Category Archives: Voices

The State of South African Education: Covid-19 Implosion Brings Good News and Bad News

November 24, 2020
By 25517

How much worse will things get in our education system? Teachers are familiar with the effects of extended periods of downtime, like that during the Covid-19 lockdown. The longer children are out of school, the more difficult it is to get them back into the routine and into the headspace needed for learning.

 

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I have some good news and, unfortunately, some bad news too. Which would you like to hear first? Most people want the bad news first so that they can move on to the good news and end on a high. And this is the formula I will use. The bad news is, unfortunately, very bad: Take cover! Tsunami warning for the SA education system! Get ready for waves of poorly educated children exiting the education system over the next decade or longer.

But how much worse could things really get in the education sector? Have we not already reached rock bottom? No, I suspect that we still have some way to go. One of the unintended consequences of the Covid-19 lockdown in South Africa has been to push our already ailing education system to an unprecedented low.

“Children are not the face of this pandemic. But they are at risk of being among its biggest victims… in some cases, by mitigation measures that may inadvertently do more harm than good. The harmful effects of this pandemic will not be distributed equally; they are expected to be most damaging for children in the poorest countries, in the poorest neighbourhoods, and for those in already disadvantaged or vulnerable situations.” – United Nations Policy Brief, 15 April 2020.

Covid-19 will naturally affect those who are the most disadvantaged to the greatest extent. This is also true in the field of education. The renowned psychologist Edward Thorndike’s “Law of Learning” provides further support for this. It states that the more one learns, the more learning one can achieve in the future. Learning generates further interest in learning.  

In fact, at a biological level we know that being exposed to interesting ideas and being curious triggers the human body’s narcotic-like dopamine chemicals to flood the brain, a positive stimulus that guarantees the individual would want to recreate these experiences.

Conversely, one who has not been exposed to learning opportunities would be less inclined to seek out cognitive stimulation. Thus, children who are described as educationally disadvantaged and were physically locked out of the education system and left to their own devices during the Covid-19 crisis are at much greater risk of not making adequate school progress in the future.

What do we know about the effects of extended periods of downtime on children’s learning? Teachers are very familiar with such scenarios as they often see a tailing off of children’s learning after long holidays and even long weekends. The longer children are out of school, the more difficult it seems to be to get them back into the routine and into the headspace needed for learning.

Teachers at the training working with the BCP materials.

In these situations, teachers constantly have to revert back to previously taught content. These learning setbacks might not be permanent, but they impact future learning.

Human cognitive development is a complex and individual process. How do we start to intervene in it? 

The good news is that we have accumulated a lot of knowledge about this process and that cognitive science does have a fairly good grasp of the fundamental principles that guide effective teaching and learning.

Most importantly, we know that human beings are cognitively modifiable, thanks to the pioneering and extraordinary work of the late cognitive psychologist Professor Reuven Feuerstein. The implications of this seemingly unassuming statement are profound for educators and for children not already in the learning loop. The notion of cognitive modifiability gives substance to the cliché that “all children can learn”. For too long we have been dominated by a deterministic, all-or-nothing view of human cognition; either you have the “smarts” or you don’t.

Children who are working with the BCP materials.

This recognition of cognitive modifiability has resulted in the development of cognitive intervention programmes, such as Instrumental Enrichment, Bright Start and Basic Concepts Programme. While traditional curative (remedial) programmes aim to close gaps in content learning, cognitive programmes aim to promote the growth of cognitive structures that are needed for higher order and abstract reasoning.

But is it possible to enhance the development of cognitive processes inside the classroom and can teachers do this? It is our experience that emergent cognitive structures can be enhanced and teachers can be trained to become mediators of learning. Mediated learning differs vastly from traditional “chalk-and-talk” pedagogical approaches on both a philosophical as well as humanistic level. 

Human mediators are caring, engaged, open, interactive and intensively involved with their children in the classroom. Young children happen to need these kinds of engagements to free up their involvement and participation. Children who take risks and share their thinking and are able to express their ideas are set on a path to improve their thinking, to reflect on it and consider the views of others.

So why are such cognitive educational approaches not being used more in learning institutions, particularly for young children who are not already engaged in learning and might have cognitive vulnerabilities? 

Children who are busy with an activity related to the programme

The Basic Concepts Programme is being extended across Grade R classes throughout the Northern Cape. The Northern Cape Department of Education has been forward-looking in helping to establish solid cognitive foundations needed for enhanced learning. There is an understanding that cognitive development and the school curriculum are not mutually exclusive activities, but both are integral. In a pilot study we have found almost universal improvements in school readiness of children who have been exposed to this cognitive programme during their school day.

The disruptions to teaching and learning in these very unsettled Covid-19 times might, in fact, allow those invested in education to pause, take stock and re-evaluate our understanding and approaches.

How does our practice as educators align with what we know about learning from cognitive science, and are we following the best evidence-based practices that will help children to improve their learning? It might be that the unintended outcome of the crisis also mobilises those involved in education to develop a range of special interventions to re-establish an interest in learning. 

All children can learn and make educational progress, but it might be that some children need a more thoughtful, intentional and mediational approach to successfully re-enter the educational mainstream. 

This article acknowledges the Douglas Murray Trust and Ryoichi Sasakawa Young Leaders Fellowship Fund for their generous support of the work done by the author with the Northern Cape Department of Education.

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Reprinted, with a lead by the author, from DAILY MAVERICK which is one of the largest and most credible online newspapers in South Africa; https://www.dailymaverick.co.za/opinionista/2020-11-02-the-state-of-south-african-education-covid-19-implosion-brings-good-news-and-bad-news/.

[BigDataSur] “WhatsApper-ing” alone will not save Brazilian political disarray: An investigation of the affordances of WhatsApp under Bolsonarism

October 16, 2020
By 27510

This article reflects on the role of “WhatsAppers”, defined as social activists appropriating WhatsApp as a primary platform to organize and communicate, in relation with the rise of Bolsonarism in Brazil. Affordances of WhatsApp usage by social actors are explored in the light of responses to Bolsonarism, along with their implications in the current time of crisis.

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Photo credits: Lo Cole / The Economist

The research illustrated explores the affordances of WhatsApp and its appropriation by the WhatsAppers in Brazil, here defined as social activists appropriating WhatsApp as a primary platform to organize and communicate. I explore the importance of the Global South context in shaping such affordances, focusing on local epistemologies which bypass the structure of mainstream Brazilian media. As illustrated elsewhere, the empirical analysis combined different qualitative methods, yielding insights into the communication and action repertoire of the group studied, not without considering reflections on research ethics and their implications in the context studied.

WhatsAppers: Towards a new research agenda

This research stems from an analysis of the social interactions of UnidosContraOGolpe (UCG), a leftist group in Brazil, which was a WhatsApp “private group” emerged in 2016 to oppose the controversial impeachment of the then-president Dilma Rousseff. The case study resulted into the first empirical MA dissertation in Latin America to explore digital activism on WhatsApp private chats as an emerging field of political action. To do so, a ‘meso-micro’ analysis was used – on the meso level, to identify the modus operandi of group interactions and, on the micro level, to capture individual motivations, tensions, and expectations. At the core of the investigation, the researcher’s identity was disclosed, following social actors through their chat environment and adopting an ‘engaged’ approach, whereby the research is designed with the goal of empowering social actors. In practical terms, this inspired a triangulation of qualitative methods, including digital ethnography (to identify and analyze the practice of social actors inside the chat domain, through a long “zoom” perspective on social interactions in the private chat group), content analysis of selected posts (to understand how the group emerged organically and self-organized in a contingent manner) and fifteen in-depth semi-structured interviews (to elicit values and motivations from the perspective of individual active participants).

This dissertation argues that WhatsAppers are characterized by their ability to appropriate the chat group as a means to participate in political life. Engagement with political activism becomes an intimate and familiar affair, mediated by a personal and omnipresent device, that enables a unique approach to mobilization. In general lines, everyone could be a WhatsApper, including those not previously politically active. A WhatsApper could be someone who already is entwined in other social media networks of politics and mobilization or not; they can be someone from a poor, middle or rich class background. In other words, WhatsAppers interact digitally with others, combining online and offline political actions. Through the lens of digital sociology, the case studied reveals that WhatsApp stands out as a platform for civic engagement, promoting new spaces of digital activism for three main reasons: the chat app (1) affords structurally new forms of political participation and collective engagement, (2) forges communities of mutual interest, and (3) promotes collective decision-making and individual autonomous actions on a small scale. However, drawbacks are found in howbots can influence conversations on WhatsApp, fake users can hijack chats, and group members may be threatened by surveillance attacks.

Bolsonarism: into the Brazilian political crisis

In 2019, the first year of Jair Bolsonaro’s government, Brazil has seen a record deforestation and a drop to zero applications of environmental fines. Bolsonaro nominated a human rights minister who was well-known for preaching sexual abstinence as a state policy. Sons of the president are under investigation of crime and corruption. Also, Bolsonaro has nominated a secretary of culture extolling Nazi propaganda. Moreover, every week the Brazilian “anti-president” openly attacks the press, and recently was considered the worst leader to struggle against the Coronavirus pandemic.

The political scenario in which Bolsonarism surges is widely recognized as reflecting a crisis of political representation and the widespread disbelief in politics and traditional parties. Bolsonarism can be understood as “a political phenomenon that transcends the figure of Bolsonaro and is characterized by an ultra-conservative worldview, returning to traditional values and nationalist and patriotic rhetoric”. Facing this scenario, an urgent question should be addressed: what is really happening to Brazilian democracy?

Looking back, looking forward

Brazil is an extremely unequal country along multiple dimensions that include internet access. Part of the semi-illiterate population gathers their information almost solely through visual messages, audios and videos from thousands of WhatsApp groups, thanks to the “zero rating” fees provided by telecom companies that replaced more expensive short-text messages. The larger context of Latin America makes an excellent test bed for the study of WhatsApp social interactions because “96 percent of Brazilians with access to a smartphone use WhatsApp as primary method of interpersonal communication”. According to the Reuters Institute, 53 percent of Brazilians use “ZapZap” (as the app is commonly known in the country) to find and consume news. Everyday citizens also use “ZapZap” to order pizza, stay in touch with family, transfer money, make doctor appointments, learn, spread gossip and date.

While the leftist “UCG” WhatsAppers were calling for political action, far right activists were articulating themselves in WhatsApp private groups and beyond, also combining online and offline activities. Progressive sectors were as well unable to build a national digital campaign, with very rare exceptions, such as small local initiatives like UCG. Consequently, the potential of digital activism on chat apps was later weaponized by far-right groups that not only appropriated public and private groups on and with WhatsApp, but also acted as pipeline to other social media. Digital information became a “weapon” that is still used in “out of control” mode nowadays by Bolsonaro’s supporters, taking advantage of the high penetration of WhatsApp in Brazil, and facilitated by the limited digital literacy of the population. In fact, Bolsonaro ran a successful campaign in 2018 based on a combination of bottom-up authoritarianism and digital populism. His supporters were helped by bots to spread misleading content “weaponizing” various WhatsApp groups.

COVID-19: creative WhatsAppers from the margins

This case presents important implications for the ongoing crisis. Brazilian citizens are currently bombarded with COVID-19 related disinformation and facing a chaotic portrait, while far right activists occupied larges spaces on digital networks before and after the 2018 elections. Moreover, there are lessons learned from the inability to stop Bolsonarism’s digital army, namely: send messages which everyday citizens can trust. Today, Brazilians behave more and more like consumers instead of citizens, trusting the market more than science – perhaps this is precisely the gap that paves our country for thousands of deaths during the coronavirus pandemic.

Brazilian mainstream media are currently discussing who might be a potential presidential candidate for the next elections in 2022. However, a deeper question is whether democratic values will still be upheld at that time. The composition of Bolsonaro’s government reminds us that Brazilian’s young democracy is now more capitalist, colonialist, patriarchaland is heading towards a dangerous and irresponsible political adventure, and the outcomes are unpredictable. During the pandemic, social distancing, hand washing, hand sanitizers, masks, respirator machines and lockdowns are privileges of the Global North, while in the South, many will not even have access to minimum services.

As the title suggests, using WhatsApp for chatting and hanging out alone will not solve the political Brazilian disarray, but perhaps creative WhatsAppers could provide a spark to create national-transnational solidarity. Namely: high speed participatory decision-making to deliver groceries, collect money, produce masks, share scientific information, mobilize against COVID-19 related disinformation, reach poor families and fight for emergent democratic imaginaries. The UCG case study still works as a well-informed internal communication strategy for connecting and activating social solidarity networks that grounds for hope, especially because it reveals the battlefield of political struggle that enables scientific shared information, civic engagement, collective mobilization, and solidarity. Lastly, the coordination of online activities combined with actions on the ground by WhatsAppers triggers digital activism in times of pandemic.

About the author

Sérgio Barbosa

Sérgio Barbosa is a PhD candidate in the program “Democracy in the Twenty-First Century” in the Centre for Social Studies (CES), at the University of Coimbra and a Sylff fellow sponsored by Tokyo Foundation for Policy Research. He is a member of the Technopolitics – a “Latin” research network connecting Brazil and Ecuador with Spain, Portugal and Italy. His research explores the emerging forms of political participation vis-à-vis the possibilities afforded by chat apps, with emphasis on WhatsApp for digital activism and social mobilization

Acknowledgments

The author thanks Silvia Masiero for her careful review (and beyond) and wishes to thank Charlotth Back and Jeroen de Vos for their comments and suggestions. He extends his gratitude also to Stefania Milan and Emiliano Treré for launching Big Data from the South initiative. This blogpost has received funding from the Sylff (Ryoichi Sasakawa Young Leaders Fellowship Fund) Research Abroad – SRA fellowship sponsored by the Tokyo Foundation for Policy Research.

 

Reprinted, with a lead by the author, from DATACTIVE Big Data Sur blog, https://data-activism.net/2020/06/bigdatasur-whatsapper-ing-alone-will-not-save-brazilian-political-disarray-an-investigation-of-the-affordances-of-whatsapp-under-bolsonarism/.

Leia em portugues

Providing Space for Good Conversations on YouTube amid the COVID-19 Pandemic

September 18, 2020
By 25157

James Martyn completed his Doctorate at Massey University in New Zealand in 2014–16 as a Sylff fellow. He currently works as a psychologist at the Department of Corrections in Tauranga, the fifth most populous city of New Zealand, and privately as a mental health consultant. Amid the worldwide COVID-19 pandemic, James has been utilizing his expertise in creating space for good conversations through a short video series on YouTube, covering such useful topics as stress and better habits under the difficult circumstances.

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Introduction: Good Intentions

I have always wanted to be the sort of person who can be helpful in a time of need; to know not only that I can help if needed but that the type of help I can provide is useful. It is one of the things that led me to become a psychologist. But if I am honest with myself, there are many days when I feel like I fall short. As I sit and reflect on life, I often feel an internal pull toward doing more for others: to give more, be more, and have more of an impact. Too often, I think of the “big” things I wish I could do or might do in the future to be useful. However, during these times, it is easy to discount the small and perhaps equally important things we can do today to be helpful. It is my intention to focus not only on the big things in the future but also on the small things and the small ways in which I can be more outwardly focused today.


Coronavirus: Different Boats, Same Storm

Amid the coronavirus pandemic in 2020, we have all witnessed and experienced a rapidly changing world. These changes have contributed to a wide range of very real challenges that we have either experienced or observed in ourselves and in others. Whether the challenges were experienced emotionally, physically, socially, psychologically, or spiritually, there are very few people who have not been affected in some way by the recent circumstances. 

While I think it is a misconception that we are all in the same boat together during this pandemic, I certainly feel we are all experiencing the same storm. At times the figurative rain and wind have felt unrelenting. During this time some of our boats, for a variety of reasons, continue to fare better or worse than others. But like all storms, this too will pass—although this particular storm will be long remembered. The storm’s gift and curse is that it has brought to our attention a number of areas, personally, nationally, and even globally, that may require some repair to ensure our safety and the safety of others in the future. 

In our small country of New Zealand, with just over five million in population, it is easy to see that we have been incredibly lucky as a whole, despite the suffering of many. As of this writing, our country has been fortunate enough to be able to lift almost all of its coronavirus restrictions, despite some fluctuates across the country. However, New Zealand, as with many other countries, continues to face struggles. The increased stressors, pressures, and uncertainty that have arisen alongside the implications of the coronavirus have had and continue to have an impact on many people’s mental health and well-being. 


How Can I Be Helpful?

Just a few months ago, our country, like many others, entered full lockdown. We began to face the challenges of social and community disruption, financial pressures, and interruptions to many aspects of our daily lives on a scale that we had not seen before. While many people did not experience significant difficulties, for others the impact and uncertainty brought considerable stress. 

As a psychologist, I continue to work with adaptations to my day-to-day activities. In one of my roles, I work as a consultant with a friend and colleague at Lumind.co.nz. Lumind is a small start-up consulting and training company that we created with the intention to provide accessible, useable, and relevant evidence-based psychological information to businesses and community groups. Our aim is to help groups to “mind what matters.” Talking via Zoom, at one point we discussed the likely implications of the coronavirus on mental health. We wanted to help in some way, to find a place to step outside of our comfort zone. Together, we have often discussed the “big” ideas and dreams about what we can pursue. In doing so we have dreamt, strategized, and reflected, often at the expense of acting in the short term. This is not to say that taking time to think big is unhelpful, but I feel our focus on the future can at times lead to missing the smaller opportunities that lie in front of us. Consequently, as we spoke about wanting to be useful in this moment of the coronavirus pandemic, we decided to put aside our preconceptions of having a polished product and simply try to give some of our knowledge and resources to others. We tried to be useful in our own small way.


Our Mental Health and Technology Focus

Our particular area of interest at our business, Lumind, is the intersection between mental health and technology. It is our view that at present, psychological resources are not delivered effectively. Access to evidence-based psychology assessment and intervention in the community is typically bottlenecked by limited service resources. This is due in part to numerous barriers that surround current mental health treatment and delivery, which have contributed to discrepancies between treatment needs, availability, and uptake. Consequently, too many people who could benefit from psychological resources and greater well-being ultimately miss out on or are not afforded equal opportunity for access. It is our view that technology is one critical component that can help disseminate evidenced-based psychological resources and potentially improve access to appropriate resources in the future. We feel that this may subsequently work to improve mental health and well-being for many who may have otherwise missed out. 

Mental health and well-being has become an increasingly popular topic in recent years. New Zealand was the first country in the world to develop a “Wellbeing Budget.” Additionally, the number of well-being-focused websites, applications, podcasts, books, and other resources has grown exponentially. On the whole, this is a great thing. However, not all content is created equal. It is our view that there is a lot of information available through technology that has good intentions, but not all are evidence based. In some cases, the content and delivery method may even lead to a negative outcome. As such, we feel that psychologists should have a voice in the well-being and technology area. Lumind wants to be part of the conversation.


Creating the “Minding What Matters” Video Series


With this in mind, outside of our normal work, we decided to do something small using technology—something that utilized our expertise. As with any time you put yourself out to the public, it was very easy to think of the reasons not to go ahead. For instance, there was plenty of other content available online; our video and audio quality was relatively low; given that our content was casual and unscripted, we may say something incorrect or that may be judged differently than our intention. However, when we came back to our intention—to show support to our community in a time of need—we felt that the benefit was worth the effort. 

As psychologists, we are not trying to pretend we “have it all together.” We understand that we have our own paths climbing our own personal mountains with their own unique set of challenges. However, from our vantage point on our mountain, we may be able to see your position from a different angle. Our perspective, as well as the skills we have developed along the way, may be valuable to share. As such, my colleague and I decided to put together a short video series titled “Minding What Matters.” Each video was a casual, lighthearted, and short conversation with other psychologists. Together, we chatted around a particular topic area that we thought may be helpful during COVID-19 and beyond. 

The result was a series of nine videos available on YouTube with such topics as “virtually supporting someone who is struggling,” “dealing with anxiety and worry during difficult times,” “parenting tips during stressful times,” and “why bad habits strike during stress.” In total, we have had around 900 views so far. Our intention has never been to obtain media views, but to be useful. It has been great to see that a few people have found it beneficial along the way. We have had positive feedback from people in care-type roles and helping professions, strangers, parents, and our friends. That is all we could have asked for. 


Conclusion: Remembering That Small Steps Matter

We are well aware there is better content with better quality available. But I think there continues to be space for both small and big projects; space for good conversations around relevant topics and based on evidence-based principles. In the future, it would be great to work more in this space, perhaps even take more risk and step further out of the comfort zone. But it has been a valuable experiment, one that has taught me to not take things too seriously and that taking small steps to help others today may at times be more effective than waiting for the “right time” to make many big steps to help others in the future. I think there are a lot of opportunities out there, ready for psychologists and other professions to share their skill set. I am learning to be bolder and to open my eyes to what these opportunities may be, both now and in the future. I hope you are too.


Lumind Channel on YouTube

https://www.youtube.com/channel/UCFr_ZQRaUGIVatjTrdVlbYg

Lumind is a start-up psychology consulting and training company consisting of co-directors Dr. James Martyn and Matt Hegan. Lumind aims to provide accessible, useable, and relevant evidence-based psychological information to businesses and community groups. Lumind’s purpose is to help people focus their “mind on what matters.”

Episode 1: Why This Series
https://youtu.be/vppYkanPXXI

Episode 2: Being Who You Want to Be
https://youtu.be/vppYkanPXXI

Episode 3: Anxiety and Worry during Difficult Times and Lockdown

Episode 4: Mindfulness—Calm in the Chaos of Lockdown
https://youtu.be/ztv625cG1T4

Episode 5: Psychologist Parenting Tips during COVID Lockdown

Episode 6: Mental and Physical Performance during Lockdown
https://youtu.be/TRnck0X_qVE

Episode 7: Virtually Supporting Someone Who May be Struggling

Episode 8 (BONUS): Psychologist Learns from 6-year-olds—How to Be a Good Friend in Lockdown

Episode 9. Why Bad Habits Strike during Times of Stress
https://youtu.be/RKMrPMR6t4Y

What COVID-19 Can Teach Us about Prison: Reflections on Criminal Policy and the Words of Albert Camus

August 31, 2020
By 24051

Rui Caria, a PhD candidate in criminal law at the University of Coimbra, summarizes the ongoing discussions about the confinement of prisoners under the COVID-19 pandemic. He discusses the human dignity of prisoners and the purpose of prisons and punishment by drawing on ideas that Nobel Prize winner Albert Camus describes in his famous novel The Plague.

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Introduction

During my second semester, like many others, I had my life put on hold by COVID-19. I was sent to work from home, and class lectures were provided by Zoom, allowing me to keep studying by looking through the tiny box that is my computer screen. As much as one tries to halt the fall of productivity, it eventually gives way to reflection; one that is personal as much as social. By looking at the other tiny box that is my TV, I could watch the news and learn about all the people who found themselves confined.

During quarantine, I found it fitting to reread a novel by one of my favorite authors: The Plague, by Albert Camus. It made me realize that the most fortunate of us were confined at home; others, not so fortunate, were confined in the places where they had made their travels. But there was a third category of confined, one that is seldom talked about: prisoners.

 

To Release or Not to Release?

Across the world, there was a great discussion about what to do with prisoners during the pandemic, the question being whether they should be released or not in order to minimize the risk of a health catastrophe in prisons. The importance of the issue was highlighted by various entities, from the World Health Organization (WHO) to the Council of Europe. The debate had to grapple not only with the big question itself—to release or not to release—but also, if the question is to be answered affirmatively, on what grounds they should be released.

In my country, Portugal, legislators approved an extraordinary regime of prison flexibilization in the midst of the COVID-19 pandemic. This new law (no. 9/2020) allowed for a partial pardon of prison sentences, a special regime of reprieve of sentences, an extraordinary regime of licenses for administrative leave of inmates, and extraordinary anticipated parole.

The Portuguese Parliament (Assembleia da República).

On the other side of the world, in the United States, which has the world’s largest number of infected combined with the world’s largest prison population, policy solutions have been suggested to reduce the number of people in jails, as well as in state and federal prisons. These focus not only on increasing the number of releases but also on restricting the number of admissions.

Regarding increasing releases from federal and state prisons, some suggest considering the following for immediate release: inmates nearing the end of their sentence (who are expected be released in the next few months); those in minimum security facilities and who are on work release; those who are medically fragile or are older; and those whose offense is considered “minor” or have a “low likelihood” of committing another serious offense.[1]

Many prisoners have sought compassionate release—the release of people who are facing imminent death and who pose no threat to the public. But this has proven a lengthy and cumbersome process, some of the shortcomings being the requirement that a person be extremely close to death or so incapacitated that they do not understand why they are being punished; the requirement of a statement from a medical professional; and the ability of decision-makers to overrule recommendations from medical professionals and prison staff.[2]

Some have pointed their finger at the new policies to release prisoners, calling them opportunistic political moves to try to solve the problem of prison overcrowding that preceded the pandemic. But this was only one of the many outcries from the public regarding the release of prisoners.

 

Why Release?

The WHO has pointed out that due to the concentration of people that is inevitable in prisons, inmates find themselves in a state of special vulnerability regarding COVID-19.[3]

However, the virus is not the only problem, or it would be a smaller problem if it were not for the poor health of inmates. The WHO has also noted that inmates, regardless of the pandemic, already tend to suffer from graver health issues than the general population. These health issues stem from weakened immune systems, caused by lack of sunlight, stress, malnutrition, and such diseases as tuberculosis, from which inmates particularly suffer.

One of many overcrowded prisons in the world.

Adding to the health problems that exist—and have existed for a long time—in prisons, the environment itself makes social distancing impossible. Compared to cruise ships and nursing homes, two other types of environments considered prominent incubators for the virus, prisons possess comparable or smaller quarters and people do not have in-room access to the necessary hygiene products and water.[4] 

This situation is made worse by the fact that many prisons suffer from overcrowding and poor overall conditions and that prisoners are put in collective cells that are too small. Many of these situations have already reached the European Court of Human Rights and suffered their condemnation.[5]

 

Why Punish and When Do We Stop?

The discussion also made the public ask itself, even if subconsciously: Why do we punish? What are the limits of punishment? When is punishment over?

In Portugal, when the state intervenes by utilizing criminal law—that is, when it criminalizes any behavior and punishes it—it must do so in obedience to the constitutional principle of necessity. This means that criminal law comes forward not arbitrarily but only to protect lawful values inscribed in the constitution or derived from it. These are values that correspond to the necessary conditions for the individual’s free development, to the realization of his fundamental rights, and to the sound functioning of a society built around these goals.[6]

This means that criminal sanctions serve the purposes of protecting lawful values and aiming to socially rehabilitate the offender. Both these purposes are considered when determining the length of the prison sentence.

Prison of Coimbra in Portugal.

Despite being inscribed in the criminal code as one of the purposes of the prison sentence, social rehabilitation often seems not to be a priority, its failure being one of the weapons utilized to argue the failure of criminal law. One needs only to look at the lack of conditions from which prisons suffer to observe, as many criminologists have already noted,[7] that in many cases it dissocializes more than it socializes.

This fact, combined with the perception that the public has of prison, helps cement the popular idea that people should not leave prison before the time prescribed in their sentence, that they should be punished until the end, for there is no chance they will be rehabilitated before that. With these ideas in mind, it easily arises in the public discourse that someone who has committed a crime is a criminal forever and so should be forever punished, without the opportunity for rehabilitation, for there is no chance of it happening.

 

The Prison and Plague

In his famous book The Plague, first published in 1947, the Algerian-born French philosopher and Nobel Prize winning writer Albert Camus tells the story of the fictional town of Oran, which is stricken by the plague.

In his story, the people of Oran are confined to their town and homes because of this plague. At one point, Camus reflects on how their condition is equal to that of exiles and prisoners: “Thus, too, they came to know the incorrigible sorrow of all prisoners and exiles, which is to live in company with a memory that serves no purpose. . . . Hostile to the past, impatient of the present, and cheated of the future, we were much like those whom men’s justice, or hatred, forces to live behind prison bars.”[8]

Albert Camus

There could not be a better description of what many of us went through in the past months of the year 2020 due to the pandemic. However, even if we felt like this, with different words but with the same feeling, parted from family, friends, and lovers, did it serve to make us reflect? Did it make us more compassionate and understanding of our fellow man?

The discussion surrounding the release of prisoners during the pandemic is, in my understanding, of special importance. It had the capacity to bring the topic of prison and inmates back into the public eye—even if briefly and amid the greater concerns of the pandemic, in which we are still living. In this way, it allowed for the public to be made aware, once more, of the special vulnerability of inmates that derives from their poor health and the poor prison conditions in which we keep them, even in the twenty-first century.

However, despite being made aware of the problems faced by inmates, and sharing the feeling of confinement, the public response to releases during the pandemic was still stained, for the most part, with intolerance. Besides the already mentioned accusations of releases being a “quick fix” for the prison overcrowding problem, less elaborated arguments could be summed up in the following statement: “Prisoners should stay in prison.” It was even possible to hear some people saying that not only should prisoners not be released earlier, or on time, but they should stay in prison forever.

This sort of speech was not novel or exclusive to the pandemic. That specific discussion was only a symptom of a greater problem: the way society still conceptualizes punishment. I had the opportunity to witness this firsthand. In the summer between the two years of my master’s degree in criminal law, I worked as a tour guide in an exhibition dedicated to celebrating 150 years since the abolition of the death penalty in Portugal. It was not uncommon to hear people say that it was a mistake to abolish it and that it should be brought back.

Of course, this is the extreme end of that sort of speech, but it is common for people to think about prison as nothing more than punishment, as if the more suffering is inflicted, the more justice will be done. In today’s criminal doctrine, at least in the European continental tradition, the conceptualization of prison as pure retribution is largely obsolete. Prison is not supposed to aim at the past, punishing the offender as an incarnation of divine retribution, but should be aimed at the future, in helping him live his life responsibly without committing crimes by socially rehabilitating him.

Offenders, despite having committed crimes, are meant to be treated as human beings, being recognized for their dignity as well as granted a chance for recovery and redemption. How would we have felt if someone had told us that never again should we leave our homes? Should we never see our loved ones again? Should we never hope for the future?

As much as we need a change in public and criminal policy, we need a change in the public conscience about the purpose of prisons and the value of human dignity. We certainly had, and still have, the opportunity to let the virus teach us something about prison and about humanity.

 

[1] Peter Wagner and Emily Widra, “Five Ways the Criminal Justice System Could Slow the Pandemic,” Prison Policy Initiative (website), March 27, 2020, https://www.prisonpolicy.org/blog/2020/03/27/slowpandemic/.

[2] Emily Widra and Wanda Bertram, “Compassionate Release Was Never Designed to Release Large Numbers of People,” Prison Policy Initiative (website), May 29, 2020, https://www.prisonpolicy.org/blog/2020/05/29/compassionate-release/.

[3] WHO Regional Office for Europe, “Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention: Interim Guidance,” March 15, 2020, 1.

[4] Aleks Kajstura and Jenny London, “Since You Asked: Is Social Distancing Possible behind Bars?” Prison Policy Initiative (website), April 3, 2020, https://www.prisonpolicy.org/blog/2020/04/03/density/.

[5] Recent cases include J.M.B. Et Autres c. France [J.M.B. and Others v. France], 9671/15, May 30, 2020, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-200446%22]}, and Sukachov v. Ukraine, 14057/17, May 30, 2020, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-200448%22]}.

[6] Claus Roxin, “O Conceito de Bem Jurídico Como Padrão Crítico da Norma Penal Posto à Prova,” Revista Portuguesa de Ciência Criminal 23, no. 1 (January–March 2013): 12.

[7] One of the fundamental works in this regard is: Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (London: Penguin Books, 1991).

[8] Albert Camus, The Plague (Harmondsworth: Penguin Books, 1960), 69.

Action to Address a Stakeholder-Identified Need: Development of a Questionnaire to Improve Resolution after Medical Injury

July 27, 2020
By 25572

Associate Professor Jennifer Moore, a former Sylff fellow at Massey University in New Zealand, implemented a research project to assess the needs of injured patients and their families after medical injury with funding from Sylff Leadership Initiatives (SLI) from January 2019 to April 2020. The survey tool she developed and refined throughout the project is expected to facilitate better and happier reconciliation processes between healthcare organizations and injured patients and families after medical injury.

* * * 

“I wish there had been a questionnaire like this that was given to me after the hospital injured me! I recently had a hip replacement, and the provider posted a survey to me. It was so bad that I didn’t complete it. I thought, ‘Do these people have common sense? What does this mean?’ I wonder if they didn’t do what you are doing and [trial] the survey with the actual patients. I think it is so important to actually trial test it on patients first.” (Injured patient from New Zealand, comments during a cognitive interview, January 2019. The word in brackets in the quotation was edited by the author).

 

Introduction

This project was the first to attempt to develop a questionnaire to assess injured patients’ and families’ needs after medical injury. We pretested a draft version of the questionnaire with injured patients and families in New Zealand and the United States. In the quotation above, the injured patient highlights the importance of pretesting questionnaires to increase the likelihood that it will be an effective tool.   

Medical injury is unexpected harm caused by medical care. After heart disease and cancer, medical injuries have been identified as the third leading cause of death in the United States; this conclusion is consistent with findings from research undertaken in other countries, such as Canada, Japan, and New Zealand, and these statistics have generated calls for “greater attention” to medical injury because of the scale of this global issue.[1] An additional well-documented issue is that healthcare institutions’ responses to medical injuries, particularly their attempts at resolution, frequently fail to meet patients’ expectations and needs.[2] The literature also highlights that poor responses from healthcare organizations exacerbate the psychological, physical, and financial effects of medical injuries.[3]

During my recent research about the resolution of medical injury, the key stakeholders and participants identified another important social problem that requires action. Most healthcare organizations are interested in doing a better job of meeting injured patients’ and families’ emotional, informational, and practical needs after medical injury but currently lack tools to evaluate how well they met those goals.

Jennifer with her daughter Rebecca and two research participants

Research Objective, Methods, and Dissemination

Therefore, this project’s key objective was to address that gap, and stakeholder-identified need, by developing a questionnaire that healthcare organizations can use to assess how well they met the needs of patients who suffered medical injuries during their care. To develop the questionnaire, we undertook the following steps.

  • We designed a draft version of what we call the Medical Injury Reconciliation Experiences Survey (MIRES). This draft was based on findings from our two previous studies of injured patients’ experiences of nonlitigation approaches to resolving medical injuries.
  • We performed a content analysis of transcripts from a stratified random sample of interviews conducted with injured patients in New Zealand and the United States in 2015–16.
  • We extracted themes describing what is important to patients following medical injury and developed a draft questionnaire with question domains and items corresponding to these themes.
  • We revised the draft questionnaire following review and feedback from expert clinicians, risk managers, and patient advocates.
  • We pilot tested the revised questionnaire on a sample of 24 injured patients and family members in the United States and New Zealand, conducting cognitive debriefing interviews focused on the comprehensibility and completeness of the questionnaire.
  • We further revised the instrument based on this feedback. Thirty-seven revisions were made in response to their suggestions.
  • We traveled to New Zealand to disseminate and implement the questionnaire to key stakeholders in New Zealand, such as district health boards' public hospitals, the Ministry of Health, the Accident Compensation Corporation, and the patient advocacy group Acclaim. I traveled around New Zealand (particularly Christchurch, Dunedin, and Wellington) to meet with representatives from the key stakeholder organizations to explain the questionnaire to them and to discuss how best to implement it in their organization.
  • We are in regular, ongoing contact with the representatives of the key stakeholder organizations in New Zealand to answer their questions about the questionnaire and to ask about their initial experiences using it.
  • We submitted a paper to an academic journal that reports the results of the survey development.
  • After the COVID-19 travel bans are lifted, we will travel to New Zealand again at the stakeholders’ request to discuss implementation progress and to undertake any further edits to the questionnaire that may be required.
  • Once the COVID-19 travel bans are lifted, I will also travel to the United States again to discuss implementation progress at the participating hospitals. The intention was to visit the United States in May 2019, but that trip was canceled because of COVID-19. (Sylff funded the New Zealand part of the project, not the US part. We are very grateful to Sylff for their support.)

Once our research paper is accepted, it will be important to disseminate the paper, because our project is the first to attempt to develop a questionnaire to assess injured patients’ needs after medical injury. Further research could use our questionnaire to undertake a full validation study.

The final version of the questionnaire included the following domains:

  • perceptions of communications with healthcare providers after the injury (11 items);
  • perceptions of remedial gestures, such as apology and compensation (12 items);
  • indicia of the patient’s overall satisfaction with the reconciliation process (3 items);
  • the nature and impacts of the injury (5 items); and
  • characteristics of the patient (5 items).

 

Conclusion

Jennifer with a patient's research participant's puppy during the cognitive debriefing interview about the draft questionnaire.

Injured patients and their families expressed the view that they appreciated the opportunity to assist with the survey design process. The survey was feasible to administer with pencil and paper, taking around 10 minutes to complete. The MIRES appears to be comprehensible and acceptable to patients and offers a practicable means by which healthcare organizations can assess how well their reconciliation processes are meeting injured patients’ needs. One of the US patients who participated in this project observed that the “questionnaire has the power to help so many other patients like me.”    

[1] Martin Makary and Michael Daniel, “Medical Error—The Third Leading Cause of Death in the US,” British Medical Journal 353 (May 2016): 2139, https://doi.org/10.1136/bmj.i2139.

[2] Frederick S. Southwick et al., “A Patient-Initiated Voluntary Online Survey of Adverse Medical Events: The Perspective of 696 Injured Patients and Families,” BMJ Quality and Safety 24, no. 10 (October 2015): 620–29.

[3] Elaine O’Connor et al., “Disclosure of Patient Safety Incidents: A Comprehensive Review,” International Journal of Quality in Health Care 22, no. 5 (October 2010): 371–79.

Exploring Nuclear Transitions: In Quest of a Framework

July 14, 2020
By 26651

Shounak Set, a Sylff fellow from Jadavpur University, is currently pursuing his PhD at King’s College London. His SRA was conducted at Jadavpur University, which is home to the oldest and largest international relations program in India and is also distinguished by close institutional ties with the Indian defense research establishment. The field trip culminated in immeasurable value for his doctoral dissertation.

* * *


In the second half of the twentieth century, the advent of nuclear science left an indelible imprint in the practice and study of international relations. Nuclear proliferation refers to the spread of nuclear technologies and energy for both civilian and military purposes. Given the political and technological ramifications of the nuclear sector, the nuclear policies of states are essentially a subset of their foreign policy, but they are driven by a variety of discrete considerations. With its apocalyptic potentials, nuclear energy can devastate humankind through atomic weapons, but they can also be a harbinger of prosperity if harnessed for generating electricity. That being the case, when do states use nuclear energy for cooperation, and when for confrontation?

The author meeting with Avtar Singh Bhasin, an eminent archivist of Indian diplomatic history. A one-man army, Mr. Bhasin, having retired from the Ministry of External Affairs, voluntarily collects and publishes relevant documents that are otherwise inaccessible for the benefit of researchers.

The urge to answer these questions resulted in a six-month field trip to India from mid-September 2019 to mid-March 2020, where Jadavpur University served as the host institute. India represents both a challenge and an opportunity for academic engagement on account of its scale and complexity; and it questions several prevailing tenets and assumptions of international relations. At once a rising power and an impoverished nation, both a young state and a legatee to an ancient civilization, it simultaneously confirms and contests prevailing tenets of social science and poses unique challenges of research design. The first country to call for nuclear disarmament on the global stage in 1955, India conducted a series of nuclear weapons tests in 1998 to herald a new epoch. Likewise, after decades of righteous indignation at the institutionalized arbitrariness of the global nuclear order, India was eventually accommodated there in an unprecedented manner through the India-US Civil Nuclear Agreement of 2008. In addition to the selection of India as a case, the specific focus on these historical events underscored that the area of focus was situated along several research paradigms including but not limited to international security, science and technology, global order, and political contestation.

Brass Tacks: The Exercise

The field trip—as part of a doctoral study at King’s College London that interrogates the conventional understanding on these two episodic events, namely the 1998 nuclear tests and the India-US Civilian Nuclear Agreement of 2008—was undertaken with the primary aim of data collection, which was to be supplemented by discussions with topical experts. The primary sources mostly comprised interviews and archival material, and the absence of declassified material on the thematic area of focus (nuclear decision-making and proliferation), along with the associated sensitivity of the subject area, impelled an exercise in triangulation research through an interdisciplinary prism. Accordingly, data was collected from multiple sources in tandem with elite interviews among a wide range of individuals comprising mostly retired diplomatic, security, and political functionaries who had been direct participants in the cases under study. The initial plan was to conduct 20 interviews, but 35 interviews were ultimately conducted across New Delhi, Kolkata, and Bangalore through snowball sampling; this to led to progressive uncovering of diverse aspects. In order to facilitate optimum utilization of resources, archival research in New Delhi and Kolkata was conducted concurrently with the interviews rather than following a sequential approach.

The author interviewed Dr. V. S. Arunachalam, the scientific advisor to successive Indian defense ministers from 1982 to 1992. Dr. Arunachalam has been intimately associated with the Indian missile and nuclear weapons development programs.

Along with the above, discussions and consultations with 16 topical experts were also undertaken, which contributed toward refining the project by clarifying several aspects. Requisite steps such as anonymization of certain interviewees and data security protocols were followed for storage of confidential data and protecting the identities of key personnel as per considerations of security and research ethics.

Research Redux

Essentially probing the intersection between nuclear policymaking and domestic factors in India, the study adopts process tracing to analyze policy transformations through a foreign policy change framework. In conducting in-depth case studies of major foreign policy changes in the recent past, it hypothesizes that domestic politics gain salience during points of significant transformation and leverages the findings in a theory-building exercise through Bayesian reasoning. This approach accounts for the diversity of ideational and institutional forces at play in these policy transitions of historic magnitude; these forces remain inadequately addressed by extant studies, which are circumscribed by linear approaches characteristically prioritizing global-level variables at the cost of the domestic and vice versa.
While the nuclear tests in 1998 heralded a “Second Nuclear Age” in tandem with the realities of the global shift of power from the West to the East, the India-US Civil Nuclear Agreement of 2008 epitomized a metamorphosis of the global order through an irreversible transformation of the international nonproliferation regime. These events portended global ramifications, marked a drastic reorientation of India’s external behavior, and were accompanied by salient domestic political realignments.
Cognizant of these manifested confluences of global, regional, and domestic factors, this study eschews singular explanatory frameworks and attempts to construct an integrative model that explains major policy transformations. The research identifies political parties as the salient vector of domestic politics and probes the interface between political parties and major foreign policy outcomes of the recent past. Political parties form the government, which conducts foreign policy. However, scholars of comparative politics deal with political parties but leave the study of foreign policy to their counterparts in international relations and vice versa. In the process, the interlinkage between political parties and foreign policy remains in the shadows. While studies on political parties in international relations are scarce in general, in the case of India, there is a conspicuous absence.

Relevance and Outcome
The quality and quantity of the accumulated data has contributed substantially to the structural robustness of the key argument and has convinced me to add another chapter to my dissertation. The number of chapters based on my field trip data stands at three, in contrast to my initial plan of two for the same. With the progression of the field trip, the unpacking of historical cases and their attendant complexities corroborated the initial formulations of the study, which had problematized the conventional narratives.

The author after an interview with Mr. Maharaja Krishna Rasgotra, the Indian foreign secretary from 1982 to 1985. Having joined the Indian Foreign Service in 1949, Mr. Rasgotra has been involved in several historic moments in Indian diplomacy, and his counsel has been sought by successive prime ministers of India.

While the bulk of the literature is premised on the insularity of domestic politics in the conduct of Indian diplomacy, this study finds that major foreign policy changes are not generated by exogenous factors alone; and despite its limited salience in regular times, domestic politics gain a critical dimension during these moments of transition. This is crucial, since it reflects foreign policy making in a rising power and builds on a growing body of research on rising powers in international relations. The major findings indicate a gap between existing conventional postulates and the empirical specificities, as the timing of the 1998 nuclear tests and the unprecedented reorientation of the international nuclear order through the India-US Civil Nuclear Agreement contest existing theories of international relations. These include a global-domestic dichotomy in the process of salient junctures and a limitation of path-dependency models.
Previously unexamined primary sources highlighting the need for alternate explanations of historical cases were uncovered and pose significance for potential revision of extant conceptions and assumptions. The collected data facilitates the broadening and widening of the empirical and conceptual templates of foreign policy analysis, which remains anchored in a Western setting. While the process has affirmed the major observations of the study prior to this field trip, it has also led to a reappraisal and update of some earlier formulations of this study.

Concluding Remarks

Professor Shibashis Chatterjee, the director of the Sylff Program at Jadavpur University, acted as the local supervisor and added considerable value to the project. Professor Chatterjee happens to be the director of the School of International Relations and Strategic Studies and an acknowledged expert in the specific topic as well, with acclaimed publications to his name. While our interactions in themselves proved to be intellectually enriching to the project, Professor Chatterjee also made efforts to help me access relevant institutions and provided consistent administrative support. The latter proved to be crucial as, toward the end of 2019, India was witnessing severe political upheaval, which generated grave law and order issues and adversely affected my schedule. Since the completion of the project, he has also emerged as a benevolent mentor concerned about my professional and social well-being in the true spirit of the Sylff family.
The extended Sylff community at Jadavpur University provided a friendly and welcoming milieu that made my stay in India pleasant and memorable. In retrospect, the field trip facilitated by the Sylff Research Abroad program has not only been of immeasurable value to the doctoral dissertation, but it has also been instrumental for my professional growth. In the vortex of the twenty-first century, radical trends typically overwhelm extant arrangements and generate new challenges without resolving older ones. Against this backdrop, this journey has been immensely fulfilling at both the emotional and intellectual levels and shall enable me to embark on my career as a scholar engaged in the study and promotion of international peace and human understanding.

Rescuing Latin American Thought on Contemporary Subjectivity

July 6, 2020
By 26648

Using an SRA award, Flavia Ferretti crossed the Atlantic Ocean obliquely from Latin America to Western Europe to conduct research on an Argentine philosopher, León Rozitchner.

* * * 

León Rozitchner

The problem of subjectivity and the study of its processes has been one of the central axes of contemporary thought. The works of important philosophers of the last half century, such as Michel Foucault, Gilles Deleuze, and Felix Guattari, to mention some of the most distinguished names, have been dedicated to the study of different aspects of this problem, elaborating some of the most extended interpretative frameworks in the field of current thought.

The theoretical importance acquired by the question of subjectivity is related to the emergence of social problems that challenged both philosophical thought and the human sciences in the historical period beginning in the early 1970s. These problems include changes in cultural identities due to the intensification of migratory processes, modifications in workers’ identities as a consequence of the processes of deindustrialization and productive reconversion of vast territories, the impact on subjectivity of the massification of consumption and access to credit, impacts of the growing incorporation of women into the labor market, youth cultures, and the emergence of authoritarian, antidemocratic, and conservative attitudes. The relevance and urgency of understanding these social phenomena in a deeper way was one of the first motivations I had to place my doctoral research in the field of studies on subjectivity.

The entrance of the Ibero-American Institute in Berlin, Germany.

However, the existing international division of intellectual work has meant that the predominant theoretical frameworks for addressing the problem of the production of subjectivity are mainly Euro-American and that even within Latin America the theoretical elaborations developed by local thinkers are unknown or undervalued. Academic interest in Latin America is concentrated on topics linked to its socioeconomic problems, to indigenous populations, or to cultural productions such as literature, music, and cinema. Nevertheless, with rare exceptions, thought and philosophy produced in the continent are ignored beyond small circles of specialists. Even today, Eurocentrism remains a deep-rooted problem in the humanities and social sciences, and this is another one of the reasons that led me to focus my doctoral research on the study and enhancement of Latin American thought on the issue of subjectivity based on the work of León Rozitchner, an Argentine philosopher whose theoretical work on this issue deserves to be better known and disseminated.

The research that I am developing aims to contribute to the knowledge of Latin American reflection on the problem of the production of subjectivity from the second half of the twentieth century onward. Specifically, the object of study of this doctoral thesis is the problem of the production of subjectivity in the work of León Rozitchner, who made substantial theoretical elaborations on this problem despite the scarce references to his work in the field of studies on subjectivity in the continent and in the field of contemporary philosophy.

Reading Room of the Ibero-American Institute.

León Rozitchner was a philosopher and psychoanalyst who lived between 1924 and 2011. He studied in Buenos Aires as well as in Paris, where he made contact with the generation of philosophers who dominated the French cultural field after World War II, such as Jean Paul Sarte, Claude Levi-Strauss, and Simone de Beauvoir. Because of the military dictatorship that ruled Argentina between 1976 and 1983, Rozitchner had to go into exile in Venezuela, where he continued his intellectual work at the Central University. In 1985 he returned to Argentina, and until the end of his life in 2011 he worked as a professor at the University of Buenos Aires. His philosophy focused on the problem of subjectivity and the mechanisms through which it is constructed. His work brings together elements of psychoanalysis, phenomenology, and Marxism, with which the author elaborates an original and solid philosophical proposal. Among his main books are Freud y los límites del individualismo burgués (Freud and the limits of bourgeois individualism, 1972), Perón: Entre la sangre y el tiempo (Between blood and time, 1985), La cosa y la cruz: Cristianismo y capitalismo (en torno a las Confesiones de San Agustín)

(The thing and the cross: Christianity and capitalism [Around the Confessions of St. Augustine], 1997), and Materialismo ensoñado (Dreamlike materialism, 2011).

With this research, I intend to develop a study of the complete work of this thinker that will allow us to determine the treatment he gave to the subject throughout his intellectual journey, as well as to establish the axes that articulated his reflection and the continuities and ruptures in his theoretical production on the problem in question. Also, the research seeks to establish the passages between his thought and the social, political, and cultural processes of Argentina and the continent in the historical period during which he developed his work and to reconstruct the positions he occupied in the intellectual field of which he was a part. Furthermore, this work aims to install this representative of Latin American philosophy in contemporary discussion, by making his work engage in a dialogue with the most renowned intellectuals in the field of thought, specifically with those who have dedicated themselves to reflection on subjectivity.

Meanwhile, beyond these objectives in the academic field, this research has a wider purpose, which consists of contributing to knowledge of relevant aspects of the current human condition and providing elements for public debate on some of the most pressing contemporary social problems. The processes of production of subjectivity are at the base of many of the phenomena that concern thinkers and citizens in general, such as the authoritarian inclinations of certain social groups; the relationship of social subjects with politics; cultural identities; and the individual and collective effects of changes in the sphere of work. The proposed research will make a contribution in that it will generate new knowledge in a study field that helps to understand these complex social phenomena. This research, therefore, will not only strengthen an academic domain of study but will also provide elements for public deliberation by offering modes of intelligibility of social processes of general interest.

In the course of this research, I have been supported by the Sylff Research Abroad program, which allowed me to spend three months at the Ibero-American Institute (IAI) in Berlin and access a huge amount of bibliographic and archival material that is inaccessible in Chile. The IAI, founded in 1930, is an interdisciplinary research and documentation center on Latin America, the Caribbean, Spain, and Portugal. The institute has the largest European archive on the Latin American world and receives tens of researchers from different parts of the world every year.

In addition, this research stay allowed me to meet and interview academics and researchers dedicated to Latin American thought and present the results of my research to teams of specialists. All this enriched my research process and helped me to advance in the elaboration of my thesis. Therefore, I am grateful to the Sylff Association for supporting researchers who have social commitments and whose research seeks to contribute to the strengthening of democracy, social justice, critical thinking, and democratic dialogue.

Multi-Dimensional Challenges, Multi-Sectoral Innovations: The Resilience of Common Forest Management in Japan

June 22, 2020
By 26719

Yance Arizona[1] is a 2011 Sylff fellow from the University of Indonesia and currently a PhD candidate at Leiden University in the Netherlands. Using an SRA award, he visited the Osaka University of Tourism in Japan and the University of New South Wales in Australia to sharpen the comparative elements of his research on customary land recognition in Indonesia. In this article, he focuses on lessons learned about the resilience of common forest management in Japan by discussing the challenges and innovations of state and nonstate actors.

*　*　*

Community-based forest management has a long history in rural Japan. Since the Edo period (1603–1868), rural communities have shared their collective land and labor to maintain forest and other natural resources for self-sufficiency. This model of natural resource practice is known as common forest management. The common forest, called iriai in Japanese, became integrated into the traditional village system.[2] The membership of iriai common forest groups is embedded in that of traditional Japanese villages (mura). However, common forest management has slowly changed over time due to internal and external factors since Japan entered the industrial revolution. This article discusses several challenges concerning the current practice of common forest management in Japan. I also reveal several initiatives by the government and citizens to restore collaborative forest management and to renew interest in rural development. The analysis in this article is based on interviews, literature studies, and observations conducted in two rural areas in Japan during my Sylff Research Abroad (SRA) fellowship in November and December 2019.

 

What Is the Common Forest in Japan?

Many scholars have used the iriai forest or common forest in Japan as an illustrative example of potential community-based management as an alternative to private property ownership and an extractive model of natural resource management (Mitsumata and Murata 2007; Berge and McKean 2015). For a long time, the rural population in Japan has collectively engaged in agricultural activities in shared communal land by planting trees, especially sugi and pine, to meet their daily needs. Iriai groups have collectively cleared, planted, maintained, and harvested forest products to provide mutual benefits among the members. The membership of the common forest group was initially based on the membership of a village. Since the Japanese government installed modern development programs, primarily through the Meiji Restoration (1868), many traditional concepts, laws, and activities have slightly changed. In the following section, I will discuss five concerns about recent developments in common forest management in Japan.

Five Challenges of Common Forest Management

The common forest practice in Japan faces multidimensional challenges. Here I will briefly discuss five major challenges of the common forest in Japan, including demographic, economic, environmental, institutional, and regulatory factors.[3] Firstly, legal uncertainty leads to misrecognition and disputes among iriai rights holders (regulatory factor). During the Meiji era (1868–1912), Japan’s Civil Code began to take effect. The Civil Code is a mark that Japan began incorporating a modern legal system inspired by the German and French legal traditions (Kanamori, 1999). Regarding the property right regime, the modern Civil Code strictly divides land property into private and public properties (Suzuki, 2013: 67–86). In short, private property is in the ownership of individual citizens, whereas public property belongs to the state or other public bodies. This dichotomy leads to uncertainty regarding the legal status of iriai forests because the iriai model cannot be categorized as either private or public property. As a result, Article 263 of the Civil Code considers the common forest to be in the co-ownership of a group of citizens. By contrast, Article 294 stipulates iriai as the right of the local population to use state land or forest. Neither of these articles represents the original model of iriai forest rights, which combine communal and individual land ownership.

Misrecognition of the legal status of the common forest in the Civil Code generates ambiguity in land registration practices. Iriai rights holders have to register their common land and forest under “nominal names” on behalf of other legal entities. Gakuto Takumura (2019) demonstrates six models of how iriai rights holders register their communal land rights. These six models of adaptation to the modern land administration system appear in the registration of a common forest on behalf of other legal entities, such as (a) a leader of a village, (b) several leaders of a village, (c) all household heads in a village, (d) a shrine or temple of a village, (e) a new municipality, or (f) a district, a cooperative, or an authorized community association. Registering the iriai right under nominal names has occasionally caused legal disputes among the iriai rights holders. One case that received much attention in Japan was the Kotsunagi case, which took decades for the courts to settle (Inoue and Shivakoti 2015).

 

The author gives a guest lecture on customary forests and tourism in Japan and Indonesia at the Osaka University of Tourism. Detailed information can be found at https://www.tourism.ac.jp/news/cat3/5810.html.

The second concern is government imposition of the modernization of iriai forest management (institutional factor). Besides the legal status, another institutional challenge to the iriai forest is the modernization of the rural administrative system. In the early period of the Meiji era, the Japanese government announced a policy to modernize village governments. The modernization of village government affects iriai forest management because iriai group membership was traditionally based on membership in a traditional Japanese village. This challenge parallels the general trend in rural Japan to merge villages rather than splitting them into several smaller villages. When two or more villages are merged, a question arises regarding the ownership and membership of iriai rights, whether it still belongs to the initial village that has merged or it becomes the co-ownership of the new village union.

Another striking policy by the Japanese government to modernize iriai forest management is the Modernization of the Common Forest Act of 1966 (Takahashi and Matsushita 2015). This act intended to transform traditional common forest practices into modern forest management. However, the implementation of this act did not result in a uniform model of forest management; instead, the act has been adopted in different models of forest management depending on the social conditions of iriai rights holders. Research by Daisaku Shimada (2014) revealed how rural communities in the Yamaguni district in Kyoto adapted to the Modernization of Common Forest Act and other external influences, such as population change and the timber liberalization policy in securing common forest management. Rural communities modify their common forest institution to allow migrants to be members of new forest management boards.

The third challenge is depopulation and urbanization (demographic factor). In contemporary Japan, depopulation and urbanization are central issues in the debate on rural development. Japanese society is experiencing depopulation because of a low birthrate and an aging population. At the same time, the urbanization level is dramatically high. Many young people move away to live in urban areas, leaving the rural areas mainly inhabited by older generations. Depopulation and urbanization affect the membership and decision-making process in common forest management. The membership of iriai forest groups shrinks as some of the members move to the city or elsewhere, causing a reduction of the workforce in the management of the common forest. In the past, iriai rights holders lived permanently in a village. When someone moved to other villages, his or her rights to the iriai forest vanished. Today, some people consider their rights to remain valid even when they have moved to other villages. Another problem in terms of people’s mobility concerns the decision-making process in common forest management. Traditionally, iriai rights holders decide on common forest management through a consensual agreement among the group members (Goto 2007). If a member of the iriai group is not involved or disagrees with the majority opinion, it means that the group has not reached a consensual decision. Currently, some iriai groups apply flexible categorization to their common forest membership by including newcomers to the board and involving them in the decision-making process. The lack of a clear decision-making process and a shrinking workforce have led to the underuse of iriai forests in several places in rural Japan.

The fourth problem is the timber liberalization policy (economic factor). In the 1960s, the Japanese government introduced a timber trade liberalization policy to support industrial development. This policy increased timber import from other countries, mainly from the United States, Russia, and Southeast Asian countries. As a result, this strategy decreased the competitiveness of domestic timber production and the economic value of wood, which has been the core commodity of common forests. Before the timber liberalization policy, the common forest supplied wood for building houses, offices, castles, and temples, as well as for making furniture, and provided firewood for cooking and heating. From the 1960s onward, as the country entered a period of rapid economic growth, Japan replaced the use of wood with other resources. The use of concrete and steel is more dominant for residential buildings and offices, and the use of fossil fuels in place of firewood is increasingly widespread. In addition, to meet domestic wood demand, the Japanese government no longer relies on domestic supplies and relies instead on imported wood. This timber import policy devastated Japan’s domestic timber production and market. Consequently, the core business of iriai forests, that of meeting domestic wood demand, has gradually declined. Lack of productive activities in rural areas also became one of the drivers for rural people to move to big cities.

 

Together with a group of postgraduate students from Kyoto University, the author visits a private forest in Kawakami Mura, Nara Prefecture. This forest site is the oldest planted forest in Japan.

The final concern relates to land degradation (environmental factor). Iriai rights holders maintain the common forest by growing supporting plants around the main trees. These plants support soil fertility and provide economic benefits to farmers. However, due to the shortage of labor to maintain the common forest, conifer plantations are left unmaintained. At first glance, this condition looks good for conservation, because forests are left green and trees grow for long periods. But apparently, this is not suitable for the healthy growth of the main trees because they are in competition with the shrubbery. Moreover, unmanaged conifer plantations cause frequent landslides in rural areas. These disasters are compounded by the typhoon and earthquake catastrophes that often occur in Japan. This environmental vulnerability is not only the cause but also the result of underutilization of the common forests.

Revitalization Movements

The revitalization of common forest management in Japan corresponds with an attempt to improve rural livelihoods. The Japanese government and nongovernmental organizations engage in rural development, including the revival of common forest management. The Japanese government, through the Ministry of Internal Affairs and Communications, implements a program to increase the interest of urban residents, either Japanese citizens or immigrants, in living in rural areas. These people from different locations assist rural community members in meeting their basic needs, especially related to health and livelihood. Moreover, the Japanese government promotes a “forest volunteer program” to attract people’s interest in getting involved in forest restoration activities. Forest volunteers are individuals other than forest owners or those with a direct interest, who participate in on-site work necessary for forest management in response to the critical state of the forests. Shinji Yamamoto (2003) found that the forest volunteer program has been generating a positive impact on drawing urban people’s interest in forestry activities. This program began in the 1970s and has since spread across the country. According to Japan’s Forestry Agency, the number of citizens’ organisations that have participated in forest volunteer activities was 2,677 as of 2010 (Yamamoto 2003). 

Nonprofit organizations and universities also run several programs to enhance the interest of young generations regarding rural livelihood and environmental management. A crucial example is the kikigaki program. Literally, kikigaki consists of the words kiki (“listening”) and gaki (“writing”). The kikigaki program encourages young people to take an interest in the stories of local people. Kikigaki is a learning method for understanding someone’s life story through direct dialogue. Since 2002, high schools in Japan have adopted the kikigaki method to raise students’ awareness of societal problems faced by rural communities (Effendi 2019). Due to the increase in global attention toward environmental issues, the kikigaki program also covers environmental education for children. Environmental issues allow students to get involved in the revitalization of common forest management. The kikigaki program initially developed in Japan and spread out to other countries, such as Indonesia. I interviewed Motoko Shimagami, who is developing kikigaki programs in both Japan and Indonesia. According to Shimagami, youth involvement is an essential factor in improving rural livelihood and sustainable environmental management. Several years ago, Shimagami conducted a comparative study of common forest management between Indonesia and Japan (Shimagami 2009) and found that similar methods of revitalization of the common forest through the education of high school students are pivotal in both countries.

 

Matsutake Crusaders, a voluntary group dominated by elders who gather every week to maintain a hill landscape, creating a suitable condition for matsutake mushrooms to grow.

Another initiative that I have seen in Japan is the ecovillage network. An ecovillage is an intentional, traditional, or urban community that is consciously designed through locally owned participatory processes encompassing social, cultural, ecological, and economic dimensions to regenerate social and natural environments.[4] In 2013, I visited the Konohana Family ecovillage in Shizuoka Prefecture. This ecovillage is part of a worldwide ecovillage network. The Konohana Family, though it calls itself a family, consists of 100 members who are not of the same blood. They live in rural areas and cultivate collective agricultural land. With the spirit of “togetherness” as a family, they fulfill basic needs through collective land management. During my visit to Japan with the support of the SRA fellowship program, I visited the Matsutake Crusaders in the northern part of Kyoto. This group consists of more than 30 retirees who gather once a week to engage in collaborative natural resource management. They nurture matsutake, a wild mushroom typical of Japan that has high economic and cultural values (Tsing 2015). They voluntarily cut some pine wood as a precondition to creating a suitable environment for matsutake to grow. Professor Fumihiko Yoshimura, the leader of this group, said that although this initiative is different from the iriai rights model, they called it a satoyama movement. The satoyama concept in landscape management combines forest and agricultural activities, mainly in hill areas. Currently, many rural communities in Japan are involved in satoyama movements (Satsuka 2014). In another location, a study by Haruo Saito and Gaku Mitsumata (2008) shows the integration of matsutake production with traditional iriai land use in Oka Village, Kyoto Prefecture.

This article has illustrated five major challenges of common forest management in Japan. These challenges are responded to with a variety of innovations by the government and nongovernment organizations to help the common forest practices survive in supporting rural livelihood. These innovations to revitalize community-based natural resource management have been developed with various narratives such as environmental movements, rural livelihood supports, family and community orientation projects, and voluntary civic education. Although rural communities have encountered serious challenges since Japan entered industrial development, villagers continue to maintain the common forest with some modifications. Villagers demonstrate the resilience of common forest management by taking an inclusive approach that includes migrants in the board membership of common forest management and by involving themselves in broader networks of community-based natural resource movements. Community resilience is the crucial factor in common forest management in Japan.

 

References

Berge, Erling, and Margaret Mckean. 2015. “On the Commons of Developed Industrialized Countries.” International Journal of the Commons 9, no. 2 (September 2015): 469–85.

Effendi, Tonny Dian. 2019. “Local Wisdom-based Environmental Education through Kikigaki Method: Japan Experience and Lesson for Indonesia.” IOP Conference Series: Earth and Environmental Science 239: 012038. https://doi.org/10.1088/1755-1315/239/1/012038.

Goto, Kokki. 2007. “‘Iriai Forests Have Sustained the Livelihood and Autonomy of Villagers’: Experience of Commons in Ishimushiro Hamlet in Northeastern Japan.” Working Paper Series No. 30. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Inoue, Makoto, and Ganesha P. Shivakoti. 2015. Multi-level Forest Governance in Asia: Concepts, Challenges and the Way Forward. India: Sage Publication.

Kanamori, Shigenari. 1999. “German Influences on Japanese Pre-War Constitution and Civil Code.” European Journal of Law and Economics 7, no. 93–95. https://doi.org/10.1023/A:1008688209052.

Mitsumata, Gaku, and Takeshi Murata. 2007. “Overview and Current Status of the Iriai (Commons) System in the Three Regions of Japan: From the Edo Era through the Beginning of the 21st Century.” Discussion Paper No. 07-04. Kyoto: Multilevel Environmental Governance for Sustainable Development Project.

Miyanaga, Kentaro, and Daisaku Shimada. 2018. “‘The Tragedy of the Commons’ by Underuse: Toward a Conceptual Framework Based on Ecosystem Services and Satoyama Perspective.” International Journal of the Commons 12, no. 1: 332–51.

Saito, Haruo, and Gaku Mitsumata. 2008. “Bidding Customs and Habitat Improvement for Matsutake (Tricholoma matsutake) in Japan.” Economic Botany 62, no. 3: 257–68.

Satsuka, Shiho. 2014. “The Satoyama Movement: Envisioning Multispecies Commons in Postindustrial Japan.” In Asian Environments: Connections across Borders, Landscapes, and Times, RCC Perspectives, no. 3: 87–94.

Shimagami, Motoko. 2009. “An Iriai Interchange Linking Japan and Indonesia: An Experiment in Interactive Learning and Action Leading toward Community-Based Forest Management.” Working Paper Series No. 46. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Suzuki, Tatsuya. 2013 “The Custom and Legal Theory of Iriai in Japan: A History of the Discourse on the Position of the Rights of Common in the Modern Legal System.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo-New York-Paris: United Nations University Press.

Takahashi, Takuya, and Koji Matsushita. 2015. “How Did Policy Intervention Work Out for Commons Forests in Japan? An Analysis of Time-Series Prefectural Data.” Paper in the IASC Conference 2015 Edmonton W23 (2015-5-27).

Takamura, Gakuto. 2019. “The Bundle of Rights Model to Explain the Underuse of Japanese Common Forest from History.” Presentation in Asian Law and Society Association (ALSA) Conference, Osaka Univesity, December 12–15, 2019.

Tsing, Anna L. 2015. The Mushroom at the End of the World: On the Possibility of Life in Capitalist Ruin. Princeton: Princeton University Press.

Yamamoto, Shinji. 2003. “Forest Volunteer Activity in Japan.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo–New York–Paris: United Nations University Press. 287–302.

 

 

 

[1] I would like to express my gratitude to Professor Sozaburo Mitamayama (Osaka University of Tourism) for his hospitality and assistance during my research visit in Japan. I am also thankful for a series of insightful discussions that I have had with Motoko Shimagami (Ehime University), Gaku Mitsumata (Hyogo University), Gakuto Takamura (Ritsumeikan University), and Mamoru Kanzaki and Daisuke Naito (Kyoto University), and for the fruitful comments by Hoko Horri (Leiden University) for this article.

[2] In this article, the terms “common forest” and “iriai forest” are used interchangeably.

[3] See also Kentaro Miyanaga and Daisaku Shimada (2018), who identify three main driving factors that lead to the underuse of common forests in Japan: demographic drivers, socioeconomic drivers, and institutional drivers.

[4] See. https://ecovillage.org/projects/what-is-an-ecovillage/

Strengthening Journalists’ Election Reporting Skills as Ethiopia Transitions to a Democracy

May 18, 2020
By 24666

In November and December 2019, Mulatu Alemayehu Moges, PhD, now an assistant professor of journalism and communication at Addis Ababa University, organized a training workshop for Ethiopian journalists ahead of the country’s first general election under Prime Minister Abiy Ahmed, originally scheduled for May 2020. Moges sees the political transition to a democracy under the new prime minister as an opportunity for better-trained journalists to make a significant contribution to free and fair elections.

*     *     *

I was interested in training and capacitating Ethiopian journalists on various themes. While I was working as a journalist in the local media, it was very clear that the Ethiopian media faced many problems. For instance, while most journalists had attended formal journalism school, they were not ready to apply the principles they learned in practice. Most were also not able to make full use of the technological advances being made in journalism, and there was a need to make reporting more professional.

The author facilitates the training.

In 2018, I served as a resource person for the National Electoral Board of Ethiopia and facilitated two training programs for journalists and communication officers on the election, media, and democracy. Through this experience, I realized that journalists and communication officers lacked a thorough understanding of the election process, particularly, the ethical principles, legal issues, and other technicalities that were very important in election reporting.

From my discussions with experts on the electoral board, I also realized that one of the reasons for the low turnout and the disqualifying of some votes was a lack of clear understanding about the election process and voter engagement.

Last year, I was invited to train journalists and communication experts on the media, democracy, and elections, giving me an opportunity to observe the skills and knowledge of the trainees, particularly on election reporting. The experience prompted me to write a proposal to the Sylff Association.

For Free and Fair Elections in Ethiopia

Training on election reporting is important for several reasons. First, Ethiopia has been undergoing a political transition since Abiy Ahmed became prime minister. This transition has opened new opportunities for Ethiopian politics, making the upcoming general election highly anticipated and very competitive. Most opposition parties have been allowed to return to the country, and they are now freely restructuring and reorganizing themselves for the election. The government has opened up the political discourse, giving not only political groups but also individuals a chance to express their ideas freely through the media and other outlets.

The current government of Ethiopia has promised to end the kind of malpractices seen during earlier elections and to have a free and fair election. This makes it all the more important for the media to make a positive contribution to the election process, since freedom of expression and a free media are imperatives for a free and fair election. Media pluralism and the professionalization of journalists are crucial, and they should be addressed before the election campaign begins.

Among the key questions to be considered are how citizens are accessing neutral information about competing candidates, their political parties and policies, the election process, and voting guidelines; whether the political parties are freely carrying out political debates on the public media; whether the media is serving as a platform for such communication during the election period; and how well the journalists are trained in providing information about election processes to the general public in a timely and unrestricted manner. Accurately reporting on the political campaign and providing voters civic education are determining factors for ensuring both a fair election and high turnout. It is up to the media to connect the electoral commission and the candidates with the voters. This shows how the media can play an indispensable role in the election.

Training Ethiopian Journalists

All the above-mentioned points motivated me to apply for a Sylff Leadership Initiatives grant to facilitate training workshops for Ethiopian journalists who are expected to report on the upcoming election. The training program aimed to have an impact on 100 journalists on election reporting and on educating the public. In the workshops, experts were invited to make presentations on issues related to election reporting, the media, democracy, ethics of election reporting, election and media laws, access to information, and the right to information during the election. Participants were also encouraged to engage in group discussions.

Participating journalists engage in a group discussion.

The main objective of the workshops was not to train all Ethiopian journalists but, considering the budget and time, to approach editors and senior journalists in influential positions in their media organizations. Reaching out to these editors could be expected to have a trickle-down effect on junior journalists in two ways.

The first is that participating journalists may be able to arrange and facilitate similar workshops in their respective outlets. With this expectation, the organizers shared all the training materials with the participants, and some have already conveyed their insights to their colleagues. Two participants from the Amhara media agency, for example, have organized a training program at their organization. 

The second is that since they are in senior positions in their media organizations, these participants will have many opportunities to mentor and coach journalists who are working under them. From my own practical experience in the Ethiopian media, journalists learn a lot from their seniors. This is another way that the workshop can have an impact on even those journalists who did not attend the training. 

Such mutual teaching and learning were also observed during the training sessions. Some of the participants were very experienced, having worked in journalism for two decades and covered the last three general elections. There were senior editors and program producers who shared their practical experience in the Ethiopian media with other participants. In addition, having diverse training participants from community radio stations and both the public and private media across the country made the discussions lively and interactive. In some cases, journalists drew from their practical experience to substantiate the points they were making on the subject matter being discussed.

Sharing past coverage experience during a group discussion.

When the project was being designed, I expected at least 40% of the participants to be women. For unforeseen reasons, though, the number of female journalists enrolling, particularly in the first round, was very small. They were nevertheless very active during the training sessions, engaged in raising issues and questions and providing answers. They were also active in presenting ideas during the group discussion. 

A presentation by a female participant.

Expected Outcomes

The media, especially the mainstream media, plays a major role in raising awareness among the voting public. Radio, for example, still claims large audiences in Ethiopia, and a substantial share of people access information from radio programs. Some of the participating journalists worked at radio stations at the national, regional, and community levels, and they learned important lessons in educating voters and the public.

From this fact, the project can be said to have played a role in potentially increasing voter turnout around the country, and particularly the rural areas where people tend to be less educated. This can also lead to greater participation of youths and youth groups as journalists cover issues related to the electoral process, election guidelines, and ethical practices.

In the civic education section of the training, issues related to values, attitudes, and behaviors of electorates and candidates were thoroughly discussed, so these trained journalists will know how to behave during an election. Usually, youths are the ones who will take to the streets to demonstrate if they feel that an election was rigged or perceive irregularities in the electoral processes. By applying what they have learned in the workshop, journalists may be able to minimize the risks of electoral fraud and its consequence.

Last but not least, the project will play a direct role in the democratization process of the country. Free and fair elections are the foundations of a democratic system, so this project will have a multifaceted significance.

Organizing the training workshop was not an easy task, and it was not without its challenges. But we were able to hold it in a timely manner thanks to the cooperation of many parties. I would like to particularly thank the Sylff Association, UNESCO, and the Ethiopian Broadcast Authority for making my dream come true. The workshop would not have been successful without their support, encouragement, and follow-up. 

Related article on the Ethiopian Press Agency website:
https://www.press.et/english/?p=15482#

On Principles in Japanese Law

May 12, 2020
By 24601

Using an SRA award, Miloš Marković, a 2017 Sylff fellow from the University of Belgrade, visited Japan between November 2019 and January 2020. His main goal was to explore and assess the application of legal principles in the modern sense as constitutional rights in Japan by interviewing legal scholars as well as lawyers and judges there.

* * *

Historical and Motivational Background

The distinction between legal rules and legal principles has been in the center of much theoretical thought in the past few decades. The beginning of a broad discussion was marked by Dworkin’s major challenge of legal positivism.[1] Eight years later, Alexy brought the topic to a whole new level by developing a theory of constitutional rights as principles.[2] The principles theory even evolved into a full-fledged theory of law.

The main difference between these rules and principles is how to resolve their conflict. When two legal rules come into conflict, one of them is abolished or excepted. Only one of two norms prescribing different deadlines for the same complaint may be valid, not both. When two legal principles come into conflict, both remain valid and neither is declared an exception, yet one overweighs the other under the specific circumstances of the case. Freedom of trade and the protection of customers may intersect and conflict and determine the outcome of the case, yet neither has absolute priority in application over the other.

The author, left, with one of the interviewees at a law firm in Tokyo.


When I first approached the topic of legal principles in the course of doctoral studies, it was clear from the start that the comparative dimension would play a major role in the research. Legal systems to be taken into consideration were as usual French, Austrian, German, and American. However, the major legal systems in the Far East has always inspired curiosity among European lawyers. Unfamiliar customs, different religions, exotic dishes, and undecipherable scripts keep China, Japan, and Korea mostly under a veil of unknown for people in Serbia and other European countries. Legal transplants from the West in the cultural environment of East Asia seemed to drift farther away from their original meaning than elsewhere. After completing two research stays in Austria and Germany, the main reason for my choice of Japan as a host country to investigate legal principles in a comparative perspective was the historical influence of German law.

The modernization process in Japan began in 1868 with the fall of the Tokugawa Shogunate, which had ruled the country for two and a half centuries.[3] Faced with the threat of being colonized by Western countries, the Meiji government set out to establish a modern legal system in conformity with European tradition and renegotiate unfair commerce treaties.[4] France was believed a leading European country with comprehensive legal codes, and French scholars were invited to draft codes for Japan. For the first time, Japanese words had to be invented for the concepts of right, freedom, and liberty, as well as property over land. However, the French drafts triggered strong criticism for violating the traditions of Japan, so the government decided to rely more on German scholars. Ultimately, the whole legal system was modeled on German law. The first Constitution of Japan was enacted in 1889, and the first Civil Code in 1898. Japan thus became a civil law country.

Having in mind that German law exercised influence in Japan in ages past, I reckoned that the modern principles theory as developed by the German Federal Constitutional Court might have already been accepted independently by the courts in Japan due to the shared legal tradition. A comparison of statutory norms and judicial decisions should point out differences and similarities between major legal systems and thus prove the universality of the principles theory. That hypothesis motivated me to set sail for the land of the rising sun.

Original copy of the Constitution of Japan enacted on May 3, 1947, as the new constitution for a post–World War II Japan.

Choice of Methodology

My primary method consisted of interviews with Japanese scholars and judges to learn what they know and what importance they assign to the principles theory. However, things did not go completely as planned for two reasons. First, the language barrier made online communication with both courts and faculties practically impossible. Since contact e-mails turned out to be unavailable on official websites and some letters remained unanswered, plans to arrange a meeting on my own were thwarted. Second, the physical barriers at the entrances of law faculties prevented access without invitation and thus hindered me from seeking assistance independently.

Consequently, meetings were exclusively arranged on the recommendation of an acquaintance or the supervisor himself.[5] Such recommendations prompted better preparation and substantial interest on the part of the interviewees. Everyone put much effort into disentangling complex questions and discussing them on a practical level. All in all, I had fewer yet longer, better, and more insightful discussions with lawyers in Japan than originally envisioned.

My secondary method was supposed to be to gather data via computer analysis of judgments based on the word “principle.” However, it turned out that decisions of Japanese courts are rarely translated into English. In addition, fieldwork showed that a reliable translation of a judicial decision requires long work, rich legal knowledge, and mastery of both languages, and thus much money. As a result, the original proposal ran ashore. To overcome the obstacle, I turned to books on Japanese case law and searched myself for principles hidden within the reasons adduced.

 

Research Findings

My research in Japan confirmed the hypothesis that every legal system necessarily includes principles besides rules. At the outset of each interview, Japanese judges tended to understand principles as unwritten legal norms and were majorly averse to the idea that they play a role in the decision-making process. The only reasons for a judgment should be rules as prescriptions. However, when confronted with hard cases, judges usually admitted that rules are insufficient to justify a decision. They must then reach out for more general rules or the purpose of a rule. When asked to solve a conflict between such abstract norms, judges agreed that such conflicts cannot be solved by abolishing one of them or declaring one an exception.

Interviewed judges keenly defended the position that a solution to each case can be found in rules by means of an adequate interpretation. The meaning of each norm can be narrowed or broadened in order to exclude or include different cases and provide a solution. An interesting detail from the conducted interviews was the opinion that the first and foremost norm in the Japanese Civil Code, “good faith,” represents a rule. Such reasoning shows that judges tend to regard every case from the standpoint of only one norm. However, it is inevitable that norms sometimes overlap or intersect, in which case only a cluster of norms may provide a basis for decision. Principles come into play when such a conflict is irresolvable by means of abolition and exception.

An illustrative example is the “After the Banquet case,” in which the Tokyo District Court had to decide about an alleged violation of privacy.[6] A novel was published by the famous Japanese author Yukio Mishima. Although the names were altered, practically everyone could recognize that the model in the book was Foreign Minister Hachiro Arita. The court obviously had to balance between right to privacy and freedom of speech, or freedom of artistic expression, as Japanese lawyers like to put it. In 1964 Japan obtained its first judicial recognition of the right to privacy. Mishima lost the case and tried to bring the case to a higher court, but the foreign minister died, and a settlement was reached between the two sides. From the standpoint of principles theory, it is important that no right was abolished or declared an exception. The discussed judgment is clear evidence that in Japanese law some norms function as principles, and those are primarily constitutional norms awarding rights.

The author in front of the Akamon gate built during the Tokugawa Shogunate. The gate is located at one of the entrances of the University of Tokyo’s Hongo campus, where he was based during his research in Japan.


It was remarkable to find an analogous case in Europe. Photographs of Princess Caroline of Monaco were published in several magazines. The case was brought before the German Federal Constitutional Court. In order to reach a decision, the court had to balance two constitutional rights: freedom of speech and right to privacy.[7] For the majority of photos the freedom of speech was given priority due to the status of the complainant as a public personality. However, three photos where the complainant was with her children were deemed to infringe disproportionally on their privacy, which is why priority switched to the right of privacy. The main point is that the first principle overweighed the second and vice versa under respective specific circumstances, yet both principles remained valid and no absolute hierarchy was introduced. Had the court abolished one of the conflicting norms or declared one to be an exception of the other, those norms would have been treated as rules.


Related news on the Sylff website:
https://www.sylff.org/news_voices/27360/ 

[1] Ronald Dworkin, “A model of Rules I,” Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 14–45.

[2] Robert Alexy, Theorie der Grundrechte (Berlin: Suhrkamp, 1986), 71–154.

[3] James L. McClain, Japan: A Modern History (New York: W.W. Norton & Company, 2002), 119–207.

[4] Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Portland, OR: Hart Publishing, 2011), 7–13.

[5] In that regard, I am much indebted to Professor Yasunori Kasai and Professor Masayuki Tamaruya, as well as the Sylff Association.

[6] Judgment of Tokyo District Court, 1964, Kaminshu 15-9-2317. There is no translation of the sentence available online. I am much obliged to Professor Hitoshi Nishitani for the particulars of the case.

[7] https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/1999/12/rs19991215_1bvr065396en.html