Archives for category: 21st century

close-the-gap

Although Aboriginal and Torres Strait Islander people comprise only about 3 per cent of the Australian population, they make up 28 per cent of the total prison population. This is an imprisonment rate 14 times higher than the non-Indigenous rate. Aboriginal people continue to die in custody – 270 people since the Royal Commission into Aboriginal Deaths in Custody Report (1991). Growing prison populations mean increased costs for taxpayers without breaking the cycle of offending. The system is not working to prevent crime and is not sustainable[1].The Australian Law Reform Commission Aboriginal Customary Law Report (1986) investigated Aboriginal customary laws and any basis for their recognition in the common law. The ALRC recommended that Aboriginal customary law should be recognized, in appropriate ways, by the Australian legal system, and that the recognition of such laws must occur within the framework of the general law[2]. While both the Aboriginal Deaths in Custody Report and the Aboriginal Customary Law Report advocated in favour of upholding the rights, both traditional and modern, of Indigenous Australians, neither reports’ recommendations have been properly administered or implemented so as to fully address the issue of Indigenous disadvantage. Therefore, almost thirty years after these expensively produced reports were completed, successive Australian governments have continued to fail the Indigenous population on whose country this nation was founded.

This travesty of justice continues to beleaguer courts across Australia, with judges having to make complex decisions using the only legislative tool available the Racial Discrimination Act 1975 (Cth). This leads to arbitrary decision making that in turn leads to expensive appeals processes in order to ascertain the correct form of justice available. An example of this is Walker v NSW (1994) 182 CLR 45, where the High Court considered whether customary law has an application in criminal law where there is no legislative basis. Mason CJ referenced the Racial Discrimination Act 1975 to declare:

It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10)…And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose[3].

It is this reference to the Racial Discrimination Act which is telling in Mason CJ’s ruling, as Part 1, Article 1.4 of the Schedule to that Act, being the international source of the Act itself, “The International Convention on the elimination of all forms of racial discrimination” plainly states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved[4].

The Convention’s intent is to not just seek equality for all humans but also to enact equity for those who have suffered discrimination, and it is this UN Article that alludes to this intent. Special measures are needed in order to apply justice with an even hand. However, should this mean that customary law should be applied over criminal law in Australian courts? I will argue that, while the recognition of customary law may make the implementation of the law seem arbitrary, the recognition of socially reinforced disadvantage, particularly Indigenous disadvantage, is important to prevent the law being applied arbitrarily.

In the early 1990s the High Court upheld the native title rights of Indigenous Australians and the Native Title Act 1993 (Cth) was born. At about the same time Mason CJ declared that customary law had no place in Australian law and the Royal Commission into Aboriginal Deaths in Custody (RCIADC) released its recommendations. The cause of the Royal Commission was the intolerable amount of Indigenous people who had died in police custody in the preceding years. It is with interest that one can regard the recommendations of the RCIADC to ascertain almost three decades later whether processes have changed and what has worked.  With regard to the legal system, the Commission made many conclusions which have been completely ignored, especially by state governments. Some nineteen of these recommendations were:

That Police Services take all possible steps to eliminate:Violent or rough treatment or verbal abuse of Aboriginal persons, including women and young people, by police officers; and the use of racist or offensive language, or the use of racist or derogatory comments in log books and other documents, by police officers. When such conduct is found to have occurred, it should be treated as a serious breach of discipline. (2:223)

That all Police Services review their use of para-military forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities. (2:223)

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (2:252)

That police services should monitor the effect of legislation which decriminalises drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately have been taken to alternative places of care. The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas. The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public. (3:29)

The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge. Police services should examine and monitor the use of offensive language charges. (3:29)

That all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders. Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice. Administrators of police services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters. That all possible steps should be taken to ensure that allowances paid to police officers do not operate as an incentive to increase the number of arrests. That a statistical data base should be established for monitoring the use of summons and arrest procedures on a Statewide basis noting the utilisation of such procedures, in particular divisions and stations. Also, the role of supervisors should be examined and, where necessary, strengthened to provide for the overseeing of the appropriateness of arrest practices by police officers. That efficiency and promotion criteria should be reviewed to ensure that advantage does not accrue to individuals or to police stations as a result of the frequency of making charges or arrests. That procedures should be reviewed to ensure that work processes (particularly relating to paper work) are not encouraging arrest rather than the adoption of other options such as proceeding by summons or caution. That governments, in conjunction with police services, should consider the question of whether procedures for formal caution should be established in respect of certain types of offences rather than proceeding by way of prosecution. (3:42).

That in jurisdictions where motor vehicle offences are a significant cause of Aboriginal imprisonment the factors relevant to such incidence be identified, and, in conjunction with Aboriginal community organisations, programs be designed to reduce that incidence of offending. (3:71)

 That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a Court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to that person. (3:79)

That, in the first instance, proceedings for a breach of a non- custodial order should ordinarily be commenced by summons or attendance notice and not by arrest of the offender. (3:80)

That it be recognised by Aboriginal Legal Services, funding authorities and courts that lawyers cannot adequately represent clients unless they have adequate time to take instructions and prepare cases, and that this is a special problem in communities without access to lawyers other than at the time of court hearings. (3:91)

 That State and Territory Governments examine the range of non-custodial sentencing options available in each jurisdiction with a view to ensuring that an appropriate range of such options is available. (3:96)

 That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population. (3:96)

 That Corrective Services authorities ensure that Aboriginal offenders are not being denied opportunities for probation and parole by virtue of the lack of adequate numbers of trained support staff or of infrastructure to ensure monitoring of such orders. (3:117)

That governments consider introducing an ongoing amnesty on the execution of long outstanding warrants of commitment for unpaid fines. (3:126)

Where legislation does not already so provide governments should ensure that sentences of imprisonment are not automatically imposed in default of payment of a fine. Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant’s capacity to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise. (3:126)

That the Department of Education, Employment and Training be responsible for the development of a comprehensive national strategy designed to improve the opportunities for the education and training of those in custody. This should be done in co- operation with state Corrective Services authorities, adult education providers (including in particular independent Aboriginal-controlled providers) and State departments of employment and education. The aim of the strategy should be to extend the aims of the Aboriginal Education Policy and the Aboriginal Employment Development Policy to Aboriginal prisoners, and to develop suitable mechanisms for the delivery of education and training programs to prisoners (3:353).

 That prisoners, including Aboriginal prisoners, should receive remuneration for work performed. In order to encourage Aboriginal prisoners to overcome the educational disadvantage, which most Aboriginal people presently suffer, Aboriginal prisoners who pursue education or training courses during the hours when other prisoners are involved in remunerated work should receive the same level of remuneration. (This recommendation is not intended to apply to study undertaken outside the normal hours of work of prisoners.) (3:357)

That police administrators give police officers greater encouragement to proceed by way of caution rather than by arrest, summons or attendance notice. That wherever possible the police caution be given in the presence of a parent, adult relative or person having care and responsibility for the juvenile. Also, that if a police caution is given other than in the presence of any such person having care and responsibility for the juvenile such person be notified in writing of the fact and details of the caution administered. (4:184)

 That where an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the officer in charge of the police station at which the juvenile is detained should be required to immediately advise the relevant Aboriginal Legal Service and the parent or person responsible for the care and supervision of the juvenile of the fact of the child being detained at the police station (without prejudice to any obligation to advise any other person). (4:203)

That no Aboriginal juvenile should be interrogated by a police officer except in the presence of a parent, other person responsible for the care and supervision of the child or, in the absence of a parent or such other person, an officer of an agency or organisation charged with responsibility for the care and welfare of Aboriginal juveniles. (4:203)

 That legislation, regulations and/or police standing orders, as may be appropriate, be amended so as to require compliance with the above recommendations. (4:205)

According to the Human Rights Commission both state and federal governments have done little to implement the Royal Commission’s recommendations and, due to this, the percentage of Indigenous people incarcerated in Australian prisons has increased exponentially in proportion to the rest of the population[5]. It would seem that the recommendations would have done much to assist the intention to prevent this increase and yet many governments, such as the Northern Territory’s administration, have actually brought in more pernicious laws such as mandatory detention which have exacerbated the problem. Mandatory detention takes the responsibility of a judge to determine justice and puts it in the hands of politicians trying to gain popularity with a majority. This, in itself, is fundamentally against the intentions and objectives of the “International Convention on the elimination of all forms of racial discrimination”, has had an overwhelming negative effect on Indigenous people, and is a serious indictment on Australia’s performance as an international actor.

Just after the RCIADC, the Supreme Court of NSW had sought to implement the objectives of the UN Convention in R v Fernando (1992) 76 a crim r 58 and try and to address these problems judicially. The Fernando principles underpinned a direction in sentencing that framed jurisprudence on the relevance of Aboriginality, alcoholism and disadvantage. The principles provided for lighter sentences that reflected the Indigenous offender’s reduced moral culpability and promote non-custodial sentences in light of over-representation in the prison system. However, it could be argued that only having a judicial approach to social justice reinforces stereotypes and that it is only through structural reform within the larger society, as set out in the Royal Commission’s findings, that a more genuine sense of justice can be achieved.

Advances in neuroscience have led criminologists to assert that offender autonomy is an assumption based upon a fallacy of free will[6]. As the political philosopher John Rawls claimed, we are not in control of the situation to which we are born and therefore being born into strong social disadvantage is something that is difficult to overcome[7]. It relies upon the availability of opportunity and societal good will. This is reflected in the Convention and has led courts to be more lenient of disadvantaged offenders to redistribute their burdens. When courts fail to consider such inequalities the disadvantaged are given sentences disproportionate to their culpability. Widening social inequalities also limit offenders’ choices and so justice would also demand that society acknowledge responsibility for such economic hardship and assist the offender in sentencing. This last assertion should also require that society be active in alleviating hardship and suffering within the community and address political policy and legislation towards this purpose. Further programs of rehabilitation and reintegration in lieu of imprisonment could reform and improve the position of the offender.

While the principles in Fernando continue to be advocated on behalf of Indigenous defendants, Australian courts since the late 1990s have confined who can be classed as Indigenous for the purposes of applying those principles. Increasingly in court decisions, it regards the identity and community ties of Indigenous offenders as being washed away by time and urbanization.  This results in further discrimination as to deciphering what is being ‘Aboriginal enough’, and considering  all remote Indigenous communities as being dysfunctional and in need of activating the Fernando principles. Therefore, while harsher penalties are meted out to those that are considered to have been re-advantaged through time, the arbitrariness in the way the Fernando principles are enacted and the judicial view of the Indigenous community is managed impels a rethink of how social justice can be better achieved through transformative techniques. To continue to rely upon judicial or political magnanimity and mercy is relying upon the whims of the Anglo-Australian legal order, thereby reinforcing discrimination and continuing the overrepresentation of Indigenous people in prisons.

The Australian Law Reform Commission in its report on Aboriginal Customary Laws[8] found that judicial recognition did not project Aboriginal community concerns, and that a greater degree of local control over community-identified crime problems would be more effective. It is a pluralist strategy that responds to the circumstances of the individual Indigenous community. Where Indigenous laws bind communities the processes directed to punishment can be a legitimate method for mediation and resolution between victims, perpetrators and the rest of the community. An example of this is the acceptance of the Warlpiri Elders who conveyed their acceptance of Anglo-Australian court processes, so long as ‘traditional’ punishment can be carried out to reconcile their community[9].

 

When social justice is considered by the wider community to be applied simply through more lenient sentencing for Indigenous offenders this only reinforces the white racial illusion which presents itself as tolerant and understanding but is merely a means of controlling an Indigenous population. This type of affirmative action is prone to disintegrate in the face of other norms such as courts falling back on the position that Indigenous offenders are to be treated equally to other offenders through refusal to recognize Indigeneity. There is also the further injustice and institutional subordination of determining Indigenous communities as dysfunctional in order to aggravate sentences and condemn the community. Recently, the High Court addressed the issue of the whether courts should take into account unique circumstances of Aboriginal offenders and the high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offenders in Bugmy v The Queen [2013] HCA 37.

In Bugmy, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. expressed that a deprived background may mitigate a sentence for an Indigenous offender in the same way that it does for a non-Indigenous offender. They quoted Simpson J who in Fernando explained the significance of the statements in Fernando:

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”

 In concluding, the High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, the judgment also went on to declare that those effects do not necessarily serve to mitigate an offender’s sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

Even taking into account the High Court decision in Bugmy to renew the principles in Fernando, this approach to convicting and sentencing Indigenous people still leaves the situation where the incarceration rates will keep increasing, and does not address the issues and recommendations of the RCIADC. Alcohol is not just an issue in Indigenous communities anymore, methamphetamine and petrol sniffing is also causing a scourge of destruction and damage. The increase in youth suicides in some communities is substantial which leaves the necessity to implement policies that reflect those recommendations as an imperative.

Currently, state and federal governments must address transparently their goals of reducing the health gap between Indigenous and non-Indigenous Australians in a bipartisan program called Close the Gap[10]. Yet it seems another program to be at the mercy of competing political ideologies, as were the other costly reports and recommendations that failed to be translated into legislation and dependent upon the budget allocations of successive changing government administrations. A consultative approach to Indigenous affairs is one of the main bridges to achieving these goals, as was pointed out in the Royal Commission’s findings. Therefore, while it is good that the High Court has again implemented the principles of sentencing by Wood J in Fernando, such an approach is ad hoc and needs the Australian community to commit to instigating social programs that are not politically ideological but those that have been recommended by Indigenous groups, are known to work and are protected by legislation that adheres to the objectives of the “The International Convention on the elimination of all forms of racial discrimination”.

 

[1] http://antar.org.au/campaigns/justice-campaign

[2]http://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/37-summary-recommendations

[3] Walker v NSW (1994) 182 CLR 45

 

[4] http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/

[5] https://www.humanrights.gov.au/publications/indigenous-deaths-custody-report-summary

[6] Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton

[7] Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001)

[8] http://www.alrc.gov.au/publications/report-31

[9] Anthony, Thalia. Is there social justice in sentencing indigenous offenders [online]. University of New South Wales Law Journal, The, Vol. 35, No. 2, 2012 563-59

[10] http://www.naccho.org.au/aboriginal-health/close-the-gap-campaign

Above image: https://nacchocommunique.files.wordpress.com/2013/02/close-the-gap.jpg

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political_world_map_1200The modern state, which was born from the Peace of Westphalia of 1648, gave unrestricted control of the state to its rulers. This was the beginning of the concept of state sovereignty which is still dominant today. The most potent shaping forces in the contemporary world are the interactions of states when enforcing their interests, capabilities and goals. However, during the latter half of the twentieth century the supremacy of the state is under challenge. Global affairs are now dominated by intergovernmental organizations that transcend national boundaries. Global international organizations such as the United Nations and the European Union have become independent global actors which implement their own foreign policies. Also groups of people carrying on various enterprises, such as multinational corporations, are examples of nongovernmental organizations which also transcend national boundaries and exert their influence globally.

Post Cold War, the United States has dominated world politics with the political scientist Francis Fukuyama even suggesting that it signaled ‘the universalisation of Western liberal democracy as the final form of government’. However because of the ascendance of other great powers such as China, Japan, Russia and India others such as the journalist and foreign policy advisor Fareed Zakaria arguing that a ‘post-American’ world has arisen through which many other state and nonstate actors direct and define global society’s responses to global challenges. While the United States remains the greatest military power, other dimensions are emerging industrially, financially, educationally, socially and culturally that are moving the globe away from American dominance.

Although some suggest that competition between states could be renewed as they jostle for power in commercial relations, they also manage their security relations collaboratively which can be seen through their cooperation in fighting terrorism. The danger of the polarization of these states into two antagonistic camps could be managed through newly developed international rules and institutions that can manage these mixed-motive relationships. Rather than a quest for hegemony, these great and emerging powers are active trading partners and the question arises will these commercial relationships reduce the potential for future military competition?

Multilateralism could be the approach that these great powers take to cooperate to achieve global solutions to problems that affect all of their citizens. In an ever shrinking global environment in which all actors are increasingly reliant upon each other, a new global system of power and responsibility is more widely distributed. How these great powers will make their choices about war and peace will affect all people and determine the fate of the humanity.

A new concept of responsible sovereignty is emerging which requires states not to protect only their own people but also to cooperate across borders to protect global resources and address transnational threats. This entails intergovernmental organizations (IGOs) and non-government organizations (NGOs) providing a greater role which ‘differs from the traditional interpretation of sovereignty being non-interference in the internal affairs of state’. Global problems require global solutions and an increasingly greater number of non-state actors have arisen on the world stage to engineer adaptive global changes.

The United Nations is the most prominent IGO to have emerged in the last sixty years. Its Charter sets its agenda as the maintenance of peaceful and amicable relations between states based upon humanitarian values and the attainment of common ends through the harmonization of state actors (143). Although it is challenged by persistent financial troubles it is an adaptable and reforming institution that remains the forum of choice for negotiation and promotion of humanitarian concerns. Through its claim to represent ‘the collective will of humanity’ it is in the position to act on issues of global relevance such as shaming human rights violators, combating global pandemics, and promoting conflict-prevention measures.

Increasingly, NGOs are becoming more influential in global politics through their ability to lobby and influence international decision making. This activism is able to transcend the traditional distinctions between what is local and what is global. Five of the most visible types of NGOs are non-state entities that comprise of ethnic or indigenous peoples, transnational religious groups, transnational terrorist groups and multinational corporations. However, while these groups have a strong participation in world affairs some of their influence can often be minimized by differing groups pushing policies in opposing directions.

With the world being far more interdependent than ever before and transactions across state borders increasing through the movement of people, information and trade, non- state actors are becoming more important to the shared concepts of people across the globe. The centrality of the state as an insular actor is declining. Although our constructed images of global politics are resistant to change, change is possible through the reshaping of our insular perceptions. By ridding ourselves of false assumptions about other people we can reshape the future of world politics so that it does not rely on the insular attitudes of singular states but on the basis of a global people. As the philosopher Martin J. Siegel observes: “War for survival is the destiny of all species. In our case, we are courting suicide [by waging war against each other]”. It is the realisation of this by state leaders that will finally lead to the end of the concept of the sovereign state.

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Antti Laitinen, It’s My Island. Δράση κατασκευής νησιού, 14 – 25 Ιουνίου 2009.

No man is an island,
Entire of itself,
Every man is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manor of thy friend’s
Or of thine own were:
Any man’s death diminishes me,
Because I am involved in mankind,
And therefore never send to know for whom the bell tolls;
It tolls for thee.
[1]

In the above poem John Donne articulates poetically the argument that Charles Taylor puts forth in his description of the self as being dialogical. Individualism is a modern concept based in the humanist perspective of the Renaissance. Modern philosophy, economic theory and political thought are all bound to uphold the rights of the individual. Such a concept has created political freedom, economic prosperity and self-expression. However, it is also responsible for an egotism and self-centredness which results in alienation and an unwillingness to contribute to the common good[2]. Taylor argues that ‘we see ourselves as selves, because our morally important self-descriptions push us in this direction’. However, a human being also exists within an ethical environment that must be assessed in accordance with some standards. To not have this environment would be totally disorientating and cause a crisis of identity[3]. To assess whether individual identity and agency can be accounted for sufficiently by a concept of a social or dialogical self, this essay will explore Taylor’s concept of the dialogical self and its ability to sustain agency.

Taylor contends that while we speak of ‘self’, our ancestors or other cultures might say ‘soul’. This shift in thinking has led to radically reflexive practices in the modern world. While thinking about one’s health or welfare is not radically reflexive, the active examination of subjective experience, such as scrutinizing one’s own thinking, is radically reflexive. Also, while the concept of the self is a notion of modern Western culture, even earlier societies had a sense of reflexivity. This can be seen through linguistics, as reflexive pronouns exist in all sorts of languages. This reflexivity can be seen as post-Cartesian thinking where one disengages from embodied prejudices and thinks outside the embodied self. Another form of reflexivity is the creative imagination, especially in the arts, which is a principle form of self-expression and individual identity in post-Romantic times[4].

A human being’s sense of self is established in the context of their ethical space. The concept of identity is related to ‘who I am’. I situate myself in a contextual environment that may include my relationships with family and friends, and my abilities and the occupations in which I am, or have been, engaged. This identifies what is ultimately important to me and how that relates to where my identity is in relation to this. It is not just a bare sense of self-awareness, which has no ethics attached. It is the concept of identity which is attached to this thick concept of the self involved in a moral situation that is a product of the disembodied perspective that has shaped the modern self. A crisis of identity results from this environment being disrupted, or becoming uncertain, where you may not know who ‘you’ are. Therefore the sense of self and its ethical space can also be profoundly culturally relative, with each sense of good having its own telos and standard of law[5].

In the modern world each individual has been expected to be a thinking mind that is self-reliant for their judgements. Yet, this thinking has recently been questioned with globalisation bringing new worldviews and cultural resources from non-Western societies into the debate. There is now a more intercultural understanding of global society[6]. The disengaged first person singular view can be found in the foundational works of Descartes and Locke, and this view of the self is made up of representations of the outside world and the fears and desires that accompany them. For Taylor, this is the basis of monological consciousness[7]. However, this notion of monological consciousness leaves out the body and the other.

Emmanual Levinas considered contact with the face of another as primarily ethical[8]. For Jean-Paul Sartre, it is when one is aware of another’s gaze that one becomes reflectively conscious. Through another’s gaze one becomes aware and recognises itself as the object[9]. Philosophers such as Heidegger, Merleau-Ponty and Wittgenstein see the agent not essentially as a receptor of representation but as a being who acts in and on the world. What distinguishes its agency from something that is inanimate is its capacity for inner representations[10]. Through its body an agent reacts to the world and acts within it, recognizing patterns of appropriate action and the norms that accompany them. Pierre Bourdieu uses the word habitus for this level of social understanding[11].

The other plays its role in the encoded understanding of the rituals played between the self and the other. These rituals between people are coordinated action that sustain integrated agency, such as two people sawing or playing a duet, or in an orchestra or ensemble, or dancing. For Taylor, an important feature of human action is rhythm or cadence. It is crucial for these actions that they are shared. We must place ourselves in a common rhythm for them to work. When gesture is coordinated it has a flow. However, it falls into confusion when the flow is lost and becomes inept and uncoordinated. Therefore, the acts of a single agent can be called monological acts, while the acts of two or more can be called dialogical acts[12].

As an action is dialogical when there is a sharing of agency, these shared actions require a shared understanding and make up a common agent. Integration into a common rhythm is one of the features that this form of understanding can take. It s found in political and religious movements whose members are scattered but brought together in a common purpose, such movements as those Occupy Wall Street[13] or Anonymous are examples of movements that are scattered but have a common purpose to redress global injustices, and whose agents work together for this common purpose. They use the satyagraha or non-violent resistance method advocated by M.K. Gandhi.

As no man is an island, the monological subject is inadequate as an understanding for human life. An individual agent can only operate in the world effectively as a constituted part of a ‘we’, whether that be family, tribe, community, society, etc.. Taylor argues that ‘much or our understanding of self, society, and world is carried in practices that consist of dialogical action.’ Therefore our identity does not consist only in our individual properties as we are also aligned with some social space and we define ourselves within this space through our dialogical actions [14]. Being able to understand the actions of another through putting oneself in their shoes, so to speak, is an important feature of maturity and prevents egocentricity [15].

Taylor extends Dennet’s concept of a narrative self and states that human beings are not only constructed of their own narrative but also of conversations with others. Alexis de Tocqueville asserted that democratic individualism posed an obstacle to civil society through its propensity for each person to withdraw into their own family/friend circle, leaving society to degenerate into ‘downright selfishness’. Individualism tends to predispose humans ‘not to consider their fellow creatures’[16]. Schopenhauer contends that as all malevolence is grounded in the idea that one is absolutely separate from other beings (‘someone else’s pain is no matter of mine’), so kindness is grounded in the unconscious knowledge that there is no ultimate reality in individuality. As this silent awareness grows kindness passes into altruism, the subordination of self-interest to those of all other beings[17].

How can the dialogical self account for identity and agency when the self appears to be such a subjective concept? How can individuals work together as a common agent? In order for the exercise of agency individuals must rely on social recognition in order to be able to form and sustain a self that has agency and identity. In the process of maintaining a stable self the exercise of agency depends upon social infrastructure which provides the framework for an individual’s identity to be formed. Once identity is formed agency can follow in the form of personal autonomy[18]. In the path to a mature personal autonomy that allows us to rely upon our feelings and intuitions, develop our sense of belief and to consider out projects and accomplishments worthy, we are constantly vulnerable to autonomy-undermining injustices, such as material deprivation or disruption to the social nexus[19]. The central idea put forth by Honneth and Axel is that the agency that comprises autonomy requires that an individual is able to sustain certain attitudes to oneself such as self-trust, self-respect, and self-esteem, and that these self-conceptions are dependent on the attitudes of others[20].

In her response to David Velleman’s claims that an individual’s self-image is made reflexive by some association to another that represents it as a subject, Catriona Mackenzie contends that this is like saying a person’s self-image is like a third-person representation of the person. While Velleman’s analysis of identity tends to ignore the perspective of others in relation to how these perspectives are used in our own summation of ourself, this third-person perspective, argues Mackenzie, is what allows an individual to recognise themselves as an individual[21].

A good example of the consequences of a breach of mutual recognition that comprises our dialogical self, are practices and institutions that express attitudes of denigration and humiliation. They erode an individual’s self-esteem and agency through a process that results in feelings of shame and worthlessness. Therefore, this example of identity and agency eroding effects of denigration make it clear how important an individual’s social environment is, since the autonomous self appears reliant on the establishment of relationships based upon mutual recognition[22]. Taylor also recognises this relationship between individuals and mutual recognition, stating that dignity is bound to the notion of ‘self-worth’ and that this notion probably exists in every culture[23]. It is reflected in such international documents as the Universal Declaration of Human Rights (UDHR)[24].

The UHDR is an instance of the establishment of legally institutionalized relations of universal respect for the autonomy and dignity of human beings, which is central to self-respect. Self-trust is reliant upon close relations of love and friendship. Also, networks of shared values within which community members can be acknowledged are central to self esteem[25]. These three relationships and their social contexts are significant in their contribution to autonomy[26]. The revolution in the seventeenth century of the theory of law began this expression of universal moral norms, of the right to life and liberty. What is different about modern concepts of morality is that they are bound in rights[27]. That these rights were decided by a group of people representing other the demands of other people from across cultures shows that a dialogical understanding of the self is not only sufficient but necessary for human identity and agency.

Perhaps the most important concerns that we have about the autonomous rights bound in such legislation is its respect for the life, integrity, well-being and the flourishing of others. We infringe them when we steal or kill, maim or terrorise them, or even refrain from helping them when they are in distress. People may differentiate who they owe this moral concern to, but most contemporary thinking would say that they are universal to humanity and many would say to other animals as well[28]. The contribution that identity makes to being a morally accountable agent arises out of our concern for our own self. Such contributions may be a sustained interest in our future and, through a dialogical perspective, we present ourselves in social exchange with others to further the interpersonal enterprise of moral accountability and the realisation of a possible future for us all[29].

What is needed for an identity was explored by one man, Neill Ansell, recently. After a life of wandering he settled on becoming a hermit in a small cottage in Wales for five years. He lived self-sufficiently and so remotely that he hardly saw another person for weeks on end, and had no neighbours, vehicle or phone. He writes that in the first year he kept a diary of reflections on day to day events. By the second year the diary had become a nature journal on what birds he had seen or a record of the weather. By the third year it was a mere almanac recording any significant event within that year. Rather than solitude leading him to protracted self-reflection and self-awareness, as Ansell thought it would, he notes that he began to forget himself with his focus being turned completely to the world around him. Ansell writes: “It was as if we gain our sense of self from our interaction with other people; from the reflection of ourselves we see in the eyes of another. Alone, there was no need for identity, for self-definition… I am an absence, a void, I have disappeared from my own story.” This appears to confirm Dennett’s description of how human animals use narrative to construct a protective shell of identity around themselves.

Dennett describes his concept of a narrative self in this way: “We are almost constantly engaged in presenting ourselves to others, and to ourselves, and hence representing ourselves in language and gesture, external and internal…Our human environment contains not just food and shelter, enemies to fight or flee, and conspecifics with whom to mate, but words, words, words.” Interestingly, it was when Ansell felt a compulsion to have children that he decided to leave his isolated life and go back to live in the city. Taylor’s concept of the dialogical self appears to correlate with Ansell’s need for other human life. In an addition to Dennett’s concept of the narrative self, Taylor states that human beings are not only constructed of their own narrative but also of conversations with others. Conversation can move beyond simple coordination and attain a common rhythm. With one acknowledging being the listener as the other one speaks and vice versa. The self-interested bore is impervious to this rhythm and so convivial atmosphere is lost.

Such self-interest as seen by individualism tends to predispose humans ‘not to consider their fellow creatures’. Alexis de Tocqueville asserted that democratic individualism posed an obstacle to civil society through its propensity for each person to withdraw into their own family/friend circle, leaving society to degenerate into ‘downright selfishness’. For Schopenhauer all malevolence, such as selfishness, is grounded in the idea that one is absolutely separate from other beings (‘someone else’s pain is no matter of mine’). Therefore, Schopenhauer argues that kindness is grounded in the unconscious knowledge that there is no ultimate reality in individuality. As this silent awareness grows kindness passes into altruism, the subordination of self-interest to those of all other beings.

Perhaps the most important concerns that we have about the autonomous rights is its respect for the life, integrity, well-being and the flourishing of others. We infringe them when we steal or kill, maim or terrorise others, or even refrain from helping others when they are in distress. People may differentiate who they owe this moral concern to, but most contemporary thinking would say that they are universal to humanity and many would say to other animals as well. The contribution that identity makes to being a morally accountable agent arises out of our concern for our own self. Such contributions may be a sustained interest in our future and, through a dialogical perspective, we present ourselves in social exchange with others to further the interpersonal enterprise of moral accountability and the realisation of a possible future for us all.

Therefore, of the many accounts of selfhood, the dialogical self stands out as one that explains a human being’s position as part of the world. We are indeed clods of earth that are parts of the main, as Donne elicits so beautifully. When another human is violated, so is our own humanity. Our identity is bound inextricably with our place amongst others and within the greater world. We are involved in humanity through being human and it is in the protection of this identity that we must act, for a breach of humanity does not simply happen to another it happens to us as well.

 

References:

Abelsen, P. (1993), “Schopenhauer and Buddhism”, Philosophy East and West, 43. 2 Anderson,J.& Honneth, A., (2005), “Autonomy, vulnerability, recognition, and justice” in Autonomy and the Challenges of Liberalism: New Essays , Christman, John Philip; Anderson, Joel , 2005

Ansell, N. (2011), “My Life as a Hermit”, in The Observer, 27 March 2011

Chaibong, H. (2000), “The Cultural Challenge to Individualism”, in Journal of Democracy, 11.1 (2000)

Dennett, D. C., (1991),”The reality of selves” in Consciousness Explained , Dennett, Daniel C.; Weiner, Paul , 1991

Donne, J. Meditation XVII, No Man is an Island, Souvenir Press Limited, 1988

Kühler, M. & Jelinek, N. (2010), “Autonomy and the Self”, in Preprints for the Advanced Study in Bioethics, Münster 2010/10

Levinas, E. (1961), “Totality and Infinity” , trans. Alphonso Lingis, Martinus Nihoff, Dordecht, (1987)

Occupy Wall Street (n.d.), http://www.occupywallstreet.net/ accessed 18/11/2013

Oshana, M. (2013), “Self Identity and Moral Agency” in Autonomy and the Self, Philosophical Studies Series, Vol 118

Sartre J.P., (1943), Being and Nothingness: A Phenomenological Essay on Ontology, trans. Helen Barnes 1956, Routledge Press

Taylor, C. (1989), “Inescapable frameworks” in Sources of the Self: The Making of Modern Identity , Charles Taylor

Taylor, C. (1991), “The dialogical self” in Interpretive Turn: Philosophy, Science, Culture , Hiley, David R.; Bohman, James; Shusterman, Richard , 1991

de Tocqueville, A. (1838), Democracy in America, 2.2.2, trans. Henry Reeves, (Kindle Edition)

 

 

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Objections to deliberative democracy state that culturally plural societies are too diverse to be able to enact such a concept, that social groups who are marginalized in these societies would not have the access or ability to participate in such decision-making processes. This essay argues that deliberative democracy is applicable to these societies and may be the only method of addressing historical injustices through the reconciliation process, shared stories and perceptions of a common good.

 

 “First we argue for equality, by appealing to the arbitrariness of the natural lottery. Then we allow departures from equality provided that these are not worse for those who are worst off. This explains why, in Rawls’s phrase, the worst-off have the veto, so that benefits to them should have absolute priority.” Parfit (2000, p.121)

 

Theorists of deliberative democracy assert that democracy relies upon notions of a common good and an egalitarian ideal, and also that democracies should be developed to encourage civic responsibility and self-respect. While many modern societies are culturally plural, as long as a system of government allows for a fair system of bargaining that is representative of all groups, these theorists think that it will be a legitimate system (Cohen, 1997). This essay will look at the different concepts that underpin deliberative democracy and assert that such a democratic process is both applicable to a modern, pluralist society and that collective choice will also lead to better understanding between the different groups that inhabit these societies.

John Dryzek’s “Discursive Democracy” (1990) was the first book written about deliberative democracy. Dryzek states that ‘the final decade of the second millennium saw the theory of democracy take a strong deliberative turn’ (Dryzek, 2000:1).  The opportunity to participate became the imperative in asserting effective deliberation and claims for or advocated by others could be justified in terms that would be acceptable to the participants. For Dryzek (2000), deliberative democracy should not be confined to strict forms of ‘public reason’ but should be able to engage in more tolerant positions that include testimony, humour, emotion, storytelling, argument, rhetoric and even gossip. He contends that this would help deliberation in a non-coercive way and rule out dominant powers manipulating outcomes or attempting to enforce an ideological conformity.

This also explains how deliberative democracy has come to be seen by some as being too chaotic and unmanageable through inclusion, and yet by others as being too restrictive through exclusion. For these objections even the idea of rational argument is elitist and exclusive to those who cannot explain themselves comprehensively (Dryzek, 2000:5). However, Dryzek’s inclusion of story allows those that do not have the same worldview as the dominant group to come to an arena of democracy and show through narrative why their preferences might be the ones that are chosen by the collective. Indigenous people can benefit from democracy in this way, instead of having to rely upon the political representation of someone who has little concept of their worldview or culture.

Jürgen Habermas developed the concept of deliberative democracy, basing its legitimacy in reason. Democracy, asserted Habermas, is supposed to encourage free critical reasoning about common affairs designed to guide the practice of coercive powers (Cohen, 1999:386). Joshua Cohen states that one of the reasons that Habermas contended that democracy should be deliberative, was to ensure the impartial justifiability of outcomes (Cohen, 1999:402). John Rawls (1972) also reflected this in his thinking about political decision-making where his principle of participation required fair political equality. Deliberative democracy relies upon the participants engaging in free deliberation amongst equals as the basis of their legitimacy and Cohen (1999) thinks that in this way deliberative democracy is able to address pluralism within a democratic process. Citizens find resolutions to problems of collective choice through public reasoning and establishing a framework for deliberation. It is a plural and diverse association that is committed to resolving problems through collective choice. This is assisted through each party not reaffirming self-interested or mandatory preferences or ideals.

The first step in collective choice is choosing an agenda, then the proposal of different solutions to that agenda with supportive reasoning, and finally settling upon an agreed solution. While all comprehend the necessity of their own good, in deliberative democratic decision-making they also share a commitment to finding decisions that are acceptable to all, even if it involves revising one’s own preferences and beliefs. Deliberation requires critical reasoning because it is not enough in pluralistic societies for people to provide reasons for decisions being based upon preferences, beliefs or ideals. The notion of autonomy is also important in a deliberative democracy, as preferences should be formed by agency rather than circumstance. Therefore, deliberation consists of assessing the common good from the basis of legitimate public reflection on what is an appropriate claim on public resources, rather than notions of preconceived ideas and interests (Cohen, 1997).

Historical injustice means injustices that have occurred across generations from oppressive social practices and institutions. These social practices legitimise exclusion and oppress certain groups because their features mark them as inferior to others. Through this oppression these social groups are vulnerable to exploitation, marginalization, powerlessness, cultural imperialism and violence. If this oppression occurs over a long period of time they become historical injustices. Historical oppression is unique in that it formulates identity in terms of conflict and opposition, leaving a stigma even after reparations have been reparations have been attempted. Indigenous cultures that have been conquered by settler colonial powers are an example of historical injustice. In attempting to address the plural dimensions of historical oppression, democratic inclusion must find a way of resolving these issues (Bashir, 2012).

Benjamin Barber (Young, 1989: 256) highlights the opposition between the general interests of the civic polity and the particular interests of private affiliations. Barber states that concepts of the common group are not enforced from a position of authority but agreed upon as part of a common project. Although Barber states that notions of belonging to particular groups are important as well for people, it could be that concepts such as universal citizenship and deliberative democracy may require a degree of impartiality that humans may not be able to practice (Young, 1989). People understand polity from their particular perspective and the narrower their perspective the narrower will be their political view. This occurs in societies where some are privileged while other are oppressed. To recommend that all citizens leave their perspectives and interests behind merely reinforces the privileged position of some and fails to redress the oppression, all the while silencing it by ignoring the perspective of the oppressed. Young (1989) argues that Barber confuses plurality with privatisation, stating that pluralism encourages particular private interest groups to assert their interests over others. She goes on that instead of unified public realm that does not disregard the particular perspectives of individuals but acknowledges the ‘desire to decide together the society’s policies’ (Young, 1989:258). Therefore Young suggests that there should be specific representation of disadvantaged groups in order to enact affirmative action with regard to their participation in the greater group, the greater group already having a strong enough voice (Young, 1989:262).

An objection to deliberative democracy is that its treatment of basic liberties is unacceptable because it is dependent upon a majority decision and restricts the liberty of individuals. Cohen (1997) responds to this objection by stating that deliberative democracy entails informed and autonomous judgements through public deliberations in which free and civil expression is allowed to take place. In this way it includes the individual in decisions for the majority. Another objection is that public deliberation is, in reality, irrelevant to modern political conditions. It is basically an objection that direct democracy cannot occur in modern conditions because the nature of our states is too large and complex in both population and institutions. Especially with regard to the globalization of citizenship in large conglomeration states like the European Union, this objection states that it is difficult to encourage citizens under such conditions of diversity to consider themselves equal participants in acts of cooperative deliberation (Cohen, 1997). By ensuring that institutions engaged in deliberative democracy have arenas through which citizens propose and debate issues for the political agenda, this objection seems nullified. If these institutions can act across communities and states, through the use of social media and online translators people can engage with each other on a local, national and international level.

Habermas advocated such a communitarian approach to democracy based upon mutual communication. In this way deliberative citizenship can use narratives of shared experience to address thinner concepts of liberal theory and particular interest groups. John Dewey termed this type of deliberative vision as a ‘shared way of life’. For Immanuel Kant, without ‘enlarged thought’ or public engagement in the decision-making process that includes other perspectives there is a failure in the human community to live wisely. If one loses touch with public conversation one becomes sensorily deprived ( Boyte, 1995). Addressing issues in the public sphere that involve marginalised social groups, such as indigenous, disabled, or ethnic minority groups, a necessary part of the political process is allowing those groups to become engaged in decision-making. Approaches to this could be through the convening of town meetings where citizens can be involved in discussing problems, and ensuring that election coverage gives voices to a broad range of citizens, especially those that are marginalised, as well as representatives. Civic journalism also can play a role in revealing conditions that may be hidden from the general civic polity (Sirianni and Friedland).

To ensure that institutions work within the desired parameters of a deliberative democracy, it is necessary to understand that material inequalities usually mean political inequalities. Being from a remote or poor community can mean that you have little chance to engage in the democratic process because of lack of access. Therefore, political parties that are able to be supported through public funding are an important enabling feature of deliberative democracy. In this way material disadvantage in the political arena can be overcome and ensures the manifest equality that is a part of the Rawlsian view. Also, by providing a diverse enough range of issues parties can ensure that debate is not restricted to certain issues and provide more open-ended accounts that can properly inform diverse understanding of the common good (Cohen, 1997).

Objections to deliberative democracy on the grounds that it is either too inclusionary or exclusionary are counteracted by methods of storytelling that include people who might otherwise have their voices silenced. Deliberative democracy can provide a solution to the challenge of pluralism in its insistence that participants are able to engage with each other equally and with liberty of deliberation. Critical reasoning is essential for deliberative democracy because it helps to take the decision-making beyond personal preferences and beliefs. Deliberative democracy should also be viewed as an egalitarian approach. Furthermore, through such a Rawlsian egalitarian approach the difference principle can apply and reconciliation between the general community and disenfranchised groups can occur. This is especially important when it comes to redressing historical injustices.

Deliberative democracy is a way in which those who have suffered from historical injustices can be included in the process of decision-making in an attempt to resolve their issues. Elements of affirmative action are advocated to become part of the arena of deliberative democracy to ensure that those people whose voices are usually silenced, such as the marginalised or oppressed, are included in the decision-making process. Liberty and autonomy are able to be protected in the process of deliberative democracy through public decision-making with all free and civil voices being included.

Finally, although modern states are large and populous, smaller arenas, such as social media, where people can voice their opinions on issues are becoming more popular and varied across the political sphere. Civic journalism and publicly funded political parties are also a good way to make sure that those who have little chance to engage in the democratic process have their material disadvantage addressed. Therefore, if the objections to deliberative democracy are addressed then it should be a successful basis for addressing the claims of marginalised social groups.

REFERENCES:

  1. Bashir, B. (2012), “Reconciling Historical Injustices: Deliberative Democracy and the Politics of Reconciliation”, in Res Publica, 18 (27), 2012, pp. 127-143
  2. Boyte, C.J. (1995), “Beyond Deliberation: Citizenship as Public Work”, Civic Practices Network, viewed on 5 May 2013 on http://www.cpn.org/crm/contemporary/beyond.html
  3. Cohen, J. (1997) “Deliberation and democratic legitimacy” in Deliberative Democracy: Essays on Reason and Politics , Bohman, James; Rehg, William , 1997 , pp. 67-91
  4. Cohen, J.  (1999),”Reflections on Habermas on Democracy”, in Ratio Juris, 12 (4),December 1999, pp. 385-416
  5. Dryzek, J (2000), Deliberative Democracy and Beyond: Liberals, Critics and Contestations, Oxford University Press Inc. New York
  6. Rawls, J., (1972), A Theory of Justice, Clarendon Press, Oxford
  7. Sirianni, C., & Friedland, L. (n.d.), “Deliberative Democracy”, Civic Practices Network, viewed in 5 May 2013 on http://www.cpn.org/tools/dictionary/deliberate.html emocracy reliescieties. cess ise issues.ther too inclusionary or exclusionary are conteracted by habit these societies. cess is
  8. Young, Iris Marion. “Polity and group difference: A critique of the ideal of universal citizenship” Ethics , 99:2 , 1989 , 250-274
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Amatya Sen claims that ‘capabilities’ provide the relevant evaluative space for understanding equality. However Sen’s theory has been criticised on the grounds that it does not provide sufficient specification of which functionings and capabilities are valuable. This essay investigates the capabilities theory with reference to this kind of criticism and finds that, on the basis of its reliance upon universal values of liberty and autonomy,  Martha Nussbaum’s development of capabilities theory could provide a possible framework for specifying valuable functionings and capabilities.
The capabilities approach is dependent upon the evaluation of those particular functionings that are concerned with the value of life. In the study prepared for the United Nations, Amartya Sen put forward the argument that the capability approach is an improvement on other theories of justice, such as utilitarianism, Rawlsian egalitarianism and libertarianism because it uses other informational focuses to consider social advantage (p.30). The main criticism of Sen’s approach is that it is considered vague in that it does not provide sufficient specifications as to what he thinks are valuable. Martha Nussbaum has taken Sen’s capability approach and put what she argues are universal and concrete values upon it, allowing it to become a theory of justice rather than simply an evaluative space for reckoning what values we should hold.

 SEN’S EVALUATIVE SPACE

Sen posits that his approach relies upon the functional states through which one can achieve quality of life. These include such functionings as being adequately nourished, having good health, and are functionings which would be obviously considered values by all. However, other functionings may be more complex but just as widely valued, such as belonging to a social group.  Sen stresses that, although individuals may differ in what they assess as valuable, it is important that these differences are acknowledged when assessing the capabilities that can be derived from these varied functions (Sen, 1993, p.31).

Therefore, Sen (1993, p.32) states that two necessary questions must be asked to evaluate these differing values:

1)      What is the object of the value?

2)      How valuable are the respective objects?

To identify the object of the value entails specifying what Sen terms as ‘the evaluative space’. For utilitarians this is usually defined as happiness or pleasure, whereas the capabilities approach entails identifying the evaluative space in terms of an individual’s capability to function. In this way the capability approach uses evaluative space to allow for a variety of human actions that are ends in themselves rather than means of living or freedoms, such as amounts of income, wealth, or resources etc. (1993, p.33). For Sen, when it comes to questions of freedom of choice then the criteria to be assessed must be linked to the evaluation of the range of capabilities that are open (1993, p.35).

An interesting point that Sen makes about the association of an evaluation of capabilities with freedom is that a person may have the advantage of more freedom than another but it may still result in her achieving less. For example, a person may have access to a capability such as a good education system but for reasons of personal characteristics, such as laziness or distraction, still not bother to achieve their best within it (1993, p.34). Therefore, Sen breaks down these associative values of human advantage as being:

1)      well-being achievement through the promotion of a person’s well-being;

2)      individual achievement through the pursuit of one’s goals; which result in:

3)      well-being freedom

4)      individual freedom (1993, p.34)

For Sen, the well-being of a person becomes an evaluation of the ‘wellness’ of that person rather than an evaluation of their contribution to the state or their success in reaching their goals. In this case, the functionings of the person will be comprised of the four elements above. With regard to this, the functionings of a person appear fundamental to the nature of their well-being, even if they are sourced externally from the person themselves, such as through the fulfilment of helping someone else (1993, p.36).

The functionings that assist well-being vary from the elementary, such as life-expectancy, to the complex, such as being a valued member of the community. The success of the agency of a person requires a broader assessment that can be narrowed to the evaluation of a standard of living to the broader sense of political freedom. It can even be said that the broader sense includes injuries to others, especially loved ones. These things all contribute to the success of someone developing an ability to be happy or the development of their well-being (1993, p.37).

An important thing to note is that, in Sen’s concept of evaluative space, capabilities are derived from functionings. The concepts of well-being and living standards belong to the assessment of functioning rather than capabilities. Therefore a capability is set in the space of functionings (1993, p.38). This calculus model can be used to assess basic needs and is crucial to the identification of capabilities. Sen states that an income-derived concept of poverty can be quite misleading when evaluation allows discrepancies in functionality. This is because the ‘poverty line’ in a developing nation may be quite distinct from that of developed nations (1993, p.40). Sen sees the most advantageous role of the capability approach being the ability to assess varied objects of value, rather than the utility-based approach of happiness or desire fulfilment as being the only value. It also does not place primary goods or resources as value objects, as do the Rawlsian and Dworkinian models (1993, p.44).

Sen (1993, p.49) thinks that it is in its plurality of purpose that that the capability approach works best, especially with regard to well-being and agency. This is especially relevant when judging standards of living and its particular usability lies in its egalitarian calculus that is dependent upon the truth of seeing individual advantages in capabilities and therefore its relevance to other sorts of social evaluation. In having the ability to assess the particular space for the evaluation of opportunities and successes of individuals, Sen asserts that the capabilities approach is an important addition to other theories of justice (1993, p.50).

NUSSBAUM’S UNIVERSAL APPROACH TO THE EVALUATIVE SPACE

Nussbaum takes Sen’s abstract mathematical calculus of functionings and put them into concrete terms through which constitutional guarantees can be drawn in civil society. This is Nussbaum’s universal approach (Nussbaum, 2000, p.70). Through applying concrete concepts Nussbaum breaks down standard theories of justice into questions that show how the capabilities approach can change someone’s life. The central question for Nussbaum is: “What is Vasanti actually able to do and to be?” The answer to this question is sought rather than the utilitarian approach: “How satisfied is Vasanti?”; or the  Rawlsian/ Dworkinian: “How much in the way of resources is Vasanti able to command? (2000, p.71)” For Nussbaum, the priority is to measure quality of life so that capabilities can match functionings. The next thing to do is to argue that if people fall below a functioning threshold that is necessary for justice then it should be considered urgent in terms of the injustice it creates (2000, p.71).

Nussbaum’s criteria is based upon the intuitive concept that particular functions are universal in human life and that it is these functions that separate us from other animals. Using the philosophy of Marx, she argues that humans need to be cultivated through education, leisure and self-expression, and also through socialisation with others. Nussbaum adds to this liberty of thought and association, as well as freedom of religion or worship, being fundamental to human autonomy (2000, p.72). A person has activities, goals and projects that are above the needs of nature and need support to fulfil these ideas. The essential element of this is that capabilities are sought for the individual, not groups or states or corporations. These entities can be valuable as means to ends but the well-being of the individual is the end itself (2000, p.74).

Nussbaum states that a list of concrete functionings cannot be a theory of justice however it does advise on what will be a minimum of social justice. She also adds that they could be adjusted to suit the various cultures that they encompass (2000, p.75). Nussbaum’s list of capabilities is a list in which all of the elements are distinct and equal in importance. She gives the example of the absence political rights not being able to be compensated by great economic growth (2000, p.81). Nussbaum states that the capabilities that go with these functionings are of three different types:

1)      Basic capabilities- innate equipment necessary for developing more advanced capabilities and morality, such as the capability of love, gratitude, reason and work;

2)      Internal capabilities- maturity, language, political reasoning, socialization, freedom of speech or religion; and

3)      Combined capabilities- where the environment is prepared so that individuals are able to exercise their major functionings (2000, p.85).

There is also a distinction between internal and combined capabilities in that when there is a sudden alteration in the environment in which the individual is placed, perhaps they have had to flee or migrate to another country, then they may not be able to enact their functionings. Nussbaum gives the example of a child who has never experienced freedom of speech or thought and is not able to develop the same capabilities as someone who was raised in a nation that protects these liberties. Nussbaum focuses on a social minimum of these capabilities as suitable for a system of justice (2000, p.86).

With regard to individual liberty and autonomy being safeguarded in such a system, Nussbaum states that it is important to note that ‘capability not functioning is the appropriate political goal (2000, p.87)’. This appears to coalesce with Sen’s evaluative space, where capabilities are derived from functionings. Nussbaum points out that the capabilities approach is much like Rawls’ notion of primary goods, but the difference between the capabilities approach and Rawls theory of justice is that it does not consider wealth and income as goals or ends, more a reliance upon Rawls’ natural goods such as ‘health, vigour, intelligence and imagination’ (2000, p.89). Capabilities are the things needed for functioning such that any rational being would want them. Even if one does not make use of all of them then no harm has been done if they had the choice (2000, p.88).

However, Nussbaum also states that it is important that capabilities such as bodily integrity may be regulated so as not to undermine the functionings of an individual. Although this may be seen as paternalistic it is perhaps synonymous with illegal contracts in that health and bodily integrity are so important to capabilities and functioning that there can be legitimate interference with choice up to a point (2000, p.95). This does seem to call into question whether Nussbaum would allow such choices as being a sex worker in her system of justice, but she does state that such decisions can be left to the democratic process in each nation (2000, p.95). Nussbaum also states that her list is not meant to be an exhaustive account of what is worthwhile in life and is a facilitation list rather than a tyrannical one (2000, p.95). Nussbaum contends that the political purpose of these capabilities is human well-being. She quotes Sen: ‘Political rights are important not only for the fulfilment of needs, they are crucial also for the formulation of needs. And this idea relates, in the end, to the respect that we owe each other as fellow human beings.’ (Sen, 1994, p.38)

Therefore Nussbaum sees her list of functioning capabilities as being closely aligned with universal human rights. They are quite similar to those initiated and enshrined in the Universal Declaration of Human Rights (UDHR) that was ratified in 1948, and have been used by many different peoples to assert justice. One of members of the drafting subcommittee of this document stated: “I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality”.(U.N. n.d.) Nussbaum’s list is intended to give fundamental access to capabilities in order to provide a stable society, which was also the intent of the UDHR. Nussbaum argues that these are not only Western notions of rights: “Ideas of activity and ability are everywhere, and there is no culture in which people do not ask themselves what they are able to do, what opportunities they have for functioning (2000, p.100)”. Considering that what differentiates humans from other animals is their need to realise their ideas, whether they be social, creative, technological, or scientific, it seems that Nussbaum’s argument about the universality of her functional capabilities is valid.

Rather than being a strict theory of justice, Sen’s capability approach has the ability to allow a framework that is both accommodating and adaptable. It has the ability to assess individual well-being and evaluate social arrangements so that policies may be designed that can enact just social change. Through being a practical guide it can inform citizens and governments of the directions that may provide desirable outcomes. While criticisms of Sen’s approach state that it is unclear about how it can be extended into a theory of justice, his non-commitment to single distributive rule allows his notions of functionings and capabilities to be a formula for an evaluative space through which justice may be approached. Nussbaum’s transfer of Sen’s evaluative space into a concrete list of functioning capabilities is comprehensive and is not limited to single-types of social systems but holds true for all human beings. Therefore both Sen’s formulaic approach and Nussbaum’s sufficient account of social justice could be used together to provide a constitutional guarantee of human rights.

REFERENCES:

  1. Nussbaum, M 2000, Women and Human Development: The Capabilities Approach, University of Chicago pp. 70-101
  2. United Nations (n.d.), Universal Declaration of Human Rights, viewed 5 April 2013, http://www.un.org/en/documents/udhr/index.shtml
  3. United Nations (n.d.), Universal Declaration of Human Rights: History of the Document, viewed 5 April 2013, http://www.un.org/en/documents/udhr/history.shtml
  4. Sen, A 1993, ‘Capability and Well-Being’, in M. Nussbaum & A. Sen (eds),The Quality of Life, Clarendon Press, Oxford pp. 30-52
  5. Sen, A, 1994, ‘Freedom and Needs’, The New Republic, January 10/17, pp. 31-38

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John Rawls’ “Theory of Justice” (1972) explains how social cooperation needs a system of justice and gives a basic idea of what justice means to the structure of society. Rawls presents the primary concept of justice as being fairness, an abstract extension of the social contract described by such philosophers as Locke, Rousseau and Kant. In Rawls’ theory, however, the social contract is replaced by a concept of an original position which allows for an original agreement on the principles of justice. Rawls contrasts this with the classical utilitarian view (p.3).

Rawls first considers the role of justice. He states that while society is seen as the cooperation of people for mutual advantage it also produces conflict through competing interests. Although social cooperation is the best way for people to better their lives there is a conflict of interests because people dispute inequalities of distribution of the products of society, or the goods produced through such cooperation. People tend to prefer a larger share to a lesser share. Therefore a set of just principles are needed to assign the rights and duties within societal institutions and define how benefits and burdens of societal cooperation are best distributed (p.4)

A just society is one where all know and accept the same principles of justice and the social institutions reflect these principles. Rawls maintains that human society needs a just charter to establish the limits of the pursuit of other ends and bring people with different aims and purposes together. Existing societies are usually in dispute about questions of justice. Rawls states that despite this they still have a concept of justice as being a set of principles that assign rights and duties and determine distribution of societal goods (p.5). For Rawls, the principles of justice should first identify the similarities and differences between people when establishing such assignments and distributions. Rawls states that individuals need to interact positively with each other so that their activities are compatible with each other and their plans can be carried through without infringing unjustly upon the rights of others. The outcomes of their plans should be compatible with justice. When justice is the priority of a social system it can be said that one notion of justice is preferable to another when its wider consequences are more beneficial (p.6).

Rawls next considers how best justice can serve a social system. He states that a just society’s institutions protect freedom of thought and conscience, free markets, private property, and the monogamous family. However, Rawls contends that such institutions are arbitrary in that there are inequalities within society that can affect an individual’s chances in life. Therefore, Rawls states that it is necessary for the principle of social justice to attend to these inequalities first in order to regulate the just economic and social system (p.7). Rawls goes onto say that it might be an idealistic theory but it provides the basis for the understanding of civil disobedience and allows an analysis of ‘the nature and aims of a perfectly just society’ (p.9).

Rawls puts forward the notion of an original agreement which posits that free and rational persons concerned with furthering their own interests would accept an initial position of equality (p.11). It is stated by Rawls that just as rational thinking determines what is in a person’s best interests so too can it also be extended to a group of people deciding what is just and unjust. So, Rawls describes a hypothetical original position which argues that there is no way of knowing where one’s place in society will be, what natural assets or liabilities they may have, or their intelligence or strength. Because of this, Rawls maintains that ‘the principles of justice are chosen behind a veil of ignorance’. In that way no one is advantaged or disadvantaged in the choice of principles of justice through inequalities of social circumstance (p.12). For Rawls the original position ensures ‘that the principles of justice are agreed to in an initial situation that is fair’. Therefore, Rawls states, when the social system enacts such principles of justice people will be able to cooperate with one another ensuring that their relationship is a fair one (p.13).

Rawls finally concludes that it would be questionable whether once these principles of justice, based upon an original agreement of equality, were in place that a principle of utility would be allowed. Rawls thinks that it is unlikely that people who consider themselves equal would allow a principle of justice that would require some to suffer inferior life prospects so that a greater utility could be enjoyed by a majority. In this regard utilitarianism seems incompatible with the notion of ‘social cooperation amongst equals for mutual advantage’. Instead of the principle of utility, Rawls contends that the person in a position of equality under the original agreement would choose two defining principles:

1)      that there is equality in the assignment of rights and duties;

2)      that inequalities of wealth and authority are only allowed if they result in compensating everyone, and especially the least advantaged.

Therefore, Rawls thinks that these principles rule out the utilitarian concept of allowing hardships for some if they are offset by a greater good for the many (p.14).

For the sake of survival rational people do not wish to be violated by others and they rely upon a system of justice to protect them from such violations. For Rawls, each person possesses such an inviolability based upon justice and the welfare of society as a whole cannot impinge upon these individual rights. For what if members of the majority were in the position of the minority, they would also want such a right to inviolability to be respected. Rawls argues that justice does not allow the loss of freedom for some to be made right by the greater good of the many. The accident of birth should not determine one’s liberties and for it to do so would be arbitrary rather than just. Under the veil of ignorance and the original position Rawls contends that each person would choose a society where they would respected with dignity even if they are a minority group. Rawls concludes that utilitarianism contradicts these basic precepts of justice, particularly those that concern liberty and rights. A utilitarian society is simply regarded as an efficient means through which the spreading of benefits can occur, and does not take into account the difference between persons. “Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests” (p.3).

  • Rawls, J., (1972), Theory of Justice, Clarendon Press, Oxford
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Neuroscience is making advances in mapping our brain. In doing so, it questions our fundamental beliefs about our autonomy within the law. However, to date, it still has not been successful in undermining principles of justice that have underpinned Western legal systems and international treaties for the past centuries. This essay provides a study upon what difference neuroscience makes, or not, to the law.

 

Neuroscience is an advancement in cognitive studies which has up until a few decades ago relied mostly upon behavioural studies. Presently there are claims made by corporations involved in neuro-technologies that claim to be able to detect deception accurately, and also to assess whether people have tendencies towards criminality. To study the issue of whether neuroscience in this capacity will not make a difference to the law, this essay will study the history of the cognitive sciences in the law, the claims of Greene and Cohen (2004) that state neuroscience makes no difference to the law, the philosophical and ethical issues that are fundamental to society and the law, and the claims and criticisms made about neuro-technologies such as functional magnetic resonance imaging (fMRI). This analysis concludes that for the foreseeable future neuroscience will make little difference to the law.

To assess whether neuroscience will not make a difference to the law it is necessary to look at the contributions that the cognitive sciences have made and whether they have helped to ascertain the responsibility of people under the law. The justice system relies upon defining the intentions of the defendant to judge whether they are guilty of breaching the law. To achieve this aim, often the cognitive sciences, such as psychology and psychiatry, are called upon for assistance. Eigen (2003, p.x) suggests that in the mid-nineteenth century it was not psychiatrists or legal professionals who identified the difference between insanity and the anomalous behaviour of unconsciousness, such as acts done whilst sleepwalking or from some other automatic reflex, it was the jury. It became necessary to have scientists ascertain the culpability of someone if there was a question of any mental disability, rather than have a non-professional jury assess this.

However, Eigen (2003, p.5) contends that during the nineteenth century, with more novel diagnoses becoming apparent at the courts, expert medical witnesses were at risk of twisting courtroom evidence and framing it within their own contexts. This threatened to displace the function of the jury and served as a critical point between the law and the emerging specialties and technologies of cognitive science.  According to Eigen (2003, p.6), there was an increasing judicial anxiety about insanity acquittals because of the growing diagnoses of different derangements that came before the courts explaining a person’s lack of accountability and moral agency. This is much like the contemporary dilemma with the use of new neuro-technologies and techniques that confront the law today in making assessments about people’s responsibility.  The question that arises is how much neuroscience should be included in the tools of the law for the aims of justice to be achieved.

Greene and Cohen (2004, p.1775) argue that neuroscience’s transformative effect on the law will come about by changing people’s understanding of the notion of ‘free will’. Free will is a problem because of our modern concept of the physical universe. They quote ( p.1777) Peter van Inwagen: “Determinism is true if the world is such that its current state is completely determined by i) the laws of physics, and ii) past states of the world. Therefore, if all is predetermined by physics then the idea of free will is an illusion.  However, although most philosophers and legal theorists accept determinism, many also find it compatible with free will. According to Greene and Cohen ( p.1777), compatibilists claim that free will is a persistent notion that is undeniable and that it is up to science to establish how it works. Greene and Cohen (p.1778) state that the standard legal account of punishment is compatibilist in order to allow for retribution. For Greene and Cohen (p.1779), neuroscience will not change the law because the law assumes a level of minimal rationality for people’s behaviour, rather than notions of free will. They go on to state that if neuroscience supports minimal rationality then there is no reason to think that it poses a threat to the determination of criminal responsibility (p.1779). Although new syndromes are announced as an excuse for criminal behaviour they will only have validity if they undermine one’s rationality in a significant way. Greene and Cohen (p. 1780) argue that neuroscience can be helpful in this way through being able to correlate behaviour with rationality and also helping people understand the mechanical nature of human action. Neuroscience promises to show the ‘when’, ‘where’ and ‘how’ of the mechanical process to be able to assess if someone truly deserves to be punished or if they are just a victim of their neuronal circumstances (p.1780). However, this type of technology may have profound impacts upon the ethical concepts that humans have formed over time in their societies, especially ones that pertain to the autonomy of the individual.

Philosophical and ethical thinking can help to align the law with the sciences through providing the tools with which to develop theories of responsibility and also assessing the ethics of new technologies (Tovino, 2007). Through the use of such studies, legislative, regulatory and judicial bodies can correlate legal processes with technological processes in an ethical manner, in particular when functional magnetic resonance imaging (fMRI) is combined with philosophical ethics (2007, p.44). This technology localizes changes in blood oxygenation in the brain and is used in neuroscience to map sensory, motor and cognitive function, and also physical and mental health conditions, behaviours and characteristics (p.44). The legal issues of fMRI extend beyond patient-physician relationships to confidentiality, privacy and research ethics (p.44).

Some have referred to fMRI as being too reliant upon interpretation to be reliable as evidence (Bizzi et al., 2009). As is noted by Tovino (2007, p.47), ‘Sometimes the difference between seeing higher activity in the parietal lobe compared to the occipital lobe is akin to deciding whether Van Gogh or Matisse is the more colourful artist’.  Tovino (p. 47) also includes a quote from Donaldson: ‘What constitutes a “significantly greater” activation is in a way in the eye of the beholder’. With commercial fMRI companies claiming up to 99% infallibility and areas of use to include risk reduction in dating, insurance verification and employee screening, privacy and confidentiality also become issues, especially if these claims are misleading (p.47). Tovino (p.48) quotes Greely and the U.S. Committee on Science and Law in stating that advances in fMRI threaten ‘to invade the last inviolate area of “self” and have been coined as ‘neuroprivacy’ issues.  Therefore, the questions that Tovino poses are: Is it deceptive to say that an fMRI test is objective, fully automated and infallible? (p.47), and: Will future fMRI tests require heightened confidentiality and privacy protections? (p.48).

These are important questions because of expressions of rights of freedom constructed in international treaties. In Stacy v Georgia, the seminal ‘privacy of thought’ case, the U.S. Supreme Court stated that, ‘also fundamental is the right to be free, expect on very limited circumstances, from unwanted governmental intrusions into one’s privacy’ (Glenn, 2005, p.61). That Court also states in Lawrence v Texas: ‘Liberty presumes an autonomy of self that includes freedom of thought, expression and certain intimate conduct’ (2005, p.61). A fundamental principle of democracy is our accusatory system of criminal justice, which demands that the government in seeking to establish the guilt of an individual produce evidence against him/her by their own independent labours, rather than by compelling it from his/her own mouth (Miranda v Arizona, 1966 at 460) (Tovino, 2007, p.50).

However, some objections to fMRI being argued against on these self-incrimination grounds are that DNA, blood tests, mental examinations, urinalysis, fingerprints are all means of admissible evidence that are used in courts today, so why not fMRI (Tovino, 2007, p.51)? Some questions for counterarguments could be: Does this address the implications involved in seizing an individual’s ‘privacy of thought’? Is fMRI reliable and accurate in identifying or diagnosing physical and mental conditions, behaviours or characteristics? Are such tests as effective as DNA or blood and alcohol tests, or are there more effective methods of identifying target condition? Also, who would be the authority that could gather such data from a brain scan and what precautions and protocols should be followed (p.51)? Although neuro-imaging has been effective in showing courts the diminished responsibility of adolescents on death row (p.52), and discovering brain tumors that may affect responsibility (Burns, 2003, p.48), many lawyers still argue that data gathered from fMRI should not be legally admissible evidence (Tovino, 2007, p.53).

For some philosophers, the citation of neuro-technologies, such as fMRI, as evidence in law is problematic. Fine (2010, 281) states that the problem with advances in neurosciences is that ‘we still have minimal understanding of how neural structures contribute to complex psychological phenomena’. The complex nature of brain structure makes it difficult to attribute behavioural conditions or characteristics to it.  Statistics and data gathered from procedures that involve neuro-technologies may be inadequate or inappropriate (p.281), especially for making assumptions with which to convict someone. Too many assumptions are made about a structure that is extremely complex and massively interconnected to imply a psychological construct that leads to an individual’s imprisonment.

Fine (2010, p.281) contends that inferring a mental process from a significant oxygenation of a particular area of the brain is a reverse inference and fraught with too many difficulties to attribute specific brain functions to various brain regions. For Fine (p.281), the entire brain may not be involved in a particular function and ‘there is no one-to-one mapping between brain regions and psychological processes. Cognition arises through complex interaction of brain areas, with any single region being involved in a number of processes (p.281). This makes it ambiguous as to the amount of psychological implications that can be derived from the amount of activity in particular regions of the brain. Also data acquisition from fMRI is slow which limits psychological interpretations that can be inferred from brain events (p.282). Weisberg et al. (2008, p.20) states that neuroscience has an appeal that relies upon assumptions of infallibility which allows people to find circular explanations of psychological phenomena from information about brain responses acceptable. This is problematic in a courtroom where a judge or jury might accept such scientific evidence without further validation.

Deception detection is one of the areas hailed by those who use fMRI commercially as able to revolutionize testimony in court. However, there is some doubt as to the veracity of such claims. Kanwisher (2009, p.11) points to three exceptionally successful individual subject studies that have been conducted. These three studies analysed two sets of fMRI data that were used to distinguish lies form truth (p.11). However, according to Kanwisher (p.11) in two of the studies lies were not examined but target deception events. From the successful outcomes of these studies, with correct response rates of 90%, 76% and 89% respectively, it appears that classification and imaging methods are rapidly improving (p.11). However, Kanwisher (p.12) points out that this success rate may not be able to be reflected in the real world, and argues that lie detection within a laboratory environment is completely different to lie detection in the real world. Firstly, the subjects are making an instructed false response not a lie. Secondly, real life situations differ in that the stakes are much higher for the subjects. This could cause anxiety whether a subject was guilty or not (p.12). Also, a subject could be uncooperative and fMRI is useless if a subject moves at all (p.12). It would be impossible for such studies to even remotely mimic real life situations as they would need a subject population of defendants suspected of serious crimes. Also, the experimenter would need to know whether the subject was lying for verification of the test (p.12). Therefore it seems impossible to conduct studies to mimic real life situations for ethical and practical reasons.

As neuro-technologies become more advanced they could indeed show us, as Greene and Cohen assert, that our actions are predetermined. However, for an ordered society the law requires us to be responsible for our actions and for this it requires minimal rationality. Behavioural psychologists and psychiatrists are already able to assess people’s minimal, rational psychological states. Neuro-technologies, such as fMRI can also show physical disabilities within the brain. However, for the foreseeable future, to use fMRI  for such purposes as deception detection or to assess whether people have a tendency towards criminal behaviour is spurious. Therefore, neuroscience makes little difference to the law.

 

 

 

 

REFERENCES

 

  1. Eigen, J.P., (2003) Unconscious crime: Mental absence and criminal responsibility in Victorian London, John Hopkins University Press, Maryland
  2. Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton
  3. Tovino, S. A., (2007), “Functional neuroimaging and the law: Trends and directions for future scholarship”, American Journal of Bioethics , 7:9 , 2007 , pp.44-56
  4. Glenn, L. M. (2005), Keeping an open mind: What legal safeguards are needed? American Journal of Bioethics 5(2), p.60-61
  5. Burns, Jeffrey M; Swerdlow, Russell H. (2003), “Right orbitofrontal tumor with pedophilia symptom and constructional apraxia sign” Archives of Neurology , 60:3 , 2003 , 437-440
  6. Fine, C. (2010) “From scanner to sound bite: Issues in interpreting and reporting sex differences in the brain” Current Directions in Psychological Science , 19:5 , 2010 , 280-283
  7. Weisberg, D.S., Keil, F.C., Goodstein, J., Rawson, E., & Gray, J.R. (2008), “The seductive allure of neuroscience explanations” Journal of Cognitive Neuroscience, 20, 470–477.
  8. Kanwisher, N.  (2009), “The Use of fMRI in Lie Detection: What Has Been Shown and What Has Not”, Bizzi et al., 2009, Using Imaging to Detect Deceit: Scientific and Ethical Questions, American Academy of Arts and Sciences, Cambridge MA

Global protest has been prominent since the late 1990s. It is a reaction to dominant forces of multinational corporations undermining democratically elected governments, and the people’s own identity through citizenship, across the globe. For a few years these protests were quelled because of the threat of terrorism. However, since the new global financial crisis that began in 2008 which evidenced the complete and utter disregard that these corporations, citing their status as natural persons, have had for the real occupants of the world, new protest movements are burgeoning everywhere. It is imperative that we contemplate the vastness and autonomy of these corporations and perceive how global governance must be consolidated to be able to harness such forces for the peace and security of all. Therefore, a global social contract must be established.

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Monoprints by Janet Elizabeth Thomas (2010)

 

 

 

 

 

 

 

Afternoon, 2007, oil on canvas

The Captives, 2010, egg tempera, pigment and mixed media on board