Partial Defence Research Articles

Debating the Transition Paradigm: In Partial Defense of an Evanescent “Paradigm”

Thomas Carothers has written a timely and important essay that deserves wide attention. His goal is the healthy one of sparking discussion among both scholars and those who are “practitioners” of democracy—government officials, civil society activists, or professionals who work in the field of democracy promotion. Since I am a scholar, I will focus on what Carothers has to say concerning academic writings about transitions and democratization. To begin with, I am in an odd situation. I am flattered that Carothers mentions me as coauthor of the “seminal work” on transitions. Since he follows this reference with a series of criticisms aimed at what he calls “the transition paradigm,” readers might assume that I will dispute most of what he says. In fact, I agree with many of his arguments. The reason for this apparent paradox is that Carothers lumps together, under the heading of the “transition paradigm,” a large and uneven body of work, and then proceeds to concentrate his criticisms on some of the weakest parts of it. So I will try to set the record straight, both for the sake of fairness and because I believe that our discussions, to be fruitful, should be based on an accurate notion of what the scholarly literature actually says. Carothers discusses three major and distinct issues: 1) The transition from authoritarian rule; 2) the aftermath of this transition; and 3) what some institutions (most of them belonging to or funded by Western governments) have been doing under the heading of “democracy promotion.” Carothers argues that thinking on these three topics has been led astray by a faulty “analytic model of democratic transition” that derives in good measure from the “seminal” four-volume work already cited, especially Guillermo O’Donnell is the Helen Kellogg Professor of Government and International Studies at the University of Notre Dame. His most recent book is Counterpoints: Selected Essays on Authoritarianism and Democratization (University of Notre Dame Press, 1999).

A Partial Defense of an Anti-Discrimination Principle

Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fiss's landmark article appeared, Supreme Court doctrine has, at every turn, rejected his anti-subordination principle in favor of a narrower, more formalistic anti-discrimination principle. In the Court's view, the equal protection guarantee primarily targets discrimination against individuals on a small number of forbidden grounds. However, the anti-discrimination principle as such should not be taxed with the Court's adoption of equal protection hyper-formalism in the name of anti-discrimination. Both anti-discrimination and anti-subordination are sufficiently open-ended conceptions of equality to produce a variety of morally attractive and not-so-attractive outcomes.

‘Global Capitalism’ vs ‘End of Socialism’: Crux Theologica? Engaging Liberation Theology and Theological Postliberalism

This article offers a critical assessment of two political theologies: liberation theology and theological postliberalism, as represented by the writings of Gustavo Gutiérrez and John Milbank. Paying particular attention to the concepts of society and Church, a partial defence of liberation theology is offered in tandem with a critical affirmation of some aspects of postliberal political theology. The discussion is then contextualized historically in relation to the ‘victory’ of global capitalism and the ‘end’ of socialism. I conclude that the renewal of political theology in the twenty-first century will aim to overcome the ironic crux theologica of this article's title.

In partial defense of softness

The authors wish that the psychology of human decision making should borrow methodological rigor from economics. However, unless economics also borrows from psychology this poses a danger of overly limiting the phenomena studied. In fact, an expanded economic theory should be sought that is based in psychology (and ultimately neuroscience) and encompasses both rational and irrational aspects of decision making.

Reliance on professional and non‐professional advisors or staff as a defence to the imposition of penalties in income tax matters

Many taxpayers rely on their advisors to look after their tax affairs. In spite of this reliance, taxpayers still find themselves in default for the purposes of section 76(1) of the Income Tax Act and additional tax (referred to as a “penalty” by the judiciary) is imposed. This article examines whether the reliance by a taxpayer on his advisor, be it his accountant, bookkeeper or even a member of staff, can constitute a complete or partial defence to the imposition of additional tax in terms of section 76(1) or be regarded as an “extenuating circumstance” for the purposes of remission of additional tax in terms of section 76(2)(a).

Non nocere if you really care: a commentary on “Hypnotic medication in the treatment of chronic insomnia” (Dr M. Kramer)

In his partial defense of chronic hypnotic prescribing, Dr Kramer [1] cited the JAMA report of Ms B., which highlighted some of the conflicts a clinician faces [2]. Reducing her benzodiazepine dosage created disharmony between Ms B. and her physician. Rather, she did not wish to give up the pleasurable, reinforcing effects of the benzodiazepine, although the physician was concerned that her dosage might be harming her health. She interpreted as a lack of caring the physician’s well-informed medical recommendation. Later, on follow-up, it became difficult to say if changes in Ms B.’s condition were related to her advancing age or to changes in her medication. This case history highlighted how difficult it is to be sure what is best for patients without long-term controlled studies. Nevertheless, this conflicted case was not about hypnotics. Instead, four times a day, Ms B. was taking alprazolam, a benzodiazepine with proven anti-anxiety and antidepressant properties which are probably not shared by modern hypnotics. Ms B.’s subjective gratification should not be taken at face value. The shocking aspect of our study of long-term hypnotic users was significant performance impairments compared with placebo (even with a very short-acting benzodiazepine), and relatives finding hypnotic users to be impaired, at the same time as tolerance eliminated any significant benefit for sleep [3–5]. The users reported that the hypnotics were helping them, when objective testing and reports of their own relatives showed that the hypnotics were deleterious. The office clinician faces similar conflicting views when patients addicted to a variety of drugs plead for harmful refills. Dr Kramer’s review arose from long years of experience with working with patients. It expressed beautifully the ambivalence felt by the clinician who knows well the risks of hypnotics, but would like to believe that hypnotics can help chronic conditions. He describes those physicians who abstain from long-term hypnotic prescribing as

Provocation—Pushing the Reasonable Man Too Far?

Almost every aspect of the partial defence of provocation has caused considerable debate over the years. Areas of difficulty range from the question of when the issue should be left to the jury, to the relevance of the defence to battered women who kill. The issue for consideration here will be the ˜reasonable or ˜ordinary man and the characteristics imputed to him in the light of the accuseds own character. R. v. Smith reaffirms the Court of Appeals view that the accuseds characteristics should be included at all levels of the test. Attitudes to this differ considerably. On the one hand, some argue that the doctrine weakens the legal requirement of self-control and is therefore only acceptable where the accused has been pushed to extremes. This is ensured by maintaining a highly objective approach and narrow interpretation of the ˜reasonable man. On the other hand, it is argued that, in the interests of attaining justice, characteristics of the accused should be imputed to the reasonable man in order to acknowledge that some people will find conduct more provoking than others, and that some individuals may have a lower threshold of self-restraint which should be taken into account. This article considers the merits of these two approaches by analysing recent English case law and contrasting this with Australian developments.

A Note on Plural Pronouns

Gareth Evans' proposal, as amended by Steven Neale –that a definite pronoun with a quantifiedantecedent that does not bind it has the sense ofa definite description – has been challenged inthe singular case by appeal to counter-examplesinvolving failure of the uniqueness condition forthe legitimacy of a singular description. Thischallenge is here extended to the plural.Counter-examples are provided by cases in which aplural description `the Fs' does not denote,despite the propriety of the use of `they' or`them' it is to replace, because of failure ofcumulativeness. A noncumulative predicate isnot distributive, and conditions for thelegitimacy of `the Fs' designed to accommodatenondistributive `Fs' are given in the context ofa two sorted theory with generalized quantifiers.Failure of cumulativeness is not to be confusedwith failure of maximality as Neale and othersdefine it. If not all Fs are Gs, `The Fs are Gs'is false; but it does not follow that `the Fs' isillegitimate; and if `Fs' is distributive. it isso only if there are no Fs. These differencesgranted, I give a partial defense of theEvans–Neale proposal from deficiencies in analternative based on the views of P. T.Geach.

Principled Adjudication: Tort Law and Beyond

article briefly discusses the impossibility of a strict formalist or positivist approach to legal adjudication and the necessity and plausibility of a principled approach, according to which it is necessary to resort, explicitly or implicitly, to the principles underlying the positive expressions or sources of law to identify, interpret and apply the law, in easy as well as hard cases. legitimacy of the principled approach crucially depends on resort to the community's moral principles as embedded in the existing law -- those moral principles which best explain as much as possible of the existing law -- rather than allowing, as Ronald Dworkin has argued, judges to adopt whichever moral principles they subjectively deem best that satisfy some minimum threshhold of descriptive fit. Do such moral principles exist, embedded in the law? Many legal skeptics argue that they do not. two principal competing moral theories of law are the justice theory, based on the foundational norm of maximizing everyone's equal individual freedom, and the utilitarian efficiency theory, based on the foundational norm of maximizing the total aggregate pleasure, happiness or wealth of the society as a whole. After briefly describing each theory and its implications for legal obligation, a brief survey is undertaken of several major tort doctrines or issues: plaintiff's consent as a complete defense, plaintiff's contributory negligence as a complete or partial defense, the distinction between intentional torts and the tort of negligence, the distinction between tort law and criminal law, and the availability of punitive damages in tort law. justice theory explains and justifies each of these doctrines and distinctions, while the utilitarian efficiency theory is not able to explain or justify any of them. Similar findings were made for the major elements of negligence law in a prior essay, The Standards of Care in Negligence which was published in Philosophical Foundations of Tort Law, OUP 1995).

The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860-1938

The (English) Infanticide Act 1922 created a partial defence to murder for a woman who killed her newly born child while the balance of her mind was disturbed as a result of giving birth. Prior to the Act, psychiatric defences were comparatively rare where the victim was new-born. Only in 1938 was the law extended to cover cases where the mother was likely to be diagnosed as suffering from puerperal or lactational insanity. The relationship between law and medical knowledge underlying this legislation is too complex to be captured by a simple notion of ‘medicalization’, and in some respects fits better with the account of law/science relations offered by autopoiesis theory. That theory, however, is much less satisfactory in its view of the role of lay knowledge and morality in the development and application of the law.

Interface between haustoria of parasitic members of the Scrophulariaceae and their hosts: A histochemical and immunocytochemical approach

The haustorial structure of three African parasitic members of the family Scrophulariaceae (Buchnera hispida, Rhamphicarpa fistulosa, andStriga hermonthica) has been studied with regard to the interface between haustoria and the invaded host roots. Immunocytochemical observations at the light and electron microscopical level were carried out with monoclonal antibodies against pectin. JIM5, JIM7, and hydroxyproline-rich glycoprotein (HRGP), LM1. Lignins have been visualized by phloroglucinolhydrochloric acid staining. At the margin of the lateral interface (contact area of host root cortex and parasite cells), JIM5- and JIM7-labelled substances accumulate between parasite papillae and the host root surface indicating that pectins are implicated in sealing the parasite to the attacked host organ. The lateral interface is characterized by the presence of compressed, necrotic host cells, whereas the central interface (contact area between host stele and parasite cells) is generally devoid of host cell remnants. Phenolic substances and/or lignins can be found at the site of penetration of the haustorium into the host root. These observations and the fact that HRGPs accumulate at the host side of the interface support the view of, at least, a partial defense reaction in the invaded host root tissues. Within haustoria, HRGPs were restricted to differentiating xylem elements, implying a spatio-temporal regulation of HRGPs in developmental processes.

Equivalentes epilépticos: ¿término en desuso?

The term 'epileptic equivalent' has had different meanings in recent years, for both doctors and lawyers (who have copied their reports). Our interest is due to finding that in the jurisprudence of the Supreme Court that we have reviewed, these terms are still taken into consideration when passing judgement or declaring a defendant immune from prosecution. This might mean a complete or partial defence, according to the grade of psychological illness of the person who commits the punishable act. Thus, there are still references to dysthymia, residual or larvate epilepsy, etcetera, and medical experts relate them directly to epileptic disorders, to judge from the references made in many of the sentences reviewed. This has influenced penal classification in one way or another. People who have never had an epileptic crisis have been considered to be epileptics. The same may also be said of the well-known epileptic character or epileptic personality. Therefore this paper considers the importance of language in this disorder. It invites relevant persons or institutions to unify opinions and modernize the terminology in accordance with modern scientific knowledge [REV NEUROL 1999; 28: 524-8].

Conscious Thinking: Language or Elimination?

Do we conduct our conscious propositional thinking in natural language? Or is such language only peripherally related to human conscious thought‐processes? In this paper I shall present a partial defence of the former view, by arguing that the only real alternative is eliminativism about conscious propositional thinking. Following some introductory remarks, I shall state the argument for this conclusion, and show how that conclusion can be true. Thereafter I shall defend each of the three main premises in turn.

Justifying the use of firearms by policemen and soldiers: a response to the Home Office's review of the law on the use of lethal force

In January 1995, during the furore over the murder conviction of Private Lee Clegg, the Home Office announced a review of the law of murder as the House of Lords had declared it to be. In March 1996 the Report of the Inter-Departmental Review of the Law on the Use of Lethal Force in Self-Defence or the Prevention of Crime was completed and, if not exactly ‘published’, then at least available to interested members of the public. The review was primarily concerned with the possibility of enacting a partial defence to murder, whereby a soldier or policemen who had used excessive force resulting in the death of a criminal suspect would be convicted only of manslaughter, but the Home Office also examined the possibility of giving statutory authority to the internal Army and police regulations upon the use of firearms, in order to clarify the concept of ‘reasonable force’. In the end, however, the Inter-Departmental Review (hereafter ‘the Review’) proposed no change to the law of murder nor of voluntary manslaughter, and neither did it propose any method of clarifying the concept of ‘reasonable force’.

Sextus, Descartes, Hume, and Peirce: On Securing Settled Doxastic States

Sextus Empiricus and Peirce are famously philosophers for whom the objective of inquiry or investigation is characterized in psychological terms-for Sextus, as quietude or tranquility, and for Peirce, as the settlement or fixation of belief. I maintain that Descartes and Hume also characterize the goal of inquiry psychologically, in terms of such notions as unshakability and equilibrium in belief, and that their approaches to assessing belief-forming methods with reference to psychological notions have affinities with those in Sextus and Peirce. Methods of forming doxastic states are assessed by each of the four figures with reference to effectiveness in achieving a settled condition in those states. My argument depends on identifying important lines of thought in Descartes and Hume, tendencies in their thinking that are present and not dismissed, that place a premium on settled doxastic states. In this paper, I seek to bring to light these lines of thought. In the interest of presenting an overview of Descartes and Hume, against the backdrop of Sextus and Peirce, I provide a partial defense of admittedly contentious interpretive claims, ones I attempt to defend more fully elsewhere. I locate in Hume the claim that one ought to seek doxastic states that are settled. I locate in Descartes the claim that one ought to seek beliefs that are not only settled, but also incapable of being shaken or unsettled. Achieving a settled condition is necessary, but not sufficient, for achieving a settled condition that cannot be unsettled. The Cartesian objective is more ambitious, and the Humean more modest. I maintain that the value placed on settled doxastic states has a naturalistic foundation in three of the figures; we find in Peirce, Hume, and Sextus, though not in Descartes, the claim that unsettled states are unpleasant, and hence to be avoided. It is Hume, however, who is odd man out in a different

Diminished responsibility manslaughter

Whilst there has been a good deal of qualitative criticism and commentry about the partial defence of diminished responsibility in homicide cases, relatively little empirical analysis has been provided about the way in which the law works. Buck and Walklate (1994) undertook one of the most recent surveys in which they tried to shed some light on the interaction of the psychiatric and legal perspectives, though their work was confined to the experience of a northern psychiatric service. This study was carried out to expand our quantitative knowledge of the operation of the diminished responsibility law, particularly the significance of the work of forensic psychiatrists and the outcome of cases in the criminal justice system. In so doing, it tests the extent to which many of the results of Buck and Walklate's survey applied to a different part of the country. The data are based on a sample of cases at a regional secure unit in the Midlands during the late 1980s and early 1990s.

Provocation: A Cautionary Note

Lawyers concerned with battered wives who kill their abusers continue the struggle to widen the law to accommodate such killings within the partial defence of provocation. The Court of Appeal in R. v. Ahluwalia1 conceded that provocation was not negatived as a matter of law simply by delay, a concession to slow-burn anger. The subjective element in provocation could be satisfied even though some time passed between the provocation and the reaction thereby caused, provided at the time of the killing there was a loss of self-control that was sudden and temporary. This led to the comment, 'this legal development is there to be exploited by future battered women defendants.'2 With regard to the objective element, the judgment may have left it open to argue that being a battered woman is a relevant characteristic which could be attributed to the reasonable man.

SENSATION, INTENTIONALITY, AND ANIMAL CONSCIOUSNESS: MALEBRANCHE'S THEORY OF THE MIND

AbstractIn general, seventeenth‐century philosophers seem to have assumed that intentionality is an essential characteristic of our mental life. Malebranche is perhaps the only philosopher in the period who stands out clearly against the prevailing orthodoxy; he is committed to the thesis that there is a large class of mental items ‐ sensations ‐ which have no representational content. In this paper I argue that due attention to this fact makes it possible to mount at least a partial defence of his notorious doctrine of ‘the rainbow‐coloured soul’; Malebranche's doctrine is a striking anticipation of modern adverbial theories of sensation. I then argue that failure to appreciate the non‐intentional character of sensations for Malebranche vitiates one recent attempt to explain why he accepted the Cartesian doctrine of the beastmachine; in contrast to the Radners, I suggest that Malebranche has the philosophical resources to offer an interesting theory of animal consciousness, and that his failure to develop such a theory rests largely on his acceptance of certain theological arguments. The paper ends by speculating about how Malebranche's theological commitments may have encouraged him to adopt the philosophically important thesis that intentionality is not the mark of the mental.

What Future for Voluntary Manslaughter?

This article examines the Law Commission's Consultation Paper, Partial Defences to Murder, which was published in June 2003. There are fundamental problems with the defence of provocation. The author suggests that this partial defence should therefore be abolished and replaced by a new partial defence of self-preservation. This could provide a defence where the offender, or another person with whom he or she is closely associated, has been repeatedly subjected to serious violence or tormenting behaviour. This conduct must have caused the offender to be in a state of severe emotional disturbance at the time of the killing.

Provocation—does Paria Add Anything Useful?

There has been much controversy in recent years relating to aspects of the partial defence of provocation. A particular issue has centred on whether, and in what circumstances, the defendant's characteristics can be taken into account with regard to his ability to exercise self-control. In the recent case of Paria v The State, an appeal originating from Trinidad and Tobago, the Privy Council was invited to apply the decision of the House of Lords in R v Smith (Morgan). In the event, the Privy Council declined to do so, but nonetheless made some observations on that case. This article considers the more fundamental question of whether the Privy Council should have been considering Smith at all, and argues that, for precedent-based reasons, it should not. It draws on criticisms made by other commentators to the effect that observations made by the Privy Council in Paria about Smith are not soundly based, and concludes that the case adds little of value to the law in either England and Wales or Trinidad and Tobago.