Information theory is a powerful tool to express principles to drive autonomous systems because it is domain invariant and allows for an intuitive interpretation. This paper studies the use of the predictive information (PI), also called excess entropy or effective measure complexity, of the sensorimotor process as a driving force to generate behavior. We study nonlinear and nonstationary systems and introduce the time-local predicting information (TiPI) which allows us to derive exact results together with explicit update rules for the parameters of the controller in the dynamical systems framework. In this way the information principle, formulated at the level of behavior, is translated to the dynamics of the synapses. We underpin our results with a number of case studies with high-dimensional robotic systems. We show the spontaneous cooperativity in a complex physical system with decentralized control. Moreover, a jointly controlled humanoid robot develops a high behavioral variety depending on its physics and the environment it is dynamically embedded into. The behavior can be decomposed into a succession of low-dimensional modes that increasingly explore the behavior space. This is a promising way to avoid the curse of dimensionality which hinders learning systems to scale well.
A collection of questions about Bitcoin and its hypothetical relatives Bitguilder and Bitpenny is formulated. These questions concern technical issues about protocols, security issues, issues about the formalizations of informational monies in various contexts, and issues about forms of use and misuse. Some questions are formulated in the more general setting of informational monies and near-monies. We also formulate questions about legal, psychological, and ethical aspects of informational money. Finally we formulate a number of questions concerning the economical merits of and outlooks for Bitcoin.
Do adolescents have the decisional capacity of adults? Or, are they in crucial ways still immature, that is, are they deficient decisionmakers? This question has been answered in quite different ways in medical versus criminal law. In medical law, an exception from the requirement of parental consent was crafted to allow adolescents to make decisions in restricted circumstances associated with quasi-medical emergencies. Over the last few decades, this exception has grown into an almost blanket acceptance of the decisional capacity of adolescents under the age of 18 and generally over the age of 14 to give valid consent to treatment. At the same time, a seemingly contrary view of the decisional capacity of minors developed in American criminal law, especially around cases such as Eddings v. Oklahoma (1982), Johnson v. Texas (1993), Roper v. Simmons (2005), Graham v. Florida (2010), Jackson v. Hobbs (2012), and Miller v. Alabama (2012). These Supreme Court decisions recognize adolescents as having a substantive lack of maturity and an underdeveloped sense of responsibility that distinguishes adolescents from adults. The Court in Graham v. Florida (2010) noted, for example, that âdevelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds . . . [in] parts of the brain involved in behavior controlâ (560 U.S., at __ [slip op., at 17]). The result is that courts have accepted the view that the decisional capacity of adolescents is not fully developed and that as a consequence adolescents cannot have the same degree of criminal culpability as adults. In evaluating the decisional capacity of minors, one thus faces the challenge of how to harmonize these two quite different trends in the assessment of adolescent decision making. This issue of The Journal of Medicine and Philosophy brings together psychological and neurophysiological data with philosophicalâbioethical reflections on what should count as decisional capacity or decisional agency. Some of the articles address as well the issue of the authority of parents over their children and how this bears on the question of whether adolescents under the age of 18 should generally make medical decisions without the involvement of their parents. The conclusions one reaches on these matters regarding adolescent decisional capacity and parental authority will determine the concrete character of medical law and public policy. In particular, it will determine whether the default position should be that of presuming that minors over the age of 14 do or do not possess decisional capacity equivalent to that of adults. Where one places the burden of proof will also turn on empirical data regarding the contribution of authoritative, even authoritarian, parenting to the successful maturation of minors into adults, for this will give a further indication of the importance of parental involvement. This issue of The Journal of Medicine and Philosophy opens with a paper from a psychologist who has been involved in developing briefs to the Supreme Court (Miller, 2012) that have influenced holdings that recognized the diminished legal culpability of adolescents (Miller v. Alabama, 2012). Laurence Steinberg in his article âDoes Recent Research on Adolescent Brain Development Inform the Mature Minor Doctrine?â argues that, because adolescents are less mature than adults, when making decisions characterized by emotional arousal and peer pressure as when committing crimes, culpability is diminished (Steinberg, 2013). However, Steinberg also argues that recent studies of the adolescent brain and of behavioral development do not undermine the mature minor doctrine. Instead, the data indicate important ways in which the doctrine should be applied. First, Steinberg stresses the difference between adolescents and children, making plausible the old rule of 7âs (i.e., infants under 7 years, children 7â14, and adolescents over 14). He holds that adolescents in the right circumstances have decisional capacity equivalent to that of adults. Second, Steinberg takes the view that healthcare practitioners can enhance the ability of adolescents to make informed and knowledgeable decisions by being involved in the decisional process and by creating a context that circumscribes impulsive decision making (i.e., decision making that does not take into account long-term as well as short-term consequences of alternative courses of action). Thus, given peer pressure and circumstances in which impulsive decision making is not counteracted, adolescents lack adult decisional capacity and, therefore, adult culpability with regard to criminal acts. However, Steinberg argues that in the context of most medical decision making, adverse influences on the decisional capacity of minors can be counteracted so that adolescents can function as mature minors. In contrast, Evan Wilhelms and Valerie Reyna advance grounds to restrict the mature minor exception to quasi-emergency situations. They come to this decision because they find a more fundamental qualitative difference between adolescent and adult decision making. In âFuzzy Trace Theory and Medical Decisions by Minors: Differences in Reasoning between Adolescents and Adults,â they report data that show that it is not merely impulsive behavior or even the failure of adolescents to take into account long-term as well as short-term consequences that makes adolescents bad decisionmakers (Wilhelms and Reyna, 2013). More importantly, it is their failure to grasp the gist of what is at stake in making a decision. Wilhelms and Reyna develop their argument through engaging âfuzzy trace theoryâ: Fuzzy trace theory (FTT) is a comprehensive theory of reasoning, judgment, and decision-making that integrates the prior standard reactive model with documented cognitive developmental differences to explain risk-taking behavior in adolescents. . . . According to FTT, deliberative, analytic reasoning and impulsive reactivity are distinct routes to risk taking, and, surprisingly, the former accounts for a great deal of risk-taking in adolescence. . . . Thus, adolescents are not just more emotional and impulsive than adults; their understanding of the gist of such decisions is not mature. (Wilhelms and Reyna, 2013, 272) The point is that it is âgist processingâ that appears to be a necessary condition for mature decision making. Even when adolescents can intellectually analyze and lay out long-term as well as short-term consequences of their decisions, they still fail crucially to apprehend what is at stake in the decisions they face. Although adolescents are capable of encoding mathematical probabilities about risks and rewards, they still do not have the mature appreciation for the meaning of those risks and rewards, and their implications for their future adult lives. Put another way, it could be said that some adolescents know âthe price of everything but the value of nothing.â (Wilhelms and Reyna, 2013, 279) Adolescents, in short, differ qualitatively from adult decisionmakers, so that Wilhelms and Reyna âconclude that circumstances in which adolescents are equivalent to consenting adults are unusualâ (Wilhelms and Reyna, 2013, 270). They, therefore, recommend that âif [mature minor] exception is necessary for an emergency situation, the physician or medical experts involved should emphasize the bottom-line gist of risks involved during the process of consent or deciding on treatment optionsâ (Wilhelms and Reyna, 2013, 279). The next essay in this issue, âThe Mature Minor: Some Critical Psychological Reflections on the Empirical Basesâ (Partridge, 2013), takes a position closer to that of Wilhelms and Reyna than to that of Steinberg. This essay concludes that there are grounds to bring into serious question the advisability of exempting minors from parental authority and guidance, save in emergency or quasi-emergency circumstances, given the qualitatively different character of adolescent decision making. These differences are not just due to differences in decisional behavior, such that adolescents tend more than adults to be impulsive decisionmakers, who often inadequately take account of the long-term consequences of their choices and who very frequently fail fully to apprehend the significance of near- and long-range consequences of decisions. In addition, the brains of adolescents are simply different from those of adults. One can through brain imaging literally see the differences. When adolescents make decisions, there is a greater engagement of limbic structures with less of an engagement of prefrontal cortical areas in comparison with adults making the same decisions. These data justify a strong but rebuttable presumption that, in general, minors lack mature decisional abilities, and that they would benefit from the guidance of those who know them well, in particular parents and guardians. A second body of data is also relevant, which shows the importance of effective parenting for the maturation of adolescents (Baumrind, 1989; Adaljarnardottir and Hafsteinsson, 2001; Huver et al., 2007). These findings indicate that one should be more concerned about false positives than false negative determinations of decisional capacity, given the benefits from parental involvement. Here matters are complex, in that the character of the family in the West is changing, with some 41% of children in the United States now being born outside of a traditional marriage (Martin et al., 2011, 2). Any actual approach to adolescents will need frankly to take into account their social context. The papers by Rachelle Barina and Jeffrey Bishop, by Mark Cherry, and by Ana Iltis locate the examination of the mature minor exceptions more explicitly within moral and bioethical concerns. In their paper, âMaturing the Minor, Marginalizing the Family: On the Social Constitution of the Mature Minor, Sexual Politics, and the Family,â Barina and Bishop address the historic and social context in which the formation of the mature minor doctrine develops, and in doing so illustrate the adversarial nature between the goals of the state and the contextual role played by families. Barina and Bishop embed their analysis of this development within a âphenomenological account of the care of the body in the familyâ and its subsequent application to reproductive health policy. They argue that, legally and medically, the concept of the mature minor does not actually depend upon the notion of maturity. Instead, the invocation of the doctrine of âmature minorâ in the context of adolescent reproductive health has become a means to assert better health outcomes for the state. A careful consideration of maturity is unnecessary because contraception is an unqualified good in the case of every teen. Socially destructive and expensive health risks, more than the adolescentâs mature ability to understand and appreciate health information, merit the provision of reproductive health services without parental consent. (Barina and Bishop, 2013, 306) They also argue that the focus on public health to the exclusion of all other factors creates a clear conflict between state interests and parental authority. In so doing, the state is interrupting the conveyance of âthe moral, social, and existential goods that belong to the particular family within which the childâs life-world is formed.â (Barina and Bishop, 2013, 309) Mark Cherry takes a stronger stand against the universal application of the mature minor doctrine in his paper âIgnoring the Data and Endangering Children: Why the Mature Minor Standard for Medical Decision Making Must Be Abandoned.â Unlike Steinberg who is able to reconcile the apparent differences in the medical and legal understanding of adolescent decision making with the neuropsychological evidence, Cherry contends clearly that the mature minor doctrine must be abandoned. In his analysis of the neuropsychological data, Cherry argues in support of the Supreme Courtâs interpretation that adolescents make decisions qualitatively differently than adults. He writes: Current trends in pediatric decision making in support of the âmature minorâ standard constitute moral and legal movement in direct opposite to what the science bearing on the matter demonstrates to be reasonable and the United States Supreme Court judges to be constitutionally appropriate. To put the matter bluntly, the âmature minorâ standard for medical decision making ignores the scientific data and endangers children. (Cherry, 2013, 326) Ana Iltis examines both the decisional capacity of adolescents as well as the authority of parents over their children and the implications this has for adolescents giving consent. In her paper, âParents, Adolescence, and Consent for Research Participation,â Iltis (2013) concludes that adolescents often do not possess a decisional capacity that will allow sufficient appreciation of information so as to be able to give valid consent for participation in research, and indeed for consent to medical treatment generally. In part, she embraces this conclusion because of data that show that, although adolescents understand the information relevant to making a treatment decision, their appreciation or evaluation of reasonable and foreseeable consequences is usually different from that of adults. Here, Wilhelms and Reynaâs reflections through fuzzy trace theory regarding the importance of getting the gist of what is at stake in a decision may be crucial. Iltis advances as well a second claim, a moral one, that minors even if they are mature are still children, and that there are, therefore, strong principled arguments for recognizing parents as being in authority to guide their children. We confront again the complexity of the issues at stake in assessing the status of the mature minor. In controversy are not merely the facts of the matter regarding how adolescents make decisions but also moral and social issues, namely, how we should regard the relationship between children and their parents. The intersection of these two areas of contention compounds the disputes in pediatric bioethics regarding the status of children. The articles in this issue are not unanimous on any point. However, all the authors appear to concur that judgments regarding the decisional capacity of an adolescent will depend on the particular adolescent and the particular context. There are clearly significant variations among persons with respect to decisional capacity. In addition, persons do not take a uniform journey from infancy to mature adulthood. Some persons become mature decisionmakers much earlier than others, while others appear never fully to achieve this status. Sorting matters out will in part require further philosophical reflection on what we want to mean by mature decisionmakers. That is, we will need to reflect on the moral issue as to what characterizes a person who has decisional capacity. Bernat, Culver, and Gert (1981) in reflecting on the definition of death developed a distinction among concepts of death, criteria for death, and tests for death. A concept of death for them is a philosophical issue, a view of what it means to be dead (e.g., loss of personhood). A criterion of death involves an intersection of philosophy and physiology (e.g., a neurological criterion such as the irreversible cessation of all functions of the brain as an indicator of death). Tests for death are the actual diagnostic determinations employed by physicians in declaring death. We will likely need to fashion similar distinctions with regard to competency, so as to be clearer as to what should be compassed by the concept of decisional capacity as well as what should serve as criteria for crucial elements of decisional capacity such as, perhaps, âgist-processing.â We will need as far as possible to determine the necessary and sufficient capacities that can serve as criteria for competent decision making. Then we need to determine what one should look for when making the judgment that a person under the age of 18 but over the age of 14 has decisional capacity. These essays point the way to further work.
Open access
Ethics and Legal Issues in Pediatric Healthcare
Child and Adolescent Health
Child and Adolescent Psychosocial and Emotional Development
The Bitcoin network of decentralized payment transactions has attracted a lot of attention from both Internet users and researchers in recent years. Bitcoin utilizes a peer-to-peer network to issue anonymous payment transactions between different users. In the currently used Bitcoin clients, the full transaction history is available at each node of the network to prevent double spending without the need for a central authority, forming a valuable source for empirical research on network structure, network dynamics, and the implied anonymity challenges, as well as guidance on the future evolution of complex payment systems. We found dynamical effects of which some increase anonymity while others decrease it. Most importantly, several parameters of the Bitcoin transaction graph seem to have become stationary over the last 12â18 months. We discuss the implications.
Following the decentralization of health services in line with Primary Health Care declaration in Alma Ata in 1978, districts have gradually become a cornerstone of health systems in sub-Saharan Africa. Though administrative systems vary, the majority of the over 4,000 districts in the region have a population between 200,000 and 400,000 people, and most have an administrative structure that relies on district health management teams.
Health information is a critical component of district health systems, and is essential for district health teams to effectively plan and manage health services. The five projects described in this special issue all centrally feature health information systems, address different aspects of district health information systems in innovative ways, and will generate important evidence on a relatively neglected area of health systems [1].
What are the essential public health information requirements of districts?
First, districts need to generate and report data for the national level on a range of indicators. District reports provide regular data on health service provision, morbidity and mortality (including immediate reporting of notifiable diseases), but are also the basis for national and subnational data on infrastructure, health workforce, financing, etc. To be consistent, comparable and reliable, reporting systems need to adhere to national and international standards.
Second, district public health information systems need to generate relevant information for the local planning, management and monitoring of services. Key parameters include population distribution; health facilities and workforce; budget and expenditures by programme and facilities; access to and quality of services; coverage of interventions; and epidemiological information. To meet these requirements, a continuous process of data generation, compilation, analysis, dissemination and use for resource allocation is essential [2,3]. For information to be useful for decision making at the district level, districts should have sufficient control over the allocation of financial and other resources, including personnel.
Districts usually do not select their own indicators for monitoring progress and performance. Most countries have selected between 20 and 40 core indicators with baselines and targets to monitor their national health sector strategic five-year plans. A full national health plan may have many additional indicators that serve to monitor the implementation of the planâs different aspects. In addition, specific health and disease programmes have their own indicators and targets. The rationalization of data collection and reporting by health facilities and districts has to be part of efforts to improve information systems [4].
The bulk of health information is generated through a small number of data sources: facility recording and reporting, registration of vital events, household surveys, facility assessments, and administrative databases. Each of those data sources can provide key information for districts.
The main vehicle for reporting health data, and for regular monitoring, is the national health management information system (HMIS) based on health facility reports. The problems of such systems are well known. Health workers often have a heavy data collection and reporting burden; much of the gathered data are not used; and incomplete and inaccurate reporting affect data quality. For a dozen or so indicators, such as immunization, institutional delivery and outpatient utilization, it is possible to estimate district coverage rates by making assumptions about denominators (e.g. the expected number of deliveries in the district). These estimates provide relevant information to district managers and allow comparisons across districts, and in some countries, such as Uganda, district league tables are produced to rank the performance of districts using an index that includes a range of coverage indicators obtained from the health facility reporting system. It is good to keep in mind, however, that there is considerable uncertainty in the denominators â the estimated target population â as these may deviate considerably from the actual population because they are based on census projections and because service utilization is pragmatic and not confined to district boundaries. As a result, district coverage estimates from facility data often have great uncertainty. Provincial or regional estimates are often more reliable, and have the advantage of being comparable to survey-based coverage estimates. A fairly recent HMIS development is the use of the internet to expedite reporting from districts (or health facilities) to the national level, such as the District Health Information System (DHIS) which is now used by more than 30 countries. Such developments increase the potential for greater investment and use of data at the district level.
Information on mortality and causes of death is often lacking even nationally, as reliable death registration systems are not in place [5]. The national census, generally conducted every ten years, can be a source of district specific child mortality estimates in some countries. Hospital data can provide a general idea of cause of death patterns, but are biased and tend to be unreliable as standardized disease classification procedures â namely the International Classification of Diseases (ICD-10) â is often not used. A notable exception is the recent work in Mozambique where an electronic reporting system, with a thorough revision of coding and certification practices, greatly improved the quality of cause of death data from hospitals [6]. Many districts, however, lack reliable information, and in this case, data on causes of death and burden of disease profiles are often generated from a small number of longitudinal community demographic surveillance sites that collect data on probable cause of death through verbal autopsy (6). In Tanzania, resulting disease profiles were incorporated in a planning and budget tool that is used by all districts to guide resource allocation.
Household surveys are a critical data source for monitoring progress and performance at the national level. Only a few national surveys have an adequate sample size to allow district level estimates for key indicators such as immunization coverage or skilled birth attendance (e.g. Malawi Demographic and Health Survey in 2010). District surveys are also conducted as part of research, but are too costly, both in terms of technical and financial resource requirements, to be conducted on a large scale. Even the relatively simple immunization coverage cluster sample surveys have never reached scale in district applications. Several innovations hold the promise of making conducting household surveys easier (including automated household sample selection, electronic data entry and compilation, as well as analysis and report production), but surveys remain a resource-intensive exercise.
Basic data on the distribution of the population, health facilities (public and private) and health workforce are critical for district health managers. These data allow computation of key management indicators (such as workload), and administrative data through medicines and logistics management systems provide continuous information for performance monitoring and management of the system. Services readiness is another critical element, which can be assessed in supervisory visits using checklists, or more systematically in a facility assessment using a standardized tool such as the Service Availability and Readiness Assessment (SARA) that includes the availability of trained staff, basic equipment, diagnostics and medicines (currently at the national level, but could be adapted for district level needs) [8].
A major weakness in many district public health information systems is the lack of capacity to analyze and synthesize data from the multiple systems to inform decision making. Most districts have a health information officer as part of the district management team, and may have additional capacity in disease programmes, but the ability to assess data quality and assemble different indicators is often limited. Information technology provides a major opportunity to facilitate this process, but in general analytical capacity strengthening requires much more attention, which is addressed by one of the studies in this volume [1]. Unfortunately, the envisioned monitoring and evaluation support function of the next administrative level â region or province â has not materialized for the health sector in many countries. National level support is often limited simply because there are too many districts in proportion to the national support capacity in the Ministry of Health or Bureau of Statistics. Innovative approaches to support district capacity have to be found.
In summary, districts need a health information system that draws from multiple data sources. Reliable mortality and cause of death information primarily relies on hospital data and mortality profiles generated by community studies. Provincial or regional estimates from household surveys can provide an indication of child mortality levels and trends and of coverage of major interventions. The main continuous sources of information for districts are, however, locally generated health facility and administrative data. Ultimately, the use of information for decision making at the district level requires that districts actually have control over allocation of financial and other resources, such as staff. Much can be done to improve the district health information systems, especially if the introduction of information technology is done in combination with a review and rationalization of data collection, to the benefit of local health services as well as national monitoring and evaluation systems.
This article examines the use of Bitcoin in money remittance markets as a specific illustration of wider emerging regulatory issues relating to the use of cryptocurrencies. While there are many conceivable benefits of using Bitcoin for remittances, there are also many risks for users of these remittance services. This article adopts a user perspective to look at what the major concerns are and what existing protections may be available to persons using cryptocurrencies under New Zealand law through the example of using Bitcoin for remittance purposes. The article then summarises approaches taken by other jurisdictions before suggesting a specific regulatory approach to cryptocurrencies that New Zealand should consider adopting.
Local government is the tier of public authority that citizens first look to solve their immediate social problems. Among all the public institutions at local level, council has a special status and authority as local elected bodies. They are uniquely placed to provide vision and leadership to their local communities. They are able to make things happen on the ground where it really matters. The government of Ethiopia in general and Addis Ababa city administration in particular establishes council at different tiers of government as parliamentary control mechanism to ensure effective policy implementation, promote local democracy and improve service delivery. However, woreda councils in Addis Ababa city administration were not seen playing such role of democracy promotion. Moreover, studies conducted in regional woredas divulged that Woredas council have not yet managed to exercise sufficient local autonomy due to several reasons such as absence of clearly established legal mandate, lack of devolution of power, poor organization of the system and tight control and intervention by higher authorities. Therefore, this study aimed to assess the challenges and prospects that woreda council at Addis Ababa city administration has faced in promoting democracy among grass-root people. It also examines the overall operations of the councils from the viewpoints of democratic government and decentralization In order to pursue the objective of the study the researcher use multi-stage sampling technique and relied on both primary and secondary data source. Primary data collected through questionnaires, interview and observations while secondary data obtained from document analysis like legislation on the issue, minutes and reports complied by counsel's office. It was found that problems prevailed in regional woreda councils are also impeded woreda councils at Addis Ababa City Administration. The internal working system of woreda councils reflected that executive domination is very soaring, and councils are not responsive to the needs of the community and most importantly democratic essence viz. accountability, transparency, participation and autonomy are not adhered principles in the councils conduct. Therefore, councils as they are impeded by the above-mentioned challenges are playing insignificant role in cultivating democratic value and improving the service delivery to the grass root people. Therefore, it is recommended that the internal working system of councils need to be very transparent, responsive, participatory and free from any unnecessary intervention. Councilors must be sensitive to public interest; legal back up from the city administration is also needed in order to make councils strong, autonomous and powerful. The field that councilors operating also should be open to all stakeholders as the democracy promotion works calls for the involvements of different actors
Ian Miers, Christina Garman, Matthew Green, Aviel D. Rubin
Bitcoin is the first e-cash system to see widespread adoption. While Bitcoin offers the potential for new types of financial interaction, it has significant limitations regarding privacy. Specifically, because the Bitcoin transaction log is completely public, users' privacy is protected only through the use of pseudonyms. In this paper we propose Zerocoin, a cryptographic extension to Bitcoin that augments the protocol to allow for fully anonymous currency transactions. Our system uses standard cryptographic assumptions and does not introduce new trusted parties or otherwise change the security model of Bitcoin. We detail Zerocoin's cryptographic construction, its integration into Bitcoin, and examine its performance both in terms of computation and impact on the Bitcoin protocol.
This paper presents a cartography of networks in (co)operation, in an urban movement: Porto Alegre Vive. We used the network topology for centralized, decentralized and distributed networks; some principles of complex thinking: dialogic, hologram and self-eco-organization, as well as the perspective of order-disorder-organization. The results point to communication forms; to centralization and mediation, as well as the distribution, emphasizing a non-bouÂndary paradigm. The cooperation is understood as cause and effect of more autonomous relations and, therefore, more democratic.
Over the last decades social and behavioural research about disability in Sweden has expanded considerably. The development over the last 40 years can be described in four phases of the development: early initiatives, getting integrated, getting established and late developments. It describes a journey from an activity separated from the traditional university system and mainly occupied by evaluating reforms sponsored by short-term grants to an established academic activity with a broad range of research topic and with a growing engagement in theoretical questions. During the past years, disability organizations have reacted critically as they found themselves having little influence on research that is done, a reaction that includes dissatisfaction with what is experienced as inability of researchers to make research politically relevant. What started in a society with a centralized structure and ambitious social engineering ideal now has to find its role in a more decentralized structure where reform ambitions and the role of social movements like disability organizations are different. To balance the need for autonomous research with the ambition of being politically relevant without falling for the temptation of being politically correct is one of the challenges social disability research in Sweden will have to deal with in the near future.
Apr 26, 2013¡Digital Access to Libraries (UniversitÊ catholique de Louvain (UCL), l'UniversitÊ de Namur (UNamur) and the UniversitÊ Saint-Louis (USL-B))
Specific supply-chain investments are vital in achieving faster lead-time performance and more competitive costs. In practice, such as in the highly leveraged telecom sector, the coordinating original equipment manufacturers (OEM) often delegate the upstream coordination of suppliers to contract manufacturers. This can be justified by informational advantages or economies of scale. However, the rationale of such schemes has also been challenged by analytical work on three-stage chains, leading to open questions. In this paper, we study the organizational and contractual choice of a supply chain coordinator (say an OEM) to either control or delegate the investment decision of some shared resource (say dedicated machines, information or product standards, etc) to a contract manufacturer (CM) or to an upstream supplier in a three-stage supply chain. The analysis derives closed-form results for the economic performance of three scenarios under asymmetric information on investment cost: direct contracting with an integrated CM-supplier, decentralized contracting to tier-1 suppliers and centralized contracting to tier-1 and tier-2 suppliers. The results show that the observed practice to delegate investments to tier-1 and possibly tier-2 suppliers leads to relatively poor performance due to under-investments. The superior arrangement is the centralized conditional model, where the OEM forces coordination among upstream suppliers by offering conditional financing. We close the paper with an analogy to the Boeing 787 supply chain and some discussion about the assumptions and applicability of the model.
Iracema Machado de AragĂŁo Gomes, Ăkaro Daniel de Carvalho Barreto, Suzana LeitĂŁo Russo
Policies that support entrepreneurship are keys to the generation of new business. In Brazil, seed capital, installation of technology parks, programs and zero interest financing, economic subsidy as Program First Innovative Company (PRIME) are examples of incentive policies. For the implementation of PRIME, in particular the Brazilian Innovation Agency (FINEP) decentralized operationalization so that business incubators could select innovative projects. This paper analyzes the program PRIME Business Incubator Center of the State of Sergipe (CISE) after calculating the mean and standard deviation of the grades obtained by companies in the factors of innovation, market potential, financial return economic, market strategy and staff and application of the Mann-Whitney test.
This thesis proposes several protocols for achieving secure com- putation under concurrent and physical attacks. Secure computation allows many parties to compute a joint function of their inputs, while keeping the privacy of their input preserved. It is required that the pri- vacy one party's input is preserved even if other parties participating in the protocol collude or deviate from the protocol. In this thesis we focus on concurrent and physical attacks, where adversarial parties try to break the privacy of honest parties by ex- ploiting the network connection or physical weaknesses of the honest parties' machine. In the rst part of the thesis we discuss how to construct proto- cols that are Universally Composable (UC for short) based on physical setup assumptions. We explore the use of Physically Uncloneable Func- tions (PUFs) as setup assumption for achieving UC-secure computa- tions. PUF are physical noisy source of randomness. The use of PUFs in the UC-framework has been proposed already in [14]. However, this work assumes that all PUFs in the system are trusted. This means that, each party has to trust the PUFs generated by the other parties. In this thesis we focus on reducing the trust involved in the use of such PUFs and we introduce the Malicious PUFs model in which only PUFs generated by honest parties are assumed to be trusted. Thus the secu- rity of each party relies on its own PUF only and holds regardless of the goodness of the PUFs generated/used by the adversary. We are able to show that, under this more realistic assumption, one can achieve UC- secure computation, under computational assumptions. Moreover, we show how to achieve unconditional UC-secure commitments with (ma- licious) PUFs and with stateless tamper-proof hardware tokens. We discuss our contribution on this matter in Part I. These results are contained in papers [80] and [28]. In the second part of the thesis we focus on the concurrent setting, and we investigate on protocols achieving round optimality and black- box access to a cryptographic primitive. We study two fundamental functionalities: commitment scheme and zero knowledge, and we focus on some of the round-optimal constructions and lower bounds con- cerning both functionalities. We nd that such constructions present subtle issues. Hence, we provide new protocols that actually achieve the security guarantee promised by previous results. Concerning physical attacks, we consider adversaries able to re- set the machine of the honest party. In a reset attack a machine is forced to run a protocol several times using the same randomness. In this thesis we provide the rst construction of a witness indistinguish- able argument system that is simultaneous resettable and argument of knowledge. We discuss about this contribution in Part III, which is the content of the paper. [edited by Author]
Open access
Cryptography and Data Security
Physical Unclonable Functions (PUFs) and Hardware Security
On the current stage, an important direction towards completion fiscal regulation is to regionalise economic and social processes, decentralize an important part of state functions on the local authorities. Herewith, to finance the expenditure by attaching appropriate income sources which will strengthen the role of local finances and assist the prosperity of regional economy. At the contemporary stage local budgets country, its separate regions development one of the most powerful leverage. Without them it is impossible political stability as in whole country, as in its separate regions. Local budget funds, social infrastructure forming are one of the major sources. Developed countries local budgets, density spare of social expenditures are higher than the state budgets. Local budget expenditures, especially on social provision spent funds promote in society social conflict softening that in contemporary conditions of each countyâs sustainable development stipulating factor.
The famous new money Bitcoin is classified as a technical informational money (TIM). Besides introducing the idea of a TIM, a more extreme notion of informational money will be developed: exclusively informational money (EXIM). The informational coins (INCOs) of an EXIM can be in control of an agent but are not owned by any agent. INCOs of an EXIM cannot be stolen, but they can be lost, or thrown away. The difference between an EXIM and a TIM shows up when considering a user perspective on security matters. Security for an EXIM user is discussed in substantial detail, with the remarkable conclusion that computer security (security models, access control, user names, passwords, firewalls etc.) is not always essential for an EXIM, while the application of cryptography based information security is unavoidable for the use of an EXIM. Bitcoin seems to meet the criteria of an EXIM, but the assertion that "Bitcoin is an EXIM", might also be considered problematic. As a thought experiment we will contemplate Bitguilder, a hypothetical copy of Bitcoin that qualifies as an EXIM. A business ethics assessment of Bitcoin is made which reveals a number of worries. By combining Bitguilder with a so-called technical informational near-money (TINM) a dual money system, having two units with a fluctuating rate, may be obtained. It seems that a dual money can remedy some, but not all, of the ethical worries that arise when contemplating Bitcoin after hypothetically having become a dominant form of money. The contributions that Bitcoin's designers can potentially make to the evolution of EXIMs and TIMs is analyzed in terms of the update of the portfolio of money related natural kinds that comes with Bitcoin.
The famous new money Bitcoin is classified as a technical informational money (TIM). Besides introducing the idea of a TIM, a more extreme notion of informational money will be developed: exclusively informational money (EXIM). The informational coins (INCOs) of an EXIM can be in control of an agent but are not owned by any agent. INCOs of an EXIM cannot be stolen, but they can be lost, or thrown away. The difference between an EXIM and a TIM shows up when considering a user perspective on security matters. Security for an EXIM user is discussed in substantial detail, with the remarkable conclusion that computer security (security models, access control, user names, passwords, firewalls etc.) is not always essential for an EXIM, while the application of cryptography based information security is unavoidable for the use of an EXIM. Bitcoin seems to meet the criteria of an EXIM, but the assertion that "Bitcoin is an EXIM", might also be considered problematic. As a thought experiment we will contemplate Bitguilder, a hypothetical copy of Bitcoin that qualifies as an EXIM. A business ethics assessment of Bitcoin is made which reveals a number of worries. By combining Bitguilder with a so-called technical informational near-money (TINM) a dual money system, having two units with a fluctuating rate, may be obtained. It seems that a dual money can remedy some, but not all, of the ethical worries that arise when contemplating Bitcoin after hypothetically having become a dominant form of money. The contributions that Bitcoin's designers can potentially make to the evolution of EXIMs and TIMs is analyzed in terms of the update of the portfolio of money related natural kinds that comes with Bitcoin.
This Comment examines the potentially destabilizing effects of emerging digital currencies on the international foreign currency exchange market. Specifically, it examines "Bitcoin," a decentralized, partially anonymous, and largely unregulated digital currency that has become particularly popular in the last few years. This Comment argues that the International Monetary Fund, the institution responsible for coordinating the stability of foreign exchange rates, is ill-equipped to handle the widespread use of digital currencies in the foreign currency exchange market It highlights the inability of the Fund to intervene in the event of a speculative attack on a currency by Bitcoin users. This Comment concludes by suggesting two interpretations of the Fund's incorporating document, the Articles of Agreement, that would allow it to intervene in the event of such an attack.
After over thirty years of decentralization in Spain and having to face the acute economic crisis, it may be time to raise new proposals that could increase the economic efficiency by means of increasing the responsible performance of regional demand and supply of public goods and services. This is the context of this article, which is a critical analysis of expenditure and revenue responsibilities in Spain from a comparative law perspective. Regarding the expenditure responsibility, this article highlights the imprecision of the Spanish system and its underdeveloped legal theory and judicial cases on the subject compared to federal states. After a comparative analysis on the revenue responsibility, this article highlights some of the major drawbacksof Spanish system of regional financing, and finally it makes severalproposals addressed to improve the fiscal responsibility of the autonomous communities.
Susanne HĂśhle-Pasques, Johannes Hankowitz, Peter Oberender
Against the background of increasing cost pressure in the German Health Care system German health policy introduced several law changes to increase competition within German health care system for both, payers and health care providers. At the same time law changes included centralization of decisionsâcounteracting a real competition. Both approaches are part of an austerity plan. The latest example for this approach is the new drug law (AMNOG) in 2011 with the core element of centralized early benefit assessment (§ 35a SGB V) for new drugs and therapies and price negotiations between federal association of health insurances and pharmaceutical company. In this review we examine the implementation of the new drug law with respect to the achievement of political objectives: Ensure sustainable financing of innovations in the German health care system, provide innovations early to the patient, decrease overregulation and establish a transparent environment in which efforts of the pharmaceutical industry are being honored by fair prices. We reviewed the new AMNOG process since its implementation on 1st January 2011 and first 64 values dossiers from pharmaceutical companies that have been evaluated by G-BA (Federal Joint Committee) between January 2011 and December 2013 with respect to the above mentioned political objectives. Parameters such as added value, determination of an adequate competitor, patient relevant endpoint surrogate parameter and subgroup analysis are being discussed. AMNOG process has been implemented as a learning system and indeed several issues have already been addressed, such as the determination of the adequate comparator by G-BA as well as the treatment of orphan drugs in this process. Basically implementation of AMNOG and early benefit assessment is a necessary step on the way to transparent priorisation of health care benefits. But the AMNOG process is one step further towards centralization of the German health care system and therefore contradicts a healthy and fair competition within the system. As a consequence the development of high quality solutions for patients might be hampered. The analysis of the first 64 value dossiers shows that less of half of the affected patient populations (40 %) have access to new therapies being reimbursed by health insurances with a premium price. There is a major inbalance in assessment of drugs in different therapeutic areas. In combination with increased uncertainty for the pharmaceutical companies the AMNOG process on the middle and long-term might jeopardize the commitment of pharmaceutical industry in the German market. This in turn endagers the political objective to ensure patients early access to innovative therapies. Besides this, centralization of the subjective parameter âadded valueâ seems to be problematic, since value decisions should be taken by democratic processes. We therefore suggest a model in which only objectively measurable value decisions are being taken centrally and subjective value decisions are as much as possible decentralized. This results in both a stronger competition of qualitatively best solutions for patients and in a higher fault tolerance. Instruments such as health care research and conditional reimbursement can help to enhance a fair competition for more quality in regionally organized health care and more economical allocation of short resources.
Open access
Pharmaceutical studies and practices
Health and Medical Studies
Health Systems, Economic Evaluations, Quality of Life
Abstract The election of Head of region as the democracy mechanism to the head of region that the application is based on the Law Number 23 2004 about Regional Government is still found some problems, such as the application of the head of region election gives the burden the government finance plan so that itâs not really efficient and effective, and also the head of region election results the unharmonious head and the vice head of the region (about 93.84% all over Indonesia). So that for the consequence as the lawful country, Indonesia has to revise that problem that needs to administer the law to become the ideal law in regulating the head of region election. The ideal law regulation will become the basic to the application of the head of region election with the better result as the effort to accomplish the purpose of autonomy region in boosting the society welfare of the autonomy regionâs people as the implementation of peopleâs sovereignty through the process of political decentralization to the autonomy region. Keywords: Ideal Law, Peopleâs welfare, Peopleâs Sovereignty. Abstrak Pemilukada sebagai suatu mekanisme demokrasi untuk pengisian jabatan kepala daerah yang penyelenggaraannya didasari Undang-Undang Nomor 32 Tahun 2004 tentang Pemerintahan Daerah dalam penerapannya masih dijumpai berbagai persoalan, diantaranya; pelaksanaan pemilukada cukup membebani anggaran pemerintah sehingga dirasa tidak efisen dan efektif, juga pemilukada justru menghasilkan pasangan kepala daerah yang tidak harmonis (93,84 % se Indonesia). Oleh karena itu sebagai konsekuensi Indonesia negara hukum, maka untuk memperbaiki berbagai persoalan tersebut, perlu dilakukan penataan hukum menuju hukum ideal dalam pengaturan pemilukada. Pengaturan hukum ideal akan menjadi dasar untuk penyelenggaraan pemilukada dengan hasil yang lebih baik sebagai upaya untuk mewujudkan tujuan otonomi daerah dalam meningkatkan kesejahteraan masyarakat daerah otonom sekaligus perwujudan kedaulatan rakyat melalui proses desentralisasi politik kepada daerah otonom. Kata kunci: Hukum ideal, Kesejahteraan rakyat, kedaulatan rakyat.
Nico Krischâs new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes.1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I¡CON, I would regard it as essential reading. Given space limitations, my focus will be on the main disagreements I have with BC. Krisch stakes out complex positions, often through an âon the one hand [x], but on the other [y]â style of analysis that anticipates objections. My criticisms do not always capture the subtleties of the arguments and, for the sake of debate, are sometimes more sharply drawn than warranted. I will make three points. First, Krischâs conclusions are heavily dependent upon a theoretical constructionâa supposed dichotomy between âconstitutionalâ and âpluralistââthat is, in fact, a false one. Second, âconstitutional pluralismâ is a structural feature of the national legal orders to which BC pays the most attention (European), belying the dichotomy. Third, the case studies in BC provide empirical support for an alternative view: at least in some domains, a rights-based constitutional order is being constructed on pluralist foundations. Driving much of the analysis of BC is a supposed distinction between two typesâthe constitutional and the pluralistâwhich Krisch characterizes as âcompeting modelsâ (p. 226) and âtrue alternative[s]â (p. 71). BC sustains discussion of only one mode of constitutionalism, embodied in what he labels the âfoundationalâ and âcomprehensiveâ constitution. In its liberal-democratic guise, the constitution constitutes state and polity, and provides the normative underpinnings for constructing and challenging the polityâs legitimacy over time. The foundational constitution is assumed to be complete: it establishes a single âoverarching legal frameworkâ (p. 23) and âcomprehensively determin[es] the structure, processes, and valuesâ of the system (p. 53). In contrast to pluralism, constitutionalism entails âclear cut hierarchiesâ (p. 103), stable Grundnormen, settled ârules of recognitionâ (pp. 11, 72, 74), and âultimate conflict normsâ and ârulesâ (pp. 293, 296) whose purpose is to enable a designated authority to resolve conflicts among norms and institutions effectively. Pluralism is explicitly conceptualized in opposition to constitutionalism. Whereas constitutionalism is related to âdepoliticization,â and the desire âto tame politicsâ through legal rules (p. 69), pluralism is about âpoliticsâ and âpolitical deliberationâ but not the ârule of lawâ or ârule-based processes,â (pp. 23, 69, 277). What is crucial is how Krisch applies these distinctions to the relationship between treaty-based systems and national legal orders, the central topic of the book. Krisch sums up his position as follows: Constitutionalism and pluralism are distinguished . . . by the different extent to which [each] formally link[s] the various spheres of law and politics. While pluralism regards them as separate in their foundations, global constitutionalism, properly understood, is a monist conception that integrates those spheres into one. As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds (p. 242; emphasis added).2 Thus, global constitutionalism can only find its expression in a strong form of hegemonic monism.3 The resulting model is indistinguishable from federalism. âA constitutionalist setting needs to define hierarchies between the polities,â Krisch claims, in order âto integrate them into a common whole,â a task that must include the promulgation of clear rules delineating the respective competences of all levels of governance, as well as fixing the ârules for the amendment of the overall constitutionâ (p. 275). I reject Krischâs constitutionalismâpluralism dichotomy on both theoretical and empirical grounds. To get to the notion of âconstitutional pluralismâ one must specify what is simultaneously constitutional and pluralistic about the structure of a legal system.4 When considering the interface between international regimes and national legal orders, scholars typically identify, as the basic scaffolding of a constitution, jus cogens norms, other substantive fundamental rights, standards of procedural due process, and access to justice.5 These norms find expression in multi-lateral and regional treaties, are firmly supported by opinio juris, and overlap fundamental rights inscribed in the vast majority of national constitutions.6 What makes the system âconstitutionalâ is an overarching normative structure:7 the code of rights that judges and other officials are under a legal duty to enforce; and a set of shared techniques that national and international judges have developed to adjudicate rights, in dialogues with one another. At the same time, the distribution of authority within this presupposed constitution is pluralistic: the system is comprised of discrete hierarchies, national and treaty-based, each of which has an autonomous claim to legitimacy. Sovereigntyâthe authority to enforce fundamental rightsâis âdecentralized,â8 not least, in that no âultimate conflict ruleâ or âfinal authorityâ to resolve conflicts exists. Before turning to empirics, let me clarify the nature of the disagreement. First, to my knowledge, no one in the field would contest the basic elements of Krischâs concept of pluralism: by definition, under conditions of pluralism, there is no âsingle decision-makerâ applying âoverarching conflict rules,â who will have the final word on many important legal questions (p. 296). Understanding legal pluralism, we would presumably agree, requires the analyst to take into account multiple vantage points at once, including the respective internal legal perspectives of actors operating in autonomous legal orders. Second, Krisch argues from a position that makes âconstitutional pluralismâ an oxymoron, a theoretical impossibility, whereas others in this same field have staked out a rights-based version of constitutionalism that accommodates pluralism.9 For Krisch, normative authority flows exclusively from hierarchy, rather than being grounded (my view) in the intrinsic legitimacy, binding nature, and integrating properties of fundamental rights themselves. Third, I reject Krischâs lawâpolitics distinction. Rights politics under conditions of pluralism are today heavily structured by law, legal discourse, and other rule-like norms and procedures, and they have steadily built new legal practices that serve to manage pluralism. As the empirics in BC show, rights politics and constitutional pluralism have been co-constitutive of one another. We have not moved âbeyond constitutionalism,â rather, the age of global constitutionalism has barely begun. The false dichotomy is fully exposed when we examine the formal âarchitectureâ of rights-based constitutionalism in Europe (ch. 4).10 For Krisch, âconstitutionalismâ implies a focal point of âultimate authorityâ (p. 103), whereas âpluralismâ accepts âconflicting claims to ultimate authorityâ (p. 70). When it comes to rights protection, however, many domestic constitutional orders in Europe are pluralistic. Either we have to accept that these national systems are no longer, or never were, truly constitutional, or the theoretical framework of BC must be rejected. As has been extensively documented,11 not only have conflicting authority claims between national high courts not been resolved, they have generated the kind of inter-jurisdictional, and jurisgenerative, politics that Krisch associates with pluralist orders. To illustrate, Krisch (pp. 14â17) argues that three basic strategies are available to a jurisdiction (X) when it is threatened by the lawmaking and supremacy claims of an external jurisdiction (Y), when Y seeks a change in how X takes decisions and makes law. First, X can pursue âcontainment,â by working to âlimit the impactâ of Y, in order to maximize its own autonomy and minimize disruption to standard ways of doing things. Second, X can seek to âtransferâ the underlying logics of its ways to Y, thus lowering the costs of adjustment. Third, X can âbreakâ with its established repertoire and, in effect, embrace or leverage pluralism as a means of increasing its own relevance, flexibility, and capacity to constrain Y in the future. Krisch developed the framework to analyze pluralist politics but, in fact, it neatly applies to rights politics within national orders that possess multiple, functionally differentiated high courts (the majority in Europe). Consider bids on the part of constitutional courts to âconstitutionalizeâ adjudication in the ordinary (non-constitutional) courts, through promoting the direct effect of rights. It is important to stress that this process, which is ongoing, is analogous to the Court of Justice of the European Unionâs (CJEU) move to âconstitutionalizeâ the EU through its doctrines of supremacy and direct effect. In Western Europe, constitutionalization has gone furthest in Germany and Spain, in the form of delicate accommodations forged by inter-court conflict and dialogue. Nonetheless, the supreme courts continue to marshal significant âcontainmentâ operations,12 and their âtransferâ efforts often succeed. In Italy, the Italian Courtâs bid for supremacy failed: a âwar of judgesâ ended in a settlement that, in effect, codified pluralism. Under the so-called âdoctrine of the living law,â the Supreme Court (Cassazione) has de facto the âlast wordâ on statutory interpretation and application, accepting only the âpersuasive authorityâ of the ICCâs jurisprudence.13 In France, the Constitutional Council has no formal means of imposing its rights interpretations on the Supreme Court (Cassation) or Supreme Administrative Court.14 Each of the three high courts is autonomous in its domain, and both supreme courts have positioned themselves to enforce EU rights and the European Convention of Human Rights (ECHR), even against statute. The outcome comprises a hugely important âbreakâ with traditional separation of powers doctrine (the prohibition of judicial review of statute), while constituting a pluralist order within the French legal system. In Central and Eastern Europe, too, many national supreme courts have refused to accept the binding interpretive authority and supremacy claims of the constitutional courts.15 The Polish courts have negotiated their own version of the Italian âliving lawâ solution; and in the Czech Republic, the Supreme Court provoked a âwar of judgesâ when it âopenly revoltedâ against the Constitutional Court. In his empirical study of this topic, Garlicki (a former judge of the Polish Constitutional Court and the ECHR Court) concludes: âconstitutional courts appear as weaker participants . . . and, in case of conflict, they are not always able to deliver that last word.â Indeed, for constitutional judges, a strategy of âdialogue and persuasionâ has been more effective than have efforts to prevail in an âopen conflictâ about ultimate authority.16 The development of European rights has further consolidated rights pluralism within national orders. Today, one finds multiple sources of rights that are judicially enforceable against all conflicting infra-constitutional legal norms, including statute; there are multiple high courts that enforce these rights; and often there is no agreed upon conflict rule or procedure to settle conflicts of norms and authority. In most national legal systems, three such sources of rightsâthe national constitution, the EU treaties, and the ECHRâoverlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. Ordinary judges may seek to limit the impact of the jurisprudence of the European courts; but they may also prefer to apply it, rather than domestic constitutional case law, in order to enhance their own authority and subvert that of constitutional courts. The German labor courts, for example, have partnered with the (CJEU) to raise German standards of rights protection in employment law, regaining the authority they had lost to German Federal Constitutional Court (GFCC), which has been steadily marginalized. Indeed, the German labor courts have invested heavily in the development of EU rights, as a means of cajoling the GFCC to change its (less-progressive) positions.17 Authority conflicts between high courts within domestic systems have long been a primary source of pluralist interactions between the CJEU and national constitutional courts (a fact Krisch largely ignores in chapter 4). To take a recent, dramatic example, in 2010, the Czech Constitutional Court declared a part of the CJEUâs ruling in LandtovĂĄ to be ultra vires under Czech constitutional law, a first in the EU. The ruling was an attempt to discipline the Supreme Administrative Court, which had sent the LandtovĂĄ reference to the CJEU in the first place. In response, the Supreme Administrative Court denied that it was bound by the Constitutional Courtâs decision, and referred the matter to the CJEU, clearly indicating that it disagreed with the Constitutional Court on both the merits and the authority claim (the case is still pending before the CJEU). This is domestic constitutional pluralism in action, as structured by the legal enmeshment of European and national systems of rights protection. Krisch analyzes such authority conflicts as if they were primarily between a European court and a national constitutional court, thus missing an essential part of the story. With respect to the ECHR, all 47 full members of the Council of Europe have now incorporated the Convention (through constitutional provision, legislative act, or judicial decision) in a form that provides for the judicial review of state acts, including statute, under the ECHR.18 In all but two states (Ireland and the UK), judges must refuse to enforce statutes judged to be incompatible with the ECHR. The domestication of the ECHR has diffused judicial review powers with respect to rights claims to all national judges, and institutionalized constitutional pluralism at the domestic level. In Belgium, the Constitutional Court has that the ECHR but infra-constitutional which the Supreme Court to that the ECHR its autonomy the Constitutional Court. courts are in their respective domains, but neither can its will on the Krisch such a âconstitutionalâ or In the Italian Constitutional Court a strong that Italian judges are to national law in of the ECHR and, a conflict is to the matter to the ordinary judges this while their own authority to refuse to apply a on grounds of with the In the of a which is to the of the the has no means of its own case law. In France, the and the de facto of rights is the ECHR, not the national constitution, and in and much of Eastern and Europe, new of rights were on the but the point be national rights protection in Europe today is both constitutional and pluralistic. The that Krisch to the hierarchies, conflict final or to the of his In chapter Krisch a a whose on the constitutionalismâpluralism dichotomy. the were a constitutional he claims, we would to find a European rights law with the ECHR at its (p. one finds pluralism. In with his basic Krisch by national constitutional courts to supposed claims of the CJEU or the Court as against the âconstitutional (pp. In fact, such in of the constitutional pluralist constitutionalist pluralist would a constitutional court to by formally the national constitutional order to the constitutional judges to their own supremacy within their own domain, and to in the politics of pluralism, including both and with the European courts and their own national supreme courts. This is, in fact, what has While Krisch he all but ignores the of âtransferâ and even when has been by the same ruling Thus, he the only in of BC is on the fact that, in this same decision, the German Court a clear âbreakâ with establishes a strong that all German judges are to apply the Courtâs jurisprudence when it is on in including when is the only to a of the fundamental in the The ruling also the constitutional Individuals can now a of German basic that or to properly take into account the European Courtâs case law, an by the Constitutional have further the of the Convention at The support a about European rights politics that to be with BC. Given formal in the (the of the Courtâs case law within national orders will the constitutional of the overall and the pluralism of domestic systems of rights protection. This is, in fact, what is in most BC three detailed case studies of pluralism that, in my provide strong empirical support for the of constitutional The that a pluralist constitution can be built through interactions between autonomous legal orders. The claim to the the more are the rights-based interactions between different legal orders, the more it will be that a constitutional jurisprudence of pluralism will and a legal structure to these Whereas Krisch the pluralism of European rights protection in chapter it is also clear that his discussion is also about in a as Krisch (pp. constitutional stress of such as judicial and other of What about the case studies in and of BC on the that the Council developed the on the in Krisch the of are and for and that only a are to (pp. Whereas the Council had all but rights other the various rights as well as a of national courts the for to provide with due process, including the means of challenging their on the and access to an judicial authority. The chapter with an analysis of the CJEUâs which EU to review under EU fundamental rights, and the In response, the Council an to and to make formal on for The empirics of this case provide strong support for the constitutional pluralist which the structure of rights, and for rights-based conflict into constitutional Under this the of the on âconstitutionalâ features when to it on rights grounds before and courts. courts and the CJEU fundamental rights in both national, regional, and international law, and a style to In Krischâs judges are the central of the pluralist which he in of the and of international and national levels of (pp. as BC the extent of pluralist to be on the of rights and other constitutional Indeed, the would state that of the CJEU, at the of and to the of a and process, to the . . . of the of the BC was for of the to as Krisch had (pp. In the Court of the EU a it would in of the within the of the the and long the by the clearly to of effective judicial The the at while as the provoked by The established by the Court neither for judicial procedure for review of decisions of the nor for a to that be available to the in order to to The also the fact that an would within the that is, an to an from the In of and under from and other the Council the of the codified procedures, and with and the of the to will now prevail there is not to it, in which case states further are if the is to be than two the of the on Human Rights and While that the Council to and had due process, that the new system still not international rights standards due or to a strategy on the part of courts long as due is not at the when or as national European courts will to judicial review over the national the ended by more if by the would make it that national or European courts to the procedure of the before their jurisdiction in to the national or European To the has resulting in decisions to the one and one (the are the Council the who had the European courts as well as national This is but the now has a The is also about The how conflict the GFCC and the over supremacy claims serve to rights-based constitutionalism in Europe, the fact that supremacy conflicts were never firmly Krisch style as a for the and normsâ (pp. that are for the of rights-based pluralism within when rights are not central to pluralism, the of constitutional is how in and European to and generated in response, Krisch European courts are now with law in this the fact that the CJEU had that the do not possess direct effect within the EU such interactions may take on constitutional for now they to on grounds. as in his review of most global and standard setting in such as and is today generated through that the of and state While much of is pluralist in most of it is not constitutional in BC is the most important on the development of legal pluralism at the of not international regimes and national legal orders. Given the my focus has been on the constitutional of the book. I have three main points. First, the dichotomy is a false one. now legal systems as both constitutional and pluralistic for of empirical Second, when it comes to rights protection, most domestic constitutional orders in Europe are in fact pluralistic. As Krisch legal pluralism and authority conflicts often hand in and we find both within national constitutional orders. Third, the notion of âconstitutional pluralismâ the in BC than the framework from the dichotomy. The provides strong support for rights-based constitutionalism when rights in fact, on the and when courts, are major as one would we find of constitutional pluralism when rights are not in and when courts are not the main
For a while now, one has been wondering if in a world of more and more fragmented communities the idea of constitution as intrinsically tied to the notion of the state is still adequate, or if it must be readjusted to entities of a non-state nature. Globalization, the Great Deconstructor, revealed (once again) that it has become rather illusory to believe in a single, all-embracing social rationality.1 Traditional statist doctrines that still see states as the ultimate site for the creation and the legitimacy of law have come under increasing reflexive pressure. A new constitutionalism, however, offensively describes law-making processes within functional, transnational systems of society as a pluralistic-fragmented morphogenesis of âconstitutions without stateâ. The constitution is deadâlong live the constitution! The trend towards recognition of stateless sovereignty has, of course, difficulties in conceptualizing processes of autonomous constitutionalization as detached from common representations of hierarchy and in converting the two most important constitutional issuesâconditions for validity and justified violenceâinto the grammar of fragmented social realities. It is not surprising that uncertainty arises in particular with regard to individual rights:2 because they sharply reveal the recursive relation between self-validating autonomy and constituted subjectivity, which tends to give legal statements on the relation between autonomy and sovereignty the form of a âchicken-or-eggâ riddle. Gunther Teubner observes that, in the course of societyâs functional differentiation, transnational âregimesâ emerge and emancipate themselves from state order. The regimes are thereby confronted with theâaccording to Teubner genuinely constitutionalâissue how to define themselves in distinction from and in relation to their environments. Such a redescription of constitutionalization is supported by much empirical evidence. Various sectors of global and local civil society (trade associations, multinational enterprises, sport associations, social networks) tend to equip themselves with their own programs of law that not only regulate organizational matters but also reflect relations with other functional systems. Statist conceptions of constitution claim to comprise and to control the functional entities of societyâbut, according to Teubner, they lack the means to fulfill these expectations. They not only encounter territorial limits but are also often unable to provide adequate solutions to conflicts between transnational functional rationalities. There is no global constitution that might overcome these deficiencies in sight. And traditional mechanisms of public international law that could extend national principles by agreement, suffer from paralyzing consensus requirements or from ineffective enforcementâor from both. Hence, it seems plausible to follow the traces of constitutionalization from a transnational perspective. It is then necessary to shift the focus from âstateâ as a hierarchically structured unit of societal conflict management to autonomous, heterarchical regimes developing on their own and responding to each otherâif at allâon a horizontal or diagonal level.3 Common patterns of justification, according to the new theory, have to be fundamentally adapted in light of the increasing impossibility to derive rules of conflict âfrom above.â Given such a fundamental turnover it does not surprise that dogmatic resistance is imminent.4 If one looks at transnational societal functional systems as potential creators of their own constitutions one has to radically modify the nineteenth-century conception of âcitizensâ liberty,â on the one hand, and the twentieth-century conception of competition-based âprivate legal society,â on the other: It is necessary to detach processes of self-regulation from the âstateâ or from culturally defined entities and to reimagine them in the context of complex processes and couplings within and between functional systems. The constitutional question is shifted to the inside and implanted into the âcapillaryâ arteries of every autonomous systemâs âself-consciousness.â Presumably such systems, only through their full emancipation, become aware of their universal competence for specific functions5 and at the same time a specific competence for the universal. An avant-gardist approach of transnational constitutionalism has to develop a new concept of constitution, although Teubner himself merely acknowledges (after all: considerable) modifications of traditional constitutional concepts. âSelf-constitutionâ is only the starting point for the auto-productive genesis of âregimesâ; what matters is the moment of constitutionalization (which for Teubner is decoupled from power6). It then becomes possible to specify the functions of such regime constitutions in order to establish political institutions and to institutionalize politics. If, on the one hand, one wants to relyâlike Teubnerâon an evolutionary understanding of constitution and, on the other, to go beyond it and normatively reconstruct the concept of constitution for a global context, things become a little complicated. The theoretical starting point is the observation that a constitution links theâseparatedâsystems of politics and of law as a âstructural coupling.â This âsuper-conceptâ enabled Niklas Luhmannâs systems theory to describe all kinds of interrelations between functional systems such as politics, law, economy, science, art etc. Indeed, this proved to be helpful in describing the conception of constitution functionally: as a coupling law and politics, the concept of constitution makes possible a legal solution to the problem of self-reference within the political system and at the same time a political solution to the problem of self-reference of the legal system.7 The concept of constitution makes it possible to handle the undeniable paradox that self-bound sovereignty remains unbound. Within the legal system, one can externalize the paradox of foundation to a political consensus; in the political system it can be externalized to a constitutional core8âwith the consequence that neither system has to struggle with the (missing) last grounds any longer.9 As it were, this makes any ontotheological metaphysics unnecessaryâand makes it possible to carry on. According to the engineers of systems theory, recursivity and self-referentiality are in principle no obstacles but, quite the contrary, the starting point for further opera tions. The same holds true for autonomy and sovereignty which presuppose each other without logically being able to do so. Teubner deals with the paradox of (non-)foundation with the âartificeâ of pasting the traditional concept of sovereignty into autonomous regimes. The necessity of unfolding or disguising the paradoxâthrough hierarchies, self-exemption from the binary legal code, solemn declarations, and so onâthen poses itself as a problem which each functional system/regime must and can cope with on its own, through building its own creation myths and narratives. At the crucial point where mere juridification turns into substantive constitutionalization, it is precisely law that provides the necessary help: as a structural coupling between âsocietal lawâ und âsocietal politics,â constitution itself is characterized by a âdouble reflexivity.â Within societal systems, function-related operations produce further operations through which a contingent form of reflexivity procedurally builds itself; and these processes of autonomization via reflexive social processes need stabil ization that only law can provide.10 The circularity of self-constitutionalization can then be reformulatedâand here is the essential âjumpââwith respect to each functional system: âThe Self must first be defined heteronomously through legal norms in order to be able to define itself.â11 There are two hearts beating in Teubnerâs transnational regime constitution: one that is supplying the structure of the specific societal order and another supplying secondary rules on rules. The âhybrid meta-encryptionâ prevails over the difference lawful vs. unlawful as well as over the idiosyncratic systemic logic (x vs. non-x) in a self-reflexive form. The encryption serves as a mode of the different intra-systemic (intra-law, intra-politics, intra-economy, etc.) operations of sense that keep haunting each other in their respective languages, into the arteries of functional differentiation.12 Constitution as a âbinding institutionâ mutates into a form of legal, political, social, and economic communication, thus passing from the unity of law to a multitude of discursive fragments. The description of society, according to the systems theoretical approach, can be reformulated as a conglomerate of socially and legally constitutionalized multiple identities. To put it a little more simply: every constitution is a vital process of social and legal self-ascertainment within a functional system.13 The conditions of intra-systemic programming,14 however, remain in the âshadows of politicsâ which must be separated from the social system. The separation of politics from the respective social system is, however, not possible, which is why politics, for Teubner, takes an ambivalent form that can be expressedâor âinvisibilizedââby the distinction between la politique and le politique.15 The political system (la politique) does not determine the fundamental principles of subsystems which, because of their societal significance, are highly political and thus subject to their internal politicization. The charm of such a procedural generalogy that abstains from the âbig momentâ of a RĂźtli oath is that the global functional systems, via an autological but invisible accolade, are able to impose on themselves responsibilities that could not be established with similar consequences within the hierarchical order of a traditional state constitution. Only autonomous constitutions enable functional regimes to create normative conditions for their internal politicization. In course of the re-entry of politics into theâat the outset non-politicalâfunctional systems, their constitutions work as catalyzers, as conditions for a reflexive internal and external reference. Now, where is the link to the modern challenges of global society, scandals, human rights violations, scarcity of resources, financial crises, etc.? Luhmann has described as the âfallâ of functional differentiation the question how to deal with self-referential systemic autonomy.16 Systems theory, however, primarily looks at reproduction, not so much at self-destruction or autopoietic âapproaches to impossibility.â17 The latter is somewhat of a blind spot if one focuses on reproduction of reproduction, a blind spot that threatens second-order observers with unemployment.18 Worried about the abysmal problems that we are undeniably facing, Teubner holds catastrophe to be contingent, which means: not compelling but selectable. Adequate societal conditions of self-constitutionalization can only be formulated through reflexive self-limitationâand hence not only as a determination of ârulesâ but as a genuinely constitutional question. To put it in more technical terms: the issue is how it is possible to limit the destructive effects of fragmented energies in a fragmented world, and how each functional system can handle self-expansion and self-restraint at the same time.19 The proposed solution is called exogenous self-binding. One cannot violently impose on social universes an institutional policy of morals as a consequence of whichâlike in Macchiavelliâs Ideal Republicâthe commitment to the common good coincides with the actorsâ interests. It is instead necessary for functional systems to become sensitive to their environments, to develop an âecologyâ in a broader sense, so that self-restraintâand potentially the sustainment of the systemâs environmentâbecomes part of the intra-systemic functional rationality.20 Constitutions are to limit expansive rationalities by the means of law.21 Thus, fundamental rights as elements of different subsystems do not primarily solve conflicts between individuals but avert dangers arising from non-individual âanonymous matricesâ and âinstitutions, discourses, systems.â22 To address the problem of justiciability one has to shift from individual conflicts to conflicts between systems and environments.23 The program is demanding: Teubner asks us to recognize that the autological, autonomous, self-destructive, and damaging unfolding of functional strength can be transformed into a new constitutional, functional, decentralized doctrine. The self-reflection of functional rationality is sparked by pressure from outside24âbut not in the sense of direct, heterogenous causality, but rather as a provocation to self-reflexivity within the system through irritation. 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