justice-theorists is to take scarcity seriously and thus I emphasis the shortcomings of simply endorsing a ‘cost-blind’ rights-oriented conception of justice. Such a conception of justice currently dominates debates in normative political theory. (shrink)

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's (...) version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.”The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238). (shrink)

At the basis of modern natural law theories, the concept of the suum, or what belongs to the person (in Latin, his, her, its, their own), has received little scholarly attention despite its importance both in explaining and justifying not only the genealogy of property, but also that of morality and war.1 In this paper I examine Hugo Grotius's what it is, what things it includes, what rights it gives rise to and how it is extended in the transition (...) from the state of nature to civil society. I then briefly point out how bringing this concept back to the fore could help to illuminate the current discussion on the foundations of basic human rights, and to evaluate cases where these seem to clash with property rights. (shrink)

Balancing, integrating, or otherwise sorting out private ownership, control, and property rights, on the one hand, with social, common, and shared goods or rights, on the other, is manifest in socio-ethical issues ranging from eminent domain to gay marriage and from endangered species protection to social security. In fact, when one surveys the contemporary socio-ethical landscape with this problem in mind, there appears hardly an issue that it does not touch; and it is frequently the central or underlying (...) component. This is perhaps not surprising for issues involving taxation or other government revenue generating mechanisms that pay for public services and programs—e.g. education, postal service, transportation infrastructure, and policing. But it extends well beyond resourcing governmental institutions and initiatives. It is present in different ways and to different degrees in issues as diverse as AIDS drug availability, fisheries management, euthanasia, affordable housing and home loan availability, gun control, permit issuance and zoning for high impact industry, global warming, health care accessibility, bottled water, and prostitution. (shrink)

The right of Australian Indigenous groups to own traditional lands has been a contentious issue in the recent history of Australia. Indeed, Aborigines and Torres Strait Islanders did not consider themselves as full citizens in the country they had inhabited for millennia until the late 1960s, and then only after a long campaign and a national referendum (1967) in favour of changes to the Australian Constitution to remove restrictions on the services available to Indigenous Australians. The concept of terra nullius, (...) misapplied to Australia, was strong in the popular imagination among the descendants of settlers or recent migrants and was not definitively put to rest until the Mabo decision (1992), which also established a firm precedent for the recognition of native title.This path to equality was fraught and made lengthy by the fact that the worldviews of the Indigenous Australians (i.e. Aborigines and Torres Strait Islanders) and the European (mainly British and Irish) settlers were so different, at least at a superficial level, this being the level at which prejudice is typically manifested. One area where this fact is particularly evident is in the area of the conceptualisation of property and especially the notion of land “ownership” and “use”.In this paper, we will focus on these terms, examining the linguistic evidence of some of the Australian languages spoken traditionally by Indigenous Australians as one means (the only one in many cases) of gaining an insight into their worldview, comparing it with that underlying the English language.We will show that the conceptualisations manifested in the two languages are contrasting but not irreconcilable, and indeed the ability of both groups of speakers (or their descendants in the case of many endangered Australian languages) to reach agreement and come to develop an understanding of the other’s perspective is reason for celebration for all Australians. (shrink)

_ Source: _Page Count 26 Is freedom a plausible political value for animals? If so, does this imply that animals are owed legal personhood rights or can animals be free but remain human property? Drawing on different conceptions of freedom, I will argue that while positive freedom, libertarian self-ownership, and republican freedom are not plausible political values for animals, liberal ‘option-freedom’ is. However, because such option-freedom is in principle compatible with different legal statuses, animal freedom does not conceptually imply (...) a right to legal self-ownership. Nonetheless, a concern for animal option-freedom means that humans do have a _pro tanto_ duty of non-interference. Arguments familiar from the liberal tradition moreover imply that such a duty speaks for drastic reforms of existing animal law. But it does not imply wholesale abolitionism: it neither rules out positive duties towards animals nor means that we should abandon all interactions with animals. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Legal Self–Help on Private Property in Classical AthensMatthew R. ChristA remarkable feature of litigation in classical Athens was the high degree of responsibility private citizens bore for initiating, conducting, and executing the judgments of legal actions.1 In the absence of a public prosecutor or an active police force, Athenians engaged in a level of legal self–help that would shock most modern Westerners. While Athenians strongly preferred private to (...) public initiative in legal matters, aspects of legal self–help troubled even them. I focus here on contemporary tensions surrounding the use of legal self–help on private property, whether carried out by the master (kurios) of a household defending his realm or by outsiders crossing onto others' property under the authority of the city's laws. Legal self–help of either sort raised questions for Athenians concerning the boundaries, both spatial and conceptual, between private and public spheres. In particular, to what extent did a household and its property, including land and home—all of which could be subsumed by the word oikos—constitute an inviolable state within the state?2Discussion in these pages explores the legal regulation of self– help on private property and the social attitudes toward private space that determined how, and even whether, legal rules were enforced by courts. We begin with evidence that the Athenians granted considerable license to a kurios to exercise legal self–help in defense of his oikos. We may then consider how the authority granted by the city to outsiders exercising legal self–help to cross the boundaries of this private realm represented a problematic challenge to the ideal that the oikos should be inviolable under the democracy.Legal Self–Help in Defense of the OikosIn classical Athens, as in many societies, a man was permitted to defend his home from intruders, even up to the point of exercising lethal force.3 This license of a kurios to use force in his own realm, which scholars sometimes describe as his "Hausgewalt," was not formally articulated as a right in Athens.4 Its reasonable exercise was, however, consistent with both legal regulation and community norms.Although Athens' laws did not, as far as we know, specifically address defense of the home from intruders, they allowed the use of lethal self–help in two circumstances, theft and moicheia, that could well involve incursion upon a man's property (cf. Lys. 1.36). In the case of theft, one law stated, "If a man should steal anything whatsoever at night, it is permitted that his victim in pursuit, kill him, wound him, or lead him by apagōgē to the Eleven if he wish" (Dem. 24.113). According to another law, "If one kills immediately in defense of one's property a man carrying or leading it away by force and unjustly, he is killed with impunity" (Dem. 23.60). Although both laws could apply outside, as well as within, the boundaries of a man's property, MacDowell is probably right that the first law would apply especially to housebreakers, "who would not necessarily use force and so would not be covered by the second law."5An Athenian might also legally kill an intruder caught in illicit sexual relations (moicheia) with one of his female dependents: "If a man should kill another... in intercourse with his wife, mother, sister, daughter, or concubine kept for procreation of legitimate children, he shall not go into exile as a manslayer on that account" (Dem. 23.53; cf. [Arist.] Ath. Pol. 57.3; Lys. 1.30).6 Although this law, like the laws permitting the killing of a thief, did not limit the exercise of this license to the bounds of the home, a man was most likely to discover and take [End Page 522] vengeance on a moichos here. If he did not wish to kill a moichos caught in his home, he could restrain and even abuse and humiliate him until receiving recompense or promise of it.7 This license to restrain even a citizen in one's home for an indeterminate length of time constituted a striking exception to the general rule under the democracy that imprisonment of... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:EOONOMICS, WISDOM AND THE TEACHING OF THE BISHOPS IN THE THEOLOGY OF THOMAS AQUINAS* KEVIN A. McMAHON St. Anselm OoZZege Manchester, New Hampshire WHEN IN 1985 the American bishops came out with the first drait of thcir pastoiral letter on the economy, and ithen a year Later when they ~ssued the final text,1 they drew fire from groups both within and outside the Church. Much of the criticism, on (...) the popular front at least, seemed to concern the impropriety of religious leaders involving themselves in seoular.affairs (1and technical affairs at that). But while ithe bishorps were quick to admit their Lack of technical expertise, they claimed for rthemselves a special authority to teach regarding the principles tha.t underlie a just economic life. Far from sitepping outside their proper sphere, it is their obligation, they sruid, to speak on these issues, and to a.ddress not only membel'IS of the Ca.tholic Church in America, 1but the nation as a whole. It is a requirement of their ofHce that ithey be concerned with the weHare and security of all individuals,,and they effectively promorte this end iby setting forth the word of God recorded in Scriipture and handed on by the Church's tramtion.2 There,are two points in prurticu1ar that are implied by this statement. F1irst, knowledge of revelation is an aid to estab- " The substance of this article was first presented as a paper at the College Theology Society convention, held in Newport, Rhode Island, in May 1985. i "Economic Justice for All: Catholic Social Teaching and the U.S. Economy," Origins, vol. 16, no. 24 (November 27, 1986), 412-455.. 2 Pastoral Message to accompany the letter, sections 4-9, 12-19, 29; Pastoral Letter, sections 5, 22-27. 91 9~ KEVIN A. MCMAHON lishing peace and justice in the community at large because of the iin.sight into 1the good for man that the Gospel offers. Second, reason alone will not suffi,ce the community ·as a guide in interpel'lsonal activity, even in the area of economics, so it makes great sense for the citizen 1 to ·attend to rthe bishop, who in his teaching expresses the Church's foilith. The bishops' letter on economics does not fully draw out either of these points. And Aquinas nowhere expressly deaLs with the authority of the bishop in economic matteiis. But he does have something to say about rthe nature and soul'lce of episcopal authority, and of the need in the community for moral teachers. Priv.ate property, commercial trading, the use of moneyfor Thoma.s,aJl o[ these institutions or practices were devised by communities for the 1 sake of individual and general wellbeing. They conform to right reason, they are products of right reason, and they are governed by the virtue of justice. It would seem that practical rea:son,,all by itself, is sufficient in their regaOO.. Take priViate propecl;y a:s an e~ample. Thomas offers three arguments in irts defens·e in his Summa theologiae. First, people work more diligently when they own the product of their lrubor. Second, if people work in the first instance for their own sake, roncentrarting on their own needs, there.WJill be less confusion than if everyone has responsibility for the group. Thiird, to quote Thomais, "quarrels arise more frequently where there is no division of the things possessed." 3 Note that Thomais is not.arguing for the rubsolute necessity of private property. He defends private property as a social institution without prejudicing eiither :the right of specific individuals to hold property in common, or the good of their doing so. After all, Thomas himself belonged to a religious order whose members take a vow of poverty. All he iis claiming is that the institution of private property makes sense.4 If pria 2-2, q. 66, a. 2, c. "Odon Lottin writes that Thomas was unusual in regarding human nature, even after the Fall, as indifferent to the institution of private property; the natural la.w neither commands nor prohibits it. Rather, men cross-cul- BISHOPS' TEACHING ROLE IN ECONOMICS 93 vate ownership is so common, Aquinas might say... (shrink)

Can the right to private property be claimed as one of the `rights of mankind'? This is the central question of this comprehensive and critical examination of the subject of private property. Jeremy Waldron contrasts two types of arguments about rights: those based on historical entitlement, and those based on the importance of property to freedom. He provides a detailed discussion of the theories of property found in Locke's Second Treatise and Hegel's Philosophy of Right to (...) illustrate this contrast. The book contains original analyses of the concept of ownership, the ideas of rights, and the relation between property and equality. The author's overriding determination throughout is to follow through the arguments and values used to justify private ownership. He finds that the traditional arguments about property yield some surprisingly radical conclusions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and History, Customs and EthicsHui-Chieh Loy (bio)Origins of Moral-Political Philosophy in Early China: Contestation of Humaneness, Justice, and Personal Freedom. By Tao Jiang. New York: Oxford University Press, 2021.Tao Jiang's Origins of Moral-Political Philosophy in Early China is a serious tour de force of a study. In many ways, I am reminded of Angus Graham's Disputers of the Tao and Benjamin Schwartz' The World of Thought in Ancient (...) China—but updated. A signal difference is that it is more constrained in its coverage of figures, texts, and especially in having the topical focus upon moral-political philosophy. At the same time and within the chosen (narrower) confines, it often examines its subject in greater detail and draws on more recent discussions.One neat thing that Jiang does is to deliberately weave in explicit discussions of how each subsequent thinker or text incorporated or criticized ideas associated with earlier thinkers. (I formulated it this way since there isn't enough historical evidence about who-actually-read-what in the ancient world, citation practices being what they were.) In this regard, I am especially heartened to read, for example, the sections on "Traces of Mohist Elements in the Laozi" (3.3.2), and "Mohist Elements in Han Feizi's Thought" (7.3.3).By no means should the desultory remarks below be counted as a full review or assessment (impressionistically, this is the sort of book I will recommend that my grad students read—there, I've said it). Think of them as humble shards of pottery thrown in the hope for some jade in response. To make my task more focused, I will comment on the Sinology versus Philosophy distinction, and Jiang's treatment of the Mohists.I. Philosophy and History of PhilosophyAn important part of Jiang's Introduction is devoted to discussing the situation of Chinese Philosophy as a field in the Western Academy, caught between Sinology on the one hand and academic Philosophy on the other. Due to the different scholarly objectives and norms in the two disciplines, scholars working on Chinese Philosophy often find themselves caught [End Page 420] between two distinct audiences who demand different things. Jiang's aim is to propose an "interpretive model to distinguish two sets of scholarly objects operative in Sinology and philosophy. These objects are related and at times overlap, but they are also often irreducibly distinct, i.e., original text versus inherited text, historical author versus textual author, and authorial intent versus textual intent, with the former in the pairs belonging to Sinologists and the latter to philosophers" (p. 7). In general, I am highly sympathetic to the distinctions Jiang draws. But I do wonder if we need to step back and start from a wider context involving what is potentially a deeper divide.Now, it is entirely a caricature but the joke around the water cooler is that philosophers—especially those of a more "analytic" bent—often exude the attitude that they are not in the business of reading old books. Their project is one focused on issues and problems and puzzles that are ultimately about the natural and human world, rather than about texts and their interpretation, or even the historical thinkers themselves. To give some obvious examples, the intellectual questions they see themselves as answering are the likes of:• Can we know that God exists, if God exists at all?• What is the nature of moral claims? Do they admit of truth and falsity?• How is causation related to possibility?• Is a logic that dispenses with the law of non-contradiction viable?• What are the necessary and sufficient conditions of knowledge?• Is abortion morally justifiable?Sometimes the questions they ask even infringe on the results and insights from nearby fields, for instance linguistics and the natural and empirical sciences:• What is time?• Can a presentist conception of time be made consistent with contemporary physics?• What is the nature of consciousness? How is it related to physical neural states or informational computational processes?• Can computers be sentient?• How is morality related to the passions?• In what sense is a political order that does justice to diversity of moral beliefs... (shrink)

Kant’s justification of possession appears to beg the question (petitio principii) by assuming rather than proving the legitimacy of possession. The apparent question-begging in Kant’s argument has been recapitulated or exacerbated but not resolved in the secondary literature. A detailed terminological, textual, and logical analysis of Kant’s argument reveals that he provides a sound justification of limited rights to possess and use things (qualified choses in possession), not of private property rights. Kant’s argument is not purely a priori; it (...) is in Kant’s Critical sense ‘metaphysical’ because it applies the pure a priori ‘Universal Principles of Right’ to the concept of finite rational human agency. The application of this principle implicitly involves a ‘Contradiction in Conception’ test. I explicate this test in detail and show, inter alia, how Kant’s argument relates to the modern natural law tradition. I further argue that Kant’s ‘Universal Principle of Right’ is justified by appeal to a fundamental principle of justification, the Principle of Mutual Acceptability. This justification also suggests that the debate between Kantians and Utilitarians about whether human ‘dignity’ is an incommensurable value is moot because Kant’s test of the Categorical Imperative need not appeal to ‘dignity’. Finally, I show that the limited rights to possession and use justified by Kant’s argument suffice for his social contract argument for the legitimacy of the state. (shrink)

There are complex unresolved ethical, legal and social issues related to the use of human tissues obtained in the course of research or diagnostic procedures and retained for further use in research. The question of intellectual property rights over commercially viable products or procedures that are derived from these samples and the suitability or otherwise of participants relinquishing their rights to the samples needs urgent attention. The complexity of these matters lies in the fact that the relationship between (...) intellectual property rights and ownership or rights pertaining to the samples on which the intellectual property right is based may either be overlooked or taken for granted. What equally makes the matter complex is that samples may be obtained from participants in developing countries and exported to developed countries for analysis and research. It is important for research ethics committees to tread carefully when reviewing research protocols that raise such issues for purposes of ensuring that appropriate benefit sharing agreements, particularly with developing countries, are in place.This paper attempts to analyse the key questions related to ownership and intellectual property rights in commercially viable products derived from human tissue samples. Patent law is used as a point of reference as opposed to other forms of intellectual property rights such as industrial designs because it is the right that most inventors apply for in respect of human tissue-related inventions. The key questions are formulated following a systematic analysis of peer reviewed journal articles that have reported original investigations into relevant issues in this field. Most of the cases and reported studies that are referred to in this paper do not directly deal with HIV/AIDS research but the underlying principles are helpful in HIV/AIDS research as well. Pertinent questions, which members of ethics review committees should focus on in this regard are discussed and suggestions on appropriate approaches to the issues are proposed in the form of specific questions that an ethics review committee should consider. Specific recommendations regarding areas for further research and action are equally proposed. (shrink)

continent. 2.2 (2012): 155–158 Michel Serres. Biogea . Trans. Randolph Burks. Minneapolis: Univocal Publishing. 2012. 200 pp. | ISBN 9781937561086 | $22.95 Conveying to potential readers the significance of a book puts me at risk of glad handing. It’s not in my interest to laud the undeserving, especially on the pages of this journal. This is not a sales pitch, but rather an affirmation of a necessary work on very troubled terms: human, earth, nature, and the problematic world we made. (...) It is this world that aspirates the silence (so to speak), and therefore the subject which, along with the development of the “made world” exports the excess augmentation of the cosmically missing, this silence of the natural, et cetera. Had we learned from Locke that lesson of “labor,” to consume what we need… but perhaps we need more than what matters? Serres’ Biogea has several functions on this manner, if it is indeed a book to be consumed. First, readers searching for novelistic entertainment have a place to dwell. Biogea deserves a place in your back pocket; biographical generosity and poetic fluidity should satisfy most textual fetishes. For lay philosophers who want to refresh their acumen, Biogea deserves a place on the book shelf, one already reads a sorely needed postmodern tune-up here. Serres’ style is clearly French; he leaves few cheese crumbs on his words, rather preciseness and breathing in the work give way to a sweeping manner that breaks the narrative line of sight. A circular narrative and anachronistic fragmentation of terms allows an abyssal atmosphere to swell, if only to pump into the book the externality of its broader text. Biogea aspires to a higher standard and the book, at times, is thinking this negentropic problem too. Univocal, the publisher, has crafted a book appropriate for the hands to hold and the translations are an achievement of an otherwise difficult writer to translate. Terms are the conditions of a broader text. It is important to note that Serres’ content is as much a thinking of terminal ports. There is a regard for the transportation technology of the written word. For me, this is the mark of genius, a craftiness that tells of a book device that I may trust. Serres is an accomplished thinker and a necessary voice to check the putative trendiness of anti-postmodernist and market-driven theory of endless cultural liquidation. Offering interventions on subjectivity as an open system we are given a chance to affirm the human, not merely to discard it, but to engage its poetic image emotion, the calibratory silent sense of the analogic world; the terms on which we base our efforts. 1 The human is the center of its own negation, constantly mediating it. Something deeper at stake appears in the work then, and it is quite obvious from the onset. Certainly, a book is an intensification of possible text and those who brought this actual book into existence have captured a rarity in regards to the subject matter and artistic accomplishment. I mentioned terms as conditions, so let us understand Biogea as bio-yea, a yes to bios . An affirmation of living and accepting presence for all of its defiance of images, words, and things temporal. Therefore Serres’ existence and its existants plays parts; out of linearity and still like a porous bone pumping blood it manufactures into the fleshy life it becomes. Starting from a man named silence chaos emerges, or the man “Old Taciturn” takes up a journey anticipating a great flood. In other words, a development akin to the one in Genesis. In dealing with this ancestral occupation, fusing Genesis with contemporary philosophical terms, Serres initiates this anachronistic fragmentation under the forming subjectivity of his own autobiography. This mutation in the open system is precisely one of Serres’ terms. There an abyss is at work, stated, but also measured by heels on the ground—the abyss dispatching earthen tensions, that which plays our tunes, that which we abide by and recognize in volcanoes, rivers, oceans, earthquakes and weaponry in the battles of the world. Set in later stages of the book, such tensions are harnessed through scientific principles in an attempt to unify the terms of natural force if only to terminate the world. Thus the elevation of the earth into the world is clearly set forth. Here already, and few pages in, a resonance is set forth under appellations such as the river Garonne, a subjectivity as much as it is inhuman, the river is the inhuman that makes us human. I get the sense that Serres is taking up a challenge issued by Wallace Stevens; namely, that the great poems of heaven and hell have been written, but that only the poem of the earth has resisted composition. 2 On this level we cannot avoid the killing factor of silence, given that our cognition blocks its pure, radical obliteration. Thus a silence of attunement to the earth is in a novel dialectic of the rithmic and rhythm. A technological world, a triumph of termination is set forth. If a text imposes its will given the reader who authorizes it, it is made to convey or convect a presupposition to a reader or its inhabitant(s). Text is therefore both, in-content, contenting, contentedness, and in reading it, a way to navigate self-destruction (dis-content). Here then would one note that the “inhuman” reveals itself, “an aperiodic rhythm of lovers and beloved…the sea as our friend…but as our enemy…maternal vivifying sea.” The sea is an open book, or vaginal birth canal, where the engagement of text comes forth: “…woman sea, open vulva.” One sees like the sea, but only after it, when the uninhabitable truth of inhabiting it switches the polarity of the sailors soul: “I was seeing like the sea” (9-11). In other words, we are invited to embrace the nonsense of the visible. At this point I am taken to Jean-François Lyotard’s work The Inhuman , specifically the first entry on negentropy that would be congruent with Serres’ thematic. 3 The human being exports, deports, or transplants its relation through text, through the system— and this is its sense or relation to silence, to music. Unaware of Serres’ proximity to this work, the concept of gender interrelation as regards a solar catastrophe runs clear. It would be, on this basis, that Serres references his peers, the other texts that, as mentioned above, are discarded in philosophy today. For students of philosophy what we have here is perhaps a gift, a needed project. If silence and death are at work, there is a political valence to deal with, and here, much like the domain of the text and the dominion of the reader, we confront the world of natural, fluid violence. The anti-postmodernist critique is in part based on a weak idea that the loss of ideology, of a world vision, motivates the “correlationist” project. 4 Serres seems to offer another way to view this when he notes that whereas persons “sometimes kill,” it is clearly “the collective” that “always kills” (17). What is the collective today, if not an organizing function we never see yet acts in its favor in the name of truth? One feels a sense of enigma here, if only to link to what Stevens remarked of communism as a “grubby faith,” providing this applies for capitalism as well, namely any ideology of progress overly interested in absolutes. Here we get the sense that the inhuman, silence, this type of killing, always killing, could not be matched by human-made, political dynamos. Or that if it comes to an equilibrium, a catastrophe is never too far from us to read with our heels. We are left to note that the forces of nature presuppose and permeate political systems, the more these systems obtain force, the more the system takes upon itself the proper name of nature that motivates its dissemination, albeit falsely. This note, that in an age of ecocide and technological captivity (sustainability and transparency) political regimes won’t grow our soul-learning ears any larger than our tongues, stands clear to us. The promise of technological desubjectification is here pushed aside. Regarding politics, Serres illustrates this fact: Where did this corpse come from? Who was it? Who killed it? I don’t know. I won’t try to find out. I refuse to get vengeance for it. And I only see Garonne. For our victims, today, are the rivers, too. Their waters have irrigated my life, enchanted my thought, invigorated my body; I’ve known them to be threatening, untamable, as dangerous as the sea when it rages. Yes, murderous. They decided to control their courses; dams, sometimes senseless, destroying sites and valleys, reduced entire populations to servile displacements; programs for the irrigation of thirsty farmland, often beneficial of course, completed their drying up.(22) Serres enters into his idea concerning the captivity of language from the natural into a world system: For thousands of years, we have been licking things with our tongues, covering and daubing them so as to appropriate things for ourselves. If language boils down to a convention, this convention took place between the speakers without consulting the thing named, become as a result the property of those who covered it in this way with their drawn or voiced productions. Malfeasance analyzes these acts of appropriation. Thus every inert object, every living thing as well, sleeps under the covers of signs, a little in the way that, today, a thousand posters shouting messages and ugly riots of color drown, with their filthy flood, the landscapes, or better, exclude them from perception because the meaning, almost nil, of this false language and these base images forms an irresistible source of attraction to our neurons and eyes. This appropriation covers the world’s beauty with ugliness. (38-39) Technological concealment coming to bear, we begin to get a sense of another commentary on the condition of sensing, driving home the necessity of a text dealing with such subject matter to be what its terms insist. Thus toward new openings: The new opening. As low beneath our feet as you like, the Biogea opens us to another space, high enough for us to be able to acquire a wisdom there, that of redeveloping this same place differently from our fathers, this place that’s still politically cut up by old hatreds, beneath the flood of tears and blood that we call history. Without this soft place, spiritually very old, but newly conceived in this way, without the juridical construction of a common good, opposed to our filthy ownership, I don’t see how our planet, hard, will survive. Hardness that depends on a softness, material belonging that depends on this temporary rented location (51). Serres enters into a summit on the content and the structure of his work. Archimedes is brought in with the concept of three volcanoes. Meaning fire, but as well earth, water, air. For it was Archimedes’ war machines that sought to lift the earth, thus bringing in the question of principles of science: “can a principle be invented while controlling its consequences?” (66-7). May the earth be put in a sentence, terminated by terminology, appellations, gone wild? By means of these element-dominating laws, this old physicist began to tear nature away from the ancient myths; by a strange return, today we’re plunging our successes back into the anxieties and terrors from which that ancient physics was born. Yes, our new history of science and technology is plunging, today, as though in a loop, into the fundamental human myths from which Empedocles’ first laws came. A major progression and a regression on the nether side of the origins. Consequently, the contemporary time requires that we try to return to that unity in which the principles of hate and love are at the same time human, living, inert and global. We will never attain a deontology of our knowledge and actions without thinking the subjective, the objective, the collective, and the cognitive all together simultaneously. Here, hate and love are the result of these four components.(71) Working then on the concept of fire-starting mirrors to the atomic annihilation of the Second War, Serres works into the subjectivity in question on the matter of rhythm—say rithmic— precisely at that point: Knowledge is changing today. The all-political is dying; the monarchy of the sciences said to be hard is coming to a close. The science of the things of the world will have to communicate just as much as the things of the world do, which do it much better than humans do, who don’t always want to do it. Let’s celebrate two changes this morning. The first one strikes a new blow to our narcissism. No, knowledge and the world don’t resemble our analytical enjoyments of refined cutting up, of endless debates and of exclusions full of hate. They, on the contrary, form a bloc and a sum, alliance and alloys. Uniting the fields of knowledge among themselves the way the things are connected among themselves, the second newness puts into place sets united by interlacing, webs and simplexes that combine with the things of the world, themselves combined, the combined knowledge that understands them.(130-1) Biogea closes on its opening flood thematic, approaching the initial telos of Genesis. Here the trees are brought into a position with atmosphere, the opaque abyssal reservoir, the tomb of the sun, sea in the polarity of the earthen heaven and hell. The poem of the earth then is silent but deadly, indeed, as funny as that phrase is, mainly a tomb gas. The meaning of the living and the non-meaning of things converge in the muteness of the world; this meaning and non-meaning plunge there and come out, the ultimate eddy. Mundus patet: through a fissure, through an opening, a fault, a cleft come noises, calls as small as these apertures. I’m listening, attentive, I’m translating, I’m advancing in the scaled-down meaning and science. Mundus patet: should the world open greatly, it will launch me into its silence. The totality remains silent. Knowledge expanded in elation. White origin of meaning, fountain of joy. (198) Final Remarks One test of a review is the long term trajectory the referee thinks the book will have. I see Serres’ text lending greatly into the vision of Biogea . In fact, in the vision of the novel inquiries of Stephen Jay Gould’s work there is something to be thought on the level of the individual and the species; namely, that humanity and its uniqueness is in its deferral, its thinking and naming, a thinking surrounded by silence that filters into everything, that pulls us through the world, the kinetic pulse we recognize, and all of that we cleave away in the base philosophical maxim of difference itself. Unique individuals are spatial creatures: we dwell, and we ought to get good at it. Yet this is an imaginative space that, if you are crazy enough to believe it, de-term-ine the conditions of its own terms. That is why we are not merely creating spaces on the acceleration of time, or so this ignoramus thinks, to accidentally transcend. Imagination already has this insatiable silence that we drink up and fail to manifest. Space is timeless. The imagination itself, shared by humans for themselves, their objects, and the species as a whole, is a non-defined space of relation; a whole human trajectory as part of nature, and part of worlds that are the other side of thinking nature, the consequence of it, at least our attempt to do so. Our survival is based on our deliberation, our caution, our natural deconstructive sense toward this silence that is already part of the song, sung, singing of this century without end. Good books will let us inhabit this space and recognize a form of life. Serres’ text moves toward dwelling, as noted, in masterful and accessible ways. The pitched battles are the falling replays of anemic and dead politics. As soon as we realize there is humanity, we may be able to enjoy the end of it, our inhuman capability of listening to silence. NOTES 1. See Michel Serres. The Parasite . Minneapolis: University of Minnesota Press. 2007. 2. Wallace Stevens, “Imagination as Value” [ca. 1945], in Collected Poetry and Prose . New York: The Library of America. 1997. 724-39. 3. Jean-François Lyotard. The Inhuman: Reflections on Time . Trans. Geoffrey Bennington & Rachel Bowlby. Stanford, CA: Stanford University Press. 1992. 4. See the introduction: Quentin Melliassoux. After Finitude: An Essay on the Necessity of Contingency . Trans. Ray Brassier. New York: Continuum. 2008. EDITOR'S NOTE: This review was updated on August 8, 2012. Substantial edits include block quotes from the book under review as well as the inclusion of comments from the author. (shrink)

‘The Debauched Commons: A Dark Parable’ summarizes issues regarding intellectual property rights and immaterial culture through a nuanced reading of how First Nations Peoples worldwide have been forced by forms of neoliberal-capitalist exploitation of the knowledge commons to ring-fence and/or commodify their lived traditions, in many cases dating back 100,000 years and clearly predating any and all Western (First World) concepts of ownership. The intention of the structuralist-inspired reading of this enforced defensive position is to emphasize and (...) clarify issues concerning prior art and moral rights, two of the most ambiguous and gamed elements of copyright and patent law. Drawing upon the international context of the _Declaration on the Rights of Indigenous Peoples_ (2007) and the _Convention for Safeguarding Intangible Heritage_ (2003), this essay will focus, in part, on the travails of Aboriginals in Australia as representative of First Peoples worldwide and their long-exploited and long-expropriated traditions, inclusive of land, but foremost _lived knowledge_, but also their often compromised position _vis-à-vis_ various Australian state and Commonwealth legislation concerning recognition of their copyright, moral rights, and intellectual property rights. In this complex dance between tradition, heritage, and law, the so-called public domain often also becomes a de facto warehouse for the eventual conversion of intangible rights to collectively held and stored cultural property, which is then leveraged and/or converted to cultural capital by both public institutions and private companies. The primary premise of the analytic to be applied is that commodification of knowledge is more or less co-equal to the digitization of culture and the regimes of expropriation and/or outright theft associated with platform cultures. Platform culture, in turn, implicates otherwise benign, or apparently benign institutions (for example, academia and the art world) claiming to advance understanding and resolution of the twin nemeses of post-contemporary cultural politics—diversity and justice. The subtle machinations of what has come to be called the art-academic industrial complex will thus be analyzed for implicit and explicit practices that are reducible to the appropriation of native rites and rights, and laws and lores, for self-serving reasons inclusive of radical-chic posturing and politically correct tokenism. (shrink)

On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and civil society (...) : law and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method. (shrink)

Drawing on empirical evidence from history and anthropology, we aim to demonstrate that there is room for genealogical ideology critique within normative political theory. The test case is some libertarians’ use of folk notions of private property rights in defence of the legitimacy of capitalist states. Our genealogy of the notion of private property shows that asking whether a capitalist state can emerge without violations of self-ownership cannot help settling the question of its legitimacy, because the notion (...) of private property presupposed by that question is a product of the entity it is supposed to help legitimise: the state. We anchor our genealogical critique in recent work on ideology in epistemology and philosophy of language, and in current debates on the methodology of political theory. But, unlike more traditional approaches that aim to debunk whole concepts or even belief systems, we propose a more targeted, argument-specific form of ideology critique. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 42.1 (2004) 100-101 [Access article in PDF] Kathy Eden. Friends Hold All Things in Common: Tradition, Intellectual Property, and the Adages of Erasmus. New Haven, CT: Yale University Press, 2001. Pp. ix + 194. Cloth, $35.00. When Erasmus returned from England to the continent in 1500 almost all his money was confiscated before he embarked, although his patron, Lord Mountjoy, had assured (...) him that customs regulations applied only to English currency. Upon his arrival in Paris—poor as a church mouse and feeling rather unwell—he immediately set out writing a new gift for his patron, lest Mountjoy would assume that the humanist was angry with him. A few days later Erasmus had gathered a modest collection of 818 proverbs or adagia, a "treasury or storehouse of the accumulated wealth of classical antiquity collected for common use and thus one of his principal contributions to a cultural program for cooperation," as Kathy Eden defines them (4); not a material but an intellectual wealth, a wisdom transmitted throughout generations and civilizations in the form of proverbs.This Adagiorum Collectanea became a bestseller because it provided both humanists and careerists with numerous bon mots to embellish their (Latin) style and to enhance their arguments. During his first visit to Italy Erasmus spent a few months in the household of the famous humanist and printer Aldus Manutius in Venice. This resulted in a reissue in [End Page 100] 1508 of what was now entitled Adagiorum chiliades, since the collection had been expounded to 3260 proverbs. It opened with 'Friends hold all things in common', an ancient wisdom acknowledging the commonality between friendship and property. Eight more official editions came from the press with an ever-increasing number of adagia, up to 4151 in the final edition, published as volume two of the collected works (Basle: Froben, 1536). Erasmus kept also enlarging the entries themselves, some of them becoming small essays—for instance, the famous Festina lente (Adag. II i 1) or the equally well-known Dulce bellum inexpertis (Adag. IV i 1)—which were even republished separately.In her introduction to Friends Hold All Things in Common Kathy Eden gives a quick survey of the genesis of the Adagia referring her readers for further information to more specific studies on the topic. In keeping with the opening adage she focuses on the ancient philosophical tradition that Erasmus claims as his intellectual inheritance from the past, a tradition rooted in the legal transfer of property. The humanist inherits his understanding of both friendship and property from an ancient philosophical tradition going back to Pythagoras and Plato, as well as Aristotle and Cicero. This pagan tradition is confronted and linked with the concepts of early-Christian writers, such as Tertullian, Origen, Jerome, Basil and Augustine. Not only is there a similarity between some ideas of pagan philosophers and Christian thinkers; they can even be a source of inspiration to pious living. The publication of the Adages also reflected changing attitudes and practices concerning property: thanks to the press of Manutius in Venice (and later of Frobenius in Basle), an increasing number of people was able to appropriate the heritage of classical wisdom, which had hitherto been the intellectual property of only very few. It was precisely in Venice, around the transition from the fifteenth to the sixteenth century, that the first laws regarding intellectual property—be it copyright of the author or protection of the printer's efforts—began to make an occurrence.The author proves to be well-read in both classical, biblical and patrologic sources—I particularly appreciated her combinations and confrontations of pagan and Christian sources. Of course, she is thoroughly familiar with Erasmus's Adagia, too, with an occasional excursion towards his other pedagogical treatises, such as the Antibarbarus, the Enchiridion or the Paraclesis, an adhortation to study Christian philosophy.Friends Hold All Things in Common is a carefully edited publication with hardly any noticeable language or printing errors. As a classicist I feel slightly disappointed... (shrink)

Concerns about censorship have once again reached a fever pitch across the liberal West. In other historical periods, such concerns may have marked reactions to book bans and burnings. Often, they followed prosecutions and subsequent jailtime for things spoken or written. During the Red Scare, they were the hushed response to chilling state-sponsored watch-lists and employer-supported blacklists designed to ensure victory against communism. Against this history, complaints about the new censorship appear differently. With respect to the new censorship, there are (...) no books burnings, no prosecutions, no laws or committees. Indeed, there is no coercive state involvement at all. With a few notable exceptions, complaints about censorship in the 21st-century West are complaints about the behavior of private parties: social groups, employers, media conglomerates, social media platforms, and search engines. -/- To better understand the concerns surrounding nonstate interference with speech, Private Censorship offers an account of censorship, as well as an assessment of the ethical and political issues it raises across contexts. J.P. Messina asks and variously answers questions like: what should we think when employees get fired for things they say and how might patterns of such firings create a climate of fear inimical to free inquiry? When is it appropriate for social media firms to deplatform users, and what does it mean for our democracy that those in charge of such decisions are often wealthy Silicon Valley executives? Do search engines act as massive gatekeepers to information in troubling ways, and how might they be constrained, if they do? Along the way, Messina casts a critical eye on many popular proposals for responding to these complaints. Unlike these popular approaches, Private Censorship foregrounds the importance of rights to property, association, and free expression for thinking well about 21st-century censorship concerns. (shrink)