Law and Legal Instrumentalism Essay

Law, a set of coherent rules and values within a society, is a human process. As such, it is crucial to approach its application within society in a pragmatic and realistic sense rather than a formal one, which views law as a set of mechanical and abstract principles. A legal realist approach on law takes into account extra-legal factors which help shape how law is used within a social context. This approach does not view the discipline of law as a literal set of principles to be formally detected and applied, but recognizes that the interpretation of law by legal actors is manipulated by situational factors. BrianTamanaha in Law as a Means to an End: Threat to the Rule of Law examines how law, originally understood as an â€Å"instrumental to serve the social good†, is now just a mere instrument to further the goals and agendas of those who have access in its use (Tamanaha, 4). In essence, the notion of a common â€Å"social good† is no longer a qualifiable condition of law. In a complex, multi-faceted society, it is optimistic to presume that there is a true identifiable social good. Thus, lawyers, legislatures, judges and other legal actors are capable of using law to further their personal or collective political, social and economic interests. Tamanaha examines the ways in which legal actors, specifically cause litigants and judges, instrumentally exercise law. Thus, the term instrumentalism, a form of legal realism, is a pragmatic method which stems away from a formal application of law by critically examining cause litigation and judicial activism. Although law may be used as a mechanism to achieve a certain outcome, it is not used lawlessly and without merit as lawyers are advocating for a broad social cause and judges use law based on the merits of the constitution, given the benefit of time and postulated reason of their decision making. Brown, a case regarding segregation within the United States emerged with lawyers stirring up lawsuits by informing African American citizens of their legal rights (Tamanaha 159). The process of instigating litigation was previously prohibited in common law practice; it was not professionally ethical for lawyers to set lawsuits in motion. However, it became increasingly common for lawyers to achieve change in public policy and legislation by fighting for a specific cause within the judicial arena. This ethod was forward-looking in that the courts became a battle field for interest groups seeking remedial change; the decision of the law was not necessarily to compensate for any harm inflicted in the past, but to change the policy in the future. This expansion from the traditional bilateral litigation no longer was to award the affected parties with compensation, but became a method to attain a reformative decree (Tamanaha 161). Eventually, cause litigation was an encouraged means to a dvance societal goals, in the sectors of environment protection, political reform and mental health, to name a few (Tamanaha 160). Although such issues of public policy appear to benefit society as a whole, the intent of the cause lawyers who instigate such legal actions is questionable to Tamanaha. The lawyers in these situations are no longer amoral technicians of law, but individuals who seek their own ideological implementation (Tamanaha 156). The cause which lawyers strive towards becomes the primary concern, whereas the clients themselves are secondary, fulfilling the standing requirement before the court (Tamanaha 156). This can be very detrimental to the clients because they may not be aware of the consequences of their legal actions. For instance, Baehr v. Lewin, 1993 was a successful lawsuit brought forth to legalize same-sex marriage in Hawaii. Although the litigants won, the ultimate consequence was detrimental; following it was a series of amendments nation-wide which prohibited same-sex marriage (Tamanaha 167). The battlefield within the court became not a place to determine legal rights, but a remedial catalyst in public policy. Such political battles focus on adversarial ideologies rather than legal rules and merit. However, the work of cause litigants cannot be narrowly categorized as one that is purely self-serving. More often than not, cause lawyers instigate lawsuits by informing the oppressed and disadvantaged of their rights. By doing so, they use law to encourage political change to the otherwise uninformed public. These causes often grow to become social movements as it â€Å"provides the basis for a sustained series of interactions between power holders and persons successfully claiming to speak on behalf of a constituency lacking formal representation (Austin 2)†. This formal epresentation demands change from the power holders with a strong backing of social support. Often, these groups lack the resources and skills which lawyers can provide, offering their advice to enlighten the marginalized group to â€Å"initiate and nurture political mobilization† (Austin 4). The instrumental use of law by judges is immensely threatening to the judicial system and to a democratic soc iety as a whole. Judges who use law to achieve a certain outcome undermines the rule of law. The legal system requires that judges be objective arbitrators of the law. As independent bodies, it is essential that they remain impartial in their decision making and delegate based on rule, and not personal preferences (Tamanaha 227). This is a crucial aspect of the rule of law, which binds the action of the state to pre-fixed rules, placing judges equal under and before the law, just as all other subjects of society. The rule of law ensures transparency and predictability which prevents the government from ruling coercively. It is an essential component to a democratic state. However, when judges decide a cases, they may be inclined to achieve a particular result. In essence, they are using laws to achieving another end, namely one that strengthens their own ideological beliefs and interests. Whether it is a certain political philosophy or a particular social policy which they seek, arbitrarily decided cases and manipulated law enforcement defeats the characteristics of the judicial branch of the state. Because there is no particular hierarchy of values, judges are able to promote some while extinguishing others. The general terms of legal rules allows judges to focus on the consequences of their decision. Their decisions will naturally be based on their political affiliations or ideological tendencies. Consequently, it is difficult to believe that judges are truly impartial in decision making. The result of judicial activism is that private attitudes become public law (Tamanaha 234). Furthermore, the procedural process of the case takes a backwards approach; the decision is made first, then it is justified by the legal rules which judges find applicable (Tamanaha 236) Nevertheless, there is a certain form of procedure which judges are bound to. Although values are not ranked hierarchically, there are two forms of rights obtained from the constitution: specified rights and secondary rights (Bork 17). The latter is of utmost importance as it addresses the values held by the constitution, such as the right to vote or procedures in criminal processing, all which the courts need to protect (Bork 17). The former alludes to the principled rules which the original framers of the text intended to convey (Bork 17). Because constitutional law does not have a concrete theoretical premise on which adjudicators are required to base their decision making processes on, they are founded on neutral principles. That is, issues are addressed based on general principles postulated on reason to ensure that conflicting values are not lawlessly chosen over one another (Bork 2). Granted, there are adversaries in the legal principles to which judges ascribe. Therefore, it is critical for the judges to recognize that in deciding cases, they are setting legal precedent, and therefore should have a firm belief that the values being applied are done so lawfully. These beliefs are in relation to the legal system as a whole, not their personal preferences (Bork 2). Ultimately, Bork’s concern lies not with the decisions made by judges but what makes their decisions legitimate. The courts essentially work as advocates for the minority who otherwise would have no say on the issue at hand. Helping the powerless realize their rights is a form of advocacy that judges take. It is not about undermining the rule of law, but giving opportunity to access the law (Bork 3). Nevertheless, it is crucial for judges to base their decisions off of neutral principles; just as principles and values cannot be applied lawlessly, they just the same cannot be defined lawlessly (Bork 8). The critical examination of judicial review goes beyond it’s obvious implications and expositions of undermining the rule of rule. It is unfair to presume that judges are completely unreasoned in their decision making. There is a level of predictability as judges are bound to legal precedent and cannot decide cases in an tyrannical manner. Although the courts are not elected officials who are granted the power to delegitimize legislation, they are in many ways better equipped in making such decisions. For instance, the courts are distanced from political or social pressure allows them to make sound decisions in a timely matter. Elected officials tend to act on expediency and pressure when it comes to making value-based decisions (Bickel 25). Essentially, they are inclined towards one side of the issue in order to appeal to the interest of the predominate voters, as opposed to abiding to the fundamental values of law (Bickel 25). Judges on the other hand make decisions far from societal pressures, with more leeway in terms of time. This gives the courts the ability to make more calculated decisions, taking into consideration not only the fundamental values of the state but also the unforeseen implications of a decision. (Bickel 26) In dealing with the pith and substance of a case, decisions are argued to be â€Å"sober second thoughts† (Bickel 26). Ultimately, the use of law within a judicial context by judges and lawyers is not an arbitrarily unfair process. Such legal actors are bound to the values of the laws within society. Such values are premised on the rule of law, the foundational concept of a democratic society. Cause litigants are often involved in social issues and advocate for those who require a formal delegate. These cause lawyers may use law in such a way to achieve a certain outcome, but this outcome results in change in public policy to those who are otherwise be unaware of their legal rights. Moreover, although judges may have their own social desires and political preferences, they cannot easily sway towards them. Their professional duty requires them to be consciously rule-bound and rely on the precedent. Further, the basis of their decision is on neutral principles. Such principles are not vague and abstract, but stem from the precedent of previous judges in common law. Instrumentalism is pragmatic in that it recognizes that law is not a math; there is not a formula which judges rely on. However, social movements and changes through the judiciary ensures that fresh insight is continuously brought about within society, giving room for social change and progress.

The European Court of Justice and the Supremacy of Ec Law

THE EUROPEAN COURT OF JUSTICE AND THE SUPREMACY OF EC LAW I. INTRODUCTION In the making and promulgation of Community law, the European Court of Justice (ECJ) plays a crucial role. Many of the fundamental doctrines of EC law are not to be found in the Treaties, or secondary EC legislation, but in the case law of the European Court. No provision of the Treaty on European Union (TEU) contains an express term regulating the issue of the supremacy between the Community and the various national laws of the Member States. The only implied reference to the issue of supremacy is Article 10[1] of the TEU which imposes a duty on all Member States to adopt appropriate measures to ensure that the obligations of the Treaty are observed, together with an additional duty to abstain from all acts which might jeopardise the achievement of the objectives of the Treaty. Article 10 states that: â€Å"Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty. †. Thus, the principle of the supremacy of Community law over national law was first established by the European Court of Justice whose role is explicitly stated in Article 220[2] of the TEU: â€Å"The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed. † Prior to an analysis of the doctrine of supremacy and the relevant case law and implementation of the doctrine, an introduction into the composition, structure and practices of the European Court of Justice (ECJ) will be followed. THE EUROPEAN COURT OF JUSTICE †¢ Composition and Structure The ECJ, to which the Court of First Instance (CFI) is attached, is the judicial branch of the Community. It has been described by Shaw as â€Å"a heroin figure in the development of the EU†. The ECJ, which sits in Luxembourg, now has 15 judges who are assisted by 9 Advocate-Generals (AGs). Each Member State (MS) is entitled to appoint a judge of its own nationality. The appointment of all judges is required by Article 223 TEU[3] to be: â€Å"by common accord of the Governments of the Member States†. The term of office is six years and the appointment of new judges or reappointment (for another term) of the existing judges is staggered so that there will be a partial replacement of judges every 3 years. The judges select one of their number to be President of the Court for a renewable term of 3 years. The President directs the work of the Court and presides at hearings and deliberations. The ECJ is assisted by 9 AGs. Five of the 9 AGs should be appointed by the 5 largest Member States, the remaining to be appointed by the other Member States on a system of rotation. Their duty, which is set out in Art. 222 TEU[4] is, â€Å"to make, in open court, reasoned submissions on cases brought before the ECJ† with complete impartiality and independence. [5] The qualifications for selection, method of appointment and conditions of office of the Attorney Generals are the same as for the judges of the Court. The qualifications for selection as a judge of the ECJ are stated in Article 223 TEU[6] and require: persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence. † Furthermore, judges may not hold any other political or administrative office while they are members of the Court. In accordance with their respecti ve traditions, certain Member States have appointed academics to sit as judges, whereas others – such as the U. K. – have nominated existing national judges or practicing advocates. Although states tend to select their own nationals, the Treaty clearly requires that the judges be entirely independent of their national governments. Judging from the nature of the ECJ? s jurisprudence, the wishes of individual Member States have had little influence on its decisions-making. Under Article 221 TEU[7] the ECJ is permitted to sit in Chambers of 3 or 5 as well as in plenary session. The court will, however sit in plenary session when a Member State or a Community Institution which is party to the proceedings so requests, or in particularly complex or important cases. The organisation of the Court is regulated by a separate Protocol to the EC Treaty – Protocol on the Statute of the Court of Justice. Matters of procedure are regulated by this Protocol, including the content of oral and written pleadings, citation of witnesses, costs and expenses etc. The problem of over burdening the Court apparently continues to grow[8] despite the temporary easing of the caseload which the establishment of the CFI, in 1988 initially brought about. Other than the appeal on a point of law from the decisions of the CFI to the ECJ, there is no further appeal from the judgments of the ECJ, which is the ultimate or supreme Court of the EC. The Court of First Instance (CFI) †¢ Composition The Single European Act, (1988) authorised the Council of Ministers to create a CFI to alleviate the volume of work before the ECJ. The aim of the creation of the CFI in 1989 was to strengthen the judicial safeguards available to individuals by introducing a second tier of judicial authority and enabling the ECJ to concentrate on its essential task, the uniform interpretation of Community law. The CFI consists of 15 judges who are appointed by agreement between Member States for periods of 6 years. There are no permanent AGs. The duties of an AG are performed by one of the judges. †¢ Jurisdiction The CFI does not extend the jurisdiction of the ECJ, but rather, it exercises certain aspects of the Court’s functions. The jurisdiction extends to the following classes of cases: – staff cases – competition cases – cases under the ECSC Treaty – anti-dumping cases It has no jurisdiction to hear preliminary rulings. Furthermore, according to Art. 25 TEU, decisions of the CFI are subject to an appeal to the ECJ on points of law only. Enforcement of EC Law in Domestic Courts Like any true legal system, the Community legal system needs an effective system of judicial safeguards when Community law is challenged or must be applied. The ECJ, as the judicial institution of the Community, is the backbone of that system of safeguards. It is responsibl e for interpreting questions of EC law and provision is made in the Treaty for references to the ECJ by national courts. Decisions of the ECJ, upon a reference, are reached by majority vote and are binding on all domestic courts of all Member States. Under Article 234 TEU[9] it is provided that: â€Å"The Court of Justice shall have jurisdiction to give preliminary rulings concerning a) The interpretation of the Treaty; b) The validity and interpretation of acts of the institutions of the Community†¦ where such a question is raised before any court †¦of a Member State that court†¦.. may, if it considers that a decision on the question is necessary to enable it to give judgment, request the ECJ to give a ruling†¦Ã¢â‚¬ ¦.. Where any such question is raised†¦Ã¢â‚¬ ¦before a court of a Member State against whose decisions there is no judicial remedy under national law, the court†¦Ã¢â‚¬ ¦shall bring the matter before the Court. † It is through this Article that the ECJ has achieved the principle of supremacy and its uniform application in all Member States when Community law may be in conflict with domestic legislation. In CILFIT (1983) the ECJ emphasised that the purpose of the then Art. 177 was to ensure the proper application and uniform interpretation of EC law in all Member States. However, preliminary references procedure depends on the effectiveness of cooperation between the ECJ and national courts. The power to ask for a preliminary ruling rests solely with the national court and the power of the ECJ is limited to an interpretation of EC law[10]. In procedural terms, individuals still have no right of appeal to the ECJ and the national court can decide whether a reference is necessary; the Court? s judgements are still, in theory, at least, only given on points of interpretation and validity. However, following the many changes that the Community has gone under, the ECJ? s role has been evolutionary, siting at the apex of the Community judicial hierarchy. The increasing emphasis which the ECJ places on Article 10 TEU, rendering Community law applicable to national courts as well as to the political arm of Member States, is merely one important manifestation of this process in operation. The Community as a whole is in a state of transition, and it would be surprising if the relationship between the ECJ and the national courts were to remain immune from the wider changes. As the Community moves towards a closer social and political union, one could well expect the ECJ to cement its position at the apex of the judicial hierarchy. II. THE DOCTRINE OF SUPREMACY – PRINCIPLE The ECJ, as the guardian of legality and instrument of cohesion within the Community, has, from the start been in a strong position to define the status of Community law and to give it precedence when in conflict with the national legal systems of the various Member States. The first case where the Court made a statement on the nature of European law is the famous case of Van Gend en Loos v. Netherlands (1963)[11] dealing with the principle of direct effect of EC Treaty provisions and the degree to which individuals can rely on such terms to challenge measures of national law. In that case, which will be dealt with in detail later on, the ECJ stated that: â€Å"The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states†¦ The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals†. The reasoning of the Court in the case is brief and apart from its elaboration on the concept of direct effect, where it stressed the need for direct enforcement by national courts of Community norms, little more was said about the need for national courts to accord primacy to EC law over conflicting national law. The Court’s focus in Van Gend was on whether Article 12 (customs duties on imports from Member States to other Member States) could give rise to so-called direct effects – the immediate enforceability in national courts by individual applicants of Treaty provisions – so that an individual could rely on and have that Article enforced before domestic courts. The approach of the Court was based on the Court’s vision of the kind of Community which those Treaties had set out to create, and the kind of legal system which the effective creation of such a Community would necessitate. It was in a second important case, two years later, however, that the ECJ expanded on its constitutional theory of the Community, declaring again that the states had created a sovereign Community by limiting their own sovereign rights. The case was Costa v. ENEL (1964)[12] and the facts were as follows: An individual was claiming before his local court that the law nationalising production and distribution of electricity was incompatible with the EC Treaty. The local court referred the question to the ECJ for a preliminary ruling. The ECJ in its judgment emphasised the unlimited duration of the Community, the autonomy of Community power, both internally and externally, and especially the limitation of competence or transfer of powers from the states to the EC. The Court was determined to show that the â€Å"words and spirit of the treaty† necessarily implied that: â€Å"It is impossible for the states to set up a subsequent unilateral measure against a legal order which they have accepted on a reciprocal basis†. The Court found the primacy of EC law confirmed by the wording of Article 189 EC Treaty[13] under which regulations have â€Å"binding† force and are â€Å"directly applicable in all Member States†. The Court pointed out that this provision which is not qualified by any reservation â€Å"would be meaningless if a state would unilaterally nullify its effect by means of legislative measures which could prevail over EC law†. The Court was thus able to reach a conclusion in Costa in words which have become classic and have had considerable influence in national decisions: â€Å"It follows from all these observations that the law stemming from the Treaty, an independent source of law could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail†. †¢ As in the case of Van Gend, the Court made no reference to the constitution of any particular Member State to see whether such a transfer or limitation of sovereignty was contemplated or even was possible in accordance with that constitution. Furthermore, the Court drew on the â€Å"spirit and the aims† of the Treaty to conclude that it was â€Å"impossible† for the Member States to accord primacy to domestic laws. The spirit of the Treaty required that they all act with equal diligence to give full effect to Community laws which they had accepted on the basis of state â€Å"reciprocity† – meaning presumably that since each state was eq ually bound by laws passed for the Community as a whole, they had all agreed that no one of them would unilaterally derogate from Treaty obligations. And since the â€Å"aims† of the Treaty were those of integration and co-operation, their achievement would be undermined by one Member State refusing to give effect to a Community law which, should bind all. In Van Gend and Costa v. Enel the Court set out its theorical basis for the principle of supremacy of Community law. The force and practical application of the principle became clearer still in its later decisions. In the following case, the Court made clear that the legal status of a onflicting national measure was not relevant to the question whether Community law should take precedence: not even a fundamental rule of national constitutional law could, of itself, be invoked to challenge the supremacy of a directly applicable EC law: Internationale Handelsgesellschaft v. Einfuhr (1970)[14] â€Å"Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on t he uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law†¦Ã¢â‚¬ ¦. The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure†. This decision gave rise for some time to a potentially serious deadlock in relations between the German Constitutional Court, which held that the Community deposit system breached a fundamental provision of the national legal order, and the ECJ, which denied that national constitutional principles could have any effect on the domestic applicability of Community law. But far from backing off from its claims, the Court continued to emphasise the importance of ensuring that the supremacy of Community law was not simply a matter of principle or of theory only, but was given practical effect by all national courts in cases arising before them. It is however, interesting to note that following this case, the ECJ evolved the concept of EU fundamental rights declaring them to be general principles of law that the Court will apply within the framework of Community law In Simmenthal SPA (1978)[15] an Italian judge was faced with a conflict between a Council Regulation on the common organisations of the market in beef and veal and the Italian veterinary and public health laws. Under Italian law, domestic legislation contrary to EC Regulations may be held to be unconstitutional but only by such declaration from the Constitutional Court and not by the ordinary courts. Should the Italian judge of First Instance disregard inconsistent national legislation without waiting for its repeal from the Constitutional Court? In a reference to the ECJ on the question, the latter held that the national court was under a duty to give full effect to Community law even where there was a conflicting provision of national law and without waiting for a higher court to rule on the matter. â€Å"Every national court must†¦Ã¢â‚¬ ¦. apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule†. Simmenthal is an interesting case, since it spells out the practical implications for the Community legal order of the principles of supremacy and direct effect. The facts of it highlighted a further problem for national courts: what if the national court was one which had no jurisdiction in the domestic legal system to question or to set aside national legislative acts? The clear implication of the Court’s response was that, even if the only national court empowered to pronounce on the constitutionality of a national law is the Constitutional Court, nevertheless, if such a case arises before any other national court, that court is bound to give immediate effect to Community law without awaiting for the ruling of the Constitutional Court. We therefore see how Community law has â€Å"conferred† on domestic courts – indeed how it has required them to exercise – powers and jurisdiction which they did not have under national law. The key emphasis in these decisions is on the principle of effectiveness. This certainly became clear in the U. K. after the ruling in the well-known Factortame litigation (1990)[16], on the question of interim relief against a provision of national law which appeared to conflict with one of Community law. The facts of the case were as follows: The U. K. Merchant Shipping Act 1988 operated to exclude from registration for purposes of fishing permits 95 fishing vessels owned by Spanish nationals who challenged the Act on the basis of breach of the EC Treaty – (discrimination by nationality). The U. K. Court asked the ECJ for a preliminary ruling. In the meantime, interim relief was granted and then lifted on the basis that that remedy did not lie against the Crown in English law. The ECJ ruled that interim relief must be available and that this obligation overrode conflicting domestic principles. The domestic court was required to set aside national law, if that would have prevented the grant of interim relief giving effect to EC law. This was required to enable effective enforcement of Community law: †¦.. the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court†¦Ã¢â‚¬ ¦granting interim relief in order to ensure the full effectiveness of†¦Community law†. According to Lord Bridge of the House of Lords[17], â€Å"If the supremacy within the European Community of Community law over the national law of Member States were not always inherent in the EEC Treaty, it was certainly well established in the jurisprudence of the ECJ†. Thus, in so far as the Court was concerned, by 1990, the principle of supremacy of Community law and its practical effectiveness amongst Member States were established beyond question. However, the theory’s practical application is ultimately dependent on the internal acceptance and adaptation of the constitutional orders of the Member States. And as AG Roemer noted in Van Gend en Loos the constitutional orders of some of the Member States do not easily accommodate the principle of supremacy. The accommodation so far reached by the courts of various Member States on this issue will now be examined. For reasons of time, only some Member States will be discussed, although every state has its own interesting constitutional perspective to offer. III. THE PRINCIPLE OF SUPREMACY – IMPLEMENTATION †¢ MEMBER STATES Under Public International Law (PIL), there are 2 conceptions regarding the transfer or delegation of sovereign powers to international organisations: Monism |Dualism | |PIL+ national law ( part of one single system with PIL taking | PIL + national law ( separate systems, | |precedence. |each supreme within its own spheres. | |ie Dutch + French constitutions provide that duly ratified |ie UK ( here you need incorporation of | |international obligations preside over municipal law. PIL into national law by national Act of | |Also, Belgian courts achieved the same result in absence of explicit|Parliament in the form of a statute | |constitutional provision by proclaiming that international |BA v. Laker and Blackburn case ( | |obligations have effect superior to domestic law. |European Communities Act, 1972. | |( | | |directly speak of transfer powers. | | | | | |( | | |always seeking statutes to conform to EC law. | In practice, there is little difference in the application of EC law. In France, there was not any particular constitutional problem since the constitution provides that international treaties have a direct effect and are accorded supremacy. In accordance, Article 55 of the French Constitution of 1958 states that: â€Å"Treaties or agreements duly ratified or approved shall†¦.. have an authority superior to that of Laws. † However, the Conseil d? Etat, the supreme administrative court had difficulties in accepting the supremacy of Community law. In the case of Semoules (1970)[18], the problem was expressed as a jurisdictional one: The Conseil d? Etat ruled that, since it had no jurisdiction to review the validity of French legislation, it could not find such legislation to be incompatible with Community law, nor could it accord priority to the latter. Decisions on the constitutionality were matters for the Conseil Constitutionnel – the Constitutional Council. However, in the Jacques Vabres[19] case in 1975, the Court of Cessation – Cour de Cassation – the highest of the ordinary judicial Courts – took a ifferent view and ruled that when a conflict exists between an internal law and a duly ratified â€Å"international act† which has thus entered the internal legal order (Art. 55 of the Constitution) the Constitution itself accorded priority to the latter. It was not until 1989 in Nicolo case[20], however, that the Conseil d? Etat finally abandoned its so-called â€Å"splendid isolation† and decided to adopt the same position as the Conseil Constitutionnel and the Cour de Cassation. The caution displayed by the French Conseil d? Etat in its approach to the supremacy of Community law is evident in the case law of many other Member States. The Court of Justice? s view that national law can never take precedence over directly effective EC law on account of a transfer of sovereignty by the Member States and â€Å"the spirit of the EC Treaty† is not unconditionally accepted by the courts of Member States. In France, the main obstacle to the recognition of supremacy of EC law was the jurisdictional limitation of the French courts. In other Member States, in particular in Germany, the difficulties which arose related to the fundamental constitutional nature of the national legislation which appeared to contravene Community law. Article 24 of the German Constitution allows for the transfer of legislative power to international organisations, but in litigation which arose over apparent conflicts between Community legislation and provisions of the German Constitution, the extent of power which would be transferred in accordance with this Article was questioned. In particular, the focus of the case law was on whether Article 24 permitted the transfer, to an organisation outside the German constitutional structure of a power to contravene certain basic principles protected under the Constitution itself. Following the ECJ? s ruling in Internationale Handelsgesellschaft[21], the German Administrative Court ruled that the compulsory scheme regarding the Community deposit system breached basic principles of German constitutional law (compulsory payment of money cannot be imposed in the absence of fault) and it requested a ruling from the Federal Constitutional Court. The latter refused to recognise the unconditional supremacy of Community law. The major objection was a concern over the possible impact on basic rights enshrined in the German Constitution of conflicting measures of Community law. For this reason, it held that the clause in the German Constitution which allowed for the transfer of legislative power to international organisations would not cover a transfer of power to alter or amend an â€Å"inalienable essential feature† of the German constitutional structure, such as its express protection for fundamental rights. It concluded by saying that the protection for fundamental rights in the German Constitution would have to prevail in the event of any conflict. Having considered various changes in Community law since the time of the 1974 decision, including the development by the ECJ of a doctrine of protection for fundamental rights, and the fact that all Member States by this stage acceded to the European Convention of Human Rights, the German Court in Solange II (1987)[22] held that: So long as the European Communities, and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights†¦the Court will no longer exercise its jurisdiction†¦Ã¢â‚¬ ¦Ã¢â‚¬  More recently, in Brunner v. the European Union Treaty (1994) the Court had to consider the constitutional relationship between EC law and German law, on the occasion of the ratification of the TEU. It ruled that ratification was compatible with the Constitution. The judgment shows that the constitutional court asserts and clearly intends to exercise a power of review over the scope of Community competence. Even if the German courts have accepted that Community law should be given precedence over national law, the constitutional court has made clear that it will continue to review the actions of European institutions and agencies to ensure that they remain within the proper limits of their acquired powers. In the United Kingdom, the acceptance of the supremacy of Community law has certainly not been unproblematic. Since the British Constitution is largely unwritten, it is difficult to speak of â€Å"amending† it. The central obstacle to acceptance by the U. K. of supremacy of EC law is the fundamental constitutional principle of the sovereignty of Parliament. According to this principle, Parliament has the power to do anything other than to bind itself for the future. According to Dicey, â€Å"Parliament has, under the English Constitution, the right to make or unmake any law whatever and no person or body†¦. as the right to override or set aside the legislation of Parliament†. Furthermore, the doctrine of implied repeal means that no Parliament can bind its successor, and no Parliament can be bound by its predecessor. Any Act is thus vulnerable to change by a future Parliament. With those problems in mind, it was nevertheless decided to give internal legal effect to Community law by means of an Act of Parliament (dualist state): the European Communities Act, 1972. Section 2 (1) establishes a legal basis within domestic law for directly applicable EC laws as in accordance with the Treaties and without further legal enactment to be given legal effect or use in the U. K†¦ and†¦ shall be recognised and available in law†. The section aims to make the concept of direct effect a part of the U. K. legal system. It states that law which under the EC Treaties is to be given immediate legal effect, is to be directly enforceable in the UK. Section 2(4) accords existing and future priority to EC laws. â€Å"Any enactment passed or to be passed†¦. shall be construed and shall have effect subject to the foregoing provisions of this section†. Furthermore, section 3 states that: â€Å"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect any Community instrument, shall be treated as a question of law and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any Court attached thereto†. It is therefore apparent that the supremacy of EC law is recognised in the U. K. by virtue of domestic legal processes and legal theory. The principle of supremacy was in theory recognised by English judges. Despite earlier judicial comments to the contrary[23], the English Master of the Rolls, Lord Denning, in the case of Shields v. Coomes (Holdings) Ltd[24](1979) demonstrated a willingness to accept the principle of supremacy of Community law. In Bulmer v. Bollinger (1974)[25] he furthermore held that: â€Å"The Treaty is like an incoming ride. We must no longer speak or think of English law, as something of its own. We must speak and think of Community law, of Community rights and obligations and we must give effect to them†. But again, this did not prevent judicial difficulties from arising over the practical recognition of the supremacy of EC law over national law. In Macarthys v. Smith[26], a genuine conflict appeared to arise between Article 119 of the EC Treaty concerning equal pay and section 1 of the Equal Pay Act 1970 in the U. K. It was held by the Court of Appeal that priority should be given to Community law following section 2(1) and (4) of the European Communities Act, 1972. Here, then, is the judicial reconciliation of Parliamentary Sovereignty with the supremacy of EC law. But the overriding of the Act of Parliament is to be seen as a fulfillment of the Parliamentary intention – the intention to comply with directly effective Community law – and if it is made clear that the legislative contravention of Community law was intentional, then domestic law must prevail. In other words, the supremacy of EC law is assured in the U. K. only in so far as Parliament intends it to be, and the courts have no power to undermine the clear will of Parliament, whether or not it presents a breach of Community law[27]. The Factortame Litigation [28] earlier discussed, shows that, although an equilibrium may now have been reached in the relationships between U. K. courts and the ECJ as to the requirements of supremacy of EC law, the obligations of the U. K. courts stem from the express will of Parliament, and not directly from the Treaties: â€Å"Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972,†¦was entirely voluntary†. Thus, in conclusion we see that the bidimensional picture of the supremacy of Community law exists, even today, for although all Member States by now accept the practical requirement to give priority to EC law, few, if any, would be prepared to abandon their supervision of it, to ensure that the Community does not attempt to extend the powers it has been given. †¢ Individuals The principle of supremacy has implications for individuals. The principle of direct effect gives the right to individuals to plead before the national court the provisions of EC legislation. As a doctrine which principally protects individuals and often gives them rights which they can rely upon as against Member States, it sets up a mechanism for individual or indirect enforcement of EC law making thus Community law a reality for the citizens of Europe. Van Gend en Loos provides a clear example of the approach of the Court. The Court pointed to the fact that individuals were envisaged as being able to plead and rely on points of EC law through the preliminary ruling procedure. The Court set out certain criteria for the direct effect of a Treaty provision. There must be: 1. a clear, negative, unconditional obligation on a Member State, 2. containing no reservation on the part of the MS, 3. and not dependent on any national implementing measure. (MS-no real discretion whether to apply measure). The Court held that Art. 12 of the EC Treaty was directly effective. This process establishes private rights for individuals which are enforceable in municipal courts. The principle applies most frequently in the relationship between private individuals and national authorities. This is called vertical effect. Some provisions, however, because of their nature, have been recognised by the Court as having a wider effect in that they can be invoked against other individuals. This is called horizontal effect i. e. they impose obligations on other individuals. eg. the Treaty provisions regarding the competition rules applicable to undertakings, for example, can clearly be invoked before the national courts by one undertaking against another. Furthermore, a Regulation, as described in Article 189(2) EC Treaty, now 249 – TEU â€Å"shall have general application. It shall be binding in its entirety and directly applicable in all Member States†. A Regulation is defined as a general legislative instrument which is binding in its entirety and which is directly applicable within the legal orders of the Member States without the need of intervention on the part of legislative bodies. Thus it has horizontal and vertical effect. In contrast, a Directive which is defined in Art. 249 TEU too, â€Å"shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods†. Therefore, directives are not automatically applicable within Member States. Since directives are given legal force through national measures, rights and duties are conferred on individuals only after incorporation into national law. The conditions to be satisfied before direct effect can be pleaded are the 3 ones mentioned earlier. However, 2 important limitations are placed on the application of this principle: a) The principle only applies to directives which are unimplemented after the date set for implementation. ) The Court has only been prepared to apply this doctrine to the relationship between individuals and the state (vertical direct effect) as opposed to the relationship amongst individuals themselves (horizontal direct effect). The recent case of Dori (1992) reiterats this refusal. [29] In Marshall (1986)[30] and in Van Duyn[31] (1974) the Court confirmed that while a directive might be upheld against defaulting Member States, it cannot be invoked directly against other individuals. However, the Court has sought to achieve the same result though the process of interpretation. For example, where the Court is interpreting the terms of an unimplemented directive as it applies between private individuals, the Court has observed that: â€Å"In applying national law, whether the provisions in question were adopted before or after the directive, a national court called upon to interpret it is required to do so, as far as possible, in light of the wording and purpose of the directive in order to achieve the result pursued by the latter†[32]: Marleasing SA (1992). Furthermore, the principle of construction requires national courts, in conformity with Art. 10 TEU, to give full effect to EC law, to interpret all national legislation in the light of all relevant EC law, regardless of whether the particular provision is of direct effect: EC law does not have to be directly effective in order for it to benefit from the general doctrine of supremacy – Van Colson (1984)[33]. Furthermore, the ECJ has broadly defined the notion of the state to include anything that provides public service, with sufficient statutory powers beyond those which result from normal rules applicable between individuals†. Foster (1991)[34] Regional policy, health, tax and local authorities may be included. Furthermore, the state may be held to be responsible in respect of breaches of EC law, and liable in damages for the non-implementation of a directive, following the decision in Francovich[35] (1991) which held that: The full effectiveness of Community rules wou ld be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain compensation when their rights are infringed by a breach of Community law for which a Member State can be held responsible. †. However, 3 conditions must be satisfied: – Implementation of the directive would confer rights on individuals. – Its terms should be sufficiently precise and unconditional to determine rights. – There should be a causal link between the breach and the loss. The development by the Court of strong legal requirements in the area of national remedies for breach of Community law has generally been welcomed as a significant contribution to the effectiveness of Community law, at least through the medium of judicial intervention by national courts. However, the welcome has not been unconditional, and many commentators have called on the legislative institutions and political players in the Community legal process, to take appropriate action, rather than to leave this area of law for the Court to develop through the haphazard process of litigation. Conclusion It is clear that the ECJ â€Å"the guardian of the Treaty† in formulating the principle of supremacy, reaffirmed the nature and development of EC law. The supremacy of EC law is inherent within the nature and spirit of the TEU. The special and original nature of Community law requires that its supremacy over national law is acknowledged and followed. The ECJ will not entertain the prospect of any provision of national law, even of constitutional validity, prevailing over an inconsistent provision of Community law. The success of this development is well profound, especially when one has in mind that the Court in developing the principle, attributed to it characteristics and force which it considered necessary to carry through a set of profoundly altering and potentially far reaching common goals within a group of politically and geographically distinct nations and historically sovereign states. / ———————– [1] ex art. 5 of the EC Treaty [2] ex Art. 164 of the EC Treaty [3] ex Art. 167 – EC Treaty [4] ex. Art. 166 – EC Treaty 5] Their duties should not be confused with those of a prosecutor or similar official – that is the role of the Commission, as guardian of t he Community? s interests. [6] ex Art. 167 – EC Treaty. [7] ex Art. 165 – EC Treaty. [8] Since it was set up in 1952, more than 8,600 cases have been brought before the Court. [9] Ex Art. 177 EC Treaty [10] See also case 104/79, Pasquale Foglia v. Mariella Novello (1980)1 ECR 745, (1981) CMLR 45 and Case 244/80, Pasquale Foglia v. Mariella Movello (N °2) (1981) ECR 3045, (1982) CMLR 585. [11] Case 26/62 (1963) ECR 1, (1963) CMLR 105. 12] Case 6/64 (1964) ECR 585; (1964) CMLR 425. [13] now Art. 249 TEU. [14] Case 11/70 (1970) ECR 1125; (1970) CMLR 255. [15] Case 106/77 (1978) ECR 629; (1978) 3 CMLR 263 [16] (No 2) Case C213/89 (1990) ECR 2433; (1990)3 CMLR 867 [17] R v. Secretary of State, ex parte Factortame (No 1) (1989)2 WLR 999 [18] Decision of 1 March, 1968 in Syndicat General de Fabricants de Semoules de France (1970) CMLR 395 [19] Decision of 24 March 1975 in Administration des Douanes v. Societe  «Ã‚  Cafes-Jacques Vabre  Ã‚ » et SARL Weigel et Cie (1975) 2 CMLR 336 [20] Decision of 20 Oct. 1989 in Nicolo (1990)I CMLR 173 [21] (1972) CMLR 177, at 184 [22] Re Wunsche Handelsgesellschat, Decision of 22 Oct. 1986 (1987)3 CMRL 225 at 265 [23] Felixstone Dock and Railway Company v. British Transport and Docks Board (1976) 2 CLR 655. [24] (1979)1 All ER 456. [25] (1974) Ch 401 [26] (1979) 3 All ER 325 [27] see T. Allan, â€Å"Parliamentary Sovereignty: Lord Denning? s Dexterous Revolution† (1983)3 6 OLS 22 [28] (1990)2 AC85 and (1991)1 AC 603. [29] Dori C-91/92 Dori v. RecrebSrl (1994) ECR I – 3325 [30] Case 152/84 Marshall v. Southampton and South – West Area Health Authority (1986) ECR 723, (1988)1 CMLR 688 [31] Case 41/74l, Van Duyn v. Home Office (1974) ECR 1337, (1975)1 CMLR 1 [32] Case C-106/89, Marleasing SA v. La Comercial de Alimentacion SA (1990) ECR 1-4135 (1992)1 CMLR 305, at p. 4146 [33] Case 14/83,l Von Colson and Kamann v. Land Nordrhein –Westfalen (1984) ECR 1891, (1986)2 CMLR430 [34] Case C-188/89, A. Foster and others v. British Gas †¦(1990) ECR 1-3313, (1990) 2 CMLR833 [35] Case C-6/90 and C-9/90, Francovich v. Italy (1991) ECR 1 – 5357, (1993)2

Gender Portrayal and Prime Time Comedy Essay Example | Topics and Well Written Essays - 750 words

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Promotion Strategies - Research Paper Example The individual brands remain competitive because of implementing effective strategies that can conquer the market. Therefore, it is relevant for the players of the soft drink industry to develop unique and marketable strategies of winning customer trust. The soft drinks industry is composed of various players including coca cola, Pepsi, and Cola Turka, Zam Zam cola, Parsi cola, position and RC cola among others. Despite being many players, coca cola and Pepsi have mastered the art of marketing to their advantage. Both of the companies specialize in making concentrates that are distributed to their various bottlers. This ensures that the company serves large markets in the world. Coca cola’s objective is maintaining its market grip in all parts of the world. As a result, it has been able to establish itself in all the countries in the world apart from North Korea and Cuba (Hayes, 2007). However, it is reported to be available as a gray import in both countries. Furthermore, the company manages to conquer the soft drink market by diversifying its products. For example, the company has had caffeine free versions and fruit flavours that have been included over the years. Moreover, the company provides the no calories colas that can be found it the coca cola outlets. On the other hand, Pepsi also manages to diversify its products to accommodate various customers. However, its main objective is to have an influence in a large soft drink market through continuous brand marketing in various parts of the world (Stevenson, 1989). Promotion of the soft drink brands is a matter of importance to the market players. The companies use different communication channels in order to promote their products. Their promotional objectives are to remain relevant and enlarge their market coverage. For example, the internet is the most common platform of marketing among the companies. The companies

PUBLIC POLICY 3000 Essay Example | Topics and Well Written Essays - 3000 words

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Analysis Paper - Case Study Example Apparently, foreign investments have immensely contributed to growth of India’s economy. The government of India is more likely to adopt or implement a more robust policy regime to lure more foreign investors into the country (Enz, 2010). Led by Narendra Modi (Prime Minister), the government has ultimately approved various economic reforms in the recent past in an effort to attract more investors into the country, especially those in the service industry. For instance, the government is likely to open doors to international hotel chains to join local establishments in the vastly competitive hospitality industry. The deeper pockets, such as cash and many other resources of international hotel chains are likely to give India competitive advantage over domestic chains (Dayal-Gulati & Jain, 2010).. The economy of India will particularly record a major growth as international hotel add a great deal to the revenues collected from the hospitality industry. The government of India has allowed foreign investors to invest directly in its economy, giving the country a competitive edge over its domestic chains (Dayal-Gulati & Jain, 2010). However, the advantage of the deeper pockets might not be sustainable in the long-run. Apparently, Indian government must protect its local established and infant chains. Although international chains significantly contribute to the growth in the country’s revenue, they (foreign/international chains) may eventually trigger collapse of local competitors. Growth in popularity of Indian market is likely to increase the aggressiveness of other global and domestic chains, posing enhanced or heightened competitive threats (Dayal-Gulati & Jain, 2010). However, domestic chains also play an integral role to stabilize India’s economic growth, as well as to give the economy a fairly systematic resilience. The Indian government, on the other hand, has to play its part not to let foreign corporations take

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Write your own Opinion Page - Essay Example It was certainly a dark chapter in the age of enlightenment and for America itself since it was supposed to be the new world where hope and equality could exist. However, as the historical record shows us, the first individuals to be accused of practicing witchcraft were the socially and economically excluded classes of beggars, poor individuals and African American persons. Further, it seems that it was not a few people who engaged in the mass hysteria of witchcraft but the whole village of Salem, neighboring towns and even the larger cities around Salem were caught up in it (Linder, 2008). Of course even at the time there were many who thought the trials to be a farce and could not condone the use of spectral evidence in court to sent individuals to their deaths. However, just because the people were afraid and because many of them had personal motivations to hurt the individuals accused of witchcraft; the process went on unchecked. Perhaps the ones who died were better off since many more had to suffer being put in prison as their families languished for months waiting for their release (Linder, 2008). Over the years, the impact of the sense of shame, the sense of wonder and even a sense of dread associated with the trials has remained strong in American culture. While the trials have been lampooned and even used as the basis of satire by some artists, many have also taken a more serious look at them to understand what can happen when mass hysteria and fear takes over a group of people who have little or no understanding of such matters (Linder, 2008). In fact, even today such problems remain present in society since today we have a new specter to deal with. The colonial Americans had witches, the Americans in the 50s had to deal with communists and we today have to deal with terrorists. Undoubtedly, terrorism and the safety of America are much more real in terms of security concerns as compared to witchcraft but we have to be careful when

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The emergency management plan Case Study Example | Topics and Well Written Essays - 1000 words

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Cultural Perspectives on Vaccination Essay Example for Free

Cultural Perspectives on Vaccination Essay The debate is led by anti-vaccinators who oppose vaccinations on ethical, political, religious and medical safety grounds. On the other hand, pro-vaccinators argue that the health benefits of vaccines outweigh the very few adverse effects that they have, and that vaccines have been largely advantageous to public health. Main points of contention: Pro-vaccinators (usually health care specialists, microbiologists, governments, pharmaceutical companies) Vaccinations are an effective and cost-saving tool for disease prevention. Positive externality attached to the use of vaccinations – overall public health is positively affected Side-effects are infrequent and the most common ones are minor. Anti-vaccinators (some conservative Islamic and Christian groups, usually libertarians and victims of public panic) Vaccines are ineffective and are used to generate profits for Big Pharma. Mandatory vaccinations interfere with individual and religious freedoms. Vaccines have severe side-effects and can trigger brain disorders. Points in favor of vaccines The effectiveness of vaccines has been globally verified.  Scientific research confirms the efficiency of all vaccines administered to the public, including the vaccines for measles1, influenza2 and pneumococcal disease3, 4. Protection against seasonal flu, chicken pox, cervical cancer, whooping cough, among other diseases5 Vaccines led to the eradication of small pox6. Global reduction of polio (number of cases has shrunk by over 99% since 1988)7, measles (deaths have reduced by 78%)8, tetanus (92% reduction in global cases since 1980s)9 Most side effects caused by vaccines are minor, such as low-grade fever10. In the US, vaccines are introduced to the public after years of thorough testing and are monitored closely after10. Points against vaccines and rebuttals Vaccines are a ploy by Big Pharma to generate profits by marketing needless vaccines. All companies are motivated by profits, including McDonalds and Apple Inc. Pharmaceutical companies are encouraged by public authorities  toward the production of vaccines due to the resultant overall public health savings, despite the following: Medicines for chronic diseases are more profitable. Production of vaccines is a high-risk venture since it involves huge capital investment for research. Moreover, vaccine production, safety and marketing activities are tightly controlled by authorities11. Foreign governments repeatedly push for lower costs. Although the vaccine industry has grown multifold over the past years and is generally profitable, pharmaceutical companies should not be blamed for misdirection when the health advantages of vaccines have been verified by academia and are widely acknowledged. Exemptions on religious and philosophical basis should be permitted. The religious and philosophical views of a group can be overlooked to protect the health of an entire population, since unvaccinated people create a level of risk for themselves and for the rest of the population12. The Netherlands is at risk of a measles outbreak in the orthodox Protestant group, and the consequent transmission of measles to the general population, as shown by a recent study13. Mandatory vaccines infringe upon individual freedoms. Vaccines directly affect the well-being of the people around, and are thus, not as private a decision as one would assume. Positive externalities are usually ignored by people while making decisions. Some people claim that taxes are unconstitutional. But taxes, like vaccines, are a mutual responsibility and work for the common good. Vaccinations lead to life-threatening side effects. The most common side effects of vaccinations are minor, like low-grade fever or soreness near the injection site10. Scientific research has disproved the popular claims that vaccines cause SIDS14 or brain disorders like autism15, 16. The chances of complications from diseases are much higher than the chances of complications from vaccines. Thimerosal, a preservative used in vaccines, and the MMR vaccine cause autism. Research shows no cause-and-effect relationship between autism and thimerosal17, or autism and  the usage of MMR vaccine15, 16. The usage of thimerosal has only minor side-effects, like swelling near the injection site18, and the most common side effect due to the administration of the MMR vaccine is low-grade fever10. Thimerosal was taken out of vaccines for children in 2001 only as a preemptive measure. Even then, autism rates have only grown18. Nearly all scientists whose researches concluded a positive correlation between vaccines and autism retracted their researches. Vaccines must be repeated and do not provide long-lasting protection. One size neither fits all humans nor all diseases. MMR vaccination does, in most cases, provide life-long protection. Other viruses mutate fast and immunizations must be renewed to fight the virus. Repetitive vaccinations are a small cost to pay in the face of deadly diseases. Even vaccinated children might contract diseases. Vaccinations are 90-99% effective in preventing diseases among children19. These diseases generally manifest with milder symptoms and less severe complications. Some children do not respond to vaccines and some are not immunized due to compromised immune systems or allergies. Herd immunity must be achieved in order to protect the unimmunized population. Whooping cough epidemic despite the availability of vaccinations Effectiveness of vaccine relies on herd immunity Vaccination rates have been dropping due to anti-vaccination movements and the subsequent public panic. Exemptions against vaccines have doubled since 199720.  States which make exemptions easily available to parents have more cases21. Most cases of whooping cough are among infants too young to be vaccinated. Highly-publicized cases of brain damage alleged to have been caused by the whooping cough vaccine created public panic in Great Britain which caused a drop in immunization rates and thus, epidemics of the disease22, 23. Most complications reported were not associated with the vaccination22. Better hygiene and sanitation in the recent years is the reason for the falling rates of diseases. Better hygiene does prevent the spread of diseases. However, disease-causing germs stick around, sometimes in our bodies. They can also be spread by means such as sexual contact or sneezing, and vaccinations teach our bodies how to fight diseases once the germs attack our bodies. Measles, like other diseases, saw a permanent drop in 1962, after its vaccine was licensed24. Evidently, vaccines have a direct impact on disease control. The cases of haemophilus influenzae in children started declining a few years ago, since the introduction of the vaccine for children, while the levels of sanitation and hygiene have been practically unchanged since 199023. The number of global cases for vaccine-preventable diseases has been dwindling as the vaccinated population has been growing. India is polio-free now due to country-wide vaccination efforts (in modern times) to eradicate the disease25. Some doctors and scientists stand against vaccination. A vast majority of doctors, including medical experts at CDC, WHO as well as non-governmental organizations like the Bill and Melinda Gates Foundation, support the administration of vaccines. It is important to consider the religious and philosophical views of these doctors. Sometimes, financial gains might be involved26. Combination vaccinations overburden the immune systems of babies. Children, in fact, receive fewer antigens today than they did in the past. There is no evidence to support this hypothesis.  Combination vaccinations simply reduce the number of vaccines administered to babies.

The queer Experience in Popular Culture Essay Example for Free

The queer Experience in Popular Culture Essay According to Gordon Lynch (2005), arriving at a concrete and solid definition of popular culture is filled with a certain degree of complexities or difficulties (p. 1). This particular concept has been often a topic of various heated debates and arguments in many academic discourses and scholarly analyses. Whenever popular culture becomes the center of attraction, the mere definition of the term seems to instigate tons of both criticisms and skepticisms alike. Lynch (2005) explained that this seemingly antagonistic issues of popular culture stems from the fact that different fields of expertise have their own interpretations and understanding of the matter (p. 1). This situation implies two things. First, either popular culture is too broad—broad in the sense that it covers a wide array of issues and topics that creating a more specific definition seems to be way too impossible. On the other hand, it can be also argued that popular culture, is indeed an abstract idea that is capable of touching every field or domain , thus a concrete definition is prone to being misinterpreted as something that denotes exclusivity and power struggle. But then again, if one has to take a closer look, the problems that popular culture experience can be attributed to the fact that popular and culture imply two major complex ideas and concepts. Once and for all, culture is widespread. It embodies different facets of life and various ideological beliefs and opinions. In the meantime, identifying the objects or personalities or establishing criteria for an object or an individual to be categorized as popular is also beset with difficulties. Once and for all, there are instances wherein popularity is achieved simply because it is embedded in one’s culture. However, this situation cannot be really understood within the context of popular culture. There are also instances wherein a certain object, symbol, or value has nothing to do with culture yet popular. This situation cannot be also seen as a manifestation of popular culture. Indeed the seemingly encompassing and abstract nature of popular culture makes it hard for one to understand the whole matter in just one sitting. But this does not necessarily mean that the matter should be immediately dismissed as something that is of less importance. Although popular culture is responsible for the continuous clash of ideas and beliefs, it cannot be denied that such is too influential that eliminating it within academic discourses can be seen as a total disrespect for the matter. Popular culture tends to affect the manners and behaviors of many individuals. In recent years, it is apparent that popular culture did not only influence the lives of many—to a certain extent, it seems that popular culture has also dictated the ways wherein mankind expresses its existence and social contribution. Browne and Fishwick (1988) described that popular culture is considered as the so-called â€Å"lifeblood of one’s existence and way of life (p. 1). † This one leads to the conclusion that popular culture pertains to the socially-relevant practices and values that man acquired, practiced and readily shared. As Browne and Fishwick (1988) explained, popular culture is mainly comprised of the daily practices and routines that an individual goes through (p. 1). In addition to that, popular culture also echoes, even the nitty-gritty sentiments of an individual (Browne Fishwick 1988, p. 1). Given this situation at hand, if popular culture tends to act as the voice of each and every community, then it would not come as a surprise if issues regarding sexuality and preferences are also articulated by popular culture. Sexuality and sexual preferences is a way of life. It is also the lifeblood of one’s existence and to top it all, it is something that should be readily expressed and manifested. One cannot also deny that both sexuality and sexual preferences are also influential. However, due to certain norms and conventions that society has established, there are certain aspects of sexuality and sexual preferences that are still considered as taboo or not worthy to be discussed, moreso, to be expressed in public. This scenario is most especially true as for the case of queers who have to hide their true identities in utmost secrecy to avoid the scrutiny of a judgmental public. This dilemma is very much manifested in traditional and conservative communities or social settings. This is where popular culture comes into place. Through popular culture, the conservatism and judgment that is rendered towards queers is slowly transformed into ultimate tolerance. Take note that the term â€Å"tolerance† instead of absolute â€Å"acceptance† is used in this case. Tolerance and acceptance are different from each other. Yet, there are many instances wherein the two are interchangeably understood and interpreted by many. This discussion will provide insights on how popular culture is able to permeate the tolerance of lesbian, gay, bisexual and transgender expression. To enrich this study, the focus will revolve around Asian communities wherein popular culture is instrumental in the tolerance, rather than acceptance of various queer expressions. Chinese Cinema and Popular Culture Sigley and Jeffreys (1999) elucidated that topics regarding sexuality in China is still viewed differently (p. 51). To many, sex cannot be considered as something sacred. Tackling these matters tend to go beyond the borders of ethics and morality (Sigley Jeffreys 1999, p. 1). Moreover, mass media, which often perceived as the institution responsible for the educating the public and knowledge dissemination, is often blinded by the unconscious fear to discuss this matter (Sigleys Jeffreys 1999, p. 52). Based from this, it seems that China tends to shy away from discussing sexually-related issues and topics primarily because its cultural orientation requires a private manner of addressing these concerns. If sex, in its simplest context tends to raise eyebrows for many critics, then it would not come as a surprise if queer topics are most likely to be seen on the peripheral side. If sex between heterosexuals cannot be openly discussed by China’s mass media, then more prohibitions is expected to emanate as for the case of many queers. However, although China’s mass media has remained quiet and reserved regarding this matter, there is already the attempt to touch these issues and eventually present it into the public’s eyes. Although this may not be thoroughly expressed and given full attention in news organizations or programs, other forms of mass media, such as film for example, played an important role in presenting and proliferating queer themes. This has led Yang (1999) to the contention that China is yet, one of the prominent hodge-podges wherein explorations of the queer life and concept of reality can be accomplished (p. 338). Yang (1999) shared that films such as those of Wong Kar Wai’s Happy Together and Stanly Kwan’s Yang and Yin: Gender in the Chinese Cinema, have been consistent attempts to showcase the homosexual experience and lifestyle (p. 338). Slowly, but surely, these films have the capacity to destroy the cultural barriers and conventions that are often attributed to many queers. It has been often said that films present a specific portion of reality, which are often ignored and taken for granted by many viewers or audiences. Films are usually described as symbols or reflection of reality. The existence of queers and their corresponding lifestyles are the ones that are often taken to the side and are voluntarily taken out of the picture. These realities are then depicted into the movies that are focusing on these particular issues. On the other hand, it cannot be also denied that films are often considered as part of popular culture. Thus, through these aspect, what was once perceived or viewed as taboo or even explicit for that matter now have the chance of being expressed. However, although films greatly contributes into the gradual acceptance of queer culture in China, Berry (2000) explained that the societal conventions are still pretty much apparent as queers, to be more specific, gays are often depicted and portrayed as individuals who are often subject to sadness due to the lack of a loyal and faithful partner vis a vis companion (p. 187). Solitary moments in Chinese cinemas are also coupled with the enduring process of waiting for the â€Å"right one† to eventually come (Berry 2000, p. 187). Although this stance seem to imply a certain degree of queer stereotyping in Chinese cinema, the solitary experiences, the search for loyalty and companionship as well as the longing for the perfect partner, are indeed a portion of realities that are existent in many queers—not only to gays per se, but also to lesbians, bisexuals and transgenders. Thus, presenting these into movies, somehow, the conservatism that is within conservative communities, are challenged and put into a serious test. Manga and Japanese homosexuality Whenever one mentions the terms manga and anime, it all boils down to one country, Japan. Aside from Japan’s highly technological skills and capabilities, mangas also brings an intense degree of popularity in the nation. Almost every Japanese is aware of these materials. But then again, one should always bear in mind that mangas has literally taken the world by storm. Mangas’ acceptance cannot be solely attributed to their abilities to provide pleasure and entertainment. More than anything else, these have been the heralds of the Japanese experience. The recognition and acceptance that mangas received, made Dooley and Heller to (2005) a conclusion that such are perpetuators of popular cultures in Japan (146). But as the years passed by, mangas is no longer constricted or imposed to place heavy emphasis on romantic and adventure themes. As time goes by, mangas has also dabbled into the arena of discussing queer issues. McLelland (2005) implied that the growth of queer communities in Japan was triggered by certain channels of communication, print media, to be more specific (p. 0). McLelland (2005) stressed that during the times wherein internet connections were still not widely used by the public, it was print media that eventually provided a platform for â€Å"queer social networking (p. 10). From it here it can be seen that the incorporation of queer themes and issues in mangas are not purely coincidental. It is rather expected. Perhaps, the only thing that is coincidental in this aspect is that manga happens to be a symbolic manifestation of Japan’s popular culture. Since queer related topics are easily incorporated to managas, one can lead into the assumption that homosexuality is readily accepted in Japan. Once and for all, mangas are cultural products that are patronized and appreciated not only by Japanese, but also by individuals from the other side of the world. However, bringing it, within the Japanese context, if mangas can be easily distributed and at the same time, if such is a manifestation of Japanese culture, then mangas generally provide a platform wherein queers can express their beliefs and sentiments. As a matter of fact, it can be argued that the easy articulation of queer themes in mangas tend to purport that queers are warmly accepted in this country. The truth of the matter is, many queers have decided to create their own mangas and eventually share their experiences through this medium and eventually disseminate and share it to the public (Berry, Martin Hue 2003, p. 70). Accepted or Tolerated? While popular culture has managed to present the queer experience via films and print media, one cannot really see it as a form of acceptance. As mentioned earlier, popular culture as an instrument for queers to voice out their views and opinions has not managed to produce total queer acceptance within the community. Take for example in China, one thing that contributes to the failure of popular culture to achieve queer acceptance stems from the fact that (homosexuality) is seen as an influence of the West (Chua 1993, p. 38). Therefore, it can be seen that there is already a socially-constructed denial of the queer’s existence. Even though, there are little facts to support the contentions that homosexuality is a western influence, still this cultural belief is still engraved into the minds of many. Popular culture then finds it too difficult to go against such a strong and seemingly invincible system of belief. In the meantime, Chinese cinema’s portrayals and depictions of queers as individuals longing for the ideal relationship and partner that will last for the rest of time comes really short in presenting the authentic and genuine queer experience (Berry 2000, p. 87). What happens is that queer stereotypes are instead made and from time to time, the directors or producers of such movies are having a hard time in going against the country’s cultural convictions. Once and for all, there is a question of why several Chinese films often focus on the lonely side of the queer experience. This further places queer communities in a much derogatory stance. There is still the attempt to reconcile with the overall perspectives regarding queers. If there is already acceptance, then Chinese cinema should strive to stay-away from presenting how queers are prone to loosing their perfect partners and wait for another one. Although, this is something common in homosexual relationships, this area alone is just a portion of the colorful yet highly challenging queer life. In the meantime, as for the case of mangas, queers and popular culture in Japan, Grossman (2000) shared that while there are instances wherein mangas may present sexually related content, it is still permissible—not because it is already accepted (p. 41). Rather it is more on the fact that queer themes and even explicit content are highly tolerated since it simply inhibits â€Å"fantasies (Grossman 2000, p. 141). † Inhibiting fantasies are tolerated by the actual act is still not permissible (Grossman 2000, p. 141). Grossman (2000) further discussed that the market potential of mangas is seen from a positive light and it is tolerated with the intention to lessen the curiosity of the public and therefore lessen the occurrence of queer-related incidents and sex crimes (p. 141). Conclusion Popular culture is indeed influential and somehow it was able to give a voice to many queers. However, due to strong cultural orientations which often contradicts the queer existence, the matter is simply tolerated and still on the process of being readily accepted. Popular culture, in its articulation of queer themes and experiences is still at its infancy and insinuating to totally accept these matters still have a long way to go. As of the moment, the only thing that popular culture can offer to queers is tolerance. Acceptance can be only determined by time.

Advantages And Disadvantages Of Remote Working System Computer Science Essay

Advantages And Disadvantages Of Remote Working System Computer Science Essay Introduction The following report will be based on providing potential requirements of the basic scenario and a through explanation of advantages and disadvantages of updating the current network of the EERP Company. By analysing the key requirements it is clearly explained that the EERP is having two major employee classes as senior staff and junior staff. Junior staff works in the office which mean that they worked on fixed places. This will result them to have personal computers with LAN (Local Area Network) connectivity. Depending on the budget this can vary up to a wireless network by implementing wireless interfacing cards to their personal computers and having WIFI zones on the working area. Senior staff on the other hand, they work in their homes. From their they should be able to do various kind of functionalities E.g. deliver companys message via ProwerPoint presentations, compile, print documents, perform quires on existing customer records, send and receive email and complete sales orders. These functionalities should be done online or through the WIFI network at the company. It is clarified that the management has decided to equip the senior staff with a mixture of wireless enabled portable notebook PCs, printers and Personal Digital Assistants (PDAs) to get the maximum benefits out of their senior staff. To achieve these desired functionalities it is a must to implement a Virtual Private Network (VPN) between the senior staff and the Office network of the office. This will result them to connect their office even though they are remotely connected. They will be able to perform same kind of functionality which they perform in their office environment. When they work in the office they can connect to the WIFI network without connecting to the VPN. This network architecture will provide the senior member to be connected on their office network every time whenever they want. When it comes to wireless connectivity or VPN, security is a must. It is important to implement necessary security methods and protocols to connect any of the networks. With respect to the following requirements no of WIFI and VPN users should me defined and should be expandable with the growth of the company. Depending on the budget, suitable VPN provider should be selected. With the basic understanding of the key requirements it will be possible to prepare a network system with remote networking functionality. Advantages and Disadvantages of having remote working system Pros, It will be easier to implement and maintain. High reliability and availability. Network cabling will be reduced. Employees can stand on their work place dynamically without staying on one location Can easily configure the security of the network. Can easily divide departments as blocks of network access points. Expansion of the network will be easier than a Traditional wired LAN. Cons, Network connectivity will be lower than a wired LAN. VPN implementation will be expensive. Company should be facing a higher security threat when implementing a VPN. In order to enhance the security, firewalls and other third party tools have to be purchased. Employees should be well trained to use VPNs and wireless networks to avoid any sort of interruptions. Failure of a VPN will result some employees to not to cooperate with the company until it is fixed. Benefits to the company This system will allow employees to work interactively without any disruption. Employees who work on the office will have the WIFI connectivity. This means that they can work on their office desk as well as when they are not. They might be interacting with the customers even so they can connect with the network. They can share information, print documents and can query the information database. This will result interactive and efficient communication with their customers. Senior staff on the other hand can work in home as they are in the office. Because of the VPN they will gain almost all of the network capabilities as they are in the office. Email services, document sharing, print documents and even online presentation facilities can be provided. When they visit the office they can connect to the wireless network using their wireless enabled notebooks and PDAs. As a result they can have almost the same functionalities. Estimate of the cost NETWORK CABLE; BULK CABLE 1000M UNSHIELDED TWISTED PAIR (UTP) =  £ 315 RJ45 Connector Network Cable CAT5 Crimp Ends Plug x 100 =  £ 4.98 D-Link DES-1024D 24-Port 10/100Mbps Network Switch = £ 61.00 D-Link DSL-2640R Wireless G ADSL2 Wireless router DSL 802.11b/g =  £ 56.00 NETGEAR ProSafe Quad WAN Gigabit SSL VPN Firewall SRX5308 Router =  £ 254.00 RJ45 Network Crimp Tool =  £ 20.00 Mercury Multi Network Tester =  £ 7.00 Test UM WP150 Wi Net Window Wireless Analyzer =  £150.00 Task 2. Set up a network with 2 wireless nodes and 1 wired node. 192.168.248.57 -Default GatewayC:UserssonyDesktopNWinternet.jpgC:UserssonyDesktopNWwifi signalC:UserssonyDesktopNWLinksys-router-wireless.jpg C:UserssonyDesktopNWlaptop.jpg 192.168.248.61 C:UserssonyDesktopNWpc.jpgC:UserssonyDesktopNWwifi signalC:UserssonyDesktopNWlaptop.jpg 192.168.248.62 192.168.248.63 Wireless Router A router is a device that forwards data packets along networks. A router is connected to at least two networks, commonly two LANs or WANs or a LAN and its ISPs network. Routers are located at gateways, the places where two or more networks connect, and are the critical device that keeps data flowing between networks and keeps the networks connected to the Internet. When data is sent between locations on one network or from one network to a second network the data is always seen and directed to the correct location by the router. The router accomplishes this by using headers and forwarding tables to determine the best path for forwarding the data packets, and they also use protocols such as ICMP to communicate with each other and configure the best route between any two hosts. Network Interfacing Card A network interface card, more commonly referred to as a NIC, is a device that allows computers to be joined together in a LAN, or local area network. Networked computers communicate with each other using a given protocol or agreed-upon language for transmitting data packets between the different machines, known as nodes. The network interface card acts as the liaison for the machine to both send and receive data on the LAN. The most common language or protocol for LANs is Ethernet, sometimes referred to as IEEE 802.3. A lesser-used protocol is Token Ring. When building a LAN, a network interface card must be installed in each computer on the network and all NICs in the network must be of the same architecture. For example, all must either be Ethernet cards, Token Ring cards, or an alternate technology. WIFI Cards A wireless network adapter allows a computing device to join a wireless LAN. Wireless network adapters contain a built-in radio transmitter and receiver. Each adapter supports one or more of the 802.11a, 802.11b, or 802.11g Wi-Fi standards. Wireless network adapters also exist in several different form factors. Traditional PCIwireless adapters are add-in cards designed for installation inside a desktop computer having a PCI bus. USB wireless adapters connect to the external USB port of a computer. Finally, so-called PC Card or PCMCIA wireless adapters insert into a narrow open bay on a notebook computer. One example of a PC Card wireless adapter, the Linksys WPC54G (compare prices) is shown above. Each type of wireless network adapter is small, generally less than 6 inches (0.15 m) long. Each provides equivalent wireless capability according to the Wi-Fi standard it supports. Some notebook computers are now manufactured with bulit-in wireless networking. Small chips inside the computer provide the equivalent functions of a network adapter. These computers obviously do not require separate installation of a separate wireless network adapter. Setting up wireless Connectivity I have used TP_LINK as the router. To connect to the router I have used on of the LAN ports. At the browser type http://192.168.1.1/ to view the login page. Default username and password admin and admin are used to log in. If successful administration page of the router will be loaded. Navigate to the Wireless -> Wireless Settings. Change the security Type to WPA-PSK/WPA2 -PSK Change the PSK PassPhrase (Password) : pillarboxx Save and reboot. C:UserssonyDesktopNWTP_Link_Login.jpg C:UserssonyDesktopNWWap.jpg Setting up Default Gateway and DHCP Server Please use previously mentioned steps to login to the router. Navigate to the Advanced Settings -> DHCP -> DHCP Settings. Enable the DHCP server Change the start IP address to : 192.168.248.60 Change the End IP address to : 192.168.248.90 Change the default gateway address to : 192.168.248.57 Save and reboot.C:UserssonyDesktopNWDHCP configuration.jpg Change the SSID of the Wireless access point Please use previously mentioned steps to login to the router. Navigate to the Wireless -> Wireless Settings. Change SSID : PTLSJC Save and reboot.C:UserssonyDesktopNWSSID.jpg 1. View Available Wireless screen C:UserssonyDesktopNWNEW SSID.jpg 2. List of connected nodes from the router Please use previously mentioned steps to login to the router. Navigate to the Advanced Settings -> IP and MAC Binding -> ARP List C:UserssonyDesktopNWconnected nodes.jpg This will show all the connected devices together with their IP and MAC Addresses. Two of the devices are connected via wireless 192.168.248.61, 192.168.248.63. and the other device is connected via LAN connection 192.168.248.62. NOTE: All the above mentioned configurations are explained in detail at each step. Copy a file from a shared folder from machine 1 to machine 2 via wireless network Go to My Computer. Select the Network from the Left menu. This will allow you to view all the available devices. Select the device which the file wants to be copied. (Figure 2) It will appear all the available shared devices and folders of that device. (Figure 2) Navigate to a shared folder. Figure 1Paste the file which wants to be copied.C:UserssonyDesktopNWfile Sharing 2.jpg C:UserssonyDesktopNWfile Sharing.png Figure 2 Figure 3C:UserssonyDesktopNWfile Sharing 3.jpg Task 3. Link Systems D-Link Xtreme N Gigabit Router DIR-655 Wireless router Price:  £ 60.00 Features: gaming and phone calling (VoIP) experience. Ideal for streaming HD video or streaming multiple applications simultaneously. Dual active firewall protection (SPI NAT) helps block malicious attacks on networks from the Internet. Includes the latest wireless security (WEP, WPA WPA2) features that help prevent unauthorized access. Virtually no wireless dead spots. Advanced Parental Controls. Supports Windows ® Connect Now (WCN) for easy wireless setup. Automatic Firmware Update Notification. E-mail Notification for Triggered Events. Integrated Wireless Security Wizard. Removable Antennas for Flexible Installation Options. Wall Mountable to Save Desk Space. Linksys E1000 Wireless-N Router Wireless router Price:  £49.00 Features: 128-bit encryption, NAT support, State full Packet Inspection (SPI), MAC address filtering, VPN pass through, firmware upgradable, wall mountable, Wi-Fi Protectedà ¢Ã¢â€š ¬Ã‚ ¦ Linksys E1000 Wireless-N Router is best for basic wireless Internet usage and home office productivity. Speed up your wireless network with a router that connects your computer, game consoles and other Wi-Fi devices at high transfer speed. Cisco Connect software has three simple steps to get you set up and your secure wireless network is ready to go. A streamlined user interface allows you to choose from simple to advanced settings with no hassle. Keep Wi-Fi freeloaders and Internet threats at bay with WPA/WPA2 security settings. ETGEAR Wireless-N Router WNR2000 Wireless router Price:  £ 33.00 Features: Firewall protection, NAT support, State full Packet Inspection (SPI), DoS attack prevention, Intrusion Detection System (IDS), Simple and secure way to share your high-speed Internet connection Push N Connect securely connects at the touch of a button Wireless-N technology delivers exceptional range and speed Easy setup with Smart Wizard Installation CD Push N Connect using Wi-Fi Protected Setup (WPS) allows you to add computers to the network quickly and securely . Automatically checks and upgrades to latest software for optimal performance Internal antennas deliver maximum performance and range Convenient on / off switch helps save energy when not in use Energy Star-compliant efficient power supply Packaging manufactured with at least 80% recycled materials