Implicit Reliance Research Articles

Peter H. Sand, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik

There are many ways of looking at the international system, but two dichotomies stand out: there are those who believe international behaviour is primarily motivated by systemic forces and those who believe that the internal composition of the individual units dramatically affects how they act internationally, and especially that democratic polities are more peaceful and law-abiding than others. Like many essentially untestable hypotheses, the debate between these two positions has resisted a clear resolution. One of the reasons the debate has been so vicious and largely unproductive lies in its implicit reliance on the other, even less testable dichotomy in international affairs, viz. the disputed nature of man as primarily good or primarily evil,1 which is closely linked to the legal debate about the sources of obedience to law.2 International law as a discipline usually does not engage in speculation about the nature of the international system. It does, nevertheless, rest on the strong, if implicit, assumption that law has a system-defining existence and that states will obey it. To be sure, this belief is not necessarily utopian but can be empirically verified as fairly accurate,3 for, as Henkin famously observed, �almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time�.4 But what when they don�t? More damaging still, what if the law-breaker is doing so persistently, with alacrity and great intellectual, if not criminal, creativity and energy, all the while maintaining a professed reverence for legality?5 Such persistent violation under the legalistic cover of �plausible deniability� will negatively affect the integrity of international law, and the present book is the somewhat disillusioning account of that negative impact. For those not familiar with the events, the sorry story is quickly told:6 worried about �

Investment Protection Law and Systemic Integration of Treaty and Custom

The creation of contemporary treaty-based structure of investment law may be traced to earlier skepticism about the adequacy or appropriateness of protection provided by customary investment law. The relationship of the results of recent efforts of law-making with customary rules is different both in nature and in clarity. The experience of the last decade permits testing theoretical assumptions about systemic integration against the benchmark of existing practice. The issue is addressed in two steps, first formulating an analytical perspective and then applying it to three case studies. First of all, VCLT Article 31(3)(c) may bring ‘relevant’ customary law into the interpretative process, suggesting either a narrow or broad reading of relevance. Express or implicit reliance or exclusion of custom, subsequent practice by States, the historical perspective of law-making, and theory of State responsibility are helpful in identifying the ‘relevance’ of custom. Secondly, the descriptive and prescriptive implications of systemic integration are demonstrated on the basis of three case studies. First of all, diplomatic protection is sometimes treated as relevant for investor-State arbitration. The benchmark for the relevance has been provided by the distinction between direct and derivative investor’s rights, but the permissibility of concurrence of investor-State and State-State proceedings may suggest a better perspective. Secondly, primary investment obligations in treaty and customary law often run in parallel. In these cases, rules are prima facie relevant, and the degree of permissible reliance therefore needs to be drawn in a different manner by engaging in another simultaneous interpretative exercise. Thirdly, cases dealing with treaty rules on non-precluded-measures and customary rules of necessity regarding the Argentinean crisis highlight inter-temporal challenges. Overall, the State practice and case law of the last decade highlight particular considerations and criteria that are useful in formulating the interpretative framework for dealing with customary investment law.

Asking Too Much, Receiving Too Little: Indigenous Identity and the Aims of Science

In this paper I examine the refusal by many indigenous people to participate in the National Geographic Society’s Genographic Project, and take a close look at a variety of scientific and indigenous responses to that refusal. I locate in many scientific reactions an often implicit reliance upon what I term the “Platonic Conceit”: that at the centre of what it means to be human there lies an ineluctable desire for the truth and an aversion to simulations. This Conceit blinds scientists to the extent to which some simulations not only matter deeply to people but enable their world to make sense. It also prevents scientists from easily distinguishing between knowledge and superstition in so-called traditional knowledge schemes, and therefore from adequately understanding the motivation and substance of indigenous complaints about “bioprospecting.”

Charting the map metaphor in theories of religion

The idea that scholars of religion produce ‘maps’ that represent the ‘territories’ of religion(s) is common and influential. This paper first discusses the role of the metaphor, with special reference to the work of J.Z. Smith, and some of the problems raised by the map metaphor (above all, its implicit reliance on a naive correspondence view of truth). It then draws two important distinctions: between different levels of representation; and between the representing and guiding function of maps (truth and use). It ends by comparing issues in the philosophy of science and the theory of religion in order to highlight some promising directions for more defensible semantic and epistemological groundwork in theory of religion.

Wavelets for Agriculture and Biology: A Tutorial with Applications and Outlook

ABSTRACT Wavelet transforms (WTs) are finding increasing use in the discovery of the scale-specific properties of complex biological data. Although many efforts have been made to explain the main concepts of WT without advanced mathematics, the implicit reliance on digital signal processing terminology is widespread in many popular articles. This may cause some confusion for many biologists who do not have a clear understanding of the computational mechanisms and computer graphics of WTs. In this article we provide a tutorial on WTs for biologists by walking through two carefully selected examples step-by-step, using freely available software as well as a self-developed computer program. Both discrete WT and continuous WT are discussed, and detailed computational instructions, along with thorough interpretations of the computer outputs (or hand-calculated steps), are provided throughout. We conclude by offering a few directions for further study and several ideas on possible new developments in biological...

Epistemic Optimism

Michael Dummett's argument for intuitionism can be criticized for the implicit reliance on the existence of what might be called absolutely undecidable statements. Neil Tennant attacks epistemic optimism, the view that there are no such statements. I expose what seem serious flaws in his attack, and I suggest a way of defending the use of classical logic in arithmetic that circumvents the issue of optimism.

The Treatment of Background in Kazuo Ishiguro’s The Remains of the Day

Literary criticism has long established the fact that the meaning of a text, in particular in the case of discursive genres such as the novel, depends largely on the writer’s ability to exploit the common frames of reference he shares with the average reader so as to build up a credible world which can give the illusion of existing on its own beyond the surface of the written page. This aspect is all the more important where Kazuo Ishiguro’s The Remains of the Day is concerned as the novel’s signification would appear to rest almost entirely on the considerable gap tacitly assumed to exist between the “real” world so abundantly visible to the implied reader and the idealised and ultimately misguided vision of reality entertained by the main protagonist, the butler Stevens. In this article I will seek to show to what extent this implicit reliance on a consensual view of recent history enables the author to present an illusion of reality resting on a number of carefully selected, yet highly allusive, historical references. In contrast, the text’s meticulous and largely underestimated recreation of Stevens’s habitat via the life and history of the English country house appears to disappear somewhat paradoxically into insignificance. By riding the tide of the post-war onslaught on “grand narratives”, many of which – as indicated by Edward Said’s “contrapuntal” reading of Jane Austen – were predicated on the invisibility of historical forces, Ishiguro can uncover the illusive nature of Stevens’s anachronistic worldview by an unashamed use of the codes of literary realism, while at the same time placing his novel, with minimal recourse to literary experimentation, within the framework of postmodernism.

Choice, Moral Responsibility and Alternative Possibilities

Is choice necessary for moral responsibility? And does choice imply alternative possibilities of some significant sort? This paper will relate these questions to the argument initiated by Harry Frankfurt that alternative possibilities are not required for moral responsibility, and to John Martin Fischer and Mark Ravizza's extension of that argument in terms of guidance control in a causally determined world. I argue that attending to Frankfurt's core conceptual distinction between the circumstances that make an action unavoidable and those that bring it about that the action is performed – a distinction emphasised in his recent restatement – provides a new route into an analysis of Frankfurt's argument by showing how it depends on a person's ‘decision to act’ involving the exercise of choice. The implicit reliance of Frankfurt's argument on this notion of choice, however, undermines his claim that the example of the counterfactual intervener strengthens the compatibilist case by providing a counter-example to the principle of alternative possibilities. I also argue that Frankfurt's reliance on the exercise of choice for moral responsibility is also evident in the Fischer/Ravizza argument, and that a close analysis of both arguments shows that such exercise of choice is not available if causal determinism is true.

Vascular bed-targeted in vivo gene delivery using tropism-modified adeno-associated viruses

Virus-mediated gene delivery is restricted by the infectivity profile of the chosen vector. Targeting the vascular endothelium via systemic delivery has been attempted using peptides isolated in vitro (using either phage or vector display) and implicit reliance on target receptor expression in vivo. This has limited application since endothelial cells in vitro and in vivo differ vastly in receptor profiles and because of the existence of complex endothelial “zip codes” in vivo. We therefore tested whether in vivo phage display combined with adeno-associated virus (AAV) capsid modifications would allow in vivo homing to the endothelium residing in defined organs. Extensive in vivo biopanning in rats identified four consensus peptides homing to the lung or brain. Each was incorporated into the VP3 region of the AAV-2 capsid to display the peptide at the virion surface. Peptides that conferred heparan independence were shown to retarget virus to the expected vascular bed in vivo in a preferential manner, determined 28 days post-systemic injection by both virion DNA and transgene expression profiling. Our findings significantly impact the design of viral vectors for targeting individual vascular beds in vivo.

How plausible is the motherese hypothesis?

Falk's hypothesis is attractive and seems to be supported by data from primatology and language acquisition literature. However, this etiological narrative presents a fairly low degree of plausibility, the result of two epistemological fallacies: an implicit reliance on a unilinear model of causality and the explicit belief that ontogeny is homologous to phylogeny. Although this attempt to retrace the early emergence of prelinguistic capacities in hominins falls short of producing a compelling argument, it does call attention to an aspect of linguistic behavior which may indeed have evolved under the pressure of nurturing constraints.

Realizing Deliberative Democracy as a Mode of Inquiry: Pragmatism, Social Facts, and Normative Theory

Realizing Deliberative Democracy as a Mode of Inquiry: Pragmatism, Social Facts, and Normative Theory

The Antitrust-Telecom Connection

The Telecommunications Act of 1996 has spurred more than a dozen antitrust cases against local telephone companies alleging that by violating the Act the companies maintain their monopolies over local telephone service and thereby violate Section 2 of the Sherman Act. Existing antitrust-regulatory accommodation law has proven incapable of resolving whether antitrust claims can rest on violations of the Act. The circuits are divided, and each side appears incapable of comprehending the analytical analysis of the other. The divergent opinions can be explained by the courts' implicit reliance on two different lines of antitrust-regulatory accommodation doctrine. But neither strand of existing doctrine is appropriate in the telecom/antitrust cases, because existing doctrine was designed to accommodate antitrust with regulation that sought public policy goals other than competition. Where regulation seeks, like the antitrust laws, to enhance competition, a new approach is necessary. Courts have long been the primary makers of competition policy. The Telecom Act constitutes a rare instance of broad, direct legislative competition policy making. When Congress speaks so directly, courts need doctrine that takes account of that message. This article proposes a two-step approach that asks (1) whether applying the antitrust laws would interfere with the competition-enhancing regulatory regime, and (2) if not, how the regulation should affect antitrust analysis. Six possible degrees of connection between antitrust and competition-enhancing regulation emerge. And the degree appropriate to the telecom/antitrust cases would presume that violations of the Telecom Act have anticompetitive effect.

Cultural Rights and Internal Minorities: Of Pueblos and Protestants

This article considers the question: should rights extended to cultural communities to help them preserve themselves include the right to discipline dissident members who violate cultural norms? The case of the Pueblo Protestants is employed to consider two important defences of cultural rights (revisionist liberal and cultural communitarian) that offer conflicting answers. Both are found unsatisfactory because of their implicit reliance on "cultural monism" (that is, the assumption that individuals identify with only one cultural community). An approach to defining cultural rights is then outlined that avoids this assumption and its application is illustrated with respect to the Pueblo case.

Social constructions of femaleness in writing about cancer.

This article uses a qualitative content analysis of writing about cancer since 1900, with numeric summaries from Medline/PubMed searches, to propose that there is an implicit reliance in biomedicine on the idea that femaleness is pathological hence carcinogenic. Numeric summaries of rates of use of search terms for men and women and their sexual attributes are a backdrop for text sources that illustrate a greater tendency to see women in sexual terms and pathologize aspects of femaleness. This even extends into more frequent use of the term estrogen than testosterone in exclusively male cancer sites such as prostate and testicle. The analysis suggests that female focus and pathologization of femaleness come from social sex differentiation, heterosexual bias, and objectification of women as sex objects. This may be detrimental to both women and men because these social constructions may have focused cancer research on social classifications that are not physically relevant.

Specifying, balancing, and interpreting bioethical principles.

The notion that it is useful to specify norms progressively in order to resolve doubts about what to do, which I developed initially in a 1990 article, has been only partly assimilated by the bioethics literature. The thought is not just that it is helpful to work with relatively specific norms. It is more than that: specification can replace deductive subsumption and balancing. Here I argue against two versions of reliance on balancing that are prominent in recent bioethical discussions. Without meaning to address the substance or the overall merits of either view I criticize, I attack Gert, Culver and Clouser's implicit reliance on some overall dimension of balancing as a basis of resolving conflicts among norms and Beauchamp and Childress's residual acceptance of 'justified balancing'. The former authors' description of resolving conflicts depends upon a type of value commensurability that (as they otherwise seem to admit) does not obtain, while the latter authors' role for justified balancing would be better served by continued specification.

Nationalism, Political Community and the Representation of Society

Discussion of political and legal citizenship requires attention to social solidarity. Current approaches to citizenship, however, tend to proceed on abstract bases, neglecting this sociological dimension. This is partly because a tacit understanding of what constitutes a `society' has been developed through implicit reliance on the idea of `nation'. Issues of social belonging are addressed more directly in communitarian and multiculturalist discourses. Too often, however, different modes of solidarity and participation are confused. Scale is often neglected. The model of `nation' again prefigures the ways in which membership and difference are constructed. The present paper suggests the value of maintaining a distinction among relational networks, cultural or legal categories, and discursive publics. The first constitute community in a sense quite different from either of the second and third. Categories, however, are increasingly prominent in largescale social life. But the idea of the public is crucial to conceptualizing democratic participation.

Liberalism and the Obligation to Military Service

This article argues that liberalism's failure to address systematically the question of citizens' obligation to military service is indicative of its wider failure to develop a satisfactory concept of citizenship. Whilst liberalism's individualist bias, implicit class assumptions and hope of transcending war have all contributed to neglect of citizen duty to bear arms, the most interesting reason, in relation to contemporary republican critiques, is liberalism's inadequate view of citizenship. This article examines the different approaches of the classical English liberals Locke, Bentham and J. S. Mill to international relations, forms of national defence and the role (if any) of citizens, and considers very briefly the views of some contemporary liberal theorists on military service and justified resistance to the draft. Finally, it comments on the implicit reliance of liberal polities on non-liberal models of citizenship, and the need for a coherent liberal concept of citizenship which includes an examination of responsibility for defence.

Implications of the New Zealand Building Code durability requirements

The durability of materials and components used in buildings has been studied worldwide for a long time. In the building process, there has always been an implicit reliance that the finished building will be durable, able to carry out its function for a long time. The New Zealand Building Code, which came into force on 1 January 1993, has mandatory requirements for building durability which apply across the whole code. This has thrown the question of durability into sharp focus, and the consequences of this are explored in this paper.

The Canadian Constitutional Approach to Freedom of Expression in Hate Propaganda and Pornography

Constitutional law can be many things, but most of all it can be an agent of change. Ultimately, it determines the way we organize our lives, socially and politically. It provides us with insights to help us understand and define our society and where it is heading. It is intimately concerned with giving meaning to ourselves and our relations with others.' But on their own, constitutional guarantees are abstract concepts. They require judges, through their interpretations, to breathe life into them. The act of giving meaning to a constitutional guarantee, such as freedom of expression, requires an examination of its context, purposes, history, precedent, and the intent of the framers.2 But guarantees are always open to competing interpretations because usually the sources themselves require interpretation. A reliance on one interpretation involves the suppression of another. It is at this juncture where we find either explicit or implicit reliance on the ways in which the interpreter imagines social and political life. This becomes

Debate—Proportional Representation: PR and Democratic Statecraft

Debate—Proportional RepresentationPR and Democratic Statecraft Quentin L. Quade (bio) In "Constitutional Choices for New Democracies," Arend Lijphart sets out to describe and evaluate some of the primary institutional alternatives available to new democracies. Lijphart knows that the choice of electoral system is especially important, since it will likely determine whether many or few parties will compete, and whether coalition or single-party governments will result. He also knows that once chosen, the electoral system will be hard to change. Lijphart favors proportional representation (PR), welcomes proliferated parties, and esteems coalitions. I have publicly defended the opposite view. I urge plurality voting in single-member districts, hope and expect that this will encourage a two-party system, and applaud the single-party government that would result.1 How is it that two democrats with similar starting points like Lijphart and myself could come up with such starkly contrasting practical advice for newly emerging democracies? As in real estate, the key is to inspect the premises. Even a brief and selective inspection, as this one must be, will show why our recommendations differ so sharply, and why I think Lijphart's position rests on questionable, even utopian, foundations. Advocates of proportional representation typically describe it as more "fair" and more "just." Lijphart's article says PR produces "consensus" politics, promotes "conciliation and compromise," and is more "representative" than plurality voting. In fact, each of these good words applied to PR begs a question and calls for a rarely given philosophical argument to establish a meaning for "fair," "just," "representative," and so on. No such arguments are presented or even summarized by Lijphart. The only thing certain about PR is that it will tend to re-create society's [End Page 36] divisions and locate them in the legislature. That is its purpose, logic, and result.2 Whether a system that encourages party proliferation is any of the good things its proponents call it—fairer, more just, more representative—depends on a theory of statecraft and democratic form. What is the purpose of the state? Does the adoption of democracy eliminate or even lessen the traditional requirements of state action? In particular, does democratic statecraft have a diminished responsibility to synthesize society's parts, unify and defend its people, or identify and pursue the common good—meaning those values that no particular part of society will ever seek as its own but on which all particular parts depend? Or does democratic politics exist to do all the things states exist for, but to do them in a new way, a responsible and accountable way? If it does, then the first test of fairness, justice, and representation that democratic politics must pass will be the test of excellence in state action. The second and no less important test will be that of accountability. But for Lijphart and his fellow PR advocates, the first question appears to be: how well are society's natural divisions recreated and relocated in the legislature? Where he equates the number of women in legislatures with representation of women's interests, for example, Lijphart uses the term "representation" as identical to recreation. In his uncritical implicit reliance on the "picture theory" of legislative representation, Lijphart writes as if Edmund Burke had never lived. To prove that PR's tendency to re-create divisions and proliferate parties is indeed a good thing, an extended argument is required. It must explain how a political system will be "fair" if it succumbs to the centrifugal pull of interests, how it can advance the general welfare if it "represents" only minute and particular aspects of society, and how a government cobbled together out of postelection splinters by a secretive process of interparty bartering can be considered responsible and accountable. Only by doing this can PR advocates escape the charge of question-begging. Easy Cases and Unfounded Speculations I have suggested that PR advocates generally, and Lijphart in particular, tend to make their work easy by eliding from PR's tendency to re-create societal divisions to an unexamined designation of such recreation as good. Another labor-saving approach, greatly evident in Lijphart's article, is to build the argument for PR on...