Leviathan

'The puzzle of the sovereign’s smile and the inner complexity of Hobbes’s theory of authorisation' by Eva Helene Odzuck in (2024) History of European Ideas comments 

Hobbes’s theory of authorisation poses numerous puzzles to scholars. The weightiest of these conundrums is a supposed contradiction between chapter 17 of Leviathan, that calls for unconditional submission to the sovereign, and chapter 21, that defends the liberties of the subject. This article offers a fresh perspective on the theory’s consistency, function and addressees. While existing research doubts the theory’s consistency, focuses on its immunisation function and on the subjects as the theory’s main addresses, the paper argues that Hobbes’s theory of authorisation is consistent with the doctrine of the liberty of subjects, and that it serves the dual purpose of immunising the sovereign against criticism and disciplining the sovereign via a counsel of memento mori: A hitherto underexplored element of authorisation theory is a reminder of the mortality of sovereignty directed at the sovereign to convince him to make restricted use of his absolute right to rule. Hobbes’s theory of authorisation can thus be read as part of a complex argumentative strategy for peace, rooted in a ‘liberal absolutism’ which is not as paradoxical as it sounds, and which is reflected in the frontispiece by the friendly smile of the sovereign.

Odzuck argues 

... there is considerable disagreement in Hobbes scholarship around what might have led Hobbes to develop and set out the theory of authorisation. Concerning the content and principal function of the authorisation theory there is less disagreement. The main content of the theory seems to be unconditional submission to the emerging sovereign: the subjects give up all their rights and authorise all actions of the emerging sovereign. This claim on the content seems to imply the claim on the theory’s main function: it is plausible to assume that the theory’s central purpose is to justify the absolute state and to immunise the sovereign from criticism; as authors of all the sovereign’s actions, the subjects cannot complain about them and – of course – have no right of resistance. Specific problems arise, however, from a reading of authorisation as unconditional; most notably, an unconditional authorisation of the sovereign’s actions appears to contradict the doctrine of the liberty of subjects set out in chapter 21 of Leviathan, which implies conditional authorisation. 

This article will propose a complex interpretation of Hobbes’s theory of authorisation that resolves this apparent contradiction and complements prevailing hypotheses around the theory’s function and principal addressee. My account and defence of this interpretation will proceed as follows: First, I will introduce readers to the theory of authorisation by analysing central passages of Leviathan (especially chapter 17) and argue that textual evidence seems to support the claim of unconditional authorisation of the sovereign’s actions. 

I will subsequently proceed to highlight problems of this reading of unconditional authorisation of the emerging sovereign that arise from the theory of the liberty of subjects (particularly as set out in chapter 21). 

I will then present my interpretation as a non-paradox theory of conditional and unconditional authorisation, on the basis of my analysis of chapters 14, 16, 17 and 21 of Leviathan, and defend my claims relating to the theory’s consistency and complexity. 

Concluding, I will summarise my findings, characterising Hobbes’s theory of authorisation as a complex argumentative strategy for peace that combines absolutist and liberal elements in a non-paradoxical way and that fulfils different functions for different addresses – one underexplored function being a memento mori for the sovereign.

Insurance and LLMs

'Artificial intelligence for health insurance: A proposed framework for FDA oversight' by Renee Sirbu, Jessica Morley and Luciano Floridi comments 

Despite mounting enthusiasm regarding the introduction of artificial intelligence (AI) software as a medical device (SaMD) to clinical care and, consequently, the development of a new regulatory proposal for the federal oversight of AI/ML medical devices, little attention has been paid to the oversight of AI tools used by large insurers. The U.S. Food and Drug Administration (FDA) has advanced an “Action Plan” for clinical AI (CAI) governance. However, the U.S. healthcare system remains threatened by the unregulated application of insurance AI (IAI). In this article, we use IAI tools in the Medicare Advantage (MA) prior authorization pathway as an illustrative case to argue that these technologies require further regulatory attention by the FDA. Specifically, we propose a redefinition of “medical device” under the 21st Century Cures Act as necessarily inclusive of IAI and advance an actionable framework for FDA oversight in the approval of IAI tools for deployment by large healthcare insurers. 

'AI as Agency Without Intelligence: On ChatGPT, Large Language Models, and Other Generative Models' by Luciano Floridi in (2023) Philosophy and Technology comments 

The article discusses the recent advancements in artificial intelligence (AI) and the development of large language models (LLMs) such as ChatGPT. The article argues that these LLMs can process texts with extraordinary success and often in a way that is indistinguishable from human output, while lacking any intelligence, understanding or cognitive ability. It also highlights the limitations of these LLMs, such as their brittleness (susceptibility to catastrophic failure), unreliability (false or made-up information), and the occasional inability to make elementary logical inferences or deal with simple mathematics. The article concludes that LLMs, represent a decoupling of agency and intelligence. While extremely powerful and potentially very useful, they should not be relied upon for complex reasoning or crucial information, but could be used to gain a deeper understanding of a text’s content and context, rather than as a replacement for human input. The best author is neither an LLM nor a human being, but a human being using an LLM proficiently and insightfully.

Cartelisation

'COVID and structural cartelisation: market-state-society ties and the political economy of Pharma' by Matthew Sparke and Owain Williams in (2024) New Political Economy comments 

At first glance, the inequities in global access to effective vaccines against SARS-CoV-2 might simply be attributed to the raw power of so-called Big Pharma. These dominant pharmaceutical firms, after all, have long exercised concentrated control across global markets which have been structured in such a way as to support highly stable and globally entrenched forms of monopoly power (Malerba and Orsenigo 2015). The firms dominate over a series of product and national markets and a world-wide industrial sector involving high levels of profit and relatively low levels of competition. And while the rapid rise of Moderna and BioNTech would seem to tell a different story with their breakthrough mRNA vaccines for COVID, the larger pandemic picture appears on initial impressions to present a familiar outline of the dominant corporations like Pfizer using their market influence to secure yet more concentrated power and super-profits (Kollewe 2021). Forecasting full-year sales figures for COVID vaccines and Paxlovid totalling $56bn in late 2022, Pfizer CEO Albert Bourla boasted to investors that: ‘[W]e believe our Covid-19 franchises will remain multibillion-dollar revenue generators for the foreseeable future’ (Smyth 2022). Such hubris has so far proven merited. More widely, dominant pharmaceutical firms make vast profits year on year, even in ‘normal times’, and exercise a huge degree of market power. But this focus on firms and their profits is only one part of the more complex picture of their power. 

We start with some important definitional grounding work. First, for the purposes of clarity about the firms in question we define dominant pharmaceutical firms as global companies that structure national and global markets and the scientific orientation and business practices of dependent life sciences sectors. These firms also use their dominance and substantial market power to stymie market entry and erect substantial barriers to would-be entrants, beyond natural barriers to entry or first mover advantages, and not least via the patent system and other strategic resources and business practices. Mergers and Acquisitions (M&As) and other formal partnership arrangements are used to further build in market power and dominance, and to structure and control a wider innovation system. These firms are large and have market power (Banares 2016), but, just as importantly, they also possess intimate connections with regulatory, legal and research infrastructures they have co-produced with states. 

Second, while there is a degree of distinction between traditional pharmaceutical firms and biopharmaceutical firms, we note that large pharmaceutical firms have adapted and integrated the potentially disruptive technologies, particularly in their M&A and joint venture strategies toward small biotech firms. They have done so not least to diversify sources of drug discovery away from chemical-led processes and secure wider micro-biological bases for product pipelines and to retain control over a wider innovations system. We also note that the market strategies of biopharmaceutical firms are doing much the same. This is observable in their dominant relations with a diverse pool of smaller firms and their structural control of networked innovations systems; including through their defensive, offensive and product-pipeline diversification uses of M&As and their strategic uses of patents and trade secrets. Both sets of dominant firms are closely involved in the overall bioeconomy and in the production of medicines, therapies and diagnostics from which they extract enormous profits. We therefore simply refer to each category together as dominant pharmaceutical firms, as is increasingly common in industry analysis which collapses the two sectors in terms of the reporting and ranking of such firms by profits, revenues and sales. 

Third, we are not concerned here with deriving a comprehensive list of which firms are leaders and those that are not. Following Banares (2016), we acknowledge the preeminence of 15 or 20 pharmaceutical firms which are large and global in reach. These firms exercise market power across core high-income country pharmaceutical markets (which constitute the vast majority of the world market in terms of value) and more widely dominate the related sectors they sit at the apex of. These firms have technological, functional and managerial advantages over would-be rivals that provide the necessary assets and capabilities for their sustained market power and dominance (see especially Banares 2016, pp. 102–143). 

However, these giant pharmaceutical firms not only have substantial market power but also possess very strong formal and informal relationships with core high income states, where many of them have deep historical links and deeply embedded institutional ties. We also view it as important that all dominant pharmaceutical firms are still predominantly headquartered in key High-Income Countries (HICs), and their histories and strong associations with their more than nominal host states constitute one of the key bureaucratic, infrastructural and political bases of their continued dominance, despite their status as global companies that operate transnationally. 

Overall, it is precisely the confluence of hybrid market and political power associated with pharmaceutical oligopoly that is central to our understanding of enduring dominance by core firms, as well as the mix of strategic resources, power and agency that cement and reproduce it over time with little variation in the top 15 or 20 firms, other than routine consolidation between them. 

Our first claim is that focusing simply on the big profits of dominant pharmaceutical firms, or recounting their market and innovation strategies, misses the still bigger picture of market-state relations and structural power involved in their stable market dominance and oligopolitical relations (Gleeson et al. 2023). At the centre of these powerful relations, we argue here, is a political economy of what can be described as multi-layered, multi-levelled and nested structural cartelisation. Indeed, the kinds of explicit structural collusion revealed by the COVID crisis and state-backed defense of monopoly rights to new vaccines went far beyond the old image of conniving corporate executives fixing prices and plotting against competitors in smoke-filled board rooms. Typically, these traditional kinds of anti-competitive collusion have been understood to be organised outside of and in opposition to the capitalist state’s vaunted interest in creating competitive markets. In the terms of Adam Smith’s early critique of cartels, the resulting monopolies came to be seen as ‘formidable to the government’ (Smith, 1776). But in the oligopolistic global pharmaceutical sector, we instead see the cartelisation of market concentration being repeatedly co-constructed over time by governments in active and explicit collusion with dominant firms. 

Cartelisation in the pharmaceutical sector today, we therefore submit, involves a permissive and enabling series of entanglements between corporations, states and prominent societal actors. These entanglements have effectively been institutionalised and interlinked with one another as a series of dense regulatory, legal, financial and institutional arrangements for enclosing life sciences innovation into intellectual property (IP) as assets. These relationships and practices are concerned with turning its health value into economic value, and, in the words of Victor Roy’s important new critique, capitalising on cures (Roy 2023). Here, what can be described as the non-market environments and socio-legal infrastructures for pharmaceutical oligopoly are a major basis of durable market power and structural cartelisation. 

Although there are corporate practices and strategies apparent that evidence more recognisable 

forms of cartel-like behaviour (such as price fixing, market rigging and tacit collusion), structural cartelisation both describes and seeks to capture how dominance is facilitated by a combination of market and socio-political, legal and regulatory arrangements which are explicit and institutionalised nationally in HICs, and internationally in the global trade regime of the World Trade Organization (WTO) and over a series of partnerships and initiatives in global health. We therefore use structural collusion here in distinction to traditional understandings of how cartels operate by means of illicit and tacit coordination between firms. The high-level strategic coordination, and the routine bureaucratic and everyday arrangements between firms, states and key societal actors in global health are structurally embedded and rarely need coordination or discussion, involving collective behaviours, practices, shared rhetoric and assumptions (as is the case with the shared language games around the need for patents for innovation), formal and informal linkages, conjoint agency and shared strategic visions of dominance, competition and the basis for state and firm comparative advantages. These agencies act together and intersect to repeatedly produce a whole series of cartel-like outcomes in global political economy. 

Despite the endlessly-argued industry defense that the monopoly-pricing based on patenting creates an economic incentive for innovation, recent research shows there is in fact little relationship between profitability and drug discovery (Işık and Orhangazi 2022, Dosi et al. 2023). What we see instead is that structural cartelisation turns state investments, public goods and the public health value of pharmaceutical innovation into the captured economic value of private corporate profits. We also agree with legal historian Graham Dutfield’s assessment that any explanation of monopoly pricing and associated limitations on access to pharmaceuticals needs to be extended far back and far beyond a narrow focus on present-day patents to take account of the historical development of interdependencies between pharma and governments (Dutfield 2020). That said, we are in new terrain today where the resulting cartel effects are supported by even wider sets of international agency. As Dutfield himself details (2020), the public-private partnerships comprising today’s complex medical-industrial complex are new players in the structurally collusive system. As with other sectors, the pharmaceutical cartel now involves multiple types of strategic partnership in the expansion of monopoly power across global production networks (Sparke et al. 2023). What are described as 'partnerships' and 'foundations' in health and medicines are often part of this broadened agency involved in creating and cementing the collusive regimes of value capture from pharmaceuticals, while supplying it with an often thin semblance of legitimacy to the political economy of medicines which continues to produce such patently inequitable outcomes for would-be consumers and those in need of access (Lexchin 2021, Rushton and Williams 2012).  

In Section 1 we turn to the web-like arrangements of corporate monopoly power and the structures of firm-firm collusion made manifest by COVID. In Section 2 we next examine the networks of firm-state collusion that the pandemic has brought to the fore, including in undermining the proposed waiver from TRIPs rules at the WTO. And in Section 3 we explore the most novel and hybrid kind of collusion represented by the firm-state-philanthropy collusion that became apparent in the philathrocapitalist COVAX initiative. To begin with, though, we offer a short detailing of how our approach to structural cartelisation contributes as an original theorisation of contemporary political-economy.

Robots

'Is the Mobile Phone a Personalized Social Robot?' by Jane Vincent in (2013) 1 Intervalla states 

This paper explores how some people use their mobile phone to manage their emotions and presentation of self to such an extent that they develop a strong bond with it, turning to it first in times of emotional need. It examines how some social robots, designed by experts to provide bespoke emotional support, can address only particular emotional problems. This is further examined by contrasting the electronic emotions managed via the mobile phone with the uses for three social robots: Amazing Ally, KASPAR and Paro. Unlike these robots, that are effective only when responding to certain pre-programmed emotions, the mobile phone appears to be a constant companion dealing with every eventuality. Imbued with the user’s feelings and emotions that surround the continuous and always on presence of the device, the user constantly turns to it for solace, to share joyous moments, recall special memories and more. The resulting close emotional and physical association with a device that is filled with the personal biography of its user is that the mobile phone becomes like a personal social robot; a co-construction of functional machine and intimate emotional experiences known only to the user. 

There is a lot more that we haven’t even begun to understand well enough in ourselves to know how to implement [...] will we ever know how to build a robot like us? (Picard, 2011) 

This paper explores the particular qualities of our emotional relationship with mobile phones and how it compares and contrasts with the parallel development of social (and sociable) robots. Detailed discussion of the methods for creating artificial emotions and building robots is not for this paper rather it is about how humans are making their own personalized social robots by appropriating and manipulating a particular machine in their day to day life to manage their emotions and their self. Social robot is a term that has many definitions with seemingly limitless boundaries from lift sensors responding to a presence to autonomous humanoid machines that perform complex domestic or industrial functions. Picard’s (1997) seminal research on affective computing and her continuing discourse on emotions and robots has highlighted the complexities of understanding and interpreting human actions both in ourselves and in translating these into the design of robotic machines. What happens, however, if the everyday and constant interaction with a computational machine – a mobile phone – enables the user to feel, share, manage and interpret their emotions through using the device? These electronic emotions (Vincent & Fortunati, 2009) remain within the human user but are only created, lived or relived when interacting with the mobile phone. This volte face when human feelings initiate the robotic turn is central to my discussion in this paper; it is not about a machine that has been designed (with emotions) to be a social robot but instead is about a machine that appears to have all the properties of a social robot only when combined with its human user. 

As Picard notes in the introductory quote above despite our endeavors, we still do not really know or understand ourselves nor have we found a way or a technology to make a robot that might independently feel emotions. Although this technological and emotional impasse has thus far prevented humans creating a robot that is one hundred per cent human, social robots have been made that interact with particular facial or physical actions and express programmed emotions; the work of Breazeal (2003) at MIT and Ishiguro (Guizzo 2010) at Osaka University being leading examples. Social robots have also been explored in countless novels and films, often in the guise of an awkwardly jointed metal machine with some form of human transmogrification. The inclusion of emotion in the design of a robot is often heralded as a possible threat to humans for fear that it will create an out of control monster rather than a sympathetic companion (see for example I, Robot by Isaac Asimov). Research on affective computing and sociable robots such as by Picard (1997), Norman (2004), Shaw-Garlock (2009) and Turkle (2011) provides a mass of mostly positive ideas about future social and emotional robots, much of which is about putting the emotion into the robot and creating the affective turn in these otherwise mechanistic devices. 

Having set out my position in this introduction, in the next section of this paper, I outline the theoretical framework for the discussion. I then continue by firstly examining what I consider to be exceptional about a mobile phone, how it might enable this extraordinary role as a kind of social robot for the self and why I believe it is these aspects of the device that set it apart from other information communication technologies (including robotic devices). I illustrate my discussion with examples from my own prior research on mobile phone use (Vincent, 2009; 2011) and from a review of three examples of social robots by way of contrast with the mobile phone: these are machines with human or animal likenesses that are designed to provide emotional support and draw out feelings to enable their human users to express themselves. Contrasting the mobile phone with these social robots I explore how it is being used in similar ways but as a device of self exploration and interaction which, because it has been created or ‘set up’ by the user, is in many ways a reflection of the personal desires and needs of their self.

Emotion Recognition

'The unbearable (technical) unreliability of automated facial emotion recognition' by Federico Cabitza, Andrea Campagner and Martina Mattioli in (2022) 9(2) Big Data and Society comments 

Emotion recognition, and in particular facial emotion recognition (FER), is among the most controversial applications of machine learning, not least because of its ethical implications for human subjects. In this article, we address the controversial conjecture that machines can read emotions from our facial expressions by asking whether this task can be performed reliably. This means, rather than considering the potential harms or scientific soundness of facial emotion recognition systems, focusing on the reliability of the ground truths used to develop emotion recognition systems, assessing how well different human observers agree on the emotions they detect in subjects’ faces. Additionally, we discuss the extent to which sharing context can help observers agree on the emotions they perceive on subjects’ faces. Briefly, we demonstrate that when large and heterogeneous samples of observers are involved, the task of emotion detection from static images crumbles into inconsistency. We thus reveal that any endeavour to understand human behaviour from large sets of labelled patterns is over-ambitious, even if it were technically feasible. We conclude that we cannot speak of actual accuracy for facial emotion recognition systems for any practical purposes. ... 

Emotional artificial intelligence (AI) (McStay, 2020) is an expression that encompasses all computational systems that leverage ‘affective computing and AI techniques to sense, learn about and interact with human emotional life’. Within the emotional AI domain (but even more broadly, within the entire field of AI based on machine learning (ML) techniques), acial emotion recognition (FER), which denotes applications that attempt to infer the emotions experienced by a person from their facial expression (Paiva-Silva et al., 2016; McStay, 2020; Barrett et al., 2019), is one of the most controversial (Ghotbi et al., 2021) and debated (Stark and Hoey, 2021) applications. 

In fact, ‘turning the human face into another object for measurement and categorization by automated processes controlled by powerful companies and governments touches the right to human dignity’ and ‘the ability to extract […physiological and psychological characteristics such as ethnic origin, emotion and wellbeing…] from an image and the fact that a photograph can be taken from some distance without the knowledge of the data subject demonstrates the level of data protection issues which can arise from such technologies’. On the other hand, opinions diverge among the specialist literature. Some authors highlight the accurate performance of FER applications and their potential benefits in a variety of fields; for instance, customer satisfaction (Bouzakraoui et al., 2019), car driver safety (Zepf et al., 2020), or the diagnosis of behavioural disorders (Paiva-Silva et al., 2016; Jiang et al., 2019). Others have raised concerns regarding the potentially harmful uses in sectors such as human resource (HR) selection (Mantello et al., 2021; Bucher, 2022), airport safety controls (Jay, 2017), and mass surveillance settings (Mozur, 2020). In addition, the scientific basis of FER applications has been called into question, either by equating their assumptions with pseudo-scientific theories, such as phrenology or physiognomy (Stark and Hutson, Forthcoming), or by questioning the validity of the reference psychological theories (Barrett et al., 2019), which assume the universality of emotion expressions through facial expressions (Elfenbein and Ambady, 2002). Lastly, others have noted that the use of proxy data (such as still and posed images) to infer emotions should be supported by other contextual information (McStay and Urquhart, 2019), especially if the output of the FER systems is used to make sensitive decisions, so as to avoid misinterpretation of the broader context. According to Stark and Hoey (2021) ‘normative judgements can emerge from conceptual assumptions, themselves grounded in a particular interpretation of empirical data or the choice of what data is serving as a proxy for emotive expression’. 

From a technical point of view, FER is a measurement procedure (Mari, 2003) in which the emotions conveyed in facial expressions are probabilistically gauged to detect the dominant one or a collection of prevalent emotions. As a result, FER can be related to the concepts of validity and reliability. A recognition system is valid if it recognizes what it is designed to recognize (i.e. basic emotions); it is reliable if the outcome of its recognition is consistent when applied to the same objects (i.e. a subject’s expression). However, when FER is achieved by means of a classification system based on ML techniques, its reliability cannot (and should not) be separated from the reliability of its ground truth, i.e. training and test datasets (Cabitza et al., 2019). In this scenario, reliability is defined as the extent to which the categorical data from which the system is expected to develop its statistical model are generated from ‘precise measurements’, i.e. human ‘recognitions’ exhibiting an acceptable agreement. This is because, by definition, no classification model can outperform the quality of the human reference (Cabitza et al., 2020b). 

In this study, we will not contribute to the vast (and heated) debate still currently going on about the validity of automatic FER systems (Franzoni et al., 2019; Feldman Barrett, 2021; Stark and Hoey, 2021), that is, we do not address the classification task from the conceptual point of view (how to define emotions, if possible at all) nor merely from the technical point of view (how to recognize emotions, whatever they are). For the sake of argument, we assume that the main psychological emotion models make perfect sense and we do not address how robust recognition algorithms are, how well they perform in external settings, and, most importantly, how useful they can be, i.e. whether they provide the benefits that their promoters envision and advocate. 

Instead, we focus on the reliability of their ground truth, which is not a secondary concern from a pragmatic standpoint (Cabitza et al., 2020a, 2020b). To that end, we conducted a survey of the major FER datasets concentrating on their reported reliability as well as a small user study by which we address three related research questions: Do existing FER ground truths have an adequate level of reliability? Are human observers in agreement regarding the emotions they sense in static facial expressions? Do they agree more when the context information is shared before interpreting the expressions? 

The first question is addressed in the ‘Related work and motivations’ section and the answer is in Table 3. The other questions are addressed by means of a user study described in the ‘User study: Methods’ section and whose results are reported in the ‘Results’ section. Finally, in the ‘Discussion’ section, we discuss these findings and their immediate implications, while in the ‘Conclusion’ section we interpret them within the bigger picture of FER reliability and relate them to implications for the use of automated FER systems in sensitive domains and critical human decision making.

'What an International Declaration on Neurotechnologies and Human Rights Could Look like: Ideas, Suggestions, Desiderata' by Jan Christoph Bublitz in (2024) 15(2) AJOB Neuroscience 96 comments 

 Ethical and legal worries arising from novel neurotechnological applications have reached the level of international human rights institutions and prompted ongoing deliberations about a new legal instrument that sets international standards for the development, regulation, and use of neurotechnologies. In a recent report on human rights implications of neurotechnologies, the International Bioethics Committee of UNESCO (IBC) considers the idea of a “governance framework set forth in a future UNESCO Universal Declaration on the Human Brain and Human Rights” or a “New Universal Declaration on Human Rights and Neurotechnology” (2021, at 184c). Other human rights agencies have been concerned with the matter, hosted hearings and commissioned reports (especially OECD  2019; see also Ienca  2021; OECD  2017; Sosa et al.  2022). The UN Human Rights Council (2022) mandated its Advisory Committee to prepare a comprehensive study on neurotechnologies and human rights. A novel international instrument will likely emerge from these debates (cf. UNESCO Docs. 216 EX/Dec.9 and EX/50). As the first global instrument specifically tailored to neurotechnologies, it will set the tone for further regulations at domestic, supranational, and international levels. Although some stakeholders have been consulted in previous proceeedings, the development has so far largely evaded the broader attention of the neuroscience, neurotech, and neuroethics communities. This is unfortunate, as academic input is vital to identify problems, frame debates and develop solutions, not least because international agencies lack subject matter expertise and have relied on a limited number of experts so far. The timing is critical. Once debates move to the political arena and intergovernmental negotiations, the room for academic and big picture debates narrows as matters tend to become increasingly technical and arguments tend to become interest-based. Accordingly, the time for impactful academic interventions is now. To facilitate it and to widen the perspective of current debates, this target article puts to discussion twenty-five considerations and desiderata for a future instrument. In particular, it wishes to transcend the confines of the debate about so called neurorights that dominates the current discourse (e.g., Borbón and Borbón  2021; Bublitz  2022c; Genser, Herrmann, and Yuste  2022; Ienca  2021; Ligthart et al.  2023; Rommelfanger, Pustilnik, and Salles 2022; Yuste et al. 2017; Zúñiga-Fajuri et al. 2021). Proceeding on the basis of existing rights, the following remains uncommitted as to whether novel rights are needed. This debate overshadows a broader and richer field of relevant questions, and it is time to turn to them. 

Setting the stage, the nature and the limits of a future instrument should be clarified. It will likely be a soft law instrument such as a recommendation by UNESCO or a resolution by the UN General Assembly. Such documents are not legally binding and lack enforcement mechanisms. Whether they qualify as law at all depends on legal theory’s perennial question about the nature of law and may be answered differently with respect to different types of documents (Andorno  2012; Shelton  2008). Suffice it to note here that such documents understand themselves as more than mere ethical statements because they demand compliance by signatory States without creating enforceable legal obligations. Theoretical matters aside, soft law instruments can be practically effective governance tools that draw attention to problems and set standards which are often observed by States and other stakeholders. They may, for instance, affect governmental research funding, decisions by ethics committees, or the regulatory conditions for market approval of devices. Soft law may also turn into hard law in several ways. It may provide guidance for courts in interpreting norms, rendering the content of rights more concrete and resolving normative conflicts. It may inform secondary soft law such as general comments by treaty bodies, and inspire further binding acts at domestic or international levels. Soft law’s greater flexibility is an advantageous feature in fast-moving fields without firm normative underpinnings such as neurotechnologies, and has therefore become the prime legal-regulatory tool for technology governance at both the international and the domestic level (Hagemann and Skees  2018; Marchant and Tournas 2019). At any rate, because of the often insurmountable political hurdles that binding treaties of international law face, especially in the current geopolitical climate, soft law instruments are the best form of international governance of neurotechnologies that is realistically attainable in the near future. 

The nature of an instrument shapes its content. In contrast to the abstract and elegantly worded Universal Declaration of Human Rights and the international covenants that followed it, soft law instruments allow for more aspirational goals and broader scopes but also for more concrete norms and standards. In addition, they are not only directed at States as the protagonists of international law but also at other stakeholders, notably private actors such as businesses that may threaten human rights, individuals whose rights may have been violated, but also other relevant parties such as engineers and developers of neurotechnologies. Moreover, given the aspiration of global applicability and the need for consensus in matters about which countries and cultures may reasonably disagree, instruments must allow for local adaptability, value pluralism, compromises, and gravitate toward smallest common denominators. These conditions are reflected in the texts of such documents, which are often replete with references to general values of the human rights systems, not always entirely coherent, and sometimes even intentionally vague at critical points. But despite and because of these weaknesses, soft law instruments can set norms and standards that are observed and steer the course of the future development of a field. The UNESCO Recommendation on Artificial Intelligence (AI), adopted in 2021, may serve as a model for a future neurotech instrument. It contains recommendations at different levels of abstraction, from broad values over principles to actionable policy options. Although not free from textual weaknesses, the Recommendation provides some novel, concrete, and surprisingly far-reaching standards. 

It is further worth noting that international norms for the regulation of neurotechnologies already exist. Current debates sometimes evoke the impression that they develop in a legal vacuum, but this is a bit misleading. For instance, placing devices on markets is regulated by domestic and supranational device regulation, such as the EU Medical Device Regulation, which covers neurotechnologies for medical and some non-medical purposes (European Union  2017). It leaves neurodevices for non-medical neuroimaging outside of its scope, but this is not a gap but rather an intentional regulatory decisions. At the international human rights level, the Oviedo Convention on Human Rights and Biomedicine (1997), a legally binding international treaty signed by more than 30 States, seeks to safeguard the dignity and integrity of persons “with regard to the application of biology and medicine” (Council of Europe 1997, preamble). Likewise, the non-binding UNESCO Universal Declaration on Bioethics and Human Rights (2005) was adopted in view of the “rapid advances in science and their technological applications” (2005, preamble). Both instruments contain various norms about human rights and informed consent that apply to neurobiological interventions. The same is true for the Recommendation on Responsible Innovation in Neurotechnology (OECD  2019). This leads to the first desideratum: (i) A future instrument should cohere with existing instruments but not merely repeat them; it should neither contradict them without compelling reasons, nor address similar points by different terms, and should strive to go beyond them by suggesting more concrete norms or addressing substantially different aspects. 

The following presents further desiderata and considerations for a future instrument. It proceeds from the general to the particular, from meta-considerations to concrete rights and technical suggestions, and at least partially attempts to deduce the latter from the former. The points are thus interwoven rather than distinct; they are sometimes couched in the idiosyncratic style of international documents and should not be understood as conclusive but as an invitation for criticism and additions.

Liberty

'Liberty: One or Two Concepts Liberty: One Concept Too Many?' by Eric Nelson in 33(1) Political Theory 58-78 comments 

Isaiah Berlin’s distinction between “negative” and “positive” concepts of liberty has recently been defended on newand interesting grounds. Proponents of this dichotomy used to equate positive liberty with “self-mastery”—the rule of our rational nature over our passions and impulses. However, Berlin’s critics have made the case that this account does not employ a separate “ concept” of liberty: although the constraints it envisions are internal, rather than external, forces, the freedom in question remains “negative” (freedom is still seen as the absence of such impediments). Responding to this development, Berlin’s defenders have increasingly tended to identify positive liberty with “self-realization.” The argument is that such an account of freedom is genuinely “nonnegative,” in that it does not refer to the absence of constraints on action. This essay argues that the claims made on behalf of “freedom as self-realization” cannot withstand scrutiny, and that they fail to isolate a coherent view of liberty that is distinguishable fromthe absence of constraint. 

When Isaiah Berlin unveiled his classic distinction between “negative” and “positive” liberty in 1958, he was making both a historical and an analytical claim. He was not only arguing that nonnegative locutions about liberty could be intelligible but also that such locutions had a significant, if sinister, history. While Hobbes and Mill, Tocqueville and Constant carried the banner for “negative” liberty—freedom as the absence of interference or impediment—the “positive” concept found expression in the writings of such towering eminences as Plato, Zeno, Kant, Rousseau, Hegel, and Marx. Since Berlin issued his celebrated formulation, however, his claim for the historical importance of positive liberty has been gravely compromised, as scholars have whittled away at the set of thinkers whose political theories the concept was meant to explain. Gerald C. MacCallum took a significant stride in this direction when he pointed out that Berlin had imposed an arbitrary restriction on the notion of “constraint” in insisting that negative freedom consisted solely in the absence of the “deliberate interference of other human beings.” Persons can be said to be constrained by internal forces or factors as well, MacCallum argued, and the absence of such intrinsic constraints would still count as freedom in its negative sense. Once the category of “constraint” had been stretched in this manner, it became a relatively simple matter to redistrict the province of negative liberty so that it could embrace many of the theorists Berlin had placed in the “positive” camp. Stoics in the tradition of Zeno, for example, preached that man lives according to his nature (and is thus truly “free”) only when his passions are restrained, a straightforward instance of freedom as the absence of internal constraint. Likewise, Plato spoke of freedom from false beliefs, and Kant’s moral agent legislates for himself the law of reason once he has liberated himself from the slavery of passions and sense impressions. All of these putatively “positive” theorists turn out on closer inspection to disagree with Hobbes and Constant, not about the meaning of liberty but about what counts as a constraint. 

MacCallum offered these observations in the service of a broader critique of Berlin’s enterprise. Rejecting Berlin’s distinction between positive and negative freedom, MacCallum maintained that all intelligible locutions about liberty could be subsumed under a single triadic template: freedom is always “of something (an agent or agents), from something, to do, not do, become, or not become something.” But even contemporary theorists who dispute MacCallum’s larger claim about a single concept of freedom often accept his narrower argument about internal constraint. Quentin Skinner provides a distinguished example in this respect. He observes that Berlin’s characterization of positive liberty as “self-mastery” seems to have relied in large measure on “the familiar thought — equally familiar to students of Plato and of Freud — that the obstacles to your capacity to act freely may be internal rather than external, and that you will need to free yourself from these psychological constraints if you are to act autonomously.” But, Skinner continues, this claim “fails to capture a separate concept of positive liberty,” since, although we now include psychic, internal forces in the universe of possible constraints, “we are still speaking about the need to get rid of an element of constraint if we are to act freely.” Indeed, Berlin himself seems to have intuited that this particular notion of self-mastery was a nonstarter as a separate concept of “positive” liberty. In his 1958 lecture, he declared, “Freedom is self-mastery, the elimination of obstacles to my will, whatever these obstacles may be — the resistance of nature, of my ungoverned passions, of irrational institutions, of the opposing wills or behaviour of others.” Whether the constraints are internal or external, we are still firmly within the realm of negative liberty. 

Skinner is thus committed to MacCallum’s emptying of the historical population of positive theorists. Plato and Freud must go, as must the Stoics, and presumably the Kantians. But Skinner, whose interest is primarily in elucidating two different understandings of negative liberty, nonetheless accepts that a positive concept exists and is intelligible. When Berlin writes in his introduction to the 1969 Four Essays on Liberty that “for the most part, freedom was identified by metaphysically inclined writers, with the realization of the real self,” Skinner feels that he has at last articulated a concept of freedom that is truly incommensurable with negative liberty. “Freedom,” Skinner explains, “is thus equated not with self-mastery but rather with self-realisation, and above all with self-perfection, with the idea (as Berlin expresses it) of my self at its best.” In making this claim, Skinner suggests that Berlin had in mind chiefly the British neo-Hegelians T. H. Green and Bernard Bosanquet. Certainly, in the descent from Plato and Kant to Green and Bosanquet the concept of positive freedom experienced quite a falling off. But the claim remains that this positive notion is intelligible, and that it was articulated in a particular historical moment. ...

Knutson, Mayan Calendar and Postal Court

In Knutson (Re), 2018 ABQB 858 Thomas J states 

 [1] James Kenneth Knutson [Knutson] has since 2016 employed a broad spectrum of abusive pseudolegal strategies in his attempts to evade enforcement of his credit card and mortgage debts. His litigation arguments are “Organized Pseudolegal Commercial Arguments” or “OPCA”, a class of spurious “pseudolaw” concepts which are sold to abusive litigants by conman “gurus” who promise extraordinary but false benefits: Meads v Meads, 2012 ABQB 571, 543 AR 215. Gurus’ illusionary promises include free money, debt elimination, “get out of jail free cards”, immunity from income tax, and “travelling” - unlimited motor vehicle use. OPCA ideas sound like law and use legal terminology and references, but are universally rejected by Canadian courts. 

[2] All OPCA constitute an abuse of court processes. The employing of OPCA strategies is a basis on which a court may impose court access restrictions through what is sometimes called a “vexatious litigant order”: Meads v Meads; R v Fearn, 2014 ABQB 233 at para 49, 586 AR 182; Chutskoff v Bonora, 2014 ABQB 389 at para 92, 590 AR 288, aff’d 2014 ABCA 444, 588 AR 303. Some OPCA ideas are so notoriously false that simply employing these concepts creates a presumption that a litigant appears in court for an abusive, ulterior motive: Fiander v Mills, 2015 NLCA 31, 368 Nfld & PEIR 80; Rothweiler v Payette, 2018 ABQB 288. 

[3] Knutson’s litigation history in the Alberta Court of Queen’s Bench amply demonstrates that he persistently employs these false concepts. He has continued with his abusive, futile schemes, despite failing on every occasion where he has attempted to impose pseudolaw on the Courts and opposing parties. ... 

[10]. ... 2. A document dated September 16, 2016 where Knutson demands Brian J. Porter, president of the Bank, do various things including validate the debt, provide a signed contract, and if these demands are not satisfied in seven days that means the debt never existed or has been paid, and that damages and fee schedule charges are due. This document is an exact duplicate of a “Conditional Acceptance” document sold by the UK “Get Out Of Debt Free” OPCA website (see Bank of Montreal v Rogozinsky, 2014 ABQB 771, 603 AR 261, paras 55-73, Appendix “A”), which is the first document in a Three/Five Letters pseudolaw process which is intended to eliminate debts by foisting obligations on lenders. This document is marked by ink fingerprints in the lower right corner of each page, with the annotation “Seal” and “Copy-claim”. Also attached is a second document from the Get Out Of Debt Free website, titled “Common Law Copyright Notice” (reproduced in Bank of Montreal v Rogozinsky, Appendix “E”), which purports to claim intellectual property interests over Knutson’s name, biometric data, DNA, urine, feces, and other bodily fluids. Any breach of this claimed interest results in a $1 million penalty. This document also sports the ink fingerprint markings, and on its front page a Canadian postage stamp, signed across “by: James-Kenneth: Knutson”. 

3. A further document to Brian J. Porter, dated September 29, 2016, reproduced in Appendix “A”, which in brief says that two attached documents titled “Promissory Note” pay any outstanding debts. The September 29, 2016 letter states that if the “Promissory Notes” are not returned, or if they are returned “... without a legitimate written explanation ...” [emphasis in original], then that means “... my account balance is now zero for both accounts.” [emphasis of original]. The same fingerprint and postage stamp ornaments are present as the previous documents. ... 

5. Last is a letter dated January 1, 2017, reproduced as Appendix “C”, where “Sovereign ©James of the family: Knutson, Authorized Agent and Representative for JAMES KNUTSON™” declares that he is “an endless creditor” thanks to “the birth certificate bond”, “money no longer exists”, and that he has been denied a “Common Law court de jure”. This trial can only proceed if he receives $10 million in gold or silver “paid up front”, he is recognized as an “Ambassador of God”, and “You must verity the [BAR CULT] fiction-code: NO LAW OR FACT SHALL BE TRIED IN COURT.” This document attaches a 20 page “Notice of Understanding and Intent and Claim of Right” [NOUICR], which is a document commonly used by persons in the Freeman-on-the-Land movement which purportedly eliminates state authority and fetters the operation of the Court. The document states: ... Free-men-on-the-land do not have earthly masters. I am a Free-man-on-the-land and I do not have a master on planet Earth other than GOD and only from GOD ... This document also includes a “FEE SCHEDULE”, which allegedly sets fines to government actors, for example: FIVE THOUSAND DOLLARS ($5000.00) PER HOUR or portion thereof if I am held, handcuffed, transported, incarcerated or subjected to any adjudication process without my express written and notarized consent ... This particular NOUICR is largely identical to a NOUICR filed by Alfred Potvin in Royal Bank of Canada v Potvin, Alberta Court of Queen’s Bench Docket #1701 01667 and Potvin v Royal Bank of Canada, Alberta Court of Queen’s Bench Docket #1701 13997: Potvin (Re), 2018 ABQB 652. 

[17] ... In the Affidavit filed by Knutson on March 7, 2017, Knutson indicates “I am a Common Law man , of inherent jurisdiction.”, and attaches as proof his NOUICR and Registration of Live Birth. Knutson continues to say he has sent this lender another set of Get Out Of Debt Free letters, which are attached as exhibits. Knutson claims that proves no debt exists. He also says Charter, s 32 means the law of Canada does not apply to him: “I have never, nor am I now acting as agent of the government.” 

[18] Both the Knutson and MCAP Affidavits include a bizarre, practically indecipherable document, the first page of which is reproduced as Appendix “D”. The content and text of the first page of this document is representative of its entire nine pages. As best I can evaluate this item, I conclude this is a “judgment” of a purported US court, the “:FEDERAL-POSTAL-COURT”, issued on November 26, 2016 by “:FEDERAL-POSTAL-JUDGE: David-Wynn: Miller. The “judgment” is followed by a “:STUDY-GUIDE” which seems to indicate a strange kind of grammar. For example: ~4 = PRONOUNS = FOR THE SINGLE-ONE-WORD; FOR AN ADJUCTIVE-PRONOUN-OPINION OF THE FACT CHANGES WITH THE FACT INTO THE PRONOUN; FOR AN ADVERB-CONNECTS TO THE PRONOUN BEFORE AND ADVERB. 

[19] The remaining ten pages are the Knutson MCAP mortgage, but that document has been annotated. Each page is marked in thick felt marker “:EVIDENCE:” and stamped with a legend: :Syntax-word-key-meaning: 1=Adverb 8=Past-time 2=Verb 9=Future-time 3=Adjective 0=Conjunction 4=Pronoun NC=No-Contract and is sometimes annotated with other text, such as “:STYLES-Boxing=:OMIT-VOID-CONTENT-FRAUD-SYNTAX-GRAMMER”. All words are then individually annotated with a hand-written number, which appears to correspond to the stamped legend. 

[20] Though my analysis of the meaning of this peculiar item is hampered by its perplexing nature, I conclude the function of the “:FEDERAL-POSTAL-COURT” decision and attached annotated mortgage document is that the mortgage contract is being proofread using an abnormal grammar code. The failure of MCAP to format its documents according to this outlandish linguistic system allegedly means the contract is void and fraudulent. 

[21] In support of that interpretation, I note the Alberta Court of Queen’s Bench is not the first (legitimate) court to receive a document from the “:FEDERAL-POSTAL-COURT”. In Gilly v Ocwen, 2016 WL 868167 (Conn Dist Ct), US District Court Judge Meyer reports the local court had received dozens of purported “Certified Copy of Final Judgment, Translation of Final Default Judgements” from the “:FEDERAL-POSTAL-COURT”. 

[22] Judge Meyer’s subsequent encounter with the “judge” behind this so-called Court is worth reproducing in full: Because of doubts about the validity of the “Federal Postal Court,” I entered an order to show cause for a hearing to learn more about the judgment and the “Federal Postal Court.” Notice of the hearing was transmitted to plaintiff, but she did not communicate with the Court. Two individuals ended up participating in the hearing by telephone from an Arizona telephone number. They identified themselves as David Wynn Miller, who described himself as a judge of the “Federal Postal Court,” and Leighton Ward, who described himself as clerk of the “Federal Postal Court.” These two names appear on the registration documents filed with the Court. Miller told me that Benjamin Franklin opened the “Federal Postal Court” on July 4, 1775. But the court was soon closed in 1776 with the onset of the Revolutionary War. It remained closed for more than two centuries. Then, according to Miller, he and a colleague reopened the court for operation on December 21, 2012 (a day that is otherwise well known as the predicted end of the world according to the Mayan Calendar). Miller explained to me that the “Federal Postal Court” operates on the basis of a sophisticated mathematical understanding of language that proves that certain mortgage documents are fraudulent. According to Miller, the “Federal Postal Court” has been recognized by the United Nations. The “Federal Postal Court” does not have a courthouse or other fixed location; instead, it has transitory jurisdiction with a presence wherever the federal postal eagle symbol may be. A YouTube search discloses numerous videos of Miller and others explaining the operation of the “Federal Postal Court.” A Westlaw search does not disclose any valid judgments or other proceedings involving the “Federal Postal Court.” A Westlaw search for the name of “David Wynn Miller” otherwise reflects a lengthy history of frivolous filings that use the same impenetrable language that appears in the filings in this case. See, e.g., United States v. Pflum, 2013 WL 4482706 (D. Kan. 2013) (collecting dozens of cases and noting that several district courts have imposed pre-filing screening orders to prevent Miller from filing suits in these courts without prior leave of the court). 

[23] Judge Meyer refused to file the purported “:FEDERAL-POSTAL-COURT” default judgment, and instead concluded: ... there is no basis to conclude that the purported judgment of the “Federal Postal Court” arises from any valid legal authority at all. So far as I can tell, the “Federal Postal Court” is a sham and no more than a product of fertile imagination. ... I totally agree with this statement. 

[24] Commonwealth authorities have also previously rejected David Wynn Miller and his concepts as an authentic legal authority, for example: National Leasing v Top West Venture, 2001 BCSC 111; CIBC v Chesney, 2001 BCSC 625; Borkovic v Laurentian Bank of Canada, 2001 BCSC 337; R v McMordie, 2001 BCCA 412, 155 BCAC 21; Wollongong City Council v Falamaki, [2010] NSWLEC 66; Wollongong City Council v Falamaki, [2009] FMCA 1204; APD Property Developments Ltd v Papakura District Council, [2009] NZHC 1677. 

[25] The “:FEDERAL-POSTAL-COURT” decision I have reviewed and “Judge” Miller’s statements to Judge Meyer only hint at scope of Miller’s bizarre claims. For example, Wollongong City Council v Falamaki, [2010] NSWLEC 66 reports representation by “plenipotentiary judge David-Wynn Miller”, who shared “a little secret” with the Court: “Every word that starts in the English language with a vowel, a, e, i, o and u and followed by two consonants is a word that means no contract.” That insight is “astonishing”, or, in “Millerese”, “no contract”. 

[26] Not surprisingly, the “:FEDERAL-POSTAL-COURT” decision purchased by Knutson from Miller was of no legal effect. On March 6, 2017 Gill J dismissed Knutson’s appeal and ordered that Knutson must vacate the mortgaged property by March 20, 2017. ... 

[46] Knutson’s litigation to date exhibits a broad range of OPCA concepts, as well as other indicia of abusive litigation. 

A. OPCA Concepts and Strategies 

[47] I have reproduced and described Knutson’s OPCA materials in some detail to provide illustrations of the false concepts he has employed to this point. What follows is an incomplete review of his OPCA strategies, highlighting some of the most egregious misconduct. 

1. “Strawman” Theory 

[48] First, Knutson’s materials indicates he advocates “Strawman” Theory, which was recently summarized by Rooke ACJ in Potvin (Re), 2018 ABQB 652 at paras 83-85: “Strawman” Theory claims an individual has two parts, a physical human being component, and an immaterial but legal double. Pseudolaw gurus use many names to identify the latter, but I will refer to this part by one of its more common names: the “Strawman”. The way one tells these two aspects apart is by the letter case of their name. “Alfred Gerald Potvin” is the human half, while “ALFRED GERALD POTVIN” is the “Strawman”. “Strawman” Theory claims that human beings are born without a “Strawman”, but that nefarious government actors trick parents into obtaining a birth certificate, and that attaches the “Strawman” to the infant by a contract. In this scheme governments have no authority over humans, but instead must chain their authority through to the human via the “Strawman” and its secret contract. “Strawman” Theory also often claims that “Strawman” and birth documentation is associated with a bank account or some other form of wealth, and with special techniques that money can be obtained by “A4V” ... See also Potvin (Re), 2018 ABQB 652 at paras 110-120; Meads v Meads, at paras 417-446; Pomerleau v Canada (Revenue Agency), 2017 ABQB 123 at paras 67-88, [2017] DTC 5024; d’Abadie v Her Majesty the Queen, 2018 ABQB 298 at paras 57-70; Rothweiler v Payette, 2018 ABQB 134 at paras 10-17, confirmed 2018 ABQB 399 at paras 25-33. 

[49] The “Strawman” scheme is so notoriously bad (“fanciful”, “no rational support”, and “no basis in the law”) that, in Fiander v Mills, at paras 20-21, 40, the Newfoundland Court of Appeal concluded that anyone who even uses the “Strawman” in court is presumed to act in bad faith, and for a “vexatious and abusive” ulterior purpose. A court that encounters the “Strawman” may act pre-emptively to terminate or restrict litigation abuse based on this notoriously false idea. This rule from Fiander v Mills has been subsequently adopted in many Alberta cases, including Re Boisjoli; Gauthier v Starr; Alberta v Greter, 2016 ABQB 293; Pomerleau v Canada (Revenue Agency); Re Gauthier, Rothweiler v Payette, 2018 ABQB 134, litigant declared vexatious 2018 ABQB 288, decision confirmed 2018 ABQB 399; d’Abadie v Her Majesty the Queen, 2018 ABQB 298, litigant declared vexatious 2018 ABQB 438; Toronto-Dominion Bank v Leadbetter, 2018 ABQB 472, litigant declared vexatious 2018 ABQB 611; Alberta Treasury Branches v Hawrysh, 2018 ABQB 475, litigant declared vexatious 2018 ABQB 618; Potvin (Re), 2018 ABQB 652, litigant declared vexatious 2018 ABQB 834. 

[50] Knutson obviously subscribes to “Strawman” Theories. He self identifies the two halves of himself by the usual language. For example, in the document reproduced in Appendix “C”, he is “James-Kenneth: Knutson”, rather than “JAMES KNUTSON™”, which “James” says is the real party to the Alberta Court of Queen’s Bench debt collection action. 

[51] In Court he refused to identify himself as James Knutson, instead, he is “James of the Family Knutson”. His NOUICR also makes these distinctions. 

[52] The Affidavit reproduced in Appendix “E” further illustrates Knutson’s spurious belief in the “Strawman”: I James, a minister of GOD, am making a special limited appearance on behalf of the defendant [JAMES KNUTSON]. 

[53] He then indicates he believes the letter case of a name has legal significance: I know the US Printing Style Manual, which explains how to identify a CORPORATION, dictates the use of capital letters. Knutson continues to indicate he identifies JAMES KNUTSON as some kind of trust. He, the physical man, is its beneficiary. 

[54] As was reviewed in Potvin (Re), 2018 ABQB 652, OPCA theories put special significance on birth documentation, often associating it with great value. Knutson makes that claim in the August 1, 2017 Affidavit: I know that man's laws are to make money for the Corporation of Canada and to pay back the Interest on the money you the 'de facto government' have borrowed in fraud on my behalf from the I.M.F. in the form of my birth bond #, on my Birth Certificate. 

[55] This related claim that birth documentation has some extraordinary legal significance was also identified in Fiander v Mills, at paras 21, 37-40, as a separate basis for a court to presume that a litigant conducts themselves in bad faith and with abusive and ulterior objectives, see also d’Abadie v Her Majesty the Queen, 2018 ABQB 298 at paras 68-70; Potvin (Re), 2018 ABQB 652 at paras 91-92. 

2. The Three/Five Letters 

[56] Knutson has employed template documents from the UK OPCA website Get Out Of Debt Free in the Bank of Nova Scotia and MCAP actions. These are a Three/Five Letters process: Bank of Montreal v Rogozinsky, at paras 55-73; Rothweiler v Payette, 2018 ABQB 288 at paras 6-21. Potvin (Re), 2018 ABQB 652 at para 68 provides a useful overview of this concept: ... Briefly, a Three/Five Letter process uses a series of documents that are sent to a target one after another. Each says that if the target does not respond, or does not respond in an adequate manner, then certain results automatically occur. These “foisted unilateral agreements” ... are all based on a commonplace pseudolaw fallacy, that in contract silence means agreement or consent. [Citation omitted.] In Knutson’s case, he purports to have eliminated his debts in this manner. 

[57] What is particularly problematic is that the exact documents that Knutson used were reproduced in full and rejected in the Bank of Montreal v Rogozinsky decision issued by this Court on December 16, 2014, long before Knutson began sending his creditors these documents in 2016. I draw a strong negative inference from Knutson’s using Get Out Of Debt Free materials after this Court issued an explicit finding that these materials were not merely worthless, but abusive. 

[58] Further, Associate Chief Justice Rooke in Rothweiler v Payette, 2018 ABQB 288 at para 6-21 concluded that the Three/Five Letters scheme has been rejected in Canadian courts on so many occasions that, like “Strawman” Theory, as a principle of law, whenever a person uses a Three/Five Letters process that action creates the presumption that OPCA litigant is engaged in a vexatious and abusive argument, and does so for an improper and ulterior purpose. 

[59] I conclude this rule applies to Knutson as well. 

3. Fee Schedules, Copyright in a Personal Name, and Other Threats 

[60] As previously indicated, Knutson’s NOUICR includes a “fee schedule”, which purports to unilaterally set penalties or fines for certain activities which are lawful acts, or duties, of government actors. This is yet another category of foisted unilateral agreement. 

[61] OPCA fee schedules are a form of intimidation: Meads v Meads, at para 527; Fearn v Canada Customs, at para 199; Bank of Montreal v Rogozinsky, at para 78; Gidda v Hirsch, 2014 BCSC 1286 at para 84; R v Sands, 2013 SKQB 115 at para 18, 416 Sask R 279; R v Boxrud, 2014 SKQB 221 at para 46, 450 Sask R 147; Re Boisjoli, at paras 58-69; Allen Boisjoli Holdings v Papadoptu, 2016 FC 1260; Pomerleau v Canada Revenue Agency, at para 135; Canadian Imperial Bank of Commerce v McDougald, 2017 ABQB 124 at para 28, 276 ACWS (3d) 847; Gauthier v Starr, 2016 ABQB 213 at para 39, 86 CPC (7th) 348; Re Gauthier, at paras 65-66; Potvin (Re), 2018 ABQB 652 at paras 79-80. In Potvin (Re), 2018 ABQB 652 at para 80, Rooke ACJ explains: In law (and simple common sense) a person is presumed to intend the natural consequences of their acts ... Intimidation is the natural consequence of Mr. Potvin’s illegal and unreasonable fee schedule demands. I therefore presume Mr. Potvin intended exactly that by using these strategies and issuing bills and a counterclaim on that basis. [Citation omitted.] 

[62] I adopt this reasoning, which applies equally to Knutson. 

[63] The Get Out Of Debt Free claim by Knutson that anyone who infringes on his purported intellectual property rights is another attempt at illegal intimidation. There is no legal basis for his claim to have “common law copyright” in his name (Meads v Meads, at para 504), and, generally, this concept “... has an overwhelmingly juvenile character.” (Meads v Meads, at para 502). I conclude that threats of this kind are another example of illegitimate OPCA-based intimidation. 

[64] Knutson also threatens in his August 1, 2017 Affidavit that unless MCAP accedes to his false OPCA-based demands for a free house and nearly a million dollars he will initiate criminal proceedings through the Criminal Code, ss 504, 507.1 private information process. 

[65] All these OPCA intimidation activities are a potential basis for court access restrictions. 

4. Fractional Reserve Banking Theories and Promissory Notes are as Good as Cash 

[66] Knutson also advances two often intertwined but legally false claims that purport to eliminate debts and provide free money. First, he claims there is no such thing as real money (January 1, 2017 Affidavit, Appendix “C”): l know that I am an endless creditor and NEVER a debtor from the birth certificate bond, which I claim fiduciary gent of. I know the corporation known as CANADA is in a 70 year bankruptcy cycle; money no longer exists, since the seizure of gold and there is only charge and discharge of credit. I know banknotes are debt instruments; having people pay debt with debt is enslavement! And I will not participate. 

[67] This and other related claims concerning the operation of banks relate to a conspiracy theory that fractional reserve banking means that mortgages and other debts are a fraud. This concept has been thoroughly examined and rejected in many Canadian decisions, including Dempsey v Envision Credit Union, 2006 BCSC 750 at paras 27, 39, 151 ACWS (3d) 204; Crossroads-DMD Mortgage Investment Corporation v Gauthier, 2015 ABQB 703 at paras 68-85, 28 Alta LR (6th) 104; Canadian Imperial Bank of Commerce v McDougald, at paras 51-53. 

[68] Knutson in the Bank of Nova Scotia and Capital One Bank actions argues that his providing of a promissory note which promises that he will at some point pay the outstanding debt fully discharges his obligations. This “a promise to pay is payment” promissory note is cash argument is, in any case, ridiculous, since the end result would be nothing more than “a conga line of promissory notes, each purporting to satisfy the debt of the note one step up the cue”: Re Boisjoli, at para 35. 

[69] Beyond advancing the fundamentally illogical argument that a promise is a payment, Knutson relies on a quotation of Lord Denning from Fielding & Platt Ltd v Najjar: We have repeatedly said in this court that a bill of exchange or a Promissory Note is to be treated as cash. It is to be honoured unless there is some good reason to the contrary. 

[70] Commonwealth Courts have consistently rejected Fielding & Platt Ltd v Najjar creates a principle that a debtor may discharge his or her obligations by a paper note that is not backed by actual funds: Re Boisjoli, at paras 32-34; Servus Credit Union Ltd v Parlee, 2015 ABQB 700 at paras 65-68, 7 Admin LR (6th) 700; Canadian Imperial Bank of Commerce v McDougald, at paras 35-37; Dove v Legal Aid Ontario, 2018 ONSC 17 at paras 4, 8; Bank of New Zealand v Donaldson, [2016] NZHC 1225 at paras 47-52. The modern approach to payment of debt by a promissory note is set in Child Maintenance and Enforcement Commission v Wilson, 2014 SLR 46, [2013] CSIH 95. The Denning rule only applies, and a bill of exchange or promissory note only extinguishes a debt, where the lender has agreed in advance to payment in that manner. 

[71] Knutson’s attempts to ‘miracle away’ his debts by worthless promissory notes or claims he never received anything of value from his lenders is a further indication that Knutson is potentially an appropriate subject for court access restrictions. 

5. The :FEDERAL-POSTAL-COURT Judgment 

[72] Knutson’s submitting to this Court and his reliance on the “:FEDERAL-POSTAL-COURT” decision of “Judge :David-Wynn: Miller” warrants special comment. This step is serious litigation misconduct. An attempt to impose a fictional court decision into an Alberta Court of Queen’s Bench process is prima facie contempt of court: Fearn v Canada Customs, at paras 201-210. 

[73] That is not the only implication of asserting alleged authority of this kind. Pseudolaw is a kind of self-destructive extremist political ideology that is reinforced in highly introspective, introverted community ‘echo chambers’: Re Gauthier, at para 92. As I observed in 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 72-73, people who use pseudolaw are motivated by extremist political beliefs and ideologies:

Judicial and legal academic authorities uniformly identify OPCA narratives and their associated pseudolegal concepts as resting on and building from a foundation of paranoid and conspiratorial anti-government and anti-institutional political and social belief. These individuals are sometimes called ‘litigation terrorists’ for this reason. They may act for personal benefit, but they also do so with the belief they are justified and act lawfully when they injure others and disrupt court processes. Persons who advance OPCA litigation to harm others have no place in Canada’s courts. ... Their next target can be anyone who crosses their path - government officials or organizations, peace officers, lawyers, judges, business employees - and who then offends the OPCA litigant’s skewed perspectives. These individuals believe they have a right to attack others via the courts, they like the idea of doing that, and they view their litigation targets as bad actors who deserve punishment. ... 

[74] That makes “summons”, “orders”, and “judgments” of vigilante fake courts purportedly operating under pseudolegal authority a highly problematic phenomenon. Worse, orders and decisions of vigilante courts are a precursor to illegal actions, including extrajurisdictional vigilante actions against government actors. As Tilleman J observed in Fearn v Canada Customs, at paras 201-204:

Another extremely disquieting aspect of certain OPCA movements is a belief that individuals are authorized to take extrajudicial vigilante actions against court actors, including judges. Naturally, these illegal actions are cloaked with some kind of purported thought fictitious authority, most commonly as an expression of the “mutant” common law in a jury or court process. Typical language is formation of “common law”, “people’s” or “de jure” posses, juries, and trials. Other times OPCA litigants announce they are forming their own court, on the spot, using their “personal inherent jurisdiction”. A third related scenario is where an OPCA litigant claims that it is notaries who are the true judges or possess some supervisory, judicial authority ... Othertimes OPCA litigants will threaten judges with sanctions from international courts and tribunals, real or imaginary. ... Freeman-on-the-Land guru Robert Arthur Menard operates a group of self-declared and appointed vigilante “peace officers”, the “Canadian Common Corps Of Peace Officers” (“C3PO”).

[75] The “C3PO” example is not an isolated one. In Alberta a vigilante court which called itself “The Tacit Supreme In Law Court” operated a police force of uniformed “Territorial Marshals”: Donald J Netolitzky, “The History of the Organized Pseudolegal Argument Phenomenon in Canada” (2016) 53(3) Alta L Rev 609 at 628-629. This fictional court claimed to terminate criminal prosecutions of its members. 

[76] In Fearn v Canada Customs, at para 205, Justice Tilleman observed escalation to violence by OPCA litigants is a more common phenomenon in the US than in Canada. That is no longer the case. 

[77] Recently, a Freeman-on-the-Land, Amos Edwin McKechnie went so far as to in court declare he has the right under his law to kill judges, lawyers, police, corrections and government personnel, and he will kill them, except if they act according to his OPCA-based pseudolegal demands: McKechnie (Re), 2018 ABQB 493; McKechnie (Re), 2018 ABQB 677. McKechnie has been evaluated as a high threat of violence to any non-compliant justice system participant, and is currently detained facing multiple trials. 

[78] OPCA Detaxer Ian Bush issued a “summons” from the “High Court of Humanitarian Justice” that demanded former Chief Judge Alban Garon appear at a vigilante court process: R v Bush, 2017 ONSC 2202 at para 110. Chief Judge Garon did not comply. Ian Bush subsequently conducted a home invasion of Chief Judge Garon’s residence, during which Bush hogtied, tortured, and killed by suffocation Chief Judge Garon, his wife, and an unfortunate neighbor who happened to be in the residence when Bush accessed the residence via subterfuge: R v Bush, 2017 ONSC 7426 at para 2; R v Bush, 2017 ONSC 7050 at para 3. This was only one attack in Bush’s broader plan to rob and murder a list of judges, government officials, lawyers, and human rights activists: R v Bush, 2017 ONSC 7627 at paras 9, 29-31. 

[79] These are only examples of more violent and dangerous activities by Canadians with OPCA beliefs who exercise what they say is their own authority, or that of vigilante court and police organs: Donald J Netolitzky, “Organized Pseudolegal Commercial Arguments [OPCA] in Canada, an Attack on the Legal System” (2016) 10 JPPL 137; Barbara Perry, David C Hofmann & Ryan Scrivens, “Working Paper 17-02: Broadening our Understanding of Anti-Authority Movements in Canada” (Waterloo: TSAS, August 2017). Vigilante court proceedings, orders, and decisions are a dangerous precursor of elevated illegal activity by persons who have adopted pseudolaw: Netolitzky, “Attack on the Legal System” at 186; Stephen A Kent & Robin D Willey, “Sects, Cults, and the Attack on Jurisprudence” (2013) 14 Rutgers’ JL & Religion 306 at 319-329. 

[80] In light of these facts I conclude that Knutson deploying a fictional decision of a fraudulent vigilante court is a very serious form of litigation misconduct. That, too, warrants investigation of whether Knutson should be made subject to court access restrictions. 

B. Other Indicia of Abusive Litigation 

[81] In addition to the many variations on abusive OPCA concepts that Knutson has employed in his litigation, he has also exhibited other litigation misconduct indicia identified in Chutskoff v Bonora and its successor decisions. 

[82] I conclude that Knutson’s attempt to re-open the Bank of Nova Scotia Default Judgment is a form of collateral attack. His litigation attempts to frustrate the collection of his debts and foreclosure were hopeless. His appeal in the MCAP action had no prospect of success. 

[83] Knutson has also sought impossible or disproportionate remedies, including: 1. $1 million “common law” intellectual property claims on his name, biometric data, and bodily excreta, 2. “four fold” damages “per Luke 19:8”, 3. Charter remedies vs a non-government entity, a bank, and 4. criminal investigation and prosecution in a civil proceeding. 

[84] The multiple orders that Knutson vacate the mortgaged residence in the MCAP action indicate he does not follow court instructions. He refused to comply with instructions to cooperate with the realtor hired to conduct the court-ordered sale. 

[85] As the passages and documents reproduced from Knutson’s materials indicate he has advanced unmeritorious claims of conspiracy, fraud and improper conduct by institutions and lawyers.