bluuebunny/crossref_metadata_2025 huggingface dataset:
Legal Liability-Responsibility
Authors: LUCY WILLIAM
Published: January 2010

This chapter discusses the concept of legal liability-responsibility. Legal liability-responsibility refers to all the general components usually necessary to incur legal blame and, in private law, to be compelled to comply with a court order to pay damages or otherwise remedy the harm done. There are other kinds of liability-responsibility, the most significant being ‘moral liability-responsibility’. This lays down the requirements for legitimately praising and blaming those whose conduct is either morally wrong or morally commendable. Both moral and legal liability-responsibility have a similar function, namely, attributing conduct and its outcomes to agents. However, whereas legal liability-responsibility usually concerns itself only with the attribution of conduct and outcomes that are baleful, moral liability-responsibility deals with both good and bad conduct and its outcomes.
Responsibility I: Basic Responsibility
Authors: LUCY WILLIAM
Published: January 2010

This chapter discusses the basic responsibility requirement. It identifies three related claims about what basic responsibility requires of those in the frame for liability in private law. They are that those in the frame for liability (i) must either be aware of their conduct, or have had the capacity to be aware of it; (ii) that some aspect of their conduct must be ‘theirs’ in the sense that they did it and had reason to do it; and (iii) they must usually either be aware of, or be capable of being aware of, some of the circumstances or outcomes of that conduct.
Responsibility II: Alternate Possibilities
Authors: LUCY WILLIAM
Published: January 2010

This chapter discusses the alternate possibilities requirement. It begins by clarifying exactly what the principle of alternate possibilities might entail, offering two principal interpretations of how it can be understood, and arguing that only one of these interpretations is ultimately defensible. This allows a defence of that (‘sophisticated’) interpretation against some ostensibly powerful arguments. This is combined with additional commentary upon the alternative (‘simple’) interpretation. The two interpretations of the principle of alternate possibilities are then put to work upon two segments of legal doctrine to demonstrate the superiority of one over the other.
Conduct and Causation
Authors: LUCY WILLIAM
Published: January 2010

This chapter addresses the closely related components of conduct and causation. It argues that the former is nowhere near as problematic a component as is often thought and, in addition, defends a classic ‘ordinary language’ account of the latter.
Normative Foundations
Authors: LUCY WILLIAM
Published: January 2010

This chapter examines the normative foundations of private law. Specifically, it considers how such ‘foundational’ accounts might function and what, exactly, is their content. It discusses corrective justice, distributive justice, and mixed accounts of the normative foundations of private law. An overview of Chapter 8–11 is also presented.
Conclusion
Authors: LUCY WILLIAM
Published: January 2010

This chapter highlights some of the themes and loose ends that have emerged in both Parts I and II of this book and tries, where possible, either to trim or tie up the latter. The main burden of the analysis of the components of legal liability-responsibility in Part I was to show which components are in play in private law and to make sense of them. The primary task was to attempt to make those components intelligible. Part II tackled three broadly different accounts of the normative basis of private law. These accounts in principle function so as to provide a normative basis for both the core substantive and structural concepts of private law. Thus, components of liability-responsibility as well as doctrines like, for example, duress in contract, might ostensibly depend upon a normative foundation.
A Historical Introduction to the Law of Obligations
Authors: Ibbetson David
Published: January 2010

The English law of obligations has developed over most of the last millennium without any major discontinuity. Through this period each generation has built on the law of its predecessors, manipulating it so as to avoid its more inconvenient consequences and adapting it piecemeal to social and economic changes. Sometimes fragments borrowed from other jurisdictions have been incorporated into the fabric of English law; from time to time ideas developed elsewhere have, at least temporarily, imposed a measure of structure on a common law otherwise messy and inherently resistant to any stable ordering. The book exposes the historical layers beneath the modern rules and principles of contract, tort, and unjust enrichment. Small-scale changes caused by lawyers successfully exploiting procedural advantages in their clients' interest are juxtaposed alongside changes caused by friction along the boundaries of these principal legal categories; fossilized remnants of old doctrines jostle with newer ideas in a state of half-consistent tension; loose-knit rules of equity developed in the Chancery infiltrate themselves into more tightly controlled common law structures. The result is a system shot through with inconsistencies and illogicalities, but with the resilience to adapt as necessary to Take account of shifting pressures and changing circumstances.
4. The Substantive Law of Torts
Authors: IBBETSON D. J.
Published: January 2010

This chapter begins with a discussion of how the substantive law of torts in the Middle Ages was inherently messy, mainly because the law of torts always responds retrospectively to alleged wrongdoings. It then discusses strict liability and the role of fault and the scope of trespassory liability.
5. The Substantive Law of Contract
Authors: IBBETSON D. J.
Published: January 2010

This chapter discusses how the structure of contractual liability was laid down by the end of the 13th century and remained fundamentally the same through the 14th and 15 centuries. Liability depended on the voluntary agreement; whatever form of action was in issue, only the parties to the agreement were affected by it; whatever the form of action, the purpose of the plaintiff's claim was to obtain the value of the intended performance; and in informal contracts, the law was concerned only with relationships of reciprocity.
8. Trespass, Case, and the Moral Basis of Liability
Authors: IBBETSON D. J.
Published: January 2010

This chapter shows how central to the later medieval law of torts was the division between the action of trespass and action on the case. The former lay for invasive interferences to land, goods, or the person; the latter covered a range situations where loss had been caused wrongfully. The formal division between trespass and case, and the crystallization of negligence are discussed.
9. The Law of Torts in the Nineteenth Century: The Rise of the Tort of Negligence
Authors: IBBETSON D. J.
Published: January 2010

This chapter shows how the law of torts at the start of the 19th century was still recognizably medieval. It was characterized by the division between the action of trespass and the action on the case, the latter of which was subdivided into a number of nominate forms and a large residuary group linked together by nothing stronger than that the defendant was alleged to have caused loss to the plaintiff. In the 19th century, a substantial part of this residuary group coalesced as the tort of negligence. This brought about a wholesale realignment of the law of torts, as this tort, defined by the reference to the quality of the defendant's conduct, cut across the previous categorization of torts.
14. Unjust Enrichment
Authors: IBBETSON D. J.
Published: January 2010

This chapter discusses unjust enrichment. The conceptual categories of contract and tort cover much of the range of personal obligations but do not exhaust it. Beyond them lies the residuary group characterized as ‘obligations arising from various other causes’. A third category emerged from this group, to be known as ‘quasi-contract’, ‘restitution’, or ‘unjust enrichment’. The common feature of the cases falling into this category is that the defendant has received money or property that ought in justice to be made over to the plaintiff, or has benefited from the performance of some service that ought in justice to be paid for.
“Constitutional” Interpretation
Authors: ALVAREZ JOSÉ E.
Published: January 2010

This chapter discusses ‘constitutional’ interpretation of a Charter. It compares the United Nations Charter and the United States Constitution, citing that both provide institutional mechanisms to accomplish goals identified only as ‘majestic generalities.’ As with the U.S. Constitution, there also appears to be a separation of powers notion at work within the UN Charter. The chapter also provides details on the people, procedure, and reason behind interpreting a Charter. It considers how international organization organs have interpreted their chapters, indicating the malleability of both institutional charters and the underlying rules of treaty interpretation. In detailing the procedure of interpreting a Charter, it mentions the Vienna Rules of Treaty Interpretation, institutional practice, implied powers, and intent. The interpretation of international organization charters is more than the sum of the application of rules — whether contained in the Vienna Convention on the Law of Treaties or reserved for ‘constitutional’ treaties.
Have International Organizations Improved Treaty-making?
Authors: ALVAREZ JOSÉ E.
Published: January 2010

This chapter discusses whether international organizations have improved treaty-making. It also explains the facilitation of cooperation through iteration and access to information, reduction of transaction costs, self-enforcing behaviour, creation of property rights, and issue linkage. The chapter also takes a broader look at international organization forms of treaty-making. UN-sponsored treaty conferences provide a relatively stable negotiation forum that permits negotiators to continue their interaction beyond a single round of negotiations. Organizational mechanisms for treaty-making also reduce transaction costs associated with the conclusion of an agreement and with its maintenance once concluded. Self-enforcing behaviour is a stable equilibrium in which compliance with treaty obligations is maintained. The most familiar example of an international organization-sponsored treaty regime that create or recognize property rights among various rights holders is perhaps the TRIPs Agreement under the WTO regime. Treaty efforts in UN fora often consist of ‘package deals’.
Dispute Settlement by “Quasi-judicial” and “Judicial” Bodies
Authors: ALVAREZ JOSÉ E.
Published: January 2010

This chapter discusses dispute settlement by ‘quasi-judicial’ and ‘judicial’ bodies. It also explains the concepts of regime-specific law, general public international law, national law, and other sources of international ‘obligation.’ The Human Rights Committee under the ICCPR and the European Court of Human Rights or Strasburg Court, are quasi-judicial or judicial bodies engaged in the examination of individual communications or complaints concerning a similar set of human rights obligations imposed on states. The quasi-judicial and judicial bodies now operating impact, on a regular basis, one or more of the following four categories of law: substantive obligations of the treaty regime in which the adjudicator is embedded; ‘general’ public international law; other sources of potential international obligation, hard and soft, not clearly included in the traditional article 38 categories; and national law relevant to resolving the dispute presented to the international forum.
Considering Networks: A Methodological Introduction
Authors: Thompson Grahame F.
Published: January 2010

This book brings some clarity to the discussion of networks. It tests the case as to whether it is possible to construct a clearly demarcated idea of a ‘network’ as a separable form of socio-economic coordination and governance mechanism with its own distinctive logic. In doing this, the primary contrast is to markets and hierarchies as alternative and already well-understood forms of such socio-economic coordination each with its own particular logic. Thus, the focus is on the domain of the socio-economic (which includes political aspects of networks), and it is about the organisational domain of the socio-economic. A distinction is made between network as a conceptual category and network as a social organisation. Three approaches to networks are considered: social network analysis, transaction cost analysis, and actor-network theory. Finally, the book explores the whole area of information and communications technology and networks and how they are argued to be radically transforming the nature of international relations.
Social Network Analysis, Transaction-Cost Analysis, and Actor-Network Theory: Three Approaches to Networks
Authors: Thompson Grahame F.
Published: January 2010

This chapter compares and analyses three theoretically driven approaches to the analysis of networks: social network analysis (SNA), transaction cost analysis (TCA), and actor-network theory (ANT). Each approach makes a claim to analysing hierarchies and markets as well. In the ANT approach, a network is not an intermediate form of organisation, but a set of relations between actors and techniques. Both ANT and SNA view network as an analytical tool that encompasses and explains both markets and hierarchies as variations of network structures. Only TCA offers an explicit defence of networks being intrinsically different from markets or hierarchies—in the way they coordinate and govern—but these differences can be conceptualised using a single analytical technique and transaction costs. This chapter examines the arguments against the ubiquity of TCA for the analysis of socio-economic coordination and governance, along with the ANT approach to market, organisation, and management, and interlocking directorates as an example of the SNA approach.
Conclusions
Authors: Thompson Grahame F.
Published: January 2010

This book concludes by summing up the logic and limits of network forms of organisation. It has investigated the contemporary forms of network organisation as seen in the conceptual literature and in terms of their appearance in concrete empirical settings. The key features of the network model that describe how a certain range of social relations operate that specify a network model of socio-economic coordination and governance have been described. These practices do not operate in the same manner for either hierarchies or markets. The arguments against the actor-network theory of networks have been considered, along with social network analysis and its view of networks as relational organisations.
From the Inns of Court to Military Intelligence: MI5, Marriage, and Fatherhood
Authors: Lacey Nicola
Published: January 2010

This chapter details the further changes in H. L. A. Hart's life following the outbreak of the Second World War. In 1940 Herbert began working for MI5. He was assigned to B division, which was the core of MI5. It was concerned with counter-espionage, running surveillance, and investigation operations which aimed to prevent espionage and identify spies within the UK. Most important of all, B Division developed and operated the highly successful ‘Double Cross’ system through which strategically damaging misinformation was fed back to Germany by double agents.
Selling Philosophy to the Lawyers: The Chair of Jurisprudence
Authors: Lacey Nicola
Published: January 2010

This chapter focuses on H. L. A. Hart's experiences as Chair of Jurisprudence at University College. Herbert's inaugural lecture as Professor of Jurisprudence, ‘Definition and Theory in Jurisprudence’, delivered in 1953, which laid out the positive and substantive agenda which he saw as defining the autonomous terrain of a jurisprudence informed by analytical philosophy. The lecture set out Herbert's stall as a linguistic philosopher prepared both to bring the insights of philosophy to law, and to exploit his legal understanding to generate a fund of examples suitable for philosophical analysis.
Law in the Perspective of Philosophy: Causation in the Law, The Concept of Law
Authors: Lacey Nicola
Published: January 2010

This chapter focuses on the publication of Causation in the Law and The Concept of Law. Causation in the Law represents a thoroughgoing application of the linguistic philosophical analysis to law. It presents a spirited defence of the idea that causation in law is indeed a distinctive ground for the attribution of liability, and a persuasive critique of the causal minimalist position as collapsing questions of the ground of liability (causation) into questions about its scope or extent (policy factors affecting the extent of damages or the scope of the rule), and, in doing so, as blurring what is argued to be the proper division of labour between judge and jury, between law and fact. In The Concept of Law Hart claimed to set out a general, descriptive theory of law: a theory of law as it is, and not an ideal theory of what law ought to be. This would be at once a contribution to ‘analytical jurisprudence’ and to ‘descriptive sociology’. In other words, Hart sought to elucidate a concept of law which would be relevant to all forms of law, wherever or whenever they arose.
West and East, California and Israel: Law, Liberty, and Morality; Kelsen Visited; The Morality of the Criminal Law
Authors: Lacey Nicola
Published: January 2010

This chapter details H. L. A. Hart's travels to the US and Israel. In early September of 1961, Hart left Oxford for California to spend a sabbatical in the Law School and Philosophy Department at the University of California, Los Angeles (UCLA). As in 1956, he arrived in America with a strong sense of the opportunities presented by the visit, with an acute sense of the need to overcome his difficulty about ‘giving my time a structure’, and with the usual pre-lecturing apprehensions. The occasion for this first visit to Israel was an invitation to Hart to deliver the Lionel Cohen lectures at the Hebrew University in Jerusalem in January 1964. Significantly, Herbert decided to use a sabbatical term to extend the two-week visit into a three-month stay.
Introduction: Transport and the Economy of the Roman World
Authors: Adams Colin
Published: January 2010

This chapter overviews previous scholarship on transport, introduces the most influential theories offering pessimistic views of the role of transport in the Roman economy, and surveys responses to these, before introducing the evidence for transport and economic activity from Egypt. It then discusses the quantification of this evidence and what this can tell us about the economics of transport. Attempts to establish the relative costs of land and water transport, while valuable, are based on evidence presenting many difficulties of interpretation, and can obscure the true picture of the role of transport. The chapter ends with a description of the nature of the following chapters and a statement of purpose: to show the importance of land transport as part of a system of transport, including water transport, which should be considered as a whole.
Conspiracy and Virtue
Authors: Wiseman Susan
Published: January 2010

What was the relationship between woman and politics in seventeenth century England? Responding to this question, Conspiracy and Virtue argues that theoretical exclusion of women from the political sphere shaped their relation to it. Rather than producing silence, this exclusion generated rich, complex, and oblique political involvements which this study traces through the writings of both men and women. Pursuing this argument, Conspiracy and Virtue engages the main writings on women's relationship to the political sphere including debates on the public sphere and on contract theory. Writers and figures discussed include many authors who are not often studied together, such as Elizabeth Avery, Aphra Behn, Anne Bradstreet, Maragret Cavendish, Queen Christina of Sweden, Anne Halkett, Brilliana Harley, Lucy Hutchinson, John Milton, Elizabeth Poole, Sara Wight, and Henry Jessey.
The Political Work of a Spiritual Text: Sarah Wight, Henry Jessey, and The exceeding Riches of Grace
Authors: Wiseman Susan
Published: January 2010

This chapter investigates the political implications of women's involvement in sectarian writing in the later years of the 1640s. The material discussed — printed writings — carries the discussion of women's relationship to politics into the explicitly public terrain of religious and political controversy. The chapter investigates women's relationship to spiritual and political discourses in the context of the disputes among the army, Independents, Presbyterians, and Levellers in the late 1640s. The exceeding Riches of Grace makes public Sarah Wight's experience. Events caught up the members of the gathered churches of London, Bristol, and Wales and their associates in the army, but also drew in men and women of a very different religious and political complexion from the text's ‘relator’, Henry Jessey. The exceeding Riches of Grace unfolds the question of the nature of testimony, the meaning of grace for the Christian, and the nature of spiritual versus political claims and hierarchies.
Rule and Representation: The ‘Libertine’ Case of Queen Christina
Authors: Wiseman Susan
Published: January 2010

This chapter explores the relationship between women and politics from the vantage point of representation. It examines writings which draw on one figure who, for those who saw or heard of her, put women, politics, and philosophy together in unpredictable ways. In this chapter, the questions that arise when women and liberty are put on the same frame are explored in the languages of diplomacy, satire, and utopia. Queen Christina left her own views on the world in, among other forms, memoirs, maxims, and an assessment of Alexander the Great, whom she described as ‘an object worthy heroick emulation.’ Representation of Christina indicates the way in which circumstances remodel theory, iconography, and stereotype. Writing on her shows some of the tensions experienced by writers in the gendering of politics.
Martyrdom in a Merchant World: Elizabeth Jekyll and Mary Love
Authors: Wiseman Susan
Published: January 2010

This chapter looks at the remembering and forgetting of the particular circumstances of politics, and at the part the writing and transmission of women's biographical texts played in the making of memory. It explores the genealogy of a particular event from 1651, the trial for treason of the Presbyterian Christopher Love, as it was recorded in the narratives of two women, Elizabeth Jekyll and Mary Love. The author argues that these texts, which circulated after the Restoration, indicate that we need to re-evaluate the place of narrative produced by women in building Restoration nonconformist culture. The process of political memorialisation and amnesia which Jekyll's and Love's manuscripts facilitated was complicated and is discussed in three stages: the ‘event,’ the women's narratives, and their Restoration editing and significance. At each stage, the ‘meanings’ of the event are changed.
Rethinking Legal Realism: Toward a Naturalized Jurisprudence
Authors: LEITER BRIAN
Published: January 2010

This chapter sets out the basic contours of the author's revisionary treatment of Realism. It argues that we can reconstruct the Realists as arguing for their ‘empirical’ approach to the theory of adjudication as motivated by considerations analogous to those Quine invoked for naturalizing epistemology.
Legal Realism and Legal Positivism Reconsidered
Authors: LEITER BRIAN
Published: January 2010

This chapter challenges two widespread views about the relationship between the jurisprudential theories known as ‘Legal Realism’ and ‘Legal Positivism’. The first is that the two doctrines are essentially incompatible or opposed at the philosophical or conceptual level. The second is that Legal Realism is a jurisprudential joke, a tissue of philosophical confusions — confusions that the 20th century's leading Positivist, H. L. A. Hart, exposed more than thirty years ago in the famous Chapter VII (‘Formalism and Rule-Skepticism’) of The Concept of Law. The two views are connected in the following way: Hart, on this picture, sealed the tomb of Realism as a serious legal theory, and in so doing gave credence to the idea that Realism and Positivism were opposed doctrines. The chapter contests both these views through a careful re-examination of Hart's influential critique.
Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis
Authors: LEITER BRIAN
Published: January 2010

The Realist arguments for the indeterminacy of legal reasoning depend on a ‘Hard Positivist’ (or Razian) conception of legal validity (according to which the criteria of validity in any legal system must themselves be source-based). This chapter surveys the traditional ‘conceptual’ arguments for and against the Razian theory of law, generally defending the Razian position. It concludes, however, by raising doubts about this whole way of proceeding in jurisprudence, suggesting, with a nod to Quine, that perhaps even questions about the nature of law itself might be settled by the results of the empirical sciences.
Moral Facts and Best Explanations
Authors: LEITER BRIAN
Published: January 2010

This chapter takes on the views of philosophers (like David Brink, Geoffrey Sayre–McCord, and Nicholas Sturgeon) who accept the premises of the location problem, but think morality earns its place in a world so conceived. It argues, against them, that there is no reason to think moral facts are part of the best causal explanation of experience.
Objectivity, Morality, and Adjudication
Authors: LEITER BRIAN
Published: January 2010

This chapter considers the views of two philosophers — Ronald Dworkin and John McDowell — who repudiate the premise of the location problem, namely, that causal efficacy is always the mark of the real. From the standpoint of legal philosophy, Dworkin's response is particularly significant, since his theory of law and adjudication makes a party's legal rights turn on the answer to moral questions: if those answers are not ‘objective’, then Dworkin's theory is a license for extraordinary judicial discretion. It shows that Dworkin has no good arguments against taking the location problem seriously, and that his and McDowell's alternative account of the objectivity of morality is both empty and entails counter-intuitive conclusions.
Law and Objectivity
Authors: LEITER BRIAN
Published: January 2010

This chapter surveys the whole landscape of issues about the objectivity of law (and, relatedly, morality). Metaphysical objectivity concerns the extent to which the existence and character of some class of entities depends on the states of mind of persons (i.e., their knowledge, judgment, belief, perception, or response). Epistemological objectivity concerns the extent to which we are capable of achieving knowledge about those things that are metaphysically objective. Many philosophers working in the Anglo-American traditions also worry about semantic objectivity, that is, about whether or not the propositions in some realm of discourse (physics, psychology, ethics, law, etc.) can be evaluated in terms of their truth or falsity. For a discourse to be semantically objective, and for the statements in the discourse to be true, then the things referred to by the terms of that discourse (i.e., quarks, desires, justice, legal facts) must be metaphysically objective.
Introduction
Authors: SHELTON DINAH
Published: January 2010

This book reviews the jurisprudence of international tribunals that have jurisdiction and competence to afford remedies to individuals whose human rights have been violated. It also looks at the comparative law of remedies, especially as reflected in national judicial decisions based on international human rights law. The problems of systematic abuse and developing appropriate responses to it are discussed, with particular reference to the work of the United Nations. The book's central concern is with the relationship between victims and the state causing injury, as well as with the powers and functions of the various international and national tribunals that hear human rights cases. The aim is to propose a theoretical foundation for human rights remedies, together with standards and principles on which future remedies may be based.
Declaratory Judgments
Authors: SHELTON DINAH
Published: January 2010

From the perspective of a defendant state, a declaratory judgment is the least intrusive remedy that a tribunal can afford the victim of a human rights violation. If the state concerned is committed to the rule of law, a declaratory judgment still should be effective to end the violation and prevent similar breaches in the future. In fact, for states committed to upholding a treaty and fulfilling in good faith their obligations, the adjudication itself may be of greatest significance. Generally, however, a declaratory judgment will not in and of itself be an adequate remedy. Nor should it be used to deter unsympathetic victims from seeking a remedy by denying them redress. It is the beginning, rather than the end, of remedies.
Punitive or Exemplary Damages
Authors: SHELTON DINAH
Published: January 2010

Most human rights tribunals have either a textual or inherent basis for enhancing damage awards to deter and punish wrongdoing. Fundamentally, the question of punitive or exemplary damages is one of utility. Several justifications can be given for their use: punishment, deterrence, preservation of the peace, inducement for private law enforcement, or compensation for otherwise uncompensated losses and payment of costs and fees. In cases of consistent non-prosecution of individual perpetrators, monetary awards may be indicated in order to express disapproval of the actions of the government, and to repair the full dignitary losses sustained by private individuals. The purpose is to reprove a state for its conduct and deter it from similar actions in the future.
Reparations for Historical Injustices
Authors: SHELTON DINAH
Published: January 2010

Like modern mass violations of human rights, historical injustices are generally seen as targeting entire groups, either disfavoured minorities or foreign populations. While the barriers to reparations are significant, historical events are the subject of a growing number of legal and/or political claims by groups seeking redress. The proliferation of such demands may represent a global tribute to the strength of human rights doctrine and its moral claim on the international community or the fact that success induces emulation. The notion of reparations is close to the current idea of restorative justice as a potentially transformative social action. Legislatures may be better suited to determine reparations: they are not bound by precedent and legal doctrine, but can fashion equitable remedies. Remedies thus become part of a healing process that may avoid the creation of future historical injustices.
4 Binding Precedents and Internal Jurisprudential Hierarchy
Authors: Mettraux Guénaél
Published: January 2010

In a span of ten years, the law of the ad hoc tribunals created for the former Yugoslavia and Rwanda has moved forth with leaps and bounds. The judges have clarified the jurisprudential hierarchy that prevails within the tribunals and specified the extent to which decisions of a trial chamber may be said to be binding upon another. The appeals chamber, although not legally bound to follow its own decisions, has recognised that the need for certainty, stability, and predictability in criminal law required that it should follow them in principle, but that it could depart from them ‘for cogent reasons in the interests of justice’. Every chamber’s duty to ascertain that a crime or a form of liability charged in the indictment is both provided for under the statute and that it existed at the relevant time under customary international law.
6 Chapeau Elements of War Crimes
Authors: Mettraux Guénaél
Published: January 2010

A war crime may be defined as a serious violation of the laws or customs of war which entails individual criminal responsibility under international law. From the point of view of the ad hoc tribunals created for the former Yugoslavia and Rwanda, only those war crimes that are stipulated in the statute (expressly or implicitly) may be prosecuted. Furthermore, in order to prosecute those crimes successfully under the statute, the prosecution must establish in relation to each one of them, that at the time when these acts were committed there existed a state of armed conflict in the relevant area and that the acts of the accused were sufficiently connected to that conflict and that the offence allegedly committed constituted a serious infringement of a rule of international humanitarian law that entailed his or her individual criminal responsibility under international law at that time.
8 Other Serious Violations of the Laws or Customs of War: Underlying Offences
Authors: Mettraux Guénaél
Published: January 2010

The statutes of the ad hoc tribunals created for the former Yugoslavia and Rwanda expressly stipulate a number of specific violations of the laws or customs of war which may form the basis of a conviction if the chapeau elements mentioned in the preceding chapter, and the constitutive elements of the offence charged, are all proved. In addition, the ad hoc tribunals have sanctioned the recognition of a number of war crimes which, although not expressly mentioned in the statutes, were said to have been provided implicitly in the statutes and to have been recognised as crimes under international law at the relevant time. All of those underlying offences (listed or unlisted) seem to constitute war crimes whether committed in the context of an international armed conflict or in the context of an internal one. These underlying offences include plunder of public or private property and pillage, violence to life and person, collective punishment, taking of hostages, acts of terrorism, outrages upon personal dignity, torture, and slavery.
14 General or Chapeau Elements of Genocide
Authors: Mettraux Guénaél
Published: January 2010

With respect to genocide, Article 4 of the statute of the ad hoc tribunal for the former Yugoslavia and Article 2 of the statute of the tribunal for Rwanda are identical in both form and substance. One element that must be met before a genocidal offence may be said to have been committed is that an individual possessed the required genocidal mens rea or, according to the appeals chamber and a number of trial chambers, where he knew of the principal’s genocidal intent. This chapter discusses the elements of the genocidal mens rea (including the intent to destroy in whole or in part, a national, ethnical, religious, or racial group, as such) and the factors which may be relevant to the determination that the accused possessed the necessary genocidal intent.
19 The Person of the Perpetrator: Who Can Commit an International Crime?
Authors: Mettraux Guénaél
Published: January 2010

In principle, anyone can commit a war crime, a crime against humanity, or a genocidal offence. Pursuant to Article 1 of both statutes of the ad hoc tribunals for Rwanda and the former Yugoslavia, the tribunals’ jurisdiction ratione personae is also determined by the gravity of the alleged violation of international humanitarian law. In principle, individuals may be indicted (and held criminally responsible if found guilty) regardless of their exact role in the commission of the crime as long as their contribution to the crime meets the above jurisdictional requirement of gravity and that it falls within one of the forms of criminal participation provided for in the statutes. The only relevant consideration to assign individual criminal responsibility is whether the accused, private individual, or state official, took part in one of the crimes covered by the statute, in one of the forms provided for in Articles 6(1) and 6(3) of the statute of the Rwanda tribunal or Articles 7(1) and 7(3) of the statute of the Yugoslav tribunal.
24 War Crimes and Crimes against Humanity
Authors: Mettraux Guénaél
Published: January 2010

Four elements distinguish war crimes from crimes against humanity. War crimes may only be committed during an armed conflict, whereas crimes against humanity can be committed both in times of war and of peace. Furthermore, a crime against humanity may be committed against nationals of any state, including that state’s own nationals, if the state takes part in the attack. Whereas crimes against humanity may only be committed against civilians, most war crimes may be committed against both civilians and enemy combatants. A crime against humanity must be committed as part of a widespread or systematic attack upon a civilian population; there is no such requirement for a war crime. An isolated act could qualify as a war crime, but not as a crime against humanity. Nearly all of the underlying offences which could qualify as crimes against humanity would also amount, all other conditions being met, to war crimes, but the converse is not necessarily true.
25 War Crimes and Genocide
Authors: Mettraux Guénaél
Published: January 2010

Both genocide and war crimes are regarded as serious violations of international humanitarian law. Just as with genocide, war crimes may, in principle, be committed by and against civilians and military alike. The law of genocide and the laws of war have very different origins, however, and both categories of crime cover essentially different protected interests. War crimes and genocide contain a number of elements which are not required by the other, the most obvious being that while war crimes, of their nature, may only be committed in times of war, genocide may be committed during war or peace. Under the prevailing test of cumulative convictions developed by a majority of the appeals chamber, an individual who has been charged with both war crimes and genocide for the same criminal conduct could be convicted for both categories of crimes.
28 Relevant Factors in Sentencing
Authors: Mettraux Guénaél
Published: January 2010

In addition to the general sentencing practice in the courts of the former Yugoslavia and Rwanda, the trial chamber will take into account the gravity of the offence which it must punish and all other relevant circumstances pertaining to the conduct in question (whether mitigating or aggravating). Also, the court will give due regard to the time which the individual might already have spent in detention and the extent to which any penalty imposed upon him by another court for the same act has already been served. Within that general framework, the trial chamber possesses a large amount of discretion to decide upon a sentence appropriate to the crimes and the individual being sentenced. This chapter looks at three factors relevant to sentencing international crimes within the jurisdiction of the ad hoc tribunals for Rwanda and the former Yugoslavia: gravity of the acts of the accused, mitigating and aggravating factors, the totality principle, and individualisation of sentences.
29 Other Available Penalty: Return of Property
Authors: Mettraux Guénaél
Published: January 2010

Articles 24 and 23, paragraph 3, of the statutes of the ad hoc tribunals for the former Yugoslavia and for Rwanda, respectively, provide that, in addition to imprisonment, a trial chamber may order the return of any property and proceeds acquired by criminal conduct to their rightful owners. Rule 105 (Restitution of Property) further provides that a trial chamber which finds an accused guilty of a crime and concludes from the evidence that unlawful taking of property by the accused was associated with it, shall make a specific finding to that effect in its judgment and shall order restitution of that property to its rightful owner. The practical difficulties involved in such a process appear to have deterred all trial chambers from any attempt to apply that provision.
Introduction: the Pedagogical Circle and the ‘Open Secret’
Authors: Bell Michael
Published: January 2010

This chapter introduces the central concern of the book: how to recognise and to think cogently about the limits of humanistic pedagogy. It does so by explaining two continuing motifs; the pedagogical circle is used by analogy with the hermeneutic circle. Whereas the hermeneutic circle suggests a possibly self-fulfilling process whereby interpretation is unwittingly governed by its necessary premises, the pedagogical circle sees a similarly closed logic in guided instruction, but now exacerbated by the factor of authority. The result of such instruction may be the ‘open secret’: a truth or recognition which, even as it is frankly imparted and is apparently understood, remains a secret because the listener does not yet possess the necessary experience. The remainder of the chapter provides an anticipatory summary of the argument, including the modern genesis of the Bildungsroman in the era of the philosophical tale and the novel of sentiment.
The Comedy of Educational Errors
Authors: Bell Michael
Published: January 2010

This chapter considers two novels written in the wake of Rousseau which, although they are not consciously answering him, subject the theme of pedagogical authority to an almost fatal irony. Moreover, both are highly self-conscious as fictions and their overt narrative manipulations stand in contrast to more naïve attempts by central characters within the text to exercise pedagogical authority. While Walter Shandy's misbegotten attempts to form his son are the mainspring of the action, Tristram Shandy is as much a realisation of the Tristra-paedia as a riposte to it. In Wieland, the failures of Hippias the Sophist to convert Agathon are darkly echoed in Plato's archetypal failure with Dionys, the young tyrant of Syracuse. In their chastening sense of pedagogical limitation both books celebrate a private sphere refuged from public history, a private sphere embodied in the book itself.
‘The Passion of Instruction’: D. H. Lawrence and Wholeness versus Bildung
Authors: Bell Michael
Published: January 2010

This chapter suggests that D. H. Lawrence is the most significant inheritor of the Nietzschean problematic of Bildung. Through a discussion mainly of Women in Love, the chapter brings out his similarities and differences with respect to both Nietzsche and Goethe. This novel, by attempting a radical and comprehensive critique of modern social man, focuses Lawrence' authentic impasse of readerly understanding. After it he developed a style of frankly personal quest novels in which his writerly authority was explicitly eccentric and beleaguered in the contemporary world. The difficulty of sharing understanding, which was to some extent a successful rhetorical feint in the earlier writers, has become a more literal impasse, and this was vividly confirmed by Lawrence's unpopularity in the ideologically dominated academy of the twentieth century's last three decades.
Tradition and Contextualization
Authors: FEARN DAVID
Published: January 2010

This chapter begins with a brief discussion of the lack of critical attention to Bacchylides, making him among the most neglected of the archaic poets. It then examines Bacchylides fragment 5. It looks at two scholarly approaches that fail to address adequately the fragment in context, before developing a third line of approach. The chapter then discusses poetic tradition and patronage.
Homeric Fire, Aiginetan Glory, Panhellenic Reception: Bacchylides 13
Authors: FEARN DAVID
Published: January 2010

This chapter is divided into three sections. The first locates Bacchylides' poem within its Aiginetan context. The second shows how Bacchylides uses imagery and Homeric narrative to support Aiginetan aristocratic heritage. The poem celebrates the continuity of Aiginetan cultic heritage, through the exempla provided by Pytheas on the one hand, and Aias and Akhilleus on the other, and through the celebration of Homeric poetry itself as an Aiginetan national treasure. In the final section, the chapter sets against such pro-Aiginetan readings alternative receptions of the poem, implied by its panhellenic status and its incorporation, towards its close, of praise of Pytheas' Athenian trainer Menandros.
Bacchylides and the Kuklios Khoros: Performance, Genre, and Reception
Authors: FEARN DAVID
Published: January 2010

This chapter considers the nature of the Alexandrian edition of Bacchylides' Dithyrambs. Section I examines the importance of the kuklios khoros, or ‘circular chorus’, and looks at poetic evidence for the affiliations of the term, διθύραμβος during the period in which Bacchylides was operating. Section II discusses ways in which poetry became embroiled in scholarly, sophistic, and musical controversy about the ritual affiliations of choral culture, focusing on the New Music. Section III considers how the Alexandrians came to understand the term διθύραμβος and make it into a canonical genre, following Platonic and Aristotelian approaches to classification. Section IV focuses on later reception, in later antiquity and into the 19th century, to show how the orthodoxy concerning Bacchylides' poetry arose. Section V concludes by suggesting that a more discursive conception of genre needs to be adopted to do justice to Bacchylides' work. Furthermore, it argues that a more dynamic view of the interaction between the notions of genre and performance needs to be established.
Introduction to Quantum Information Science
Authors: Vedral Vlatko
Published: January 2010

In addition to treating quantum communication, entanglement, error correction, and algorithms in great depth, this book also addresses a number of interesting miscellaneous topics, such as Maxwell's demon, Landauer's erasure, the Bekenstein bound, and Caratheodory's treatment of the second law of thermodynamics. All mathematical derivations are based on clear physical pictures which make even the most involved results — such as the Holevo bound — look comprehensible and transparent. Quantum information is a fascinating topic precisely because it shows that the laws of information processing are actually dependent on the laws of physics. However, it is also very interesting to see that information theory has something to teach us about physics. Both of these directions are discussed throughout the book. Other topics covered in the book are quantum mechanics, measures of quantum entanglement, general conditions of quantum error correction, pure state entanglement and Pauli matrices, pure states and Bell's inequalities, and computational complexity of quantum algorithms.
Classical information
Authors: Vedral Vlatko
Published: January 2010

This book deals with the basic concept of information, its importance, and the similarities and differences between classical and quantum information. First, classical information theory and its application to communication are discussed. Quantum mechanics and communication based on the laws of quantum mechanics are then considered. Quantum entanglement, a key resource in quantum communication, is analysed both from the fundamental perspective and from the perspective of its information-processing capability. This book also introduces quantum computation (in the context of the search and factorisation algorithms) and the basics of quantum error correction. Throughout this book, the connections between information theory, thermodynamics, and (quantum) physics are emphasised and discussed. Other topics covered in the book are data compression, related measures of information such as relative entropy, joint entropy, conditional entropy, and mutual information, along with the capacity of a noisy channel.