The Ethics of Nature

I remember as a child being completely overcome by the beauty of the Dandenong Ranges, the rain hitting the large ferns that danced to the ambience of the meditative bird sounds echoing from the colossal trees above, the smell of the moisture from the earth below that pirouetted with the scent of plants and wood of the forest and it kindled such joy within me that this emotional affinity continues today. I now often find myself retreating into the cool, forest enclaves across Victoria that ignite the same speechless feeling that I experienced many years ago. There are a number of sources that indicate that our time spent out in nature can improve our physical and mental health, from reducing blood pressure, stress, fatigue and even inflammation that lowers the risk of early death, as well as improvement of mood and even self-esteem that alleviates the symptoms of depression and anxiety and enables improved cognition and increased concentration. But, what is this therapeutic benefit, this strong bond or relationship humans have with nature? Like a person who smokes cigarettes, conscious that this is a major health risk but indifferent to the destructive nature of this pointless habit, humanity has become indifferent to the environment, and the ecosystem – like our body – is slowly being poisoned by the damaging effects of greenhouse gases. Do we have a moral obligation to ensure the preservation of our ecosystem and if so, what does the future of this discipline look like?

Several years ago, I went with friends to the Botanical Gardens to watch a movie at an outdoor ‘moonlight’ cinema they created and the noise from the fruit bats living in the surrounding trees brought to light the reasons for their controversial culling. The colonies of flying foxes are migratory and are both a pest as well as a risk to the plants and flowers of the gardens that make them a potential threat to the survival of many rare botanical species. In addition, the fruit bat – also known as the flying fox – carries the Hendra Virus that is transmitted to horses as it ingests food contaminated by bat droppings and other fluids, causing a number of severe symptoms leading to death. This virus can be transmitted to humans from the horse that causes influenza-like symptoms that potentially lead to death. The mortality rate is high and as a consequence fruit bats were ordered to be culled to reduce the growing numbers that reached crises levels. However, animal rights activists called out against the culling of the fruit-bats on account of their declining numbers and the reason for their migration being due to changes to their original habitat. This calls into question the actual problem that should encourage their protection. Indeed, the fruit bat was soon listed by the Federal Government as an endangered species that required an adequate approval process for culling.

When the Prickly Pear Cacti was introduced to Australia in the early twentieth century, the species quickly became an ecological pest that infested millions of hectares of land and devastated the Australian landscape that a radical method to destroy the outbreak was required in order to reduce the invasive botanical spread. Australia did not have the natural resources that could control the cacti and along with the warm climate and bird species that ate and ultimately distributed the seeds, the prickly pear wrought havoc on the land of the early settlers of New South Wales and Queensland. The tremendous effort required to manage the prickly pear cost more then it was worth that a prickly pear destruction committee was developed! It was until the introduction of the cactoblastis caterpillars that they found a solution to successfully control the outbreak and using this biological method – where the eggs and larvae extracted the plants moisture until the plant died – they were finally able to control the infestation of the weed.

It is clear that human behaviour can shape and control some aspects of our environment and our intellectual activity has enabled us to communicate and alter our decisions that allow us to ascertain our responsibility and forecast a sustainable or improved future scenario. To protect the integrity of our ecosystem, however, can sometimes appear to be bigger than us such as the consumption of natural resources including gas and oil that makes the average individual assume an abstract position in this ethical framework, that we can recycle our cans of drink and paper but still drive cars and use the gas stove. What is the difference in value between the prickly pear and the fruit bat? Why do we place more value on the fruit bat over the prickly pear?

Moral consciousness – what I call “love” or our ability to feel empathy and morally deliberate – originates from our understanding of value, where we give objects a moral status or as David Hume would suggest, that moral value is the value that I attach to the object and therefore relational and dependent on the agent. It is aligned with the theory that love is something that we give or entirely subjective and emotive and that what is value is simply what I believe is valuable and does not have an actual real, objective moral value. I clearly have an issue with this despite the logic behind such relational epistemology, because there is an absence of any value at all and thus if nothing has value then morality does not exist either. It also arouses questions on the exclusivity of moral actions – such as human life is intrinsically better than animal life for instance – or whether one outcome is more morally valuable over another. Intrinsic values are deemed to be valuable for itself or ‘in its own right’ whereas instrumental value are actions that are morally permissible based on a number of variables that leads to a moral outcome. If fruit bats were not an endangered species, would culling them be morally wrong?

Kant suggests that intrinsic moral value is the source of morality, that is, that since humanity exhibits as I suggested earlier the rational or cognitive capacity to deliberate moral agency, they thus contain moral value. Humanity contains intrinsic value and thus the agency to rationally will sufficient moral understanding, and while this may be anthropocentric, rights are also aligned with ethical responsibility or that our moral status is multi-faceted and thus we are enabled with the capacity to question and evaluate objects making values variable in nature. This is the nature of the ethical problem at hand, as human beings as moral agents have intrinsic value and with the criterion of rational cognition place value on objects that otherwise are instrumental in value that abandons the moral status to animals or our environment. What that means is that the effects of deforestation in order to power the economic engine of capitalism has more instrumental value than protecting forests, and those for or against deforestation will raise ethical pros and cons of both sides of the argument to try and justify the instrumental value of the environment.

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Let’s take a look at McDonalds, with what I believe to be the most strategic and incredibly intelligent marketing campaign that attempts to justify the immorality behind their business by pretending that they are actually going to make a difference to what is their global impact on our environment. McDonalds had started adding “healthy options” to the menu to lure a continuity of customers, to try and be open and accountable about their ingredients to remove doubt as to the quality of their meat, and now are perpetrating a marketing campaign that claims that they are going to reduce their emission intensity by 2030 because of the sheer scale of the food chain’s impact on our environment. How is that possible when aligned with this is their global growth strategy that aims to increase consumer and ultimately business profitability? If the predominant item in the McDonalds menu is beef, let us take a look at cows for a moment. Agriculture is the primary reason for deforestation and not only is this destroying the habitats of thousands of species, but cows that make the meat in the burgers people eat contributes to global greenhouse gases since they produce more methane that has a greater impact on the environment than C02 emissions. What shifty bastards. People are now going to think that since McDonalds is being so-called open and accountable to global warming that eating McDonalds will no longer be immoral when any real attempt to reduce greenhouse gas emissions would be to completely stop eating McDonalds, which would contradict their profit goals. It is value-nihilism at best.

Like the gas stove or using the car, people believe their ethical position in this network of environmental change is abstract and that buying lunch at Maccas is really not going to change anything. It challenges the anthropocentrism of our moral position. Intrinsic value is not something exclusive to rational beings who symbolically project from their own mental reality, but rather as Henry David Thoreau states, “to be always on the alert to find God in nature,” and there is no symbolic or spiritual relationship but that moral realism is present in the physical world and can be directly perceived. That nature has intrinsic value and this biocentric angle moulds together the schism between good or bad qualities that we force on nature and thus rational thought and values become inseparable. Consciousness is no longer separate from nature. That like McDonalds, the primary cause of our problems with nature is the coercive projection of our irrational suggestion that only humans have intrinsic moral value; we become a part of nature, giving spirituality or that symbolic or metaphysical moral system a concrete reality (excuse the pun). While there may be a number of limitations to this since everything becomes almost morally impermissible, it certainly avoids that disillusioned or disembodied separateness, an us and them, the same disillusionment between a person who smokes cigarettes and their own body that they treat as an inanimate mechanism.

At the rate of global destruction that has reached a point of existential crises, civil disobedience and our duty to protect the environment and engage against injustice is very clear. I am preparing to embrace this reality around us, that I am not distant or abstract in the world but that spirituality and that symbolic connection is physical and real. As said by Thoreau: “You must live in the present, launch yourself on every wave, find your eternity in each moment. Fools stand on their island of opportunities and look toward another land. There is no other land; there is no other life but this.”

The Desert of the Real

It was in Raymond Gaita’s book Romulus, My Father that exposed to me an intriguing thought. Romulus, living in an isolated town in Central Victoria, wrote letters to a woman, Lydia, back in his home country of Romania and she responded with the same feelings of affection that he had. His interest in her became so intense that he invited her to be his wife and she accepted. Yet, his deep and unswerving commitment to his principles put him into a state of disarray when Lydia betrayed him and married another man, developing into a madness that Raymond called, “a passion whose force and nature was mysterious and that anyone who came under its sway should be prepared to be destroyed by it.” This romantic love exposed the deeper vulnerability and loneliness he had within and the mysterious force is the powerlessness he felt for this isolation where a panic begins to manifest, so much so that insanity became the safer option than allowing the anxiety to continue and Romulus shut down, a man of resolute principles and dedication to his duty grew disillusioned before he gave up and admitted himself into an institution.

Kant explains the possibility of transcendence from learned knowledge, the ability to occupy thoughts that are independent from our experiences of them, an autonomy where we contribute to our own understanding of moral principles. Our cognition as children develops through conditioning that articulates the relationship between you and the external world through ‘good’ or ‘bad’ behaviour and we are automatically prompted to react with the same fight or flight response when confronted with a problem. It is an automaton mode of being or relation that is inherently limited and consciousness develops as our brain matures that enables one to become conscious or self-aware. Synaptic pruning occurs in all humans that sheds neural connections that are formed in the brain during childhood in order to make room for a more refined capacity for adult use. The young adult begins to experience conscious impressions of objects that enables him to experience a self.

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We become conscious of ourselves and this self-awareness lacks the solidity that we have in our orientation with the external world, a ‘nothingness’ between our mode of being and our interconnection within an object-oriented world. There are a number of barriers such as childhood trauma, lack of education or adequate guidance such as problematic parenting that disassociates this natural engagement with our own cognitive abilities. The social and religious constructs that are entrenched in our environment conditions one to respond against any deviation from the rules as ‘bad’ (fight or flight) that impoverishes our capacity to reach self-hood. The experience of independence and self-realisation becomes fragmented as we are not prepared to acknowledge the responsibility for our decisions and this is further thwarted by feelings of anxiety that deters us from proceeding down the rabbit hole of consciousness. It is like – for a moment – the plug in your brain that treated your existence as a safe, virtual reality awakens to see that reality is, well, real. The emotional response to this realisation is anxiety and it is anxiety because we simply do not know how to be ourselves. There is no language in this independence because we have never used it before and so we cannot explain and articulate our perceptions and identification to our experiences. This is referred to biblically as being born again, the path which is narrow and few are able to find it.

We naturally want to avoid anxiety and are compelled to things that give us happiness. Ignorance is devoid of these emotional responses. Like Romulus, we either retreat to insanity – a realm where one gives up entirely any cognition or responsibility that thus removes the pain of the emotions – or one completely conforms to a belief-system, society or even a person and in effect becoming what Hegel would call a slave where they lose their ability to feel because they get others to think for them. To avoid retreating, familial support can enable a gradual move toward transcendence or independent thinking however reliance on this is ambiguous particularly with the fact that in Australia 132 divorces occur every day and 1 in 4 children are exposed to domestic violence. As language is a tool that enables us to articulate and communicate our understanding, education becomes the primary necessity for building adequate knowledge that explains this ‘unknown’ self hood.

A person who has not been completely alienated, who has remained sensitive and able to feel, who has not lost the sense of dignity, who is not yet “for sale”, who can still suffer over the suffering of others, who has not acquired fully the having mode of existence – briefly, a person who has remained a person and not become a thing – cannot help feeling lonely, powerless, isolated in present-day society. He cannot help doubting himself and his own convictions, if not his sanity. He cannot help suffering, even though he can experience moments of joy and clarity that are absent in the life of his “normal” contemporaries. Not rarely will he suffer from neurosis that results from the situation of a sane man living in an insane society, rather than that of the more conventional neurosis of a sick man trying to adapt himself to a sick society. In the process of going further in his analysis, i.e. of growing to greater independence and productivity, his neurotic symptoms will cure themselves.

As it is a cognitive disposition that we each possess, we are not capable of retreating without forming an imagined meta-narrative, an abstract representation of reality that becomes an apparatus to form an identity within the margins of something imagined and that can be rationalised. Our temporal and spatial representations become linked to a faux ‘unity’ with our environment that conceptualises our identity as homogeneous and timeless, similarly like what Romulus felt when he fell in love with a picture and a letter. In romantic love, we form a symbiotic attachment as a way to possess our beloved and we imagine that this possession – which stems from that inner anxiety – is actually a real connection by framing it within a meta-narrative of true love and other imagined ideas drawn by social constructs and further fed by a false authenticity. It is a self-defence mechanism that enables us to experience the world without being overwhelmed by the emotional impact honesty and authenticity can have, which explains why people become very defensive when this fictional meta-narrative is openly discussed. Social constructs give validity to the imagined narrative and the more people do the same thing, the more real the experience becomes since there is a shared acceptance of this imagined transaction.

Love is something that we give. It is a process that is only enabled once we reach that state of transcendence because authenticity – which is a state of mind or how we interpret our perceptions and experiences – is necessary since love can only be real when we express it through this self-hood. That is, when our motivations and intent are no longer tainted by these imagined meta-narratives but expressed in synthesis or unity within ourselves. Without this, our engagement with the external world is about receiving – where people present themselves like a Hegelian slave by adhering to socially constructed archetypes – where they imagine they are connected to society – and yet there is really no inner connectedness. We are prompted or motivated by the need to be recognised by others and by adhering to social constructs we receive recognition. There is no giving. It is all about wanting. It is essentially a deep vulnerability and these superficial connections based on how well we perform socially only further alienates one from this self-awareness.

Most people are not even aware of their need to conform. They live under the illusion that they follow their own ideas and inclinations, that they are individualists, that they have arrived at their opinion as the result of their own thinking – and that it just happens that their ideas are the same as this of the majority

We each have layers of cognition similarly to the Freudian triptych between the Ego, Id and Superego, and Bandura explains these stages of cognitive development (coming of age) where consciousness, the unconscious, and our imagination structures our responses through socially learned expectations. Our motivations are filtered and controlled by probable reactions and rewards that we will receive from others. This is why people lie as though they are protecting themselves from punishment, just as much as these meta-narratives protect one from the pain of anxiety since our emotional responses can be just as unpleasant as the threat of punishment. Heidegger concludes that this anxious response is causally rooted to fear, the fear of something threatening and that compels us to lie and to be self-defensive. The cure is to overcome this fear, to have the courage to be actively engaged with your inner self and accepting the responsibility you have for this cognitive freedom and independence. Moral consciousness suddenly switches directions; it is about developing your own awareness and deciding your own moral standards where you are motivated by an authentic connectedness with your own being. One transcends the narrowness of the imagined narratives and the self-defensive responses to make decisions independently and thus become aware of our cognitive faculty and the possibilities of knowledge a priori and thus reach our epistemic capacity by overcoming all the barriers. It is a type of love for oneself, a belief or faith in your ability.

To have faith requires courage, the ability to take a risk, the readiness even to accept pain and disappointment. Whoever insists on safety and security as primary conditions of life cannot have faith; whoever shuts himself off in a system of defence, where distance and possession are his means of security, makes himself a prisoner. To be loved, and to love, need courage, the courage to judge certain values as of ultimate concern – and to take the jump and to stake everything on these values.

 

Forgiveness 

Words are physical. They can be as violent as hurting someone physically and carelessly scolding someone with hurtful words can be as violent as physically injuring them. I know this because I have experienced this and it hurts even more when these words come from people you love. They can penetrate deep as though poison that changes the way you feel, think and behave until you depart from such toxicity, where following the time needed to withdraw from both the experience and the spatial dependence you may have had, eventually recover enough to become conscious of your vulnerabilities. However, so many fear or feel trapped from departing or separating themselves from such people and to adapt to their circumstances delude themselves by normalising their experiences, conditioned to tolerate as though subconsciously believing some validity exists behind the experience. If you work with people who are terribly abusive, changing the layout of your desk is not going to alleviate the abuse. Those who prolong toxic relationships by making superficial changes are merely prolonging a bad environment and there appears to be no prompt in their mind to tell them that they are worthy or that they deserve better, their motivations filtered by socially learned expectations that react unconsciously to superficial rewards

The youngest of three sisters and one brother, I grew up in an environment where each of them mistreated me and it was not uncommon to hear you are dumb or you are ugly from them on a continuous basis, sometimes even harassing me to do things and threatening me if I did not oblige such as ostracising me from family activities. They would together justify their behaviour as though I deserved it. One attack after another they would nevertheless claim to be my fault. I was a non-person. And I tolerated the abuse – being only a child –  since all my siblings being older than me and being the people that I wanted to love and wanted to be close to, knew better than I did. I was a non-person to me too. In similar vein to a slave, I would serve them and silenced my own suffering almost to a pathological point where I was not even aware that I was even suffering. I was able to confront this self-awareness during the process of my transcendence where I came to recognise my self-worth and who I was. This reality was frightening to me because I never knew who I was or how to think for myself.

It was inspired when I first thought I loved a man and that mirrored a reflection of my own consciousness, that I actually existed, so when I thought he may have liked me in return it produced within me a severe anxiety. This anxiety exposed all the barriers that I created, those imagined ‘truths’ that I was a non-person and when this disintegrated, I was left with nothing but me. I became real. It was deeply disturbing and it exposed a vulnerability because I suddenly became aware of the abuse from my siblings and how much I had actually been injured by them. It took a long time from that point, but removing myself from the toxicity and with the right care, I recovered from the injuries and over time have healed.

The main way I know is  I have learnt that despite any antagonism towards me, I remain self-assured, that I do not believe in the antagonism. I believe in myself. I healed by having the courage to continue to learn and develop my own language or voice – despite being new to it – and I did this through continuous self-reflective practice. I found forgiveness because I found the ability to love, to give love. This forgiveness is primarily self-directed.

The Cycle of our Nature

Everything in the universe has a life cycle, where nature destroys and renews itself cyclically. For instance, stars are made from a fusion between two hot and light gases – hydrogen and helium – whereby in the core the former burns into helium and gradually begins to form heavier elements such as carbon.[2] Eventually, our sun – considered a yellow dwarf – will become an inert white dwarf but will continue to emit light as it will fall below the main sequence and it emits light as the temperature is still hot due to the presence of nuclear fuels until depleted, becoming black dwarf. Depending on the mass of the star, once hydrogen has been depleted the core will begin to contract [the helium is displaced and the outer surface begins to expand due to the thermal pressure and this contraction loses elements or materials] while the surface expands, leading them to either become supernova or a planetary nebula [the remnants of a supernova] though there are other types of nebulae such as protoplanetary that is causally a result of stars shedding or detaching from the surface.[3] Stars are also born in nebulas. The cycle eventually moves towards – as mentioned – white dwarfs, but also neutron stars where protons and electrons collide to form neutrons from the collapsed core of the star.

That is, a black hole, which is formed when matter is squeezed into a very dense space as a result of the stars’ supernova where the force of gravity is so great that it, collapses into itself. And yet, it is from a black hole that stars are born, driving the galaxy into continuity.[4] Life itself – along with a range of other factors – is only possible through the light emitted by stars, our very own sun a g-type main-sequence star with a temperature between 5,000 – 6,000K.[5] We can see stars such as Bellatrix with our naked eyes despite its distance of 244.6 light years[6] or 76.92 parsecs because it is 8.6x solar masses or the equivalent of 1.671 × 10^31 kg and is 3.16 times bigger than our sun with a radius of almost 2,200,940.06km.[7] All the stars will collapse and form into new ones and when our sun dies, our planet – which is pulled by the gravity of the sun – will ultimately float aimlessly into space until captured by the gravity of another star and be renewed once more. Perhaps intergalactic travel is the very reason why we have life on earth in the first place.

The cycle of our very own seasons is continuously rounded and renews every six months due to our perfectly precise location in orbit around the sun along with our moon orbiting around earth. The celestial sphere is an imaginary radius with earth fixed at its centre (since the earth’s position or axis remains fixed) and earths equator is aligned with the celestial equator, as are both the north and south celestial poles. Since the rotational tilt of the earth that sits at precisely 23.5° and its rotational axis around the sun, the ecliptic plane – which is the path of the sun in this sphere – as it travels and rotates the northern and southern hemispheres are doused with either more or less sunlight.[8] You can see this movement or rotation when the sun rises in the morning or sets in the evening, or as the stars move when gazing at night. The earths circular orbit around the sun and distant stars is the sidereal period, a sidereal day or for a star to reach the same point is 23.56 hours and they rise earlier each night [up to four minutes] as the earth rotates around the orbit.[9] Equinoxes are the rotation when the ecliptic touches the equatorial plane, and a summer solstice contains the most amount of daylight while the winter solstice contains the least or shortest amount.

Everything in nature is a cycle. Everything is born and then dies. As people living in a world where everything dies, including us, well then in that vanity what could possibly be our purpose?

Our capacity for self-reflective practice and to reverse the temporal arrow of time as our experiences remain locked in our memories, this pattern illustrates a cyclic repetition where we are able to study ourselves objectively. When one thinks of scientific cosmology, it is the study of the large, the whole and by understanding the origin, one is able to articulate the evolution and the properties that make up the universe. If we think of cycles, is the universe itself going to infinitely expand or is it going to collapse into itself, or is our universe only one of many ‘pocket’ universes each dying and creating new ones?

Hegelian cosmology is just that, a reality that “is composed of a plurality of finite persons”[10] inclusive of ourselves; being a finite property, our lives are finite and ultimately determined, however rather than analysing the individual components or properties that make our lives, the objects and properties become the tools that enable consciousness, allowing us to transcend and become aware of our personhood as being part of a greater ‘whole’ which, to Hegel, is a supreme Being; that is a part of God.[11] God has no contingent parts and consequently “God is Spirit.”[12] Questioning the nature of reality and being a part of this whole rather than an individual component, immortality or an eternal continuum becomes possible and that our very lives are also non-temporal.[13] If we are a part of something greater than ourselves, our death becomes meaningless and in our lives our only purpose or obligation is to the well-being of that which is greater than ourselves. It being practical, a moral application. ‘I’ may die, but ‘we’ continue to exist.

While it may appear that I am endorsing an atheistic naturalism, I must clarify that I am not here attempting to identify the existence of God through this thesis, but rather attempting to explicate why the transcendence of consciousness enables us to realise the significance of being morally responsible; what becomes our ‘purpose’ and St. Thomas Aquinas also developed a similar thesis that argued a continued existence is dependent on beings.[14] McTaggart who critiqued Hegel’ cosmology, believed that the “passing of time is an illusion, and that nothing ever changes.”[15] His interpretation of time involved a series of contrasts and incompatible determinations between past, present and future through two notions entitled A series and B series and that the world is composed of nothing but souls.[16] But questions of time are impossible to empirically verify and therefore should only be viewed symbolically as representative of our subjective place in an external world.

While we may be a product of a whole, where exactly do ‘we’ or our personhood – free will – come into being? It is sufficient to say that freedom is an extension of determinism, that we possess the faculty through rational knowledge and will that enables us the capacity to become self-aware. That is, consciousness is a product of this deterministic social whole, which is why those that attain this transcendence become aware of their moral obligations and the value of virtue. There is a temporal anomaly here: we get caught or stuck repeating the same mistakes and fail to transcend to this freedom or autonomous consciousness. When I think about individual experiences broken into a shattered narrative that I attempt to dissect and understand, who I am is intricate and complex but when I view myself as part of a sum of all my experiences, there is no longer a temporal domain, but I exist as I am in present and thus view the product of my being as part of the whole. Upon doing so, what I am becomes clear.

[1] Ecclesiastes 1:2
[2] John R. Gribbin, The death of the Sun, Delacorte Press (1980) 180
[3] John Bally, Bo Reipurth, The Birth of Stars and Planets, Cambridge University Press (2006) 181
[4] http://www.dailygalaxy.com/my_weblog/2009/12/new-discovery-supermassive-black-holes-create-their-own-galaxies.html
[5] Gunter Faure, Teresa M. Mensing, Introduction to Planetary Science: The Geological Perspective, Springer Science & Business Media (2007) 461
[6] http://www.astronomyenthusiasts.com/constellations/
[7] http://astropixels.com/stars/brightstars.html
[8] William Millar, The Amateur Astronomer’s Introduction to the Celestial Sphere, Cambridge University Press (2006)
[9] Ibid.
[10] Jacob Gould Schurman, James Edwin Creighton, Frank Thilly, Gustavus Watts Cunningham, The Philosophical Review, Cornell University Press, Volume 12 (1903) p 189
[11] M.J. Inwood, Hegel: Arguments Philosophers, Routledge (2013) 202
[12] John 4:24
[13] G. E. Moore, “Mr. McTaggart’s “Studies in Hegelian Cosmology”” Proceedings of the Aristotelian Society, New Series, Vol. 2 (1901 – 1902), pp. 177-214
[14] http://www.aquinasonline.com/Topics/essencex.html
[15] Brian Garrett, What is this Thing Called Metaphysics?, Routledge (2007) 76
[16] http://www.iep.utm.edu/mctaggar/

Business Law and Vicarious Liability

Business law is complex and international business law is even more convoluted. Definitions of terms such as ’employment’ itself is wholly ambiguous, thus making it difficult to ascertain what legal rights people have in the workplace both for employees and employers. Vicarious liability exposes this complexity. It is a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties as requested and entrusted to act on their behalf. As a legal term, vicarious liability confirms that employers are thus responsible for negligible acts pertaining to discrimination and harassment that occur within the workplace by supervisors and management, individual or group employees, and agencies and contract workers with the ambiguity of the latter certainly exposing the complexity of the subject. It is complicated as an Australian legal doctrine primarily because of the absence of a clear and distinct definition vis-à-vis the various legislative formulations and the broad scope utilised by Australian federal, state and territory jurisdictions along with a culmination of common law interpretations. In addition to this complication, civil cases particularly pertaining to discrimination rarely reach the court due to the associated costs of such litigation and tend to be resolved prior through conciliation.

Employers must ensure that they have taken reasonable steps to demonstrate their commitment to the prevention of any form of discrimination and harassment as required by both Victorian and Federal legislation to prevent liability claims made against them, the liability itself used as a deterred to prevent human rights abuses. Whilst vicarious liability is customarily applied using judicial precedents rather than relying solely on legislation, in some cases particularly relating to sexual harassment the interaction with other provisions can effect and ultimately lead to an incongruous result, for instance in Jones v Tower Boot Co Ltd that exposes the necessary reach of vicarious liability – where an employee commits a serious act of sexual harassment though off-duty and thus appears that the employer is less likely to be liable as a consequence – in addition to claimants selecting one jurisdiction to reduce this probability of an absurd conclusion. The custom to utilise judicial precedents and thus apply the ‘Golden Rule’ of law, namely, to ensure that courts take a purposive statutory approach by appreciating the aim and purpose of the law and thus apply a fluid and flexible method favouring justice for the people, is in effect the reason for maintaining the broad and thus ambiguous definition of vicarious liability.

In order to initiate a better understanding of the subject, it is vital to establish an introduction on the scope of and interactions between legislations within the limitation of a non-exhaustive blog post, thus a brief account of anti-discrimination, human rights and industrial laws. Thus to begin, what exactly constitutes discrimination? In part two of the Equal Opportunity Act 2010 (Vic), discrimination is defined as, “direct or indirect discrimination on the basis of an attribute.”[1] Direct discrimination is clearly purposed to treat an individual discriminately based on any of the attributes, whilst indirect discrimination occurs when a condition, practice or any such imposition that is likely to result or have an effect on an individual that disadvantages them due to an attribute.[2] These attributes include age, sex, disability, race and religion amongst others.[3] Discrimination can go even further, such as an individual’ past or intellectual capacity [too smart, not smart enough] or other physical attributes etc &c. As employers themselves must ensure that they do not breach their obligations as set by the law and reiterating the previously mentioned Golden Rule, namely that the law has be established to protect the rights of citizens and democratic principles in general, the scope of vicarious liability sits under the umbrella of human rights.

Generally, the scope of industrial laws fails to afford the protections offered by established anti-discrimination laws. In Victoria, this would include the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic) along with the Equal Opportunity Act 2010 (Vic). In addition, a complainant must select which jurisdiction – namely State or Federal – they wish to pursue the proceedings. Under section twelve of the Age Discrimination Act 2004 (Cth) it states that a person is not entitled to institute a proceeding if a law relating to discrimination is dealt with by the State of Territory,[4] thus a complaint can be lodged at the statutory commission within their state jurisdiction; however if so, they cannot proceed the complaint to federal anti-discrimination laws and jurisdiction. What that means is that if a complainant initiates a case under Victorian anti-discrimination law, they are not permitted to withdraw and apply for a recourse under Commonwealth anti-discrimination laws. Similar requirements are stated in other legislations,[5] thus confirming that if someone has already made a complaint under Victorian legislation is therefore unable to commence proceedings at federal level. Nevertheless, there are differences between state and federal anti-discrimination laws – whilst minor – can impact on the application and operation of the law, as a consequence the complainant can initiate and select which jurisdiction they would prefer the proceedings to fall under (dependant on the scope and details of the claim made against the employer). While the Equal Opportunity Act 2010 (Vic) functions similarly to federal anti-discrimination law, an example of these differences can be seen between the Disability Discrimination Act 1992 (Cth) that states “circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments”[6] obligations of which render a difference to the Equal Opportunity Act 2010 (Vic).

To continue further and assist with the amplification of pre-existing knowledge hidden in the corners of my mind, what exactly is vicarious liability? According to the Equal Opportunity Act 2010, vicarious liability is a person or agent engaging in conduct that contravenes discrimination as described earlier along with sexual harassment regulations as prohibited by the act.[7] Sexual harassment is defined as an unwelcome sexual advance or requests for sexual favours along with conduct of a sexual nature that offends, humiliates or intimidates.[8] In order to assess whether it is a vicarious liability claim, the negligible behaviour must have occurred during employment in addition to whether the employer has failed to take reasonable steps to prevent such contravention of the abovementioned.[9] “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”[10] In addition, vicarious liability holds a broader function, namely that the legislative obligations and requirements by employers works as a preventative measure or deterrent to reduce risk of harm against an employee. The ambiguity of vicarious liability lies in understanding the definition of an employee and of even the period during which one is employed. As said by CJ Gleeson, “Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion. Nevertheless, some judges refer to agency as a criterion of liability, similar to employment. If that is to be done, it is necessary to be more particular as to what is meant.”[11]

This is clearly observable when ascertaining the difference between a contractor and an employee. While it is generally viewed that independent contractors that are assigned employment carry out the required duties under the principle that they are in business for themselves and as such employers are not held vicariously liable, this has been proven not to be an absolute principle and there are instances in which the employer is deemed responsible for the negligent acts by independent contactors. In Sweeney V Boylan Nominees[12] the High Court rejected the vicarious claim made against the respondent for an injury against the appellant, who had entered a service station owned by Boylan Nominees and opened a refrigerator door that was not correctly serviced by an independent contractor that resulted in injury. Initially, this area of tort law held an employer to be liable for the tortuous acts of an employee but not a contractor as cited in Quarman v Burnett (1840)[13] however as continuous employment conditions and changes within the Australian labour market occur, the concept of contractors and vicarious liability challenges the meaning of what it is to be considered as an employee. Changes to interpreting the relationship between employer and contractor utilising the control test method – namely the attempt to ascertain the degree of control an employer has over a contractor – has also developed in preference for an analysis of the totality of the relationship.[14]

This test of ascertaining the status of an employee in contrasted in the case of Hollis v Vabu[15] that applies indicators which overall ascertain the actual relationship rather than focusing solely on the obligations as required by the contract itself. The plaintiff, a cyclist who was injured in a collision with a contractor that had the defendants’ name of Vabu visible during the accident brought to light the problem regarding the view that employers of independent contractors are not vicariously liable. The high court case thus attempted to clarify the issues respective of what a relationship entails with respect to employers and vicarious liability. As said, “[t]he system which was operated thereunder and the work practices imposed by  Vabu  go to establishing ‘the totality of the relationship’ between the parties; it is this which is to be considered.”[16] Similarly, in Deatons Pty Ltd v Flew, during an altercation at a hotel, the plaintiff was struck in the face with a glass of beer that the barmaid threw following his abuse toward her during an intoxicated scene.[17] As stated, “[a]n employer is liable for the act of his servant only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or as being an act which was incidental to this employment.”[18] The case of Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia[19] was mentioned by Justice Kirby in light of the fact that the employer was vicariously liable for the negligence of the independent contractor since the latter was a representative or agent of the employer since he was wearing the uniform.[20] Whilst the absence of a clear distinction that defines the differences between an employee and an independent contractor clearly arouses complications, Justice Bromberg in On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation[21] discussed the ‘totality approach’ that examines the question, stating;

“Viewed as a “practical matter”:

(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?

If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”[22]

The ‘entrepreneur test’ viewed in a practical manner purports that an independent contractor as a representative can be considered an employee.[23] As mentioned by Justice Kirby in Northern Sandblasting Pty Ltd v Harris, several areas still remain unclear and further analysis on focal points such as non-delegable duty, the retreat from the control test and the increasing use of independent contractors due to changing social conditions requires more coherency.[24] Nevertheless, an independent contractor is advancing the interests of the employer and therefore can be considered representative of the employee and liable accordingly. Thus, attempting to ascertain whether an employer is vicariously liable for the negligent behaviour of independent contractors requires the analysis of the totality of indicators as part of a weighting process, considering whether there are clear benefits for the employer, whether the independent contractor is a representative of the entrepreneur, the terms of the contract ect. &c., until a formulation of the relationship can be ascertained. As was clarified in Sweeney V Boylan Nominees, “Mr. Comninos was not required to accept jobs from Boylan, did not wear a Boylan uniform, was not based on a Boylan premises and invoiced Boylan for the hours of work he performed.”[25]

Liability does not necessarily require geographical or time-related specificity, for instance at the location of the employment or during working hours. In South Pacific Resort Hotels Pty Ltd v Trainor[26], Ms. Trainor was employed at a hotel in Norfolk Island and consequently had a part of the building arranged for the optional living quarters of employees. She had experienced sexual harassment from a fellow employee at the premises whilst both were off-duty and the court nonetheless found the employer vicariously liable since the premises itself was built for the purpose of their employment and the conditions and environment of the building therein allowed for the conduct to occur. “It [vicarious liability] is not premised on any culpable act or omission on the part of the employer; an employer who is not at personal fault is made legally answerable for the fault of his employee. It is best understood as a loss-distribution device.”[27] Exploring the concept of vicarious liability under both Federal and Victorian anti-discrimination legislation, employers can be responsible for the acts made by employees including management, agencies, contract workers among others as long as it is in connection with a person’ employment and does not necessarily require being on or within a specific locale or premises of the employer or within working hours. In Leslie v Graham,[28] Ms. Leslie was subjected to sexual harassment by Mr. [Lincoln] Graham at an apartment outside of working hours and following the situation she was unfairly dismissed by her employer Roger Graham and Associates – with Roger Graham being the father of Mr. Lincoln Graham. The line that separates an employer from the conduct and behaviour of employees or contractors clearly becomes obscured vis-à-vis sexual harassment cases. “Vicarious liability can more readily arise for trespassory torts such as sexual assault, based on a close connection between the employment and the tortious act in question.”[33] Confusion is further amplified when attempting to ascertain the vicarious liability of employers outside of working hours. In the Sex Discrimination Act 1999 (Cth)[34] whereby vicarious liability does not apply when it is established that an employee or agent of a person, “took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph”[35].

The employers’ responsibility vis-à-vis vicarious liability is not solely a matter of where failure itself had occurred, but rather whether the employer had taken reasonable steps to ensure that attempts were made to practicably prevent breaches from occurring. In R v Commercial Industrial Construction Group Pty Ltd[37] CICG had breached health and safety regulations by failing to provide a working environment for its employees that was safe following Peter Bacon – site manager – who had asked labourers to perform unsafe duties that resulted in an accident. As part of the plea mitigation, CICG stated that they had taken all the necessary steps to ensure that a safe working environment had been enforced, thus it was Peter Bacon as a supervisor who failed to comply Job Safety Analysis (JSA) requirements. This was rejected in court, whereby, “[w]hen the employee in question is the person with supervisory responsibilities, including responsibility for ensuring safety at the site, the gravity of the company’s breach is increased, not reduced. It is difficult to understand how the company could have allowed someone with Bacon’s apparent indifference to risk to occupy such as position.”[38] It was concluded that it had not been the case for CICG by employing a site supervisor who failed to adhere to health and safety obligations and consequently behaved negligently. Similaraly, in Gama v Qantas Airways Ltd,[29] Mr. Gama was employed as a licensed aircraft mechanical engineer and who was subjected to racial slurs by co-workers in the presence of supervisors, the latter failing to take reasonable steps to stop the racist behaviour. On the contrary, Mr. Gama was further subjected to discrimination particularly related to his reporting requirements and any opportunity for promotion due to alleged systemic racial intolerance[30] in addition to injuries he sustained during the course of his employment that resulted in less favourable treatment. As a consequence, Qantas was found to be in breach of the Racial Discrimination Act 1975 (Cth)[31] and the Disability Discrimination Act 1992 (Cth), namely that it is “unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability, [d] by subjecting the employee to any other detriment,”[32] and as such vicariously liable particularly for the treatment he received by co-workers in the presence of supervisors.

Vicarious liability is not necessarily about whether an employer authorises tortious acts but rather about whether they are responsible for acts of negligence made by an agent they have employed and as such it is a requirement to ensure that legislation remains broad. Perhaps it is ambiguous to ensure that judges approach the subject on a case-by-case basis by examining the details regarding the nature of the employment. “Vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely, or confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover it, will remain valid so far as it extends.”[39] It is nevertheless commonsensical to assume that should an employee engage in conduct that is deemed offensive outside of the contractual obligations as required by the employer – or “engage on a frolic of his (or her) own”[40] – then the employer cannot be held vicariously liable for such conduct. But should an employer see and fail to do anything about acts of negligence or harassment, then they are absolutely liable.

Comparatively, the legislative and common law processes that we have in place in Australia is certainly commendable when viewing the injustice of the legal systems in other nation-states around the world. It does not, however, change the fact that many employees unfortunately experience discriminate behaviour for personal attributes and ultimately such employers go unpunished.

Also see:

Scott v Davis (2000) 204 CLR 333
Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135.
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29.

 

 

[1] Part 2, §7 Equal Opportunity Act 2010
[2] Part 2, §8-9 Equal Opportunity Act 2010
[3] Part 2, §6 Equal Opportunity Act 2010, “(a) age; (b) breastfeeding; (c) employment activity; (d) gender identity; (e) disability; (f) industrial activity; (g) lawful sexual activity; (h) marital status; (i) parental status or status as a carer; (j) physical features; (k) political belief or activity; (l) pregnancy; (m) race; (n) religious belief or activity; (o) sex; (p) sexual orientation; (q) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.”
[4] §12 Age Discrimination Act 2004 (Cth)
[5] §6A Racial Discrimination Act 1975 (Cth), §10 Sex Discrimination Act 1984 (Cth), §13 Disability Discrimination Act 1992 (Cth)
[6] §5(3) Disability Discrimination Act 1992 (Cth)
[7] §109 Equal Opportunity Act 2010
[8] §92 Equal Opportunity Act 2010
[9] §110 Equal Opportunity Act 2010
[10] Fleming, Law of Torts, 410
[11] Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
[12] Sweeney v Boylan Nominees Pty Ltd. (2006) 227 ALR 46; [2006] HCA 19.
[13] Quarman v Burnett (1840) 151 ER 509
[14] Stevens v Brodribb Sawmilling Company Pty Ltd 1 TLR 101 at 111
[15] Hollis v Vabu (2001) 207 CLR 21
[16] Ibid,. Also see Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29.
[17] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 (12 December 1949) 2
[18] Ibid., 5
[19] Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia (1931) 46 CLR 41
[20] Ibid.
[21] On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation (No 3) [2011] FCA 366.
[22] Ibid., 208
[23] Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997)
[24] Ibid.
[25] Burnett, Jonathan — “Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees” [2007] SydLawRw 5; (2007) 29(1) Sydney Law Review 163
[26] [2005] FCAFC 130
[27] Barbara Harvey, John Marston, Cases and Commentary on Tort, Oxford University Press (2009) 572
[28] Leslie v Graham [2002] FCA,
[29] Gama v Qantas Airways Ltd (No 2) [2006] FMCA
[30] Christine Fougere, ‘Vicarious liability for race and disability discrimination in the workplace’, Law Society Journal, April (2007) 37
[31] §9 Disability Discrimination Act 1992 (Cth)
[32] §15(2)(d) of the Disability Discrimination Act 1992
[33] Rick Glofcheski, ‘A Frolic in the Law of Tort: Expanding the Scope of Employers’ Vicarious Liability’ (2004) 12 Tort Law Review 18, 1
[34] §106 Sex Discrimination Act 1984 (Cth)
[35] §106 (2) Sex Discrimination Act 1984 (Cth)
[36] Brook Hely, “Open all hours: The Reach of Vicarious Liability in ‘off-duty’ sexual harrassment complaints.”
[37] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
[38] Ibid., 43
[39] Glanville Williams, Vicarious Liability and the Master’s Indemnity, The Modern Law Review, 20:3, 220–235 (1957)
[40] Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 733–4 (Diplock LJ), discussed in NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, 535–6 [40]–[41] (Gleeson CJ), 614 [308] (Kirby J).

Multinational Corporations and International Crime

The criminal proceedings of the Nuremburg Trials following the atrocities of the Nazi regime’ genocidal violence against humanity strengthened an international understanding of the concept of complicity to violence and soon thereafter developed the international law of human rights. Leaders in the Nazi regime were prosecuted for crimes against humanity in a series of international trials that were divided into two primary groups, namely that of organisations and that of individuals.[1] The tribunal at Nuremberg in addition to charging the defendants with heinous crimes also charged some as conspirators, namely that of mens rea or the subjective criminal intention that indicates liability. At the time, the laws of conspiracy were utilised in the United States to tackle the growing trends of organised criminal behaviour, whereby “it is a useful one [the charge of conspiracy] to bring against a gang leader who does not himself blow the safe, kill the bank guard or drive the getaway car.”[2] Under the Control Council Law[3] of the International Military Tribunal in Nuremburg, conspiracy was considered to be crimes against peace,[4] which is planning in anticipation of committing such violations and remains the most controversial aspect of the proceedings. The question of responsibility and complicity to acts of gross human rights violations was further amplified when tribunals were established for the atrocities committed in Rwanda and the former Yugoslavia. While these cases have charged individuals and organisations for state-led oppression, violence and genocide, the problem with Multinational Enterprises working in foreign countries and their immunity due to limitations in international law has been raised to the fore as an important topic for discussion vis-a-vis international law.

The continuous changes to the expanding economic structure in a globalised world along with the broadening of knowledge viz., the long-term impact environmental and human rights abuses can have, processes that emphasise responsibility by multinational enterprises has gradually started to form in the international arena. This includes the developments of international obligations and processes that assist States – particularly vulnerable countries in the developing world that often experience negligent abuse from Multinational Corporations – to develop legislation that will protect them from potential abuse, along with the willingness of domestic courts to implement domestic laws on crimes committed internationally, such as the United State’ District Courts and the Aliens Tort Claims Act 1789. The Maastricht Guidelines is another and explains the obligations of the State to adhere to Economic, Social and Cultural Rights as explicated in the international covenant. The growing pressure from NGO’s and the poor reputation that multinational companies encounter also work as preventative measures to ensure compliance to international codes of business conduct and corporate behaviour. This includes the supply chain that multinational enterprises do business with or contractually hire, becoming vicariously liable for any violations of human rights perpetrated by entities with which it does business.

These violations can include poor labour standards, environmental damage and serious harm to the welfare of inhabitants from pollution, and complicity to serious oppression and violence from private contractors, the government or the military. Conversely, a multinational firm can play a vital role in the positive contribution to a State that can include employment and thus improve the capacity for communities to acquire   needed services, infrastructure and economic growth. Whilst I will try and attempt to broadly detail several areas of concern when discussing Multinational Enterprises [MNE’s], these being a brief analysis of existing laws and international covenants relating to international business and human rights; this is vital as it amplifies an understanding of the second area of concern, namely whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business. Delving through particular situations and cases, a brief comparative to existing, domestic tort procedures and laws such as the concept of vicarious liability and contract workers as I have discussed in previous posts, or command responsibility in martial courts, I will attempt to ascertain what corporate responsibility is and how the adoption of human rights principles can ensure sustainability and address the obligations as required by international covenants.

Corporate crime can involve economic, political and industrial failures leading to organisational decisions that can possibly affect not just the individual employee or employees, but also the broader community in general. From well known litigation cases against chemical companies guilty of both environmental and human rights abuses or pharmaceutical companies restricting access to life- saving medications, the topic of human rights and business responsibilities on a global scale is at the forefront of the international economic agenda, particularly since the capacity for multinational entities to commit serious crimes at a large scale can – in reverse – also be capable of effectively promoting and even safeguarding human rights. This is particularly the case for States in post-conflict situations or in an humanitarian emergency or crises that requires immediate assistance and support. It is for this reason the United Nations established the UN Guiding Principles on Business and Human Rights to remedy the abuses and the failure of multinational corporations adhering to the standards as required by international human rights law. The preamble to the Universal Declaration of Human Rights, which was established following the atrocities committed during World War Two and that illustrates a global commitment to the inalienable rights of humankind, states that, “[w]hereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.”[5] All state actors and by extension multinational firms that agree to support the integrity and dignity of the human person as espoused in the UNDHR are prohibited to breach the obligations articulated within the body of international human rights laws.

The legal protections required to enforce UN conventions remain dependent on domestic legal systems, and notwithstanding the many member states that have effectively implemented human rights law into domestic legislature, there remains many States that have failed to comply with the required obligations of international law. This collision between international and domestic human rights laws can be comparatively identified in Islamic countries that expose the inconsistencies between Sharia laws and the requisite universality of human rights and the sovereign equality of State actors. “The contentious nature of Sharia’s interpretation of individual rights and its arguable incompatibilities with modern paradigms of human rights law nevertheless have to take into account the historic inequities with which Islamic societies have operated.”[6] Accordingly, the foundational principles and obligations in the Guiding Principles on Business and Human Rights purports that States themselves must take appropriate steps to prevent abuse through the implementation of domestic legislation and policies.[7] While a plethora of resources have become available to promote such domestic changes, the protections afforded by legal rights is wholly reliant on their implementation into domestic law that adequately remedies the cooperation between state and non-state actors within the international arena opinio juris sive necessitatis.[8] Regarding the latter, relations at transnational level can be exemplified through mutual collaboration on the enforcement of anti-terrorism activities, further still and equally as intricate is state immunity and human rights.[9]

Nevertheless, the Organisation for Economic Co-operation and Development (OECD) have established guidelines specific to multinational enterprises[10] that promote responsible business conduct through appropriate stakeholder engagement models that heighten transparency of the activities of multinational organisations. Followed by the Declaration on International Investment and Multinational Enterprises, the recommendations themselves, whilst voluntary, attempt to ensure that companies adhere to human rights standards and combat fraudulent and criminal behaviour. The benefits that it can have on the economy of the State encourage social progress and thus contribute to positive domestic development. And what exactly is a multinational organisation? The OECD Guidelines does not contain a precise definition of a multinational enterprise and states that multinational companies may be private, state or both that coordinate and operate in more than one country.[11] In addition to the OECD, UN documents such as the Declaration on the Establishment of a New International Economic Order,[12] the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy[13] along with United Nations Set of Principles on Competition[14] each attempt to regulate and supervise the activities of transnational corporations. An ‘enterprise’ has been defined as “firms, partnerships, corporations, companies, other associations, natural or juridical persons, or any combination thereof, irrespective of the mode of creation or control or ownership, private or State, which are engaged in commercial activities, and includes their branches, subsidiaries, affiliates, or other entities directly or indirectly controlled by them.”[15] The purpose and incentive of the guidelines is to entice States regulate the behaviour of multinational entities with accountability mechanisms that legislate protections particularly through tort law that will safeguard against any potential abuses. For instance, the Australian government recently reached a compromise and passed a new Multinational Anti-Avoidance Law (MAAL) that requires multi-national companies in Australia to practice efficient financial and tax reporting publications to ensure better transparency in the prevention of tax fraud.[16]

 

Contracted to protect? DynCorp instead trafficked young girls in the Balkans.

 

However, as there remains no internationally enforceable remedy against potential multinational corruption and when considering the power of multinational enterprises’ particularly in the developing world or even failed States, national sovereignty becomes questionable and criminal acts such as bribery of public officials and human rights abuses become increasingly possible.[17] In Bosnia and Herzegovina, for instance, following the tragedy of war and violence in the region, Dyncorp Enterprise – private security contractors – had staff responsible for the rape and trafficking of girls as young as twelve years of age.[18] Whistleblower Kathryn Bolkovac, who was deployed on a peacekeeping mission and who uncovered the scandal was instead threatened and finally dismissed, a case of unfair dismissal confirmed by the employment tribunal in the United Kingdom.[19] The staff responsible for committing the criminal act of human trafficking in the region were merely moved and have yet to be charged since any remedy to such crime is based on the State’ duty to protect, evidently an issue when considering failed states, along with little explanation on what the State – being the United States in the case of Dyncorp Enterpise – has in regulating such criminal behaviour. Pressuring states is not uncommon even in developed countries, with international tobacco corporations pursuing action against Australia in Philip Morris v Australia. Whilst it is clear Australia’ aim is to protect human health and safety through plain packaging as an investment procedure toward the reduction of preventable deaths,[20] Philip Morris Asia disputed the change by claiming breaches to provisions in trade agreements with Hong Kong. “The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.”[21]

Accordingly, along with the International Court of Justice and the World Trade Organisation’ Dispute Settlement function,   to place pressure to legislate domestic human rights avenues such as sanctions and – certainly dependent on the circumstances of the State in question – military force are used as coercive methods to prompt pressure on the countries in question. The economic opportunity that multinational entities bring to States can be employed as part of this method to endorse sustainable development, defined as: “[d]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs.”[22] If one considers the responsibility that MNC’s have as inadvertently contributing to human rights violations by supporting third-party organizations that commit such crimes, their capacity to ensure that their supply chain remains free from any such abuse would conversely promote human rights obligations. The reliance that some States have on MNC’s can opportune legal and procedural changes for the better. The attention to the global failures from MNC’s in developed countries have led to valuable growth in the dedication for goods and services that promote fair and equitable conditions. For instance, foods including coffee, chocolate and other produce that contain the Fairtrade logo are steadily being promoted as a method to advocate proper labour conditions in developing countries. This can be similarly seen in Fair Wear ensuring the apparel industry adopts similar trademark assurances for consumers who desire to purchase items of clothing in confidence that workers are not exploited along with ethical diamonds and gemstones purchased as a preventative measure against the violence and slavery in mines. After extensive campaigning and lobbying by Greenpeace and other environmental activists against tissue paper company Kimberly-Clark for clear cutting endangered forests,[23] the company has agreed to approach the acquisition of required materials utilising an environmentally sustainable approach. Inter-organisational empowerment programs where negotiations between NGOs and MNCs is developing significant changes to the not only the exploitative practices of the latter, but also develop sustainable standards that promote a commitment to human rights and environmental protection.[24]

However, as goods and services are becoming regulated, reliance on petroleum in the developed world and access to lifesaving medications through the pharmaceutical industry in the developing world still remains difficult to challenge with jurisdictional restrictions failing to impose accountability laws for any violations that may be perpetrated. However, domestic courts in the Australia, the UK and the USA have developed processes that allow them to accept international cases and in turn impose penalties and responsibilities for violations for acts committed on foreign soil.[25] The Aliens Tort Claims Act 1789 (ACTA) was established in the late eighteenth century to tackle the problem of pirates and granted non-US citizens the capability to bring a law suit to the US District courts for civil cases that may have occurred anywhere in the world by individuals or organisations that contravenes treaties the United States is a signatory of.[26] Dormant for over a century, Filártiga v. Peña-Irala[27] raised the statute to the fore; the landmark case found the Filártiga family suing former state official Américo Peña for the torture and violent death of Joelito Filártiga by Peña while they both lived in Paraguay.[28] The Filártiga family won the suit and found Peña had violated international human rights laws. The question of whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business may appear clear, however the circumstances and the scope of responsibilities in the international arena still remain convoluted. Whilst accountability mechanisms and guidelines as mentioned earlier do exist, depending on the State in question, enforceability is often reliant on existing domestic laws and agreements particularly relating to labour rights, environmental protection and other safety legislation. While the United States established the Aliens Torts Claim Act 1789 that allows domestic laws to be used as a remedy for extraterritorial abuses, including the recent tort case against Chocolate company Nestle. Global Exchange and several former child slaves brought a class action suit against Nestlé, Archer Daniels Midland and Cargill who sourced cocoa from the Ivory Coast in Africa where children who had been captured from Mali were enslaved on the plantation farms. It is alleged they had breached the Aliens Torts Claim Act 1789 with the United States Supreme Court confirming that the case had justifiable merit.[29] This comes after a report from Save the Children in Canada that purports that over 15,000 children from Mali were sold into slavery in the Ivory Coast,[30] in addition to UNICEF’ study that almost 200,000 children are trafficked yearly along the West Coast of Africa.[31] Accordingly, the company was aware of the use of children and instead offered financial assistance so as to source the cheapest cocoa and thus, by extension, should be held accountable for the slavery. This comes after the company itself agreed that forced labour was being used in Thailand with supply chain company Thai Union with which it does business for its Fancy Feast cat food product.[32] “A report commissioned by Nestle SA found that impoverished migrant workers in Thailand are sold or lured by false promises and forced to catch and process fish that ends up in the global food giant’s supply chain.”[33]

While Nestle had in fact admitted to their failure following the report they commission with company Verité – a business that attempt to ensure transparency in supply chain processes – which exposes the developments for MNC’ to internally become more behaviorally responsible, nevertheless the company itself is tainted with a history of human rights abuses being one of the most boycotted companies in the world.[34] During the 1980’s, Nestle was found to have promoted the use of baby formula in Africa over breastfeeding, the latter of which civil society groups encouraged due to evidence of better nutrition and antibodies present in the milk.[35] As a consequence, the socioeconomic conditions of mothers in developing countries who, being impoverished and thus the costs associated with purchasing the baby formula taking a large portion of the family’ income, mothers began to dilute the powder in order to stretch the use.[36] With no other information supplied to them other than the marketing that baby formula was better than breast milk, infant mortality in the region was exasperated particularly due to the poor sanitary conditions of the water used in the formula. This resulted in the World Health Organisation developing a Marketing Code,[37] whereby, “[r]ecognizing further that inappropriate feeding practices lead to infant malnutrition, morbidity and mortality in all countries, and that improper practices in the marketing of breast-milk substitutes and related products can contribute to these major public health problems.”[38] Sporting giant Nike, with an annual turnover of more than $US27 billion, became well known for being linked to deplorable labour conditions or ‘sweatshops’ throughout South East Asia and Latin America. Business magnate Phil Knight outsourcing the manufacturing of the apparel to countries that offered cheap labour and instead poured much of its financial resources toward the adoption of a strong marketing strategy.[39]

Thus the success of the business has been built on abysmal working conditions for many labourers in developing countries, earning notoriously low salaries [at about 20 cents per hour][40] where such transnational sourcing of cheap labour supplanting the opportunity for human rights abuses. While Filártiga v. Peña-Irala certainly paved the way for justice against human rights abuses, the problem of jurisdiction and the examination of liability is central to the problem of multinational enterprise’ and gross negligence. One of the primary issues being whether a multinational enterprise can be held responsible for private non-state perpetrators. In Kadic v. Karadžić[41] where Ms. Kadic filed a suit against Radovan Karadžić for rape camps in Bosnia, it was confirmed the district courts were willing vis-à-vis the Aliens Torts Claims Act 1789 to cover private, non-state actors.[42]

Taking a comparative approach to the question of who should bear the responsibility for violations of human rights perpetrated by entities with which it does business, the concept of vicarious liability – a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties to act on their behalf that I have previously discussed in a post here – can insist the responsibility of MNC’ supply chain management. As a legal term, vicarious liability ensures that employers are responsible for any negligible behaviour that occur within the workplace and not just by employees, but also agencies and contract workers. “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”[43] It was generally viewed that independent contractors who are assigned specific duties for a company were in principle in business for themselves and thus responsible for any incident or damages that may occur during the contract, however the growth and ultimately changes to employment structures and processes prove employers are responsible for the negligent acts by independent contactors.[44] In Doe v Unicol Corp [45] it was confirmed that corporations can be held responsible for working in concert with state officials, whereby companies are not necessarily immune from the scope of international law.[46] The pipeline project in Burma under the management of Unicol Corp [Union Oil Company of California], where the plaintiffs whilst building off-shore drilling stations in the Andaman Sea intended to build a pipeline through the Tenasserim region of Burma into Thailand found the Myanmar military units or State Law and Order Restoration Council (SLORC) – hired to manage security during the project – for committing gross human rights violations against villagers in the region.[47] This included torture, rape, forced labour and forced relocation[48] where it was alleged that Unicol was aware of these acts of human rights violations and had the capacity to prevent or stop the atrocities.[49]

“According to plaintiffs, when Unocal and Total entered into the agreement by which SLORC undertook to clear the pipeline route and provide security for the pipeline, defendants knew or should have known that SLORC had a history of human rights abuses violative of customary international law, including the use of forced relocation and forced labor… [p]laintiffs assert, on information and belief, that defendants Unocal and Total   were aware of and benefitted from, and continue to be aware of and benefit from, the use of forced labor to support the Yadana gas pipeline project.”[50]

This reasoning is similarly seen in cases for alleged criminal behaviour by individuals in military courts vis-à-vis the doctrine of command responsibility, particularly the case of U.S Army Captain Ernest Medina in Vietnam. What has become notoriously known as the Mai Lai Massacre,[51] taking place in a hamlet in Southern Vietnam where over five hundred unarmed civilians – including women and children – were brutally murdered, raped and mutilated by US soldiers in one day of carnage,[52] only one court-martial conviction against Second Lieutenant William Laws Calley Jr. for ordering the murders of the civilians was made and even so, through a presidential pardon his life imprisonment was overturned to several years of house arrest.[53] Accordingly, Calley claimed that he was acting on orders given to him by Medina, who during the massacre chose not to intervene and was nevertheless acquitted of any crime during his trial.[54] While it is clear that the case of Mai Lai is violations of the laws and customs of war and can be constituted as war crimes and devastation not justifiable as necessary, the question of who is responsible for preventing, repressing or failing to take reasonable measures to prevent crimes against humanity, as is applicable in Rule 153 of Customary International Humanitarian Law: “Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.”[55] In the case of Doe v Unicol Corp, holding corporations liable for aiding and abetting crimes by applying international law, the courts utilised two ‘tests’ that attempted to ascertain liability, namely that of actus reus and mens rea,[56] whereby, “accountability for a certain harm because of objective (actus reus) and subjective (mens rea) criteria”[57] and to thus identify criminal responsibility. Whilst the scarcity of sources relating to the liability of aiding and abetting in international law, both actus reus defined as “the wrong act”[58] in Latin and is the actual physical act, along with mens rea or “a guilty mind” and the subjective mental state of mind have been utilised at the Nuremburg Trials and the International Criminal Tribunals for both the Former Yugoslavia (ICTY) and Rwanada (ICTR). Accordingly, the judgement of Prosecutor v. Anto Furundžija, it was stated that to establish actus reus, “the cases which follow indicate that in certain circumstances, aiding and abetting need not be tangible, but may consist of moral support or encouragement of the principles in their commission of the crime.”[59] That is, that the likelihood and extent of the crime indirectly increases in effect of their behaviour.

 

Exxon Mobil hired security forces that committed acts of torture and murder. Does that make them responsible?

 

In Doe v Exxon Mobil, a group of Indonesian villagers from Aceh filed a lawsuit against oil company Exxon Mobil Corporation where the plaintiffs held that the company had hired security forces that committed human rights abuses against members of the village including torture, kidnapping, arbitrary arrests and murder.[60] It is thus alleged that the company’ negligent hiring and supervising of the security forces carries responsibility since they indirectly facilitated the violence. A multinational enterprise’ purpose is to ‘advance their own economic interest’ and doing so with entities that perpetrate human rights violations expose their indirect contribution to negligence and thus by extension contributory to the harm suffered. Thus, the question is, how far does the scope of responsibility extends? As instantiated at the beginning, whilst we are aware of the rights of the human person, corresponding and equally as significant are our obligations.

It cannot be denied that particular MNC’s certainly have an influential capacity over governments, policies and politics in general. Fox News’ Rupert Murdoch, despite the notorious international phone hacking privacy breaches by News Corp, is an example of the power and influence an MNC can have with governments. The media mogul recently tweeted a series of comments regarding the Turkish elections, his controversial   relationship with the Erdogan government along with his acquired television and media rights in the country have raised concerns about his capacity to have an influence on social decision- making in the country. “Almost everywhere in the world, most of the media is still politically differentiated along with general political orientations.”[61] Whilst it is clear that media liberalisation is essential for democracy and thus by extension human rights, suspicions that the Turkish press had been infiltrated by centre- right political influence was solidified with the recent Gezi Park Protests in Istanbul, a story rarely mentioned on popular television broadcasters owned by Murdoch in Turkey during the tumult. The AKP in addition has attempted to strengthen legitimacy by showcasing popular domestic support and falsely representing themselves as significant actors of democracy, it is evident that media representation of the party is one-sided with Turkey becoming notorious for arresting journalists and restricting the independence of journalism and the media, social media becoming an expressive platform to expose the discontent displayed by the population. Notwithstanding the case against Nestlé, Archer Daniels Midland and Cargill, a plethora of other tort litigations have nevertheless been rejected under the Aliens Torts Claim Act 1789 due to forum non conveniens, whereby the legal system of the country in question is adequate to pursue the case independent of the United States. Yet, often the laws particularly of developing countries remain deficient particularly if the sovereignty or governance of the State remain dependent on the investment and thus coverage of the areas of potential abuse by MNC’s is often insufficient to merit legal action. With a yearly revenue of more than $US120Billion, petrochemical company Chevron Corporation is an example of how a multinational organisation plays an instrumental role in environmental destruction and   human rights abuses. Their   notoriety   is perhaps more prominent in Ecuador, whereby the subsidiary Texaco had dumped millions of gallons of toxic bi-products over several decades causing not only serious environmental contamination that has resulted in ocean acidification and producing the drastic global changes with global warming and other effects.[62] In addition, the indigenous communities were struck with terminal illness and death due to the poisonous corruption of the local water system. “The company dumped untreated crude oil into open and unlined pits, from which toxic chemicals then leached into water system and through the soil of village lands.”[63]

Litigation against the multinational company by a group of Ecuadorian citizens in 1993[64] and was later dismissed by the Federal Court almost a decade later due to forum non conveniens whereby the complaint could be adequately served in Ecuador.[65] A similar case against Union Carbide Corporation in India that found thousands killed or seriously injured for the leak of methyl isocyanate gas,[66] whereby the State District Court of New York dismissed the case purporting that India had an adequate forum to launch legal proceedings against the disreputable company. This raises the question of extra-territorial tort proceedings. In 2006, Chevron filed for an international arbitration claim at the Hague claiming that the Government of Ecuador violated a bilateral investment treaty with the United States,[67] purporting that the 2003 class action against the multinational in Ecuador had been corrupted by influencing the judiciary, with the arbitration panel ruling in favour of Chevron that requested the suspension any enforcement until compliance with an Interim Measures Order had been met.[68] Criminal proceedings are still underway at the International Criminal Court against CEO of Chevron[69] for ignoring the requirement to clean the toxic waste in the Amazon and while a tumultuous case at the Ecuadorian Supreme Court that imposed damages of almost $US10 Billion[70] against the company, blatant disregard of their responsibilities is clearly manifest even on their website that states: “Chevron is defending itself against false allegations that it is responsible for alleged environmental and social harms in the Amazon region of Ecuador.”[71]

Whilst I have tried to elucidate in different sections of this blog post relating to what type of enforcement mechanisms could be used for human rights violations, including domestic laws and better approaches between MNCs and NGOs that negotiate sustainable frameworks that safeguard human rights principles as applicable in international law, therein nevertheless exists obstacles to these enforcements. It is clear that the United Nations and other national and international bodies are focusing on more effective methods to reduce MNC crime, whereby in 2003 the U.N Sub-Commission on the Promotion and Protection of Human Rights implemented the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights that detailed business obligations and to a degree ensured clarity that businesses must ensure their obligations to human rights has been met. Prior to that, Kofi Annan whilst addressing the World Economic Forum proclaimed the Global Compact initiative that encouraged businesses to ensure the adoption of internal policies and procedures that ensured a sustainable approach to human rights. Combined efforts developed the draft norms that attempts to solidify business compliance in a legally binding set of principles and avoid MNCs from being complicit to human rights violations. Nevertheless, whilst these norms begin the process of developing into a binding treaty, organisations such as the International Organization of Employers opposed the draft norms.[72] In fact, hostilities to the framework as a remedy were rejected even by States including Australia, UK and the United States.[73] The guidelines themselves, as stated in the preface, “encourage the positive contributions that multinational enterprises can make to economic, environmental and social progress and to minimise the difficulties to which their various operations may give rise.” Whilst voluntary in character, the general principles and policies with a context of their global application, ensure not just sustainable development and supply chain responsibility, but also calls for the establishment of local capacity building procedures. Such encouragement could certainly have a long-term, normative impact particularly as a preventative measure against any social or environmental risks via the encouragement of ensuring they are combating any adverse practices that motivate corruption, violence and other abuses that impact on society and the environment. It is therefore foreseeable that the guiding principles may have a normative effect in resulting behavioural changes. This is followed with the recent adoption of resolution 26/9 on the 26th of June, 2014 that sought to develop working group on MNEs and other businesses to mandate internationally legally binding instrument that will officially regulate corporations inclusive of States and non- State and private actors. These negotiations are underway and it is clear that internationally enforceable mechanisms to ensure compliance to human rights norms – whilst yet to be achieved – nevertheless is certainly developing toward processes that places duties directly on not only States but also private, non- State entities and multinational corporations.

There are also other tactical advantages that can be utilised against MNC’s to place pressure for the adoption of internal policies and procedures that will result in an overall behavioural change that safeguards rights. The demands of consumers themselves are changing, with companies adopting the purchase of ethically sourced products, for instance the multinational company Starbucks who has adopted a sustainable strategy known as C.A.F.E [coffee and farmer equity] for ethically sourced coffee, tea and cocoa.[74] Additionally, the company also has ensured that farming communities linked in any way to their supply chain are managed by working closely with Conservation International, in addition to re-forestation projects.[75] Organisations like Conservation International and Amnesty International are adopting preventative strategies that build or strengthen relationships with MNC’s as well as developing frameworks76 that supplant compliance through collaboration. In addition, the implementation of sanctions to pressure States to ensure compliance to human rights has also been an effective method that promotes change.

“Sanctions imposed in the past, such as those imposed during WWII, the trade and financial sanctions against China, the Iran hostage sanctions, and the ongoing Iraqi sanctions, have been very effective means of achieving well- defined foreign policy objectives. Whether imposed for such broad policy reasons or in response to specific human rights concerns, sanctions usually, and perhaps inevitably, involve an immediate human cost within the target state. Short of abandoning sanctions as foreign policy tools, however, there is probably no practical way to ensure that sanctions both narrowly affect only the targeted state actors and still remain effective.”

However, sanctions can also work in reverse. In 2011, France began a process of approving of a Bill that would recognise the acts committed during the last phase of the Ottoman Empire prior to its dissolution against the ethnic Armenians as ‘genocide’ where more than 1.5 million died during a process of ethnic cleansing, an accusation the Turkish government staunchly opposes.[77] In response to the potential legislation, Turkey applied numerous sanctions particularly relating to trade agreements and reprisals against multinational entities located in Turkey from France that it is assumed the potential law was struck down due to the dwindling relationship between both States.[78] Whatever the case is, it appears that at this very moment, international law is ineffective in controlling the free-reign that multinational corporations enjoy and the only real preventative measure is the effects civil society can employ through boycotting sales of the products that they make or purchase through the international supply chain. This would mean that “hippies” who care about our environment and human rights activists that have fought corrupt companies by exposing such atrocities are in effect the champions of change as in doing so, Fair Trade products have come to fruition among many more. Thus the biggest change possible is by stopping the use of products that are damaging communities and the environment in developing countries by the people spending the money in countries like mine; we all have the blood on our hands and thus it is all our responsibility.

 

1 George Ginsburgs and Vladimir Nikolaevich Kudriavtsev, The Nuremberg Trial and International Law, Martinus Nijhoff Publishers (1990) 62
2 Ibid., 64
3 Nuremberg Trials Final Report Appendix D, Article II of the Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity
4 Juliet Okoth, The Crime of Conspiracy in International Criminal Law, Springer (2014) 94
5 Universal Declaration of Human Rights (1948). Also see Vienna Declaration and Programme of Action (1993).
6 Javaid Rehman and Susan Breau, Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices, Brill (2007) 14. In Article 5 of the Vienna Declaration, it states: “While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
7 §1(1) UN Guiding Principles on Business and Human Rights (2011)
8 Benedetto Conforti and Angelo Labella, Introduction to International Law, Martinus Nijhoff Publishers (2012) 33
9 See GFCC, Judgment of the Second Senate of 18 July 2005 – 2 BvR 2236/04 -paras. (1-203)
10 Organisation For Economic Co-operation and Development, Multinational Enterprises of the Organization for Economic Co-operation and Development (2008)
11 Ibid., 12
12 A/RES/S-6/3201 Declaration on the Establishment of a New International Economic Order. Also   see 3202 (S-VI) Programme of Action on the Establishment of a New International Economic Order (1974)
13   International Labour Organisation, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (2014)
14 United Nations Set of Principles and Rules on Competition: The Set of Multilaterally Agreed Equitable Principles   and Rules for the Control of Restrictive Business Practices TD/RBP/CONF/10/Rev.2 (2000)
15 Ibid.
16 Tax Laws Amendment (Tax Integrity Multinational Anti-Avoidance Law) Bill 2015, Exposure Draft Explanatory Materia. See: http://www.treasury.gov.au/~/media/Treasury/Consultations%20and%20Reviews/Consultations/2015/Tax%20Integrity%20Law/Key%20Documents/PDF/EM_Tax_Integrity_Multinational_Anti-avoidance_Law.ashx
17 It is for this reason that legislation such as Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth) was developed.
18 Carissa A. Rarick, “Fighting War and Furthering Slavery: The Alarming Truth About Private Military Firms and the Solution to End Their Involvement in Human Sex Trafficking,” Journal of Global Justice and Public Policy [Vol. 2/65]
19 Human Rights Watch, ‘Bosnia and Herzegovina Hopes Betrayed: Trafficking of Woman and Girls to Bosnia and Herzegovina for Forced Prostitution’ [Vol 14:9] 55
20   In addition, the WTO   Dispute Settlement Body received five primary complaints from Honduras, Indonesia, Cuba, Ukraine and the   Dominican Republic with an excess of 40 third-party complaints, the ruling expected to be finalized later this year.
21   §44 Australia’s Response to the Notice of Arbitration, Under the 2010 Arbitration Rules of the United Nations Commission on International Trade Law
22 Report of the World Commission on Environment and Development: Our Common Future. Document A/42/427
23 Mandy Haggith, Paper Trails: From Trees to Trash: The True Cost of Paper, Random House (2008) 46
24   Michael Yaziji and Jonathan Doh, NGOs and Corporations: Conflict and Collaboration, Cambridge University Press (2009) 151
25   Joseph, Sarah, ‘An Overview of the Human Rights Accountability of Multinational Enterprises’, in Kamminga, Menno T, and Zia-Zarifi Saman (eds), Liability of Multinational Corporations under International Law (Kluwer Law International, The Hague 2000) 78. Also see Menno Kamminga, ‘Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC,’ The EU and Human Rights OUP (2000) 565
26     Muzaffer   Eroglu,   Multinational   Enterprises   and   Tort   Liabilities:   An Interdisciplinary and Comparative Examination, Edward Elgar Publishing, 1 Jan. 2008, 124
27 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
28 Op. Cit., Eroglu 124
29 The United States ratified the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. See Michael Koebele, Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law Through US Torts Law, Martinus Nijhoff Publishers (2009) 139.
30 Theodore Harney MacDonald, The Global Human Right to Health: Dream Or Possibility? Radcliff Publishing (2007) 89
31 Jonathan Cohen, Togo, Borderline Slavery: Child Trafficking in Togo Human Rights Watch (2003) 8
32 The Associated Press, Fishermen Slaves: Human Trafficking and the Seafood We Eat, Mango Media Inc., (2016)
33 Ibid.
34 Anna Hutchens, Changing Big Business: The Globalisation of the Fair Trade Movement, Edward Elgar Publishing (2009) 77
35 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
36 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
37 International Code of Marketing of Breast-milk Substitutes, World Health Organization, Geneva, 1981
38 Ibid.
39 K. Aswathappa, International Human Resource Management, Tata McGraw- Hill Education (2007) 293
40 Andrew Delios and Paul W. Beamish, International Business: an Asia Pacific Perspective, Pearson/Prentice Hall (2004) 300
41 Kadic v. Karadžić 70 F.3d 232 (1995).
42 Ibid.
43 John G. Fleming, An Introduction to the Law of Torts, Clarendon Press (1985) 410
44 Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
45 Doe v. Unocal, 395 F.3d 932
46 Op. Cit., Eroglu, 124
47   Sarah Joseph, Corporations and Transnational Human Rights Litigation, Bloomsbury Publishing (2004) 69
48 Daniel Aguirre, The Human Right to Development in a Globalized World, Ashgate Publishing, Ltd., (2008) 259
49 Doe v. Unocal, 963 F.Supp.880 (C.D Cal. 1997)
50 Ibid.
51 William Thomas Allison, My Lai: An American Atrocity in the Vietnam War, JHU Press (2012) 43
52 Carl Boggs, Masters of War: Militarism and Blowback in the Era of American Empire, Routledge (2013) 209
53 Valerie Plaza, American Mass Murderers (2015) 84
54 United States v. Captain Ernest L. Medina (1971)
55 Rule   153,   Customary   International   Humanitarian   Law,   “Command Responsibility for Failure to Prevent, Repress or Report War Crimes”
56 John Cheverie, United States Court Finds Unocal May Be Liable For Aiding and Abetting Human Rights Abuses in Burma, Human Rights Brief (Vol 10:2) 2002
57 Kai Ambos, Treatise on International Criminal Law: Volume 1, OUP Oxford, (2013) 100
58 Beth Walston-Dunham, Introduction to Law, Cengage Learning (2011)
59 §199 Furundžija (IT-95-17/1)
60   John G. Dale, Free Burma: Transnational Legal Action and Corporate Accountability, U of Minnesota Press (2011) 248
61 Rasit Kaya and Baris Cakmur, “Politics and the Mass Media in Turkey,” Turkish Studies, (Vol 11:4) 521-537, December 2010
62 Marylee Stephenson, The Galapagos Islands and Ecuador, 3rd Edition: Your Essential Handbook for Exploring Darwin’s Enchanted Islands, Mountaineers Books, 28 Sep. 2015
63 Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital, Cambridge University Press (2013) 141
64 Aguinda v. Texaco, Inc. 33 ELR 20010
65 Aguinda v. Texaco, Inc. 33 ELR 20010
66 Malcolm J Rogge, Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in Re: Union Carbide, Alfaro, Sequihua, and Aguinda, Texas International Law Journal, Texas International Law Journal [VOL. 36:299] 2001
67 Almut Schilling-Vacaflor, New Constitutionalism in Latin America: Promises and Practices, Routledge (2016)
68 They also held proceedings in a separate case claiming that Ecuador breached the Investment Agreement and the Settlement Agreement between Texaco and the State.
71 https://www.chevron.com/ecuador/
72 Criminal Justice in International Society By Willem de Lint, Marinella Marmo, Nerida Chazal, Routledge (2014) 238
73 Ibid.
74 Cheryl J. Baldwin, The 10 Principles of Food Industry Sustainability, John Wiley& Sons (2015) 29
75 Ibid.
76 Kinley, David; Joseph, Sarah — “Multinational corporations and human rights: questions about their relationship” [2002] AltLawJl 3; (2002) 27(1) Alternative Law Journal 7
77 Note that it is actually illegal in Turkey to claim that there ever was an Armenian Genocide. The Bill itself in France would have made it a criminal offence if one denied that there was a genocide.
78 Evangelia Axiarlis, Political Islam and the Secular State in Turkey: Democracy, Reform and the Justice and Development Party, .B.Tauris, (2014) 126

Love Is The Only Way To Experience The External World

How can we be sure that we are experiencing the external world? While we may have conceptualised an external world within our own minds and interact with friends and family and a plethora of external stimulation, but just like how my dog hears that I have come home and becomes excitable, experience is not merely forming concepts as a passive observer. One may experience fragments of the external world where ideas causally evolve merely by a complex yet functional process of cognition within the parameters of the quality of our mental faculties, but that would mean that perceptions and experience are synthesized solely on an objective order of our physical activities. So how can we have an awareness of an external world without the experience, the very subjective quality that enables us to intuit representations, to capture a conceptual framework that transcends the mere cognitive ability to order complex physical events into an effective information system?

The mind-body dualism is a conceptual division between our mental states and the physical properties of the external world and the problem therein is whether one is capable of being able to distinguish themselves as separate to this external world. The experience of the external world can never adequately be explained, according to solipsism, beyond the limits of an individual mind and thus we become fundamentally incapable of moving beyond our own mental state and that therefore concludes that only our mental state exists. Indeed, the greatest flaw in metaphysics even until today is the inability to clearly and distinctly demonstrate the existence of an external reality. The problem, however, is that the notion sets in an entirely subjective experience that becomes devoid of an objective world, where – like the movie Matrix – our bodies are sitting warmly in a vat with plugs attached to the back of our brain that stimulates virtual experiences that we assume to be reality. Descartes’ cogito ergo sum is an epistemological inference that if one is capable of thinking, the latter being what he defines as the, “first and most certain of all to occur to anyone who philosophises in an orderly way”[1] then there is no doubt that the person exists, but the nature of this Cartesian aptitude is very specific, that one is required to have embedded in their nature an exclusivity that would enable the conditions necessary for ideal cognizance. Similarly, the psychological theory of introspection vis-à-vis the problem relating to the structure of our experiences with the external world suggest that we have the reflective capacity to examine our own mental state, but the practice relies exclusively on the quality of this self-examination that cannot guarantee an absence of error. A key to this is the authenticity that enables a reflective practice which can overcome the preventative thresholds that envelope the honesty necessary to facilitate a genuine narrative, what John Locke refers to as “the perception of what passes in a man’s own mind.”[2]

A phenomenology of this introspection, however, differs from an empirical view of the mind. While the mind as a functional tool necessarily requires the complex ability to maintain an order of the continuous inflow of experiences, empiricists such as Locke would say that all knowledge is formed by sensory experience of the external world alone and that we place experience within a framework based solely on this causal evolution. The first-order level of the mind or the rules that govern the cognitive resources and the sensibility that enable the objective conditions for understanding and perception exist that any phenomenal consciousness would need to move beyond empiricism. While phenomenology is the study of being and experience within an external world, introspection is fundamentally the epistemological relation that studies the inner experience of this being with the external world; consciousness is fundamental. That is, the introspective experience of phenomenal character or the subjective and intrinsic quality of qualia is accessible and is central to the nature of consciousness.

‘A sociopath may mimic A Streetcar Named Desire by telling himself that the woman he raped is crazy and that she wanted to have sex with him, but this clearly lacks the interpretative accuracy of the external world. Human beings, according to Kant, are innately evil that subordinates morality to self-conceit and the only solution to this is by overcoming our propensity to evil through the cultivation of moral agency.’

The phenomenal character of mental life is a feeling of this sensory experience, that is, perceptions have a distinct phenomenal framework that differentiates between a mere perception with consciousness of the perception, an actual awareness of the activity where each experience has a distinct, conscious character so to speak. It is lived action. Unlike the empiricist who believes the contents of our being are made up of a series of perceptions, Kant takes it one step further and claims that the transcendental conditions enable us to have the experience rather than being a result of this experience. His interpretation of the transcendental differs entirely to transcendence, which purports something that exists beyond perceptual experience or non-sensory modes of understanding, which is a realm that one cannot verify and thus ultimately irrelevant to our epistemological system since if it transcends knowledge, it is beyond knowledge and falls into the dimension of faith. The transcendental conditions that extend beyond the grounds of reason is defined by Kant as what enables knowledge to not just be occupied solely with objects, but the very mode of our a priori knowledge of these objects.[3]

Our experience of the external world is spatiotemporal, separated causally through an arrow of time that evolves over the period of our cognitive existence and thus while there exists an external world, time is entirely a subjective experience. The transcendental aesthetic is an a priori mode of engagement with space and time, where patterns of sensations and experiences ascribed spatiotemporally to cognition a priori that enables the coherence of the external world, rather than space and time being actual, external entities.[4] Yet, we are capable of non-empirical representations of space, where we can see a human in front of us without that person actually being there spatially that leads Kant to label this mode as Intuition and hence why he famously stated that, “[t]houghts without content are empty, intuitions without concepts are blind.”[5] Time enables the intuitions to make sense of the spatial experiences in an orderly fashion and this succession organises the mental states where knowledge of thus formed. The difference is that that intuitions are the representations themselves given in sensibility: “In whatever way and through whatever means a cognition may be related to objects, that through which it relates immediately to them, and at which all thought as a means is directed as an end, is intuition. This, however, takes place only insofar as the object is given to us; but this in turn, is possible only if it affects the mind in a certain way. This capacity [to acquire representations] is called sensibility. Objects are therefore given to us by means of sensibility, and it alone affords us intuitions.”[6]

‘It is not simply a disposition that one emulates and there needs to be an authenticity that one feels autonomously that evokes a strong sense of duty to moral principles themselves independent of the required obligations set by others.’

If we are capable of non-empirical representations of space, what exactly are the conditions that enable our sensibility to authentically be receptive to the external world? A sociopath may watch A Streetcar Named Desire and mimic the plot by telling himself that the woman he raped is crazy and that she wanted to have sex with him, but clearly the conditions therein lack the accuracy that interpret the external world correctly. Human beings, according to Kant, are innately evil that subordinates morality to self-conceit and the only solution to this is by overcoming our propensity to evil through the cultivation of moral agency. This is via a ‘revolution’ so to speak, an acquisition of a way of thinking that personifies moral goodness. But it is not simply a disposition that one emulates and there needs to be an authenticity that one feels autonomously that evokes a strong sense of duty to moral principles themselves independent of the required obligations set by others. If we look at this from a geometrically different angle (namely through the lens of Husserl), intentionality is the property of mental states themselves, the very internal experience that functions independent of the external world.[7] The mental states are thus empowered with the function to take an experience of an object and transcend beyond that experience, the nature of this property enabling a moral transaction. When one considers existential feelings of angst, for instance, the isolation and emptiness of feeling estranged from the company of the external world embodies an intentional state where one is conscious of this separation via possibilities that enable a non-empirical narrative and reconfigure consciousness to interpret ones place in the external world beyond space and time. It leads one on a path to ascertain the possible phenomenal connections that echo this potential merger between ‘I’ or my subjective experience with the external world.

It is thus through empathy that one is enabled with the sense experience of the external world, where ones ‘conscience’ becomes the key to consciousness of an external world beyond this self-conceit. It transforms that intuitive ‘possibility’ into an experience that enables a channel to the external world and objectifies a narrative of shared experiences, thus becoming the very foundation that builds an ethical mindset, but it nevertheless requires reason as a basis for being able to interpret and identify moral consequences. Conscience, the very sense of right from wrong and the will that propels one to act morally, is sensually the very experience of giving love, but universally even though this ‘revolution’ may have been initiated by love for one object or person. Moral agency embodies the ability to conceptualise abstract principles and for Kant is derived from pure reason; the duty that motivates the will to conform with these principles by sensually experiencing the suffering of others establishes a sense of sympathy and emotional angst that moves the will to act ethically. This very act of expressing moral standards sensed by a subjective pain irrelevant to our own experiences in the physical world is an act of moral consciousness – love – the very desire to want the pain or suffering of others to be removed, to want their lives to be improved, the very desire to care for another person and thus authentically explore the external world.  While this ‘revolution’ may be stimulated by a specific object or experience, this intuit becomes a principle that one conceptualises into an abstract form that becomes universal, hence the categorical imperative.

The question here is, is this shared experience merely a simulation or is it a genuine exploration of sensing beyond the subjective mind? Further discussion of this continuum cannot be furthered today as alas, the limitations of this poor blog post prevents me in doing so, particularly since a variety of complexities vis-à-vis developmental epistemology and other relevant features would be required to be discussed. I will touch more on the latter part of this subject in a later post.

[1]Rene Descartes, Key Philosophical Writings, Wordsworth Editions (1997) 279
[2] John Locke, An Essay Concerning Human Understanding, P. H. Nidditch (ed.). Oxford: The Clarendon Press J. (1975) 115
[3] E. Kant, Critique of Pure Reason (A11, B25)
[4] Ibid., (A23/B37-8)
[5] Norman Kemp Smith, A Commentary to Kant’s Critique of Pure Reason, Springer (2003) 80
[6] Op. cit., Kant (A19/B33).
[7] Susi Ferrarello, Husserl’s Ethics and Practical Intentionality, Bloomsbury Publishing, (2015) 101

Book Review: Ethical Writings of Maimonides

For centuries, from Aristotle to Confucius, Aquinas and Thoreau, moral philosophers have endorsed the idea that a balanced, moderate regularity of character is an important step towards genuine happiness, that excess or deficiency of any sort and the failure to attain a principled attitude toward guiding and cultivating the self toward this mean will lead to the reverse. Thus, one who leads a life attempting to walk down this dutiful path toward a balanced and constant frame of mind is demonstrative of a noble and even a superior person. As said by Socrates, “with his eyes fixed on the nature of his soul, naming the worse life that which will tend to make it more unjust and the better that which will make it more just… all other considerations he will dismiss, for we have seen that this is the best choice.”[i] This choice to lead a life of virtue and justice and abandoning all that is vulgar, vulgarity being interpreted as “the masses and the most vulgar seem – not unreasonably – to believe that the good or happiness is pleasure. Accordingly they ask for nothing better than the life of enjoyment,”[ii] will allow one to adopt a standard that will link them closer to what is beautiful, namely love and honesty.

So what constitutes perfect virtue? Is it defined by the strength of individual will? Is it how one determines right from wrong, the capacity to overcome the influence of a defective ego, the intelligence and the confidence to be autonomous by engaging independently with the world around them? Is it to identify and distinguish the kind of moral values that are functional, valuable and aesthetical, of what is prohibited, useful and authentic, to be capable of ascertaining intent and to act on and maximise moral principles? It is simply the strength of will, the capacity to overcome the proclivity of the ego and the wayward pleasures of our instinctual drives, to recognise the scope of the activity of leading a morally virtuous life by searching for the golden mean. It is to be courageous enough to deliberately abandon a false environment and find the veracity and sense of honour to pursue a life of virtue, to maintain and personify it. “True virtue can only be grafted onto principles, such that the more general they are, the more sublime and noble they become,”[iii] thus distinguishing between the subjective aesthetic toward a universal aesthetic, the former having the possible inclination to waywardness as it remains dependant on the moral disposition of the individual.

It is for this reason that the disposition of the individual and obtaining the correct character traits necessary to reach true virtue is indispensable. Moses Maimonides discussed in detail the importance of this mean in several of his works including Hilkhot De’ot or the Laws Concerning Character Traits and Eight Chapters aside from his more famed work in Guide of the Perplexed. All of which can be found in the Ethical Writings of Maimonides (Moses ben Maimon), edited by Raymond L. Weiss with Charles Butterworth. Maimonides (1138 – 1204) was born in Cordoba, during the short-lived Moorish Almoravid Dynasty that ruled over present-day Morocco and Spain. Known as Rambam, he trained as a physician that later enabled him to become court physician to the Sultan Saladin and was well versed in medicine both in reading and in writing. His writings stretched out to include Rabbinic Law and Jewish Philosophy and his influence as a scholar has maintained his place as authoritative figure in Jewish law and ethics. His metaphysical and epistemological writings are included in his prolific repertoire but his studies on ethics and virtue exemplify the type of obedience and dedication required to preserve the divine wisdom and the t’amei ha-mitzvot that explained the reasons for the commandments.

According to Maimonides, there exists two types of moral standards in an individual, namely those that are pious and those that attempt to find the golden mean, the former considered to be obligatory since such a characteristic is required to encourage the subjective poise required to engage in the middle way.[iv] In his Laws Concerning Character Traits (27-59), he traverses through eleven commandments that attempt to direct one toward the equilibrium required to reach a state of moral virtue that epitomises the ‘right way’ or as said by Solomon, “Ponder the path of thy feet, and let all thy ways be established.”[v] All people have different character traits, different personalities and dispositions, whereby one person may have the calm that another may not as they become intensely angered and impatient. One can be lazy and gluttonous while another ascetic by nature. Maimonides writes about eleven commandments that include 1. to imitate God, 2. to cleave to those who know of God, 3. to love your neighbours, 4. to love converts to God, 5. not to hate brothers, 6. to rebuke, 7. not to put (anyone) to shame, 8. not to afflict the distressed, 9. not to go about as a talebearer, 10. not to take revenge, 11. not to bear a grudge. “The right way is the mean in every single one of a man’s character traits” (29). The golden mean is to find the balance toward establishing a good character indicated by the way they conduct their affairs, by being humble and loving. It is to reach for ‘wisdom’ by finding the mean between the extremes of our character traits before sensibly and continuously practicing until it becomes firmly established.

For Maimonides, it is wisdom to walk in the way of God, to seek the path that leads to God and therefore replicate the virtues or commandments and test your obedience to God as exemplified in the Old Testament. To become “slow to anger and abundant in loving-kindness, just and righteous, perfect, powerful and strong… and a man is obliged to train himself to follow them and to imitate according to his strength.”[vi] It is to uproot the flaws that one may have and ‘cure’ the ailment of immorality by training oneself to understand opposites. If one is wealthy and has a conceited attitude, he should clothe himself in worn-out, shabby garments that will endure him with much degradation until the haughtiness has left him and he is humbled. Whatever the problem may be that causes one to lose the way of this required balance, the individual should move themselves toward the other end of the same extreme until reaching that unaffected balance. As said by David Hume, “[t]he richest genius, like the most fertile soil, when uncultivated, shoots up into the rankest weeds.”[vii]

Although he discusses aspects of one’s personal conduct, including the way that one may eat or drink, sleep and have sexual intercourse, there is one particular aspect that merits further discussion and that was his view on cleaving to those who lead the way of wisdom. “[A] man needs to associate with the just and be with the wise continually in order to learn [from] their actions,”[viii] and by associating with fools one will ultimately enable evil to prosper within. Accordingly, evil is living without adequate care or thought to this measure of behaviour. The human being, says Kant, is aware of the moral law but has failed to incorporate it into his or her maxim, and is thus fundamentally evil.[ix] Regarding the conduct of ones affairs and perfecting eating habits, the way he or she engages with body and desires, and the consistent consciousness to dedicate oneself to moral well being is not simply for the happiness that it enables but also as a way to keep his or her body healthy and strong. There misery therewith when surrounded by the wrong people will prevent one from conducting their affairs correctly. In On the Management of Health (105-113), any such undesirable people and overindulgence leads to excessive mental and physical health issues where strength is spent and “his life and eyes dimmed”[x] or conversely, improving his character traits by cleaving to those who are wise, modest and righteous, his soul ultimately becomes tranquil.[xi] In similar vein, Confucius states that one should, “make conscientiousness and sincerity your leading principles. Have no friends inferior to yourself. And when in the wrong, do not hesitate to amend.”[xii] But it is not merely the afflictions physically, but the afflictions of the soul and the impact of the misery, anxiety and despair that befall people. The remedy is to enable the soul to eliminate the passions and learn to compose oneself ethically and morally by becoming subservient to what is righteous and good. “Thus the passions will diminish, [obsessive] thoughts will disappear, apprehension will be removed, and the soul will be cheerful in whatever condition a man happens to be” [109].

While it is possible that the ego could choose the wrong people to have and thus misconstrue what it means to be surrounded by the right people, the general rule of propriety is that self-development and dedicating oneself to a life of wisdom would enable the faculty accurately observe right and wrong conduct in others and ourselves. The propriety of character and how people conduct themselves and their affairs is a matter of observation and since depravity of character is expressed through impropriety and the product of their behaviour seen by the fruits they produce, the clarity of choice becomes simplified. Those who embody moral virtue and right or wrong behaviour, who – as Mencius expounds – feels a sense of shame[xiii] and is reverently careful in his conduct and affairs is clearly one of right character and mind. This standard establishes a virtuous culture or environment where members equally possess the same will to moral virtue that enjoin to equally share in the development of principles, a formula known as the Kingdom of Ends.[xiv] For Maimonides, “Certain actions necessarily stem from one soul and other actions from another soul” that therefore exemplify the importance of relations with our fellow community.

In Eight Chapters (59-105), Maimonides critically explores piety and the discipline that encompasses morality. Good moral habits initiates the formation of ethics; by obtaining good moral habits, it becomes that very connection between moral virtue and the social and political. Written as an introduction to Pirqei Avot (Chapters of the Fathers), he attempts to isolate the permissible and erroneous and the relevance of been rational as n instrument to become empowered to control the appetitive desires. The soul has the power but disobedience through transgressions and the highly imaginative fails to enable the will to become subservient to moral virtues. “For example, moderation, liberality, justice, gentleness, humility, contentment, courage, and others.” (65) This disobedience becomes a disease to the soul that is seen externally in the body, taking pleasure in things that are not good for the body and the mind and never reaching physical excellence. His references to statements made by Solomon enables clarity on his combined efforts to involve Biblical connections to his ethical and medicinal approaches.

And the reason for living a life dedicated to finding the Golden Mean? Virtue – which is mental health – and the golden mean are necessary for a healthy life. In his Letter to Joseph (113-129), that he writes to his disciple Joseph Ibn Aknin, it is to lead by example and develop a pattern of excellent. The chapter provides some extraordinary insights into the man himself, about his vision and his enormous commitment to his moral objective. “In sum, if you are indeed my disciple, I want you to train yourself to follow my moral habits” (120). His affection and criticisms shed an amazing light on his dedication to justice and his love of knowledge, or as St. Thomas Aquinas states, “Love takes up where knowledge leaves off.”[xvii] Love is the unity formed through knowledge and establishes a state of happiness resides, making knowledge fundamental to this development. Through Rabbinical law and adherence to the commandments along with the dedication to attain a balance of mind will the adherent become suffused with love. It is not simply the mean itself that supplies the individual with the tranquillity required to be happy, but the righteous ability to discern the right time and way to think and behave, to rationally approach ones own emotions.

By improving your character and reaching a state of clarity in mind and reason, one will enable the qualities necessary to reach the balanced standard that Mainmonides expects. In the Guide of the Perplexed (129-155), which is one of his most famous works, is to guide those possessing positive character traits by learning to understand God. The work is addressed to Joseph ben Judah and elucidates ways of overcoming the disillusionment and existential angst of philosophy and law by understanding the differences between the practical and the subjective or speculative. Having strong theoretical foundations and thus continuously ameliorating knowledge, one can uncover the mental capacity necessary to acquire to attain a solid understanding of themselves and the world around them. That laws are not natural but necessary to manage the natural. “The Law as a whole aims at two things: the well-being of the soul and the well-being of the body. As for the well-being of the soul, it consists in the multitude’s acquiring correct opinions corresponding to their respective capacity” (139). The final chapters, Treatise on the Art of Logic (155-165) and The Days of the Messiah (165-177) continue along with the same themes. By distinguishing biblical themes such as the world to come, formulations that deal with immorality and the benefits of the laws particularly the coming messianic era will provide one with an understanding of repentance. “It has become known that the life of the world-to-come is the reward for performing the commandments and is the good that we merit if we have kept the way of the old referred to in the Torah” (169). Discussing the instrument of logic as a necessary condition of the mind in order to appreciate the correct approach of practical reasoning and to think and behave correctly remains an important aspect to the power of rational thought.

I was compelled to his work for my love of history whether it is ancient or medieval, in this case the latter. I have a strong appreciation for literature such as the Ethical Writings of Maimonides that promotes the value of ethics and the moral concerns relating to our conduct and behaviour. His criticism is harsh, views absolute and his beliefs that the actions of our soul, our intent, the choices that we want to make and whether we are thinking correctly formulate the groundwork necessary to compel the right choices that we act out in reality. The book provides additional insight into rabbinical literature and the significance of moral laws that authoritatively posit the necessity of moral conduct. By finding the golden mean and teaching oneself to discover a proper balance of thought and behaviour, compelled by our desire to lead a virtuous life, Maimonides believes that we can reach both physically and mentally excellence in health and in moral virtue.

[i] Plato, Republic [618e]
[ii] Aristotle, Nichomachean Ethics from I.M.N. Al-Jubouri’ History of Islamic Philosophy, (2004) 74
[iii] Immanuel Kant, Observations on the Feeling of the Beautiful and Sublime, 2:217
[iv] Raymond L. Weiss, Ethical Writings of Maimonides, Dover Publications New York (1975), 7
[v] Proverbs 4:26
[vi] Weiss and Butterworth, op. cit., 30
[vii] David Hume, Moral and Political Philosophy, Simon and Schuster (2010)
[viii] Weiss and Butterworth, op. cit., 46
[ix] Immanuel Kant, Religion within the Bounds of Mere Reason, 6:32
[x] Weiss and Butterworth, op. cit., 40
[xi] Ibid., 43
[xii] Confucius, The Analects, Chapter XXIV
[xiii] Menicius, Bk. vii., pti., c.vii., v i.
[xiv] Immanuel Kant, Groundwork of the Metaphysic of Morals, 4:439