Inequality, Mobility and Essentialism

'Social Class Rank, Essentialism, and Punitive Judgment' by Michael Kraus and Dacher Keltner in (2013) Journal of Personality and Social Psychology comments that

Recent evidence suggests that perceptions of social class rank influence a variety of social cognitive tendencies, from patterns of causal attribution to moral judgment. In the present studies we tested the hypotheses that upper-class rank individuals would be more likely to endorse essentialist lay theories of social class categories (i.e., that social class is founded in genetically based, biological differences) than would lower-class rank individuals and that these beliefs would decrease support for restorative justice - which seeks to rehabilitate offenders, rather than punish unlawful action. Across studies, higher social class rank was associated with increased essentialism of social class categories (Studies 1, 2, and 4) and decreased support for restorative justice (Study 4). Moreover, manipulated essentialist beliefs decreased preferences for restorative justice (Study 3), and the association between social class rank and class-based essentialist theories was explained by the tendency to endorse beliefs in a just world (Study 2). Implications for how class-based essentialist beliefs potentially constrain social opportunity and mobility are discussed.

They state that

Social rank in society is a fundamental organizing principle in social relations (Keltner, van Kleef, Chen, & Kraus, 2008), and in the present research, we examined essentialist lay theories about one aspect of human hierarchy - a person’s social class. Drawing from theory suggesting that people are motivated to justify their elevated social position in society (e.g., Keller, 2005), we expected that upper-class rank individuals would be more likely to endorse essentialist lay theories about social class than would their lowerclass rank counterparts.

Consistent with expectations, Study 1 showed that people reporting elevated social class rank tended to think of social class categories in more essentialist terms. Study 2 extended these initial findings by suggesting that upper-class rank individuals endorse essentialist theories of social class, in part, to justify their elevated positions in society’s hierarchy. Study 3 demonstrated that manipulating people’s essentialist beliefs about social class categories led to reduced support for restorative policies for academic cheating. Building on these initial studies, Study 4 manipulated momentary perceptions of relative social class rank. We found that, compared to their manipulated lower-class rank counterparts, manipulated upper-class rank individuals endorsed more essentialist conceptions of social class and were more likely to reject restorative justice proceedings for people caught engaging in economic crimes. Moreover, relationships among social class rank, essentialist beliefs, and punitive judgments could not be accounted for by measures of individuals’ material resources or political orientation.

Essentialism, Social Policy, and Social Mobility

The current research dovetails with a growing body of research suggesting that, relative to their lower-class counterparts, upperclass individuals focus on internal, stable, and trait-based explanations for the actions of others and deemphasize the social context (for a review, see Kraus et al., 2012). This research suggests that these broad class-based differences in social perception extend to beliefs in the biological basis of fundamental social categories. These findings have implications for social mobility.

The current results provide some initial evidence suggesting that essentialist beliefs are associated with justifying and legitimizing an individual’s own position in society and raise the possibility that these beliefs will also increase justification of unfairness in the distribution of economic and social resources: That essentialist beliefs endorsed by upper-class individuals were associated with failing, rather than rehabilitating, academic cheaters suggests that one way in which individuals can maintain current societal structure is through the use of essentialist beliefs. Future research is necessary to determine what other legitimizing behaviors highstatus individuals may engage in to constrain upward mobility in society (e.g., opposition to affirmative action programs) and whether essentialist conceptions of social categories explain this behavior.

As well, endorsing social constructivist beliefs -  beliefs that social class is based on changeable, external social forces - led to the favoring of social policies related to academic policy and judicial procedure that focus on rehabilitating individuals. Perhaps social constructivist views, endorsed by lower-class rank individuals, may increase optimism among these individuals with regard to overcoming current financial hardship, future career opportunities, or even the economic advancement of future generations. In the present research, both social class rank and essentialist beliefs about social class categories were not associated with endorsement of retributive punishments. Given these results, it is interesting to speculate about why social class rank might be more closely tied to restorative justice concerns than to retributive ones. One possible explanation for this pattern is that social class rank is associated with enhanced contextual explanations—the tendency to explain broad social events or personal outcomes in terms of external forces outside of individual control (e.g., Grossmann & Varnum, 2011; Kraus et al., 2009). That is, whereas retributive punishments hold individuals personally responsible for their unlawful actions, restorative punishments acknowledge the positive influence of contextual forces on individual behavior (e.g., rehabilitation programs). Future studies that examine beliefs about the efficacy of contextual intervention as the key ingredient that leads lower-class rank individuals and social constructivists to endorse restorative justice are likely to yield important insights. Given that the current justice system in the United States is based on retributive, rather than restorative, punishment strategies (Gromet & Darley, 2006; Tyler & Jost, 2007; Weiner et al., 1997), the current research anticipates the following question: Do essentialist beliefs in social hierarchy underlie current punishment practices in the United States? Future research is needed to better understand how shifting essentialist beliefs could change current justice practices and how these changes would impact society as a whole. That is, could social constructivist beliefs of social hierarchy increase favor for rehabilitation-based punishments that could improve community life in the long term (e.g., drug treatment programs for prisoners)?

It is also important to consider how essentialist lay theories contribute to beliefs about reduced social mobility among lowerclass individuals (see Kennedy, Kawachi, Prothrow-Stith, Lochner, & Gupta, 1998). For example, one perspective holds that social constructivist conceptions of social class represent an optimistic understanding of social class hierarchy, in that social mobility is not blocked by genetic predeterminants of lower-class status. However, as previous research suggests, lower-class individuals are also keenly aware of the uncontrollable contextual factors that influence their lives (Kraus et al., 2012) and tend to favor political actions that perpetuate the current social order (e.g., Jost et al., 2002). As such, it will be interesting in future research to consider whether social constructivist lay theories of social class increase the pursuit of economic advancement among lower-class individuals, or whether these theories reveal the many external obstacles to social advancement (e.g., biased criminal justice system, unsafe neighborhoods, political influence) that maintain lower-class individuals in their lower ranking positions. Notwithstanding the findings from the present investigation, a few limitations are worth mentioning. First, the results of our current studies would benefit from generalizing to other communities. For example, while our adult samples are representative of the wide range of education and income found in the United States, the samples do fall short in terms of generalizing to communities characterized by poverty, or to communities of great affluence. Replicating this research among these samples gives us greater confidence in the conclusions reached in the present research. As well, the current research examined the association between social class rank and essentialist beliefs about social class categories in particular. We expect that upper-class rank individuals endorse essentialist beliefs, in part, to justify their elevated social position. As such, upper-class rank individuals might engage in essentialist beliefs about other social categories (e.g., race, gender) more generally - particularly in contexts where such beliefs can help to justify their own elevated social position.

It would also be interesting to test the present hypotheses in other cultures (see Mahalingam, 2007), in particular those where economic inequality is not as pronounced. Evidence indicates that economic disparities between rich and poor may be at a historical high in the United States (Phillips, 2002), which suggests that essentialist lay theories of social class have an objective basis for being so powerful in shaping voting behavior and policy decisions among upper- and lower-class individuals. Would similar effects be observed in cultures with lesser disparities between rich and poor?

Testimonials

The Australian Competition and Consumer Commission has announced the first litigated outcome regarding the specific prohibition against fake testimonials under the Australian Consumer Law.

In Australian Competition and Consumer Commission v P&N Pty Ltd [2014] FCA 6 the Federal Court ordered by consent that P & N Pty Ltd and P&N NSW Pty Ltd (trading as Euro Solar) and Worldwide Energy & Manufacturing Pty Ltd (WEMA, formerly trading as Australian Solar Panel) pay combined penalties of $125,000, for publishing fake testimonials and making false or misleading representations about the country of origin of the solar panels they supply.  The sole Director of P&N and WEMA, Nikunjkumar Patel, was ordered to pay a penalty of $20,000 for his involvement in the conduct.

The Court found that video testimonials published on YouTube by P&N and P&N NSW and written testimonials published by WEMA on its website were not made by genuine customers of the companies. The Court also found that P&N, P&N NSW and WEMA made false or misleading representations to consumers that they manufactured or supplied solar panels that were made in Australia - when they were in fact made in China.

The misleading representations were made online, in newspapers and on television between November 2012 and September 2013, being brought to the ACCC’s attention by competing businesses.

The ACCC Chair commented that

Consumers should be able to trust that testimonials give honest feedback about a consumer’s experiences with a service or product. If they are not genuine, consumers may be enticed into making a purchase that they would not have otherwise made. ... 

Credence claims such as country of origin can be a powerful marketing tool for businesses, with consumers often prepared to pay a premium for products made in Australia. Businesses making misleading representations can harm consumers by influencing them to purchase products, sometimes at a premium price, they otherwise wouldn’t choose to. They can also harm competitors who accurately represent their products by creating an unfair playing field.

Besanko J found that the companies and Patel engaged in careless and reckless conduct and knew that the representations made were both false and misleading.

In addition to penalties, the Court also made other orders by consent including declarations, injunctions, corrective advertising and a contribution towards the ACCC’s costs.

Battery

'When practising fails to make perfect: Medical treatment and battery' by JA Devereux in (2013) 21(3) The Tort Law Review 120 comments that

The advent of the Civil Liability Acts has caused a re-examination of the utility of the battery action. No cause of action in battery can proceed where a patient has given consent to "the nature of the treatment", but there is considerable uncertainty as to exactly what this amounts to. Nowhere is this uncertainty more obvious than in the situation where the person providing the treatment is not a medical practitioner or, if he or she is, where the practitioner provides treatment not for a medical purpose but for some other reason. This article reviews the case law and suggests that its apparent contradictions can be reconciled, but only by redefining the focus of battery.

EU Data Protection Remedies

The European Union Agency for Fundamental Rights (FRA) has released a report [PDF] noting that "to uphold fundamental rights, individuals must have access to remedies that are both effective in law and in practice".

The preface to the report comments that it

presents the findings of a sociolegal research project on the main challenges and barriers that individuals encounter when seeking remedy after a data protection violation. It supplements FRA’s previous research on the role of national data protection authorities (DPAs) in the fundamental rights landscape as well as FRA’s Opinion on the proposed EU data protection reform package. 

To understand how data protection violations are remedied in practice, FRA interviewed key players involved in the remedial process: victims of the data protection violations, representatives of the DPAs, non‐governmental organisations (NGOs) and legal professionals. 

This FRA report identifies factors hampering the effectiveness of existing remedy mechanisms. It highlights a persistent lack of knowledge about the protection of personal data. Individuals therefore do not understand what constitutes a data protection violation. When they are informed, they address their complaint to national DPAs, which are key players in the fundamental rights landscape in the European Union. These, however, often suffer from a lack of adequate resources and powers. FRA findings also show that judges and lawyers are not aware of data protection rules. Too few are specialised in this area of law, rendering judicial enforcement of this fundamental right difficult. In the absence of specialised NGOs, the burden falls on DPAs to effectively guarantee data protection.

The report states that

This FRA report encompasses legal and social fieldwork research on European Union (EU) Member States’ remedies in the area of data protection. By offering an EU‐wide legal comparative analysis of data protection remedies, it gives an insight into the availability of remedies in each EU Member State. It also shows the challenges people encounter when seeking remedies following a data protection violation in a selected number of Member States. 

This research aims to provide evidence on the use and application of data protection remedies in the EU Member States studied; to identify the main challenges faced by different actors; and to identify possible improvement in access to data protection remedies.  

Policy context 

The report focuses on two fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union: the right to the protection of personal data (Article 8) and the right to an effective remedy before a tribunal (Article 47). These two fundamental rights should be analysed together because the right to an effective remedy cannot be dissociated from the need to effectively enforce all fundamental rights, including the protection of personal data. 

A number of remedy mechanisms are available to victims of data protection violations. The spectrum ranges from assistance from various non‐judicial bodies and national data protection authorities (DPAs) to the courts, including administrative as well as civil and criminal proceedings. 

FRA’s research focuses on DPAs and the judiciary. It touches on the role of other non‐judicial bodies such as national ombudsmen or other administrative authorities that can promote data protection rights and pro‐ vide remedies for violations. However, the number of non‐judicial bodies reported to be operating in the area of data protection is small and many non‐judicial bodies have only limited powers to offer remedies. 

In addition to the Charter of Fundamental Rights of the European Union guaranteeing the right to an effective remedy and the right to the protection of personal data, the Data Protection Directive (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data) is the keystone of EU legislation guaranteeing the right to personal data protection in EU Member States. It requires each Member State to set up an independent supervisory authority and provide for the right of every person to a judicial remedy for any violation of the rights guaranteed by the national law applicable to the processing in question. The directive also requires Member States to provide for a remedy against decisions by a supervisory authority which give rise to complaints. Thereby, it acts as a tool to provide access to justice for this area of law. The Data Protection Directive allows Member States to implement these requirements into their own data protection systems. This results in a variety of possible outcomes depending on the Member State in which remedy is sought. 

The European Commission has proposed a comprehensive data protection reform package, bearing in mind the need for more effective enforcement of the fundamen‐ tal right to personal data protection. This report does not assess that reform, but its findings provide evidence to inform and contribute to the reform. 

Key findings 

The legal analysis found that DPAs across EU Member States can issue orders to rectify violations and impose sanctions ranging from warnings and fines to the revocation of licences. Sanctions that DPAs are empowered to impose differ between Member States. In most of them, judicial authorities can award damages for violations, although guidelines on award amounts vary. FRA data shows that in almost all Member States criminal sanctions can be imposed, in the form of a fine or imprisonment. The duration of a sentence and the amount of a fine also vary across Member States. 

Most data protection violations in the 16 EU Member States were thought to arise from internet‐based activities, direct marketing and video surveillance with closed‐circuit television (CCTV) cameras. Institutions responsible include governmental bodies, law enforcement agencies and financial and health institutions. The complainants and non‐complainants interviewed defined the damage from data protection violations as psychological and social. They described emotional distress, offence, insecurity or damage to reputation as well as impact on their relations with other people. Fieldwork participants also reported financial damages but less frequently.  

Most complaints were lodged with the national DPAs and very few went through judicial procedures. Most individuals will not pursue cases before a court because of the lengthy, time‐consuming and complicated procedures and costs involved. This view is widely shared by judges and practising lawyers. Reasons why people more often lodge complaints with national DPAs include the following factors: DPAs do not necessitate high costs; their complaint procedure is shorter and less complex; and the procedure does not demand legal representation. Financial compensation was not a motivating factor to seek redress for the fieldwork participants. Instead, most complainants and non‐complainants say they sought redress to ensure that similar data protection violations do not recur. 

Most interviewees worry about the lack of legal assistance available. Judges and lawyers interviewed noted that there are too few data protection professionals; they also recommended training and more specialisation in data protection law. This lack of data protection experts was also a problem in looking for and trying to access interviewees during the fieldwork. People also raised concerns over the lack of financial and human resources available to DPAs and intermediary organisations specialised in the area of data protection. Many individuals reported difficulty in obtaining information about procedures and insufficient knowledge of remedies. Most interviewees who had suffered a data protection violation said they lacked information; only a minority, defined as ‘well‐informed’, said they had information thanks to their professional background (mainly legal) or previous experience. 

The general public needs to know more about data protection violations, existing remedies and support, as FRA findings show. There is also a need to ensure that professionals dealing with data protection issues are aware of developments in the field and legislation. Fieldwork also indicates that DPAs and intermediaries lack adequate resources. 

Methodology 

Based on FRA legal research analysing laws and rules of procedure in each of the 28 EU Member States, this report provides a comparative analysis of the national legal frameworks in the area of data protection remedies. The social fieldwork is based on qualitative research in the following 16 EU Member States: Austria, Bulgaria, the Czech Republic, Finland, France, Germany, Greece, Hungary, Italy, Latvia, the Netherlands, Poland, Portugal, Romania, Spain and the United Kingdom. 

Over 700 individuals from six target groups were interviewed or took part in the focus groups. These six target groups were complainants; non‐complainants such as alleged victims of data protection violation who decided against seeking a remedy; judges; staff of DPAs; intermediaries, including staff members of civil society organisations; and practising lawyers. 

The report presents an overview of the legal framework and the procedures in place. An assessment of the implementation of the data protection remedies as perceived by the main actors is made by looking at a number of related issues, namely fieldwork findings assessing the accessibility and availability of support structures. These structures help affected individuals to access procedures for remedies (both judicial and alternative) in the field of data protection. The report also presents how interviewees perceived costs, deadlines to be observed and the burden of proof. In addition, it seeks to identify barriers met in using and applying the remedies in the field of data protection, including the perspectives of individual complainants and other relevant actors. It also seeks to identify areas for improvement in accessing data protection remedies.  

Opinions 

This report identifies potential for concrete improvement in a number of areas. The EU institutions, EU Member States and mechanisms involved in implementing data protection remedies could all take action to improve the present situation. The European Union Agency for Fundamental Rights (FRA) has formulated the following opinions based on the findings in this report and previous research as ways forward to improve the availability and quality of remedies available to victims of data protection violations in the EU. 

Strengthening the role of data protection authorities 

Data protection authorities (DPAs), the main actors protecting data protection rights, play a crucial role in processing the overwhelming majority of data protection complaints. Further action is needed to ensure that access to DPAs is effective in practice. 

The independence of DPAs must be strengthened through a reform of EU legislation. They should have enhanced powers and competences, supported by adequate financial and human resources, including diverse and qualified professionals, such as trained information technology specialists and qualified lawyers. 

The European Parliament and the Council of the European Union are proposing regulation to protect individuals with regard to the processing of personal data and the free movement of such data. This General Data Protection Regulation seeks to further harmonise data protection legislation, and to further strengthen the ability of DPAs to remedy violations. 

Data protection strengthening could include safeguards for effective enforcement of their deci‐ sions and reasonable length of procedures (see also, in the specific context of non‐discrimination, the 2012 FRA report on Access to justice in cases of discrimination in the EU: steps to further equality). This would enable DPAs to remain the preferred point of access for remedying data protection violations, while streamlining the existing remedy avenues and decreasing overall costs, delays and formalities (see the 2012 FRA Opinion on the proposed data protection reform package). 

To strengthen their authority and credibility, DPAs should play an important role in the enforcement of the data protection system, by having the power to either issue sanctions, including fines, or procedures that can lead to sanctions (see also the 2010 FRA report on Data protection in the European Union: the role of national data protection authorities). 

This opinion is in line with the findings in the context of other non‐judicial bodies, such as equality bodies, as highlighted in the 2013 FRA Opinion on the EU equality directives (p. 3): “The degree to which complaints procedures fulfil their role of repairing damage done and acting as a deterrent for perpetrators depends on whether dispute settlement bodies are able to issue effective, proportionate and dissuasive sanctions” and “allowing civil society organisations, including equality bodies, to bring claims to court or conduct investigations [...] could help facilitate enforcement.” Data protection authorities are encouraged to be more transparent, as well as to communicate effectively with the general public, providing necessary information and easing access to remedies in practice. In addition, as highlighted by the 2010 FRA report on the role of national data protection authorities in the EU, DPAs “should promote closer cooperation and synergy with other guardians of fundamental rights [...] in the emerging fundamental architecture of the EU” (p. 8). Such steps would improve the image of DPAs, their perceived effectiveness and independence and the trust of the general public. 

Enhancing the role of lawyers and judges 

Legal professionals rarely deal with data protection cases, so they are not aware of the applicable legal procedures and safeguards. There is a lack of judges specialised in this area. 

The EU could financially support training activities for lawyers and judges on data protection legislation and its implementation at Member State level. EU Member States should seek to strengthen the professional competence of judges and lawyers in the area of data protection, providing training programmes and placing added emphasis on data protection issues in the legal curriculum. This would increase the availability of sufficiently qualified legal representation. 

Strengthening professional competence would also help reduce the length of proceedings. The gap in such competence is one of the barriers to seeking redress before courts, as confirmed by the 2011 FRA report on Access to justice in Europe: an overview of challenges and opportunities, and by the findings of this fieldwork. 

Strengthening the role of civil society organisations 

The report highlights the importance of intermediary organisations as a source of information, advice, legal assistance and representation. However, only a very limited number of civil society organisations are able to offer comprehensive services for victims of data protection violations. The EU and its Member States should increase funding for civil society organisations and independent bodies in a position to assist such victims seeking redress. 

Victims are often reluctant to bring claims. Allowing civil society organisations to bring claims to court or con‐ duct investigations could constitute an important step to help enforcement. As already emphasised in other FRA reports and opinions, and confirmed by the findings of this report, strict rules relating to legal standing prevent civil society organisations from taking a more direct role in litigation in cases of fundamental rights violations (see the 2011 FRA report Access to justice in Europe: an overview of challenges and opportunities and the 2012 FRA report Access to justice in cases of discrimination in the EU: steps to further equality). 

The 2012 FRA Opinion on the proposed data protection reform package in particular says that the EU should consider further relaxing legal standing rules to enable organisations acting in the public interest to lodge a data protection complaint in cases where victims are unlikely to bring actions against a data controller, given the costs, stigma and other burdens they could be exposed to. As underlined in FRA reports on access to justice, this would also ensure that cases of strategic importance are processed, thus enhancing the culture of compliance with data protection legislation. Such broadening of the legal standing rules should be accompanied by additional safeguards preserving the right balance between the effective access to remedies and abusive litigation. The Commission has proposed a form of representative collective redress in the General Data Protection Regulation. 

Reducing costs and easing the burden of proof 

Victims of data protection violations are dissuaded from pursuing cases for several reasons, including costs and difficulties associated with proving data protection violations. 

EU Member States should consider promoting support through legal advice centres or pro bono work. These support mechanisms should be complementary to, and not a substitute for, an adequately resourced legal aid system. 

Rules on the burden of proof should be streamlined, especially in cases concerning internet‐based activities. 

Raising awareness 

Victims lack awareness of data protection violations and of available remedies. These findings of the FRA fieldwork confirm existing FRA research conclusions. 

As recognised by the 2010 FRA report on Data protection in the European Union, awareness‐raising on data protection legislation is an important task for relevant institutions, such as national DPAs. A similar lack of awareness was highlighted in the 2012 FRA report on Access to justice in cases of discrimination and the 2013 FRA Opinion on the EU equality directives, in relation to EU non‐discrimination legislation. From the general public to judges, awareness‐raising measures are needed. Knowledge about support organisations that complainants can turn to when lodging data protection complaints needs to be significantly increased throughout the EU. The EU could promote and possibly financially support awareness‐raising campaigns at EU Member State level. To raise national practitioners’ awareness of the data protection rules, the FRA, together with the Council of Europe and the European Court of Human Rights, prepared a Handbook on European data protection law. 

EU Member States could consider taking the necessary steps to increase the public’s awareness of the existence and functioning of available complaint mechanisms, particularly DPAs. In addition, DPAs should pay particular attention to cultivating their public profile as independent guardians of the fundamental right to data protection, and should enhance their awareness‐raising activities on data protection.

Regulating Homeopathy

'Outdated Fraudulent Healing?: Homeopathy on Trial - The Homeopathic “Pill Scandal” in the 1950s and Modernisation of Health Care in Sweden' by Motzi Eklöf in (2007) 6(2) Hygiea Internationalis: An Interdisciplinary Journal For the History of Public Health [PDF] comments that

In July 1951, news spread that certain manufacturers of homeopathic remedies in the Stockholm area had skipped part of the potentization process and had sold pure sugar pills under the false claim that they were homeopathic medicines. After extraordinarily time- and money-consuming investigations and legal proceedings, directors and others from Pharma-Drog AB and Drogon AB who were responsible for producing and selling the pills were charged with, convicted of and sentenced for fraud and tax evasion. 

In court, the prosecutor maintained that homeopathy as such was a big fraud, since even correctly potentiated homeopathic remedies above D5 could not possibly haveanytherapeuticeffectbeyondthatofsuggestion. This was a position also held by the Swedish Royal Medical Board, although homeopathic remedies above were sold at pharmacies. Accordingly, manufacturing and marketing of homeopathic remedies was to be considered fraudulent. 

Perhaps somewhat surprisingly, most of the accused individuals joined in this stance. As part of their defence in court, they claimed that it could not be consid-ered criminal to sell pills already commonly known to be of no benefit. On the contrary, they contended, it had been their praiseworthy intention to disclose the humbug of homeopathy by this large-scale experiment with unpotentiated pills, used by homeopaths and patients for years without any noteworthy complaints of absent therapeutic effects. The accused manufacturers referred to rumours that conventional pharmacies also cheated in the production of homeopathic remedies, and that medical authorities were aware of this and in any case, potentization above D6 was unnecessary, as the contents above this potency could not be checked out chemically. 

The one person taking a different position was the most prominent representative of lay homeopathy at the time. To the very last, he denied accusations of complicity in fraud and claimed that he still believed in homeopathy, although he was sceptical toward high dilutions. In the homeopathic journal he edited, he published a declaration swearing to God and all people that he had not known of the fraudulent activities. 

The courts chose not to take a stance on homeopathy as therapy. Instead they confined themselves to declaring that it was fraudulent to sell packages the contents of which did not correspond to the labelling. People would not have paid the prices they had paid if they had known the packages contained only pure sugar. The lay homeopath who claimed that he was innocent of the charges never had to serve his sentence – it was suspended in April 1954 by the Minister of Justice, a decision commented on acidly in the press. In early May of the same year, a huge bonfire in a dump outside of Stockholm comprising tons of confiscated pills and homeopathic handbooks represented the spectacular end of years of legal proceedings. 

This so-called homeopathic “pill scandal” raises many questions on a number of different levels. The first – and for homeopathy as such the most precarious – being how it was possible for manufacturers of homeopathic remedies to sell pure sugar pills for years without, so it seemed, homeopaths and their patients noticing. Not all the pills that were sold were unpotentiated – it turned out that the number was definitely smaller than initially claimed by the prosecutor – but there were enough to have made a difference (and in fact, some homeopaths had complained about not getting the expected therapeutic effect from some remedies). 

According to medical authorities, homeopathy had finally unmasked itself and had been revealed as the self-evident quackery they had always declared it to be. Medical doctors regarded homeopathy as pharmacologically useless – the “pill scandal” being a gigantic disclosure experiment with blinded tablets – and hopelessly outdated. Any therapeutic effects were to be regarded as the result of self-healing or suggestion, functioning especially well in “the often somewhat childish and immature types of persons who, with their disposition for blind faith, miracles and mysticism, constitute the quack’s most rewarding clientele and best propagandists”. 

However, all of that had been said many times before. What was new in the early 1950s was that the trials of fraudulent manufacturers of homeopathic remedies were not solely considered embarrassing for homeopathy as such. Additionally, the “pill scandal” was turned into a matter of great societal importance and received a great deal of attention in the media. Politicians of different persuasions, the prosecutor, medical and pharmaceutical authorities, the media, as well as some of the prosecuted swindlers collaborated in the greater task of slandering and – hopefully – wiping out homeopathy from the Swedish medical marketplace. What will be discussed here are issues regarding why the homeopathic “pill scandal” got to be such a public affair, why it was considered so important to use this convenient opportunity to try to wipe out the most commonly used alternative therapy of the time, and how that was to be achieved. Homeopathic practice was not eradicated after the pill trials, but homeopathy was no longer to be discussed as a therapeutic alternative, and the topic vanished from the discursive level. 

In this article, some general developments in society will be presented that I propose both directly and indirectly changed the prerequisites for homeopathic practice in Sweden. Discussions in the Swedish media – daily newspapers, journals, radio – concerning homeopathy in the middle of the twentieth century display some recurring themes that need to be discussed and analysed. Factors of importance include the processes of secularisation and modernisation, in parallel with an increased confidence in science. Growing State responsibility for the health of Swedish citizens, rapid expansion of hospital-based health care, and efforts to achieve political consensus for development of the welfare state were also significant factors. In addition, campaigns against sectarianism and fraudulent behaviour, especially economic fraud, in all areas of society played a central role regarding the fate of homeopathy in Sweden. With growing focus on consumers’ rights, good value was demanded for the money spent on health care. 

But this article does not deal only with the history of homeopathy in Sweden; the story can be told from another viewpoint. The history of alternative medicine is also closely linked to the history of conventional health care in Sweden. Homeopathy has played a central role for political decisions on legislation con- cerning health care and pharmaceutical products. Ninety years ago it contributed to the abolishment of the medical profession’s monopoly on the practice of medicine, and has instead paved the way for the permission of lay healing that is still in force as a complement to state-supported health care. In the public debate, homeopathy incarnated the concept of “quackery”, thereby meaning unauthorised practice of medicine. Homeopathy has thus played an important role in the efforts of conventional medicine and the state to define what separates modern scientific medicine from popular healing.

Eklöf concludes

Homeopathy, as practised both within and outside conventional medicine, had been under attack from the organised medical profession and the Medical Board since the nineteenth century. The relatively new and evolving scientific arguments and changing legal tactics in the 1950s were effective. Increasing societal support for medical science and reformed health care, in combination with a desire to get rid of reminders of old times were important factors regarding the almost complete extinction of homeopathy from the discursive level. In the rapid process of modernisation of Swedish society, official support for “old” medicine could not be retained. 

The social and cultural associations connected to homeopathy at this time – not only belief and religious faith, but also deviant, fraudulent and criminal activities – facilitated the pronouncement of the end of this kind of healing. Homeopathy was designated an outdated dogmatic healing system based on belief and suggestion. It was considered unnecessary in modern society, where the whole population had sufficient access to rational medicine that was based on the results of scientific research. Claiming a “belief” in homeopathy in order to prove one’s innocence in the pill trials – as was done by a prominent lay homeopath – was an argument with absolutely no persuasive power at a time when scientific proof in terms of chemical analysis or clinical trials had become all that mattered. 

In Sweden, there were no homeopathic physicians left to discuss homeopathy on an academic level, and no prerequisites for homeopathic practice to adhere to some extent to scientific standards, as was the case in other countries such as the US. Nor was conventional medicine open to the assimilation or integration of any part of homeopathy into mainstream medicine. Articles critical of homeopathy were given much space in the press, whereas voices favourable to this healing system were published – if at all – only as short letters to the editor. For decades after the homeopathic trials, the Swedish Medical Journal did not even mention homeopathy. The “pill scandal” was a symbolic event with great impact on the public debate. Homeopathy was eradicated from the discursive level in society. 

Nevertheless, despite the fact that homeopathy was heavily discredited in public arena, it did not vanish from the scene. People relied on their own experiences of homeopathic treatment. The press reported on persons bursting into tears in phar- macies when they realised they could no longer get the remedies from the fraudulent firms. In the northern region of Jämtland, pharmacies reported no decrease in the sales of homeopathic products. Sales figures for these remedies decreased only marginally for a year or so; the best economic results were attained in the 1980s. As in many other Western countries at that later time, “alternative medicine” had become an issue in the public debate. Homeopathy has continued to exist, but in Sweden it has not recovered the more widespread and publicly defended position it held during the initial decades of the twentieth century. The number of medical doctors daring to articulate a positive interest in homeopathy can easily be counted. The Swedish Medical Board has not changed its judgement of homeopathy as being of no therapeutic use beyond a placebo effect. As a consequence of political efforts to achieve a harmonisation of laws and regulations within the European Union, starting in May 2006 homeopathic products are – once again – to be classified as pharmaceutical products (although they are not to be sold at pharmacies). Continental medicine, with physicians openly practising homeopathy, has been criticised as being more “esoteric” as compared to supposedly more scientific Swedish medicine. That homeopathy is more widely used by physicians within conventional health care in many other countries has never been an impressive argument in the Swedish debate. 

The “pill scandal” of the 1950s is unknown to contemporary international manufacturers of homeopathic remedies, who are also represented in Sweden. Connecting the concepts of “fraud” or “quackery” with homeopathy is an unthinkable association for them. 

The fraudulent activities of the1950s may be forgotten, unknown or hushed up by homeopaths in Sweden today, but the effects of those associations with homeopathy at the time – with or without factual basis – remain. This emphasises the need for further studies in a wider socio-cultural context in order to enhance our understanding of what factors facilitate or counteract the existence or relative non-existence of alternative medical cultures in different countries.

Objects and Instruments

'Nussbaum on Sexual Instrumentalization' by Michael Plaxton in (2014) Criminal Law and Philosophy comments that

 In “The Wrongness of Rape,” Gardner and Shute argued that the English offence of rape primarily targets the wrong of objectification. As they put it: “That a rapist objectifies his victim by treating her as a mere repository of use-value is, in our view, what is basically wrong with rape.” Gardner and Shute tie objectification closely to instrumentalization – to the “conversion of subjects into instruments or tools.” In doing so, they explicitly purport to follow Martha Nussbaum’s understanding of what is morally problematic about objectification. Nussbaum observes that one may objectify another in one of several ways. But it is instrumentalization – understood narrowly as the mere use of another person – that she regards as the most inherently troubling. 

Gardner and Shute’s claim that the offence of rape primarily addresses the wrong of objectification risks proving too much. Objectification is rife in our culture. Why focus on rape, rather than objectification in its many other forms? Gardner and Shute recognized this problem, and purported to explain how penetration sets rape apart as an especially brutal, humiliating form of objectification. But what leaps out from Gardner and Shute’s analysis is not the idea that rape is an especially problematic form of objectification. What is striking is that Gardner and Shute engage in little explicit discussion of what does not count as instrumentalizing sexual touching. For our purposes, it is significant that Nussbaum herself does not regard the kinds of objectification that occur in the sexual context as necessarily instrumentalizing and, therefore, as morally problematic. Indeed, she is prepared to conclude that objectification “might be a wonderful part of sexual life.” 

In this paper, I want to explore more closely just what Nussbaum understands by instrumentalization, focusing in particular upon the meaning and role of mutuality in her analysis. Doing so, I argue, gives us insight into why sexual touching in three broad contexts may not be considered instances of instrumentalization: spontaneous sexual touching in a romantic context; non-spontaneous sexual touching in the context of intimate relationships; and prostitution. The last point may be most controversial given Gardner and Shute’s own stated view that prostitution involves instrumentalization. Even when we look to sexual touching in intimate relationships, however, Nussbaum seems to introduce ideas of implied consent that appear nowhere in Gardner and Shute’s paper.

Citizenship Markets

How much for the nicest passport and tax-favourable regime?

Previous posts have noted questions about the market for citizenship (eg gaining citizenship in Australia and other nations by investing on the requisite scale). 'Should Citizenship Be for Sale?' (Robert Schuman Centre for Advanced Studies Research Paper No. 2014/01) edited by Ayelet Shachar and Rainer Baubock indicates that

On 12 November 2013 the Maltese Parliament decided to offer Maltese and European citizenship at the price of € 650,000, but implementation of the law has been postponed due to strong domestic and international critiques. On 23 December, the Maltese government announced significant amendments, including a higher total amount of € 1,150,000, part of which has to be invested in real estate and government bonds. Several other European states have adopted ‘golden passport’ programmes. Should citizenship be for sale? In November 2013 EUDO CITIZENSHIP invited Ayelet Shachar of the University of Toronto Law School to open a debate on these controversial policies. Twelve authors have contributed short commentaries, most of which refer to the initial law adopted by the Maltese Parliament. 

Bauböck comments that

The EUDO CITIZENSHIP forum “Should citizenship be for Sale?” has collected comments representing a wide range of views and some highly original arguments. They can be summarised by distinguishing global, European and national perspectives.

(1) Global questions

From a global perspective, several authors argue that citizenship has become primarily a resource for mobility. Globalisation has already deeply undermined national citizenship as a bond between individuals and states and the sale of passports is just a symptom of an irreversible commodification of citizenship (Spiro). The primary value of citizenship lies in the mobility rights attached to passports. The high price put by the Maltese Parliament on Maltese passports reflects the instrumental value of free movement rights attached to EU citizenship for the wealthy and mobile global elites.

Some authors defend the sale of citizenship by pointing out that it less arbitrary and more transparent than other ways of acquiring citizenship (e.g. Kochenov), while others suggest that giving the ultra-rich privileged access to “global mobility corridors” (Barbulescu) raises concerns about fairness and justice (e.g. Owen). Instead of offering their citizenship for money, democratic states could bestow it on persons who are threatened by persecution or who fight for democratic values as a means of protection or exit option (Paskalev).

(2) European questions

Several comments emphasize that selling EU passports amounts to free-riding on the shared EU assets of free internal movement and external visa-waiver agreements created jointly by all Member States (e.g. Magni-Berton). Investor-citizenship programmes are, however, not the only instance. Many EU countries offer privileged access to EU citizenship to large populations outside the EU territory on grounds of distant ancestry or co-ethnic identity, obliging thereby all other Member States to admit immigrants from third countries to their territories and labour markets as EU citizens (e.g. Shaw).

Since EU citizenship is derived from Member State nationality and determining the latter remains an exclusive competence of Member States, EU law does not provide much leverage against either the sale of EU passports or other policies of creating new EU citizens without genuine links to any EU country. Several authors raise, however, the question whether the principle of proportionality established by the Court of Justice of the EU if withdrawal of Member State nationality leads to a loss of EU citizenship could also be applied to national rules regulating the acquisition of citizenship (Shaw, Shachar, Swoboda).

Independently of the issue of legality these authors suggest that the European Parliament is the institution that is best suited for addressing the issue. Instead of asking for intervention against particular Member States, they call for a broader debate on shared principles that ought to guide Member State policies in matters of citizenship.an overview over the main questions raised in our forum.

(3) National questions

Most authors in our forum defend a conception of citizenship as membership in a democratic community. From this perspective, selling membership seems odious in the same way that selling the franchise in elections is (Shachar, Bauböck). Citizenship is considered as the kind of good that money should not be able to buy (Ochoa). Magni-Berton argues, however, that monetary investment can be a way of contributing to the common good of a political community and should therefore not be summarily dismissed as a legitimate reason for acquiring citizenship. In his view, the high price indicates the real problem, which is artificial scarcity created through exclusionary rules for access to national citizenship.

Authors disagree on whether citizenship acquisition based on purchase or investment is more arbitrary than the common rules of ius sanguinis, ius soli or residence-based naturalisation. Some consider all of these membership mechanisms as essentially arbitrary or discriminatory (e.g. Armstrong, Kochenov), whereas Bauböck defends them as supporting equal membership in intergenerational communities.

From a global justice perspective, “golden residence programmes” that provide investors with privileged access to permanent residence status seem to be just as unfair towards the poor as “golden passport programmes”. From a democratic citizenship perspective, however, the former are less problematic since they maintain a condition of residence and thus a “genuine link test” for access to citizenship (e.g. Dzankic, Shachar, Owen).

Other authors acknowledge that states have legitimate interests in “inviting the rich, the beautiful and the smart” (Kochenov) and that investor citizenship is not essentially different from the widespread practice of offering citizenship to prominent sportsmen and –women (Owen). Chris Armstrong observes that some states offer citizenship to foreigners who have served in their army or have otherwise provided exceptional service to the country. If investors really help to save a country from financial breakdown, offering them citizenship may be justified on grounds of emergency relief. Other authors are, however, sceptical that those who are only interested in additional mobility rights can be made to invest their wealth permanently and productively (Dzankic).

Apart from the lack of a “genuine link” criterion, a global market for citizenship status is also seen as corrupting democracy by breaking down the wall the separates the spheres of money and power. Several contributions argue that there is a broader trend towards relinking citizenship acquisition to social class, which manifests itself, on the one hand, in offering citizenship to the rich and, on the other hand, in income and knowledge tests for ordinary naturalisations of foreign residents (Shachar, Barbulescu, Dzankic, Bauböck, Owen, Swoboda).