bluuebunny/crossref_metadata_2025 huggingface dataset:
The Reception Process in Poland and Slovakia
Authors: Krzyżanowska-Mierzewska Magda
Published: January 2009

This chapter discusses the reception of the ECHR in Poland and Slovakia. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, the implementation of international law by domestic courts, an overview of case law, and the European Court's case law and its effects on the national legal system. It is shown that despite the similar historical situation of both countries, the patterns of reception of the ECHR differ considerably. In Poland, the ECHR became immensely popular and gained the status of an instrument of popular justice, resorted to by individuals in a spontaneous and unorganized manner. In Slovakia, it plays a similar role in so far as it is used extremely rarely by organized civil society institutions as a legal advocacy instrument.
Part I—Introduction
Authors: Ginbar Yuval
Published: January 2009

This chapter introduces the methodology and structure of Part I, which addresses the question of whether it is morally justifiable for an individual to torture a terrorist when it is the only way to obtain information that would save many innocent lives. This scenario — the ticking bomb situation (TBS) — is to be discussed in a ‘pure’ form, free from factual doubts and society-wide or long term consequences. The chapter outlines the parameters for discussing the question, and defines the features of the presumed situation. It explains the methodological approach to be adopted in this Part: the scope is to be kept limited; positions put forward are required to maintain strict logical form; a dialogic, conversational style is to be used; and an open, eclectic approach to content is to be maintained.
Consequentialist Argument for Torturing in a Ticking Bomb Situation
Authors: Ginbar Yuval
Published: January 2009

This chapter details the consequentialist arguments for torturing the terrorist in a ticking bomb situation. Consequentialist/utilitarians argue that a moral cost-benefit analysis needs to be made, pitting the suffering of the one terrorist under torture against the suffering of so many innocent civilians if the terrorist bomb were to explode. Such analysis would necessarily lead to a lesser evil choice in favour of torturing the terrorist. Deontologists with a ‘disastrous consequences clause’, allowing for consequentialist considerations to prevail, albeit only in extreme emergencies, raise arguments for torture that are identical. Therefore it is concluded that their approach to the ticking bomb dilemma is indistinguishable, for the purposes of this discussion, from that of consistent consequentialists.
‘Slippery Slope’ and Other Dangers
Authors: Ginbar Yuval
Published: January 2009

This chapter examines ‘slippery slope’ and other dangers of states resorting to torturing terrorists in ticking bomb situations. First, general consequentialist reasons are cited supporting an absolute prohibition on torture in the real world, because of the extent of harm that would result if torture were ever to be allowed. Specific problems in the immediate context, including certainty, immediacy, deciding whom to torture, the effectiveness of torture, and alternatives thereto are examined, as are problems in the wider context, including the ‘institutionalization trap’, the legitimacy torture would accord other inhumane means of fighting terrorism and crime, the effect of torture on conflicts, resort to torture as a victory for terrorism, and the ramifications of legalising torture in a ticking bomb situation for laws and their enforcement. Finally, the Abu Ghraib torture scandal is described as the quintessential ‘slippery slope’ torture case.
Part III—Introduction
Authors: Ginbar Yuval
Published: January 2009

This chapter introduces Part III, examining four models of legalized torture. It focuses on each model's legal aspects, but their practical ones are also addressed in order to assess the extent to which the models have succeeded in limiting torture to ticking bomb and similar situations, and minimizing its effects in the wider context. Two models applied in Israel — the Landau model and the High Court of Justice model — are examined, as well as the theoretical ‘torture warrants’ model and the ‘High Value Detainees’ model applied by the USA in its war on terror. Due to its as yet unsettled and constantly changing nature, the US model is deemed to be one of ‘quasi-legalized torture’. Models of total secrecy and hypocrisy are briefly discussed and dismissed.
The Landau Model in Israel
Authors: Ginbar Yuval
Published: January 2009

This chapter describes and analyzes the Landau model of legalized torture, under which interrogation of suspected terrorists was regulated in Israel between 1987 and 1999, with Supreme Court approval. Shaped by the recommendations of the Landau Commission of Inquiry, which included detailed instructions to interrogators on applying psychological ‘pressure’ and ‘a moderate measure of physical pressure’, the model claimed that such instructions are lawful under the ‘defence of necessity’ provision in the Penal Law, which applies to them. Many thousands of Palestinians, far outweighing the number of those convicted of any terrorist offences during the period, underwent the Landau interrogation methods, pronounced by UN bodies to amount to torture. Methods included various combinations of incommunicado detention, sleep and sensory deprivation, forced painful positions, ‘shaking’, and other humiliating or violent methods. Those applying the techniques according to instructions invariably enjoyed impunity from prosecution.
Part IV—Conclusions
Authors: Ginbar Yuval
Published: January 2009

This chapter concludes Part IV, and examines practical aspects of applying criminal law defences to interrogators who torture terrorists. Under international law, states cannot ever justify torture and other ill-treatment — all ‘coercive’ interrogation methods are prohibited absolutely, and those used by the USA and Israel may and do constitute torture. Theoretically, an uncapped ‘lesser evil’ justificatory ‘defence of necessity’ (DoN) may very narrowly be available to torturers in certain domestic legal systems but is firmly rejected in others, as well as in international criminal law. The DoN and all other ex post models are impractical in that they require amateur torturers to face hardened terrorists in dire emergencies. In reality, the perceived recurrence of ‘ticking bomb’ and similar situations inevitably creates a priori systems of torture and impunity, as has happened in Israel. Realistically, democracies facing terrorism must choose between openly legalizing torture and never torturing (the author's recommended option).
Conclusions
Authors: Ginbar Yuval
Published: January 2009

This chapter provides the book's conclusions. The consequentialist morality of extreme situations, as advocated by those who justify interrogational torture in a ‘pure’ theoretical ticking bomb situation (TBS), is reflected in the actual legal positions and practices of states facing terrorism that have chosen to torture. However, such states face moral, practical and legal obstacles, some of them insurmountable. The words of a UK diplomat, a Palestinian would-be suicide bomber, and an international terrorist are quoted to illustrate everyone's freedom to make — even facing emergencies, danger, and oppression — minimal absolutist choices, rejecting totally both terrorism and torture. Such choices are not fanatic, impractical, or defeatist. In facing a TBS, we must do anything humanly possible to save the lives at risk, which means doing everything in our power that does not involve losing our own humanity. Which in turn means never to torture or otherwise ill-treat another human being.
Introduction
Authors: Neuhouser Frederick
Published: January 2009

This introductory chapter discusses Rousseau's theory of amour-propre. It looks at why Rousseau's theory of amour-propre can be considered a theodicy and the centrality of amour-propre. The chapter also presents some preliminary remarks about his understanding of amour-propre.
The Varieties of InflamedAmour‐Propre
Authors: Neuhouser Frederick
Published: January 2009

The previous chapter examined the various ways in which amour-propre poses dangers for human well-being. This chapter uses the results of that inquiry to construct a more precise and comprehensive account of what inflamed amour-propre consists in than previous interpreters have provided. By surveying the various ways the passion for recognition can go awry, a greatly expanded characterization of inflamed amour-propre is given, one that goes far beyond the so-called prevailing view, which simply equates inflamed with inegalitarian amour-propre (the drive for some form of superior standing in the eyes of others).
Why InflamedAmour‐Propreis So Common
Authors: Neuhouser Frederick
Published: January 2009

This chapter considers Rousseau's two genealogies of amour-propre one at a time, examining each for whatever help it offers in understanding why the fallen state seems to be humankind's default condition. Specifically, the chapter discussed the social origins of amour-propre and the psychological origins of inflamed amour-propre.
Social and Domestic Remedies
Authors: Neuhouser Frederick
Published: January 2009

This chapter seeks to determine what solutions might exist to the numerous problems that amour-propre imposes on human existence. The first section discusses Rousseau's account of how good social and political institutions can hold the development of inflamed amour-propre in check. The second section examines how the same end is achieved by Emile's domestic education.
The Standpoint of Reason
Authors: Neuhouser Frederick
Published: January 2009

This chapter begins with a discussion of Rousseau's ‘justification’ of amour-propre — his account of its beneficial, even redemptive potential. It reconstructs Rousseau's conception of reason, which helps to clarify what is involved in assuming the standpoint of reason as Rousseau conceives it, which is to say: the perspective the individual citizen adopts when deciding on the laws that ought to govern her own (legitimate) political community. It then considers the ‘public’ character of reason.
Legality, Morality, and the Guiding Function of Law
Authors: Waluchow W J
Published: January 2009

This chapter argues in favour of Inclusive Legal Positivism and against Exclusive Legal Positivism. It maintains that philosophers in the latter camp are inconsistent when they propound their account of constitutional adjudication while also claiming that the role of law in guiding human conduct is something that cannot be accommodated by Inclusive Legal Positivism.
Hart and Feinberg on Responsibility
Authors: Gardner John
Published: January 2009

This chapter returns to some of the issues in the philosophy of responsibility that were explored by H. L. A. Hart and Joel Feinberg. It contends that the inadequacies of their theories stem from their mistaken adherence to the view that basic responsibility takes its importance from its relationship with consequential responsibility.
The Basic Liberties
Authors: Pettit Philip
Published: January 2009

This chapter contends that the liberties correctly classifiable as basic are susceptible to being equally enjoyed at the same time by everyone (equal co-enjoyment), important in the lives of normal human beings (personal significance), and not legitimately subject to any restrictions beyond those necessary to satisfy the requirement of equal co-enjoyment. It draws upon Hart's critique of John Rawls in order to develop his account of the chief characteristics of the basic liberties.
Posthumous Rights
Authors: Fabre Cécile
Published: January 2009

This chapter looks at the debate between the Interest Theory and the Will Theory of rights. Most proponents of the Interest Theory believe that it allows for ascriptions of rights to the dead. It argues that any such ascriptions are untenable on the Interest Theory's own terms.
On Being Tolerated
Authors: Green Leslie
Published: January 2009

This chapter identifies why toleration is often uncomfortable for the tolerated, and explores how tolerators might respond to that discomfort. It distinguishes between acceptance, recognition, and understanding, and submits that understanding best affirms the fellowship of tolerators and the tolerated.
17 The Christian Era of Julius Africanus
Authors: Mosshammer Alden A.
Published: January 2009

Syncellus cites Julius Africanus for an interval of 5500 years from Adam to the appearance of the saviour. Syncellus also says that Africanus made the 250th Olympiad correspond with the archonship of Philinus, the consulship of Seleucus and Grams, and the year 5723 from Adam. Since the consulship of Seleucus and Gratus was AD 221, many scholars have concluded that Africanus' date for the birth of Christ was 2 BC. Other evidence suggests that Africanus dated the Resurrection to Olympiad 202.2, AD 30/1, on 25 March at the beginning of the year 5532, which implies creation on 22 March 55Q1 BC and 5501 = 1 BC for the Incarnation and Nativity. This conclusion is consistent with his chronological system as a whole, which seems to have been based in part on the 19‐year cycle. A date for the Nativity on 25 December 5501 = 1 BC agrees with both Panodorus and Dionysius Exiguus.
1 Introduction
Authors: Herrmann Andrea M.
Published: January 2009

This introductory chapter gives an outline of the book. It develops the theoretical framework by combining insights from classical trade theory, the market-based view of strategic management studies, theories on national innovation systems, and the literature on varieties of capitalism. Interestingly, all these strands of the competitiveness literature agree in their expectation that firms within the same economy will respond to increasing competitive pressure by exploiting the comparative advantages of national institutions as they specialize in the facilitated competitive strategies. The chapter then presents the analytical approach and illustrates why a comparison of pharmaceutical firms in Germany, Italy, and the UK is particularly helpful for understanding how firms cope with increasing competitiveness. Since an initial comparison casts doubt on the specialization theory of the competitiveness literature, the chapter introduces the research question addressed throughout the book: how can firms compete despite comparative institutional disadvantages? It concludes with an overview of the findings obtained on functional institutional equivalents and links them back to theoretical debates on regional networks, strategic management views, and entrepreneurial creativity.
2 Patterns of Strategy Specialization
Authors: Herrmann Andrea M.
Published: January 2009

This chapter opens by contrasting two opposing theories on how firms respond to the increasing pressures of international competition: the resource-based view of strategic management on the one hand, and the competitiveness literature on the other. Given that contributors to the competitiveness literature offer more developed theories, the chapter proceeds by assessing their hypotheses on comparative institutional advantages. It thus analyses whether pharmaceutical firms in Germany, Italy, and the UK specialize in the pursuit of a strategy facilitated by national institutions. Since these micro-level analyses do not provide empirical support for the specialization idea, which is typically based on macro-level indicators, a higher level of data aggregation can lead to an overestimation of specialization trends. But if firms in different economies can pursue different competitive strategies, how can they compete despite comparative institutional disadvantages? This concluding question of the chapter is addressed in Part II, including Chapters 3, 4, and 5 of the book.
4 Linking Antitrust Legislation, Standards, and Competitive Strategies
Authors: Herrmann Andrea M.
Published: January 2009

This chapter examines how firms can compete despite comparative disadvantages of national antitrust legislation. It first studies whether pharmaceutical firms in Germany, Italy, and the UK develop different types of component standards to pursue strategies of radical product innovation, incremental product innovation, and product imitation, respectively. Since quantitative analyses of interviews with Quality Assurance managers show that firms differ in their standardization approaches according to the strategies they pursue, the chapter also looks at how national antitrust legislation affects these strategies. Contrary to the findings in the previous chapter, qualitative analyses of interviews suggest that national antitrust legislation constitutes neither a comparative institutional advantage nor a disadvantage. The chapter concludes with reflections on how these findings contribute to the resource-based view and the competitiveness literature, and on reasons why a Schumpeterian perception of firms as creative entrepreneurs may nevertheless help to explain how firms gain competitive advantages.
5 Linking Labour‐Market Institutions, Employee Skills, and Competitive Strategies
Authors: Herrmann Andrea M.
Published: January 2009

This chapter investigates how firms can compete despite comparative disadvantages of national labour-market institutions. It first analyses whether pharmaceutical firms in Germany, Italy, and the UK require employees with different types of skills to pursue strategies of radical product innovation, incremental product innovation, and product imitation, respectively. Since quantitative analyses of employees' skill profiles show this to be the case, the chapter goes on to ask how firms can acquire the necessary skill types if their availability is limited by unfavourable labour-market institutions. Illustrating how firms hire employees from abroad and on the basis of atypical contracts, the chapter identifies international labour markets and contracts as functional equivalents to national labour-market institutions. It concludes with reflections on how these findings contribute to the resource-based view and the competitiveness literature, and illustrates that a Schumpeterian perception of firms as creative entrepreneurs can help to explain how firms compete despite comparative institutional disadvantages.
7 Conclusion
Authors: Herrmann Andrea M.
Published: January 2009

This chapter summarizes and interprets the results obtained throughout the book. It recapitulates that international institutions and contracts serve as functional equivalents to national institutions since they enable firms to secure required input factors for different competitive strategies and, hence, to compete despite comparative institutional disadvantages. Elaborating on these findings, the chapter shows how they can contribute to current theoretical debates. More concretely, they shed light on suggestions found in strategic management theories that underscore factor heterogeneity; on arguments in the institutional literature about how institutions matter; on suggestions about how national policy-making can promote corporate competitiveness; and on convergence and divergence theories of internationalization and its influence on entrepreneurial practices.
Cognitive Distance in and Between Communities of Practice and Firms: Where Do Exploitation and Exploration Take Place, and How Are They Connected?
Authors: Nooteboom Bart
Published: January 2009

This chapter addresses the question of how communities of different types, such as communities of practice and epistemic communities, relate to the task of organizations to combine exploitation and exploration. A key issue is how this relates to ‘cognitive distance’ within and between communities and organizations, and the cognitive ‘focus’ of organizations.
8 Buzz Without Being There? Communities of Practice in Context1
Authors: Gertler Meric S.
Published: January 2009

The geographical literature on communities of practice suggests that geographical proximity should not be confused with relational proximity, and that the latter is more important in determining how easily specialized knowledge can be jointly produced and shared through distributed innovation processes. However, the existing body of work has not specified the critical determinants of relational proximity, and the conditions under which we should expect it to be achieved effectively at a distance. This chapter reviews recent findings from a number of case studies in which distributed teams participating in joint problem-solving projects have attempted to engage in long-distance learning and knowledge translation, with varying degrees of success. Effective distanciated learning is shown to depend on the degree of social affinity between economic actors, and this affinity is comprised of several different dimensions: linguistic, educational, experiential, occupational, organizational, industrial, and institutional. The frictional effects of distance are also shown to depend on the types of knowledge supporting innovation in each case, with synthetic and symbolic forms of knowledge the least amenable to distanciated learning.
Knowledge‐Intensive Firms, Communities, and Creative Cities1
Authors: Cohendet Patrick , Simon Laurent
Published: January 2009

This contribution focuses on the relationship between the urban milieu and high creativity firms, focusing on the videogames sector in Montreal. It reveals an organizational frame of a lack of large R&D departments and a lack of global networks of subsidiaries or partners through which firms access creative knowledge. None of these classical ways to enhance creativity is present. Instead, creativity relies on distributed and independent communities of knowing which generate, exploit, and develop a ‘creative slack’ as a source of growth for the firm. These communities find their source of inspiration and innovation in the fertile soil of a creative city.
Peremptory Norms as International Public Order
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter focuses on the origins of the notion of jus cogens (public order/public policy) and examines its fundamental characteristics by reference to different national legal systems. It then examines the necessity of jus cogens in international law and some doctrinal objections to it.
Distinctive Characteristics of Peremptory Norms
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter focuses on distinctive characteristics of peremptory norms, in particular on its absolute character, non-derogability, and the effect-oriented profile.
Sources and Modification of Peremptory Norms
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements of Article 53 of the Vienna Convention on the Law of Treaties.
Peremptory Norms and the Validity of the Actions of States
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter deals with the validity of acts and actions of States — that is non-treaty acts in the broadest sense — in the ways they come into collision with jus cogens. The analysis begins with the general aspects of validity of State acts and actions, in doctrinal and practical perspectives. Special areas are then examined: illegal territorial acquisitions, amnesties for international crimes, and illegal grant of nationality.
Peremptory Norms and the Allocation of Jurisdiction to States
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter focuses on universal criminal jurisdiction and duty to prosecute serious international crimes as incidences of jus cogens, and expands on the available evidence. Universal civil jurisdiction is examined in the context of the 1984 Torture Convention and judicial practice. The reflection of these concepts in the framework of human rights treaties is examined.
Problems of Subsequent Validation of Breaches ofJus Cogens
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter examines whether breaches of peremptory norms can be addressed after they are committed: through the devices of recognition, waiver, acquiescence, and prescription. After examining the historical background, and conceptual basis of validation claims in doctrine, the analysis proceeds to examine each of the above devices on its own merit, and the impact of jus cogens on them.
Peremptory Norms and International Judicial Jurisdiction
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter considers the general interaction between international judicial jurisdiction and jus cogens, in the context of more general theses that while on the one hand judicial jurisdiction is based on consent, the principal profile of jus cogens is its effect-oriented character. It considers the impact of interpretation of jurisdictional clauses in terms of the impact of jus cogens, as was most pertinently illustrated in the Oil Platforms case before the International Court of Justice, and the possibility that international tribunals raise jus cogens issues proprio motu. The chapter also covers jurisdiction under Article IX of the 1948 Genocide Convention and Article 66 of the 1969 Vienna Convention on the Law of Treaties. As a follow-up on this chapter, section 4 of the appendix of this monograph should be consulted.
The Impact ofJus Cogenson Friendly Settlement and Discontinuance of Cases
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter examines the legality of discontinuance and friendly settlement of cases brought before international tribunals and alleging breaches of jus cogens. The practice of major international tribunals is covered.
Techniques of Interaction of InternationalJus Cogenswith National Law
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter reflects on different modes of how international jus cogens can be received into, or have its effect excluded from, national legal systems. Premised on strict separation between national and international legal reasoning, the chapter addresses various techniques, including incorporation and transformation, and covers the practice of national courts in detail. Specific subject-matters of this practice relate among others to universal jurisdiction and State immunity.
How Moral Principles can Enter into the Law
Authors: Kramer Matthew H.
Published: January 2009

This chapter defends Inclusive Legal Positivism and Incorporationism against objections posed by Scott Shapiro. At the same time, it distinguishes between a bold version and a modest version of Incorporationism, and it explains why the latter is to be preferred to the former.
Throwing Light on the Role of Moral Principles in the Law: Further Reflections
Authors: Kramer Matthew H.
Published: January 2009

This chapter develops further the positions taken in Chapter 1, and it explains how moral principles can enter into the law of a legal system even if legal officials are mistaken in many of the concrete moral judgments which they reach during their adjudicative and administrative determinations. It replies to criticisms directed by Scott Shapiro and Jules Coleman against an early version of Chapter 1.
On Morality as a Necessary or Sufficient Condition for Legality
Authors: Kramer Matthew H.
Published: January 2009

This chapter rebuts arguments by Exclusive Legal Positivists who have sought to show that the entry of moral principles into the law would be inconsistent with some of law's prominent features: its conventionality, its regularity, and its capacity to limit official discretion. After doing battle with Exclusive Legal Positivists (Andrei Marmor, Eleni Mitrophanous, and Joseph Raz), the chapter expounds further the merits of Inclusive Legal Positivism and the modest version of Incorporationism.
Of Final Things: Morality as one of the Ultimate Determinants of Legal Validity
Authors: Kramer Matthew H.
Published: January 2009

This chapter expounds the idea of a Rule of Recognition (that is, a basic set of law-ascertaining criteria) in every legal system. It then parries Kenneth Himma's criticisms of Inclusive Legal Positivism and Incorporationism. In so doing, the chapter expands on Chapter 2's explanation of how moral principles can enter into the law of a legal system whose officials are mistaken in many of their concrete moral judgments.
On the Moral Status of the Rule of Law
Authors: Kramer Matthew H.
Published: January 2009

This chapter begins with a discussion of the distinction between reasons-for-action and actual motivations, and it then moves on to engage with two prominent critics of legal positivism: Nigel Simmonds and Philip Soper. The chapter reaffirms legal positivism's insistence on the separability of law and morality, in the face of Simmonds's and Soper's challenges.
Moral Rights and the Limits of the ‘Ought’-Implies-‘Can’ Principle: Why Impeccable Precautions are No Excuse
Authors: Kramer Matthew H.
Published: January 2009

H. L. A. Hart and many other philosophers have maintained that fault-independent liability is sometimes imposed by legal norms but never by moral principles. This chapter assails such a view, by arguing that fault-independent liability is more common in morality than in law. In the course of arguing for such a conclusion, it expounds the nature of moral rights with particular attention to the remedial obligations that are triggered by violations of those rights.
The Interpretation of Acts and Rules in Public International Law
Authors: Orakhelashvili Alexander
Published: January 2009

There are frequent claims that the international legal regulation in one or another field of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary prerequisite for international law to be viewed as law. This study examines this problem for the first time since these questions were addressed, and taken as the basic premises of the international legal analysis in the works of J. L. Brierly and Sir Hersch Lauterpacht. Addressing the different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on and threshold of legal regulation, and the relationship between the established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves the maintenance and preservation of the object and intendment of the existing legal regulation. The final indispensable stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.
Interest as Non-Law
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter examines doctrinal and practical aspects of relationship between law and interest. There are two principal dimensions: how interest may prompt new legal regulation, and how interest can affect the existing legal regulation. The systemic relevance of interest under the law of State responsibility is also covered. Major emphasis is made on such areas of law as nationality, territory, and law of the sea. Jurisprudence of all major international tribunals is included.
Treaty Interpretation: Rules and Methods
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter begins by examining the constitutional relevance of the Vienna Convention rules of interpretation, and the debate on the need for rules of interpretation. After covering historical and conceptual aspects of the problem, it examines in detail the principles of interpretation in terms of plain meaning, context, object and purpose, subsequent practice, ‘relevant rules’ of international law, and preparatory work. The hierarchy of interpretation methods is arranged in terms of which method better reflects the original consent and agreement given by States to treaties. In terms of recent debate, the notion of ‘systemic integration’ is also addressed. The practice examined covers ICJ, WTO dispute settlement bodies, arbitral tribunals (general and investment), WTO dispute settlement bodies, and European Court of Human Rights.
Treaty Interpretation: Effectiveness and Presumptions
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting treaties in general, for avoiding redundancy of treaty clauses, for interpreting exceptions, and construing the powers of international organisations and tribunals on the basis of the doctrines of implied and inherent powers. The chapter demonstrates that the principle of effectiveness is received in international jurisprudence without any substantial objection, and it negates the principle of restrictive interpretation, which is consistently rejected in jurisprudence.
Interpretation of Jurisdictional Instruments
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter relates the principle of effectiveness to the arguably opposite argument of consensual nature of judicial jurisdiction. Focusing on the interpretation conferring jurisdiction to international tribunals, it concludes that the principle of consent cannot obstruct effective interpretation.
Interpretation of Customary Rules
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter covers the interpretation of customary rules arguably for the first time in English. The nature of customary rules, in terms of whether they are substantive or reference rules, will explain how they should be interpreted. Although customary rules are not written, they still have their object and purpose and can be interpreted effectively. The whole process responds, as international jurisprudence demonstrated, to the thesis of effective interpretation of existing legal regulation as articulated in the writings of Sir Hersch Lauterpacht. The principal material used in this chapter relate to the law of the sea and investment arbitration.
The Essence of and Response to the Indeterminacy of Treaty Provisions
Authors: Orakhelashvili Alexander
Published: January 2009

This chapter focuses on a number of contexts where the policy-abundant indeterminate notions are included in treaties with the effect of impacting the rights and duties of States. These contexts relate to indeterminate margin of appreciation policy notions under the European Convention on Human Rights and the WTO law, ‘self-judging’ clauses of treaty termination under trade, investment and disarmament treaties, and the concept of the threat to the peace under Article 39 of the UN Charter. The principal findings of the chapter relate to the ways of eliminating subjective judgment in interpretation, and to the criteria of locating the observable elements of indeterminate ‘political’ notions included in treaties. The role of judicial review is also addressed to help interpreting indeterminate notions.
Life in the Flesh
Authors: Cooper Adam G.
Published: January 2009

Christianity is deeply interested in the living human body, since each body is a person, and each person a creature and image-bearer of God. The classic sources of the Christian tradition engender a spiritual philosophy that challenges the contemporary gnostic impulse to marginalize the body, to reduce it to meat. At the same time, a Christian metaphysics of the flesh affirms the human substructure as a bodily-spiritual synthesis. Since the person is an enfleshed spiritual being, the human body bears intrinsic personal meaning. In the three great mysteries of God's dealings with the universe—creation, incarnation, and resurrection—all material reality, but especially spirited, sensible, sexed, and social human flesh, is radically implicated. By dwelling in these mysteries, that is, by mentally and physically assimilating ourselves to the semitive and sacramental symbols that communicate their truth, we find that they have power to illumine whole vistas of knowledge that do not belong exclusively to the provenance of Christian revelation and belief, but are open to all people. In the light of the incarnate Christ, these other spheres of reality become especially luminous. With a Christian metaphysics of flesh, illuminated by the incarnation, we are able to address a number of pressing intellectual, ethical, and social questions about bodily life with philosophical integrity.
1 The Old Testament
Authors: Cooper Adam G.
Published: January 2009

The Hebrew Scriptures contain the seeds of later Christian theology of the body. Created by God, human flesh is integral to personal and relational constitution. Sacrificial flesh, manipulated in accordance with the divine mandate, becomes the means of purification from sin and the locus of spiritual communion with God. Flesh, as a metaphor for weakness and humility, creates in the human being the requisite vulnerability to suffer the action of divine mercy.
5 Martin Luther
Authors: Cooper Adam G.
Published: January 2009

Luther's theology is not sufficiently appreciated for its intensely incarnational and sacramental character. Recent Luther research has uncovered the intellectual roots of his thought in patristic and medieval sacramental theology, and his resultant and vigorous anti-spiritualizing impulse. Luther redefines ‘spiritual’ to mean not ‘non-material’, but impregnated with the Holy Spirit. In localizing himself in specific material and liturgical realities, God fills them with Spirit, imbues them with deifying power, and constitutes them as ‘the bodily word of the Gospel.’
Conferral
Authors: De Baere Geert
Published: January 2009

This chapter focuses on the specificity of the operation of the principle of conferral within EC external relations, as compared with internal Community competences. The most significant particularity is the great importance of the doctrine of implied competences. The chapter is divided into three sections, analysing respectively external competences explicitly granted to the Community in the EC Treaty, external competences not spelled out literally in the EC Treaty, but inferred from its text, and external competences based on general legal bases.
Managing the Vertical Axis
Authors: De Baere Geert
Published: January 2009

This chapter analyses two constitutional concepts of vital importance for the management of the vertical division of competences: the technique of mixity and the vertical aspect of the principle of consistency. In focusing on a technique that has developed specifically in the field of external relations, and on a principle which, in practice, has been found to have a more significant part to play in Union foreign policy than in its internal policies, the flexibility with which the Union legal order addresses the specific needs of external relations is brought to the fore.
Reframing Social Citizenship
Authors: Taylor-Gooby Peter
Published: January 2009

Recent reforms in welfare states generate new challenges to social citizenship. Social citizenship depends on the readiness of voters to support reciprocity and social inclusion and their trust in welfare state institutions as services that will meet their needs. Reform programmes in most western countries combine New Public Management, linking market competition and regulation by targets to achieve greater efficiency and responsiveness to service-users, and welfare-to-work and make-work-pay activation policies to manage labour market change. Both developments rest on a rational actor approach to human motivation. The UK has pursued the reform programme with more vigour than any other major European country and provides a useful object less of its strengths and limitations. The book provides a detailed analytic account of social science approaches to agency. It shows that the rational actor approach has difficulties in explaining how social inclusion and social trust arise. Policies based on it provide weak support for these aspects of citizenship. It is attractive to policy-makers seeking solutions to the problem of improving the efficiency and responsiveness of welfare systems in a more globalised world, in which citizens are more critical and the authority of national governments is in decline. Recent reform programmes were undertaken to meet real pressures on existing patterns of provision. They have been largely successful in maintaining mass services but risk undermining social inclusion and eroding trust in public welfare institutions. In the longer term, they may destroy the social citizenship essential to sustain welfare states.
1 Social Citizenship Under Pressure
Authors: Taylor‐Gooby Peter
Published: January 2009

This chapter discusses social citizenship and identifies three main components: reciprocity (necessary to support horizontal redistribution), social inclusion (supporting vertical redistribution), and trust in institutions (vital to the political legitimacy of the enterprise). It reviews current challenges to the welfare state from population ageing, changes in family and household patterns and in the labour market, the growing assertiveness of citizens, and other factors, and briefly examines government responses in Europe.
3 The Response of Government
Authors: Taylor‐Gooby Peter
Published: January 2009

This chapter analyses responses to the pressures on social and public provision among European countries and at the level of the EU. It argues that attempts to develop common EU-wide social provision have been largely unsuccessful, while EU monetary and open market policies have transformed the economic context. Social policy reforms have developed mainly at the national level, in the shadow of European economic policies. While major differences remain between groupings of countries, two common directions can be identified. Social security benefit, employment, and labour market reforms strengthen work incentives and increasingly put the responsibility on individuals to pursue opportunities actively. New Managerialist policies in health, social care, and other services impose strict targets on providers and introduce competitive quasi-markets. Taken together these new policy directions imply a shift in the assumptions about social citizenship. Those involved as providers and users are expected to act as deliberative and pro-active rational actors, with individual opportunities and incentives playing a major role. Governments become increasingly concerned with equality of opportunity rather than outcome.
4 The Assumptive World of Welfare State Reform
Authors: Taylor‐Gooby Peter
Published: January 2009

This chapter develops the arguments about individual rational action and social and public policy discussed in Chapters 2 and 3 and relates them to social science theories of agency. It argues that a central problem of social science is the reconciliation of the everyday life experience of individual choice and agency with the evidence that people behave in ways that are co-ordinated and largely cohesive in societies. It distinguishes individual rational actor traditions from those that stress the role of normative principles and of symbolic communication and expressiveness in action. It shows how the individual rational actor approach is increasingly attractive to policy makers, because it offers a framework in which policies can be developed and justified on the grounds that they reinforce an appropriate structure of incentives.
6 Rational Actors and Social Citizenship
Authors: Taylor‐Gooby Peter
Published: January 2009

This chapter examines the arguments about whether social citizenship can be based on an individual rational actor logic or requires a framework of normative principles, embedded in the institutions of social provision and in policy-making. The arguments of Titmuss, Le Grand, and others about blood donorship, social care, and other areas where altruistic and humane rather than self-regarding values appear to be central are considered. Individual rational actor approaches can explain how reciprocity and a limited social inclusion may be sustained, as Chapter 4 showed. Analysis of social psychological, sociological, and economic evidence shows that a full understanding of trust rests on both the alignment of interest that a rational actor logic can explain and also the recognition of values of commitment and care in the trusted person. These are contradicted when action is driven by externally imposed incentives. The trust deficit is a central issue in rational actor reform of social provision.
7 Putting the Theory into Practice: The UK Experience
Authors: Taylor‐Gooby Peter
Published: January 2009

For a number of reasons the reframing of social citizenship has been pursued more rapidly in the UK than in most other countries, so that national experience offers a useful object lesson in the strengths and weaknesses of rational actor reforms in the European context. This chapter analyses the reframing process in detail under successive governments, paying attention to the institutional structure of government departments, the part played by the Treasury, and the understanding of the challenges by the chief policy actors. It discusses the logic of policy reform in official documents and shows how rational actor assumptions predominate. The problems identified in relation to the new policies are chiefly to do with the difficulties of structuring incentives appropriately and of establishing a level playing field for equal opportunity policies. The issues that provider incentives may focus on the competitive advantage of their particular agency rather than public benefit, social inclusion may receive little support, and the value basis of social trust may be damaged receive insufficient recognition.
8 The NHS Reforms as a Response to First‐Order Challenges
Authors: Taylor‐Gooby Peter
Published: January 2009

Chapters 8 and 9 seek to anchor the analysis of the previous three chapters in a concrete policy context by considering the impact of recent reforms in the field of UK health care. The NHS is the flagship of the British welfare state and at the heart of public sector reform. A New Public Management system (quasi-markets, strict targets and strong incentives for managers, regulation of quality from the centre, and better information for users) has transformed the service. Comparisons of changes in provision over time and between regions of the UK indicate considerable improvement at a time of increasing pressure on health care. However, these gains rest on substantially increased resources and there has been little improvement in cost-efficiency and productivity. Improvements for disadvantaged minorities are much less impressive. Public attitudes and responses display considerable disquiet with the reform programme, particularly in relation to confidence and trust.
9 Second‐Order Challenges: Disenchantment, Disquiet, and Mistrust
Authors: Taylor‐Gooby Peter
Published: January 2009

This chapter explores public understanding of and responses to the reform programme in more detail. Analysis of attitude surveys, media discussions, and political debates shows that the NHS remains highly valued. The disquiet surrounding the reforms continues despite objective improvements in treatment for most groups. Detailed interviews with members of the public show that the managerial and market reforms are regarded as irrelevant by most people and that there is widespread concern that these changes are undermining staff commitment to the interests of service-users. Declining public trust and the sense that policy makers do not recognise public concerns are central to the debate.