Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

A Criticism of M. Siderits and J. L. Garfield’s ‘Semantic Interpretation’ of Nāgārjuna’s Theory of Two Truths

This paper proposes a critical analysis of that interpretation of the Nāgārjunian doctrine of the two truths as summarized—by both Mark Siderits and Jay L. Garfield—in the formula: “the ultimate truth is that there is no ultimate truth”. This ‘semantic reading’ of Nāgārjuna’s theory, despite its importance as a criticism of the ‘metaphysical interpretations’, would in itself be defective and improbable. Indeed, firstly, semantic interpretation presents a formal defect: it fails to clearly and explicitly express that which it contains logically; the previously mentioned formula must necessarily be completed by: “the conventional truth is that nothing is conventional truth”. Secondly, after having recognized what Siderits’ and Garfield’s analyses contain implicitly, other logical and philological defects in their position emerge: the existence of the ‘conventional’ would appear—despite the efforts of semantic interpreters to demonstrate quite the contrary—definitively inconceivable without the presupposition of something ‘real’; moreover, the number of verses in Nāgārjuna that are in opposition to the semantic interpretation (even if we grant semantic interpreters that these verses do not justify a metaphysical reconstruction of Nagarjuna’s doctrine) would seem too great and significant to be ignored.     

What is Bhāvanā?

Bhāvanā, “bringing into being,” is one of Mīmā?sā’s hallmark concepts. It connects text and action in a single structure of meaning. This conjunction was crucially important to Mīmā?sā’s own interpretive enterprise, and functioned— controversially but influentially—in a broader theory of language. The goal of this paper is to outline bhāvanā’s major contours as it is developed by Kumārilabha??a and some his followers (Ma??anami?ra, Pārthasārathimi?ra, Some?varabha??a, Kha??adeva, and āpadeva) and to examine some of the arguments they marshaled in support of it. Bhāvanā is shown to open up, for these Mīmā?sakas, an understanding of the “deep structure” of Vedic injunctions and the vocabulary for systematically representing it; it accounts for both what people do when they perform an action that is enjoined (ārthī bhāvanā) and what the injunction itself does when it motivates people to performance (?ābdī bhāvanā). Bhāvanā has resonances with, and relevance to, contemporary discussions of the nexus of language, understanding, and action, and its value as a carefully-elaborated concept of hermeneutical significance should not be overlooked.     

Physical growth and ethnic inequality in New Zealand prisons, 1840–1975

The British colonization of New Zealand after 1840 was marked by an unusual concern compared to other settler colonies to incorporate the indigenous Māori population into the new society. But despite a continuing political rhetoric of protection and sovereignty, Māori have historically had lower living standards and, since the 1920s, higher rates of incarceration than European-descended New Zealanders (Pākehā). In this article, the authors examine differences between Māori and Pākehā over 130 years using prison records. Aggregate data from the Ministry of Justice shows long-term change and differences in incarceration rates. Using a data set of all extant registers of men entering New Zealand prisons, the authors show change over time in convictions and in height. The adult statures of Māori and Pākehā were similar for men born before 1900, but marked differences emerged among cohorts born during the twentieth century. By the Second World War, the gap in adult stature widened to around 3 cm, before narrowing for men born after the Second World War. Periods of divergence in stature are paralleled by divergence in fertility and indicators of family size, suggesting the possibility that increasing fertility stressed the economic situation of Māori families. The prison evidence suggests that inequalities in ‘net nutrition’ between Māori and Pākehā are long-standing but not unchanging – indeed, they increased for cohorts born in the early twentieth century. A subset of the data describing adolescents confirms that, among those born after 1945, the ethnic differential was already visible by the age of 16.     

Outlines of a Pedagogical Interpretation of Nāgārjuna’s Two Truths Doctrine

This paper proposes an interpretation of Nāgārjuna’s doctrine of the two truths that considers sa?v?ti and paramārtha-satya two visions of reality on which the Buddhas, for soteriological and pedagogical reasons, build teachings of two types: respectively in agreement with (for example, the teaching of the Four Noble Truths) or in contrast to (for example, the teaching of emptiness) the category of svabhāva. The early sections of the article show to what extent the various current interpretations of the Nāgārjunian doctrine of the dve satye—despite their sometimes even macroscopic differences—have a common tendency to consider the notion of ?ūnyatā as a teaching not based on, but equivalent to supreme truth. This equivalence—philologically questionable—leads to interpretative paths that prove inevitably aporetic: indeed, according to whether the interpretation of ?ūnyatā is ‘metaphysical’ or ‘anti-metaphysical’, it gives rise to readings of Nāgārjuna’s thought incompatible, respectively, with anti-metaphysical and realistic types of verses traceable in the works of the author of the Mūla-madhyamaka-kārikā (MMK). On the contrary, by giving more emphasis to the expression samupā?ritya (“based on”), which recurs in MMK.24.8, and therefore, by epistemologically separating the notion of ?ūnyatā from the notion of paramārtha-satya (and of some of its conceptual equivalents such as nirvā?a, tattva and dharmatā), we may obtain an interpretation—at once realistic and anti-metaphysical—of the theory of the two truths compatible with the vast majority (or even totality) of Nāgārjuna’s verses.     

Playing with the System: Fragmentation and Individualization in Late Pre-colonial Mīmāṃsā

Studies of Indian philosophy have generally overemphasized the con-sistency of philosophical systems over time, and consequently slighted later works as derivative. This paper seeks to reassess the “system” as a basic category for analyzing Sanskrit philosophy, in particular by examining the changes that took place in hermeneutics, or Mīmā?sā, in the sixteenth and seventeenth centuries, when it became commonplace for Mīmā?sā authors to criticize long established Mīmā?sā positions. At first this criticism is selective and largely directed at more recent authors, but the margins of acceptable criticism are gradually broadened to the point when even the foundational works of the tradition are routinely attacked, and works are produced whose sole purpose appears to be to attack established Mīmā?sā tenets, sometimes without even attempting to replace them with a more workable set of views. It becomes increasingly difficult to see what if anything one must believe to be considered a Mīmā?saka.     

Aśvaghoṣa and His Canonical Sources I: Preaching Selflessness to King Bimbisāra and the Magadhans (Buddhacarita 16.73–93)

A?vagho?a’s Buddhacarita contains two sharply argumented critiques of the non-Buddhists’ self: one against Arā?a Kālāma’s (proto-)Sā?khya version of the ātman in Canto 12, and one of a more general import in Canto 16. Close scrutiny of the latter?s narrative environment reveals A?vagho?a’s indebtedness, in both contents and wording, to either a Mahāsā?ghika(/Lokottaravādin) or—much more plausibly—a (Mūla)sarvāstivāda account of the events that saw the Buddha preach selflessness to King Bimbasāra and his Magadhan subjects. Besides hinting at this genetic relationship, the present essay aims at exhibiting the structure and contents of A?vagho?a’s arguments against the self, some of which can pride themselves of a long posterity in the controversy over the self.     

Appayyadīkṣita’s Invention of Śrīkaṇṭha’s Vedānta

Apart from his voluminous, immensely learned, and spectacularly successful contributions to the fields of Hermeneutics (Mīmā?sā), non-dualist Metaphysics (Advaita Vedānta), and poetics, the sixteenth century South Indian polymath Appayyadīk?ita is famed for reviving from obscurity the moribund ?aivite Vedānta tradition represented by the (thirteenth century?) Brahmasūtrabhā?ya of ?rīka??ha. Appayya’s voluminous commentary on this work, his ?ivārkama?idīpikā, not only reconstitutes ?rīka??ha’s system, but radically transforms it, making it into a springboard for Appayya’s own highly original critiques of standard views of Mīmā?sā and Vedānta. Appayya addresses long sections of his commentary to matters dealt with glancingly or not at all in the root text, drawing conclusions which ?rīka??ha nowhere endorses. Furthermore, the distinctive positions Appayya develops in the ?ivārkama?idīpikā feed into Appayya’s other works in ways that have so far been largely ignored by modern scholars. For example, most or all the discussions Appayya’s Pūrvottaramīmā?sāvādanak?atramālā, twenty-seven essays on scattered topics in Mīmā?sā and Vedānta, build on arguments first advanced in the ?ivārkama?idīpikā—most notably Appayya’s totally original theory of the signification of adjectives, first developed in the ?ivārkama?idīpikā, the full elaboration and defense of which takes up fully sixteen of the twenty-seven essays that make up the Pūrvottaramīmā?sāvādanak?atramālā.     

The Positionless Middle Way: Weak Philosophical Deflationism in Madhyamaka

In this paper, I explore the connections between meta-ontological and meta-philosophical issues in two of Nāgārjuna’s primary works, the Mūlamadhyamakārikā and the Vigrahavyāvartanī. I argue for an interpretative framework that places Nāgārjuna’s Madhyamaka as a meta- and ultimately non-philosophical evaluation of philosophy. The paper’s primary argument is that an interpretative framework which makes explicit the meta-ontological and meta-philosophical links in Nāgārjuna’s thought is both viable and informative. Following Nāgārjuna, I start my analysis by looking at the positions that exist within the ontological debate and show that the Mādhyamika should be understood as an ontological deflationist who aims to discredit ontological questions altogether. I argue, however, that the Mādhyamika does not wish to engage in meta-ontological debates either and that Nāgārjuna’s ontological deflationist arguments necessarily lead to a position of philosophical deflationism: the rejection of all philosophical and meta-philosophical debates. Further on, I provide a sketch of denegation, the language operator in Madhyamaka that allows Nāgārjuna to make seemingly philosophical claims while not having the commitments that traditional philosophical claims do. I conclude with a defense of my interpretation of Madhyamaka as weak philosophical deflationism compared to other deflationist construals, an explicit discussion of the ways in which my understanding differs from contemporary western interpretations that prima facie resemble weak philosophical deflationism, and an identification of weak philosophical deflationism with dequitism, a variant of quetism.     

(Close) the Door,the King (is Going): The Development of Elliptical Resolution in Bhāṭṭa Mīmāṃsā

This paper examines three commentaries on the ?abdapariccheda in Kumārila Bha??a’s ?lokavārttika, along with the the seventeenth century Bhā??a Mīmā?sā work, the Mānameyodaya. The focus is the Mīmā?sā principle that only sentences communicate qualified meanings and Kumārila’s discussion of a potential counter-example to this claim–single words which appear to communicate such content. I argue that there is some conflict among commentators over precisely what Kumārila describes with the phrase sāmarthyād anumeyetvād, although he is most likely describing ellipsis completion through arthāpatti. The paper attempts both a cogent exegesis and philosophical evaluation of the Bhā??a Mīmā?sā view of ellipsis completion, arguing that there remain internal tensions in the account of ellipsis preferred by the Bhā??a, tensions which are not entirely resolved even by the late date of the Mānameyodaya.     

Changing Frames in Buddhist Thought: The Concept of Ākāra in Abhidharma and in Buddhist Epistemological Analysis

It has been argued that the use of the concept of ākāra—a mental “form,” “appearance” or “aspect”—in Buddhist epistemological analysis or pramā?a exhibits continuities with earlier Buddhist thinking about mental processes, in particular in Abhidharma. A detailed inquiry into uses of the term ākāra in pertinent contexts in Vasubandhu’s Abhidharmako?abhā?ya brings to light different semantic nuances and functions of this term. The characteristic use of ākāra in Buddhist epistemological discourse turns out to be continuous with only some of the nuances it has in Abhidharma. Moreover, ākāra becomes associated with novel explanatory functions in Buddhist pramā?a. These discoveries underscore the need to pay closer attention to the reuse of terms and concepts, ideas and arguments in Buddhist philosophy, and to the often subtle adaptations and transformations that formed an integral part of its history.     

Prāsaṅgika Epistemology: A Reply to Stag tsang’s Charge Against Tsongkhapa’s Uses of Pramāṇa in Candrakīrti’s Philosophy

Stag tsang, amongst others, has argued that any use of mundane pramā?a—authoritative cognition—is incompatible with the Prāsa?gika system. His criticism of Tsongkhapa’s interpretation of Candrakīrti’s Madhyamaka which insists on the uses of pramā?a (tha snyad pa’i tshad ma)—authoritative cognition—within the Prāsa?gika philosophical context is that it is contradictory and untenable. This paper is my defence of Tsongkhapa’s approach to pramā?a in the Prāsa?gika philosophy. By showing that Tsongkhapa consistently adopts a non-foundationalist approach in his interpretation of the Prāsa?gika’s epistemology, and by showing that he emphatically denies any place for the foundationalist epistemology of Dignāga and Dharmakīrti in the Prāsa?gika system, I will argue that Tsongkhapa’s epistemology emerges from Stag tsang’s criticisms unscathed.     

Dependent Arising,Non-arising,and the Mind: MMK1 and the Abhidharma

The first Chapter of Nāgārjuna’s Mūlamadhyamakakārikā offers a critique of causation that includes the Abhidharmic category of the ‘four conditions’. Following the South-Asian commentarial tradition, this article discusses the precise relationship between Madhyamaka philosophy and its fundamental Abhidharmic background. What comes to light is a more precise assessment of Madhyamaka ideas about viable conventions, understood as the process of dependent arising. Since this is primarily in the sense of conceptual dependence, it involves sentiency as a necessary causal element, and the relationship between sentiency and conceptuality is highlighted by Nāgārjuna and his commentators. Viable conventions exclude the possibility of a non-contingent core, and the systems and categories that revolve around such non-contingent element (ātman) are discarded by the Madhyamaka even at a conventional level.     

Money,Mortgages, and the Conquest of America

In colonial America, land acquired new liquidity when it became liable for debts. Though English property law maintained a firm distinction between land and chattel for centuries, in the American colonies, the boundary between the categories of real and personal property began to disintegrate. There, the novelty of easy foreclosure and consequent easy alienation of land made it possible for colonists to obtain credit, using land as a security. However, scholars have neglected the first instances in which a newly unconstrained practice of mortgage foreclosure appeared—the transactions through which colonists acquired land from indigenous people in the first place. In this article, I explore these early transactions for land, which took place across fundamental differences between colonists’ and native communities’ conceptions of money, land, and exchange itself. I describe how difference and dependence propelled the growth of the early American contact economy to make land into real estate, or the fungible commodity on the speculative market that it remains today.     

跨国知识产权侵权管辖原则的新发展——对传统地域管辖原则的突破

知识产权的地域性特点决定了知识产权管辖权极强的地域性原则。对于知识产权的侵权诉讼一般应在被授予权利的地域内进行,并在该地域范围内生效。但随着科学技术以及经济全球化的发展,欧美等西方国家要求突破地域管辖原则的呼声越来越高,并在实践中做了许多有益的尝试。我国作为发展中国家,知识产权的发展水平仍然不高,恪守传统的地域管辖原则对我国更为有利。     

A Monstrous Inference called Mahāvidyānumāna and Cantor’s Diagonal Argument

A mahāvidyā inference is used for establishing another inference. Its Reason (hetu) is normally an omnipresent (kevalānvayin) property. Its Target (sādhya) is defined in terms of a general feature that is satisfied by different properties in different cases. It assumes that there is no (relevant) case that has the absence of its Target. The main defect of a mahāvidyā inference μ is a counterbalancing inference (satpratipak?a) that can be formed by a little modification of μ. The discovery of its counterbalancing inference can invalidate such an inference. This paper will argue that Cantor’s diagonal argument too shares some features of the mahāvidyā inference. A diagonal argument has a counterbalanced statement. Its main defect is its counterbalancing inference. Apart from presenting an epistemological perspective that explains the disquiet over Cantor’s proof, this paper would show that both the mahāvidyā and diagonal argument formally contain their own invalidators.     

Myriad Concerns: Indian Macro-Time Intervals (Yugas, Sandhyās and Kalpas) as Systems of Number

This article examines the structures of the epico-Purā?ic divisions of time (yugas/sandhyās/kalpas) and asks what is joined by the Purā?ic ages known as yugas or joinings. It concludes that these structures reflect a combining of three systems of number—Greek acrophonic, Babylonian sexagesimal and Hindu decimal— represented as divisions of time. Since most interpretations of these structures, particularly yugas, focus on questions of dharma and its decline over the various ages rather than on number, it asks in conclusion if there is any necessary relationship between number and dharma.