The Totemic Authority of the Court

This article examines the place of the court within civil religion. It is argued that every civil religion is rooted in a magical anchor that in contemporary democratic civil religions is provided by the court. While in most institutions of civil religion totemic authority is represented, in court it is present. Therefore, court proceedings are occurrences of magic: they are performances (rituals and ceremonies) during which the sacred Thing is present. In court, the law itself and the clerical community to which it was entrusted assume the characteristics of the sacred Thing. The law appears under two facets: on the one hand, it is a norm and a word while, on the other hand, it is a Thing devoid of meaning and reason. Formalism is a magical mode of thinking that treats law as a timeless and meaningless Thing. In the course of the argument, the distinctions between ceremony and ritual, between social structure and communitas, and between religion and magic are reformulated, and the concepts of zone of familiarity and clerical community are laid out in a nutshell. This revised version was published online in July 2006 with corrections to the Cover Date.     

Flag desecration in American culture: Offenses against civil religion and a consecrated symbol of nationalism

Adoration for the United States flag is emblematic of American nationalism and patriotism. Moreover, in extreme forms, its rigid orthodoxy also reflects civil religion — a non-sectarian faith in which secular objects are transformed into sacred icons. Ostensibly, elements of civil religion imbue reverence for the flag, and although the recent flag protection campaign has caught the attention of intellectuals from various academic disciplines, sociologists are conspicuously absent from such discourse. In light of its relevance to civil religion, the dearth of sociological analysis on flag desecration is especially disconcerting. This article offers several theoretical explanations for the social construction of flag desecration and its sociological significance to civil religion.     

Class wars? Religion and (In)equality in the Workplace

In this paper, I seek to demonstrate the potential for conflictinherent in the prohibition of discrimination on grounds ofreligion or belief with the regulation of discrimination onother grounds. I suggest that such conflict is inevitable andthat it is a mistake to protect religion and/or belief in likemanner to grounds such as sex, race, sexual orientation anddisability. While such protection is, at present, required byEC law, I suggest that legislation along present lines is notrequired by the European Convention on Human Rights and thatit is not justified by any special quality of religion. On thecontrary, I argue that requiring the accommodation of practicesor beliefs categorised as ‘religious’ tends to perpetuatepractices and beliefs which are problematic on equality andother grounds.     

Blasphemy in an Age of Corroding Secularity

‘Sacred’ may be defined in various ways, depending on one’s worldview. In a pluralistic society, a single perspective from which to decide what is sacred seems absent. Yet certain elements are taken to be sacred such that they transcend individual worldviews. Their inviolability entails blasphemy laws, where ‘blasphemy’ extends beyond what is traditionally considered religious, since ‘religion’ itself is not clearly demarcated either. The interests of the sacred may be protected by blasphemy laws, but the downside of such laws is that the freedom of expression is compromised. A balanced view is necessary to accommodate these conflicting interests.

     

A Conversation with Tibetans? Reconsidering the Relationship between Religious Beliefs and Secular Legal Discourse

Over cups of chai, a conversation between U.S. law professors and Tibetan exiles about the formation of a new democratic Tibetan government under the Dalai Lama goes awry. This article investigates why the misunderstandings occurred by presenting the context of the Tibetan and U. S. concepts of sacredness and secularity. The former Tibetan government and legal system are explained in some derail as well as the Tibetan wiew of the sacred and secular spheres in society. The deistic origins of the U.S. Constitution and the pervasive religious cosmology of the Framers are then described. These two similar positions are contrasted with the current modern and postmodern positions of an all-encompassing secular sphere that defines and contains religion. The author argues that "sacred" and "secular" have changed positions, with secularity now having an unmarked positive value and being viewed by U.S. law professors as a necessity for a democratic political and legal system. As the conversation with the Tibetans demonstrates, the richness and power of an integrated sacred perspective is difficult to comprehend from a hegemonic secular public space. Reformulating this "inarticulate debate" will be necessary for a coherent conversation to take place.     

试论企业发展与品牌战略实施

市场经济时代,品牌已成为企业占领市场的重要工具。我国企业具有很强的制造能力,产品畅销国内、国际市场,但具有影响力的知名品牌却很少。因此,只有通过政府和企业的共同努力创建一批拥有自主知识产权的知名品牌,才能使我国企业在激烈的市场竞争中立于不败之地。本文从我国企业实施品牌战略的意义入手,分析了在实施品牌战略过程中存在的主要问题及成因,提出了实施品牌战略促进企业发展的建议。     

Does collusive advertising facilitate collusive pricing? Evidence from experimental duopolies

This article analyzes experimentally whether the degree of collusion for one dimension of duopolists?? interactions influences the degree of collusion for another dimension. More precisely, I will explore whether a high degree of collusion for advertisement expenditures facilitates tacit price collusion. Two environments are tested, in which the size of the spillover between advertising expenditures is varied. The results indicate that both degrees of collusion are correlated: a high degree of collusion on advertising functions as a signalling device triggering a significantly higher degree of price collusion by the opponent. Thus advertising expenditures seem to be a useful indicator for market regulators to detect non-competitive pricing.     

刑讯与五听:“情实”背后的身体思维模式

五听一般倾向于通过被讯问者身体情态的自然流露获取查案的线索,刑讯则致力于将惩罚作为一种证明罪证事实之有无的直接手段,二者在追求"情实"的总体目标下获得了统一性,其背后是中国古代独特的身体思维模式运作的结果。刑讯与五听渊源于原始初民社会的神裁法机制,在将巫术的神圣仪式与法律的裁判技术巧妙融合的过程中,讯问双方的身体与神意探知的"真相"达到了一种人神互渗、主客同构的原始思维的认知模式。这种思维模式构成了古代狱讼审断中,司法官吏实施刑讯和五听手段背后的身体思维模式的历史渊源。     

Poetic Justice: Why Sex-Slaves Should be Allowed to Sue Ignorant Clients in Conversion

In this article I argue that clients who purchase commercial sex from forced prostitutes should be strictly liable in tort towards the sex-slaves. Such an approach is both normatively defensible and doctrinally feasible. As I have argued elsewhere, fairness and equality demand that clients compensate sex-slaves even if one refuses to acknowledge that fault is involved in purchasing sex from a prostitute who might be forced. In this article I argue that such strict liability could be grounded in the tort of conversion, and not only (as argued elsewhere) in battery. Since the quintessential experience of sex-slaves is that of being treated as chattels, the appropriate legal response is to allow them to benefit from the strict liability imposed on those who interfere with an owner’s dominion over his property. Accordingly, sex-slaves should be viewed as both subjects and objects. As subjects they can sue clients for the violation of their sexual autonomy manifested by their treatment as objects. This approach is both advantageous to sex-slaves, in the sense it affords them protection that might not otherwise exist, and fair, since the ultimate response to the objectification of sex-slaves by clients should be to afford the former a proprietary-based claim against the latter. I further explain why my approach is not problematic on conceptual grounds, anti-commodification sentiments or feminist concerns with the symbolic message of my solution: that the law treats women as property.     

Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State

Clemency in capital cases today has become quite rare. Capital clemency has been a victim of the rejection of rehabilitation as the guiding philosophy of criminal sentencing and of the increasing politicization of issues of crime and punishment since the 1960s. Yet despite the reluctance of governors to grant clemency, despite the difficulty of rectifying miscarriages of justice through the clemency process, petitions seeking commutation or pardon in death cases still are regularly presented to chief executives. With so little chance of success, filing them may seem to be nothing more than an empty ritual. In this article, I examine clemency petitions from Texas and Virginia, and I argue that those petitions may serve another function, and take on meaning in another way. This function I label "memorialization." These pleas provide an archive of stories of law's failures, of alleged breakdowns in the legal process, of a legal process in disrepair, as well as of racial prejudice, of lives shattered by violence and neglect, of remorse, rehabilitation, and redemption. They are cultural artifacts, documents that address both governors and an indeterminate audience beyond them and that memorialize miscarriages of justice. While they reveal the importance of religion, family, and good works in American thinking about remorse, redemption, and mercy, they also should be seen as histories of the present, documenting the breakdowns and inequities in the death penalty system as well as the tragic circumstances of lives shaped and shattered by poverty, abuse, and neglect.     

Media framing and political advertising in the Patients' Bill of Rights debate

The purpose of this article is to assess the influence of interest groups over news content. In particular, I explore the possibility that political advertising campaigns affect the tenor and framing of newspaper coverage in health policy debates. To do so, I compare newspaper coverage of the Patients' Bill of Rights debate in 1999 in five states that were subject to extensive advertising campaigns with coverage in five comparison states that were not directly exposed to the advocacy campaigns. I find significant differences in coverage depending on the presence or absence of paid advertising campaigns, and conclude that readers were exposed to different perspectives and arguments about managed care regulation if the newspapers they read were published in states targeted by political advertisements. Specifically, newspaper coverage was 17 percent less likely to be supportive of managed care reform in states subject to advertising campaigns designed to foment opposition to the Patients' Bill of Rights. Understanding the ability of organized interests and political actors to successfully promote their preferred issue frames in a dynamic political environment is particularly important in light of the proliferation of interest groups, the prevalence of multimillion-dollar political advertising campaigns, and the health care reform debate under President Barack Obama.     

Pre-sale misrepresentations in passing off: an idea whose time has come or unfair competition by the back door?

Legal context. This article addresses the scope of the tortof passing off in English common law. Key points. The scope of passing off has traditionally beenlimited to confusion at the point of sale. Developments in marketpractice and trade mark law may argue in favour of extendingthat scope to cover both pre- and post-sale confusion. However,such an extension raises commonly voiced concerns about theintroduction of a general tort of unfair competition into Englishlaw. This article considers the specific issue of pre-sale confusionand concludes that there is both the need and the scope to bringit within reach of passing off. To do so would not amount tothe introduction of a general tort of unfair competition, butwould be entirely consistent with the rationale which has alwaysbeen the foundation for the tort. Practical significance. The conclusion advocated in this articlewould expand the range of conduct on which passing off claimscould be based and would increase the protection afforded tothe owners of famous brands.     

Why Tolerate Conscience?

In Why Tolerate Religion?, Brian Leiter argues against the special legal status of religion, claiming that religion should not be the only ground for exemptions to the law and that this form of protection should be, in principle, available for the claims of secular conscience as well. However, in the last chapter of his book, he objects to a universal regime of exemptions for both religious and secular claims of conscience, highlighting the practical and moral flaws associated with it. We believe that Leiter identifies a genuine and important contemporary legal and philosophical problem. We find much to admire in his reasoning. However, we raise questions about two claims that are crucial for his argument. The first claim is that it is not religion as such, but conscience that deserves toleration and respect. The second claim is that respect for religion and conscience demands ‘principled toleration’ but does not entail stronger policies of legal exemptions. Against the first claim, we argue that Leiter does not successfully distinguish religious belief from secular conscience and morality; and he does not explain why secular conscience (which shares many of religious conscience’s epistemic features) deserves respect. Against the second claim, we argue that the most promising theories of legal exemptions are not classical theories of liberal toleration.     

THE COMPETITIVE EFFECTS OF A CABLE TELEVISION OPERATOR'S REFUSAL TO CARRY DSL ADVERTISING

Many cable television operators routinely refuse to run localDSL advertising on their cable systems. Given that such conductreduces the advertising profits of cable companies, a plausiblepurpose for such discriminatory refusals to deal is to limittheir cable customers' information about competitive alternativesto their cable modem services. By banning local DSL advertisementsplaced on cable television, a cable television operator foreclosesequally efficient rivals (DSL providers) in the broadband Internetaccess market from the most efficient form of advertising abroadband product (television advertising), as I prove here,and thereby impairs rivals' efficiency. To the extent that DSLproviders cannot compete as effectively as they would in theabsence of the ban, the ban allows cable television operatorsto raise the price of cable modem service and thereby reduceconsumer welfare. Using a traditional antitrust analysis, Ipresent evidence that local television advertising can be aseparate product market (when it comes to marketing DSL), andthat cable television providers have market power in that advertisingmarket. I also present evidence that local television advertisingon cable networks is the most efficient form of advertisingfor DSL providers. The potential anticompetitive effect of cable'sban on DSL advertising is to relegate DSL advertising to lessefficient marketing channels, thereby allowing cable operatorsto charge higher prices for cable modem service. Such conductthus raises obvious antitrust issues.     

Radbruch and Hart on the Grudge Informer: A Reconsideration

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.     

Redemption and reproach: Religion and carceral control in action among women in prison

Criminologists are increasingly interested in how a variety of justice-adjacent institutions scaffold surveillance and punishment in the U.S. criminal justice system. A relevant but understudied institution within the carceral state is that of religion. Drawing on 12 months of ethnographic fieldwork inside a U.S. state women's prison, I interrogate how religion—predominately conservative and evangelical Protestantism—served dual purposes in light of carceral control. Religion offered redemptive narratives to counter punitive carceral narratives promulgated by the state. At the same time, this narrative shift from “flawed” to “faithful” prescribed particular forms of embodiment: avoiding fights and rejecting sexual relationships with women. These forms of Protestant embodiment aligned with carceral purposes, such that women who reprimanded others for breaching religious norms were simultaneously enforcing prison rules. Although rhetorically challenging official prison narratives on the meaning of incarceration, Protestant narratives in practice regulated women's emotional and sexual behaviors and fostered a system of informal surveillance among incarcerated women. These findings illuminate how organizational narratives are linked to individual action. More broadly, they suggest how an institution such as religion can undergird state authority within an intractable context of carceral control.     

Islam, modernization and crime: A test of the religious ecology thesis

Using a United Nations (United Nations, 1977) cross-national data set on offender and offense rates for a variety of crimes, this article qualifies recent research into religiosity by investigating the relationship between Islamic religion, economic development, and crime rates. Considerable research has demonstrated a positive correlation between economic development (often defined as modernization) and crime. Other research has suggested that religion is an impedence to crime, although the results are a little less clear. No previous studies have examined the relationship between the Islamic religion and crime. Results suggest that, when level of economic development is held constant, Islamic countries do not differ significantly in crime rates compared to nonIslamic countries.     

Corporations,Sovereignty and the Religion of Neoliberalism

This article seeks to contribute to the thinking of forms of corporateness, sociality and authority in the context of, but also beyond, neoliberalism, the neoliberal state and neoliberal accounts of the corporation. It considers neoliberalism in relation to the theological genealogies of modernity, politics and economy, and the way in which neoliberalism itself functions as a secular religion—one which intensifies liberal individualism and involves a blind faith in the market redefining all social interactions in terms of contract. I turn to the theological genealogies of sovereignty and economy, and of the corporation, as a way of grounding a radical consideration of collectivity and sociality. For, while the rise of neoliberalism is associated with the growth of multi-national or trans-national corporations, the privatisation of state assets and the corporatisation of public institutions, each of these involve not a diminishing of the state or the project of state sovereignty but rather its reformulation, reaffirmation and intensification. The corporation, despite being redefined as the interaction of fundamentally self-willing and contracting individuals operating in the market, is still fundamentally intertwined with state sovereignty. Attempts to address or respond to corporate power need to go beyond calls for greater regulation of corporations, increased corporate social responsibility or even the desire to eliminate corporate personhood. Rather, what is required is a greater emphasis on the notion of corporateness that undergirds the theological genealogy of the corporation—for if neoliberalism functions as a religion then part of the solution may be a theological one.     

A Mark for Peter

Abstract

This paper objects to certain forms of punishments, such as supermax confinement, on grounds that they are inappropriately contemptuous. Building on discussions in Kant and elsewhere, I flesh out what I take to be salient features of contempt, features that make contempt especially troubling as a form of moral regard and treatment. As problematic as contempt may be in the interpersonal context, I contend that it is especially troubling when a person is treated contemptuously by her political community's institutions—such as by certain forms of punishment. Punishment is contemptuous if it fails to respect offenders as moral persons, who as such are always capable of moral reform. Respect for offenders therefore requires, at least, that punishment not tend to undermine the prospect of offenders’ reform. I flesh out this constraint by considering various ways in which punishments may tend to undermine offenders’ reform. In particular, I discuss ways in which supermax confinement tends to violate the reform-based constraint. Finally, I address several potential objections to my account.     

Regulation of online pharmacy: an Australian perspective

This article argues that existing Australian regulations do not adequately cover online pharmacies or Internet advertising of medicines and that existing penalties and sanctions are often ineffective, potentially placing public health and safety at risk. Suggestions are made for future regulatory approaches. It is concluded that as well as an effective program of public education, cautious domestic legislative reform is necessary to ensure specific regulation of Australian online pharmacy practice and Internet advertising of medicines. In addition, the global nature of the Internet demands international co-operation and increased regulator and consumer vigilance.