Showing papers on "Doctrine published in 2011"

The Kingdom and the Glory: For a Theological Genealogy of Economy and Government

Abstract: Why has power in the West assumed the form of an "economy," that is, of a government of men and things? If power is essentially government, why does it need glory, that is, the ceremonial and liturgical apparatus that has always accompanied it?In the early centuries of the Church, in order to reconcile monotheism with God's threefold nature, the doctrine of Trinity was introduced in the guise of an economy of divine life. It was as if the Trinity amounted to nothing more than a problem of managing and governing the heavenly house and the world. Agamben shows that, when combined with the idea of providence, this theological-economic paradigm unexpectedly lies at the origin of many of the most important categories of modern politics, from the democratic theory of the division of powers to the strategic doctrine of collateral damage, from the invisible hand of Smith's liberalism to ideas of order and security.But the greatest novelty to emerge from The Kingdom and the Glory is that modern power is not only government but also glory, and that the ceremonial, liturgical, and acclamatory aspects that we have regarded as vestiges of the past actually constitute the basis of Western power. Through a fascinating analysis of liturgical acclamations and ceremonial symbols of power-the throne, the crown, purple cloth, the Fasces, and more-Agamben develops an original genealogy that illuminates the startling function of consent and of the media in modern democracies. With this book, the work begun with Homo Sacer reaches a decisive point, profoundly challenging and renewing our vision of politics.

'Leading from Behind': The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention After Libya

Abstract: Humanitarian intervention has always been more popular in theory than in practice. In the face of unspeakable acts, the desire to do something, anything, is understandable. States have tended to be reluctant to act on such desires, however, leading to the present situation in which there are scores of books and countless articles articulating the contours of a right - or even an obligation - of humanitarian intervention, while the number of cases that might be cited as models of what is being advocated can be counted on one hand. So is Libya such a case? It depends on why one thinks that precedent is important. From an international legal perspective, debates have tended to focus on whether one or more states have the right to intervene in another for human protection purposes. From the standpoint of international relations and domestic politics, the question is whether states have the will to intervene. From a military angle, a key dilemma is whether states have the ability to intervene effectively. This essay considers these three issues in turn. The legal significance of Libya is minimal, though the response does show how the politics of humanitarian intervention have shifted to the point where it is harder to do nothing in the face of atrocities. At the same time, however, military action to the end of May 2011 suggested a continuing disjunction between ends and means.

Commensurability and Agency: Two Yet-to-Be-Met Challenges for Law and Economics

Abstract: This paper identifies two normative challenges to law and economics. The first challenge relates to commensurability and the second focuses on agency, in particular the agency of the state. The first part of the paper establishes that under the current legal system not all potential outcomes are comparable to one another in the way dictated by law and economics. Most significantly, the legal system refuses to translate high risks to life into monetary term; it refuses to explicitly concede that different lives have different values; and it refuses to trade basic human rights (for example, the right not to be tortured) for monetary or proprietary interests. We show that the traditional tools of law and economics cannot explain such rules and we identify alternative non-economic explanations. The second part of the paper examines who can be an agent acting in the name of the state. Economic analysis identifies the proper agent to discharge any task exclusively on the basis of its efficacy in discharging the task. In contrast we argue that there are deeply held convictions (and legal doctrines) requiring that certain tasks ought to be performed only by public officials (irrespective of their efficacy). Such a performance is necessary for dignity-based reasons. This analysis explains the doctrine of inherently governmental functions and the resistance to certain forms of privatization.

Pluralism, Deference and the Margin of Appreciation Doctrine

Abstract: In this article it will be argued that good use of the instrument of deference might help the EU courts to deal with the situation of pluralism that is currently visible in the European legal order. By means of deferential judicial review, the EU courts can pay due respect to national constitutional traditions and to national legislative and policy choices, thus preventing situations of real conflict. In addition, deference enables the EU courts to take into account the intricacies related to judicial review of norms drafted by co‐equal institutions or by national elected bodies. Although the EU courts already make use of some form of deferential review, they may use the instrument in a clearer and more structured manner. As a basis for the development of a European ‘doctrine of deference’, a comparison will be made with the margin of appreciation doctrine devised by the European Court of Human Rights. Although this doctrine is certainly not fault‐free, it offers a number of advantages in terms of clarity and controllability. If improved and adapted on the basis of theoretical notions of procedural democracy, the doctrine might be put to good use by the EU courts.

The Monroe Doctrine: Empire and Nation in Nineteenth-Century America

Abstract: A succinct, analytical history of the Monroe Doctrine from its inception in 1823 to its broad extension in the early twentieth century, this book explains in vivid detail this cornerstone of American foreign policy. Covering more than a century of history, Jay Sexton, who teaches American history at the University of Oxford, explores the varying conceptions of the doctrine as its meaning was distorted over the course of decades to further an ever-expanding American empire. When in 1823 President Monroe issued his vaguely worded declaration that the United States would not allow European states to further colonize the western hemisphere, America had little means of enforcing it. The doctrine proclaimed anti-colonial principles, yet it rapidly became the myth and means for subsequent generations of politicians to pursue expansionist foreign policy agendas. Time and again, debates on the key issues of nineteenth- and early twentieth- century foreign relations - expansion in the 1840s, the imperialism of 1898, entrance into World War I and the League of Nations - were framed in relation to the Monroe Doctrine. In Sexton's adroit hands, the doctrine provides a new lens from which to view the still-unresolved question at the centre of American diplomatic history: the nation's contradictory traditions of anti-colonialism and imperialism.

Hughlings Jackson’s neurological ideas

Abstract: Hughlings Jackson's neurological ideas are scientifically valid and practically useful. He began by emphasizing the focal lesion as the key to analysing patients' symptoms. He proclaimed that 'Epilepsy is the name for occasional, sudden, excessive, rapid, and local discharge of grey matter.' He eliminated any need for a direct appeal to metaphysical agents by asserting that the nervous system is an exclusively sensorimotor machine constrained by the newly discovered conservation laws. In constructing his neurophysiology he accepted the phrenological assumption that the nervous system is composed of a number of physiologically discrete organs, each with a single function accessible to the diagnostician. By observing the march of epileptic seizures he developed the idea of somatotopic representation. He claimed that the nervous system is an evolutionary hierarchy of three levels connected by the process of weighted ordinal representation. His assertion of the Doctrine of Concomitance further separated the concerns, and the institutions, of the neurophysiologist from that of the psychiatrist. He came to reject the idea of the unconscious because he could not observe unequivocally unconscious behaviour at the bedside. Each of these ideas emerged from contemporaneous scientific streams, but Hughlings Jackson was the one to incorporate them into practical medicine. These neurological ideas gave physicians the methods, tools, principles and structures with which to establish a new science of clinical neurology.

Biblical Sources in the Development of the Concept of the Soul in the Writings of the Fathers of the Early Christian church, 100-325 C.E.

Abstract: BIBLICAL SOURCES IN THE DEVELOPMENT OF THE CONCEPT OF THE SOUL IN THE WRITINGS OF THE FATHERS OF THE EARLY CHRISTIAN CHURCH, 100-325 C.E.

The Doctrine of Necessity Examined

Abstract: This chapter examines the common belief that every single fact in the universe is precisely determined by law. It must not be supposed that this is a doctrine accepted everywhere and at all times by all rational men. Necessitarianism and materialism with the Stoics went hand in hand, as by affinity they should. At the revival of learning, Stoicism met with considerable favor, partly because it departed just enough from Aristotle to give it the spice of novelty, and partly because its superficialities well adapted it for acceptance by students of literature and art who wanted their philosophy drawn mild. The necessitarian may say there are, at any rate, no observed phenomena which the hypothesis of chance could aid in explaining. Necessitarianism cannot logically stop short of making the whole action of the mind a part of the physical universe.

The Inflation of the Margin of Appreciation by the European Court of Human Rights

Abstract: The doctrine of the margin of appreciation, despite being repeatedly used by the European Court of Human Rights, is still to some extent mysterious. Given the doctrine's ambiguity, this article fir...

Strategic Communication: Origins, Concepts, and Current Debates

Abstract: This volume in the Contemporary Military, Strategic, and Security Issues series presents a concise introduction to the evolution, key concepts, discourse, and future options for improved strategic communication in today's U.S. government. * Key document excerpts from legislation, proposed legislation, doctrine, reform proposals, and policy documents * A glossary of terms * An annotated bibliography of proposals and recommendations for strategic communication/public diplomacy reform

“Leading from Behind”: The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention after Libya

Abstract: Humanitarian intervention has always been more popular in theory than in practice. In the face of unspeakable acts, the desire to do something, anything, is understandable. States have tended to be reluctant to act on such desires, however, leading to the present situation in which there are scores of books and countless articles articulating the contours of a right—or even an obligation—of humanitarian intervention, while the number of cases that might be cited as models of what is being advocated can be counted on one hand.

Neuroethics: A New Way of Doing Ethics

Abstract: The aim of this article is to argue, by example, for neuroethics as a new way of doing ethics. Rather than simply giving us a new subject matter—the ethical issues arising from neuroscience—to attend to, neuroethics offers us the opportunity to refine the tools we use. Ethicists often need to appeal to the intuitions provoked by consideration of cases to evaluate the permissibility of types of actions; data from the sciences of the mind give us reason to believe that some of these intuitions are less reliable than others. I focus on the doctrine of double effect to illustrate my case, arguing that experimental results suggest that appeal to it might be question-begging. The doctrine of double effect is supposed to show that there is a moral difference between effects that are brought about intentionally and those that are merely foreseen; I argue that the data suggest that we regard some effects as merely foreseen only because we regard bringing them about as permissible. Appeal to the doctrine of double ...

Defining the Space of Transnational Law: Legal Theory, Global Governance & Legal Pluralism

Abstract: Transnational law, since its iteration by Philip Jessup in the 1950s, has inspired a league of scholars to investigate into the scope, doctrine, sources and practice of border-crossing legal regulation. This paper reviews much of this preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism. These debates are no longer confined to international lawyers or political scientists. Together with anthropologists, sociologists, geographers and legal philosophers and legal theorists, these scholars have been significantly widening the scope of their investigation. The current, multi - and interdisciplinary research into the prospects of political sovereignty, democratic governance and legal regulation on a global scale suggests a further continuation of such intellectual bricolage and collaboration. The here presented paper builds on a larger research project into the methodology of transnational law and suggests that we ought to revisit legal sociological insights into the emergence of legal pluralism to make sense of today’s co-evolution of ‘formal’ and ‘informal’, ‘public’ and ‘private’ laws – and social norms.

Doctrine for Cybersecurity

Abstract: A succession of doctrines for enhancing cybersecurity has been advocated in the past, including prevention, risk management, and deterrence through accountability. None has proved effectiv...

Population and Affective Perception: Biopolitics and Anticipatory Action in US Counterinsurgency Doctrine

Abstract: This paper analyses the biopolitical logics of current US counterinsurgency doctrine in the context of the multiple forms of biopower that make up the “war on terror”. It argues that counterinsurgency doctrine aims to prevent spectral networked insurgencies by intervening on the “environment” of insurgent formation—the relations between three different enactments of “population” (species being, logistical life and ways of life) and a fourth—affectively imbued perception. Counterinsurgency is best characterised, then, as an “environmentality” (Foucault M 2008 The Birth of Biopolitics: Lectures at the College De France, 1978–1979. Translated by G Burchell. London: Palgrave Macmillan) that redeploys elements from other forms of biopolitics alongside an emphasis on network topologies, future-orientated action and affective perception.

The role of state wildlife professionals under the public trust doctrine

Abstract: The Public Trust Doctrine (PTD) is considered the cornerstone of the North American Model of Wildlife Conservation. Effective application of the PTD requires a clear understanding of the doctrine and appropriate behavior by trustees, trust managers, and beneficiaries. Most PTD literature refers generically to the role of the government as the people's trustee, without addressing the differences between the legislative, executive, and judicial branches of government in the United States or recognizing the distinction between elected and appointed officials and career civil servants. Elected and appointed officials, especially in the legislative branch, have policy-level decision-making authority that makes them trustees of the people's wildlife under the PTD. In contrast, career professionals working for state wildlife agencies (SWA's) have ministerial duties as trust managers. The differences between the roles of trustees and trust managers are important. By focusing on their role as trust managers, while supporting and respecting the role of elected and appointed officials as trustees, SWA professionals can more effectively advance application of the PTD. 2011 The Wildlife Society.

Events: The force of international law

Abstract: Foreword, Martti Koskenniemi 1. Introduction, Fleur Johns, Richard Joyce & Sundhya Pahuja 2. The International Law in Force: Anachronistic Ethics and Divine Violence, Jennifer Beard 3. Absolute Contingency and the Prescriptive Force of International Law, Chiapas-Valladolid, ca. 1550, Oscar Guardiola-Rivera 4. Latin Roots: The Force of International Law as Event, Peter Fitzpatrick 5. Westphalia: Event, Memory, Myth, Richard Joyce 6. The Force of a Doctrine: Art. 38 of the PCIJ Statute and the Sources of International Law, Thomas Skouteris 7. Paris 1793 and 1871: Levee en Masse as Event, Gerry Simpson 8. Decolonisation and the Eventness of International Law, Sundhya Pahuja 9. Postwar to New World Order and Post-Socialist Transition: 1989 As Pseudo-Event, Scott Newton 10. The Liberation of Nelson Mandela: Anatomy of a "Happy Event" in International Law, Frederic Megret 11. Political Trials as Events, Emilios Christodoulidis 12. The Tokyo Women's Tribunal and the Turn to Fiction, Karen Knop 13. Many Hundred Thousand Bodies Later: An Analysis of the `Legacy' of the International Criminal Tribunal for Rwanda, Denise Ferreira da Silva 14. From the State to the Union: International Law and the Appropriation of the New Europe, Patricia Tuitt 15. The Emergence of the World Trade Organization: Another Triumph of Corporate Capitalism? Fiona Macmillan 16. The World Trade Organisation and Development: Victory of `Rational Choice'? Donatella Alessandrini 17. Protesting the WTO in Seattle: Transnational Citizen Action, International Law and the Event, Ruth Buchanan 18. Globalism, Memory and 9/11: A Critical Third World Perspective, Obiora Chinedu Okafor 19. Provoking International Law: War and Regime Change in Iraq, John Strawson 20. The Torture Memos, Fleur Johns

A programme of global pacification

Abstract: This article argues that US counterinsurgency doctrine forms a programme of both liberal rule and liberal war whose ultimate purpose is the pacification of recalcitrant populations and their eventual (re)integration into the networks of liberal governance. Designed to promote ‘safe’ forms of life while eradicating ‘dangerous’ ones, the doctrine constitutes a response to both the biopolitical problematization of human (in)security and the geostrategic problematization of US national security. Counterinsurgency aims to harness sociocultural knowledge in order to conduct a form of triage between elements of targeted populations. It also seeks to inscribe the divisions on which such a triage is based into space by means of practices that derive from earlier methods of imperial policing. Ultimately, counterinsurgency’s production and implementation of a biopolitical differentiation between ‘safe’ and ‘dangerous’ human lives is likely not only to reinforce existing societal divisions within targeted populations...

What if Madison Had Won? Imagining a Constitutional World of Legislative Supremacy

Abstract: Identifying the proper degree of federal supremacy and the best means of building it into the constitutional structure were central concerns for many members of the founding generation. At the Constitutional Convention, James Madison proposed granting Congress the power to veto state legislation. Madison’s “negative” was intended to connect Congress and the states in a single compound legislature, giving Congress the power either to veto or to ratify by silence the acts of state legislatures. The negative failed to gain the approval of the convention delegates, however, and they instead chose to build federal supremacy into the Constitution via the judiciary-centered mechanisms of the Supremacy Clause and Article III. This essay asks what would have happened if Madison’s negative had carried the day, and the Constitution had implemented federal supremacy by way of a legislative rather than a judicial device. One potential answer is that the negative should be understood as the functional equivalent of modern preemption doctrine. Had the negative been incorporated into the Constitution in 1787, however, the combined force of the negative’s distinctive characteristics might well have led not to a stronger union but to forceful resistance to federal power by diverse state legislatures in a variety of circumstances. Two nineteenth-century case studies illustrate this point: the controversy over the Bank of the United States, and the debate over Congress’s power to supplant state legislation in the area of interstate commerce. In contrast to Madison’s and many modern commentators’ understanding of the negative as a highly centralizing mechanism, these case studies show that the negative would likely have led to fragmentation and disintegration between the federal center and the state peripheries long before the antebellum sectional crisis.

Meaning Schematics in Cavell's Kantian Reading of Wittgenstein

Abstract: A distinctive feature of Cavell’s reading of the Philosophical Investigations is the extent to which he takes Wittgenstein’s account of language to constitute a translation of the Kantian project of laying out the conditions of possibility of experience, “so that it speaks not alone of deducing twelve categories of the understanding but of deriving – say schematizing – every word in which we speak together “(Conditions Handsome and Unhandsome, p. 39). The specific inflection of the kinship between Kant and Wittgenstein established by Cavell’s reference to the doctrine of the schematism will be followed in my paper, taking it as a schema for bringing together moments of his reading of the Philosophical Investigation. Certain characteristic features associated by Kant with the schematism of concepts will be translated in my paper into moments that Cavell identifies in Wittgenstein’s investigation of the grammar of language. In particular, I take it that Cavell provides the terms in which to conceive of the central function of the imagination in the investigation of criteria as well as of the proper understanding of the dimension of life internal to our use of concepts. Cavell’s reading of Wittgenstein further brings out the temporality internal to an investigation of language whose three moments I distinguish as “projection”, “presentation” and “return”.

Making Sense of Fair Use

Abstract: Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine’s chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts’ embrace of the transformative use doctrine. In light of these developments, adding an historical dimension to a study of fair use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme.

Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law

Abstract: This article considers a novel and potentially controversial issue: whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts. International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states. Yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. In analyzing the potential role that such actors could play in law creation, we reject the traditional state/non-state distinction underlying the doctrine of sources in favor of a tripartite framework of states, state empowered bodies (such as international courts and international governmental organizations), and non-state actors (such as individuals, businesses, NGOs and armed groups). Focusing on the last category, we explore various theories for justifying some or all non-state actors playing a role in international law-making. In particular, we assess the merits of giving armed groups a role in the creation of international humanitarian law applicable in non-international armed conflicts. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states. Accordingly, we put forward a theory of hybrid sources under which armed groups could be permitted to recognize existing international obligations or undertake new ones, without raising concerns about placing armed groups and states on a par or downgrading international legal standards.

The dangerous myths and dubious promise of COIN

Abstract: Counterinsurgency (COIN) has again emerged as a topic of both contemporary and historical interest in the age of what has been called a global counterinsurgency. However, little attention is being paid to the historical lineage of a COIN doctrine that is being rediscovered and promoted by an enthusiastic group of military intellectuals and commanders as the basis for US Army and Marine Corps doctrine. This article argues that historical claims for COIN success, based on courting popular gratitude by improving economic conditions, are at best anchored in selective historical memory, when not fantasy fabrications. The first argument of this article is that COIN does not constitute a distinct form of warfare, but merely a sub-set of minor tactics. Second, ‘hearts and minds’, so-called population-centric warfare, has seldom been a recipe for lasting stability. Rather, historically counterinsurgency succeeded when it has shattered and divided societies by severely disrupting civilian life. In fact, COIN is a n...

The Myth of British Minimum Force in Counterinsurgency Campaigns during Decolonisation (1945-1970)

Abstract: This article argues that the dominant paradigm in studies of British small wars positing a central role of minimum force in doctrinal guidelines for counterinsurgency needs to be even more fundamentally revised than has been argued in recent debates. More specifically, it argues that minimum force is nowhere to be found in British doctrine during the small wars of decolonisation. The need for revision also applies to the way British counterinsurgency is usually sharply contrasted with French counterinsurgency. British doctrine during this period is better understood when placed in its proper historical context. This means comparing it with the other two most significant examples of doctrinal development for small wars of decolonisation - those of France and Portugal. This comparison shows that British counterinsurgency was not uniquely population-centric, and this characteristic cannot, therefore, be the reason for its arguably superior if far from infallible performance. Evidence for these arguments comes primarily from doctrinal sources developed specifically to deal with counterinsurgency, complemented with insights from key military thinkers and archival sources of relevance practices. Some wider implications of this analysis for the relationship between combat experience and doctrinal develop- ment as well as for counterinsurgency are identified.

Manpower and Counterinsurgency: Empirical Foundations for Theory and Doctrine

Abstract: How does manpower affect counterinsurgency? Important debates about counterinsurgency theory, military doctrine, force planning, and ongoing military operations revolve around assumptions about the role manpower plays in determining counterinsurgency outcomes. But these assumptions have not, by and large, been subjected to large-n analysis. This paper helps serve that role by examining new data on counterinsurgents’ deployments across 171 campaigns since World War I. These data provide insight into a range of important issues, such as how force size should be measured, whether it is related to counterinsurgent success, whether troop nationality matters, and whether the role of manpower varies across contexts. Of these findings, the most notable is that conventional rules of thumb for force sizing, including the recommendation put forth in official US military doctrine, receive no empirical support. These findings therefore challenge the prevailing wisdom, while laying the groundwork for a range of future ...

A new International Law of citizenship

Abstract: Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms. Historically, citizenship status has been considered a matter of national self-definition, jealously insulated more as a matter of reflex than justification. Nationality has been equated with identity, in most cases coinciding with ethnic, religious, or other sociocultural community markers, which, in turn, have more or less mapped onto territorial spaces.

Critical Perspectives on the Responsibility to Protect : Interrogating Theory and Practice

Abstract: This edited volume critically examines the widely supported doctrine of the 'Responsibility to Protect', and investigates the claim that it embodies progressive values in international politics. Since the United Nations World Summit of 2005, a remarkable consensus has emerged in support of the doctrine of the ‘responsibility to protect’ (R2P) – the idea that states and the international community bear a joint duty to protect peoples around the world from mass atrocities. While there has been plenty of discussion over how this doctrine can best be implemented, there has been no systematic criticism of the principles underlying R2P. This volume is the first critically to interrogate both the theoretical principles and the policy consequences of this doctrine. The authors in this collection argue that the doctrine of R2P does not in fact embody progressive values, and they explore the possibility that the R2P may undermine political accountability within states and international peace between them. This volume not only advances a novel set of arguments, but will also spur debate by offering views that are seldom heard in discussions of R2P. The aim of the volume is to bring a range of criticisms to bear from a variety of disciplinary perspectives, including international law, political science, IR theory and security studies. This book will be of much interest to students of the Responsibility to Protect, humanitarian intervention, human security, critical security studies and IR in general.