Author: Andre Coleman

How do the boxing scenes in The Iliad and The Aeneid fit in with the ideal of the Classical Hero?

CONTENTS

Introduction

The Ideal of the Classical Hero in Ancient Greek and Roman Culture

Boxing in the Ancient World

Homer

Virgil

Plato

Conclusion

Bibliography

Introduction

Ancient Greek and Roman literature was a vital tool in the construction of the ideal of the classical hero. Augmented by the classical architecture and sculpture, classical mythology and literature made sure that the fictional role of the hero became fixed during the pre-Christian and early Christian realms of the Aegean and Mediterranean Seas. In keeping with the dominant, male?centric vision of ancient society, the hero was always a male, always athletic and always skilled in the arts of fighting and warfare. This basic cultural fact is as true of Homer as it is of Virgil. In fact, all of the great classical writers saw the edification of the literary hero as the latest in a long line of succession beginning with Achilles and continuing in a linear fashion up to the heroes created by the late Roman Republic. In this way, a certain symbiosis is detectable between Greek and Roman cultures with the Romans being seen to have adopted and adapted a great many of the Greek ideals pertaining to civilisation.

This obsession with creating the perfect fictional male hero necessarily had consequences for the real?life political and military constitution of the ancient world with classical conquerors such as the Macedonian King Alexander the Great providing the political manifestation of the classical hero as idealised in The Iliad and The Aeneid. As with Alexander, separating the myth from the fact provides the historian with the greatest challenge when reading ancient literature (Worthington, 2004).

For the purpose of perspective, the following examination into the boxing scenes of a selection of landmark ancient literary works must adopt a chronological approach, tracing the work first of Homer before necessarily turning attention towards subsequent writers, including Virgil and Plato. Each book will be analysed in individual detail so as to form a synthesis as to the depiction of the classical hero in ancient culture, although the central focus will be on, first, The Iliad and, next, The Aeneid. A conclusion will be sought that attempts to highlight both the similarities and differences of the various accounts of boxing and heroism in ancient Greek and Roman society in relation to our own. First, however, a brief overview of the idealised hero in the ancient world must be ascertained in order to establish a conceptual framework for the remainder of the discussion.

The Ideal of the Classical Hero in Ancient Greek and Roman Culture

The ideal of the classical hero emerged in the archaic period that can be traced back to the tenth century BC. This is the point at which the emerging city states of the Mediterranean and the Aegean began to vie for supremacy in the region, which signalled the formation of large land based armies and military style cultures that whose ultimate success or failure was determined by warfare and conquest. It is at this time that we first begin to see the mass distribution of the kouros figurines in ancient Greece, which were male, military figures depicting the archetypal soldier/hero in the archaic period. The kouros were made as lean, muscular fighters, perfectly proportioned and balanced upon their rostra. They serve to show how, even before the advent of Homeric heroism, there was a tangible link between militant athleticism and the idealised conception of the ancient Greek hero. This remained true of the whole ancient period, from Homer to Plato to Virgil to Pindar.

After the advent of Homer’s poetry the link between the idealised male Greek body and the concept of the hero become further institutionalised in ancient Greek art, literature and culture. In place of the ubiquitous image of the kouros came the classical depictions of ancient heroism with the body in particular taking on a more divine form in the major Greek artistic expressionism of the Classical and Hellenistic periods. As a result, we begin to see artwork such as the bronze statue found in Rome dating from circa 150 BC that shows the bruised torso of the classical boxer with another similarly dated artefact highlighting in copper the blood dripping from the boxer’s battered face. This fusion of the scantily clad male form with the ideal of the classical hero is one that could not have prospered without there first being in place a certain kind of ancient Greek philosophy that revelled in the masculine depiction of the human form.

“Greek confidence in the body can be understood only in relation to their philosophy. It expresses above all their sense of human wholeness. Nothing which related to the whole man could be isolated or evaded; and this serious awareness of how much was implied in psychical beauty saved from the two evils of sensuality and aestheticism.” (Clark, 1985:21)

This visual idealisation of the ancient Greek hero was transferred to literature in both the Greek and Roman worlds where the more primitive notion of the hero being confined to purely military pursuits expanded so as to include athletic endeavours and sports. In essence, while the heroes of the archaic period were warriors, the heroes of the Roman Republic were sportsmen as well as conquerors although the essential attributes of both incarnations of the hero remained the same throughout both the Greek and Roman realms. As time went by, the hero had to be skilled in the arts of warfare, in dexterity as applied too athleticism and, increasingly, he must have been shown to display honour and virtue so that his moral conduct dovetailed his physical prowess. This was as true of Achilles as it was of the Roman Emperors of the Republic; a hero could not be lauded if he was not mentally as well as physically superior to all men.

It should be noted that there was a certain sense of arrogance that permeated both the ancient Greek and Roman conceptions of the hero in this athletic and virtuous context, which is very evident in the literature at this time. For instance, the ancient Greeks, like the Romans after them, saw all athletic pursuits as uniquely Hellenistic – physical endeavours that marked the ancient Greeks out as discernibly different and superior to their contemporaries. No other civilisation could have been skilled in the sports that enthralled the Greeks. This is a basic feature of any hegemonic, imperialistic culture that has achieved regional and political dominance over its neighbours. If one thinks of, for instance, the way in which the United States has monopolised its own sports by making, for example, baseball into a ‘world series’ even though it is not played outside of the North American geopolitical sphere of hegemonic influence, then we can see how sport becomes an essential part of the national character and of the maintenance of a hegemonic civilisation. This was an important feature of both the Greek and Roman worlds.

There was therefore a sense of inherent arrogance attached to the idealisation of the hero and all of the arts that he was well versed in – be it boxing, running or wrestling. In some ancient societies this emphasis upon sporting pursuits became the defining feature of that civilisation. The Spartans (who were said to have invented the sport of boxing as a direct result of their distaste for wearing traditional military helmets), for instance, separated their society along male?female lines, taking the young boys away at the age of eight where they would be made to endure years of training in physical pursuits such as boxing and fighting. The cumulative result was two fold. On the one hand, the Spartans were arguably the most fearsome fighting culture of the ancient world with a reputation that spread from Athens to Persia in the sixth and fifth centuries BC (Kennell, 1995). On the other hand, the over-emphasis upon sport and competition resulted in an arrogant and isolated world view that was promulgated in Sparta whereby the Spartans were never willing to even enter into negotiations or compromise with competing city-states. This, ultimately, contributed to Sparta’s downfall as the reliance upon heroism, valour and military pursuits came at the expense of instilling the requisite political skills needed to maintain parity in an increasingly sophisticated ancient world.

It can be seen that the ideal of the hero was somewhat fixed in the ancient world, for the most part completely unchallenged in any kind of cultural or societal sense. Indeed, the only major challenge to the idealised conception of the hero in ancient Greece and Rome came with the advent of the class system. The Classical Greeks were the first to incorporate a division between active and passive citizenship that the Romans turned into a much more rigid caste structure that prevented the vast majority of the population from holding office and from acquiring the skills of the state. This, in turn, had a major impact upon the kind of hero who was to emerge from the boxing arena or from the gladiatorial spectacles of Imperial Rome. To be a virtuous hero, one had to be from a cultured class. This necessarily impacted upon the writing of ancient Greek and Roman chroniclers who revelled in the brutality and barbarism of the fighting credentials of some of the lower classes. Thus, much of the literary description of boxing scenes in the ancient world is tinged with an inevitable hint of sycophantism and exaggeration of the true nature of the fighting taking place due to the inherent arrogance of the ruling classes, which was fuelled by their distaste and disgust of the lower classes. Consequently, and as ever with regards to ancient source material, caution must be the historian’s constant companion when appraising scenes of competition and boxing in ancient Greek and Roman texts.

Boxing in the Ancient World

Before commencing detailed analysis of the portrayal of boxing in The Iliad, mention must be made of the difference between the ancient conception of boxing and the way that it is understood in the modern world. While both pursuits have been labelled as ‘sports’, boxing in the ancient era was a much more vicious and, indeed, life threatening pastime. Boxers in the ancient world fought until one of the competitors was either knocked unconscious or was battered into such a state of submission as to be wholly unable to continue the fight at which point the contest would be brought to a close by a recognised adjudicator. Therefore, unlike in the modern day, there were no Queensbury rules to abide by, although both the ancient Greeks and the Romans preferred their boxing heroes to fight with their fists and to incorporate a great deal of aestheticism into their art. Thus, a boxer would not be considered to be heroic or iconic if he fought in what we would understand as a ‘dirty’ way. Fairness was adjudged to be as worthy a personal attribute as valour. This basic moral premise was first established by Homer where the dirty fighters (usually the Trojans) are soon despatched by the remorseless and unforgiving gods. Likewise, a boxer could not be considered to be a hero if there was not the omnipresent threat of death and destruction to contend with. Only by battling against fierce odds and an even fiercer fate should he lose could the ancient boxer lay claim to the title of ‘hero’. “As Pindar wrote, ‘prowess without hazard has no honour among men or among the hollow ships.’” (Poliakoff, 1995:113)

In addition, it is also important to note that boxing in the ancient world was closely allied to warfare, which is not true of the pugilistic sport as it is conceived of in the modern day. This is primarily because ancient societies were constructed upon and around the spectre of external war with competing neighbours as well as internal war between competing kinships and tribes all vying for political and military power. This fusion of militarism and culture continued to rise with the advent of the Roman Empire – a state conceived of almost solely via military conquest.

“The Greek world was a complex mosaic of communities, often at war with each other or outside powers. In Rome, the focus is on a single state. From the earliest days, war was at the heart of the life of the Roman people. They fought wars almost every year. Annual rituals marked the opening and closing of the campaigning season.” (Rich, 1993:1)

Moreover, unlike today, ancient warfare was conducted without the aid of industrial weaponry. Therefore, the skill of being able to defend oneself with one’s fists was considered to be a particularly attractive attribute in both ancient Greece and ancient Rome. Indeed, being a skilled and able boxer was considered to be an ample substitute for a perceived lack of skills relating specifically to warfare, such as ability with a sword or a spear. As Michael Poliakoff (1995:113) declares, “his [the soldier’s] compensation is his boxing prowess, so vital to his identity that a match with a fellow soldier elicits his most violent jealousy for honour and recognition.”

Thus, boxing became a substitute as well as an augmentation of warfare in the ancient world. In this way, generals were able to make sure that their soldiers were in a constant state of awareness for battle – to the extent that they were made to fight against one another during lulls in the war so as to maintain vigilance in the art of fighting. In this way, boxing was a non?specific as well as a specific sporting endeavour that had usage in a variety of different ways. It was the ultimate expression of masculinity. Indeed, manhood could not be said to have existed without recourse to blood and combat sports such as boxing, wrestling or pankration (an ancient Greek mode of martial art that was first introduced to the Olympic Games in 646 BC).

None of this, of course, is to state that the practice of boxing remained uniform throughout the period between Homer’s Iliad and Virgil’s Aeneid. There is a discernible evolution of boxing techniques and practices that occurred during the transition from the Greek to the Roman stage. The most obvious difference occurred with the himantes – the pieces of cloth that were tied around the boxers’ knuckles and wrists before he commenced the bout. In the Homeric era, the himantes would have been made of ox hide (not pigskin, as it left wounds that were particularly painful and slow to heal). This, in turn, meant that boxing matches tended to last longer in the Homeric era as the ‘soft’ cloth that was placed around the boxer’s wrists and knuckles curtailed too many excessively damaging injuries as a result of blows landed during the fight itself. In the later Classical period of ancient Greece, a harder himas replaced the softer cloth with a leather ‘shield’ that was strapped across the boxer’s forearm. Thus, boxing became more brutal and more closely allied to the concept of the gladiator that would appear in ancient Rome. Indeed, it was the Romans who took the paradigm of combat sports to a new level by creating a new kind of boxing glove, the caestus, which was “commonly loaded with metal and glass fragments. A single punch could be lethal.” (Miller, 2004:54)

It can be seen that the ideal of the heroic boxing champion changed markedly from the sport’s first inception in the Olympic Games in 688 BC to the advent of the bloodthirsty Roman incarnation of ancient contact sports where blood was demanded by society at large. Clearly, therefore, there must have been a sizeable gap between the kind of mythical boxing relayed by writers such as Homer, Pindar, Virgil, Aristotle and Plato and the kind of boxing that was seen at the Olympic Games and at Greek and Roman boxing arenas in the ancient world. Consequently, we must be careful not to confuse the theoretical writings of classical authors with the pugilistic realities of competition sports in the classical epoch.

Finally, mention must briefly be made of the audience – the most important commodity in ancient combat sports in the ancient Greek and Roman periods. It should be noted that the spectator went to the Olympic Games and to gladiatorial contests to watch a dangerous fight take place where the stakes were high for both competitors and the audience alike. The spectators did not attend games to see boxers who did not conform to this sporting stereotype. Therefore, boxing became a microcosm of the militant ancient societies of Athens and Rome whereby the fighters were able to satisfy the spectators’ (as well as their own) bloodlust. This is a highly significant point and one that ought to be borne in mind throughout the remainder of the discussion at hand: boxing in the ancient world represented the heroic ideal of all of society, not just of the fighters and the men who wrote about those fighters for the sake of posterity. However, the writers whom we speak of herein were not privy to such masculine prowess. As a result, Classical authors including Pindar and Aristotle commented on boxing, wrestling and other combat sports with a decidedly envious eye that reflected the primacy of physical endeavour of mental aptitude in the ancient world.

Regardless of the bias and lack of manly insight of the majority of the primary source material, this prevailing cultural fact did not change during the transition from Roman to Greek regional hegemony in the last two centuries before the birth of Christ. Manliness was constantly associated with sports, combat, fighting and physical prowess; philosophy, politics and science remained the realms of the womanly wise. Heroism was a manifestation of these positive male character traits. With this essential historical background in mind, attention must now be turned to the depiction of boxing in The Iliad – the first point of reference for any literary study of ancient Greek culture and values.

Homer

The Iliad is a literary masterpiece that is dedicated to warfare and its consequences both for humans and gods alike. It is “a poem that lives and moves and has its being in war, in that world of organised violence in which a man justifies his existence most clearly by killing others.” (Knox, 1990: Introduction li) The Iliad consequently represents the most blatant mixture of militarism and heroism of any of the great literary works of the ancient period. Its depictions of boxing are located within this ode to war and act as a continuation of the fighting during periods when the Greeks and the Trojans have fought themselves to a stalemate. Boxing also provides Homer with the opportunity to lament the fate of the central heroes within the poem via the spectacle of funeral games. At heart, The Iliad is therefore a tragic poem, epitomised by the tragedy that befalls the two central protagonists of the struggle between the armies of Greece and Troy, namely the legendary Greek warrior/fighter Achilles and his Trojan adversary Hector (Redfield, 1993:99?127).

The skill of the boxers and fighters that are detailed within The Iliad is in correlation to the characters’ favourable or unfavourable relationship with the gods. In this way Homer infuses boxers with only moderate skill with the kind of energy, rage and pugilistic prowess that would usually be reserved only for the heroes. Thus, physical power is something that is bestowed upon men by the whim of the gods as well as an art that can be honed, practised and fine?tuned on the battlefield and beyond. This is best evidenced in Book Five of the poem when the goddess Pallas Athena bestows a violent rage upon Diomedes who then embarks upon an orgy of bloodshed and destruction. Likewise, it is Apollo throughout The Iliad who decides as and when to instil great combat powers in Greek and Trojan mortals. However, with specific regards to boxing, it is Book Twenty Three of The Iliad that provides the most illuminating insight into the uniquely Hellenistic view of the worth of boxing in ancient culture.

Book Twenty Three is set towards the end of the Trojan War when the Greeks and the Trojans had been fighting for many years. It takes place after the death of Hector at the hands of Achilles who is himself apoplectic at the death of his close friend (and, perhaps, lover) Patroclus. The Greeks are holding a procession of lavish funeral games for the departed Patroclus, which consists of the major athletic pursuits of the Homeric era. These sports are: boxing, horse racing, wrestling, spear throwing (javelin throwing as it is understood today), foot?racing (running) and gladiatorial combat. The adjudicator of the funeral games in Achilles – the one mortal who can perform each task better than any rival; also the most unpredictable and contrary of all of the Homeric heroes. This is an important point with specific regards to the depiction of boxing as a heroic character trait within The Iliad. The funeral games are put together in such a sequence as to suggest that each forms a composite part of the warrior whole of Achilles – the ultimate sporting hero intermeshed with the ultimate war-mongering warrior. Boxing is therefore just one part of a complex tapestry of heroic character that is, in the final analysis, beyond the realms of any mortal man. Essentially, Achilles is so devastatingly effective a fighter because of his unpredictable nature and his semi?divinity, not in spite of it. Thus, Homer’s vision of a hero is curiously both within and outside of the reach of mortal men.

The funeral games begin with Achilles’ lament over the loss of his friend. Gifts are exchanged; food and wine are consumed. Achilles gives out symbolic prizes to the assembled guests. To the legendary fighter and Antilochus’ father, Nestor, he gives a jar as a reminder of Patroclus’ valour and the honour he found in death. Achilles thus states to Nestor:

“Here, old friend – a trophy for you too! Lay it away as a treasure… let it remind you of the burial of Patroclus. Never again will you see him among the Argives. I give you this prize, a gift for giving’s sake, for now you will never fight with fists or wrestle, or enter the spear throw, or race on sprinting feet, the burden of old age already weigh you down.” (The Iliad, Book Twenty Three, 687?694; pp.500?501)

Here, the message being relayed is clearly that an inability to express oneself on a battlefield or within a combat sports context is tantamount to being dead. Nestor admits as much in his response to Achilles when he reminisces on his time as a renowned boxer. Therefore, there is an added equation of old age to ineptitude in the battle arena that clearly impacts upon Homeric society in a more profound way than is the case in the twenty first century. Old age meant becoming obsolete in military terms, which in turn telegraphed a sense of retirement above and beyond any resemblance of retirement as it is understood today. In this way, Nestor laments his metamorphosis from a champion into a spectator, dovetailing the earlier scene in Book Twenty Three when Antilochus and Menelaus almost come head-to-head at the start of the funeral games.

After acknowledging the insight gained via wisdom and old age, Antilochus says to the brother of Agamemnon: “well you know the whims of youth break all the rules.” (Book Twenty Three, 654; p.499) Thus, boxing is an essential part of the make?up of heroes; without the opportunity to express oneself in such a way, life becomes, according to the Homeric code, essentially meaningless. Furthermore, one becomes a burden to the family and to the state.

Achilles uses the funeral games to stoke up old rivalries within the Greek camp. In this way, Euryalus boxes on behalf of the Achaeans while Epeus boxes on behalf of the Argives in the second of the great contests included in Book Twenty Three of The Iliad. This scene would be mimicked in Virgil’s Aeneid, although the context of having boxers fight from competing geopolitical orders is one that appears to be constant in the ancient world, in much the same way as our contemporary boxing bouts take place between fighters from different nationalities. In this way, the umpire introduces fighters on behalf of, for instance, Great Britain or the United States of America in the same way that Homer announces Euryalus as a boxer who represents the Achaeans.

The author next makes certain that the ritual of ‘belting­?up’ and ‘squaring?up’ to one’s opponent is accentuated in a way that resonates in today’s version of boxing where the prelude to the ‘big fight’ still attracts as much intrigue as the boxing match itself. Moreover, in ancient Greek terms, the ritual of squaring up to the opposition served to show the spectators which boxer was mentally stronger than the other. Like today, the boxers would look one another square in the eye before beginning the contest as if each is waiting for the other to flinch or to back down. This mirrors the pressure of the battlefield where the Greeks had to face the Trojans face?to?face in mortal combat; where one side’s weakness turned out to be the other side’s strength. In this way, boxing can be seen to be an integral part of the heroic composition of icons in Homer’s Iliad, mirroring the valour displayed over ten years during the siege of Troy. Moreover, the description of the boxing match itself evokes strong comparisons with the author’s vivid portrayal of the battle scenes between the Greeks and the Trojans, especially the prior fight between Achilles and Hector that proved so pivotal to the overall ending of the Trojan War. Homer thus states that:

“Both champions, belted tight, stepped into the ring, squared off at each other and let loose, trading jabs with their clenched fists then slugged it out – flurries of jolting punches, terrific grinding of jaws, sweat rivering, bodies glistening – suddenly Euryalus glanced for an opening, dropped his guard and Epeus hurled his smashing roundhouse hook to the head – a knockout blow!” (The Iliad, Book Twenty Three, 763?769; p.503)

The specific heroic attributes ascribed to boxing are underscored with the contest that follows the boxing match during Patroclus’ funeral games. After the boxing match, Ajax and Odysseus embark upon a wrestling match. The way that the wrestling match is described by Homer tends to show that this was considered to be a slower combat sport; one that inflicted less physical damage upon the competitors due to the heavy?set size of the fighters and the lethargic manner of the fight itself. Wrestling scenes are consequently handled in a much more languid literary style.

“And their back bones creaked as scuffling hands tugged for submission-holds and sweat streamed down their spines and clusters of raw welts broke out on ribs and shoulders slippery, red with blood, and still they grappled, harder, looking for victory; locked for that burnished tripod: Odysseus no more able to tripod bring to ground his man than Ajax could.” (The Iliad, Book Twenty Three, 795?801; pp.503-504)

This essential heroic difference between boxing wrestling is further cemented via the identity of the competitors at Patroclus’ funeral games: both Ajax and Odysseus are known to be legendary fighters whose heyday is long behind them. Both are seasoned campaigners who are no longer thought of in terms of boxing; but instead in more jovial terms; hence, of wrestling. Once again, therefore, Homer makes the connection between boxing and virulent youth and between old age and an inability to box against younger, fitter opponents.

Mention at this point must be made of the essential homoeroticism prevalent in Greek games during the Homeric era. Not only did these celebratory games explicitly exclude women; they also made sure that the men competing in the games did so in a discernibly homoerotic manner by wrestling, boxing, jousting and – at the end of the day – enjoying copious amounts of wine and merriment.

“Banquets were strictly all-male affairs. Here we get a clear glimpse of that aspect of Greek society already alluded to – apropos education and pederasty: freeborn women were vigorously debarred from these social occasions, just as they were from any participation in political affairs.” (Flaceliere, 2002:173?174)

One can only imagine what went on towards the end of these games, symposia and banquets although the practice of pederasty (the sexual and philosophical coupling of an adult male and a junior adolescent boy) which was highly popular at the time that Homer was writing ought to make us believe that the games the likes of which occur in Book Twenty Three of The Iliad were much more ‘masculine’ as we could ever comprehend today. Moreover, in The Iliad, Homer alludes to Patroclus playing the part of Achilles’ young, adolescent lover; thus, the entire funeral procession takes place under the broader umbrella of homoeroticism and homosexual love. This is a highly important point and one that directly impacts upon the construction of the idealised ancient Greek hero during the Homeric era. While boxing and other comparable combat sports were important composite parts of the heroic whole, the conception of the male hero during the Hellenistic period fluctuates wildly from our own, chiefly in a sexual way whereby the ancient Greeks saw no cultural taboo in men enjoying sexual relationships with other men. This was as true of the politicians operating on the Acropolis as it was of heroic warriors such as Achilles. Similarly, whereas boxing is today seen as one of the manliest expressions of sporting prowess, to the Greeks it was seen as this in addition to a uniquely Hellenistic type of male bonding.

Homer augments his depiction of boxing in The Iliad with a similar scene which takes place in The Odyssey. However, rather than being a funeral games as was the case in The Iliad, The Phaeacian Games that constitutes Book Eight of The Odyssey is set to the context of a celebratory games where the indigenous Phaeacians invite Odysseus to take part as a guest in their games. At first, Odysseus is reluctant to engage in any sports on account of his arduous journey (as well as the aforementioned fact in The Iliad that Odysseus’ glory days are far behind him); but an insult from the re?appearing Euryalus incites Odysseus not only to take part in the combat sports, but to emphatically win. Afterwards, Odysseus recounts his former fame as a boxer and a wrestler, once again underlining the Homeric association between boxing and manliness and fame. Odysseus declares to the gathered Phaeacian masses:

“Since you have thoroughly roused me, come out, if any of you fancy the idea and have the pluck, come out and take me on – at boxing, wrestling or even running, I don’t care which… for I am not a bad hand all round at any kind of manly sport.” (The Odyssey, 1976:127)

Thus, fame at grass roots, popular culture level in the Hellenistic Age could only come about through becoming skilled at athletic pursuits. This kind of fame is able to spread far and wide from the geographic nexus of the great sporting deeds in question. This is further cemented by the negative treatment of men who do not display such athletic prowess – men such as Paris whose distinct lack of manliness and overt cowardice can be seen to have triggered the devastation of the Trojan War in the first place. Homer accentuates this discrepancy between the manly pursuits of famous men and the feminine pursuits of non?famous men in the response that he pens for the Phaeacian King to Odysseus’ claims of fighting and boxing prowess. Alcinous thus states:

How companies manipulate their accounts using accounting ratios?

Abstract

The emergence of accounting scandals in the US has shaken the world over. Professionals, stakeholders, shareholders and regulatory authorities blame a multitude of factors for the proliferation of cases like Enron, Tyco, WorldCom and Xerox etc. The researcher is of the view that the rising number of bankruptcies and fraud cases in the corporate sector has been the result of weakness within the financial system and regulatory standards. In the US especially the flexibility of the financial standards has given firms the opportunities to manipulate accounts with the help of financial and accounting professionals for the benefit of top management. These individuals have knowledge of GAAP (generally accepted accounting principle) and its loopholes. They capitalize on these loopholes to the extent of crippling the economy and professional standards. The following research investigates the rationale for firms that resort to accounts manipulation through financial ratios and how it could be curbed. It identifies the measures for counteracting unethical professional behaviour by outlining the core weaknesses within the accounting standards and systems. It also compares the US standards with those of the UK to conclude that the UK is less liable to fraudulent behaviour because its authority has taken measures to strictly regulate accounting professionals, auditors and top executives to avoid engage in accounting manipulation and fraud.

Table of Contents

Chapter 1 Introduction

Background

Rationale

Objectives

Scope

Work Map

Chapter 2 Literature review

Introduction

Enron

WorldCom

Ratios

Differing Accounting Standards in the UK and US

Chapter 3 Research Methodology

Inductive and Deductive Reasoning

Qualitative and Quantitative Research

Secondary and Primary Resources

Research Rationale

Chapter 4 Data collection and analysis

Chapter 5 Conclusion and Recommendations

Bibliography

Appendices

Background

The growing number of accounting scandals with the likes of Enron, Tyco, WorldCom and Xerox etc. has raised cause for concern for stakeholders, shareholders, professional bodies and trade authorities alike. They are of the view that corporate finance has undergone transformation for the worse in the last ten years. Williams’ research (2002) indicates that accuracy of revenues and earnings help in operational decision support and formulation of corporate strategy for almost 60 percent of the firms. Others, approximately 58 percent, feel financial reporting transparency and compliance (93 percent) with external reporting requirements imperative for effective corporate and industry performance. However, the growing number of scandals related to fraudulent earnings, inflated asset values and understated liabilities have undermined this system of corporate governance (Lev 2003). Investor confidence has been shaken as each scandal reveals the weak foundation of financial information system of public companies and regulatory authority that oversees them. When Enron filed for Chapter 11 bankruptcy on December 2, 2001 and WorldCom did the same later, investors blamed their business failures on accounting manipulations. This practice is not new. In fact according to Mishra and Drtina (2004) some 200 companies in the past five years have restated their earnings as a result of accounting manipulations. CFO Magazine survey indicates chief financial officers (CFOs) are forced to misrepresent earnings or are pressured to violate generally accepted accounting principles (GAAP) to satisfy shareholders and top executive management. Accounting manipulation not only offers the chance for companies like Enron and WorldCom to increase the asset valuation but also to understate liabilities that would appreciate stock prices, hide losses and increase company valuation. The practice is not limited to the US only.

In the UK accounting manipulation is also known as creative accounting. According to Amat, Blake and Dowds (1999) creative accounting refers to “a process whereby accountants use their knowledge of accounting rules to manipulate the figures reported in the accounts of a business.” Since the accounting process itself is flawed in the sense that it provides flexibility, and opportunities for manipulation and misstatement, financial professionals find it easy to engage in creative accounting. The practice helps in presenting increased profits, genuine economic growth and management efficiency whereas the opposite may also be true.

According to Kamal Nasser (1993 qt. Amat, Blake and Dowds 1999) “Creative accounting is the transformation of financial accounting figures from what they actually are to what preparers desire by taking advantage of the existing rules and/or ignoring some or all of them.” The views of these authors indicate that accounting rules in Western countries are weak and offer plenty of room for manipulation. The damage resulting from accounting manipulation affects the accounting principles that the stakeholders, public and investors depend on and use to estimate, judge and predict corporate performance. The usefulness of accounting principles has regulated industries, balanced investment flow and capitalization in the past. However, Enron and the likes have proved that accounting principles (that the masses have depended on in the past) are unreliable. The scandals prove that accounting tools like financial ratio analysis or fundamental analysis for accounts estimation and prediction do not truly reflect the value of the investment. Artificial transactions can be used to manipulate balance sheet amount; profits can be moved from period to period; and assets can be re-arranged to depict a positive financial standing.

Amat, Blake and Dowds (1999) are also of the view that companies employ creative accounting to smooth income and report a steady growth. This is achieved by manipulating accounts to depict improved profits even in weak economic conditions to harmonize the ongoing income. Investors, following accounting principles often utilize accounting ratios to judge and estimate the performance of firms, consider steady income growth as stability and judge a non-volatile stock as a good investment. Similarly Fox (1997) is of the view that accounts manipulation is for the purpose of normalizing income so that the company’s management can boost share price by reducing the levels of borrowing, lower risks and generate capital through new shares. Using the accounting rules companies often arrange financial accounts so that they would not reflect in the balance sheet, income statement or cash flow statement.

The problem arises when the flexibility within the financial principles allows accountants of companies to manipulate accounts to avert investors, banks and financial institutions scrutiny. This kind of flexibility is limited in some countries while it is more pronounced in others. In the US for example the FASB (Financial Accounting Standard Board) rules that income from extended warranties may be recognized at the time of sale. Banks may not recognize this when they calculate the debt to equity ratios to allow the company to borrow through inventory. In the UK on the other hand there is less provision for using bad debts and inventory as a means to decrease liabilities and inadvertently inflate profitability.

Thus, accounting manipulation undermines the moral and ethical standards that are expected of public limited companies. Decreasing apparent volatility in income, inflating debts to avoid taxes, smoothing income to create artificial opportunities for investments and manipulating accounting principles to control market mechanisms depict the weakness within the economy. It also reflects on the ethical standards and moral of the profession of accounting and auditing. Despite the knowledge and acknowledgement of this fact, professionals in the UK from a survey (Nasser 1993) indicate creative accounting is a problem that can never be resolved (91 percent). In the US creative accounting is more regular because it capitalizes on the mandate for detailed accounting rather than broad principles, which makes it even harder to detect fraud.

The trend in fraud indicates that the foundation of accounting measures and ratios that firms, institutions and public use to estimate financial statements are not reliable. According to Mishra and Drtina (2004) financial statement ratios tend to focus on profitability not quality of the performance of the company. Ratios such as return on assets and return on equity are not adequate to gauge the firm’s ability to meet debt obligations or to measure the financial distress it is in. Similarly, ratios that accounting models use to tract shifting revenues and expenses through cash flow statement information merely asses the firm’s cash level based on operations, financing or investing activities. It is limited in calculating the value of the firm based on free cash flows or net income that affect cash flows. As a result, often firms tend to resort to bankruptcy declarations because of the lack of cash inflows. Furthermore, company’s stock performance is based on the performance of the stock prices but these values are risk dependent and the prices are set with the assumption that market value of the firm is efficient and the stock prices reflect information in the financial statements. However, when analysts base their decisions on ratios such as price to earnings, dividend yield and price to book ratios they are wholly dependent on information in the financial statements, which may be fraudulent (Mishra and Drtina 2004).

Rationale

When firms are constrained by fraud risks such as: opportunities, pressure and rationalization of unethical management, company information itself forms the basis for high risk (Hillison, Pacini and Sinason 1999). According to Cressey (1973) non-sharable financial need is responsible for the unethical practice that result in fraud such as accounts manipulation. The urgency, which forces management to pressure accountants and auditors to commit fraud, is due to the need to appropriate assets and resources to curb financial losses. In the process they undermine their professional integrity (See Appendix 1) (Hillison, Pacini and Sinason 1999).

Riahi-Belkaoui and Picur (2000) in their attempt to understand fraud in the accounting environment write 59 percent of a KPMG 1998 Fraud Survey respondents believe fraud will become more prominent in the future. The reasons they cite include economic pressures, inadequate punishment for conviction, weakening social values, insufficient emphasis on prevention and detection, and criminal sophistication. Accounts manipulation is the result of favourable situations in which criminals recognize flexibility within the financial reporting system and audit failure to detect manipulation.

Furthermore, when institutions gain power, privileges and position to create an environment conducive to white collar crime, members are likely to acquire earnings management knowledge that are within the framework of the accounting policies and alternatives. Abdelghany (2005) notes that earnings management help financial managers select certain target and tailor the financial results of the firm to match it. The basic premise is that management can manipulate soft numbers resulting from accrual accounting.

As mentioned earlier firms engage in accounts manipulation due to several reasons some are unethical while others are due to the environment in which they operate. The approach to manipulate accounting principles to benefit from persistent high quality earnings and influence process decisions motivate firms to smooth income, inflate revenues, restate earnings and deflate liabilities. They try to meet the analyst’s expectations and company performance predictions (Abdelghany 2005). Other reasons include debt covenant avoidance, costs of investment, sustainable long-term performance and meeting up with bonus plan requirements etc. among others. The pressures of management performance, leadership, market failure, and future losses tend to motivate top management to conceal internal misappropriations and misstatements. The influence of these pressures on the reported statements is great as analysts depend on the information to make investment decisions, debt covenant, and professional prediction. Abuse in the form of manipulating accounts affects not only the firm but also the industry and the economy at large.

Given the above rationale the researcher is of the view that there is a great need to study accounts manipulation and its affect on industries, the public, accounting and auditing professionals, and the investment environment as a whole.

Objectives

The objectives of this study are as follows:

To investigate how firms like Enron and WorldCom engage in accounts manipulation using financial ratios.
To investigate the ethical and professional implications of financial ratios manipulation through accounting misstatements, earnings management and restatements.
To study the role of the regulatory authority in contributing or deterring accounts manipulation by comparing the accounting standards in the US and UK.
Scope

The researcher aims to evaluate pertinent industry practice by evaluating case studies of Enron and WorldCom. The researcher shall also delve into issues of accounting principles weaknesses and the role of the authority in contributing to the current trend of accounting fraud and manipulation. Consequently, the study shall benefit professionals who are in the field, trying to find solutions for the current trend and how to curb it. Academicians might find the use of theoretical frameworks to study a current accounting dilemma interesting and contributory to future works. Moreover, the researcher expects the results of the study enumerating to both students and academicians alike who are interested in the study of accounting fraud and manipulation.

However, readers might find the scope of this study limited in the sense that it will be focused on accounts manipulation particularly in the use of financial ratios. There are other methods of accounting manipulations, which will be covered briefly in the research. Overall, readers will find the findings useful and informative.

Work Map

The study shall be divided into the following sections:

Chapter 1 introduces the topic through a brief overview of the current norms and practices in accounts manipulation. It also points out reasons why there is a need for the study with objectives for directing the topic for discussion in the following chapters.

Chapter 2 is a Literature Review, which shall trace the Enron and WorldCom scandals in the light of accounts manipulation. It also reviews literature on financial ratios fraud and its effects. Lastly, it shall study the accounting standards adopted by the UK and US to compare which one is more prone to accounts manipulation.

Chapter 3 shall outline the various methods considered and chosen for the development of the current study.

Chapter 4 is an analysis of the data collected and evaluated from the researcher’s point of view based on the expertise of the scholars discussed in the Literature Review.

Chapter 5 shall conclude the findings, and offers some recommendations to resolve the issues outlined in the objectives.

Overview

An efficient capital market is one that allows prices to shift rapidly in response to the latest information because public information is conveyed efficiently, interpreted and analyzed to make effective decisions. Disclosure therefore is an obligation imposed by law to facilitate market performance. Companies are obligated to provide information so that investors and the public can interpret information to participate in the market decisions. Professional ethics is relegated through understanding among accountants, auditors, management and executives on the premise that the market is entitled to receive full accounts and reports of companies’ performance as per regulatory authority. The form and content of the individual or consolidated accounts is regulated by the company law and by accounting standards issued to the accounting professionals and auditors. However, sometimes publicly traded company financial position becomes tradeoffs due to limited liability, losses and performance pressure. Any compromise in their performance results in negative market reaction, as they are bound by standards and targets set by the public. This kind of market behaviour force companies to resort to unethical practices (Ferran 1999).

Alternatively, when regulations change in response to the demand of the market, companies have to reshuffle their internal systems to comply with them. The preparation of accounts in accordance to applicable accounting standards often conflict with the company’s standards and values. New accounting information requirements and standards are often viewed with apprehension as they put pressure on the statutory requirements. For example the Listing Rules of the London Stock Exchange require annual reports and accounts of companies to contain “additional information”. The changing environment therefore creates a problem for companies to align current with past performances (Ferran 1999).

To gauge a company’s financial standing, analysts use ratios to estimate and evaluate its performance by comparing it with the current status or against the industry’s standards. Financial managers of companies are aware of the use of this tool to evaluate company’s performance. Within the framework of legal accounting standards they employ planning and capital structure decisions to measure the performance of firms. Ratios such as price to earning, for example, are of particular interest to investors interested in gauging the performance of the company they want to invest in (Pike and Neale 1996). When pressured, accountants can manipulate accounts information, such as interests, liabilities, and pre-tax profits etc, to substantially inflate or deflate certain accounts according to the needs of the firm’s objectives for the short or long term. For example some companies might inflate earnings per share to depict higher dividend to increase the company’s investment attractiveness. Others might deflate liabilities to depict low debt to equity ratio, to create opportunities for borrowing. Whichever the cause, the fact is that firms engage in accounts manipulation within the accounting principles framework. They are within their legal rights to employ such methods, which allow them to create a positive picture to investors, creditors and institutions. How far can firms employ such methods and to what extent constitutes unethical or illegal practice will be investigated in the following sections.

Enron

Among the recent cases of accounts manipulation is Enron. Enron products and services relate to gas and energy wholesale, as well as retail to a host of customers. The company is considered one of the most innovative with an efficient management team and a leader who is the envy of the industry. According to Mishra and Drtina (2004) Enron filed bankruptcy in 2001 when it had just revealed its strategic plans in the light of asset and non-asset expansions. The company’s plan had been to expand into energy trading expertise with a host of new products and services. At the time its share had been traded at $90. From 1999 to 2001 the company underwent great changes in terms of its earnings per share from $1.27 in 1999 to $0.999 in 2000. To deflect speculation, Enron used off-balance sheet partnerships to finance and sustain its investment growth and rating (Mishra and Drtina 2004).

This method is not a new practice but is employed by 27 percent of companies. Enron however used it to hide its massive debts by inflating revenue with gain from sale of assets to off-balance sheet partnerships by guaranteeing the partnerships’ debt with stocks. As a result Enron had to restate its earnings from time to time to reflect the reduction in shareholders’ equity due to the partnership. The stock price started to decline to less than $1 in November 2001 despite the fact that the company had been considered one of the fastest growing companies in the industry. While the book value of the assets tripled from $23.5 billion in 1997 to $65.5 billion in 2000, in actuality Enron had been deteriorating in its market capitalization (Kedia and Philippon 2005). Enron is a typical example of accounts manipulation where misreporting to show increased investment value and simulated income have created artificial resources whereas the company had been running into high level of debts. The real cost of manipulation eventually reflects in the earnings.

Earnings management has been used to boost stock prices so that managers can profit from the share trading but in effect undermine the organization’s value. In theory the use of earnings management helps firms to manipulate price earning ratios to, firstly show firm’s potential activities, and secondly to restate the value of the firm. However, as a consequence, the earnings created theoretical growth in investment and employment depicting strong growth (Kedia and Philippon 2005; Healy and Wahlen 1999). According to the authors, Kedia and Philippon (2005), Enron used an earnings manipulation model, which has resulted real time inefficiencies, as it does not account for the fundamental value of the firm’s equity or account for the allocation of resources.

Wamy’s (2004) investigation reveals that Enron “inflated profits by nearly one billion dollars and top employees raked in millions of dollars (they should not have received) through complex and special partnerships to hide debt, inflate profits and to engage in allied unethical and heinous business practices.” The company’s unique business model depicts human capital as the leveraging point for its investments, instead of fixed assets. Since its people are considered physical assets, it could allocate earnings to these individuals to create higher value for the firm that owns them.

Theorists blame the company’s manipulated accounts as the basis for its bankruptcy in 2001. Others (Barlev and Haddad 2004; Wamy 2004) blame it on the transition within the accounting framework. Barlev and Haddad (2004) attribute the shift of accounting practices due to the inclusion of the new paradigm of fair value accounting has increased the pace of reporting in firms. The authors in their research prove that the new paradigm improved full disclosure, transparency and management efficiency mandates. However, the weak control system that governs accounts information contributed to abuse and manipulations. It has allowed Enron to sell its stakes to special purpose entities thereby minimizing reported activities. Since Enron “took the position that as a result of the decrease in its ownership interest, it no longer controlled [SPEs] and was not required to consolidate [SPEs] in its balance sheet.” SPEs had been acquired through bank loans and debt issuance, which resulted in high debt to equity ratio, but hidden from the investors. As business transactions at Enron grew, the company is also confronted with its inability to pay for these transactions (Dodd 2002). Further, the company has also abused the fair value framework by using hedging instruments such as changing fair value of assets and liabilities, variable cash flows and foreign currency exposure to emphasize on its valuation (Barlev and Haddad 2004) by recording inaccurate revenue and earnings growth. Enron reported prices and recognized fictitious unrealized gains to account for pretax income worth $1.41 billion for the year 2000, which is attested by its auditors as being true (Makkawi and Schick 2003).

WorldCom

WorldCom (now MCI) is one of the largest distance phone companies in the US to declare bankruptcy in 2004. The reason had been accounting irregularities that equal to $11 billion. According to Scharff (2005) the company’s declaration had been one of the largest accounting frauds in the US history. The author writes of the perpetrator as being the organizational structure, group processes and culture, which mitigate fraud that had become an integral part of WorldCom’s operations. WorldCom’s rationale for following a corrupt course of action stems from groupthink behaviour and competitive industry environment that pressurize members of the organization to make decisions to pursue fraudulent activities (Whyte 1989).

Scharff (2005) traces the development of WorldCom’s bankruptcy and notes that during the 1990s the company had been under strong pressure to maintain cash flows and earnings before interest. As the telecommunication industry is subjected to strict regulations, WorldCom executives resorted to fraud to allocate costs of capital as prepaid. Similarly, it also engaged in improper release of accruals so as to reduce current year expenses to increase earnings. Not only this, the company also ensured that minor revenue entries are made to increase operating earnings (Scharff 2005). The finance and accounts department had been encouraged by top management to engage in fraudulent behaviours (See Appendix 2) to cover for the invulnerable position the organization had been in.

However, the most important issue had been when the company found out about loopholes in the GAAP that would support the entries the executives wanted to include. Through them, the company also managed to inflate cash flows for five quarters with the assumption that the company received cash flows from operations whereas most of its activities had been based on accruals.

According to Tergesen (2002) the accounts manipulation engaged at WorldCom had been aimed at inflating consolidated cash flows to present a positive operation picture so that investors are attracted in buying its stocks to increase capitalization. Realizing that investors are risk averse, and avoid company stocks that raise cash through financings, such as debts or investment related activities such as assets, WorldCom managed to pose a positive and attractive picture through accounts manipulation. It managed to secure operations cash flows through securitizing, which is the selling of account receivables. Selling of receivables is recognized as cash collections, even though they are collected in the future. Although this practice is regular, the timing and the manner of entry makes it culpably the basis for accounts manipulation. Not only this, Tergesen also notes that WorldCom engaged in capitalizing expenses. This practice involves the capitalization of costs of assets in the balance sheet and writing it off as annual instalments. To compensate for the lack of cash, WorldCom also manipulated the GAAP rules of allowing cash raised through securities sales recorded in the “cash from operations” section, even though the activity is not related to cash flow. (Tergesen 2002).

The motivation according to Zekany, Braun and Warder (2004) stemmed from the pressure to meet analysts and investors’ expectations. WorldCom had been closely connected with the stock market and a favourite of investors. To meet analysts’ forecast expectations, WorldCom used its public relation as guidance for meeting such expectations. These expectations are derived from earnings estimates, securities performance and market position of its stocks. WorldCom, pressured from the intensity of investment demand and analysts’ expectations, devised financial measures to meet the financial requirements. To increase the stock market value, the top executive had to engage in expansionary acquisitions, to increase revenue growth. At the same time the company’s performance deteriorated along with the industry yet it had to prove that it performs above the others (Zekany, Braun and Warder 2004). The accounting department at WorldCom had become an important functional component under the directives of its executives engaged in accounts manipulation activities to boost E/R ratio. The authors explain that WorldCom adopted the line cost accruals system to compensate for the accrual revenue and the liability reported in the balance sheet. However, since the accrual system is highly risky, it is difficult to make provision for its accurate reportage. The pressure to meet up with the line cost accruals motivated executives to find creative accounting ideas to reduce and save costs. This approach would have been successful, however since the industry had been strived by deterioration, earnings could not be inflated to achieve the expected levels to portray a positive E/R ratio. E/R is basically a ratio to measure the return on business resources available to the management. It is similar to a measure of shareholder equity and management effectiveness. (Alexander 2001).

Ratios

Fraudulent financial reporting has given new dimensions to corporate fraud. Both external and internal auditors are striving with the legal liability to detect fraudulent financial statements, so as to save damage to their professional reputation and to prevent public dissatisfaction (Kaminski and Wetzel 2004). Previously professionals relied on the efficiency of ratios to detect expectation errors to make decision pertaining to stock prices, risks and value of stocks for future growth. Subsequent decisions are based on the credible reportage. Investors, borrowing institutions and the public, use accounting ratios to predict returns or performance. Ratios rely on earnings and book value to measure a firm’s value. Performance is predicted by a cross-sectional aggregate and indicators from figures in the financial statements. Investors use strategies such as fundamental ratio analysis, accruals analysis and fundamental value analysis, to account for their decisions and treatment of investment portfolios. However, Daniela, Hirshleifer and Teohb (2001) are of the view that these strategies are not effective predictors of future stock returns. They write:

“Earnings reported on firms’ financial statements differ from cash flows by accounting adjustments known as accruals. These are designed in principle to reflect better economic circumstances…high accruals predict negative long-run future returns.” (Daniela, Hirshleifer and Teohb 2001)

This strategy is affected by the discretionary working capital accrual and new equity. This is so because investors are fixated by earnings numbers. Consequently they tend to underestimate other accrual factors.

Similarly, the authors also note that the fundamental value analysis strategy to predict future stock returns, “relies on stock prices from an imputed value based on a fundamental value model” (Daniela, Hirshleifer and Teohb 2001). Even in this model the discounted value of expected future residual earnings are defined in the context of normal return employed in future years. In re

Title: How Gardener’s Multiple Intelligence Theories Can Aid Adolescents Learning in A Design and Technology Secondary School Workshop

Main Topic : Education

Education is a key stone to one’s future. One of the stages involved in education is the adolescent stage. The education in this period is vital. There are various theories put forward in education to aid the teachers to understand the young students and take them in the right way of educating them to build their future which ought to be bright. There are a whole host of theories about intelligence, none of which really agree with each other. Every approach to thinking or the mind comes up with it’s own different theory of what intelligence is, each from it’s own different perspective, with it’s own assumptions.

Views and thoughts should not be thrusted on the young minds without understanding the mental capacity of the students, as this may lead to improper training imparted to them, and not bringing out their essential talents in the field of education, and not making them achieve their goals.

Each adolescent intelligence should be identified and teachers should enable them in bringing out their talents and helping them to discover what they are good at and what can really make them use their potential in education. One such author who put across his theories for the welfare of the students and teachers, especially helping the teachers to aid the adolescents learning in the secondary school level using various designs and technologies in the secondary school workshop is Howard Gardner Ph.D who is a professor at Harvard University and the author of many books and articles. His theory of multiple intelligences has challenged long-held assumptions about intelligence — especially about a single measure of intelligence. His theory of multiple intelligences makes people think about “IQ,” about being “smart.” The theory is changing the way some teachers teach.

When Howard Gardner’s book, Frames of Mind: The Theory of Multiple Intelligences (Basic Books, 1983) burst on the scene, it seemed to answer many questions for experienced teachers. There were students who didn’t fit the mold though they were bright, but they didn’t excel on tests. Gardner’s claim that there are several different kinds of intelligence gave us and others involved with teaching and learning a way of beginning to understand those students. We would look at what they could do well, instead of what they could not do.

Later Gardner books, such as The Unschooled Mind: How Children Think and How Schools Should Teach (Basic Books, 1991) and Multiple Intelligences: The Theory in Practice (Basic Books, 1993) helped us understand how multiple intelligences could help us teach and evaluate our students in new and better ways.

THE ORIGINAL SEVEN INTELLIGENCES

Howard Gardner first identified and introduced to us seven different kinds of intelligence in Frames of Mind.

Linguistic intelligence: a sensitivity to the meaning and order of words. Some students are more sensitive to the meaning and order of words. Their intelligence is based on this. By telling the appropriate meaning of the objects and the order of the words make them understand better about the subject they are learning.
Logical-mathematical intelligence: ability in mathematics and other complex logical systems. Some students are clever in mathematics and the logic they implement in solving the mathematical problems effectively is based on this intelligence
Musical intelligence: the ability to understand and create music. Musicians, composers and dancers show a heightened musical intelligence.

Some students are very creative and more involved in music and they tend to be more intelligent in that manner. They might be less drawn towards theory part of their study, the subjects have to be selected in such a manner pertaining to their musical area. In different countries the education techniques and modes of education are not the same. In certain countries the adolescents are forced to study their theoretical subjects eventhougjh they may have other intelligences. So they are forced to develop their skills of intelligence outside the education arena.

Spatial intelligence: the ability to “think in pictures,” to perceive the visual world accurately, and recreate (or alter) it in the mind or on paper. Spatial intelligence is highly developed in artists, architects, designers and sculptors.
Bodily-kinesthetic intelligence: the ability to use one’s body in a skilled way, for self-expression or toward a goal. Mimes, dancers, basketball players, and actors are among those who display bodily-kinesthetic intelligence.
Interpersonal intelligence: an ability to perceive and understand other individuals — their moods, desires, and motivations. Political and religious leaders, skilled parents and teachers, and therapists use this intelligence.
Intrapersonal intelligence: an understanding of one’s own emotions. Some novelists and or counselors use their own experience to guide others.

Eighth intelligence – the naturalist intelligence :

Gardner identified an eighth intelligence, the naturalist intelligence. Gardner discussed the “eighth intelligence” with Kathy Checkley, in an interview for Educational Leadership, The First Seven… and the Eighth. Gardner said, “The naturalist intelligence refers to the ability to recognize and classify plants, minerals, and animals, including rocks and grass and all variety of flora and fauna. The ability to recognize cultural artifacts like cars or sneakers may also depend on the naturalist intelligence. …(S)ome people from an early age are extremely good at recognizing and classifying artifacts. Gardner identified Charles Darwin as a prime example of this type of intelligence.

Based on his theories workshops are designed for the adolescents in order to achieve the goals in education and make them come out in flying coloiurs so that they might be successful in the future career. Each student mind varies. Some of them are very active, yet they do not fair well in studies. Some of them are good in creative subjects, this happens due to the frames of mind and intelligence as Howard correctly states in his theories of multiple intelligence. So a teacher cannot expect all students to be alike and be of the same calibre. It is the teacher’s duty and responsibility to identify the kind of intelligence of the students. So Gardner’s theories have helped the current curriculum to design different workshops which train and aid students and implementing various techniques for the adolescents to bring out their intelligence skills based on their IQ.

When the educator comes to know that a particular youth is having more of spatial intelligence, then things must be explained to him on the basis of picturesque techniques in the workshop at their secondary school level.

The behaviourists contradict the concept of high level intelligence. The entire mind is built from the ground up from simple “Stimulus-Response” pairings, building higher and higher level functioning out of this simple technology. The surprising thing is that it seems to work as a model for some types of tasks

Every adolescent basically has General intelligence where the intelligence was composed of a single component that was easily measured on inteliigence tests. While they proved to be partially right (about 70% of your IQ is this factor usually referred to as “g”), the improvement of the testing methods, combined with the direct measurement of “g” by a technique called Evoked Potential proved that they could not be totally right.

This lead Howard Gardener, by 1980 to extend the theory of general intelligence to include a set of Specific Intelligences which make up the other 30% of your IQ score. There has been some sucess in finding evidense to support some of gardener’s seven catagories, and the general technique of spotting extra components that go to make up your IQ is extendable to a lot more than 7 categories.

Design and Technology (in the UK) as a mainstream subject since curriculum began. When the term the 3R’s was coined in Parliament in 1840, Hansard recorded that it stood for Reading, Wroughting and Arithmetic.

Designing and making is an intelligent activity. It can stand comfortably at the centre of any curriculum. It is entirely compatible with high levels of numeracy and literacy – the design process itself draws on areas such as maths, science, technology, communication and art. Designing is a truly creative and intellectually challenging activity; developing divergent and creative abilities is a basic function of education. One of the main aims of the department is to inspire and empower our future designers and engineers and excite passion in our teaching so that they can develop products they love with sensitivity to an ever-changing world market.

The youth are offered through well Designed workshops a series of simple ‘design and make’ tasks. These introduce the students to the design process, basic graphics skills and introductory workshop practice. they will then gain a sound insight of the breadth and depth of subject content including a range of manufacturing skills in woods, metals and plastics control systems and design history. The course builds on these skills and knowledge, and the students are required to design and manufacture a product supported by a portfolio of design work.

The Education then becomes challenging and satisfying and builds significantly allowing students to specialise in key areas of study including CAD and CAM, graphics and product design philosophy/history. Students at this level need to liase with industry on product briefs so that the prototypes they produce are developed fully and satisfy the demands of the consumer in the market place.

IMPLEMENTING GARDNER’S THEORY IN THE CLASSROOM

When asked how educators should implement the theory of multiple intelligences, Gardner says, “(I)t’s very important that a teacher take individual differences among the youth very seriously . The bottom line being a deep interest in them and find how their minds are different from one another, and in helping them use their minds well.”

An awareness of multiple-intelligence theory has stimulated teachers to find more ways of helping all students in their classes. Some schools do this by adapting curriculum. In “Variations on a Theme: How Teachers Interpret MI (Multiple Intelligence ) Theory,” (Educational Leadership, September 1997), Linda Campbell describes five approaches to curriculum change:

Lesson design plays a major role for the adolescents in education

Lesson design. Some schools focus on lesson design. This might involve team teaching (“teachers focusing on their own intelligence strengths”), using all or several of the intelligences in their lessons, or asking student opinions about the best way to teach and learn certain topics.

Several workshops using different design techniques aids the students by identifying their area of expertise and to which type intelligence category they fall into based on Howard Gardner’s theories of multiple intelligence.

Interdisciplinary units. Secondary schools often include interdisciplinary units. Discipline plays a major role in one’s all-round development of every adolescent to the words pertaining to the saying “Man is a social animal”.
Student projects. Students can learn to “initiate and manage complex projects” when they are creating student projects.
Assessments. Assessments are devised which allow students to show what they have learned. Sometimes this takes the form of allowing each student to devise the way he or she will be assessed, while meeting the teacher’s criteria for quality.
Apprenticeships. Apprenticeships can allow students to “gain mastery of a valued skill gradually, with effort and discipline over time.” Gardner feels that apprenticeships “…should take up about one-third of a student’s schooling experience.”

With an understanding of Gardner’s theory of multiple intelligences, teachers, school administrators, and parents can better understand the learners in their midst. They can allow students to safely explore and learn in many ways, and they can help students direct their own learning. Adults can help students understand and appreciate their strengths, and identify real-world activities that will stimulate more learning.

Bridging the generation gap between the teachers and students in the workshops leads to successive results in educating the adolescents.

The profile of new teachers entering schools today varies much more widely than the profile of veterans hired in the 1970s did. Many more beginners are coming from alternative routes, and many are not necessarily committed to making teaching a lifetime career. The question for administrators becomes, How do we encourage promising new educators and help them become highly qualified?

This issue investigates which conditions—from mentoring and induction programs to the amount of time spent observing in other teachers’ classrooms—help improve new educators’ practice. According to certain suggestions of Educators “Working in a school with an integrated professional culture is strongly and positively related to job satisfaction.”.

Standards-Based Mathematics Workshops are designed on the basis of Multiple intelligences for the adolescents. For example publishers called Hopes Books designs workshops that integrates the best mathematics from the past with the mathematical needs of the new millennium.

Hope Martin has over 30 years of experience teaching mathematics at the primary, elementary, middle school, and college levels. Her books bring hands-on, active learning to the mathematics classroom. They encourage integrating mathematics across the curriculum and applying the cognitive theories of Howard Gardener’s, Multiple Intelligences, into mathematics pedagogy

The learning Workshops are tailored to meet the needs of teachers at three levels of instruction: inclusive of Middle School/High School Levels. Any of these workshops can be tied to the mathematics goals and objectives developed by one’s district’s maths committees.

Nowadays All workshops can be designed as one-day (5 hours) or two-day (10 hours) workshops.

The workshops are designed to meet the unique needs of the youth in their secondary schools.

Middle School/High School Level Workshops

Certain Learning design techniques at the workshops currently used are

Using Computers in the Mathematics Classroom
Integrating Mathematics across the Curriculum–Skills & Concepts
Manipulatives & Activities through the Standards
Multiple Intelligences and Mathematics–Ties to Technology
Art in the Mathematics Classroom: Using Both Sides of the Brain
Using Manipulatives & Activities to Teach Algebra

Using Manipulatives & Activities to Teach Geometry

Mathematics for the New Millennium
Rethinking Our Beliefs about Mathematics

Multiple Intelligence and Mathematics

Using Computers in the Mathematics Classroom
Integrating Mathematics across the Curriculum–Skills & Concepts
Manipulatives & Activities through the Standards
Multiple Intelligences and Mathematics–Ties to Technology
Art in the Mathematics Classroom: Using Both Sides of the Brain
Using Manipulatives & Activities to Teach Algebra .
Using Manipulatives & Activities to Teach Geometry

In addition to designing and manufacturing a product or system to satisfy exam board, any project brief should be targeted allowing pupils to design and manufacture something that exist in a viable market place.

In conclusion Howard Gardner’s theories have been highly encouraged the adolescents to develop their own personal identities within the design activity that they follow. They are encouraged to work in a range of materials and must be able to communicate well on paper in both written and sketched form. An understanding of industrial design, development and history (supported where appropriate by organised external trips to design companies and exhibits both nationally and internationally) is a prerequisite and they must also recognise when it is pertinent to liase with industry. So there goes the saying “Teaching is a Noble profession” in moulding and casting the future of education amongst the adolescents.

Research Trail

Question Title:

An engineering business with its headquarters in the Netherlands could either set up a branch in Belgium to service its Belgian customers or offer its services to Belgian clients from its office in the Netherlands. The first case would constitute establishment, the second would merely refer to the provision of services.

Horspool and Humphreys, European Union Law, 4th ed.

In the light of this statement explain the development that has taken place in European Union law relating to the rules of establishment and provision of services. Assess the extent to which the European Court of Justice has been able to draw clear lines of distinction between them.

Texts:

Library search for general EU law texts:

Craig and De Burca:

“EU law: Text Cases and Materials”.

Chapter 18: Freedom of establishment and to provide servies.

Chalmers, Hadjiemmanuil, Monti and Tomkins.

“European Union Law: Text and Materials”.

Chapter 17; The free movement of services

Weatherhill.

Cases and Materials on EU law.

Chapter 14 “Freedom of Establishment and freemovemennt of services: Articles 43 and 49”

Internet resources:

Search of www.google.scholar.com

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right to practise law EU freedom of establishment services
Freedom of establishment free movement of services
Awesti, A. (2006). Intergovernmentalist theory and Eurosclerosicm: an Intergovernmentalist critique. http://www2.warwick.ac.uk/fac/soc/pais/phd/crips/working_papers/2006/working_paper_2_awesti.pdf
Flint, D. Moens, G. (1993). Business Law of the European Community. DataLegal Publications; Brisbane. (Book review which I then found at the library).
Foster, N. (1991). European Community Law and the freedom of lawyers in the United Kingdom and Germany. The International and Comparative Law Quarterly ,Vol.40,No.3.(Jul.,1991),pp.607-634.
Goebel, R. (1992). Lawyers In The European Community: Progress Towards Community-Wide Rights Of Practice. Fordham Int’l LJ 15,
Malcolm Ross, ‘Freedom of Establishment and Freedom to Provide Services: Mutual Recognition of Professional Qualifications’ (1989) 14 Eur L Rev 162, 165.
Nicolaidis, K. (2006). „Globalization with Human Faces: Managed Mutual Recognition and the Free Movement of Professionals“ contained in Fiorella, K. Padoa, S. (eds.)(2004). The Principle of Mutual Recognition in the European Integration Process. Palgrave: Basingstoke.
Podell, M. (2001). When zeal for European Unity overcame common sense: the lawyers directive. Boston college Law review. http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/23_1/03_TXT.htm
Quinn, J. (2004). The right to practise law in the European Union: an American perspective. (1).113-129. http://austlii.law.uts.edu.au/au/journals/MqBLJ/2004/6.html

Cases (primary sources):

Westlaw Search:

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C-243/01. Criminal Proceedings against Gambelli [2006] 1 C.M.L.R. 35

C-221/89. R. v Secretary of State for Transport Ex p. Factortame Ltd [1991] 3 All E.R. 769. Para 20.

C-2/74. Jean Reyners v Belgian State [1974]ECR 00631.

C-283/99. Commission v Italy [2001] ECR I-4363

C-33/74. J. H. M. Van Binsbergen v Bestuur Van de Bedrijfsvereniging voor de Metaalnijverheid [1975] 1 C.M.L.R. 304.

C-55/94. Reinhard Gebhard v Consiglio Dell’Ordine degli Avvocati E Procuratori di Milano

C-70/95. Sodemare et al v Regione Lombardia [1998] E.J.H.L 67

C-26/62. Van Gend En Loos v Nederlandse Administratie Der Belastingen [1963] ECR 1.

C-427/85. Commission v Germany [1988] ECR 1123.

C-294/89. Commission v French Republic.

C-340/89. Irene Vlassopoulou v Ministerium fur Justiz Bundes-und Europaan-gelegenheiten Baden Wurttemberg [1991] ECR 2357.

C-168/98. Grand Duchy of Luxembourg v European Parliament and Council of the European Union [2000] ECR I-09131

C-506/04. Graham J. Wilson v Ordre des avocats du barreau de Luxembourg.

Treaty Articles and Directives

Eur-Lex.

Art 44(2) TEC.

Art 47(1) TEC

Art 47(2) TEC.

Directive 85/384/EEC on the mutual recognition of diplomas

Directive 2005/36/EC for the Recognition of Professional Qualifications

Directive 77/249 (preamble)

Directive 77/249. Art 5.

Directive 89/48 Article 2.

Directive 89/48 Article 4.

Directive 89/48 Article 1(g)

Directive 98/5. Article 3(1).

Directive 98/5. Article 5(1).

Directive 98/5. Article 10.

Directive 98/5. Article 10 (1).

Word Count 498.

Abstract

Reality TV, like many other postmodern spectacles, operates on a deeply tenuous and ambiguous ethical grounding. On the one hand, the audience / creator model of exploitation can be seen as providing the viewer with entertainment and escapism. On the other it can be said to create a system of dependency and artificial need. The ethics of participation in game show style reality offers a similar contradiction which is dependent upon whether participants are free to choose, or whether they are in fact coerced by elements beyond their control. This dissertation will look at the various factors and paradigms (psychoanalytical, Marxist, poststructuralist) that constitute this model of reality. This requires a certain concretisation of terms such as ethics, and of what constitutes “reality” itself. The dissertation will also look at the politics of reality TV itself – namely, does Reality TV constitute a unique event in the development of television, or does it merely reflect a continuation for television producers to create ever more innovative methods of keeping our interests satiated? Is Reality TV itself the origin of the moral crimes, or is Reality TV merely a reflection of the ethical climate of capitalism in which we live? Finally, the dissertation will look at the possible futures for “reality” TV.

Methodology

As this dissertation is largely discursive in nature, and involves a widespread discussion of general philosophical and ethical themes, I will purely refer to secondary material. This will be assisted by the large and abundant materials that exist on the matter of “Reality” TV, ethics, and the conjoining of the two. I will use library materials, newspaper and magazine materials, as well as the raw footage of the Reality TV itself to generate an opinion and an overall discussion about the general impacts, considerations and ethical standards of reality TV, and whether constructive change is a) desirable and b) possible. What are Ethics?

Ethics have proven to be a central part of philosophical enquiry for thousands of years. As such, it would be useful to summarize what and how this theory has developed over the years, and what tends to form the debate around “ethics” now. This is essential in order to gauge the relationship between “good” ethical conduct and the recent phenomenon of reality TV. Ethics was originally conceived as a way to engage with morals – literally, it can be seen as an attempt to establish a “moral philosophy” for living, and is concerned about notions such as what is right and what is wrong. It exposes the various difficulties between making certain decisions or of living life in a particular way. Understandably, the concept and the notion of good moral behaviour and bad moral behaviour have changed radically since the initial formulation of Western ethics in Ancient Greece over 2000 years ago. While modern moral reasoning bases its understandings upon the writings of Plato and Aristotle, it has mutated radically as regards to who the subject of the writing actually is concerned with. Whereas Plato, Aristotle and the ancient Greeks were concerned more about the self – e.g. how to morally explain the individual – whereas the modern ethical practice is more concerned about how to treat others in the first instance. Annette Hill comments that “Modern moral philosophy is therefore primarily about public good, and the development of moral values within particular social, political and cultural groups, and also within particular secular societies.” (2005, p. 110). Rather than acting, then justifying behaviour, modern ethics are primarily concerned about what exactly one should do in the first place, and is about the relationship between the self and society, the promotion of the notion of the “public good”, and of partaking in particular acts, often against the self or the will that would otherwise have a harmful effect on society.

Major paradigmatic models incorporate this model of public good into their progressive ideologies. Central to the Marxist model (which I will be later applying to the phenomenon of reality TV), is the relationship between the working classes and the ruling classes. This is argued in Marx as being ethically dubious, because while the proletariat are enslaved by the capitalist system by their work, the ruling classes benefit from this relationship infinitely. Therefore, from a Marxist context, capitalism and the ways in which this model distributes wealth can be seen as the primary mechanism from which morality is corrupted. Similarly, religion and faith is often touted as “scapegoats” for unethical behaviour. The existentialist Friedrich Nietzsche formulated his own quasi-religion / moral philosophy based on the concepts of the Ubermensch and the theories of eternal recurrence. His position is existential, and forms a central part of what constitutes ethical matters today. Existentialism is, put simply, a belief that man creates his own belief systems. The existence of something precedes its essence; namely, the process of doing something is more important than the assignation of certain methods of thinking or reasoning behind it. A person is not innately good, but instead he acts good. Robert Anton Wilson (1990) comments that “Nietszsche’s existentialism (1) attacked the floating abstractions of traditional philosophy and a great deal of what passes as ‘common sense’ (e.g. he rejected the terms ‘good’, ‘evil’, ‘the real world’, and even the ego.) (2) also preferred concrete analysis of real life situations […] and (3) attacked Christianity, rather than defending it” (14-15). As such, an existential critique of reality TV would tend to eschew concrete moral conclusion based on the grounding that reality TV exploits people, and therefore it is bad – moreover, the phenomenon of reality TV is based upon a number of larger social trends and mechanisms; a whole system of belief that doesn’t necessarily taint reality, but actually comprises of reality. Therefore, the existentialist may attack Reality TV, but Nietzsche would presumably argue that it is an expression of human will, Marx would argue that it represents merely an extension of the capitalism that seeks to exploit the workers and Kierkegaard would argue that his role is to determine that people have the choice to make their own decisions. Both Nietzsche and Kierkegaard were not concerned about notions of abstract truth – they were existential insofar as their concern was about day to day existence. In the absence of the notion of truth, over Nietzsche’s “will to power” and Kierkegaard’s system of choice and personal autonomy, the system of modern moral philosophy was overturned by the new ethical paradigm. Nietszche argued that the ubermensch would not do bad things because it would be detrimental to his own will to power; a moral system of good and bad is, ultimately, irrelevant to the ubermensch, because the parameters of decision-making have been changed.

This ethical reasoning in many ways bled into the individualism of psychoanalysis, which is a factor that comes into play in a great many of the reality TV programmes: as I will argue later, the obsession in reality TV with rendering perverse the Freudian neuroses (described by him as anal, oral and genital fixations), combined with the capitalist, consumerist desire to pacify the “slaves” within the semiotic network that constitutes television, creates a scenario whereby the human self is rendered obscene. A psychoanalytical analysis of Reality TV creates many discrepancies; moreover, it is the combination of pacifying the autonomous will of the individual, combined with the exposition of Freudian unconscious “discoveries” that makes reality TV objectionable to mainstream technical issues. However, before I try to extrapolate the various issues at stake in the arguments for and against reality TV, the concept of reality TV, in particular what the term “reality” means in this context, has to be explored.

What is the “reality” in Reality TV?

Jean Baudrillard and other philosophers coined “poststructuralist” by Western scholars would undoubtedly be impressed by the ironical use of the term “reality” in reality TV. One of Jean Baudrillard’s key issues is the argument for “hyperreality”. He suggests in Simulacra and Simulation (1994) that the hyperreal is “real without origin or reality” (1). Indeed, the concept of “reality” TV where participants are asked to stay in an enclosed space for weeks on end and told to do surrealistic things (Big Brother), or to stay on a desert island (Temptation Island, Survivor) is unreal in itself, but the term “reality” instead applies to the logic that contestants exist rather than actors or performers. It is a “genre” of TV in which the controlled amateurish quality of the programme is exaggerated into a package of neuroses that have usurped and transcended reality itself. Secondly, TV is edited, disseminated and packaged in a particular way that, according to Baudrillard, substitutes itself for reality; in one judgement of hyperreality, Baudrillard suggests that it represents “more real than real”, and eventually usurps reality. The concept of “reality” in reality TV destroys the “sovereign difference” between the map and the territory (1994, 2). As such, reality TV exists as an exemplar of this particular moment in late capitalism where the simulation of reality has evaded and transcended the real itself. To stress this theory further, I will look more generally at what Baudrillard means by hyperreality, and cite some further examples of how this theory can be established. Like Nietzsche, Baudrillard begins with an interrogation of the “real world”, arguing that because our perceptions of reality are rooted in semiotic languages and discursive structures, that the concept of an external, objective reality outside of the self cannot be established, and merely bases itself upon a chimera or a lie. Instead, Baudrillard argues that reality is merely a system of communication, in which reality has become a commodified, capitalistic device. In The System of Objects, Baudrillard offers a critique of the advertising industry. While many of the images used by, say, the automobile industry are deliberately faked or exaggerated, the nature of this exaggeration, and the extent to which these images are promoted over and above the actual reality of what the car is (ultimately, a device for getting from one place to another), the specific, advertised car itself becomes an impossible object – a representation of reality that lies beyond reality itself. For instance, recent advertising that features a car that transforms into a dolphin does not have any prescience in reality, nor does it even attempt to establish itself as real. Instead, it embodies in the vehicle certain images or “realities” that, according to Baudrillard, become reality and, as such, substitute reality for a marketed, plasticised illusion that “represents” reality to a greater degree. This theory can be extended to encompass many other factors that seem based upon manufacturing and colonising the real. Pornography represents a reality of sex that transcends and usurps sex itself; a soft drink with a non-existent flavour, such as “wild ice zest berry” (http://en.wikipedia.org/wiki/Hyperreality) creates a “reality” in linguistic terms that has no relationship to “modern” as opposed to “postmodern” reality. Again, advertising generates a reality that exaggerates and simulates the real in totality; there is no attempt made to reproduce reality, but instead signs and signification operate within themselves, applying to only their own logic.

This reality can be seen in terms of reality TV as well. Programmes such as Survivor, Big Brother and other reality TV programmes that synthesise the game show format tend to exaggerate the realities of the participants. The world in which these “real” people interact is one which is completely fabricated, usually to exaggerate some narrative or mythological scenario which the viewer is undoubtedly familiar with. Big Brother, for instance, plays with the familiar Orwellian notion of total surveillance and dystopia – Survivor plays on the themes of the desert island, featured in many historical and literary myths that date back to the Bible. As such, depending on what opinions we have about what reality constitutes, these types of program are undoubtedly far off the mark. Post-production techniques are used to exaggerate the dramatic tensions between people; often people who would ordinarily have no contact are forced into relationships with one another, and it has been insinuated that certain parts of reality TV are scripted beforehand, in order to prevent the programme from becoming tedious or formulaic.

What does this development in the notion of “reality” do to a discussion of the ethics of reality TV? Firstly, the production processes of reality TV are heavily reliant upon advertisers and private corporations concerned about making money. Such companies do not generally have too scrupulous a reputation for ethical marketing or behaviour. Product placement is a regular feature in reality TV, which, if looked at from a Marxist point of view, leads to the synthesis of what is seen as common sense “reality” and of corporate desire. The existential view of reality, while in a kind of agreement with the ambiguity of reality TV, would argue that reality as it is presented here merely represents a faith or a religion that substitutes the pure will (choice or autonomy) of the individual into a scenario where all things are scripted, edited and controlled by forces that depend upon the viewer becoming pacified and infantilized. I argue that the reality in reality TV merely represents a particular version of reality. As post-structuralist philosophy would suggest, the notion of objective reality in the postmodern age is simply a psychologically, sociologically and metaphysically attuned network that serves to create a religion or a mythical structure of “truth” and “reality”. While Nietzsche would argue that Reality TV subdues the personal will, and of human folly and weakness, reducing the viewer to the level of passive consumer, he would also argue that it is not the ethical place of people to assume that this dynamic of “exploitation” (as Marxists would posit) is necessarily wrong. Indeed, criticisms of Nietzsche’s critiques of Christianity, while vitriolic and hateful in tone, overlook the simple premise that Nietzsche’s intention himself was not to create a system of objective truth himself. Because, as he postulates in Beyond Good and Evil: “In the womb of being, rather, in the intransitory, in the hidden god, in the ‘thing in itself’ – that is where their cause must lie and nowhere else! – This mode of judgement constitutes the typical prejudice by which metaphysicians of all ages can be recognized; this mode of evaluation stands in the background of all their logical procedures; it is on account of this their ‘faith’ that they concern themselves with their ‘knowledge’, with something that is at last solemnly baptized ‘the truth’” (1973, 34). As such, the creation of truth, upon which grounds Nietzsche was sorely condemned for throughout the 20^th century, was not Nietzsche’s central desire – indeed, the establishment of a particular truth ignores Nietzsche’s attempts to negate the this preoccupation with “truth” and “reality” present in the mind of the “metaphysician” and the abstract philosopher. The existentialist is not concerned about abstractions, but instead he is concerned about the establishment of productive myths. In this respect, the “reality” of reality TV (at least where participants and audience are volunteers) is real and, dependent upon how greatly you herald such issues as personal autonomy cannot be anything but a moral, voluntary exchange.

Marxism and the streams of thinkers that have come to be associated with Marxism tend to think very differently about the self. Socialist philosophy suggests that the human freedoms posited by the American and British administrations during their “free” market experiments are merely a chimera designed to obfuscate and paper over the exploitative system of exchange that operates between rich and poor.

Contrary to existentialism, Marxists suggest that voluntary participants (in such things as reality TV) have to adhere to some greater moral code, because the dynamic of exchange exposes basic human vulnerabilities that exist in everybody. Their concept of reality is based upon a politics of exploitation, or a dialectical exchange between two opposing factions, one of which is exploited, and the other is dominant. Such Marxist theory can be used to explore this notion of “reality” in reality TV further: the dynamic between rich and poor (used in “crude” or traditional Marxism) creates a system of exploitation between the working class and the ruling class. This can be extended into linguistics and semantic theory, and forms the central tenet of deconstructionist theory posited by Jacques Derrida. Derrida argues firstly that the structuralist theories of Ferdinand de Saussure depended upon a relationship between the signifier and the signified – namely, what is being represented and what it represents. While Saussure argued that this framework was stable, and that the signifier and the signified never changed, Derrida and the deconstructionist theorists argued that the relationship between the signifier and the signified was always subject to “play” and fluctuated constantly. Moreover, the limitations of human communication meant that our perception of the world was limited. Derrida argues that the world is conveyed in language and discourse. Derrida takes this further, arguing that Western language has always based its functionality upon what he calls “binary oppositions”, in which one is seen as inferior, while the other is seen as superior. These oppositions run the gamut of human thinking and is what abstract philosophy tends to ignore: for instance, the dichotomy between man and woman is the subject of many feminist writers: while man can give women the same material rights, linguistically, woman still represents the absence of masculinity. Similarly, reality is seen as superior to the simulacrum, as explored by Plato’s myth of the cave, in which he argues that one pure object exists, and that everything else is a copy, and therefore inferior to the real thing. Derrida argues that deconstruction provides a solution to this problem, and by exposing and making conscious these oppositions, and deliberately working against them creates a system of simultaneous difference and equality through semantic “play”.

As such, the ethical concept or exchange between the directors of reality TV, the participants and the audience create an interesting dynamic of exploitation that tends to eschew simple ethical thinking. To say that these reality programmes are bad ethically (a string of reasons have been posited, from the sensory deprivation of participants, to the unsavoury and voyeuristic nature of the program, to the use of the grotesque, to the implementation of torture techniques) avoids the overall issue that participation is “voluntary”. However, the previous arguments (deconstructive, Marxist, feminist, existential) all have radically different arguments as to what exactly constitutes “voluntary”; the notion of voluntary participation is a key issue in philosophical debate, and can be seen to surface in the ethics of advertising, fast food consumption and the selling of junk to young people. The question revolves around the concept of “reality”; namely, whether we are in control or whether our choices are determined by mechanisms and structures of power, addiction, and deep psychological needs. Reality TV argues that it exists as a form of entertainment. In the following section I will look at the dynamic of exploitation; particularly upon how reality TV exploits certain human qualities or “realities”, and renders them perverse.

Reality TV: a psychoanalytical approach

Reality TV, especially the phenomenon of the game show Reality TV programme, namely such programmes as Big Brother, Survivor, Big Diet, Celebrity Fat Club, Temptation Island, Bachelorette and Boot Camp exploit numerous psychoanalytical desires in order to “hystericise” reality and to render ordinary impulses and desires perverse. This exploitation, which I will argue is central to the strategy of corporatism and central to the postmodern malaise raises a number of ethical questions concerning the position of Reality TV in contemporary society, is endemic in the phenomenon of reality TV, and appears concerned primarily as either a reflection of, or a creation of, many issues that plague Western consciousness. Reality TV attacks certain concepts and, via gossip columns and TV journalism in other media, makes these things hysterical. One such topic is that of the “normal” relationship. While Big Brother tends to vet the participants based upon their position as sexually “perverse” (the last series of Big Brother featured a transsexual and several homosexuals) eccentric or colourful in order to engender conflict within the house and to maximize the entertainment value that can be derived from this “reality” that is constructed, the vision of the ordinary relationship, which occurs with relative frequency in the Big Brother house, is one that is treated with extreme shock by both participants, media, the programme makers, and eventually, the audience themselves. Jan Jagodozinki (2003) comments that “each reality game ‘hot-houses’ and hystericizes ‘normal relationships’, engendering paranoid perception where no one is to be trusted” (323). Of course, ethically this hystericisation serves the purpose many mass-mediated and televised spectacles seek to achieve. In a Marxist, postmodernist context, the media (especially the ‘modern’ mediums of television and brand advertising) wishes to engender a consumer whose only relationship to the outside world is through the corporatist-owned signification of signs. We are marketed towards in order to create an atomised, pseudo-individual whose only relationship to him / her self is through signification and engagement with the hyperreal. As such, consumer need is created, manufactured in the dream factory of advertising, and disseminated through mass media to create demand for a product that was, prior to the embellishment of reality through hyperrealistic signification, useless and unnecessary. Reality TV simply contributes to this feeling of post-human disgust with the mechanisms of the body and the unconscious mind. For instance, the drives expounded by Freud (labelled by him as genital, oral and anal), are attacked with frequency in a number of these TV reality shows: In Big Brother, participants are deprived of food, and are occasionally “treated” to products from the outside world when they participate in a particular task (the oral, anal dichotomy). The lack of privacy in toilets suggest the programmes obsession with these excretive functions; also, the relationships that occur among these “ordinary” people are exaggerated with an unparalleled degree of disgust and hysteria both within the programme and external to it in other “gossip” columns and TV magazines. This suggests an obsession with the genital drives that are echoed in other reality TV programmes. The hystericisation of normality “are the very symptoms that plague the American landscape, namely the preoccupation with the excesses of the drives – anal and oral (food / dieting) […], genital (seduction) […] trust, […] extreme physical exertion […] authority” (Jagodozinki 2003, 323). These drives are isolated and compounded in a manner that many would figure as unethical; the audiences watch the TV – voyeurs in their living rooms – rendering all these desires perverse and alien. The anal / oral functioning can be seen in all manner of these game show / reality TV hybrids. In Survivor, participants experience food deprivation, then are force-fed the junk food of capitalism. Reality TV provides us with either a perverse kind of promotion of these desires, or else exaggerates and satirizes these principles that already play a huge part in the advertising, producer / consumer relationship of (most of) Western society. For instance, many of these reality TV programmes are obsessed with food and excrement, the balance between which is, of course, expressed in terms of physical weight: Game show reality programmes such as Fat Club, Big Diet, Survivor and Big Brother, as well as innumerable documentaries, talk shows (Gerry Springer, Rikki Lake, Oprah Winfrey all tend to devote a disproportionate amount of time to “exposing” obesity in ways that carefully tread the dual lines of exploitation and grotesquery, and non-pervasive exploration or passive “documentary”, often with a focus on the former) all focus on weight, eating and consumption as a mainstay of their challenges. In one edition of I’m a Celebrity, Get Me Out of Here, pop-mystic and spoon bender Uri Geller was forced to eat live slugs while some other minor celebrity spent most of the programme complaining about his constipation. As such, natural processes such as eating, drinking and excreting matter becomes exaggerated to such an extent that these very bodily processes become shameful. Jagodozinki comments that “Survivor players are foced to follow exactly the same starve and binge mentality of bulemics” (2003, 321). The Freudian drives and impulses are concentrated upon by programme makers in order to engender an interest in the programme that, if it were a representation of ordinary, mundane “reality”, would presumably be too scant to provoke widespread interest.

Similarly, other drives are obsessed over. The genital desires, marked by an obsession with sex, lust and seduction are exploited through programmes such as Big Brother, Temptation Island and Bachelorette, where sexual, relationship related trysts are exploited by the programme makers in order to maximise audience ratings and profits from their programme. For instance, whenever a relationship threatens to bubble over in Big Brother, the programme makers, along with the media vehicles that feature Big Brother (showbiz magazines and tabloid newspapers, for instance) tend to simultaneously glorify and pervert the developing relationship into a grotesque and abominable spectacle.

Trust and paranoiac fantasies are also played with in the post-production of Big Brother. The format is automatically designed to expose hypocrisy: while participants are forced to work together and live together, participants also have to periodically vote each other out of the house. As such, issues of trust and paranoiac functions are exploited, in a microcosm, of the contemporary world that constitutes “reality” TV.

As such, the difficulty with exposing the ethical indiscretion of reality TV is simply that it can either be seen as a hyperbolic reflection or satire of current prevalent trends in Western society, or that it can be seen as contributing to the effects of “consumerisation”, and can therefore be seen in the light of Marxists who approach the exploitative mechanisms of mass media with grave suspicion. Louis Althusser’s system of “interpolation” which in his words, is described as having the following relationship with ideology: “ideology interpolates the individual as subject, […] this interpolation “is realized in institutions, in their rituals and practices” (2001). As such, the ideology of guilt, of loathing for the body and of the consumerisation of the general public through the exploitation of these particular vulnerabilities is, according to Althusser, interpolated and disseminated through mass media, or, as he calls it, the “ideological state apparatus”. And any form of mass media that adheres to these capitalist desires against the individual and for the “subject” is also catering to systematic oppression to the masses and is therefore morally reprehensible.

So, what is the argument in favour of reality TV? Namely, that it bypasses these ideologies and instead presents us with a “reality” of ordinary people, unencumbered by the traffic of biased representation one tends to get in drama and fiction. The function of reality TV, according to this argument, is to present to people life as it really is. I would argue, however, that this is not the case for a number of reasons. The psychological stresses that subjects are put under are, in themselves, unique in these game show / reality TV programmes. It would be extraordinary to presume that everyday people would be forced to endure these psychological strains. Moreover, the dissemination and the editing of these pieces together serves a dual function: firstly, it imposes a strict narrative upon the happenings based upon a desire to entertain. Entertainment can be achieved through the exploitation and exaggerations of these specific, Freudian functions. In order to condense 24 hours of time into half an hour, programme makers have to edit the raw material of “reality” in a way that generates interest in the overall product. The effect of this is to highlight these desires and dramas and to generate a narrative of disgust from the raw material. As such, events are scandalised, hystericised, and processed through the “state apparatus” of Freudian drama. This is satirised in the film The Truman Show. Jagodozinki (2003) comments that “The banality of his everyday life with its mundane repetitions is the very opposite of media hype which happens off camera or is worked in ‘live’” (328). The function of this segment is to highlight the principle that these dramas are not reality; simply because the subject is “real” and falls into the pigeonhole of “non-fiction” by programmers, the ways in which these “documentaries” are assembled tend to fall into dramatic stereotypes associated with the exploitation of Freudian impulses, checked with a Marxian system of exploitation.

The World Is Flat: “Infotainment” and relativism

Modern news programming tends to cut and splice events of widely different qualities – from serious news items about plagues, famines, death and suffering to items about cuddly toys and cats getting stranded in trees. Also, programming on commercial channels are cut every fifteen minutes with a barrage of advertising, with the effect of sharply combining the “reality” of news footage and reality TV with the “non-reality” of advertising. Ethically, this places TV in general under the accusation of numbing the viewer and transforming him or her into the amoral, relativistic, emotionally numb and philosophically nihilistic consumer infant that sociopaths and corporations tend to prefer. As such, arguments about the “reality” of reality TV being less produced than fiction tends to falter – instead, the handle of “reality” has the effect of simply lowering the viewer’s (or consumer’s) guard. The juxtaposition of mundane events in a fast barrage of creative editing sensationalises the mundane. In a triumph of style over content, some reality TV shows and news features use music and montage to create the illusion of event, when there is no event to speak of. “Real life” documentaries and long-running reality TV programmes, such as Changing Rooms and DIY SOS utilise quirky (and somewhat insipid) montage sequences with humorous music in order to generate a homely, friendly appeal. However, almost all reality TV programmes appeal to consumerist desires (an endless procession of programmes about house hunting, gardening, buying), or exploitative voyeurism (house cleaning programmes about “dirty” people, unsympathetic obesity programmes, a fixation upon sexual or cosmetic acts). Ethically, reality TV however, only ser

James has died recently, and has left a properly executed will in respect of his estate. There are a number of provisions in this will, including a substantial financial legacy to his sister, a trust over James’ leasehold estate for which the trustee has since died, a trust of ?100,000 for the purpose of benefitting James’ friends’ dependants completing studies, a gift of his collection of coins and mints, and a gift of Jack Daniels whiskey and some money to his niece. Each of these provisions of the will present certain problems. The provisions will be addressed individually in order to assess their status, and determine who will actually get what under James’ will.

The first provision, then, is a gift of ?100,000 to his “beloved sister” Emily, with an obligation on Emily to use a “reasonable amount” to look after James’ step-daughter, Mary. This would appear to create a trust over a portion, but not all, of the ?100,000 in question. As identified in the seminal case of Milroy v Lord (1862), a trust can be created either where a person declares himself or herself a trustee over property the legal title of which he or she holds, for the benefit of (that is, beneficial ownership lies with) another; or where a person transfers his property to trustees on trust. It is established, however, that a trust obligation can only subsist in relation to specific trust property. James’ clear intention here to create a trust will not, on its own, be sufficient to benefit his step-daughter if it cannot be ascertained exactly what the trust property was intended to be.

This brings us to a fundamental requisite of valid trusts; the so-called three certainties, identified by Lord Langdale in Knight v Knight (1840), when he was Master of the Roll. The three certainties that must be present are certainty of words (or intention), certainty of subject matter and certainty of objects. In relation to certainty of intention, one must consider James’ wording. He does not specifically mention a “trust”. This may not be fatal to the successful establishment of one, however, as his “absolute confidence” that his sister will use some of the money for the specified purpose would probably qualify as “precatory words”; which would be sufficient. In Re Adams and Kensington Vestry (1884), the words used in a similar provision were “in full confidence that [the testator’s wife] would do what was right as to the disposal [of the trust property] between his children”. Cotton J, in the Court of Appeal, suggested precatory words alone were insufficient, but a valid trust may be created in the wider context of the will. Again, James’ words would appear to qualify as he has created other trusts.

There may also be a problem with this provision in relation to the specific subject matter of the trust. Trust property must be clearly defined, otherwise the trust will fail for lack of certainty. Here, James has asked that a “reasonable amount” be used for the upbringing of his step-daughter. The court may be prepared to define a “reasonable amount”, however, following such cases as Re Golay’s Will Trusts (1965). Here, the wording provided for a “reasonable income” for the legatee, and Ungoed-Thomas J considered the term to be sufficiently objective to be capable of quantification. It seems this provision will be valid if two conditions are met; namely James’ use of precatory words are considered sufficient in the context to create a trust, which seems likely, and the court is prepared to define “reasonable amount” as the subject matter of the trust which, again, seems likely.

The second provision in James’ will relates to his leasehold estate in Blackacre, which he wishes to pass to his nephew John, whom he desires to use the rent for the estate for either James’ children who John thinks are most deserving, or for John’s own children. There are a number of interesting, and potentially problematic, aspects of this provision. The first is that it relates to a trust over land. Under the Law of Property Act 1925, there are further formalities that must be observed when creating a trust over land. The trust will only be validly constituted if legal title to the trust property is effectively transferred to the trustee, John. Section 52 of the LPA 1925 states that any conveyance of land must be effected by deed. Mere writing (such as in James’ will) or an oral transfer, or even physical possession of the land will be insufficient. An assignment of title to a testator’s leasehold estate to an intended beneficiary’s mother was held invalid because it was not done by deed in Richards v Delbridge (1874). It seems that this trust would have failed for this reason.

The trustee, John, however, died without distributing any of the rent from the leasehold property. The trust has therefore failed for two reasons (the trustee’s death and the absence of a proper assignment of legal title to the trustee). What, then, happens to the leasehold estate? It will become a resulting trust. The beneficial interest “results” back to the settlor or his successors, and the trustee holds on bare trust for that party. This is known as an Automatic Resulting Trust (ART). In probate terms, the interest will revert to James’ estate and will be distributed in accordance either with other provisions of his will, or with the intestacy rules.

The third provision in James’ will relates to ?100,000 which he has given to Mark in order that Mark can invest it and use the income to help “any of [James’] friends’ dependants complete law degrees. This will meet the requirements of an express trust in terms of its certainty of subject matter. The ?100,000 is a specific sum of money that is to be made the subject of the trust. In this instance, however, we must consider the nature of purposes in the context of trusts. The law of trusts allows individuals to devote their property to the carrying out of specific purposes. There are, however, a number of restrictions on how this can be done. Purposes often involve both trusts and contractual obligations to carry out some action. The general starting point in this discussion is that unless it is a charitable purpose, the law in England does not generally allow the simple transfer of property on trust to carry out a particular purpose. Using Penner’s example, “?10,000 on trust to oppose UK entry into the common European currency” would be likely to fail.^[1]

In order to assess whether James’ provision to Mark of ?100,000 for the designated purpose is valid, the “beneficiary principle” must be considered. This states that for a trust to be valid, it must be for the benefit of ascertainable individuals. This provision is not a pure purpose trust, which would fail under English law, but rather it is for the benefit of certain individuals. In Morice v Bishop of Durham (1805), Sir William Grant, then Master of the Rolls, said “there can be no trust, over the exercise of which this Court will not assume a control; for an uncontrollable power of disposition would be ownership, and not trust … There must be somebody, in whose favour the court can decree performance.” In this case, as mentioned, there are a particular group of potential beneficiaries of the trust; it is not simply “for the general advancement of legal studies”, for example. Although the beneficiary principle would appear to be met, then, it is a corollary of the requirement of certainty of objects, to which we now turn.

For a trust to be valid, the objects of the trust (that is, the beneficiaries), must be certain. In other words the trust must be expressed in such a way as to enable the trustees, or in their default, the court, to identify who exactly the beneficiaries are. The trust of ?100,000 to Mark is characteristic of a discretionary, rather than a fixed, trust, meaning that the precise benefit to specific individuals is not defined by James. Rather, Mark will exercise discretion as to who, from the group of possible beneficiaries, will benefit. In McPhail v Doulton (1971), the House of Lords stated that the test for certainty of objects in trusts such as this one should be similar to the test for objects of powers. It should, in other words, be possible to say of any given individual that he or she is, or is not, part of the specified class of beneficiaries. Subsequently, in Re Baden’s Deed Trusts (No 2) (1972), the Court of Appeal stated that when this test is applied, a discretionary trust will be valid so long as the beneficiaries can be identified with “conceptual certainty”.

How does this apply to the present case? The discretionary trust relates to “any of my friends’ dependants”. This is of course, subjective. Who is, or is not, James’ friend? And who qualifies as a dependant of those friends? An early test for this problem was the so-called “complete list” test, which was applied in IRC v Broadway Cottages Trust (1955). Jenkins LJ stated that “a trust for such members of a given class of objects as the trustees shall select is void for uncertainty, unless the whole range of objects eligible for selection is ascertained or capable of ascertainment.”^[2] Clearly, in the present case, it is unlikely that an exhaustive list of the potential beneficiaries will be able to be compiled. The test was, however, criticised in subsequent cases as failing to deal adequately with developing discretionary trusts that covered larger groups of potential beneficiaries. In McPhail v Doulton (mentioned above, in which the purported discretionary trust was very similar to the present one), the complete list test was discarded in favour of the “is or is not” test.

Unfortunately for the present trust, however, it would most likely still be invalid on the basis of administrative unworkability. Again, this concept arose in McPhail v Doulton, when Lord Wilberforce stated that there may be classes where “the meaning of the words used is clear but the definition of the beneficiaries is so wide as to not form “anything like a class” so that the trust is administratively unworkable…”^[3] Given the potential size of the class of beneficiaries here (depending of course on James’ popularity), this trust would probably fail.

The fourth provision relates to James’ collection of coins and mints which he gives on trust in order that any of his colleagues who wish to do so to purchase them at half price. The rest are to go to James’ sister, Lora. The first issue here is the identity of James’ trustees. He has not specified who will be the trustee(s) in this case. This is not, however, a significant problem as it is well established that trusts will not fail for want of a trustee. This applies either where no trustee is specified (as is apparently the case here), or where the specified trustee is unwilling to accept this responsibility. If no willing trustee can be found, Public Trustee will be appointed as a last resort. Provision for this office was made in the Public Trustee Act 1906 (section 2(3)). Alternatively the court may appoint a trust corporation to administer the trust pursuant to section 42 of the Trustee Act 1925. This first issue with the present trust, then, presents no real problem.

The trust property is James’ “valuable collection of coins and mints”. This is unproblematic, assuming that the collection can be physically located. It should be relatively clear what forms part of the collection and what does not. The requirement for certainty of subject matter will therefore be met. The class of beneficiaries is expressed as being James’ colleagues. This is not a discretionary trust in the same way as the one discussed earlier, as the trustees have no discretion as to who will benefit from the trust. Rather it is the potential beneficiaries who may exercise their discretion to purchase items from the collection. The equitable maxim that “equity treats as done that which ought to be done” would apply a constructive trust here, if there was a specifically enforceable contract to sell the property to the beneficiaries. There is not, however, as the potential beneficiaries have not yet decided to accept.

In the present context, a further requirement of a valid trust is worth considering; namely that where a settlor wishes to create a trust over which a third party is trustee, the legal or beneficial title to the subject matter of the trust must be effectively transferred to the trustee. James’ words here refer to his “trustees”. In Choithram (T) International SA v Pagarani (2001), it was held that where it is intended that there be a body of trustees, it will be sufficient to transfer title to one member of that body. The rules of effective transfer of title vary according to the type of property in question, and are most lenient in relation to chattels (which cover the collection here). Title may be transferred either by deed or gift, or delivery of possession. It is likely that the will, if correctly executed, will be sufficient for this transfer.

There is, in trust law, a rule against perpetuities. This states that gifts of property must vest within a certain period of time. James’ sister is due to inherit the remainder of the collection at some point in the future, but this is not defined. The perpetuity period is “a life in being plus twenty-one years”.^[4] This limits the period of time in which the remainder of the collection must vest in Lora.

The final provision in James’ will relates to 20 bottles of Jack Daniels whiskey that is stored in his cellar, and ?500 from his City Bank plc savings account, which he gifts to his niece, Emily. This is, on the face of it, unproblematic. It would appear to meet the requisite standards of certainty in relation to words (or intention), subject matter, and objects. The wording clearly creates a testamentary gift. Assuming James has only one niece called Emily, the intended beneficiary will be clearly identifiable. Ostensibly, also, the subject matter of the trust should be sufficiently certain. The problem, however, relates to the fact that in James’ cellar there are 40 bottles of Jack Daniels; and in the relevant savings account, there is ?1000. The testamentary gift therefore relates only to half of these items.

It is clear that a trust cannot exist in abstract. It must relate to specific assets or else it will fail. By way of example, in Hemmens v Wilson Browne (a firm) (1995), an agreement allowing a person to call for a payment of a specified sum at any time did not create a valid trust because no specific property had been identified as the subject matter of the obligation. There “was no identifiable fund to which any trust could attach.”^[5] In the present case, there is no conceptual uncertainty as to the intended trust property, however, as it explicitly relates to bottles of whiskey and money. The problem arises, however, because the property is unascertained. In Re London Wine Co (Shippers) Limited (1975), a customer order for a consignment of wine was unable to create a trust over specific bottles in the seller’s warehouse because the specific property could not be ascertained. The customer’s specific order had not been appropriated from the general stock.

This would suggest that the gift to Emily would fail for similar reasons. The Privy Council confirmed the approach in Re Goldcorp Exchange Limited (In Receivership) (1995) in relation to gold bullion. Again, specific orders had not been appropriated from the general stock so the trust failed. This is not conclusive, however, as an alternative approach occasionally adopted by the courts should be considered. In Hunter v Moss (1994), an oral declaration of trust was made over 5% of the issued share capital of a private company in which the settlor owned 950 shares. The court held that this was not void because the specific shares had not been segregated from the remainder of the shares. This decision, although it might help on the successful implementation of Emily’s trust, has been criticised as being inconsistent with the earlier Privy Council decision. One justification for following the decision in Hunter was offered in Re Harvard Securities Limited (In Liquidation) (1997) as being that Hunter related to shares and not chattels. In the present context then, it seems that the trust over the money in the account might be valid, but that over the whiskey may not be.

BIBLIOGRAPHY

Statutes

Law of Property Act 1925

Public Trustee Act 1906

Trustee Act 1925

Cases

Choithram (T) International SA v Pagarani [2001] 2 All ER 492

Hemmens v Wilson Browne [1995] Ch 223

Hunter v Moss [1994] 1 WLR 452

IRC v Broadway Cottages Trust [1955] Ch 20, CA

Knight v Knight (1840) 3 Beav 148

McPhail v Doulton [1971] AC 424

Milroy v Lord (1862) 4 De GF & J 264

Morice v Bishop of Durham (1805) 10 Ves 522

Re Adams and Kensington Vestry LR (1884) 27 Ch D 394

Re Baden’s Deed Trusts (No 2) [1972] Ch 607

Re Golay’s Will Trusts [1965] 2 All ER 660

Re Goldcorp Exchange Limited (In Receivership) [1995] 1 AC 74

Re Harvard Securities Limited [1997] 2 BCLC 369

Re London Wine Co (Shippers) Limited (1975) 126 NLJ 977

Richards v Delbridge (1874) LR 18 Eq 11

Secondary sources

Martin, J.E. (2001) Hanbury and Martin – Modern Equity, 16^th Edition (London: Sweet & Maxwell)

Pearce, R. and Stevens, J. (2006) The Law of Trusts and Equitable Obligations, 4^th Edition (Oxford: OUP)

Penner, J.E. (2004) The Law of Trusts, 4^th Edition (London: LexisNexis)

The first step we should attend to briefly is to define what a trust is. Simply put, a trust is a relationship under the law of equity^[1] that arises when one person (the settlor) vests the legal title in another person (the trustee) for the benefit of a third-party called a beneficiary. The trustee holds the legal title and the beneficiary-(ies) possess the equitable title and as such the trustee owes them a duty to carry out the duties as defined by the settlor^[2]. The most basic species of trust is an express private trust; this is a “trust which is declared intentionally by the settlor”^[3]. There is no fixed mechanism or form of words for creating such a trust because “equity looks to intent rather than the form”^[4]; see Paul-v-Constance^[5]. Hudson (p.72) speaks of “exposing” a trust which demonstrates that it exists by law and is not created by the courts retrospectively. Express trusts can be established during the life of the settlor or as in this case, via instructions placed in their will.^[6]

There are two basic sets of requirements for valid trusts; the first is that there needs to be three basic certainties as per Knight-v-Knight^[7]; defined as certainty of intention, subject matter and object – if any one fails then there is no trust. The first of these requires that there was a certainty of intention by the purported settlor “that the person receiving the property is under a mandatory legal obligation to carry out the wishes of the settlor”^[8]. Secondly and only logically, it must be certain what the subject of the trust is i.e. the property. Finally, there must be certainty of object i.e. there needs to be someone with equitable ownership to enforce the trust, see Re Endacott^[9]. The second basic requirement is that the trust must be constituted i.e. the legal title must pass to the trustee(s). This should not be an issue here because as executors Edward and Sandra would have already acquired legal title of all Alice’s estate^[10].

DISPOSITION A

Alice’s disposition is potentially void as a trust due, firstly to uncertainty of intention; the disposition does not suggest Alice intends to impose a legal obligation on Edward to carry out her wishes. Rather it potentially suggests she was imposing on him a “power”. In essence, trusts impose an obligation to act and powers authorise people to carry out certain tasks with a lower level of compulsion.^[11] The task we have is to decide what Alice intended and according to Dixton (p.67) “it is very easy to confuse trusts and powers, especially since most power are given to people who are otherwise trustees”. Edwards (p.80) advises that to differentiate between them is “a matter of construction for the courts, based on identifying the intention from…the language and the document as a whole” He further suggests that a significant indicator would be “existence of a gift in default of appointment” and wide discretion. Applying this to our facts, we see that Alice grants him a‚¤10,000 to buy a small memento for “such of my relatives as have not received anything under the other provisions” and after doing this “to keep what is left”. It is submitted that this does not meet the necessary level of certainty, especially as Edward keeps what is left over, it is merely a power; a power of appointment^[12], outside of a trust instrument^[13].To impose a trust situation in this case would be to ignore the warning in Re Hamilton to “take the will you have to construe and see what it means, and if you come to the conclusion that no trust was intended then say so”. The next issue is what kind of powers these are and what level of compulsion exists on Edward to carry out the tasks. This could be a personal power^[14] or a fiduciary power and this will turn on whether he was given the power in his capacity as a son or executor. Wilkie (p.52) says if it is a personal power he could distribute “spitefully, or capriciously, or even go to sleep and forget about exercising the power at all”.

You could argue that Alice gave the power to her son in his capacity as a son; and so considering the remainder goes to him then it is all but an absolute gift. He could just buy a few relatives key-rings as mementoes and be done with it. The beneficiaries would have no equitable interest in any property as its quantum is unknowable. The second view you could argue is that he has to exercise the power in his capacity as executor and so he has a higher level of onus upon him. It is submitted that as such, this power of appointment would be what is known as a hybrid or intermediate power^[15] in that he is authorised to distribute it to a certain category of objects, relatives, excluding those who have already benefited. The level of compulsion or onus is debatable. In Re Hay’s Settlements^[16], it was held that he just cannot ignore this power to appoint randomly, he must make efforts to complete it. And in McPhail-v-Doulton^[17] – the leading case in this area – it was said he “must act in a responsible manner according to its purpose” and “make survey of the range of objects” that” will enable him to carry out his fiduciary duties.” Wilkie (p.52) says that there is much lessor onus is on a donee^[18] of a power to locate those who may be objects. However, other commentators, see Penner (58+) say the onus depends on the type of power as well as who has been granted it.

However, even with ‘powers’, the subjects and objects need to be ascertained and Alice has simply defined “small memento of me” and “relatives” minus those who benefited from the will; these are problematic. Firstly, the subject matter is conceptually uncertain^[19]; as per Palmer-v-Simmonds^[20] and so potentially void; what is ‘small’ and what is a ‘memento’^[21]. Secondly, “relatives” could be taken to be anyone with a common ancestor and as you work back far enough this could include almost anyone. However, in Re Baden’s Deed Trusts (No.2)^[22], relatives was equated to next-of-kin and held to be conceptually certain; a strange decision considering how rigid the court has been on conceptual uncertainty. Furthermore in McPhail, the test to ascertain objects for a power was decided as the ‘is or is not’ test described by Wilberforce as, “can it be said with certainty that any given individual is or is not a member of the class?” Thus it appears possible that we could, if necessary, reach a legal definition of the objects although the problem is the subject of the power.

The advice to Edward is pretty clear; as a trust this fails and so based on Curtis v Rippon^[23], he could take the entire amount of a‚¤20,000 seeing that the amounts to be given to relatives are uncertain and so the absolute gift to him takes effect over the failed trust. However, if viewed as a power, he may be under compulsion to distribute some of the a‚¤20,000 buying small mementos for relatives once he complies with the above; although, in practice few would be willing, or able, to compel him to execute this power.

DISPOSITION B

Does the phrase “fullest trust and confidence” indicates certainty of intention to create a trust? In Re-Adams-and-Kensington-Vestry^[24] a husband gave property to his wife in “in full confidence that she will do what is right”, yet this was held to only impose a moral obligation upon her. However, in Comiskey-v-Bowring-Hanbury^[25] the phrase “in full confidence” was held to impose a trust. The similarity in these cases is superficial and it is apparent that each was judged on its individual merits and potential settlor’s intentions. Hence, the mechanical application of phrase simply turns the law on its head. It is much more insightful to follow Re Hamilton comments listed above in part A and use common sense. Applying this, it is submitted there is potentially a certainty of intention, but we also need to examine the other certainties.

On ‘certainty of subject’; it is trite law that, as per Re-London-Wine-Co^[26] that trust property must be ascertainable. In that case un-segregated wine voided certainty. This was supported in Re-Goldcorp-Exchange-Ltd^[27] . Mustill^[28] said “rights in property, whether equitable, cannot exist in the air… it can only exist in relation to property which is specifically ascertained”, i.e. physical segregation is necessary^[29]. However we are not dealing with a situation exactly similar to Re-London-Wine. Under a will, the executor takes full title to the property on the death and according to Martin(p.60) the “equitable ownership is in suspense” – the trust has not yet been constituted whereas it allegedly had in London-Wine. All the executors need to do is to walk down to the cellar and physically segregate fifty bottles of wine and identify them as trust property and transfer legal title from Edward/Sandra, as executors, to Edward personally. It is obvious Alison knew what was in her wine cellar so the property she is referring to really was not a specific 50 bottles of wine, but 50 of the 80 wine bottles I know I have in my cellar. How else could she describe them if they were homogeneous, was an 80 year old woman close to death meant to go down to her cellar and move bottles around?

However, it is the “old friends”, the potential objects of this trust, which poses more serious problems. The phrase “my old friends” is conceptually uncertain^[30]; both words are subjective; what is a ‘friend’ and what is ‘old’? With the knowledge that this would be a fixed trust if the three certainties were present; i.e. each beneficiary entitled to an “equal” share then IRC-v-Broadway-Cottages-Trust^[31] states that all the beneficiaries must be able to be listed and there is no room for any conceptual uncertainty. The disposition states that Edward should cure any uncertainty and his word is “final”. However, this is not likely to be accepted by the courts. In Re-Tuck’s-Settlement-Trusts the court allowed a Rabbi, as per the trust document, to cure an issue of uncertainty i.e. whether someone was of “Jewish blood”^[32]. However, the Rabbi was acting in his capacity as expert on the Jewish faith and evidencing the meaning of the words not defining them. You could make a good argument that Edward could define his mother’s old friends just like the Rabbi defined Jewish blood, but it would go against current legal and academic opinion so as a trust it would likely fail.

However, the advice in this case might be that this could be treated like above, as a power. This is because, as a power Edward could use the “is or is not test” rather than the “complete list” test and so circumvent this issue and give Edward much more leeway to carry out his mother’s intentions. Remember the preference of the courts will be to see Alice’s wishes carried out rather than not.

DISPOSITION C

There is clearly an intention to create a trust with the subject matter of a‚¤20,000, because it is stated. It is further obvious that it is a discretionary trust^[33]; this is a type of express trust where the trustee has what is called ‘dispositive discretion ’ i.e. an ability to decide the quantum of trust property, if any, goes to each beneficiary^[34]. It is important to note the difference between this and a fixed trust; in a fixed trust the beneficiaries have a severable equitable claim on the property because they can usually calculate what they are entitled to. In a discretionary trust the trustees can exercise discretion; and in this case the basis of this discretion is those “they find most deserving.”

The real issue is who exactly are the objects of the trust; that are subject to this discretion?^[35] We are given no names but rather a class description “such of the first 300 people to have crossed the Victoria Bridge on the 24^th of October 2008”. Such descriptors in theory pose no problems. However, if we assume that this date has passed^[36], then we are presented with a difficult evidential problem. It is important to point out that the names of the 300 people who were first over Victoria Bridge is a fact; they are an absolute certainty; it is just the trustees don’t know who they are yet. Hence, it is not an issue of ‘conceptual certainty’ as to the class descriptor; it is not like “old friends”. The issue is one of evidential uncertainty in that the trustees do not have enough evidence to write down a complete list. The courts have grappled with this problem but it is now clear from McPhail-v-Doulton that previous requirements for a complete list, like for fixed trusts, are no longer valid. The test now is the “is or is not” test as outlined above. Hence, the trustees do not need to know the 300 people who crossed the bridge, they only need to meet the test set by Wilberforce in McPhail; “can it be said with certainty that any given individual is or is not a member of that class”. The issue now is could anyone do this with sufficient certainty. It would not be enough to show you crossed the bridge on the day but that you were one of the first three hundred to do so^[37]. This turns on facts we don’t have; considering the coverage of police cameras in London it is likely there is one focused on Victoria Bridge so this might help candidates prove their claim. To conclude this section, the advice is whoever can prove with sufficient certainty that they fall within the class, and then they will become beneficiaries of the trust. However, if no one can prove then the trust will fail for lack of certainty of objects and the a‚¤20,000 result back to Alice’s estate.

There are a number of other issues which should be covered briefly for Edward and Sandra. Assuming the three certainties are present, then the trust is properly constituted (as the potential trustees they are also executors and have legal title). To be a trustee you need to have reached the age of 18; we are not told Sandra’s age but presumably she complies with this. The trust is defined to be for 21 years i.e. 21 years after Alice’s death and this is permissible under Section 13 of the Perpetuities and Accumulations Act 1964. However, it is worth pointing out to Edward and Sandra that the trust is unlikely to last as long as 21 years. Although the beneficiaries would have no rights severally because as Penner (p.85) describes them they are “mere postulants, seeking the trustees’ largesse”; they could have rights jointly because it is an exhaustive trust^[38] i.e. Alice appears to have instructed them to spend all the 20K and there are no devices to return unspent money to the estate. As such the beneficiaries may have rights jointly to petition the court to simply give them the trust property, see Martin (p.211) which presumably they would have agreed to divide equally^[39].

References – Bibliography

Burn, E, Trusts & Trustees Cases & Materials 6^th Edition, Oxford University Press.

Dixon, M, 2005, Equity and Trusts Q & A, Cavendish Publishing.

Edwards, K, 2000, Essential Equity and Trusts, Routledge.

Duddington, J, 2007, Equity and Trusts Law Express, Pearson.

Hudson, A, 2005, Equity & Trusts, Routledge Cavendish.

Mohamed, R, 2004, Cases & Materials on Trusts, Routledge Cavendish.

Martin, J, 2005,Hanbury & Martin, Modern Equity 17^th Edition, Sweet & Maxwell.

Penner, J, 2005, The Law of Trusts Core Text 4^th Edition, OUP.

Wilkie, M, 2008, Equity and Trusts Blackstones Q & A 2008/2009, OUP.

1

Title: EMPLOYMENT LAW :

In undertaking this essay, the writer will; identify the issues involved in Julia’s case scenario, define and explain those issues using relevant Law whilst applying them to Julia’s case. The writer will subsequently advice Julia and then conclude.

The legal issues identified in Julia’s case are; contract of employments and their variation, victimisation, wage deduction, breach of contract and available remedies such as unfair dismissal, constructive dismissals and wrongful dismissal.

‘A contract of employment is an agreement entered into by an employer and an employee under which they a have certain mutual obligations. They may be oral or written and may be indefinite or for fixed terms’^[1]. There’ an offer and acceptance supported by consideration. Offer usually coming from the employer and acceptance may be by conduct i.e. turning in for work^[2]. It follows that Julia entered into a contract of employment on turning up to work with Silkos in March 2004. The holiday term may not have been agreed by her at this time but where there is ambiguity as to the contract, the courts look at an advertisement and letter of appointment to spell out terms of the contract or to decide terms agreed as in Deeley v British Rail Engineering ltd^[3] (and Pedersen b Camden London Borough)^[4].

Julia may rely on the advertisement and any willing witnesses to their agreement on the issue of holiday. Practice of the parties are relevant to the courts, In Dunlop Tyres Ltd v Blowers^[5], the practise of paying treble time existing over 30 yrs were considered.

The law requires that a written statement of terms be given to the employee within two months of starting work (as provided by The Contracts of Employment act 1973 and employment protection rights act 1996 (ERA)). Julia’s employer breached this rule, by being a month late to provide the statement, and only after Julia’ grievance process.

The statement must contain names of employer and employee, date of commencement of employment, brief description of the work, remuneration details, holidays, sickness coverage, pension rights, notice, disciplinary process e.t.c

To vary any contract there must be express or implied consent from both parties but it must be supported by consideration. Conduct may suffice from employee working under altered conditions.

Flexibility clauses such as ‘the employee will perform such duties as are from time to time assigned to him by the board of directors or managing director’^[6] are to legally aid employers and employees in varying terms without legal problems, without these clauses, Donaldson LJ’s remarks in Janata Bank ldt v Ahmed^[7], that ‘the continuously changing contract is unknown to law’^[8]

Establishing variation is important and different from ending a contract, if an employer on his own enforces a variation without an employees consent, he breaks the contract of employment, and the employee is free to choose whether to accept the fundamental breach, and resign, or to carry on working and seek damages as was the case in Burdett-coutts v Hertfordshire^[9]; Rigby v Ferodo ltd^[10]. Julia may decide to end her employment this way as she may argue that she had not consented to the holiday term and the deduction/variation of her wages and working conditions.

It was held in these cases- Jones v associated Tunnelling Co. ltd^[11]; Courtaulds Northern Spinning Ltd v Sibson and TGWU^[12]; Aparau v ICELAND Frozen Foods plc^[13] that failing to object to disadvantageous statement of terms is not acceptance of them especially where the terms are of no immediate practical importance. It suffices that even though Julia has been silent on the issue of the four week holiday, she has not accepted the term, but her conduct may imply that she consents. for example, she has worked for two years and must have taken annual holidays, this may be viewed as consent but she could still argue that she was not able to start another grievance process because she is feels victimised having done so in the past.

If terms are not agreed, the tribunal may confirm details given, amend or replace contract terms by substituted particulars as held in Mears v Safe car Security Ltd^[14] and supported by the EPCA 1978, s 11, this power cannot be extended to holiday, holiday pay, sick pay, pensions or disciplinary rules where none existed by agreement between the parties because there is no requirement to include this in the contract, as held in England v British Telecommunications plc^[15]. Julia is still protected by her statutory rights regarding these benefits.

If a deduction of wage has been made without employee’s consent, this is regarded as a fundamental breach of contract and termination of the same as held in Hogg v Dover College^[16]. Following this, the Julia may claim termination if her wage has been deducted without her consent.

In Horrgan v Lewisham London Borough Council^[17], Arnold J,said:

‘It is fairly difficult…………..and it is very necessary if one is to do so, to have very solid facts which demonstrate that it was necessary to give business efficacy to the contract,…. way of variation’^[18].Silko’s may rely on this provision but will fail on the manner in which they are seeking to make the variation.

In Marriot v Oxford and District Cooperative Society^[19], Lord Denning MR found that ‘……………….. By insisting on new terms to which he never agreed, the employer did..…. terminate the old contract of employment’.

‘….case law suggests that employers must make it clear that he is terminating one contract and offering another, otherwise there is a risk that the employee can claim in the courts of tribunals’ rights forgone under the old arrangement’^[20]. It is arguable that by seriously changing the terms of Julia’s wages and responsibility, the employer may have brought an end to her employment.

In Sheet Metal Components ltd v Plumridge^[21], Sir John Donaldson said; ‘ the courts have rightly been slow to find that there has been a consensual variation where an employee has been faced with the alternative of dismissal and where the variation has been adverse to his interests’, the same is the situation in Norwest Holst Group Administration Ltd v Harrison^[22].Julia may strongly rely on these provisions.

In Burdett-Coutts v Hertfordshire County Council… an employer may end a contract by breach when seeking to vary the terms; the courts may interprete this as dismissal.

The House of Lords in Rigby v Ferodo Ltd^[23]established that the employee must consent to termination, and reduction of wages is not automatic termination. Also in Miller v Hamworthy Engineering Ltd^[24] . It is therefore advisable for employers to give proper notice to terminate one contract, before offering another, not doing so-as in Julia’s case- carries risk of an employee claiming for unfair dismissal.

‘It is implied into a contract of employment that an employer will provide and monitor for employees, so far as is reasonably practicable, a working environment that is reasonably suitable for the performance by them of their contractual duties’^[25]. So in Waltons and Morse v Dorrington^[26] it was held that an employer must not act in such a way as no reasonable employer would act’^[27]. This case is supported by Clark v Nomura International plc^[28], and Johnston v Bloomsbury Health Authority^[29] and walker v Northumberland county council^[30]. It appears that the employer has breached this implied contract term by ‘copying’ Julia’s grievance issue.

It is also implied into a contract of employment that an employer must take any action having regard to avoid ‘either imposing workload on the employee or acquiescing in the assumption by the employee of workload that was reasonably foreseeable may cause physical or mental injury’ Marshall specialist vehicles ltd. V Osborne^[31].

This is clearly breached by increasing the expectation to meet the same targets with less number of people in her team e.t.c. Express and implied terms must be capable of coexistence in the contract without conflict (Johnstone v Bloomsbury Health Authority^[32], Aspen v Webs Poultry and meat group (Holdings) ltd^[33].Julia’s express term of three week holiday is not in compliance with her statutory right to a four week minimum, as other implied terms can be excluded except if there is any statutory restraint, such as the rights to guarantee pay, equal pay, notice and maximum working hours.

Section 27 of the ERA 1996 defines ‘wages’ as any sums payable by the employer to the worker in connection with the employment including ‘any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise’^[34]..

A deduction of wages includes a failure or refusal to pay the amount agreed to be paid in exchange for employee’s work, Delaney v Staple^[35] regardless of reason McCree v Tower Hamlets London Borough Council^[36]. Even though Silko’s will breach the employment contract between her and Julia’s if her wages are deducted for valid economic reason. They must seek her consent in written form to obtain deduction.

In Discount Tobacco and Confectionery Ltd v Williamson^[37] ,a retail case where it is permissible to reduce only a tenth of their daily wages with consent on missen items in the shop,It was held that the employers could deduct only in relation to the last event where consent was given. Potter v Hunt Contractors ltd^[38] and Fairfield ltd v Skinner ^[39] It is illegal to contract out of this provision.

The working Time regulation 1998 came into force on 1 October 1998 and was designed to achieve, ‘a better balance between work and home’, ‘greater choice over hours of work’ and ‘improvement in health’^[40].Regulation 13 of provides annual leave of four weeks minimum. It allows a worker to complain if he suffers action short of dismissal for pursuing his entitlement, and unfair dismissal is also available on the same principle. Julia may pursue her holiday rights following this.

According to Sex Discrimination Act 1975,s4(1)’ RRA 1976, s 2(1)’Unlawful victimisation arises where a person is treated less favourably because he; brings proceedings, gives evidence or information, alleges a contravention or otherwise acts under the equal pay, sex discrimination or race relations acts or intends to do any of these things’^[41].

To succeed in a claim of victimisation the applicant must show that one of the acts above done by the applicant-such as bringing an earlier complaint of discrimination- has influenced the alleged victimiser in his unfavourable treatment of the applicant as was held in Aziz v Trinity Taxis ltd^[42]. In Nagarajan v London regional transport^[43] , His motives are unimportant according to the House of Lords.

Julia may seek redress under this provision on the basis that she was victimised because she instigated grievance proceedings in trying to assert her rights to her statement of particulars. She was made aware of her disadvantage for asserting these rights.

In Lindsay v alliance and Leicester plc^[44], a person had made an application for promotion and had instituted a grievance on grounds unconnected with the Race Relations Act 1976. Chief constable of west Yorkshire police v khan^[45] and commissioners of Inland Revenue v Morgan^[46].

According to the acas paper, ‘consultation on the draft employment equality (age) regulations 2006 (July 2005)^[47], firstly an action is taken, such as a complaint or allegation and secondly the person is treated less favourable because of such an action. Julia qualifies to claim victimisation on the basis of this provision.

Clearly, there have been significant breaches in Julia’s employment with Silko’s in ; her statutory rights to receive statement of particulars within two months, holiday rights, potential variation/termination of her contract with regards to reduction of team members and wages, victimisation for asserting her statutory rights e.t.c.

For all these breaches Julia is entitled to redress in the civil courts or the employment tribunals, in the form of damages for unfair dismissal and or wrongful dismissal by reason of constructive dismissal, redundancy e.t.c.

The Employment rights Act 1996, the Employment Act 2002 and The Employment Equality (Age) Regulations 2006 cover unfair dismissal. Basically employees can be dismissed unfairly.

Qualification for this right is by a working period of a year with the employers but there are exceptions, where; dismissal is connected to trade union membership or activities (Trade Union and Labour Relations (Consolidation) Act 1992) pregnancy of childbirth, maternity, adoption, paternity or parental leave, asserting a statutory right, claiming the national minimum wage and asserting rights under the working time regulations.

From these provisions, it is obvious that Julia qualifies for a claim on both the basis of a year qualification and automatically unfair reasons.

The act mentions fair reasons for dismissals as; capability or qualifications, conduct, redundancy, illegality or contravention of a statutory duty and some other substantial reason. There is no fair reason to dismiss Julia it appears.

An employer must act fairly and reasonably in dismissing an employee or may be faced with a successful claim for unfair dismissal regardless of fair reason for dismissal. The employers have not satisfied either of these criteria in Julia’s case.

A constructive dismissal occurs when an employee leaves a job but then claims that their employers left them no choice but to do so, either by their actions or by implication.

It is an unfair dismissal claim but the employee must prove that their employer’s behavior caused them to end the contract. Julia has every reason to institute unfair dismissal claim by reason of constructive dismissal because of the behavior of her employers. According to the trade union and labour relations consolidations act 1992, it is automatically unfair to dismiss an employee if they ‘indicated that they supported or did not support recognition of a union (or unions)’^[48], clearly Julia did not support the union and may argue- on application for unfair dismissal- that she was victimized for this reason.

If an employee proves this behavior, the employer becomes guilty of wrongful dismissal and if unable to prove that the forced dismissal was fair, they become liable for unfair dismissal too. Statutes now suggest that the employee must raise a grievance at least before bringing the claim to the tribunal, which would eliminate constructive dismissal and warn the employers.^[49]

Wrongful dismissal claim is for a breach of contract and can be brought by any employee, and only requires one month employment. Notice is required but depends largely on how long an employee has worked. After one month it is a week’s notice, after two years, it is one week’s notice for each complete year to a maximum of twelve weeks on and after twelve years.

The remedies for unfair dismissal are reinstatement, re-engagement and compensatory award.

Compensatory claim has two components, – the basic award which takes the age of the employee into question and has no minimum limit and the compensatory award which provides what is just and equitable as compensation, having regard to the loss suffered as a result of dismissal. It is now a maximum of 55,000 pounds, but in dismissals rendered unfair under the public Interest Disclosure Act 1998, there is no limit.^[50]

For wrongful dismissal, the remedy are for breach of contract and is usually the ^[51]wages and benefits that the employee would have earned if due notice had been given (Radford v De Froberville^[52], Shove v Downs Surgical plc^[53].

The writer advices that Julia may firstly use the grievance procedure agreed on her contract first, but only if she feels comfortable with so doing, if not-and from the case scenario, it seems not- she still has a strong case for unfair dismissal regardless of the fact that she is ‘uncomfortable’ using the agreed grievance procedure-the tribunal will her reasons for ‘discomfort’ favorably. The suggested grievance procedure is taken favorably into account in granting awards for damages.

The writer will also advice her that compensatory award for damages in the case of an unfair dismissal claim is more generous than for wrongful dismissal and she may apply on the basis of constructive dismissal because if successful-and it appears she will-the employer will be unable to prove that the dismissal was fair, and will incur damages for unfair dismissal. Damages are then awarded.

She chooses between the employment tribunal and the civil courts, but the writer suggests she pursues this through the tribunal because of its less rigid procedures and costs. She must keep all records from the time of employment till the time of making the application, she must also be aware that there are time limits for bringing the claim to the tribunal but a generous time limit is given by the civil courts. The earlier the better for her because records and evidence do change.

Bibliography
Books
A.McColgan, Discrimination Law; text, cases and materials 2^nd edition
P.CHANDLER, Waud’s Employment Law: The Practical Guide for Human Resource 14^th edition,

J.Bowers, A practical approach to employment Law, seventh edition, oxford university press, New york,2005

G.Duddington,. John, Employment law, Pearson Education, 2003 GOULD, T. (2007) Unfair dismissal: a guide to relevant case law. 25th ed. London: LexisNexis Butterworths.

GUINAN, G. (2007) Do dismissals by the book. People Management. Vol 13, No 18, 6 September. p22

Journal articles

Vorste, G. School staff sacked for tying up student in classroom, published 15 February 2008 14:24

Consultation on the draft, Employment Equality (Age), Regulations 2006

Internet resources

Writer unknown, Previous misconduct counts in dismissal decisions, viewed on 18 February 2008 11:00

http://www.personneltoday.com/articles/2008/02/18/44427/case-of-the-week-previous-misconduct-counts-in-dismissal-decisions.html

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00,http://www.cipd.co.uk/subjects

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 15:00http://www.hrmguide.co.uk/hrm/steele/index-2007.htm

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 17:00http://www.hrmguide.co.uk/hrm/steele/index-2007.htm

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00 http://books.google.co.uk/

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00http://www.berr.gov.uk/files/file16397.pdf

Contents

Introduction

Chapter 2: The impacts of domestic violence on children

Chapter 3: Protecting children from domestic violence

Chapter 5: The multi-agency approach to child protection

Chapter 6: Policies to protect children against domestic violence

Conclusions and Recommendations

References

Introduction

This dissertation looks at domestic violence and the impacts domestic violence has on children and child protection issues. The dissertation begins with a description of domestic violence, including an estimation of the extent of the problem, illustrated with statistics. The dissertation then moves on to analyse the immediate and long-term impacts of domestic violence on children’s health, education, personality, socialising and future relationships. The dissertation then moves on to the issue of protecting children from domestic violence in terms of the child protection issues that need to be taken into consideration. The dissertation then moves on to a discussion of the role of the mother and why her socio-economic status and culture is important. Protecting the mother, in terms of protecting the child, is then discussed, in terms of whether, for example, it is best for children to live with both parents, even when there is domestic violence occurring.

The dissertation then moves on to an analysis of the multi-agency approach to child protection, examining its advantages and disadvantages. The available services for children living with domestic violence are also discussed, as are the policy and legislation against domestic violence and pro child protection in the UK. Through this, the dissertation moves on to analyse the intervention strategies that are available to protect children, in terms of the extent to which prevention is possible and how. The dissertation then moves on to a critically analysis of the roles of policies, legislation, agencies and professionals in protecting children, in terms of whether the legislation enhances or hinders the effectiveness of professional intervention, and what should happen next. The dissertation ends with a conclusions and recommendations section, which provides recommendations as to how child protection can become more effective.

This section presents a description of domestic violence, including an estimation of the extent of the problem, illustrated with statistics.

Domestic violence, or intimate partner violence, or interpersonal partner abuse, as it is also commonly known, is a pattern of aggressive behaviours, either physical, sexual or psychological (or all three) that adult partners use against their intimate partners (Ganley, 1995). The Home Office classifies domestic violence as, “Any violence which occurs between current or former partners in an intimate relationship, wherever and whenever this violence occurs. The violence may include physical, sexual, emotional or financial abuse” (Home Office, 1998).

It is known that domestic violence is mostly perpetrated by men against women victims and that it often begins, or gets worse, around pregnancy (Nicolson et al., 2006). Domestic violence is generally repetitive, in that once it has occurred once, it is likely to be repeated, either in the same manner or utilising a different form (psychological, sexual or physical), with each form of the violence interacting with the other form and causing problems for the victim(s) of the violence, who are not only the partner but also any children that may be present in the household (see Ganley, 1995).

Shockingly, a high proportion of children living with domestic violence are themselves being abused, with almost 80% of the children who are on the ‘at-risk’ register coming from homes where domestic violence is known to occur (see, for example, Mullender and Morley, 1994; Department of Health, 2002). In addition, research has shown that there is a correlation between being an abusive partner and having witnessed abusive behaviour in one’s childhood (see O’Leary, 1987).

In terms of the theoretical models that have been posited to explain domestic violence, social exchange theory suggests that human interactions are guided by seeking rewards and avoiding costs and punishment (see Blau, 1964), with domestic violence tending to occur when being violent does not outweigh the rewards on offer (see Gelles and Cornell, 1985; 1990). Following this reasoning, therefore, one of the ways to reduce the prevalence of domestic violence is to increase the cost attached to being a ‘batterer’ (i.e., a person who inflicts violence on an intimate partner) through, for example, creating and enforcing criminal laws against domestic violence (see Danis, 2003). Deterrence can, after all, be defined as, “the state’s ability to diminish the incidence of a prohibited action through legal threats which clearly indicate that the costs of an action would be greater than any benefits derived from it” (Dutton, 1995; p.242).

Other theories suggested to explain the prevalence of domestic violence include social learning theory, which suggests that people learn to be violent through reinforcement (i.e., receiving a reward or being punished directly after an aggressive act has taken place) or through modelling (i.e., basing one’s actions on what one has witnessed) (see Bandura, 1973). As has been seen, intergenerational transmission of the behaviour that leads to domestic violence is possible and, indeed, occurs in many situations (see O’Leary, 1987 and Mihalic and Elliott, 1997). On this basis, many ‘batterers’ are treated, attempting to reverse the behaviour that leads to domestic violence on the premise that what has been learned can be un-learned (see Danis, 2003).

The British Crime Survey, and annual survey of crime conducted in the UK, can be used to find prevalence data of domestic violence. Mirrlees-Black and Byron (1996) showed that, in 1996, around 4% of women interviewed admitted some form of domestic violence in the year previous to the survey, with women twice as likely as men to have been injured by a partner in the year previous to the survey. In addition, Mirrlees-Black and Byron (1996) found that 23% of women had experienced some form of domestic violence at some point in their lives, with those most at risk being the under 25s and those in financial difficulties. It was found that only half of the victims had reported the domestic violence, and of the half that had reported the domestic violence, this was to a friend of family, with police and medical staff being notified only in a small proportion of cases (Mirrlees-Black and Byron, 1996).

Mirrlees-Black (1999) again used the British Crime Survey data to analyse the prevalence of domestic violence, finding that, similarly to the 1996 survey (Mirrlees-Black and Byron, 1996), around 4% of women reported some form of domestic violence in the year previous to the study, with women twice as likely as men to be the subject of domestic violence. Mirrlees-Black (1999) estimated that there were 6.6 million incidents of domestic violence in the year previous to the survey, with 2.9 million of these incidents involving actual physical injury. This survey (Mirrlees-Black, 1999) revealed that 12% of women had been assaulted on three or more occasions, which Mirrlees-Black referred to as chronic victims.

Similarly to the 1996 survey (Mirrlees-Black and Byron, 1996), women under 25 were most likely to report domestic violence, with 34% of women in this category reporting some form of domestic violence, higher than in the previous, 1996, survey (Mirrlees-Black and Byron, 1996). In terms of the actual domestic violence perpetrated against these women, pushing, shoving and grabbing were the most common types of assault with injury occurring in 41% of the domestic violence episodes (Mirrlees-Black, 1999). Alarmingly, around a third of the women surveyed who reported domestic violence episodes revealed that their children had been aware of the last violent episode (Mirrlees-Black, 1999). In addition, chronic victims of domestic violence were usually the victims of more serious types of attack (Mirrlees-Black, 1999).

Walby and Allen (2004) present the most recent survey of domestic violence using the British Crime Survey, showing that domestic violence is still widespread with 36% of women reporting some sort of domestic violence episode, although this figure represents concentrated episodes of chronic domestic violence and/or multiple episodes of domestic violence throughout their lives. The study found that 13% of women had experienced some form of domestic violence in the year prior to the survey (up from 4% in the 1999 survey reported by Mirrlees-Black (1999) and that for women subjected to domestic violence, the average number of domestic violence episodes per year was twenty (Walby and Allen, 2004). On this basis, Walby and Allen (2004) estimated that there had been 12.9 million domestic violence episodes in the year prior to the survey, up from 6.6 million in the 1999 survey (Mirrlees-Black, 1999). The 2004 survey also revealed that 2% of women who admitted domestic violence had been the subject of a serious sexual assault inside the home (Walby and Allen, 2004).

Walby and Allen (2004) found that those women who lived in a household earning less than ?10,000 were three and a half more times likely to be the subject of domestic violence than a women in a household earning more than ?20,000, although it was admitted that the correlations between domestic violence and poverty are unclear. For example, poverty could be the cause of domestic violence, or could be the outcome of domestic violence, in that women who have fled domestic violence often end up living on low income (Walby and Allen, 2004).

In terms of assessing the prevalence of domestic violence, studies have shown that it is difficult to provide a realistic estimate, in reality, as many women do not seek help and even when faced with medical professionals with whom they could speak, for example their GP’s, most women do not willingly discuss their problems (see, for example, Bonds et al., 2006). Indeed, research has shown (see, for example, Boyle and Jones, 2006) that women who are the subject of domestic violence frequently only disclose when healthcare staff directly enquire about this possibility, many of whom actively stated, when interviewed, that they do not ask about such matters so as not to offend the patient, even though evidence shows that women who are not the subject of domestic violence are unlikely to be offended by such a question (Boyle and Jones, 2006).

One of the most comprehensive studies of the reported frequency of domestic violence against women has been reported by Bradley et al. (2002), who surveyed 1871 women attending general practice through a cross-sectional, self-administered anonymous survey. 40% of the women surveyed had, at some point in their lives, experienced domestic violence by a partner, with 12% of women reporting that their GP had approached them about possible domestic violence (Bradley et al., 2002). In addition, a worrying 69% of the women surveyed reported controlling behaviour from their partner, with 28% admitting to feeling afraid of their current partner (Bradley et al., 2002). Most of the women surveyed voiced support for routine enquiry about domestic violence as part of regular check-ups with their GP, suggesting one route for monitoring the presence of domestic violence in the community (Bradley et al., 2002). Elliott et al. (2002) suggested that better GP training in this issue would lead to higher detection rates and better care for the victims of domestic violence.

As Gerbert et al. (2002) suggest, other risk behaviours that were once considered taboo (such as HIV and alcohol and drug abuse) have been tackled, in that medical professionals routinely ask about such matters in consultations. It is thus not acceptable that domestic violence is not addressed in such a manner, given the high prevalence of this and the deleterious effects this can have on the victims and any children who are present in the household (Gerbert et al., 2002). It is suggested that it is a general lack of training that stops medical professionals from enquiring about such violence, and that the lower domestic violence screening rates, compared to the screening rates of other risk behaviours, may reflect the medical professionals beliefs that they do not know how to screen or intervene or their belief that such interventions may not be successful (Gerbert et al., 2002). It is suggested that screening rates can be improved by educating medical professionals as to the many benefits that identifying domestic violence can bring to the victims (Gerbert et al., 2002).

This section of the dissertation analyses the immediate and long-term impacts of domestic violence on children’s health, education, personality, socialising and future relationships.

In terms of children’s exposure to domestic violence and maltreatment, Osofsyky (2003) looked at this issue in terms of prevention and intervention, showing that on the basis of available research, there is no doubt that huge numbers of children are being abused as part of the presence of domestic violence in the household, although the effects on children of this abuse, as a result of domestic violence, depends greatly on the child’s individual circumstances, on their additional risk factors and their susceptibility. Herrenkohl et al. (2008) reported similar results, showing a massive overlap in physical child abuse and domestic violence, which was especially prevalent in situations with other stressors, such as adverse socio-economic conditions, for example.

Hartley (2002) also looked at this issue, and found that there is a substantial overlap between domestic violence and child maltreatment, finding that adverse socioeconomic factors were more likely to correlate with domestic violence and child neglect than with child abuse per se, although child abuse was present in a shockingly high number of cases, suggesting, as Osofsky (2002), that domestic violence goes hand-in-hand with child maltreatment, either through child neglect as a result of domestic violence or child abuse by the perpetrator of the violence as part and parcel of the domestic violence (Hartley, 2002).

Hester and Pearson (1998) looked at domestic violence in the course of their work with abused children, finding that domestic violence was present in 70% of the cases of child abuse they dealt with, showing that the presence of domestic violence is a major factor in child abuse cases. It was suggested, as a result of this, that it might be useful to screen for domestic violence as routine practice, in terms of this being a possible predictor of child abuse, either current, in which case it could be identified and treated, or future, in which case, if the domestic violence is dealt with, might never occur.

Gorin (2004) looked at understanding what children say about living with domestic violence, showing that children are often more aware of domestic violence than is realised, although they don’t often understand what is happening, nor why it is happening (Mullender et al., 2002). It was also reported that children worry about their parents more than is recognised, even though most children choose not to talk about this to anyone, and actively try to avoid the problem by distracting themselves physically and emotionally (Gorin, 2004). When asked about why they chose not to share their experiences with others, a fear of not being believed by professionals was the generally reported concern, with the fear that help will not be forthcoming when asked for being another commonly reported concern (Gorin, 2004). In addition, children report not having any idea of where they can go to get help, which stops them asking for help, although the majority of children affected by domestic violence reported that they long for someone to talk to about the violence, in terms of having someone to listen to them and to provide comfort and reassurance to them (Gorin, 2004). During the course of the research, it was found that children most asked for information to help them understand what was happening to their parents, and why they weren’t able to stop the violence (Gorin, 2004).

In practical terms, this responsibility, of knowing about the violence but not being able to do anything to stop it, and feeling they do not have anywhere to turn to report the violence, can lead to many problems for the children. Children who have experienced domestic violence generally feel they have to be more responsible in the home than othert children, in terms of undertaking more practical tasks around the home, often as a way of trying to avoid the violence by pre-empting arguments, for example (Gorin, 2004). This responsibility, or knowing about the violence but feeling there is nothing that can be done about it, and the responsibility of taking on extra tasks, can lead to children developing sleep problems, being tired, and not paying as much attention as they need at school, leading to problems with their education (Gorin, 2004).

Fantuzzo et al. (1997) looked at the effect of domestic violence on children, showing a myriad of adverse effects in children exposed to domestic violence, especially amongst those children who are already exposed to other risk factors such as drug abuse and/or adverse socioeconomic conditions. Fantuzzo and Mohr (1999) continued the work of Fantuzzo et al. (1997), looking at the effects of domestic violence on children, showing that domestic violence has many adverse effects on children, which are modified according to many factors, such as the child’s age, the nature of the violence, the severity of the violence and the existence of other risk factors in the children’s lives (such as poverty and substance abuse, for example), but which are, nonetheless severe. Childhood exposure to domestic violence can lead to aggressive behaviour, to increased emotional problems, such as the onset of depression and anxiety, to lower academic achievement and to lower levels of social skills (see Fantuzzo and Mohr, 1999).

Baldry (2003) looked at bullying in schools following exposure to domestic violence, through a cross-sectional study of 1059 Italian school students using a self-report anonymous questionnaire. It was found that those children who had been subjected to domestic violence (i.e., interparental violence) were far more likely to bully whilst at school than those children who had never been subjected to any form of domestic violence, thus showing a direct negative effect of domestic violence on children’s behaviour (Baldry, 2003). Bauer et al. (2006) also looked at the relationship between bullying and intimate partner violence, through a self-report questionnaire of 112 children, and found, similarly to Baldry (2003) that children who had been exposed to intimate partner violence in a home setting were more at risk of developing physical aggression and internalised behaviours than children who had never experienced intimate partner violence in the home setting.

Hall and Lynch (1998) looked at the lifelong effects of domestic violence on children, finding that separating the causes of domestic violence from its effects and from other correlated factors, such as poor parenting, poverty, substance abuse, for example, is difficult and that, as such, pinpointing the specific effects of domestic violence on children can be difficult. Hall and Lynch (1998) report, however, that children in violent households are three to nine times more likely to be injured and abused, either directly or in the course of trying to protect their parent. In addition, children from violent households are more likely to suffer a range of emotional and psychological problems, including self-harm, eating disorders, post-traumatic stress disorder and suicide, along with stress-related health complaints, such as insomnia and irritable bowel syndrome (Hall and Lynch, 1998).

In addition, these behavioural and psychological problems can lead to other problems, such as involvement in violence and/or bullying (as seen, see Baldry, 2003 and Fantuzzo et al., 1997), educational failure and/or dropping out of, or being excluded from, school (Woodward et al., 1998) (Hall and Lynch, 1998). In addition, it has been found that if a mother decides to leave her partner and go in to a shelter for the victims of domestic violence, this can lead to the children feeling isolated from their previous friends and their established social networks, leading to further problems for these children who were already exposed to a high level of stress and emotional and psychological problems (Hall and Lynch, 1998).

In addition, it is also known that being exposed to violence in the home can lead to juvenile crime, with many child victims of juvenile crime being the subject of youth criminal sentences (Hall and Lynch, 1998). In addition, the effects of domestic violence on children are long-lasting, with anti-social behaviour at the age of seven being highly correlated with violent behaviour towards partners in later life (Hall and Lynch, 1998), mediated, as has been seen, through the process of social learning theory (Bandura, 1973).

Chapter 3: Protecting children from domestic violence

This section of the dissertation addresses the issue of protecting children from domestic violence in terms of the child protection issues that need to be taken into consideration.

As children suffer many and varied consequences of domestic violence, including direct child abuse by the perpetrator of the violence and indirect consequences of witnessing the violence, such as emotional, psychological and physical ill-health, the child protection issues that need to be taken in to consideration are many and varied. In those cases where child abuse is suspected, the child needs to be protected against this abuse. This could mean removing the child in to care, or working with the mother to encourage the mother to move, with the child, in to a refuge to avoid the domestic violence. The particular option chosen by social workers depends on the risks assessed in the particular situation.

In terms of protecting children more generally, in terms of identifying possible negative effects on children from domestic violence, for example, all health professionals should be aware of the effects of domestic violence, and possible symptoms of domestic violence on children, which, if not physical, can be noted in the child’s behaviour. Medical professionals who come in to contact with children should be trained in detecting these signs of domestic violence in children, with adequate screening programmes in place to detect such signs and to enable children to deal with the problems that domestic violence presents to them, in terms of being given the opportunity, in a safe and confidential manner, to talk about what is happening in their household, how they feel about this, what problems this is presenting to them and what needs to be done about the situation. Children are perhaps more likely to want to talk to the school nurse, or to a GP than to any other professionals, as there is some previous relationship established and some form of trust that has already been built up (Hall and Lynch, 1998). It is essential that teaching about domestic violence be mandatory for all professionals involved in multi-agency teams dealing with child protection issues (see Hendry, 1999).

This section of the dissertation presents a discussion of the role of the mother and why her socio-economic status and culture is important. Protecting the mother, in terms of protecting the child, is then discussed, in terms of whether, for example, it is best for children to live with both parents, even when there is domestic violence occurring.

It has been found that there is a substantial overlap between domestic violence and child maltreatment (see Hartley, 2002), in that adverse socioeconomic factors are more likely to correlate with domestic violence and child neglect (including child abuse). Walby and Allen (2004) also found that those women who lived in a household earning less than ?10,000 were three and a half more times likely to be the subject of domestic violence than a women in a household earning more than ?20,000, although it was admitted that the correlations between domestic violence and poverty are unclear. For example, poverty could be the cause of domestic violence, or could be the outcome of domestic violence, in that women who have fled domestic violence often end up living on low income (Walby and Allen, 2004).

Thus, whilst there are some correlations as to the socioeconomic status of the mother and the probability of being the subject of domestic violence, the links have not been researched fully and, as such, no causal relationships can be found. What is clear, however, is that where there is poverty, or perceived financial problems, there is more likely to be domestic violence, and that where there is domestic violence, there is likely to be some form of child neglect or child abuse also going on. Mothers, therefore, have a responsibility, within the framework of them being victims themselves, to their children, in terms of protecting them, as far as possible, from the violence.

This is itself a complicated issue, however, as many women have nowhere to flee to when they leave a violent partner, meaning the women often end up in temporary refuges or low-standard rented accommodation, often outside of the area where their children go to school, often leading to further psychological problems for their children, who then feel isolated from their friends and support networks, which can lead to further emotional and psychological problems for these children (Gorin, 2004; Hall and Lynch, 1998). It is reported that the mother often stays in the household and subjects herself to domestic violence because of fear of what leaving the household would do to their children (see Nicolson et al., 2006).

Hazen et al. (2006) looked at female care-givers experiences of domestic violence and behaviour problems in their children, finding that serious problems are faced by children when the mother is subjected to domestic violence, and that these children need to be helped as far as possible in terms of addressing the problems that these children face. If the mother decides not to leave the abusive partner, therefore, the mother has a responsibility to her child(ren) that she will ensure that they are treated as far as possible for these problems. Again, however, this is complicated by the fact that mothers often want to hide the fact that they are being abused from their children, and, as such, do not discuss this with their children. This is a fallacy, however, as shown by Gorin (2004), as children are often far more aware of what is happening than they are given credit for, and the untreated consequences of the domestic violence can lead to major future health and behaviour problems for children (see, for example, Hall and Lynch, 1998).

The problems facing mothers who are the victims of domestic violence are many and varied. They are the subject of abuse themselves, which can leave them feeling ashamed and not willing to discuss this with anyone, not even their children. Their children, aware of what is going on, but unable to talk to their mothers then begin to develop problems, which – if the mother even recognises these problems – are then not treated, as they are viewed, by the mother, as part and parcel of the same humiliating violence they are subject to. The effects of the violence are thus perpetrated, often with severe long-term consequences (Hall and Lynch, 1998).

It will be argued, however, that is the responsibility of the mother to protect her child, as the child’s care-giver, against domestic violence and against the effects of domestic violence. However, this is not as straight-forward as it seems, for, in addition to the humiliation that women feel when being abused, there are also financial concerns about how the mother would support her child(ren) if she left the violent partner. Many women victims of domestic violence argue that subjecting their children to poverty is worse than having them witness domestic violence (Gorin, 2004) and so they stay with the partner who is violent towards them, subjecting their children to the range of emotional, psychological and physical health problems already discussed (see, for example, Hall and Lynch, 1998).

Thus, the responsibility of a mother to protect her child(ren) against domestic violence and against the effects of domestic violence is a complicated issue. If there is child abuse present, it is obviously the mother’s responsibility to involve the police, and to ensure that the perpetrator is brought to justice, although, as has been seen, this is not as easy as it sounds, as women often have difficulty in approaching the police, witnessed by the low reporting rates of serious instances of criminal domestic violence to the police reported in Walby and Allen (2004).

If, however, as has been seen, the violence is mainly directed against the mother, and the mother feels it is better for the sake of the children, on balance, to stay in the violent household, whilst the violence is only directed towards her, then that is the mother’s decision, as a balance between the effects of the domestic violence on the children and the potential effects of moving to a new place and living in worse conditions than their current conditions, and the further emotional and psychological problems this would present to the child(ren).

If the mother makes the decision to stay with the violent partner as this is, on balance, the best option out of two possible sub-optimal options, then, in these situations, where the violence is not thought to be serious enough, by the victim, to warrant reporting or to warrant leaving the partner, even though the child(ren) is/are being affected by domestic violence, the question then becomes how to protect the mother, in order to ensure the best protection of the child. This question will be elaborated on in the next sections of the dissertation.

Chapter 5: The multi-agency approach to child protection

This section provides an analysis of the multi-agency approach to child protection, examining its advantages and disadvantages. The available services for children living with domestic violence are also discussed, as are the policy and legislation against domestic violence and pro child protection in the UK. Through this, the dissertation moves on to analyse the intervention strategies that are available to protect children, in terms of the extent to which prevention is possible and how.

As shown by Mirrlees-Black (1999), only about half of the victims of domestic violence told someone about the violence, most likely to be a friend or relative, with the police being notified of an attack in only about 12% of the violent episodes reported in the survey. Medical staff were the next likely to hear about the domestic violence, in about 10% of the violent episodes reported, and were reported to have been more likely to offer help and advice than the police (Mirrlees-Black, 1999). Overall, Mirrlees-Black, (1999) found it more likely that the victims of serious attacks (i.e., those regarded as a crime) would report these attacks to the police, with those women who felt responsible in some way for the attack being less likely to report the attack, even if the attack was criminal in manifestation (Mirrlees-Black, 1999). There is, thus, a massive problem with reporting domestic violence, something that

Discuss the drawing examples from your studies, bibliography.

Natural law is the law that exists independently of the positive law of a given political order, society or nation state. As a genre, natural law is the law of nature that is the theory that some things are as they are because they are. The central theme of the theory us that there are natural rights that are given to every human being by God.^[1]

Legal personality has been defined to express the ability of self to remove himself from all particularities such as family, personal history, social and cultural background and to become abstract and indeterminate. Legal recognition is a type of recognition based on the minimum commonality of people and not on the differences and individual characteristics which make them unique individuals.^[2] A legal person is a bearer of subjective right.^[3] Legal personality can either be natural or juristic.

Natural legal personality is therefore the legal status allocated to every human being by the mere fact of their existence by God. So, every body has Natural Legal Personality regardless of where they are from and under what political regime they live. Having said that, It is doubtful that this is highly relevant in England today. This essay focuses on the concept and illustrations of its applicability and limitations.

The concept of natural legal personality is hardly ever mentioned these days. This is possibly because there are not many rights that are attributable to natural legal persons. Even in the realm of Public International Law where there are laws that are attributable to persons by the mere fact that they are human by way of human right provisions, enforceability for instance, is almost impossible in the absence of the state.

In the realm of private law, where legal personality becomes more relevant, an individual’s autonomy exists only in a very restricted and figurative sense. A person cannot grant rights to himself because rights of one person necessary presupposes obligations on another and such a legal connection can only be made in conformity with an objective legal system by way of a consonant expression of will by the two parties. Even this legal connection only exists in so far as the contract is established by the objective law as a law-creating material fact. So, in private law, there is no complete autonomy.^[4] The mere use of the word ‘legal’ seems to suggest the lack of such autonomy.

Practical applications of the concept of Legal Personality exist. Sometimes, so-called natural ‘legal’ are restricted in their exercise of rights that have been attributed to others. In the realm of contract, the general rule in English Law is that anyone may enter into legally binding contracts if they want to. However, a restriction exists to the effect that minors as defined under the Family Law Reform Act 1969 and people that are mentally incompetent are incapable of entering into binding contracts except for the supply of necessaries.^[5] In the case of Moulton v. Camroux^[6], It was held that unsoundness of mind constituted an adequate defence in a case for the enforcement of a contract.

Also under the realm of Contract Law, non natural persons are attributed rights that would normally only be attributed to natural persons.

In the realm of criminal law, some categories of people may have their culpability reduced by virtue of their age or soundness of mind. A proved plea of insanity would mean that someone that has committed a crime is not punished in the same way other legal persons.^[7] In the case of R v Sullivan^[8], on a charge for causing grievous bodily harm, on appeal to the House of Lords, It was held that the trial court’s ruling of ‘not guilty by reason of insanity’ was appropriate. The same applies if the person is underage. He or she is not punished the same way a fully grown adult would be.

In the realm of company law, legal personality has been attributed to non natural persons. They are attributed with corporate personality. Such persons are known as juristic or artificial persons as opposed to natural persons. For legal purposes, they have the same rights and obligations as natural persons. They are capable of suing and being sued as an entity quite apart from the members. The implications of this personality were fully determined in the case of Salomon v Salomon^[9]. In that case, It was held inter alia that at law, a company is a different entity from the subscribers to its memorandum of association. The members of a company are therefore not personally liable for its debts s that unless there are contrary provisions, the members are completely free form liability.^[10]

The above discussion seems to suggest that the concept of natural legal personality, if it actually exists, is not really relevant in English Law. The mere use of the word ‘legal’ would suggest the existence of a state or other body. There is also the problem of how the natural rights are determined since a right for one person necessary constitutes an obligation for another. This suggests the necessary existence of some sort of agreement by the two parties which in turn, needs to be governed by certain rules. In terms of practical application, most laws prescribe their own definitions of ‘legal persons’ and the limitations to this personality.

The concept of natural legal personality does not exist in English Law and even if it did, It would merely be normative in nature and effect.

Bibliography

Davies, P. “Gower’s Principles of Modern Company Law” (1998) London: Sweet and Mawell.

Douzinas, C. and Gearey, A. “Critical Juriisprudence: The Political Philosophy of Justice” (2005) Oxford: Hart Publishing.

Kelsen, H. “Introduction to the Problames of Legal Theory” (2002) Oxford: Oxford University Press.

Neuhouser, F. (Eds) “Foundations of Natural Right” (2000) Cambridge: Cambridge University Press.

Statute

Criminal Procedure (Insanity) Act 1964

Sale of Goods Act 1979

Cases

Moulton v. Camroux 2 Ex 487

R v Sullivan [1983] 2 All ER 673

Salomon v Salomon [1897] A.C. 22 H.L.

Web Resources

The Free Dictionary

^[1] The Free Dictionary

^[2] Douzinas, C. and Gearey, A. “Critical Juriisprudence: The Political Philosophy of Justice” (2005) Oxford: Hart Publishing. Page 182

^[3] Kelsen, H. “Introduction to the Problames of Legal Theory” (2002) Oxford: Oxford University Press. Page 39

^[4] Kelsen, H. “Introduction to the Problames of Legal Theory” (2002) Oxford: Oxford University Press. Page 40.

^[5] Section 3 Sale of Goods Act 1979

^[6] 2 Ex 487

^[7] Under Sections 2(1) and 5 (1) of the Criminal Procedure (Insanity) Act 1964

^[8] [1983] 2 All ER 673

^[9] [1897] A.C. 22 H.L.

^[10] Davies, P. “Gower’s Principles of Modern Company Law” (1998) London: Sweet and Mawell. Pages 77-78 and 80.