This paper investigates the idea of clinical autonomy. Whilst there is a considerable literature on moral autonomy there is very little on clinical autonomy except as a sociological phenomenon. Using the results of interviews with Community Psychiatric Nurses in England, the three main theories that they have about clinical autonomy are examined. It is argued that there are substantial problems with these theories and an alternative way of understanding clinical autonomy is proposed, the idea of contractual space.

This paper begins with the opposition common to almost all discussions of the nation and nationalism: that between the cultural and the civic nation. Behind this opposition, however, one can detect a certain "complicity" between the two conceptions. And in order to understand the nature of this complicity, the paper proposes to re-examine the origins of the modern nation during the French Revolution. The first nation, it is argued, was conceived in strictly contractual terms; and yet within only a (...) few years the revolutionaries began stumbling towards a more cultural understanding of the nation, which served to complement its contractual definition. This turn to a more cultural discourse must be understood as responding to three rather pressing problems faced by an exclusively contractual conception. First there is the need to find a stable anchorage for the nation in space and time. Second are the difficulties posed by a purely voluntarist conception of national citizenship. Third, and above all, there are the seemingly uncontrollable conflicts borne by the identification of the nation with its political "constitution," and with the revolutionary regime said to embody that constitution. In this perspective, the emergence of a more cultural discourse must be seen as an attempt to stabilize the post-revolutionary regime by depoliticizing the "idea" of the nation. As such, this discourse's emergence is inseparable from "the discovery" of society separate from the instance of democratic, political institutions. The nation, then, has two discourses because it has a dual nature, both political and social. The paper concludes with a reflection on the hyphen in the term "nation-state," as indicating the need to bring society and polity together, but also to keep them apart. (shrink)

Safety-critical systems manufacturers have the duty of care, i.e., they should take correct steps while performing acts that could foreseeably harm others. Commonly, industry standards prescribe reasonable steps in their process requirements, which regulatory bodies trust. Manufacturers perform careful documentation of compliance with each requirement to show that they act under acceptable criteria. To facilitate this task, a safety-centered planning-time framework, called ACCEPT, has been proposed. Based on compliance-by-design, ACCEPT capabilities permit to design Compliance-aware Engineering Process Plans, which are able (...) to show the planning-time allocation of standard demands, i.e., if the elements set down by the standard requirements are present at given points in the engineering process plan. In this paper, we perform a case study to understand if the ACCEPT produced models could support the planning of space software engineering processes. Space software is safety and mission-critical, and it is often the result of industrial cooperation. Such cooperation is coordinated through compliance with relevant standards. In the European context, ECSS-E-ST-40C is the de-facto standard for space software production. The planning of processes in compliance with project-specific ECSS-E-ST-40C applicable requirements is mandatory during contractual agreements. Our analysis is based on qualitative criteria targeting the effort dictated by task demands required to create a CaEPP for software development with ACCEPT. Initial observations show that the effort required to model compliance and processes artifacts is significant. However, such an effort pays off in the long term since models are, to some extend, reusable and flexible. The coverage level of the models is also analyzed based on design decisions. In our opinion, such a level is adequate since it responds to the information needs required by the ECSS-E-ST-40C framework. (shrink)

This paper investigates the idea of clinical autonomy. Whilst there is a considerable literature on moral autonomy there is very little on clinical autonomy except as a sociological phenomenon. Using the results of interviews with Community Psychiatric Nurses in England, the three main theories that they have about clinical autonomy are examined. It is argued that there are substantial problems with these theories and an alternative way of understanding clinical autonomy is proposed, the idea of contractual space.

What is the relationship between street art and the law? In 'A Philosophy Guide to Street Art and the Law', Andrea Baldini argues that street art has a constitutive relationship with the law. A crucial aspect of the identity of this urban art kind depends on its capacity to turn upside down dominant uses of public spaces. Street artists subvert those laws and social norms that regulate the city. Baldini shows that street art has not only transformed public spaces and (...) their functions into artistic material, but has also turned its rebellious attitude toward the law into a creative resource. He aims at elucidating and arguing for this claim, while drawing important implications at the level of street art's metaphysics, value, and relationship with rights of intellectual property, in particular copyright and moral rights. At the other end of the spectrum of contractual art, street art is outlaw art. (shrink)

This paper argues that stoicism as a central element of whiteness shapes, controls, and ultimately limits the experience and expression of emotion in public space. I explore how this may play out in particular medical settings like hospitals in Aotearoa New Zealand. I argue that working in conjunction with other values of whiteness identified by Myser —hyper-individualism, a contractual view of relationships, and an emphasis on personal control and autonomy—this makes hospitals emotionally unsafe spaces for Māori and other (...) groups who place high importance in the collective sharing of emotion. Using death and bereavement as an example, I suggest that challenging and addressing stoicism in the structure and performance of whiteness in hospital settings may provide an important point of entry for anti-racism measures and health equity. (shrink)

This paper focuses on the concept of sterility as idealized in the Biblical text and exemplified in the stories of Sarah and Abraham, Rebecca, Leah, Rachel and Jacob. My analysis of these stories leads to the hypothesis that sterility is one of the foundational themes of Israel’s ancient past, by condensing some of the main obstacles inherent to the emergency of a people who believe to be guided by God. This new perspective on sterility was achieved by focusing on the (...) spectrum of meanings of the Hebrew root ‘qr, which includes infertility and uprooting; these, added to famine in the land, are experiences that will shape the religious conscience of Israel. This approach amplifies the perception of sterility in the Hebrew Bible, as it emerges from the text as a liminal state of deprivation , in opposition to the contents of the divine oath to the patriarchs (progeny and land). But even while enclosing lack of productivity, weakness and death, which have a negative value, Biblical sterility is not a closed circle, but a space open to potentiality, where divine revelation occurs. God reveals himself through sterility and in sterility. The originality and the notion of specificity in the biblical idea of sterility lie in this cyclical trait, which breaks the circumscription and negative orientation of sterility. The Bible presents sterility as a transitory state, an area for individual and corporate transformation of status. In an ideological system, such as ancient Israel’s, where contractual relations replace natural relations, sterility functions as a powerful symbol of the relationship among men and between men and God. And this may be the reason why sterile matriarch’s traditions were continually re-interpreted, from the 10th century BCE. until the 1st century CE, and could be adapted to new contexts and make sense to distinct communities, particularly in times of crisis and transition. (shrink)

This article discusses the nature and content of subsidiary model of state regulation of the social sphere and the possibility of its use in the Republic of Kazakhstan. Model of state paternalism, in which should be a massive and comprehensive support of the living standards of the population due to the state's resources, has exhausted itself and is not compatible with market principles. Defines the principles of vicarious model of state regulation of the social sphere: prevention; social investment; interactivity; tolerance. (...) The conditions of the subsidiary model of state regulation of the social sphere: transparency; openness; continuity and intensity of positive information space; public competition; contractual partnership. Matched procedural elements of interaction that will determine the nature of the practical implementation of the proposed ideological principles, namely, target-oriented approach; expert and assessment activities; contests; nontax incentive mechanisms; meeting site; social contract. Established economic and legal mechanisms and organizational solutions subsidiary structural model of state regulation of social services, such as community foundations. The principles, conditions and procedural elements, economic and legal mechanisms and organizational solutions subsidiary structural model of state regulation of social services allow us to determine the possibility of transition from a paternalistic model to subsidiary for the Republic of Kazakhstan. This means accessible and free to all citizens of basic social services, especially education and health; redistribution of state social spending in favor of the most vulnerable, while reducing assistance provided to families; reduce social inequalities; provide citizens with the highest possible level of social consumption from its own revenues. The need to achieve this transition imposes extremely stringent requirements for economic growth. The main task in this way- providing high perspective, and most importantly, sustainable economic development. (shrink)

Es conocida la oposición de Albert Camus a la pena capital. En sus Réflexions sur la guillotine (1957) va a criticar la máquina judicial que hace sufrir en el tiempo y en el espacio al condenado a muerte. Antes, en L'homme revolté (1951), ha criticado la perversa lógica contractual rousseauniana implicada en la auto-imputación que conduce silenciosamente a Saint-Just al patíbulo en la época del terror revolucionario en Francia y a los condenados a muerte en la purgas del régimen (...) de Stalin en la Unión Soviética. Pero unos años antes, en El Mito de Sísifo (1942), hablando del suicidio, se ha referido a Galileo y al peligro que ha corrido de morir en la hoguera por defender sus verdades. Nos preguntamos aquí por aquello que, en el pensamiento de Camus, convierte a la pena capital en suicidio. (shrink)

This Article argues that the duty of good faith in contractual performance offers powerful but neglected resources to empower workers to pursue their legitimate interests and resist mistreatment by employers. The duty of good faith creates a joint authority structure within contractual relationships, vesting co-contractors with equal and joint authority over the meaning, purposes, and, hence, the requirements of their contract. Implementing such an authority structure requires ensuring that the parties to a contract have the communicative space (...) and epistemic resources they need to uncover and develop a common understanding of their contract. In the context of employment, such an authority structure would be transformative. It would require legal recognition of a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work, and would offer a legal basis to challenge the scope and enforceability of at-will employment clauses. The duty of good faith could thus supply a common law foundation for rights and obligations commonly associated with labor law. (shrink)

The process of integration of digital technologies into the structure of social production and distribution leads to a series of definite trends in capitalist development. These trends are regular and interdependent. The acceleration of information exchange provides an opportunity to replace the Fordism with a thriftier network model, which involves outsourcing and reducing the longevity of contractual obligations and hiring relationships, which leads to the precarization of labor of a certain social group, which can be described as “precariat”. The (...) change in working conditions leads to the change in ways of increasing labor productivity, which is the reason for the emergence of “societies of control” characterized by: distributed power, embedding previously external coercion into the personality, affective engineering, prolongation of the educational process, increasing tempo and rhythm of work, spreading the project as the form of work replacing routine forms, and the emergence of a liquid short-term identity inherent in representatives of the precariat. This article aims to discover and demonstrate the interconnection between these processes. Achieving this goal will open the way to a more thorough separate study of each of these processes in the future but this research will be made from the perspective of their systemic unity. According to the purpose of the article, the structure of work is the following: the first section is devoted to the acceleration of social time, which is connected with the compression of social space and with the change in scale in which commercial and state enterprises can operate. Quick positive feedback, which is provided by the digital network, leads to changes in the infrastructure of enterprises and the transformation of production and logistics models. In addition, the acceleration of the feedback between the employee and the employer leads to the precarization of labor, which is accompanied by the appearance of “societies of control”. (shrink)

Academics are confronted with multiple and conflicting narratives as to what it is to be an academic. Their identities, however, are not entirely of their own making. Through a qualitative study, and deploying a social realist perspective, this paper analyses academic identities in Chile and attempts to locate the patterns of identity in the context of a marketised higher education system. The data were collected in both a state and a private university. The results suggest that distinct kinds of fragilities (...) may be emerging among Chilean academics (ontological and contractual fragilities). These two fragilities can be traced to the attendant structures of the university system at an institutional level (reputational fragility in the public sector and a branding fragility in the private sector). The paper concludes by observing that, although the power of the structures is considerable, there are still spaces for agentic responses. (shrink)

The article discusses philosophical-practical problems of international space law through the prism of the K.-O.Apel’s and J.Habermas’ conception of communicative mind, the H.Jonas’ principle of responsibility, the J.Rawls’ theory of justice. The text articulates aspects of conceptual frame of actual normative-justice documents: priority of interesting of humankind, opening of space for states, based on the principle of equality, prohibition of national appropriation and occupation of space, supremacy of existing international law, international responsibility, cooperation, cosmonaut as personification of (...) humankind etc. It demonstrates social-cultural foundations of international space law, on the one hand, as opposition of West and East geopolitical blocs, on the another hand, as cooperation between them in space exploration. The study clarifies essential features of the K.-O.Apel’s and J. Habermas’ communicative theory: discourse, ideal and real communicative community, regulative principles of apriori of communication, planetary macroethics, communicative action (intersubjectivity, understanding) as a lever of balancing with instrumental (technical mastery of space) and purposeful (success, competitiveness) actions etc. The article demonstrates aspects correlation between a conception of international responsibility of states during space exploration and the H.Jonas’ principle of responsibility: fundamental ambivalence of contemporary technology, natural and contractual responsibility, new formulas of categorical imperatives of contemporary epoch, globality and transcendence of contemporary ethics. The text shows possibilities of applying of the J. Rawls’ theory of justice in ensuring of legitimacy of principles of the priority of welfare interests of humankind, opening of space, based on equality, cooperation in horizons: honesty based on the principles of equal rights, profitability; distribution based on ‘the veil of ingnorance’ procedure; mutual transparency as foundation of reaching common agreements. (shrink)

O objetivo deste artigo é a análise das críticas de Hannah Arendt à concepção dos direitos humanos, introduzida pelo pensamento dos filósofos contratualistas e efetivada, politicamente, pelas revoluções americanas e francesas no final do século XVIII. Contudo, este objetivo não seria plenamente alcançado sem a avaliação da proposta de Arendt para a superação de suas próprias críticas: a reconstrução dos direitos humanos através do reconhecimento que cada indivíduo tem direito a ter direitos, independente das fronteiras do Estado-nação. Arendt vai buscar (...) na moral universalista e cosmopolita kantiana o conceito de humanidade e dá a ele as dimensões ontológicas e políticas necessárias para se construir um espaço público internacional, onde o direito a ter direito seja decorrente do mero pertencimento à humanidade, não se dissolvendo nos limites de cada Estado-nação. The purpose of this article is the analysis of the criticisms of Hannah Arendt's conception of human rights, introduced by the thought of the contractual philosophers and made effective, politically, by American and French revolutions in the late eighteenth century. However, this aim would not be fully achieved without the review of Arendt's proposal to overcome her own criticisms: the reconstruction of human rights by recognizing that every individual has the right to have rights, regardless of borders of the Nation-State. Arendt tries to discover in the universal and cosmopolitan moral of Kant the concept of humanity and gives him the ontological and political dimensions needed to build an international public space where the right to have rights is due to the mere belonging to the humanity, not dissolving itself in the limits of each Nation-State. (shrink)

Leviathan-Toth, Ernesto Neto’s anti/counter-installation which could be seen hanging from the vaults of the Panthéon in autumn 2006 does not seek to exploit this national memorial as a space in which to stand as an exhibition. It responds to all of its surrounding factors – physical, aesthetic, political, and metaphysical, to attack the representative art whose constitutive-constitutional role in the republic, according to Hobbes, can be seen in Leviathan’s frontispiece. Setting up a sort of Critique et Clinique of Representation (...) in all senses of the term beginning with the short-circuit between politics and aesthetics, Neto’s operation sets its sights on the expansive dis-organisation of the multitude living under the « democratic » regime of contractual representation of which the Panthéon is the temple. It provides a body for the rhizomatic-bioenergetic perversion of the Image of the State-Machine, of the Form-State, by projecting a new infra and supra-organic type of reality which draws its « energy » from the forces of the multitudo dissoluta whose radical and vital recomposition it advocates. This work or non-work, derived from a Brazilian political-aesthetic constructivism which is undergoing redefinition, can now only take place in the context of a practice of displacement which incorporates and is constituted of the spectator-participant. (shrink)

The author investigates the necessity of fault as the prerequisite of contractual civil liability. The author makes the conclusion that Lithuanian law, following most of the countries belonging to the civil law tradition and contrary to the common law systems, as well as Vienna convention, UNIDROIT principles, PECL and DCFR, begins with the theory that fault is a requirement for contractual liability. Strict liability in Lithuanian law is the exception of this general rule. Nevertheless, the author argues that (...) the general rule is subject to important exceptions, and the practical importance of these exceptions is as great as the cases falling within the general rule. In case of no agreement of the parties or any provision of law regarding fault as the necessary prerequisite for contractual liability, in Lithuania, similar to France, the distinction between the obligations to produce a given result and the obligations to use reasonable care is essential: according to Article 6.200(4) of the Lithuanian Civil Code (hereinafter – the CC), a party in breach of an obligation to use best efforts is liable for fault. (shrink)

Recent archaeological discoveries show ancient, and particularly Near Eastern society to have been supremely contractual, while Mediterranean society was historically characterized by strong family structures, challenging the 19th century evolutionary Status-to-Contract canon.

Beyond Contractual Morality looks at current debates over the meaning of liberalism by reexamining their roots in eighteenth-century texts, which demonstrate ...

Contemporary society is in the grip of contractual thinking. Realities are interpreted in contractual terms, and goals are formulated in terms of rational contracts. The leading current conceptions of rationality begin with assumptions that human beings are independent, self-interested or mutually disinterested, individuals; they then typically argue that it is often rational for human beings to enter into contractual relationships with each other.

Contemporary society is in the grip of contractual thinking. Realities are interpreted in contractual terms, and goals are formulated in terms of rational contracts. The leading current conceptions of rationality begin with assumptions that human beings are independent, self-interested or mutually disinterested, individuals; they then typically argue that it is often rational for human beings to enter into contractual relationships with each other.

The general relationship between a bank and customer is contractualin nature. For conventional banks, the banker-customer relationship is basedon the debtor-creditor relationship with the bank earning a profit from a spreadmade between interest charged on the borrower of funds and interest paid tothe depositors. In Islamic banking, due to the different contractual transactionsof Islamic banking operation, it is based on a multi-contractual relationships.However, bank consumers perceive that banks enhance their profits by treatingconsumers unfairly and failing to take responsibility (...) when things go wrong.This study examines the duty of care of conventional and Islamic banks towardsbank consumers. It also focuses on the Islamic banks’ duty of care from theperspective of maqāṣid al-Sharī‛ah, to those who use their services. Adoptingthe doctrinal analysis method, this study analyses and compares the duty ofcare of both conventional and Islamic banks. Findings of this study includethat misconduct by banking industries remains rife and that unfair treatment ofcustomers are frequent. As for Islamic banks, the maqāṣid al-Sharī‛ah basedduty of care is found missing in their Islamic banking operation. This studysuggests that the duty of care for both banks should be reformed to improvebank consumers’ experience. For Islamic banks, an improved standard is usefulin performing their duties based on Islamic values. (shrink)

The present article develops a durkheimean interpretation of the division of social work as organic and contractual solidarity. This interpretation will be examined, on one hand, while it characterizes a kind of industrial society that exalts the solidarity of roles in the collective work but not in the modes of production; on the other hand, while it presupposes a State playing the role of catalyst of the corporations and does not let foresee a notion of contract.Neste artigo desenvolvemos a (...) interpretação durkheimeana da divisão do trabalho social como solidariedade orgânica e contratual. Examinamos alguns aspectos que essa análise nos apresenta, de um lado, pela caracterização de um tipo de sociedade industrial que enaltece a solidariedade das funções no trabalho coletivo e não nos modos de produção; e, de outro, pela pressuposição de um Estado como elemento catalizador das corporações e que não deixa de antever uma noção de contrato. (shrink)

This article challenges the generally accepted dogma that reliance is an essential ingredient in contractual formation. We argue that this view has resulted from an erroneous interpretation of the relevant case law, failure to cite contrary authority, and the elevation of often oblique judicial references to the need for reliance to the status of fundamental contractual principle. Contractual theory and clear policy reasons support our position that in English law a contractual obligation subsists when a person, (...) knowing of a promise, performs the stipulated act (or gives the promise) requested by the promisor, even though that person has not relied on the promise. (shrink)

As an employee, a sports doctor has obligations to their employer, but also professional and widely accepted obligations of a doctor to the patient . The conflict is evident when sports doctors are asked by an athlete to keep personal health information confidential from the coach and team management, and yet both doctor and athlete have employment contracts specifying that such information shall be shared. Recent research in New Zealand shows that despite the presence of an employment contract, there appears (...) to be a wide range of behaviours among sports doctors when an athlete requests that information about them be kept from team management. Many seem willing to honour requests to keep health information about the athlete confidential, thereby being in breach of the employment contract, while others insist on informing team management against the wishes of the athlete. There are a number of potential solutions to this dilemma from forcing doctors to meet their contractual obligations, to limiting the expectations of the employment contract. This paper suggests that at times it may be appropriate to do both, making the position of the doctor clearer and supporting the ability of this group to resist pressure by coaches and management through having a robust code of ethics. (shrink)

The contractual liability exposure of members of unincorporated non-profit undertakings has not been deeply investigated by the courts. The basic principle is clear enough - contractual liability depends on whether or not a member participates in managing the affairs of the association. This is framed by the judges as a question of agency. What has remained unstated is the rationale for this approach. The author examines the English, Canadian, and American authorities in an effort to clarify the operation (...) of the agency analysis and to justify the liability assignments it produces. (shrink)

In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar (...) and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the Response briefly reflects on the significance of Kar and Radin’s project. (shrink)

Developments in contract law over the past century have led to the proliferation of interpretive theories according to which contract law is no longer a sui generisi legal branch. It is widely accepted that if there is a sui generis contractual obligation, it must somehow be based on the wills of the parties. But a new orthodoxy in contract theory claims that the role of the will of the parties in contract law has been progressively shrinking due to judicial (...) doctrines within the law of contract and also to general statutory provisions. It is no longer apparent that there is any interesting sense in which contractual liability is based on the will of the parties. Hence, so it is claimed, contract law has lost its sui generis nature. The article challenges this new orthodoxy. But rather than reverting to the old orthodoxy—the will theory of contracts (or its contemporary rendition, contract as promise)—it argues that we should resist being forced to choose between them. The article argues that the purpose of contractual liability is to support the practice of voluntary obligations. This view preserves an important connection between contractual liability and voluntary undertakings and meets the objections that beset the will theory. (shrink)

This paper focuses on the role of contract as a governance mechanism in contemporary economic and social relations, exploring this theme in the context of recent writing on contract and contracting within law and other disciplines. The trends towards both outsourcing by private firms and privatization of public services have increased the importance of contract as an instrument of market and quasi-market exchange. Such organizational developments have been accompanied by institutional changes in the way in which business relationships are regulated (...) through legal and extralegal norms and other constraints in the contractual environment. Contract is also being deployed increasingly as an instrument of regulation of social relations between the state and citizens in the fields of welfare, education and criminal justice. Following Macneil, the paper develops a methodology for assessing the quality of different types of relationship—between buyers and sellers, purchasers and providers, providers and consumers, regulators and regulatees, government and governed, and state agencies and citizens—according to the relationality of «contract» norms. Drawing on theories of responsive regulation, the paper explores the institutional and organizational conditions of responsive contractual governance in selected areas of market, quasi-market, and social relations. The underlying argument is that the core values of democracy, participation, and citizenship have a central part to play in the determination of responsive regulatory policy. We should aim to increase the level of public participation in decisions concerning organizational and institutional frameworks, so that citizen and consumer interests may adequately be represented in the determination of optimal forms of governance. (shrink)

Un istoric al noţiunii de societate civilă va considera, fără îndoială, absurdă tentativa mea de a retrasa formarea conceptului în sânul teoriei contractualiste moderne, şi aceasta din doua motive. In primul rând, pentru că în filozofia politică a secolelor XVII-XVIII expresia "societatea civilă" este încă perfect sinonimă cu "comunitate politică". Apoi, pentru că sensul contemporan al expresiei se dezvoltă în afara tradiţiei contractualiste, în particular în scoala scoţiană, care, de la Hume la Smith şi Ferguson, respinge ideea de contract fondator (...) ca pe o ficţiune de filozof. Pe scurt, susţinătorii contractualismului nu vorbeau despre societatea civilă în sensul contemporan când utilizau aceasta expresie, iar inventatorii societăţii civile în sens contemporan erau adversari ai contractualismului. (shrink)