bluuebunny/crossref_metadata_2025 huggingface dataset:
Enforcement of Judgments
Authors: SHELTON DINAH
Published: January 2010

All international tribunals have expressed concern over ensuring that their views, decisions, and judgments are made effective and that remedies are afforded to the victims of human rights violations. Some of the most innovative developments in the law of remedies can be seen in this regard, such as the establishment of trust funds by the Inter-American Court. International tribunals have jurisdiction to protect the awards made to victims. As the Inter-American Commission's evaluation demonstrates, compliance with what states choose to perceive as mere recommendations has not been good. A similar study of compliance with views of the United Nations Human Rights Committee or Committee on the Elimination of Racial Discrimination would probably yield similar results. States do seem to take more seriously judicial bodies and the treaty commitments they have undertaken to abide by judgments in cases to which they are party.
International Crimes and the Ad Hoc Tribunals
Authors: Mettraux Guénaël
Published: January 2010

The contribution of the ad hoc tribunals to international criminal law and international justice has been manifold, both academically and historically, and they will continue to influence the findings and decisions of many other courts (both domestic and international), provoking discussion for many years to come. This volume provides the first comprehensive analysis of the law of international crimes as applied by the ad hoc tribunals for the former Yugoslavia and Rwanda. This book examines the legal and historical significance of some of the most important judicial developments to occur in the last fifty years in international criminal law. It states the law of the tribunals, and provides concrete illustrations of the application of the law to a variety of criminal cases, providing a comprehensive and detailed analysis of this voluminous body of jurisprudence. The primary focus is on the jurisdiction ratione materiae of the tribunals: the definition and application of the law of war crimes, crimes against humanity, and genocide. However, it also examines the tribunals’ jurisdiction ratione personae, insofar as this enables a full understanding of the law of crimes (for instance, in relation to forms of criminal liability).
5 War Crimes in the Statutes of the ad hoc Tribunals
Authors: Mettraux Guénaél
Published: January 2010

A war crime, for the purpose of the ad hoc tribunals created for the former Yugoslavia and Rwanda (the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), consists in a serious violation of the laws or customs of war entailing individual criminal responsibility. Within that general framework, the statutes of the tribunals contain a list of war crimes over which the tribunals may in principle exercise their jurisdictions. Whereas the subject-matter jurisdiction of both ad hoc tribunals is almost identical in relation to crimes against humanity and genocide, their respective jurisdictional framework has been cast quite differently in relation to war crimes.
11 Chapeau Elements of Crimes against Humanity
Authors: Mettraux Guénaél
Published: January 2010

What distinguishes a crime against humanity from an ordinary crime (or from other international crimes) is the requirement that it must have been committed in the context of a widespread or systematic attack against a civilian population. This requirement, which constitutes the chapeau or general requirements of crimes against humanity, must be seen as a whole and sets out the necessary context in which the acts of the accused must be inscribed. For the purpose of discussion, it may be divided, however, into five sub-elements: an attack; a link or nexus exists between the acts of the accused and the attack; the attack is directed against any civilian population; the attack is widespread or systematic; and the perpetrator has the appropriate state of mind or mens rea.
12 Underlying Offences
Authors: Mettraux Guénaél
Published: January 2010

The chapeau elements discussed in the previous chapter represent the general requirements which any criminal act must meet before qualifying as a crime against humanity. In addition, the underlying offence which forms the basis of the charges against the accused must be one of the acts listed in Article 5 and Article 3, respectively, of the statutes of the ad hoc tribunals for Rwanda and the former Yugoslavia, namely: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; other inhumane acts. The perpetrator need not bear principal responsibility for any of these offences to be found guilty of a crime against humanity; it is enough that he participated in any manner specified in Article 7 and Article 6 of the statutes of the Yugoslav and Rwanda tribunals, respectively.
16 Genocide and other Forms of Criminal Involvement
Authors: Mettraux Guénaél
Published: January 2010

A genocidal offence may be committed by act or omission, and the perpetrator need not have been involved in any patterns of criminal behaviour. As with the other crimes within the jurisdiction of the ad hoc tribunals for Rwanda and the former Yugoslavia, the official position of the accused may not relieve an accused of criminal responsibility for genocide, nor would it mitigate his punishment. This chapter discusses the various listed forms of criminal participation (Articles 4/2 (a-e) of the statutes of the Yugoslav and Rwanda tribunals), including genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. Other forms of criminal participation may include command responsibility and joint criminal enterprise or common purpose doctrine.
18 Jurisdiction ratione personae and Applicable Law
Authors: Mettraux Guénaél
Published: January 2010

The statutes of the ad hoc tribunals for Rwanda and the former Yugoslavia do not explicitly specify the body of law according to which they are to determine the scope and definitions of those forms of liability which are provided for under their statutes. At the Yugoslav tribunal, the appeals chamber has made it clear, however, that the statute of the tribunal only provides an a priori jurisdictional framework ratione personae and that, ultimately, the existence (and constitutive elements) of a particular form of criminal liability under international law as well as the tribunal’s jurisdiction over that particular form of liability (and scope thereof) will be determined by customary international law. The issue of applicable law, ratione personae, has not yet been raised explicitly at the Rwanda tribunal, but it is more than probable that the tribunal should also have recourse to customary international law to determine the scope of its jurisdiction ratione personae.
26 Genocide and Crimes against Humanity
Authors: Mettraux Guénaél
Published: January 2010

Genocide is often viewed as the ultimate crime against humanity, but they are in fact legally distinct. First, crimes against humanity and genocide have a different mens rea. Second, the range of underlying offences which may qualify as genocidal is more restricted in scope than those that may qualify as crimes against humanity. Third, crimes against humanity must be committed in the context of an armed conflict, whereas genocide may be committed in time of peace as well as in time of war. Fourth, the definition of genocide unlike that of crimes against humanity does not require that the acts of the accused occur in the context of a widespread or systematic attack against a civilian population. Fifth, whereas a crime against humanity may only be committed against civilians, genocide can be committed against any member of the targeted group, whether combatants or civilians. This chapter also discusses the distinction between genocide and persecution and between genocide and extermination.
Open Secrets
Authors: Bell Michael
Published: January 2010

This book reflects on humanistic education by examining the limits of the teachable in this domain. The Goethean motif of the open secret is not a mystery revealed but an utterance not understood, the likely fate of all instruction based purely on authority. This study reviews the pedagogical relationship in the European Bildungsroman from the point of view of the mentor rather than that of the young hero, but it also extends beyond the novel to encompass works in which the category of fiction has a crucial and constitutive function, for a growing awareness of limited authority on the part of the mentor figures is closely related to fictive self-consciousness in the texts. Rousseau's semi-novelised treatise, Emile, is relatively unaware of the fictive nature of its own authority; whereas in Sterne, Wieland, Goethe, and Nietzsche, the situation is reversed, culminating in the conscious impasse of authority in Thus Spoke Zarathustra. While all these latter writers achieve their impact despite, indeed because of their internal scepticism, in the three subsequent writers, Lawrence, Leavis, and Coetzee, the impasse becomes more literal as the authority of Bildung is eroded in the wider culture. Yet in all cases, awareness of pedagogical authority as a species of fiction, to be exercised in an aesthetic spirit, is a significant prophylactic against the perennial pressure of reductive conceptions of education as instructional ‘production’.
Goethe’s Open Secrets: Wilhelm Meister’s Apprenticeship
Authors: Bell Michael
Published: January 2010

This chapter considers how the ironic treatment of Wilhelm Meister's process of maturing is coloured by Goethe's self-conscious irony with respect to the authority of the novel's own fictive world. Just as Wilhelm's mentors within the novel, the self-styled Society of the Tower are revealed to be divided and uncertain, so the last book of the novel subjects some of its own most powerful poetic elements, Mignon and the Harpist, to prosaic explanations. The gim-crack theatricality of the ceremony in the tower is an image of the book's wisdom. At the same time, as the principal mentor, the Abbé, with his policy of non-interference, enacts Rousseau's risky principle of delay, he is vindicated by the optimistic providence of the novel. Goethe's trust in life is given a transparent veil of fiction, with an irony that is protective and pre-emptive rather than destructive.
The Novelist, the Lecturer, and the Limits of Persuasion: J. M. Coetzee and Elizabeth Costello on the Lives of Animals and Men
Authors: Bell Michael
Published: January 2010

J. M. Coetzee is perhaps the author who most exemplifies at the turn of the century the nature of literary authority; a power and a predicament he has repeatedly thematised while refusing to translate the authority of his writing into its supposed political or ideological equivalents. This chapter is devoted mainly to a close reading of The Lives of Animals in its original form and context as one of the 1998 Tanner lectures at Princeton. Costello herself is far from being a simple mouthpiece for the author and her account of the novelist's sympathy is vulnerable as well as eloquent. Although it is often discussed, and not inappropriately, for its thematic contribution to public debate on the human relation to animals, the mutual embedding of formal lecture and fictional narrative gives the work a philosophical focus on the incommunicability of all radical conviction that falls outside conventional norms.
Conclusion
Authors: Bell Michael
Published: January 2010

While the preceding chapters have stressed a tradition of radical scepticism about the effectiveness of educational authority, this concluding chapter redresses the emphasis by indicating that this scepticism is best employed not as an alibi for giving up on this responsibility but as a vital part of its internal dynamic. Just as the Nietzschean critique of Bildung could come only from a gebildete Mensch, so this critique is not offered in support of those who would abandon all initiation into artistic and cultural canons. An undirected, ‘student-centred’ conception is as wide of the mark as the naively instructional. In this respect, the chapter takes issue with Jacques Rancière's The Ignorant Schoolmaster, to affirm the continuing value of humanistic pedagogy on the Socratic model understood as a form of artistic dramatisation. Schiller's notion of the aesthetic remains powerful and pertinent with the further understanding that education should itself be conducted aesthetically.
Conclusion
Authors: FEARN DAVID
Published: January 2010

This chapter presents a synthesis of discussions in the preceding chapters. It argues that classical scholarship has generally sought to evaluate Bacchylides negatively by placing him side by side with Pindar and aestheticizing the poetry and separating it from the contexts in which it was originally commissioned. It is not that value-judgements on the relative merits of the two poets are impossible, unnecessary, or embarrassing. But it is necessary to bring to light and thus to reframe the social situations in which value judgements relating to poetry and literary canons are made throughout their history, and thus to have an awareness of the background to one's own cultural and theoretical position.
Quantum information I
Authors: Vedral Vlatko
Published: January 2010

Information is often considered classical in a definite state rather than in a superposition of states. It seems rather strange to consider information in superpositions. Some people would, on the basis of this argument, conclude that quantum information can never exist and we can only have access to classical information. It turns out, however, that quantum information can be quantified in the same way as classical information using Shannon's prescription. There is a unique measure (up to a constant additive or multiplicative term) of quantum information such that S (the von Neumann entropy) is purely a function of the probabilities of outcomes of measurements made on a quantum system (that is, a function of a density operator); S is a continuous function of probability; S is additive. This chapter discusses the fidelity of pure quantum states, Helstrom's discrimination, quantum data compression, entropy of observation, conditional entropy and mutual information, relative entropy, and statistical interpretation of relative entropy.
Outlook
Authors: Vedral Vlatko
Published: January 2010

This book has discussed the foundations of quantum information science as well as the relationship between physics and information theory in general. It has considered the quantum equivalents of the Shannon coding and channel capacity theorems. The von Neumann entropy plays a role analogous to the Shannon entropy, and the Holevo bound is the analogue of Shannon's mutual information used to quantify the capacity of a classical channel. Quantum systems can process information more efficiently than classical systems in a number of different ways. Quantum teleportation and quantum dense coding can be performed using quantum entanglement. Entanglement is an excess of correlations that can exist in quantum physics and is impossible to reproduce classically (with what is termed “separable” states). The book has also demonstrated how to discriminate entangled from separable states using entanglement witnesses, as well as how to quantify entanglement, and looked at quantum computation and quantum algorithms.
Polytheism and Society at Athens
Authors: Parker Robert
Published: January 2010

This book makes use of recently discovered archaeological and epigraphical evidence to give an account of the religious life of ancient Athens. The city's many festivals are discussed in detail, with attention to recent anthropological theory; so too, for instance, are the cults of households and of smaller groups, the role of religious practice and argumentation in public life, the authority of priests, the activities of religious professionals such as seers and priestesses, magic, and the place of theatrical representations of the gods within public attitudes to the divine. A final section considers the sphere of activity of the various gods, and takes Athens as a uniquely detailed test case for the structuralist approach to polytheism.
2 ‘Those with Whom I Sacrifice’
Authors: Parker Robert
Published: January 2010

This chapter looks at aspects of the religious role of the household that are often overlooked. The focus is on the role of cults in holding social groups together in amity or at least intimacy. The bonding created was not confined to members of the same household or to kin; the shared sacrifices of non-kin are a further central aspect of private religion. It is a fallacy to suppose that the temples of the acropolis and the festivals of the city hosted a formal and civic religion detached from the more personal and urgent religious concerns of the Athenians. Although civic festivals were important events in the life of individuals and families, the oikos itself was not a sealed unit. Sacrificing together and attending festivals together were the most important contexts for the expression of social intimacy, but one might engage in these activities with one's kin, with one's friends, or with a mixture of both.
5 Who Prays for Athens? Religion in Civic Life
Authors: Parker Robert
Published: January 2010

This chapter examines some particular aspects of public religion in ancient Athens, focusing on religious decision-making and authority, the power and influence of priests and priestesses, magistrates, other religious specialists, and of the council and assembly. The priests and priestesses are those appointed by the city, by the gene traditionally so empowered on behalf of the city, or by the demes, to serve particular gods in particular sanctuaries. These are the priests and priestesses who served bodies that had both a civic and a religious identity. The chapter then turns to the place of religion in the main public domains of Athenian life, considering behaviour along with the role of religious practices within the procedures of the assembly, the courts, and the army. The types of religious argument and evidence that might and might not be explicitly deployed in those contexts are discussed.
11 Parthenoi in Ritual
Authors: Parker Robert
Published: January 2010

This chapter discusses the rituals assigned to parthenoi in ancient Athens, including rituals in which boys of the upper classes participated during their education prior to the ephebate. It was necessary for the presence of a parthenos as ‘basket-bearer’ in every sacrificial procession. In visible rituals it fell to a large extent to parthenoi to embody the feminine presence in Athens. This chapter considers a famous passage of Aristophanes's Lysistrata, in which the chorus explain why they will now offer good advice to the city. They provide rare native testimony to the idea, familiar to outside observers, that it was cultic citizenship above all that gave women a sense of belonging to that city from whose political deliberations they were excluded. They also treat their religious services not as contributions that they have made to the life of the city but as privileges that have been granted to them.
13 Women’s Festivals: Thesmophoria and Adonia
Authors: Parker Robert
Published: January 2010

Aside from oaths, festivals are another expression of the separateness of the female religious sphere in ancient Greece. In Athens, as in most regions of Greece, much the most important member of that class was the Thesmophoria. For a married citizen woman, participation in the festival was a defining experience. The rite was, it seems, celebrated by all the wives of Athenian citizens (with their little children), and by them only. Even if not all married women participated every year, the point remains that they had the right, and were apparently expected, to attend. The Thesmophoria must have been the most striking interruption of the year in the routine of women's lives. Another festival that women of all types were free to attend was the Adonia. During the festival, seeds of quick-growing plants (lettuce and fennel) were planted on large potsherds to create the so-called gardens of Adonis.
15 Eleusinian Festivals
Authors: Parker Robert
Published: January 2010

The Mysteries were, and are, the most famous festival in ancient Greece. Huge throngs usually went from Athens to Eleusis for the Mysteries, raising the iakchos (mystic chant) cry on the way. Visitors came for the single, all-glorious festival, but the Mysteries need to be put in a broader context. Other festivals of Demeter and Kore were also celebrated at Eleusis, several of them with involvement of the same sacred personnel who had central roles at the Mysteries. The Eleusinia contains not only competitions but also sacrifices. Another Eleusinian festival is the Haloa, which apparently occurred at Eleusis only, with the priestess of Demeter as a possible main celebrant, and expenses met from the funds of the goddesses. Another Eleusinian festival is Proerosia, whereby a pre-ploughing sacrifice was celebrated in various demes of Attica but the rite at Eleusis was the most prestigious.
17 Gods at Work I: Protecting the City
Authors: Parker Robert
Published: January 2010

Greeks called on the gods and heroes who occupied their territories to lend aid in times of crisis, but never tried to list who they might be. Attempts to reveal the hidden essence of particular gods or to identify this god with that were not rare. But neither the ordinary politicians who kept the cults going nor speculative thinkers were concerned to quantify the pantheon, to list all the gods, or to explain the relations between them. If one attempts today to describe the indescribable, the best starting point is the application of structuralist ideas to the study of Greek polytheism that occurred in the 1960s and 1970s. The central and defining proposition is that Greek gods need to be studied not one by one but with reference to one another, as members of a pantheon. This chapter discusses the role of Greek gods as protectors of the acropolis.
Epilogue
Authors: Parker Robert
Published: January 2010

Studies of religion and history of Greece have traditionally gone their own, largely independent ways. Studies of Greek social and moral values are a more recent genre, but now that they exist they too follow a third path of their own that only occasionally intersects with the other two. Specialists in Greek religion may be inclined to seek an explanation in the inadequacies of traditional approaches to Greek history. Superficial similarities between the Greeks and ourselves have created the illusion, they might urge, that their political behaviour like ours can be analysed in secular and rational terms; the omnipresent myths, rituals, and expressions of respect for the gods are ignored, whereas in reality they are the underpinning, the emotional and cognitive foundation, of the whole of communal life. Respect for the gods, respect for the fatherland, respect for ancestral tombs, respect for parents: the deep conservatism inherent in Greek religion could not be more clearly revealed.
Self-Rule and Procedural Justice
Authors: BRUDNER ALAN
Published: January 2010

This chapter discusses the ways in which a government's duty under egalitarian public reason to provide conditions for self-rule is concretized within the liberal constitution. In particular, it discusses the changes (from the libertarian constitution) this duty makes to the individual's procedural rights in the trial and administrative processes; and it provides a theoretical account of the right to remain silent and of the administrative duty to act fairly. The chapter distinguishes the procedural consequences of the egalitarian principle regarded as constituent of liberal justice from those of the egalitarian principle regarded as fundamental. It argues that, while constituent egalitarianism produces procedures free persons could accept, fundamentalist egalitarianism does not. It also argues that, because it systematically disenfranchises particular interests, fundamentalist egalitarianism is incapable of producing institutions of representative government adequate to its own ideal of democratic self-rule.
Sex, Family, and Self-Authorship
Authors: BRUDNER ALAN
Published: January 2010

This chapter discusses how a constitution ordered to public reason understood as dialogic community would resolve the tension between the individual's right of self-authorship, on the one hand, and moral norms governing sex and the family, on the other. It contrasts the medieval teleological framework for regulating sexual and familial relationships with Kant's deontological reinterpretation of sexual morality. It discusses Hegel's revision of the medieval teleology of sex so as to accommodate the right of self-authorship. The chapter argues that the new constitutional paradigm can justify to liberals the regulation of pornography, prostitution, and abortion. It proposes a teleological understanding of sexual morality that can approve of same-sex marriage, while disapproving of polygamy and incest even when these relations are consensual and harmless.
The Meaning of White-Collar Crime
Authors: GREEN STUART P
Published: January 2010

This chapter begins with a discussion of the three critical issues in defining ‘white-collar crime’. It then considers the offenses that should be regarded as white-collar crimes, and salvaging white-collar crime as a concept of law and legal theory.
Some Generalizations About the Moral Content of White-Collar Crime
Authors: GREEN STUART P
Published: January 2010

This chapter begins the task of looking at white-collar crime through the lens of criminal law theory. It discusses the place of retribution in criminal law theory and moral ambiguity in white-collar criminal law.
Tax Evasion
Authors: GREEN STUART P
Published: January 2010

Even compared to other white-collar crimes, tax crimes seem ambiguous in their moral character: no one likes to pay taxes, and most people take steps to minimize their liability; however, we recognize that taxes are the fuel on which a liberal society runs, and we resent it when others fail to pay their fair share. The nonpayment of taxes can be treated as a serious fraud, a minor regulatory violation, or perfectly lawful ‘tax avoidance’. Even when it is clear that a violation of law has occurred, there is great variability in whether it will be treated as criminal or civil, and the decision of how the enforcement agency will decide to pursue is different in different regions, with like cases often treated in quite divergent ways. This chapter identifies the basic issues that need to be addressed, and suggests a general and quite tentative characterization of tax evasion based, once again, on the concept of ‘cheating’.
Criminal Responsibility
Authors: Tadros Victor
Published: January 2010

This book is concerned with the proper nature and scope of criminal responsibility. The book takes a philosophical rather than a doctrinal approach to this question: it is concerned with how the best understanding of criminal responsibility should shape the law, not with the law as it actually is. The general account of criminal responsibility that it provides is based on the relationship between the action performed and the character of the agent performing it. An action can be attributed to a defendant, it is argued, only if that action is connected in the proper way to the agent's character. The book then goes on to explore the philosophical foundations of a number of the most important doctrines of criminal responsibility in the light of this view. These include the role of causation, the extent to which we can be held responsible for failing to prevent harm, the significance of intentions to the definition of crimes, the proper definition of recklessness as well as a range of issues in criminal defences.
Introduction
Authors: Jeffrey Goldsworthy
Published: January 2010

Much of the controversy surrounding constitutional interpretation concerns two issues. The first is a version of a conundrum that has perplexed lawyers for millennia: should the interpretation of a law he governed mainly by its ‘letter’, or by its ‘spirit’? The second issue is the extent to which the meaning of a constitution can, and should, be determined by the original intentions, purposes, or understandings of its founders. This issue pits so-called ‘non-originalists’ against ‘originalists’. This book explores the constitutions of six countries — Australia, Canada, Germany, India, South Africa, and the United States — and how they have been interpreted by their highest courts. It examines whether the courts' interpretive practices have changed over time, the apparent reasons for any changes, and whether the courts apply the same interpretive principles to different areas of constitutional law, such as federalism, separation of powers, and individual rights. The book then reflects on the institutional, political, social, and cultural contexts that might help to explain differences between the practices of these courts.
1 The United States: Eclecticism in the Service of Pragmatism
Authors: Mark Tushnet
Published: January 2010

The traditions of constitutional interpretation in the United States make it possible, and indeed relatively easy, to use interpretation as the vehicle for constitutional adaptation. The distinction between interpretation and alteration is accordingly quite thin. The interpretive traditions are decidedly eclectic. Interpretation relies on the words of the text as understood when they were made part of the constitution, general propositions about how institutional arrangements promote constitutionalism, ideas about the values of democracy and individual autonomy, and much more. This chapter looks at the U.S. constitution, its origins and structure, formation, and basis, as well as the legislature and the executive, the Supreme Court, constitutional amendment, problems and methods of constitutional interpretation, early examples of constitutional interpretation, considerations of administrability, (moderately) disfavoured interpretive methods, presumptive interpretation, preferred interpretive techniques, and eclecticism in practice.
2 Canada: From Privy Council to Supreme Court
Authors: Peter W Hogg
Published: January 2010

Canada has no single document that is customarily described as ‘the constitution’. The closest approximation of such a document is the Constitution Act 1867, which was originally named the British North America Act 1867. This is a statute of the United Kingdom Parliament that created the new Dominion of Canada by uniting three of the colonies of British North America and by providing the for the admission of all the other British North American colonies and territories. This chapter presents an overview of Canada's constitution and discusses its interpretation, the Supreme Court of Canada, separation of powers, problems of constitutional interpretation, interpretation of the residuary clause, interpretation of the Charter of Rights, interpretation of Aboriginal rights, interpretation of judicial independence, sources of interpretation, constitution as statute, legislative history, modes of interpretation, originalism, unwritten constitutional principles, influences on interpretation, dialogue between the Court and legislatures, presumption of constitutionality, and formalism and creativity.
3 Australia: Devotion to Legalism
Authors: Jeffrey Goldsworthy
Published: January 2010

The Commonwealth of Australia is a federation of six states, whose constitution was enacted by the United Kingdom Parliament in 1900, when Australia was part of the British Empire. The six states had previously been separate British colonies, each with its own constitution that continued in force after 1900, although subject to the new federal constitution. The authority of the United Kingdom Parliament to change Australian law was not formally terminated until 1986, when the Australia Act was passed by both the United Kingdom and the Commonwealth Parliaments. The fundamental documents of Australian constitutional law therefore comprise the federal constitution, the Australia Act, and the six state constitutions. This chapter looks at Australia's constitution and its origins and structure, judicial interpretation of the federal constitution, judicial review, High Court and its judges, problems and methods of constitutional interpretation, causes of interpretive difficulties, sources of interpretive principles, current interpretive methodology, extrinsic evidence of framers' intentions and purposes, ‘structural’ principles and implications, separation of powers, balance between legitimate and illegitimate creativity, and institutional and cultural factors underlying constitutional interpretation.
5 India: From Positivism to Structuralism
Authors: S P Sathe
Published: January 2010

The constitution of India is not merely a law prescribing a division of power and limits to power, but contains a bill of rights and positive directions to the State to establish a just social order. It incorporates the essential aspects of parliamentary democracy, federalism, provisions regarding inter-state trade, and commerce, among other features. This chapter discusses the salient features of the Indian constitution, directive principles, separation of powers, constitutional amendment, judicial review, problems and methods of constitutional interpretation, positivist and structuralist interpretation, constituent assembly and the role of the judiciary, legal positivism of the early years, external aids to interpretation, resolution of conflicts between constitutional provisions, freedom of religion, powers and privileges of legislatures, affirmative action for the weaker sections of society, freedom of speech, property rights, post-emergency judicial activism, independence of the judiciary, the court as a political institution, and institutional and cultural factors underlying constitutional interpretation.
European Tort Law
Authors: van Dam Cees
Published: January 2010

This is the first introductory text book to European tort law. It brings together national tort law, comparative law, European Union (EU) law, and human rights law, and provides insights into the differences, commonalities, and mutual influence of the different tort law systems at work in Europe. The book examines the recent attempts for the harmonisation of the various systems of tortious liability by the discovery of a new European ius commune, and looks beyond the creation of ‘common codes’ to ask whether it is possible, or desirable, to converge the national models. The first part of the book provides overviews of the state of affairs of the tort law systems of France, Germany, England, and the EU. Comparisons are made between the rules, the cultures, and the policies of the various systems. The case for a European codification of tort law is discussed. The second part analyses and compares the requirements for liability in the various tort law systems: protected interests, negligence and unlawfulness, breach of statutory duty, stricter rules of liability, causation, damage, damages, and contributory negligence. The final part also assumes a comparative and a supranational point of view and shows how the national and European rules are applied in various ways in a number of categories, such as liability of public bodies, liability for defective products, for motor vehicles, for employees, for children, and for premises and highways.
Europe
Authors: van Dam Cees
Published: January 2010

This chapter deals with Europe and starts with introductions to comparative law and ius commune as well as the European Court of Human Rights and the European Convention on Human Rights. The main part of the chapter is devoted to the tort law of the European Union (EU). It provides a brief overview of the history and judiciary of the EU and then sets out the sources of liability in European Community (EC) law. Firstly, the focus is on relevant EU legislation, such as Article 288 on the liability of EC institutions and the important instrument of the EU Directive. Secondly, the case law of the European Court of Justice, particularly the development of the so-called Francovich case law on the liability of EU Member States and individuals for breach of Community law, is examined.
Intention and Negligence
Authors: van Dam Cees
Published: January 2010

This chapter explores the two aspects of fault liability: intention and negligence, focusing on what these qualifications of personal conduct mean and which role they play in tort law in Europe. Sometimes, particularly in English law, someone can only be liable if he acted intentionally. In most situations, however, liability requires that someone has acted negligently and this is where the gravity of the chapter lies. Courts establish negligence by balancing the defendant's freedom to act and the claimant’s right to be protected against harm. This balancing technique, which results in so-called unwritten rules, is extensively illustrated. Intention in the legal systems of France, Germany, and England is discussed, along with the reasonable person balancing risk and care, magnitude of the risk, precautionary measures, and subjective and objective tests of negligence.
Concluding Remarks
Authors: BHAT D.N.S.
Published: January 2010

This chapter provides a summary of the major conclusions of the book, namely (i) using the distinction between personal pronouns and proforms for providing a satisfactory definition for the words that are traditionally included under the category of ‘pronouns’; (ii) establishing a distinction between plurality and conjunction in order to account for some of the idiosyncratic characteristics of non-singular personal pronouns; (iii) using a distinction between semantic and pragmatic identifications for resolving certain problems concerning definiteness and referentiality; and (iv) resolving the puzzle concerning the affinity between indefinite, interrogative, and relative proforms by regarding constituent questions of many languages as not containing an interrogative proform.
‘Who are we when we read?’: Keats, Klein, Cixous, and Elizabeth Cook’s Achilles
Authors: Zajko Vanda
Published: January 2010

This chapter examines the part that identification plays in specifically feminist engagements with texts and how it has enabled mythical characters to provide such a potent resource for women. It uses a Kleinian model of identification to understand the trans-historical power of myth. In particular, it looks at the phenomenon of cross-gendered identification and explores its manifestation in a variety of poetic and theoretical contexts. The chapter focuses on one mythological character, the Homeric hero Achilles, and four very different texts: Elizabeth Cook's poetic novel Achilles; a letter of the poet John Keats in which he explains to his brother and sister-in-law why he hopes he will never marry; the French feminist theorist Hélène Cixous's ‘Sorties’ section of The Newly Born Woman; and Melanie Klein's extension of Freud's concept of phantasy, particularly as it relates to the unconscious.
Beyond Oedipus: Feminist Thought, Psychoanalysis, and Mythical Figurations of the Feminine
Authors: Pollock Griselda
Published: January 2010

If Virginia Woolf is icon of and legend for later 20th-century feminist theory, Jane Harrison transformed a phallic lack into a feminist legacy. While many intellectual women engaged with psychoanalysis soon after its initiation and many radically revised Freud's theses of the Oedipus complex, none truly challenged the fundamental premises of its ultimately defining role around the theme of castration in human subjectivity that frames our concepts of sexual difference and sexuality. This chapter examines feminist thought, modernity and femininity, and mythical configurations of the feminine. It looks beyond Freud's particular relationship with Oedipus to the figure of Antigone and discusses how Antigone's relationship to her brother Polyneices can be reconfigured as an unconditional bond to the maternal other. The model of trans-subjective suffering found in Antigone demonstrates the continuing power of classical myth to question the premises of psychoanalysis even as it has inspired them.
Antigone and the Politics of Sisterhood
Authors: Goldhill Simon
Published: January 2010

This chapter examines why Antigone has proved so irresistible to feminist political theory and in particular the political theory of the family. Feminists have wanted to claim Antigone as a sister, but this chapter uses Ismene to query the valency of the metaphor of sisterhood. While feminist readings of Antigone have been hugely and rightly influential in exploring the difficulties of Georg Hegel's dominant model of approaching the play, within the ongoing work of critical exchange between feminist writers, it is fascinating to see how Ismene can be written out of the story. From the beginning, Sophocles' staging of the sisters Antigone and Ismene recognises that in the personal conflicts of the tragic narrative to come there is a difficult and unresolved claim of sisterhood. The tragic myth of Antigone also offers a profound way of thinking about myth and feminism productively through a critical gaze at the politics of sisterhood.
Atoms, Individuals, and Myths
Authors: Kennedy Duncan
Published: January 2010

Feminism's engagement with science has been played out on a number of stages. Historians and sociologists have studied the lives of women scientists and have traced the processes by which the institutions in which science is practised have either excluded women or narrowly restricted the roles they are permitted to play. Another focus has been the role of gender in what might be called the culture of science. The practice of science is often mediated in images that are tendentiously gendered, for example, the image of science as ‘conquest’, a trope that has often taken on connotations of fierce sexual aggression directed at a personified Nature gendered as female. This chapter introduces Lucretius and ancient theories of atomism to explore the role of reductionism within feminist accounts of science. It examines the spectre of ancient myth in science's gendered formulations of the natural world.
(Xen.Mem. 3.3.12): Song-Dance and State-Pilgrimage at Athens
Authors: Rutherford Ian
Published: January 2010

This chapter is concerned with song-dance in the context of Athenian state-pilgrimage or theoria. It offers a reconstruction of the various possible types of theoric chorus before considering the kinds of choral performance that might have accompanied Athenian sacred delegations to Delphi and Delos. It argues that the extant part of Pindar's Paian 5 is a typical example of theoric song, such as would have been performed at Delos. The chapter concludes that such choruses were a means of asserting local identity and projecting an image of unity, cohesion, and civic unity beyond the boundaries of the polis.
Formal Structure and Practice
Authors: Hawkins Keith
Published: January 2010

The decision field marks out the boundaries of a legal decision-maker's mandate, creating the particular setting within which decisions are made. The field is defined by the law, the legal institution, and the legal bureaucracy in its formulations of policy. This chapter discusses those boundaries, the formal frameworks within which regulation takes place: the Robens Committee and the Health and Safety at Work Act, 1974; the Health and Safety Commission and the Health and Safety Executive; the European dimension in the regulation of occupational health and safety; the HSE's structures and relationships; and the legal powers of an HSE inspector.
Prosecution Policy
Authors: Hawkins Keith
Published: January 2010

Enforcement policy is that which inspectors understand as official guidance. Policy is an important part of the formal definition of an inspector's decision-making field. This chapter discusses why policy rarely reaches field staff in a form they find helpful in guiding enforcement decisions. It suggests a way of thinking about policy, its origins, and why it may not be transmitted through the regulatory organization and into action at the periphery in a pristine form. It covers enforcement policy as a formal conception (encompassing the principles of proportionality, consistency, and transparency), as a practical conception, the sources of enforcement policy, and analyses the structure of inspectorates. It argues that the attenuation of regulatory policy is the result of the vague or general formulation of policy, the vagaries of its transmission to the field, and the competing demands on inspectors' decision-making which arise from the practical character of their work.
Bilingualism in Cicero? The Evidence of Code-Switching
Authors: SWAIN SIMON
Published: January 2010

This chapter explores the problem of Roman Latin-Creek bilingualism in the Late Republic. There is an abundance of evidence to show that Romans at this time knew classical Greek literature well enough. Some of them, like Cicero, knew key parts of it extremely well. Cicero himself was able to compose Greek prose and verse and to deliver set speeches in Greek before a Greek audience. No one would deny that he could speak Greek well. It is a commonly held view that Cicero’s peers were fluent in Greek and regularly used it in conversation with each other. There are, however, no grounds for the latter belief. This chapter places Cicero’s choices against the general background and function of bilingualism in Rome.
Interference or Translationese? Some Patterns in Lycian-Greek Bilingualism
Authors: RUTHERFORD IAN
Published: January 2010

The linguistic situation in Lycia was always complex, mirroring the complex history of the region. In the classical period, at least three languages are spoken: Lycian, Greek, and Aramaic. Lycian existed in at least two forms, Lycian and ‘Milyan’, the former attested in a large number of inscriptions from the fifth and fourth centuries BC, the latter (also sometimes known as ‘Lycian B’), attested in two inscriptions which are apparently poetic. Lycian syntax influenced Greek language in the context of translation, for example, with respect to the preposition hrppi, filiation formulae, and word order.
Assessing Latin–Gothic Interaction
Authors: BURTON PHILIP
Published: January 2010

The 6th-century Codex Argenteus provides most of the current information on Gothic. George Washington Salisbury Friedrichsen, in his work of 1926, made two important claims: first, that all the Gothic Gospels, but especially that of Luke, had been heavily influenced by the Latin versions; and second, that a putative Latin-Gothic text that he called the ‘Palatinian Bilingual’ had mediated both the Latin Codex Palatinus e and the Gothic Codex Argenteus. This chapter examines Friedrichsen’s thesis and argues that Codex Palatinus does not represent a Gothicised tradition. It also does not agree that Codex Argenteus reflects a ‘Palatinian bilingual’ of the type posited by Friedrichsen. However, it recognises the possibility that Codex Argenteus represents a Latinised tradition.
Interpreting Medieval Agriculture
Authors: Stone David
Published: January 2010

This introductory chapter argues that medieval landlords and their officials, on whom our understanding of medieval agriculture primarily rests, are usually perceived as being economically artless. Yet manorial account rolls, which detail the agricultural exploitation of lords' demesne farms and which survive in abundance between the late 13th and early 15th centuries, have the potential to reveal much about economic mentalities. Investigating the actions of reeves — the unfree tenants who often made most of the day-to-day decisions about the running of these farms — provides an insight into the mindset of peasants as well as lords. More importantly, it has important implications for the way medieval agriculture is interpreted: by presuming an absence of economic rationality, historians have almost invariably highlighted exogenous factors in their explanations of change over time in agricultural productivity and economic fortunes.