Vladimir Shapoval: "The CEC Is Destined to Be the Scapegoat"

"The law is harsh, but it is the law"—the well-known ancient Roman saying is entirely suitable as a brief synopsis of the Lb.ua interview with the chairman of the Central Election Commission (CEC), Vladimir Shapoval.

"Any electoral legislation, I emphasize, any, will always be 95 percent the product of political expediency. Always. This way gives them an advantage—so be it." This is how he calmly parried my emotional "How can the advantage of the strong be codified in the law (!), and the weak essentially have no chance? What can you do, how can it be?" "All this ‘whining and crying,’ say, the law is this and that in substance, I do not accept it. The laws were adopted—so we will follow them. You cannot get away from it," he added.

It might seem to someone who does not know Vladimir Nikolaevich that the chief vote-counting official is being clever, "covering up" the "distortions" of the authorities "at the local level." He is in fact speaking frankly. The chairman of the Central Election Commission formed on the eve of the 2007 preterm parliamentary elections by a "coalition"—a retired Constitutional Court of Ukraine (CCU) justice, and a doctor of legal sciences who is an active member of the High Council of Justice (HCJ), he can permit himself that. Shapoval contrives to call things by their names: "How the law is written is another matter. And its parts are written abominably," he states bluntly.

In view of this, my discussion with Shapoval—formally tied to the start of a local elections campaign—went far beyond the bounds of a discussion of the legislation on this topic, and even the specifics of the campaign. The more so as I had already discussed this in detail with CEC Deputy Chairman Andrei Magera. Vladimir Nikolaevich, without concealing his indignation, related just what the HCJ is really afraid of (and it turned out it was not at all, or more precisely not only, what they are portraying it to be). Relying on nine years of experience as a CCU justice, he elucidated the risks of the invalidation of the 2004 constitutional reform by the current Constitutional Court—"only those who have face can lose it." Sketching out the situation in the body politic, he summed up, "If the Party of Regions (PoR) does not win the local elections, many questions will arise."     

The Tantric Context of Ratnākaraśānti’s Philosophy of Mind

The conflicting positions of the two early eleventh century Yogācāra scholars, Ratnākara?ānti and his critic Jñāna?rīmitra, concerning whether or not consciousness can exist without content (ākāra) are inseparable from their respective understandings of enlightenment. Ratnākara?ānti argues that consciousness can be contentless (nirākāra)—and that, for a buddha, it must be. Mental content can be defeated by reasoning and made to disappear by meditative cultivation, and so it is fundamentally distinct (bheda) from the nature of consciousness, which is never defeated and never ceases. That mental content is thus separable from the nature of consciousness is unimaginable to Jñāna?rīmitra, who argues that all mental content cannot be so defeated, nor can it disappear completely, and who concludes that Ratnākara?ānti’s commitment to this idea can be based on nothing but faith (?raddhā). Contra Jñāna?rīmitra, I will suggest that Ratnākara?ānti’s view is based not only on faith, but is also driven by a certain (often implicit) theory of buddhahood, the implications of which he is committed to working out. Because Ratnākara?ānti’s theory of buddhahood is developed in part in his tantric work, our understanding of his position benefits from our reading it in this context, wherein buddhahood and the most effective techniques for attaining it are explored.     

Desert,Bell Motion,and Fairness

In this critical review, I address two themes from Shelly Kagan’s path-breaking The Geometry of Desert. First I explain the so-called “bell motion” of desert mountains—a notion reflecting that, ceteris paribus, as people get more virtuous it becomes more important not to give them too little of whatever they deserve than not to give them too much. Having argued that Kagan’s defense of it is unsatisfactory, I offer two objections to the existence of the bell motion. Second, I take up an unrelated issue—the relation between comparative and non-comparative desert. I argue that, given a certain disaggregationist view of comparative desert, it is possible that comparative desert is not satisfied, even if non-comparative desert is perfectly so. Unlike my objections to the bell motion, this possibility adds further complexity to an already complex Kaganian account of desert.     

论清代的“违禁取利”罪

我国历史上许多朝代是通过法律手段来限制官府与民间通过借贷谋取暴利,维护正常的社会经济秩序,保护正常的借贷关系的.明律中出现"违禁取利"的罪名,清代,进一步在法律上调整借贷关系,在一定程度上促进了社会经济的发展.清代的借贷活动空前活跃,不仅存在着生活性和消费性借贷,也存在着生产性和经营性借贷,更存在着官吏、兵丁借贷,以及各种因官吏勒索及制度性缺陷而引起的借贷,而在"违禁取利"方面,统治者一味实施限制与打击,最终不但没有建立起他们期待的社会经济秩序,反而使朝廷失去经济控制能力,王朝的政治与社会发展受到严重的阻碍.     

Immunity and Susceptibility in Illicit Drug Initiation in Israel

We model the initiation process into cannabis and hard drugs using long-term survivor analysis. This approach hypothesizes two sub-populations: a population that is immune to drugs, who will never use them no matter how long they live, and a population which is susceptible to drugs for whom it is a matter of time until they begin to use drugs. We use data for Israel to test competing hypotheses concerning the timing of drug use initiation and the determination of susceptibility. Cigarettes do not significantly affect immunity to drugs, but they tend to speed up the rate of initiation for those who smoke them. This implies that anti-smoking policy may only delay drug use initiation without affecting immunity. Finally, drug initiation in Israel is not explained by variables that are traditionally associated with criminality.     

The Rebirth of the Black Sea Fleet in the 1920s

The task of rebuilding the Soviet Black Sea Fleet¹ topped the agenda almost from the first days of the nation's transition from civil war to peace. During that period, however, it was a task that entailed major difficulties. "Some ships were lost in battle," recalls Admiral N. G. Kuznetsov, "some were scuttled by our own sailors on orders from V. I. Lenin to keep them from falling into enemy hands, and others were sailed by White Guards to Bizerte, the French base in Africa."² Soviet Black Sea ports were in ruins. In early 1921, ships could tie up at only twenty-nine of the sixty-two previous Odessa moorages. Two-thirds of the berthages in Nikolaev had been put out of commission.³     

On Gratitude

In this review, I use Emmons and McCullough's excellent volume on gratitude as a platform for discussing several issues in emotion, cultural, and moral psychology. First I summarize this exceptionally rich edited book, which provides accessible reviews of the philosophy, theology, anthropology, sociology, evolutionary biology, and psychology of gratitude. I next take up four questions inspired by the book. First, I consider whether gratitude is an emotion, and how to operationally define emotions. Second, I discuss the cognitive components of gratitude, including the appraisal structure of gratitude and whether gratitude can occur without an attribution. Third, I take up the question of whether gratitude is indeed a positive emotion, and propose some complications in the nature of positive emotions. Last, I consider potential sources of individual, cultural, and religious differences in gratitude, such as whether gratitude is mostly about internal feelings or the fulfillment of social obligations.

Possession of cannabis legal for now

In two recent rulings the Ontario Court of Justice threw out charges of possession of cannabis contrary to section 4(I) of the Controlled Drugs and Substances Act (CDSA). The courts found that the accused in each case had been charged with an offence not known to law. Parliament never re-enacted the CDSA section prohibiting simple possession of cannabis (marijuana) after it was struck down by the Ontario Court of Appeal in the Parker case.     

Do prosocial motives have any business in business

Challenging the assumption that the only motive in business is egoism (self-interest), four distinct potential prosocial motives are identified: egoism, collectivism, altruism, and principlism. It is suggested that each of these motives may, under certain nonextraordinary conditions, operate in business settings. None is a sure-fire source of ethical business practices, however. Each may at times lead to action that makes more people better off and fewer people worse off; each may also lead to action that does the opposite.I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.—Adam Smith,The Wealthe of Nations (1776/1976), I., p. 478.     

Is There a Case for Strict Liability?

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories.     

American Indian Tribes: ``Not as Belonging to But as Existing Within'

This article is an extended analysis of the historyand anomalies in the doctrine of American Indiantribal sovereignty. I explain that America gainedindependence, but took Indian land and colonized thetribes just as it had been colonized under theBritish. It asserted sovereignty for itself, butsubordinated the once independent tribes with aparadoxical semi-sovereign status as `dependentdomestic nations', all of this justified by the racialand cultural otherness of Indians. Using a Lacanianperspective, I show that America was founded on a`wound' or inconsistency at the heart of itsideological and constitutional order. In order torectify the inconsistencies that the initial `wound'produces, the law and political order havecontinuously had to adopt fictions (legal and racial). American law and policy has never been able to settlethe ambiguous doctrine of Indian sovereignty. As aresult, the law circles round and round in trying todefine it, and asserting and denying it, all in anunsuccessful attempt to make the constitutional orderwhole. It cannot succeed, however, since the ultimatesolution is an American sovereignty which, like God,admits of no limitation.     

Dissidence at IMEMO

I still recall a talk I had long ago with Academician Aleksandr Erminingel'dovich Arbuzov, the distinguished Soviet chemist. When asked what trait he considered most important in a scientist, he replied: "Honesty!"     

Outsiders and justice consciousness

The foundations of my justice consciousness lie in two books that share the name “outsiders.” I was introduced to S.E. Hinton's novel before I was a teenager and it was my first real contact with the “Greasers,” the “Socs,” and a world of juvenile delinquency divided by social class. Written by a 16‐year‐old girl around the time I was born, I think it was this book that initially sparked my fascination with juvenile delinquency and the study of crime. I pursued this interest in college and became concerned with inequality and the ways in which our social surroundings shape our choices and our life chances. Reading Howard S. Becker's classic statement of labeling theory in his version of Outsiders changed my perspective again and I have never looked at the world in quite the same way since.     

The Case of Weak Will and Wayward Desire

In this article, I confront Garvey’s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey’s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey’s offender’s circumstances that makes him less blameworthy for the crime he committed. A court may choose to treat such an offender more leniently but it should not be mandated to do so.

Is the general data protection regulation the solution?

Never has a text been received with so many requests for amendments; never has the debate around it been so huge. Some see it as a simple duplicate of the Directive 95/46; others present the GDPR, as a monster. In the context of this birthday, it cannot be a question of analyzing this text or of launching new ideas, but simply of raising two questions. I state the first as follows: "In the end, what are the major features that cross and justify this regulation? In addition, the second: "Is the regulation adequate for today's digital challenges to our societies and freedoms? The answers given in the following lines express the opinion of their author. It is just an invitation for a dialogue to go forth in this journal where so many excellent reflections have been published on Digital Law, thanks to our common friend: Steve.     

Introduction

Abstract. The author recalls a distinction between philosophy conceived as "analytics of truth" and philosophy as "ontology of the actual." The latter might be seen as a diagnostics of our times. For this second type of philosophy questions of legitimation are prominent. According to the author, one can distinguish three main sources of legitimacy of beliefs and practices: religion, reason, and nature. Reason has been considered the most important legitimating ground as far as modernity is concerned. Nevertheless, it has never been very clear what reason as a source of legitimation amounts to. The author, finally, points to the fact that, in times of increasing menace to the biosphere, "nature"– metaphorically speaking – may set a standard for human laws.     

分析实证法学研究的新视角——以纯粹法理论为样本

分析实证法学的研究无法摆脱或超越分析实证法学理论"标签"的限制。在这样的研究局势下,研究成果将永远无法自我扬弃。通过讨论纯粹法理论,揭示其所包含的不可避免的政治因素,从而启示后来的研究者:如果以此种不同以往的进路进行研究,分析实证法领域将展现出一种超越"标签"之外的多面向的研究新境界。     

To Waive or Not to Waive: The Right to Trial and Plea Bargaining

Criminal defendants in many countries are faced with a dilemma: If they waive their right to trial and plead guilty, they typically receive charge or sentence reductions in exchange for having done so. If they exercise their right to trial and are found guilty, they often receive stiffer sanctions than if they had pled guilty. I characterize the former as ‘waiver rewards’ and the latter as ‘non-waiver penalties.’ After clarifying the two and considering the relation between them, I briefly explicate the grounds for a moral right to trial. I then assess the defensibility of such rewards and penalties. In addition to considering whether waiver rewards and non-waiver penalties serve the aims of legal punishment, I address the three main arguments for permitting them. The first suggests that defendants willing to plead display more remorse for their crimes and thus are deserving of lighter sentences. The second defends waiver rewards and non-waiver penalties in cases where prosecutors are alleged to know that defendants are guilty but face problems establishing their guilt at trial. The third holds that guilty defendants who are willing to plead conserve scarce state resources and should be rewarded for it, whereas those unwilling to plead squander such resources and should be penalized accordingly. I contend that none of these arguments provides persuasive grounds for waiver rewards or non-waiver penalties, even on the assumption that we can distinguish those defendants who should waive their right to trial from those who should not. This conclusion presents a fundamental challenge to contemporary plea bargaining practices.

Physician Participation in Executions: Care Giver or Executioner?

The "medicalization" of the death penalty has ignited a debate, by those within the medical profession and by others outside it, about the appropriateness of physicians participating in state-sponsored executions. Physicians participating as "agents" of the State in executions argue that their presence ensures a more humane execution. Opponents argue physician participation violates the Hippocratic Oath which states clearly that physicians should never do harm to anyone. How any physician, who is dedicated to "preserving life when there is hope," can argue that taking the life of a healthy person because the state commands it is in the patient's best interest, and does not conflict with the goals of medicine is beyond comprehension. Physician participation in executions is unethical because it violates the four basic principles that govern medical ethics: respect for persons, beneficence, nonmaleficence, and justice.