"Unfair" results and unfair doctrines : structuring the application of the equitable doctrines of undue influence and unconscionable dealing

Relevance of the substantive matter of an unfair result on the application of the doctrines of transactional fairness - undue influence and unconscionable dealing - need to keep considerations of transactional fairness and substantive fairness separate - case law involving undue influence and unconscionable conduct - relevance of an unfair result for future unconscionable dealing and undue influence cases.

Moral rights and substantiality: some questions of integration

Now that Australia has its long awaited legislation protecting the moral rights of authors, a new phase in the development of the rights begins. It must be asked how the incorporation of the rights into the existing copyright legislation, and their subjection to existing doctrines, will affect their operation. And how will existing doctrines be challenged and extended by the existence of the rights? Ultimately these questions will be worked out in the courts. The present article offers a consideration of one area where the legislature has purported to integrate moral rights into the existing scheme but where the practicalities oftheir integration are still unclear. It examines the interplay of moral rights with the doctrine of substantiality, suggesting that any clarification of what substantiality means in the moral rights context will be contingent upon the emergence of more precise definitions of what moral rights are and what interests they are intended to protect.

Directors' duty to use their powers for proper or permissable purposes

This article focuses generally on the interaction among several internal company law doctrines such as the supremacy of the articles of association; that other organs cannot interfere with powers exclusively conferred upon a particular organ; that courts will not readily interfere with internal company matters; that directors are under a duty to act in good faith and in the best interest of the company as a whole and under a duty to use their powers for proper or permissible purposes; and that there are some remedies available to shareholders if directors did not perform their powers for a proper or permissible purpose. The specific aim with the article is to establish when and why the courts will be prepared to set aside decisions by directors if they have taken them for an improper or impermissible purpose. The article concludes that the courts will be prepared to set the decisions of directors aside when they have used a particular power substantially or primarily for an improper or impermissible purpose. When the exercise of directors' powers is challenged under circumstances where there were both permissible and impermissible purposes for exercising a particular power, there is no alternative for the court but to inquire into the complex area of the state of mind of those who acted and the motive on which they acted. This is, in fact, second-guessing the decisions of directors.

Reviewing public reason: a critique of rawls' political liberalism and the idea of public reason

This article provides a critical review of Rawls' effort in Political Liberalism to construct apolitical theory of justice compatible with the fact of reasonable pluralism. Particular attention is given to the 'idea of public reason' and political liberalism's liberal neutrality. It is argued that because of its liberal neutrality, political liberalism would preclude people from endorsing at least some reasonable comprehensive views and, therefore, as a theory it lacks the necessary stability required to be as successful as Rawls claims.

Multiculturalism in Asia

This book explores the different ways that issues of ethnocultural diversity are conceptualised and debated in South and East Asia. It looks at the legacies of precolonial and colonial traditions for managing diversity, their reinterpretation under postcolonial independence and globalisation, and their relationship to Western liberal models of multiculturalism and emerging international norms of human and minority rights. It shows that political actors draw on a range of intellectual resources and traditions when thinking through these questions. Appeals to international human rights instruments and Western policies of multiculturalism are interspersed with appeals to local traditions, national mythologies, regional practices, and religious doctrines. An attempt to understand these debates or contribute to them requires an understanding of the complex interaction between the different ways of conceptualising diversity and citizenship.

Immortality and sentencing law

The time may not be far away where we may be able to live much longer than we do now – potentially forever. This will have an enormous impact on the way people live their lives as the underlying premise that life is finite underpins many of the central decisions and life choices we make. This paper outlines some philosophical and legal doctrines that are based on the premise that life is finite and some of the changes that may need to occur in light of medical advances in ageing. In particular, it focuses on the changes to sentencing law that may be necessary to accommodate increased human longevity. For the skeptics who refuse to accept the concept of immortality, the arguments presented do not depend on living forever. Some of the issues discussed here are also relevant, albeit in an attenuated manner, because of increases in human longevity that have occurred in the last 100 years.

A resource-based view on China strategy

The research suggests that Chinese companies do not subscribe to ‘western’ strategy theory. As they rapidly internationalise through massive Foreign Direct Investment, Chinese companies are developing new perspectives on achieving competitiveness. A comparison of the Resource-Based View of strategy (RBV) constructs from western literature with identified (indigent) Chinese business strategies found that competitive advantage (CA) was derived from an adherence to the Confucian doctrines. This adherence to Confucian doctrines produced constructs common to both Western and Chinese business strategies. The most successful companies in China actually combined eastern and western strategic approaches, but focussed on the development of relationships to create and maintain CA, instead of focussing on the development of actual resources as recommended by the RBV.

Pain, passion and faith : revisiting the place of Charles Wesley in early Methodism

Pain, Passion and Faith: Revisiting the Place of Charles Wesley in Early Methodism is a significant study of the 18th-century poet and preacher Charles Wesley. Wesley was an influential figure in 18th-century English culture and society; he was co-founder of the Methodist revival movement and one of the most prolific hymn-writers in the English language. His hymns depict the Christian life as characterized by a range of intense emotions, from ecstatic joy to profound suffering.

Admissible Christianity : a study of Christian fundamentalism in the writings of James Barr

An attempt to set forth the essential nature of a theology is a notoriously difficult task. This thesis addresses two questions to a contemporary study of fundamentalism. It asks to what extent has James Barr been able to describe the theology of fundamentalism and to what extent his critical analysis of that theology is philosophically valid? The first chapter identifies the inherent difficulties in a phenomenology of fundamentalism and includes an historical survey of the theology of the movement. This chapter is supported by appendix one which identifies the philosophical culture associated with fundamentalist thought. Barr's description of the theological and religious character of fundamentalism is accepted within the identified limitations. The second and third chapters give an account of Barr's theological evaluation of fundamentalism. He argues the fundamentalists espouse an aberrant form of Christianity. Their religion represents a projection onto the biblical text of a religion foreign to the theological character of the Old and New Testaments. This projection is achieved by an intellectually sophisticated hermeneutical procedure. The doctrines of inerrancy, verbal inspiration and infallibility establish an understanding of Christianity which does not represent the essential character of the Christian faith. Fundamentalist hermeneutics, Barr concludes, allows for a theology indigenous neither to the biblical text nor to the Christian tradition. It attempts to afford biblical justification to the doctrines of a human religion extraneous to the biblical text. The fourth chapter considers the philosophical basis of Barr's understanding of the Bible. He takes the idealist view that the biblical text possesses a theological meaning whose boundaries can be delineated and whose essential content defined. This chapter is supported by appendix two which locates Barr's writings on fundamentalism within his wider concerns about the hermeneutical problems raised by the biblical text and the religious authority of the Bible. The penultimate chapter surveys the insights of contemporary literary theory concerning the perception of written texts. The philosophical validity of an idealist view of the biblical text is questioned. Two major conclusions are drawn. Barr's assessment of fundamentalism is philosophically dependent upon his idealist perception of the biblical text. This conclusion leads to the more general conclusion that the biblical text contains no essential description of Christianity but is capable of being read according to a range of theological interpretations some of which are more defensible than others.

Presbyterian ethos and environment in the novels of John Buchan : a religious and historical study

The aim of this thesis is to establish, from a historical and religious perspective, that the Presbyterian ethos and environment in which John Buchan was reared was the predominating influence in the writing of his novels. Presbyterianism was not the only influence on Buchan that determined the character of his stories. Buchan was by temperament a romantic, and this had considerable influence on his literature. His novels are romances, peopled by romantic figures who pursue romantic adventures. There are the signs of Buchan's romantic nature in the contents of the novels: creative imagination, sensitivity to nature, and expectations of the intrusion of other worlds, with destiny-determining events to follow. But Buchan had also an acquired classicism. His studies at Glasgow and Oxford Universities brought him in touch with a whole range of the master-pieces of classical literature, especially the works of Plato and Virgil. This discipline gave him clarity and conciseness in style, and balanced the romantic element in him, keeping his work within the bounds of reason. At the heart of Buchan's life and work, however, was his deeply religious nature and this, while influenced by romanticism and classicism, was the dominant force behind his work. Buchan did not accept in its entirety the Presbyterian doctrine conveyed to him by his father and his Church. He was moderate by temperament and shrank from excesses in religious matters, and, being a romantic, he shied away from any fixed creeds. He did embrace the fundamentals of Christianity, however, which he learned from his father and his Church, even if he did put aside the Rev. John's orthodox Calvinism. The basic Christianity which underlies all Buchan's novels has the stamp of Presbyterianism upon it, and that stamp is evident in his characters and their adventures. The expression of Christianity which Buchan embraced was the Christian Platonism of seventeenth century theologians, who taught and preached at Cambridge University, They gave prominence to the place of reason and conscience in man's search for God, They believed that reason and conscience were the ‘candle of the Lord’ which was existed every one. It was their conviction that, if that light was followed, it would lead men and women to God. They were against superstition and fanaticism in religion, against all forms of persecution for religious beliefs, and insisted that God could only be known by renouncing evil and setting oneself to live according to God’s will. This teaching Buchan received, but the stamp of his Presbyterianism was not obliterated. The basic doctrines which arose from his father's Presbyterianism and are to be found in Buchan's novels are as follows: a. the fear (or awe) of God, as life's basic religious attitude; b. the Providence of God as the ultimate determinative force in the outcome of events; c. the reality, malignity and universality of evil which must be forcefully and constantly resisted; d. the dignity of human beings in bearing God's image; e. the conviction that life has meaning and that its ultimate goal, therefore, is a spiritual one - as opposed to the accumulation of wealth, the achieving of recognition from society, and the gaining access to power; f. the necessity of challenge in life for growth and fulfilment, and the importance of fortitude in successfully meeting such challenge; g. the belief that, in the purpose of God, the weak confound the strong. These emphases of Presbyterianism are to be found in all Buchan's novels, to a greater or lesser degree. All his characters are serious people, with a moral purpose in life. Like the pilgrims of the Bible, they seek a country: true fulfilment. This quest becomes more spiritual and more dearly defined as Buchan grows in age and maturity. The progress is to be traced from his early novels, where fulfilment is sought in honour and self-approving competence, as advocated by classicism; to the novels of his middle years, where fulfilment is sought in adventures suggested by romanticism. In his final novel Sick Heart River. Buchan appears to have moved somewhat from his earlier classicism and his romanticism as the road to fulfilment. In this novel, Buchan expresses what, for him, is ultimate fulfilment: a conversion to God that produces self-sacrificing love for others. The terminally-ill Edward Leithen sets out on a romantic adventure that will enable him to die with dignity, and so, in classic style, justify his existence. He has a belief in God, but in a God who is almighty, distant and largely irrelevant to Leithen's life. In the frozen North of Canada, where he expects to find his meagre beliefs in God's absolute power confirmed by the icy majesty of mountain and plain, he finds instead God's mercy and it melts his heart. In a Christ-like way, he brings life to others through his death, believing that, through death, he will find life. There is sufficient evidence to give plausibility to the view that Buchan is describing in Leithen his own pilgrimage. If so, it means that Buchan found his way back to the fundamental experience of the Christian life, conversion, so strongly emphasised in his orthodox Presbyterianism home and Church. However, Buchan reaches this conclusion in a Christian Platonist way, through the natural world, rather than through the more orthodox pathway of Scripture.

Descartes on the human soul : philosophy and the demands of Christian doctrine

By the 17th century Catholic orthodoxy had defined a range of propositions concerning the human soul as revealed by God and verifiable by natural reason. The writings of Rene Descartes display a consistent adherence to these orthodox propositions. The conclusion presents him as ultimately unsuccesful in convincing his contemporaries that his philosophy provided the rational demonstration of the key soul doctrines and that he was worthy of the title "Christian philosopher"

Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients’ consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.

An overview of liability and compensation for personal injury in China under the general principles of civil law

This article reviews the personal injury tort system in the People's Republic of China (PRC). The Chinese torts law has a number of unique features. To begin with, it is quite new — the legal framework of torts law was established only in 1986. The unique features of the Chinese torts law also stem from its long and difficult evolution over nearly 40 years. Equally important has been the remarkable blend of influences that have shaped its current law — a mixture of socialist objectives, capitalist pragmatism, and feudal doctrines combined with jurisprudential models taken from a range of western civil codes and, more recently, the common law.

Part one of the article briefly analyses the most important features of the existing Chinese legal system. Part two provides a background to the enactment of the General Principles of Civil Law (GPCL), which incorporates Chinese torts law. The review looks at the development and drafting of the GPCL legislation, and the influences that guided the formulation of legal principles. Part three of the article provides an overview of the torts law provisions in the GPCL. Part four examines the law of personal injury established by the GPCL. Part five uses some case studies to illustrate the principles highlighted in the previous two parts and part six contains a brief conclusion and some pointers to the directions that Chinese torts law may take in the future.

A modern audience for the ancient mysteries of the occult : the evolution of Rudolf Steiner's esoteric architecture

In today’s secular society, occult conceptions of architecture may seem somewhat anachronistic, but at the turn of the twentieth century the bourgeoisie, alongside society’s artistic and intellectual elite, were enthusiastically embracing a myriad of esoteric doctrines and mystical impulses. One of the most prominent and enduring examples of this cultural phenomenon is to be found in Rudolf Steiner’s quasi-philosophical system of Anthroposophy. As a path of spiritual development based on ancient mysteries of the occult, Anthroposophy offered people the belief that there existed a way out of the chaos and meaninglessness of modern industrialised society. Steiner used the medium of architecture as a way of repackaging the occult’s venerable secrets into a tangible, material form that made their hidden message more readily accessible to his contemporary audience. While he was striving towards creating a totally new architectural language appropriate to the modern age, he perceived architectural style as an evolutionary process that revealed its spiritual content in a particular way in every epoch. As such, Steiner made free use of historical and mythological precedents as archetypal references in his work, thus giving his architecture a genealogy that has, until now, remained largely undefined. By investigating Steiner’s indebtedness to ancient temples and the architecture of the baroque, a greater understanding of his architectural heritage is made possible, which not only helps to locate him within the cultural milieu of his day, but also within the broader context of architectural history. A spiritual thread runs through this history that demonstrates that Steiner’s architecture is not as idiosyncratic as it may initially seem, though whether his work represents an original step forward in the development of modern architecture, or is merely a hangover of nineteenth century eclecticism, must also be considered in order to determine the architectural value of Steiner’s esoteric ideas.