This chapter contains sections titled: What I s Regulation? How Should We Morally Evaluate Regulation? Welfarism; the Pareto Principle; Kaldor‐Hicks Efficiency versus Social Welfare Functions The Two Fundamental Theorems of Welfare Economics and the Market Failure Framework Externalities Public Goods and Monopoly Power The Coase Theorem Information and Paternalism as Rationales for Regulation Regulatory Forms and Regulatory Choice Criteria References.

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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The review system on research with human participants in the Netherlands is characterised as a decentralised controlled and integrated peer review system. It consists of an independent governmental body, the Central Committee on Research Involving Human Subjects (or Central Committee), which regulates the review of research proposals by accredited Medical Research Ethics Committees (MRECs). The legal basis was founded in 1999 with the Medical Research Involving Human Subjects Act. The review system is a decentralised arrangement since most research (...) proposal are reviewed by the 30 accredited MRECs in the country. It is a controlled system in which the Central Committee is responsible for the accreditation and oversight of the MRECs and can make legally binding directives for these committees. The assessment of research proposals is an integrated peer review process in which all documents of the research file are reviewed by experts in one committee only. A small number of research proposals are assessed by the Central Committee and not by accredited MRECs. These proposals are on specific research categories such as gene therapy, cell therapy and embryo research. The review of research with surplus human embryos is regulated separately in the Embryos Act. The Central Committee provides support to the accredited MRECs and to researchers and sponsors. It is currently developing an internet portal to reduce the bureaucracy and make the review process more efficient and transparent. The Central Committee stimulates confidence on medical research in society by providing a public trial registry with core data on reviewed research proposals. (shrink)

This article explores the tension between the fundamental perception that the provision of privatized services such as health and social care remain inherently public and the absence of any clearly developed juridical concept of ‘public services’ as the basis of judicial control in accordance with public law standards. In a series of recent cases, courts have had the opportunity to determine whether private contractors engaged in the provision of local authority residential and social care services are amenable (...) to judicial review or susceptible to direct vertical proceedings under the Human Rights Act, on grounds that they are performing functions which are by their very nature quintessentially public. However, conflating questions of amenability to review and susceptibility to the Human Rights Act (hereafter HRA), courts have refused to adopt a test based on the public character of a body's functions, irrespective of the source of power. This article acknowledges the constitutional propriety and rationality of a broad based functional test of review. Nevertheless, it is argued that if courts continue to resist such a test, Parliament must legislate to ensure judicial regulation of decisions by independent contractors of health and social care services, in accordance with public law principles and HRA obligations, which transcend the boundaries of their strict contractual undertakings. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy of Music Education Review 11.2 (2003) 170-184 [Access article in PDF] Music Education and LawRegulation as an Instrument Marja Heimonen Sibelius Academy, Helsinki, Finland Introduction Of all the fine arts, music has the greatest influence on passions; it is that which the law-giver must encourage most: a piece of music written by a master inevitably touches the feelings and has more influence on morality than a good book, (...) which convinces reason without affecting our habits. (Napoleon 1797) 1This essay examines the relationship between music education and law and focuses on extra-curricular music education for children and adolescents. 2 The tension between the general (law) and the particular (individual needs of each pupil) is described. However, achieving harmony is important both in law and in music. A composer may create a composite piece of music (order) out of fragments (disorder) 3 just as a judge creates order when he or she decides a legal case, or a law-giver enacts a statute that takes account of different kinds of interests of people usually represented by political parties or associations.The concept of freedom is also important both in music and in law. It has been stated that there is no freedom without boundaries. Legal norms that usually restrict the freedom of human behavior have an important role in creating [End Page 170] freedom: they can guarantee opportunities and circumstances for musical activities.In this paper certain legal aspects related to music education are approached in the light of two principles: the right to education and freedom in education. One of the aims is to discover what kind of regulative model would be suitable and would actually promote music education. The right to education refers to the right to music education and to the duty of the state to secure the relevant conditions and circumstances, whereas freedom in education refers to individual needs and choice regarding the content. The intention is to describe the educational and legal issues as they presently are particularly in Sweden, England, Germany, and Finland, and in the process of doing this to raise additional questions. Law as an Instrument The subtitle of this essay, "Regulation as an Instrument," refers to Aristotle's ideas about the law as a means of moral education. 4 In his view, the state has to educate its individual citizens in the exercise of virtue, since living according to virtue means living in harmony with one's own nature, this being the proper end of the individual. 5 Aristotle referred to virtue as a disposition that demands long and careful exercise. Thus, for him and his followers, the law becomes an instrument in moral education. 6Aristotle argued that moral education is one of the functions of music 7 because music has the power of forming character. 8 He was of the opinion that virtues manifest themselves in forms of activity. For instance, in order to acquire correct musical taste and judgment, free men should learn to play musical instruments; music education should include participation in actual playing. In general, Aristotle stressed the importance of education: "It is clear then that there should be laws laid down about education, and that education itself must be made a public concern." 9Aristotle's ideas on the good life have become the basis for many thinkers, especially communitarians. Liberal concepts, such as those presented by Ronald Dworkin, can be compared with communitarian conceptions of "the good" and the role of the state in promoting it. Liberal and communitarian approaches may be integrated as they are in "moral individualism" where the aim is to find a way to promote the moral development of an individual in a pluralistic, multicultural society. 10 The integration of communitarian and liberal views should help in finding a way to justify a positive role for the state in producing conditions and circumstances for the good, flourishing life. The content of a good life should not be directed by the state, although in practice the state cannot be completely neutral. Music is a part of the good life... (shrink)

The article analyses the key issues of the legal status of the sole managing body from the perspective of the valid legal regulation, the established case-law and doctrine. The first part of the article analyses the dualism of the manager’s legal status from the perspective of civil law and labour law. The analysis of the latest case-law presented herein shows that the rule of “internal” and “external” relations between the manager and the company formulated in the (...) case-law is applied differently, and the criterion of distinguishing the manager’s as the subject of the labour law and that of the civil law statuses still remains unclear. The authors of the article are of the view that due to insufficient legal regulation in force rules established by the case-law to regulate the manager’s legal status cannot ensure the required legal certainty. Thus, the reform of the manager’s legal regulation is essential. The second part of the article strives to answer the question what legal regulation models exist and what are the main criteria of quality legal regulation. The comparative analysis of the legal status regulation of the sole managing body allows to determine the main available regulation models of the manager’s legal status and to distinguish their advantages and disadvantages. The authors of the article believe that it is necessary to take regard to other states’ practices regulating the relations at issue, however, while creating such legal regulation, the evaluation of economic, cultural and social peculiarities of Lithuania is also required. In search for the most appropriate model of the manager’s legal status, attention should be drawn to the fact that in some aspects the labour law regime is too restrictive (e.g., shareholders cannot recall the manager, who is on maternal leave, and the manager at interim does not have full authority) and uncoordinated with the doctrine of the companies’ law. Moreover, quite a few questions directly related to the issues of the manager’s authority do not fall or only partially fall into the scope of the labour law. On the other hand, the problem of the manager’s legal status involves a broader scope of points of the companies’ law than the dualism of the manager’s status, and a part of these points has already been regulated by the Law on Companies (the agreement conclusion, termination, removal from the register of legal persons, terms of notice). In regard to this, a question can be raised if it not be better to regulate the issues of the manager’s legal status by the provisions of the Law on Companies and not of the Labour Code. It is proposed to create a specific legal regulation of the companies’ law, which could meet the needs of business and match up to the doctrine of the companies’ law, which is already being applied. (shrink)

Relying on the systematic, logical, and analytical methods, national legislation and some internationally accepted guidelines, as well as on the research conducted by the Lithuanian scientists and law practitioners, this article consistently and comprehensively deals with the problems arising in the areas of interpretation and application of tax law. The article examines the relevant tax concepts, studies the tax law system, deals with the relevant issues arising in the field of application of legal regulations on taxation, and provides a (...) particularly detailed analysis of court jurisprudence within the context of the relationship between tax and law. On the basis of the analysis conducted, it was established that the basis for the Lithuanian tax law system consists of the Constitution of the Republic of Lithuania; the Law on Tax Administration; tax laws that lay down specific taxes and of by-laws adopted on their basis; national legal regulations that contain a consideration attribute and set mandatory payments to the State budget; the Law on Customs; ratified international agreements; the European Union legal regulations to the extent they are related to the duties, import excise duty, and value added tax; and the European Union directives in respect of direct and indirect taxes and the extent to which they are related to tax administration. When relationships in public law are directly regulated by the relevant public law regulations, it is not private law regulations, but the corresponding public law regulations that must be applied. In order to determine the need for tax authorities to rely on the regulations of the Civil Code, it is necessary to state the necessity to assess legal relationships from the point of view of private law or to identify a gap in legal regulation of public law due to which the norms of the Civil Code are subsidiary. Prior to establishing the tax base, the tax authority does not have to rebut transactions in civil procedure. The taxpayer’s obligation to fulfil tax liabilities that are properly prescribed by tax laws is not called into question by unlawful acts of other persons which constitute grounds for their civil (non-contractual) liability for the damages caused. The factual circumstances of tax relations established in the court cases heard in criminal and/or administrative procedures, do not need to be proved again – they are relied on in the course of tax inspections or when hearing tax disputes. The principle of equality of taxpayers requires tax administrators to give equal treatment to the facts with respect to all participants regarding the same tax relationship and obliges taxpayers to pay taxes honestly, because non-payment of taxes is a breach of public interest and therefore of this principle. In accordance with the principle of general applicability and equality, each taxpayer has an obligation to pay taxes as prescribed in tax legislation observing the calculation and payment procedures stipulated in the tax legal regulations, whereas the amount payable as established by the tax administrator shall be regarded as well-founded to the extent that it does not exceed the criterion of equality and reasonableness. The principle of clarity of taxation requires the tax administrator to adopt clear and comprehensive decisions with respect to the taxpayer and therefore to ensure their rights and legitimate interests. In the calculation of tax by applying the principle of primacy of content over form, it is necessary to establish that a transaction, an economic deal or indeed any group thereof has been concluded for the purpose of obtaining tax benefits. (shrink)

Standards of professional legal education are developed by different organizations: in some countries these are governmental bodies, in others these are professional associations. Apart from a country these standards include Learning Outcomes which shape law schools’ curricula. Both American and European standards mention, to different extent, written and oral communication in the legal context, but a number and contents of subjects directed at developing and mastering professional communicative competency differ a lot. There are disciplines totally devoted (...) to the competency named as well as courses in which communicative skills are an integral constituent for their successful completion. The article goal is to find a place and role of a Legal English course in achieving learning outcomes connected with professional communicative competence. The methodology incorporated desk and field studies. The literature review is aimed at identifying current state of affairs in American law schools, as they provide first-class legal education recognized all over the world, and in Russian law schools, as the author works in this system and is interested in its development. A questionnaire was designed to explore Russian law school graduates’ assessment of practicality of subjects they had studied for their professional activities. The analysis of literature and Internet sources allowed to specify the ways of teaching written and oral communication in American law schools and to highlight the situation in Russian legal education. It shows that the Russian system is characterized by predominance of teaching theory of substantive and procedural rules of law and lack of curriculum disciplines aimed at cultivating skills and competencies. A survey of Russian law schools’ recent graduates indicates that most of communicative, in a broad sense, skills, which they use in their everyday work, were obtained within their LE classes. So, complementing a LE course with modules devoted to different aspects of legal writing and specific patterns of lawyer-client, lawyer-lawyer, lawyer-judge communication will definitely contribute to achieving learning outcomes which are put forward by legal education standards. (shrink)

This article draws analogies between the making of norms by contract, often seen as typical of private law, and by subordinate law-making, often seen as a typically public function and for public bodies. These analogies are set in the context of those rules which govern the relations between universities and their students, as the same types of rule may find their source in a range of legal sources: prescription, royal charter, parliamentary legislation or contract. Of these (...) different sources, the common law courts long accepted that chartered corporations, created by exercise of royal prerogative, were entitled to make subordinate legislation (known as byelaws) for the furthering of their purposes for both members and non-members, despite this law-making being extra-parliamentary. This article suggests how this power to make byelaws in chartered corporations may apply to chartered universities, noting the difficulties arising from the allegedly eleemosynary nature of these bodies and from the possible coexistence of statutory powers. It then examines the way in which the contract between a student and a university arises, and how this contract may form the legal basis of student rules, whether these rules are conceived as terms of the contract itself or as expressions of a unilateral power in the university arising from the contract. A subsequent article will compare the review of student rules on the grounds of public law principle and of contractual regulation. (shrink)

This article presents the dual conception of legal regulation of funding of political parties. In general, funding of political parties is considered as part of public law, however, this article explains that it also could be understood as an institute of private law. When funding of political parties is analysed not only through the conception of public law, but also taking into consideration the idea of private law, it is possible to apply different (than usual) principles (...) of legal regulation of such relations. Those principles are followed in this article in order to reveal different practical problems pertaining to legal regulation of political party funding. A conclusion is made that the legal provisions on funding of political parties form an integral system that consists of both public law and private law provisions. The relations when natural and legal persons assign property to political parties are considered as part of private law and those property relations that are based on state subsidies to political parties or other financial support by the state are the object of public law regulation. In the case of Lithuania, all such relations are regulated by the Law on Funding of, and Control Over Funding of Political Parties and Political Campaigns, which is an act of private law and also a source of public law. The legal regulation that stems from this law is supplemented by the Civil Code of the Republic of Lithuania and other related laws. The legislator, while regulating the legal relations pertaining to the funding of political parties, and the courts, when dealing with disputes related to those relations, are advised to take into consideration the general principles of civil law. It is important to point out that some legal provisions of the Law on Funding of Political Parties that are in force as of 1 January 2012 are against those principles. A prohibition for legal persons and limitations for natural persons to fund political parties should be critically considered, since those restrictions limit the possibilities for private persons to dispose their property and for political parties – to acquire it. Moreover, it is important to point out that such restrictions can be circumvented by assigning property through a third party and by other legal means. In order to avoid such cases, it is recommended to provide an opportunity for natural and legal persons to fund political parties, but with reasonable limitations for such donations. (shrink)

This article presents an overview of traditional legal and regulatory incentives directed at achieving lawful corporate behavior, together with examples of more recent governmental incentives aimed at encouraging self regulation activities by corporations. These incentives have been differentiated into positive incentives that benefit corporations for actions that encourage or assist lawful behavior, and punitive incentives that only punish corporations for violations of legal or regulatory standards. This analysis indicates that traditional legal and regulatory incentives for (...) lawful corporate behavior are overwhelmingly punitive in their intended effects, while more recent governmental incentives to encourage voluntary corporate self regulation are much more positive in their intended effects.A prototype private compliance system containing typical features specified in governmental incentives for corporate self regulation was then analyzed applying the same positive/punitive analysis that was performed with the governmental incentives. This analysis suggests that corporate compliance programs that are structured to comply with Department of Defense regulations for defense contractors or the new Federal Organizational Sentencing Guidelines will reflect the same overwhelmingly punitive balance of incentives for lawful and ethical employee conduct as do the traditional legal and regulatory incentive systems for lawful corporate behavior. (shrink)

A significant development in law schools in recent years is the reflowering, or in many cases the first flowering, of interest in legal theory. This may take the form of a greater concern with the jurisprudential and philosophical basis of law; alternatively, it may be represented in attempts to bring to bear on legal issues the knowledge and insights developed in other disciplines. Both directions branch into a multitude of sub-disciplines, any one of which offers rich pickings to (...) the legal academic. The object of these essays, all of which were written specially for the volume by members of the Law Faculty of the University of Melbourne, is to take a number of legal issues which are of particular contemporary interest and to analyse them in a theoretical way or by using knowledge and techniques derived from other disciplines. The authors cover such topics as the patentability of living organisms; the legal and ethical problems that arise from medical research and experiment; the economic basis of property rights; the application to the decisions of officials of values deriving from fairness and rationality; the arguments for and against regulating the professions; the theoretical basis of the law of evidence and how this relates to practical issues; whether legal systems are in fact 'systems'; the relationship between Marxism and positivism; the capacities of the courts in dealing with non-justiciable issues; and the relationship between private and public law concepts. (shrink)

A practising lawyer is not always aware of the fact that case decisions are more determined by legal doctrine – attitudes of authoritative lawyers and scientific legal discussion of other forms – than by changes in positive law. Regulations of specific case decisions are directly reliant on the ideas and statements of legal discussions – as one of the factors influencing the decisions of the courts. During the twenty years of independence, the form, content and argumentation of (...) the Lithuanian court judgments has fundamentally changed, especially with regard to the understanding of the courts (the judiciary) in terms of how unrestrained they are when interpreting a legal text and making decisions. The judicial discretion to interpret a legal text is treated diversely in various legal traditions and within the scope of the western legal tradition itself. In common law countries, the competence of a judge to deviate from a legal text or to create their own legal framework is treated with much greater understanding. In civil law tradition, the attempts of judges to take over the functions of the legislature are usually considered more critically. Even the representatives of comparative law emphasise that judges in civil law tradition countries tend to call the creation of legal rules differently – mostly as interpretation of the law. The discussion on the power of judges to create law through its interpretation has been taking place everywhere and at all times. Judicial discretion in decision-making is not due to individual factors such as era, social structure, cultural background, but is determined by some other factors that are not easy to identify. The interpretative activity of the courts is also influenced by the prevailing doctrinal regulations of judicial activity. It is the changes of the Lithuanian legal doctrines that could have encouraged the courts to determine the scope of their activity in the direction of its growth. After the restoration of independence, the Lithuanian legal community began an active discussion on whether legal positivism was the correct form of legal understanding. Studies appeared, in which legal positivism was seen exclusively negatively, reminding that it was specifically this legal concept that had eliminated values from law and was likely to be blamed for the ills of humanity such as the Holocaust or genocide. Numerous publications emerged calling judges to be active and reminding them to check every rule of law in accordance with its consistency with the principles of law and to disapply any rule of law that did not meet this requirement. Almost universally, lawyers (and especially the courts) were encouraged to move from mechanical (a priori improper) application of the law to the creative (a priori the best and aspirational) one. The courts were encouraged: they started to freely interpret legal rules, under which the legislature established their competence; although court judgments have become more reasoned, this did not prevent them from applying speculative or ambivalent arguments; criticism could be expressed to courts due to lengthy processes that are, objectively looking, not required, and for low activity in exercising their powers to prevent abuse of law. Respect for the legislature directly responsible for creating legal rules and taking care of legal protection, judicial recognition that a court should deviate from the legal text or otherwise create new rules only when it is objectively inevitable, and lawyers’ societal openness to discussion on various issues – these can become conceptual prerequisites for higher confidence in the courts. (shrink)

Public health legal preparedness begins with effective legal authorities, and law provides a key foundation for public health practice in the United States. Laws not only create public health agencies and fund them, but also authorize and impose duties upon government to protect the public's health while preserving individual liberties. As a result, law is an essential tool in public health practice and is one element of public health infrastructure, as it defines (...) the systems and relationships within which public health practitioners operate.For purposes of this paper, law can be defined as a rule of conduct derived from federal or state constitutions, statutes, local laws, judicial opinions, administrative rules and regulations, international codes, or other pronouncements by entities authorized to prescribe conduct in a legally binding manner. Public health legal preparedness, a subset of public health preparedness, is defined as attainment of legal benchmarks within a public health system. (shrink)

Law and the legal system through which law is effected are very powerful, yet the power of the law has always been limited by the laws of nature, upon which the law has now direct grip. Human law now faces an unprecedented challenge, the emergence of a second limit on its grip, a new “species” of intelligent agents (AI machines) that can perform cognitive tasks that until recently only humans could. What happens, as a matter of law, when another (...) species interacts with us, can be integrated into human minds and bodies, makes “real-world” decisions—not through human proxies, but directly—and does all this “intelligently”, with what one could call autonomous agency or even a “mind” of its own? The article starts from the clear premise that control cannot be exercised directly on AI machines through human law. That control can only be effected through laws that apply to humans. This has several regulatory implications. The article’s first discusses what, in any attempt to regulate AI machines, the law can achieve. Having identified what the law can do, the article then canvases what the law should aim to achieve overall. The article encapsulate its analysis in a list of both doctrinal and normative principles that should underpin any regulation aimed at AI machines. Finally, the article compares three transnational options to implement the proposed regulatory approach. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Future Directions for Oversight of Stem Cell Research in the United States: An UpdateMary A. Majumder (bio) and Cynthia B. Cohen (bio)On 9 March 2009, President Barack Obama (2009a) signed an executive order revoking the statement issued by President George W. Bush during a televised speech in August 2001, in which the latter had sharply restricted the scope of federally funded human embryonic stem cell (hESC) research to cell (...) lines derived (without federal funding) prior to 9:00 P.M. EDT on 9 August 2001. Action by President Obama to remove the cut-off date had been expected. It came as a surprise, however, that he gave authority to determine the scope of eligible research to the Director of the National Institutes of Health (NIH), referencing only general concerns of responsibility, scientific worth, and legality.1 This contrasted not only with the approach of former President Bush, but also with that of former President Clinton, who had expressed personal opposition to the creation of embryos for research and had a distinction between hESCs derived from embryos created for research and those derived from spare embryos enshrined in NIH policy.President Obama’s remarks upon signing the executive order give some insight into the thinking behind his approach. Implicit in them are the views that earlystage human embryos outside the womb do not have full moral status and that the destruction of human embryos in the effort to care for and ease the suffering of human beings who do have full moral status does not devalue human life. The President also stressed that the decision to pursue hESC research reflected not only his opinion, but also a broad social consensus. He concluded with strong ethical commitments on two fronts:We will develop strict guidelines, which we will rigorously enforce, because we cannot ever tolerate misuse or abuse. And we will ensure that our government never opens the door to the use of cloning for human reproduction. It is dangerous, profoundly wrong, and has no place in our society, or any society.(Obama 2009b)The specific guarantee that President Obama gave against government support for the development of cloning techniques for human reproductive purposes made his silence on the use of cloning for research seem significant. Comments he had made in the course of the campaign (Obama 2008) suggested that he would affirm [End Page 195] the Clinton-era policy of limiting federal funding to hESCs derived from spare embryos. Did this silence mean that President Obama was opening the door to federal funding of research cloning when and if scientists might manage that feat?2009 NIH GuidelinesThe answer to this question and several others came on 17 April, when Raynard Kington, the acting director of NIH, released Draft NIH Guidelines for Human Stem Cell Research (NIH 2009), developed by an NIH Stem Cell Task Force, along with a request for public comment within 30 days of their publication in the Federal Register.2 The 2009 Draft Guidelines exclude from federal funding the derivation of hESCs, a restriction mandated by the reenactment of the Dickey-Wicker Amendment as part of the 2009 Omnibus Appropriations Act (Public Law 111-8, Division F, Title V, § 509). The 2009 Draft Guidelines also exclude the use of hESCs derived from embryos created for research purposes, and so represent a refusal to open the funding door as broadly as the NIH interpretation of the Dickey-Wicker Amendment might allow, at least for the time being.It appears that the drafters used as their starting point the 2000 NIH Guidelines for Research Using Human Pluripotent Stem Cells (NIH 2000) dating from the Clinton Administration, rather than more recent guidelines from the National Academy of Sciences (National Research Council 2005; 2007; 2008) and other private bodies. Both the format and content of the 2000 and 2009 NIH efforts are similar, making the departures in the latter stand out in high relief. We highlight departures related to informed consent to embryo donation, creation of human-nonhuman chimeras, and the role of an NIH task force, updating our original comment (Cohen and Majumder 2009).Informed Consent to Embryo DonationThe 2009 NIH Draft Guidelines require that certain statements... (shrink)

This article concerns the implementation of new EU Directives coordinating the procedures for awarding public contracts in European Union Member States. In a number of countries, including Poland, the process of their implementation (Directive 2014/24/eu of the European Parliament and of the Council of 26 February 2014 on public procurement; Directive 2014/25/eu of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport, and postal services sectors; (...) Directive 2014/23/eu of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts) was delayed. In most cases, the modernization of EU regulations on public procurement required a thorough modification of national regulations in this respect. As a result of the introduction of the package of new Directives, the European Union public procurement market has undergone substantial changes. The need to adjust legal regulations to the changing political, social, and economic situations in a better way has resulted in the transposition of the modernized EU Directives concerning public procurement to the Polish legal system, affecting the final shape of the new Polish Public Procurement Law. The implementation of the package of new Directives has significantly affected the functioning of the Polish public procurement market. For the entities operating in this market, this means the necessity to expand their knowledge, so as to become familiar with the new legal solutions in this respect. (shrink)

Laws, ordinances, regulations, and executive orders create the powers and duties of public health agencies and modify the complex community conditions that affect health. Appropriately trained legal counsel serving as legal advisors on the health officer's team facilitate clear understanding of the legal basis for public health interventions and access to legal tools for carrying them out.Legal counsel serve public health agencies via different organizational arrangements — e.g., internal staff counsel, external counsel (...) from the state attorney general's office, state health department, county or city, or private counsel under contract, or in combination. As of 2011, most state health departments employ their own counsel, and 56% use AG counsel, while 17% contract with independent attorneys; most local health departments work with attorneys and legal staff assigned by local government, by the state health agency, or contract with outside attorneys and legal staff. (shrink)

The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be judged (...) by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and well-being. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally. (shrink)

PurposeThis paper aims to investigate algorithmic governmentality – as proposed by Antoinette Rouvroy – specifically in relation to law. It seeks to show how algorithmic profiling can be particularly attractive for those in legal practice, given restraints on time and resources. It deviates from Rouvroy in two ways. First, it argues that algorithmic governmentality does not contrast with neoliberal modes of government in that it allows indirect rule through economic calculations. Second, it argues that critique of such systems is (...) possible, especially if the creative nature of law can be harnessed effectively.Design/methodology/approachThis is a conceptual paper, with a theory-based approach, that is intended to explore relevant issues related to algorithmic governmentality as a basis for future empirical research. It builds on governmentality and socio-legal studies, as well as research on algorithmic practices and some documentary analysis of reports and public-facing marketing of relevant technologies.FindingsThis paper provides insights on how algorithmic knowledge is collected, constructed and applied in different situations. It provides examples of how algorithms are currently used and how trends are developing. It demonstrates how such uses can be informed by socio-political and economic rationalities.Research limitations/implicationsFurther empirical research is required to test the theoretical findings.Originality/valueThis paper takes up Rouvroy’s question of whether we are at the end of critique and seeks to identify where such critique can be made possible. It also highlights the importance of acknowledging the role of political rationalities in informing the activity of algorithmic assemblages. (shrink)

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

The law commonly conceived as a norm : deficiency of this conception -- On some general hints of this deficiency, and in particular those evinced by the likely origin of the current definitions of law -- The need to distinguish the distinct legal norms from the legal order considered as a whole. The logical impossibility of defining the legal order as a set of norms -- How the unity of a legal order has been sometimes intuited (...) -- How a legal order is not only a set of norms, as it also encompasses other elements -- How such ements are implicitly postulated by the common inquiry into the distinguishing characteristics of law -- Assessment, from this point of view, of the so-called objectivity of law -- The element of sanction -- The expression "the legal order" -- The essential elements of the concept of law. The law as an institution and the law as a precept -- The preceding doctrine on the concept of institution -- My concept of institution and its fundamental characteristics : 1. The objective existence of the institution; 2. Institution and social body; 3. The institution's selfness; 4. The unity of the institution -- Equivalence of the concept of institution and the concept of a legal order -- Evidence for this equivalence based on the doctrine that the law is only "form" -- Mention of some problems that need solving in the light of this equivalence -- Cases in which the original establishment of a law does not depend on norms, but on the emergence of an institution, and the impossibility of reducing the institution to the norms -- The concept of institution and the international legal order -- The institution and the legal relationship: relationships between more persons -- Relationships between persons and things : examples of some of these relationships that, considered more broadly, cab be portrayed as institutions -- The institution and the legal person -- My conception of the law with respect to certain problems relating to : 1. The legal character of state power; 2. The extension of the state personality; 3. The legal relevance of its territory and citizenry -- Critical assessment of some opinions that attach importance to the legal order only insofar as it reflect relationships between persons. Applications to: 1. The legal sanction; 2. The state territory and citizenship; 3. The state bodies; 4. The limits of the legislative function -- Some consequences of my conception with regard to the subjective aspect of the law: the legal relationship; the status of persons; rights in rem; the correlation between rights and obligations; the equal position of subjects -- Recapitulatory remarks -- The plurality of legal orders and the doctrine that reduces all law to state law -- The untenability of this doctrine from a historical and theoretical point of view -- Its untenability with respect to the existing law -- Non-state legal orders; international law -- Ecclesiastical law -- The order of entities that are considered unlawful or are ignored by the state -- Entities that are regulated by the state, but also have an order of their own which is not recognized by the state (private disciplinary orders; the internal organisation of workplaces; so-called unrecognized associations or institutions, etc.) -- Doctrines that confine the concept of a legal order to the order of communities in general and specifically to necessary communities -- The relations between different legal orders. Principles that have to be taken into account with respect to : 1. Original or derivative institutions; 2. The particular or general ends of institutions; 3. Their diverse basis; 4. Simple or complex institutions; 5. Perfect or imperfect; 6. With or without personality; 7. Independent, coordinated or subordinated -- The concept of relevance of one order to another -- The title for this relevance: a. The relation of superiority and correlative dependence between two orders; b. The relation whereby an order presupposes another; c. The relation whereby reciprocally independent orders depend a further one; d. The relevance unilaterally attributed by an order to another on which it depends; e. The relation of succession between orders -- Diverse aspects (existence, content, effectiveness) expressing the relevance an order to another one. Cases in which the existence of an order depends on another: a. Complete subordination of the former to the latter which directly establishes the former or assigns limited autonomy to it. Independence, as far as its existence is concerned, of an order in case of a less expansive subordination (some spheres of the order of the states of a federal state vis-à-vis the latter; the order of states vis-à-vis international law) and general principles; b. In the hypothesis of an order that represents the presupposition of another (state law vis-à-vis international law) -- The relevance of an order to another with respect to its content. Various cases: a. The superior order as the mediated or unmediated source of an inferior order; the superior order (international law, ecclesiastical concordats) which is not the source, and yet affects the content of inferior orders; b. the Superior order about effects the content of more orders subjected to, which however are independent from each other; c. the order of that itself that determines its own content by considering a subjected or independent order : private international law; ecclesiastical law as it refers to civil laws; the law of the state that refers to ecclesiastical law; d. an order that incorporates another -- The relevance of an order to one another with respect to its effects: external and internal effectiveness of an order. Various cases of external effectiveness: a. The relationships between orders where the one partially or totally depends on the other; b. Relationships between more orders that are independent from each other because of a unilateral disposition of one or each of them. Private international law; civil effectiveness of ecclesiastical law; c. Relationships meeting more orders in which one is of the presupposition of the other; d. Relationships between orders that succeed each other -- Diverse extension of the relevance of an order to another. Applications with regard to the problem of so-called natural obligations -- The irrelevance of an order to another; total or partial, reciprocal or unilateral -- A legal order that as such is irrelevant to another, but it is relevant in other respects (orders that are considered unlawful by the state; corporations, de facto institutions) -- Total developments of an order to another: possibility of such an irrelevance also with respect to the order of the state -- Critical assessment of the opposite doctrine. The limitations of the state order; various figures and consequences; examples of matters that are legally indifferent to the state (private disciplinary orders; particular religious orders; the orders of some non-patrimonial associations; etc.) -- The internal orders of the institutions, especially state ones, vis-à-vis the order of other institutions in which they are included. (shrink)

Introduction. Innovationism in various areas of society has changed both the natural and social environment. The change speed in the new infor- mation and communication field is the reason for many questions related to studying the problems of society and the machine, finding out the place of artificial intelligence in social relations. These pro- cesses stimulated the philosophical research, the subject of which was man, modern technologies, scenarios for the development of society, socio- cultural and political-legal forms of its (...) organization. Since the 90s of the twentieth century in the West and later in Russia, a transhumanistic concept has been formed, which connects man, society and technology in a special way. Representatives of transhumanism study the technical develop- ments of human immortality and build models of the perfect man, pursuing as a goal, his deliver- ance from suffering and disease. Transhumanistic perspectives actualize the need for a thorough, constructive and critical assessment of the possible advantages and risks of technological development, and its impact on the political and legal structure. In this regard, the ability to see and isolate the features of this process and subsequent reflection is fundamentally important. The purpose of the article is to consider political and legal transformations in the context of the interaction of modern technologies and soci- ety through the prism of transhumanistic perspec- tives, to identify possible directions of philosophical reflection of political and legal modes of modernity. Methods. To achieve the research goal, general scientific methods of cognition were used: analysis and synthesis, induction, deduction, comparison, abstraction. The article also applied institutional- functional and system-structural approaches, the method of interpretation and content analysis. The analysis of public opinion and special labeling of artificial intelligence was carried out with the help of appealing to network content (social networks, blogs, and forums). Communication channels reproduce messages mentioning modern technolo- gies from the point of view of the philistine world- view based on stereotypes broadcast in society and the influence of popular culture. Content analysis revealed the relevance of the spectrum of labeling, relative to artificial intelligence systems, includ- ing the verbs “create”, “destroy”, “help”, “enslave”. Regarding the sphere of labor, law and politics, the positions differ, from outright alarmism to utopian images of social well-being. Scientific novelty of the study. The article analyzes the prospects of considering the phenom- enon of social transformations, the forms of their representation through political and legal views as exemplified by transhumanism. Results. The author attempts to give a comprehen- sive description of social changes in the field of public administration, legal regulation, legal per- sonality and legal responsibility, social equality of participants in legal relations through the specific refraction of these social phenomena in transhu- manistic ideas. The spectrum of the main problems in the sphere of interests of the transhumanistic worldview is listed. Conclusion. Turning to modernization strategies on the example of transhumanism is a natural and necessary need in the political and legal sphere, in particular. In the course of the analysis, a wide range of problems were identified that actualize the social and axiological and anthropological optics of the research. Diverse forms of transhumanistic political trends act as manifestations of socio-legal reflection on the intensification of innovation- ism, which is capable of radically changing human nature. (shrink)

BackgroundPrivate umbilical cord blood banking is a for-profit industry in which parents pay to store blood for potential future use. Governments have noted the tendency for private banks to oversell the potential for cord blood use, especially in relation to speculative cell therapies not yet supported by clinical evidence. We assessed the regulatory landscape governing private cord bank marketing in Canada.Main bodyBecause the problematic marketing of private cord blood banking for future use often relates to speculative future cell therapies that (...) do not exist and are not being advertised for current clinical use, most private blood bank marketing seems to fall outside Health Canada’s regulatory scope. However, this problematic marketing is regulated by the Competition Bureau pursuant to the Competition Act. While representations relating to future hypothetical treatments may not always be subject to the legal requirement for claim substantiation, the law also prohibits individuals and companies from knowingly or recklessly making representations that are “false or misleading in a material respect.” A representation is materially false or misleading when it could “influence a consumer’s behavior or purchasing decisions,” and consumers are likely to be considered to be “credulous and inexperienced” for the purposes of assessing an advertisement’s general impression. Because all of the potential benefit of the banking is derived from the potential future use of the biological material for health interventions directed toward the customers and their relatives, and because we know the best available medical evidence indicates a very low probability of utility in this context, we can say with confidence that some private cord blood banking claims are materially misleading. Moreover, to the extent that medical professionals are involved in private bank interactions with customers or hold ownership stakes in private banks, they are subject to professional codes, standards of practice, and potentially fiduciary obligations that further prohibit misleading marketing.ConclusionsPrivate cord blood bank marketing that advertises hypothetical future treatments can be misleading and may influence consumer behaviour. This marketing may breach existing advertising law. Regulatory bodies should enforce the law in order to help prevent public health and personal financial harm. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:FDA Releases Draft Guidance on Regulation of Genetically Engineered AnimalsJohn P. Gluck (bio) and Mark T. Holdsworth (bio)On 18 September 2008, the U.S. Food and Drug Administration (FDA) issued a draft set of guidelines for those involved in developing genetically engineered animals with heritable recombinant DNA (rDNA) constructs and is requesting comment from industry and the public about their content. The document does not impose new regulations (...) but details how existing laws and regulations apply to genetically engineered (GE) animals and offers advice to developers on how to negotiate the laws in the most efficient and productive manner. The draft guidance document is not legally enforceable at this juncture, but the guidelines are recommendations reflecting the FDA's "current thinking on a topic."The modification of GE animals being developed for commercialization, which are the focus of the document, fall into six categories: modifications intended to (1) enhance food quality—e.g., faster growing fish and meats with better nutritional profiles; (2) improve animal health via increased resistance to disease—e.g., mastitis in dairy cattle and Bovine Spongiform Encephalopathy (BSE); (3) create so-called "biopharm" animals capable of producing therapeutic products such as insulin, clotting factors, and tissues for human transplantation; (4) reduce the barriers to human animal interaction—e.g., hypoallergenic pets; (5) develop valid animal models of human disease—e.g., Parkinson's disease, Lesh-Nyhan's syndrome, and cancer; and (6) improve production of industrial or consumer products such as fiber. The timing of the guidelines coincides with the FDA's belief in an expected boon in the number of GE animals approaching the stage of commercialization.The FDA's involvement in the approval process emerges from the new animal drug provisions of the Federal Food Drug and Cosmetic Act and the definition of what constitutes a drug. The Act defines a new animal drug as "an article (other than food) intended to affect the structure or any function of the body of... animals." A rDNA construct intended to affect the structure or function of an animal meets the definition of a new animal drug, regardless of whether the resulting GE animals are intended for human food or the production of pharmaceuticals or any other substances. [End Page 393]Before proceeding to a review of the draft guidelines, it is important briefly to set the controversies around GE animals in historical and ethical context.The Ethical DebateFrom its inception, the intentional genetic modification or genetic engineering of molecules, plants, and animals by the techniques of gene splicing has consistently elicited strong responses from both the scientific community and the public. There are some data to suggest that although the concerns of scientists fall primarily into the category of possible biohazards, those of the public also reflect great concern about the intrinsic moral issues, such as whether there is something fundamentally wrong with this line of work, making it a form of forbidden knowledge (see, e.g., Gaskell 1997). When news of Paul Berg's attempts in 1970 to graft the primate tumor virus (SV 40) onto the intestinal tract bacteria Escherichia coli for the purpose of studying how normal cells may be transformed into cancerous cells was shared with colleagues, he was strongly encouraged to reflect on the potential public health risks if somehow the altered bacteria broke containment and entered the environment. Thanks to Berg's leadership, these concerns soon resulted in conferences held in Asilomar, California, and New Hampton, New Hampshire, where the ethical responsibilities of microbiologists involved in this research were discussed. These initial discussions resulted in what has come to be known as "The Moratorium Letter" (Shattuck 1996) published in the journal Science in 1974. This letter, signed by 11 leaders in the field, actually recommended restrictions on several types of experiments that were considered to be particularly risky and stated "that adherence to our major recommendations will entail postponement or possibly abandonment of certain types of scientifically worthwhile experiments" (Berg 1974). An international conference on the issues came to similar conclusions about the need for a research moratorium for the sake of public safety. Recommendations arising from conference participants led to the formation of the National Institutes... (shrink)

The article analyses European regulations concerning the health protection at work with nanomaterials in the context of the Christian vision of human work. The increasingly widespread presence of nanotechnology in workplaces requires serious reflection on the adequacy of employers’ measures to protect workers’ health from the risks in the workplace. The lack of clear guidance in European legislation directly concerning work with nanoparticles is problematic. Moreover, the health consequences for workers using nanomaterials in the work process are not fully explored (...) in science. It is therefore essential to consider what values should accompany employers in shaping working conditions and what values should be legislated when creating occupational health and safety law. First of all, how should the employers deal with the unknown? Should they abandon nanomaterials for which they do not have adequate information at all until the consequences for workers’ health have been established? Should such action be limited to situations where studies indicate the toxicity of the nanomaterials present in the working environment? In this context, the article analyses values and objectives indicated by the teaching of the Catholic Church. The publication presents a Christian vision on the protection of workers’ health and their place in the work process. Europe has been under the influence of Christianity for many centuries now. The Catholic Church’s view of human labour continues to be present in public debates in Europe. The Christian view of human labour is focused on the working man and his dignity. Irrespective of other concepts of labour, Christianity assumes the priority of a human being over capital. The Catholic Church analyses the working man as going beyond the Earthly context, which is not typical for such doctrines as liberalism or Marxism. The author’s article is an attempt in answering the question about how up to date the Catholic Church’s views on human labour are in the light of nanotechnology development in the workplace. (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)

The legal system affects behavior not just directly, by imposing sanctions, but also indirectly, by producing information on how people behave. For example, internal company documents exposed during litigation will help third parties assess whether they trust a company and want to keep doing business with it. The law therefore affects behavior by shaping reputations. Drawing on economics, communications, and a nascent multidisciplinary literature on reputation, Roy Shapira highlights how reputation works, and how information from the courtroom affects the (...) court of public opinion, with a particular emphasis on the role of the media. By fleshing out interactions between law and reputation, Shapira corrects common misperceptions about the ability of market forces to discipline corporate behavior and adds to timely, ongoing debates such as the desirability of heightened pleading standards or mandatory arbitration clauses. Law and Reputation should interest any scholar who invokes notions of market discipline in their work. (shrink)

The church and other community organisations have a legitimate role to play in influencing public policy. However, intervention by the church and other religious bodies in recent litigation in Australia and the United Kingdom raises questions about the appropriateness of such bodies being permitted to intervene directly in the court process as amici curiae. We argue that there are dangers in such bodies insinuating their doctrine under the guise of legal argument in civil proceedings, but (...) find it difficult to enunciate a principled distinction between doctrine and legal argument. We advise that judges should exercise caution in dealing with amicus submissions. (shrink)

INTRODUCTION BY NANCY FUMERO What is a translation that stalls comprehension? That, when read, parsed, obfuscates comprehension through any language – English, Portuguese. It is inevitable that readers expect fidelity from translations. That language mirror with a sort of precision that enables the reader to become of another location, condition, to grasp in English in a similar vein as readers of Portuguese might from João Guimarães Rosa’s GRANDE SERTÃO: VEREDAS. There is the expectation that translations enable mobility. That what was (...) written in one language be accessible in another. And that a translator is to serve as a mediator, acting ultimately in service to ideas within the source text. To disperse them. However, this notion of translation is partly antithetical to the ideas in Rosa’s work. Or, alternately, to convey the despair of terrain slipping beneath one’s feet, and to encounter the heightened suspense of magic, the translation, as part of its strategy, cannot devotedly rely on its original language, not as its source text. The work undertaken by Felipe W.Martinez is a new form of translation that risks everything in order to encounter the same treacherous knowing Rosa had traversed. And it takes its risks by not taking risks: by being, almost word for word, a literal translation. This is an approach that reductively converts, as opposed to translates. The idiomatic differences between English and Portuguese are not accented. The syntax is not finessed. Liberties are not assumed on account of improving readability. What stands, resoundingly amid such absences, is the awakened challenge of reading. The genuine peril of not knowing. That is, this translation, one that purports to know nothing, creates access into the guileful world Rosa had created in Portuguese. But not by translating. If anything, GRANDE SERTÃO: VEREDAS is speaking a cosmic language through a linguistic one. And W.Martinez does us the service of recognizing this, as what configures the shapes of words and sentences is not as simple as neologisms, portmanteaus, and digressions, but as terrifying as the path the fool traverses: all paths. As such, this translation doesn’t speak English, just as the original does not speak Portuguese. It is the assemblage of paradox as a new logic that can be navigated, if only one could suspend the comfort of readability, of expectation. If one could descend a mountain in the pitch dark of night, each step shocking the body, unable to acclimate to the unleveled heights. Without a doubt, the translation is incongruous to the Portuguese. Taking a small excerpt to compare: Eh, well, thereafter, the rest the Sir provide: comes the bread, comes the hand, comes the god, comes the dog. What is striking is the interplay between “god” and “dog”. To most English speakers, this anagram is a familiar one. But in Portuguese the words god (“deus”) and dog (“cão”) are not so closely linked. In fact, there is no direct mention of “deus” in Rosa’s text: Eh, pois, empós, o resto o senhor prove: vem o pão, vem a mão, vem o são, vem o cão. Both are fascinating. In Rosa’s excerpt, the rhythm is unmistakable and precise, despite, of course, the indices of hesitation: the commas, the Eh, the uncomfortable way of searching through prolongation and wait. This is the sort of paradox Rosa can engage within a sentence. W.Martinez’s does this as well, at a scale that reverberates beyond the sentence, and with one noticeable addition: deus. What may appear to be an overstep, to add such a weighted word that draws out wordplay but is, nevertheless, not in the source text, is exemplary of risk. The translation buzzes because of it. This is because throughout the text we encounter dogs frequently, as some primal beast on par with humans. The dog is one that masters and can be mastered. A creature that is at times its face, and at others a mask. It is a powerful presence. For the translator to be attuned to the reverent undercurrent attributed to this animal, and create within the translation such charged play in English from what was only an implication in Portuguese, is in tribute to the grand beauty within dissonance. What aberrant modes of writing and translation can teach us most assuredly, is that things, words, are not in states of rightness or wrongness, but of oscillation. This isn’t so different from what Rosa says himself: The Sir look…see: the most important and beautiful, of the world, is this: that the people are not always same, still were not completed — but that they go always shifting. They tune or detune. We find this so readily in W.Martinez’s translation, this tuning and detuning. Nancy Fumero Los Angeles GRAND SERTÃO: VEREDAS BY JOÃO GUIMARÃES ROSA TRANSLATED FROM THE PORTUGUESE BY FELIPE W.MARTINEZ Nonothing. Shots that the Sir heard were man brawling not, God be. Bleach white sights on the tree in the backyard, down in the river. By my right. I do this every day, I like; from the bad of boyhood. Thereof they came to call on me. Case of a calf: a white calf, errorful, eyes of to not be—saw selves—; and with a mask of a dog! They told me; I didn’t want to catch a sight. Same that, by the defects of birth, upturned lips, looked to be a laughing man. Folkface, dogface: they determined—it was the devil. Bananas. Killed it. Do not know who owned it. They came to borrow my guns. I caved. I’ve no power to impose. Oh, sir, you laugh certain laughs…Look: when it’s a true shot, first the dogs begin to bark, instantly—after, then, you see who’s handed death. Sir, endure, this is the Sertão. Some want that it is not: that situated Sertão is in and out of those general fields, they say, end of the road, highlands, the other Urucuia. Toleima. For those of Cortino and of Curvelo, then, isn’t here said Sertão? Ah! That there’s more! To place the Sertão it’s told: it’s where the pastures lack latches; where one can tear off ten, fifteen leagues without running into a houseinhabitant; where criminalousness lives out its christ jesus. Sifted out from the tightening grip of the law. The Urcuia comes from the western mountains. But today, its banks, give all—farmlands of farms, pastures of meadows of good yield, low tides, cultures that go kill for kill, until these virgins there are. The general fields run round. These general fields are without size. Ultimately, whichever one one approves, the Sir knows: bread or breads, it’s a question of heads…the Sertão is everywhere. Of the devi? No comment. Sir ask the dwellers. Falsely I fear they unspeak that name of his—only say: whatsitcalled. Volt! no… Whosoever over avoids it, lives with it. In the sentence of one Aristides—who exists in the first palm grove on the right hand side, called Vereda-of-Cow-Calm-of-Saint-Rita—everyone believes: he can't pass in three designated places: then can be heard the tiny cry, behind, a little voice warning:— "Here I come! Here I come!... "— that is the Capirote, the whatsitcalled... And one Jise Simplicio—who anyone from here will swear he keeps an imp in house, a little satanite, imprisoned and obliged to help in all greedful deeds; reason that Simplicio emprises en route to complete riches. As such, for this they say too that his beast bristles and refuses, denying his banner, unyielding, when he wishes to mount... Superstition. Jise Simplicio and Aristides, continue getting fatter, thence unheard or heard. Still the Sir study: right now, in these days of time, you have people purporting that the devil proper stopped, mid-passage, in Andrequice. A boy out of there, to whom'd appeared, and there lauded that, to get here—normally, by horse, a day-n-half—he was capable of such with only some twenty minutes enough... by coasting the River of Chico by the headwaters! Or, too, who knows—sans offense—will not have been, for example, even yourself the Sir who announced such, when you passed by there, for fun run funny? Thereof, not my given crime, I know that wasn't. And evil I wanted not. Only that one question, in hours, at times, brightens peaceful reason. But, the Sir understand: if such a boy, there was, he wanted to dupe. Because, hey, that, to cut the river off by the springs, would be the same thing as one redoubling in the internals of this our state of ours, costant of a journey of some three months... Then? Whatsitcalled? Dodo. The fantastication. And, the respect of giving him such these names of delicacy, is what it is for one to want to invoke that he form of form, with his presence! Not that is. I, personally, almost that have lost in him the creed, deserving to Deus; is the that to the Sir I say, to pure-secret. I know that it is well established, that it greases our Saintly-Gospels. On occasion, I conversed with a young seminarian, super suitable, conferring in the book of prayers and coated in vestments, with a stick of black-sage in hand—prosed that he went auxilitator to the father, to extract the Cujo, from the body living of an oldwoman, in Waterfalls-of-Bulls, he went with the vicar of Field-Round... I conceive. The Sir not is as I? I didn't believe a single thing. Compadre mine Quelemem describes that that which reveals effect are the low spirits meager, of third, adoing in the worst darkness and with anxieties of connecting selves with the livers—they give support. Compadre mine Quelemem is who much me consoles—Quelemem of Goias. But he has to live far from here, in Jijuja, Vereda of Buriti Dark... Ahrr, I leave myself there, that in enevildemonment or with support—the Sir too must have had known diverse, men, women. As not yes? For me, umpteen I've seen, that I've learned. Ma-Neigh, Blood-o'Other, or Legion-Lips, or Tear-em-Down, Cold-Cutter, or Sissy-Goat, one Treciziano, or Verdigris... or Hermogenes... o'them, pileload. If I could forget so many names... I'm not a man for calming horses! And, same, whom of yes of to be jagunço self enters, yea is for some competence entrant of demonion. Will it not? Will it? From first, I made and mixed, and to think not I thought. I didn't have the deadlines. I lived pulling difficult from difficult, fish alive on griddle: who lives asp'rously, no fantasies. But, now, fete of fate to me comes, and sans little disquietudes, I'm from creaky net. And myself invented in this like, of to speculate ideas. The devil exists and nonexists? I say the saying. Opennouncement. These melancholies. The Sir sees: exists waterfall; and since? But waterfall is gulch of ground, and water so pouring from it, retumbling; the Sir consume that water, or undo that bankment, remainder waterfall any? To live is negotiation much perilous. I explain to the Sir: the devil vigors inside of human, the wrinkles of human— or is the human ruin, or the human of adversess. I free, per se, citizen, is that not has devil notone. Notone!— is the that I say. The Sir approve? Me declares total, frank— is high merit that me make: and to beg might, increased. This case— by rashtravagance that me they see— is of mine certain importance. God grant not was... But, not say that the Sir, awised and instructed, that agrees in people of them?! Not? You I appreciate! Your high opinion composes my value. Yea I knew, waited for it— yea the field! Ah, a we, in oldness, we lack of to have plowing of rest. You I appreciate. Is devil notone. Nor esprit. Never I've seen. Someone ought to see, then was I myself, this your servant. Was I you to tell... Well, the devil regulate his state black, ins creatures, ins womens, ins humans. E'en: ins childrens— I declaim. Since not is said: "boy—trainee of the devil"? And ins thes uses, ins plants, ins waters, in terra, in wind... Manures. …The devil in the street, in the middle of the vortex... Hey? Hey? Ah. Figuration mine, of worse by back, the certain memories. Mal-make me! I suffer pain of to tell not…Meliorate, if chillingly: well, in a ground and with equal format of branches and leaves, not give to cassava-calm, that is eaten common, and the cassava-mad that kills? Now, the Sir yea saw a strangeness? A cassava-sweet can rapidly to turn agonizing— motives not I know, at times is said that is for replanted in the terrain always, with mutations then, of caules—go embittering, of s’much in s’much, of its self takes poisons. And, well look: the other, the cassava-mad, too is that at times can fix calm, the estimate, of is to eat sans notone mal. And what this is? Eh, the Sir yea saw, for to see, the ugliness of hate pleated, facetorqued, on the faces of one cobrarattlesnake? Observed the porker fat, capita day more felicity brute, capable of, could, snort and engulf for its own dirty coziness the world total? And sparrowhawk, blackbird, some, the features of they yea represent the need of cleave for before, rend and shred by beak, appears a knife much fine for ruin I desire. Total. Has even twisted races of stone, horrorous, venomous— that spoil mortal the aquas, if they are buried beneath of well; the devil inside of them sleeps: they are the devil. Is known? And the demon— that is only thus the significance of one mercury malign— have order of to follow the path of him, have license to brag?! Arr, he is variegated in all! What the what wastes, goes spending the devil of inside of the people, by itttybits, is the reasonable to suffer. And the delight of love—compadre mine Quelemem says. Family. Really? Is, and not is. The Sir think and not think. Total is and not is… Almost all more grave criminous ferocity, always is much good husband, good son, good father, and is good-friend-of-your-friends! I know of those. Solo that have the afters— and Deus, joined. I spy many nimbi. But, in veracity, son, too, softens. Look: one called Aleixo, resident a league from Step-of-Sour, in Of-Sand, was the man of major badness calm that yea you saw. Me agreed that near the house of his had a weir, amidst the palms, with traíras, for souls of enormous, desenormous, to the real, that received fame; the Aleixo gave of to eat to them, in hours just, they self accustomed to if assuch of lunacies, in order to gobble, seemed to be fishes instructed. One day, solo for grace rustic, he killed an oldman who by there passed, destitute begging alms. The Sir not doubt—have people, in this bored world, that kill solo in order to see someone make grimace… Eh, well, thereafter, the rest the Sir provide: comes the bread, comes the hand, comes the god, comes the dog. This Aleixo was man afamilied, had children small; they were the love of his, total, absurdity. Gave good, that not even a year there passed, of to killed the oldman poor, and the children of Aleixo there they asickened. Smallepidemic of measles, they said, but complex; they never heal. When, then, they healed. But the eyes of theirs vermillionized high in an inflame of spraining to rebellion; and nexthing— the that not I know is if they went of at once, or one later and later other and other— they remained blind. Blind, sans remission of one sweet of light of this Ours! The Sir imagine: stairset— three boys and one girl— all blind. Sans remediable. The Aleixo not lost the judgment, but he changed; ah, mutated complete— now lives of band of Deus, sweating to be good and charitous in all his hours of night and of day. Appears even that he fixed the felicity, that before not was. He himself says he was a man of luck, because Deus wanted to have pity of him, to transform for there the route of his soul. That I heard, and me it gave rage. Reason of the children. If being castigated, what culpa of the let-there-bes of Aleixo those little children had?! Compadre mine Quelemem reproved my uncertainties. That, for certain, inother life returnaound, the children too had been the most wicked, of the mass and part of the father, demons of the same kettle of place. Sir the what thinks? And the oldman, assassinated? — I know the Sir goes to discuss. Well, too. In order that he had a sin of crime, in the body, by to pay. If the people— conforming compadre mine Quelemem is who says— if the people turn to to incarnate renovated, I contemplate even that enemy of death can come as son of the enemy. Look see: if to myself I say, has a subject Pedro Pindo, neighbor of here more six leagues, man of good for all in all, he and the woman of his, always been good, of goodness. They have a son of some ten years called Valtei—name modern, is the that the population of here now appreciates, the Sir knows. Well this-little-thing, thislet, since that some understanding illuminated in him, deed demonstrated the that is: petition stepfather, acid burner, likeful of ruin of inside of the profundity of the species of its nature. In which that torments, to the slowly, of all beasts or raisinglings little that quarrel; one time he found a creole woman hooched foolish sleeping, he arranged a shard of bottle, lashed at three points on the stern of the legs of hers. The what this boy drooled seeing, is bleeding hen or to knife pig.— “I enjoy of to kill…”— one occasion he teeny me told. He opened in me a fright; because: birdy that self leans over— the flight yea is ready! Well the Sir oversee: the pa, Pedro Pindo, mode of to correct this, and the ma, they give in him, misery and mast—they cast the boy sans to eat, they tied to trees in the yard, he nude, unplumed, even in June cold, they tilled the bittybody of his with the trammel and with the goblet, after they cleansed the skin of the sanguine, with bottle gourd brine. The people know, spy, fix wasted. The boy yea relowered of thinness, the eyes entering, caress of bones, enskulled, and tuberculated, the time total hacking, coughness of the that draw parched pectorals. Arr, that now, visible, the Pindo and the woman self habituated of on him hit, of little bit in little they were creating in this a pleasure ugly of diversion— as they regulate the canings in hours certain comfortable, until they call people to see the example good. I think that boy not endure, yea there is in the ta-da, not arrive for the lent to come… Ooee-ooee, then?! Not being as compadre mine Quelemem to want, that explication is that the Sir bestowed? That boy had to be a man. He should, in swing, terrible perversities. Soul of his was in the pitch. Demonstrated. And, now, paid. Ah, but, happens, when he’s crying and paining, he suffers equal that as was as a boy good… Bird, I saw all, in this world! Yea I saw even horse with hiccups… —the that the thing most costous that is. Good, but the Sir may say, should of: and in the start— for offenses and arts, the people— as for that was that s’much amended was started? Ey, ey, ey all collided. Compadre mine Quelemem, too. Am solo a sertanite, in these high ideas I navigate mal. Am much poor poor-thing. Envy my pedigree and of ones conform the Sir, with total reading and doctoration. Not is that I be illiterate. I spelt, years and middle, midly speller, memory and palmer. I had master, Master Lucas, in the Curralinho, he memorized grammar, the operations, rule-of-three, even geography and study patria. On leaves great of paper, with caprice I traced handsome maps. Ah, not is for to speak: but, since of the start, me they thought sophisticated of side. And that I merited of to go to course latin, in Lesson Waterlily—that too they said. Time nostalgic! Going today, I appreciate a good book, despaced. On the farm The Lilittlelemon, of one mine friend Vito Soziano, so sign of this almanac thick, of logoglyphs and conundrums and other divided matters, all year come. In s’much, I place primacy is in the reading advantageous, life of saints, virtues and examples— missionary astute engambling the Indians, or Saint Francis of Assis, Saint Anthony, Saint Gerald… I like much of moral. To ratiocinate, exhort the others for the good way, to acounsel to just. Mine woman, that the Sir knows, vigils for me: much prayer. She is a blessable. Compadre mine Quelemem always says that I may to aquiet my fears on conscience, that being well-attended, terrible good-esprits me protect. Eep! With like… As is of saint effect, I help with mine to want to accredit. But not even always can I. The Sir knew: I total the mine life I thought for me, lining, I am born different. I am and I same. I divert of total the world… I almost that nothing not I know. But I disconfide of many things. The Sir, conceding, I say: in order to think long, I am dog master— the Sir loose in mine front an idea ease and I research that by profundity of total the backwoods, amen! Look: the should of to have, was of so reunited-selves the wise, politicos, constitutions graded, closed the definitive the notion— to proclaim for one time, art assemblies, that not have devil notone, not exists, not possible. Valor of law! Solo assuch, they gave tranquility good to the people. Because the government not cares?! Ah, I know that not is possible. Not me settled the Sir for philistine. One this is to place ideas arranged, other is to deal with country of people, of flesh and sanguine, of thousand-and-many miseries… S’many people—gives scare of to know—and notone so calms: All nascenting, crescendoing, so wedding, wanting collocation of employment, consumables, health, abundance, to be important, wanting rain and affairs good… Of luck that lacks of so to choose: or we t’weave of to live in the salacious common, or care solo of religion solo. I could to be: father clergyman, if not chief of jagunços; for other things not was I birthed. But mine oldness yea principaled I erred of total account. And the rheumatism… There as whom says: in the primers. Ahem. Hey? Hey? The that more I think, I testify and explain: all-the-world is mad. The Sir, I, we, the people all. For this is that so lacks principally of religion: in order to desendodorize, to disdodoate. Pray is that heals of lunacy. In the general. This is that is the salvation-of-the-soul…Much religion your servant! I here, not I lose occasion of religion. I profit of all. I drink water of all rivers… One solo, for me is little, maybe not me arrives. I pray christian, catholic, I burrow the certain; and I accept the prayers of compadre mine Quelemem, doctrine of he, of Kardec. But, when I can, I go in the Mindubim, where one Matias is believer, methodist: the people so accuse of sinner, reads high the bible, and why, singing hymns beautiful of his. Total me quiets, me suspends. Whatever small shade me refreshes. But is solo much provisory. I wanted to pray— the time total. Many people not me approve, they think that law of Deus is privileges, invariable. And I! Doof! I Detest! The what I am? — the what I do, that want, much curia. And in face of total I face, executed. I? —not I trammel. Look: I have a black girl, Maria Leoncia, long from here not she lives, the prayers of her afame much virtue of power. Well to her I pay, every month— ordering of to pray for me one third, every saint day, and, on the Sundays, a rosary. Value, so values. Mine woman not sees mal in this. And I am, yea mandated word for an other, of the voyage-voyage, a Izina Calanga, in order to come here, I heard of that prayer too with grand mermermerits, I go to effect with she treatment equal. I want handful of those, me defending in Deus, reunited of me in volta… Cuts of Christ! To live is much perilous… To want the good with too much force, of incertain way, can yea to be being so wanting the mal, per to initiate. These humans! All they pull the world for itself, for the to concert amended. But capita one solo sees and understands the things of one his world. Amountain, the most supro, most serious was Mediero Vaz. That one man ancient… his Joaozy Ben-Ben, the most brave of all, no-one never can decipher how he by inside consisted. Joca Ramiro— grand man prince!— was politico. Zé Bebelo wanted to be politico, but had and not had luck: fox that lingered. So Candelario so demonized, by to think that was with illness mal. Titao Passos was the by the appreciation of friends: solo per via of them, of his same amities, were that such high so ajagunçoed. Antonio Do— severe bandit. But by half, grand majority half that be. Andalecio, in the profound, a good man-of-good, being raving in his total justice. Ricardao, same, wanted was to be rich in peace: for this he warred. Solo the Hermogenes was that born formed tiger, and assassinite. And the “Ofidios White”? Ah, not me speak. Ah this… joyless mischeivious, that was— that was a poor boy of the destiny… So good, congruous. The Sir heard, I you told: the ruin with the ruin, they terminate by the spine-bushes so to crack— Deus awaits that spendance. Boy!: Deus is patience. The contrary, is the devil. So consumes. The Sir file knife on knife— and file— that so they scrape. Even the rocks of the profound, one of in the other, they go-so aroundabounding even, that the rivulet rolls. Per enquantity, that I think, total as hath, in this world, is because so merits and lacks. Afterly precise. Deus not so reports with rifle, not garrotes the regulation. For what? Quit: goof with goof—one day, some illumination and learn: smart. Solo that, at times, for most auxiliar, Deus begets, in the middle, a pinch of pepper… Therebe? Well, for example: some time, I went of train, there in Seven-Lagoons, for parts of to consult a medical, of name me indicated. He went vested well, and in car of first, by via of the doubts, not me they shadowed for jagunço ancient. It goes and happens, that, close same of me, enfront, he took aseat, returning from the wild North, a mac Jazevedao, delegate professionale. Came with a capanga of his, an undercover, and I well knew the two, of that s’much a was ruin, as the other ruin was. The veracity to say, first I had the strict of me to surpasss for one lonng, to mutate of my place. Judgement me told, meliorate stay. Well, looking, I looked. And— you I tell: never I saw face of man furnished of brutez or malady more, of the them in that. As that was ogre, trussed of thickset, relustered of crude in the eyes small, and armed a chin of stone, toweringbrow; not of mid nor forehead. Not laughed, not so laughed not even one time; but, speaking or silent, the people appeared always to him some teeth, prey pointed of canids. Arr, and blustered, an ittybit. Solo growled curt, low, the mid-words grizzled. He came relooking, historicizing the documents— one by one the leaves with portraits and with the blacks of the digits of jagunços, lifters of horses and criminouses of death. That application of work, in one thing of those, generated the ire in the people. The undercover, busybodyguard, total close, seated joined, attending, excelling of to be dog. Me made a dread, but solo in the goof of the corpus, not in the intern of the courages. One hour, one of those reports fell— and I bent quickly, I knew there precisely by why, not I wanted, not I thought— even today I raise shame of this— I picked the paper of the ground, and delivered to him. Thereof, I say: I had more rage, because I did that; but there yea it was done. The man not even me looked, not even said notone thankfulment. Event he soles of the shoes of his— solo looking— that soles rough thick, bent of enormous, appearing iron bronzed. Because I knew: This Jazevedao, when he apprehended someone, the primary quiet thing that proceeded was that he came entering, sans to have to to say, feigning some hurry, and go stepping on the top of the feet of the poorthings. And that on these occasions he gave laughters, gave… Well, geck! I delivered to him the leaf of paper, and went leaving of there, by to have hand on me of not to destroy by shots that subject. Meat that much they weigh… And umbilicated beginning of belly pot bellied, that me created will… With my lightness, joyful that I’d kill. But, the barbarities that this delegate made and happened, the Sir not even has callus in heart to be able me to hear. He achieved of many men and women to cry blood, for the simple universolo ours here. Sertão. The Sir knows: sertão is where mandates who is strong, with the guile. And bullet is a tidbit of metal… S’much, I say: Jazevedao— one assuch, should of to have, needed? Ah, need. Leather ruined is that calls goad of point. That there be that, after— business particular of he— in the life or in the other, each Jazevedao, accomplished the that he has, desclimbs in his time of pain, too, until to pay the that he gave— compadre mine Quelemem is there, in order to fiscalize. The Sir knows: the peril that is to live… But solo of the mode, of these, by ugly instrument, was that the jagunsaga so finished. Sir thinks that Antonio Do or Olivino Oliviano were going to fix goodies by pure spelling of itself, or by begging of the infelicitous, or by always to hear sermon of father? You I think! In the aims… Of jagunço comported active in order so to repent in the middle of his jagunsagas, solo I lay of one: called Joe Cazuzo— was in smashing of one shotshow, for on the summit of the place Sierra New, district of river rusted, on the stream Traçadal. We made mal minority small, and they closed in order summit of us the personnel of one Coronel Adalvino, forted politico, with many soldiers uniformed in the center, commanding of the Lieutenant Epiphany Helm, that after fixed captain. We lasted hour more hour, and yea gave almost of encircled. There, of misslip, that Joe Cazuzo— man much valiant— so kneeled turned on the ground of the thick, lifted the arms that not even shoots of Jatoba dry, and solo yell, howl clear and howl deaf:— “I saw the Virgin Ours, in the resplendor of the Heavens, with her children of angels!... ” He screamed not touched. — “I saw the Virgin!... ” He ensouled? We desequaled. Bolt for my horse—that I thought— I leaped in mal seat, noteven I knew in which rupture-time I unfastened the halter, of tied up it foot of timber. I flew, arrived. Bullet come. The pasture roared. In the brush, the fear of the people so goes to the whole, one fear intentional. I could to lash out, fated burro brute, giv-that, giv-that. Some two or three bullets so drovein the pad of the mine saddle, they perforated of to tear away almost much the kapok of the filling. Horse trembled in pro, in middle of gallop, I know: thinks in the owner. I not fit of to be more well shrunken. Bulleted came to the sack that I had on the back, with few mine things. And other, of fusil, in ricochet decreed, heated my thigh, sans me wound, the Sir see: bullet does the what to want—so pierced impressed, between in me and the harness! Times crazy… Burumbum!: the horse so kneeled in the fall, dead perhaps, and I yea falling for front, embraced in foliage full, branched and linias, that me swayed and skewered, done I was pendulating in web of spider… Whither? I traversed that life total… Of fear of anxiety, I ruptured to read with mine corpus that forest, I know there — and me fell world below, rolled for the hollow of a grotto closed of shrubs, always me grasped— rolled same assuch: after: after, when I saw mine hands, total on they that not was withdrawn sanguine, was smeared green, on the digits, of leaves living that I pulled and mashed… I landed on the sedge of the profound— and a beast dark gave a releap, with a sneeze, too mad of fright: that was a papa-mel, that I descried; in order to flee, this is solely. Bigger being I, me doused mine overcoat; I spigotted total. And of one bit of thought: if that beast irara lying there then there not had cobra. I took the place of his. Existed cobra notone. I could me to lose. I was solo spineless, softness, but that not deadened, inside, the collisions of the heart. I gasped. I conceived that they came, me kill. Not even did mal, me mattered not. Assuch, some moments, at least I guarded the license of term in order me to rest. Conforming I thought in Diadorim. Solo I thought was in he. One joão-congo sang. I wanted to die thinking in my friend Diadorim, hand-o-bro, who was on the Sierra of WoodO’Bow, almost on the border baiana, with our other half of the so-candelarios… With my friend Diadorim me embraced, sentiment my went-flew right for he… Ay, arr, but: that this mine mouth not has order notone. I am accounting outside, things divagated. In the Sir me confide? Til-that, til-that. Say the angel-of-the-guard… But, conforming I came: after so knew, that same the soldiers of the Lieutenant and the goats of Coronel Adalvino remitted of to respect the blast of that Joe Cazuzo. And that this ended being the man most pacificious of the world, fabricator of oil and sacristan, in the Saint Sundays White. Times! For total, cleaned revelation, I fix thinking. I like. Meliorate, for the idea if well to open, is travelling in train-of-iron. Could, lived to top and to bottom, inside of it. Information that I ask: same in the Heavens, end of end, how is that the soul wins so to forget s’much sufferments and maladies, in the received and in the given? The how? The Sir knows: are things of hideous ofmuch, have. Pain of corpus and pain of idea mark forted, that forted as the total love and rage of hate. Goes, sea… Of luck that, then, the Firmiano, by appellationed Louse-of-Snake, so leoprosized with the leg disconformed, thickening, of that disease that not so cures; and not discern almost more, constant the branchials in the eyes, of the cataracts. Of before, years, had to of so disarray of the jagunsaga. Well, one occasion, some was on the ranch of his, on the High Jeuitai, after accounted—that, turns time, comes subject, he would say: “Me give yearning is of to seize a soldier, and such, for one good flay, with knife blind… But, first, to castrate…” The Sir conceive? Who has more dose of demon in self is Indian, any race of brusque. Folk see nation ofthese, for there profound of the generals of Goias, theofwhere has vagarous grand rivers, of aquas always so clear pleasantly, running of down crystal rosed… Louse-of-Snake gave of sanguine of heathen. Sir me will say: but that he pronounced that out of mouth, manner of to represent that yet not was old decadent. Opus of to oppose, for fear of to be tame, and cause in order so to see respected. Total listened for such rule: palavered of ruins, for more so valued, because we to the environs is hard durability. The worst, but, is that they finish, through the same ford, given of one day to execute the declared, in the real. I saw s’much crudity! Pain not pays to account; if I go, I collide. And me dedrip, three that me sicken, this total. Me convokes that the personnel, today in day, is good of heart. This is, good in the trivial. Malices wildwants, and perversities, always have some, but scarcities. Generation mine, true, was not assuch. Ah, goes to turn a time, in which not is used more to kill people… I yea am old. Good, I was saying: question, this that me excavates… Ah, I formed that question, for compadre mine Quelemem. That me responded: that, for close to heaven, we so amplified so, that total the uglies past so exhaled of not to be—fated sans-modus from time of youngster, mal-arts. As we not lack of to have remorse of the which divulged in the pulsation of his nightmares of one night. Assuch that: fleeced-so, flourished-so! Ahem. For this said, is that the journey to the Heavens is delayed. I confide with compadre mine Quelemem, the Sir knows: reason of creed same that has—that, for total the mal, that so does, one day so repays, the exact. Subject assuch rises three times, in ante of to want to facilitate in any minutia reprehensible… Compadre mine Quelemem never speaks vacant, not subtreats. Solo that this to he not I go to expose. We never should have to declare that accept entire the alien—that is what is the rule of the king! The Sir look…see: the most important and beautiful, of the world, is this: that the people are not always same, still were not completed — but that they go always shifting. They tune or detune. Truth major. Is the that the life me taught. This that me animates, mound. And, other thing: the devil and the brutes; but Deus is treacherous! Ah, a beauty of treacherous— gives like! The force of his, when he wants— boy!— me gives the fear dread! Deus comes coming: no one not sees. He does in the law of gentle— assuch is the miracle. And Deus attacks beautiful, so amusing, so economizes. The well: one day in a tannery, the little knife mine I had dropped inside of a tank, solo soup of bark of tan, stryphnodendron adstringens, angico, there I know. —“Tomorrow I try…”— I said, withmyself. Because it was of night, light notone I not disputed. Ah, then, I found: on the other day, early, the knife, the iron of it, had been gnawed, almost by half, by that aqua dark, total quiet. I left, for more to see. Crack, fuse! Know the what was? Well, in that same of afternoon, there: of the little knife solo so found the handle… The handle, for not to be of cold metal, but of horn of deer. There is: Deus… Good, the Sir heard knows, the that knows me understands… We sum, not think that religion fractures. Sir think the contrary. Visible that, those other times, I painted—belief that the neoglaziovia variegata lifts the flower. Ah, good my joy… Boyhood. But boyhood is task for more later so to deny. Too, I of that of to think in vague in s’much, lost mine hand-of-man for the management hot, in the middle of all. But, today, that I ratiocinated, and think the endeavor, not nor for this not I give for low my competence, in a fire-and-iron. The to see. Would approach would come here with war on me, with bad parts, with other laws, or with excessive looks, and I even draw to ignite this zone, ay, if, if! Is in the mouth of the blunderbuss: is in the rete-te-tem… And lonelyonly not I am, there-of-the. For not this, I was I placed encircle my mine people. Look the Sir: here, close, vereda below, the Paspe — cropper my — is mine. More league, if that, have the Herpetotheres, and have the compadre Ciril, him and three children, I know that they serve. Band of that hand, the Alaripe: knew the Sir the that is that so boasts, in rifleation and by the knife, one cearense did this! After more: the João Innatal, the Quipes, Lophiosilurus-of-claws. And the Fafafa— this gave fights high, all side with me, in the combat old of the Anteater-such: we cleaned the wind of whom not had order of to respirate, and ante these we desencompassed… The Fafafa has a mass of mares. He raises horses good. Even a little more distant, on the ped-of-sierra, of band mine was the Sesfred, Jesualdo, the Nelson, and João Concliz. Some others. The Triol… And not I go valuing? I leave terra with them, of theirs the what is mine is, we close that we not even brothers. For what I want to gather richness? They are there, of arms aireated. Enemy to come, we cross called, gathering: is hour of one good shotshowerment in peace, they exp’riment to see. I say this to the Sir, of confidence. Too, not go to think in double. We want is to work, propose tranquility. Of me, person, I live for mine woman, that total mode-meliorate merits, and for the devotion. Well-to want of mine woman was that me assisted, prayers of hers, graces. Love comes of love. I say. In Diadorim, I think too— but Diadorim is the mine nebulina… Now, well: not I wanted to touch on this more— of the Tineaous; arrive. But has a nevertheless: I ask: the Sir believe, think trust of truth in that parlance, of with the demon so to able to deal with pact? No, no is no? I knew that not there. I spoke of favas. But I like of total good confirmation. To vend you proper soul… Inventionate false! And, soul, the what is? Soul of has to be thing internal supremed, much more of the of inside, and is solo, of the that one if thought: ah, soul sheer! Decision of to vend soul is fearless moll, fantasied of moment, has not the obedience legal. Can I to vend those good terras, thereof of between the Veredas-Four— that are of one Mr. Admiral, who resides in the capital federal? Can I some? Then, if one boy boy is, and for this not so authorizes of to negotiate… And we, this I know, at times is solo fated boy. Mal that in mine life I prepared, I was in a certain infancy in dreams — total runs and arrives so swift —; will be that if hath flame of responsibilities? If dream; yea so did… I gave rapadura to the chump! Ahem. Well. If his soul, and has, it is of Deus established, not even that the person want or not want. Not is vendible. The Sir not thinks? Me declare, frank, I beg. Ah, you I appreciate. You so see that the Sir knows much, in idea firm, beyond of to have letter of doctor. You I appreciate, for much. Your company me gives high pleasures. In terms, I liked that I would live here, or close, was a help. Here not so has conviviation that to instruct. Sertão. Knows the Sir: sertão is where the thought of the people so forms more forted of the than power of the place. To live is much perilous… Eh, that you so go? Yeayea? Is that not. Today, no. Tomorrow, no. Not I consense. The Sir me forgive, but in endeavor of mine friendship accept: the Sir stay. After fifth of-morning-early, the Sir wanting to go, then goes, same me leaves feeling your absence. But, today or tomorrow, no. Visit, here in house, with me, is for three days! But, the Sir really intends to trespass the field this sea of territotires, for sortment of to confer the what exists? You have your motives. Now— I say for me — the Sir comes, came late, Times were, the customs mutate. Almost that, of legitimate loyal, little surplus, not even no excess more nothing. The bands good of valientoughs they reparted their end; many who were jagunço, by ouch pain, beg alms. Same as the herdsmen they doubt of to come in the commerce vested of clothes entire of leather, they think that garb of jerkin is ugly and boor. And even the herd in the shrubbed pasture goes waning less mad, more educated: casted of zebu, dissee with the rest of corralers and captiveborns. Always, in the generals is to the poverty, to the sadness. A sadness that even gladdens. But, then, for a crop reasonable of bizzarancies, I recounsel of the Sir to entest journey more dilated. Not were my desmight, by acids and rheumatism, there I went. I guided the Sir till total. March 2013 San Diego, CA ORIGINAL TEXT NONADA. TIROS QUE O SENHOR ouviu foram de briga de homem não, Deus esteja. Alvejei mira em árvores no quintal, no baixo do córrego. Por meu acerto. Todo dia isso faço, gosto; desde mal em minha mocidade. Daí, vieram me chamar. Causa dumbezerro: um bezerro branco, erroso, os olhos de nem ser – se viu –; e com máscara de cachorro. Me disseram; eu não quis avistar. Mesmo que, por defeito como nasceu, arrebitado de beiços, esse figurava rindo feito pessoa. Cara de gente, cara de cão: determinaram – era o demo. Povo prascóvio. Mataram. Dono dele nem sei quem for. Vieram emprestar minhas armas, cedi. Não tenho abusões. O senhor ri certas risadas... Olhe: quando é tiro de verdade, primeiro a cachorrada pega a latir, instantaneamente – depois, então, se vai ver se deu mortos. O senhor tolere, isto é o sertão. Uns querem que não seja: que situado sertão é por os campos-gerais a fora a dentro, eles dizem, fim de rumo, terras altas, demais do Urucuia. Toleima. Para os de Corinto e do Curvelo, então, o aqui não é dito sertão? Ah, que tem maior! Lugar sertão se divulga: é onde os pastos carecem de fechos; onde um pode torar dez, quinze léguas, sem topar com casa de morador; e onde criminoso vive seu cristo-jesus, arredado do arrocho de autoridade. O Urucuia vem dos montões oestes. Mas, hoje, que na beira dele, tudo dá – fazendões de fazendas, almargem de vargens de bom render, as vazantes; culturas que vão de mata em mata, madeiras de grossura, até ainda virgens dessas lá há. O gerais corre em volta. Esses gerais são sem tamanho. Enfim, cada um o que quer aprova, o senhor sabe: pão ou pães, é questão de opiniães... O sertão está em toda a parte. Do demo? Não gloso. Senhor pergunte aos moradores. Em falso receio, desfalam no nome dele – dizem só: o Que-Diga. Vote! não... Quem muito se evita, se convive. Sentença num Aristides – o que existe no buritizal primeiro desta minha mão direita, chamado a Vereda-da-Vaca-Mansa-deSanta-Rita – todo o mundo crê: ele não pode passar em três lugares, designados: porque então a gente escuta um chorinho, atrás, e uma vozinha que avisando: – “Eu já vou! Eu já vou!...” – que é o capiroto, o que-diga... E um José Simpilício – quem qualquer daqui jura ele tem um capeta em casa, miúdo satanazim, preso obrigado a ajudar em toda ganância que executa; razão que o Simpilício se empresa em vias de completar de rico. Apre, por isso dizem também que a besta pra ele rupeia, nega de banda, não deixando, quando ele quer amontar... Superstição. José Simpilício e Aristides, mesmo estão se engordando, de assim nãoouvir ou ouvir. Ainda o senhor estude: agora mesmo, nestes dias de época, tem gente porfalando que o Diabo próprio parou, de passagem, no Andrequicé. Um Moço de fora, teria aparecido, e lá se louvou que, para aqui vir – normal, a cavalo, dum dia-e-meio – ele era capaz que só com uns vinte minutos bastava... porque costeava o Rio do Chico pelas cabeceiras! Ou, também, quem sabe – sem ofensas – não terá sido, por um exemplo, até mesmo o senhor quem se anunciou assim, quando passou por lá, por prazido divertimento engraçado? Há-de, não me dê crime, sei que não foi. E mal eu não quis. Só que uma pergunta, em hora, às vezes, clareia razão de paz. Mas, o senhor entenda: o tal moço, se há, quis mangar. Pois, hem, que, despontar o Rio pelas nascentes, será a mesma coisa que um se redobrar nos internos deste nosso Estado nosso, custante viagem de uns três meses... Então? Que-Diga? Doideira. A fantasiação. E, o respeito de dar a ele assim esses nomes de rebuço, é que é mesmo um querer invocar que ele forme forma, com as presenças! Não seja. Eu, pessoalmente, quase que já perdi nele a crença, mercês a Deus; é o que ao senhor lhe digo, à puridade. Sei que é bem estabelecido, que grassa nos Santos- Evangelhos. Em ocasião, conversei com um rapaz seminarista, muito condizente, conferindo no livro de rezas e revestido de paramenta, com uma vara de maria-preta na mão – proseou que ia adjutorar o padre, para extraírem o Cujo, do corpo vivo de uma velha, na Cachoeira-dos-Bois, ele ia com o vigário do Campo-Redondo... Me concebo. O senhor não é como eu? Não acreditei patavim. Compadre meu Quelemém descreve que o que revela efeito são os baixos espíritos descarnados, de terceira, fuzuando nas piores trevas e com ânsias de se travarem com os viventes – dão encosto. Compadre meu Quelemém é quem muito me consola – Quelemém de Góis. Mas ele tem de morar longe daqui, na Jijujã, Vereda do Buriti Pardo... Arres, me deixe lá, que – em endemoninhamento ou com encosto – o senhor mesmo deverá de ter conhecido diversos, homens, mulheres. Pois não sim? Por mim, tantos vi, que aprendi. Rincha- Mãe, Sangued’Outro, o Muitos-Beiços, o Rasgaem-Baixo, Faca-Fria, o Fancho-Bode, um Treciziano, o Azinhavre... o Hermógenes... Deles, punhadão. Se eu pudesse esquecer tantos nomes... Não sou amansador de cavalos! E, mesmo, quem de si de ser jagunço se entrete, já é por alguma competência entrante do demônio. Será não? Será? De primeiro, eu fazia e mexia, e pensar não pensava. Não possuía os prazos. Vivi puxando difícil de dificel, peixe vivo no moquém: quem mói no asp’ro, não fantaseia. Mas, agora, feita a folga que me vem, e sem pequenos dessossegos, estou de range rede. E me inventei neste gosto, de especular idéia. O diabo existe e não existe? Dou o dito. Abrenúncio. Essas melancolias. O senhor vê: existe cachoeira; e pois? Mas cachoeira é barranco de chão, e água se caindo por ele, retombando; o senhor consome essa água, ou desfaz o barranco, sobra cachoeira alguma? Viver é negócio muito perigoso... Explico ao senhor: o diabo vige dentro do homem, os crespos do homem – ou é o homem arruinado, ou o homem dos avessos. Solto, por si, cidadão, é que não tem diabo nenhum. Nenhum! – é o que digo. O senhor aprova? Me declare tudo, franco – é alta mercê que me faz: e pedir posso, encarecido. Este caso – por estúrdio que me vejam – é de minha certa importância. Tomara não fosse... Mas, não diga que o senhor, assisado e instruído, que acredita na pessoa dele?! Não? Lhe agradeço! Sua alta opinião compõe minha valia. Já sabia, esperava por ela-já o campo! Ah, a gente, na velhice, carece de ter sua aragem de descanso. Lhe agradeço. Tem diabo nenhum. Nem espírito. Nunca vi. Alguém devia de ver, então era eu mesmo, este vosso servidor. Fosse lhe contar... Bem, o diabo regula seu estado preto, nas criaturas, nas mulheres, nos homens. Até: nas crianças – eu digo. Pois não é ditado: “menino – trem do diabo”? E nos usos, nas plantas, nas águas, na terra, no vento... Estrumes. ... O diabo na rua, no meio do redemunho... Hem? Hem? Ah. Figuração minha, de pior pra trás, as certas lembranças. Mal hajame! Sofro pena de contar não... Melhor, se arrepare: pois, num chão, e com igual formato de ramos e folhas, não dá a mandioca mansa, que se come comum, e a mandioca-brava, que mata? Agora, o senhor já viu uma estranhez? A mandioca-doce pode de repente virar azangada – motivos não sei; às vezes se diz que é por replantada no terreno sempre, com mudas seguidas, de manaíbas – vai em amargando, de tanto em tanto, de si mesma toma peçonhas. E, ora veja: a outra, a mandiocabrava, também é que às vezes pode ficar mansa, a esmo, de se comer sem nenhum mal. E que isso é? Eh, o senhor já viu, por ver, a feiúra de ódio franzido, carantonho, nas faces duma cobra cascavel? Observou o porco gordo, cada dia mais feliz bruto, capaz de, pudesse, roncar e engolir por sua suja comodidade o mundo todo? E gavião, corvo, alguns, as feições deles já representam a precisão de talhar para adiante, rasgar e estraçalhar a bico, parece uma quicé muito afiada por ruim desejo. Tudo. Tem até tortas raças de pedras, horrorosas, venenosas – que estragam mortal a água, se estão jazendo em fundo de poço; o diabo dentro delas dorme: são o demo. Se sabe? E o demo – que é só assim o significado dum azougue maligno – tem ordem de seguir o caminho dele, tem licença para campear?! Arre, ele está misturado em tudo. Que o que gasta, vai gastando o diabo de dentro da gente, aos pouquinhos, é o razoável sofrer. E a alegria de amor – compadre meu Quelemém, diz. Família. Deveras? É, e não é. O senhor ache e não ache. Tudo é e não é... Quase todo mais grave criminoso feroz, sempre é muito bom marido, bom filho, bom pai, e é bom amigo-de-seus-amigos! Sei desses. Só que tem os depois – e Deus, junto. Vi muitas nuvens. Mas, em verdade, filho, também, abranda. Olhe: um chamado Aleixo, residente a légua do Passo do Pubo, no da-Areia, era o homem de maiores ruindades calmas que já se viu. Me agradou que perto da casa dele tinha um açudinho, entre as palmeiras, com traíras, pra-almas de enormes, desenormes, ao real, que receberam fama; o Aleixo dava de comer a elas, em horas justas, elas se acostumaram a se assim das locas, para papar, semelhavam ser peixes ensinados. Um dia, só por graça rústica, ele matou um velhinho que por lá passou, desvalido rogando esmola. O senhor não duvide – tem gente, neste aborrecido mundo, que matam só para ver alguém fazer careta... Eh, pois, empós, o resto o senhor prove: vem o pão, vem a mão, vem o são, vem o cão. Esse Aleixo era homem afamilhado, tinha filhos pequenos; aqueles eram o amor dele, todo, despropósito. Dê bem, que não nem um ano estava passado, de se matar o velhinho pobre, e os meninos do Aleixo aí adoeceram. Andaço de sarampão, se disse, mas complicado; eles nunca saravam. Quando, então, sararam. Mas os olhos deles vermelhavam altos, numa inflama de sapiranga à rebelde; e susseguinte – o que não sei é se foram todos duma vez, ou um logo e logo outro e outro – eles restaram cegos. Cegos, sem remissão dum favinho de luz dessa nossa! O senhor imagine: uma escadinha – três meninos e uma menina – todos cegados. Sem remediável. O Aleixo não perdeu o juizo; mas mudou: ah, demudou completo – agora vive da banda de Deus, suando para ser bom e caridoso em todas suas horas da noite e do dia. Parece até que ficou o feliz, que antes não era. Ele mesmo diz que foi um homem de sorte, porque Deus quis ter pena dele, transformar para lá o rumo de sua alma. Isso eu ouvi, e me deu raiva. Razão das crianças. Se sendo castigo, que culpa das hajas do Aleixo aqueles meninozinhos tinham?! Compadre meu Quelemém reprovou minhas incertezas. Que, por certo, noutra vida revirada, os meninos também tinham sido os mais malvados, da massa e peça do pai, demônios do mesmo caldeirão de lugar. Senhor o que acha? E o velhinho assassinado? – eu sei que o senhor vai discutir. Pois, também. Em ordem que ele tinha um pecado de crime, no corpo, por pagar. Se a gente – conforme compadre meu Quelemém é quem diz – se a gente torna a encarnar renovado, eu cismo até que inimigo de morte pode vir como filho do inimigo. Mire veja: se me digo, tem um sujeito Pedro Pindó, vizinho daqui mais seis léguas, homem de bem por tudo em tudo, ele e a mulher dele, sempre sidos bons, de bem. Eles têm um filho duns dez anos, chamado Valtei – nome moderno, é o que o povo daqui agora apreceia, o senhor sabe. Pois essezinho, essezim, desde que algum entendimento alumiou nele, feito mostrou o que é: pedido madrasto, azedo queimador, gostoso de ruim de dentro do fundo das espécies de sua natureza. Em qual que judia, ao devagar, de todo bicho ou criaçãozinha pequena que pega; uma vez, encontrou uma crioula bentabêbada dormindo, arranjou um caco de garrafa, lanhou em três pontos a popa da perna dela. O que esse menino babeja vendo, é sangrarem galinha ou esfaquear porco. – “Eu gosto de matar...” – uma ocasião ele pequenino me disse. Abriu em mim um susto; porque: passarinho que se debruça – o vôo já está pronto! Pois, o senhor vigie: o pai, Pedro Pindó, modo de corrigir isso, e a mãe, dão nele, de miséria e mastro – botam o menino sem comer, amarram em árvores no terreiro, ele nu nuelo, mesmo em junho frio, lavram o corpinho dele na peia e na taca, depois limpam a pele do sangue, com cuia de salmoura. A gente sabe, espia, fica gasturado. O menino já rebaixou de magreza, os olhos entrando, carinha de ossos, encaveirada, e entisicou, o tempo todo tosse, tossura da que puxa secos peitos. Arre, que agora, visível, o Pindó e a mulher se habituaram de nele bater, de pouquinho em pouquim foram criando nisso um prazer feio de diversão – como regulam as sovas em horas certas confortáveis, até chamam gente para ver o exemplo bom. Acho que esse menino não dura, já está no blimbilim, não chega para a quaresma que vem... Uê-uê, então?!Não sendo como compadre meu Quelemém quer, que explicação é que o senhor dava? Aquele menino tinha sido homem. Devia, em balanço, terríveis perversidades. Alma dele estava no breu. Mostrava. E, agora, pagava. Ah, mas, acontece, quando está chorando e penando, ele sofre igual que se fosse um menino bonzinho... Ave, vi de tudo, neste mundo! lá vi até cavalo com soluço... – o que é a coisa mais custosa que há. Bem, mas o senhor dirá, deve de: e no começo – para pecados e artes, as pessoas – como por que foi que tanto emendado se começou? Ei, ei, aí todos esbarram. Compadre meu Quelemém, também. Sou só um sertanejo, nessas altas idéias navego mal. Sou muito pobre coitado. Inveja minha pura é de uns conforme o senhor, com toda leitura e suma doutoração. Não é que eu esteja analfabeto. Soletrei, anos e meio, meante cartilha, memória e palmatória. Tive mestre, Mestre Lucas, no Curralinho, decorei gramática, as operações, regra-de-três, até geografia e estudo pátrio. Em folhas grandes de papel, com capricho tracei bonitos mapas. Ah, não é por falar: mas, desde o começo, me achavam sofismado de ladino. E que eu merecia de ir para cursar latim, em Aula Régia – que também diziam. Tempo saudoso! Inda hoje, apreceio um bom livro, despaçado. Na fazenda O Limãozinho, de um meu amigo Vito Soziano, se assina desse almanaque grosso, de logogrifos e charadas e outras divididas matérias, todo ano vem. Em tanto, ponho primazia é na leitura proveitosa, vida de santo, virtudes e exemplos – missionário esperto engambelando os índios, ou São Francisco de Assis, Santo Antônio, São Geraldo... Eu gosto muito de moral. Raciocinar, exortar os outros para o bom caminho, aconselhar a justo. Minha mulher, que o senhor sabe, zela por mim: muito reza. Ela é uma abençoável. Compadre meu Quelemém sempre diz que eu posso aquietar meu temer de consciência, que sendo bem-assistido, terríveis bons-espíritos me protegem. Ipe! Com gosto... Como é de são efeito, ajudo com meu querer acreditar. Mas nem sempre posso. O senhor saiba: eu toda a minha vida pensei por mim, forro, sou nascido diferente. Eu sou é eu mesmo. Diverjo de todo o mundo... Eu quase que nada não sei. Mas desconfio de muita coisa. O senhor concedendo, eu digo: para pensar longe, sou cão mestre – o senhor solte em minha frente uma idéia ligeira, e eu rastreio essa por fundo de todos os matos, amém! Olhe: o que devia de haver, era de se reunirem-se os sábios, políticos, constituições gradas, fecharem o definitivo a noção – proclamar por uma vez, artes assembléias, que não tem diabo nenhum, não existe, não pode. Valor de lei! Só assim, davam tranqüilidade boa à gente. Por que o Governo não cuida?! Ah, eu sei que não é possível. Não me assente o senhor por beócio. Uma coisa é pôr idéias arranjadas, outra é lidar com país de pessoas, de carne e sangue, de mil-e-tantas misérias... Tanta gente – dá susto de saber – e nenhum se sossega: todos nascendo, crescendo, se casando, querendo colocação de emprego, comida, saúde, riqueza, ser importante, querendo chuva e negócios bons... De sorte que carece de se escolher: ou a gente se tece de viver no safado comum, ou cuida só de religião só. Eu podia ser: padre sacerdote, se não chefe de jagunços; para outras coisas não fui parido. Mas minha velhice já principiou, errei de toda conta. E o reumatismo... Lá como quem diz: nas escorvas. Ahã. Hem? Hem? O que mais penso, testo e explico: todo-omundo é louco. O senhor, eu, nós, as pessoas todas. Por isso é que se carece principalmente de religião: para se desendoidecer, desdoidar. Reza é que sara da loucura. No geral. Isso é que é a salvaçãoda- alma... Muita religião, seu moço! Eu cá, não perco ocasião de religião. Aproveito de todas. Bebo água de todo rio... Uma só, para mim é pouca, talvez não me chegue. Rezo cristão, católico, embrenho a certo; e aceito as preces de compadre meu Quelemém, doutrina dele, de Cardéque. Mas, quando posso, vou no Mindubim, onde um Matias é crente, metodista: a gente se acusa de pecador, lê alto a Bíblia, e ora, cantando hinos belos deles. Tudo me quieta, me suspende. Qualquer sombrinha me refresca. Mas é só muito provisório. Eu queria rezar – o tempo todo. Muita gente não me aprova, acham que lei de Deus é privilégios, invariável. E eu! Bofe! Detesto! O que sou? – o que faço, que quero, muito curial. E em cara de todos faço, executado. Eu não tresmalho! Olhe: tem uma preta, Maria Leôncia, longe daqui não mora, as rezas dela afamam muita virtude de poder. Pois a ela pago, todo mês – encomenda de rezar por mim um terço, todo santo dia, e, nos domingos, um rosário. Vale, se vale. Minha mulher não vê mal nisso. E estou, já mandei recado para uma outra, do Vau-Vau, uma Izina Calanga, para vir aqui, ouvi de que reza também com grandes meremerências, vou efetuar com ela trato igual. Quero punhado dessas, me defendendo em Deus, reunidas de mim em volta... Chagas de Cristo! Viver é muito perigoso... Querer o bem com demais força, de incerto jeito, pode já estar sendo se querendo o mal, por principiar. Esses homens! Todos puxavam o mundo para si, para o concertar consertado. Mas cada um só vê e entende as coisas dum seu modo. Montante, o mais supro, mais sério – foi Medeiro Vaz. Que um homem antigo... Seu Joãozinho Bem-Bem, o mais bravo de todos, ninguém nunca pôde decifrar como ele por dentro consistia. Joca Ramiro – grande homem príncipe! – era político. Zé- Bebelo quis ser político. (shrink)

The paper examines the role of public property in economic development of the country. It looks into economic scientists' views of the 'property' category. There are innovative approaches to improvement of the efficiency of public property administration outlined, specifically: 1) identification of priority branches for privatization and branches to be left in the state ownership; 2) development of individual programs for preparation of branches for privatization and implementation of the latter; adoption of a new State Program for Privatization (...) for 2015 and the ensuing years; 3) introduction of amendments into land legislation as to simplification of the privatization process of properties with plots of land; 4) transition to a management system of state companies through Boards of Directors, which are to comprise independent directors; 5) staffing executive managerial bodies of state companies with professional managers on a competitive basis; 6) clear split of government assets privatization and administration functions on the level of central executive authorities in the context of their optimization; 7) increase of authorized capitals of joint-stock companies owing to the cost of the land plots where they are accommodated, including those which have been privatized and corporatized; 8) optimizing the administration of state corporate rights and prevention of dilution of state corporate rights in authorized capitals of business entities; 9) revision of legislation and introduction of amendments in order to prevent the assignment of assets directly by state undertakings which can be individual privatization targets; 10) monitoring of effective administration of facilities owned by the state, increasing managers' responsibility for ineffective administration of state property; 11) development of a legal framework for reprivatization of property; 12) detailed regulation of public property administration processes. (shrink)

Much health and safety regulation can be understood as the product of political coalitions between two groups. The first, consisting of persons with self-control issues, enlists the government as an intermediary. The second either expects to benefit from the success of the first, or anticipates gains from a tax imposed on the first group’s behavior. A political entrepreneur might plausibly turn these groups’ preferences into law. This public choice perspective on regulation provides a positive explanation of why (...) it is more likely that a legal system will engage in some health and safety programs than in others. The important break from the conventional view of regulation, as something that either controls externalities or is imposed paternalistically, is in advancing the idea that the government is an intermediary deployed by those who want help. Internalities, associated with collective action problems or with time inconsistent preferences, deserve equal billing. The discussion considers smoking regulation and other health and safety regulation, and then contrasts these with anti-obesity efforts where private contracting is a more feasible means of controlling internalities, and where political coalitions are less likely. (shrink)

This paper focuses on the role of regulation in the shaping new scientific facts. Fleck chose to study the origins of a diagnostic test for a disease seen as a major public health problem, that is, a ‘scientific fact’ that had a direct and immediate influence outside the closed universe of fundamental scientific research. In 1935, when Fleck wrote his book, Genesis and development of a scientific fact, he believed that the tumultuous early history of the Wassermann reaction (...) had come to an end, and that this reaction was successfully stabilized through the standardization of laboratory practices and thanks to the rise of a specific professional segment—the serologists. He could not have predicted that in the 15 years that followed the publication of his book, regulatory measures—barely metioned in his historical narrative—would play a key role in the destabilization of the original meaning of this reaction. The introduction of mass screening for syphilis—mainly via legislation that introduced obligatory premarital tests and promoted the testing of pregnant women—weakened in fine the link between Wassermann serology and infection by the etiological agent of syphilis, the bacterium Treponema pallidum. Fleck elected to study the Wassermann reaction because of its novelty, its complexity, and because it became the focus of a controversy regarding its origins. However, the Wassermann reaction was also one the first examples of a medical technology regulated by the state and incorporated into legal dispositions. It may therefore be seen as an exemplary case of the close intertwining of scientific investigations, their practical applications and regulatory practices. (shrink)

Immunity was an institution of Roman and Frankish public law that conferred exemption from various kinds of state obligations. In Roman law, immunity might be granted to an individual, group, or community by the public authority, whether the Roman state itself or one of its constituent self-regulating bodies. It was not an institution with a fixed content; terms varied according to the discretion and powers of the grantor and the system of obligations from which relief was sought. (...) Exemption might be for a limited duration and was always liable to be revoked, especially by imperial authorities, a circumstance that makes it difficult to evaluate the role and extent of immunities in the late empire. Immunities conferred by the emperors are mentioned quite frequently in the legal sources of the fourth and fifth centuries in reference to exemptions from taxation and other public burdens. These imperial grants are generally regarded as the forerunners of Merovingian concessions. (shrink)

International law lacks many of the standard features of domestic law. There are few legislative or judicial bodies with exclusive authority over particular jurisdictions or subject matters, the subjects regulated by international law typically must affirmatively consent to be bound by it, and supranational authorities with the power to coerce states to comply with international obligations are rare. How can a legal system with these features generate changes in state behavior? For many theories, the ability of international law (...) to inform and change individual preferences provides the answer. When voters care that treaty commitments be kept, or that international norms be honored, the theory goes, leaders are more likely to be able to make choices consistent with international obligations. Over the last decade, a literature has emerged testing these theories using surveys and experiments embedded in surveys. Multiple U.S. studies find that international law and international norm arguments shift public opinion in the direction of greater compliance by 4 to 20 percentage points. However, studies in foreign contexts are more mixed, with some backlash reported in countries in which international law is highly politicized. This Article describes the state of current knowledge about whether international law actually does change preferences, explains the limitations with existing research, and proposes avenues for future study. (shrink)

The risks of materials containing nanoscale components are in the public debate discussed as if a manufactured nanomaterial will remain invariant with time and environmental exposure, and as if we can identify its risks by the risks of its nanoscale components. Additionally, the debate on mitigation of specific nanorisks by new legislation implicitly assumes that we can have full and accurate knowledge of the distribution and composition of nanomaterials in a product or the environment. In this discussion note, I (...) argue that physical laws intrinsic to the behavior of nanoparticles both lead to limits on the risks to which we are likely exposed and on our technological ability to verify compliance with new regulations. My conclusion is that governmental actors should be careful not to overreact in their response to a technological revolution that only in few areas is likely to lead to increased public exposure, and in doing so using legal measures for which compliance cannot be monitored. (shrink)

During the last twenty – thirty years there has been unprecedented demand for new legal regulation in the field of environmental protection, which influenced the immense growth in both the body of environmental legislation and in re-thinking the idea and principles of the environmental protection itself. The provisions of environmental law are passed, accepted and obeyed with a great resistance in the society. On the one hand, environmental law may be defined as a value system that seeks to (...) induce humans to act as stewards of nature rather than only its exploiters, and therefore the environmental provisions are construed in a manner that the main instruments are limitations of different activities in order to prevent the disruption of natural systems. On the other hand, by doing so the environmental law places nature and future generations (those categories commonly do not have any legal personality) and not the human (the sole addressee and the beneficiary of the traditional legal system) in the centre of environmental regulation. This concept radically transforms the relationship between nature and mankind by subordinating the initiative to benefit from legal regulation. By doing so, the environmental provisions make the opposite and evolve tension in respect of such rights as the right to property, the right to personal life, or individual welfare. In the present research the aim is to disclose the origins and the most important principles of international and regional legal regulation of environmental protection, and to analyse the essence of environmental law in the context of public interest. The environmental law is analysed in the context of such human rights as the right to property and the right to personal life. (shrink)

The social licence to operate concept is little developed in the academic literature so far. Deployment of the term was made by the United National Guiding Principles on Business and Human Rights and the UN ‘Protect, Respect and Remedy’ Framework, which apply SLO as an argument for responsible business conduct, connecting to social expectations and bridging to public regulation. This UN guidance has had a significant bearing on how public regulators seek to influence business conduct beyond Human (...) Rights to broader Corporate Social Responsibility concerns. Drawing on examples of such public regulatory governance, this article explores and explains developments towards a juridification of CSR entailing efforts by public regulators to reach beyond jurisdictional and territorial limitations of conventional public law to address adverse effects of transnational economic activity. Through analysis of an expansion of law into the normative framing of what constitutes responsible business conduct, we demonstrate a process of juridification entailing a legal framing of social expectations of companies, a proliferation of law into the field of business ethics, and an increased regulation by law of social actors or processes. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, (...) rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

The rapid advancement of artificial (computer) intelligence systems (CIS) has generated a means whereby assistive bionic prosthetics can become both more effective and practical for the patients who rely upon the use of such machines in their daily lives. However, de lege lata remains relatively unspoken as to the legal status of patients whose devices contain self-learning CIS that can interface directly with the peripheral nervous system. As a means to reconcile for this lack of legal foresight, this (...) article approaches the topic of CIS-nervous system interaction and the impacts it may have on the legal definition of “persons” under the law. While other literature of this nature centres upon notions of transhumanism or self-enhancement, the approach herein approached is designed to focus solely upon the legal nature of independent CIS actions when operating alongside human subjects. To this end, it is hoped that further discussion on the topic can be garnered outside of transhumanist discourse to expedite legal consideration for how these emerging relationships ought to be received by law-generating bodies internationally. (shrink)

Upon first consideration, the desire of an individual to amputate a seemingly healthy limb is a foreign, perhaps unsettling, concept. It is, however, a reality faced by those who suffer from body integrity identity disorder (BIID). In seeking treatment, these individuals request surgery that challenges both the statutory provisions that sanction surgical operations and the limits of consent as a defence in New Zealand. In doing so, questions as to the influence of public policy and the extent of personal (...) autonomy become important. Beyond legal issues, BIID confronts dominant conceptions of bodily integrity, medical treatment, and ethical obligations. This paper seeks to identify the relevant public policy concerns raised by BIID in New Zealand and the limits of autonomy, before moving on to consider how BIID sufferers may legally seek the treatment they require and how a doctor might be protected from criminal proceedings for assault for performing this treatment. It will be argued that it is possible to legally consent to the amputation of a healthy limb as medical treatment and that public perception should not be allowed to take precedence over this right. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:MASCULINITY AS VIRILITY IN TAHAR BEN JELLOUN'S WORK Lahoucine Ouzgane University ofAlberta To be a woman is a natural infirmity and every woman gets used to it. To be a man is an illusion, an act of violence that requires no justification. (Ben Jelloun, The Sand Child, 70) Inthe last ten to fifteen years, scholarly attention to gender issues in.the Middle East and North Africa has been focused almost (...) exclusively, sometimes obsessively,1 on a quest to understand femininity: what it is and how it is made and regulated—with Muslim women's oppression, the everlasting question of the veil, and the practice of female genital mutilation receiving most of the scrutiny.2 But while this attention—by female and male scholars—to the Muslim woman is indeed a salutary one,3 masculinity in Islamic cultures has so far remained an 1 An international conference on Contemporary Issues in Islamic Studies (to be held in Virginia in November 1996) is soliciting papers in these categories: 1) Islamic Law: Theory and Practice; 2) Fundamentalism; 3) Women in Islam. 2As a parody ofthis preoccupation, Fedwa Malti-Douglas writes: "The Arab woman is a most fascinating creature. Is she veiled? Is she not veiled? Is she oppressed? Is she not oppressed? Were her rights greater before Islam? Are her rights greater after Islam? Does she have a voice? Does she not have a voice?" (3) 3 Some ofthe most significant literature on this subject includes LeilaAhmed's Women and Gender in Islam (1992), a study of the development of Islamic discourses on women and gender from the ancientworld to the present, Mamia Lazreg's The Eloquence ofSilence (1994), a detailed analysis ofthe gender relations in Algeria from the precolonial era to the present; The Veil and the Male Elite (more commonly known in French as Le Harempolitique, 1987) by 2 Lahoucine Ouzgane unrecognized and an unacknowledged category that secures its power by refusing to identify itself. There are as yet no studies that make Muslim men visible as gendered subjects and that show that masculinity (like femininity) has a history and clear defining characteristics that are incomprehensible apart from the totality of gender relations in Islamic cultures. In this essay, I wish to consider masculinity as it is depicted in some ofTahar Ben Jelloun's major fiction. With more than twenty novels, two plays, and three poetry collections produced in the last thirty years, Ben Jelloun is undoubtedly the most prolific contemporary francophone North African writer. Though he had earned several important literary awards before, his rise to literary and public prominence began when he became the first African Arab writer to be awarded Le Prix Goncourt, France's most prestigious literary prize, for his novel La nuit sacrée published in 1987. Ever since, some of his works have been translated into fifteen languages (Daoud 62) and The SacredNight has recently been made into a film. Some critics have even begun to refer to Ben Jelloun as a future Nobel Prize candidate (Ndiaye 48). I will argue that in a world where the social has taken precedence over the religious, in a world where transcendence has given way to what René Girard describes as "mimetic rivalry,"4 Ben Jelloun's characters are unable to know love as an "experience of transcendence" (Gans). As a consequence they inevitably reduce masculinity to virility, a fragile attribute sustained only through repeated acts of violence. It is indeed possible to read masculinity in such a setting as a set of distinctive practices which emerge from men's positioning within a variety of social structures. In short, masculinity in Ben Jelloun's fiction is perhaps best Fatima Mernissi, an indictment of the way in which numerous Hadiths (or sayings by the prophet) have been manipulated by a male elite to maintain male privileges; Fatna Sabbah's Woman in theMuslim Unconscious(1984), a critique ofthe seemingly contradictory messages which the Islamic legal and erotic discourses imprint on the female body; and Fedwa Malti-Douglas' Woman's Body, Woman's Word (1991), a mapping out of the relationship of woman's voice in Arabo-Islamic discourse to sexuality and the body. 4Central to Girard's thought is... (shrink)

This paper asks whether the criminal law can have any legitimate concern with obscene language. At most, such a concern could be justified by the need to protect auditors from offense, since it is not plausible to think of exposure to dirty words as harmful or inherently immoral. A distinction is drawn between bare utterance and instant offense, on the one hand, and offensive nuisance and harassment, on the other. Only when obscene language is used to harass can it properly (...) be made criminal. Finally, I criticize in some detail judicial reasoning in the case of F.C.C. v. Pacifica Foundation, and conclude that obscene language on the public media is not properly subject to governmental regulation, whether- by criminal law or otherwise. *** DIRECT SUPPORT *** A9102008 00002. (shrink)

In anticipation of the market introduction of highly and fully automated vehicles, regulations for their behavior in public road traffic are emerging in various countries and regions. Yet, as we show using the example of EU and German regulations, these rules are both incomplete and exceptionally vague. In this paper we introduce three traffic scenarios highlighting conflicting ethical, legal, and utility-related claims, and perform a legal analysis with regards to the expected behavior of AVs in these scenarios. (...) We show that the existing regulatory framework disregards the realities of algorithmic decision-making in automated vehicles, such as the incomplete and imprecise perception of their environment and the probabilistic nature of their predictions. Importantly, the current regulations are written in abstract language addressing human interpreters rather than the precise logical-numerical computer code. We argue that the required interpretation and translation of the abstract legal language into the logical-numerical domain is so ambiguous that the regulations as they stand fail to guide or limit automated vehicle behavior in any meaningful way. This comes with significant ethical implications, as the interpretation and translation is unavoidable and, if not provided by regulatory bodies, will have to be performed by manufacturers. We argue that ethical decisions with significant impact on public safety must not be delegated to private companies, and thus, regulatory frameworks need significant improvements. (shrink)

Social policy, broadly understood, is an intervention by government or other public institution designed to promote the well‐being of its members or intended to rectify perceived social problems. Governmental policy can issue from legislative, executive, or judicial actions. Regulations and rules governing major public establishments, such as universities or medical institutions, and directed at promoting the aims of the larger social body can also be considered instruments of social policy. Social policy is sometimes understood more narrowly as (...) interventions of the state in the domain of distribution or redistribution, when action has been thought necessary to correct for the instability inherent in a given social structure or created by pressures for social change. In this sense, it pertains to welfare policies aimed at the poor. In this article, we will deal primarily with social policy in the broad sense, reserving a brief discussion at the end on social policy in the narrow sense, as welfare policy. (shrink)

This paper develops the notion of being right-with, a conceptual lens that underscores what happens when individuals turn to human rights law and other legal processes and proceedings to address injustices by the state. It does this through a critical multi-directional reading of two Uganda High Court appeal cases that overturned the decision of a lower court which at first instance had convicted Dr Stella Nyanzi of the offences of cyber harassment and offensive communications. Being right-with is a regulative (...) and coercive idea within human rights law that animates a violent irrepressible police drive. I use being right-with to assert that when individuals make rights claims under human rights law (however radical those assertions might be), they are still imbricated within a mode of liberal humanist subjecthood that is always conceptually unfree. In trying to move away from this conceptual and dialectical trap of being made right-with and unfree under liberal humanism, this paper tentatively considers Black feminist theorisations of care and freedom ‘to-come’, as well as Édouard Glissant’s notion of opacity to explore the concept of being with elsewhere as a way of articulating practices of Black life that make freedom elsewhere possible. (shrink)

The Argumentwhile reconizing that public sector research has long been managed by a wide variety of practices and techniques, this paper concentrates on the increasingly important role that patents are playing in the management and regulation of public sector research. It argues that as a specific form of technology, patents play a significant and growing role in facilitating the management of the scientific object and can also be seen as a particular instance of governmentality. More specifically, it (...) argues that patents have had an important impact on the culture and political ecomomy of science. In this sence patents can be seen not only as a legal regime that provides limited property rights over technical information but also as a sophisticated tool of discipline and control that is used to regulate and manage public sector research. The paper suggests that with the increasing use of patents as a means of governing science, we are witnessing the growing juridification of science, the intervention of the law into an arena it hitherto largely ignored. (shrink)

Using the work of Robert A. Kagan's intellectual contribution on the intensification of law, leading authorities in the study of the politics of regulation and litigation examine the consequences of the expansion and intensification of law, both in the United States and the rest of the world. Part One considers bureaucratic legalism, a terrain in which popular and political discourse often conceives as a pitched battle between business and government, and in which claims about quantity—"too much" and "too little"—take (...) center stage. Here, the contributors examine the many ways in which regulators and the regulated cooperate, and the extent to which regulated entities internalize norms and practices associated with bureaucratic. Part Two considers adversarial legalism, a term that even among academics is often reduced to "litigiousness." The chapters in this section show that adversarial legalism is a much more complex, contingent, and multi-sided phenomenon than the popular debate over litigiousness suggests. Part III examines Kagan's core concepts in a comparative framework. Although some sometimes treat adversarial legalism as an American disease, scholars are increasingly finding it proliferating elsewhere, and debating whether it can take a prominent role in nations quite different in tradition and political structure from the United States. Across the globe, law and legalism in all its forms, bureaucratic and adversarial, is becoming more intense, and thus more central to politics, public policy and everyday life. The consequences are profound. Yet commentary is often stuck on old questions. Does the intensification of law reflect the withering of other social institutions? Is it a sign of moral decay? Or is it, on another account, signaling a new era of respect for universal human rights? The Politics of Legalism takes us instead in directions relatively unexplored by both scholars and popular commentators on law. Like Kagan's scholarship, it moves beyond stale debates about litigiousness and overregulation, and invites us to think more imaginatively about how the rise of law and legalism will shape politics and social life in the 21st Century. (shrink)

In newly emerging democracies, succeeding governments have numerous policy tasks for the purpose of developing the free market and the democratic process. In such legal systems, policy-oriented views of law, which regard law as a policy tool for diminishing public problems, seem descriptively pertinent and prescriptively helpful. This is also the case in mature democratic legal systems, where the public problems faced by governments become more and more complex. Policy-directional views of law do not necessarily imply (...) that law is a value-neutral means that can serve any possible political ends. It is widely recognized among legal theorists and practitioners, with notable exceptions represented by exclusive legal positivists, that the law involves moral values, including justice and liberty. In the present essay, I focus on one version of policy-oriented views of law that is based on the fundamental ideals of justice and interest. By sketching out this version, I attempt to shed new light on some concepts and issues in jurisprudence. To begin, I articulate the concept of justice and identify the difficulties that interest-based conceptions of justice encounter, by referring to some classical works. I also make a distinction between different conceptions of interest. Next, the two basic concepts in law — rights and liberty — are explained in terms of justice and interest. Efficiency, which has been largely neglected in traditional jurisprudence notwithstanding its practical significance, is also briefly discussed. Then, I turn to exploring the implications that the law-as-policy theory grounded on justice and interest might have for the foundations of two legal domains: criminal law and laws governing political participation. Some allegations and objections against this theory are described, and responses to them are given. The essay concludes by noting the questions that remain open in this theory. (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name for (...) threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)