Property and Philosophy

Three perspectives on power and theory ....

'Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights' by Amnon Lehavi (2012) comments that

Property is a powerful concept. It features prominently in academic and public discourse. But it is also a source of ongoing confusion. While some of this disarray may be attributed to the success of “disintegrative” normative agendas, much of it is the result of a methodological and conceptual disconnect both within and among different fields of study. Aimed at narrowing this gap, this Article analyzes the transformation of property from a moral and social concept into a legal construct. It seeks not to develop a historical or intellectual account of such an evolution, but to analyze the institutional and structural features of property once it is incorporated into the legal realm.

The Article identifies the unique jurisprudential ingredients of a system of rules by which society allocates, governs, and enforces rights and duties among persons in relation to resources. It examines the work of decision-making institutions entrusted with the task of designing property norms over time. Clarifying the institutional and structural attributes of property does not require, however, adhering to a uniform body of substantive norms or to a single set of underlying values. Illuminating the construction of property allows rather for a better informed debate about the socially-desirable content of property rights.

Among excursions into theoretical cul de sacs see 'Post Race Posthaste: Towards an Analytical Convergence of Critical Race Theory and Marxism' by Donna Young in 1 Columbia Journal of Race and Law (2012) 499-510, which comments  -

Viewing United States antidiscrimination law through a Marxist lens helps to reveal weaknesses in the American approach to combating racism. Although Marxist theory is salient to the perpetual problem of American racism, it has been essentially ignored in the American approach. Consequently, Title VII jurisprudence has floundered in its lack of attention to some basic Marxist principles that would require an examination of capital from the perspective of those whose bodies and labor are owned and consumed through the process of capital accumulation.

As Marxism reminds us, looking at discrimination from the perspective of the worker reveals that the myriad forms of discrimination experienced in and beyond the workplace are part of a system of subordination that is: (i) supported by faith in free markets, and (ii) not amenable to the narrowly-drawn parameters of the American anti-discrimination framework. The framework, however, does fit nicely into a view of discrimination from the perspective of those put in the position of defending their conduct (the employer, the capitalist, etc.) because it treats discrimination as an uncommon, solitary, or purposeful act done by someone to someone else, not as a regular, systemic and necessary element of a capitalist system.

African Americans and other people of color seek redress for their racial injuries. However, if we are living in a post-racial society, one that is blind to race, then widespread redress makes no sense since widespread discrimination allegedly is a thing of the past. Therefore, it is worth asking, “if racial justice is about remembering racial injury, ha[s] our law made that memory impossible, erased by official color-blindness?” This question has been central to the study of law among Critical Race theorists since Critical Race Theory’s (CRT) inception. Therefore, an analytical convergence of CRT and Marxism should help disentangle the morass that is antidiscrimination law. The connection between Marxism and CRT can be appreciated by examining the limitations of civil rights laws in alleviating some of the most pressing social and political stresses on communities of color today. And yet, the connection seems to get lost beneath the din of those who claim that we are experiencing our first post-racial moment in a larger post-Marxist epoch. The aim of this Essay is to examine how a convergence of Marxism and CRT might enhance a critique of the U.S. Supreme Court’s interpretation of race discrimination under Title VII of the 1964 Civil Rights Act.

The answer? Young concludes -

How might Marxist theory contribute to the understanding that antidiscrimination laws are ineffectual in the context of free markets and post-racial dialogue? Marxism tells us that the conflict between the capitalist class and the working class is inherent in a capitalist system. Capitalists control the means of production and endeavor to increase profit by exploiting the working class. The working class sells its labor in return for wages. This working class majority, then, is interested in increasing wages and improving working conditions. Because capitalists have superior bargaining power, especially within the legal framework of at-will employment, they also enjoy more economic, legal, political and social power. Therefore, in order to end exploitation (the devaluation of their labor), the working class must work together to overthrow capitalists. Absent this revolution, however, the working class at least must form unions and other organizations to improve the quality of work (better wages, hours, and working conditions).

Racism has been and continues to be a constant and necessary component of American capitalism. It operates to divide the working class and indeed relegates large minorities to the underclass and thus prevents unified political action. The resulting weakness of bargaining power of the working classes maximizes profits by ensuring a wage system that undervalues the worth of labor. Ownership of capital is therefore equated with Whiteness and being owned or devalued with Blackness. Discrimination is a system not confined to the individual workplace, but one that permeates all workplaces and one that is essential to the structure of the free market itself. Yet because antidiscrimination laws have been incapable of addressing inequities inherent in a presumed race-neutral free market, we cannot rely on existing antidiscrimination laws to address the many ways in which racism is practiced. Due to the embedded nature of racism in American capitalism, concerted, organized resistance may be a promising avenue for meaningful social change.

I'm unpersuaded.

People who are underwhelmed by the dictatorship of the precariat but enthused by the likes of the quantum mysticism questioned here might turn to 'On Holism and The Contextual Character of Natural Qualities' by Vuk Uskokovic in 68(6) World Futures (2012) 406-429

Presented is a discourse on the contextual nature of physical qualities. The realistic and observational contexts in which a system exists are demonstrated as equally involved in defining its qualities. Each quality could be consequently considered as natural and experiential at the same time. The subsequently proposed thesis of the contextual co-definition of natural/experiential qualities in the relationship between the human mind and Nature is shown to possess numerous favorable ethical and aesthetical implications. The contextual nature of experiential qualities is further correlated with the holistic character of natural systems and events, which is illustrated by several real-life examples. A systemic approach to knowledge is shown to naturally emanate from the acceptance of the contextual definition of physical qualities and the holistic nature of experiences. Methodological problems of the standard, reductionist explanatory frameworks are additionally discussed with an emphasis on the major descriptive flaws of quantificational approaches and in respect to cybernetic and autopoietic organization of physical and biological systems. ....

Despite the fact that the beginnings of the Western tradition of wisdom are marked with the image of Socrates who allegedly (Plato 1984a). used to suddenly stop during his leisured walks and stand still for hours, deeply engaged in meditative thoughts, it seems as if humans nowadays neglect to look over their shoulders and occasionally revisit and revise the guidelines that steer the patterns of their abstractions and actions. Moreover, raising one's glances upward and looking for heavenly signs to fall upon one seems to have ceded place with an acceptance of worldviews that dictate that all that exists are no “Heavens” above, but particles yielding purely accidental phenomena while moving in random, Brownian way. This work challenges the latter worldview by exploring the steps that may reestablish faith in “the signs that fall from the Heavens above,” although through the perspective of scientific and philosophical reasoning. In the end, we might realize that the immanent divinity of the natural co-creation could be discerned by both observing the experiential foundations of one's being and raising views toward Heavens. So far, Socrates’ bright statuary posture that reflects his deep engagement in contemplation while carefully observing the patterns of the sky, or the vision of eternal Platonic beauty with Her eyes oriented toward the inner core of spiritual values and yet seeking signs of immanent divinity obscured in every detail and aspect of the world, may serve as a picturesque guidance on our way.

The concept of perceptual, reflective, and social co-creation of experiential phenomena has been in more details discussed in the author's previous works (Uskoković 2009a, 2009b, 2009c, 2011). To put it briefly, whereas objectivistic standpoints see individual experiences as resulting from passively detected physical outlines of an external world and their projections in terms of directly corresponding images on the cognitive screen of one's mind, constructivist stances claim that the world of one's experience is the product of autonomous construction of experiential wholes out of vaguely related pieces of the puzzle of raw environmental impulses. The concept of co-creation of experiential qualities adopts a middle ground with respect to these two ideas. The objectivistic proposition of perceptive observation and reflective discovery of ideas, and the constructivist proposition of perceptive construction and reflective invention of ideas are thus merged into the concept of perceptive and reflective co-creation of experiential qualities. Accordingly, all the products of one's perception and reflection can be seen as arising in the course of co-creational communication between mind and Nature, which implies creative involvement of both the subject and environmental stimuli in defining features of the subject's experiential reality. To what extent do these basic forms of human perception come from cognitive predispositions and the biological makeup of human organisms and to what degree are they influenced by natural processes around us is an unanswerable question since we are unable to untangle these two sides; as the co-creational thesis tells us, all the products of our perception and, consequently, reflections, reasoning and hands-on creations arise from the dialogue between mind and Nature. With the concept of co-creation defined, we can proceed to analyze the contextual and holistic character of natural phenomena. ... Interpretational contexts within which a being encompasses experiential features are continually co-created through interaction between the subject's sphere of questioning relationships directed towards an observed system and a realistic sphere of ontological relationships that connect the observed system with the rest of the world. Each co-created experiential detail could be, therefore, considered as a way that relates the observer with infinity of natural relationships, providing indirect encounters with the entire physical reality. In the opposite direction, all subtle thoughts and intentions may be similarly relatable to the entire existence and depicted thereupon as “messenger doves” that incessantly emit “waves,” inspiring and harmonious or disruptive and turbulent, that reach even the most desolate corners of the world.

And on and on it goes.

Uskokovic concludes

Approaching the final destinations and turning back to where the walk of this discourse has started from, we come to realization that there is indeed a necessity for occasional redirection of our cognitive views toward contextual skies of both realistic and idealistic ambiances in the course of their co-creational meetings from which all experiential qualities emanate. This may eventually transform one's cognitive stances into a spiral progression through constant balletic twirls wherein prudent and ponderous swirling backward so as to reach the epistemological foundations of one's reasoning and looking up towards contexts that endow experiential features with the shades of meaning and a sense of timeless beauty ceaselessly alternate with each other. Continuous interplay between the ontological, “heavenly sky” of Nature and the epistemological “sky of the soul” has been shown to co-create the features of all experiential/natural systems. While facing the realistic aspects of experiential horizons has the chance to overwhelm one with astonishing wonder, facing its subjective aspects corresponds to explorations of epistemological foundations of one's experience and their eventual enrichment with sacred treasures of life in terms of precious values, emotions, and aspirations. Wonder and Love can be, therefore, after all, glimpsed as a couple of mutually potentiating aspects of sublime acting in the world. And in the long and sacred quest for eternal beautification of the world, one may realize that this pair of aspects presents two poles of a single whole, wherein their endless interplay makes experiential worlds as the emanations of the divine to arise and evolve.

Section 25 and Indigenous Recognition

'An Obituary for Section 25 of the Constitution' by Anne Twomey in 23(2) Public Law Review (2012) 125-141 follows work over the past two years noted in this blog.

In her 'Obituary' article Twomey comments that

The least controversial of the recommendations of the Expert Panel on the Constitutional Recognition of Indigenous Australians was that s 25 of the Constitution should be repealed. The provision is generally regarded as ‘racist’ and no longer fitting for inclusion in the Constitution. This article challenges that assumption. It discusses the anti-racist intent of s 25 and its derivation from the US 14th Amendment. It analyses its relationship with other provisions of the Constitution and why it proved ineffective in discouraging discrimination against Aboriginal people. It considers the judicial use and misuse of s 25 and some of the misconceived grounds given for its repeal. It concludes that while it may yet be appropriate to repeal s 25, this should be done with due recognition of its intended role and that its time has simply passed.

She concludes -

It is simplistic to assert that s 25 of the Constitution must be repealed because it is a "racist"provision. Its history shows that it is, in fact, an anti-racism provision and a small remaining skerrick of civil liberties inherited from the US Constitution. It is true that its operation has been very limited – largely because of the application of s 127 and the neutered application of s 41. It is also true that it is most unlikely (although not impossible) that it will ever be needed in the future, except perhaps as the foundation of an implication of representative government in the States.

From a federalist point of view, it is probably best to repeal it, as it unnecessarily intertwines a fundamental aspect of State Constitutions with the Commonwealth Constitution. From a civil liberties point of view, the symbolic value of removing a reference to "race' from the Constitution is probably greater than the loss of potential protection that s 25 provides. Its use by the High Court has been hardly instructive and its misuse is to be deprecated. By all means let it be repealed, but this should be done with respect for its intended role and in recognition that its time has passed, rather than with misguided contempt.

VARA and Marks

'The Artist as Brand: Toward a Trademark Conception of Moral Rights' by Xiyin Tang in (2012) 122(1) Yale Law Journal comments that

 The Visual Artists Rights Act of 1990 controversially recognized artists’ “moral rights” by protecting their work from alteration or destruction and by preventing the use of an artist’s name on a work he did not create. While moral rights are criticized as antithetical to the traditional economic framework of American intellectual property law, Professors Hansmann and Santilli have suggested that moral rights can be justified economically by vindicating an artist’s economic interests. This Paper, however, argues that VARA also benefits both the purchasing and viewing public, especially in an era of factory-made, assistant-produced, industrially-fabricated “object-like” art works. Specifically, moral rights, like trademark law, can reduce search costs, ensure truthful source identification, and increase efficiency in the art market. This comparison between trademark law and moral rights shows that the interests protected by VARA are neither unique nor unprecedented in American law, and highly economic in character. Thus, this Paper hopes to reframe the dialogue surrounding moral rights, shifting it away from the classic “personhood” or “anti-commodification” arguments that have undergirded the rhetoric up to this day.

Tang concludes -

The economic incentive behind copyright lies in the belief that “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors.” Thus, it is at least arguable that if a modification of copyright does not advance “the Progress of Science,” that modification is unconstitutional.  Likewise, VARA’s legislative history is highly concerned with elucidating the important public benefits that will emerge from according moral rights to artists: 

Artists must sustain a belief in the importance of their work if they are to do their best. If there exists the real possibility that the fruits of this effort will be destroyed after a mere ten to twenty years the incentive to excel is diminished and replaced with a purely profit motivation. The Visual Artists Rights Act mitigates against this and protects our historical legacy. 

This Note, however, has argued that a “pure profit motivation” - in clever branding, advertising, and general celebrity-type antics to which the contemporary art world today is prone - is all that’s left, and the moral rights regime is the inadvertent, inaptly named legal system that protects those economic, trademark-like interests. 

Yet perhaps what is most interesting about the comparisons between moral rights law and trademark law is that both can serve a distinctly public function: rather than incentivize creators, trademark law means to protect consumers, or the buying public, by ensuring accurate source identification and reducing search costs. Further, the viewing public also benefits from accurate source identification, as they must read each work, intact and as the artist intended it, against the whole of an artist’s oeuvre. The benefit to the public, however, is necessarily predicated on the individual viewer’s encounter with the work, rather than a shared sense of community ethos. This Note has thrown into doubt whether we can expect art to serve a broader social function that consists of “common reference points or icons ... widely shared in social communication.” Whether the often obscure contemporary art objects of today will resonate the way Picasso or Rembrandt paintings did in their day is a topic for a different article. I only mean to suggest that the industrial processes through which the contingent art object is made rely on the artist to perform quality control measures, for which “signing off” on the finished product is key. In the event that a poor fabrication is made off an artist’s original plans - as was the case with the reconstruction of Carl Andre’s 1969 piece Fall, in which the bend in the steel curved less dramatically than Andre had intended - VARA would allow the artist to prevent use of his name in connection with the work. 

Lastly, the fact that trademark law has also been acknowledged to incentivize producers by facilitating investment in goodwill may serve a more traditionally socially beneficial artistic function as well. Like copyright law, thinking of art making as brand making may encourage artists to develop a unique, path-making style and garner symbolic value early on in their careers n turn propelling forward the Progress of Science via stylistic innovation. Whether meant as a serious offer or a satirical message, Hirst’s grotesque gesture of the $100 million skull has accurately captured “the essence of [our] culture and record[ed] it for future generations,” resulting in a new form of art for the contemporary era. As it turns out, “it is often through art that we are able to see truths, both beautiful and ugly.” 

Part of the reason that the myth of van Gogh’s ear and of the romantic modernist painter have persisted through the ages is because it is a story we want to believe in, and, subsequently, vicariously experience. Even as recently as the 1950s, Jackson Pollock, that art-world superstar, was still the lone wolf, chugging whiskey and splashing paint wildly about on his floor-laid canvases. We see brazen action painting like Pollock’s as risk-taking: “[W]e rely on [artists] to make up for our own timidity, on their courage to dignify our caution.” And while we may “all make our wagers,” the “artist does more. He bets his life.” 

And so it is. If the stakes of the game have changed since high modernism - if it is now “cool” to be economically successful - so, too, have the times. Warhol may have been the first artist to successfully capitalize on and foreshadow the power of modern media and consumer culture for the artist-as-businessman model, but he is just one of many postmodern artists who now look to the conditions of the market as talisman and guide, rather than creating artworks from the spontaneous, inspired depths of their own tortured souls. In some ways, this may make sense. Isn’t art on some level always reflective of the times we live in? If this is the case, I do not know how the dialogue surrounding moral rights may be justified in the future. In fact, the pendulum may just swing back again at some later date, in which art once again becomes lofty, and moral rights thus become a special subset of rights somehow justifiable of their own accord. For now, I propose that moral rights are probably no more or less than trademark law - that great engine of consumerism, beating ceaselessly on in the name of commerce, capitalism, and yes, even culture.

Drones

'One Hell of a Killing Machine": Signature Strikes and International Law' by Kevin Jon Heller in Journal of International Criminal Justice comments that

The vast majority of drone attacks conducted by the U.S. have been signature strikes – strikes that target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” In 2010, for example, Reuters reported that of the 500 “militants” killed by drones between 2008 and 2010, only 8% were the kind “top-tier militant targets” or “mid-to-high-level organizers” whose identities could have been known prior to being killed. Similarly, in 2011, a U.S. official revealed that the U.S. had killed “twice as many ‘wanted terrorists’ in signature strikes than in personality strikes.” Despite the U.S.’s intense reliance on signature strikes, scholars have paid almost no attention to their legality under international law. This article attempts to fill that lacuna. 

Section I explains why a signature strike must be justified under either international humanitarian law (IHL) or international human rights law (IHRL) even if the strike was a legitimate act of self-defence under Article 51 of the UN Charter. Section II explores the legality of signature strikes under IHL. It concludes that although some signature strikes clearly comply with the principle of distinction, others either violate that principle as a matter of law or require evidence concerning the target that the U.S. is unlikely to have prior to the attack. Section III then provides a similar analysis for IHRL, concluding that most of the signature strikes permitted by IHL – though certainly not all – would violate IHRL’s insistence that individuals cannot be arbitrarily deprived of their right to life.

Breaches

The UK Information Commissioner has imposed a Civil Monetary Penalty of £150,000 on the Greater Manchester Police.

The Commissioner indicates that

ICO investigation into a data breach at Greater Manchester Police has concluded with the force being fined for failing to take appropriate measures against the loss of personal data. 

The action was prompted by the theft of a memory stick containing sensitive personal data from an officer’s home. The device, which had no password protection, contained details of more than a thousand people with links to serious crime investigations. 

The ICO found that a number of officers across the force regularly used unencrypted memory sticks, which may also have been used to copy data from police computers to access away from the office. Despite a similar security breach in September 2010, the force had not put restrictions on downloading information, and staff were not sufficiently trained in data protection. 

The findings prompted the Information Commissioner to use his powers under the Data Protection Act to impose a Civil Monetary Penalty of £150,000. Greater Manchester Police paid that penalty yesterday, taking advantage of a 20 per cent early payment discount (£120,000).

The Commissioner has elsewhere reported that social care charity Norwood Ravenswood has been smacked with a £70,000 penalty "after highly sensitive information about the care of four young children was lost after being left outside a London home".

 A social worker, who worked for Norwood Ravenswood Ltd, left the detailed reports at the side of the house on 5 December 2011 after attempting to deliver the items to the children’s prospective adoptive parents. At the time neither occupant was at the house, but when they returned to the property the reports were gone. The information has never been recovered. 

The reports contained sensitive information, including details of any neglect and abuse suffered by the children, along with information about their birth families. The ICO’s investigation found that the social worker had not received data protection training, in breach of the charity’s own policy, and received no guidance on how to send personal data securely to prospective adopters.

The reports provide a useful perspective in considering current Australian proposals regarding data breach regulation.

Rules of Recognition

'Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses' by Richard Ross in 217 Past and Present (2012) 79-115 examines -

two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law from a limited set of first principles such as self-preservation and sociability, one faced the problem of distinguishing immutable natural precepts from rules that arose only to address passing issues in a specific territory.

Natural lawyers and Mosaic legalists did not use the same techniques for separating eternal and transient precepts. Each had its own “rules of recognition” (to borrow a helpful modern concept). My essay compares natural lawyers’ and Mosaic legalists’ rules of recognition, their ways of telling immutable from transitory precepts. In this, it goes against the dominant tendency of modern scholarship to approach the Mosaic legalists and natural lawyers separately rather than in tandem. Reading the two in unison highlights how the projects faced common intellectual challenges. In particular, both natural lawyers and Mosaic legalists used stadial theories of historical change and both implied that immutable law should be convenient under present circumstances. Both used temporally- and contextually-sensitive categories to locate an “eternal” law. But these emphases, if pushed too far, threatened the natural lawyers’ and Mosaic legalists’ enterprise, so both groups developed stabilizing conventions.

The rules of recognition mattered greatly as controversialists deployed natural and Mosaic law in fights over political oaths and allegiance, usury, sabbatarianism, church governance, and a wide range of other issues. Over and again, early modern actors asked the perennial question: What was God, through scripture and nature, commanding us to do? The Mosaic legalists’ and Protestant natural lawyers’ rules of recognition helped answer this most pressing of questions.

 Ross concludes that -

Reading the Protestant natural lawyers and Mosaic legalists in parallel reveals significant similarities in their rules of recognition, a fact overlooked when each is studied in isolation. Both explored how change over time shaped the current form of unchanging precepts; and both asked whether precepts lent essential support to humanly designed institutions and brought good consequences. A tension lurked in their projects. Mosaic legalists and natural lawyers used intellectual categories sensitive to history and social context in order to identify precepts that claimed to rest on a divine foundation, obligate all of Christendom and remain valid eternally.

To understand more clearly the meaning and implications of this tension, it is helpful to specify what it was not. The early modern world was full of jurists and divines using arguments about convenience and history to determine which precepts within a sprawling inherited traditionwouldmove across cultures and times to bind new places, and which would be filtered out. The ‘reception’ of Roman law in Continental Europe and overseas colonization created new forms of legal filtering, adding to the ongoing process under way in metropolitan legal traditions (such as the English common law). French legal humanists asked which elements of Roman law should be left behind as peculiar to Roman pagan society and which principles should bind contemporary Europe because they embodied a transcultural ‘written reason’. England and the Netherlands authorized their settlements in North America and the East Indies to draw on such elements of the metropolitan legal tradition as were consonant with their condition. In both instances, interpreters asked whether precepts should be discarded because they were peculiar to the situation of another people in a different place and time. This echoed the Mosaic legalists—but only echoed them. Those filtering Roman law, colonial law and metropolitan legal traditions selected among ordinances made by people. By contrast, the Mosaic legalists and natural lawyers were trying to identify still-valid perpetual ordinances arising from God, whether introduced through revelation, His infusion of law into the universe or His fashioning of a particular form of rational human nature.

The tension present in the Mosaic legalists’ and natural lawyers’ rules of recognition was not merely a continuation of the long-standing problem of accommodating timeless, divinely grounded principles to the mutability of human affairs. This problem took many forms. To begin with, the unchanging foundational principles of natural and divine law needed to be connected through mid-level propositions to the varying times, places and circumstances of diverse societies. These basic principles were highly general (‘love God’, ‘do no evil’). They could be applied to daily life only if particularized. In Thomist vocabulary, this was done by generating ‘conclusions’ (deductions of more specific secondary and tertiary precepts from foundational principles) and by creating ‘determinations’ (civil and ecclesiastical ordinances that applied natural and divine injunctions to specific cases). A second example of early modern theorists struggling to connect perpetual tenets to alterable communities occurred in the intense English debate over Church structure and governance.

Elizabethan and early Stuart defenders of the Church of England, notably Richard Hooker, struggled to expand the range of adiaphora in order to explain how the eternal ends of Christian faith could be served by a variety of forms of ecclesiastical organization and discipline suited to specific social conditions. The overall challenge in both of these arenas and many others was to produce the ‘conclusions’, ‘determinations’, institutional structures and practices that would give unchanging, divinely grounded principles practical expression amid diverse societies developing over time. The means chosen to effectuate invariant godly ends in a particular community had to take account of historical change, social variation and the claims of convenience. The many typologies distinguishing natural and divine eternal law from humanly made transient law — Domat’s ‘immutable’ and ‘arbitrary’ law, Althusius’s ‘common’ and ‘proper’ law, and so on — made the latter the realm of the ‘utility, condition, and other special circumstances of the country’.

This background allows clearer perception of what was distinctive about the rules of recognition used by Mosaic legalists and Protestant natural lawyers. For them, convenience and social and historical variation did more than shape the means selected to give effect to already known natural and divine principles. The Mosaic legalists and Protestant natural lawyers also worked these factors into their methodology for identifying natural precepts and judicial laws of general equity. Change over time, social structures and convenience — matters of the transient, human world — were incorporated into the rules for recognizing natural and divine precepts that were perpetual, beyond time and culture. This tension, not unknown before but greatly enhanced among the Mosaic legalists and Protestant natural lawyers, distinguished them from prior Renaissance and medieval seekers after eternal ordinances. But attention to historical change and arguments about convenience needed to be carefully contained by stabilizing conventions. The stakes were high. For the Mosaic legalists’ and Protestant natural lawyers’ rules of recognition helped answer that most pressing, perennial question: what was God, through scripture and nature, commanding us to do?

Snake Oil

Past posts in this blog have highlighted problematical claims in the 'complementary medicine' sector.

In Australian Competition and Consumer Commission (ACCC) v Sensaslim Australia Pty Ltd (in liq) (No 4) [2012] FCA 1171 the Federal Court of Australia has been unimpressed with Sensaslim and Peter Foster.

Proceedings were brought against Sensaslim and Foster on the basis that Sensaslim engaged in misleading or deceptive conduct. Foster has been fighting all the way, evident in for example Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (In Liquidation) (No 3) [2012] FCA 939 and Foster v Australian Competition and Consumer Commission [2012] FCA 953.

The Federal Court of Australia has found that to adduce further evidence, where the company failed to appear for hearing, would cause unacceptable prejudice to the participating parties.

Meanwhile Choice has commented that

The idea of selling water for upwards of $1000 per litre and claiming it’s medicine represents the very essence of shonkiness. But convincing anxious or desperate parents they can use it to treat their children’s ailments takes it to a whole new level. Introducing the Nature’s Way Kids Smart Natural Medicine range, with variants for colds and flu, hay fever and runny nose, pain and fever, and for calming kids down. Already feather-whipped by the TGA for making unsubstantiated claims about the uses and effectiveness of the products, the company has done nothing to temper its assertions the products might actually do something.

Most of the homeopathic “ingredients” – and given the dilution factor, we use the term loosely – feature plant extracts, including strychnine and insecticidal Sabadilla, and arsenic.

No problems there, apparently, given that strychnine and arsenic are natural, and natural - for true believers - is holy. Natural? So is lead, cobra venom, the neutoxins in delivered by a blue-ringed octopus or by the blowfish. I'm planning to skip that sort of delicious natural confection ... the cobra cocktail's best left for other people.

Choice goes on to comment that

They’re giving kids strychnine? Sure enough, the “Nux vomica 6C” in the “Calm” liquid is the homeopathic term for strychnine, in a dilution of one in a trillion.

To picture this 6C dilution in real terms, imagine you have an Olympic-size swimming pool full of water. Now take 20 such pools, and join them all together. Now put one drop of the strychnine “mother tincture” (the original liquid containing the now-discarded strychnine) in this mega pool, stir, and you have a 6C Nux vomica swimming pool. Worried? Well don’t be: this is further diluted in the bottle by a further one-thousandth.

Clearly the harm doesn’t come from the stuff itself – it’s effectively water with blackcurrant flavour. The harm comes from it doing nothing for your children in the expensive and mistaken belief you’re doing something.

As public health campaigner Dr Ken Harvey points out, “Symptoms like ‘restlessness, anxiety, irritability and agitation’ the ‘Calm’ claims to treat can be the symptoms of potentially serious childhood infectious diseases for which a homeopathic remedy is entirely inappropriate, and such misguided treatment might make a parent postpone seeking more appropriate medical advice to the child’s detriment.

"In my opinion, such promotion is dangerous and an affront to public health and medical science.”

Kids Smart indicates that -

Kids Smart Natural Medicine Calm is a specially formulated with natural homoeopathic ingredient to help soothe, relax and calm restless, irritable and anxiousness. It may also help calm over-excited children before bedtime and help promote a restful sleep. It can also help to calm children for car and air travel.

For best results, Kids Smart Natural Medicine Calm should be taken at the first sign of mild anxiousness, restlessness or irritability.

What's truly disappointing about this sort of hokum - which I've elsewhere argued can be considered as fraud (if there are no detectable pharmacologically active compounds in the 'medication' you are paying the equivalent of $1,000 for a litre of flavoured water) - is that policing is left to conscientious individuals such as Dr Harvey.

Riot

In R v Abounader [2012] NSWSC 1312 the Supreme Court of New South Wales has convicted Farres Abounader for the offence of riot. Nothing like a bit of retro in crim law.

Hulme J recognised that Abounader played an organisational role in a brawl between the Comancheros and the Hells Angels at Sydney Airport in March 2009.

Abounader was sentenced to six years' imprisonment with a non-parole period of four years, reflecting that role and being armed with a knife.

Orphelins

The EU Orphan Works Directive - Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works [PDF] - has been promulgated.

It covers particular uses of orphan works by "publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations" to achieve "aims related to their public-interest missions".

Those works include

(a) works published in the form of books, journals, newspapers, magazines or other writings contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions; 

(b) cinematographic or audiovisual works and phonograms contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institu­tions; and 

(c) cinematographic or audiovisual works and phonograms produced by public-service broadcasting organisations up to and including 31 December 2002 and contained in their archives; which are protected by copyright or related rights and which are first published in a Member State or, in the absence of publication, first broadcast in a Member State. 

It aims to

• Ensure lawful cross-border online access to orphan works contained in the collections of libraries, educational establishments, archives and museums across Europe.
• Facilitate EU-wide online availability of orphan works, promoting Europe's cultural diversity and increasing sources of knowledge and learning. 
• Create European-wide access to a comprehensive world-class digital library so that every citizen can access the consolidated EU library collections from a computing device anywhere in the EU. 

Specific objectives [PDF] are to -

• Increase legal certainty for digital libraries: by adopting a binding instrument clarifying the legal status of orphan works and the conditions under which libraries can display such works online and carry out preparatory acts such as reproductions for preservation or restoration purposes. 
• Protection against liability for infringement: by ensuring that legislation contains provisions (i) to protect libraries against possible liability for copyright infringement for the use of orphan works after a diligent search and (ii) for redress to reappearing rightholders. 
• Ensure adequate protection for rightholders: by ensuring that legislation contains provisions (i) for libraries to conduct a diligent search for rightsholders prior to the online display of works and (ii) for redress to reappearing rightholders. 
• Reduce transaction costs for the online use of orphan works by libraries, educational establishments, museums and archives. 
• Establish common sector specific criteria to conduct diligent search: uniform criteria need to be established and, at the appropriate stage, be made binding on all parties involved in conducting a diligent search. 
• Limit diligent search to one country i.e. of first publication or country of origin of the work: by limiting the diligent search to the country of first publication of a work, unnecessary duplication of searches and their inherent cost are avoided. 
• Enable mutual recognition of orphan work status: by establishing a system of mutual recognition of a diligent search carried out according to predefined criteria, duplication of such searches is avoided. 
• Facilitate the identification of rightholders: by providing transparent and comprehensive information on existing orphan works and reducing their occurrence in the future by better identifying works and their rightholders. 
• Facilitate cross-border access to orphan works: once libraries, educational establishments, museums and archives display orphan works online, these should be indexed and accessible from all Member States.

Member States are required to transpose the Directive into national law by 29 October 2014.

Bottom of the Harbour

The Australian Communications & Media Authority (ACMA), the national broadcasting regulator, has taken a permissive stance [doc] in dealing with Harbour Radio Pty Ltd, licensee of Sydney radio station 2GB.

ACMA finds that the broadcaster "has breached the privacy provisions of the Commercial Radio Australia Codes of Practice 2011" and has "failed to comply with the codes’ complaint-handling requirements". ACMA

will not be taking any enforcement action on this occasion as it considers that 2GB’s action in response to the ACMA investigations are commensurate with the breach (bearing in mind that this is the first such breach by this licensee, there is no current indication of systemic issues and the licensee has co-operated with the ACMA).

Apart from ACMA's response - no surprises there, consistent with its history of regulatory capture - the matter is fascinating for its insights into corporate conceptualisation of privacy (and defamation) or the ingenuity of its legal advisers

ACMA found that

material relating to a person’s personal or private affairs was used when that person’s full name, street address and suburb of residence were broadcast during the Ray Hadley Morning Show on 25 November 2011. These details were sufficient to identify the person. ‘The broadcast of a person’s name and address without consent is a breach of the privacy protections under the codes,’ said ACMA Chairman, Chris Chapman.

If we move beyond ACMA's bland media release we discover that shockjock Hadley made the following statement during a broadcast in 2011

just for the benefit of people joining me here, I notice there are two police officers outside. That would relate to a lunatic who has been writing for about the last five years the most vile letters to myself and Alan Jones. In fact, when a member of our staff was gravely ill, that fellow wrote a letter, that I got a copy of, saying ‘I hope you die’. That’s the sort of person we’re dealing with. Now, his name is [X], he lives on [road] at [suburb]. When I came downstairs they told me he’d been abusing Alan from outside the broadcast, so what I did, I walked outside, ‘Officer, g’day, nice to see you both’. I walked outside and told Mr [X] that I’d stick his head up his bum and use him as a jug handle unless he went. So if you’d like to take that statement down I’d be more than happy to supply it and write underneath, ‘Mr [X] belongs in a mental institution, he’s a vile character and I have the documents at work where he’s wished people who’ve been ill who have worked for us would die. The most vile character and he’s mentally ill. So officers, you’ve got a lot more things to do than worry about that bloke, I can assure you.

Hadley provided a name and address. The person who was thus identified and who was characterised as "a lunatic", author of "the most vile letters", as belonging "in a mental institution", as "a vile character",  "the most vile character" and "mentally ill" might not be happy.

He appears to have complained to ACMA, stating that -

My reason for complaining to the ACMA is that Ray Hadley announced my name and address over the airwaves. I would like very much to know just why Hadley chose to do this. I’m not a criminal. 

I’m sure Hadley was miffed that I called the police when he threatened me with physical violence. Is the broadcasting of my name and address about Hadley ‘getting even’? Or is it an exercise in intimidation on Hadley’s part? Is Ray Hadley engaging in mischief-making? Should I be expecting a visit from some disgruntled 2GB supporter? 

In any case, I wish to make a formal complaint to ACMA about the broadcasting of my name and address by Ray Hadley from 2GB. I wish to protest strongly about what I see as an abuse of the public airwaves by Ray Hadley from 2GB.

Harbour's response appears to have been that there are no privacy problems with identification of the complainant, as

In fact, it would appear that another person with the name [complainant’s surname with a different spelling] resides at [the street name actually broadcast] (see the white pages entry for confirmation). While these names are spelt differently, the pronunciation of the names would be identical. 

In our view, a person’s street address is an important identifying feature and, if provided incorrectly using the street address of another person with the same name, creates demonstrable ambiguity around identification.

No major problems for Harbour and ACMA, apparently, as long as you identify the wrong person!

It appears permissible to point to someone who hasn't had any contact with Mr Hadley and describe that person as vile, mad and implicitly dangerous.

ACMA comments that

While the presenter was concerned about the complainant’s behaviour towards 2GB’s staff and the nature of the letters the complainant allegedly wrote to the station, the ACMA does not consider that there was a public interest reason to disclose his identity. The ACMA considers that the broadcast of his personal information was serious, particularly given the manner in which he was described. There was no reason to identify the complainant if the presenter wished to recount the incident which occurred outside the studio and his frustration concerning the event and the complainant’s behaviour. 

Given that there is no public interest in broadcasting the complainant’s personal information, the ACMA finds that the licensee breached clause 2.3(d) of the Codes

Punishment for that breach? Self-reflection and a promise to be good. We might hope that the person who was identified in the broadcast has received a substantial settlement from Harbour Radio regarding what can reasonably be perceived as a defamatory statement.

Cambridge

The seven page 'By Royal Appointment: No Closer to an EU Private International Law Settlement?' (Sydney Law School Research Paper No. 12/80) by Andrew Dickinson comments that

The international dimension to privacy law has come sharply into focus following the unauthorised taking and publication (both in hard copy and on the internet) of photographs of the Duchess of Cambridge during a holiday in France. Although the French proceedings brought by the Duchess and by her husband are not complex in private international terms, they have provided a trigger for discussion of the way in which private international law in Europe deals with harmful conduct of this kind. This paper is the author’s contribution to an online symposium on the Duchess of Cambridge case organised on conflictoflaws.net.

In discussing the judgment by the Tribunal de Grande Instance de Nanterre Dickinson comments -

the decision may be criticised in no less than seven respects. 

First, having expressed ubiquitous remarks about the ubiquitous nature of internet publications (para, 45), the Court observed (with good reason) that this causes difficulty in applying the criterion of “damage” as a factor connecting the tort to a given legal system for the purposes of Art. 5(3) of the Regulation: “the internet reduces the usefulness of the criterion relating to distribution in so far as the scope of the distribution of content placed online is in principle universal” (para. 46). In light of these conclusions, and given that the special rules of jurisdiction are intended to secure “a close link between the court and the action” and/or “to facilitate the sound administration of justice” (Recital (12); see also para. 40 of the eDate judgment), one might have expected that the Court would conclude that the concept of “harmful event” should be given a narrow reading in cases of this kind so as to exclude the criterion of damage as a connecting factor for jurisdiction purposes (for an analogous approach in a contractual context, see Case C-256/00, Besix, paras 32 and following). That conclusion would have been consistent with the dominant approach in the case law to the interpretation of exceptions to the general rule in Art. 2 (e.g. Case C-103/05, Reisch Montage, paras 22 and 23). The Court, however, chose a different path. 

Secondly, the Court asserted that the connecting factors used within Art. 5(3) “must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all the damage caused” (para 48). This argument, which the Court uses as its launching pad for its novel “centre of gravity approach”, is utterly devoid of merit. As the Court had acknowledged (para. 43), the claimant in such a case already has at least one, and possibly, two options available for bringing an action in respect of all the damage caused in one Member State court. Most significantly within the framework of the Regulation, he/she may always bring an action in the Courts of the defendant’s domicile (see Besix, para 50; Case C-420/97, Leathertex, para 41). Moreover, if the publication emanates from an establishment in a Member State other than that of the publisher’s domicile, the claimant may bring an action in that Member State, as the place of the event giving rise to damage, (Case C-68/93, Shevill, paras 24-25; eDate, para. 42; Case C-523/10, Wintersteiger, paras 36-39). There was no need to create a new global connecting factor. 

Thirdly, having concluded that the Regulation did not present the claimant with sufficient options for pursuing his claim, the Court proposed attributing full jurisdiction to “the court of the place where the victim has his centre of interests” on the ground that the impact of material placed online might best be assessed by that court (para. 48), sitting in a place which corresponds in general to the claimant’s habitual residence (para. 49). In these two sentences, and without further explanation or justification, the Court repudiates its longstanding principle of avoiding interpretations of the rules of special jurisdiction in Art. 5 which favour the courts of the claimant’s domicile in such a way as to undermine to an unacceptable degree the protection which Art. 2 affords to the defendant (e.g. Case C-364/93, Marinari, para. 13; Case C-51/97, Réunion Européenne, para. 29). Fourthly, the Court considered that its proposed new ground of jurisdiction has the benefit of predictability for both parties, and that the publisher of harmful conduct will, at the time content is placed online (being, apparently, the relevant time for this purpose†), be in a position to know the centres of interests of the persons who are the subject of that content (para. 50). It is, however, extremely difficult to reconcile this confident statement with the Court’s earlier recognition that “a person may also have the centre of his interests in a Member State in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State” (para. 49). If predictability were the objective, it is hard to see how the Court could have done more to remove it. 

Fifthly, given that a person’s private life (and reputation) may have several centres, which change over time, it does not seem possible to say more than that there might be a strong link between the facts of a particular case and the place where the claimant’s centre of interests is held to lie. Equally, there might not. Take the case of a former Bundesliga footballer, with Polish nationality, who signs for an English club and moves to England. While visiting a German friend, he has rather too much to drink in a nightclub. The story is published, in German, on a German football website. Does the sound administration of justice support giving the English courts jurisdiction over the footballer’s claim against the website publisher? In the Duchess of Cambridge’s case, does the sound administration of justice support giving the English courts jurisdiction over the publication of photographs on a French, or Italian or Irish, website, particularly as the current position is that those courts would have no jurisdiction with respect to hard-copy publications by a newspaper or magazine under the same ownership? Given that the French, Italian or Irish courts would have global jurisdiction under Art. 2, it is suggested that the answer is a resounding “no”. 

Sixthly, having decried the utility, in internet cases, of the criterion of damage á la Shevill, the Court inexplicably chose to retain it as a connecting factor for jurisdiction purposes, allowing an action “in each Member State in the territory of which content placed online is or has been accessible” (para. 51). This begs the following question: if the new connecting factor is not a substitute for the “damage” limb of the Bier formulation, what then is it? In para. 48 of its judgment, the Court had seemed to suggest that the claimant’s centre of interests was “the place in which the damage caused in the European Union by that infringement occurred”, but this cannot be taken literally given that the Court returns three paragraphs later to the view that damage may occur in each Member State. The eDate variant of “damage” would seem to be a derivative or indirect form, of the kind that the Court had in its earlier case rejected as being a sufficient foundation for jurisdiction (Marinari, para. 14). If a label is needed, perhaps “damage-lite” would do the job? 

Finally, the Court’s assertion that its new rule corresponds to the objective of the sound administration of justice (para. 48) is also called into question by the second part of its judgment, interpreting the eCommerce Directive in a way that gives an essential role in cases falling within its scope to the law of the service provider’s (i.e. the defendant’s) country of origin. Although questions of jurisdiction and applicable law are distinct, and the Brussels I Regulation and eCommerce Directive pursue different objectives, the suitability of the courts of the claimant’s centre of interests is undermined by the need to take into account, in all cross-border cases, a foreign law. By contrast, jurisdiction and applicable law are much more likely to coincide where jurisdiction is vested in the courts of the defendant’s domicile or establishment.