RIGHT TO SILENCE-UK, U.S, FRANCE, and GERMANY SALLY RAMAGE (TRADE MARK REGISTERED) WIPO Orchid ID 0000-0002-8854-4293 Pages 2-30 Current Criminal Law, Volume 1, Issue 2, -/- Sally Ramage, BA (Hons), MBA, LLM, MPhil, MCIJ, MCMI, DA., ASLS, BAWP. Orchid ID 0000-0002-8854-4293 Publisher & Managing Editor Criminal Lawyer series [1980-2022](ISSN 2049-8047) Current Criminal Law series [2008-2022] (ISSN 1758-8405) and Criminal Law News series [2008-2022] (ISSN 1758-8421). Sweet & Maxwell (Thomson Reuters) (Licensed Annotator of UK Statutes) in annual law books Current Law (...) Statutes Annotated, (2006, 2009, 2010 editions) (sole and separate S&M contracts) for 7 UK Criminal Justice Statutes: UK Safeguarding Vulnerable Persons Act 2006; UK International Development Act 2006; UK Fraud Act 2006; UK Policing and Crime Act 2009, UK Local Democracy Act 2009; UK Bribery Act 2010; and UK Crime and Security Act 2010. TradeMark SALLY RAMAGE ® (2005-2025) in the UK, 2401827; WIPO TradeMark SALLY RAMAGE® 900614; USA TradeMark 3,440,910) (2008-2028). WARNING: The doing of an unauthorized act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. -/- ABSTRACT The privilege of the right to silence can be traced back to the 12th century, becoming more developed in later centuries. -/- Table of cases European Court of Human Rights Deweer v Belgium [1980], Eckle v Germany [1982], DN v The Netherlands [1975], Funke v France [1993] 16 EHRR 297, JP v Austria [1989], Kansal v UK [2003] Application No 21413/02 Khan v UK [2000] 31 EHRR 45, Saunders v UK [1997] 23 EHRR 313, Schenk v Switzerland [1991] 13 EHRR 242, and Tora Tolmos v Spain [1995] Table of Cases United Kingdom Brown v Procurator Fiscal, Dunfermline, [2000] , The Times, Feb 14, High Ct Scot.; HM Advocate v Friel [1978] SLT; Lambe v Munster [1882] 10 QBD 110.; Pearse v Pearse [1846] Eng Rep 950 (on truth); Re Pantmaenog Timber Co Ltd [2003] HL; R v Bryce [1992] 95 Cr App Rep 320; R v Canale [1990] 2 All ER 187; R v Fitzpatrick [1995] 4 SCR 154; R v Herbert [1990] 2 SCR 151; R V Hertfordshire County Council, ex parte Green Environmental Industries and another [2000] 1 All ER 773; R v Keenan [1989] Crim LR 720; R v Maguire [1990] Cr App Rep 115; R v Pound, Green and ors [2004]; R v Sang [1979] Crim LR 655; R v Saunders [1986] unreported; R v Seelig, R v Spens [1991] CA; R v Smith [1992] 95 Cr App. R. 191; R v Steen and ors [2003] unreported; R v Walsh [1981] CrimLR 822; R V Ward 96 Cr App R [1993]; R v Weekes [1993] Crim LR 211; R v White [1999] 2 SCR 417; R v Young [2003] unreported; Thompson Newspaper v Canada [1990] 1 SCR 425; Walsh Automation (Europe) Ltd v Bridgeman and ors [2002] EWHC 1344 QB France-Law France 1789 Declaration des driots de l‟homme et du citoyen 1808 Code d ‟instruction criminelle 1946 Constitution 1958 Code de procedure penale 2000 Penal Code Germany-Law Germany 1871 Criminal Code 1877 Criminal Procedure Code (St PO) 1877 Judicial Organisation Law 1949 Constitution 1975 Criminal Code 1998 Criminal Code Table of Cases Germany Germany BGH Admissibility of secret tape recordings judgement 14 June 1960, in BGHSt 14, 358 BGH Lie detector judgement 16 Feb 1954, in BGHSt 5, 332. BberfG Decision concerning the applicability of ne bis in idem 31 March 1987, in BberfGE 75,1; BGH Sweeping deception of suspect judgement 24 August 1988, in BGHSt 36, 328. BGH Judgement 24 August 1993, in BGHSt 39, 305 Table of Cases United States United States of America California v Byres [1971] 402 U.S. 424; Fisher v United States 475 U.S. 391 [1986]; Griffin v California [1965] 380 US 609 [; Hoffman v United States [1950] 341 U.S. 479; Supreme Court Baldwin v NY, 399 US 143 [1970]; Supreme Court Chavez v Martinez , U.S. 123 [2003]; Supreme Court Doyle v Ohio, 426 U.S. 610 [1976]; Supreme Court Escobedo v Illinois, 378 U.S. 478 [1964]; Supreme Court Giglio v US, 405 U.S. 150 [1972] Supreme Court Harris v NY, 401 U.S. 222 [1971]; Supreme Court Kirby v Illinois, 406 U.S. 682 [1972]; Supreme Court Miranda v Arizona, 384 U.S. 436 [1966]; Supreme Court Moore v Illinois, 408 U.S. 768 [1972]; Supreme Court Moran v Burbine, 475 U.S. [1986]; Supreme Court Orzoco v Texas, 324 U.S.24 [1969]; Supreme Court US v Hale [1975] 422 US 17; Supreme Court US v Leon, 468 U.S. 897 [1984]; Supreme Court US v Salerno, 481 U.S. 739 [1987]; Twining v New Jersey 211 US 78 113 -/- . (shrink)

The elections and political parties are necessary ingredients of democratic governance. Elections are a necessary condition of representative democracy. In representative democracy citizens participate in politics primarily by choosing political authorities in competitive elections. Elections, hence, are a necessary and crucial instrument to make democracy work. In India, free and fair elections are held at regular intervals as per guidelines of the constitution and the Election Commission. To make them free of flaws it is essential to reform them from (...) time to time. Electoral reform means introducing fair electoral systems for conducting fair elections. It also rejuvenates the existing systems to enhance and increase the efficiency of the same. Following the demands of electoral reforms several committees were being set up. Some of the measures like reduction of voting age and anti defection law are appreciable but there are other vital areas in election field completely neglected. This paper will evaluate about different attempts made for electoral reforms in India. Different challenges before the Election Commission are also been discussed, also how it can be made effective as suggested by Commission in India will be presented. A comparative analysis with other democratic countries like U.S.A and U.K. is added to it. (shrink)

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason-giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political reasons (...) on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts. (shrink)

I argue that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. This is a matter of mutuality of obligation. The U.S. claims the authority to hold all people accountable for respecting certain laws, such as the law of war as defined in the Military Commissions Act. Accordingly, it must accord them basic legal rights in return. At the same time, I argue, contra Benjamin Wittes, that this would not lead to absurdly opening the (...) courthouse doors, nor does it require abandoning principle to keep the flood of litigation reasonably contained. Not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way. (shrink)

A central question that arises when interpreting the U.S. Constitution is which theory of interpretation is the best? In his recent book, “How to Interpret the Constitution,” Cass Sunstein reviews various theories of constitutional interpretation currently in vogue and then offers what he believes would be the best approach going forward. In this Article, I want to take up a more basic question presupposed by the very idea of a theory of interpretation. That is, whether it is even (...) possible to arrive at more than a provisional understanding of what would be the best interpretation in any given area of study, including constitutional law. That said, I do believe some of the interpretations suggested by Cass Sunstein and elsewhere by myself and others to be more persuasive than most others, even if only partially so. For, as Sunstein himself points out, no theory seems perfect to figure out the Constitution’s meaning in every possible world in which we could imagine it to exist. So, we best just focus on our own world or what we take to matter in our world. In keeping with this idea, I plan to begin by looking first at how we might interpret the world around us based on our past experiences by considering a somewhat imaginative recent experience of my own. Next, I consider some recent studies in the neurosciences and a previous but highly influential article by the philosopher Donald Davidson concerning conceptual schemes and whether we could ever hope to make any sense of a scheme radically different from our own. Here it should be pointed out that I will use the word “scheme” when referring to a very broad system of thought for which there may not be much outside, versus when I use the word “framework,” as referencing something far narrower than a whole system of thought, even if what is referenced might purport to be a significant part of a still larger system. My goal is to eventually adopt John Rawls’ public reason method to separate out non-workable systems of thought as might be part of a particular religious or philosophical tradition that cannot be easily tied to any other system of thought easily imagined within a pluralistic society. I plan to do this by relating how Rawls’ public reason might allow for the creation of a moral interpretation of the Constitution adopting the moral theory of Alan Gewirth. The latter I adopt because its grounding does not presuppose any prior moral or religious framework. I then apply that interpretative method to five cases Sunstein believes are fixed points in our current constitutional understanding. In short, I plan to isolate out an area of human rights where even very different understandings of the world might be able to meet, while acknowledging that there will still be other areas that simply evade any common connection. I hope what I offer here to be of help for a theory of constitutional interpretation that focuses on morality, without having to compete with various religious frameworks going forward. (shrink)

I think the basic intuition behind textualism correct – that the meaning of a law is fixed by referencing the meaning of its words according to the meaning common to the law’s ratifiers. However, even if true, it does not follow that interpretation of a law goes through the original ratifiers. Rather, a citizenry continually ratifies the laws to which it subjects itself, and as the meanings of those words change over time, so will those laws. Concerning, say, the U.S. (...) Constitution, though the text may be very nearly the same now as in the 18th century, a different constitution is in effect. (shrink)

Sometimes constitutions fail. The unprecedented election of Donald Trump, a populist insurgent who lacks the prior political experience or military service of all presidents before him, is such a sharp break in American historical experience that it raises questions as to whether something is deeply amiss with the constitutional order. Constitutional failure is not uncommon. A path-breaking global study of national constitutions shows that on average, they last only nineteen years. The U.S. Constitution is an uncommon outlier and, as (...) such, is accounted by many a long-running success story. But could a bell be tolling for American constitutionalism? In this Essay, I assess the meaning of Trump’s shocking rise for the future of our constitutional order. The shock, of course, was not the election of a Republican president. There have been many Republican presidents since Lincoln, each making their own distinctive contribution to the American tradition. Yet, there are good reasons to think this time around is different. The efficacy and, perhaps, stability of our constitutional order are in question, and we should try to understand why. (shrink)

This paper focuses on Precision Public Health (PPH), described in the scientific literature as an effort to broaden the scope of precision medicine by extrap- olating it towards public health. By means of the “All of Us” (AoU) research pro- gram, launched by the National Institutes of Health in the U.S., PPH is being devel- oped based on health data shared through a broad range of digital tools. PPH is an emerging idea to harness the data collected for precision medicine (...) to be able to tai- lor preventive interventions for at-risk groups. The character of these data concern genetic identity, lifestyle and overall health and therefore affect the ‘intimacy’ of personhood. Through the concept of biological citizenship, we elucidate how AoU and its recruitment tactics, by resonating ‘diversity’, at the same time appeal to and constitute identity, defining individuals as ‘data sharing subjects’. Although PPH is called for; the type of bio-citizenship that is enacted here, has a particular definition, where participant recruitment focuses on ‘citizenship’ in terms of empowerment (front), it is the ‘bio’ prefix that has become the main focus in terms of research. i.e. biosubjectivities vs biocapital. This raises the question whether the societal chal- lenges that often underlie public health issues can be sufficiently dealt with based on the way ‘diversity’ is accounted for in the program. We suggest that the AoU still risks of harming underrepresented groups based on the preconditions and the design of the program. (shrink)

Abstract: In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the (...) principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction comports with fundamental legal principles of causation and intent. Id. at 802. -/- Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part II); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part III); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part IV). -/- My conclusion is that [o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis. -/- Keywords: Equal protection, double effect, intention, physician-assisted suicide, Constitutional Law, Bioethics. (shrink)

Atwater v. Lago Vista is a stand-alone case in Fourth Amendment jurisprudence. Often basic Fourth Amendment jurisprudence builds off other case law. There is a clear buildup regarding the exclusionary rule from Weeks v. United States (1914) to Silverthorne Lumber Co. v. United States (1920) to the expansion of “the fruit of the poisonous tree” doctrine to Mapp v. Ohio (1961) incorporating U.S. Constitution the Fourth Amendment to the states. -/- Likewise, there are cases building up from the incorporation (...) into the states from United States v. Leon (1984) to Arizona v. Evans (1995), expanding Fourth Amendment case law and rights. The cavalcade of these cases somewhat plays a ballet of expanding and contracting the rights in certain circumstances. But the rights build off and limit each other in a cognizable method. -/- Atwater v. Lago Vista is not based on such a cavalcade of cases. It is a stand-alone case at best citing 1600s case law, norms, and rules from before the founding of the United States. Granted, the United States adopted much of the English jurisprudence in the founding of the United States. (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to (...) pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email [email protected] or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

Great Britain subjugated colonists using various power strategies, including dehumanization, misinformation, fear, and other divisive strategies. The Founders described these oppressive strategies as “a long train of abuses and usurpations.” Throughout the Declaration of Independence and the U.S. Constitution, the Founding Fathers imbued the people with hope in a government for the people: one unlike that of the monarchy, which sought to protect itself at the expense of colonists. As a result, the Founders created a government more likely to (...) lead with fairness, demonstrate respect for human dignity, unite Americans as one people, empower citizens through hope, and lead the nation toward security. This socio-ethical framework was an abductive discovery nested within a grounded theory study where it had been concluded that the first principles of democracy were woven within the American founding documents. Using Charmaz’s constructivist grounded theory, the first principles of democracy—knowledge, fairness, human dignity, hope, unity, and security—were used to answer an emerging research question: Are there two democratic frameworks in the founding documents, and how do they differ? The first principles of democracy promote a culture of ethics, resilience, and freedom. Their empowering disposition makes them suitable as a normative framework for a democratic government for the people. (shrink)

Existing social disparities in the United States are inconsistent with the promise of democracy; therefore, there was a need for critical conceptualization of the first principles that undergird American democracy and the genesis of democratic social change in America. This constructivist grounded theory study aimed to construct a grounded theory that provides an understanding of the process of American democratic social change as it emerged from the nation’s founding documents. A post hoc polytheoretical framework including Foucault’s, Bourdieu’s, and Marx and (...) Engels’s theories of power was used to understand power dynamics. The research question focused on understanding the process of democratic social change in America. The sample comprised the Articles of Confederation, the U.S. Declaration of Independence, The Federalist Papers, and the U.S. Constitution. The documents were retrieved from the National Archives and Library of Congress. The data analysis plan incorporated successive comparison, situational and dramaturgical analysis, deconstruction, and perspective taking as strategies. The result was the construction of a democratic social change process theory preceded by five grounded theories: (a) first principles of democracy, (b) first principles of democracy conceptual framework, (c) socio-ethical principles of democracy, (d) demoralizing process, and (e) either-or approach to democracy. Positive social change implications include applying a democratic social change process to future social change endeavors across domains and levels of analysis, a normative framework for a republican form of government, and a tool to analyze and minimize the latent consequences of social justice policies. (shrink)

Benjamin Franklin's social and political thought was shaped by contacts with and knowledge of ancient aboriginal traditions. Indeed, a strong case can be made that key features of the social structure eventually outlined in the United States Constitution arose not from European sources, and not full-grown from the foreheads of European-American "founding fathers", but from aboriginal sources, communicated to the authors of the Constitution to a significant extent through Franklin. A brief sketch of the main argument to this (...) effect is offered in this essay. (shrink)

This essay argues that we should find Crimmigration, which is the collapsing of immigration law with criminal law, morally problematic for three reasons. First, it denies those who are facing criminal penalties important constitutional protections. Second, it doubly punishes those who have already served their criminal sentence with an added punishment that should be considered cruel and unusual (i.e., indefinite imprisonment or exile). Third, when the tactics aimed at protecting and serving local communities get usurped by the federal government for (...) immigration enforcement purposes, they often undermine these original aims or get used in ways that conflict with the U.S. Constitution. These concerns should prompt us therefore either to reject the government’s plenary power over immigration or require the federal government to be more consistent about maintaining the separation between criminal law and immigration law. (shrink)

Since at least the second half of the 19th century, the U.S. federal government has enjoyed “plenary power” over its immigration policy. Plenary power allows the federal government to regulate immigration free of judicial review and thereby, with regard to immigration cases, minimize the Constitutional protections afforded to non-citizens. The justification for granting the U.S federal government such broad powers comes from a certain understanding of sovereignty; one where limiting sovereign authority in cases like immigration could potentially undermine its legitimacy (...) and thereby lead to something like a Hobbesian “state of nature.” One of the potential downsides of allowing the federal government to have such broad powers, however, is the potential to place non-citizens in a situation analogous to what Giorgio Agamben has called the “state of exception.” This situation appears to leave us with the following dichotomy: without something like the plenary power doctrine a political community will end up with a state of nature, but with something like the plenary power doctrine they end up with a state of exception. This essay offers a two-part response to this dilemma. First, it argues that the plenary power doctrine goes against the spirit of the U.S. Constitution, specifically the Fourteenth Amendment. Non-citizens, even undocumented immigrants, are entitled to more Constitutional protections than they currently enjoy. Second, since extending these protections is more consistent with the spirit of the Constitution, I argue that curtailing the federal government’s power over matters of immigration does not undermine its sovereignty, but promotes it. In short, with regard to immigration, it is a false but seductive dichotomy that constitutional democracies must choose between a state of nature and a state of exception. (shrink)

The U.S. Supreme Court regards parental rights as fundamental. Such a status should subject any legal procedure that directly and substantively interferes with the exercise of parental rights to strict scrutiny. On the contrary, though, despite their status as fundamental constitutional rights, parental rights are routinely suspended or revoked as a result of procedures that fail to meet even minimal standards of procedural and substantive due process. This routine and cavalier deprivation of parental rights takes place in the context of (...) divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists—much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. (shrink)

Heralded as the “Father of the Constitution,” James Madison was, besides one of the most influential architects of the U.S. Constitution, a man of letters, a politician, a scientist and a diplomat who left an enduring legacy for American philosophical thought. As a tireless advocate for the ratification of the Constitution, Madison advanced his most groundbreaking ideas in his jointly authoring The Federalist Papers with John Jay and Andrew Hamilton. Indeed, two of his most enduring ideas—the large (...) republic thesis and the argument for government separation-of-powers/checks-and-balances—are contained in there. In his life’s work, Madison fused together the three dominant philosophies in post-revolutionary, antebellum America: Lockean liberalism, classical republicanism and Christian Protestantism. (shrink)

An analysis of some work by the Oaxaca-based Mexican experimental filmmaker and video artist Bruno Varela via the latter’s reading of the late U.S. philosopher Stanley Cavell, especially Cavell’s 1982 essay “The Fact of Television.” This essay focuses on the aesthetic possibilities of the very constitution of the electronic image, based in Cavell’s understanding of television’s dependence on notions of “switching,” as opposed to “succession,” as well as how those notions play a role in Varela’s understanding of what it (...) is to critique communications media while retaining their communal potential. Audiovisual work by Varela discussed in this essay include Línea 3 (2010-11) and Materia oscura (Dark Matter, 2016). (shrink)

The paper aims to show that by abstracting from a specific mythical historical- stylistic context and “ideation” of the notion of the Proto-Slavic deities Perun and Veles, especially in Croatian tradition, symbolic archetypes and abstract notions of form and primordial matter (materia prima) can be extracted from mythical content. We refer to mythical texts and contents according to the reconstructions and materials brought by Radoslav Katičić, and comparative analysis by Mislav Ježić. We distinguish form (1) as that in which identity (...) and possibility of a thing consists, (2) as the reasonableness of judgment and the form of existence, and (3) as the specific structure of a thing, which unites its parts and aspects as a whole and constitutes its internal necessity. These formative notions are relativized and nullified in Veles’ appearances, in which the archetypal notion of primordial matter is encoded. Examples of Platō’s dialogues historically confirm certain aspects of decoding myth as constitutive of philosophy. The above approach also opens a view of the roots of Croatian philosophical thought, which in its genesis can be traced back to Proto-Slavic mythical archetypes. With the implementation of Christianity, the questions of identity, reason and the structure of the whole are raised radically and sharply, as shown by the text of Trpimir’s grant (852). (shrink)

Rules are meant to apply equally to all within their jurisdiction. However, some rules are frequently broken without consequence for most. These rules are only occasionally enforced, often at the discretion of a third-party observer. We propose that these rules—whose violations are frequent, and enforcement is rare—constitute a unique subclass of explicitly codified rules, which we call ‘phantom rules’ (e.g., proscribing jaywalking). Their apparent punishability is ambiguous and particularly susceptible to third-party motives. Across six experiments, (N = 1440) we validated (...) the existence of phantom rules and found evidence for their motivated enforcement. First, people played a modified Dictator Game with a novel frequently broken and rarely enforced rule (i.e., a phantom rule). People enforced this rule more often when the “dictator” was selfish (vs. fair) even though the rule only proscribed fractional offers (not selfishness). Then we turned to third person judgments of the U.S. legal system. We found these violations are recognizable to participants as both illegal and commonplace (Experiment 2), differentiable from violations of prototypical laws (Experiments 3) and enforced in a motivated way (Experiments 4a and 4b). Phantom rule violations (but not prototypical legal violations) are seen as more justifiably punished when the rule violator has also violated a social norm (vs. rule violation alone)—unless the motivation to punish has been satiated (Experiment 5). Phantom rules are frequently broken, codified rules. Consequently, their apparent punishability is ambiguous, and their enforcement is particularly susceptible to third party motives. (shrink)

"Time. Perception. Imagination. Phenomenological Studies on the Question of Time by Augustine, Kant and Husserl". (rus), SPb, 2013. Summary: The monograph is devoted to the key elements of the philosophy of time which determine the necessity of historicism in the analysis of subjectivity. The main idea which defined the composition and design of this work is to trace how the Kantian definition of time as the “form of inner sense” is revealed in Husserl’s phenomenology. The original intention was to understand (...) all three components of this definition. Firstly, what is the inner form, in terms of phenomenology, what are the principles of its constitution and how one can talk about the property of formation? Secondly, what is the meaning of the term "inner" in philosophy, where the division into internal and external has always been a formality, not affecting the essence of things? And finally, what sort of “sensibility” is assumed in transcendental science, bound to become the basis of understanding the history and culture. Presumably, these three Kantian concepts constituted the original plan to analyze the nature of cognitive capabilities of the subject, claiming the gnoseological stage on which the philosophy of time is unfolded. In other words, this work deals with the historical and philosophical analysis of the phenomenological principles by which the concept of time as developed in the twentieth century emerged in the framework of phenomenology. The analyze of the structure of the subject assumes that time, perception and imagination combine in a special type of inner synthesis, which may not be relevant to certain aspects of the method but maintain the basis for a kind of anthropology of time, in continuation of the traditional “inner” contemplation. I consider the inner structure of time with the account of philosophy of St. Augustine, who in many respects not only anticipated the conclusions of phenomenology, but also in his reflections encompassed deeper layers of inner experience. The first chapter is devoted to the doctrine of St. Augustine, in which the theory of time is analyzed in conjunction with the doctrine of “inner word”, specifics of memory representations and notion of inner sense. Additionally, I consider St. Augustine’s reflections about numbers that constitute the basis of aesthetic perception of music (De Musica). Thus, the philosophy of St. Augustine already covers the whole spectrum of anthropology of time, including the question of relation between time and eternity, which remains practically unexplored in phenomenology and serves as the proof of that in interactions between philosophy and theology the tradition remains important. The second chapter of this study is devoted to analysis of the transcendental aesthetic of Kant, which includes all the methodological possibilities of considering the category of time as a formal condition for any experience, consequentially serving as a foundation for further logical development by Husserl, which includes the critical disengagement of the founder of phenomenology from Kant's transcendentalism. Particular attention is paid to the origin of the concept of inner sense, as well as possible interpretations of the function of imagination, which as a transcendental ability remains the most interesting type of synthesis. Handwritten fragments of Kant’s works are also of interest to the character of the imagery as considered in detail by Husserl. Chapter three discusses the phenomenology of inner time consciousness, represented in those important aspects, without which it is impossible to speak about the internal structure of temporal experience - the subjectivity of time, retention, "living present", and the character of synthesis. Particular attention is paid to Husserl's polemics with those representatives of psychological branch in the studies of consciousness, whose ideas greatly influenced the very motivation for creating the method. Apart from the well-known criticism of Brentano, the third chapter highlights the rarely analyzed psychological ideas that motivated the choice of Husserl’s terminology - the "Präsenzzeit” by W. Stern, the "psychological analysis" by A. Meinong, and the “fusion” (Verschmelzung) by K. Stumpf. Chapter four deals with the need to analyze the specifics of image as an element of consciousness and imagery as such, which includes a system of objectified acts. Thus is revealed the very nature of synthetic connections in the acts of consciousness, as well as the presumably imaginative character of the constitution of temporal form. (shrink)

The purpose of this essay is to articulate a specific desideratum for any theory of Latinidad, namely, that there is no adequate conception of Latinx without an attendant conception of Afro-Latinx. In order to be reflective of those whom it purports to describe in the U.S. and elsewhere in the hemisphere, the term Latinx must be plastic enough to encompass the many internal differences, and even antagonisms, between its different constituent parts. Within it, we argue here in particular, it must (...) include its Afro-descended history, which includes not just African-descended people but also a denial of the influences of African-descended culture writ large. Our central claim here, then, is that a certain African-descendedness is constitutive of Latinidad in multiple registers, including history, cultural practices, and social identificatory processes despite Latinidad’s pernicious exclusionary history. (shrink)

Gender-based forms of administrative violence, such as reproductive violence, are the result of systems designed to enact population-level harms through the production and forcible imposition of colonial systems of gender. Settler statecraft has long relied on the strategic promotion of sexual and reproductive violence. Patterns of reproductive violence adapt and change to align with the enduring goals and evolving needs of settler colonial occupation, dispossession, and containment. The U.S. Supreme Court’s recent decision to end the constitutional right to abortion in (...) Dobbs v Jackson is but one instance of this larger pattern. We analyze reproductive and obstetric violence and the structural trauma they produce through the lenses of i) historical continuity and ii) the global architectures of neoliberal settler capitalism in order to connect reproductive rights rollbacks in the U.S. with the expansion of reproductive violence across a world connected by colonial globalization. (shrink)

Arab countries have adopted market economy principles and pursued policies designed to strengthen their economies. The cornerstone of Arab countries' long-term economic objectives has been to increase trade and support economic growth via regional and global integration. To this end, Arab countries are attempting to broaden their engagement in the multilateral trading system by joining the World Trade Organization (WTO). In addition, some Arab countries entered into trade arrangements with the United States (U.S.) to foster economic development, attract investment, and (...) develop peaceful relationship. These trade agreements carry several implications for local economies. (shrink)

The debate about the definition of Latinidad as a social identity has fluctuated between accounts that put it closer to ethnicity or closer to race. We present and defend the claim that the multiplicity of features and experiences of Latinxs in the United States is best accounted for by placing Latinidad in a different theoretical space. We draw from the ecological psychology and enactive literature on affordances to argue that Latinidad can be better understood as a social identity affordance: a (...) multifaceted landscape of possibilities for interaction, to do and to be done unto. We then focus on four areas that are part of the objective factors that have come to constitute Latinidad and which provide reasons to shy away from both race and ethnicity: the facts of mestizaje and hybridization, a vexed relation to the land, the political horizons and histories of this population, and the multiplicity of sensory-based cultural practices of Latinxs. It is precisely the many and deep variations across Latinxs that make social affordances an apt way to conceptualize a social identity whose reality is asserted pragmatically in many aspects of social life in the U.S. (shrink)

Le XI.ème Congrès International de Philosophie Médiévale de la Société Internationale pour l’Étude de la Philosophie Médiévale (S.I.E.P.M..) s’est déroulé à Porto (Portugal), du 26 au 30 août 2002, sous le thème général: Intellect et Imagination dans la Philosophie Médiévale. A partir des héritages platonicien, aristotélicien, stoïcien, ou néo-platonicien (dans leurs variantes grecques, latines, arabes, juives), la conceptualisation et la problématisation de l’imagination et de l’intellect, ou même des facultés de l’âme en général, apparaissaient comme une ouverture possible pour aborder (...) les principaux points de la pensée médiévale. Les Actes du congrès montrent que « imagination » et « intellect » sont porteurs d’une richesse philosophique extraordinaire dans l’économie de la philosophie médiévale et de la constitution de ses spécificités historiques. Dans sa signification la plus large, la théorisation de ces deux facultés de l’âme permet de dédoubler le débat en au moins six grands domaines: — la relation avec le sensible, où la fantaisie/l’imagination joue le rôle de médiation dans la perception du monde et dans la constitution de la connaissance ; — la réflexion sur l’acte de connaître et la découverte de soi en tant que sujet de pensée ; — la position dans la nature, dans le cosmos, et dans le temps de celui qui pense et qui connaît par les sens externes, internes et par l’intellect ; — la recherche d’un fondement pour la connaissance et l’action, par la possibilité du dépassement de la distante proximité du transcendant, de l’absolu, de la vérité et du bien ; — la réalisation de la félicité en tant qu’objectif ultime, de même que la découverte d’une tendance au dépassement actif ou mystique de toutes les limites naturelles et des facultés de l’âme ; — la constitution de théories de l’image, sensible ou intellectuelle, et de ses fonctions. Les 3 volumes d’Actes incluent les 16 leçons plénières et 112 communications, ainsi que les index correspondants (manuscrits ; noms anciens et médiévaux ; noms modernes ; auteurs). Le volume IV des Actes, contenant 39 communications et des index, est publié par la revue " Mediaevalia. Textos e Estudos ", du Gabinete de Filosofia Medieval de l’Universidade do Porto (volume 23, de 2004). Ouvrage publié avec l’appui de l’Universidade do Porto, de la Faculdade de Letras da U.P., du Departamento de Filosofia - F.L.U.P. et de la Fundação para a Ciência e a Tecnologia (Portugal). (shrink)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer from (...) this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

Abstract: The objective of this study was to examine empirically the determinants of job satisfaction levels among community development officer in Oyo State, Nigeria. Due to this, two research questions were formulated and answered. All community development officers across thirty-three local government areas of Oyo state formed the target population. However, fifteen local governments were chosen for the study from the existing number, also, simple random sampling technique which was stratified in nature and operation was used to select seven-hundred and (...) seventy one (771) respondents which cut across three strata (that is three senatorial districts). Structured questionnaire was used to elicit information from the respondents, while descriptive component of statistics was employed to analyse the data generated from the instrument. The empirical findings from demographic attributes of the respondents revealed that the majority of the community development officers participated in the study were female by gender, first degree or Higher National Diploma by qualifications, spent between 4-6 years in service as community development agent, Christian by religious affiliation, and inspector in terms of cadre. Based on the determinants levels of job satisfaction, it was discovered from majority point of view that the current placement in the job, future prospect of the career, availability and accessibility of on-the-job training, favourable working conditions, regular promotion, routine of the job, level of motivation, monthly remuneration among others were some of the determinants of job satisfaction levels among community development officers. The study recommended constant and regular initiation of programmes like on-the-job training, regular payment of wages and salaries, attractive social welfare packages to mention a few for the community development officers regardless of their gender and religious affiliation. (shrink)

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and recognize natural (...) punishment as genuine punishment for legal, specifically constitutional, purposes. Were U.S. courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction if a natural punishment has occurred or foreseeably will occur. A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States. The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment by distinguishing it from nearby notions and dispelling any association with supernatural ideas; second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings. -/- As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served. The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial. The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence. Seeing the time in detention as an instance of natural punishment resolves the Mystery. (shrink)

Are rights to privacy consistent with sexual equality? In a brief, but influential, article Catherine MacKinnon trenchantly laid out feminist criticisms of the right to privacy. In “Privacy v. Equality: Beyond Roe v. Wade” she linked familiar objections to the right to privacy and connected them to the fate of abortion rights in the U.S.A. (MacKinnon, 1983, 93-102). For many feminists, the Supreme Court’s decision in Roe v. Wade (1973) had suggested that, notwithstanding a dubious past, legal rights to (...) privacy might serve feminist objectives, and prove consistent with sexual equality. By arguing that Roe’s privacy justification of abortion rights was directly responsible for the weakness and vulnerability of abortion rights in America, MacKinnon took aim at feminist hopes for the right to privacy at their strongest point. Maintaining that Roe’s privacy justification of abortion is intimately, and not contingently, related to the Supreme Court’s subsequent decision in Harris v. McRae, (1980) MacKinnon concluded that privacy rights cannot be reconciled with the freedom and equality of women, and so can have no place in a democracy.1 In Harris, the Supreme Court held that the State need not provide Medicaid coverage for abortions that are necessary to preserve the health, but not the life, of a pregnant woman, effectively depriving poor women of almost all state aid for abortions.2 Moreover, the Court’s subsequent decision in Bowers v . Hardwick (1986) appeared to confirm the truth of MacKinnon’s observation – though this case concerned gay rights, rather than abortion rights, and occurred several years after MacKinnon’s condemnation of Harris. -/- This paper examines MacKinnon’s claims about the relationship of rights to privacy and equality in light of the reasoning in Harris and Bowers. When we contrast the Majority and Minority decisions in these cases, it shows, we can distinguish interpretations of the right to privacy that are consistent with sexual equality from those that are not. This is not simply because the two differ in their consequences – though they do - but because the former, unlike the latter, rely on empirical and normative assumptions that would justify sexual inequality whatever right they were used to interpret. So while I agree with MacKinnon that the Majority’s interpretation of the right to privacy in Harris is inconsistent with the equality of men and women, I show that there is no inherent inconsistency in valuing both privacy and equality, and no reason why we must chose to protect the one, rather than the other. Indeed, an examination of MacKinnon’s article, I suggest, can help us to see why rights to privacy can be part of a scheme of democratic rights, and how we might go about democratising the right to privacy in future. To avoid confusion I should emphasise that my arguments are of a philosophical, not a legal, nature. Thus, I will be ignoring the specifically legal and constitutional aspects of MacKinnon’s article, and of the Supreme Court decisions, in order to bring their philosophical significance into focus. -/- . (shrink)

Lawrence Nelson (2018) criticizes conscientious objection (CO) to abortion statutes as far as they permit health care providers to escape criminal liability for what would otherwise be the legally wrongful taking of a pregnant woman’s life by refusing treatment (i.e. abortion). His key argument refers to the U.S. Supreme Court judgment (Roe v. Wade 1973) that does not treat the unborn as constitutional persons under the Fourteenth Amendment. Therefore, Nelson claims that within the U.S. legal system any vital interests of (...) pregnant women must always take precedence over fetuses’ interests. While agreeing with the main thesis of the article, we believe that the author’s argument neither vindicates his claim, nor explains why those who believe that fetuses are equally protectable human beings do not have the right to refuse to perform an abortion in lifethreatening emergency circumstances (AE). Therefore, the main aim of our commentary is to outline, by referring to our earlier works on conscientious objection in health care (Z_ uradzki 2016) and cultural exemptions (Ciszewski 2016), a better and universalizable argumentative path that would lead to the same conclusion. (shrink)

There is a growing trend across North America of women being criminalized for their pregnancy outcomes. Rather than being a series of aberrations resulting from institutional failures, we argue that this trend is part of a colonial strategy of administrative violence aimed at women of color and Native women across Turtle Island. We consider a range of medical and legal practices constituting gender-based administrative violence, and we argue that they are the result of non-accidental and systematic production of population-level harms (...) that cannot be disentangled from the goals of ongoing settler occupation and dispossession of Indigenous lands. While white feminist narratives of gender-based administrative violence in Latin America function to distance the places where such violence occurs from the ‘liberal democratic’ settler nation-states of the U.S. and Canada, we hold that administrative forms of reproductive violence against Latin American women are structurally connected to efforts in the U.S. and Canada to criminalize women of color and Indigenous women for their reproductive outcomes. The purpose of these systemically produced harms is to sustain cultures of gender-based violence in support of settler colonial configurations of power. (shrink)

This translation of Enrique Dussel's “‘Ser-Hispano’: Un Mundo en el ‘Border’ de Muchos Mundos” offers an interpretation of hispanos (Latin Americans and U.S. latinos) as historically, culturally, and geographically located “in-between” many worlds that combine to constitute an identity on the intercultural “border.” To illustrate how hispanos have navigated and continue to navigate their complex history in order to create a polyphonic identity, the essay sketches five historical-cultural “worlds” that come together to form the hispanic “world.”.

This chapter criticizes several methods of responding to the techniques foreign powers are widely acknowledged to be using to subvert U.S. elections. It suggests that countries do this when they have a legitimate stake in each other’s political deliberations, but no formal voice in them. It also suggests that if they accord each other such a voice, they will engage as co-deliberators with arguments, rather than trying to undermine each other’s deliberative processes; and that this will be salutary for all (...) parties. It moots several methods for giving nations such a voice, ranging from inviting representatives of foreign powers to participate in debates in each other’s high-level elections, to having representatives of all nations vote in each other’s key elections or legislative bodies, or in international bodies constituted in recognition of the need for binding global deliberation about shared issues. (shrink)

Mass shootings constitute a recurrent and most violent phenomenon in the U.S. and elsewhere. This paper challenges the ready-made, solipsistically contained metanarratives on offer by mainstream media and formal institutions with regard to the psychological antecedents of the perpetrating social actors, while theorizing mass shootings as acts of violence that are systemically inscribed in the foundations of communities. These foundations abide by the logic of sacrifice which is propagated in instances of collective traumatism. It is argued that the cultural trauma (...) that emanates from events of mass shootings, inasmuch as the commemorative events that are performed on regular occasions, constitute re-enactments of the death drive that sustains communities. The cultural analytic deploys against a CDA reading of longitudinal studies on mass shootings, coupled with psychoanalytic discourse analysis, prior to submitting mass shootings to a deconstructive line of reasoning as systemically necessary transcendental violence. Ultimately, it is shown that the intertextual institutional chain that informs the mediatized representation of this social phenomenon merely attains to obliterate and, hence, to propagate cultural traumatism and the sacrificial logic that underpins it. The terms micrometanarrative, parafunction and expropriating ipseity are introduced and operationalized in this context. (shrink)

In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the 5-4 (...) majority, held that “[b]y suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which person or entities are hostile to their interests” (Citizens United vs. Federal Election Commission 558 U.S. 38-9 (2010); emphasis added). Much of the language of the opinion, and some of its reasoning, as this passage illustrates, presupposes that corporations are agents capable of speech, and that it is (at least in part) in the light of this that limitations on political advocacy by corporations are prohibited by the Constitution. -/- While there are other strands in the argument, they are interwoven with the conception of the corporation as agent and speaker, with its voice and its viewpoints. The dissenters on the court objected on precisely this point (among others). Justice Stevens wrote sarcastically in his dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, that “[u]nder the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech” (558 U.S. 33 (2010)). Justice Sotomayor suggested in oral argument that the Court’s century-old practice of treating corporations as persons rests on a conceptual mistake. -/- My concern in this essay is not with the question whether the restrictions violate the Constitution. There are many issues that bear on this which will be outside the scope of my discussion. My concern is with the proper conceptual framework for understanding the agency of corporations and corporate speech, and the role that conceptions of these play in the background of the majority’s reasoning. The issue is legal, but it also has philosophical, conceptual and semantic aspects. It will be the latter aspects, and their potential to shed light on legal reasoning, that are my main focus. An adequate framework requires saying what properly speaking the corporation is, how agency is expressed through the corporation, whose agency it is, centrally whether the corporation is an agent or person in its own right, and in what sense it can be said to be capable of speech. I draw on recent work in collective action theory, particularly with respect to the semantics of collective action sentences (Ludwig 2007) and the analysis of the proxy agency in collective action (Ludwig 2014), to show (i) that corporations are neither genuine agents nor (therefore) capable of engaging in genuine speech, (ii) that consequently the First Amendment does not apply to corporations per se, and (iii) that a better understanding of the mechanisms of corporate agency casts doubt on more indirect arguments for extending the First Amendment to “corporate speech” as well. (shrink)

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this (...) aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation; entangled legal concepts facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. In the paper itself, I demonstrate more fully what it is for a legal concept to be an entangled one and how entanglement supplies guidance in adjudication. I also broach how entanglement in legal concepts and engineered entanglement have significance for legal pedagogy; appellate adjudication; the respective roles of the judiciary, the legislature, and administrative agencies; the erosion of the distinction between so-called public law and so-called private law; and our understanding of the fact/value distinction. -/- Understanding more specifically the nature of the entanglement at work in appellate adjudication requires much closer scrutiny of appellate opinions than we usually give. I examine carefully the background to MacPherson v. Buick and Justice Benjamin Cardozo’s particular re-engineering of ‘negligence’ and ‘duty,’ entangled concepts belonging to the same legal taxonomy. Via this scrutiny, I demonstrate the flaws in the engineering of some concepts in the buildup to MacPherson, and how these flaws led to those concepts’ collapse and ultimately to Cardozo’s re-engineering of ‘negligence’ and ‘duty.’ I also explain why careful understanding of the engineering of entangled legal concepts can make us appreciate that even the most successful of such concepts have within in them the grounds for their own obsolescence. -/- To show that conceptual engineering of entangled concepts occurs outside the context of state common law, I also examine how the U.S. Supreme Court has engineered ‘commerce’, itself an entangled concept. The recent decision regarding the individual mandate in the Affordable Care Act makes this example particularly timely. This secondary example also clarifies the nature of entanglement and engineering it. -/- This article concerns appellate adjudication in any area of law. I maintain that whether we are dealing with private law or public law, common law or statutory law or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and the constraints judges work with when they work with legal concepts that entangle fact and value. (shrink)

Business ethicists should examine not only business practices but whether a particular type of business is even prima facie ethical. To illustrate how this might be done I here examine the contemporary U.S. defense industry. In the past the U.S. military has engaged in missions that arguably satisfied the just war self-defense rationale, thereby implying that its suppliers of equipment and services were ethical as well. Some recent U.S. military missions, however, arguably fail the self-defense rationale. At issue, then, is (...) whether a business supporting these latter missions may not be circumstantially unethical. No it is not, say defense industry advocates, for two principal reasons. For one, this business benefits society at large in numerous ways. And, for another, the organizer of these military missions is a superpower which by its very nature is not subject to the ethical constraints of the self-defense rationale. I dispute both reasons, argue against the second, and conclude that the U.S. military-industrial complex (MIC) is circumstantially unethical. (shrink)

Linden Lab studies massive online game "Second Life" unexpectedly gained worldwide fame after a few years after release. To the surprise of many game has met with great interest, despite the lack of promotional campaigns. It can be assumed that the reason why "second life" reached a wider audience was a special type of offered entertainment. Network game proved to be no longer a game that was known so far, but an example of a mass media, whose central element is (...) a dynamic virtual world which is an extension of our "first" reality. "Second Life" has the potential, which is challenging the widely shared rules could shake the foundations of the social world. This program is currently the most advanced example of a virtual economy. Unlike many other massive online games and their predecessors, this game is entirely based on the principles of virtual property ownership, as well as rules of conduct virtual business and service, and finally also the consumption of goods. Users of the game, just like the person providing the data in the framework of social networking sites maintained in the mainstream of Web 2.0, user-generated content constituting the virtual world, which can trade content with others linden virtual dolars that can be exchanged to real U.S. dollars. The increase in popularity of "Second Life" brings to mind the vision of the possibility of creating a better place to live for many people. Closer analysis of this phenomenon does not allow for such statements. In the following instances will be presented: information about the growth of the global market for online games and its consequences, the distinguishing features of "Second Life" from traditional online games, virtual elements of the impact of economics on social life, the concept of entertainment as a job stream properties Games 2.0 and contentious issues, which produces "second life". ** Masowa gra on-line "Second Life" studia Linden Lab nieoczekiwanie zdobyła sławȩ na całym świecie po kilku latach od premiery. Ku zaskoczeniu wielu tytuł spotkał siȩ z ogromnym zainteresowaniem mimo braku akcji promocyjnych. Można przypuszczać, że powodem dla którego "drugie życie" dotarło do szerszego grona odbiorców był szczególny typ zaoferowanej formy rozrywki. Sieciowa gra okazała siȩ nie być już gr¸a} jak¸a} znano do tej pory, lecz przykładem środka masowego przekazu, którego centralnym elementem jest dynamiczny wirtualny świat stanowi¸a}cy przedłużenie naszej, "pierwszej", rzeczywistości. "Second Life" kryje w sobie potencjał, który podważaj¸a}c podzielane powszechnie reguły może wstrz¸a}sn¸a}ć posadami świata społecznego. Program ten jest obecnie najbardziej zaawansowanym przykładem wirtualnej gospodarki. W odróżnieniu od wielu innych masowych gier on-line i ich poprzedniczek pozycja ta w całości opiera siȩ na zasadach posiadania wirtualnej własności, jak też regułach prowadzenia wirtualnej działalności gospodarczej i usługowej, i wreszcie takiej też konsumpcji dóbr. Użytkownicy gry, podobnie jak osoby udostȩpniaj¸a}ce dane w ramach internetowych serwisów społecznościowych utrzymanych w nurcie Web 2.0, generuj¸a} treści tworz¸a}ce wirtualny świat, treści którymi mog¸a} handlować z innymi pobieraj¸a}c za nie opłaty w wirtualnych dolarach lindeńskich wymiennych na realne dolary amerykańskie. Wzrost popularności "Second Life" przywodzi na myśl wizjȩ możliwości stworzenia lepszego miejsca do życia dla wielu ludzi. Bliższa analiza tego zjawiska nie pozwala już na takie stwierdzenia. W dalszej czȩści wyst¸apienia przedstawione zostan¸a: informacje o wzroście globalnego rynku gier on-line i jego konsekwencjach, cechy odróżniaj¸ace "Second Life" od tradycyjnych gier sieciowych, elementy wpływu wirtualnej gospodarki na życie społeczne, pojȩcie rozrywki jako pracy, właściwości nurtu Games 2.0 oraz sporne kwestie, jakie wywołuje "drugie życie". (shrink)

This essay draws on the work of Jacques Derrida and Angela Y. Davis towards a philosophical resistance to the death penalty in the U.S. I find promise in Derrida’s claim that resistance to the death penalty ought to contest a political structure that founds itself on having the power to decide life and death, but I move beyond Derrida’s desire to consider the abolition of the death penalty without engaging with the particular histories and geographies of European colonialism. I offer (...) a critique of Derrida’s recently published work on the death penalty by engaging with the work of Davis and argue that discussions of state violence in nations that inherit European forms of sovereignty must take seriously the racist violence on which those sovereign powers rely. (shrink)

Quasi-Nelson logic (QNL) was recently introduced as a common generalisation of intuitionistic logic and Nelson's constructive logic with strong negation. Viewed as a substructural logic, QNL is the axiomatic extension of the Full Lambek Calculus with Exchange and Weakening by the Nelson axiom, and its algebraic counterpart is a variety of residuated lattices called quasi-Nelson algebras. Nelson's logic, in turn, may be obtained as the axiomatic extension of QNL by the double negation (or involutivity) axiom, and intuitionistic logic as the (...) extension of QNL by the contraction axiom. A recent series of papers by the author and collaborators initiated the study of fragments of QNL, which correspond to subreducts of quasi-Nelson algebras. In the present paper we focus on fragments that contain the connectives forming a residuated pair (the monoid conjunction and the so-called strong Nelson implication), these being the most interesting ones from a substructural logic perspective. We provide quasi-equational (whenever possible, equational) axiomatisations for the corresponding classes of algebras, obtain twist representations for them, study their congruence properties and take a look at a few notable subvarieties. Our results specialise to the involutive case, yielding characterisations of the corresponding fragments of Nelson's logic and their algebraic counterparts. (shrink)

Environmental studies is a highly interdisciplinary field of inquiry, involving philosophers, ecologists, biologists, sociologists, activists, historians and professionals in public and private environmental organizations. It comes with no surprise, then, that the follow-up to Nelson and Callicott’s original anthology The Great Wilderness Debate (1998) features essays from authors in a broad array of disciplines. While there is considerable overlap between the two volumes, this new version offers forty-one essays, five of which are new additions, organized into four sections. What constitutes (...) wilderness? Is wilderness real or social constructed? What kinds of values are served—recreational, aesthetic, scientific, or others—by protecting wild areas? While many commentators trace these questions back to an exchange in the 1990s between two environmental ethicists, J. Baird Callicott and Holmes Rolston III, the debate over the wilderness idea actually has older roots. At least in the U.S. context, it travels back in time to the earliest part of the twentieth-century, when the American public, politicians and ecologists were pressed to justify why wilderness areas should be set aside in a new National Park system. Since then, the fundamental question fuelling the ‘Great Wilderness Debate’ is whether what is being preserved is actually wilderness. Is there such a thing or place as wilderness, that is, a quintessentially non-human or wild setting untainted by human influence? If so, why do we believe such areas deserve protection? (shrink)

[Collection title in Polish: Prace Naukoznawcze i Prognostvczne].

In the aftermath of World War II, U.S. policy toward the Asian colonies of the European powers followed a simple rule: where the nationalists in a territory were leftist (as in Vietnam), Washington would support the reimposition of European colonial rule, while in those places where the nationalist movement was safely nonleftist (India, for example), Washington would support their independence as a way to remove them from the exclusive jurisdiction of a rival power. At first, Indonesian nationalists were not deemed (...) sufficiently pliable, so U.S.-armed British troops (assisted by Japanese soldiers) went into action against the Indonesians to pave the way for the return of Dutch troops, also armed by the United States. In 1948, however, moderate Indonesian nationalists under Sukarno crushed a left-wing coup attempt, and Washington then decided that the Dutch should be encouraged to settle with Sukarno, accepting Indonesian independence. (shrink)

The global water crisis is being exacerbated by climate change, even in the United States. Recycled water is a feasible alternative to alleviate the water shortage, but it is constrained by humans’ perceptions. The current study examines how residents’ water scarcity awareness and climate change belief influence their willingness to use recycled water directly and indirectly. Bayesian Mindsponge Framework (BMF) analytics was employed on a dataset of 1831 residents in Albuquerque, New Mexico, an arid inland region in the US. We (...) discovered that residents’ willingness to use direct recycled potable water is positively affected by their awareness of water scarcity, but only if they believe in the impacts of climate change on the water cycle. Meanwhile, the willingness to use indirect recycled potable water is influenced by water scarcity awareness, and the belief in climate change further enhances this effect. These findings implicate that fighting climate change denialism and informing the public of the water scarcity situation in the region can contribute to the effectiveness and sustainability of long-term water conservation and climate change alleviation efforts. (shrink)

The Introduction outlines, in a concise way, the history of the Lvov-Warsaw School – a most unique Polish school of worldwide renown, which pioneered trends combining philosophy, logic, mathematics and language. The author accepts that the beginnings of the School fall on the year 1895, when its founder Kazimierz Twardowski, a disciple of Franz Brentano, came to Lvov on his mission to organize a scientific circle. Soon, among the characteristic features of the School was its serious approach towards philosophical studies (...) and teaching of philosophy, dealing with philosophy and propagation of it as an intellectual and moral mission, passion for clarity and precision, as well as exchange of thoughts, and cooperation with representatives of other disciplines.The genesis is followed by a chronological presentation of the development of the School in the successive years. The author mentions all the key representatives of the School (among others, Ajdukiewicz, Lesniewski, Łukasiewicz,Tarski), accompanying the names with short descriptions of their achievements. The development of the School after Poland’s regaining independence in 1918 meant part of the members moving from Lvov to Warsaw, thus providing the other segment to the name – Warsaw School of Logic. The author dwells longer on the activity of the School during the Interwar period – the time of its greatest prosperity, which ended along with the outbreak of World War 2. Attempts made after the War to recreate the spirit of the School are also outlined and the names of followers are listed accordingly. The presentation ends with some concluding remarks on the contribution of the School to contemporary developments in the fields of philosophy, mathematical logic or computer science in Poland. (shrink)

By 20 October 2021, the U.S. Food and Drug Administration (FDA) had amended its Emergency Use Authorizations for immunocompetent adults who previously received the Pfizer-BioNTech, Moderna, or Johnson & Johnson COVID-19 vaccines. For the 2-dose Pfizer-BioNTech and Moderna vaccines, the FDA permitted a single booster dose for adults aged 65 years or older and adults aged 18 to 64 years at high-risk for severe COVID-19 or at high risk for occupational or institutional COVID-19 exposure. For the single-dose Johnson & Johnson (...) vaccine, the FDA permitted a single booster dose for all adults aged 18 or older. These eligibility schemes were endorsed by the Centers for Disease Control and Prevention shortly after FDA approval. (shrink)

This study was conducted to determine the effectiveness of utilizing the Dual-axis Solar Tracker in harnessing solar energy and storing it in lithium-ion batteries in terms of voltage and milliamps per hour gained. This study utilized two solar panel systems, the Static Solar Panel System and the Dual-Axis Solar Tracker and aimed to prove the significant difference generated by solar panel systems in terms of voltage and milliamps per hour. This study employed an Applied Experimental Research Design utilizing Arduino Uno, (...) light-dependent resistors, micro servos, and solar panels to create the Dual-Axis Solar Tracker. The data gathered from the electric quantities during the seven-day sun exposure were tabulated, analyzed, and computed using mean tests, standard deviation, and T-tests to find the significant difference between the two solar panels. Based on the analyses of the data, it was revealed that the Dual-Axis Solar Tracker was superior in terms of voltage and milliamps per hour generated compared to the Static Solar Panel System. Moreover, computations using the T-test found that in terms of voltage and milliamps per hour generated, there was a significant difference between the Dual-Axis Solar Tracker and the Static Solar Panel System. Based on the findings of the study, it is concluded that the utilization of the Dual-Axis Solar Tracker statistically increases the effectiveness of solar panels in harnessing energy generation. (shrink)

This paper offers an assessment of current welfare policy in the United States. I argue that there is a genuine set of reciprocal obligations owed between fellow citizens that both justify and constrain U.S. welfare policy. In particular, I argue that there is both a widespread duty for potential welfare recipients to seek employment and a similarly robust obligation for other members of society to provide publicly funded jobs of last resort for those unable to find traditional employment. This leads (...) me to endorse elements of current U.S. welfare policy but also recommend several substantial changes that would make the overall policy more just. (shrink)