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In Sidaway v Board of Governors of the Bethlehem Royal Hospital [1984] 1 ALL ER 1018 Dunn LJ stated in the Court of Appeal that ‘the concept of informed consent plays no part in English law’ (per Dunn LJ at 1030). Is this still an accurate reflection of the law?

In Sidaway, the plaintiff brought an action against the hospital and surgeon who performed an operation on her back. The operation she had undergone carried an inherent risk to her spinal column and nerve roots. Even if it was performed perfectly, there was still about a two per cent chance that she would suffer injury to her spinal column. As it turned out, the operation was performed correctly, but nevertheless, the plaintiff suffered injury to her spinal column. She brought an action for negligence based solely on the ground that she had not been warned of the inherent risks of the procedure and that she would not have consented to the operation had she been so informed. It was found in fact at the trial that the surgeon failed to inform the plaintiff that the operation was not necessary and was actually optional. It was also found that while she had been warned of the risk of damage to the nerve roots, she had not been warned of the less likely, but potentially more serious, risk to the spinal column. It was also accepted that had the plaintiff been aware of these facts she would not have undergone the surgery. However, the trial judge also found that the course the surgeon had taken was backed by a ‘responsible body of medical opinion’ and therefore, applying the test formulated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, the standard of care that the surgeon owed the patient had been discharged. This ruling was upheld by the Court of Appeal and made its way to the House of Lords, where Dunn LJ’s quotation in the title is taken from.

The House of Lords, by applying the Bolam test, also upheld the judgment on the ground that if a responsible body of medical opinion supported a course of action, this was sufficient to discharge the duty of care owed to a patient by a doctor. However, the reasoning in the case on the issue of informed consent is very enlightening.

The first point to note is that Lord Scarman was the sole dissenting opinion in the case. Lord Scarman was of the opinion that,

‘the doctor’s duty arises from his patient’s rights. If one considers the scope of the doctor’s duty by beginning with the right of the patient to make his own decision whether he will or will not undergo the treatment proposed, the right to be informed of significant risk and the doctor’s corresponding duty are easy to understand: for the proper implementation of the right requires that the doctor be under a duty to inform his patient of the material risks inherent in the treatment.’(p. 888)

Lord Scarman’s conclusion therefore was that the law ‘recognizes a right of a patient of sound understanding to be warned of material risks save in [exceptional circumstances].

This was not however the view of the other judges. Lord Bridge of Harwich for example, gave three reasons why the imposition of such a duty on patients would not be practical under English law. The first is that it would fail to take into account the reality of the doctor patient relationship in many situations. The doctor bases his decision to follow a certain course of treatment on a variety of factors and it would be impractical to expect him to educate the patient of the full implications of all of these factors. In fact, doing so may increase the trauma and stress of some patients. Secondly, the question of whether disclosure of information should have been made in any case would be best answered by reference to expert medical opinion on a case by case basis and not as a general rule applicable to all cases. Thirdly, Lord Bridge thought it would be impossible in practice for a court to apply a subjective test to the question of what was a ‘material risk’ that a patient should have been informed of, and what was an immaterial risk that would not require disclosure. This subjective test being one put forward in the American case of Canterbury v Spence (1972) 464 F. 2d 772. The statement of Dunn LJ quoted above was firmly upheld in the House of Lords.

Sidaway however, was a case decided in 1984 and 1985. Massive advancements have been made both in the standard of medical care provided by doctors, and the requirements of the law in this field, in the intervening years. Therefore, it falls to be discussed, does the principal in Sidaway still apply?

Perhaps the best starting place for such a discussion would be to follow Lord Scarman’s approach, quoted above, of looking at the right of the patient. The first right that all of us have, dating back to the early sources of the common law, is the right to bodily integrity. This right is so ingrained in our law that it can rarely be violated, even with the victim’s consent. As Swift J stated in the case of R v Donovan [1934] 2 KB 498 at 507, when it comes to violation of the principle of bodily integrity, ‘consent is immaterial.’ Furthermore, for the most part, the motive of the violator is often irrelevant and even the good intentions of a doctor will not excuse a violation of the principle. In the American case of Schloendorff v Society of New York Hospital 105 NE 92 (NY, 1914) Cardozo J put it clearly when he said that ‘a surgeon who performs an operation without the patient’s consent commits an assault,’ This position has been affirmed in England in A-G’s Reference (No 6 of 1980) [1981] QB 715 where it was clearly asserted that it is the patient’s consent alone, and not the good motives of the doctor or any other public interest that make a doctor’s interference with the patient lawful.

However, absolute as the twin principles of bodily integrity and patient consent appear, there are a number of exceptions in practice. The law distinguishes involuntary treatment, that is treatment that the patient does not consent to, from non-voluntary treatment, that is treatment that the patient is unable to consent to because he is for example unconscious or otherwise unable to provide valid consent. One justification for non-voluntary treatment is that the patient is presumed to consent, as it is highly likely that he would have done so had he been conscious. This approach however, does not have universal academic support (Mitchell, 1995). The more favoured justification comes from the law of necessity, which recognizes the need to act in an emergency, despite the fact that the necessary consent has not been obtained (Skegg, 1974). The requirements for this exception to apply are that the patient is unable to consent, that there is no one capable of consenting on his behalf, that there is genuine urgency and that there are no known objections to treatment from the patient (In re Boyd, 403 A2d 744 (DC 1979)). The basic approach has been summed up succinctly by Lord Devlin (1962: p. 90) where he said ‘The Good Samaritan is a character unesteemed in English law.’ The principle has been developed further by the Canadian Supreme Court which has developed a distinction between procedures which are necessary and procedures which are convenient. While a doctor may be justified in performing a necessary procedure without consent, to perform a merely convenient one would be beyond what he is authorized to do.

Two colourful Canadian cases illustrate the distinction well. The first, Marhsall v Curry [1933] 3 DLR 260, concerns a case where a doctor removed a testicle during the course of a hernia operation. While the patient was naturally dismayed to wake up to the discovery, the court held that the doctor had been justified in acting as he had because of the nature of the patient’s condition and the fact that the operation could not have been regarded as successful but for the doctor’s decision. This case is contrasted with that of Murray v McMurchy [1949] 2 DLR 442 in which the doctor tied a defective fallopian tube during the course of a caesarian section. This was held to have been convenient as the woman would have been at risk, had she undergone another pregnancy, and a separate operation to tie the tube could be avoided by performing the procedure now. However, the court found that the operation was not necessary in the legal sense and therefore a breach of the patient’s right. The relevance of these cases to English law was affirmed by the Court of Appeal in Devi v West Midland Regional Health Authority [1981] CA 491 which followed the Canadian courts reasoning.

It should also be clearly noted that the consent of the patient, and the principle of patient autonomy takes precedence over any arguments of medical paternalism. This fact was stated in the two highly publicized and controversial cases of Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 and Airedale NHS Trust v Bland [1993] 1 All ER 821.

Also, where a doctor acts without any consent at all, law sees this situation as appropriate for a charge of battery. This will be the case where a doctor proceeds to act on a patient, despite the fact that the patient has expressly refused the treatment (Molloy v Hop Sang [1935] 1 WWR 714). It is also the case where the doctor proceeds to provide a patient with treatment that is materially different from the treatment that the patient consented to. This was the case in Schweizer v Central Hospital (1974) 53 DLR (3D) 494 where a patient consented to a toe operation, and the surgeon subsequently operated on the patient’s back.

This is therefore. The starting position that led Lord Scarman to dissent from his colleagues in the Sidaway judgment. It is clear that the principle of bodily integrity is given the highest level of respect and protection under English law. Lord Scarman was saying that in order for a patient to exercise and enforce this right, he had to be informed of the details, risks and nature of a medical procedure. Further to this, Lord Scarman also was of the opinion that if a patient gave his consent without being properly informed of the risks and nature of the procedure he was consenting to, then this consent was in an important sense defective. This is the nature of the principle of informed consent, and requires that in order for a patient’s consent to be effective, and in order for a doctor to be able to properly act on it, the patient must have understood what he was consenting to.

Sidaway was clearly a decision that rejected the concept of informed consent. This was recognized in Canada where the courts expressly refused to follow the decision and instead opted for upholding the informed consent requirement. One example of many is that of Haughian v Paine [1987] 4 WWR 97 in which the Saskatchewan Court of Appeal decided not to follow Sidaway and instead ruled that a doctor had been negligent in performing an operation for which the patient had not been told the consequences of undergoing no treatment at all. This case followed quickly on the heals of Sidaway.

However, as late as 1997, academics in England were still confidently asserting that “English law does not recognize the doctrine of informed consent” (Grundy, 1997: p. 211). However, by this time, the attention had shifted to another principle in English law that was providing patient’s with a choice. This principle can also be traced to the Sidaway decision, the very case that rejected the application of informed consent in England. In his dissenting judgment, Lord Scarman said (at p. 884),

‘Unless statute has intervened to restrict the range of judge-made law, the common law enables the judges, when faced with a situation where a right recognized by the law is not adequately protected, either to extend existing principles to cover the situation or to apply an existing remedy to redress the injustice.’

It is this principle of the law that has been leading to significant inroads being created into the Bolam test in the context of the information given to a patient to enable him or her to make a decision. The view of Lord Bridge that it would be impractical to expect the doctor to explain absolutely everything to the patient, has in fact been flipped on its head, and the prevailing sentiment now seems to be that it would be unreasonable for the patient to explain the entire circumstances of his life, medical, social, economic and otherwise, that would be necessary to make a truly informed decision and that therefore, it is the patient who is in a far better position to make the best decision based on the information available.

Even in Sidaway a pure Bolam approach was being compromised. Both Lord Bridge and Lord Keith were of the opinion that,

‘When questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor’s duty must, in my opinion, be to answer both truthfully and as fully as the question requires’ (per Lord Bridge at 898).

If one was to think about this statement in practice, it is in fact a lot more significant a compromise than it may seem. In reality, it is extremely likely that the vast majority of patients would ask their doctor a large number of questions concerning the risks and relative benefits of different courses. It would be a rare patient these days who would see a doctor, hear of a course of recommended treatment, and then accept it unquestioningly. The easy availability of medical information, and access to education and awareness of relevant issues has been promoted in the last couple of decades to the standard where patients are likely to be highly informed on their conditions and the options available to them, and they will certainly expect to engage in a frank discussion with their doctor on the courses of treatment available. It could almost be assumed, that in cases where a patient did not ask about the risks of a procedure of his doctor, either he had sufficient knowledge and consented to the doctor’s approach, or abrogated his right to further information in favour of accepting the doctor’s assessment.

The second inroad contained in Sidaway itself was asserted by Lords Bridge, Templeman and Keith to the effect that (per Lord Bridge at 900),

‘Even in a case where, as here, no expert witness in the relevant medical field contends the non-disclosure as being in conflict with accepted and responsible medical practice, I am of the opinion that the Judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it.’

Combined with the previously mentioned inroad, the two conditions together provide significant safeguards to the patient’s right to meaningfully consent. Even if the patient fails to touch on serious issues and risks in his own research, or conversation with the doctor, the doctor is also under an obligation to raise of his own initiative, particular risk that are obviously necessary for ‘an informed choice on the part of the patient.’ Without actually using the phrase, the standard that the court was setting out in Sidaway was in fact starting to sound quite close to the concept of informed consent, at least for the vast majority of cases, in practice.

As identified by Gurndy (1997: p. 213) the approach adopted in Sidaway is in fact a limited form of informed consent, ‘for it acknowledges that:

a patient’s right of decision should be recognized and respected;
where the patient undergoes an operation involving a substantial risk of grave adverse consequences a doctor failing to disclose such risk would be negligent save for circumstances where there was some cogent clinical reason why the patient should not be informed.’

Since Sidaway therefore, there have been a number of cases highlighting the importance of the patient’s right to know, and putting the Bolam test into a subsidiary role as merely one of a number of factors that should be taken into account. In Blyth v Bloomsbury Health Authority [1993] 4 Med LR 151 (per Kerr LJ at 157) it was said,

‘The question of what a plaintiff should be told in answer to a general enquiry cannot be divorced from the Bolam test any more than when no such enquiry is made. In both cases the answer must depend upon the circumstances, the nature of the enquiry, the nature of the information which is available, its reliability, relevance, the condition of the patient and so forth.’

Without creating an express right to all information that is available, the court was saying that Bolam is just one of the factors that are relevant in questions of this type. In Smith v Turnbirdge Wells Health Authority [1994] 5 Med LR 334 (per Mr. Justice Morland at 399) the court went against Bolam when it said,

‘By 1988 although some surgeons may still not have been warning patients similar in situation to the plaintiff of the risk of impotence, that omission was neither reasonable nor responsible.’

Therefore, despite passing the Bolam test, the defendants failed on the grounds of a reasonable and responsible test. In Moyes v Lothian Health Board [1990] 1 Med LR 463 the court found that the overarching test was ‘whether the doctor has shown reasonable care for the safety of his patient.’ In Abbas v Kenney [1996] 7 Med LR 47 the court stated that

‘A doctor has a duty to explain what he intends to do and the implications of what he is going to do. It must be explained in such a way that the patient can understand.’

Therefore, to conclude, it is possible to say that while the courts purport to be applying the Bolam test, as set out in Sidaway, the fact of the matter is that they are actually operating on principles much closer to a practical understanding of a modified form of informed consent. There are numerous cases that show that the mere fact that a body of professional opinion would not have disclosed certain information will not be enough for a doctor to avoid a finding of negligence. At the same time, there are numerous judicial statements to the effect that doctors must inform their patients of the basic information necessary in order for them to exercise their right to consent. Therefore, while in theory there is no doctrine of informed consent in English law, the practical approach, stemming from Sidaway and subsequent practice, is that a modified doctrine of informed consent does prevail in English law, and any doctors who ignored this fact would be standing on very shaky legal ground.

Reference List

Texts and Articles

Beauchamp & Childress, Principles of Biomedical Ethics, 3^rd ed. 1990, Cambridge

Buchanan & Brock, Deciding for Others, 1989, London

Campbell, Moral Dilemmas in Medicine, 3^rd ed. 1984, Oxford University Press

Castiglioni, A history of Medicine, trans and ed E B Krunghaar, 2^nd ed. 1947

Fulford, Moral Theory and Medical Practice, 1989, Oxford

Grundy, P., Bolam, Sidaway and the Unrecognised Doctrine of Informed Consent: A Fresh Approach, (1997) JPIL, Dec. 211

Lord Devlin, Samples in Law Making, (1962) Oxford University Press, Oxford

Mason & McCall Smith, Law and Medical Ethics, 4^th ed. 1994, Butterowrths, London

Mitchell, J., A Fundamental Problem of Consent (1995) 310 BMJ 43

Skegg, A., A Justification for Medical Procedures Performed without Consent, (19740 90 LQR 512

Cases

Abbas v Kenney [1996] 7 Med LR 47

A-G’s Reference (No 6 of 1980) [1981] QB 715

Airedale NHS Trust v Bland [1993] 1 All ER 821

Blyth v Bloomsbury Health Authority [1993] 4 Med LR 151

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Canterbury v Spence (1972) 464 F. 2d 772

Devi v West Midland Regional Health Authority [1981] CA 491

Haughian v Paine [1987] 4 WWR 97

In re Boyd, 403 A2d 744 (DC 1979)

Marhsall v Curry [1933] 3 DLR 260

Molloy v Hop Sang [1935] 1 WWR 714

Moyes v Lothian Health Board [1990] 1 Med LR 463

Murray v McMurchy [1949] 2 DLR 442

R v Donovan [1934] 2 KB 498

Re T (adult: refusal of medical treatment) [1992] 4 All ER 649

Schloendorff v Society of New York Hospital 105 NE 92 (NY, 1914)

Schweizer v Central Hospital (1974) 53 DLR (3D) 494

Sidaway v Board of Governors of the Bethlehem Royal Hospital [1984] 1 ALL ER 1018

Smith v Turnbirdge Wells Health Authority [1994] 5 Med LR 334

“The introduction of identity cards in the UK infringes upon our human rights and civil liberties whilst actually doing very little to counter crime and terrorism” – Discuss

Contents –

Abstract

Introduction

Chapter One – Surveillance as a means of crime prevention & counter terrorism

1.1 Is surveillance needed for crime prevention?

1.2 Is surveillance needed for counter terrorism?

Chapter Two – Increased surveillance – the viability of data retention

2.1 Data retention and identity cards

2.2 Is data retention a positive thing?

2.3 The scope of data retention laws

Chapter Three – Has the introduction of the identity cards scheme served to breach individual human rights and civil liberties regarding privacy in the same way as other forms of surveillance?

3.1 The right to personal privacy

3.2 Are human rights and civil liberties effectively recognised domestically?

3.3 How far is the right to personal privacy recognised in law?

3.4 How does the ICA 2006 fit into understanding human rights and civil liberties?

Conclusion

Bibliography

The aim of this study is to consider whether the introduction of identity cards in the UK would indeed infringe upon our human rights and civil liberties, whilst also looking to determine whether it would actually be an effective way of combating crime and terrorism. Therefore, this paper will look to consider the enactment of the Identity Cards Act (‘ICA’) 2006 and the problems that are likely to arise from the introduction of the proposed scheme. Then, it will also be necessary to consider the background to the enactment of the ICA 2006 by putting this development into context with a consideration of Closed Circuit Television (‘CCTV’) and the development of data retention surveillance techniques used to gather information about people with the aim to prevent crime and counter terrorism.

However, this paper will also look to recognise the legal reasoning used to justify this kind of surveillance and information gathering that, although contrary to the recognition of the human rights and civil liberties of individuals, is considered necessary to guard the interest of society as a whole against the threat of terrorism and serious crime. But, at the same time, this paper will also recognise this kind of surveillance may actually be doing very little to counter terrorism and serious crime and is not only breaching people’s recognised human rights and civil liberties, but also criminalizing the population and breaking the law in the process. Then, finally, in summation it will be necessary to look to conclude with a balanced and logical overview of this discussion effectively derived from an understanding of the issues covered to present a reasoned view regarding this issue.

At the end of 2006, legislation was passed domestically in this country in relation to the introduction of identity cards throughout the UK in the form of the ICA 2006 as a means of crime prevention and counter terrorism. But, interestingly, in spite of its apparently noble intentions, the ICA 2006 is seen by many as only ‘enabling legislation’ that merely provides the legal framework around which the scheme of identity cards is to be developed and it does not purport to provide details of every aspect of the scheme’s overall operation^[1]. This is because the Act itself proposed the use of biometric identity cards^[2] to establish and maintain a database of information called the National Identity Register (‘NIR’) on all individuals currently residing within the UK in support of ongoing efforts to help prevent terrorism or serious crimes from occurring^[3] by allowing for an easy means to ascertain and prove an individual’s identity^[4]. Therefore, the enactment of this legislation meant both private and personal companies could access this register to confirm an individual’s identity or simply check the accuracy of their information.

However, this policy is not without its problems. This is because whilst sections 19 and 23 of the ICA 2006 only permit access to records without consent if it is in the interests of national security or for purposes connected with the prevention or detection of crime, the legislation allows for information to be added without the individuals’ knowledge with the aim of eventually having fifty pieces of an individual’s personal information on their card that would then be stored on the aforementioned database with the NIR^[5]. But despite the fact many critics argue the NIR will allow the government to monitor and record almost every aspect of a person’s life, almost all of the information listed in Schedule 1 of the ICA 2006 as being required that includes signature, photograph from a passport, name and address (both current and previous), date of birth and national insurance number for this purpose is already in the government’s possession and everyone has the right to see what information is held about them.

Nevertheless, there is a fear that ‘hackers’ are bound to attempt to gain access to the NIR database in the same way as in the US, in April 2005, when it was reported Reed Elsevier may have accidentally released the personal information of 310,000 US citizens during 59 separate criminal incidents^[6]. It is perhaps little wonder then that the scheme to be developed under the ICA 2006 has led to a great deal of criticism from various organisations. Economists, in particular, have argued that such a scheme would be excessively expensive for what they believe to be somewhat limited results in view of the fact that whilst government estimates have put the cost of the scheme’s introduction alone at around ?6 billion pounds^[7], a group of analysts at the London School of Economics consider the figure to be closer to ?18 billion that must ultimately come out of the public’s pocket through taxation^[8].

Therefore, whilst the use of identity cards brought about by the enactment of the ICA 2006 could be considered the latest advancement of surveillance technology with the legitimate aim of preventing crime and counter terrorism, question marks remain over whether this kind of policy is an acceptable tool in view of the need to recognise individual human rights and civil liberties^[9]. But this is not the first time that the legitimacy of surveillance has been called into question, despite its aims to prevent crime and counter terrorism, so it is necessary to look to consider whether the use of this kind of surveillance technology has achieved anything in this regard.

“Every man should know that his conversations, his correspondence, and his personal life, are indeed private.” Lyndon B Johnson 1908-1973 – President of the United States of America

In spite of Lyndon B. Johnson’s view ostensibly in support of Mill^[10], the use of surveillance techniques has become increasingly widespread with the passing of time because technology in this area has advanced at such a pace that even the public at large is becoming ever more aware that surveillance no longer simply refers to the work of spies in Ian Fleming novels. The word itself in French literally means ‘watching over’^[11] and, in this context, refers to all forms of observation or monitoring of another for public or private purposes. Now, however, most people are aware such techniques are used by law enforcement agencies, business and even private individual so as to gain useful information in relation to the activities of suspected criminals and terrorists where a threat is perceived leading to an eventual arrest where it is warranted^[12]. In particular they are usually most commonly aware of the use of CCTV cameras on buildings and in shops. But the use of identity cards is just another means of surveillance as its production and use will effectively act like a form of tracking whereby the authorities and private and public organisations will gain yet another insight into the private lives of individuals by creating a verifiable ‘document trail’ that the authorities can follow.

1.1 Is surveillance needed for crime prevention?

The UK leads the world in the concentration of public surveillance devices to people^[13]. This is because, about ten years ago, the UK government used ?150 million each year to develop a Closed-Circuit Television (‘CCTV’) network around the country^[14] so that the industry grew exponentially throughout the 1990’s so, by 2003, at least two and a half million cameras could be found in this country^[15] that continues to increase at around 20% per year^[16]. The ‘net effect’ is substantial. It is widely believed everyone in London is caught on camera at least three hundred times each day^[17] and very often these cameras do not just watch and record us, but also use facial recognition software to scan subjects against a criminal database^[18].

Although statistical evidence is somewhat limited in relation to the effectiveness of surveillance technology in view of the fact there is usually much more to crime prevention and counter terrorism^[19], the authorities downplay this negative element and emphasise the positive where a security issue of national significance is resolved. Such a view is effectively illustrated by the fact whilst the police review of CCTV tapes played a significant role in identifying a suspected terrorist handler involved in the bombing of King’s Cross in July 2005^[20], there remains a prevailing view that, if anything, crime levels have stayed the same or even increased despite the widespread installation of CCTV cameras.

National statistics have shown that, whilst around three quarters of the Home Office Crime Prevention budget has generally spent on CCTV, a comprehensive review has revealed the overall reduction in crime was only around 5% by 2002^[21] and has continued to make small incremental reductions nationally ever since^[22]. But as a stark mark of the success of CCTV in preventing crime, a parallel systematic review found that street lighting saw a reduction in crime of 20%, whilst CCTV cameras usefulness is then further marked against because it is understood that only around 3% of all street robberies in London are solved using CCTV footage^[23].

Interestingly, however, in Portsmouth the City Council released crime statistics for the first three months of 2008 that showed that of 1384 recorded incidents this led to 346 arrests that were recorded by the network of 172 CCTV cameras in Portsmouth and marked this out as mark of their usefulness as crime solving tool^[24], whilst, in Newham, police claimed an 11% drop in assaults, a 49% drop in burglary, and a 44% drop in criminal damage^[25] where cameras were installed^[26]. However, as well as possibly being merely an aberration in our understanding of the overall usefulness of CCTV cameras and surveillance technology as a whole, the source of the statistics is a branch of government. Therefore, unfortunately, this may mean the results have been embellished to present CCTV as being a good use of public money and, even where this is not the case, the police may have made the same number of arrests anyway so that it is somewhat surprising that the cameras have such support to enforce the law^[27].

1.2 Is surveillance needed for counter terrorism?

However, since the tragic events of 9/11 in the US, such action is also justified because it is arguable this led to the establishment of a renewed approach to surveillance in the interests of national and international security across the world. Therefore, 9/11 effectively served to reveal terrorist groups had organised themselves ‘transnationally’ – making it harder to trace them using traditional surveillance techniques^[28]. As a result, whereas in the past, terrorist groups could be readily categorised by reference to territory, this is no longer the case because, organised on a global scale, these loosely affiliated ‘cells’ can operate simultaneously in various States. This is because they are not unified by a single vertical command but horizontally^[29] by using modern communication and transportation technology, whilst the integration of financial markets also facilitates their mobility and range of targets without claiming a particular territory as ‘home’^[30].

On this basis, globally, countries realised they had a shared interest in enhancing international co-operation to fight terrorism because of the fear groups may be in possession of non-conventional weapons – such as biological, chemical and nuclear^[31]. Therefore, the international community must work together because such a threat cannot be vanquished by single States alone^[32], as the UN recognises certain States being unable or unwilling to prevent or stop the traffic of such weapons means “the ability of non-State actors to traffic in nuclear material and technology is aided by ineffective State control of borders and transit through weak States”^[33]. Clearly, the international community must hold together to find effective solutions because, although 9/11 undoubtedly showed the world that even the leading democracy was not safe from terrorist attacks.

Whereas in the past a series of diplomatic, economic and financial measures nationally to fight terrorist structures^[34], to multiply the effect of such measures, States agreed to co-operate internationally by using treaty law with around a dozen multilateral conventions on anti- and counter-terrorism^[35]. Therefore, in theory, no terrorist activity would go unpunished^[36]. But the UN has struggled since its inception to formulate an effective response. On the one hand, it has provided a solid international legal framework for combating terrorism via the adoption of terrorism-related treaties by the General Assembly and UN agencies. But, on the other hand, the UN has been unable to reach agreement on a definition of terrorism that outlaws all indiscriminate attacks against civilians and circumvents the need to recognise the human rights and civil liberties of the public at large, so more than twenty different parts of the UN system deal with terrorism in one form or another^[37].

However, in Europe it was not until the 2004 train bombings in Madrid that the EU looked to take significant action to counter terrorism and prevent serious crime. This is because those investigating the attacks in Madrid discovered telecommunications played a significant role in planning of the attacks because they were co-ordinated by mobile phone and via the Internet. Unfortunately, however, at the time of the attacks the Spanish authorities had only limited access to help to telecommunications networks in order to further their investigations when more traditional methods of surveillance associated with the aforementioned use of CCTV were somewhat lacking^[38]. This is because with the advancement of technology in this area, traditional surveillance has been made somewhat redundant by the use of Internet so that, in order to be able to effectively prevent serious crime and counter terrorism in the modern age, there is a need to utilise data retention technology.

Chapter Two – Increased surveillance – the viability of data retention

2.1 Data retention and identity cards

On this basis, the original justification for the ICA 2006 identity cards scheme was the supposed need to combat the serious problems of illegal working and identity fraud. This is because the government estimated identity fraud amounted to a ?1.3 billion annual loss to the UK economy^[39], and the government’s first consultation paper in this area specifically eschewed many of the claims for identity cards that some other advocates suggest they would bring – such as combating terrorism, benefit fraud and crime more generally^[40]. However, the draft legislation clearly presented the identity card as a device with which to combat terrorism, whilst the 2003 government’s white paper^[41] emphasised the use of identity cards as an effective tool. According to Privacy International, government ministers in the UK have argued in broadcast interviews that, although the 2001 New York and 2004 Madrid^[42] atrocities had been committed by people with valid US documents and Spanish identity cards respectively, many other terrorists use false identities and they also claimed the quality of the database underpinning the British scheme would be much higher than the Spanish.

2.2 Is data retention a positive thing?

Nevertheless, aside from the more secure nature of the identity cards scheme proposed in the UK under the ICA 2006, this kind of data retention has previously proved to be a very positive thing that has served to enhance the lives of those living within our society. As most people are aware, such technology is already being used in the form of services that text details of the closest restaurant based on a mobile phone location when your hungry, or help to pick an exit at the next roundabout when you are lost can be very useful. But any retention of collected data is also very negative because the advantages of technology come at a price, since one person’s ‘enhanced information’ can invade another’s privacy^[43]. This is because an individual’s right privacy is becoming increasingly susceptible to the advancement of technology with the introduction of ‘wiretaps’, biometrics, and video surveillance cameras all each having the potential to erode privacy^[44] in the same way as identification cards, whilst digital interactive television technology may even soon tell advertisers exactly which programs people view in their homes^[45].

Therefore, such advancements are clearly both beneficial and frightening^[46]. This is because it is commonly understood that no modern technology derived from the development of telecommunications poses a greater threat to privacy than the Internet^[47] by allowing researchers to collect data much more cheaply and efficiently^[48] because what once took a great many days hard labour can now be accomplished with a keystroke^[49]. But it is also important to appreciate that the remit of the Data Retention Directive^[50] effectively allows EU Member States to synchronise their laws so all telephony companies and ISP companies within each and every EU Member State are obliged to retain details on all electronic communications for up to two years for the purpose of investigating, detecting and prosecuting serious crimes^[51].

2.3 The scope of data retention laws

The main categories of data ‘generated and processed’ to be retained under the Data Retention Directive regarding communications are the retention of data to – (a) trace and identify its source (e.g. caller); b) identify its destination (e.g. number dialled); (c) identify its date, time and duration; (d) identify its type (i.e. network or service used); (e) identify equipment (i.e. means); (f) identify that equipments location; and (g) regarding unsuccessful calls^[52]. But this is somewhat controversial because ‘unsuccessful calls’ occur where a telephone call has successfully connected, but has not been answered^[53]. However, whilst no data regarding the content of the communications is to be retained^[54], EU Member States should also ensure data’s security is respected as a reflection of equivalent provisions for the protection of personal data in the Data Protection Directive^[55]. This is because, through measures to protect data against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure^[56] of data is accessible by authorised personnel^[57].

As part of this process, EU Member States must also have measures in place to ensure any criminal access to or transfer of data retained under the Data Retention Directive is punishable by effective penalties^[58]. Therefore, the Data Retention Directive provides only data retained should be provided to the ‘competent national authorities’ in ‘specific cases’^[59], but fails to recognise which authorities are likely to be competent and the reasons why such data may be accessed. This effectively means this could lead to uneven access to data across the EU because there is no definition of ‘specifically authorised personnel’ or ‘law enforcement authorities’, but Article 9 recognises each Member State must designate one or more public authorities to be responsible for monitoring the application of the Directive regarding security of stored data.

Therefore, in the UK, the Home Office has looked to publish a set of draft Regulations in the form of the Data Retention (EC Directive) Regulations (‘Regulations’)^[60] to effectively implement the Data Retention Directive’s nature and scope^[61]. But the Regulations only looked to address the retention of certain call data by telephony companies because EU Member States can delay the Data Retention Directive’s implementation regarding traffic data for an additional 18 months until March of 2009^[62]. Nevertheless, even before they have been implemented, the UK Regulations also nothing to allay the fears raised by human rights’ advocates regarding the EU’s Data Retention Directive because the Regulations remain as unspecific and unrestrictive as the Directive. However, domestically, the authorities have “a great deal of experience with the retention of traditional communications data” because they “have been working with the industry to ensure the retention of this data since 2003, when Parliament first approved the code of practice for the voluntary retention of communications data under Part 11 of the Anti-Terrorism, Crime and Security Act 2001”^[63].

Nevertheless, whilst the retention of data was voluntary under the Anti-Terrorism, Crime and Security Act (‘ATCSA’) 2001, because it was made in response to the terrorist attacks of 9/11, its voluntary code has served as the foundation for establishing a practical framework for the enforced retention of communications data so the draft regulations provide the next step towards a mandatory framework^[64]. Such a view was supported by the fact that the EU set a high global standard in data privacy protection when it forged its Data Protection Directive^[65], which became effective in October 1998^[66], and created such a rigorous legislative approach to privacy^[67]. But the ATCSA 2001 was then amended so that the purpose of such retention became “(a) for the purpose of safeguarding national security; or (b) for the purposes of prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security”^[68] so the access would then be just for limited purposes.

Therefore, it is important to recognise that the UK’s Regulations have established provisions to continue with the policy of reimbursing public communications providers their expenditure from adjusting their business practices to comply with the Government’s requirements for the retention of communications data. But the interception of communications and the obtaining and disclosure of data relating to them is currently regulated by the Regulation of Investigatory Powers Act (‘RIPA’) 2000 because section 21 recognises communications data does not include the contents of the communications, but that, in the interests of national security, they may still obtain it. Consequently, the Data Retention Directive will effectively serve to augment RIPA 2000 that does not currently require the specific retention of data in advance, but the police are able to serve ‘section 22’ (‘S22’) telecommunication companies within the industry for access to the data that they retain.

Accordingly, whilst the RIPA 2000 will only permit the interception of communications in the UK by defined bodies in specified circumstances to protect individuals’ privacy, the longer the data retention period, the greater the period of access that will provided to the authorities in the interests of security^[69]. Nevertheless, ostensibly, it is to be appreciated that the RIPA 2000 is designed “to ensure that the relevant investigatory powers are used in accordance with human rights”, since it extends the legal regulation of interceptions to cover private networks that are “attached, directly or indirectly … to a public telecommunications system”, and includes “anything comprising speech, music, sounds, visual images or data of any description”. Therefore, a criminal offence is not committed in the UK if the controller of a private network intercepts a communication in the course of its transmission, but section 1(3) provides that interceptions “without lawful authority” are still actionable under the remit provided for by the HRA 1998 that is discussed below^[70].

On the basis of this understanding of data retention laws discussed in the previous chapter, it is also important to look to consider whether the scheme for identity cards proposed under the ICA 2006 based on personal data retention as a means of identification will serve to violate the recognition of individual human rights and civil liberties. This is because whilst it would clearly be hard to argue using surveillance technology to gain solid evidence for the purposes of preventing serious crime and encouraging counter terrorism is a bad thing, there is an all too prevalent need within the current climate for the striking of a balance between maintaining national security and unnecessarily invading an individual’s privacy.

In spite of their legitimate aims, the introduction of identity cards in the UK could be considered to be just the latest step in the government’s efforts to encourage crime prevention and counter terrorism at the expense of the individual rights and freedoms. This is because, in the same way as other advancements in surveillance technology, identity cards are also not without their problems. There is a prevailing feeling the use of identity cards across the nation will serve to breach individual human rights and civil liberties in the same way as many other forms of surveillance. In particular, it has been argued the use of identity cards will serve to breach individual rights to privacy because of the nature of the personal data that will be stored and retained within them and on the NIR database^[71].

Therefore, although there is little doubt the use of such technology for information gathering is very advantageous to help the government, the police, and even everyday people, question marks have arisen in relation to just how far surveillance technology should be used to monitor the public. Consequently, there is an argument those who use surveillance for the purposes of information gathering should take on certain responsibilities they must then uphold in view of the implementation of the ECHR into the UK via the HRA 1998. But in some ways technological advances have arguably hindered the recognition of human rights and civil liberties as much as they have helped crime prevention and counter terrorism by allowing the authorities an unprecedented look into people’s lives.

3.1 The right to personal privacy

The right to personal privacy is an important right, however, it is all too easily taken for granted because, like freedom, no one really appreciates its value until it is threatened, as in this case with the enactment of the ICA^[72], so that in the wake of technological advancement privacy has all too easily become an afterthought in social advancement^[73]. This is a significant failing. The right to privacy should not merely be limited to the idea an individual may live their personal life how they choose. It is also meant to include the right to establish and develop relationships with other people for the development and fulfilment of one’s own personality^[74], whilst sexual relations are the most intimate aspect of the right to a private life^[75]. However, the right to a private life also covers an individual’s physical and moral integrity^[76], encompassing protection against compulsory physical interventions and treatments^[77]. Moreover, in spite of the

“In a large number of situations both insurers and the courts recognise that the doctrine of subrogation in insurance may have unfortunate results and is wasteful. It is clear that the doctrine no longer serves any useful purpose”. Discuss.

INTRODUCTION

It has been recognised that fundamentally it is tort law that ensures compensation for loss in terms of compensation within the concept of the tortfeasor restoring loss through damages being paid to the person wronged^[1]. In terms of insurance this liability can be revealed through the idea behind third party liability, the first party being the insured, the second party being the insurer, and the third party relating to any potential for restitution needing to be paid to anybody not included within the terms of the contract who might have met some sort of loss through the actions of the insured person, eventually becoming incorporated into the law of liability.

Meanwhile, subrogation^[2] has been defined as “the substitution^[3] of one person in place of another with reference to a lawful claim”^[4] or, more simply, the recognition in law that a lawful claim may be pursued by a third party in accordance with the principles of substitution^[5]. Various types of subrogation are recognised, revealed as legal, statutory and conventional subrogation, the latter relating specifically to the terms of a contract, the legal revealed in allowing one individual to assume the rights over another and the statutory occurring as a result of the law being applied in terms of legal subrogation.

This essay, focuses on the tenets of insurance law through which the principle of indemnity is revealed through the doctrine of subrogation in terms of its conventional interpretation within its statutory framework, i.e. as a remedy in “what might be classified as unjust enrichment in a legal system that is based upon the civil law”^[6]. Subrogation originates from both common law and the laws of equity and it is also through both equity and common law that it continues to be administered, with the law of restitution recognised as a quasicontract within common law rather than incorporated into the laws of contract^[7] or the law of tort.

It has, however, become clear that this doctrine of subrogation no longer serves any useful purpose and has by been recognised both insurers and the courts that, in many situations, it may have unfortunate results and is wasteful. This essay discusses the issues surrounding the concept of subrogation and presents an argument that suggests that the function of this doctrine is, indeed, outmoded, inefficient and costly.

DISCUSSION

No Profit Rule

Any capricious risk reassigned through a contract of insurance is subject to various fundamental assumptions, one of which is the factor surrounding that risk’s arbitrary nature. Through the element of ‘utmost good faith’^[8] it is expected that the person to be insured discloses everything that could be relevant to the risk that the insurer is taking when it has agreed to insure the client^[9]. Similarly, the client may not be put at a disadvantage by any actions the insurer may undertake, with a number of regulations to ensure that the insurer adheres to acceptable practices and the insured does not, through any misrepresentation, preclude any entitlements owed to the insurer^[10]. Under the terms of the ‘made whole principle’ the insured person must be reimbursed in full prior to any profit being considered liable to the insurer, and the insurer may not implement the doctrine of subrogation until the insured person has been reimbursed in full^[11], except where a clause in the policy enables the insurer to apply the principle of subrogation when only partial payment has been made.

Nevertheless, insurers are within their statutory rights to offer a voluntary settlement to the insured person and then pursue judgment with the expectation of receiving full compensation through implementing the doctrine of subrogation against the third party’s liability insurance. However, the client may not jeopardise the trust that exists between insurer and insured by claiming more than their loss^[12], more recently the basis of a case where a Canadian Court of Appeal reduced the amount of compensation received by the Appellant, while they:

“imposed significant punishment for the bad faith of the respondent without upsetting the proper balance between the compensatory and punitive functions of tort law”.

Although in English law claiming more than the actual loss is not specifically illegal, to do so would be in breach of equitable principles and the doctrine of indemnity which assumes that the insured person would not make a profit from their loss. The doctrine of subjugation may be used in certain cases, stipulated by the courts, in order to remedy situations^[13] whereby an unjust profit had been made, in accordance with the explanation given by Lord Diplock in Orakpo v Manson Investments Ltd:

“It is a convenient way of describing the transfer of rights from one person to another, without assignment or assent of the person from whom the rights are transferred and which takes place in a whole variety of widely different circumstances”^[14].

Should the situation occur whereby the insured profits, it would be expected that they reimburse any excess to their insurer^[15]. Meanwhile, if, after both the insured and the insurer has been fully indemnified, there is excess money from the claim, the insurer is within their rights to claim it, as in the case of Yorkshire Insurance Co v Nisbet Shipping Co^[16]. Similarly, if a claim is settled in full by a third party and the money paid to the insurer, then that insurer is legally within their rights to deduct any excess from the compensation before paying the residue to the insured in accordance with the terms of their insurance agreement, as revealed in the case of Scottish Union & National Insurance Co v Davis^[17].

Evidence of Loss

The Courts tend to interpret insurance policies in accordance with those rules relating to the laws governing contracts, taking the overall context as being consistent with the actual intended meaning^[18] although, in situations where a meaning might be unclear it is usually the insured person who benefits in accordance with the doctrine of contra proferentem in terms of the guidelines of equity, although in the case of Leppard v Excess Insurance Co Ltd the actual sum awarded to the insured was reduced on Appeal as it was ruled the insured had been awarded indemnity in excess of his loss^[19]. Accordingly, and in view of the fact that insurance policies are subject to the rules of contract, it is necessary to ascertain whether the client was insured and, if so, under what terms, as revealed in the case of Sprung v Royal Insurance (UK) Ltd^[20] where it was decided that, although the plaintiff had clearly suffered a loss through the late payment of his claim, the:

“loss was recoverable in law from the defendants in addition to the interest element of the sum which had already been paid in respect of the loss under the policy”^[21].

However, the figure awarded should be in accordance with the market value of the property and, in situations where a property was incomplete, the value of the loss should reflect the market value at the time the loss occurs, illustrated by the case of Richard Aubrey Film Productions Ltd v Graham^[22] who, nearing completion of their filming, had their negatives stolen. At completion the film had an estimated market value of around ?20,000 but, as it still required further editing and other attention, thought to be around ?4,700 in value, prior to release the full market value was not considered to be appropriate. It was interpreted that compensation should be in accordance with the value of an ordinary indemnity contract, reflecting the sum a buyer would be prepared to pay for the film at the time of loss.

An overriding factor in assessing whether compensation may be payable is the legislation appropriate to each individual case, identified through either its comprehensive cover or through its specific limitations in terms of criteria. Policies need to take account for the devastation fire can cause, taking into account ‘reasonable reinstatement’ as clarified by Reynolds v Phoenix Assurance Co Ltd^[23] relating to the proposed refurbishment of an old mill. On the advice of their insurance brokers they greatly increased their indemnity. Subsequently a fire destroyed most of the building. It was established that the policyholder genuinely intended to rebuild the property and should be properly indemnified, although an issue was raised with the doctrine of undue enrichment, which was taken into account.

Remedy of Restitution

According to case law, and especially clarified by Lord Diplock^[24], it is generally an accepted principle that the rule of subrogation cannot be appropriate in every case and should be utilised reservedly for instances where it is especially pertinent and, as clarified in the case of Re TH Knitwear (Wholesale) Ltd^[25], only to the satisfaction of the courts, as in the case of Campbell Auto Finance Co v Warren in 1933^[26], and similarly in later rulings, e.g. Re Chobaniuk and Canadian Johns Manville Co Ltd^[27], although there are always exceptions. Subrogation may occur through the breach of duty or duplicity by the defendant resulting in the plaintiff being owed some form of corrective justice and recognised as a fundamental principle that profit may not be assumed through deceit^[28], or the doctrine of unjust enrichment^[29], in accordance with Lord Goff’s ruling in Lipkin Gorman^[30]:

“A claim to recover money at common law is made as a matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle”.

An insurer may enter into a simple subrogation by metaphorically standing in place of the insured person^[31], after the insured person’s claim has been paid^[32], and claiming the value of the insured person’s indemnity from this third party. This claim through subrogation must, however, be undertaken in the name of the insured person to reflect the fact that liability continues even though the insured person has already been indemnified. In effect, this means that the insurer is forcing the insured person to undertake further action despite the fact that they have already received full payment. The result will reimburse the insurer to the value of that which has already been paid to the insured.

In theory, this would enable an insured person who had suffered a loss from the actions of a third person, to receive double compensation through a secondary action against the third party, the tortfeasor, as in the case of Caledonia North Sea Ltd v London Bridge Engineering Co^[33] during which the insurers were allowed to “exercise a right of subrogation and sue in the insured’s name under the contracts of indemnity”.

The perception of compensation has a dual function: the satisfaction of obtaining justice against a defendant and the plaintiff being compensated to the value of their loss. Nonetheless, debate^[34] currently surrounds the issue of deducting collateral damages that might already have been paid to the plaintiff, the intention being that the plaintiff should be left in the position they were in before the liability occurred according to the precepts of common law as ruled in British Transport Commission v Gourley^[35]. It was recognised in Parry v Cleaver^[36] that common law offers no recognition of prior benefits being deducted or not with it being left to the courts’ discretion to rule in accordance with “justice, reasonableness and public policy”^[37] and, despite the law of tort remaining at variance with any of the more updated methods of compensation, its procedures continue to be an important way of recompensing for loss with the result that collateral compensation often results in a breach of the doctrine of unjust enrichment, as revealed in British Transport Commission v Gourley:

“it is a universal rule that the plaintiff cannot recover more than he has lost…Before Gourley’s case it was well established that there was no universal rule with regard to sums which came to the plaintiff as a result of the accident but which would not have come to him but for the accident”^[38].

This ruling was later upheld in Hussain v New Taplow Paper Mills Ltd^[39] due, in part, to Lord Bridge’s view that the tortfeasor should not benefit because the plaintiff had paid insurance premiums or received other payments as the result of charity, i.e. an award of damages having a deterrent effect through the defendant having to pay compensation, highlighted in the case of Redpath v Belfast and County Down Railway^[40], although this was later superseded by British Transport Commissioners v Gourley^[41]. When Browning v War Office^[42] was heard in the Court of Appeal it was noted that:

“whether the policy of the common law in these types of actions is to provide restitution for the plaintiff or to visit retribution on the defendant?”^[43].

CONCLUSION

Insurance law does not necessarily correlate with the principles of common law, with indemnity considered to be non-deductible due to a variety of reasons, part of which appears to be a reflection on the courts’ attitude to social policy. It was ruled in the case of Caledonia North Sea Ltd v London Bridge Engineering Co^[44], i.e. Caledonia North Sea Limited (Respondents) v British Telecommunications Plc (Appellants) (Scotland) and Others^[45]:

“insurance company recoveries, under their right of subrogation, most often flow from tort actions is quite natural, but without significance. Subrogation is an equitable principle and applies to contract rights as fully as it does to tort actions… The insurer is subrogated to appellant’s contract right of indemnity. This sustains the cause of action against appellant for the identical reason that subrogation sustains a tort action where the plaintiff has been paid for his loss”

The case of Parry v Cleaver^[46], decided in the House of Lords, illustrates the incongruous situation of continuing to recognise the doctrine of subrogation in insurance, recognised by both insurers and the courts as being wasteful and no longer serving any useful purpose, with both the opportunity and the possibility of various unfortunate results emerging from this practice continuing, the concept of insurance having diminished the influence tort alone now has in terms of restitution^[47]. Insurance companies now reimburse up to 94% of all damages and 88% of all claims in tort through insurance premiums that have been pre-paid^[48].

The law of restitution or quasicontract is recognised at common law rather than contractual remedies or remedies at tort. However, evidence provided by case law suggests that the circumstances in which these remedies are applied is reliant on a specific set of principles^[49] and there appears to be considerable doubt as to the criteria for subrogation allowed to be applied, with it being suggested that applying it arbitrarily was unacceptable – it should be a “matter of principle”^[50]. The definitive case that has been acknowledged as introducing the law of restitution into case law was Moses v Macferlan^[51].

“The law of restitution is the law relating to all claims…which are founded upon the principle of unjust enrichment”^[52].

It has been claimed that ‘federal class actions have tripled over the past 10 years’ represented by a burgeoning escalation of over 1000%^[53] and is contributing to an incipient damage to the US economy with ‘litigation costs increased at four times the growth of the overall economy’^[54]. Krauss observes that the law of tort is ‘not insurance against unfortunate losses…[it]…does not exist to protect against risks’. As he clarifies, the competitive nature of the insurance industry enables premiums paid by policy holders to cover the cost of most claims^[55]. In the US this may be achieved through social insurance, welfare payments and tax law or by way of private insurance, none of which had evolved to such developments as modern society enjoys when the cases of Castellain v Preston^[56] and Darrell v Tibbetts^[57] were being heard in the Court of Appeal during the 19^th Century.

Subrogation was ruled in Darrell v Tibbetts^[58] as payment had been made for a loss which, in retrospect, was revealed not to have been a loss and, as such, the plaintiff was entitled to seek redress from the courts in order to be reimbursed for his loss. In Castellain v Preston, however, this was not the case and ultimately resulted in both sellers and purchasers, in effecting conveyance of property, to be required to insure that property against loss, an apparent example of a wasteful exercise.

The ruling made by Chitty J was on the premise that “The contract of sale was not a contract…for the preservation of the buildings insured”^[59]. However, it was also recorded that Chitty, J correlated ‘subrogation’ with “the insurers are entitled to enforce all the remedies whether in contract or in tort”, thereby paving the way to future confusion between when subrogation was an appropriate action and blurring the distinction between the law of contract, that of tort and that of quasicontract administered through common law. The case went to Appeal where Brett, LJ^[60] interpreted simple subrogation as a doctrine of subrogation interchangeable with the doctrine of indemnity.

The Law Reform Commission state that Brett, LJ ‘distorted the definition of subrogation so as to cover the case’^[61] with the effect that it has subsequently been misapplied in many other cases^[62], with its true application, equity, continuing to be incorrectly interpreted over the years as subrogation. The Commission states:

“…its long-term effect has been to introduce a confusion into the heart of the law in this area which has rendered its workings obscure and which must be stripped away before the remedies made available…to enforce the principle of indemnity can properly be understood”^[63].

This reinforces their view of sufficient welfare provision and private insurance cover to preclude the need to subrogate a claim against a tortfeasor. In accordance with this view, the doctrine of subrogation can no longer serve any useful purpose and, in view of the amount of waste in terms of litigation costs and courts’ time that results from this doctrine far outweighs its continued value or rationale.

Total Word Count (excluding bibliography and footnotes): 3,000 words

BIBLIOGRAPHY

BOOKS:

Beatson, J (2002): Anson’s Law of Contract, Oxford: Oxford University Press, Page 20.

Bird and Hird (2001): Modern Insurance Law, London: Sweet and Maxwell, Page 256

Black’s Law Dictionary, 6th Edition (1990).

Burrows, (1993): The Law of Restitution, London: Butterworths, Page 1

Goff and Jones (1998): The Law of Restitution, [5th ed]. London: Sweet and Maxwell, Page 3

Krauss, Michael I (1992): Tort Law and Private Ordering, USA: St Louis University Press

Mitchell, Charles (1994): The Law of Subrogation. Oxford: Oxford University Press, Page 4

Oxford English Dictionary, The Compact Edition ( Oxford, 1987), ii. 3126

Virgo, Graham (1999): Principles of the Law of Restitution. Oxford: Oxford University Press

ARTICLES:

Barker, (1995): Unjust Enrichment: containing the beast. In OJLS, 15, 457,473

Barker, (1998): Rescuing Remedialism in Unjust Enrichment Law: why remedies are right. In CLJ, 57, 301.

Birds, John: Contractual subrogation in insurance. [1979] JBL 124, Pages 132 – 133

Connor, Martin F (2000, October): Taming the Mass Tort Monster, In the National Legal Centre for the Public Interest, Page 4

Hasson, Reuben: Subrogation in insurance law – a critical evaluation. [1985] 5 Oxford J Legal Stud 416, Page 425 – 428

HMSO: Report of the Royal Commission on Civil Liability and Compensation for Personal Injury [UK Pearson Commission (1978, Vol. 2, para. 509) [Cmnd 7054]

Law Reform Commission CONSULTATION PAPER ON COLLATERAL BENEFITS (LRC – CP 15 – 1999) Dublin: IPC House

ONLINE RESOURCES (Site visited 25/05/05. Hyperlinks functioning)

Krauss, Michael I (2004): Medical Malpractice: is it time for Tort Reform in Maryland, USA?: The Maryland Public Policy Institute http://www.mdpolicy.org/research/health/MDMedMal.pdf

Parsons, Chris (2002): Moral Hazard and Behavioural Aspects of Liability Insurance. http://64.233.183.104/search?q=cache:VR1wzB7SfwEJ:www.nottingham.ac.uk/business/cris/ukec/2002paper5.doc+Pearson+Commission%2Binsurance%2Bclaims%2B88%25%2Btort+=en

TABLE OF CASES:

British Transport Commission v Gourley [1956] AC 185, [1955] 3 All ER 796, [1956] 2 WLR 41, 2 Lloyd’s Rep 475, 34 ATC 305, [1955] TR 303, 49 R&IT 11

Browning v War Office and Another [1960 B. No. 3080] [COURT OF APPEAL] [1963] 1 QB 750

Caledonia North Sea Ltd v London Bridge Engineering Co [2000] Lloyd’s Rep IR 249

Campbell Auto Finance Co v. Warren [ 1933] 4 DLR 509 at 515

Canadian Johns Manville Co Ltd [1969] 39 WWR 680 at 681

Castellain v Preston & Others [1881-1885] All ER Rep 493

Castellain v Preston and Others [1882] 8 QB D 613 (April 4)

Castellain v Preston and Others [1883]11 QB D 380 (March, 12)

Commercial Union Ass Co v Lister (1874)LR 9 Ch 483

Darrell v Tibbetts (Court of Appeal) 5 QB D 560

Hussain v New Taplow Paper Mills Ltd [1988] 1 AC 514, [1988] 1 All ER 541, [1988] 2 WLR 266, [1988] ICR 259, [1988] IRLR 167

Leppard v Excess Insurance Co Ltd [1979] 2 All ER 668, [1979] 1 WLR 512, [1979] 2 Lloyd’s Rep 91, 2 ILR 107, 250 EG 751, [1979] EGD 246

Lipkin Gorman (A Firm) v Karpnale Ltd [1991] 2 AC 548, 578

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39

Morrison and Morrison v. Canadian Surety Co, n. 4 above, at 86 per Coyne, JA

Moses v Macferlan [1776] 2 Burr. 1005, 1012; 97 ER 976, 981

Napier v Hunter [1993] 2 WLR 42:

Lord Napier and Ettrick and Another v Hunter and Others and Lord Napier and Ettrick v RF Kershaw Ltd and Others [Consolidated Appeals] HL [1993] AC 713

Orakpo v Manson Investments Ltd and Others [ 1978] AC 95, [1977] 3 All ER 1, [1977] 3 WLR 229, 36 P & CR 1

Page v Scottish Insurance Corporation Ltd; Forster v Page (Court of Appeal) [1929] 33 Ll.L Rep. 134

Parry v Cleaver (House of Lords) [1970] AC 1, [1969] 1 All ER 555, [1969] 2 WLR 821, [1969] 1 Lloyd’s Rep 183, 6 KIR 265, (48 MLR 20)

Phoenix Assurance Co v Spooner [1905] 2 KB 753

Rayner v Preston (1881) 18 Ch D 1

Regal Films [1946 OCA]

Reynolds and Anderson v Phoenix Assurance Co Ltd and Others (Queen’s Bench Division) [1978] 2 Lloyd’s Rep 440 2 ILR 75, 3 ILR 51, 247 EG 995, [1978] EGD 172

Re TH Knitwear (Wholesale) Ltd [ 1988] Ch 275 at 286

Richard Aubrey Film Productions Ltd v Graham [1960] QB 2 Lloyd’s Rep 101

Scottish Union & National Insurance Co v Davis [1970] 1 Lloyd’s Rep 1

Sprung v Royal Insurance (UK) Ltd [1999] Lloyd’s Rep IR 111, (Transcript: Smith Bernal)

West of England Fire Insurance Co v Isaacs (Court of Appeal) [1895 – 1899] All ER Rep 683

Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18

Yorkshire Insurance Co Ltd v Nisbet Shipping Co Ltd (Queen’s Bench) [1962] 2 QB 330, [1961] 2 All ER 487, [1961] 2 WLR 1043, [1961] 1 Lloyd’s Rep 479

1

Figurational Sociology

The concept of figuration grew out of Norbert Elias’s best-known work, The Civilizing Process (Elias, 1939/1994). This work provided an analysis of how the European nation state emerged. It analysed social behaviour in modernity, and particularly social interactions. Split into two parts, the work first focussed on an analysis of manners to provide a description and understanding of the way in which modern norms underlying social interactions had developed. The second part of the book looked at how the nation-state had been built in the twentieth century. What Elias was most interested in, the central thesis of the book, was that it was possible for forms of social discipline – manners and social norms – to be translated into aspects of individual self-discipline (Olofsson, 2000). For Elias, then, there is a clear connection between a tendency towards state centralisation and the development of modern social manners. This is what he called the civilizing process. This essay, therefore, examines the concept of figuration, its theoretical roots in the study of court society, its modern form and the criticisms that have been levelled against it. As will be seen, the argument over the usefulness of the concept of figuration has been highly contested and strongly polarised (Featherstone, 1987).

At the heart of Elias’ work are a number of concepts – figuration is best understood within these. The concepts are interdependence, functional differentiation, self-control and power differences. Social change for Elias mostly results from the effects of functional differentiation. This is an idea shared with writers like Marx who placed the division of labour at the centre of his theory. For Elias, though, this functional differentiation leads to increasing levels of interdependence (Olofsson, 2000). Elias argued that the coercive power of societies emerges out of increasing interdependence.

This brings the discussion to the concept of figurations. In order to explain these, Elias uses the example of court society (Olofsson, 2000). He argues that in court society ‘calculation’ is an important process which individuals must engage in to negotiate with each other as the king communicates with his aristocracy. Because of changes in economic factors, many courts in Europe saw a shift of power from the aristocracy to the king. The power each member of the aristocracy had, therefore, depended on their relationship with the king. In order to survive, aristocrats had to play by certain rational rules that developed. These were based on the complex interdependency between the individuals and the fact that they were playing long-term power games with each other. An important component in playing these long-term power games was being able to control impulses. Because of the number of people in the court, the chains of interdependence were long and complicated. This required planning, attempting to predict the future and saving. Elias called this complex relationship between the king and the court a figuration. A figuration is characterised by asymmetrical power relations amongst a network of individuals. The court situation can, therefore, only be understood in terms of how the individuals relate to one another.

Four critical propositions about the figurational approach are extracted from Elias’ work by Goudsblom (1977). These are firstly that human beings inevitably exist in relationships of interdependence with each other. As a result of this interdependence, complex dynamics emerge which shape many aspects of development and change the ways in which people’s lives develop. The second proposition is that these figurations are constantly changing and being transformed. The third is that these social figurations are not essentially planned but emerge from the interdependencies. Fourth, figurations provide an important cause of the development of human knowledge.

In order to better understand the idea of figurations, Elias used various metaphors from games (Olofsson, 2000). Games are useful to analyse because the interactions between the players are not just a result of the absolute strength of each player, but of the relationship between the strengths of the two players. One example is two chess players pitted against each other. If one of them is significantly stronger than the other, then she will be able to control the manner of the victory as well as the actual victory itself. If, however, the levels of skill are much closer then the manner of victory will be much more uncertain and emerge from the interaction between the individuals. What this metaphor shows is that the power differences between two individuals have an important effect on the relationship. Chess only normally involves the relation between two players, but society obviously involves the relations between many more ‘players’, all with varying levels of power.

Shifts of power differences in society can be seen in the way the upper and lower classes interact. The lower classes have, for example, increased their level of organisation in order to increase their level of power in negotiating with the upper classes (Olofsson, 2000). One of the questions Elias wanted to address was how people continue to interact in generally peaceful ways when there is so much animosity in, for example, power relations (Loyal & Quilley, 2004). Models used to answer this question should have a number of characteristics. These are firstly that social processes cannot be analysed in terms of aggregations of components. Secondly the models work to both mould and constrain the behaviour and habitus of individuals.

The strength of the idea of figuration for Elias was that it was able to access ideas of what society was about more effectively than other methods in sociology (Krieken, 1998). Specifically it tends not to emphasise the dichotomy often present in sociological literature between the individual and society. Instead it places the emphasis on how human beings are interdependent. Society was not most usefully thought of as a totality or a whole system of individuals. Society for Elias was the way in which people interweaved with each other (Krieken, 1998). The advantage of this view was that it didn’t downplay the agency of the individual at the expense of society’s control and helped to show how people’s individuality melded together to form networks of interdependence. One important theoretical aspect of figurations that Krieken (1998) points out is that they can continue without the existence of the same individuals but they completely cease to exist if there are no individuals at all.

Krieken (1998) argues that Elias’ concept of figuration has been extremely important for sociology. One of its major strengths is the avoidance of the dichotomy between structure and agency. Although the distinction has been questioned many times in sociology, it is often still treated by sociologists as though it were real. Krieken (1998) points out that some have argued Elias’ concept of figuration should be placed alongside of the idea of structure. Mouzelis (1993) argues for avoiding abolishing this distinction. He argues for designating relations between actors in terms of figurations, relations between institutions as ‘institutional structure’ and plain structure when analysing the interaction between institution and individual. Krieken (1998) does not, however, agree with this three-way distinction. Krieken (1998) argues instead that Elias used the concept of figuration to subsume all these categories of analysis. This means that figuration includes the analysis of what is traditionally called the structure of society.

Habitus is also an important concept in Elias’ theory of figuration. Habitus refers to the idea that each individual has their own set of personal preferences, attitudes, beliefs, expectations and rules. Habitus comes from a person’s community and family experience and through their own experience of life as they grow up. For Elias, though, this habitus develops in an essentially shared manner (Krieken, 1998). Individuals grow up in society and their personal characteristics are, to a certain extent, moulded by those around them. Through this collective moulding of individuals, the nature of collective behaviour is formed. The ideas of habitus and figuration lead to a further important concept in Elias’ theory. That is that the way in which a person’s habitus is formed is called psychogenesis. This, then, can only be properly understood when it is considered in relation to social relations or sociogenesis. Theoretically and methodologically, therefore, Elias was arguing against the separation of sociology from psychology. Each has important complementary effects on the other, so it is hard to get a clear picture of the full human being if both are not considered together.

Elias’ ideas have vital implications for the way in which sociologists carry out their research. Krieken (1998) identifies two particular characteristics of Elias’ theory that are a challenge to some types of sociology. First is the focus of figuration on social relations which points to the fact that an individual cannot be analysed in isolation. Individuals can only be understood, even in isolation, argued Elias, in terms of how they relate to other people, as that is how people are formed. Thinking about humans without the relational element has a huge array of possible associated mistakes. For Elias, the analysis of power especially fell foul of the tendency to see power as a thing in itself rather than as arising from social relations (Krieken, 1998). This led, he thought, to all sort of misunderstandings. To be understood effectively, power should be seen in reciprocal terms. Elias argued that power was often analysed as though it only flowed down from above. A figurational analysis, however, also points to the reciprocal effects flowing up from below.

The second major characteristic of Elias’ theory is that it focuses on processes (Krieken, 1998). Figuration, therefore, cannot be seen as a static phenomenon, but as something that evolves and emerges over time. What had happened in sociology, however, argued Elias, was that there had been a reduction of social phenomena to particular states. Communities, families, individuals, all should be analysed as though in a state of flow, rather than statically. The use of figurations could be used to analyse these flows as long as there was not a reduction to a simple argument of causality. For example, Elias argued that a particular figuration made other, later figurations possible although it did not guarantee they would happen. Analysing society using a series of static conceptual categories, therefore, was precisely what Elias did not agree with (Rojek, 1986). Instead a process theory of sociology encourages analysis in terms of movement. This type of approach has a character quite opposed to many in sociology.

Figurational sociology can be seen as extremely useful as a reaction to six dominant paradigms in sociology (Arnason, 1987). First Marx’s work is limited by its concentration on the economic areas of life, whereas Elias’ figurational sociology is applicable to all areas. Against Durkheim’s idea of norms, Elias argued these do not represent fundamental units but rather the question should be asked in terms of power relations. For Elias, these questions should be addressed using a long-term analysis. Examining the functionalist approach, Elias found that trying to explain social structures in terms of the needs of the system was ineffective. The functionalist account is lacking because it finds it difficult to account for the fact that systems are interlinked at all levels. As has already been seen, Elias argued against a structuralist approach. The reductionist approach also had problems for Elias as society, he believed, could not be understood at this level. Finally, Elias took issue with individualism, the idea that it is possible to analyse society in terms of individual behaviour (Arnason, 1987). This is replaced by Elias with a focus on power relations and the analysis of figurations.

A number of methodological injunctions develop naturally from Elias’ theory of figurations; these are examined by Loyal and Quilley (2004). The first is that sociologists should not think about either individuals or society as in any way static or fixed. An effective analysis emerges which sidesteps arguments over macro- or micro- level explanations. A further dichotomy which Loyal and Quilley (2004) present as being avoided by Elias’ work is that of mind-body duality which has crept into sociological work. The idea of figuration draws attention to habits of language in which processes are often reduced to states. The focus of figuration, however, is on using language that has the meaning of motion and flow built into it. The danger for sociologists of automatically adopting the available language of states is a misunderstanding of the processes occurring in society. This view was influenced by the work of Whorf (1956) who argued that language fundamentally affects the perceptions of the members of the society that speak it. Finally, Elias believed that some measure of distance was required from society in order to be able to analyse figurations effectively.

A Critique of Figurational Sociology

While much of the commentary on Elias’ figurational approach discussed so far has been complimentary, his work has a number of critics. Layder (1986) argues that many of Elias’ claims about the benefits of his approach to sociology are vastly exaggerated. As a result, argues Layder, Elias tends to focus on trying to solve problems that don’t actually exist. Layder (1986) starts by considering Elias’ focus on the static categories used in language as well as the idea that positivistic notions of causation are inadequate. The concept of figuration is used to challenge these ideas by Elias. In addition, underlying Elias’ concept of figuration is the idea that it transcends long-running arguments in the philosophy of the social sciences such as that between induction and deduction and rationalism and empiricism.

Layder’s (1986) first criticism is that Elias’s figurational approach does not transcend previous approaches. One reason for this is that Elias uses only the worst examples from disciplines so that he can easily demolish their explanatory power. Elias’ critique of social psychology and psychiatry assumes that all its approaches are atomistic. It doesn’t, for example, take into account the wide variety of approaches such as those which do, indeed, focus on the effects of society on the individual and are not so atomistic. Symbolic interactionists, for example, highlight the way in which the ordinary, everyday processes of social interaction build to create what is called ‘society’. Mead (1934), an important theorist in this approach, emphasised the importance of socialisation and social interaction. For Layder (1986), then, the concept of figuration does not provide any additional explanatory power. Layder also argues that Elias does not demonstrate exactly how the idea of figurations provides a better explanation of society.

In criticising the concept of figurations, Layder (1986) argues that Elias makes a number of philosophical mistakes, some ontological and some epistemological. Layder describes figurations as generalised depictions of the social ties between individuals that Elias argues cannot be analysed outside of individuals. Figurations, though, must have some meaning outside of the interactions of individuals; otherwise it would not be possible to talk about them in an abstract sense. This is not, of course, to suggest that figurations only have meaning outside of actual interactions. For Layder, then Elias’s mistake is to argue that a figuration does not have both a manifestation as a social practice as well as existing as an idea about that particular social practice. If the ideas did not exist it would be impossible to talk about the things themselves in an abstract sense. For Layder, then, the very discussion of social practices as figurations proves that they exist outside of the actions themselves.

What Layder allows Elias’ concept of figuration is that it does provide a useful descriptive tool. Although it doesn’t transcend alternative explanations advanced by those working within structuralist and functionalist models, it can provide a useful way of examining interrelations between people. These analyses would, however, in Layder’s view, be useful in addition to those insights from structuralist or interactionist perspectives, they wouldn’t supplant them. The weakness of using the concept of figuration is that it tends to ignore actual people, in deference to their networks of social relations compared to, for example, the analysis provided by interactionism which is very much focussed on social actors themselves. In this sense, it is again difficult to argue that figuration provides an approach transcending interactionism and other schools of thought.

The second major criticism that Layder (1986) makes of Elias’s concept of figurations relates to their rejection of objectivist structures. As discussed, figurational sociology sees social processes as fundamentally fluid and avoids reductionism – Elias claims that this is an insight that helps the figurational analysis transcends other approaches. Against this idea, Layder (1986) argues that many phenomenological and interactionist schools of thought are based on the idea of social relations as a process. But, Elias does not compare his theory to these approaches, preferring to pretend they don’t exist. Instead, figuration is compared with the theory of Talcott Parsons as an example of an objectivist theory. Elias takes Parsons’ idea that society is essentially in an unchanging equilibrium and states that this is the way society is seen from an objectivist viewpoint – as a static system. In this analysis one of the mistakes Layder (1986) thinks Elias has made is to create a false dichotomy between static and fluid analysis as though there is no intermediary point. In doing this Elias claims that theories such as Parsons’ cannot explain processes, which, argues Layder, they can. Indeed, in concentrating on long-term processes, Elias does not allow an effective analysis of short-term processes.

The third major criticism which Layder (1986) levels at Elias is that the concept of figuration lacks explanatory power. Rather than helping to explain what lies behind social changes, Layder argues that it merely provides a description of what is happening. When looking for the causes of figurations, Elias presents more figurations.

Criticism of the concept of figuration has also come from Rojek (1986). In particular Rojek (1986) examines the way in which Elias talks about the accumulation of scientific knowledge. As briefly noted earlier, Elias argued that the quest for knowledge was not immune to the power of figurations. Indeed he thought it was a mistake that philosophers of the social sciences tended to make that assumed there was one model of the way science should be conducted.

One particular claim that has been made for the usefulness of figurational sociology is that it provides a link between micro and macro approaches (Mennell, 1980). Layder (2006) argues, however, that using figurations as the linking between the macro and micro approaches just serves to blur the differences between the two. The character of social relations is quite different depending on its manner – for example a face-to-face encounter is different from sending and receiving an email. Within Elias’ approach each of these would be considered aspects of figurations. Layder (2006), however, argues that each of these creates different levels of reflexivity and therefore requires a different analysis.

For Layder (2006), Elias’s figurational approach deflects attention away from a number of important factors. Institutions, for example, have important effects on the behaviour of people but this is difficult to analyse by thinking in terms of networks of connections between people. Further, when analysing social organisation in the form of groups, a figurational approach can deflect attention away from the nature of the ties between people, preferring instead to focus on their actual existence and their particular form.

A false criticism that Elias makes of sociology generally by way of his figurational approach is that not enough emphasis has been given to the interaction between society and the individual – Layder (2006) argues that this interaction is practically the founding idea of sociology. The challenge for sociology is in working out where to split the society from the individual. A problem which Elias’ work shares with sociology more generally is that a socially constructed model makes it difficult to understand the uniqueness of an individual. A complete lack of barriers between individuals leads to the conclusion that people have no individuality themselves. While it is not helpful to focus too much on the individual, it is also problematic for a complete understanding to give too little focus to the individual. Layder (2006) argues that, like extreme social constructionists, Elias’ theory of figuration is in danger of completely eradicating the individual as a legitimate object of study.

Figurational Sociology and Sport

In order to further assess the usefulness of the concept of figuration and see the benefits and criticisms in action, it is instructive to examine an example of its practical application. The principles of figurational sociology have been applied in a number of different areas, but one particularly popular area is that of sport. Figurational sociology has been used to try and understand football hooliganism, the growth of professional sport, the globalisation of sport and finally initial process of sportization (Murphy, Sheard & Waddington, 2002).

To take one example in this line of analysis, Dunning and Sheard (1979) examine the development of rugby. They explain the increased professionalism of the sport in terms of a societal move towards functional democratisation. This process leads to greater levels of competition, so that rugby players can no longer play just for fun. Instead, it is necessary to be highly committed to the sport in order to be recognised as successful. Because of the increased interconnectedness of individuals, it is no longer possible for athletes to play for themselves; instead they have to play for their countries (Dunning & Sheard, 1979). This analysis helps to explain professionalism in rugby and the advantages of a figurational approach can be seen. Societal changes are examined here in terms of figurations and this provides a useful analysis and explanation of changes.

In contrast, Murphy et al. (2002) point out that one of the criticisms of the figurational approach to sport is that it has ignored gender issues. Hargreaves (1992) argues that the figurational obsession with detachment has meant the analysis of sport has readily accepted a notion of sport as dominated by men. Even while Murphy et al. (2002) argue that this absence of the analysis of gender in figurational sociology is not a result of its theoretical limitations, from the criticisms already described the opposite can be argued. Particularly, as Layder (2006) points out, the figurational approach is weak on the analysis of the individual.

Conclusion

Elias made many claims for his concept of figuration. He claimed that it transcended previous approaches to sociology, rose above false dichotomies and helped sociologists focus on human beings as fundamentally involved in a network of interrelated relationships. Methodological injunctions also flowed naturally from Elias’ theory: e.g. focussing on processes rather than categories or states and establishing a distance between the researcher and the subject. Considering the criticism levelled at Elias’ work by Layder, however, it is difficult to see that these claims for a transcendent sociology are justified. Elias frequently misrepresented or ignored the work of sociologists he was apparently transcending as well as making serious epistemological and ontological errors. While both the advantages and disadvantages of the figurational approach can be seen in the area of sport sociology, it is hard to argue that Elias’ work stands up to Layder’s criticism. Perhaps the strongest criticism is that figuration is merely a descriptive rather than an explanatory approach. For that reason, the usefulness of Elias’ concept of figuration is limited.

References

Arnason, J. (1987). Figurational Sociology as a Counter-Paradigm. Theory, Culture & Society, 4(2), 429-456.

Elias, N. (1939/1994). The Civilizing Process: The History of Manners and State Formation and Civilization. Blackwell.

Dunning, E., & Sheard, K. (1979). Barbarians, gentlemen and players: a sociological study of the development of rugby football. London: Martin Robertson.

Featherstone, M. (1987). Norbert Elias and Figurational Sociology: Some Prefatory Remarks. Theory, Culture & Society, 4(2), 197.

Goudsblom, J. (1977). Sociology in the Balance: A Critical Essay. Oxford: Basil Blackwell.

Hargreaves, J. (1992). Sex, gender and the body in sport and leisure: Has there been a

civilizing process? In E. Dunning & C. Rojek (Eds.). Sport and leisure in the civilizing process: Critique and counter-critique. Toronto: University of Toronto Press.

Krieken, R. (1998) Norbert Elias. London: Routledge.

Layder, D. (1986). Social Reality as Figuration: A Critique of Elias’s Conception of Sociological Analysis. Sociology, 20(3), 367.

Layder, D. (2006). Understanding Social Theory. London: Sage Publications.

Loyal, S., & Quilley, S. (2004). Towards a ‘central theory’: the scope and relevance of the sociology of Norbert Elias. In: S. Loyal & S. Quilley (Eds.). The Sociology of Norbert Elias. Cambridge: Cambridge University Press.

Mead, G. (1934). Mind, Self and Society. Chicago: University of Chicago Press.

Mennell, S. (1980). Sociological Theory, Uses and Unities. London: Nelson.

Mouzelis, N. (1993). On Figurational Sociology. Theory, Culture & Society, 10(2), 239.

Murphy, P., Sheard, K., & Waddington, I. (2002) Figurational sociology and its application to sport. In: J. Coakley & E. Dunning (Eds.). Handbook of sports studies. Sage Publications.

Olofsson, G. (2000) Norbert Elias. In: H. Andersen, & L. Kaspersen (Eds.). Classical and Modern Social Theory. Oxford: Blackwell Publishers.

Rojek, C. (1986). Problems of Involvement and Detachment in the Writings of Norbert Elias. The British Journal of Sociology, 37(4), 584-596.

Whorf, B. (1956). Language, thought and reality: Selected writings of Benjamin Lee Whorf. J. B. Carroll (Ed.). Massachusetts: MIT Press

How Liberalism ideology relates to social work practice

The history and influence of Liberalism is a complex issue, and understanding social work practice involves penetrating a vast nexus of theoretical and practical socio-political factors. Nevertheless, addressing the specific question of how Liberalism relates to social work practice reveals important and distinct points for discussion. In this essay I will outline the historical developments of Liberalism and highlight the core beliefs and how they influence social work. I aim to argue that exposing the liberal ideological values inherent in social work opens up latent tensions to debate. The tensions in liberal political theory and the concomitant problems for social work don’t call for abandonment of Liberalism ideology because it has as its basis the appropriate capacity for renewal. These debates should stimulate reappraisal and reform and increase our capacity to influence the social, political and economic determinants of social care. This can be achieved due to – not in spite of – the underlying principles of Liberalism.

The historical development of Liberalism

While the editors of the Spanish Constitution in 1812 were the first to use the noun liberal in a political sense, the war of independence in America established the first nation to craft a constitution based on Liberalism. This new creed originated in the political philosophy of the previous three hundred years. Liberalism emerged from the breakdown of feudalism, the growth of market capitalism and the rise of the middle class. Liberals sought to expose the immorality of authoritarianism and limit government powers in order to safeguard civil liberties.

Where early Liberals sought total non-intervention, modern liberals endorse involved governance on issues such as welfare, education and healthcare. This has led to a split between the early classical Liberalism and the modern form which dominates contemporary politics today. Nevertheless, classical and modern Liberalism share core beliefs which point to underlying principles. These principles perpetuate every aspect of contemporary life in Western political systems. Ideas such as individualism, tolerance and economic freedom are central to the western political ideology of our times.

The core beliefs of Liberalism

‘As political beings it is our business to free human life from as many as possible of its difficulties’ (Mill Principles of political philosophy in collected works II p.943)

Liberalism holds that individuals are the locus of moral consideration, and securing individual freedom is paramount. An extreme form of liberal individualism; atomism holds that the individual is central to socio-political theory or practice, ontologically prior to society, egotistic, self seeking and self reliant. Modern Liberalism has a more optimistic bent in its understanding of social responsibility and mutual respect. Political Liberalism stresses the social contract^[1], under which citizens make the laws and agree to abide by those laws. It is based on the belief that individuals know best what is best for them. This is the characteristic theme of liberal ideology, and ideas of justice and freedom stem from the primacy of the individual.

Rationalism^[2] greatly influenced the liberal concept of an individual. The idea of a rational man was an important precursor to social non-intervention, as the rational man is capable of defining and pursuing his own path in society, rendering the idea of a paternal government unnecessary. Modern liberals appreciate the inequality of self reliance and seek to strike a balance between intervention and decentralisation.

The emphasis on and openness to reason in liberal societies emanates from the many dichotomies at its heart: On one hand natural man is seen as rational and socially conscious, while on the other egotistic and selfish. One the one hand men are capable on the other needy. This tension in Liberalism is reflected by the fact that is has met with discussion, debate and argument since its inception. A willingness to offer reasoned explanations for its theories is central to liberal ideology.

Liberalism favours neutral government, in that it is not for the state to determine personal values. As John Rawls put it in his Theory of Justice, ‘The state has no right to determine a particular conception of the good life’ (Rawls 1999). The idea of the good life has been used in political philosophy to denote a course of action the rational man takes when in favourable political circumstances. Rawls argues that liberal governments should provide these favourable conditions but never attempt to dictate how citizens should go about the acquisition of happiness. This idea of neutrality is closely connected to tolerance, and in particular the willingness to celebrate political and religious diversity.

Since the developments in economics in the late 18^th century Liberals have stressed the importance of a free markets, and seek to limit government intervention in domestic economy and foreign trade. In Andrew Heywood’s words the attraction of classical economics to liberal ideology ‘was that, although each individual is materially self-interested, the economy itself is though to operate according to a set of impersonal pressures – market forces – that tend naturally to promote economic prosperity and well being.’ (Heywood 1987) Modern liberals support government responsibility for health, education, and alleviating poverty yet still call for a market based on independent exchange and tend to believe in decentralisation.

The central tenets of modern Liberalism are the primacy of the individual, freedom, tolerance, a commitment to reason and debate, and a free-market economy. Liberalism is egalitarian; based on principles of democracy, classlessness, equality and openness, and is antonymous to oppressive and tyrannical authoritarianism. Liberalism advocates civil rights for all citizens: establishing justice though the protection and privileges of personal liberty. It includes the equal treatment of all citizens irrespective of race, gender and class. These core beliefs directly influence much of day to day life, but we will focus on the implications for the practice of social work.

Social work and Liberal ideology

Social work is a discipline involving the application of social theory and research methods to societal problems. It incorporates and uses other social sciences and political philosophy as a means to improve the human condition and positively change society’s response to these problems, through understanding and acting upon their causes, solutions and human impacts.

What constitutes a social problem? And what constitutes a solution to a social problem? In the western world the answers to these questions stem from governmental policy based on the principles of Liberalism. In a modern liberal society a social problem is one that contradicts the core liberal principles. A solution is that which removes the restrictions to people flourishing. For these reasons ideology implicit in societal interactions effects what we know as social problems and solutions.

Poverty and alienation are profound social problems and major causes of suffering in modern society. Taking poverty, Liberalism ideology believes that every individual should have the freedom to succeed economically, and not live in poverty. We have seen already that while early Liberals emphasised non-intervention, modern liberals endorse more involved governance on issues such as welfare. This reflects a central tension in the practical applicability of Liberalism ideology highlighted by Maureen Ramsey in her book what’s wrong with Liberalism? ‘Since both forms of Liberalism endorse private ownership, the economic redistribution required to tackle poverty will inevitable infringe particular individual rights to liberty’ (1997, pg66). The emphasis on individual liberty and progress at the heart of liberal capitalist economies has been accused of perpetuating this tension. Furthermore, welfare as a concept contradicts the moral neutrality that is central to the principle of tolerance in Liberalism. By providing a range of services designed to bring about the public good the state is making judgements about what is good, beyond the self seeking satisfaction of subjective desires. This leads Ramsey to conclude that ‘the provision of welfare [is] at odds with basic liberal assumptions’ (pg, 66).

Examples from social work where the right to escape poverty is being restricted could include a daughter being held back from going to school to work for her parents, or a wife not being permitted to work. Social workers’ ability to address these problems is influenced by the traditional liberal distinction between the public and the private spheres by which liberal governments should only function in the public sphere, excluding the activities of family life. Modern liberals attempt to strike a balance between intervention and non intervention. However, because of the tensions concerning the private sphere, political neutrality and accountability, this balance remains problematic. Many agree with Pateman that these restrictions render care ineffective and the areas of social work that can deal with poverty are too limited.^[3] ‘Precisely because Liberalism conceptualises civil society in abstraction from ascriptive domestic life, the latter remains forgotten.’ (Pateman, 1987 p. 107)

The liberal legacy of limited intervention and reason has resulted in an often debilitating caution concerning social work, even in the more extreme areas of its application. Taking the examples of ‘baby p’ and Victoria Climbie the social services have been accused of being too optimistic about the intentions of citizens and missing the signs that could have helped them avoid such awful tragedies.^[4] However, intuitions support the distance between the private and the public spheres. The idea of children being taken away from their parents is invariably seen as a last resort, a relaxation of this attitude may have saved many children, but it may also create other awful situations in which children are taken away from good families. It would demand more care and attention to complex detail than necessary for our purposes here to question the role of political ideology in these terrible events.

Alienation is another complicated issue facing modern liberal society. Liberal ideology does not have a core belief connected with the negativity of isolation because of an understanding of human nature that emphasises the priority of the individual. This is often seen as a deficiency as many hold that the intuitions constructed by Liberalism have produced a situation where individuals have shallower relations with other people than they would normally. This, it is argued, leads to difficulties in understanding and adapting to each other’s uniqueness. This points to another of the tensions within Liberalism: it promotes tolerance but through its emphasis on individual freedom encourages isolation. Many sociologists are concerned about the alienating effects of modernization, describing how relationships become mediated through money because economic freedom is considered an essential element of individual liberty. This has also been accused of contributing to the loss of primary relationships such as familial bonds in favour of goal oriented secondary relationships.

The concepts of the private sphere, individual freedom, tolerance and political neutrality greatly affect what we deem to be within the role of a social worker. The balance between intervention and personal freedom rests as precariously now as any time since Mill. Free market capitalism is at its weakest in decades, giving new impetus to the charge that economic Liberalism is guilty of creating a more selfish society where the pursuit of personal wealth is more destructive that constructive.

Is liberal ideology repressive?

Liberalism is accused of repressing positive aspects of human nature. To call Liberal ideology repressive though, is extreme. Liberalism allows for repressive forces to emerge due to its emphasis on individual liberty and freedom of speech and thought, but allowing repressive tendencies to emerge is not adhering to them, and liberal societies should not be blamed for the emergence of alternative ideologies within them. Social and corporate responsibility are genuine possibilities in liberal society and are prevalent in modern liberal theory.

There are problems with Liberalism, but I suggest they do not serve as aspects of a repressive ideology. We ought to remember that Liberalism emerged from the compassionate desire to eradicate authoritarian rule in order to secure freedom for every man. This is a noble aspiration with compassion for all at its core. As industrialisation and free market economies took over, the role of welfare in liberal states became important because of the same aspirations, to help every single person in a society. The change from non-intervention to intervention evidences the claim that ideologies have to adapt to contexts, and this is where Liberalism has a unique quality, a profound capacity for renewal. The classic versus modern Liberalism debate could only occur in the climate of discussion debate and argument that defined the rationalist movement. The tensions in Liberalism were inherited from this theoretical foundation and have maintained their capacity for renewal. The tensions in Liberalism reflect the scope for continual reappraisal, it is not dogmatic, and is open to public scrutiny through the democratic process. Challenges are being made and listened to within liberal society. For example, the Social liberals^[5] introduced scepticism concerning the idea of free markets, seeing unrestricted trade as leading to the growth of multi-national corporations and the concentration of wealth and power in the hands of the few, seen as contradicting the intention of liberty for all.

These socially responsible tendencies are not entirely new editions to liberal theory and in fact are latent in political Liberalism. While the early Liberals like Locke saw liberty as a natural right, Liberalism has never held that the entitlement to freedom is absolute. In On Liberty ([1859] 1972, p.73) Mill argued that ‘power can be rightfully exercised over any member of a civilised community… [If it]… is to prevent harm from others’. Liberalism emerged as a move away from blind adherence to political dogma based on static views of a divine ordered reality, towards a scientific and compassionate concern for every citizen. To conclude that Liberalism must involve repression is excessive given the underlying desire to stand for the opposite.

Conclusion.

The practice of social work in modern liberal society rests on liberal principles. By locating the connections between social work and Liberalism ideology, we have seen how practical social knowledge is influenced by liberal philosophical assumptions. These central tenets of Liberalism are liberty, tolerance, and a free-market economy. These core beliefs affect all areas of social life, including social work. The tensions that permeate the practices of liberal governments are present in the field of social work and valuable indicators of the complexity of the issues social workers face. Crucially, they are open to reform.

There are deep social problems in liberal society, of which poverty and alienation are paramount. What we can learn from these problems is that if Liberalism will succeed in its aspirations it needs to expand its scope to include more social and corporate responsibility, and a greater understanding of community. The emphasis on the individual, particularly in the economic brand of Liberalism, can repress aspects of human nature that seem central to the compassion and egalitarianism that motivated the creation of liberal theories. If empathy and care are a consequence of our social nature then we need an account of the individual as interdependent, opposed to the atomised individual of classic liberal theory.

The tensions in liberal political theory and the concomitant problems for social work don’t call for abandonment of Liberalism ideology because it has as its basis the appropriate mechanisms to progress: democracy and education, the capacity for renewal and the compassionate aspiration to secure freedom. They call for reappraisal and reform.

Bibliography

Political Ideologies an introduction Heywood, Andrew. Palgrave 1992

Liberalism and modern society Bellamy, Richard. Polity press 1992

What’s wrong with Liberalism Ramsay, Maureen. Leicester University Press 1997

A Theory of Justice revised edition Rawls, John. OUP 1999

After Virtue MacIntyre, Alasdair. Duckworth 1981

Feminist critiques of the public/private dichotomy in Feminism and inequality Phillips A (ed) Blackwell 1987.

1

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

CONTENTS

Introduction

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

Boxing in the Ancient World

Homer

Virgil

Plato

Conclusion

Bibliography

Introduction

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

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

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

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

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

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

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

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

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

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

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

Boxing in the Ancient World

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

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

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

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

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

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

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

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

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

Homer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How companies manipulate their accounts using accounting ratios?

Abstract

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

Table of Contents

Chapter 1 Introduction

Background

Rationale

Objectives

Scope

Work Map

Chapter 2 Literature review

Introduction

Enron

WorldCom

Ratios

Differing Accounting Standards in the UK and US

Chapter 3 Research Methodology

Inductive and Deductive Reasoning

Qualitative and Quantitative Research

Secondary and Primary Resources

Research Rationale

Chapter 4 Data collection and analysis

Chapter 5 Conclusion and Recommendations

Bibliography

Appendices

Background

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

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

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

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

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

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

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

Rationale

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

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

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

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

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

Objectives

The objectives of this study are as follows:

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

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

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

Work Map

The study shall be divided into the following sections:

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

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

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

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

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

Overview

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

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

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

Enron

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

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

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

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

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

WorldCom

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

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

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

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

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

Ratios

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

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

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

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

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

Main Topic : Education

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

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

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

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

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

THE ORIGINAL SEVEN INTELLIGENCES

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

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

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

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

Eighth intelligence – the naturalist intelligence :

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

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

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

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

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

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

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

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

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

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

IMPLEMENTING GARDNER’S THEORY IN THE CLASSROOM

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

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

Lesson design plays a major role for the adolescents in education

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

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

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

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

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

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

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

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

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

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

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

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

Middle School/High School Level Workshops

Certain Learning design techniques at the workshops currently used are

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

Using Manipulatives & Activities to Teach Geometry

Mathematics for the New Millennium
Rethinking Our Beliefs about Mathematics

Multiple Intelligence and Mathematics

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

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

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

Research Trail

Question Title:

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

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

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

Texts:

Library search for general EU law texts:

Craig and De Burca:

“EU law: Text Cases and Materials”.

Chapter 18: Freedom of establishment and to provide servies.

Chalmers, Hadjiemmanuil, Monti and Tomkins.

“European Union Law: Text and Materials”.

Chapter 17; The free movement of services

Weatherhill.

Cases and Materials on EU law.

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

Internet resources:

Search of www.google.scholar.com

Terms:

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

Cases (primary sources):

Westlaw Search:

Search by terms: freedom of establishment services lawyers

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

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

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

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

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

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

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

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

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

C-294/89. Commission v French Republic.

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

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

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

Treaty Articles and Directives

Eur-Lex.

Art 44(2) TEC.

Art 47(1) TEC

Art 47(2) TEC.

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

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

Directive 77/249 (preamble)

Directive 77/249. Art 5.

Directive 89/48 Article 2.

Directive 89/48 Article 4.

Directive 89/48 Article 1(g)

Directive 98/5. Article 3(1).

Directive 98/5. Article 5(1).

Directive 98/5. Article 10.

Directive 98/5. Article 10 (1).

Word Count 498.

Abstract

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

Methodology

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

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

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

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

What is the “reality” in Reality TV?

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

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

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

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

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

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

Reality TV: a psychoanalytical approach

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

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

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

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

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

The World Is Flat: “Infotainment” and relativism

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