Permanence du droit naturel.

Mode of access: Internet.

Ethics and intervention: The 'humanitarian exception' and the problem of abuse in the case of Iraq

This article investigates the ethics of intervention and explores the decision to invade Iraq. It begins by arguing that while positive international law provides an important framework for understanding and debating the legitimacy of war, it does not cover the full spectrum of moral reasoning on issues of war and peace. To that end, after briefly discussing the two primary legal justifications for war (implied UN authorization and pre-emptive self-defence), and finding them wanting, it asks whether there is a moral 'humanitarian exceptions to this rule grounded in the 'just war' tradition. The article argues that two aspects of the broad tradition could be used to make a humanitarian case for war: the 'holy war' tradition and classical just war thinking based on natural law. The former it finds problematic, while the latter it argues provides a moral space to justify the use of force to halt gross breaches of natural law. Although such an approach may provide a moral justification for war, it also opens the door to abuse. It was this very problem that legal positivism from Vattel onwards was designed to address. As a result, the article argues that natural law and legal positivist arguments should be understood as complementary sets of ideas whose sometimes competing claims must be balanced in relation to particular cases. Therefore, although natural law may open a space for justifying the invasion of Iraq on humanitarian terms, legal positivism strictly limits that right. Ignoring this latter fact, as happened in the Iraq case, opens the door to abuse.

Conflicting obligations: Pufendorf, Leibniz and Barbeyrac on civil authority

Barbeyrac's republication of and commentary on Leibniz' attack on Pufendorf's natural-law doctrine is often seen as symptomatic of the failure of all three early moderns to solve a particular moral-philosophical problem: that of the relationship between civil authority and morality. Making use of the first English translation of Barbeyrac's work, this article departs from the usual view by arguing that here we are confronted by three conflicting constructions of civil obligation, arising not from the common intellectual terrain of moral philosophy, but from divergent religious and political cultures. If this approach makes the three constructions less susceptible to theoretical reconciliation, then it opens them to a more revealing historical investigation, in terms of the particular religious and political circumstances in which they arose, and which they were designed to address. The result is that these early modern struggles over the nature of civil obligation confront us again as unfinished historical business.

Plato's Cretan Colony: Theology and Religion in the Political Philosophy of the Laws

The Laws is generally regarded as Plato’s attempt to engage with the practical realities of political life, as opposed to the more idealistic, or utopian, vision of the Republic. Yet modern scholars have often felt disquieted at the central role of religion in the Laws’ second-best city and regime. There are essentially the two dominant interpretations on offer today: either religion supports a repressive theocracy, which controls every aspect of the citizens’ lives to such an extent that even philosophy itself is discouraged, or religion is an example of the kind of noble lie, which the philosopher must deceive the citizens into believing—viz., that a god, not a man, is the author of the regime’s laws. I argue that neither of these interpretations do justice to the dialogue’s intricately dramatic structure, and therefore to Plato’s treatment of civil religion. What I propose is a third position in which Plato both takes seriously the social and political utility of religion, and views theology as a legitimate, and even necessary, subject of philosophical inquiry without going so far as to advocate theocracy as the second best form of regime.

I conclude that a proper focus on the dialogue form, combined with a careful historical analysis of Plato’s use of social and political institutions, reveals an innovative yet traditional form of civil religion, purified of the harmful influence of the poets, based on the authority of the oracle at Delphi, and grounded on a philosophical conception of god as the eternal source of order, wisdom, and all that is good. Through a union of traditional Delphic theology and Platonic natural theology, Plato gives the city of the Laws a common cult acceptable to philosopher and non-philosopher alike, and thus, not only bridges the gap between religion and philosophy, but also creates a sense of community, political identity, and social harmony—the prerequisites for political order and stability. The political theology of the Laws, therefore, provides a rational defense of the rule of law (νόμος) re-conceived as the application of divine Reason (νοῦς) to human affairs.

Renaissance Humanism and Ethnicity before Race:The Irish and the English in the Seventeenth Century

Inspired both by debates about the origins of the modern ideology of race and also by controversy over the place of Ireland and the Irish in theories of empire in the early modern Atlantic world, Renaissance Humanism and Ethnicity before Race argues that ethnic discourse among the elite in early modern Ireland was grounded firmly in the Renaissance Humanism and Aristotelianism which dominated all the European universities before the Enlightenment. Irish and English, Catholic and Protestant, all employed theories of human society based on Aristotle’s Politics and the natural law of the medieval universities to construct or dismantle the categories of civility and barbarism. The elites operating in Ireland also shared common resources, taught in the universities, for arguing about the human body and its ability to transmit hereditary characteristics. Both in Ireland and elsewhere in Europe, these theories of human society and the human body underwent violent changes in the late seventeenth century under the impact of the early Enlightenment. These changes were vital to the development of race as we know it.

Reproducing Women: Female Bodily Narratives and English Patriarchies, 1600-1660

During the early Stuart period, England’s return to male monarchal rule resulted in the emergence of a political analogy that understood the authority of the monarch to be rooted in the “natural” authority of the father; consequently, the mother’s authoritative role within the family was repressed. As the literature of the period recognized, however, there would be no family unit for the father to lead without the words and bodies of women to make narratives of dynasty and legitimacy possible. Early modern discourse reveals that the reproductive roles of men and women, and the social hierarchies that grow out of them, are as much a matter of human design as of divine or natural law. Moreover, despite the attempts of James I and Charles I to strengthen royal patriarchal authority, the role of the monarch was repeatedly challenged on stage and in print even prior to the British Civil Wars and the 1649 beheading of Charles I. Texts produced at moments of political crisis reveal how women could uphold the legitimacy of familial and political hierarchies, but they also disclose patriarchy’s limits by representing “natural” male authority as depending in part on women’s discursive control over their bodies. Due to the epistemological instability of the female reproductive body, women play a privileged interpretive role in constructing patriarchal identities. The dearth of definitive knowledge about the female body during this period, and the consequent inability to fix or stabilize somatic meaning, led to the proliferation of differing, and frequently contradictory, depictions of women’s bodies. The female body became a site of contested meaning in early modern discourse, with men and women struggling for dominance, and competitors so diverse as to include kings, midwives, scholars of anatomy, and female religious sectarians. Essentially, this competition came down to a question of where to locate somatic meaning: In the opaque, uncertain bodies of women? In women’s equally uncertain and unreliable words? In the often contradictory claims of various male-authored medical treatises? In the whispered conversations that took place between women behind the closed doors of birthing rooms? My dissertation traces this representational instability through plays by William Shakespeare, John Ford, Thomas Middleton, and William Rowley, as well as in monstrous birth pamphlets, medical treatises, legal documents, histories, satires, and ballads. In these texts, the stories women tell about and through their bodies challenge and often supersede male epistemological control. These stories, which I term female bodily narratives, allow women to participate in defining patriarchal authority at the levels of both the family and the state. After laying out these controversies and instabilities surrounding early modern women’s bodies in my first chapter, my remaining chapters analyze the impact of women’s words on four distinct but overlapping reproductive issues: virginity, pregnancy, birthing room rituals, and paternity. In chapters 2 and 3, I reveal how women construct the inner, unseen “truths” of their reproductive bodies through speech and performance, and in doing so challenge the traditional forms of male authority that depend on these very constructions for coherence. Chapter 2 analyzes virginity in Thomas Middleton and William Rowley’s play The Changeling (1622) and in texts documenting the 1613 Essex divorce, during which Frances Howard, like Beatrice-Joanna in the play, was required to undergo a virginity test. These texts demonstrate that a woman’s ability to feign virginity could allow her to undermine patriarchal authority within the family and the state, even as they reveal how men relied on women to represent their reproductive bodies in socially stabilizing ways. During the British Civil Wars and Interregnum (1642-1660), Parliamentary writers used Howard as an example of how the unruly words and bodies of women could disrupt and transform state politics by influencing court faction; in doing so, they also revealed how female bodily narratives could help recast political historiography. In chapter 3, I investigate depictions of pregnancy in John Ford’s tragedy, ‘Tis Pity She’s a Whore (1633) and in early modern medical treatises from 1604 to 1651. Although medical texts claim to convey definitive knowledge about the female reproductive body, in actuality male knowledge frequently hinged on the ways women chose to interpret the unstable physical indicators of pregnancy. In Ford’s play, Annabella and Putana take advantage of male ignorance in order to conceal Annabella’s incestuous, illegitimate pregnancy from her father and husband, thus raising fears about women’s ability to misrepresent their bodies. Since medical treatises often frame the conception of healthy, legitimate offspring as a matter of national importance, women’s ability to conceal or even terminate their pregnancies could weaken both the patriarchal family and the patriarchal state that the family helped found. Chapters 4 and 5 broaden the socio-political ramifications of women’s words and bodies by demonstrating how female bodily narratives are required to establish paternity and legitimacy, and thus help shape patriarchal authority at multiple social levels. In chapter 4, I study representations of birthing room gossip in Thomas Middleton’s play, A Chaste Maid in Cheapside (1613), and in three Mistris Parliament pamphlets (1648) that satirize parliamentary power. Across these texts, women’s birthing room “gossip” comments on and critiques such issues as men’s behavior towards their wives and children, the proper use of household funds, the finer points of religious ritual, and even the limits of the authority of the monarch. The collective speech of the female-dominated birthing room thus proves central not only to attributing paternity to particular men, but also to the consequent definition and establishment of the political, socio-economic, and domestic roles of patriarchy. Chapter 5 examines anxieties about paternity in William Shakespeare’s The Winter’s Tale (1611) and in early modern monstrous birth pamphlets from 1600 to 1647, in which children born with congenital deformities are explained as God’s punishment for the sexual, religious, and/or political transgressions of their parents or communities. Both the play and the pamphlets explore the formative/deformative power of women’s words and bodies over their offspring, a power that could obscure a father’s connection to his children. However, although the pamphlets attempt to contain and discipline women’s unruly words and bodies with the force of male authority, the play reveals the dangers of male tyranny and the crucial role of maternal authority in reproducing and authenticating dynastic continuity and royal legitimacy. My emphasis on the socio-political impact of women’s self-representation distinguishes my work from that of scholars such as Mary Fissell and Julie Crawford, who claim that early modern beliefs about the female reproductive body influenced textual depictions of major religious and political events, but give little sustained attention to the role female speech plays in these representations. In contrast, my dissertation reveals that in such texts, patriarchal society relies precisely on the words women speak about their own and other women’s bodies. Ultimately, I argue that female bodily narratives were crucial in shaping early modern culture, and they are equally crucial to our critical understanding of sexual and state politics in the literature of the period.

Entre iusnaturalismo y positivismo: John Finnis

John Finnis, de origen australiano; culminó su formación académica y se desempeñó como profesor en Oxford. Absorbió la filosofía analítica, vigente en el ambiente intelectual y universitario del mundo anglosajón en la segunda mitad del siglo XX. Ante la inquietud de encontrar un fundamento más sólido a los derechos naturales, dentro de la concepción positivista, L.H.A Hart pidió a Finnis que escribiera sobre la ley natural y los derechos naturales. Finnis había realizado su tesis doctoral bajo la dirección de Hart. Después de diez años, en 1980, Finnis publica Natural Law and Natural Rights. Es una obra densa, dirigida principalmente a los teóricos del derecho que ya percibían la insuficiencia del iuspositivismo pero que seguían considerando que las teorías iusnaturalistas carecían de recursos para explicar válidamente el derecho. En Natural Law and Natural Rights, Finnis demuestra lo contrario: que la respuesta adecuada está precisamente en el iusnaturalismo, pero en un iusnaturalismo que ahonda sus raíces en la doctrina de Tomás de Aquino, y no en las concepciones e interpretaciones, a veces, arbitrarias que la escolástico hizo de él. Finnis parte, como lo hacen todos sus contemporáneos, de una perspectiva positivista. Determina a las leyes vigentes como el objeto de su estudio. Pero descubre que ni la sanción, ni la presión social, ni la costumbre u otros motivos aducidos por el positivismo son razones suficientes para que una persona cumpla y observe las disposiciones legales. Lo único que explica cabalmente el cumplimiento de una ley es la racionalidad que ésta implica en razón del bien común. En el análisis de esa racionalidad, Finnis establece: primero, que hay bienes evidentes, en el sentido de que no requieren de ninguna comprobación adicional o más fundamental; que la razón exige que sean actualizados para que la persona se realice. Esos bienes fundamentales (formas básicas en la terminología finnisiana) son: la vida, el conocimiento, el juego, la amistad, la experiencia estética, la razonabilidad práctica y la religión. Lo segundo que Finnis afirma, es que cada uno escoge, como proyecto de vida, uno de estos bienes. Por lo tanto, todas las decisiones en la vida estarán conformadas por esa opción de vida que cada uno ha escogido. No existe primacía de una forma básica sobre otra. No hay jerarquía de valores. La prioridad la da el sujeto, al optar por una de ellas...

The distinctive common good

This paper defends the traditional distinctive notion of the common good against the claim that it is normatively redundant on the aggregative conception. The first two sections of the paper outline the different candidate conceptions of the common good and the normative role of the common good within natural law theories. The paper then considers some difficulties faced by the instrumental and aggregative conceptions, before developing an Aristotelian account of the distinctive conception of the common good and demonstrating its normative significance for a natural law account of political and legal authority.

Aquinas, Kant and eclipse of practical reason

The article examines the nature and scope of practical reason with regard to Saint Thomas Aquinas' work offering materials for defending a substantive view of practical rationality. Topics include the differences between procedural and substantive views of practical rationality, philosopher Christine M. Korsgaard's interpretation of philosopher Immanuel Kant's views on practical reason, and modern versions of the natural law theory.

Non-Newtonian natural convection flow along an isothermal horizontal circular cylinder using modified power-law model

Laminar two-dimensional natural convection boundary-layer flow of non-Newtonian fluids along an isothermal horizontal circular cylinder has been studied using a modified power-law viscosity model. In this model, there are no unrealistic limits of zero or infinite viscosity. Therefore, the boundary-layer equations can be solved numerically by using marching order implicit finite difference method with double sweep technique. Numerical results are presented for the case of shear-thinning as well as shear thickening fluids in terms of the fluid velocity and temperature distributions, shear stresses and rate of heat transfer in terms of the local skin-friction and local Nusselt number respectively.

Steady natural convection of non-Newtonian power-law fluid in a trapezoidal enclosure

Numerically investigation of free convection heat transfer in a differentially heated trapezoidal cavity filled with non-Newtonian Power-law fluid has been performed in this study. The left inclined surface is uniformly heated whereas the right inclined surface is maintained as uniformly cooled. The top and bottom surfaces are kept adiabatic with initially quiescent fluid inside the enclosure. Finite volume based commercial software FLUENT 14.5 is used to solve the governing equations. Dependency of various flow parameters of fluid flow and heat transfer is analyzed including Rayleigh number, Ra ranging from 10^5 to 10^7, Prandtl number, Pr of 100 to 10,000 and power index, n of 0.6 to 1.4. Outcomes have been reported in terms of isotherms, streamline, and local Nusselt number for various Ra, Pr, n and inclined angles. Grid sensitivity analysis is performed and numerically obtained results have been compared with those results available in the literature and found good agreement.

The rule of law, the public interest and the management of natural resources in Australia

The statutory arrangements for the management of natural resources in Australia confer powers of decision-making upon government agencies and, at the same time, restrict how these powers are to be exercised by reference either to stated criteria or in some instances to the public interest. These restrictions perform different functions according to their structure, form and language: for example they may be in the form of jurisdictional, deliberative or purposive rules. This article reviews how the offshore resources legislation of the Commonwealth and some examples of the onshore resources legislation of Queensland address the functions performed by the public interest in determining whether there is compliance with the principle of the rule of law.

Perspectives on Australian bankruptcy law through the prism of the World Bank report on the treatment of the insolvency of natural persons

The insolvency of natural persons raises questions not only for a nation’s economy but also for its concern for equity. The World Bank has recently released a Report on the Treatment of the Insolvency of Natural Persons to guide nations in addressing the issues raised by an individual debtor’s insolvency. A brief review of Australia’s personal insolvency laws shows that it addresses many of the issues raised by the Report. However two areas are identified as worthy of further investigation by policy-makers and scholars to better address a concern for equity.

A Note of Zipf's Law, Natural Languages, and Noncoding DNA Regions

In Phys. Rev. Letters (73:2), Mantegna et al. conclude on the basis of Zipf rank frequency data that noncoding DNA sequence regions are more like natural languages than coding regions. We argue on the contrary that an empirical fit to Zipf"s "law" cannot be used as a criterion for similarity to natural languages. Although DNA is a presumably "organized system of signs" in Mandelbrot"s (1961) sense, and observation of statistical featurs of the sort presented in the Mantegna et al. paper does not shed light on the similarity between DNA's "gramar" and natural language grammars, just as the observation of exact Zipf-like behavior cannot distinguish between the underlying processes of tossing an M-sided die or a finite-state branching process.