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What were the essential aspects of pantomime and how have they come down to us in the present day?

Although it is currently most commonly seen as a peculiarly British pastime, pantomime in fact has its origins in the medieval period of European history (Lathan, 2004). Specifically in terms of tradition and heritage, pantomime as it is known today emanates from Italy and the Commedia ‘dell Arte. This Italian street festival was akin to a carnival and it managed to combine elements of parody, drama and the aesthetically grotesque in order to create a unique fusion of art and farce. The characters tended to improvise their way through a set of well?known plots, which involved a great deal of song and dance being integrated into the Commedia ‘dell Arte routine. These medieval festivals travelled through the towns and cities of Italy and then France in the Middle Ages, which helped to create an air of familiarity between the performers and the audience who would take part in the show. This is without a doubt the most significant tradition that has survived through to the modern era whereby the audiences of contemporary pantomime are expected to know the plot and the main characters and to take part in the proceedings at designated intervals within the script. As the quotation below suggests, this marriage between the performers and the audience has been an essential part of the longevity of the pantomime because of the way in which it managed to transcend historical divisions between classes.

“All were considered equal during carnival. Here, in the town square, a special form of free and familiar contact reigned among people who were usually divided by the barriers of caste, property, profession, and age.” (Bakhtin, 1993:10)

The existence of a stock set of characters and plots is likewise a historical tradition of European festivals that have managed to survive in the guise of the pantomime. There are only a handful of productions that are classed as pantomime in the modern era and these productions are almost always played exclusively during the festive Christmas period, which is another connection to its carnival past. ‘Snow White’, ‘Cinderella’, ‘Aladdin’, ‘Dick Whittington’ and ‘Babes in the Wood’ are high profile examples of the pantomime titles that are produced each and every year in the UK. This deep-seated sense of repetition is an important part of the pantomime tradition as it continues the dominant theme of the medieval period, which was to breed familiarity in order to secure the participation of the audience in the plot of the play.

“Magic, romance, suspense and comedy are the lifeblood of most theatre performance, but there is one factor of our pantomime tradition that exists in no other theatre production. The audience has learnt its lines and rehearsing its roles every Christmas since early childhood. Every English speaking person knows that ‘Oh No, its not!’ should be answered with ‘Oh Yes, it is!’ And that villains must be booed and hissed as they lay their evil plots.” (Bicat et al, 2004:9)

Furthermore, these well?know stories that constitute the foundations of the pantomime tradition all have their roots in fairy tales, which helps to further simplify the plot and aid audience participation. Traditionally, pantomimes require a battle between good and evil. The villain has historically always been the first actor to appear on stage and always to the left, which was used to donate hell in the Middle Ages. Conversely, the hero is supposed to appear on stage from the right – the manifestation of heaven in the past. Although the remainder of the pantomime production tends to descend into farce and improvisation, these central precepts remain an integral part of the festival in the modern era with plays overseeing a duel of good versus evil before inexorably concluding with the ultimate triumph of the hero over the villain.

As time passed, pantomime was inevitably influenced by the evolution of mainstream theatre and it gradually took its place as an annual spectacle to operate alongside regular theatre productions. The two (theatre and pantomime) were especially closely linked during the Restoration period (1660?1700) when the farce of pantomime was facsimiled in the most popular plays of the age. In the process, pantomime has had to move away from the notion of an almost entirely ad hoc, ad lib production into a more formal, organised play that is able to be divided into visible scenes and segments with a running time that is in line with the lifestyles of the contemporary audience. Thus, while it is correct to underscore the inherent differences between the festive, annual element of pantomime and the intrinsically more philosophical components of mainstream and high?brow drama, there is no longer a sense that two completely different sets of rules apply. This is an important point and one that is all too often overlooked in the analysis of modern day incarnations of the pantomime.

The most pronounced change prevalent in contemporary versions of traditional pantomime resides is the way in which productions are increasingly linked with young children. Whereas the adult section of the local townspeople would have constituted the overwhelming majority of the audience in previous centuries, there is today an association between the infantile and pantomime that is a central reason as to why pantomimes have been able to survive for so long in such a commercially aggressive contemporary economic climate. Without the active participation of children it is doubtful whether pantomimes would be able to entice the requisite audiences necessary to make a profit for the impresarios. Of much greater importance, without the festive childhood memories that pantomime bequeaths, much of the interest that remains in its tradition would more than likely begin to disappear. One thing is, however, for sure. Though pantomimes remain rooted in their medieval past, they will never lose their relevance to the contemporary audience as the list of modern?day celebrities who have taken part in productions in recent years underscores.

BIBLIOGRAPHY

Bakhtin, M. (Translated by Helene Iswolsky) (1993) Rabelais and His World Bloomington: Indiana University Press

Bicat, T., Staines, R. and Winslow, C. (2004) Pantomime: A Practical Guide Marlborough: The Crowood Press

Frow, G. (1985) Oh Yes it is! : A History of Pantomime London: BBC Books

Lathan, P. (2004) It’s Behind You! The Story of Panto London: New Holland

Wilson, A.E. (1974) The Story of Pantomime London: Rowman & Littlefield

Introduction

Benefit fraud is, according to some members of the government and some media sources, committed by dishonest people and is a blight on our nation which sucks up huge amount of money that could otherwise be used for the improvement of public services. Another perspective might argue that benefit fraud is a symptom and reflection of our unequal society. The first view tends to place the blame on the individual while the latter tends to place the blame on society. The attitude that a textual source adopts towards this questions can provide some insight into the way in which they construct the issue.

Social psychology has analysed the way in which we make decisions about why something happens in terms of attributions. Hogg & Vaughan (2002) explain that attributions in social psychology describe how people make decisions about the actions of other people – specifically what is it that motivates their actions? One of the most well-known of these models of attributions was put forward by Kelley (1967, 1973). Within this model, people’s behaviour is either attributed to external causes or to internal causes on the basis of how their behaviour varies with the following factors: its distinctiveness, its consistency and the consensus.

Attribution theory has been further extended by the work of Weiner (1986) which breaks down how attributions are made into three categories. The first is the locus of control – this refers to the boundary between internal and external causes. The second is stability – this refers to the extent to which the cause is capable of change. The third is the controllability – this refers to how much control a person is perceived to have over their future performance.

The way in which the examined texts make attributions about people’s behaviour, in this case benefit fraud, should show their attitudes towards those types of people. For this study, four extracts from The Guardian newspaper were used. The Guardian is traditionally a politically left-leaning publication. The hypothesis for this study was that The Guardian newspaper, in its implicit explanations of the reasons people commit benefit fraud, would tend to emphasise those reasons that focussed on the effects that society has on individuals rather than on individual factors such as personal deviance. In terms of attribution theory, then, the attributions made for benefit fraud would tend to be external to people, would tend to be permanent and beyond people’s control.

Method

Content analysis is a type of qualitative research method that involves counting the instances of words and then making inferences from these figures. Thematic analysis, however, is a related procedure that involves looking at a text in order to discover the themes that emerge from it, but it does not have the same emphasis on word frequencies. From this difference it can be seen that a thematic analysis aims to understand the data rather than know it.

The procedure used for this thematic analysis was to read the extracts relating to benefit fraud and to make notes in the margin as themes arose in the coding. The themes that arose from all the extracts were then examined in total and any potential connections between the themes were analysed in terms of social psychological theories.

In carrying out this analysis, one of the most important factors was maintaining a state of reflexivity. Marks & Yardley (2004) point to two important components of reflexivity in this type of study. The first is a social critique – this means examining how the themes relate to power structures in society. The second is the researcher considering their own attitudes towards the subject being investigated.

Results

From the analyses of four excerpts from The Guardian, the following three themes emerged.

Theme 1: The Catch 22 & Administrative Complexity

The first theme emphasises the idea that there are often high levels of administrative load involved in applying for benefits. Davies (2005) for example emphasised the amount of form-filling involved for people and how complicated the process is:

“Many (…) fear endless form-filling while moving off benefits, into tax credits and then, heaven forbid, reapplying for benefits if work falls through – hoping that between the Inland Revenue, job centre and the housing office, no one misplaces their form.” (Davies, 2005)

This focus on the complications of the process can also be seen in Tickle’s (2006) article which focuses on the difficulties of the system. In particular for one 19-year old trying to put himself through the education system in order to gain A-levels so that he can get a degree, the benefits system seems to be working against him. Not only that but the administrative system has him caught in a ‘Catch 22’:

“According to the benefit rules, if you turn 19 and are homeless, the education game changes. You are no longer eligible for income support, which in turn entitles you to housing benefit. This benefit requires claimants to have an income. Instead, you must claim jobseeker’s allowance (JSA), which means declaring yourself available for work, and eventually attending government-approved New Deal training. This will very likely have nothing to do with your studies, or those you might like to begin.” (Tickle, 2006)

According to this account, the man in this article has clearly been caught in the administrative complexities of the situation, something for which he cannot be personally blamed.

Theme 2: Social Hardship

A strong theme throughout these articles emphasises the difficulty of the circumstances of many of the people that may be involved in benefit fraud. The young man described by Tickle (2006) had been forced to move out from the family home because of problems there and had moved into homeless accommodation. These points are further highlighted in the letters page of The Guardian which points to some of the social circumstances of those who might be claiming benefits fraudulently. Serwotka (2005) points out that:

“We also see from estimates reported to the public accounts committee that while benefit fraud is declining, errors in payments are on the increase. As the union representing the workers who have to implement these tough conditions, PCS does not believe that getting tough is the best way of helping some of the most vulnerable in society to obtain and keep jobs.” (Serwotka, 2005)

This places benefit questions within a wider context of lowering rates of fraudulent behaviour and the implicit persecution of those who are the most vulnerable.

Theme 3: Fraud Despite Labelling

A consistent way in which the writers in The Guardian talked about benefit fraud was in reference to the negative effects of labelling. The implication of this was that while reasons for benefit fraud might include social circumstances and administrative complexity, as discussed above, fraud was carried out despite the strong negative connotations attached to it by the government and others. Davies (2005), for example, points out that many people:

“…feel targeted and blamed for anti-social behaviour, benefit fraud, scrounging on incapacity benefit. They fear being punished for their children’s school attendance, accused of bad parenting and having their children put into care.” (Davies, 2005).

A culture of fear is emphasised by Beresford (2005) in that vulnerable people are consistently bombarded by messages that fraud should be avoided. Reporting on a Department of Health study it was found that:

“One of the strongest messages from the study is the real commitment of many people who have been written off as “dependent” to make a contribution to their community. But this is hindered by official talk of “benefit cheats”; of getting “a million people off incapacity benefit”; a preoccupation with paid employment; and an often inflexible and unsupportive labour market.” (Beresford, 2005)

Implicit within this analysis is the idea that people who do commit benefit fraud must have a good reason for doing so because the social pressure created by the government not to carry out fraud is so great.

Discussion

The themes found in this textual analysis of why people commit benefit fraud points to the involvement of a number of established social psychological theories. Each of the themes examined clearly shows how social and systemic reasons were seen, by these articles in The Guardian, to be at the root of why people commit benefit fraud.

The first theme of administrative complexity tended to attribute the causes for fraudulent benefit claims to administrative dilemmas and ‘catch-22’ problems. This clearly places the reasons for behaviour outside a person’s locus of control and implicitly places the cause for the behaviour onto the system. As the system is being blamed this will tend to be a relatively stable factor that will continue into the future. Finally, administrative factors are largely beyond the control of the individual as they are decisions made by the state.

The second theme of social hardship is not quite as clear-cut as the first but there are similar tendencies in the analysed attributions. Here social hardship is seen to act as an external force but the decision of the man discussed in this case to commit benefit fraud is seen, to some extent, to be internal. The reasons given for this, however, are external in that it is the system, again, and its complexities and apparent loopholes, that has forced him to take this decision.

The final theme did not fit easily into the ideas provided by attribution theory, but, is better suited to those of conformity. Asch (1952) posited that people tend to form the norms for their own behaviour by looking at those around them and come to a conclusion about how they should act based on this. What was clear from Asch’s (1952) experiments is that people are highly affected by other people’s behaviour. The third theme, therefore, tends to emphasise the stigma attached to benefit fraud. It follows that people who do commit benefit fraud must have very good reasons for doing so as they are fighting against the normalising pressure of what is generally considered right.

Taking a step up in level of analysis, the way that The Guardian makes attributions about people committing benefit fraud can be examined in terms of in-group and out-group attributions. Researchers have found that when making in-group attributions, people tend to display a self-serving bias (Hewstone, 1989). It is assumed that The Guardian newspaper, as it has been traditionally considered a politically left-wing newspaper, is likely to view itself as at least sympathetic to those committing benefit fraud. This would be explained in the ideas of intergroup attribution theory as a self-serving in-group bias.

In general then, the hypothesis that textual extracts from The Guardian would tend to defend those committing benefit fraud was supported. This was analysed in terms of attributions with the results showing that they tended to be outside a person’s locus of control, tended to be ongoing and permanent. Through these attributions the causes, or even ‘blame’, for people’s actions tended to be situated externally. From the perspective of power structures, the idea that The Guardian should defend those who are most vulnerable in society was also consistently supported.

References

Asch, S. (1952) Social psychology. New York: Prentice Hall.

Beresford, P. (2005) No-win situation. Guardian [online] 19 October. Available from: http://society.guardian.co.uk/secondopinion/story/0,,1594942,00.html [Accessed 29 March 2006]

Davies, M. (2005) Stop blaming the poor. Guardian [online] 4 April. Available from: http://www.guardian.co.uk/letters/story/0,,1451473,00.html [Accessed 29 March 2006]

Hewstone, M. (1989) Causal Attribution: From Cognitive Processes to Cognitive Beliefs, Oxford: Blackwell.

Hogg, M. A., Vaughan, G. M. (2002) Social Psychology, Third Edition, London: Prentice Hall

Kelley, H. H. (1967) Attribution in social psychology. Nebraska Symposium on Motivation, 15, 192-238.

Kelley, H. H. (1973) The processes of causal attribution. American Psychologist, 28, 107-128.

Marks, D., Yardley, L., (2004) Research methods for clinical and health psychology. Sage, London.

Serwotka, M. (2005) Blunkett’s branding of benefit claimants (Letters to the editor). Guardian [online] 13 October. Available from: http://www.guardian.co.uk/letters/story/0,,1590682,00.html [Accessed 29 March 2006]

Tickle, L. (2006) Between a rock and a hard place. Guardian [online] 10 January. Available from: http://education.guardian.co.uk/egweekly/story/0,,1682421,00.html [Accessed 29 March 2006]

Weiner, B. (1986) An attributional theory of motivation and emotion. New York: Springer-Verlag.

What is the difference between gift exchange and market transactions, and how do they both relate to gender relations?

Introduction

Karl Polanyi (1968), in his critique of the principles that underlie the formalist approach to economic analysis, attempted to define the tools by which the economies of ‘traditional’ societies could be analysed. Central to the substantivists’ claims was the understanding that the introduction of money destroyed indigenous social relations by introducing the notion of ‘equivalencies of value’ where none had previously existed. In this approach, the substantivists were following the legacy of Marcel Mauss,^[1] who, in his seminal The Gift (1954), had argued that in contemporary and archaic societies as widespread as North America, Polynesia and Ancient Rome the assumptions of economic analysis, as used in explaining market transactions, were not relevant as these societies were gift economies.

In this essay, I will first examine what Mauss meant by the term gift economies, before providing a contemporary example from the work of Usula Sharma (1984) who demonstrates how a gift exchange may be instrumental in the subordination of women. In the second section, I then look at market transactions and, by drawing on the work of Maria Mies (1998), I reveal the gendered nature of the market. In the conclusion, I problematise the division between ‘gift’ and ‘market’ economies, suggesting that both are weberian ‘ideal types’ and that neither is fully adequate to account for the complexity of both market transactions and gift exchanges, as both are deeply embedded in social relations and thus in relations of power.

Gender and Gift Exchange

Marcel Mauss argued that in contemporary western society we make a distinction between gift exchange and market transactions, and that in the west we presume the former to be free of obligations (Douglas in Mauss, 2000: vii). However, Mauss argued that the gift in fact entails an obligation to reciprocate^[2] and thus creates ties between individuals and/ or groups. For Mauss, this form of economy differs from the ‘disinterested’ and ‘self-interested’ exchange of modern societies (Mauss, 2000: 75-6) and he believed that all economies were originally gift economies: ‘[t]he system that we propose to call the system of ‘total services’, from clan to clan […] constitutes the most ancient system of economy and law [&] forms the base from which the morality of the exchange-thorough-gift has flowed’ (Mauss, 2000: 70). An example of gift exchange is that of Northern India, and the Dowry system as described by Ursula Sharma (1984), complete with mutual obligations and the creation of lasting ties.

Sharma describes a marriage system whereby the family of the bride must pay a dowry to the family of the groom, creating lasting ties between the two families, premised on the ability of the brides’ family to give:

when they arrange the marriage of a son, parents do not just look forward to the dowry they will receive at the wedding. They look forward to the bride’s family’s general capacity to give (Sharma, 1984: 64).

Although, if asked, most participants would describe the dowry as ‘freely given’ in fact behind the scenes ‘explicit bargaining’ takes place (Sharma, 1984: 64). In a society sharply divided, not only by gender but also by age and caste, control over what is given and what happens to these gifts once received is subject to division along lines of gender and age. Senior women in the household are responsible for ‘seeing that obligations are met and proper relations maintained’ (Sharma, 1984: 65), but when the gifts are of cash, then it is the senior men who are most in control (Sharma, 1984: 66). The ties created by the dowry may have severe consequences for the dis-empowered bride: ‘[d]owry favours and is favoured by a cultural ethos in which brides can be viewed as objects to be passed from one social group to another’, further, ‘in India the rapid inflation of dowries […] has led to a situation in which brides are more controlled by than controllers of property’ (Sharma, 1984: 73). Finally, ‘dowry deaths’ may occur when the grooms’ family is disappointed with her dowry and hope to negotiate a better one for a second marriage (Sharma, 1984: 71). However, her powerlessness is eased by time, as she moves to being a ‘dowry-taker’ on the marriage of her sons (Sharma, 1984: 72). Thus, we can see that in the gift exchange lasting relationships are created, and that these relations are differentiated according to age and gender.

Gender and Market Transactions

In this section I examine the ‘market transaction’ through the work of Maria Mies (1998), revealing the gendered nature of the supposedly ‘disinterested’ market. In a market transaction, rather than the exchange of gifts which then creates lasting ties between people, it is presumed that in the exchange of commodities only a relationship between things is created: ‘the transactors are strangers in a state of reciprocal independence which persists after the transaction’ (Thomas, 1991: 14). Such an understanding is supported by our ‘common sense’ understandings of the different spheres of exchange: for example, Paul Bohannan (1968), in his discussion of the ‘spheres of exchange’ among the Tiv of Northern Nigeria, identifies a similar division in Tiv ideology between the ‘gift’ and ‘markets’. The former representing the formation and continuation of social relationships, while the later ‘calls up no long-term personal relationship, and which is therefore to be exploited to as great a degree as possible’ (Bohannan, 1968: 300); in this set of relationships, all items have an exchange equivalent. After all, when I exchange cash for a commodity I do not feel myself to be tied into a reciprocal relationship with the shopkeeper.

However, Mies argues that rather than the formally free, atomistic individuals, engaged in disinterested exchange (Polanyi, 1968) of theoretical liberalism, and therefore of much economic thought, instead we find that actors are no less entwined in power relations than in the gift economies outlined above. Indeed, she argues that ‘the exploitative sexual division is the social paradigm upon which the international division of labour is built up’ (Mies, 1998: 4, emphasis added). First, many have debated the way in which the public sphere is dominated by men, but Mies argues that it is in fact the unpaid work of the housewife, of caring and nurturing within the domestic sphere (Mies, 1998: ix), or ‘women’s work’, that allows men to be free to enter the public realm (Mies, 1998: 31). Next, Mies argues that the ‘housewifization’ of labour^[3] not only naturalizes women’s restriction to the private realm, but also means that her paid work is considered ‘only supplementary’ to that of her husband (Mies, 1998: ix): ‘[t]he process of proletarianization of the men was, therefore, accompanied by a process of housewifization of women’ (Mies, 1998: 69). Finally, Mies argues that third world women are valued by capitalism as producers due to their ‘nimble fingers’ and as they are ‘considered to be the most docile, manipulable labour force’ (Mies, 1998: 117): in short, due to ascribed gender stereotypes. The symbolic hierarchy of gender thus has material effects as women are placed in an economically vulnerable position and are concentrated in low paid, part-time employment: women and their children are the most economically disadvantaged group across the globe. Further, women are locked into an international division of labour whereby the ‘third world women produce not what they need, but what others [first world women] can buy’ (Mies, 1998: 118, original emphasis). Thomson echoes this argument: ‘[e]veryone is now tied up in a historical network of global relations […] we are all caught up in international relations of production and appropriation which stretch across the spaces separating us’ (Thomas, 1991: 8-9) and this international relation of production is gendered.

Conclusion

Nicholas Thomas rejects Mauss’ argument that the economies of Melanesia and Polynesia can be regarded as ‘gift economies’, which are thus opposed to the market economies of Europe. He argues that this division misses the way that these ‘traditional’ economies are in fact deeply entangled with the global capitalist trade (Thomas, 1991: 4): ‘a wider range of evidence from indigenous Oceanic societies suggests that there is a broad continuum between systems in which it is possible to substitute only people for people, or food for food, and those in which a wide range of expansive conversions are permitted’ (Thomas, 1991: 4). Divisions, such as Mauss makes, between ‘gift exchange’ and ‘market transactions’ are part of the reification of difference between ‘us’ and ‘them’ (Thomas, 1991: 34), further, ‘the grand polarities almost always turn out to be implausible’ (Thomas, 1991: 27). Thomas argues that by scrutinising our concepts via the lens of gender we can reveal the theoretical flaws or weaknesses that we might otherwise miss (Thomas, 1991: 2)

For Polanyi, the economic sphere – as defined by the discipline of economics – is based on a conflation of two distinct meanings: the ‘substantive’ and ‘formal’. ‘The formal meaning of economic derives from the logical character of the means-ends relationship […] it refers to a definite situation of choice’ (Polanyi, 1968: 122), whereas in the substantive definition ‘the economy here is embodied in institutions that cause individual choices to give rise to interdependent movements that constitute the economic process’ (Polanyi, 1968: 125). In short, formal economics is based on the notion of formally free individuals, making rational economic decisions and which create no lasting ties, whereas substantive economics views all economies, whether regarded as gift economies or those based on market transaction, as embedded in social relations. Thomas concurs: ‘[e]xchange is always, in the first instance, a political process, one in which wider relationships are expressed’ (Thomas, 1991: 7) for exchange relationships are always differentiated by power (Thomas, 1991: 22), by race, class, gender and age.

Thomas would not have us abandon the distinction between gift and commodity entirely (Thomas, 1991: 29), perhaps it would be better to view them as points along a continuum, with each ‘ideal’ type at the opposing ends but the majority of actual cases lying somewhere in between; further it is necessary that we recognise the coexistence of both types (Thomas, 1991: 33). Whether or not the introduction of money destroyed indigenous social relations, by introducing the ‘equivalencies of value’, as the substantavists claimed, the ties that are created by contemporary commodity exchange may be less evident, but Maria Mies reminds us that nonetheless the global division of labour links third world producers to first world consumers in an asymmetrical power relationship that makes a lie of the supposed disinterestedness of market transactions.

Bibliography

Bohannan, Paul (1968) ‘Some Principles of Exchange and Investment among the Tiv’, Economic Anthropology: Readings in Theory and Analysis, LeClair & Schneider (Eds.), London: Holt, Rinehart & Winston, pp 122 – 143.

Levi-Strauss, Claude (1969 [1949]) ‘Nature and Culture’ & ‘The Problem of Incest’, The Elementary Structure of Kinship, London: Eyre & Spottiswoode, pp. 3-25.

Mauss, Marcel (2000 [1954]) The Gift: The Form and Reason for Exchange in Archaic Societies, New York: W. W. Norton.

Mies, Maria (1998 [1986]) Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour, London: Zed Books.

Polanyi, Karl (1968 [1957]) ‘The Economy as Instituted Process’, in Economic Anthropology: Readings in Theory and Analysis, LeClair & Schneider (Eds.), London: Holt, Rinehart & Winston, Inc. pp 122 – 143.

Sharma, Ursula (1984) ‘Dowry in North India: Its Consequences for Women’, Women and Property: Women as Property, Hirschon, R. (Ed.), London: Croom Helm, pp. 62-74.

Thomas, Nicholas (1991) ‘Introduction’ and ‘Objects, Exchange, Anthropology’ in Entangled Objects: Exchange, Materialism and Colonialism in the Pacific, Cambridge: Harvard University Press, pp. 1-34.

1

The aim of this essay is to address to what extent Karl Marx could be considered a determinist. In doing so it will consider: (a) what constitutes determinism; (b) Marx’s theories on history; and (c) whether these theories are compatible with the notion of determinism. Precedence is given to section (b) due to the sheer volume of existing literature in this field. Analysis is limited to Marx’s personal theories on history as opposed to Marxist theory on history, as the latter is largely tangential to the issue in question.^[1]

(a) Determinism

Determinism has many facets. In the broad sense it can be summarised as the philosophical proposition that every historical event is causally determined by an unbroken or predetermined chain of prior events. In rudimentary terms, therefore, determinism is the antithesis of free will – the notion that there is no predestined fate for mankind except that which it determines for itself. Determinism should not be confused with fatalism, which dictates that all future events are already predetermined and will definitely occur. Rather determinism is associated with and depends upon the concepts of materialism and causality.

More specifically, it is economic determinism with which, rightly or wrongly, Marx has become associated. Economic determinism can be defined as a form of determinism which explains social structure and culture as a product of the social and technical organisation of economic life.^[2] It essentially lends primacy to economics over politics in the development of human history. It has been interpreted as the belief that economic laws determine the course of history, in much the same way as Auguste Comte considered that laws governed society.^[3] On a more elementary level, Fleischer writes that as self-preservation is the supreme instinct in man, therefore the entire pattern of human conduct must always have been governed by the fundamental laws governing survival – a dialectical process between man and nature. This reasoning gives rise to the conclusion that all elements of historical consequence result from economic determinism, or man’s instinctive effort to survive.^[4] In order for us to understand Marx’s association with economic determinism, an analysis of his theories on history is essential.

(b) Marx’s theories on history

Jon Elster writes that Marx had ‘both an empirical theory of history and a speculative philosophy of history.’^[5] It is the former, better known as historical materialism, which concerns us. Historical materialism as an explanatory system has been expanded and refined by many academic studies since Marx’s death in 1883, despite no formal exposition of the concept ever having been published by Marx himself.^[6] It looks for the causes of developments and changes in human societies in the way in which humans collectively make the means to life, thus giving an emphasis, through economic analysis, to everything that co-exists with the economic base of society, such as social classes, political structures and ideologies. While Marx claimed only to be proposing a guideline to historical research, by the twentieth century the concept of historical materialism had become a keystone of modern Communist doctrine.

An understanding of the origins of Marx’s attachment to materialism is essential in appreciating its concept. These origins can largely be attributed to his research on the philosophy of Epicurus and his reading of Adam Smith and other political economists. Historical materialism builds upon the idea that became current in philosophy from the sixteenth to eighteenth centuries that the development of human society has moved through a series of stages, from hunting and gathering, through pastoralism and cultivation, to commercial society. Marx argued that the history of Western society had progressed though the following stages or ‘modes of production.’ Each mode of production had its own economic system which gave rise to a system of class division based around ownership of the means of production:

(i) primitive communism

(ii) slave society

(iii)feudalism

(iv)capitalism

Marxists say that society moves from one stage to the next when the dominant class is displaced by a new emerging class. The final stage in the chain, communism (as we know it today), would eventually supplant capitalism on a global scale, and would therefore represent both the intended target and end result of social history.

The fundamental theory of historical materialism stems from the fact that people must procure or produce the necessities by which they can survive and reproduce themselves. Human beings are producers, and their production consists of two distinct aspects: the material and the social. The material refers to the physical necessities of life. In producing physical necessities, human beings create the social form, within which they produce. The social form of production is a social process by which people cooperate (through a division of labour in more complex social forms) to produce the things they need. This aspect always involves the social relations of those involved. These relations crucially concern the control of the process of production and the distribution of its products. The material aspect of production implies a certain organisation of production, possession of the appropriate tools, and knowledge. This material aspect of production is known as the ‘productive forces.’ The social form in which people produce is called the ‘relations of production.’ Together, the forces and relations of production make up the ‘mode of production.’

The next stage in the argument is more controversial. Initially, the interacting factors in the productive system of a class-based economy, including the forces and relations of production, are in a state of relative equilibrium. The forces of production determine and limit or at least correspond to the relations of production. Let us consider an example to help make this relationship more transparent. The earliest humans reproduced themselves by hunting animals and producing simple crops. Such a society could not produce cars, computers or engage in the mass production we have today. They lacked the tools and knowledge to do so. Knowledge and tools are part of the productive forces, which constrain the nature of the relations of production. This material limitation on what earlier societies could produce also constrained the types of relationships that existed between people. However, at some point the expanding forces of production clash with the contracting relations of production. In mankind’s harnessing of technology, the forces develop more rapidly, and in a direction incompatible with the relations of production. As the capacity to produce expands, the ownership of the means of production contracts. Consequently, the forces of production can no longer freely develop within the confines of the class structure. This conflict between the forces and relations of production intensifies until, by means of revolution, the social relations are reorganised so as to harmonise with the productive forces. It is anticipated that mankind will ultimately establish control over the material powers of the economy.^[7]

Historians such as Jon Elster and David McLellan have scoured Marx’s writings for evidence of his rationale on historical materialism. Elster points to Das Kapital, Marx’s preface in A Contribution to the Critique of Political Economy, and what he refers to as ‘rambling, disconnected passages’ in The German Ideology as key sources.^[8] He explains:

Historical materialism is not simply a theory that accords a privileged place to economic factors. It is, more specifically, a form of technological determinism. The rise and fall of successive property regimes are explained by their tendency to promote or fetter technical change.^[9]

On Marx’s writings on the historical modes of production, Elster argues that Marx ‘does not provide applications and clarifications of the general theory.’^[10] According to Elster, there is no suggestion that each of the three precapitalist modes of production (primitive communism, slave society and feudalism) divides into a progressive stage (in which the relations of production correspond to the forces of production) and a regressive stage (in which the correspondence becomes a contradiction). On the contrary, Marx consistently claims that technology was essentially unchanging from antiquity to the early modern period (with the exception of the invention of gunpowder, the printing press and the compass), and that the destabilising element in the ancient world was not the development of the forces of production but population growth. Elster is also critical of Marx’s account of the (then) impending transition from capitalism to communism. He argues that as Marx insisted that technical change in capitalism was accelerating rather than slowing down, he could not claim that capitalism was moribund in its stagnation. Rather, Elster insists, Marx would have to argue that the proletariat would be motivated by the prospect of a communist society which would benefit from technical change at an even more accelerated pace. This in itself is an unlikely motivation as people revolt when conditions deteriorate or when their expectations of improvement are not fulfilled, rather than when there is an abstract possibility of a society in which conditions could be even better than they are already.

McLellan is less critical, appearing to methodically signpost the scholar through the confused abstracts. While he does not specifically mention determinism, he points to it by highlighting the inevitability of worldwide communist revolution above all else. He draws the reader’s attention to the following Marx quotations:

Things have come to the point where individuals must appropriate the existing totality of productive forces not merely to achieve self-activity but to secure their very existence.

In all appropriations up to now a mass of individuals remained subservient to a single instrument of production. In the appropriation by the proletarians, a mass of instruments of production must be subservient to each individual and the property of all. The only way for individuals to control modern universal interaction is to make it subject to the control of all.

Communism is not […] a state of affairs still to be established, not an ideal to which reality will have to adjust. We call communism the real movement which abolishes the present state of affairs. ^[11]

The salient point here is that McLellan draws on these passages to illustrate that socialism for Marx was an economic reality rather than an ethical ideal. This represents a paradigm of determinism in Marx’s writing.

The fundamental assumptions of historical materialism as viewed by Marx, irrespective of any period of history, can therefore be summarised as follows:

humans are social animals who live in a complex society;
human society consists of humans collectively working on nature to make the means to life;
human society develops a complex division of labour;
over time humans advance their harnessing of nature through the development of science and technology;
human beings have the ability to reflect on their society and interaction with nature, but their thinking and organisation are always preconditioned by and dependent on the state of development of their society and of the power structures in their society.

Let us now consider whether these assumptions are compatible with the concept of economic determinism.

(c) Marxist theory and economic determinism

As discussed in section (b), according to Marx, each social mode of production produces the material conditions of its reproduction, that is ideology (which encompasses all the political, law and cultural spheres). Thus ideology permits the mode of production to reproduce itself. Marx also believed that in the event of a revolutionary force changing the mode of production, the dominant class would immediately set out to create a new society to protect this new economic order. In the nineteenth century, Marx felt as if the bourgeoisie had essentially accomplished the establishment of a new societal and economic order, instinctively creating a society protective of their capitalist interests. This prompted Marx (and Engels) to direct this statement from the Communist Manifesto at the bourgeoisie:

Your very ideas are but the outgrowth of conditions of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class, made into law for all, a will whose essential character and direction are determined by the economic conditions of the existence of your class.^[12]

From this, it is argued that Marx and Engels did not believe men could arbitrarily choose any one of several forms of society, but only that one which promotes the prevailing mode of production. The very nature of man’s materialistic constitution requires that he do this. Marx hence criticised man’s alienation, a concept which he latter replaced by the critique of commodity fetishism. ‘Vulgar Marxism’ has considered that the relation between the economical infrastructure and the ideological superstructure was an unicausal one, and thus believed in economic determinism. This has been criticised by Marxist theorists such as Helmut Fleischer, who dismissed it as a form of economism or economic reductionism. He claimed the relationship is much more reciprocal and complex than unilateral determinism would have it.

There are also scholars who reject this view. Fleischer highlights those who objected that economic determinism is a meaningless generality, and that any serious historical explanation of economic realities must also refer to non-economic realities. This becomes a more conspicuous problem when it is unclear which branch of determinism is implied. In this respect, when Marx writes of the ‘economic base’ and the ‘ideological superstructure’ of society, he was making a generalisation about the broad sweep of history, to the effect that people ultimately will follow their material self-interests, whatever else they may imagine about their motivations. However, according to Marx, the dynamics of history were shaped precisely by the clash of those interests (class struggle), and that clash could not be understood simply in terms of economic self-interest, because it also involved human traditions and values. The end result of economic determinism in this view is both economism (a narrow focus on how people earn their livelihood) and economic reductionism (the attempt to reduce a complex social reality to one factor – i.e. the economic – such that this one factor causes all other aspects of society). This plays directly into the hands of the business class, and ultimately ended in an anti-working class position, whereby the allegiance of the working class is merely a ‘tool’ to be used by the political class to modernise an economy, with the aid of forced labour if need be.^[13]

Taking the above points into account, it could be argued that Marx considered economic determinism as the creative force in human evolution. He clearly advocated a change in economic structure as the only feasible means by which to effect social change and to refine the intellectual make-up of humanity. His advocacy of the inevitability of worldwide socialist revolution and communist society could certainly be described as deterministic in outlook. At the same time it should be remembered that Marx was fully aware that the economic aspects of life did not constitute the sum total of mankind’s preoccupation and social make-up. On this basis, therefore, it would appear that Marx’s historical materialism is compatible with the specific notion of economic determinism, rather than falling under the broader category of determinism as a whole.

Bibliography

Berlin, Isaiah, ‘Historical Materialism’ in Tom Bottomore (ed.), Karl Marx (Oxford: Basil Blackwell, 1973)

Easton, Loyd D. & Guddat, Kurt H. (trans. & ed.), Writings of the young Marx on philosophy and society (Garden City, NY: Doubleday, 1967)

Elster, Jon, An Introduction to Karl Marx (Cambridge: CUP, 1986)

Fleischer, Helmut, Marxism and History (New York: Harper Torchbooks, 1973)

McLellan, David, The Thought of Karl Marx: An Introduction (London: Macmillan, 1971)

Rader, Melvin, Marx’s Interpretation of History (New York: OUP, 1979)

Web references

Economic determinism, Online Dictionary of the Social Sciences, maintained by Athabasca University, Alberta, Canada (http://bitbucket.icaap.org)

Karl Marx & Friedrich Engels, Manifesto of the Communist Party, Australian National University (www.anu.edu.au/polsci/marx/classics/manifesto.html)

1

“Under Article 223-6 of the French Penal Code(Chapter III, Section 3)..’anyone who wilfully fails to render to a person in danger any assistance which, without risk to himself or to third parties, he could render him either by his own action, or by initiating rescue operations..’ is punishable by imprisonment and fine.”

Essay Question: What is the criminal law in England and Wales on liability for omissions to act? Having regard to the above extract from the French Penal Code, critically discuss whether the current English Law on this issue should be changed.

The criminal law in England and Wales on liability for omissions to act:

Unlike the French Penal code, which provides a general duty on all persons to assist others in peril according to their abilities, breach of which is a specific offence in its own right, English criminal law does not impose a general duty to act to save other people or property from harm, even if this could be done without any risk or inconvenience. For example, a man who simply stands and observes a child drowning in a shallow pool when he is in a position to easily rescue it should he choose to do so, commits no offence under English law, because he is not under a duty to rescue it.

A duty to act may however arise under a contract, the most obvious example being where the failure to fulfil a contractual obligation is likely to endanger the lives of others. Liability is not necessarily precluded by the injured person not being a party to the contract; in the case of Pittwood^[1], the defendant, who was a level-crossing keeper, in breach of his contract of employment, failed to close the gate when a train was approaching, resulting in someone dying on the crossing. Wright J confirmed that criminal liability can be incurred from a person’s failure to perform their contractual duty and held that, in this case, a duty was owed to the road users even though, prima facie, the contractual obligation was owed only to the railway company.

A person who holds a public office, such as a police officer, may also be under a duty to care for others. For example, in the case of Dytham^[2], a uniformed police officer failed to act when he saw a man being kicked to death a few yards away and was convicted on charges of ‘misconduct in a public office’.

Likewise, a parent is under a duty to save his/her young child from harm; a parent who has allowed his/her baby child to starve to death may, depending upon his/her state of mind, be convicted of murder or manslaughter^[3]. Other close relationships may also involve a similar duty^[4], such as between a husband and wife, although this particular example might be more akin to a contractual duty arising from the contract of marriage than to the duty in the above example.

The voluntary carer of a person unable to look after him/herself is also bound by a duty of care towards that person under English criminal law. In Nicholls^[5], the defendant received a young child into her care, on the death of that child’s mother. Brett J directed the jury that if a person chooses to take on the care of someone who is helpless, either from infancy, infirmity or mental illness, he is bound to execute that responsibility and, if he allows him/her to die, he may be guilty of manslaughter. In Stone^[6], this principle was extended to include situations where a person does not overtly accept the responsibility of carer, but where the situation has lead to such; for example, in a situation where two people have lived together for some time, and the health of one of those people deteriorates to a state where they become dependent upon the other for care, then the court may be prepared to imply a voluntary undertaking of care from the very fact that the healthy party did in fact oblige^[7]. Such a duty will of course be extinguished if the relationship between these two parties should end, or if the ill party orally releases the other from his/her responsibilities [providing of course that the party is in a state capable of making a rational decision]. An example of this latter situation might be a patient releasing her doctor from his duty of care towards her by instructing him that should she become ill, she does not wish to be treated. Such an advance refusal will only be effective if the patient is fully compos mentis, has not been unduly influenced in respect of her decision and has contemplated the actual situation which will arise, understanding all the consequences of refusing treatment in such a situation^[8].

A duty of care can also arise from an accident; where the accused inadvertently and without the appropriate mens rea performs an act which places a person or property in danger, but before the resulting harm is complete, becomes aware of the train of events caused by his inadvertent act, then that party is, by virtue of the English criminal law, under a duty to take such steps as lie within his power to try to prevent or reduce the risk of harm; if he does not, then he may be criminally liable for the consequences. The case authority for this special duty situation is the case of Miller^[9], in which the defendant had, quite by accident, fallen asleep in the plaintiff’s house with a lit cigarette in his fingertips. He awoke to find that he had set the mattress of the bed, in which he was sleeping, alight, but rather than raising alarm or trying to extinguish the fire, he simply went into the adjacent room and fell asleep in there. The House of Lords affirmed his conviction for arson, contrary to s1(1) and (3) of the Criminal Damage Act 1971, as he was in breach of his duty to take reasonable care to extinguish the fire which he had accidentally caused, being in a position to do so. As yet there is no clear authority on how much of a risk a person under such a duty to act might be expected to run in order to perform that duty, but the common law duty requires ‘reasonable’ steps to be taken, a criterion which will be assessed in light of all the circumstances of the particular case in question.

So far we have focussed our discussion around the duties of ordinary citizen’s in daily life as developed by the English common law. It should be noted that there are also in place many statutory schemes of regulation in regard to industry and commerce, such as the offence of failing to comply with a limitation, condition or notice contrary to the Radioactive Substances Act 1993. There are also statutory schemes for the distribution of public money, such as the failure to notify a change of circumstances under the Social Security Administration (Fraud) Act 1997, and schemes for other licensed regulated activity such as failing to report a road accident. These statutory schemes are simple rules which must be followed as a condition of engaging in these activities, and are relatively non-contentious in their lack of general application to the ‘ordinary citizen’.

Critical discussion regarding the issue of whether the current English Law, as described above, should be changed so as to be more like the law contained in Article 223-6 of the French Penal Code(Chapter III, Section 3):

As we have seen from the above description, English criminal law does not generally criminalize the failure to render assistance to another citizen who is in peril, even where such assistance would be easy and cause no harm to ourselves. In contrast, the law under Article 223-6 of the French Penal Code (Chapter III, Section3), as quoted within the question of this essay, does create a general duty to rescue, and does criminalise such omissions.

The position of the English criminal law in not generally criminalising such omissions might be defended on grounds that the vagueness of the terms involved with criminalizing such omissions [such as ‘reasonable steps’] would leave citizens with no clear warning of what they must do and when [the principle of ‘fair warning’]. It may also be defended on grounds that this resulting uncertainty would have a weakening effect on the rule of law and would also lead to too great a reliance on prosecutorial discretion in defining the effective scope of such omission criminalisation. The English position might be best defended however by adherence to the principle of autonomy; “the imposition of a duty to act restricts one’s liberty to pursue one’s own ends and desires by requiring one to do a particular thing at a particular time.”

The position of the French Penal Code in generally criminalising such omissions might be defended on grounds that more important than the principles of fair warning, rule of law and individual autonomy is the protection of human life and human safety. A. Ashworth and E. Steiner^[10] argue that Article 223(2) is a deliberate attempt to set the protection of one citizen’s life or safety above the protection of the maximum liberty of other citizens. The position might also be defended by the fact that since its introduction in 1941, this French Penal Code, responsible for generally criminalising a failure to rescue, has not been considered oppressive^[11] in the way that vehement advocates of the English approach might lead one to believe such a law would.

The truth is that both the English and the French approach in regards to liability for omissions to act have their respective shortcomings. The English approach does not afford enough weight to the worthy protection of the fundamental interest in human life and safety; the French approach does not afford sufficient attention to the worthy principles of autonomy, fair warning and the rule of law. Perhaps the solution therefore would be a compromise?

I believe that the lesson English criminal law should learn from the Penal Code of our Continental comrades is the importance in recognising the harms involved with not helping a person who is in peril; English law must retain its firm stance with regards autonomy, fair warning and rule of law, but simultaneously afford a greater degree of attention to the protection of the fundamental interest in human life. As M. A. Menlowe^[12] writes: “…when fundamental interests are involved (life, physical integrity), we should pause before accepting that an individual’s freedom of action is more valuable than a requirement to carry out a non-burdensome rescue.”

In conclusion therefore, I would argue that perhaps a compromise should be employed by the English criminal law; a ‘duty of easy rescue’. The law should criminalise omissions to rescue those in peril where such a rescue is a simple and harmless task, but should not punish someone for not engaging in a rescue attempt when the risks associated with such a rescue are uncertain and complicated. Pessimists might argue that it would be too difficult to create a law which attempted a balance between on the one hand the respect for autonomy, adherence to the principle of fair warning and adequate protection of the rule of law, and on the other, a respect for protection of the fundamental interest in human life, but such critics should bear in mind that these three former principles are often found balanced with other interests throughout English law. As Feinberg remarks: “similar line-drawing problems exist throughout the law, and most have been found manageable.^[13]”

Bibliography

A. Ashworth and E. Steiner ‘Criminal Ommissions and Public Duties (1990) 10 Legal Studies 153

A. Ashworth, ‘Principles of Criminal Law’, 3d. Oxford University Press 1999 p50

M. A. Menlowe. ‘The Philosophical Foundations of a Duty to Rescue,’ in M. A. Menlowe and A. McCall Smith (eds), The Duty to Rescue (1993)

Feinberg, Harmless Wrongdoing, xii, summarising his argument in ‘Harm to Others’ 150-9 (1984)

Cases cited:

Pittwood (1902) 19 TLR 37

Dytham [1979] 3 All ER 641

Gibbins (1918) 82 JP 287

Smith [1979] Crim LR 251

Nicholls (1874) 13 Cox CC 75

Stone [1977] QB 354

Re T [1993] Fam 95

Miller [1983] 2 AC 161

Title – ‘Discuss critically the current international legal position on the patentability of software and business method inventions’.

Introduction

As a general proposition, the speed at which a true global economy has been assembled over the past 20 years has been the dominant element in the re-ordering of international legal regulations concerning software and business method patents. The central premise of this paper is the that ability to regulate by patent the speed of scientific progress is akin to attempting to score a direct hit on a moving target.

This paper will examine the relationship between global economic forces and patentability, first from the United Kingdom perspective as an example of a national intellectual property protection system. The analysis will then be directed to the European Patent Convention and its regulatory framework, with a comparison drawn between the EPC and other regimes. The supranational patent enforcement structure provided by way of the World Trade Organisation is the final international aspect of the review.

These selected legal frameworks are not intended as an exhaustive summary of international patent law; they establish a useful basis against which the present question may be considered from commercial and public perspectives.

As the following review illustrates, international software and business method patent law is a mixture of legal theory, economic factors, and philosophical preferences regarding the control of ideas and related technologies. The international intellectual property legal order is not so much a finite system as it is a still-evolving organism where certainty of result and clarity of legal purpose are not settled.

Patents, software and business method inventions generally

The term ‘business method invention’ is a very broad and circumstance driven notion; it is often defined by what it is not, as opposed to what in fact it represents. As a general rule, business method inventions are any design that encompasses economic activities such as buying and selling items, marketing techniques, financial schemes (e.g. pension plan organisations) and gaming strategies.^[1]

In the European Union, the historical distinction between patentable and non-patentable inventions was the presence of a technical component in the design or system; business method inventions were therefore inherently non-patentable concepts in Europe.^[2]

Software is a similarly broad term that is capable of bearing several meanings. For the purpose of the present review, system software is any software required to support the production or execution of application programs but which is not specific to any particular application^[3]. Examples of system software would include a computer operating system^[4]. By contrast, application programs include Microsoft Excel© or computer assisted drawing (CAD) programmes; this software includes source code written by humans and executable machine code^[5]. Software does not usually include the data processed by programs unless the desired format depends on the use of computers for its presentation, such as multimedia^[6].

Patents and intellectual property protection turns on two fundamental principles, the territorial nature of the protection, and the extent to which a patent holder may permit others through licenses or other agreements to use the protected property. Given that patent law is not harmonised to any significant degree, patent protection is at best a variable and imperfect tool to promote rights associated with software and business inventions. ^[7]

As this analysis progresses, it is important to distinguish between the characteristics of patents and those of copyright. Copyright is the protection afforded to intellectual property regarding how an idea may be expressed or controlled. While copyright does not safeguard the idea itself, software copyright usually extends its coverage to the reproduction of software source codes. Patents are the legal protection granted by a country over an invention, its underlying methodology, or its function.

Patent law provides more comprehension protection that that available by copyright, licensing, or other any other safeguards that may be created by a contract over intellectual property. A patent is commercially desirable because as it establishes a legal monopoly over the protected property for the patent holder, adding value to the protected concept.

The American influence

A critical discussion of international software patent law that does not touch upon the American legal position is akin to not mentioning the proverbial white elephant seated at one’s dinner table. The United States Patent Office historically has been the busiest such institution in the world; American based companies initiate more patents world wide that any other business sector. The United States Supreme Court was the first to legalise software patents^[8] and the first major jurisdiction to give explicit recognition to the concept of the business method patent.^[9]

American influence has been important but not determinative in these areas; however, the American test for a business method invention patent as whether the subject concept leads to a ‘useful, concrete and tangible result’ is very influential.^[10] The American approach may be borne in mind as the UK, European, and World Trade Organisation positions are considered.

UK patents

Reflecting the biases of the first English patent law^[11], there was a long held reluctance in the UK to permit computer innovation patents. In the 1970s, as computer technology experienced incredible global growth, UK patents were restricted to industrial innovations, machinery, manufactured products, and tangible items.

Patents were not granted in the UK where the subject involved the mathematical expression of a scientific truth such as an algorithm.

Three recent UK patent law decisions are instructive in this regard. The most current and arguably the most important articulation of UK software patent law principles is Aerotel Ltd. v Telco Holdings Ltd.^[12] The Court of Appeal considered the deficiencies of both UK and European patent legislation in light of modern global commercial developments. The Court, through Jacobs LJ stated that it had no concern for the intense current political debates concerning software patents^[13], a statement that is difficult to accept at face value given the multinational nature of the case. However, the Court described the fundamental purpose for modern patent protection in clear and unambiguous language:

The patent system is there to provide a research and investment incentive but it has a price. That price (what economists call “transaction costs”) is paid in a host of ways: the costs of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on. There is, so far as we know, no really hard empirical data showing that the liberalisation of what is patentable in the USA has resulted in a greater rate of innovation or investment in the excluded categories. Innovation in computer programs, for instance, proceeded at an immense speed for years before anyone thought of granting patents for them as such^[14].

The Court held that all (emphasis added) potential UK patents should be validated by a two part test expressed in the following terms:

First, determine what the inventor has contributed to the art over and above a computer operating in a new way as a matter of substance and, second, determine whether this contribution lies in excluded matter or, on the contrary, whether it consists in a technical contribution or effect.^[15]

Menashe Business Mercantile Ltd v. Hill ^[16]is an equally instructive 2002 decision of the Court of Appeal, as the reasons for judgement underscore the fluidity of modern computer based commercial applications and the difficulty to apply traditional enforcement methods, in the context of the relationship between UK and European community patent law. The plaintiff Menashe commenced an action seeking UK enforcement of a patent issued by the European Patent Office regarding his interactive gambling software. The defendant Hill claimed that as the host computer required to operate the software system was located outside of the UK, there could be no breach of the Menache patent. The Court held that in this case, jurisdiction over the patent ‘lay with the punter’^[17] – where gambling activities occurred by means of UK computer access, Hill violated the patent and the UK courts could enforce the patent.

The decision referenced as CFPH’s Applications, 2005^[18] is a useful summary of how the UK and European Patent offices approach both software patents and business inventions; the Court strikes a blow for pragmatism in its conclusion that there will likely never to be a comprehensive definition of ‘invention’.^[19] Accordingly, the court suggested that difference in the approaches of the UK and European patent offices should have little effect on how patents are enforced in most cases.^[20]

The complexity of each of the noted cases underscores an important barrier to enforcement – the current patent system serves only those who can afford to litigate a patent claim.

European Patent Convention (EPC)

The European Union is the second most active patent registration regime in the world. EPC Article 52(1) sets out the general rule: European patents will be granted for any inventions that include a ‘technical character’.^[21] Conversely, the patentability exclusions described in Article 52(2) include traditional business methods that have no invention or technical component. However, a number of concepts that combine technical and non-technical components have been approved for European patent, including an x-ray machine with a software component^[22] and other computer related devices.^[23]

The language of EPC Articles 52 and 53 when taken together has resulted in significant confusion with respect to the availability of software patents.^[24] The articles stated that ‘as such’ computer programmes are excluded from patentability, yet as of 2005 over 40,000 software –related patents had been granted by the EPO in a host of technology fields. When coupled with differing rules enacted in each of the EU member nations, software patent laws in Europe are decidedly ambiguous.^[25]

Europe has been an ideological battleground pitting commercial software developers against the advocates of Open Source Software (OSS)^[26] over the question of whether software should be patented at all. The OSS proponents (a world wide constituency) regard software patent laws as an inhibition to true technological progress. In July, 2005 the European Parliament rejected a legislative proposal that would have expanded the ability of software developers to obtain patent protection for their inventions. Given the size and influence of the European market, the European rejection of tighter software patents may be an indicator of a larger global trend to make software generally more accessible and conversely, less amenable to patent protection..

Since 1977, patents issued by the European Patent Office have enforceable through the patent legislation of member countries; Menashe^[27] is an example. EPC Article 64 provides that the national law is the only enforcement mechanism for an alleged patent violation. It is submitted that without harmonised European enforcement, a truly effective patent system is impossible; given the importance of software development, the persistence of the present system suggests that the software industry is not entirely troubled by the patchwork European law in this regard. This European legislative deficiency mirrors those of the global software and business method patent arena.

World Trade Organisation (WTO)

With more than 150 member countries and a host of trade agreements and protocols that touch upon wide areas of international commerce, the WTO occupies a position of apparent importance in international software patent regulation. The foundation WTO initiative is TRIPS^[28], the Trade Related Aspects of Intellectual Property Rights, ratified January 1, 1995.

TRIPS is an initiative that represents the culmination of a series of multi-lateral intellectual property agreements concluded by the WTO membership. TRIPS has been heralded as the blueprint for handling international intellectual property disputes.

In light of the European developments noted above, coupled with the resounding failure of earlier WTO initiatives^[29], it is exceedingly doubtful that TRIPS will become an accepted software patent legislation standard.

The ability of the WTO to enforce TRIPS must also be considered in light of how modern international commercial forces are often transnational entities and not the traditional nation state.^[30] No significant enforcement action has been successfully undertaken pursuant to the TRIPS protocols since its enactment.

What the future holds

It is submitted that the current state of international software and business method patents is a natural consequence of the speed that underlies both the function of the global economy and technological development. A coherent and enforceable international patent structure may be laudable, but the speed and inherent flexibility of innovation operating independent of any government restriction appears to have spawned a new world order where rules exist as guidelines only. As Europe and the WTO struggle to resolve the patentability of “simple” computer software applications, science is relentlessly forged ahead with biotechnical and genetic software questions^[31] that will pose even more perplexing regulatory issues.

Bibliography

Beresford, Keith “Patenting Software under the European Patent Convention” (London: Sweet & Maxwell, 2003)

Boyle, James “Fencing off ideas: enclosure & the disappearance of the public domain” (2002) Daedalus Vol. 131,

Cahill, Lisa Sowle “Biotech & Justice: Catching up with the New World Order” (2003) The Hastings Center Report Vol. 33, 1

Caulder, Isis E. “Patenting Software – The Standards in U.S., Europe, Japan and Canada” http://www.bereskinparr.com/English/publications/pdf/Patent-Six-Minute-IP.pdf (Accessed January 28, 2007)

FOLDOC (Free On-Line Dictionary of Computers), Imperial College http://foldoc.org/index.cgi?query=software (Accessed January 28, 2007)

Guadamusz, Andres “Open Science: Open Source Software Licenses and Scientific Research” BILETA April, 2005

Ius Mentis http://www.iusmentis.com/patents/businessmethods/epc/ (Accessed January 28, 2007)

Lerner, Paul and Alexander Poltorak “Essentials of Intellectual Property” (New York: Wiley, 2002)

Raymond, Eric “The New Hacker’s Dictionary” (Cambridge, Mass: MIT Press, 1991)

World Trade Organisation / Trade Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/tratop_e/trips_e/trips_e.htm (accessed January 28, 2007)

Table of Cases

Aerotel Ltd. v Telco Holdings Ltd. [2006] EWCA Civ 1371

CFPH’s Appns [2005] EWHC 1589 (Pat)

Commissioner of Patents v. Harvard College [2002] SCC 77 (S.C.C.),

Computer-Related Invention/Vicom, Decision T 208/84 EPO (OJ 1987, 14)

Diamind v Diehr (1981) 450 U.S. 175

Koch & Sterzel, Decision T 26/86 EPO (OJ 1988, 19)

Menashe Business Mercantile Ltd v Hill [2002] EWCA Civ 1702

State Street Bank and Trust v Signature Financial Group (1998)149 F.3d 1368 (Fed. C. A.)

Table of Statutes

European Patent Convention

UK Patent Rules, 1995

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Triangulation – Qualitative Analysis

Triangulation is often used in qualitative methodology to increase the validity of findings, but it is not a panacea. Using British examples in the police and public sector, discuss the meaning of the term triangulation, how it can be used in qualitative research and its limitations and potential.

Abstract

This paper focuses on the use of triangulation within qualitative research using examples from British public sector and more specifically, police research. Qualitative research approaches have been increasingly used within public sector research. Different types of triangulation are explained and the relevance of each type is identified. The purpose of using triangulation within qualitative research; which is to increase validity, is critically discussed. Different types of validity are explained, as well as the significance of the concept of validity to research. Quantitative and qualitative research approaches are critically compared. The use of qualitative approaches within public sector research is defended, and the positivist perspective is challenged by arguing that the use of triangulation can strengthen the validity of qualitative research methodology. Using three examples of public sector research, some advantages and potential limitations of using triangulation within this area are identified. Several examples of police research studies that have adopted the use of triangulation as part of a qualitative approach are critically discussed with reference to different types of triangulation and their relationship to different types of validity. A synthesis of the issues that emerge from the selected police research studies in relation to triangulation is included. The paper concludes that while there are potential limitations associated with the use of triangulation within qualitative research, the cited examples of public sector and police research demonstrate that there are also several potential advantages and that triangulation can contribute to the validity of qualitative research in these domains. It is important to acknowledge that the application or the omission of different types of triangulation within a research study can correspond to its strengths and weaknesses, and there is an implication for the researcher to be knowledgeable and skilled in the use of triangulation in order to optimise its application within qualitative research. In other words, the limitations of triangulation might relate to the way that it is implemented rather than to the strategy itself.

Introduction

The purpose of this paper is to critically examine the use of triangulation within qualitative methodology as a means of increasing the validity of findings, with reference to research examples from the police and other public sector areas.

Triangulation, Validity and Qualitative Research

In simple terms, triangulation refers to the examination of a situation from different perspectives, using different methods (Laws et al 2003). Triangulation is often referred to as the use of mixed methods within research, however Denzin and Lincoln (2000) developed this concept further to include four different types: data triangulation, which refers to the use of a variety of sources of data within a study; investigator triangulation which involves several researchers; theory triangulation, which uses multiple perspectives to interpret a single set of data and methodological triangulation which involves the use of multiple methods to study a single problem. Data triangulation is commonly used within qualitative research as it facilitates understanding of the complexity of a poorly understood phenomenon, an example being the combination of holding in- depth discussions with participants and observing their behaviour within a natural setting (Polit and Beck 2004). Investigator triangulation can help to overcome the potential problem of personal bias (Sim and Wright 2000). The advantage of using methodological triangulation is that it helps to resolve the limitations that single methods have in studying the complexity of social reality (Kendall 2005).

Frequently triangulation involves the use of both quantitative and qualitative methods, the rationale being that the strengths of each are optimised (Flick 2006). This paper however, will focus on the use of triangulation exclusively within qualitative methodology. The purpose of using triangulation within qualitative research is to add rigour, depth, breadth, complexity and richness to the research process (Denzin and Lincoln 2003a).

The use of triangulation within qualitative research is therefore, said to increase validity (Giles 2002). The term validity is often referred to as the ability of a research instrument to measure what it is intended to do (De Vaus 2002). There are however, different types of validity; internal validity, which asks whether researchers are actually measuring what they think they are; external validity which relates to the generalisability of the findings of a study to other settings; interpretive validity which is concerned with the accurate understanding and portrayal of data; theoretical validity which relates to the appropriateness of theory that emerges from the data and evaluative validity which refers to the quality of the research process, in relation to the actions of the researcher. Overall, within qualitative research; validity relates to the trustworthiness of the data, its analysis and its interpretation (Waltz et al 2005). Holloway and Wheeler (2002) however, suggest that triangulation does not always confer validity; that this is dependent on the nature of the individual research project and that only researchers who are experienced should use triangulation within qualitative research.

Qualitative research approaches seek to understand the meaning of phenomena (Patton 2002a). They aim to represent the true complexities of human behaviour, gaining access to thoughts and feelings that cannot be accessed by using other methods Flanagan 2005). Quantitative research on the other hand, has been criticised for its reductionist approach towards the human experience; it has the ability to produce results which are statistically significant yet humanly insignificant. Qualitative research methods include interviews, observations and document analysis. The qualitative researcher tends to engage more with the research participants and aims to address any associated criticism of the potential for subjectivity by the application of rigorous and systematic methods of data collection and analysis.

Qualitative research approaches have increasingly been used in public sector research within the UK, for example within the health care domain, where they have helped to enhance understanding of health, health behaviours and health services (Green and Thorogood 2004). There are also several examples cited within the literature, of qualitative methodology being used in police service research. (for example: Cassell and Symon 2004; Dick 2000; Dick and Jankowicz 2001; Dorn and Brown 2003; Noaks and Wincup 2004; Office for Public Management 2006).

Triangulation in Public Sector Research

Qualitative research methodology is often employed within the public sector because of the ‘people factor’; public sector organisations such as the police, health and social services and local councils employ large numbers of personnel (Grant and Vidler 2000), added to which these are helping organisations that provide a human service. Qualitative research is described as a naturalistic, interpretative approach that is concerned with understanding the meanings which people attach to phenomena within their social worlds (Ritchie and Lewis 2003). As stated previously, it is very much concerned with human behaviour, experiences, values and beliefs. It does however attract criticism from positivists in terms of not being valued as a scientific approach (Haslam and McGarty 2003). Positivism adopts the position that the purpose of science is to limit research activity to what can be directly observed and measured; that aspects such as feelings, attitudes and beliefs cannot be directly observed and measured and are not therefore, legitimate areas for scientific investigation (Trochim 2006). As previously stated, the implications of this are that there are huge areas within the human experience that would not warrant investigation within the quantitative paradigm. The purpose of triangulation within qualitative research is to challenge the criticism that this is not a scientific approach, by combining multiple observers, theories, methods and data sources in order to overcome the intrinsic bias that arises from single- methods, single observer and single- theory studies (Patton 2002b). There now follows an overview of three public sector research studies that have employed triangulation in order to demonstrate the effectiveness of this approach.

McAdam et al (2002) used data triangulation of qualitative methodology to investigate how the principles of total quality management (TQM) are being sustained in the UK public sector by contributing to improved performance levels. The research methodologies included focus groups and semi-structured interviews. Using triangulation served to strengthen their finding which was that quality frameworks play a key role in improving organisational performance over time.

A study by Atwal and Caldwell (2006) aimed to explore nurses’ perceptions of multidisciplinary teamwork in acute health-care. In order to do so, they adopted methodological triangulation by conducting interviews and direct observations of interactions between nurses and health-care professionals in multidisciplinary teams. The findings of this study identified three barriers that hindered teamwork: differing perceptions of teamwork; different levels of skills acquisitions to function as a team member; and the dominance of medical power that influenced interaction in teams. The combination of interview with observation in qualitative research is becoming increasingly popular (Ekstrom 2004).

A study by Bryans (2004) aimed to articulate the health visiting expertise involved in recognizing and responding to client need during home visits. The researcher adopted what she describes as an innovative, multi-method approach used to articulate this expertise which involved a 20-minute simulated visit to an actress-client, a post- simulation focused interview and subsequent observation of actual home visits with 15 study participants. The researcher identified the strength of this approach as providing a blend of control and naturalism and considers that this approach could usefully be applied within multidisciplinary contexts. The researcher also acknowledged the limitations of the approach as arising from the variability of naturally-occurring, observational data which meant that simulation and observational data were not directly comparable in terms of content in a study of this type. Comparability of observational and simulation data, and the reliability of the observational data, were also diminished by the use of different methods of data-gathering.

These studies collectively demonstrate that the use of triangulation within qualitative research can strengthen its findings; a potential limitation is that it may not be easy to make dependable comparisons between two sets of data due to differences in the ways that the data was collected.

Triangulation in Police Research

A review of the literature reveals that qualitative research approaches have been employed within police research involving the use of triangulation for some time.

An interesting example of the use of triangulation within police research are studies that highlight discrepancies between information given about experiences of crime to the police by comparing this data obtained by other means, for example by using interviews conducted by external researchers (Bechhofer and Paterson 2000a). In other words, a more accurate picture can be gained by the use of triangulation. The same authors refer also to the use of qualitative research and multiple methodologies in order to obtain information about peoples’ perceptions about crime; for example relating to their fear of crime. This information might otherwise be inaccessible. It is possible that the use of triangulation within police research could be effective in dealing with information of a sensitive nature.

Lee (2000a) makes reference to a study conducted by Norris et al in 1992 that demonstrated how the use of different methodologies can highlight the difference between perceptions held about, and the reality of, a situation. In this instance observations were made of the demeanour of police officers and citizens in situations where citizens were stopped by the police. During an encounter, blacks and whites were equally likely to present a calm and civil demeanour towards the police. There were also few differences in police demeanour and action towards the two groups. These findings did not support competing claims (i.e. derived from other sources of information) that the police are overtly hostile to blacks, or that blacks display disrespectful attitudes towards the police.

Devine and Heath (1999) provide a critique of an ethnographic study conducted by Hobbs in 1988, of petty criminals and local CID detectives working in the East End of London. The ethnographic research consisted of both overt and covert participant observation of both the criminals and the police in a variety of different settings. The researcher was able therefore to gain a variety of sources of data which contributed to what is described by Devine and Heath as the ‘richness of his ethnography’ (p.8). However they also consider that the study would have benefited from investigator triangulation in order to overcome the problem of bias. They felt that this would have led to a more accurate picture of malpractice within the Metropolitan CID. An identified limitation of participant observation is that the researcher can become biased in favour of the group or indeed against them (Moore 2001). A study of this kind is also unlikely to have external validity; as being an ethnographic study; it is very much informed by the uniqueness of its social and cultural context.

The last two studies demonstrate the value of observation as a research method particularly as a component of triangulation. The advantages of observation are as follows: the researcher can observe interaction within a group as well as gain information from people individually via interviews, as the dynamics of a group might influence the nature of communication between its members; the researcher might gain a more objective view of a situation than a research participant who is likely to be immersed in their social world and may not as a result, identify aspects which are of interest to the researcher. Observation also enables the researcher to observe actions, which can be more meaningful in some ways than verbal communication (Weinberg 2001).

The value of investigator triangulation is highlighted in a second study cited by Lee (2000b). This also looked at police- citizen interaction using multiple observers from different backgrounds. Data triangulation was also employed as the observers were asked to collect data in two forms, one on a checklist; the other as a narrative account. The two sources of data were then compared. The use of multiple observers should help to overcome the potential problem of personal bias that was said to arise from the Hobbs study.

A study by Knock (2002) drew on the findings of a telephone survey of all police forces in England and Wales and interviews with key personnel in 16 police forces to gain information about the use of Sex Offender Orders (SOOs) which came into force in 1998; the aim of these being to provide an additional measure of protection to the public from sex offenders by prohibiting an offender from certain behaviours that had previously been precursors to offending. It was found that the pattern of SOO applications is not uniformly distributed across the country. The researcher commented that the low uptake of SOOs by some forces needs to be carefully interpreted. The use of triangulation allowed for the underlying reasons for low uptake to be identified. These included a general lack of understanding about the SOO process and concerns about inadequate resources for monitoring the Order; this information being gained via the interviews. Furthermore, some forces identified that other strategies for managing sex offenders without resorting to an Order were considered to be adequate; others had negotiated voluntary agreements with offenders in order to modify their behaviour. The relevance of this study in relation to triangulation is that the ‘first level’ of presenting information could be misleading; the use of more than one methodology facilitated a deeper level of understanding about the variation in applying the SOOs. As with all qualitative research methods, there are advantages and disadvantages associated with the use of telephone interviews. It may be possible for the researcher to enter responses directly onto a computer which could increase time efficiency and accuracy of recording. Respondents might find it easier to respond to questions of a sensitive nature when they are not face- to- face with the interviewer. The disadvantages include a lower response rate than for face- to- face interviews, which reduces further when longer telephone interviews are required (Pocock 2000). It is also not possible to observe non- verbal aspects of communication. The use of triangulation therefore, helps to overcome the disadvantages of a single research method. The identified weaknesses of the telephone interview are all aspects which could be compensated for by the additional use of face-to- face interviews. Conversely, the strengths of the telephone interview should help to overcome the limitations of the face- to- face interview.

Pain et al (2002) carried out research commissioned by the Home Office to produce a Police Research Series paper which examined homeless and school- excluded young people’s experience of crime and disorder; the rationale being that they had previously been poorly represented in consultation. The need to adopt a qualitative approach for this study was emphasised by the researchers, in order that the young people’s attitudes, experiences and understanding of crime could be explored in depth. The participants were invited to develop a range of visual materials, and observations and informal discussion were also used by the researchers. Findings included that there are negative outcomes of the vicious circle created by being labelled as either homeless or as troublemakers at school; that most of the crimes committed by the homeless young people are petty and victimless, such as begging; that the homeless feel most at risk in spaces where control can be exerted over them, such as within the home or in dealings with the police and as a result they actually feel safer on the streets; that crime and homelessness are two factors which are correlated; that school- excluded young people are more likely to be involved in crime, most of which is petty but some of which is serious; that school- excluded young people often feel victimised and have been bullied, some have been the victims of abuse within the home and others have been exposed to crime previously as non- offenders.

The researchers highlight the benefits of participatory research approaches as enabling the young people to be involved in the process of research and strategy development, at the same time allowing their interests to be promoted. In other words, they are being empowered. The researchers also acknowledge the limitations of participatory research methods, which are not specified within this research report but which have been identified elsewhere as being time intensive; as having been criticised as involving reduced scientific rigour and that the researchers’ control over the project could be compromised (Arble and Moberg 2006). The researchers comment that the limitations of participatory methods could impact upon the effectiveness of their use as a basis for action. Triangulation involving informal discussion and observation in addition to the participatory methods therefore is a strategy which was used in this instance to overcome the potential limitations of the latter, thus increasing the validity of the research process and the interpretation and application of the data. This is a very interesting study which has revealed some powerful insights into the issues affecting an otherwise disenfranchised group, drawing upon their unique perspectives. Some of the findings are surprising and challenge widely held assumptions and negative perceptions held about homeless young people; that are reflected in the lack of resources, support and appropriate accommodation available for this group (Dean 2006). The impact of such a study could be therefore, to contribute towards improved service delivery for homeless and school- excluded young people. It could be argued that triangulation is a powerful strategy that adds credibility to a study of this kind, which in turn could have an impact on improving the lives of otherwise disempowered and misunderstood groups of young people.

In summary, there are several examples within the literature of qualitative approaches adopted within police research which employ triangulation. A synthesis of the issues relating to the use of triangulation in this specific area of work is as follows: triangulation can help to address sensitive issues within police research that might not be effectively dealt with using a single method; triangulation can highlight discrepancies between data obtained as a result of using different sources and methods, which could also be interpreted as a limitation of triangulation, in that it could lead to data from different sources not being directly comparable; it enables the subjective perceptions of participants (and therefore those who may be affected by the outcomes of research studies) to be taken into consideration, in addition to the more objective observations of researchers, this allows for participants to be empowered and to potentially have some influence over the development of strategy which results from the research process; triangulation potentially allows for the use of multiple researchers, multiple settings, multiple sources and multiple methods to be used within police research; the use of multiple methods enables the strengths to overcome the limitations of each method; triangulation facilitates different levels of research investigation to be carried out, for example underlying reasons for the findings emerging from the use of one method can be identified by the use of an alternative approach, thereby contributing to the depth, breadth, complexity and richness of the research process (Denzin and Lincoln 2003b) and triangulation could add to the credibility of a research study which in turn could impact upon changes being made to improve service provision.

Conclusion

Robson (2002) agrees with the statement within the question; i.e. that triangulation is not a panacea. It can be problematic, for example when two data sources are inconsistent or conflicting. Further investigation might lead to an even more complex set of understandings. Kirby (2000) agrees that while triangulation is used to overcome the problems associated with using one research method, it does not eliminate these problems, but disguises them by compensating for the weaknesses of one method with the strengths of another. Triangulation is not a unified overall methodology; it is a way of using complementary methods. Coleman and Briggs (2002) argue that while triangulation contributes to validity, it is not a panacea and that its value can be overestimated. Bechhofer and Paterson (2000b) suggest that there are weak and strong forms of triangulation. They describe a weak form as making multiple observations of a situation using the same method and a strong form as making several observations using different methods.

Despite these identified limitations of triangulation, examples cited within this paper from public sector and specifically, police research indicate that there are several potential ways in which it can contribute to the validity of the qualitative research process. The advantage of using qualitative methods within public sector and police research has been identified here as enabling the human experience to be valued and investigated. Potential limitations of qualitative research methods can be overcome by the use of triangulation as the strengths of each individual method can compensate for the weaknesses of others. Finally it is important to acknowledge that the appropriate skills of the researcher can contribute towards the quality of a mixed- methods study and that it might be necessary to involve two or more researchers who have complementary research skills in order to optimise the benefits of using triangulation within qualitative research (Tashakkori and Teddlie 2003).

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Through a detailed analysis of ‘A Rake’s Progress’, and considering both form and function, discuss how Hogarth’s work was affected by the transition from one medium to another.

The Rake’s Progress is the only work by Hogarth in which we can compare his skills and method of approaching painting with his engraving, as both versions still exist and indeed, the engravings appear as though the greatest amount of care and attention had gone into their composition. The Rake’s Progress can be read as a satire of the traditional romantic progression, as the central character of the work, Tom Rakewell, the son of a rich merchant, comes to London, spends all of his father’s money on gambling and whoring, is imprisoned and eventually is put into Bedlam, the mental asylum. The overall tone, however, is not one of tragedy, but of black and satiric comedy. Hogarth uses a variety of narrative and symbolic pictorial devices to achieve this effect, and it is the main way in which the original paintings of the Rake’s Progress differs in the way it is expressed in each medium.

Hogarth’s copyright act of 1735 in many ways marked a change in the economics of the artistic scene in Britain at the time. Because the ownership of engravings and paintings remained in the possession of the artist, the artist could find it easier to appeal to the sensibilities of the middle classes rather than an aristocratic patron. Waterhouse (1953) comments that “In 1735 Hogarth’s copyright act, immediately followed by his engravings of ‘The Rake’s Progress’ marks a step forward in the artist’s status” (p. 125). This development contributed to generating an environment in which a challenging satirical piece such as “The Rake’s Progress” could be disseminated on a more democratic basis, utilising the technologies of mass production and print making while simultaneously making money for the artist and not forbearing the copyright of the materials by publishing the material. This had the effect of both changing the market from rich patrons and churches, to a prosperous middle class, and subsequently this had an impact on the morality and the themes of “The Rake’s Progress.” It was likely therefore, that Hogarth decided to put considerably more time into creating the engravings of “The Rake’s Progress” rather than concentrating on the grander, colourful spectacle of the paintings. For financial reasons, the printed versions of “The Rake’s Progress”, its subject matter and tone something which the middle-classes would be more likely to empathise with or endorse, should be regarded as the central work, rather than the paintings. Waterhouse (1953) comments that the painterly quality of “The Rake’s Progress” was “extremely uneven.” He continues by saying: “At times it reaches the highest degree of exquisite paint and at others it is merely perfunctory” (p. 130). The reasons behind this were purely economic. In combination with the copyright act passed through Parliament, which allowed for artists to support themselves economically more easily without relying on painting for rich patrons or the establishment, along with the development of printing technologies that allowed a cheaper dissemination of works to the affluent middle-classes, Hogarth presumed that it was likely that a single painting on this subject, and with this thematic quality would sell as well regardless of the amount of time put into it.

The technical limits of engraving and painting are brought into stark relief by the differences between Hogarth’s paintings and his engravings. Engraving allowed the artist to work in a more literary fashion: instead of having to sell the pictures separately and as artefacts that worked on their own merits, the engraving medium allowed for the printing of successive pieces, which encouraged a more “literary” style to develop, and which took into greater account the symbolic and narrative threads of previous works. “The Rake’s Progress” is exemplary in how these themes develop over the course of the eight prints. There are a number of themes that echo throughout the engravings that are absent in the paintings. In Plate Three, the orgy scene in which Tom spends and is robbed of all of his father’s money, the woman in the background attempts to set fire to a map of the world. This arson is developed further in the second scene (Plate 6) depicting hedonism in the drinking house, which actually depicts a fire. There are various other parallels in these two scenes that are lost in the paintings. While Plate 3 depicts female prostitutes and opportunists who steal and rob Tom of his wealth, Plate 6 depicts a similar scene, but with men instead. This balances the portrayal of gender in the overall piece, and therefore eschews easy interpretations that Hogarth had any covertly misogynistic intent. Although the painting also offers this interpretation, the absence of the fire in the painting tends to separate the two pieces, which fail to be brought together by this common narrative strand.

The paintings, as well as reflecting an appeal towards a specific market and generating the pieces to operate in isolation from one another, was also burdened by the processes of painting itself. Engraving allowed for more focus to be placed on the literary and the symbolic intent of the prints. Because of the “spectacular” nature of painting, that elevates painting towards an ideal of representing reality through the detailed use of light, colour and painterly technique, often subtle “literary” and narrative threads are lost in the overall image. The paintings of “The Rake’s Progress” are notably less enriched by references and allusions to current events. Also, much of the literary referencing is dropped in favour of more universal themes. Engraving more easily allows for more detailed technical work to take place, and in “The Rake’s Progress”, this is encapsulated by a series of symbolic gestures that serve to heighten the moral and ethical views of the artist himself, displaying a critique of the hypocrisies of class and class mobility in a way that painting, in regarding the realistic rendering of subjects more highly than providing allusions and richly symbolic content, tends to eschew.

For instance, Plate 1 details, written on a script, the words “Put off my bad shilling”. “Put off” could easily be read as spend, and thus this provides an ironic allusion to both the power of money to corrupt, and the subsequent actions of Tom that results in his fall from grace. Plate 2 offers more details that add to the subtlety of the piece. Hogarth decides to feature in his print a long scroll, which again is absent in the painting. It displays a long list of known noblemen and members of the aristocratic elite. The baffled expression on the face of Tom suggests with subtlety that Tom doesn’t exactly fit into the society that he has found himself in, and that his irresponsibility with money, coupled with his falsely acquired elevation to this level of society will inevitably lead to confusion, strife and his own destruction. Plate 4 is especially detailed in its construction and its critique of class hypocrisy. A bolt of lightning in the engraving replaces the sunnier climate portrayed in the painting. This heightens the dark mood surrounding his arrest, and metaphorically suggests his decline from form and fall from grace through bombarding us with a series of omens that symbolically echo this air of Tom’s impending collapse. Gordon (2003) additionally comments that “These omens, caught in comical stasis, are even more devastatingly echoed by the bolt of lightning, complete with directing arrow about to strike ‘White’s’, a gambling house for the aristocracy.” This print also contains wordplay and class-based satire. Although the lightning bolt is subtle in where it is directed, the hidden meaning of the vice that occurs within these aristocratic circles is acerbically satirised by the presence of the children on the right side of the composition. They gamble and cheat as the aristocrats would. In addition, there is a literary reference to “White’s”, because they are huddled around a sign that says “Black.” Perhaps here Hogarth is commenting on the hypocrisies of class and that money has surpassed virtue and goodness in disturbing and profound ways in the urban environment. Although they are labelled as opposite, the irony is that the only difference between the aristocrats in the gambling halls and the children on the street corner is in terms of wealth. This presents an allusion that is absent in the painting, presumably because the market for the painting would be those very aristocrats who are being satirised, and also that the restrictions on the subject matter of paintings doesn’t historically allow for such acutely literary wordplay. Plate 5 depicts a crack running through the last five of the Ten Commandments on the wall which, along with the broken-down appearance of the church, suggests a receding faith and morality among the urban rich. The engraving of Plate 7 also adds to this richness of symbolism with the presence of wings in the top left corner of the engraving. Presumably, this was left out of the original painting because, without reference to the other pieces, this symbol would be meaningless, and priority was placed in the paintings on developing a series of monumental “spectacles” rather than work that satirically questioned the political, sociological and ethical codes of the time by richly entwining narrative and metaphorical threads into a single, coherent document.

In Hogarth’s “Rake’s Progress”, the differences between the engraved and the painted versions of the work differ on a number of levels and for a number of different reasons. Firstly, the passing of the copyright act in 1735 allowed for artists to maintain artistic control of their work after it had been distributed. This allowed for a greater democratisation of artistic work and, along with developments in technology and the printing press, made a work more profitable if it could utilise this technology and appeal to the newly emergent affluent middle-classes of the period. The sociological differences in the target markets of the two types of art led to differences in subtlety regarding their satirical, class-based themes. It also meant that Hogarth could conceivably make money from satire, as the intention of the artist in this form is not to produce flattering works for rich patrons, or hugely rich and spectacular Christian works for the church. In short, the democratisation of distribution channels for engraved art in terms of printing changed the market for art production, and allowed for artists to promote their different views. Secondly, the development of engraving as a medium worked in conjunction with developments of the printing presses, and as an art, eschewed the need to create a rich, colourful piece of work in order to find a patron that would conceivably purchase the painting. In engraving, because of the limitations in creating a “spectacular” and singular piece of work, room is made for cramming in a dizzying entourage of pointed metaphors and symbolic and literary meanings beyond the actual engraving itself. Almost every print contains ironical remarks and comparative and satiric allusions to other art, to common cliche, or to class stereotyping. Also, technologically, printed engraving is disseminated together in one binding, instead of separately, as is the case with paintings. Thus, it was more justifiable for Hogarth to develop his themes from one print to the next, and also to develop his metaphors, allowing them to generate more richness and complexity with every print. The result is that engraving developed into a more “literary” narrative style that prioritises the narrative thread over the singular intent of the painting. Also, because of engraving in books innate lack of colour or “spectacle”, the rich meaning of the pieces, as Gordon (2003) suggests, “recede through a greater range of visual planes.” Metaphor, symbolism and upholding narrative threads throughout the plates are favoured over spectacle and the depiction of universal themes. “The Rake’s Progress” was a financial success as an engraving because it took into account the limitations and the liberating qualities of using this particular medium, and also appealed to the new and emergent market of literate middle class citizenry.

Bibliography

Bowen, M., William Hogarth: The Cockney’s Mirror. (D. Appleton & Company, 1936)

Gordon, I. R. F. (2003). “A Rake’s Progress.” in The Literary Encyclopedia. http://www.litencyc.com/php/sworks.php?rec=true&UID=7031 [accessed 4^th November 2006].

Waterhouse, E. (1953). Painting in Britain, 1530-1790. (London: Penguin)

Through a close analysis of The Crying Game, examine Judith Butler’s notion of the performativity of gender

There appear to be many similarities between Neil Jordan’s 1992 movie The Crying Game and Judith Butler’s theory of the performativity of gender as promulgated in her seminal book Gender Trouble, which has been one of the most hotly contested intellectual studies on feminism published in the past fifty years. Both managed to cause major controversy by turning the traditional notion of gender on its head and both invite the audience/reader to question society’s making of ‘man’, ‘woman’, ‘masculinity’ and ‘femininity’. The following analysis seeks to show how Butler’s ideas managed to permeate Jordan’s film, which is – it should be noted – a much more complex movie than a mere study of gender issues. First, however, a definition of the ‘performativity’ of gender must be attempted so as to establish a conceptual framework for the remainder of the discussion.

Judith Butler’s theory on gender should be interpreted within the broader social and political context of feminist theory that came in two distinct ‘waves’ during the 1960’s and the 1970’s. After securing the requisite political achievements gained by the advances of the first wave, the second, more radicalised wave of feminism sought to challenge historical notions of man and woman in western society, “which maintains male dominance by co?opting women and suppressing the feminine. These arguments link dominant western forms of rationality with male power and control over women and nature, which is associated with violence, oppression and destruction.”^[1]

Thus, while Butler’s views are doubtlessly revolutionary, they should also be read within this dominant feminist climate of deep?seated change that characterised the second half of the twentieth century in the West, which sought to deliberately create divisions between heterosexual men and heterosexual women in order to further the feminist cause. This is also the reason behind the alliance between radical feminism and the gay and lesbian communities, which was forged at this time and which is directly relevant to the performativity of gender as seen in The Crying Game. Butler’s views deviate from the feminist norm with regards to the way in which she formulates the idea of having to ‘perform’ the parts of man and woman in contemporary society. In this sense, she sees both masculinity and femininity as being manufactured by culture and she plants the idea that if this culture were structured along less visibly male?female lines, then the two genders would behave in a discernibly different manner. This is the idea which is used in The Crying Game to which attention must now be turned.

The Crying Game is a movie that is as much about the Troubles of the IRA as it is a film about trans?gender analysis. The plot concerns the nucleus of a small band of Irish terrorists who kidnap a British soldier (Forest Whitaker) for the purpose of exchanging him in order to secure the release of captive IRA operatives in UK jails. The gang is led by Maguire (Adrian Dunbar) and also contains Jude (Miranda Richardson) and Fergus (Stephen Rea.) It is the character of Fergus who will become the main focus of the film as first he finds himself unable to the kill the British soldier, Jody and subsequently he embarks upon discovering the dead man’s lover, Dil (Jaye Davidson) to whom he finds himself immediately attracted. This burgeoning relationship between Fergus and Dil is fraught with tension as Fergus feels tortured by guilt for the death of Jody (although Fergus lets him go, the soldier is still accidentally killed by a British tank). This tension is an essential cinematic precursor to the movie’s central plot twist, which comes as a major surprise to the viewing audience.

Before moving towards a critical appraisal of the revelation that occurs within the relationship of Dil and Fergus, mention must be made of the way in which Neil Jordan manages to exploit the traditional notions of woman in film. By picking an androgynous looking actor to play Dil, the director tricks the audience into believing a traditional heterosexual relationship between a man and a woman is about to take place – a relationship rendered tragic by the loss both characters have already suffered. This coupling, in film history, has usually seen the man seducing the woman who acts as the aesthetically beautiful centrepiece of the action.

“In the celluloid brothel of the cinema, where the merchandise may be eyed endlessly but never purchased, the tension between the beauty of the woman, which is admirable, and the denial of the sexuality which is the source of that beauty but is also immoral, reaches a perfect impasse.”^[2]

Therefore, when it slowly transpires that Dil is not yet another example of the cinematic female beauty but is in fact a man, the sense of shock is all the more pronounced. As with Butler’s idea on the performativity of gender, Jordan stops short of stating this development as a fact; instead, it is left open to conjecture as a philosophical question: does Dil’s biology mean that he is a man no matter what or does the fact that he has assumed a female role mean that he has transgressed the gender divide to become a woman in the cultural sense? This is a key line of inquiry in radical feminist ideology and one that has no direct answer. For instance, although traditionalists would argue that no?one can ever reverse the gender of their birth liberals would likewise state that gender is a construct of society and that both males and females should be freely able to choose not only their sexuality but also their gender. This is a direct descendent of Judith Butler’s Gender Trouble where the author argues the case that men and women both perform the roles of masculine and feminine without ever questioning its validity in this way.

“Gender is … a construction that regularly conceals its genesis; the tacit collective agreement to perform, produce and sustain discrete and polar genders as cultural fictions is obscured by the credibility of those productions – and the punishments that attend not agreeing to believe in them.”^[3]

Fergus’ response to the realisation that Dil is a transvestite is typically male and typical of society’s general horror at such transgressions of sexuality and gender. His first response is to punch Dil in the face and retract his previous statements of affection. He exits the scene, leaving Dil lying bloodied on the floor. Fergus’ disgust is mirrored in the shock felt by the contemporary cinema audience, which was manifested in mass protests from Christian and conformist communities when the film was released both in the UK and abroad.

The director makes sure not to over or under dramatise the revelation of Dil’s transgression of gender, preferring instead to let the remainder of the plot play out to the backdrop of the shock of the ongoing relationship between the two main characters. With the spectre of the IRA unexpectedly re?appearing towards the end of the film, the audience is transported away from the notion of the performativity of gender to see how Fergus is able to rise above his initial feeling of disgust to save Dil from prison after the shooting of Fergus’ old comrade, Jude. Interestingly, Dil is compelled to murder Jude when it transpires that she had enjoyed a sexual relationship with Jody while the soldier was in her captivity. Thus, there is no doubt that – after all that has transpired – Dil still identifies herself as a woman and is directly challenged by the more obviously feminine Jude. At this point, mention must be made of the difference between Butler’s notion of the performativity of gender and the kind of transgender concepts encapsulated in drag and cross?dressing.

“In the majority of the works that have followed in Butler’s wake, drag (as the parodic enactment of gender) is represented as something one can choose to do: the imputation is that one can be whatever type of gender one wants to be, and can perform gender in whatever way one fancies. This is what you might call a voluntarist model of identity because it assumes that it is possible to freely and consciously create one’s own identity. Whilst in many ways this voluntarist account of gender performance is in direct contrast with Butler’s notion of performativity, it is also, at least in part, a consequence of the ambiguity of Butler’s own account of the distinction between performance and performativity in Gender Trouble.”^[4]

Appropriately, Neil Jordan never alludes to whether or not Dill is voluntarily transgressing gender or whether it is a biological necessity for man to have morphed into woman. This mirrors Butler’s ambiguity and the ambiguity that pervades every aspect of the notion of crossing gender, which is one of the more intellectually challenging concepts for any society to grapple with. Ultimately, though, The Crying Game ends with a hint of the director’s views on the subject. During the final scene, which is set years later, Dil asks Fergus why he took the blame for her. Recounting an earlier scene, Fergus replies, “It’s in my nature.” This implies that there is no choice with regards to gender, sexuality and performance. We are what we are.

Conclusion

The Crying Game is a challenging film that operates on a variety of levels. Politics, race and gender are all subject to scrutiny without being dealt with in a moralistic way. Judith Butler’s notion pertaining to the performativity of gender is likewise a multifaceted study that has greatly influenced feminist ideology and has clearly infiltrated the mind of director Neil Jordan. In the final analysis, there can be no doubt that there is a strong link between the two without any simple, broad?based conclusion being put forward by either party. In both instances, it is left up to the reader and viewer to make their minds up concerning gender and the wider issue of whether it is nature that constructs our sexual being or whether it is cultural nurturing that subconsciously encourages us to play the roles of heterosexual men and women. This is a difficult sensible balancing act to maintain, yet it is also ultimately sensible as both The Crying Game and Gender Trouble arrive at the opinion that there can be no one deduction that manages to satisfy everyone. The conclusion, like the choice of gender and sexuality, must in the end be wholly subjective.

BIBLIOGRAPHY

Butler, J. (1990) Gender Trouble: Feminism and the Subversion of Identity London: Routledge

Carter, A. (1978) The Saideian Woman and the Ideology of Pornography New York: Harper & Row

Featherstone, M. (Ed.) (2000) Body Modification London: SAGE

Shaviro, S. (1993) The Cinematic Body: Theory out of Bounds, Volume 2 Minneapolis and London: University of Minnesota Press

Stallybrass, P. and White, A. (1986) The Politics and Poetics of Transgression London: Routledge

Sullivan, N. (2003) A Critical Introduction to Queer Theory Edinburgh: Edinburgh University Press

Weedon, C. (1987) Feminist Practice and Poststructuralist Theory London and New York: Blackwell

FILMS

The Crying Game (Neil Jordan; 1992)

This assignment will discuss the advantages and disadvantages of incorporation of companies. This will be discussed in relation to public and private companies and it will be concluded that the main advantageous of incorporation is and continues to be that of limited liability and separate legal personality. Other issues will discussed and the advantages and disadvantages discussed.

It is important first to point out the distinction between public and private companies, the former being those which are permitted to offer their securities to the public and the latter being those which are not so permitted. Often whether a company is public or private is taken more generally as an indication of the social and economic importance of the company, so that the public company is more tightly regulated than the private company in a number of ways, which fall outside the remit of this assignment. However, it is important to note that this difference does exist.

The fundamental attribute of corporate personality is that the corporation is a legal entity which is distinct from its members. At the end of the 19^th Century following the case of Salomon v Salomon & CO^[1] this concept was finally grasped by the courts and it was appreciated that companies have a separate legal entity, as Lord Macnaghten explained

“The company is at a law a different person altogether from the subscribers….; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers, as members, liable in any shape or form, except to the extent and in the manner provided by the Act^[2]”

As a corporation is a separate legal person its members are not personally liable for its debts^[3]. This principle also applies to obligations other than debts such as the members of the company, although members who become involved in the management of the company’s business will find that this separate legal personality does not necessarily protect them from personal liability to third parties.

If a company enters insolvent liquidation, in theory the issue undergoes a considerable change, although in practice it does not. The question becomes whether the liquidator acting on behalf of the company can seek contributions from its members so as to bring its assets up to the level needed to meet the claims from the company’s creditors. The overall result of the broad recognition by the courts of the separate legal entity of the company and of the limited liability of its members and managers is to produce at a first sight a legal regime which is very unfavourable to potential creditors of companies. However lenders often “seek to leap over the barrier created by the law of limited liability by exacting the price of the loan to the company personal guarantees of its repayment from the managers or shareholders of the company, guarantees which may be secured on the personal assets of the individuals concerned”^[4]. Legislation, whilst it has not overturned Salomon, contains an extensive list of publicity and disclosure obligations to priorities for certain classes of unsecured creditors on the winding-up of a company^[5]. Recently added to these statutory weapons are the provisions relating to the wrongful trading and the expanded provisions on the disqualification of directors, especially on grounds of unfitness.

One clear advantage of corporate personality is that it enables the property of the association to be more clearly distinguished from its members. In an unincorporated society, the property of the association is the joint property of the members. The rights of the members therein differ from their rights to their separate property since the joint property must be dealt with according to the rules of the society and no individual member can claim any particular asset. By virtue of the trust and the obvious complications can be minimised but not completely eradicated. And the complications cause particular difficulty in the case of a trading partnership both as regards the true nature of the interests of the partners and as regards claims of creditors.

On incorporation, the corporate property belongs to the company and members have no direct proprietary rights to it but merely to their “shares” in the undertaking. A change in the membership, which causes inevitable dislocation to a partnership firm, leaves the company unconcerned; the shares may be transferred but the company’s property will be untouched and no realisation or splitting up of its property will be necessary, as it will on a change in the constitution of a partnership firm. Similarly, the claims of the company’s creditors will be merely against the company’s property and the difficulties which can arise on bankruptcy of partners will not occur.

There are difficulties relating to legal actions in unincorporated associations. The problem is of practical importance with trading bodies but has been solved in the case of partnerships as they are now able to be sued or sue in the firm’s name^[6], although there are still practical difficulties in enforcing the judgement. This question does not arise with incorporated companies as they can sue or be sued in their own right.

Another advantage of a limited company is that it cannot become incapacitated by illness, mental or physical, and it does not have to have an allotted life span^[7]. This of course does not mean that the death or incapacity of its human members may not cause the company considerable embarrassment, however the vicissitudes of the flesh have no direct effect on the disembodied company, as Grcer LJ said “ a corporate body has no soul to be saved or body to be kicked.^[8]” The death of a member leaves the company unmoved: members come and go but the company can go on forever.^[9] The continuing existence of a company, irrespective of changes in its membership, is helpful in other direction also. When an individual sells his business to another, difficult questions may arise regarding the performance of existing contracts by the new proprietor^[10], the assignment of rights of a personal nature^[11], and the validity of agreements made with customers ignorant of the change of proprietorship^[12]. Similar problems may arise on a change of the constitution of a partnership^[13]. Where the business is incorporated and the sale is merely of the shares, none of these difficulties arise. The company remains the proprietor of the business, performs the existing contracts and retains the benefits of them, and enters into future agreements. The difficulties attending vicarious performance, assignments and mistaken identity do not arise.

Connected to this issue is the issue of the shares. Incorporation with the resulting separation of the business from its members greatly facilitates the transfer of the member’s interests. In the absence of limited liability the opportunity transfer is in practice very much restricted. With an incorporated company, freedom to transfer, both legally and practically, can be readily attained. The company can be incorporated with its liability limited by shares, and these shares constitute items of property which are freely transferable in the absence of express provision to the contrary, and in such a way that the transferor drops out and the transferee steps into his shoes. A partner has a proprietary interest which he can assign, but his assignment does not operate to divest him of his status or liability as a partner; it merely affords the assignee the right to receive whatever the firm distributes in respect of the assigning partners share^[14]. The assignee can be admitted into the partnership in the pace of the assignor only if the other partners agree and the assignor will not be relieved of his existing liabilities as a partner unless the creditors agree, expressly or impliedly, to release him.

Another important feature of an incorporated company is that a structure which allows for the separation of risk investment via the purchase of shares, in which many persons may participate, from the management of the company, which is delegated to a smaller and expert group of people who partly constitute and who are partly supervised by a board of directors. This concept was first explored in the United States by AA Berle and GC Means^[15] and they drew attention to the revolutionary change thus brought about in traditional conceptions of the nature of property. Today, the great bulk of large enterprise is in the hands not of individual entrepreneurs but of large public companies in which many individuals have property rights as shareholders and to the capital of which they have indirectly or directly contributed. Direct or indirect investment in companies probably constitutes the most important single item of property for most people, but whether this property brings profit to its “owners” no longer depends on their energy initiative but on that of the management from which they are divorced.

Two further advantages which must be considered are that of borrowing and taxation. The ingenuity of equity practitioners has led to the evolution of an unusual but highly beneficial type of security known as the floating charge; i.e. a charge which floats like a cloud over the whole assets from time to time falling within a generic description, but without preventing the mortgagor from disposing of those assets in the usual course of business until something occurs to cause the charge to become crystallised or fixed. This is advantageous to incorporated companies because until recently such a charge could not really apply to partnerships or other unincorporated organisation -this is because of two pieces of legislation. The first was the “reputed ownership” provision in the bankruptcy legislation which relates to individuals^[16]”. This, however under the reforms resulting from the report of the Cork Committee was repealed and not replaced in the Insolvency Act 1986. It never applied to the winding-up of companies. The second, which still remains, is that the charge, in so far as it related to chattels, would be a bill of sale within the meaning of the Bills of Sale Acts 1878 and 1882 which applies only to individuals and not to companies^[17]. Hence it would need to be registered in the Bills of Sale Registry, and, what is more important, as a mortgage bill it would need to be in the statutory form which involves specifying the chattels in detail in a schedule. Compliance with the latter requirement is impossible since in a floating charge the chattels are indeterminate and fluctuating. Therefore it can be seen that use of this form of security is in practice restricted to bodies corporate. By virtue of it the lender can obtain an effective security on “all the undertaking and assets of the company both present and future” either alone or in conjunction with a fixed charge on its land. By so doing he can place himself in a far stronger position that if he merely had the personal security of the individual traders. It therefore happens not infrequently that a business is converted into a company solely in order to enable further capital to be raised by borrowing.

Once a company reaches a certain size, the attraction of limited liability is likely to outweigh all other considerations when business people are considering in what form to carry on their activities. Investors are unlikely to be willing to put money in a company where there liability is not limited if they are to have no or little control over the running of the company and for this reason incorporation is preferable. However with small businesses, which it is feasible to give all the investors a say in management, it is likely that tax considerations play a major part in determining whether the business shall be set up in corporate form or as a partnership. In the case of small companies the investors’ return on their capital may take the form of the payment of directors’ fees rather than dividends, so that participation in the management of the company may be the means for the investor both to safeguard the investment and to earn a return on it.

This assignment has discussed the advantages and disadvantages of incorporation of companies. It can be seen that the advantages of incorporation very much depend on one company to another. For larger firms the division between the board and shareholders, transferable shares and the conferment of limited liability on the shareholders are helpful for the raising of capital. Partnerships and unincorporated organisations do not lend themselves easily to this kind of need and therefore are more favourable in this respect. There are many other issues that make incorporation favourable but it can be seen that it is, and will continue to be the fact that these organisations have limited liability that will continue to make them attractive and more advantageous than unincorporated organisations.

Bibliography

Cases

Brace v Calder (1895) 2 QB 253

Boulton v Jones (1857) 2 H & N 564

British Waggon Co v Lea (1880) 5 QBD 149

Griffith v Tower Publishing Co [1897]1 Ch 21

Rayner (Mincing Lane) Ltd v Department of Trade [1989] Ch 72

Re Noel Tedman Holding Pty Ltd (1967) QD R 561

Robson v Drummond (1831) 2 B & AD 303

Salomon v Salomon & CO [1897] AC 22 HL

Slavenburg’s Bank v International Natural Resources Ltd [1980] 1 W L R 1076

Stepney Corporation v Osofsky [1937] 3 ALL ER 289

Statutes

Bankruptcy Act 1914

Bills of Sale Acts 1878

Insolvency Act 1986

Partnership Act 1890

RSC ORD 81

Books

Berle A and Means G, (1993) “The Modern Corporation and Private Property” New York

Davies P, (2003) “Gower and Davies Principles of Modern Company Law”, Seventh Edition, Thomson Sweet and Maxwell

Dobson P, (2003) “Commercial Law”, Third Edition, London Cavendish

Morse G, (2005) “Charlesworth Company Law”, Seventeenth Edition, London Sweet and Maxwell

Smith and Kennan, (2005) “Smith and Keenans Company Law , Thirteenth Edition, Harlow Press/Longman

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