Monday, December 23, 2013

Legal vs. linguistical puralism : a misunderstood duality?

We live in a world with many legal systems and languages that interact continuously,  either in space or time.
Regarding the latter, many chronological interactions can be described as ‘legal transplant’ in between national laws. 
In this way, sometimes, entire legal structures are borrowed from a foreign country. 
That was the case for the Swiss Code of Obligations, which Turkey has adopted in the 30s. In the beginning, at least, the Turkish judges may have interpreted a concept by examining its meaning in Swiss law, which implied the use of comparison between Turkish and Swiss legal systems.
Another interesting case, this time of ‘synthetic’ transplant relates to the Civil Code of Ethiopia, which has been designed by great comparative scholar, René David,  who took into account rules or institutions from France, Italy, Greece, Switzerland, Israel, etc. The Ethiopian judge, willing to clarify, an obscure term in the new code may have used multiple comparison between his own system and the origin of each specific disposition.
But such ‘legal transplant’ may also occur between legal systems of a different kind. 
For example International Law may borrow concepts and rules from national law. 
The international legal scholars have played a role in this transposition since they were fed of their national legal culture. 
More recently, in many disputes of highly technical issues, the International Courts or the Arbitrators have resorted to long-established institutions from private national laws.
In the case of conventional International Law it was the language of treaties which seemed to provide the solution. Given the absence of a specific language of International Law, different from States' languages, the international rules were necessarily written ​​in one national language. Through these vehicular languages, the legal concepts and institutions of national laws passed to International Law.
In the last 70 years, the emergence of multilingual treaties has added complexity to the whole process. 
If only one language version of the Treaty's text is authentic (the other versions being just its official translations), the interpreter may use only that official version. Therefore the interpretation of multilingual legal texts was similar to the interpretation of a monolingual text.
More interesting was the second case, where all linguistic versions of a Treaty was equally authentic. In this case, the interpreter might have to use the multilingual systems of interpretation codified in article 33 of The 1969 Vienna Convention on the Law of Treaties.
The European Union had both situations.
If this brief presentation catches the attention of the reader, he may find a still evolving draft of Multijuralism and interpretative comparison by Judge of International Organizations: European Union case at http://ssrn.com/abstract=2342090.

Friday, November 22, 2013

European Union's impact on private legal systems of Member States - a conference at Montreal on May 2010

This is a hint of a presentation, made in French, at a  conference held in Montreal in May 2010. 
All the considerations are still relevant.  
A small claims Regulation (No. 861/2007 of 11 July 2007) was adopted by the EU to facilitate cross-border litigators involving small debts. 

Some European states (Germany, for example) had fast 'ad hoc' procedures for small claims in situations other than cross-border litigation. It was not the case in Romania. 

However, a New Code of Civil Procedure has introduced a national (Romanian) small claim procedure very similar to the European one. It will ensure that Romanian litigators have the advantages granted by European regulation in cross-border issues. 

This was an example when the European Union acted as a modernizing force about a national subject ( Civil Procedure belonging to member states). 
For some other details, one can refer to the paper at SSRN: http://ssrn.com/abstract=2266399

Saturday, August 10, 2013

Cyber attacks and International law of armed conflicts from a “jus ad bellum” perspective - a glimpse of a recently published article


In last July, my article about Cyber attacks and International law of armed conflicts; a “jus ad Bellum” perspective was published in the Journal of International Commercial Law and Technology, Vol.8,  No.3 (July 2013), pp. 179-189.  It can be downloaded at SSRN http://ssrn.com/abstract=2011479.
The article is based on a presentation I made in 2009 at Winchester in the UK. It highlights the legal problems of cyber attacks from a ‘jus ad Bellum’ perspective (rules regarding the justification for entering a war). Today no international instrument whatsoever covers such cyber-attacks, and the analogies with other global solutions must be used accordingly.
The developments were taken from the leading powers' doctrine or practice (in the US, Russia, and China). 
At the analytical-legal level, the starting points are the provisions for the use of (armed) "force" under Article 2(4) and the “armed attack” under Article 51 of the United Nations Charter.  
There were inherent difficulties for characterizing cyberattacks under the actual framework of armed conflicts. Hence, the qualification of a cyber attack either as the use of “armed force” or as “armed attack” has employed the multi-criteria threshold developed by Michael Schmitt. Further developments concerned the capacity of International law concepts to apprehend other cyber-warfare characteristics. 
On the practical side, major nation-states with significant kinetic and cyberattacks capabilities (as the US, Russia, and China) seem aware of global risks. The real cyber-attacks show the States acting hidden behind private actors (in the case of Russia or China) or using highly specialized military forces (in the US). Nobody is willing to escalate computer network attacks to match the “armed attack” threshold (of Schmitt’s criteria) and risk triggering a legitimate defense and eventually a full-blown war. 
Finally, one might qualify these cyber uses as “cyber warfare” just as a metaphor. Under the actual international regulation, most cyber acts that can be (loosely) linked to a State belong to cyber exploitation, a new secret domain that increases States' reach.
One can reasonably hope that States with cyber facilities will achieve by such means their political aims, and they will stop the riskier developments toward real ‘cyber warfare.’ 



The “Jurisprudence of Interests” from Germany - a forgotten ancestor to the balance of proportionality in legal reasoning

I have published an article about Interessenjurisprudenz in Germany (available at http://ssrn.com/abstract=2011479).
The paper focuses on a methodological approach based on the balance of proportionality (rationality of conflicting consideration), which is our time's dominant legal reasoning.
The significant thinkers responsible for creating it were Oliver Wendell Holmes, in the United States, René Demogue, in France, and Philipp von Heck, in Germany.
There were specific influences between Continental Europe and the United States, which seem to have been forgotten today. While the technique of conflicting considerations has an abundant European genealogy, it has received its most elaborate form in the United States between 1940 and 1970.
In the early fifties, the Constitutional Court of Germany adopted this technique too. More recently, the European authorities such as the European Court of Justice or the European Court of Human Rights took proportionality as a usual instrument.

The first part of the paper evaluates Interessenjurisprudenz within the great methodological debate (Methodenstreit) on the role of judge, which emerged at the beginning of the twentieth century in Germany. 
The ancient conceptual methodology (Begriffsjurisprudenz) came under siege from methodological orientations like the “Free Law School” and the “School of Objective Interpretation.” The most effective challenger and winner of the debate was the Interessenjurisprudenz, developed by Von Heck at Tübingen. 

The second part of the paper articulates the main contributions and the specific vision of Interessenjurisprudentz regarding the judge's method.

The last part briefly assesses this school's actual significance for German legal space and other legal cultures (Anglo-Saxon and French).

Tuesday, January 8, 2013

The relativity of inner time...




1. Zen and “Nowas time
In his famous book[1], Alan Watts said that time is a hallucination, and there is only today, and there will never be anything except today. In the so-called "awakening to the instant" in Zen, one can see that past and future cannot be infinite but that the reverse is the truth - "it is rather the past and future which are the fleeting illusions, and the present which is eternally real"[2]
In the following pages, we will unveil, on a step by step approach, the genuine truth of this Zen intuition with arguments taken from the scientific literature about time perception.

2. Levels of time perception
From a modern science perspective, we can dissociate psychological time as linked but essentially different from physical time.
The psychological time or time perception is “…a field of study within psychology and neuroscience. It refers to the sense of time, which differs from other senses since time cannot be directly perceived but must be reconstructed by the brain. Humans can perceive relatively short periods, in the order of milliseconds, and also durations that are a significant fraction of a lifetime. Human perception of duration is subjective and variable”[3].
The physical time of everyday life or physical science is the clockwork time measured by mechanisms moving in circles or repeating the same regular movements.
Psychological time is linked to physical time but might be disjointed from it in certain situations. There are thresholds where this separation is more important: time perception related to age, time perception in extreme emotions associated with sudden dangers, time perception in inner states (such as dreams), near-death experience, trance, or 'mystical states.'

A) At the first level, the time perception is linked to the lifelong pathway (aging)
A child's day from 09h0 to 15h30 is like a 20-hour day for an adult, according to Steve Taylor, the author of the book Making Time[4]. He developed an idea based on the perceptual theory of the American psychologist William James. The psychological time would relate to how much "information" one is taking from the world around. 
"Children are experiencing everything for the first time. All their experiences are new. They also have an amazingly intense vision of the world, an amazing fresh perception. Children are incredibly awake to the world around us, so time passes slowly for them."[5]
 “One day to an eleven-year-old would be approximately 1/4,000 of their life, while one day to a 55-year-old would be approximately 1/20,000 of their life. This is perhaps why a day would appear much longer to a young child than to an adult. In an experiment comparing a group of subjects aged between 19 and 24 and a group between 60 and 80 asked to estimate when they thought 3 minutes had passed, it was found that the younger group's estimate was on average 3 minutes and 3 seconds. In comparison, the older group averaged 3 minutes and 40 seconds, indicating a change in the perception of time with age” [6].

B) There is another level where the split between the two realms of time, physical and psychological, is even more apparent. 
One can shift out of ordinary consciousness during accidents, and people who experienced them often say that time slowed down (a slow-motion perception)[7]This “slow-motion perception”[8] is a feeling of things seen as moving slowly, in some dangerous situations. To a bystander watching the case (an accident, for example), the time is moving at average speed, but for the individual concerned, time seems to slow down, making them able to think and act faster.
I have personal experience of this kind. Some 20 years ago, a friend of mine and I were being followed by a group of hooligans. They have approached us from behind. I turned my head, and I just saw a punch coming to my face. In that fraction of a second, I had time to think about my next reaction. I was wondering whether I should take or eschew the hit. I decided to take it and lessen in this way, the angry mood of the aggressor. I also had time to choose not to lie down and avoid being hit with the feet. Everything happened in less than a second. From that moment on, I become aware of the psychological time dilatation linked to dangerous situations[9].

A traditional model is trying to explain this mechanism of time perception. When there is an accident or an unexpected event, the brain concentrates more on information processing, and the rate at which it works will go up. Since this rate is increased, the brain perceives a longer time due to full information in the interval.

But are we really processing more information in these seconds when time seems to stretch? Is this like a slow-motion camera in sports that can identify more details of high-speed actions?

A recent experiment by David Eagleman, a neuroscientist, investigated this by making participants free fall onto a net to mimic a frightening situation. Eagleman wanted to find for how long the subjects thought they were experiencing it. He used a hand-held device to measure the speed of visual perception. He found no evidence of increased temporal resolution, in apparent conflict with the fact that participants retrospectively estimated their own fall to last 36% longer than others' falls. Therefore Eagleman considers that time-slowing is a function of recollection, not perception: a richer encoding of memory may cause a salient event to appear retrospectively as if it lasted longer.[10]

One can criticize this arrangement since the clock was not essential in the falling experimenters[11]On the other hand, one can question the relevance of the experiment for our investigation. The perception rate did not change in the condition of stress, but the brain activity did, and the inner time also. The internal perception time slowed considerably to allow the subjects to react. 
We will try by the end of the paper to give a hit of our own interpretation.

C) A step further on the investigation: the world of dreaming and the time perception
I remember a significant experience I had during my military service in a night and day shift watch. There were 4 hours watch, 4 hours of pause, and 4 hours of sleep. After some days of following this cycle, I was utterly exhausted. When I was able to reach the bed, I fall asleep instantly. 
I remember that once I was examining my thoughts while I started laying my head on the pillow (for less than a second). There was an incredible kaleidoscope of images flowing through my mind. And then, the dream came like a speed train (with no passing period from the wake-up state to sleep). For me, it was evident that the brain is working 'inside' at an incredible speed.

Exciting elements are linked to time perception in dreams. When our body sleeps, the time in dreams can last longer than the duration of sleep. That can even create an inner perception of time that lasts weeks or even months.
Some time ago, Schjelderup studied hypnotically induced dreams. He acknowledged in a series of experiences that long spans of real-time may be represented in dreams of a concise duration[12].
Anthony Peake wrote in his book, "Is there life after death?"[13] about "Maury's Dream," where a student entered a 2-hour trance and relived in minute-by-minute detail 20 years of memories from 6 to 26.
The best way to analyze the phenomenon directly is by introspection (which needs the subject's conscious activity). Therefore the time perception in dreams might be accessible within lucid dreams (when the sleeping person is aware that he is dreaming).
A subject tells us about his experience: ”The longest period of time I remember experiencing during a dream occurred within a 30-minute nap wherein the dream state I was consciously aware I was dreaming and just allowed the dream to continue. The passage of time spanned into what felt like two weeks of conscious dreaming. I have had others spanning what seemed like a week and some spanning days”[14].

Another way for investigating time perception in lucid dreaming is by experimental method (external experience).
For example, Stephen LaBerge[15] studied the time differences between the dream and the real world.  Since in REM sleep, the subject's eyes are moving the same way that the dream eyes are moving, he gave the dreamers an eye movement pattern that they had to do once they became lucid. After that, they had to count to 10 and then make the pattern again. 
After reviewing the eye movements, the pattern showed up and then showed up again 10 seconds later, so the dream time was equal to that of the real world. He explained that the dreams seem very long because there are many time skips that we overlook [16].
There is an apparent collision between the interpretation according to the introspection method and the external experiment.
I have a critical position regarding the interpretation provided by LaBerge. He measured a slow lucid dream –a slowing down produced by the experience of moving the eyes in the real world and in the inner dream state (hence the real world was inevitably present). According to our interpretation, when the brain is linked to the outer world, it will slow down to the speed of the processes in the physical world (the inner time is not purely internal, and the brain adapts to constraints and pace of real word).
A rough analogy with computers might be useful. While controlling a natural process, a super-computer must slow down to its external driver (a printer, for example). The brain is doing that regularly because it should be in phase with sensory organs and the world. There is a speed limit of organs, nervous flux, etc. The brain will process with high priority the most important (for survival) process. However, that does not mean that the brain has the same inner ‘speed.’

D) Another threshold: the near-death experiences
A typical near-death experience (NDE) occurs if a person is exposed suddenly to death's threat but then survives. There are reports of four consecutive phases, such as floating out of his/her body, hurrying through dark, empty space, having a life review, and encountering a brilliant white light. Among these phases, the third one, the life review, is the most interesting here[17].
For obvious ethical reasons, the only way to investigate time perception in these situations is by using introspection or 'anamnesis' (remembrance).

3. An interpretation and a tentative explanation

The slowing down, more and more, of inner time in the experiences mentioned above should be linked to brain activity. 
The problem should be contextualized. As a matter of fact, the brain knows much more than it is aware of (its conscious activity is reduced compared to the unconscious one). For example, we memorize without being aware of almost anything that happens in our life. The best proof is the photographic memory of patients who sort out from long comas and remember everything that happened around them during these comas. Also, we know a lot today about the same photographic memory of ‘idiot savants.’
In reality, these phenomena seem to happen under the threshold of conscience. The brain is building-up (based on this exhaustive memory) its own world.
The speed of the biological process is limited, and there is a limitation linked to the pace of happenings in the outer, physical world. When focusing on the external world, the brain functions (at least at the conscious level) at a low speed.
When the brain focuses, more and more, on its own inner world (slow motion, for example-in dangerous situations), there is no (or a reduced) control of the body or motility. Therefore more energy and brainpower are accessible. There is also a reduced connection to the outer world  (which generally would lower its speed).
In the next highest states (dreaming, near-death, and/or mystical states), the brain is in a purely private mode and can function at its full ‘complexity’ and ‘connectivity’ or ‘speed.’
The organisms, the living beings, are part of a ‘middle world’ of infinite complexities [21] in between two other infinities: small infinity-the word of elementary particles and the great infinity-the world of astronomy (galaxies, stars, planets, etc.). In this sense, any life form is an infinity that can reflect both the small and the vast infinity. 
Any living cell is of infinite complexity, and the neuron more than any other living cell. A multi-cellular organism, an organ, and especially the human brain are ‘square infinitely’ complex systems.
The brain is an infinitely complex (hyper-connected) system of infinitely complex cells (the neurons). It acts at the physical level, with inherent biophysical limitations (there are limits for the nervous influx speed, etc.). Still, its infinite complexity and connectivity build upon another complexity (a single neuron can interact with 10.0000 other neurons) make this ‘engine‘ miraculous. The brain's hyper-connectivity allows it to attain something that can be qualified as a gigantic (sometimes nearly infinite) ‘processing speed.’
When it is functioning in a straight inner mode, with almost no connection to the outer world (as in the terminal states, in meditation, in deep dreams, in a trance, and 'mystical states'), the brain is in its own realm and may speed up mental processes. In a second of clockwork time, the mind will ‘process’ trillions of images, states, feelings, ideas. Within the real world, what might take a second will take in the inner world (the realm of Spirit)-an Eternity.


[1] Alan W. Watts The Way of Zen, Vintage, 1989, 256 pages.
[2] Václav Petr has an interesting discussion of the subject at http://www.mprinstitute.org/vaclav/Zen2.htm.
[4] Cf.  Steve Taylor, Making Time Icon Books Ltd, 256 pages.
[5] news.bbc.co.uk/2/hi/uk_news/magazine/6926500.stm.
[7] This shift to this ‘slow motion’ can also be achieved by top sportsmen. “George Best and former basketball player Michael Jordan are among those to have remarked on how time seemed to slow down when they were "in the zone."Cf: http://en.wikipedia.org/wiki/Slow_Motion_Perception. radically

[8]Idem.

[9]On http://www.popsci.com/science/article/2010-03/how-time-flies, the contributor BSTUR1 wrote a plastic description of a similar occurrence: “I had an experience once during a situation of realizing that another vehicle and my car were on a probable collision course, and in a few seconds my mind raced through a learning sequence from drivers education course, better to hit a glancing blow than hit head-on, aim to the right of the oncoming car, better to hit a stationary object than one coming towards you, so I aimed the car towards the shoulder of the road to miss the approaching vehicle.
Then I looked to see a telephone pole on the side of the road and decided that I would instead hit the vehicle causing the accident than hit the telephone pole, so I aimed a little to the left of the pole and to the right of the advancing car, which was crossing the road in front of me.
I threaded that needle, missing the car and the pole by inches, all in the space of a few seconds and a couple of hundred feet of the snow-covered road. If I had even just tapped the brakes, I would have slid straight into the oncoming car.
That experience made me realized that what happens is that your mind races through your life experiences do a data dump, so to speak of your memories, searching for a solution to survive the life-threatening situation. ,
It is your brain's last-ditch effort to save your life. So it isn't necessarily slowing down its perception of time. It is massively speeding up its ability to process memories and make split-milli-second decisions to find a solution to save your life. It is a survival mechanism”.
[10] Stetson C, Fiesta MP, Eagleman DM (2007) Does Time Really Slow Down during a Frightening Event? PLoS ONE 2(12): e1295. DOI:10.1371/journal.pone.0001295
[11] See for example shotgun, the site: http://www.popsci.com/science/article/2010-03/how-time-flies  who considers the experiment as flawed: “It would seem to me, that if you're falling 15 stories, your brain isn't going to devote that extra processing power to a blinking wristwatch while you're plummeting. I would think it would actually distract from it. It seems to me, a much better test would be to place the lights on the ground”.
[12]Schjelderup, H. K. “Time relations in dreams. A preliminary note” Scand. J. Psychol., 1960, I, 6-64.
[14] See the story at http://you-are-dreaming.blogspot.kr/2010/07/dreaming-century-of-time-during-one.html.
[15] See description at http://www.susanblackmore.co.uk/Articles/si91ld.html.
[16]On a discussion at http://www.dreamviews.com/f12/finding-out-real-time-dreams-115166/, Delwind is quoting from Exploring the world of lucid dreaming of Stephen LaBerge: “One of the earliest experiments conducted by my research team tested the traditional notion that the experience of dream time is somehow different from the time in the waking world. We approached the problem of dream time by asking subjects to make an eye movement signal in their lucid dreams, estimate a ten-second interval (by counting one thousand and one, one thousand and two, etc.), and then make another eye movement signal. In all cases, we found time estimates made in lucid dreams were within a few seconds of estimates made in the waking state and likewise quite close to the actual time between signals. From this, we have concluded that in lucid dreams, estimated dream time is very nearly equal to clock time; that is, it takes just as long to do something in a dream as it does to actually do it.
You may be wondering, then, how you could have a dream that seems to last for years or lifetimes. I believe this effect is achieved in dreams by the same stage trick that causes the illusion of the passage of time in the movies or theater. If, on screen, stage, or in a dream, we see someone turning out the light as the clock strikes midnight. After a few moments of darkness, we see him turning off an alarm as the bright morning sun shines through the window. We'll accept (pretend, without being aware that we are acting) that many hours have passed even though we "know" it was only a few seconds.”
[17] “After all this banging and going through this long, dark place, all of my childhood thoughts, my whole entire life was there at the end of this tunnel, just flashing in front of me. It was not exactly in terms of pictures, more in the form of thoughts, I guess. It was just all there at once, I mean, not one thing at a time, blinking on and off, but it was everything, everything at one time...”. Cf.  Moody, R, Life after life, Mockingbird Books, Atlanta, 1975, pp. 69–70.
[18] See Metod Saniga. The geometry of the psychological time, pp 6. This paper may be found at http://www.scribd.com/doc/6458438/GEOMETRY-OF-PSYCHOLOGICAL-TIME. I highly recommend its reading as the best description of time perception in high states.
[19] Coomaraswamy, A.K. Time and Eternity, Atribus Asiae Publishers, Ascona, 1947, p. 110.

[20]http://www.mindreality.com/rapid-perception-slowing-time-down, Rapid Perception - Slowing Time Down, posted by Enoch Tan.

 [21] Teilhard de Chardin, The Human Phenomenon, Brighton: Sussex Academic, 1999.

For a printable version of the above article, one can try to access: