Breaking the Chair. About the Symbolic Reorganisation of the Trial. On July 23, 2018, the article 7 of Law no. 304/2004 about the judicial organisation was completed as follows: the configuration of the court room must reflect the principle of the equality of arms concerning the position of the judge, the prosecutor and the lawyers. This paper aims to treat about the symbolic connotations of the rearrangement of the position of the main procedural actors in the (...) space destinated to the act of judging, meaning the relocation of the prosecutor in line with the lawyer, with his back on the audience – as a visual sign of the equidistance of the judge regarding both of them. (shrink)

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair. There are differences between interpretation and implementation of equality of arms (...) in the jurisprudence of European court on human rights and international criminal courts. Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties. When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused. (shrink)

The right to a fair trial is implemented in our criminal procedure and is one of the core values of our criminal justice system. This right is absolute and can’t be limited on any legal base. Its essence is fair and public hearing by an independent and impartial court with guaranteeing of all the minimum rights of the defendant. One of those minimum rights is the right of equity of arms between the parties, the prosecutor and the defense. (...) In our Law on Criminal Procedure, it is provided that the defense has the same rights and duties as the prosecutor except those rights that belong to the prosecutor as a state authority. Therefore, the purpose of this article is elaborating the right of ‘equity of arms’ and its misunderstanding in practice. Hence, we intend to show some case studies in which some evidence are not considered by the court just because they are not proposed by the prosecutor and they are crucial for the verdict. (shrink)

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

As a step towards a systematic comparative evaluation of the fairness of different language policies, a rationale is presented for the design of an index of linguistic justice based on public policy analysis. The approach taken is to define a ‘minimum threshold of linguistic justice’ with respect to government language policy in three domains: law and order, public administration, and essential services. A hypothetical situation of pure equality and freedom in the choice of language used by all members of (...) society in communicating with the state is used as a theoretical benchmark to study the distributive effects of policy alternatives. Departures from this standard incur lower scores. Indicators are chosen to assess effective access to three kinds of language rights: toleration (the lack of state interference in private language choices), accommodation (accessibility of public services in different languages), and compensation (symbolic and practical recognition of languages outside the dominant one). In order to take account of the cost-benefit trade-offs involved in providing language-related goods to language groups of varying sizes, a method is adopted for weighting scores with respect to compensation rights so that lack of recognition for larger groups incurs greater penalties, while factoring in the particular characteristics of each language-related good. A trial set of ten indicators illustrates the compromises entailed in balancing theoretical rigour with empirical feasibility. (shrink)

In order to introduce the text description of this class will show seven keywords, they represent In order to understand the general process for the seven. Need to mention is that the author published in Chinese script - title "Gadamer's philosophy of the seven key" - and this content is not the same. In fact, only one in that the use of key words in this speech mentioned the four key words will be used the next article. 1 Linguistics as (...) high as the United States in the "real management and methods," a book in the last third of the contents of the specified language is "the universal medium of interpretation of experience." It is in this medium, things are understood, understanding and interpretation to occur. It is the fundamental and the first thing on a switch, it makes things possible, without it, understanding must not occur. It is in this medium, the real management there, although in terms of the real incidence of management and is not limited to this medium. Sprachlichkeit is up to the universal language of the United States to name the first of of a proper noun. history of as language, history is a popular media, and history is also rising to become "a hermeneutical principle." To understand history, which must be traced back to Heidegger, "and there is time," the first six parts, entitled "Timing and historical nature." This title has been out of correct revelation, history is the study of this structure there is some a result of this there is the same as in the past and the present one there, it was possible there through his plans and will itself which extend to the future. Dilthey on Heidegger benefit of this term and its historical significance, but that裡Dilthey, the basic processes of life, and in Heidegger, the basic process is still alive there in the past and future Among the visual field. It is a learning process rather than the life there is a process, there is a process rather than the life philosophy of life regardless of the process. Dilthey and Gadamer and Heidegger places of historical analysis for the premise. 3 by the historical role of awareness up to the United States, this keyword has not appeared in from Schleiermacher, Dilthey, or Heidegger that裡. But Heidegger once spoke to the author, the concept represented by the word directly from Dilthey and future. Indeed, the word and the "fusion of" two persons都benefit from Hegel and Dilthey, Heidegger than In order to impact. At the same time, for the resumption of encounter with the text of the history of this effort directly, the recall In order to Heidegger and Qike fruit. Up to the United States shows that it is essential that "the existence of the structure." That is to say, it is usually associated with the text coming from a tradition, crushed In order to present before the sight. 4 hermeneutics into the cycle and see in understanding the structure and the first cycle between hermeneutics, there is a close link. Hermeneutics and the cycle regardless of such a concept, not only from a part of the overall future understanding, understanding from the part of the overall future. This is a logical contradiction, but it depicts In order to understand the kind of work does not have the way to recovery. This is to see What are the relationship? Up with the United States use this word in the former understanding of the meaning of a person he can understand any part of the text and context before, must have a pre-understanding. When Schleiermacher hermeneutics for the cycle to take a more formalistic point of view, he also participate in an objective and subjective look for. In order to reject the United States is up for the subjective, and he describes, in understanding the text, our understanding of a person but a different meaning, and this sense of ownership in a situation with a theme of the event . Heidegger the hermeneutic circle and put the world on their own understanding of the context in which the world is time and the existence of the world, in order to In order to reinvent the meaning of hermeneutic circle. It exists in the time being and is expected to forward to the future, it is a person exists in the world of all possibilities of a personal meaning. Gadamer Heidegger and then one more step beyond, he is defined as the cycle of hermeneutics and the interpretation of the traditional sports were a correlation between the movement. Heidegger's masterpiece裡tradition and not important, but those for the traditional and the interpretation of the relationship between text, up to the U.S. In order to play an important role in the analysis. Up to the United States, brought into the discussion In order to "complete expectation" that the key concept, it is subject to the historical role of awareness of the operation of the core. In this part of the contents of the directory for the present review is to show to some of the major associated. 5 authority and tradition up to the United States on the authority of the traditional view is that from his understanding and the hermeneutic circle before the concept developed in the future. Enlightenment for the suspect an effort made ​​to switch the authority of the United States to see coming up is one-sided, because the authority is naturally found in the leading field in a PhD, the referee, professors and experts. Recognize these people for a topic you know even in the natural and appropriate. So regardless of up to his brother's wife is not a legitimate authority and legitimate authority, and authority as a concept to see the future is appropriate. Similarly, our traditional understanding among the living, and we should explore a more deeper with our traditional relationship. Traditional German text is Űberlieferung, incurs passed along . Once again, as a fair decision without dialogue and is not legal to see, up to the United States against this anti-traditional views of the Enlightenment. 6 Depending on the domain of integration sight philosophy of integration is another sign up to the United States is not to find elsewhere. Basically, the text of the encounter with a sight In order to involve the integration of text and interpreter of the visual field of sight. And a man's own awareness is a fusion of traditional with the product. "That is convenient to get a sight of their own, but also requires a fusion of traditional with." In order for each dialogue also involves a fusion of sight. It is a wildcard description of the terminology. 7 Dialogue dialogue leading up to the U.S. interpretation of the theme of philosophy, relying on a life of his ideal, he as such a show of openness. Schleiermacher as high as the United States in general, is a talented rapper. However, the need for a fruitful dialogue open to others point of view, and the need to recognize that he or she may be right. In a true dialogue, both sides都want to talk more close to the truth regardless of management topics, which are more important than winning. Finally, the dialogue is a basic hermeneutical tool, a means to understand, so we coming close to the theme of the issue, but ready to change our point of view. An introductory section explains that the lecture will present seven key terms, representing seven aspects of the universal process of understanding. It is noted that a published lecture in Chinese by this author under the title "Seven Key Terms in the Philosophy of Hans-Georg Gadamer "is not the same as this, and indeed only one of the terms in that lecture is used in this one, although four of them are used in tomorrow's lecture. An introductory section explains that the lecture will present seven key terms, representing seven aspects of the universal process of understanding. It is noted that a published lecture in Chinese by this author under the title "Seven Key Terms in the Philosophy of Hans-Georg Gadamer" is not the same as this, and indeed only one of the terms in that lecture is used in this one, although four of them are used in tomorrow's lecture. 1. Sprachlichkeit-Linguisticality As Gadamer notes in the final third of Truth and Method, language is the "universal medium of hermeneutical experience." It is the medium in which things are understood, the medium in which understanding and interpretation take place. It is fundamental and prior to everything. It makes things possible, and without it understanding cannot take place at all. It is the medium in which truth happens, although there is more than this to the happening of truth. Sprachlichkeit is the term Gadamer uses to name the "universal priority" of language. 2. Geschichtlichkeit-Historicity Like language, history is a universal medium, and historicity is raised to the status of "a hermeneutical principle. "To understand historicity, one has to go back to the six sections of Heidegger's Being and Time that carry the heading" Temporality and Historicity. "Already this title correctly suggests that historicity is a consequence of the ontological structure of Dasein as a being that lives with a past and a present, and also extends itself into the future through projecting possible being. Heidegger is indebted to Dilthey for the term and sense of historicity, but in Dilthey the basic process is life, whereas in Heidegger, the basic process is being-in-the-world in horizons of past and future. It is an ontological process rather than a life process, a process of being rather than the vitalism of life in life-philosophy. Gadamer presupposes Dilthey's and Heidegger's analysis of Geschichtlichkeit . 3. das wirkungsgeschichtliche Bewusstsein-the Historically Effected Consciousness This is a key term in Gadamer that does not appear in Schleiermacher, Dilthey, or Heidegger. Heidegger once remarked to the author that the idea that this term represents is straight out of Dilthey. Certainly it and the "fusion of horizons" are more indebted to Hegel and Dilthey than to Heidegger. At the same time, the effort to restore the historical immediacy of encounter with a text recalls Heidegger and Kierkegaard. Gadamer argues that the essence of it is " the structure of experience. "That is to say, it shatters the present horizon, usually with a text from tradition. 4. Hermeneutische Zirkel and Vorurteil-Prejudice and the Hermeneutical Circle There is an intimate connection between the fore-structure of understanding and the hermeneutical circle. The hermeneutical circle refers to the idea that one understands the part from the whole, but also the whole from the parts. This is a logical contradiction, but it describes the back and forth way that understanding works. What has this to do with prejudices ? Gadamer uses this word as synonymous with pre-understanding, and one has to have a prior understanding before one can understand any part of a text or situation. While Schleiermacher took a more formalistic view of the hermeneutical circle, he also looked at the objective and subjective sides. Gadamer rejects the subjective side and explains that in understanding a text we are not understanding a person but a meaning that resides in a situation and a subject-matter. Heidegger revolutionized the meaning of the hermeneutical circle by placing it in the context of an understanding of self and world that is temporal and existential. It exists in time and anticipates a future, and it is the personal sense of one's possibilities for being in the world. Gadamer took a step beyond Heidegger by defining the hermeneutical circle as the interplay between the movement of tradition and that of the interpreter. Tradition plays little role in Heidegger's masterwork, but it and the interpreter's relation to the text loom large in Gadamer's analysis. The discussion brings in the key concept in Gadamer of the "anticipation of completion" which is central to the working of historically effected consciousness. A review of the table of contents for the section is presented to show some of the major relationships. 5. Autorität und Tradition-Authority and Tradition Gadamer's views with regard to authority and tradition grow out of his concepts of preunderstanding and the hermeneutical circle. The effort by the Enlightenment to discredit all authority seemed one-sided to Gadamer because authority is naturally accorded to doctors, judges, professors, and other experts in a field. To acknowledge that they know more about a subject than you do is natural and appropriate. So Gadamer speaks of legitimate authority and illegitimate authority, but authority as a concept seems appropriate. Likewise, tradition inhabits our understanding, and we should seek an ever deeper relationship to our tradition. The German word for tradition is Űberlieferung, that which is handed down. Again, Gadamer takes up arms against the Enlightenment prejudice against tradition as illegitimate without dialogue or a fair trial. 6. Horizontverschmelzung-Fusion of Horizons The "fusion of horizons "is another trademark of Gadamerian philosophy. It is not found elsewhere. Basically, the encounter with the text involves a fusion of horizons, that of the text and that of the interpreter. Also one's own consciousness is a product of a fusion of horizons with the tradition. "Even to acquire one's own horizon requires a fusion of horizons with the tradition." Every conversation, too, involves a fusion of horizons. It is an all-purpose term. 7. Conversation Conversation is a leitmotif of Gadamer's hermeneutical philosophy, an ideal he lived by, an openness he exemplified. Schleiermacher was a gifted conversationalist, as was Gadamer. But a fruitful conversation requires openness to the viewpoint of the other person, and the acknowledgement that he or she could be right. In a true conversation both partners want to come closer to the truth about a matter, and that is more important than winning. Ultimately, conversation is a basic hermeneutical tool, a means of reaching understanding, so we approach a subject with questions, but ready to change our point of view. (shrink)

What remains anti-democratic in our criminal justice systems, and where does it come from? Geoffroy de Lagasnerie spent years sitting in on trials, watching as individuals were judged and sentenced for armed robbery, assault, rape, and murder. His experience led to this original reflection on the penal state, power, and violence that identifies a paradox in the way justice is exercised in liberal democracies. In order to pronounce a judgment, a trial must construct an individualizing story of actors and their (...) acts; but in order to punish, each act between individuals must be transformed into an aggression against society as a whole, against the state itself. The law is often presented as the reign of reason over passion. Instead, it leads to trauma, dispossession, and violence. Only by overturning our inherited legal fictions can we envision forms of truer justice. Combining narratives of real trials with theoretical analysis, Judge and Punish shows that juridical institutions are not merely a response to crime. The state claims to guarantee our security, yet from our birth, we also belong to it. The criminal trial, a magnifying mirror, reveals our true condition as political subjects. (shrink)

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability (...) offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”. (shrink)

The presumption of innocence (POI) requires all judges, juries, and other officials in a trial, to presume and treat any accused of criminal wrongdoing as innocent, until he or she is proven guilty. Although a POI lacks an authoritative definition, this overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that one rarely finds anyone questioning its standing. In this article I examine the rationale behind the POI from (...) a different perspective. The basic assumption is that this procedural standard captures the tenor of a broader principle which seeks to ensure fairness in criminal proceedings as well as in criminal law doctrine. I argue that honouring a principle of fairness is not exclusively a matter of criminal procedural law but also something that is deeply rooted in other areas of criminal law doctrine. Hence: not maintaining a principle of fairness in criminal law doctrine could lead to the POI being compromised or even undermined. In the article, I draw attention to three areas in which I believe that criminal law policies threaten a principle of fairness: criminalising remote harm, doctrine of ignorance of law and inversed presumptions of guilt. My conclusion is that some solutions to so called doctrinal problems in criminal law, are questionable and their practical consequences (on a general level) are, at least partially, equal to treating an individual (in a trial) as guilty for something for which he or she ought not to be accountable. Hence: gaining the support of a POI could thus work as principle for keeping the use of criminal law moderate and in accordance with a principle of fairness. (shrink)

Writing, the exigency of writing: no longer the writing that has always (through a necessity in no way avoidable) been in the service of the speech or thought that is called idealist (that is to say, moralizing), but rather the writing that through its own slowly liberated force (the aleatory force of absence) seems to devote itself solely to itself as something that remains without identity, and little by little brings forth possibilities that are entirely other: an anonymous, distracted, deferred, (...) and dispersed way of being in relation, by which everything is brought into question – and first of all the idea of God, of the Self, of the Subject, then of Truth and the One, then finally the idea of the Book and the Work so that this writing (understood in its enigmatic rigor), far from having the Book as its goal rather signals its end: a writing that could be said to be outside discourse, outside language. – Maurice Blanchot ( The Infinite Conversation , xi) The Compendium * Beginning with the idea and practice of writing, and moving to the subject or self, then to truth and the One, and arriving at the Book and the Work, Blanchot’s words reflect the trajectory of the following work of writing. True to the embeddedness of the subject in the work of writing, the term “Compendium” has been a metonym for me over the past few years as I have thought about the concept of totality alongside its expression in figures such as the One, the Whole, or the All. In the following I aim to share some of the content of this metonym, and to enrich it by making some distinctions. 1 Here the term “Compendium” will refer to a concept of totality that is ontological (pertaining to being, and the copula) and also textual (pertaining to the symbolic, and the signifier-signified relationship). The Compendium is a figure for thinking the world as a Book, in the broadest sense—an approach to reality that is by no means new, but one that is due for renewal. 2 In partial answer to the question of the Compendium we will say that the word ‘Compendium’ stands in for expressions which seek to totalize, or concepts which seek to approach the concept of ‘everything,’ particularly when these expressions are bound up in the question of the Book (both the book as a physical object and the Book as a metaphysical figure: a way of thinking about the work in and of writing). The question of the Compendium is strongly associated with the physical and metaphysical form of the Book, like the mysterious and symbolic books which are opened in the Biblical book of Revelation, the book of life and the book of death, which together constitute an important couplet. 3 Parataxis & Hypotaxis There are two helpful distinctions that will bring us closer to an answer to the question “What is a Compendium?” The first distinction is between two figures in and for writing: parataxis and hypotaxis . Typically paired in contrast to one another as literary techniques, with parataxis indicating a side-by-side placement of textual elements and hypotaxis referring to subordinate arrangements of textual elements, the two figures can be understood as having a philosophical significance in addition to their practical function as devices for writers. For us these two terms will remain between philosophical theory and writing practice, and serve as a perspective for our writing and creation of texts. Here I take texts to refer to anything from the concrete written words in a book, to the ontological text of the world that we experience. Parataxis , as a figural way of thinking about the ontological structure of texts, refers to texts which are tightly woven and interdependent – texts within which each sentence bears the weight of the entire work. Parataxis often involves repetition, great density, and fragility. One of the best examples of this sort of text is Theodor Adorno’s posthumous magnum opus , Aesthetic Theory . In addition to the text itself, the translation history of the book may also help us to better understand parataxis and its relation to hypotaxis . The final published version of Aesthetic Theory , in German, was a text that Adorno intended to revise and rewrite, but this intention was never realized because of his untimely death. Where the German text of Aesthetic Theory certainly exemplifies the concept of parataxis , the first English edition took this densely woven text and carved Adorno’s lengthy paragraphs and lengthy sentences into manageable ‘bite-sized’ pieces of English text. The first translator took further liberty and inserted headings and new paragraph breaks where there were none in the original. Aesthetic Theory was eventually retranslated by Robert Hullot-Kentor and is now available in a form that is much more faithful to the original work. 4 The pertinent idea that this translation history points to is the distinction between parataxis and hypotaxis . Where parataxis describes texts which are repetitive, densely woven, and often fragile, hypotaxis describes texts which are hierarchical and in which the primary relation is linear – the latter of which is very similar to the first English translation of Aesthetic Theory . On the other hand, the original German text that Adorno wrote was very dense, often repetitive, and contained long sections of text unbroken by paragraphs or headings. This example of parataxis was then turned towards hypotaxis through the initial translation which took a text that was, in many ways, nonhierarchical and nonlinear, and artificially subjected it to a hierarchy that was not its own (and here I take the word of Fredric Jameson who comments on the two translations in a note at the beginning of his book Late Marxism ). 5 The point here is not about translation, but rather the distinction between parataxis and hypotaxis precisely as they are figures for discourse, written or otherwise. The concept of parataxis looks far more postmodern and rhizomic than the concept of hypotaxis which remains very modern and arborescent. This is a more figural way of talking about the distinction. However, if we wanted to take a more precise and analytical approach we could say that on the level of form parataxis involves a relationship between sentences and paragraphs in which each part bears an equally crushing responsibility to present the whole content of the text. As well, on the level of content, parataxis requires that each concept in a work take on the full conceptual weight of the total work. Continuing the analysis, we could say that parataxis describes texts in which there is no (or very little) linear or causal move from antecedent to consequent, whether in content or form. Instead, parataxis describes texts which weave together concepts via conjugations or associations. The concept of hypotaxis , on the other hand, requires that texts submit themselves to hierarchy, one example of which is logical argumentation. The contingency of the conclusion upon premises in hypotaxis is certainly distinct from the repetition, re-presentation, and conjugation of concepts in parataxis , and I think that this is evident in the difference between the writing styles prevalent in contemporary Analytic philosophy and Continental philosophy. It is not the case that the distinction between parataxis and hypotaxis absolutely corresponds with the writing styles of Continental and Analytic philosophy (respectively). There are thinkers who take exception to this pattern, such as Badiou’s more formal approach in the discourse of Continental philosophy to give one example. However, when Analytic philosophy takes its writing lessons from the sciences, and seeks to do philosophy via the clean linear move from antecedent to consequent, then I think that Analytic philosophy writes with hypotaxis in mind. On the other hand, when Continental (particularly German and French) philosophy takes its writing lessons from narrative or poetry then Continental philosophy writes with parataxis in mind. It is not fair to say that all those writing Continental philosophy are looking to narrative and poetry for stylistic direction, just as it is not the case that all those writing Analytic philosophy have mathematics and science as their writing format, however there are some striking ways in which the differing epistemologies of Continental and Analytic philosophy encourage writing with parataxis and hypotaxis in mind (respectively). For some, writing with parataxis or hypotaxis in mind is a conscious decision and a product of stylistic self-consciousness, and for others it is an unconscious discursive and epistemic requirement that must be met in order to be involved in a particular discourse. Before moving on to our second distinction, and then an examination of the question of the Book, it is important to point out that both totality and figurations like the One, the Whole, and the All, come out of very human desires to totalize or to actualize our being-towards-totality. The relationship between identity and totality then can be construed, with Heidegger in mind, as striving toward wholeness, completion, or fulfillment, each of which is a quality of compendia. 6 Compilation & Selection The first distinction between parataxis and hypotaxis pertains to both form and content, and to both the mechanics of writing and the ideas to which writing refers. The second distinction pertains to both as well. In the process of writing and in the process of perception as well, there is a tension between compilation and selection . To begin with, in the work of theory-writing there is compilation, and this is because writing theory requires a broad perspective and certain measure of totalization. On the other hand, writing theory requires that the writer select an idea or a combination of ideas to individuate out of a radical and infinite multiplicity of identities and combinations. The concern here is not primarily for the writing of a theory about a specific idea, like a secondary work or a reference text. But rather the concern is with the writing of grand theories: Marx and Marxism, Derrida and Deconstruction, Husserl and Phenomenology, Sartre and Existentialism, Saussure and Structuralism —each of which strives along a trajectory towards being all-encompassing, whether it intends to or not. Today, we could even say that Speculative Realism has embarked on this journey, and perhaps now we could say that the discourse of Speculative Realism has reached the inevitable point after which a grand theory leaves the hands of its writer or writers and becomes a possession of the collective consciousness of the academy, or (perhaps now) the mass consciousness of the blogosphere—and this is a true pharmakon , a poison and a cure, a blessing and a curse. 7 When we write theory, whether the scope is that of a grand theory or a particular theory, we write in the tension between compilation (making good on the desire to be all encompassing) and selection (being required to decide and discern and to judge what is included in the work and what is deleted or appended or abridged or given over to ellipses). Generally speaking, the work of theory-writing often comes out of a desire to totalize, that is, to develop a theory of everything that is able to apprehend new experiences and ideas while still remaining whole. I grant that this is not a universal desire, and that not everyone who sits down to write a work (or book) of theory does so because of their will-to-totality, but it remains that this drive to totalize does condition a great many writers of theory (especially those who seek to develop grand theories like those mentioned previously). At the beginning of his book of interviews, Between Existentialism and Marxism , Sartre is quoted as saying, after completing the first volume of his Critique of Dialectical Reason : “I no longer feel the need to make long digressions in my books, as if I were forever chasing after my own philosophy. It will now be deposited in little coffins, and I will feel completely emptied and at peace—as I felt after Being and Nothingness . A feeling of emptiness: a writer is fortunate if he can attain such a state. For when one has nothing to say, one can say everything .” 8 This is where our two initial distinctions come to bear on the being-towards-totality as it is expressed in the concrete practice of writing: the first being between parataxis and hypotaxis , and the second being between compilation and selection. Where this second distinction is concerned there is a certain paradox at play given that selection is inescapable, and compilation is unachievable. Selection is inescapable (with the figure of the Compendium in mind) because, even when the imperative to compile is followed to excruciating lengths, selection still has the last word. This is why the Compendium is a figure rather than some material thing that can actually be accomplished or actualized. No matter how far one goes along with the will-to-archive and the will-to-compile, it is only ever a question of minimizing selection and never eliminating it. This leads to the second point, which is that total compilation is unachievable. The closest thing to total compilation that we have before us is the ontological and textual fabric of the world. Even in the case of the world, compilation cannot be enacted in a total fashion because of the need to include both the sphere of the actual and the sphere of the possible or potential. This as another way in which compilation is always-already selection, and further evidence that total compilation is practically impossible. Discursive Figuration and Total Writing Rather than figuration referring to a figure of speech or an image, here the term points to a way in which to think about the work of writing, both the work put into writing, and the work that is the result of writing: the finished yet incomplete final piece. As figures or figurations, the Book and the Compendium are ways of thinking about the work of writing and the human desire for the wholeness, completion, and fulfillment that are made manifest in the completed form of the book (whether a published or printed or saved document put to rest by the author). These two figures bear more strongly upon works that seek to be all-encompassing, and works that strive towards expressions of totality such as the One, the Whole, or the All. Moving on to the topic of the subtitle, and on a more prescriptive note, I would say that there is more hope for theory-writing to be found in parataxis than hypotaxis . Part of the reason for this claim is the poststructuralist critique of hierarchies, and yet another part is the compelling line of thinking called “weak thought” (in theology by John D. Caputo, and in philosophy by Gianni Vattimo, among others). 9 The consequences of these two convictions are such that if one is to strongly assert the truth of a grand theory without leaving the realm of hierarchy-critique and weak thought, then one must write paradoxically with parataxis in mind, and in so doing write weakly and non-hierarchically. This does not mean avoiding a sort of topography or topology when writing theory, rather it means avoiding both subjugation and oppression in thought by pursuing a nonviolent sort of ontology. In order to do this, theory writing does not present itself as an exercise in logical analysis where one mechanically moves from a set of premises (via contingency) to the inevitable conclusion (via necessity). Instead, theory approaches the idea of a Compendium. Given that the figural Compendium places parataxis and compilation above hypotaxis and selection, then the question becomes: is placing one part of a binary term before another not just another way of selecting, or another expression of hypotaxis ? Counter to the urge to resign oneself to the reign of selection, with some qualification one can nonetheless write without deciding whether selection and hypotaxis should be subservient to compilation and parataxis (which is to say that writing-without-decision is somewhere between and beyond possibility and impossibility). This dilemma can be disarmed by stating that theory writing is not about primacy, and not about having-decided-beforehand, both stylistically and also where content is concerned. This is the paradox of writing: always striving along a trajectory ( telos ) towards totality via parataxis and compilation, but always being drawn back to finitude and making selections, and placing one idea before another with hypotaxis in mind. In light of this paradox, the question of the Compendium as a figure for discourse and a figural Book has resonance with Jacques Derrida’s essay on Edmund Jabès’ Book of Questions , found in his Writing and Difference . The Question of the Book “Little by little the book will finish me.” 10 Derrida quotes Jabès, and proceeds to outline the reflexive relationship between the author of the book and the book itself, each of which are subjected to the other through a sort of chiasmus, both ontological and textual (not that the two are entirely separable). The Book, for Derrida like Blanchot in the introductory quotation, “infinitely reflects itself” and “develops as a painful questioning of its own possibility”, and in light of this we can draw an association with the painful tension between the practical reality of selection and the ideal trajectory of compilation. 11 This tension in writing, between the will to total compilation and the necessity of abridgment, is an ontological tension between part and whole just as it is a textual tension between signifier and signified. The ontological tension in writing that Derrida expresses in his essay on Jabès is between everything and nothing – a contradiction which Derrida finds in Jabès’ Book of Questions and also in the divine, in God. When one writes between compilation and selection one writes towards totality, and here we can follow Derrida who states that the lapse in signification, presumably in the signifier-signified discrepancy, is a “ rupture with totality itself” and furthermore that this lapse cannot be rectified through deductive reason or even philosophical discourse. 12 This rupture with totality, found in the troubled relation between signifier and signified, can also tell us a lot about the Book and about writing. Given an understanding of writing as an ontological act that strives towards (but never accomplishes) totality, we can see the written book as the manifested and given body of that striving. Perhaps in other disciplines or even other schools of philosophy there is a cultural climate within which the article is prized above the book, but I am fairly confident, especially when referring to the grand theories of Continental thought, that there is a respect for the book as a uniquely meaningful object capable of apprehending totality. Derrida writes, Between the too warm flesh of the literal event and the cold skin of the concept runs meaning. This is how it enters into the book. Everything enters into, transpires in the book. This is why the book is never finite. It always remains suffering and vigilant. 13 Here the vitality of the literal event is compromised by the deadening weight of the concept, and the figure of the Book assists in this lapse of meaning. The Book is a totalizing object, much like the figure of the Compendium, and yet this totalization lacks its final object of completed totality both because the figural Book is necessarily incomplete, and because the physical book is always-already a product of selection. Instead of achieving its end of being a place where everything takes place, it suffers from the lapse of writing, the discrepancy between event and concept. Derrida continues his exposition on Jabès by bringing to light yet another reflexive relation, a reversal of the relationship between the Book and the world. Derrida writes that, for Jabès, “the book is not in the world, but the world is in the book.” 14 In addition to what was stated before, I take figuration to mean that the concepts employed, such as the Book or the Compendium, are not subject to the supposed rigor of analysis that is so prized by Enlightenment or Capitalist realisms. The figure of the Book and the figure of the Compendium cannot be held accountable to standards imported from scientific method, given an understanding that these standards require a concept to be replicable, consistent, falsifiable, measurable, and so on… This is an important point to make, especially in the present atmosphere within which theory must justify itself under conditions that are not its own. Instead of being held to these standards, figuration serves as a way in which to think about writing that leaves thought open to idealistic speculation, imperfect analogies, and most importantly the ever-present gain and loss that occur in the relationship between thought and being. By extension the figural way of addressing writing indulges in enough generalization to accommodate the excess/lack relationship between the ideal form of the Book or the Compendium, and the manifested and given body of a text (as it is practically completed and closed). Here we speak against the hostile atmosphere which would have theory submit itself to hierarchical rigor, rather than Blanchot’s “enigmatic rigor”, by being explicit about the discursive conditions and epistemic conditions under which theory operates. To write with parataxis in mind is, to a certain degree, to write with weakness as one’s methodology (with weak thought being in opposition to hypotaxis and hierarchy as much as weak thought can be in opposition to anything). Rather than asserting the strength of hierarchical theory, and rather than employing antagonistic argumentation with the goal of refutation different discursive and epistemic conditions for theory writing must be cultivated (and these are by no means new). First the critical and theoretical spirit reveals itself as being concerned with the task of complication—especially the complication and critique of binaries, dichotomies, dualities, polarities, paradoxes, parallaxes, hybridities, and especially antinomies. Second, theory positions itself as a sort of showing or revealing, rather than being ultimately focused on coming to full agreement or disagreement. This is where figuration can help theory-writing, both by placing emphasis on teleologies and trajectories (like parataxis and compilation), and by shifting focus away from pure primacy, power, or absolute origin. Figuration then, assists theory writing by placing the concern of theory outside of the concerns of the hard or soft sciences, and into the realm of thought or the idea. To speak of ‘the’ Compendium or ‘the’ Book, here, is to generalize not regarding the perfect form of the Compendium or Book, but to engage speculatively with an abstract idea which remains singular and yet complicated by multiplicity. The question of the Book that Derrida asks through Jabès is a question of everything and nothing, totality and nonbeing, and this question is a concern for writing and a concern for the figure of the Compendium so defined by the tension between compilation and selection, and parataxis and hypotaxis . On the note of nonbeing, we can look to the final page of Derrida’s first essay on Jabès in Writing and Difference and notice the introduction of his neologism, différance (with an ‘a’). Derrida writes: Life negates itself in literature only so that it may survive better. So that it may be better. It does not negate itself any more than it affirms itself: it differs from itself, defers itself, and writes itself as différance . Books are always books of life (the archetype would be the Book of Life kept by the God of the Jews) or of afterlife (the archetype would be the Books of the Dead kept by the Egyptians). 15 This introduction of différance into the equation of the Book, alongside ontological affirmation and negation, hearkens back to the discussion of the symbolic lapse earlier in his essay. Differing and deferring, the Book is always a Book of Life and a figure for the intersection of the vital (life) and the total in writing. In a way, the writer of the Book may be someone who lives life, and in another way the writer of the book-as-object may be someone who engages in the act of writing, both practically (by inscribing words on paper, or typing script on a computer) and ontologically or symbolically (by investing their existence and inexistence into a work worthy of the figural Book). In addition to the writer as writer, the writer also serves as an editor, and the editorial role alongside the idea of the Compendium shows the editor to be one who collects and compiles, while being restrained by eventual selection and decision. Beyond this the editor of works and texts, in both the Book and the world, is engaged in a process of inscribing notation—of annotating (on) the Compendium. Eternal commentary is a feature of the textual Compendium, just as open-ended totality describes the ontological Compendium. The writer as writer does not simply write texts, but rather engages in a profoundly ontological act of inscribing their existence into the world, and the writer as editor does not merely annotate or alter texts as they are, but rather comments upon the text of the world. In/Conclusion So as we create texts, and as we write and create theory, let us be and remain attentive to the figure of the Compendium and the figure of the Book. These two concurrent metonymies are essential for total writing (grand theories, etc.), and may be forgettable for those concerned with fragmentary or hierarchical writing (which are valid in their own right). From the ontological and symbolic text of the world and phenomenological experience, to concrete texts such as books or mixed media, the figure of the Compendium and the figure of the Book are important for the actualization of the human will to be all-encompassing. The figure of the Compendium teaches writers of theory that the repetition, density, and fragility of parataxis offers a strong sort of weakness which does not become yet another variety of oppressive and hegemonic thought. Rather than write with hypotaxis in mind, subjugating one thought to another via cause and effect or antecedent and consequent, I would hope that theory-writing could guiltlessly indulge in the dialectical and contradictory conjugation of ideas, and take this as a legitimate methodology. Rather than being ashamed of showing resonances or giving way to abridgment or ellipses, it is my own authorial (but not authoritative) conviction that one need not give up on totalizing and constructing grand theories because of the fact that complete totalization is impossible, and one need not give up on totalizing and constructing grand theories because of the worry of violence, for the Book and the Compendium lack their completed object and are ever incomplete trajectories. NOTES * UPDATED 7/19/13: we've updated the HTML version to reflect the (correct) PDF version. Our apologies to the author—eds. 1. I would like extend thanks to Dr. Peter Schwenger of the University of Western Ontario for his comments on this paper and his hospitality as it was presented as a Theory Session at the Centre for Theory and Criticism on October 26th 2012. I would also like to thank Andrew Weiss for conversation and critique. 2. I should clarify my use of the term ‘figure’ at the outset. Given the use of the term by Jean-Francois Lyotard in Discourse, Figure (and also Gilles Deleuze in Francis Bacon ), I should state clearly that my use of the term will not correspond to the term ‘figure’ understood as the representation of an object. Instead, my use of the term ‘figure’ and its variations (‘figural’, ‘figurative’, ‘figuration’) will refer to the illustrative or metaphorical use of the Compendium or the Book as models or ways of thinking about writing and discourse. 3. Cf. Revelations 20:12-15. 4. Theodor Adorno, Aesthetic Theory , Trans. Robert Hullot-Kentor (London & New York: Continuum Press, 1997). 5. Fredric Jameson, Late Marxism: Adorno, or the Persistence of the Dialectic (London & New York: Verso, 1990), ix-x. 6. I have written about this concept of being-towards-totality elsewhere in two pieces of writing: the first is called Notes on the Compendium (an unfinished draft) which addresses some very wide theoretical concerns, being structured as a sort of itinerary or archive, and the second is Dialectics Unbound (Punctum Books, 2013) which outlines a concept of totality without the violence of totalization. While these works are more concerned with ontological totality, here I would like to focus on the idea of the Compendium as a textual totality. 7. Cf. Louis Morelle, “Speculative Realism: After Finitude and Beyond, A vade mecum” in Speculations: Journal of Speculative Realism . Issue 3 (Brooklyn, New York: Punctum Books, 2012), 241-272. 8. Jean-Paul Sartre, Between Existentialism and Marxism . Trans. John Matthews (London & New York: Verso, 1974), 9. 9. Cf. John D. Caputo, The Weakness of God (Indiana: Indiana University Press, 2006). 10. Jacques Derrida, “Edmond Jabès and the Question of the Book” in Writing and Difference . Trans. Alan Bass (Chicago: University of Chicago Press, 1978), 65. 11. Ibid, 65. 12. Ibid, 71. 13. Ibid, 75. 14. Ibid, 76. 15. Ibid, 78. (shrink)

Children tend to view equal resource distributions as more fair than unequal ones, but will sometimes view even unequal distributions as fair. However, less is known about how children form judgments about inequality when different procedures are used. In the present study, we investigated children’s consideration of procedures, outcomes, and emotions when judging the fairness of unequal resource distributions. Participants were introduced to a Fair Coin and an Unfair Coin. In two between-subjects conditions, they watched a researcher (...) flip either the Fair or Unfair Coin in order to distribute resources unequally between two child recipients. Participants then rated the fairness of this event, provided verbal justifications for their ratings, and rated the emotional state of each recipient. Results revealed that participants rated the event as more fair in the Fair Coin than the Unfair Coin condition. References to the outcome in children’s justifications predicted lower fairness ratings, while references to the procedure only predicted lower ratings in the Unfair Coin condition. Greater Emotion Difference Scores predicted lower fairness ratings, and this effect increased with age. Together, these results show that children consider procedures, outcomes, and emotions when judging the fairness of inequality. Moreover, results suggest age-related increases in consideration of recipients’ emotions makes inequality seem less fair, even when fair procedures are used. Implications for the development of fairness are discussed. (shrink)

Most phase III clinical trials today are explanatory. Because explanatory, or efficacy, trials test hypotheses under “ideal” conditions, they are not well suited to providing guidance on decisions made in most clinical care contexts. Pragmatic trials, which test hypotheses under “usual” conditions, are often better suited to this task. Yet, pragmatic, or effectiveness, trials are infrequently carried out. This mismatch between the design of clinical trials and the needs of health care professionals is frustrating for everyone involved, and explains some (...) of the challenges inherent in attempts to enhance knowledge translation and encourage evidence-based practice. The situation is more than simply frustrating, however; it is potentially unethical. Clinical trials must be socially valuable in order to (1) warrant the risks they impose on human research subjects and (2) fairly and efficiently assess new clinical interventions. Most bioethicists would agree that trials that have no social value, for instance, because their results do not have the potential to advance clinical care, should not be performed. What is less widely appreciated is that given limited research resources, trials that are more socially valuable should be preferred to trials that are less socially valuable when all else is equal. With respect to clinical trial design, I argue that while explanatory trials often have some social value, many have less social value than their pragmatic counterparts. On the basis of this general ethical assessment, I provide a preliminary defense of the position that clinical researchers should aim to conduct pragmatic trials, that is, that researchers face a burden of justification related to any idealizing elements added to trial designs. (shrink)

Argues that affirming the irreducible differences between men and women can lead to more transformative politics than the struggle for abstract equality between the sexes. In The Symbolic Order of the Mother Luisa Muraro identifies the bond between mother and child as ontologically fundamental to the development of culture and politics, and therefore as key to achieving truly emancipatory political change. Both corporeal development and language acquisition, which are the sources of all thinking, begin in this relationship. However, (...) Western civilization has been defined by men, and Muraro recalls the admiration and envy she felt for the great philosophers as she strove to become one herself, as well as the desire for independence that opposed her to her mother. This conflict between philosophy and culture on the one hand and the relationship with the mother on the other constitutes the root of patriarchy’s symbolic disorder, which blocks women’s (and men’s) access to genuine freedom. Muraro appeals to the feminist practice of gratitude to the mother and the recognition of her authority as a model of unconditional nurture and support that must be restored. This, she argues, is the symbolic order of the mother that must overcome the disorder of patriarchy. The mediating power of the mother tongue constitutes a symbolic order that comes before all others, for both women and men. Luisa Muraro is Professor Emeritus of Philosophy at the University of Verona, Italy. Francesca Novello is an instructor at the University of Oklahoma. Timothy S. Murphy is Houston-Truax-Wentz Professor and Regents Professor of English at Oklahoma State University. (shrink)

Although discussions of John Rawls’ A Theory of Justice generally refer to Rawls’ two principles of justice, and although Rawls himself labels his principles “the two principles of justice”, Rawls actually sets forth three distinct principles in the following lexical order: the liberty principle, the fair equality of opportunity principle, and the difference principle. Rawls argues at some length for the priority of the liberty principle over the other two. On the other hand, Rawls offers hardly any argument (...) at all for the priority of the fair equality of opportunity principle over the difference principle. In this article I will argue that making the fair equality of opportunity principle separate from and lexically prior to the difference principle is both intuitively unattractive and inconsistent with Rawls’ method of deriving principles of justice from the choices of rational contractors in the original position. (shrink)

This essay examines the terms of the Judicial Oath sworn by the judges in the Athenian courts during the classical period. There is general agreement that the oath contained four basic clauses: to vote in accordance to the laws and decrees of the Athenian people, to vote about matters pertaining to the charge, to listen to both the accuser and defendant equally, and to vote or judge with one’s most fair judgment . Some scholars believe that the fourth (...) clause gave judges the right to vote according to their conscience and to ignore the law if they found it unjust. The first part of the essay shows that this clause gave judges the right to make decisions solely on the basis of their most just judgment only where the laws gave no clear guidance. It was a default clause invoked only twice in the extant orations; it was never used as justification to ignore the written laws. The second part addresses the view that the courts took political factors into account during trials. Although some trials involved leading politicians, the courts were bound by their oath to decide whether the defendant was guilty of the charge brought by the accuser. The only part of a trial where a defendant might mention his political achievements or his public largesse was at during the assessment of the penalty in a trial on a public charge. (shrink)

A complex interaction of ideological, financial, social, and moral factors makes the financial sustainability of health care systems a challenge across the world. One difficulty is that some of the moral commitments of some health care systems collide with reality. In particular, commitments to equality in access to health care and to fair equality of opportunity undergird an unachievable promise, namely, to provide all with the best of basic health care. In addition, commitments to fair (...) class='Hi'>equality of opportunity are in tension with the existence of families, because families are aimed at advantaging their own members in preference to others. Because the social-democratic state is committed to fair equality of opportunity, it offers a web of publicly funded entitlements that make it easier for persons to exit the family and to have children outside of marriage. In the United States, in 2008, 41% of children were born outside of wedlock, whereas, in 1940, the percentage was only 3.8%, and in 1960, 5%, with the further consequence that the social and financial capital generated through families, which aids in supporting health care in families, is diminished. In order to explore the challenge of creating a sustainable health care system that also supports the traditional family, the claims made for fair equality of opportunity in health care are critically reconsidered. This is done by engaging the expository device of John Rawls’s original position, but with a thin theory of the good that is substantively different from that of Rawls, one that supports a health care system built around significant copayments, financial counseling, and compulsory savings, with a special focus on enhancing the financial and social capital of the family. This radical recasting of Rawls, which draws inspiration from Singapore, is undertaken as a heuristic to aid in articulating an approach to health care allocation that can lead past the difficulties of social-democratic policy. (shrink)

The following is excerpted from Sean Gurd’s translation of Euripides’ Hippolytus published with Uitgeverij this year. Though he was judged “most tragic” in the generation after his death, though more copies and fragments of his plays have survived than of any other tragedian, and though his Orestes became the most widely performed tragedy in Greco-Roman Antiquity, during his lifetime his success was only moderate, and to him his career may have felt more like a failure. He was regularly selected to (...) have his plays performed in the annual festival of Dionysus at Athens. But the plays were performed in a competition, and in the competitions he lost and lost, winning first place only five times in a career that spanned more than forty years. His corpus reads like the remains of a life spent trying to get a few things right and never being quite satisfied: scenes and schematized combinations of elements recur again and again, each time slightly changed. Hippolytus itself is an example: it contains two scenes in which a sick or dying character lies on a couch or a stretcher and is surrounded by silence and grief; he had experimented with such scenes in Alcestis, and would work with them again in Herakles and Orestes. Nor, judging from appearances, was he immune to the desire to score a hit, or to satisfy the audiences and the judges at the competition. Hippolytus is a rewrite of another Hippolytus, performed several years earlier, which scandalized the audience and certainly did not take first place. In that earlier Hippolytus (called by later writers Hippolytus Veiled), Euripides fashioned a Phaedra who was neither ashamed of loving her stepson nor incapable of taking steps to satisfy her desire. The forwardness of her approach to Hippolytus so outraged him that he covered his head with a robe (hence the play’s later title). Euripides liked to write energetic and self-confident women like this. He staged his Medea in 431, just three years before he revised Hippolytus, and in it the jilted title character murders her children in revenge for Jason’s new marriage to a more politically advantageous wife. Another flop: the play came in third of three. Evidently the judges did not like their women showing agency, especially when the consequences were transgressive. “The ornament of women,” wrote another great Athenian a little earlier, “is silence.”i Euripides’ Medea and his first Phaedra had other decorations. So three years after Medea crashed and burned and some time after the first Hippolytus suffered the same fate, he produced another Hippolytus play with a different setting and story. How could this one not have been a reaction to the failure of the first? “Second thoughts are always better,” he has one of his characters say, as though he were offering an apology for his first thoughts on the same story. In this new version, Phaedra is suicidally ashamed of her love, choosing to die rather than have it discovered, and willing to bring down her beloved Hippolytus in the service of the same end. Now it is Phaedra herself who covers her head in shock and horror at her desire. Only an intermediary, a slave of the house and an old crone with her fingers in all sorts of illicit pots, communicates Phaedra’s secret – against orders – and in consequence brings about the demise of two resolutely moral figures. It worked. For his tale of two well-born nobles with an unswerving commitment to moral action, destroyed by the meddling of a slave (and by the hostility of some particularly uncaring divinities), the judges crowned Euripides winner. It was the first time he had won, after almost thirty years of work. *** What Hippolytus wants more than anything else, as he protests with outrage just before leaving Trozen for the last time, is the benefit of due process – oaths, witnesses, an investigation that would reveal who really lusted after whom. Ironic, given that in the first Hippolytus, as far as we can make out, he did get a trial – but too late, and Theseus’ successful processing of Hippolytus failed to prevent his death. I cannot help hearing in the second Hippolytus’ complaints the anger of his authorial semblable who lost year after year by a process of judging that might have seemed brutal to him. Judges took no cognizance of how he worked, how long or hard or why; they just voted, and Euripides lost. But then I hear, in the fate of the first Hippolytus, an even grimmer commentary. Processed or not, we lose. We run aground. At the very least, this might cast a darker shadow on the business of watching or reading a play: in that twilight, things move too fast to make a fair assessment and, in any case, the reasonably high definition of what you see and hear belies the truth of indistinction, the multiplicities just below the surface. Watching is a constrained activity, a form of captivity, but reading is plastic. This translation was begun to supply the script for an audio version of the play, recorded in the spring of 2012, and here and there it sacrifices literalness for sayability and the voices and passions of the actors on that occasion. But it was finished to be read, and engineered to create a reading caught between the poles of specificity and non-specificity that the play itself conjures and relies on at its generative core. Thus two texts: the one clear, perhaps overprecise, respectably modern in its presentation, and the other ancient, a reasonable approximation of the classical reading process, and indistinct in vital ways. Like early modern dramatic texts, the exact provenance and original function of the scripts that have made it down to us are unknown. We do know that the ultimate survival of Hippolytus was thanks to its wide-spread use as a school text. But its relation to the first performance in 428 BCE is a matter only of speculation. Euripides presumably had a fair copy before production began; it was probably modified during rehearsals. The actors may have had copies, too (probably the young men who served in the chorus did not). The chor?gos, a wealthy Athenian who paid for the production, might have been presented with or just made sure to get his hands on a high-quality text, to commemorate the play’s success. Fans might have been able to buy copies. Any one of these sources might have provided the ultimate progenitor of our text. Several of them might have, in fact, if later editors compared and conflated traditions. The plays toured extensively in the Greek-speaking world, and were restaged as repertoire for centuries afterwards. In the process they were subjected to enough modifications by producers and actors that in the later fourth century the Athenian statesman Lycurgus had a law passed prohibiting performances at Athens from deviating from the official “city” text of the tragedies (which he had commissioned). It is unlikely that the city text was the last word; but it marks an important moment in Athens’ role in their dissemination, since after this the major sites of textual curatorship moved overseas, to Alexandria, Pergamum, Rome, Antioch, Constantinople. Any single text of any single play is thus no more than a moment of clarity and stability, crossed and subtended by multiple vectors of change, including that of textual flux (from Euripides’ first drafts to the latest printed text) and that of Euripides’ life work as a writer, in the light of which the Hippolytus is just one attempt to produce something exactly right, to win the prize or finally satisfy himself or prove to himself that all this longing for perfection was a waste of time. I am intrigued by the possibility that a single text might somehow serve as a lens onto this wider zone of indistinction, representing a small region clearly but nonetheless containing a blurred image of the whole, like a Leibnizian monad. After all, no text is a witness: it is, rather, a perception and a performance, and what every Hippolytus must perform is the awkward overlay of singular and plural, social practise and subliminal drive, that structures the tragedy. Modern critical editions can do this by juxtaposing a (relatively) clean and simple text with a textual apparatus reporting variants and theorizing the relationship between textual instantiations. A translation lacks the resolution to catch the fine variations which feed into the construction of an apparatus. But there are other means to hand. Guessing at the exact words of the original text is always just that – guessing – though Hippolytus is less problematic than plays like Iphigenia at Aulis. But we can make a pretty secure guess at what such a text looked like. Texts read by fifth-century readers were fundamentally different from what is presented in the best medieval MSS and printed in modern publications. The texts of Euripides’ time and for many centuries afterwards did not indicate word division with spaces (or by any other means) and were extremely sparing in punctuation, often avoiding it altogether. There was only one “case” of letters – what we call “capitals.” Musical sections were inscribed as though they were prose, without line endings to reflect their rhythm or their rhetorical structure. There was no indication of the speakers within a dramatic text, either. The earliest surviving dramatic texts, which come from over a century after Euripides’ death and a time which was much more elaborate and precise in its textual culture, indicated speaker-change with a little line or paragraphos below the line and a double-point [:] at its end. This convention almost certainly does not date back to Euripides’ own time; it may not even date to Lycurgus. In any case, such indications were understood to be readers’ marks: they did not have the same authority as the text and they were subject to readers’ revisions. At least ideationally, if not in concrete and distinguishable fact, a dramatic text was understood as containing no indication of speaker-change (and certainly none of who was saying what). The reader had to figure that out for him-/herself. The clear, legible, easy texts we are accustomed to reading are the fabrications of medieval and modern reading cultures. The first text, then, presents the translation as the text would have been in the mid-fourth century, perhaps decades after Euripides’ death. The second text processes Hippolytus, makes sense of it and makes it “readable.” That is: too distinct, dangerously so. It gets in your way, conjures fantoms, tries to make you see. Fragments of the Hippolytus Veiled, otherwise almost entirely lost, are juxtaposed with similar passages in the text – not to suggest a reconstruction, but a dialogue and a complex set of reassessments. I have not tried to represent the full variety of textual variants, but I have signalled where, for one reason or another, the text is soft and different editions propose excisions or changes. The two texts must be read together: you, reader, form the bridge between the distinctly seen and the indistinct invisible. You, in the end, will be its mask. *** illsandhateddiseaseswhatcanidoforyouwhatshouldinotdohereisthelightandthebrightairyoursickbedisnowout s idethehouseyoureverywordwastocomeherebutyouwillrushbacktoyourbedroomagainyoufadequicklyyoudelig htinnothingyoudislikewhatyouhaveyoulovewhatyoudontitsbettertobesickthantendthesickthefirstissimpleto the secondattachesheartspainandhandsworkeveryhumanlifeispainfulthereisnoendtotoildarknesshidesbehindclo udswhateverisdearerthanlifeweproveunhappyloversofwhatshineshereforlackofknowledgeofanotherlifethere isnoproofforthingsbeneaththeearthonlystoriessustainus liftmybodystraightenmyheadthebondsofmylimbsareloosenedtakemyhandsandmypalearmsthishatistooheavy formyheadtoweartakeitoffspreadmyhairovermyshoulders couragechilddonttossandturnsoviolentlyyouwillbearyoursicknessmoreeasilywithpeaceandanoblemindallmort alssuffer aiaiiwanttodrinkpurewaterfromadewyspringiwanttoliebackandrestunderthetreesinsomegrassymeadowchildw hycrydontsaythesethingsnearthecrowdhurlingwordsmountedonmadness sendmetothemountainiwillgototheforestwherebeastkillingdogspressthespotteddeergodsilongtoshouttothedo gstoshootthethessalianjavelinpastmyblondhairtoholdthebarbeddartinmyhandwhythisanxietychildwhatdoyouc areabouthuntingwhydoyoulustforflowingspringstheresahillwithwaterjustnexttothetowerwecangetyouadrinkt h ereartemismistressofthesaltlakeandthecoursethunderingwithhorseshoovesiwishiwereonyourplainsbreakings t uds whythrowthesefrenziedwordsaboutjustnowyouweresettingoutforthemountaintohuntandnowyoulongforhorses onthewavelesssand thesethingsneedanoracletotellwhichgodreinsyouinanddrivesyoufromyoursenseschild whathaveidonehowfarhaveibeendrivenfromgoodthoughtsiwascrazyiwascursedbysomepowerpheupheualasn ursecovermyheadagainimashamedofwhativesaidcovermeatearmovesdownfrommyeyeanditembarrassesm eithurtstostraightenourmindanditisterribletobeinsanebesttodiebeforeyoubecomelucidagain illcoveryoubutwhenwilldeathcovermeimoldivelearnedalotmortalsshoulddrinkoffriendshipmoderatelynotfrom th edeepestmarrowofthesoulamindslovecharmsshouldbeeasytoundoorthrustawayortiemoretightlyitisaverydiffic ultweightforonesoultolaborovertwopeopleasiamwrackedbypainforhertoomuchdisciplinecausesmoreharmthan pleasureandwarswithhealthipraisetoomuchlessthannothinginexcessandthewiseagreewithme *** Scene 1 Enter Phaedra and the Nurse; the former is recumbent on a couch while the latter bustles about her with gestures that might be those of a caregiver or a guard. NURSE Ills and hated diseases! What can I do for you? What should I not do? Here is the light, and the bright air; your sick bed is now outside the house. Your every word was to come here, but you will rush back to your bedroom again. You fade quickly. You delight in nothing. You dislike what you have. You love what you don’t. It’s better to be sick than tend the sick – the first is simple. To the second attaches heart’s pain and hand’s work. Every human life is painful. There is no end to toil. Darkness hides behind clouds whatever is dearer than life. We prove unhappy lovers of what shines here for lack of knowledge of another life. There is no proof for things beneath the earth. Only stories sustain us. PHAEDRA Lift my body, straighten my head: the bonds of my limbs are loosened. Take my hands and my pale arms. This hat is too heavy for my head to wear. Take it off, spread my hair over my shoulders. NURSE Courage, child; don’t toss and turn so violently. You will bear your sickness more easily with peace and a noble mind. All mortals suffer. PHAEDRA Aiai. I want to drink pure water from a dewy spring. I want to lie back and rest under the trees in some grassy meadow. NURSE Child, why cry? Don’t say these things near the crowd, hurling words mounted on madness. PHAEDRA Send me to the mountain. I will go to the forest where beast-killing dogs press the spotted deer. Gods! I long to shout to the dogs, to shoot the Thessalian javelin past my blond hair, to hold the barbed dart in my hand. NURSE Why this anxiety, child? What do you care about hunting? Why do you lust for flowing springs? There’s a hill with water just next to the tower; we can get you a drink there. PHAEDRA Artemis, mistress of the salt lake and the course thundering with horse’s hooves: I wish I were on your plains breaking studs! NURSE Why throw these frenzied words about? Just now you were setting out for the mountain to hunt – and now you long for horses on the waveless sand. These things need an oracle to tell which god reins you in and drives you from your senses, child. PHAEDRA What have I done? How far have I been driven from good thoughts? I was crazy, I was cursed by some power. Pheu pheu. Alas. Nurse, cover my head again. I’m ashamed of what I’ve said. Cover me – a tear moves down from my eye and it embarrasses me. It hurts to straighten your mind and it is terrible to be insane. Best to die before you become lucid again. NURSE I’ll cover you. But when will death cover me? I’m old; I’ve learned a lot. Mortals should drink of friendship moderately, not from the deepest marrow of the soul. A mind’s love-charms should be easy to undo, or thrust away, or tie more tightly. It is a very difficult weight for one soul to labor over two people, as I am wracked by pain for her. Too much discipline causes more harm than pleasure and wars with health. I praise “too much” less than “nothing in excess,” and the wise agree with me. ***. (shrink)

Based on the examination of 49 Chinese criminal trials transcribed from the audio-visual recordings on the ‘China Court Trial Online’ website ( https://tingshen.court.gov.cn/ ), the institutional participants–prosecutors, defence lawyers, and judges–are found to frequently repeat defendants’ responses (‘other-repetition’), after a question–answer adjacency pair. Other-repetition has been described as a resource for showing participation and familiarity (Tannen 2007), initiating repair and registering receipt (Schegloff 1997), and displaying understanding and emotional stance (Svennevig 2004). However, other-repetition in trial discourse has not been thoroughly (...) researched. Therefore, this article aims to further examine this salient institutional linguistic feature in order to explore stance construction as a third turn. It is common to associate certain prosodic features of a repetition with the stance of the speaker. However, prosody may not be a reliable cue for stance interpretation in Chinese courtrooms, as institutional participants might conceal their stance during a repetition. Though they are more explicit in displaying their stance with turn-initial repeats, the distinction between the prosody of repeats for different functions is not categorical. It is found that defendants are sensitive to the lexicogrammar and multimodal cues for stance interpretation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Why Political Liberalism? On John Rawls’s Political Turn by Paul WeithmanMatthew ArboWhy Political Liberalism? On John Rawls’s Political Turn Paul Weithman New York: Oxford University Press, 2010. 379 pp. $65.00In Why Political Liberalism? Paul Weithman takes a bifocal look at political liberalism in the Rawlsian tradition. First he interrogates the rationale for John Rawls’s “political turn” from A Theory of Justice to Political Liberalism. Second, he explores the (...) viability of political liberalism in contemporary Western societies. The soundness of the former—the logic of Rawls’s argument, that is—validates the workability of the latter. Weithman argues that the monumental turn in Rawls’s thought is based first on his dissatisfaction with how Theory of [End Page 203] Justice treated the principle of stability, failing as it did to show that “members of a [well-ordered society] would all judge it good to preserve their ‘firm good will’” (369). Liberalism emerged as a potential answer to the question of stability by further elaborating the criteria for fairness and reasonableness in a civil society composed of citizens desirous of justice and who maintain for themselves a “sense” of justice. Weithman affirms Rawls’s explanation of how the virtue of justice is displayed in fairness and reasonableness. Just how monumental this shift turns out to be, however, depends a great deal on how compelling one finds “justice as fairness” to be.In recent decades, reasonable doubts have been expressed over the viability of Rawls’s liberal dictum: whether liberty and equality are mutually reinforcing or parasitic, or whether fairness is too morally opaque to shoot for as a political ideal. Weithman seems to believe the principle sound; it is, after all, merely a descriptive explanation of how justice is upheld politically, not a prescriptive project. Rawls concerned himself with the stability and endurance of political liberalism and with how to achieve fair and rational equilibrium. Why Weithman believes the project of Rawlsian liberalism to be fruitful, or at least philosophically successful, is due at least in part to its repeated appeal to reasonableness—that is, the rational promotion of equal liberty for all citizens. Political liberalism, as a theory, affirms and encourages all that the West values in civil society: We must desire and actively support justice for it to be preserved.This book is intended primarily for Rawls scholars. Weithman assumes his reader to have “fairly sophisticated” acquaintance with Rawls’s major theories and texts, and thus also assumes proficiency in symbolic logic and analytic methods. Weithman furnishes a way around this demand for analytic aptitude from all readers, however, by inviting those “uninterested in textual exegesis” and “content with a general understanding” of why Rawls made his turn to “read selectively” from chapters 3 through 9 (15). Be that as it may, all eleven chapters of this text are dense, rigorous, and tightly argued—standard industry practice in contemporary analytic philosophy. If one can also forebear the methodological vices of analytic philosophy, its propensity for tedious detail and narrowness, then one will eventually enjoy unexpected clarity on the subject under consideration. It will be of value to scholars with interests in the development of Rawlsian thought, the conditions for the possibility of political liberalism, and theories of justice Rawls’s account of liberalism seeks to elucidate.I doubt one unconvinced by Rawls’s political vision will undergo intellectual conversion upon reading Weithman’s Why Political Liberalism?, but that is not the point. His aim is to defend Rawls’s political turn and the project of political liberalism broadly construed. Defense of the former is done rather successfully; defense of the latter may require more voices than Weithman’s. [End Page 204]Matthew ArboUniversity of EdinburghCopyright © 2013 Society of Christian Ethics... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Saving Honor:The Ideology of Equal Esteem and the Good of Honor, Friendship, and Glory according to St. ThomasDominic Verner O.P.In his book Natural Law and Human Rights, Pierre Manent assesses and critiques a practical ideology that he finds pervasive within the European academy and sees increasingly informing the practical sensibilities of much of the Western world. "Our governing doctrine," as Manent calls it, is chiefly characterized by the primacy (...) of right over law and the rejection of any objective principle by which actions and persons might be judged.1 It is "the plasticity of the human form" itself which demands respect.2 The only non-constructed and thus normative characteristic of equal human nature is the power of being an "individval-conatus," the power to be one's own rule and reason for acting.3 And the only generally recognized purpose of this "individual-conatus" is to satisfy the desire for power, which is the sole universal motive of human action.4 Such an individual can be legitimately ruled and governed only by himself, a claim reflected in the ideal of the autonomous subject and representative government.5 In sum, Manent characterizes this ideology in terms of a thoroughgoing [End Page 335] rejection of any objective rule, "any law of God or of nature," according to which man is defined and judged.6Manent warns that this ideology is opposed to the very wellsprings of action, since an operation is rightly called an action only when it is performed according to some deliberate choice, which requires some rule and reason. If all rules and reasons are entirely self-generated, then there is no principle according to which deliberation might occur. Such a so-called autonomous subject purports to command himself, but in fact he is more patient than agent: the subject is moved by desires and preferences which cannot be weighed according to any discriminatory rule or principle, since the desires and preferences themselves are the only rule the subject acknowledges. Aside from submitting to the movement of the inexplicably strongest preference, the only positive reason for acting that remains is to destroy any vestiges of objective rules or reasons for acting—that is, the law—that might hinder the realization of individual preference: "The acting animal is now the prisoner of the very audacious and ingenious arrangement that he once devised to escape the urgency and to avoid the difficulty of the practical question. Caught in the realm of inaction, he seeks out, in a kind of terminal fever, the last corners of social existence that still escape the laissez-faire idea and where the very idea of the law might suffer its final defeat."7What is a Christian to make of this practical ideology? What natural inclinations does it privilege and how might the goods it seeks be sought rightly? Manent argues that the sole universal motive for action explicitly recognized by this practical ideology is a certain kind of power: the power of self-determination. According to the governing doctrine, this power is the only universal human motive that can be relied upon to construct common life and political order. Manent's response to this ideology is therefore to propose a recovery of a natural law account of the heterogeneity of universal human motivations to include useful, pleasing, and honorable goods. In this article, I will argue that Manent's own account of the ideology he critiques suggests a more fundamental motive driving the ideology, namely, a desire for an unassailable esteem. And since it is a desire for esteem that best explains the attractiveness of the ideology of modern freedom, an alternative vision of practical life will need to address the desire for esteem and articulate its proper bases. In advancing this argument, I will first show that Manent's own analysis highlights the importance of the desire for esteem in motivating the ideology of modern freedom. I will then turn to the anthropology of Thomas [End Page 336] Aquinas to show that the desire for esteem is manifested in the desire for honor and for friendship and is rooted in a fundamental inclination to have certain knowledge of one's... (shrink)

The novelties of the contemporary international order require a rethinking of the normative foundations of criminal justice. Although one can understand the relevance of basic principles such as th...

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any (...) relevant facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

The article deals with the question whether a state might be held liable for the infringement of constitutional law if its national court of last instance violates the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on the well-established practice of the European Court (...) of Human Rights, which accepts that in theory an arbitrary decision not to refer a question for a preliminary ruling could infringe the right to a fair trial established in the ECHR, the author analyses whether constitutional courts of Germany, Czech Republic, Spain and Lithuania have elaborated the equivalent practice and if so, whether they have established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

The concept of Rule of Law is the cornerstone of the proper functioning of the judicial system in any modern democratic society. It is a basic concept of defined rights and liberties to all persons, which offers protection from arbitrary prosecution and incarceration. This principle was firstly stipulated by the instrument of Magna Carta and it is considered as a key principle for good governance in any modern democratic society. The development of the rule of law principle is personified through (...) the independence of the Judiciary as a third branch of government. The contemporary democratic societies are faced with many challenges upon which in order to protect their values of the democratic system, often limit the rights and liberties of persons. It is the role of the courts and the judicial system to stop these injustices and protect the individual from any form of liberty deprivation and rights limitations. Before the promulgation of the Magna Carta in 1215, the rule of law was perceived as a divine justice, distributed solely by the monarch or the king or in this case - King John of England. Magna Carta doesn't have iconic status only in the British Society, which is perceived as an instrument with special constitutional status and cited by many judges, lawyers and politicians, but in any modern democratic states as well. The author in this article examines the development of the concept of Rule of Law in the modern democratic societies under the influence of the Magna Carta, and how it is perceived as a guarantee of fair trial and trial by jury of any persecuted persons whether the severity of their crimes. (shrink)

In this article, we defend a normative theory of prenatal equality of opportunity, based on a critical revision of Rawls's principle of fair equality of opportunity . We argue that if natural endowments are defined as biological properties possessed at birth and the distribution of natural endowments is seen as beyond the scope of justice, Rawls's FEO allows for inequalities that undermine the social conditions of a property-owning democracy. We show this by considering the foetal programming of (...) disease and the possibility of germ-line modifications. If children of lower socioeconomic background are more likely to develop in a poor foetal environment and germ-line enhancements are available only to the rich, initial inequalities between the rich and the poor would grow, and yet FEO would be satisfied. In order to avoid the problem, we propose a revised FEO principle omitting any reference to the comparison of natural endowments. Our revised FEO requires that institutions mitigate social class effect from reproduction and gestation to the greatest extent compatible with parental freedoms and the value of the family. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Just Share: Justice and Fairness in Resource Allocation*Pat Milmoe Mccarrick (bio) and Martina Darragh (bio)Each of us has some basic sense of what the words “fair” or “just” or “fairness” or “justice” mean. Each of us probably also has an idea of what is “fair” in health care. The attempt by the state of Oregon in the mid-1980s to quantify this notion made a previously private (...) exercise a public one. This transition has been chronicled in the bioethics literature that focuses on resource allocation. These works examine both theories of justice and concepts of “health”; the fair distribution of health resources has been of continuing interest since the beginning of bioethics in the 1960s. Early writing on justice includes authors Tom L. Beauchamp, Robert H. Blank, James F. Childress, H. Tristram Engelhardt, Paul T. Menzel, Paul Ramsey, and Robert M. Veatch (VII).During the 1980s, bioethicists such as Daniel Callahan and Norman Daniels proposed thinking of health care decisions not as moments of personal crisis but as choices that span a lifetime, possibly involving tradeoffs in other areas of one’s life, e.g., education. The Oregon experience added another dimension to the discussion. The initial rank-ordering of health services by cost produced a skewed list—for example, surgery for life-threatening conditions ranked below minor, elective procedures. For the project to make sense, the ranking algorithm could not be based on cost alone, but rather on a combination of costs and benefits both to individuals and to the community—“concatenations of individual and group goods” (I, Jecker and Jonsen 1995). Various metaphors have been used in the literature to facilitate discussion of this shift from individual to individual/community trade-offs: medical services as a “commons” (I, Asch 1995, Jecker and Jonsen 1995, Michels 1994); resource allocation as a “lifeboat” (I, Campbell 1995; III, Kaveny 1994); medical care as “shares” in a community health (III, Nelson 1992, Ford and Kissick 1995; II, Anderson 1993); and rationing as traveling through the desert with one jug of water for two people (a story from the Halachah literature) (I, Zoloth-Dorfman 1995). [End Page 81]Such metaphors do not promote any one “theory of justice” but rather draw from the work of a number of bioethicists as well as from theological, sociological, economic, and business literature. The five major conceptions of justice that are referenced most frequently are: “(1) a libertarian conception, which takes liberty to be the ultimate political ideal; (2) a socialist conception, which takes equality to be the ultimate political ideal; (3) a welfare liberal conception, which takes contractual fairness or maximal utility to be the ultimate political ideal; (4) a communitarian conception, which takes the common good to be the ultimate political ideal; and (5) a feminist conception, which takes a gender-free society to be the ultimate political ideal” (I, Sterba 1995).The use of new metaphors also draws on expanded concepts of “health.” “As health care is currently practiced, the most powerful symbols for public and professional alike are those that promise the defeat of time” (I, Campbell 1995). When medical care is perceived as an unrelated series of individual cures, the fact that health care resources are finite cannot be addressed.Reflections concerning the difficulties in limiting the use of health care resources have an ancient lineage and reveal a tight bond with the obsession to postpone death at all costs. Plato in Book 3 of the Republic recognizes the quandary of infinite expectations and finite resources that characterizes the challenge of health care choices. (I, Engelhardt 1996)The proliferation of expensive medical technologies and the loss of autonomy by health care professionals further complicates perceptions of the crucial issues at hand. Some have said that Americans place too much emphasis on individualism to address these issues. Daniels et al. believe that this is too pessimistic a view and that the American commitment to protecting equal opportunity for all provides a firm basis for developing a public consensus on what is fair in health care (III, Daniels, Light, and Caplan 1996). Finally, several authors suggest that the nature of all four principles of medical ethics, not justice alone, must be... (shrink)

En este trabajo se intenta elaborar una indagación epistemológica crítica que contribuya a enriquecer al debate sobre la posibilidad o imposibilidad de abordar los fenómenos de las ciencias sociales y humanísticas de una manera neutral y/o objetiva.. A partir de un enfoque centrado en la teoría post-estructuralista francesa y, más específicamente, en los aportes brindados por el psicoanálisis lacaniano, se concluirá que el psicoanálisis, en su vertiente lacaniana, y retomado de un modo distinto por otros autores, como Zizek, ha mostrado (...) de una manera consistente que este supuesto objetivismo no es más que un imposible. La realidad objetiva no puede ser más que una utopía, en tanto toda realidad es construida por un lenguaje, un orden simbólico, que es contingente y, por lo tanto, relativo. Sin caer en un mero relativismo de los actuales enfoques “posmodernos”, que no exista la Verdad con mayúscula no implica que no existan verdades a medias, “minoradas”, como las denomina Lacan en su obra.Palabras clave: Objetividad, neutralidad valorativa, pos-estructuralismo lacaniano, ciencia sociales y humanísticas.This work tries to elaborate a critical epistemological inquiry that enriches the debate about the possibility or impossibility of approaching social and human science phenomena in a neutral and/or objective way. Starting from a view based on French post-structuralist theory, and more specifically, on contributions from Lacanian psychoanalysis, conclusions will be that psychoanalysis, at least Lacanian psychoanalysis, taken up again in a different way by other authors such as Zizek, has consistently shown that this supposed objectivism is impossible. Objective reality can be no more than a utopia, because all reality is constructed by a language, a symbolic order which is contingent, therefore relative. Without falling into postmodern relativism, the fact that there is no Truth with a capital letter does not imply that there are no truths.Key words: Objectivity, valuative neutrality, Lacanian post-structuralism, social and human sciences. (shrink)

Ordinary equational logic is a connective-free fragment of first-order logic which is concerned with total functions under the relation of ordinary equality. In [AN] (see also [AN1]) and in [Cr] it has been extended in two equivalent ways into a near-equational system of logic for partial functions. The extension given in [Cr] deals with partial functions under two relationships: a relationship of existence-dependent existence and one of existence-dependent Kleene equality. For the language that involves both relationships a set (...) of rules was given that is complete. Those rules in the set that involve only existence-dependent existence turned out to be complete for the sublanguage that involves this relationship only. In the present paper we give a set of rules that is complete for the other sublanguage, namely the language of partial functions under existence-dependent Kleene equality.This language lacks a certain, often needed, power of expressing existence and fails, in particular, to be an extension of the language that underlies ordinary equational logic. That it possesses a fairly simple complete set of rules is therefore perhaps more of theoretical than of practical interest. The present paper is thus intended to serve as a supplement to [Cr] and, less directly, to [AN]. The subject is further rounded out, and some contrast is provided, by [Rob]. The systems of logic treated there are based on the weaker language in which partial functions are considered under the more basic relation of Kleene equality. (shrink)

In resistance training, the use of predicting proximity to momentary task failure, and repetitions in reserve scales specifically, is a growing approach to monitoring and controlling effort. However, its validity is reliant upon accuracy in the ability to predict MF which may be affected by congruence of the perception of effort compared with the actual effort required. The present study examined participants with at least 1 year of resistance training experience predicting their proximity to MF in two different experiments using (...) a deception design. Within each experiment participants performed four trials of knee extensions with single sets to their self-determined repetition maximum and MF. For the first experiment participants used loads equal to 70% of a one repetition maximum performed in a separate baseline session. Aiming to minimize participants between day variability in repetition performances, in the second separate experiment they used loads equal to 70% of their daily isometric maximum voluntary contraction. Results suggested that participants typically under predicted the number of repetitions they could perform to MF with a meta-analytic estimate across experiments of 2.0 [95%CIs 0.0 to 4.0]. Participants with at least 1 year of resistance training experience are likely not adequately accurate at gauging effort in submaximal conditions. This suggests that perceptions of effort during resistance training task performance may not be congruent with the actual effort required. This has implications for controlling, programming, and manipulating the actual effort in resistance training and potentially on the magnitude of desired adaptations such as improvements in muscular hypertrophy and strength. (shrink)

In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work (...) on the bench. This article examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness. (shrink)

Vinit Haksar has written a fairly lengthy book in order to establish a rather simple point : that it is impossible to arrive at an adequate account of justice without judging the objective merit of alternative ways of life. The main target of his argument is John Rawls, whose influential A Theory of Justice purports to sever considerations of justice from those of the human good in precisely this way. Haksar’s argument is also intended, however, as a criticism of the (...) views of such other contemporary liberal theorists as Ronald Dworkin and Robert Nozick. (shrink)

Cases connected with the troubles in Northern Ireland have been tried by a judge sitting without a jury in `Diplock Courts'. Given the symbolic importance of the jury within the common law tradition, this study offers the first systematic comparison of the process of trial by judge alone with that of trial by jury. The authors determine the impact of the replacement of jury trial with trial by a professional judge on the adversarial character of the (...) criminal trial process. (shrink)

us, I go at once to the heart of the subject, taking my stand on these propositions: That the right to cooperate is as unquestionable as the right to compete; that the right to compete involves the right to refrain from competition; that co operation is often a method of competition, and that competition is always, in the larger view, a method of co operation; that each is a legitimate, orderly, non invasive exercise of the individual will under the social (...) law of equal liberty; and that any man or institution attempting to prohibit or restrict either, by legislative enactment or by any form of invasive force, is, in so far as such man or institution may fairly be judged by such attempt, an enemy of liberty, an enemy of progress, an enemy of society, and an enemy of the human race. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:An Ethics of Justice in a Cross-Cultural ContextMichael von BrückThe central thesis of this paper is, primarily, that justice is neither a qualification of actions nor a political expediency, but is an existential reality. This reality is symbolized in different ways depending on religious experience and cultural conditioning. Underlying all concepts and ethics of justice is a dimension of basic insight that is beyond rational quantifying analysis.The semantics of (...) concepts of justice is different in various contexts and meaning systems, that is, in more general political and social contexts and in the rational discourse of philosophy. The general political term for justice is more confusing than helpful for a clear conceptualization; it might be treated more as a symbol in a mythological framework than a concept. In this context justice is defined in terms of what it is not, or metaphorically in differing categories, for example, justice as impartiality, equality. Thus, many programmatic formulae, such as "International Movement for a Just World,"1 express a utopia against the frustration with regard to social, economic, and political conditions and call for action to establish a "just world" without defining what the standard of this action must be in order to qualify as just and what exactly the notion of a "just world" actually might mean conceptually. Certain political actions are condemned from a particular standpoint, but the very foundation of any standpoint remains controversial. "Just" or "unjust" are actions that are determined according to the two standards of an Aristotelian suum cuique and the principle of treating equal cases in equal ways. Here, actions and their results as well as human freedom of action and the respective responsibility are a matter of debate. The problem is how to establish criteria for what is regarded as being "equal."2I suggest that justice can be discussed in two ways: (1) as an agreement or result of negotiation and better insight that is worked out between partners in social processes, and/or (2) as a reflection of the cosmic order, the divine will, or any pre-established harmony that is not negotiable by human beings. Whereas the first assumption is reflected in the theories of Aristotle, Rousseau, John Rawls,3 and others, the second one seems to be one of the basic contents of any religious worldview. Rawls actually constructs his idea of justice as fairness in the line of the familiar theory [End Page 61] of the social contract, following Locke, Rousseau, and Kant. Accordingly, justice is the basic assumption that generates the condition for any further discourse in societies. It is an "original position," an "initial status," the "symmetry of everyone's relations to each other," which, of course, is neither an actual state of historical affairs nor a primitive condition of culture, but a purely hypothetical situation.4 For Rawls, to think justice requires the task to acknowledge interdependencies and mutual dependence of the different factors and actors in societies on the basis of reflexive reason. In religions, however, it is the dharma, the commandment of God, the Tao, or the cosmic harmony or "symmetry" of forces that is the root cause for justice in human relations.In this essay I will not argue any of these positions mentioned above as such but maintain only that any particular discourse depends on communication processes, that is, language and actors. Actors have interests that are mediated through claims. These claims may be compatible or not. However, in both cases they are part of the communication processes itself. And it is in communication that discourses materialize. Therefore, dialogue is the framework for any theory of justice, which may be inclined more to the first or the second position outlined above. Because today, due to economic, political, and cultural circumstances, all discourses are linked to each other, it is in cross-cultural communication and dialogue that a theory of justice has to be worked out. The question is whether justice should be regarded as a precondition for dialogue or a wanted result of dialogue. The hypothesis I want to argue for is that justice is neither only a precondition nor only a result, but that it is the very... (shrink)

Resumen: Este artículo analiza cómo se encadenan los planos de lo ontológico y lo óntico en la Teoría Política del Discurso de Ernesto Laclau. Se concluye que, desde el plano ontológico, la hegemonía constituye una forma político-discursiva de articulación y universalización relativa, precaria, contingente y parcial de los particularismos en significantes vacíos que actúan como puntos nodales. Desde el nivel fenoménico-político, Laclau pone en juego estos conceptos para mostrar el desplazamiento y contaminación discursiva entre lo particular y lo universal en (...) la operación hegemónica, que transforma las identidades políticas y construye un orden comunitario y un nuevo sentido común. Desde el nivel ético-político, la conceptualización de la hegemonía se articula a la construcción discursiva de una estrategia socialista y a una democracia radical. Este proyecto político lucha contra los esencialismos y las formas de explotación y opresión social y por un horizonte de liberación que amalgame las luchas de los grupos subordinados y reconozca las diferencias y particularidades como constitutivas y deseables. La teoría formal del populismo presenta algunas inconsistencias óntico-ontológicas en este esquema. Sin embargo, su sobredeterminación simbólica disuelve las disyunciones tajantes entre la lógica y el análisis histórico-político y entre la forma y el contenido. Ello pone de manifiesto el mutuo anudamiento entre lo óntico y lo ontológico y la centralidad de la noción gramsciana de hegemonía para el análisis político y crítico de fenómenos y procesos históricos contemporáneos.: This article analyzes how the ontological and ontic planes are interconnected in Laclau’s political discourse theory. It is concluded that, on the ontological level, hegemony constitutes a political-discursive form of relative, precarious, contingent and partial universalization and articulation of particularities in empty signifiers that act as nodal points. On the phenomenological-political level, Laclau shows the displacement and discursive contamination between the particular and the universal in the hegemonic operation which transforms political identities and builds a communitarian order and a new commonality. On the ethical-political level, the conceptualization of hegemony is articulated as the discursive construction of a socialist strategy and a radical democracy. This political project fights against essentialisms and forms of exploitation and social oppression of subordinate groups, and in favor of a horizon of liberation that recognizes conflicts and differences as constitutive and desirable. The formal theory of populism presents some ontic-ontological inconsistencies in this scheme. However, its symbolic overdetermination dissolves the disjunctions between logic and historical-political analysis and between form and content. This reveals the mutual interconnection between the ontic and the ontological, and the central relevance of the Gramscian notion of hegemony for the political and critical analysis of contemporary historical phenomena and processes. (shrink)

The International Criminal Court (ICC) is responsible for prosecuting individuals for heinous crimes that take place during civil and/or international armed conflicts, including sexual violence. Prosecuting this crime relies primarily on survivor accounts, but witnesses often fear the psychological effects of giving such testimony, particularly because there is a high risk of retraumatization, a stigma associated with victimhood, and a fear of victim-blaming. Thus, the Court’s Victims and Witness Unit (VWU) puts forth provisions for questioning vulnerable witnesses, requiring, in part, (...) that questioners avoid embarrassing or offending witnesses. Using a discourse analytic approach, this paper examines transcripts from three recent ICC cases dealing with wartime sexual violence—_Bemba, Ongwen_, and _Katanga and Chui—_exploring the discursive strategies employed by prosecutors and defense attorneys in these trials as they navigate arguing their cases before the judges while also tailoring their questions to adhere to the VWU’s provisions. I show that adhering to the provisions often involves relying on euphemistic expressions to discuss rape—which enter the trial discourse through linguistic formulations and reformulations—even though these expressions reflect the language used to discuss consensual sex and not sexual violence. Thus, this method of adhering to the provisions can undermine the prosecution’s case while helping the defense’s. (shrink)

Photo ID 222412412 © US Navy Medicine | Dreamstime.com ABSTRACT In a non-military setting, the answer is clear: it would be unethical to treat someone based on non-medical considerations such as nationality. We argue that Battlefield Triage is a moral tragedy, meaning that it is a situation in which there is no morally blameless decision and that the demands of justice cannot be satisfied. INTRODUCTION Medical resources in an austere environment without quick recourse for resupply or casualty evacuation are often (...) limited. The shortage extends not only to supplies like blood products and drugs, but physicians and other medical personnel. In the midst of a mass casualty scenario, such as a battle that includes intense ground fighting, the medical staff will stretch scarce resources and triage casualties according to specific criteria. Typically, they proceed by providing care for the most severely wounded first, referred to here as conventional triage. At times, though, the staff may reverse the triage so that soldiers with minor wounds can return to the fight. In a mass casualty situation, when medical personnel apply conventional triage and treat casualties from opposing forces, a dilemma may arise. We argue that it can be permissible for military physicians to prioritize their own soldiers over enemy combatants in a mass casualty triage, where reverse triage does not apply. The case we will focus on is as follows: Battlefield Triage: During combat operations on a remote island in the Pacific Ocean, a compatriot soldier and an enemy combatant arrive at the compatriot soldier country’s medical treatment facility. Both have similar gunshot wounds to the abdomen, and they arrive with similar conditions. Both have low oxygen saturation and excessive blood loss. The sole physician only has enough time to stabilize one person. The scenario is brief, and we are aware that medical rules of eligibility will most often dictate how the physician proceeds,[1] but this scenario is useful in setting up the question we focus on in this paper: would it be wrong to favor the stabilization of a soldier just because the soldier is the physician’s compatriot? In other words, can nationality serve as an ethically justified tiebreaker in a situation such as Battlefield Triage?[2] In a non-military setting, the answer is clear: it would be unethical to treat someone based on non-medical considerations such as nationality. The AMA’s Code of Medical Ethics asserts that physicians have “ethical obligations to place patients’ welfare above their self-interest and above obligations to other groups.”[3] The World Medical Association’s Declaration of Tokyo affirms that “no motive, whether personal, collective or political, shall prevail against this higher purpose” of alleviating distress.[4] Physicians are taught early on that triage decisions must be medically indicated and made without consideration of factors such as race, ethnicity, religion, social status, and nationality. They are taught that public trust and obligations of justice grounded in equality demand that only medical indications be considered. But military physicians in a military setting are beholden to obligations, duties, and responsibilities as members of the military, and when these obligations, duties, and responsibilities conflict, as they do in Battlefield Triage, which loyalties win out and why?[5] Critics of partiality on national grounds argue that partiality undermines public trust in medicine and justice because everyone should be treated equally regardless of nationality.[6] Proponents of partiality argue that military obligations supersede equality and that justice requires partiality in such cases.[7] Despite the critics’ disagreement, both agree that there is a morally right, perhaps even blameless, course of action. Drawing on insights from virtue ethics, we argue that Battlefield Triage is a moral tragedy in which justice is unattainable and there is no action without moral cost. The assumption that there is a morally right choice is flawed. We argue that while no decision in this scenario is free from moral blame, there are reasons to favor treating one’s soldiers over enemy combatants. I. The Case Against Partiality There is a common assumption that there is a morally right or just decision in Battlefield Triage. A number of organizations and scholars claim that it is wrong for military physicians to favor their own soldiers on the grounds of nationality or some form of ‘group membership.’ (In a conflict involving service members from multiple nations working as a coalition, a soldier from an allied country may receive the same priority as the US service member due to ‘group membership.’) The World Medical Association’s WMA Declaration of Lisbon on the Rights of the Patient, which was reaffirmed in 2015, posits that, “[i]n circumstances where a choice must be made between potential patients for a particular treatment that is in limited supply, all such patients are entitled to a fair selection procedure for that treatment. That choice must be based on medical criteria and made without discrimination.”[8] This echoes what was set forth in Article 12 of the Geneva Conventions, which states that “[o]nly urgent medical reasons will authorize priority in the order of treatment to be administered.”[9] The argument for impartiality in Battlefield Triage is that every person is morally equal, and equality entails that medical distribution is, “based on a combination of medical need and urgency.”[10] This is in keeping with the bioethical principles that are generally applied.[11] II. The Case for Partiality On the other side, there are arguments that favoritism is the ethically right decision in Battlefield Triage.[12] The argument asserts that members of the military form a morally significant community of friends and participation in these relationships demands partiality. Just as parents have strong ethical duties to their children and not just any children, military personnel have ethical duties to their group, a group that involves an affirmation of mutual aid and support. Some have termed these ‘associative duties. According to Michael Gross, obligations of friendship, care, and solidarity “leave very little room for generally applicable principles of justice that would obligate a medic to treat enemy or non-compatriot wounded ahead of their compatriots.”[13] This is true in Battlefield Triage, but it may also be true even if the enemy’s soldier were more seriously wounded: “the ethics of small group cohesion, largely an ethics of care, mostly replaces the demands of impartial justice.”[14] In a more recent article, Gross explains that preferential treatment is ethically justified based on fighting capability and “the special obligations people owe friends, family, and, no less, comrades-in-arms.”[15] To not show partiality to the US soldier would be morally wrong on the grounds of friendship and mutual care.[16] III. The Moral Tragedy of Battlefield Triage Defenders and critics of Battlefield Triage favoritism based on nationality both frame their position as just or fair. For example, Justin List argues that physicians are “bound to practice medical neutrality,”[17] Marcus Adams denies that physicians “possess special ethical obligations” to enemy combatants because of their profession.[18] These perspectives assume that there is a morally right decision and that justice is attainable. The assumption that there is or can be a morally right Battlefield Triage decision, and we need to put our heads together to figure it out, remains strongly entrenched. However, the facts of the situation should give us pause; there are too many people and too few resources, and this demands a decision-making process that determines who will receive scarce resources. By its very nature, a battlefield triage decision has to be made based on some characteristic or value, a characteristic or value that will inevitably favor some at the expense of others. This is precisely why competing analyses “in the military context struggle to resolve these conflicts satisfactorily.”[19] Drawing on the insights of virtue ethics, we suggest that Battlefield Triage is a moral tragedy. Virtue ethics suggests that morality is about acting virtuously, which is to say that we should do what a virtuous person would do in the situation. Ethics is about figuring out how a just, wise, compassionate, loving, and fair person would act, and then doing that, as one grows in virtue. But life is not always clear cut, and it is possible that virtuous people may find themselves in a moral tragedy, a situation in which, through no fault of one’s own, a person must make a morally objectionable decision. After the action the virtuous person “emerges having done a terrible thing, the very sort of thing that the callous, dishonest, unjust, or in general vicious agent would characteristically do.”[20] Stated differently, a moral tragedy presents a virtuous person with two or more courses of action, all of which have a moral cost.[21] In Battlefield Triage, no matter how the physician goes about deciding, there is going to be defensible concern from those not saved. The fact that there are more people than can be helped fosters competing values in battlefield triage: maximize lives saved, treat people equally, treat the worse off, and support the war effort. Treating people equally may create tension between treating the worse off, maximizing lives saved, and supporting the war effort. Reverse triage is a case in point, as supporting the war effort conflicts with treating the worse off first, as is a fair lottery system since deploying a lottery may not maximize lives saved or support the war effort. There can be reasons why one person is selected over another, to be sure. Yet, there are reasons for making a decision, and that the decision is subject to legitimate moral concern is another. To recognize the moral tragedy of Battlefield Triage is to recognize the impossibility of acting blamelessly in the situation. In this situation, the virtuous military physician is going to have to sacrifice important values such as justice, compassion, and respect for others, even with a defensible criterion in hand. The physician will grieve this sacrifice accordingly. The physician may find her decision difficult or stressful, and rightly so, because of what her circumstances require of her. This kind of moral tragedy results “in actions which betray and violate the rights of persons to whom there may be a strong duty of care. When this happens, it properly triggers an appropriate moral emotion since our moral integrity has been violated and this affects how we think of ourselves and what we have become.”[22] Rather than view her triage decision as the morally superior choice, the virtuous military physician will view her decisions in these circumstances in a different light: it is the least bad option in a terrible situation, and she did something ethically problematic, something that is contrary to her moral character. She deeply regrets the circumstances in which she had to act. IV. Virtue Ethics A virtue ethicist has insight into how one should go about deciding what to do in a moral tragedy, although virtue ethics may not be as helpful as one may hope. The goal of the virtuous military physician in Battlefield Triage is to adopt the best course of action or the action that she feels she ought to do, all things considered. This does not make her choice devoid of serious wrongdoing—a decision must be made, but that does not make it just. The virtuous military physician will approach the situation with courage, responsibility, and insight. She will think about the decision carefully, wisely, and conscientiously; she will weigh the goods and harms of the choices before her, in conjunction with a proper conception of the good life, human worth, and understanding of her obligations to others—including chain of command, fellow soldiers, and the medical community. She is attuned to the value of human life and has a reasonable idea of the various ways her decisions will affect others. She recognizes that she is in this non-ideal situation through no fault of her own: she is not the one fighting in battles; she is serving her country as a physician, whose job it is to save lives, treat everyone justly, and promote military objectives. She regrets the decision she is forced to make in battlefield triage, acting “with immense regret and pain,” Hursthouse explains, “instead of indifferently or gladly.”[23] This is because, no matter what decision is made, the virtuous military physician “does something terrible or horrible,” something she otherwise would not do and is contrary to her values.[24] V. A Resolvable Moral Tragedy Instead of asking whether there is a morally right decision, in which a decision is morally blameless and above reproach, the virtue ethicist asks whether there is a decision with a convincing rationale, knowing that a decision can have a clear rationale but still be morally tragic. It is perfectly reasonable to think that different virtuous persons will arrive at different courses of action: “two virtuous agents, in the same situation,” Hursthouse writes, “may act differently” in irresolvable moral tragedies, in cases in which there is no clear course of action.[25] Because a person must act in a moral tragedy, one goal is to identify reasons for choosing the chosen action. Some decisions are clearly indefensible—treating neither the compatriot soldier nor the enemy combatant in Battlefield Triage would be wrong—and some decisions are more problematic than others. If the military physician selects to treat the soldier because she does not like the enemy combatant’s skin color, such a reason would be deeply problematic. But much of the debate over how to act in a moral tragedy is not over clearly indefensible or problematic criteria. Instead, the literature is largely about different standards or implementations of justice. Some scholars defend nation-impartial triage as right, while others defend nation-aware triage as right, and each argues that the other side is promoting an unjust or otherwise wrong solution to Battlefield Triage. We suggest that Battlefield Triage is a resolvable moral tragedy and that virtue ethics offers convincing reasons to prefer the treatment of the compatriot soldier rather than the enemy combatant on the grounds of national identity. Virtues are integral to living a good life, a flourishing life, but as Aristotle observed long ago, human beings are inherently social, interdependent and interconnected in profound ways.[26] This goes beyond the obvious fact that we need each other to survive day to day (one person makes clothes, another farms, and another makes tools); the claim is that a good or flourishing life depends in large part on one’s social network or community. This is why many of Aristotle’s moral virtues are other facing: justice, friendship, generosity, and magnanimity, to name a few. Courage, a typically self-facing virtue, is understood by Aristotle to be the virtue that regards one’s fear of death in battle, a battle fought on behalf of one’s city.[27] All of this remains true today. Namely, there is an important sense in which our community matters to our lives: it is easier to live a good, flourishing life if one is part of a good, flourishing community. Our community is made up of smaller groups, and it is more accurate to say that we are simultaneous members of different groups within a broader community. A person may be part of a family, friend group, research team, large state university, city, state, and nation. Groups can function well or not, as we all have experienced, and this suggests that there are virtues or excellences that groups can instantiate. Good groups are unified in purpose, with each member doing their duty alongside others for the attainment of that purpose. Good groups manifest solidarity among their members. Although Aristotle does not list solidarity as a virtue, a number of modern-day virtue ethicists have begun examining how group solidarity can be a virtue that contributes to a good or flourishing life.[28] Solidarity is not conceptualized as an individual virtue, a virtue possessed by a person in isolation of others; instead, it is a collective virtue, a virtue that is shared among members of a defined group with particular ends.[29] “A group has solidarity to the extent that its members are disposed to: (1) share values, aims, or goals; (2) care about those values, aims, or goals; (3) act in accordance with those values, aims, or goals; (4) trust the testimony of other group members with respect to those values, aims, and goals; and (5) feel a sense of belonging to the group.”[30] The virtue of collective or group solidarity involves individuals having special concern for each other, shared aims and values, trust, loyalty, and a sense of belonging with these specific others. There is a oneness to the group in the pursuit of a definite goal or purpose, involving mutual support and affirmation of each member. As such, the group has ends and goods above and beyond the good of each individual person. Sometimes solidarity requires personal sacrifice for the collective (for example, a father sacrificing food so his child can eat). The virtue of collective or group solidarity is important to the military and medical community at every level, and for clear reasons. In the military, there is a clear hierarchy of command, unity of purpose and end, mutual trust and support in complex settings, and so on. Soldiers need to know they can count on one another, and solidarity grounds a soldier’s ability to trust others and be assured of mutual aid. In medicine, solidarity maintains self-regulation of the profession, shared values and goals, as well as public support, not to mention that day-to-day operations require physician trust, engagement, and effort toward the ends of clinical care. Physicians need to work together, along with others, in pursuit of health, and disunity is sowed when there is mistrust, selfishness, or disengagement among the healthcare team and organization. Importantly, just as we are all members of various groups and hence may manifest group solidarity in different settings, the virtuous military physician instantiates collective solidarity with both the medical profession and the military. Her dual loyalty contributes to the moral difficulty of acting in Battlefield Triage. The military physician has competing obligations to distinct groups and cannot satisfy all obligations in Battlefield Triage. Solidarity with the military supports the consideration of favoring the soldier for reasons of national identity, whereas solidarity with the medical community does not. Something has to give, which is why it is a moral tragedy. The virtuous military physician, therefore, must weigh the costs of each course of action. To fulfill her obligations to the medical community would require that she does not use nationality and other non-medical considerations in Battlefield Triage. Since the soldier and enemy combatant are equally injured, justice would demand a random process, perhaps a flip of the coin. Although this may satisfy obligations the military physician has to the medical community, this would be costly to the physician’s military group. If word gets out that the physician decides who to treat based on a coin toss, soldiers, families, and citizens may become frustrated and angry. Soldier morale may go down if it becomes known that a coin flip led to the preventable death of a soldier and the saving of an enemy combatant who had killed (or attempted to kill) other soldiers. As Gross highlights, military solidarity involves a mutual aid promise that military personnel promise to help one another.[31] A military physician is part of the military and, as such, is part of the mutual aid promise, which would appear to be violated if the physician flips a coin. Treating a member of one’s own team may be psychologically more beneficial than treating an enemy combatant and may lead to less moral distress.[32] Finally, treating soldiers rather than enemy combatants promotes broader military and social aims, including returning soldiers to health, maintaining unity of purpose, and minimizing community suffering from a soldier’s death. Favoring members of one’s group, that is, triage based on nationality in Battlefield Triage, would fulfill obligations of military group loyalty, which is contrary to the values and duties of medicine. It does not seem as though showing favoritism in this particular situation is very costly to the medical community or general public, but this is because there is recognition that the physician is in the military. Medicine is impartial to non-medical indications partly because of fairness and to promote public trust in medicine. However, Battlefield Triage is unique, as medicine is being practiced in a non-public, wartime setting. In ordinary circumstances, a patient’s identity is irrelevant, and physicians ought not play favorites. Since Battlefield Triage is not an ordinary circumstance, decisions based on patient identity may not undermine public trust in medicine. In addition, it is contestable that fairness in Battlefield Triage requires that no consideration be paid to one’s nationality. Fairness is about giving each person their due, what is owed to them, and the case can be made that soldiers who place themselves in danger for the sake of the common good or a just cause are owed special attention when they suffer harm in the line of duty. In other words, soldiers voluntarily undergo risk to themselves for the greater good, and society owes them for this sacrifice. This plausibly includes preferential treatment in a situation such as Battlefield Triage. So, while the medical community affirms justice demands non-preferential treatment, the military community can affirm the opposite. The demands of fairness are unclear at best or in conflict in this situation: demands of physician justice decry favoritism, while demands of military justice support favoritism. Triage not based on nationality is arguably unfair and triage based on nationality may not undermine public trust, after all. All things considered, there is a clear rationale for favoring nationality-based preferential treatment in Battlefield Triage. Adopting a nationality-based preference in this situation is more defensible than not. This does not make such a decision ethically right or just. Preference based on nationality is the least bad decision, but it is not morally blameless. It involves one in a serious moral wrong, a wrong otherwise avoided and contrary to one’s character. The virtuous military physician is in a situation in which obligations conflict, and we disagree with Gross, who posits that care of fellow soldiers “is important to the near exclusion of all else.”[33] Gross fails to appreciate the collective virtue of solidarity as applied to those in medicine. The military physician has duties to fellow soldiers but also to fellow physicians, to the medical community, and humanity. To favor a soldier on grounds of nationality violates her duties and responsibilities to this latter group. She is involved in a moral tragedy and can only seek the most just action given the circumstances, yet, at least in virtue ethics, the action remains far from blameless. CONCLUSION We argue that Battlefield Triage is a moral tragedy, meaning that it is a situation in which there is no morally blameless decision and that the demands of justice cannot be satisfied. As such, the virtuous military physician incurs a moral cost to acting as she does—there is a moral residue. However, despite being a moral tragedy, there are clear reasons to act in favor of treating one’s own, considering group solidarity. As such, these kinds of tragedies are resolvable: virtuous military physicians should favor treatment of their own, although they would do so with sorrow. - [1] Militaries set forth medical rules of eligibility or guidelines used to determine whether a person qualifies for specific medical interventions or treatments in certain circumstances, and these guidelines are binding for a military physician. For example, despite opposition from medical organizations, militaries have adopted reverse triage guidelines for military physicians to follow. For ethical discussion, see Falzone, Elisabeth, P. Pasquier, C. Hoffmann, O. Barbier, M. Boutonnet, A. Salvadori, A. Jarrassier, J. Renner, B. Malgras, and S. Mérat. "Triage in military settings." Anaesthesia Critical Care & Pain Medicine 36, no. 1 (2017): 43-51. https://doi.org/10.1016/j.accpm.2016.05.004 [2] There are issues that are related to this, including the triage of civilians and allied soldiers. We set related issues aside for purposes of this paper [3] American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, 2004–2005 ed. (Chicago, IL: AMA, 2004), 300. [4] American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, 2004–2005 ed. (Chicago, IL: AMA, 2004), 300. [5] This is termed the “dual loyalty” dilemma in military medicine and has been described at length elsewhere: Institute of Medicine (US) Board on Health Sciences Policy. Military Medical Ethics: Issues regarding Dual Loyalties: Workshop Summary. Washington (DC): National Academies Press (US); 2008. Toward a Framework for Resolving Dual Loyalties. Available from: https://www.ncbi.nlm.nih.gov/books/NBK214853/ [6] See Kenneth G. Swan and K.G. Swan, Jr., “Triage: The Past Revisited,” Military Medicine 161:8 (1996): 448–452. https://doi.org/10.1093/milmed/161.8.448; Jerome A. Singh, “American Physicians and dual loyalty obligations in the ‘war on terror,’” BMC Medical Ethics 4.4 (2003): 1–10. https://doi.org/10.1186/1472-6939-4-4; Beam, Thomas E. "Medical Ethics on the Battlefield." Military Medical Ethics: Sect. IV. Medical ethics in the military. Medical ethics on the battlefield: the crucible of military medical ethics 2 (2003): 369-402; Hereth, Blake. "Health justice for unjust combatants." Journal of Military Ethics 20, no. 1 (2021): 67-81. https://doi.org/10.1080/15027570.2021.1949782. [7] See Adams, Marcus P. "Triage priorities and military physicians." In Physicians at war: The dual-loyalties challenge, pp. 215-236. Dordrecht: Springer Netherlands, 2008. Gross, Michael L. "Comradery, community, and care in military medical ethics." Theoretical medicine and bioethics 32 (2011): 337-350. https://doi.org/10.1007/s11017-011-9189-6. Gross, Michael L. "The limits of impartial medical treatment during armed conflict." In Military medical ethics for the 21st century, pp. 71-84. Routledge, 2016. [8] World Medical Association, WMA Declaration of Lisbon on the Rights of the Patient. 5 December 2022, https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/ [9] Geneva Convention for the Amelioration of the Condition of Wounded, Sick in Armed Forces in the Field. 12 August 1949. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.30_GC-I-EN.pdf. [10] List, Justin M. "Medical neutrality and political activism: physicians' roles in conflict situations." In Physicians at war: The dual-loyalties challenge, pp. 237-253. Dordrecht: Springer Netherlands, 2008. 240 [11] Beauchamp, T., and J. Childress. 2013. Principles of Biomedical Ethics, 7th ed. Oxford, United Kingdom: Oxford University Press. [12] Adams, Marcus P. "Triage priorities and military physicians." In Physicians at war: The dual-loyalties challenge, pp. 215-236. Dordrecht: Springer Netherlands, 2008. [13] Gross, "Comradery, community, and care in military medical ethics," 347. [14] Gross, “Comradery, community, and care in military medical ethics,” 349. [15] Gross, Michael L. "When medical ethics and military ethics collide." Narrative inquiry in bioethics 13, no. 3 (2023): 199-204. 202 https://dx.doi.org/10.1353/nib.2023.a924191 [16] Our argument draws on virtue ethics, from which care ethics derives, and it is worth clarifying how our argument relates to Gross’s. We do not think that the virtue of friendship grounds triage decisions, for we think it is unlikely that the physician and wounded soldier are friends. Instead, as explained below, we think the collective virtue of group solidarity better captures the moral significance of group loyalty and that Gross would agree with us. But since military physicians are part of distinct groups, with competing obligations, the military physician will be forced to sacrifice a value in battlefield triage cases. In other words, we think Gross downplays the dual group membership of a military physician. [17] List,”Medical neutrality and political activism,” 250. [18] Adams,”Triage priorities and military physicians,” 235. [19] London, Leslie, Leonard S. Rubenstein, Laurel Baldwin-Ragaven, and Adriaan Van Es. "Dual loyalty among military health professionals: human rights and ethics in times of armed conflict." Cambridge Quarterly of Healthcare Ethics 15, no. 4 (2006): 381-391. 383. [20] Hursthouse, R. On Virtue Ethics. OUP 1999. 74 [21] Nussbaum, Martha C. "The costs of tragedy: Some moral limits of cost-benefit analysis." The Journal of Legal Studies 29, no. S2 (2000): 1005-1036, 1007. [22] De Wijze, S. (2005). Tragic-remorse–the anguish of dirty hands. Ethical theory and moral practice, 7(5), 453-471, 457. https://doi.org/10.1007/s10677-005-6836-x [23] Hursthouse, 73 [24] Hursthouse, 81 [25] Hursthouse, 72 [26] Aristotle, Politics 1253a8. Reeve, C. D. C., Indianapolis: Hackett Publishing Co., 2017 [27] Aristotle, Nicomachean Ethics. III.6.114a, 34-35. 2002, Nicomachean Ethics, Christopher Rowe (trans.), Oxford: Oxford University Press [28] Byerly, T. Ryan, and Meghan Byerly. "Collective virtue." The Journal of Value Inquiry 50, no. 1 (2016): 33-50. https://doi.org/10.1007/s10790-015-9484-y; Federico, Veronica. "Conclusion: solidarity as a public virtue." Solidarity as a Public Virtue (2018): 495-542. https://doi.org/10.5771/9783845290058. Rehg, William. "Solidarity and the common good: An analytic framework." Journal of Social Philosophy 38, no. 1 (2007): 7-21. https://doi.org/10.1111/j.1467-9833.2007.00363.x [29] Byerly and Byerly. "Collective virtue." 43 [30] Battaly, Heather. "Solidarity: Virtue or vice?." In Social virtue epistemology, pp. 303-324. Routledge, 2022. 304 [31] Ibid., 2011: 341 [32] It might be thought that displaying altruism by helping an enemy combatant at the expense of one’s fellow soldier may be psychologically satisfiying. For evidence that military physicians find it difficult to treat enemy combatants, see Lundberg, Kristina, Sofia Kjellström, Anders Jonsson, and Lars Sandman. "Experiences of Swedish military medical personnel in combat zones: adapting to competing loyalties." Military medicine 179, no. 8 (2014): 821-826. https://doi.org/10.7205/MILMED-D-14-00038. Lamblin, Antoine, Clément Derkenne, Marion Trousselard, and Marie-Ange Einaudi. "Ethical challenges faced by French military doctors deployed in the Sahel (Operation Barkhane): a qualitative study." BMC Medical Ethics 22 (2021): 1-13. https://doi.org/10.1186/s12910-021-00723-2 [33] Ibid., 2011: 344. (shrink)

Traditional just war doctrine holds that political leaders are morally responsible for the decision to initiate war, while individual soldiers should be judged solely by their conduct in war. According to this view, soldiers fighting in an unjust war of aggression and soldiers on the opposing side seeking to defend their country are morally equal as long as each obeys the rules of combat. Revisionist scholars, however, maintain that soldiers who fight for an unjust cause bear at least some responsibility (...) for advancing an immoral end, even if they otherwise fight ethically. This article examines the attitudes of the American public regarding the moral equality of combatants. Utilizing an original survey experiment, we find that the public's moral reasoning is generally more consistent with that of the revisionists than with traditional just war theory. Americans in our study judged soldiers who participate in unjust wars as less ethical than soldiers in just wars, even when their battlefield conduct is identical, and a large proportion supported harsh punishments for soldiers simply for participating in unjust wars. We also find, however, that much of the American public is willing to extend the moral license of just cause significantly further than revisionist scholars advocate: half of the Americans in our survey were willing to allow an unambiguous war crime—a massacre of innocent women and children—to go unpunished when the act was committed by soldiers fighting for a just cause. Our findings suggest that incorporation of revisionist principles into the laws of war would reinforce dangerous moral intuitions encouraging the killing of civilians. (shrink)

In a new integration, we show that the visual-spatial structuring of time converges with auditory-spatial left–right judgments for time-related words. In Experiment 1, participants placed past and future-related words respectively to the left and right of the midpoint on a horizontal line, reproducing earlier findings. In Experiment 2, neutral and time-related words were presented over headphones. Participants were asked to indicate whether words were louder on the left or right channel. On critical experimental trials, words were presented equally loud binaurally. (...) As predicted, participants judged future words to be louder on the right channel more often than past-related words. Furthermore, there was a significant cross-modal overlap between the visual-spatial ordering and the auditory judgments , which were continuously related. These findings provide support for the assumption that space and time have certain invariant properties that share a common structure across modalities. (shrink)

This book argues that the risk of harm in armed conflict should be divided equally between combatants and enemy non-combatants. International law requires that combatants in war take 'all feasible precautions' to minimise damage to civilian objects, injury to civilians, and incidental loss of civilian life. However, there is no clear explanation of what 'feasible precautions' means in this context, or what would count as sufficiently minimised incidental harm. As a result, it is difficult to judge whether a particular (...) war or offensive actually satisfies this requirement. Just war theorists often consider it common sense that merely not intending to harm innocent civilians is not sufficient, but there is little clarity in the literature regarding what this means. One crucial question that is almost always overlooked is that of what the appropriate baseline distribution of risk should be. This book defends the Minimal Harm Requirement, which states that combatants should make an effort to reduce merely foreseen harm to enemy non-combatants to the lowest reasonable level. In order to assess which risk impositions are reasonable, and which are not, an egalitarian baseline should be adopted, suggesting that other things being equal risk of harm should be distributed equally between just combatants and unjust non-combatants. This book will be of much interest to students of just war theory, ethics, security studies, and international relations. (shrink)

This essay does not directly address organ transplantation or even issues of justice, fairness, or equality in access to organs for transplantation. Instead, it engages a higher-order question: the justice of coercively and globally imposing any particular contentfull view of justice, fairness, and/or equality under circumstances that would violate peaceable, consensual choice. It is argued that state coercion, as in the prohibition of the sale of organs or the coercive imposition of equal access to transplantations or health care, (...) is unjust when there are insufficient grounds to establish with certainty the canonical normative character of the particular account of justice, fairness, or equality, as well as the warrant for the use of coercive force to impose such an account. (shrink)

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

This study aimed to investigate whether the ordinal judgments of high math-anxious and low math-anxious individuals differ. Two groups of 20 participants with extreme scores on the Shortened Mathematics Anxiety Rating Scale had to decide whether a triplet of numbers was presented in ascending order. Triplets could contain one-digit or two-digit numbers and be formed by consecutive numbers, numbers with a constant distance of two or three or numbers with variable distances between them. All these triplets were also presented unordered: (...) sequence order in these trials could be broken at the second or third number. A reverse distance effect of equal size was found in both anxiety groups. However, HMA participants made more judgment errors than their LMA peers when they judged one-digit counting ordered triplets. This effect was related to worse performance of HMA individuals on a symmetry span test and might be related to group differences on working memory. Importantly, HMAs were less accurate than LMA participants at rejecting unordered D2 sequences. This result is interpreted in terms of worse cognitive flexibility in HMA individuals. (shrink)

Math anxiety results in a drop in performance on various math-related tasks, including the symbolic number ordering task in which participants decide whether a triplet of digits is presented in order (e.g. 3-5-7) or not (e.g. 3-7-5). We investigated whether the strategy repertoire and reaction times during a symbolic ordering task were affected by math anxiety. In study 1, participants performed an untimed symbolic number ordering task and indicated the strategy they used on a trial-by-trial basis. The (...) use of the memory retrieval strategy, based on the immediate recognition of the triplet, decreased with high math anxiety, but disappeared when controlling for general anxiety. In the study 2, participants completed a timed version of the number order task. High math-anxious participants used the decomposition strategy (e.g. 5 is larger than 3 and 7 is larger than 5 to decide whether 3-5-7 is in the correct order) more often, and were slower in responding when both memory- and other decomposition strategies were used. Altogether, both studies demonstrate that high-math anxious participants are not only slower to decide whether a number triplet is in the correct order, but also rely more on procedural strategies. (shrink)

This article discusses the ways in which the ambiguous concept of equality has been used in the British debate regarding the financing of political election campaigns. It identifies three concepts of equality commonly used in that debate: ‘equality of arms’ between political parties, ‘equality of influence’ between citizens, and ‘equality of access’ to the so‐called ‘marketplace of ideas’. The article than discusses each of these concepts of equality in greater detail, and, in doing so, (...) identifies four broader principles underlying the use of these concepts in the election financing debate. The article concludes that, although the language of equality is used often and with great effect in the election financing debate, the concepts of equality being invoked are rarely independently valuable concepts. Instead, the concepts of equality used are valued in the election financing debate because they promote one of the four underlying principles. These principles themselves, however, involve complex questions of democracy and distributional fairness, and are not uncontroversial. I thus suggest that future debates regarding election financing could be enhanced by a more direct discussion of the merits of these underlying principles. (shrink)

Is the family subject to principles of justice? In "A Theory of Justice", John Rawls includes the (monogamous) family along with the market and the government as among the, "basic institutions of society", to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes (...) to the family, and in particular its impact on fair equal opportunity, (the first part of the Difference Principle, Rawls' second principle of justice), he abandons the priority of justice. I also argue that he is right to do so. -/- The central argument is simple. As Rawls admits, what family one is raised by profoundly affects one's life chances: a child raised by a family has far greater life chances on every dimension than one raised in a poorer family that may lack books, education, and time to give the child attention. But the prevailing family arrangements in the industrialized West, assigning children to be raised by their biological parents, is guaranteed to perpetuate this injustice. While Rawls says an unjust institution in the basic structure of society, in which he includes the family, must be, "reformed or abolished," he refrains from calling for the reform or abolition of the family. We must simply work around it to compensate for the injustices he admits it involves. And this despite the fact that alternative arrangements involving communal child-rearing (Plato) or assigning children to those best qualified to raise them (Rousseau) are common in the philosophical literature. Moreover, the practice of having children raised by their biological parents is a relatively recent one, at least in the West, where, before the late 18th century, fostering-out or apprenticeship arrangements were normal and expected for both rich and poor for centuries. -/- Much of the paper is devoted to fine-grained textual analysis of Rawls' attempts to avoid the devastating implications of this argument for his theory of justice -- much of which are stated only in the original edition of "A Theory of Justice" and simply deleted, without substitution by anything better, in the second edition. In the end, Rawls has no way out. He cannot keep the priority of justice, fair equality of opportunity, and the monogamous family in which children are raised by their biological parents. As he admits, these are mutually inconsistent. -/- In the final part of the paper, I argue that Rawls should give up on the priority of justice. While child-rearing by the biological parents is a historical anomaly, in the real modern world it would be politically unfeasible to institute Platonic, Rousseauean, or similar legislation that purportedly assigned children to those best able to raise them, regardless of biological relationship. Since Rawls is committed to principles of political stability and feasibility, as he should be, and since ought implies can, such proposals are off the table. I concur with Rawls that we must work around this injustice, even those there are more just arrangements available in principle. But the cost of this -- less high than Rawls suggests -- is abandoning the principle of the priority of justice. Justice is one of a number of considerations that we must or may balance in deciding on the best attainable social relations. It is not a trump. However, this comes a great cost for Rawls: he must also abandon the lexical ordering of principles of justice or, in general, right or good principles of social order, in favor of the messy intuitionist balancing that his theory is designed to avoid. -/- One feature of the paper that is worth independent attention is a discussion of Marx's rejection of justice in the Critique of the Gotha Program, which I explicate, and urge, without adopting it, that it has a great deal more force than is widely understood. (shrink)

When distributing an indivisible harm or benefit between multiple individuals, all of whom have an equal claim to avoid the harm or receive the benefit, it is commonly thought that one should hold a lottery in order to give each claimant an equal chance of winning. Moreover, it is often said that, by holding a lottery, one makes the resultant outcome inequality between those who receive the harm or benefit and those who do not less unfair than it would otherwise (...) have been. The stated view – the ‘egalitarian mixed view’ – claims that the unfairness of a brute luck ex post distribution is a function of both the degree of inequality in the ex post distribution itself, and the degree of inequality in the ex ante distribution of chances from which it is derived. Versions of the view have been prominently endorsed by a number of authors, including Arneson, Broome, Diamond, Lang, Otsuka, Parfit, and Temkin. The appeal of the view is linked to its apparent promise to accommodate intuitions that have been thought to threaten views which link the fairness of an outcome either solely to the ex ante distribution or solely to the ex post distribution. I argue, to the contrary, that the egalitarian mixed view is mistaken. In particular, I argue that the distinction at the heart of the view – that between outcomes and changes to probabilities – is morally arbitrary at best and incoherent at worst. I consider possible responses to the charge and find them wanting. I note that the failure of the egalitarian mixed view has significant consequences for policy, including most importantly for how we should interpret the goal of fair equality of opportunity. (shrink)

Normative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject (...) is understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Drawing on the 1969–1970 trial of eight radical activists accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago, the article argues for a performative re-conceptualization of sovereignty, the subject, and the law as indeterminate, unpredictable, and open-ended discursive formations. The article demonstrates how the accused, working with and against legal doctrines, norms, and discourses, rethought normative conceptions of sovereignty, law, and subjectivity as contingent power-knowledge constellations that are open, unpredictable, and un-closable. (shrink)